WORKING GROUP ON INDEPENDENCE AND EFFECTIVENESS
SEMINAR: 9th and 10th OCTOBER 2009
QUESTIONNAIRE: RESPONSE OF THE
NORTHERN IRELAND REPRESENTATIVE
[MR JUSTICE BERNARD McCLOSKEY]
The subject matter of the seminar is the speed of procedures in domestic administrative courts (a concept to be interpreted widely in a common law jurisdiction such as the United Kingdom) and possible tensions with fundamental rights. Some context for the examination of this important topic is provided by the report of the European Commission for efficiency of justice (“Length of Court Proceedings in the Member States of the Council of Europe Based on the Case Law of the European Court of Human Rights”), published in 2006.
Reasonable expedition is, indisputably, a highly valued aim or standard in every developed legal system and it is a matter of supreme importance in Northern Ireland.. It gives rise to rights and expectations on the part of litigants. However, these rights and expectations must be balanced with another value of undeniable importance, the independence of the judiciary.
It is noted that before the end of the present year, the group of specialists concerning the judiciary known as CJ-S-JUD has responsibility for revising Recommendation No. R (94) 12 relating to the independence, efficiency and role of judges. This is awaited with interest.
In compiling the following answers to the questionnaire, it may be observed that whereas the Northern Ireland legal system is based on a combination of common law and statute, the term “administrative courts”, in the sense in which this is commonly employed in civil law countries, equates broadly with civil (i.e. non-criminal) courts and tribunals. The responses to the questions have been prepared accordingly. Finally, it may be noted that the population of Northern Ireland is 1.5 million.
1. What is the proportion and number of cases in administrative courts which have suffered delays greater than the time limits permitted in the case law of the European Court of Human Rights?
1.1 In the legal system of Northern Ireland, (administrative or civil) courts are distributed amongst the following three tiers:
(a) The High Court of Justice (which has various divisions).
(b) The County Courts.
(c) Magistrates Courts and Tribunals.
1.2 Statistics are not readily available. However, it is considered that, in practice:
(a) The vast majority of uncomplicated civil cases are processed and determined in less than two years.
(b) The vast majority of complex civil cases are processed and determined within less than five years.
(c) In the small percentage where the time limits noted above are not observed, the explanation almost invariably relates to delays and default in the conduct of the parties and their legal representatives or their witnesses – to be contrasted with the conduct of judges or shortcomings in the legal system itself.
(d) Flexibility at every tier ensures that urgent (or priority) cases are readily identified and are given precedence over other cases. Thus, for example, in cases involving the liberty of the subject, it is possible for the High Court to convene a hearing within a matter of hours. It is equally possible for judgment to be given immediately, at the conclusion of the hearing.
1.3 Regular and intensive case management is one of the main techniques employed by the judiciary in Northern Ireland to ensure that delays are minimised in litigation. This requires considerable personal effort and investment on the part of individual judges. It minimises significant delays and default on the part of the litigants and their legal representatives. It also ensures flexibility and prioritisation in the allocation of court time and resources.
2. Is the number of cases determined by the administrative courts increasing each year?
2.1 First instance civil courts.
The statistics for administrative cases in the magistrates’ court and the county court are not recorded separately. In the higher courts, however, a five year study indicates that numbers of administrative cases coming before the courts are at present relatively stable. A major increase in judicial review cases over the past quarter century, as the jurisdiction has developed, is a common theme across the common law world. What can be said of a five year snapshot of civil cases generally in Northern Ireland is that they appear not to be increasing significantly.
2004 – Out of a total of 253 applications, 111 or 44% were granted leave to apply for judicial review and 35 were ultimately successful.
2005 – Out of a total of 261 applications, 178 were granted leave to apply for judicial review and 41 were ultimately successful.
2006 – Out of a total of 284 applications, 146 were granted leave to apply for judicial review and 41 were ultimately successful.
2007 – Out of a total of 264 applications, 120 were granted leave to apply for judicial review and 25 were ultimately successful.
2008 – Out of a total of 295 applications, 127 were granted leave to apply for judicial review and 21 were ultimately successful.
2.2 The Court of Appeal.
2004 – There were 7 applications for appeal on a point of law (known as “appeal by way of case stated”) from administrative tribunals. The number of appeals arising out of judicial review cases was not separately recorded.
2005 – There were 14 applications for appeal on a point of law (known as “appeal by way of case stated”) from administrative tribunals. The number of appeals arising out of judicial review cases was not separately recorded.
2006 – There were 15 applications for appeal on a point of law (known as “appeal by way of case stated”) from administrative tribunals. The number of appeals arising out of judicial review cases was not separately recorded.
2007 – There were 28 applications for appeal on a point of law from administrative tribunals and 28 appeals arising out of judicial review cases.
