This Chapter discusses recent developments in judicial needs estimation globally and provides information on the current number of judges and resource needs in Ireland. In addition, this Chapter highlights the results of the study of the current judicial time use and workload by court level. In light of Ireland’s current judicial workload and procedures, the Chapter highlights the need for, inter alia, increasing the number of judges, providing further flexible work options, and review of the number and necessary capacities of support staff.
Modernising Staffing and Court Management Practices in Ireland
Towards a More Responsive and Resilient Justice System
3. Calculating judicial needs in Ireland
Abstract
3.1. Towards estimating judicial needs
Today, the importance of an efficient judicial system that can settle disputes, provide redress for victims of crime, and hold offenders accountable in a fair and timely manner is widely accepted as essential for a well-functioning democratic society and effective market economies. In established democracies, this is generally assumed to be implemented, and judiciaries in countries seeking accession to the European Union (EU)1 or the OECD2 must demonstrate satisfactory performance.
In long-established democracies such as Ireland, the need for and importance of well-functioning courts is undisputed. In many countries, efforts to improve court performance tend to focus on improving efficiency of procedures, the need for more modern information and communication technologies (ICT), innovative ways to settle disputes, shorter timeframes, quality management, more efficient court management practices, improved diversity and reduction of elitism, (perceived) biases towards under-represented groups, and sometimes the elimination of undue political interference and even corruption.
It is important to acknowledge that courts are complex, labour-intensive organisations that need to have a sufficient number of judges who are supported by an effective administrative structure with qualified personnel to address the justice needs of their population (Fabri, 2017[1]). At the same time, as other public sector institutions, justice systems ought to evolve together with the societies they integrate, adopting modern practices and integrating new possibilities to optimise cost-effectiveness and efficiency. This includes the application of innovative and simplified procedures, technologies and ideas, including avenues for out-of-court solutions, new ICT solutions, and strategies based on data analysis. Therefore, modern justice systems should strive for a balance between appropriate judicial and support staff and the application of state-of-the-art procedures that maximise efficiency and responsiveness to user needs.
A possible starting point to calculate the needed number of judges to deal with a country’s courts’ caseloads is to compare the number of judges across countries with similar legal systems that appear to operate in a similar way. At the same time, the difficulty of using such or any other comparative method to establish how many judges are needed in any other country was recognised as early as 1902, when efforts were made to compare the number of judges in England to other countries (Macdonnell, 1902[2]).
Importantly, since 2013 the European Commission for the Efficiency of Justice (CEPEJ) has aimed to provide information about the number of judges, calculated per 100 000 of participating countries’ population. It has stressed, however, that the direct comparison of these data is not possible, stating: “The report aims to give an overview of the situation of the European judicial systems, not to rank the best judicial systems in Europe, which would be scientifically inaccurate and would not be a useful tool for the public policies of justice” (CEPEJ, 2014[3]). This caveat has been repeatedly noted in subsequent annual reports.
Figure 3.1. Number of professional judges per 100 000 inhabitants, 2018
Note: As indicated in the Key, the darkest brown colour indicates the presence of above 30 judges per 100 000 inhabitants, followed by 20 to 30, 10 to 20, 5 to 10 and below 5 respectively in the lighest colour. Grey colours indicate that they are not a Member of the Council of Europe or there is no information available.
Source: (CEPEJ, 2020[4]), European judicial systems, CEPEJ Evaluation Report, Map 3.2, Number of professional judges per 100 000 inhabitants in 2018, p.46. https://rm.coe.int/rapport-evaluation-partie-1-francais/16809fc058
As such, while comparative analysis across countries with similar legal systems might be instructive in terms of good practices and achieving impact, direct comparisons of judicial numbers could be difficult for a range of reasons, including differences in procedural rules, judicial culture, case management techniques, measurement methods and other elements that impact the number of judges required to address a certain workload.
3.1.1. The role of judges and quasi-judicial staff
The role of a judge in court proceedings in a civil law system tends to be different from that of a judge in a common law system. Judges in common law countries generally sit alone, not as a multi-judge bench; civil cases settle more frequently; and greater prosecution discretion usually leads to high plea rates in criminal cases. As a result, and notwithstanding many other differences and reasons, the time judges need for preparing, hearing and deciding similar cases differs between civil and common law countries, and with it the number of judges needed. The 2020 CEPEJ report has continuously shown that the number of judges in the United Kingdom and Ireland are the lowest across the EU. The figures are relatively similar among UK entities and Ireland. With 3.3 judges per 100 000 population, Ireland ranks second lowest, slightly above the 3.1 judges in England and Wales; while the numbers in Scotland and Northern Ireland are 3.7 and 3.6, respectively (CEPEJ, 2020, pp. 47, Figure 3.3[5]).
In addition, in many countries, quasi-judicial staff, including lay judges, have the authority to make a range of decisions that judges make in other countries. These can be Justices of the Peace or Sheriffs in many common law countries, Rechtspfleger in Germany, Austria and Switzerland, and staff in some regulatory agencies. In Ireland this includes Country Registrars, Court Masters and Deputy Masters. A study using 2014 data submitted by countries to CEPEJ showed that the reported numbers of non-professional judges compared to professional judges were twice as many in Scotland and England and Wales, with significant numbers of professional judges sitting in their courts on a part-time basis (CEPEJ, 2016[6]) (Fabri, 2017[1]). Similarly, while acknowledging all the differences across jurisdictions that make it difficult to compare judicial and non-judicial support staff among the different UK entities, it could still be relevant to consider the example of Scotland, which has 3.7 professional judges per 100 000 population (compared to 3.3 reported for Ireland) and 236 lay judges performing quasi-judicial functions, especially in the provincial regions (Judiciary of Scotland, 2021[7]). It is also important to consider that the 3.1 professional judges reported for England and Wales and the 3.6 reported for Northern Ireland are also supported by a high number of quasi-judicial magistrates (CEPEJ, 2020[4]).
In Ireland, with the current data it is difficult to identify the number of quasi-judicial staff and its ratio to professional judges. The data available from the Courts Service’s annual reports does not provide details about the allocation per position or function of over 1 000 of its staff. At the same time, the Courts Service’s June 2021 request to receive a budget increase showed 19 office holders across all jurisdictions, i.e. staff with quasi-judicial functions, such as Master and Deputy of the High Court, Examiner of the High Court, Legal Costs Adjudicator and County Registrars (Cole, 2021[8]). Yet, overall, there is scope to clarify the availability and role of quasi-judicial staff in Ireland in deciding matters brought before Ireland’s courts at any court level.
3.1.2. Support staff
The availability of administrative, research and other staff support greatly impacts how efficiently judges can work and how much time they spend on individual cases. While direct comparison remains challenging, the 2018 CEPEJ report showed that for the 2018 reporting year, the median ratio of professional judges to non-judge staff across EU countries was 3.4 (CEPEJ, 2018[9]). Ireland reported a 6.0 ratio, while data for England and Wales indicated a 9.0 ratio and Scotland 7.7 (later data are unavailable). At the same time, one of the reasons why this ratio could be challenging to compare is that in some countries, a significant number of support staff working within the body responsible for supporting the administration of the courts are actually supporting functions more peripheral to the work of judges. For example, they may be in charge of managing property and other registers, or have various enforcement functions. Understanding how many and what type of support staff are directly available to provide support to the judiciary is therefore more important than overall support staff ratios.
Establishing how many support staff are directly available to judges at different court levels in Ireland presents several challenges. The 2019 Annual Report showed a total staff of 1 080 assigned to the Court Service (Courts Service, 2020[10]). In 2021 this number slightly increased to 1 100 serving 174 judges (Cole, 2021[8]), which appears comparable to some UK nations, as indicated by CEPEJ (CEPEJ, 2018[9]). The Scottish Courts and Tribunal Service, for example, reported a staff of 1 736 in 2018 serving about 230 judges (Scottish Courts and Tribunals Service, 2018[11]). According to the Court Service data, a total of 76 Judicial Assistants for the Court of Appeal, High Court and Circuit Courts, 1 for the District Courts and 1 Executive Legal Officer each for the Court of Appeal and High Court were available in 2021. There were an additional 70 office staff, which include several management level staff, and mostly secretaries, criers and ushers, who also support primarily the High Court, Court of Appeal and some Circuit Courts. There is also a legal research and library division with 18 staff in Dublin that all judges can draw upon.
This number does not appear to include all court registrars, which in other countries would often be considered direct support for the judiciary. Importantly, without a registrar no hearing can be held, meaning that enough registrars must be available to effectively schedule hearings across all locations throughout the week. Data provided by the Court Service indicated that in September 2021 there were 26 court registrars supporting the Court of Appeal and High Court level, yet establishing how many court registrars support the District and Circuit Courts has proven to be challenging, as the same registrars in the provinces tend to support District Courts and Circuit Courts. Based on interviews and review of secondary sources, it appears that the maximum number that could be assumed for court registrars supporting judicial operations is 100, which would mean that around 255 (or 22%) of Court Service staff provide direct support to the judiciary (a ratio of 1:3). As mentioned, stakeholders reported several conflicting numbers of support staff, which makes it challenging to calculate an accurate ratio.
3.2. Current number of judges and resource needs in Ireland
As of October 2021, there are 176 judicial positions approved across all five court levels in Ireland (see Table 3.1). The number of judges in the Court of Appeal (established in 2014) was increased from 10 to 16 in 2019. For the High Court, 5 additional positions were recently approved, increasing the total number to 453 in 2021. The number of Circuit Court judges was increased in 2013 from 38 to 46 by legislation (Section 191 Personal Insolvency Act 2012) that permitted 8 specialist judges to focus on personal insolvency. This legislation required that these specialist judges only sit on insolvency matters. Other effective mechanisms to resolve such matters outside the courts evolved at the same time, however, and these positions were never needed to their full extent (Courts Service, 2015[12]). Today, the number of Circuit Court judges remains at 38. The number of District Court judges has not changed since 2008 (Courts Service, 2021[13]; Courts Service, 2009[14]).
Table 3.1. Number of judicial positions in Ireland: 2011 vs. 2021 (excl. Supreme Court)
Note: *The Court of Appeal was only created in 2014. **Includes eight special positions currently not filled/required.
Source: (Courts Service, 2022[15]), About us (webpage), https://www.courts.ie/about-us; (Courts Service, 2012[16]), Court Service Annual Report, 2011, https://www.courts.ie/acc/alfresco/e6101193-2abe-459e-b142-73316aac70f5/Courts%20Service%20Annual%20Report%202011.pdf/pdf#view=fitH.
Importantly, judicial tasks involve not only handling cases, but also, depending on the court level and case type, reading file materials to prepare for the hearing, conducting legal research, deliberating and writing a judgement. Furthermore, in Ireland, many of the judges at the District and Circuit level are regularly assigned to hear cases in different provincial locations and require travel time. High Court judges also often sit outside of Dublin, in particular to hear personal injury actions and criminal trials in several venues, as well as non-jury actions in Cork.
