From top: Mr Justice Peter Kelly; Fianna Fáil TD John McGuinness

Last month.

On November 18th, a notice was posted on the Courts Service website saying:

“Due to a shortage of judges the Kilkenny Personal Injuries List of cases for trial in Kilkenny commencing on November 18th 2019 has had to be cancelled.

All cases in the list are adjourned to the next list. Any case which requires to be dealt with more urgently may be mentioned to Mr Justice [Kevin] Cross with a view to seeking a hearing date in Dublin.”

Further to this…

Last night in the Dáil.

Fianna Fáil TD John McGuinness raised the recent cancellation of the Kilkenny list and he specifically criticised the handling of the situation by the President of the High Court Mr Justice Peter Kelly.

He also asked if there is a shortage of judges, if current judges are overworked and if the Minister for Justice believes Mr Justice Kelly was using cancellations to force the appointment of more judges.

He said:

“We should not be afraid to determine if it is giving value for money and if its members are actually needed. Maybe we should ask them to fob in. Then we will get a better picture of things.”

Fine Gael TD and Minister for Agriculture, Food and the Marine Michael Creed was standing in for the Minister for Justice Charlie Flanagan.

They had the following exchange:

John McGuinness: “I raise the decision to cancel the High Court list in Kilkenny at short notice. When the High Court sits in Kilkenny each year it deals with quite a number of cases pretty efficiently.

“It was explained to the president of the Kilkenny Solicitors Bar Association that this cancellation resulted from a shortage of judges. The President of the High Court informed the local bar association of this. It is high-handed.

“This court serves the region very well and deals with a great number of cases. Many people who are listed for a hearing have been waiting for years.

“Having built themselves up emotionally to go to court and have their case heard, they were told, at short notice, that the sitting would not proceed.

“The President of the High Court should have shown a little more consideration for the citizens who have to appear before that court.

“The civil court list was also cancelled at very short notice. Again the reason given was that there is a shortage of judges. Is that the case?

“Is there such a shortage of judges that the provincial court sittings have to be cancelled at the last minute?

“Is the Courts Service, under the President of the High Court who wrote to the local association, so dysfunctional that it could not have arranged for matters to be dealt with differently?

“Is the system so out of touch with the people who appear before the courts that it could not, or would not, give consideration to the serious difficulties this has caused for the individuals in question?

“Who is in charge? Is this an issue of efficiency or, as was stated, a case of there not being enough judges available to hear these cases?

“What happened in the week in question? Was the backlog in the courts so great?

“I hope the minister will tell me if that was the case because I want to understand the reason for the decision to cancel the list at short notice.

“I appreciate the separation of powers, before the Minister starts telling me about it. This is not about the separation of powers. This is about time management for judges and respecting members of the public and citizens whom we all represent.

“What are the Minister’s views on the excuse used, that is, the lack of judges?

“Is this an effort by the judiciary to put pressure on the minister to appoint even more judges?

“Is there a business case for the appointment of judges at which I can look?

“This decision is unsatisfactory in respect of both the High Court list and the civil case list. I want an explanation.”

Michael Creed: “I thank Deputy McGuinness. I am standing in for the Minister for Justice and Equality who is unavoidably absent.

“On his behalf, I note that under the provisions of the Courts Service Act 1998, management of the courts is the responsibility of the Courts Service, which is independent in exercising its functions.

“The assignment of judges and the scheduling and cancelling of lists is a matter for the presidents of the courts who are, under the Constitution, independent in the exercise of their judicial functions.

“In order to be of assistance to the deputy, the minister has had inquiries made with the Courts Service and has been informed that a notice was recently published on the Courts Service website, as directed by the President of the High Court, setting out a decision to cancel the High Court personal injuries list in Kilkenny due to a shortage of judges.

“Interim arrangements have been set out whereby all cases in the list are adjourned to the next list. Any case which is required to be dealt with more urgently may be mentioned to Mr Justice Cross with a view to seeking a hearing date in Dublin.

“As the deputy will be aware, judicial appointments are made by the President acting on the advice of the Government in accordance with Articles 13(9) and 35(1) of the Constitution.

“The Government is committed to ensuring that judicial vacancies across the courts are filled in a timely manner.

“The issues which gave rise to the cancellation of the High Court lists in Kilkenny will be resolved following the appointment by the President of five judges – Brian O’Moore, senior counsel; Mark Sanfey, senior counsel; Mary Rose Gearty, senior counsel; Niamh Hyland, senior counsel; and Mark Heslin, solicitor – to the High Court on 2 December 2019.

“The new judges will be sworn in by the Chief Justice on Friday, 6 December. It is intended that the new judges will take up their duties immediately thereafter.

“With regard to the Circuit Court sittings in Kilkenny, the listing of cases and the cancellation of lists are matters for the President of the Circuit Court.

“A notice was published on the Courts Service website, as directed by the President of the Circuit Court, setting out recent decisions to cancel lists as well as the interim arrangements.

“The Courts Service has informed the Minister that the planned criminal and family law cases scheduled for next week in Kilkenny will proceed as arranged. All civil cases have been adjourned to a date early in the new year.

“The Circuit Court is operating with a full complement of judges. At its Cabinet meeting of 26 November, the Government nominated Judge Rosemary Horgan, who had already been sitting in the Circuit Court in an ex officio capacity, for appointment to the Circuit Court.

“Judge Horgan’s warrant for appointment is scheduled to be signed by the President this week and her swearing-in ceremony is scheduled to take place on 9 December.”

McGuinness: “I have asked the Minister several questions, which he has not answered.

“I simply want to go back to those questions. Does the minister believe that the President of the High Court, and thereafter the President of the Circuit Court, were using these cancellations to force the minister to appoint more judges?

“Where is the business case showing the numbers required for these judges? Where is the information to inform me, as a Member of this House, that these judges were in fact needed?

“Is it time to review the 1998 Act so that we can have a better system to manage these cases? Is it not interesting that the President of the High Court cancelled the session in Kilkenny?

“The Minister’s reply did not include an alternative date when that will happen. Urgent cases are to come to Dublin. The whole idea of provincial sittings is to deal with issues at that level and give people a chance. In my opinion they have not been given a chance. They have been shown a great discourtesy by the judiciary.

“This comes at a time when the President of the High Court has decided that he does not need Mr Edmund Honohan any more.

“He took from him a body of work that he was doing very capably and gave it to several other judges. Is Mr Edmund Honohan not being used to his full potential?

“Are the other judges so overworked that they cannot manage their caseloads? What is going on here? A serious cost to the State arises from all of this.

“For far too long we have left the management and functions of the judiciary out of the loop.

“We should not be afraid to determine if it is giving value for money and if its members are actually needed. Maybe we should ask them to fob in. Then we will get a better picture of things.”

Creed: “As I said in my opening remarks on behalf of the minister, it is envisaged that the most recent appointments will address the issue of the High Court sittings in Kilkenny.

“I will not accept the deputy’s invitation to trespass on matters germane to the judiciary or engage with his commentary on this business case. I will convey his remarks to the Minister for Justice and Equality.

“The Deputy will be aware that the principle of the separation of powers between the executive and the judiciary is long established and I do not intend to go down that road.

“The deputy made a point about whether it is time to review the provisions of the Courts Service Act 1998 regarding the organisation and administration of the Courts Service. I will bring these comments to the attention of the minister.”

Transcript via Oireachtas.ie

Previously: Here Comes The Pane [Updated]