2008 – There were 7 applications for appeal on a point of law from administrative tribunals and three from the Immigration Appeals Tribunal. There were 29 appeals arising out of judicial review applications.
2.3 The House of Lords/Supreme Court.
For most administrative tribunals, there is no appeal to the House of Lords/Supreme Court. The number of administrative cases before the highest court in the United Kingdom is not separately recorded (they will be listed among the civil cases). In 2006 (the most recent year for which statistics are available), there were 161 applications for leave to appeal to the House of Lords in civil cases, of which 8 were from Northern Ireland. These resulted in 75 civil cases before the House, of which two were from Northern Ireland.
3.1 What is the number of administrative judges in Northern Ireland and the number of cases registered each year?
(a) Tribunal chairpersons and magistrates.
There are 329 tribunal members classified as judicial office holders and 299 classified as non-judicial office holders in Northern Ireland, across 16 administrative tribunals. Some sit individually and some as panels. While the chairs of panels are legally qualified, not all panel members are legally qualified. For example, some members of the Mental Health Review Tribunal or the Pensions Appeal Tribunal are required to be medically qualified, and some members of the Industrial Tribunal are required to have experience in industry or in Trades Unions.
There are 21 district judges (magistrates’ court) and 17 deputy district judges (magistrates’ court) in Northern Ireland .
(b) County Court judges.
There are 17 county court judges and 26 deputy county court judges in Northern Ireland. There are four district judges (civil side) who hear the smaller civil cases and small claims.
(c) High Court judges. There are ten High Court judges, all of whom are qualified to sit as members of the Court of Appeal.
(d) Court of Appeal. The members of the Court of Appeal are the Lord Chief Justice and three Lords Justices of Appeal, all of whom are also qualified to hear cases in the High Court.
The Number of Cases Registered Each Year
Statistics are given for 2008, the latest year for which figures are available.
Statistics are not collected in aggregated form, as the tribunals are currently the responsibility of several departments but the figure for 2007 is in the region of 30,000.
(f) Civil cases in the Magistrates Courts.
There were 5,604 civil and family applications determined in the Magistrates’ Courts in 2008. 4,734 restraining orders were granted in cases of domestic violence, some but not all of which were issued in the course of other proceedings.
(g) County Courts.
In 2008, 5,167 ordinary civil bills were lodged in the county courts. There were 375 applications for licences (to serve alcohol at functions or in bars and restaurants). There were 314 equity cases commenced (cases involving land or inheritances) and 1,052 applications for ejectment (of bad tenants of houses). 13,409 applicants used the simplified procedures in the Small Claims Court. There were 1,651 decrees of divorce and 378 other matrimonial applications.
(h) High Court.
There are three divisions in the High Court. In 2008, 4,130 writs and originating summonses, 519 company cases and 3518 bankruptcy proceedings were lodged in the Chancery Division. In the Queen’s Bench Division, 10,110 writs and originating summonses were lodged, along with 71 commercial cases and 295 applications for judicial review. In the Family Division, there were 3,055 petitions for divorce, 1,388 other matrimonial applications (of which 45% were for financial relief on divorce) and 144 wardship, adoption and child abduction applications. There were 81 applications for restraining orders in cases of domestic violence (the High Court is not the main court where these are heard) and 907 applications in relation to “patients” (that is persons who are no longer capable of looking after their own financial affairs)
Court of Appeal.
Ninety-six civil appeals were lodged in total in 2008.
A further breakdown of these cases is available at http://www.courtsni.gov.uk/NR/rdonlyres/4DFE48BC-E90B-4E75-903C-9533AD7DEA8F/0/JudicialStatistics2008.pdf
Is the number of judges in the courts identified above increasing?
The complement of judges in Northern Ireland has increased slightly within a 5 year comparative time frame. Increase in workload has led to the creation of a small number of new County Court posts and the complement of district judges (magistrates’ court) was increased marginally to reflect an increase in general business and in particular the transfer of 17 year olds facing criminal charges into the Youth Court. At this time two part-time district Judges (Magistrates’ Courts) posts were created in part to create flexibility and in part to encourage a diversification of applicants for judicial office.
3.3 Is there adequate support staff and do the judges have assistants?
It is considered that there is an adequate number of support/ administrative staff at each of the tiers of the civil courts in Northern Ireland. In the High Court and the Court of Appeal, judges have access to assistants, if needed – to assist in, for example, legal research. There is a small legal unit of qualified barristers and solicitors who primarily provide assistance to the Court of Appeal. They are not allocated to individual judges. The Judges’ Library prepares an interactive electronic copy of relevant reported decisions , texts and legislation for use by the judges, who can annotate it in court and copy extracts for quotation in their judgments.