In addition, depending on their role, judges may have some or significant management responsibilities, including efficiently managing their own caseload and fulfilling a range of administrative and management tasks. In Ireland, judges at all court levels have a range of special assignments beyond hearing court cases, such as providing judicial oversight to investigative surveillance activities (McIntyre, 2015[17]) and serving on different judicial and government committees. Judges’ roles on committees range from providing judicial input to legislative reforms to co‑ordinating with other justice and government agencies. Data reported by the Courts Service illustrate that judicial participation in committees has increased over time, and may rise further as the Judicial Council becomes fully operational. Annex B shows the impact of several core committee assignments on the judicial available full-time equivalent (FTEs) positions.
3.2.1. Calculating the full-time equivalent for judges internationally and in Ireland
The full-time equivalent (FTE) is a core data element to calculate the number of judges required to complete case work. FTE refers to the full-time equivalent of hours/days a full-time judge should be working each year. Determining the FTE typically involves counting the hours in a full-time work week (i.e. regularly five days in most EU countries), multiplying it by work weeks in a year, and subtracting vacation days and average sick days.
In general terms, across the public sector this tends to be a simple calculation based on standard public holiday and labour rules. For judges, the challenge is that standard civil servant regulations normally do not apply to an independent judiciary, and many judiciaries around the globe have not needed to establish their own related rules. As a result, for the purpose of assessing needed judicial positions, rather than any indication of work terms for judges, the work term rules applied to civil servants of similar rank are generally used for judicial position calculations (see Box 3.1).
Box 3.1. Calculation of judicial FTE in common law countries
United States
In the United States, where workload studies to assess judicial resource needs have been conducted for over 30 years at both the federal and state level, a standard approach to calculating judicial FTE has evolved that is similar to what is used in other sectors. Some examples include:
Texas (2007) and other states. A judicial Workload study conducted in Texas in 2007 outlines that calculating the "average" judicial officer work-year requires determining the number of days a judicial officer has per year to perform case-related tasks. After deducting weekends, holidays, vacation, sick leave and continuing legal education from 365 days, it was determined that judicial officers in Texas have, on average, 215 days available each year to perform case-related and other work activities (National Center for State Courts, 2008[18]). The same is repeated across similar studies conducted in over 30 states and at the federal level in the United States (Kleiman M., 2019[19]).
A weighted workload study for federal-level bankruptcy judges (2009) states that “the federal work year is 2 080 hours per year, based on a 40-hour work week”, and that after calculating the time needed to process all court cases, sufficient time has to remain for “holidays, annual leave, training, and non-case-related administrative tasks” (United States Government Accountability Office, 2009[20]).
California State Courts (2001). The report states that the case-related judge year value “was reached after careful consideration of the typical number of days per year and hours per day that a judge should be available for case related work”, and it determined that judges, on average, have 215 days per year for case resolution, “which was reached by removing weekends and applying a standard deduction for vacation, sick leave, and participation in judicial conference and education programs from the calendar year. California’s choice of a 215-day judge year places the state at the average point of the twenty-five states that have established an official judge year.” Furthermore, it was recognised that judges have also completed a range of non-case related work activities during their “eight-hour workday (nine hours less an hour for lunch)”. Like other states, California judicial officers are assumed to spend an average of six hours a day on case specific responsibilities and two hours per day on non-case related administration, community activities, travel, etc.” These 215 days per year, 8 hours per day, result in a total work year of 103 200 minutes, which, in California “breaks down into a case-related judge year value of 77 400 minutes (215 days, 6 hours per day) and a non-case- related judge year value of 25 800 minutes (215 days, 2 hours per day).” It was also recognised that this standard is “above the national norm, but within the range of other states’ case-related judge year value” (Judicial Council of California, 2001[21]).
Australia
A 2020 report on the approach taken for assessing judicial needs for the Family Court in Australia outlines its approach chosen without pointing to a lack of working days, vacation and leave days guidelines for judges (Justice O’ Ryan, 2020[22]).
United Kingdom
A similar approach to Australia’s is adopted by the UK Ministry of Justice in the related to the establishment of a part-time work policy for judicial salaried office holders, including most judges (Ministry of Justice, 2020[23]).
Source: (National Center for State Courts, 2008[18]), Measuring Current Judicial Workload in Texas, 2007, https://www.txcourts.gov/media/868706/Weighted-Caseload-StudyFinal-Report-July-7-08.pdf; (Kleiman M., 2019[19]), Weighted caseload: A critical element of modern court administration, https://doi.org/10.1080/09695958.2018.1490293; (United States Government Accountability Office, 2009[20]), Federal Bankruptcy Judges: Measuring Judges' Case-Related Workload, https://www.gao.gov/products/gao-09-808t; (Judicial Council of California, 2001[21]), A New Process for Assessing Judicial Needs in California (Action Required), https://www.courts.ca.gov/documents/judneedsreview.pdf; (Justice O’ Ryan, 2020[22]), Benchmarking and Productivity for the Judiciary, http://www5.austlii.edu.au/au/journals/FedJSchol/2000/3.pdf; (Ministry of Justice, 2020[23]), Judicial Salaried Part-time Working, https://judicialappointments.gov.uk/wp-content/uploads/2020/11/Revised-Judicial-Salaried-Part-Time-Working-Policy-Final-002.pdf.
The CEPEJ suggests that the number of judges and other court personnel available in participating European countries are counted using the FTE method to ensure that positions are calculated in a consistent manner across all countries as a starting point for any comparative analysis (CEPEJ, 2016[24]).
These reports acknowledge that calculating the judicial FTE is an accepted, standard approach for calculating the number of positions available and needed, and that the calculation does not include an attempt to regulate or a statement of judicial work terms.
3.2.2. How judicial positions in Ireland have been calculated so far
In general terms, to understand how many judges are available to handle the cases coming to the courts, it is important to consider both the number of full-time judicial positions approved and filled, as well as the other work demands of judges. In Ireland, to date, requests for additional judicial positions are mainly based on annual forecasts, including those which consider the impacts of the COVID‑19 pandemic. These forecasts use the number of court sittings and case listing expectations developed by the Courts Service for presiding judges. The Courts Service also uses the number of court sittings as a base output for annual budget calculations for “supporting the judiciary” (Rubotham, 2017[25]).
The number of court sittings, as well as case listing expectations, enable forecasts for the next term, possibly the next year, if they consider prior year(s) data. In the longer term, additional indicators of actual workload to be handled would be needed. Prior year sitting data, for example, make no distinction between the number and type of cases handled per sitting day and the difference in judicial effort different case types require, nor can it reflect how many cases were not dealt with in the limited sitting time. Forecasts using case lists, on the other hand, show how many cases are waiting to be heard, some with an indication of the estimated hearing time needed. Hearing time estimates can be imprecise, and hearing list forecasts are not able to consider if cases settle or plea out in the meantime, nor can they predict priority cases getting to the court that lead to postponements of other cases. Neither of these measures can reflect the significant time that all judges must spend working on out-of-court responsibilities.
Looking ahead, it may be relevant for Ireland to consider strengthening the quality and granularity of the data it collects, including case data that reflect differences in workload requirements by case types and information to calculate the need for back-up judges in case of illness or temporary filing peaks (see Chapters 4 and 6).
3.2.3. Calculating “judge work per year” for Ireland’s judiciary
After establishing how many judicial full-time positions are available to handle cases, the next step for an FTE calculation is to identify the number of annual working days available in a particular country. For example, 2020 was a leap year with 366 days and there were 104 weekends and 9 public holidays – resulting in 253 working days in Ireland (if there is a replacement for Saint Stephen's Day). In most common years, this number is 252.
As mentioned, further calculations (i.e. establishing workdays/hours required, subtracting average vacation and sick days) could be complicated for the judiciary in many countries for several reasons. First, internationally, as a reflection of judicial independence, judges are not considered civil servants and are therefore not subject to governments’ civil service regulations. This also applies in Ireland, where judges are appointed office holders according to Article 35.1 of the Constitution (Art. 35.1 read with Art. 13.9 and Art. 13.11 of the Constitution of 1937 with amendments). The Irish courts have established rules for some of these elements for District Court judges.4 As independent constitutional officials, Irish judges have the prerogative to organise themselves within the parameters of the Constitution and related laws. As such, they are also accountable for providing fair, efficient and timely access to justice, which includes operating during meaningful regular court business hours and the timely processing of cases.
The prerogative to organise themselves provides the judiciary with flexibility to set court business hours and regulate their own work hours. At the same time, judges are expected to work the hours needed to ensure that court cases are processed in a timely manner, without impacting the quality of their decisions. Given high caseloads, it is common for judges in many countries, including Ireland (Provincial Court of British Columbia, 2016[26]; Government of Wales, 2019[27]; Casaleiro, Relvas and Dias, 2021[28]), to work after standard court business hours to achieve this aim. Judges reportedly read case files and write judgements on weekends, and strive to take vacation days outside regular court sitting days. It is also common for Irish judges to fill in as needed when another judge is sick. Ensuring coverage for judges who need to take maternity, paternity or adoption leave, or who are sick for a longer period, presents additional challenges.
In addition, as in other sectors, some judges are expected to work variable or additional hours. This applies especially to the denominated “movable” or “unassigned” judges at the Irish District and Circuit Court levels, who regularly travel to and work in different jurisdictions across the counties.
There is a growing trend across courts in OECD countries to establish internal rules that govern these matters, track leave patterns and gather solid data to regularly assess the availability of judges to handle work efficiently. Where official vacation, leave and work hour rules or policies set by the courts do not exist (an option chosen by some courts in the United States), judges faced with growing caseloads may find it challenging to define their own work hours in a balanced way. This can result in judges having difficulties to support budget requests for additional judicial positions if their work demands become overwhelming. In this context, Irish courts may benefit from considering to develop a standard system that tracks vacation days and/or sick days taken across all court levels. At present, the absence of such a system tends to limit the ability of courts to calculate the average days of leave accrued over time, which could be used to support the better management of judicial assignments and resources in the long term.
3.2.4. Calculating judicial FTE positions in Ireland
Taking into account the above considerations, the OECD and the judicial liaison counterparts appointed to support the project and their Court Presidents agreed on a process to calculate the number of FTE positions needed to handle all cases and other judicial work in a timely manner throughout a judicial year. This has been undertaken by building upon similar approaches from other countries to determine the number of judges needed to efficiently handle all cases and other non-case related work (National Center for State Courts, 2008[18]).
For example, an acceptable proxy-regulation applied to other office holders of similar rank in Ireland, i.e. Assistance Secretaries and up, could be used for this study. Using related guidelines published by the Department of Public Expenditure and Reform (DPER) for public and civil servants as proxy measures was accepted as a plausible option. This approach is also used by the Office of the Director of Public Prosecutions to assess its position requirements. To begin with, as stated on the DPER’s Human Resources website (DPER, 2022[29]), most civil servants in Ireland work 43 hours and 15 minutes gross per week, inclusive of 30-minute lunch breaks. This means that the base net working hours per week are 42.5 hours. Next, using DPER guidance for Assistant Secretaries and up as the average number of vacation days for judges equates to 31/32 days, based on a five-day work week per year. The DPER also publishes sick leave statistics for civil and public servants on its human resources website. According to DPER data, while the average number of sick days varies by service, the average number of sick days per civil service FTEs in 2019 was 10.1. As highlighted elsewhere, some court levels in Ireland do not have five-day working weeks, which may need revision in view of existing and growing caseloads.
