The Role and Responsibility of the State in Litigation

AuthorDeirdre Murphy - Isaac McNamara - Bernard O'Connor - Ellen Coll
PositionJudge of the High Court - Judicial Assistants of the High Court - Judicial Assistant in the Judicial Research Office - Judicial Intern
[2020] Irish Judicial Studies Journal Vol 4(1)
Abstract: This article considers the role of the State as a litigant before the Courts. The Australian model litigant
obligation is examined and in line with this, some policy changes are suggested.
Authors: Ms. Justice Deirdre Murphy, Isaac McNamara, Bernard O’Connor and Ellen Coll. Ms. Justice
Deirdre Murphy is a Judge of the High Court. Isaac McNamara is a Judicial Assistants of the High Court.
Bernard O’Connor is a Judicial Assistant in the Judicial Research Office. Ellen Coll is a Judicial Intern.
The High Court and the Court of Appeal are inundated by the volume of litigation pending
before those courts. Figures from the Central Office of the High Court indicate that in 2016
43,132 new civil issues were lodged in the High Court. The figure for 2017 is 39,659, these
figures include new applications in existing proceedings.
It appears that approximately 20,000
new proceedings were issued in 2018.
This means over 100,000 applications were added to the
existing caseload within a period of three years. These applications fall to be determined in the
first instance, by 40 High Court judges and thereafter on appeal by 10 Court of Appeal judges ,
soon to be 16. Even assuming a huge attrition rate by reason of settlements or discontinuance,
this represents an enormous workload for 40 High Court judges to hear and determine.
Added to the volume of cases coming before the Courts is the fact of the increasing complexity
of those cases. Every new piece of legislation, be it primary legislation or statutory instrument,
is a potential occasion of litigation. Just as there is a huge volume of applications being lodged
in our courts, there is also an ever-increasing volume of legislation being enacted. Using the same
three years, 2018, 2017, and 2016 as a example of the volume of legislation that has been enacted;
42 statutes and 665 Statutory Instruments in 2018; 41 statutes and 646 Statutory Instruments in
2017; and 22 statutes and 685 statutory instruments in 2016. In 2019, 53 statutes and 700
Statutory instruments have been enacted. Each piece of legislation changes our law. These are
not, in the main, straightforward or simple changes. Many of the statutory instruments are
transposing European law into the national legislative framework. This is achieved by amending
existing national legislation. Where statutory instruments are used to transpose European law,
very fine and very detailed legal argument can ensue as to the effect of an amendment and
whether that amendment has properly transposed European law. Were it not for the extremely
valuable work of the Law Reform Commission in updating and consolidating legislation and
showing the derivation of amendments made by statutory instrument, it would be virtually
impossible to know the state of Irish law at any given time.
The upshot of the ever-increasing volume of litigation and complex legislation is that the High
Court and the Court of Appeal are swamped. The Supreme Court has been, as it were, evacuated
Courts Service, Annual Report 2017 (Courts Service 2018) 46.
Email from Alice A White, Central Office of the High Court, to Author (04 July 2019).

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