3.4 Are judges obliged to deal with things that are not really judicial matters, more suited to non-judicial personnel?
The general answer to this question is “No”. However, at each of the judicial tiers, there is a senior [or presiding] judge, whose responsibilities extend to certain administrative and organisational matters. This may be viewed as one aspect of the independence of the judiciary in Northern Ireland. The independence of the judiciary in this jurisdiction is now enshrined in, and protected by, statute. Section 1 of the Justice (Northern Ireland) Act 2002 provides in particular:
“(1) The following persons must uphold the continued independence of the judiciary –
(a) the First Minister,
(b) the deputy First Minister,
(c) Northern Ireland Ministers, and
(d) all with responsibility for matters relating to the judiciary or otherwise to the administration of justice, where that responsibility is to be discharged only in or as regards Northern Ireland.
(2) The following particular duty is imposed for the purpose of upholding that independence.
(3) The First Minister, the deputy First Minister, and Northern Ireland Ministers must not seek to influence particular judicial decisions through any special access to the judiciary”.
In Northern Ireland, the Lord Chief Justice is the designated Head of the judiciary and has a variety of statutory functions and responsibilities, examples of which include welfare and discipline of judicial office-holders, complaints against them and assignment of judges to different court venues and cases, Chairmanship of the Judicial Appointments Commission, the making of rules of court on various subjects and the issuing of Practice Directions to ensure the smooth running of the courts.
Is there any uneven geographical distribution of courts within Northern Ireland, due to demographical or other factors?
It is true that in Northern Ireland demographical factors influence the workload of certain courts transacting civil (or administrative) business – in particular County Courts and Magistrates Courts. However, there are mechanisms available for addressing this by ensuring that sufficient numbers of judges (including, where necessary, part time judges) and administrative staff are allocated.
5.1 Is judging in chambers considered to be a source of delay?
No. In Northern Ireland, the vast majority of civil (or administrative) cases are heard and determined by individual judges. This applies to all cases heard by tribunals, Magistrates Courts and County Courts. It also applies to all cases heard in the High Court, with the exception of the very small percentage of criminal causes or matters transacted in the High Court, when a chamber of two or three judges (known as a Divisional Court) is convened. The only civil court which invariably sits as a chamber is the Court of Appeal, where a chamber of two or three judges is convened. This is not considered to be a source of delay: rather, the consideration of appeals by more than one judge is likely to be conducive to expedition, rather than delay.
The independence of judges is the same, whether they are working individually or as members of a chamber of judges.
An oral hearing is the norm in almost every civil/administrative (and criminal) case in Northern Ireland.
5.2 Is there specialisation of courts or judges in Northern Ireland? If so, does this contribute to the avoidance of delays?
(a) There are specialised tribunals, dealing with matters relating to employment, race discrimination and certain land and property disputes.
(b) In the Magistrates Court, there are specialised divisions dealing with family cases and criminal charges against children and young people.
(c) In the County Courts, Northern Ireland is a small enough jurisdiction for a certain informal specialisation of function to occur naturally. For example, in practice many civil cases are heard in Belfast and so that court has developed specialist court lists which allow the speedy dispatch of business. A specialist court with a statutory basis is the Small Claims Court, a less formal forum in which a district judge acts as an arbitrator in civil cases worth less than £2,000. There are also specialist courts, known as Family Care Centres, which deal with private and public family cases involving children.
(d) In the High Court, there are specialised divisions viz. the Queen’s Bench Division, the Chancery Division, the Family Division (which are statutory) and the Judicial Review Court and the Commercial Court, which are non-statutory but were introduced as a way of maximising efficiency and minimising delays.
(e) It is considered that specialist courts, divisions and judges contribute positively to minimising delays in deciding cases. Particular procedural rules and protocols may be introduced to prevent delay in specific types of cases. This has been done in the Commercial Court and in relation to public children proceedings (where an at-risk child is to be taken into the care of the state).
6.1 Do procedural rules give rise to delays?
No. In Northern Ireland, procedural rules are designed to minimise delays. Any requests for extension of time limits must be formally presented and fully justified. In the High Court in particular, procedural rules are supplemented, where necessary or appropriate, by practice directions and active judicial case management.
6.2 Oral hearings?
See reply to question 5.1 above. Faithful to the common law tradition and its emphasis on transparency and procedural fairness, coupled with the adversarial system of litigation the Northern Ireland Legal System is based on oral hearings in the vast majority of cases. Such hearings involve the reception of evidence from witnesses and the arguments of the parties.
6.3 The use of witnesses and experts?
Witnesses are heard by the court concerned in most cases. In a small number, the evidence of witnesses is received in sworn written form, normally by a deposition or affidavit, or in the form of a report. Witnesses are examined in court by the parties’ legal representatives and also, to a lesser extent, by the judge.
Where there is expert evidence, the experts are usually engaged by the parties. If the court exercises a power to appoint an expert, the appointed person is independent.