Using this approach, one FTE judge would be available to work for 252 annual workdays, minus 30 vacation days and 10.1 sick days, equalling 211.9 days per year (i.e. 1 694.2 hours or 101 712 minutes, Table 3.12). The resulting number of days (211.9) is comparable to what has been used in other common law jurisdictions to calculate the FTE for judges. For instance, in the United States, the states of Michigan and Virginia have adopted a judge year of 216 days. Court of Appeal Judges and High Court Judges are expected to devote themselves to judicial business throughout the legal year, which usually amounts to somewhere in the region of 185-190 days. UK Circuit judges are needed to sit for a minimum of 210 days, although the expectation is for them to sit between 215-220 per year. UK District judges are expected to sit for a minimum of 215 days. Judges also have out of court duties to perform such as reading case papers, writing judgements and keeping up to date with new developments in the law (Courts and Tribunals Judiciary, 2019[30]). In Ontario, Canada, judicial scheduling follows the Callaghan scheduling convention of 1992, which stipulates that judicial time is not just in court but includes time spent outside of court to read, analyse and draft documents. Full-time members of the court must sit 35 weeks per year (17 for supernumerary), as well as 9 non-sitting weeks and 8 holiday weeks. From July to August, courts operate at 30-40% capacity as a maximum due to holidays by judges, lawyers, witnesses, etc. Similar reductions apply for the holiday period between 24 December and 6 January (Ontario Superior Court of Justice, 1992[31]).
In addition to sitting times, Irish judges are required to attend an educational event, the Annual Judicial Conference, two full days twice per year. Therefore, two days should be deducted to arrive at the actual number of days Irish judges should be available for handling cases and other non-case related work (see below under non-case related time). In comparison to other common law jurisdictions, this tends to be at the low end and is planned to be increased to include five additional days as the new Judicial Council takes on its judicial training and education role (see Chapter 5). Internationally, continued judicial education tends to be voluntary, but is frequently combined with a requirement to continue to develop legal and other judicial skills. As a result, judges in Canada are entitled to 10-15 days of training over a four-year period. In England and Wales, at least one multi-day training per year is offered by the Judicial College. For US state court judges, 7 to 15 hours per year of training are required (Reaves, 2016[32]). In Australia, judges should be able to spend at least 5 days each year in professional development, with some flexibility to meet 15 days education over a three-year period (Judicial Commission of New South Wales, n.d.[33]). In line with these international trends, Ireland’s newly established Judicial Council is developing plans to increase judicial training to better equip judges to decide cases and respond to litigant needs. The aim is to provide all judges with an additional five days of training. Judges who wish to become trainers themselves will require additional time away from hearing cases. This will have implications on actual FTE calculations in the future.
In addition, it would be important to ensure that judges have the time to actively engage in the modernisation process, such as the development of new IT-supported case management systems, defining data needed for case management, and informing the development of IT solutions that support performance measurement and tracking. As highlighted in the 2019 Review of Courts Service operations, its directions and operations need to strengthen focus on court management (Courts Service, 2019[34]), which will require close engagement of the judiciary. Currently, while case management techniques are increasingly applied at all court levels, there is still room to enhance judicial leadership in creating a concerted effort to develop a broader court management structure and implement modern court and case management approaches across all courts (see Chapter 6).
Table 3.2. The standard work year of Ireland's judiciary
3.3. Current judicial staffing, workload and time study results by court level
The crucial role played by judges in societies around the world involves a range of tasks that are similar across countries. They include sitting in court for hearings, preparing for hearings and reading case files, conducting case-related research, deliberating with other judges, writing judgements, attending to administrative and management responsibilities and participating on a range of committees. The workload study presented in this chapter aims to capture these judicial work components to provide a snapshot of the current judicial resource needs in Ireland. At the same time, these estimates of the judicial needs are not reflective of the potential efficiency gains from various ongoing and needed modernisation efforts in the Irish judiciary (some of which are analysed in this report in the subsequent chapters).
Overall, results of the study and interviews with key stakeholders in Ireland have highlighted that currently judges tend to work long hours, occasionally on weekends and during the court holidays. This trend tends to be exacerbated for some judges who may be required to regularly travel to hear cases in provincial courts around the country. As discussed in subsequent chapters, there is room to reduce these hours by enhancing the efficiency of processes, strengthening staff support, and modernising infrastructure and IT systems. Without such efficiencies, additional judges would be required, as calculated in the rest of this section.
In general terms, the study indicates that some of the staffing and other challenges appear to be similar across all court levels in Ireland, while others are specific or more prevalent in each of the four court levels. The following sections will provide a snapshot of the current staffing and workload situation at each court level, and the results from the time study. Specific modernisation opportunities for each court level are highlighted in the Chapter 4.
3.4. Court of Appeal
The Court of Appeal was created and became operational in late 2014, mainly in response to the high number of cases in the Supreme Court and in an effort to ensure that Supreme Court judges had the time needed to effectively handle the particular cases typical in an apex court. The Court of Criminal Appeal that existed previously was merged into the new court. This was the first substantial adjustment of the court structure since the foundation of the nation. As a result, comparable case trend and resolution data are only available for the past six years.
Initially staffed by 10 judges, this number was increased to 16 in late 2019, primarily to address backlog issues in the new court. Most of these additional positions were filled by November 2019, which was the first year the court operated with a full complement of judges. The transition of appeals continued from the Supreme Court to the Court of Appeal until early 2021. As a result, the Court of Appeal was still a court in transition in 2018, 2019 and to some extent in 2020, which impacted case resolution capacities and the related data available for this study.
3.4.1. Caseload trends and workload compositions
The 2015 case data, the first year for which full year case data are available, and 2020, the last year for which case data for the Court of Appeal is available, indicate that incoming civil cases increased by 14%, while incoming criminal appeals declined by less than 12%. 2020 data is heavily influenced by the COVID‑19 pandemic, which is why examining 2019 data is equally important. The data show some differences in comparison to prior years, but the overall trend remains similar. Data for the number of cases pending at year end in 2020 and 2019 continue to show high numbers of cases taking a long time or not being processed. Positively, the court was able to reduce the number of pending cases and the length of processing time in 2020. These may, however, also be influenced by pandemic trends that impacted the types of cases coming from the High Court and lower courts. Nevertheless, even the lower number of cases pending at the end of 2020 remained high compared to incoming cases. In addition, the average length of time for civil cases was still over 1.7 years, and just over 1 year for criminal cases. As a result, most cases currently shown in the Legal Diary of the Court of Appeal have been listed for over a year.
Table 3.3. Court of Appeal case trends 2015, 2020, 2019
Note: *Time from issue of notice to appeal to final order.
Source: Courts Service Annual Reports from 2015 (p.34), 2019 (p.46, p.93, p.95, p.101, p.104) and 2020 (pp.100-101, p. 106) – (Courts Service, 2022[35]), Court Service Annual Reports, https://www.courts.ie/annual-report.
Comparing court of appeal performance in other common law countries, such as in UK nations or appeals courts in US states, is challenging given that the appeal court structure and range of jurisdiction differs, as do resources and processes. Still, in some cases, where such data is available, it can provide some indication regarding the usual length of the appeals court process in Ireland compared to the United Kingdom and United States. (Box 3.2)
Box 3.2. Courts of appeals in the United Kingdom and Maryland, United States
In 2019-2020, the Criminal Division of the Court of Appeal of England and Wales reported an average waiting time of around 14.5 months for conviction renewals, and around 5.5 months for sentence only appeals (Court of Appeal UK, 2021[36]). The Civil Division has set a range of timelines for hearing dates that reflect the urgency and complexity of the appeal. Timelines for child cases and planning appeals are the shortest, ranging from 2-5 months, while most final orders from administrative, high and county courts should be heard within 11-19 months (Courts and Tribunals Judiciary, 2015[37]).
Both divisions of the Court of Appeal of England and Wales have a well-structured process to gain leave of appeal, designed as an effective screening mechanism, as well as years of experience with continuously enhanced case management processes based on solid case processing data. Each is also supported by a special administrative office. The Criminal Appeals Office (CAO), for example, provides not just administrative services to the Criminal Division, but is an important and integral part of a well-designed case management approach developed and refined over many years (Court of Appeal UK, 2021, p. 41[36]). Importantly, CAO staff include several attorneys who produce case summaries following Criminal Practice Directions and are available to judges and practitioners. These lawyers also provide procedural advice to practitioners and lay litigants, which reduces submission errors and thereby the judicial time needed to handle such issues. They are also responsible for new initiatives such as producing digital bundles that correspond to the Crown Court Digital Case System (Court of Appeal UK, 2021, p. 40[36]) and working with stakeholders to produce easy to read forms for litigants in person (Court of Appeal UK, 2021, p. 38[36]). The legal team is led by three senior legal managers who manage the output of work and provide specialist training as necessary. They ensure the CAO acts on behalf of the Registrar, and that the legal team can take a proactive role in preparing cases. In addition to the legal team, the CAO is staffed by administrative personnel who can assist with case management, write complex case summaries, and provide office support or complete assessments of costs (Court of Appeal UK, 2021, p. 41[36]).
The jurisdiction of the Court of Special Appeals in Maryland (US)1 is an approximate equivalent to the Court of Appeal in Ireland. It is served by 15 active judges and supported by its own Clerk’s Office, a Staff Attorney Office and an Alternative Dispute Resolution (ADR) Division that offers two ADR options to parties with appeals pending at the court (Court of Special Appeals Maryland, 2022[38]).
The Clerk’s Office works to receive and file all court documents and to maintain the trial court record. It is also responsible for all communications between the court and litigants or attorneys (Court of Special Appearl Maryland, 2022[39]). While the Staff Attorney Office assists in reviewing certain appeals, the ADR division is primarily responsible for reviewing civil appeals and identifying matters that could likely be resolved through ADR. Those selected either proceed through mediation and work with a highly trained mediator and a judge to resolve their matter, or attend a pre-hearing conference with a Special Appeals judge (retired or current) to discuss the matter, any motions and ways to streamline the overall process. In both situations, if the matter is not successfully resolved through ADR it is referred back to the court.
Both the Criminal Division of the Court of Appeal in the United Kingdom and the Court of Special Appeals in Maryland provide detailed and specialised information to assist lay litigants in applying to and representing themselves in court (Court of Special Appeals Maryland, 2018[40]). In addition to a specialised online guide, the Court of Appeal Criminal Division in the United Kingdom also supported the development of “Easy to Read Forms”, i.e. forms that provide further detailed guidance using terminology that is easier to understand by non-lawyers, for all major process steps (HM Courts and Tribunal Service, n.d.[41]).
1. The US state of Maryland had a population of 6.2 million in 2021, covering an area of about 30 530 square km. Maryland also has significant rural areas with a highly productive agricultural sector. Economically it is one of the richest states in the United States, with an annual GSPI of USD 383.4 billion in 2016, and a poverty rate of 7.8%, which is the lowest in the United States.
Source: (Court of Appeal UK, 2021[36]), In the Court of Appeal (Criminal Division), 2019-2020, https://www.judiciary.uk/wp-content/uploads/2021/05/6.7429_JO_Court_of_Appeal_Criminal_Division_2019_20_WEB-v2-with-tweak.pdf; (Courts and Tribunals Judiciary, 2015[37]), Practice Guidance: Court Of Appeal Hear-By Dates, https://www.judiciary.uk/publications/practice-guidance-court-of-appeal-hear-by-dates/; (Court of Special Appeals Maryland, 2022[38]), Alternative Dispute Resolution (ADR) Division (webpage), https://mdcourts.gov/cosappeals/mediation; (Court of Special Appeals Maryland, 2018[40]), A Guide for Self-Representation, https://www.courts.state.md.us/sites/default/files/import/cosappeals/pdfs/cosaguideselfrepresentation.pdf; (HM Courts and Tribunal Service, n.d.[41]), Guidance for Litigants in Person and third party assistance, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/644757/Guidance_for_third_parties_assisting_LiPs_0717.pdf.
To better understand the implications of different case types on judges’ workload, it is important to look at the actual time judges are spending on different case types. The time data may be partially skewed by business concentrations on certain lists or case categories handled during the collection period, but they show the difference between the number of different case types reported as incoming/resolved by the Court Service and time reportedly spent by judges on various case types. While the percentage of criminal cases handled by judges in 2020 was about 24% lower than civil cases handled (see Table 3.3 above), they required less than 30% of the time judges spent on civil cases. In other words, civil cases, on average, require more time, and different civil cases require more or less time depending on various levels of complexity. Therefore, incoming cases by themselves would not be a suitable indicator of judicial time requirements and judicial positions.
This is also one of the reasons why tracking case data trends over time, even where reliable case data are consistently available, would need to be complemented by other sources to provide a solid understanding of workload trends and related resource needs.
This is reflected in the current approach to assigning judges to court business at the Court of Appeal, with 3 judges mainly assigned to criminal business, 12 judges mainly assigned to civil business and the remaining judges with more flexible assignments covering both business types based on demand.
Courts Service data from 2020 indicate that disposition rates in some case categories increased. As outlined in more detail below, this may be due to management decisions to increase scheduling.
The reduction in pending cases and length of time in 2020 appears to indicate that workload and staffing has begun to balance out to some extent. Judges recently assigned to the Court of Appeal were still carrying judgement writing responsibilities from the High Court, limiting their ability to deliver appeal judgement in time. However, 2020 data reflect operations under COVID-19 conditions, in which judges heard and concluded more cases in some categories, but a significant number of more serious cases were not held at the High Court level due to restrictions, thereby not arriving at the Court of Appeal. Furthermore, judges indicated that a decision was made to schedule more cases than usual to test if this would allow them to effectively address the high number of pending cases. This decision appears to have contributed to more limited time to write judgements, which in many cases has shifted to non-sitting court holiday periods. This delay in many cases has extended the time to finalise cases, and has required judges to spend more time on these judgements to familiarise themselves and reread documents.
3.4.2. Average number of hours worked during the time study
On average, 49.3 hours of work per week was reported by the 15 Court of Appeal judges participating throughout all three weeks of the time study. When applying the standard 42.5 weekly working hours to this number, these judges are working an extra 6.8 hours – or nearly one full extra working day – per week. Annually, 7 extra hours a day comes to 34.6 extra days worked per judge, based on a 42-week work year. For the 15 ordinary judges, this comes to a total of about 590 hours per year, or more than 2.3 full-time equivalent (FTE) judge positions.
While this data alone may not be sufficient to fully establish that the current number of judges is insufficient to cover all work as required during the year, it does show that judges tend to work longer hours on a regular basis. There is currently limited flexibility for these judges to cover additional Court of Appeal work from case backlog or unprocessed cases from the COVID‑19 pandemic. The data also show that the current number of judges may not be sufficient to respond to the increasing number of cases predicted to come before the court, as indicated by multi-year case trends data.
3.4.3. Workload and position calculations
As mentioned, calculating how many FTE positions would be needed at the Court of Appeal to handle all work coming to the court in an average year was approached by looking at data. First, the average annual number of cases incoming to judges by case category was compiled from the 2018 and 2019 Annual Reports and confirmed by the Courts Service. To ensure that only cases that would eventually come to a judge, and not those that would be resolved out of court without judicial involvement, were considered, “incoming” for the Court of Appeal was defined as “resolved and determined”. For “other civil work”, “other criminal work” and “non-case related work”, the annual number of work weeks per judge, i.e. 42, was used.
The collected time study data were vetted and adjusted as needed by an expert judge’s Delphi estimation process. The data were then used to establish an average minimum and maximum number of hours needed to handle each case category, i.e. the minimum and maximum case weight for case category, other civil and criminal, and non-case related work.
By multiplying the average annual number of incoming cases by case category with their related case weight, the minimum and maximum number of annual work hours needed to process each case and work category was calculated.
Finally, the total annual minimum and maximum workload required to handle all case types and other work hours was divided by 1 802, i.e. the standard annual hours (8.5 work hours by 212 annual days) per FTE position, and a mixed complexity workload was calculated.
As noted, the minimum, mixed and maximum number of work hours and related number of FTE positions needed to process all cases and other work would need to be considered together. There is currently no further detailed case data available to better understand if cases eventually coming to judges are of greater complexity, if there are elements that tend to require more judge time (such as appeals brought by lay litigants), or how many cases by case category involve a short hearing or several days of hearings. As a result, these elements had to be estimated by the judges participating in the study. The time study also aimed to collect some of this information. However, overall the data did not provide reliable additional details. This was partly due to the adequate, but still short, duration of the time collection, as well as the data collection period that encompassed the last week of the 2019/2020 court year and the first two weeks of the 2020/2021 court year, i.e. periods that are not fully representative of the average work weeks. It was further impacted by the continuing effects of the COVID-19 pandemic impact on all court operations.
As a result, the minimum annual work hours and related FTE position estimates may to some extent underestimate the time needed to process the entire range of less and more time-consuming cases, while the maximum may overestimate the time needed for all cases. The mixed complexity workload provides a gauge to understand the current position range required. Without data to understand how heavily very simple and very complex cases influence the overall workload, a more precise medium mixed workload calculation cannot be established (see Table 3.4). Further detail on workload and case weight data for all case and work types can be found in Annex C.
Table 3.4. Case weights and position calculations
In light of these calculations, the current number of 15 plus 1 FTE positions approved for the Court of Appeal is below the minimum FTE positions estimate, which does not reflect the handling of more complex cases (nor any potential efficiency gains from the ongoing and needed modernisation efforts). Considering case complexity mixes, the low mid-point estimate points to 24 FTE positions needed, and the overall mid-point, which reflects a greater number of complex cases handled, indicates a need for 29 positions. Importantly, only 14.6 FTE are currently available due to committee assignments and administrative work requirements, which may be contributing to the regularly longer average hours worked per judge above the standard 42.5 hours per week. As such, to come to a full FTE contingent of judges that reflects committee assignments and administrative work requirements, the Court of Appeal would need three additional positions and five more judges to come to the lowest complexity minimum needed (unless the efficiency gains are realised).
In addition, considering that Circuit Courts and the High Court are starting full operations again, an expected surge of previously postponed cases and litigants held back due to the COVID-19 pandemic, there maybe a need for a substantial but temporary alternative solution. It is also expected that the recently increased number of High Court judges will be able to decide more cases, which will likely lead to an increase in the number of appeals in the long run.
Another challenge, particular to the Court of Appeal (and to the High Court), are multi-day hearings and the regularly associated many days of judgement writing that locks the availability of judges assigned to the case. As cases are generally heard by a bench of three judges, these judges are locked out of hearing other cases for the several days needed for the multi-day hearing, as well as the potential days required for preparatory reading. Based on the Delphi study results, and depending on the specific matter, a three-day civil hearing, for example, would mean each of the three judges assigned to hear the case will spend on average a minimum of three days reading and preparing, three days attending the hearing, and a half day deliberating. The judge drafting the judgement for a three-day hearing will on average spend about a week (or more) writing the decision, and this is assuming no interruptions to their work. In other words, three judges are not available to hear other cases for approximately 1.5 weeks, and one will be unavailable for a minimum of 2.5 weeks. While multi-day hearings lasting longer than three days are infrequent, they do occur and currently appear challenging to cover.
At the same time, as stressed before, increasing the number of judges is not the answer to all workload challenges. These calculations have been done in view of the current state of the system, where there is scope to reduce complexity and enhance efficiency, thus possibly reducing the need for additional judges. As such, there are a range of other options tested and successfully implemented by courts in other countries that could be considered and adjusted to the needs of the Irish courts, including the Court of Appeal, to enhance efficiencies in processes. The discussion in the next chapter will address further areas that could benefit from review and innovation. These areas could make the appeals process faster and more efficient, reduce the burden on judges, and enhance the experience of litigants. Several could shift some work responsibilities away from judges, reduce the burden of certain processing steps and possibly translate into lower time requirements for judges. Importantly, beyond judicial positions, all areas require investment, either in the form of IT support, different support staff arrangements, or changes in administrative and management approaches. Most require further study, additional data to track impact and additional training for judges. Others will need to be supported by new court directions and rules, and some may require legislative adjustments. All require further deliberations and planning, and those impacting lay litigants and legal practitioners (such as innovations within or outside courts) may require their involvement in planning and design. Equally important will be a good communication strategy to ensure that the envisioned changes are understood and supported by others.
3.5. High Court
Building upon existing court structures, the Courts of Justice Act of 1924 established the modern court system of the District, Circuit, High and Supreme Courts in Ireland (Irish National Archives, n.d.[42]). The High Court’s current structure evolved from the High Court of Justice, which was established by the Supreme Court of Judicature (Ireland) Act, 1877. The latter Act combined the courts of Chancery, Queen’s Bench, Common Pleas, Exchequer, Probate, Matrimonial Causes, Landed Estates and Admiralty (Irish National Archives, n.d.[42]), into one High Court. Following the adoption of a new Constitution in 1937, the High Court now derives its authority directly from the Constitution. It is also regulated by the provisions of the Courts Acts.
Traditionally, the High Court sits in several provinces as well as Dublin. The High Court hears criminal matters in Dublin, Cork, Limerick, Waterford, Castlebar, Letterkenny and Kilkenny. For civil matters, the court currently sits twice a year “on Circuit” in Cork to hear non-jury cases, and in Cork, Galway, Limerick, Letterkenny, Sligo, Dundalk, Ennis, Kilkenny and Waterford to hear personal injury actions and Circuit Court appeals. In addition, the High Court hears Circuit Court appeals in Naas. On average, two judges from the civil divisions sit in provincial venues for about half of the year, rather than in the Dublin divisions to which they are customarily assigned.5
3.5.1. Range of jurisdiction
Under Article 34.3.1 of the Constitution, the High Court is invested with full original jurisdiction with express power to determine all matters of law or fact, civil or criminal. It is also responsible for appeals from the Circuit Court, all of which are de novo and new evidence may be permitted. The court also hears appeals by way of “cases stated” from the District Court on points of law, as well as appeals from a large variety of regulatory bodies including the Tax Appeals Commission and the Commission for Communications Regulation. It has exclusive jurisdiction over judicial review and habeas corpus. The High Court’s original jurisdiction in criminal matters is not unlike that of other higher-level courts; however, its original jurisdiction in family matters and select other case types is partially concurrent with the Circuit Court. Considering recent Government announcements, this broad scope of jurisdiction is likely to extend into the evolving area of artificial intelligence issues (Government of Ireland, 2021[43]), and the High Court is envisioned to become the hub for Ireland’s plans to develop into an international dispute resolution centre. The High Court’s territorial jurisdiction also extends nationwide, whereas the District and Circuit Courts are of local scope and hold limited jurisdiction.