Where a litigant is legally aided, it is usually possible for an expert witness to be engaged at public expense.
As a general rule, the costs of an expert witness are borne by the losing party.
In the majority of civil cases, there is a right of appeal i.e. the permission of the superior appellate court is not required. The main exception to this rule concerns appeals to the Supreme Court (formerly the House of Lords): such appeals require the permission of either the Court of Appeal or the Supreme Court.
It is arguable that permission to appeal to the Court of Appeal in Northern Ireland should be required in a greater number of cases, to act as a filter whereby frivolous or clearly unmeritorious appeals are excluded.
6.5 Judicial Review?
(a) Most administrative acts and decisions of the executive and its emanations can be challenged by an application for judicial review to the High Court, which exercises a supervisory jurisdiction. The challenging party must have a sufficient interest in the matter and the challenge must be brought promptly.
(b) Within the structure of the different judicial tiers, the decisions of inferior courts and tribunals can also be challenged in the High Court, on an application for judicial review. This may, however, be inapplicable where there is a right of appeal to a superior court e.g. the High Court or the Court of Appeal.
6.6 Changes in procedural rules? Delays occasioned by experts?
(a) The evidence of an expert witness is mainly contained in a report prepared by the expert.
(b) In most cases, the litigant concerned must disclose the expert’s report to the other party.
(c) The court encourages parties to agree the evidence of experts.
(d) Where a trial date is determined by the court, this must suit all parties and their witnesses. As a result, the non-attendance of any witness[expert or otherwise] is a rare occurrence.
(e) Where a witness (expert or otherwise) does not attend, the court must balance, in particular, questions of delay, cost and fair trial.
(f) As regards these matters, there is no obvious need to change the procedural rules of the Northern Ireland legal system.
Are there Government goals for the determination of administrative (civil) cases in Northern Ireland?
There are time-targets for case-processing by officials, but there are no targets for the judicial stages of civil cases.
7.2 Are there specific time limits for determining certain types of case?
There are no specific time limits. Flexibility and active judicial case management ensure that cases involving detained persons, children, immigrants and the mentally ill are routinely given priority by the court concerned. Such cases are processed in accordance with a timetable determined by the court, which can override the rules of court.
7.3 What occurs if the court timetable is not observed ?
A compelling explanation for any delay or default by a party is necessary and there must be persuasive reasons for adjourning the hearing of a case to a later date. The defaulting party may also suffer a costs penalty. In some extreme situations, court rules provide that the case may be decided against a party who has been guilty of great delay or default (eg Rules of the Supreme Court (NI), Order 13, Order 19).
8. [ See further questions 11-13 ].
9.1 What is the responsibility of the president of the court in fastening procedures?
The relevant senior judge or “president” has overall responsibility for ensuring that unreasonable delays are avoided in every case. This is a supervisory responsibility, which is discharged by appropriate management, supervision, procedures, rules and case management.
9.2 Can the relevant senior judge (or “president”) remove a case from an individual judge on the ground of delayed processing?
This is theoretically possible, but is unlikely to occur without the consent of the judge concerned. It is undesirable because of its intrusion on the independence of the individual assigned judge.
9.3 Can this be done without interference with the independence of the judge?
See reply to question 9.2 above …
9.4 Are sanctions possible against a judge who has handled a case with unreasonable delay ?
This is theoretically possible. Informal advice and encouragement is the most likely measure. Prosecution is not an option.
9.5 Legal remedies for delays?
Delay per se does not give rise to the possibility of a legal remedy in civil cases.. If delay is caused by one of the parties, this could be reflected in how the court deals with the costs of the individual case. Furthermore, it could result in greater compensation being awarded, with additional interest.
It is worth repeating: most delays in administrative (civil) cases in Northern Ireland are caused by the conduct of the parties or their witnesses or lawyers, rather than structural aspects of the legal system or the conduct of the judge.
10. The remuneration of judges in Northern Ireland?
The remuneration of judges is determined by the Review Body on Senior Salaries, an independent publicly funded body which provides advice to the Prime Minister, the Lord Chancellor and the Secretary of State for Defence on the remuneration of holders of judicial office; senior civil servants; senior officers of the armed forces; and other public appointments. The Review Body makes a recommendation on judicial salaries to the Lord Chancellor. The factors taken into account by the Review Body and more details of its work can be found at:
11. The impact of the economic crisis?
There have been no impacts to date of the economic crisis on judicial salaries.
12. Are bonus systems and individual subjective salaries compatible with the independence of judges?
In Northern Ireland, the salary payable to members of the judiciary is determined by laws made by the executive , which give the Lord Chancellor the ultimate power of decision. Judges are public servants. At each judicial tier, the salary is different. Within each judicial tier, the salary is the same for judicial officeholders. There is no scheme for bonus payments. The payment of every judge’s salary is guaranteed.
16 September 2009