As the third tier of courts in the nation, this broad range of original jurisdiction is relatively unusual compared to civil law countries, but not too dissimilar from other common law jurisdictions, except the United States. Over time, similar High Courts or other courts at a similar level in other common law countries such as Australia (Supreme Court of New South Wales, n.d.[44]), Canada (Supreme Court of British Columbia, 2021[45]) and the United Kingdom (Courts and Tribunal Judiciary, n.d.[46]) have been adjusted to make them more manageable. With the exception of Canada, appeals in these countries have been separated from trial courts and assigned to an appellate division at the High Court level, special courts for broader case categories (with their own Presiding Judge) have been created, or the position of Associate Chief Justice has been created to support the broad management responsibilities that come with such diverse jurisdiction.
The broad range of original jurisdiction likely also means that the number of High Court appeals coming to the fourth tier of courts in Ireland, the Court of Appeal, may be higher than in other countries. It is beyond the scope of this study to assess the flow of cases from one court level to the next, but this is an important element to understand workload trends at the Court of Appeal, especially as there are currently few mechanisms in place at the Court of Appeal (or the High Court) to screen incoming appeals to determine if they are justified, and only some support for lay litigants launching appeals is available (see recommendations in Section 8.1).
As highlighted above, the High Court structure was created in 1924 in a very different context to the present day. As outlined in the Kelly Report, and as stated by the High Court’s President in her submission to the Judicial Resources Working Group: “For far too long there has been a failure to recognise that the High Court is an entirely different entity than it was ten, twenty or thirty years ago. In many ways the High Court is still expected to function as if the bulk of its work comprised either personal injuries actions, most of which could be expected to settle, or relatively short criminal trials, and in both cases relatively few cases required a written judgment” (Kelly, 2020[47]).
The Kelly Report and others have also pointed to a broad range of new statutes enacted over the past two decades that have generated many additional legal issues that must be resolved and clarified by the High Court. In addition, technology, online publications and internationally operating legal resource firms, such as LexisNexis, Westlaw and Thomson Reuters, make a vast amount of case law available to the parties to litigation, both domestic and international, that have been used in their submissions to the court. Another trend, not just in Ireland, is that the requests and need to use expert evidence have increased, thus introducing more complex expert opinions in court cases. All these and other factors have made High Court litigation in several case categories more complicated, labour intensive and therefore time consuming.
The broad extent of original jurisdiction likely partially explains the (not unjustified) size of the High Court’s judiciary relative to the two lower courts. Currently, the High Court has over 15% more judges than the Circuit Courts, the next lower level of courts in the nation. Neither of the comparable court levels in any UK nation have more High Court judges than the next lower-level courts6 and the same happens in Australia,7 Canada,8 the United States,9 and most civil law jurisdictions in the EU.
The results of the time study have shed light on the long work hours for judges in the High Court. The time study showed that during the data collection period, High Court judges reported working an average of 48.6 hours per week per judge. While there are now 46 positions approved for ordinary judges (of which 43 are currently filled), increasing management requirements and committee assignments (see Table 3.4 above) mean that the full allotment of judges is not available to handle cases in the present situation. Instead, only 40.8 FTE positions are currently available (not considering backlog and workload changes resulting from the COVID-19 pandemic and new legislation), which can also make it challenging covering for judges who are sick or diverted elsewhere.
A workload of 48.6 hours per week equates to 6.1 extra hours per judge per week, 256.2 extra hours per year per judge, or a total of 10 248 hours extra worked by the 40 judges available to handle cases at the High Court at that time (including the Court President). This translates to 1 206 workdays, or the equivalent of 6 FTE judge positions needed to address just the extra hours worked. In other words, if all judges no longer put in the significant extra effort, a total of 46 FTE positions would be needed to handle the regular level of incoming cases at the current pace, on top of the judges needed to handle management and committee assignments. This means that there is no additional judicial capacity to address backlogs, especially not the significant COVID-19-related backlog that has built up in many case categories.
Due to all of the above, the High Court would need to be appropriately supported by effective legislation, human and ICT resources, and case management systems to continue effectively handling the broad scope of cases it currently oversees at the national level.
3.5.2. Case and workload trends
Data reported in the Courts Service’s annual reports indicate that the total number of incoming cases has been slightly declining in civil cases, but increasing in select civil case categories and in family law and criminal cases. Reported cases resolved did not follow the same trends (Table 3.5). These data must be considered very carefully, however. In some instances, what is reported as “cases” does not refer to individual cases filed but the number of motions entered, orders issued, and, for criminal cases, offenders and offences handled.10 This means that if An Garda Síochána or the Director of Public Prosecutions (DPP) change their charging and filing strategies, incoming criminal “case” data will increase or decrease, as will the data reported as criminal “cases” resolved given that these are only reported by offences. Another data source was identified that linked case outcomes to case record numbers, thereby providing an accurate count of criminal cases handled. Equally important is the fact that the number of incoming cases alone does not illustrate the complexity of the cases coming to the courts, which is an important driver of judicial time needed. Judicial workload is also affected by cases settling, as at the High Court parties tend to settle a civil case after it has been filed with the court. What is currently reported as cases “resolved out of court”, for example, tends to refer to cases that settle at some point after the case has been listed and judicial time has been expended. This means that settlement trends after filing likely influence judicial workload as much as overall cases brought to the courts.
While data for 2020 are directly impacted by COVID trends and are not comparable to prior years, they indicate the continued high volume of cases coming to the court during the first year of the pandemic and the ability of the court to respond by different case type. A decrease in incoming and resolved cases was reported in 2020 for civil cases and for incoming criminal defendants to the Central Criminal Court. As mentioned, the higher number of family cases reported to have come to and been resolved by the court may be due to a higher number of less complex cases brought and handled as a result of the pandemic; the decrease in criminal defendants versus an increase in criminal offences demonstrates the impact of the number of charges brought per case, not the number of cases the court actually handled.
Table 3.5. High Court business 2018-2020
Note: Reported as civil business: time from issue to disposal; reported as criminal business: time from receipt of return for trial to final order.
Source: Courts Services Annual Reports from 2018 (p. 90), 2019 (p. 46, pp. 58-67, p. 89, pp. 100-101) and 2020 (p.39, p.56-68, p. 93, p. 105) – (Courts Service, 2022[35]), Court Service Annual Reports, https://www.courts.ie/annual-report.
The broad range of case types coming to the High Court presents challenges. The current Legal Diary shows that High Court cases are currently assigned to 32 different lists, not counting criminal lists (and not counting Masters, Legal Cost Adjudicators, among other lists) (Courts Service, n.d.[48]). Some lists include a broad range of case categories that vary significantly in focus and complexity, and include appeals as well as matters submitted for judicial review. This applies especially to chancery and common law non-jury cases, as well as to family law cases and others. As a result, a chancery case, for example, may require relatively few judicial hours or a very high number of hours. The effective planning and management of such a diverse caseload requires further management efforts and improvements in the data collected, as well as the availability of supporting automated systems.
To help close the data gap (given the mentioned limitations of the data currently collected by the Courts Service), the High Court President undertook a sample case file review to gather more detailed information to better understand how cases actually progress through the courts, how many case events of what type are held, how often hearings are adjourned for what reasons, and how many cases settle at what point after coming to the courts, especially after taking up a certain amount of judicial time. The approach and results are outlined in Box 3.3. The findings both support the results of the time study indicating the significant effort judges spend on cases generally reported as “resolved out of court”, and provide valuable insights to inform the continued development of effective case management strategies for the High Court.
The National Centre for State Courts in the United States conducted a study of civil litigation in state courts that details of how the most important information can be collected concerning settlements, which types of data are relevant and how other courts have done so (NCSC, 2015[49]).
In this regard, countries have mainly collected reliable data on how many cases of what type are actually not pursued, at what case step and after how many court events for each court level. Additional data to identify reasons for and timing of decisions for out-of-court settlements have been collected via surveys to those who filed a case but did not pursue it further. Surveys to those who dropped a case can be regularly sent out, and countries may also rely on conducting ‘focus groups’ of particular users (barristers, the business community, civil legal aid providers, etc.) to identify reasons why a case was settled outside the court and at what point of the process.
The growing complexity of cases that reach the High Court has also been reported as a challenge. Determining case complexity resulting in increased need for judicial time differs from legal complexity, although it may be correlated. Legally complex matters tend to require more time, but simpler cases can become complex and require more time when certain elements occur: the presence of multiple parties, offenders, witnesses or victims; cases involving children; those requiring translation, interpretation or highly technical expert interventions, for example, all tend to trigger more time, regardless of the type of legal matter.
How these elements contribute to additional judicial time depends on the jurisdiction. To determine it, case data collection combined with a limited Delphi study may be needed. Based on the example of the United State Courts, first, the type of elements that tend to increase time needed should be determined by judges and others (McMillan and Temin, n.d.[50]), followed by collection of data to understand the number of cases involving such elements. A limited Delphi study can determine the estimated average time that each of these elements add to what is otherwise needed for the same case type when no such element is present.
Case complexity may lead to longer hearings, more reading time and longer judgement writing time. Similar to the Court of Appeal level, this also means that a judge assigned to handle a more complex case is not available to handle other cases for the duration of hearings, which can last several days or weeks. This delays other cases, potentially leading to their postponement. In addition, judges have reported that upon conclusion of one hearing they usually need to commence hearing a new case with no break in between to begin preparatory work on the judgement required from the previous hearing. Improved data collection to plan for the extra time these cases need would facilitate adjusting case lists and planning judicial resources accordingly. Information to assess changes in case complexity is currently not collected.
Box 3.3. Case diversity and complexity and its impact on judicial resources
A two-month (November 2018 and 2019) sample case file review of chancery cases, undertaken by the High Court President in January 2022 to further inform this OECD study, provided insight into the diversity of these cases, the overall process time, the number of adjournments and hearings, and the judicial time required until a case was concluded as “settled” during different case processes compared to cases “determined” by a judge.
Over the review period, 106 chancery matters were listed for hearing (interlocutory hearings or trials): 67 in November 2018 and 39 in November 2019. Of these 59 (41 in 2018 and 18 in 2019), i.e. a little over 50%, were not concluded during the two-month review period and therefore excluded from the review as no full assessment of all case actions and judicial time needed would have been possible. Of the remaining 47 cases, 17 were determined by a judge and 28 settled after being listed for a hearing. Two additional cases were excluded as they were “outlier” cases, i.e. they required an unusual length of time and number of hearings over several years, which would have distorted the overall results.
The case file review indicated that most cases settled and determined were filed more than three years prior. The cases settled on average tended to be older than those determined by a judge. Further analysis would be required to determine why cases settle after being in the system for a long time and progressing through a series of hearings, and to devise ways to encourage earlier settlements.
For the 17 cases determined by a judge, the number of individual hearings held ranged from 4 to 10, with an average of almost 7 per case, resulting in a total of 114 hearings. Many of these hearings were for interlocutory applications. In this context, a wide variety of interlocutory applications can arise during the progress of an individual case. Of the 114 hearings, 41 resulted in an adjournment. The number of adjournments per case ranged from 0 to 7, with an average of 2.5 adjournments per case. The 28 cases settled by a judge resulted in 191 hearings, ranging from 2 to 22 individual hearings, also for an average of 7 per case. Similarly, many of these hearings were for interlocutory applications. The number of adjournments ranged from 1 to 17, with an average of 3 adjournments. Some case events could not be counted as part of the case file review as no accompanying information was available on the outcome.
Further information would be required to draw conclusions or recommendations. It appears that if judges take full control of a case, it gets resolved faster and with fewer hearings that do not move the case further towards its solution. However, this finding may also be influenced by the complexity, value or higher contest level of the matter involved.
The data showed that based on the Court President’s estimates, the judicial time needed to resolve a case by a judge’s determination was significantly higher than when a case settled after being listed. The average judicial time needed in cases determined by a judge was 177 hours per case versus 58 hours when the case settled after listing. The main reasons are the need for a full substantive hearing, the judicial time needed to read and prepare for the substantive hearing, and the time required for judgement writing.
The data indicate that judges spend significant time on cases “settled” after being listed, making it relevant to consider these cases when determining the need for judicial positions. It is also relevant to be able to distinguish them from cases determined by a judge.
This case file review and resulting data may inform further detailed study to understand which procedural requirements and their application by the parties and the court tend to delay cases, if any case management approaches had been applied in these cases, if they made a difference in general or for more or less complex case types, or if any particular case characteristic contributed to delays.
Source: Ad hoc study conducted by High Court President in January 2022 for the purposes of this OECD project.
3.5.3. Case management, legislative changes and support staff trends
Overall, case management at the High Court is applied to varying degrees. The Commercial Court aims to manage cases as tightly as possible. To improve case management overall, a more integrated approach that can track and reflect different case advances is recommended, together with an automated system that provides effective event tracking, assesses needs for adjustments and informs revision of practices.
Not unlike at other court levels in Ireland, the number of cases in which at least one party is a lay litigant is increasing, although sufficient data are not available to better understand this trend. Collecting data on the percentage of lay litigants involved in High Court cases through the new case management system being developed in the Courts Service to identify which case types are most impacted, who the lay litigants are and their capacities to represent themselves in different case types, and to understand their impact on delay and judicial time requirements would enable the development of meaningful policies to address this. In this regard, the reform measures suggested by the Kelly Review Group to implement the Kelly Report highlighted that a Practice Direction introduced in 2010 in the High Court “Governing of proceedings in which one or more of the parties does not have professional legal representation filings” is not being complied with in practice by parties and practitioners, and recommended that it be implemented by the High Court Central Office by 2025 (Department of Justice of Ireland, May 2022[51]). High Court judges also have the capacity to strike out a claim or part of a claim which amounts to an abuse of process, is bound to fail, or has no reasonable chance of succeeding; and on an application for such an order, to consider the pleadings and, if appropriate, evidence, for the purpose. Building on existing capacities and efforts, as well as on additional data collection, the High Court can provide enhanced support for lay litigants.
High Court judges are significantly better assisted by administrative and legal support staff than judges in other court levels studied. High Court judges have reported useful support from their judicial assistants for their daily work and for special research projects. Nevertheless, room for improvement has been identified in obtaining support for judges to draft judgements, as additional expertise is often required. Similarly, judges pointed to a limited number of registrars and a high turnover in this role. They also reported a lack of access to effective document and content management software, which makes preparing for hearings and drafting judgements more time consuming, especially as the complexity of cases increases. For example, the Commercial Court can use the commercially available TrialView software developed for such purposes, but only if the litigants pay. Additional typing support is also reportedly needed in the High Court. Other than the secretary to the Court President, there are currently four secretaries employed to assist the judges in typing their judgements. This adds to delays in the delivery of judgements and adds to judicial time requirements when urgent judgements must be delivered. Generally, judges in Ireland take written notes during hearings and use a dictation device to detail their judgement. When urgent judgements must be delivered and no secretary is available, the judge has to either type the judgment himself/herself (which may not always be feasible where it is likely to be lengthy) or deliver it orally from notes prepared for that purpose, asking the parties to engage a stenographer to take a shorthand note of the judgment. Courts Service is presently piloting new speech recognition software with judges that will possibly speed up the turnaround of judgements. While this and other support options, including advanced technology solutions, are not available, additional typing support, possibly via temporary staff, is an option to consider.
Box 3.4. Expanding staff support options for judges at the Commercial Court in England and Wales
All judges in the Commercial Court have a clerk assigned to them. In addition, a judicial assistant scheme has been established after an initial successful pilot scheme started in October 2019. Unlike the judicial assistants at courts in Ireland, these positions are for a shorter time period and aimed at qualified barristers and solicitors in the early stages of their legal career. However, the positions are open to all with suitable qualifications and skills, with applications invited from those able to demonstrate an outstanding intellectual ability, excellent organisational skills and the ability to manage large and complicated workloads, as well as a high level of professional integrity. Judicial assistants help the judges(s) to whom they are allocated by carrying out research, summarising documents and providing general support for the judge(s) in the organisation of their work and hearings.
Source: (UK Commercial Court, 2021[52]), Commercial Court Report, 2019-2020, https://www.gov.uk/courts-tribunals/commercial-court.
The impact of the pandemic on pending cases and case backlog, and the expected rise in incoming cases resulting from the government moratoria on selected enforcement actions, are not the only issues that further challenge a court system already under pressure.
The effects of the Assisted Decision-Making Capacity Act, 2015 and the further Schengen Agreement requirements are foreseen to create additional work that will require additional staff. Some may only be needed for a short period of time, but may still be challenging. Other new legislation is pending and will likely further increase the demands at the High Court. Earlier changes, such as the introduction of the Cervical Check Tribunal, may further exacerbate challenges as some claimants are bringing these cases to the High Court instead. The fact that medical negligence claims generally require significant judicial time to conclude needs to be considered. Finally, there have been recent changes in personal insolvency legislation that have the potential, in time, to increase the caseload in this area.
3.5.4. Time and Delphi Data collection: Challenges and lessons learned
The broad range of cases handled by High Court judges was a challenge for the time study, as recognised during the development of the judicial time study data collection instrument. With 7 criminal and 17 civil case categories, several with additional subcategories, each with around 5 case action categories and detailed descriptions as to which case and action types were to be collected by the judges, the High Court time study instrument was the most complex and lengthy of all (see Table 3.6) for one case category; the full data collection instrument is included in Annex A).
As at the other court levels, the time study instrument was tested by judges. Those selected for the study were trained by the liaison judge and provided with reference material and a weekly timesheet to collect the needed information. This involved recording on a daily basis the time needed during each of the three, seven-day data collection periods (as judges tend to prepare and read for upcoming cases, draft judgements, at least in part, and may be assigned to urgent weekend hearings, capturing work for all seven days was essential).
Table 3.6. Judicial case category and case activity time study data elements for one case category required for the High Court time study
The judges confirmed that the High Court was largely back to pre-COVID level operations, except for some jury trials and select case types. Any differences in processing times lingering from COVID-impacted operations were addressed during the Delphi study.
The first week time study data collection for the High Court started in July 2021, with 22 judges participating. The judges were selected by the High Court to reflect a representative group of judges handling the entire range of cases coming to the court. Each judge was assigned an identification number known only to the liaison judge to protect the anonymity of the participating judges, to ensure that follow-up data collection questions could be effectively fielded, and to ensure that each judge’s data collection forms from all three weeks would not be mixed up.
At the end of each week, the completed time data forms were returned to the liaison judge, who sent them to the OECD study team. The study team reviewed the data for completeness and potential errors. Any issues detected were referred to the liaison judge who then followed up with the relevant judges. This process resulted not only in a high data collection form return rate (almost 95% for the High Court), but also in a relatively low rate of entries that had to be excluded due to missing or potentially incorrect data.
The first week’s data collection results were fed into an initial analytical process to identify potential data gaps and test the analytical approach. The experience from the first week of data collection led to slight adjustments mostly related to the layout of the form to make it easier to use and limit entry gaps and errors. Other adjustments to the reference material were made to address misunderstandings. The overall results from the first week’s data collection were compiled and shared with the liaison judge to discuss potential data and results issues. The second and third week of data collection commenced as planned at the beginning of the Court Year in October 2022. Only the second phase of asylum case data collection had to be postponed until November 2022 as no such cases were handled in October due to lack of judicial resources. At this point, all time study data were compiled and fed into the Delphi estimation process, which was conducted in late October and November 2022.
The data collection design and implementation was similar for all four courts, with some adjustments to reflect the differences in caseloads and court structures. The challenges faced, however, differed for all. The most common data collection issue at the High Court, as with the other courts, was that judges overlooked the need to enter how many cases were involved in each case type, not just how much time they spent on different case types and actions. For some categories this was unproblematic as one case is regularly handled per action. For others, especially when multiple notices of motions and case were involved during a morning or afternoon sitting, this became more difficult. Nevertheless, early identification of entry gaps and meticulous follow-up by the liaison judge reduced the number of entry gaps and errors.
The complexity of the High Court’s caseload also implied a particular challenge for the workload data assessment. The requirement for all workload studies is to create a manageable set of composite case types to make data collection easier. Each case set must be composed of similar cases that require about similar time. This was set out at the start and outlined in the reference material provided. Considering that the High Court already uses several composite case categories for its hearing lists, such as common law non-jury and chancery, these appeared to be appropriate combinations for this study. However, after bringing together all data from the time study, the Delphi estimation process and the case data available from Courts Service to be analysed, it became apparent that some of these composite categories, while containing case types of similar legal matter, represented case types that significantly differed in how they were processed and in how much judicial time they required. This meant that the time data collection likely did not fully capture several interim steps involved. While this could largely be addressed as part of an additional Delphi estimation process, it would require additional time. Importantly, the wide range of case complexity in some case categories made estimating “average” judicial time required for the major case steps captured in the study challenging (also as compared to other court levels). Without data available to understand how many cases of the same type that require more or less time are handled. The minimum and maximum judicial time needed to process a case from start to finish could be estimated, but without establishing a reliable average minimum or maximum time range, it was challenging to establish a reasonable case complexity mix that reflects the High Court workload. The resulting broad range of time estimates and limited data to assess the actual number of case events and duration meant that the minimum average calculations underestimated judicial time needed, while the maximum average overestimated. Neither appropriately reflects the mix of shorter and longer cases that judges handle in each case category. The medium time requirement, i.e. case weight, and the resulting medium position estimate is a better anchor to establish a meaningful time and position range.
Another challenge resulted from the significant number of matters reported by the Courts Service as resolved “out of court”. The fact that “out of court” generally meant that cases were settled after several actions that involved judicial time had been expended only surfaced late in the analysis. Other challenges resulted from the relatively frequent adjournments of interlocutory and other hearings, as no data on adjournments are collected. These gaps were also addressed through a combination of additional Delphi estimations by judges and registrars, and the abovementioned sample case file review conducted by the Court President.
3.5.5. Where do judges spend most of their time?
Different from the lower courts, High Court judges spend the vast majority of their time on civil cases. Irrespective of whether minimum or maximum judicial time estimates are applied, the data indicate that criminal cases are the second highest case category, although by a distance. Of the almost 87 000 minimum hours needed, only 5 377 hours (6 707 including EU arrest warrants), or below 8% of the total workload, are criminal matters. Family law cases only take up 5,267 hours, slightly over 6% (see case weight and position information in the Annex C).
To provide further insight into the impact of increasing numbers of longer hearings on several case types, judicial assistants at the High Court conducted a sample data collection of all hearings indicated in the Legal Diary and listed in the relevant Dublin case lists for non-jury and judicial review, chancery and commercial cases in the context of this study. Data for family law cases were also gathered based on information collected by the family law registrar, who aimed to keep additional records of hearings actually held. Overall work demands precluded longer-term data collection of this kind by the registrar.
As the exercise focused on developing better information about trends in longer hearings, these results do not include the short matters listed for hearing on motion days (usually Mondays). As a result, they represent either substantive hearings or more lengthy procedural applications that could not be accommodated on motion days, but were listed on the remaining weekdays during data collection periods. The data were collected for the court year starting in October 2019 (Table 3.7) and October 2020), i.e. for a period during the earlier days of the COVID‑19 pandemic when the courts were closed for some time and efforts to adjust to the new circumstances had just started.
The results of the data collection showed a significant variation in the number and length of hearing days required across all four case types reviewed. It is important to note that “hearings” in the data (see Annex A) include both hearings of interlocutory applications and substantive hearings intended to lead to the final determination of a case. The results of this exercise also show again that judges have limited time left for non-hearing case work or non-case related work, and that there is a significant range of even just hearing time required within individual case categories.
Judgement writing requires several hours of judicial time, depending on the complexity of cases. Given that not all hearings trigger judgement writing, the number of average hearing days per case type does not provide a solid basis to estimate the average time needed per case type. During the 15-month data collection period, 105 hearings were conducted for family cases. The number of days required for all hearings was 235.5, an average of 18 hearing days per month, more than one hearing each non-motion day (not counting August and September, when no regular hearings are held). Given that the standard annual number of work days per judicial FTE position is 212, more than one judge had to be available to prepare and conduct all hearings, write judgements, conduct administrative tasks, meet with registrars, and undertake other regular tasks. The length of hearing days per individual case ranged from 0.5 to 6. Only 99.5 hearings, about 45%, lasted for less than 3 days. The average hearing length was 2.3 days, and they triggered significant judgement writing time (See Table 3.7). If the short half-day hearings, which may be mostly procedural matters or adjournments, are subtracted, the average hearing length remains 2.3.
Table 3.7. Family law hearings held on non-motion days
Source: Elaborated by the OECD from data provided by the country.
The hearing day data collected for the other case types were based on hearings listed, meaning that not all will be held or may not be held as planned as some will settle during different stages of the case. Only some data are currently available to assess the impact of settlements on actual hearing days needed, and no data are available to indicate if and how many cases may require more or less hearing days than planned. Nevertheless, the listing data provide some overall insight into the number and length of hearings involved in these cases.
Courts Service data indicate that about 20% of non-jury common law and one-third of judicial review cases settled in 2018 and 2019 after being listed. Over the 12-month data collection period (not counting August and September when no regular hearings are held), 328 hearings were listed and an average of 37.5 hearing days were planned per month, i.e. more than two on every non-motion day. The number of days overall planned per hearing ranged from 0.5 to 20. Of the 328 hearings planned, 308 (over 90%) were planned to be completed in less than three days. Only 20 hearings were planned to last for more than three days, but some were planned for a significant number of days, which would mean the assigned judge would be blocked for a week or more to hear other cases, not considering the lengthy judgement writing involved in such cases (see Table 3.8). If the short half-day hearings are subtracted, the average length of hearing days increases slightly to 1.6.
Table 3.8. Number of hearings planned for cases listed: Common law non-jury and judicial review list
Source: Elaborated by the OECD from data provided by the country.
The sample data collection conducted by the Court President indicated that over 50% of chancery cases settled at some point after being listed in 2018 and 2019. During the 2020/2021 study period, the number of hearing days overall planned per case ranged from 0.5 to 24. Of the 234 hearings scheduled, 195, about 82%, were planned for less than 3 days. The average number of hearing days scheduled per month was 23.4, about 5 per four-day week. The average number of days planned per hearing was 1.5 (see Table 3.9). The review of chancery cases settled and determined by a judge in November 2019 and 2018, on the other hand, showed that the average duration of chancery hearings determined by a judge was 23 hours, about 5 hearing days. If the half-day hearings are subtracted, the average hearing length increases to 2.1. This may indicate that a range of interlocutory hearings that could not be accommodated on Mondays may influence the calculations, or that the number of cases that eventually settle greatly impact the average number of hours/days needed. More detailed data would facilitate longer-term planning.
Table 3.9. Number of hearings planned for cases listed: Chancery list
Source: Elaborated by the OECD from data provided by the country.
Courts Service data indicate that about 45% of commercial cases settled after listing in 2018 and 2019. There were 234 hearings scheduled for the 2020/2021 study period. The number of hearing days overall planned per case ranged from 0.5 to 17. Some 166 hearings were scheduled for less than 3 days, about 85%. Per month, 19.5 hearings were scheduled, a little over one hearing per non-motion day. The average number of hearing days was 1.7 (see Table 3.10). If half-day hearings are subtracted, the average hearing length increases to 1.9. Additional data were collected for the first three months of 2022. These numbers are different from the prior year, with fewer cases listed; however, the average length planned for each was 14.2 days, which is a high. If this could be considered an indication of the impact of the expected post‑COVID‑19 rush, and not an exception, this would show a need for more judges and registrars, along with temporary measures.
Table 3.10. Number of hearings planned for cases listed: Commercial list
Note: Most of the 0.5 and 1 day hearings may have been for motions, longer were most likely substantive hearings.
Source: Elaborated by the OECD from data provided by the country.
3.5.6. Time study results
As outlined throughout this report, the data currently available from the Courts Service do not fully reflect the work of the courts, and the case management system supporting the civil and family law streams at the superior courts appears to have been designed to track major actions in an individual case, with limited management information for effective case management and resource management planning. The development of an improved system is part of the Courts Service modernisation plan. Recommendations related to enhanced case management and IT solutions, as well as core data needs addressed in Chapter 6, may be considered to inform this effort.
Nevertheless, the detailed data reviews, additional data collection, the use of Delphi estimates from judges and court registrars, and additional meetings and interviews provided a workable basis to develop a set of case weights and related position ranges to inform short-term and longer-term adjustments to judicial positions.
As noted, the minimum position estimates developed likely underestimate the time requirements, especially as the number of interlocutory hearings and adjournments was challenging to estimate without access to better data. The maximum estimates, on the other hand, tend to overestimate the time requirements, as there is no information about case complexity frequencies and many of the case categories include such a broad range of cases that it is difficult to estimate the impact of more complex cases on an “average” case mix. This means that the lowest minimum time estimate does not directly equate to the lowest number of positions required, nor does the highest maximum estimate directly equate to the highest number of positions required. Rather, they indicate that the range of positions needed is higher than the lowest end and lower than the highest end. Figure 3.2 depicts the case mix a judge regularly faces in just one case category.
Figure 3.2. Typical case mix per case type per judge
Source: Source: Elaborated by the OECD from data provided by the country
The current results only shed light on the judicial resource needs to process the current workload and under the current situation (without any efficiency gains), not on future trends. Projections to estimate case trends require additional data to understand settlement trends and more reliable case data across the years. Expected impacts likely resulting from legislative changes will require a deeper analysis of influences on processing steps for impacted case types. One exception where more reliable projections are possible is the upcoming need to cover Wardship reviews resulting from the Assisted Decision Making (Capacity) Act 2015. In this regard, the court has reliable case data and meaningful time estimates for processing these reviews to support the reliable projection of judicial resources needed.
Importantly, without data to identify case backlog, including delay and backlog in getting cases listed or judgements delivered, it is not possible to address how many judges the court should have to be able to handle all incoming cases in a timelier manner. The High Court President provided some estimates of backlog related to select case types in her submission to the Judicial Resource Working Group. Her review of a sample of chancery cases processed in 2018 and 2019 (Box 3.3) further showed that all cases had been filed more than three years earlier, current case lists show similar case ages for other case types, and judges report that the final delivery of judgements in some case types has by now stretched to several months, almost a year in some instances. Therefore, there appears to be a backlog, likely considerable, for several case types, but the volume is not possible to quantify at this point. A clear definition of backlog, along with more data, would enable sound conclusions on how many judges would be needed to handle all cases in a timely manner. Suggestions for developing reliable backlog definitions and options to address delays are further outlined below and Chapter 6.
The data and qualitative information collected point to a need to increase judicial positions. Considering all caveats and the context of existing procedures and technology, the data indicate that the number of total judicial FTE positions needed by the High Court ranges, at minimum, between over 48.2 and the low mid-point of 83.2 positions (see Table 3.11; further detail can be found in the Annex C). As noted throughout, introducing procedural, operational and organisational improvements, adjustments to support staff and registrar resources, and investments to modernise case management systems and IT infrastructure may enhance efficiency and hence possibly reduce the numbers of judicial positions described.
Table 3.11. High Court: Estimated position ranges
Source: Author’s own elaboration based on study data (see Annex C)
Considering that the High Court currently has only 40.8 FTE positions available, this base FTE number could be considered when assessing the need to add judicial positions.
The time study data also indicate the overall time judges are spending on average on different cases in select case categories (case weight), and the resulting average minimum, maximum and mixed workload and related position requirements. These can be used to better understand workload overall, in selected case categories, and for selected case process steps. While the results and indicated data gaps point to several areas that could benefit from further review to develop better data to assess efficiency options, they also point to areas were positions could be shifted elsewhere.
Overall, lessons learnt from other workload studies have shown that the first time such data collection is undertaken tends to be the most challenging, and adjustments are always needed to fine-tune the results. Considering the significant effort and investment made when such a study is undertaken, workload studies should not just be seen as a one-time effort. The different datasets can continue to inform the development of better data and enhanced case management approaches. They can be used as the bases to continue to add new and other data and build a lasting source to assess workloads as legislation changes and new process options are explored.
3.6. Circuit Courts
Circuit Courts in Ireland were established by the 1924 Courts of Justice Act, combining the jurisdiction of the County Courts, Recorder’s Court and the Court of Quarter Sessions. The court in its current form was established in 1961, see Section 4(1) of the Courts Act.
There are currently eight court circuits across the country, including the Dublin District. Most circuits have court locations in more than one town, and the court judges sit in about 40 venues across the different circuits. Only the cities of Dublin, Cork and Limerick have continual Circuit Court sittings. The other circuits are served by sittings scheduled for periods of one to six weeks every two to four months. Longer or more frequent sessions may be scheduled in busy venues for particular lists.
There are currently 37 ordinary circuit court judges, plus the President of the Circuit Court (which amounts to 38 judges) and 2 specialist (insolvency) circuit court judges.11 Information provided to the OECD team outlined that 10 Judges are assigned permanently to the Dublin circuit by the Government, 3 Judges are permanently assigned to the Cork circuit, and 1 judge is permanently assigned to each of the other circuits.12 These assignments are permanent and the judges only sit in their assigned circuits, although they may be temporarily reassigned by the Court President, if needed.
All judges outside of Dublin, including the other circuit judges that are “unassigned”, travel to locations outside of Dublin throughout the country to account for the eight existing circuits. The President of the Circuit Court assigns these judges to family law in each circuit for a minimum term of two years to provide consistency, and then to the remaining sittings as agreed with each judge. Every effort is made to ensure that the same judge is assigned to the same list in each venue to achieve legal certainty and consistency for those lists, while still providing flexibility to ensure that judges are available to cover any special or additional sittings.13 However, it was reported that this is not always possible to achieve in practice in view of the existing number of judges.
The Government has permanently appointed four unassigned judges to spend 50% of their time at the two Special Criminal Courts (SCC),14 where two have usually been required full time since 2016.
Circuit Court sitting weeks in each venue around the country are allocated by the Court’s President. The process considers the past requirements of each circuit and the input of the office managers, who are aware of the pending cases in the list, cases that must be prioritised, and those that could take longer than normal. Once it is decided how many weeks will be allocated to each business on each circuit, the President fixes the sittings and makes assignments based on that information and the availability of judges.
The system for scheduling hearings could be made more precise through collecting information on the average numbers of adjournments and the percentage of cases settled out of court after listing. This could also improve certainty for lawyers and litigants. As trial date certainty is internationally considered an important court performance indicator, this is one area to be considered for further development across court levels (International Consortium for Court Excellence, 2020[53]). In line with these considerations, the Courts Service is planning to introduce a comprehensive case management system for all these case types and jurisdictions.
Most judges, especially the Court President, also serve on a range of Government, court and other committees.15 As a result, and due to permanent assignments to the SCC, there are currently only 34.7 FTE judges available to handle Circuit Court cases, not the full 38 FTE. This should be taken into account when considering the creation of additional positions.
Circuit Court judges sit as single judges in all cases coming to the Circuit Court. Criminal trials are held as jury trials, similar to the Central Criminal Court level, which adds to the time required to manage substantive criminal hearings.
Ordinary judges are supported by an assigned judicial assistant or a crier. Both assigned and unassigned judges, especially in the provincial circuits, must travel long distances to venues. However, as discussed in the next chapter, assigned judges outside of Dublin and unassigned judges in particular may need support that is more geared towards administrative (such as judicial assistants) and logistical support when traveling to the different circuits. Interviews with judges indicated that timely access to IT support can be a special challenge for judges based outside of Dublin. The local court registrar provides the administrative and court room management support during hearings, but support outside the hearings appears limited.
3.6.1. Caseload trends and workload compositions
The Circuit Court has original limited first instance civil, family and criminal jurisdiction, and handles appeals from the District Court. Interviews with Circuit Court and High Court judges indicated differences in opinion if this creates issues of double filing or not, although data are not available to substantiate such reports.
The available case data for the Circuit Courts indicate that incoming civil, criminal and family cases increased until the COVID-19 pandemic halted much of daily life across Ireland in early 2020. While the number of resolved cases increased for criminal and family matters, they declined for civil matters (Table 3.12). The Circuit Courts resumed business relatively quickly after the first lockdown in 2020, but business was scaled down to accommodate health and safety measures, which lengthened several proceedings. At the same time, while applications in areas such as personal insolvency and possession were not halted, decisions were adjourned in most cases. The health and safety measures especially impacted jury trials, which were challenging to accommodate, particularly outside of Dublin.
Table 3.12. Circuit Court case trends, 2018-2020
Notes: *Civil business: from issue to disposal; criminal business: time from receipt of return for trial in Circuit Court to final order. **“DC” is the abbreviation for District Courts.
Source: Courts Service Annual Reports from 2019 (p. 46, p. 58-67, p. 100-101) and 2020 (p.39, p.56-68, p. 105): (Courts Service, 2022[35]), Courts Service Annual Reports, https://www.courts.ie/annual-report.
As the pandemic continued and mostly urgent matters were dealt with, increasing numbers of non-urgent cases were adjourned. While backlog data are not currently collected, the high levels of case backlog in all Circuit Courts was stressed by judges, registrars and members of the District Operations Directorate of the Courts Service during interviews.
The case backlog has been exacerbated due to COVID-19, but preceded the pandemic, especially in family and other civil case categories, such as possessions (O’Shea, 2014[54]). As outlined below, the current backlog situation in these cases is large enough to prompt serious concerns about the capacity of available judges to tackle all pending cases in a timely manner, while also responding to incoming cases. This is an important matter to consider across all court levels. While the earlier increase in backlog indicate a potential need for additional judges, along with changes in the legislation and case management to enhance efficiencies, temporary additional judicial resources might also be an option to consider.
Data collected by the Courts Service show that the number of annual sitting days of the Circuit Courts varies across venues to reflect the estimated incoming judicial case and workload volume. As expected16, 2019 data show that the number of sitting days was the highest in Dublin (2 325), followed by Cork (334), Limerick (217) and Tipperary (235). The lowest number of sitting days were found in Leitrim (18). County-specific Courts Service data indicate that the number of scheduled Circuit Court sitting days has declined since 2015 across most circuits. Data from 2020 reflect the impact of the COVID-19 pandemic (see Table 3.13). The initial analysis of sitting day data indicates room to increase sitting days across provinces to reflect the growing population and caseload. Further analysis is needed to assess if there is scope to establish standard sitting times across the Circuit Court nationally, which should take into account the additional resources that would be needed in such case, including a correlated increase in the necessary number of judges, registrars and other court staff needed, as well as traveling, electricity and logistics costs.
Table 3.13. Annual Circuit Court sitting day trends
Source: Court Service data provided January 2022.
A review and initial analysis of 2019 raw data from Circuit Court sitting days regularly collected by registrars across all circuits and received from the Courts Service provides further insights.17 This preliminary analysis showed that data are entered manually by different people across all districts, in different formats and with varying consistency. This impacts the quality of the data and would benefit from further investments in a comprehensive case management and data collection system that covers all case types and jurisdictions. For this reason, substantial data cleaning was necessary for a first level analysis of one year. As the data were not available consistently across all locations or for periods longer than one year, further detailed analysis would have provided limited value and required significantly more time. Therefore, it was not continued. The results presented here are more illustrative and need to be understood with these limitations in mind. At the same time, this is a valuable data source that is regularly collected, with variations for the District and Circuit Courts, and which could be strengthened. For example, it could be adjusted to serve as one data source to build upon and integrate into a future automated system, and provide a reliable source of important data before such a system exists.
In comparison to the multi-year data provided by the Courts Service, these data, also coming from the Courts Service but compiled separately, showed that a total of 6 036 sittings were recorded for the Circuit Courts in 2019. The average time per sitting was 4.6 hours, with variation from 2 minutes to 22.5 hours (the latter appears due to entry errors).
Figure 3.3. Number and average duration of Circuit Court hearings, 2019
Source: Court Service, special files, Sitting data 2019
The figure below shows how weekly sitting times varied over the year. In 2019 there were four distinctly visible sitting periods, following the courts’ terms. The weekly sitting times tended to be higher in the first three of these periods.
Figure 3.4. Weekly number of sitting hours, 2019
Source: Court Service, special files, Sitting data 2019
While data were not systematically collected for the same year across different locations, the potential richness of this data source is significant. One example can be taken from the data compiled for visiting judges sitting in Cork in that year. Given that Cork has three permanently assigned judges (albeit one of them is on extended leave since 2019, without a substitute), and that specialised insolvency judges sit occasionally in Cork to hear such cases and are counted as visiting judges, it was still unexpected to find that visiting judges covered 60 sittings in 2019, involving civil, criminal and family cases. Another dataset collected by registrars at the same time, while not at all locations and not for all case types, covered the number of cases heard, disposed and adjourned. This is important information that needs to be regularly collected for case management purposes. These data also showed how varied sittings can be from day to day and location to location. For example, for civil cases the number of matters handled in Cork by visiting judges ranged from 40 to 1 per sitting, and the sittings lasted from 1 to 6:50 hours. Of the 40 civil cases heard in one sitting, 21 were disposed and 19 were adjourned. During a different sitting, one civil case was heard in a five-hour hearing and was then adjourned. These data highlight the significant level of complexity of cases handled by Circuit Court judges and the importance of data for resource planning.
3.6.2. Circuit Court workload data collection and position calculations
As with the other court levels, the standard workload calculation methodology was applied for the Circuit Court. First, the average annual number of cases incoming to the Circuit Court judges was compiled by case category from the 2019 and 2018 annual reports, and confirmed with the Courts Service. To ensure that only cases that would eventually come to a judge were considered, and not those that would be resolved out of court without judicial involvement, “incoming” for the Court of Appeal was defined as “resolved and determined”. To calculate non-case based “other civil work”, “other criminal work” and “non-case related work”, the annual number of work weeks per judge (42) was applied.
As had been pre-shadowed during initial discussions with judges and the Courts Service in July and August 2021, the data published in the annual reports, as relating to the Circuit Courts (and all other court levels), are primarily intended to provide information to the general public and have only limited use for establishing an average workload per judge. As mentioned, “incoming” civil and family cases generally refer to all matters initially brought to the court by litigants (or their lawyers) to issue proceedings, rather than as an indication of readiness to request a judicial hearing. These early filing steps may be necessary to officially notify the other party of the intent to take a matter to court, or may be taken to increase pressure on the other party to agree an out-of-court agreement. In the United States and United Kingdom, this practice of filing cases before settlement options has been explored in detail has changed, together with stronger court control to ensure that cases do not linger in the system for extended periods without action.
In the early stages, submissions do not involve judicial work and rarely administrative staff time (none if such process is automated); however, in Ireland they are being counted as “incoming’ to the court. For several case categories, a “case” is not defined as one matter filed against another party, but frequently counted as multiple applications, and this way of counting continues as the case moves to a stage where judges become involved. This makes it challenging to accurately count the number of cases that may come before a judge and to estimate the total time needed to handle the entire case from when it is first assigned to a judge to final judgement. The issues related to criminal case data reported in the annual report were addressed in the methodology section, and were eventually resolved when the Courts Service provided a different dataset that related to a file record.
It was relevant for this report to identify sources that could produce a reliable case count to develop reasonable time estimates for cases handled by judges. These data needed to be available for civil and family cases.18 In instances where these new data did not reflect a true case count, additional surveys of experienced registrars and judges were conducted to develop reliable estimates of numbers of applications involved.
The collection of the time study by 33 participating Circuit Court judges faced the same timing constraints as the other court levels. Data collection in July, the last month of the judicial year, was difficult due to a significantly higher workload. The cases listed during this time were also not fully representative of the annual workload as jury trials are usually not scheduled late in July. October, the start of the court year was also especially busy for the judges, but presented a more representative time period, and lists were less impacted by COVID-19 and running close to normal.
For the implementation of the data collection, unassigned judges were projected to face more challenges keeping track of the numbers of cases and time needed for different process steps than their colleagues working permanent posts. Several judges decided to engage their judicial assistants to assist in the data collection process. However, support staff also faced some challenges in collecting the appropriate types of data. As a result, the number of cases handled each day was not always reported, leading to related records being excluded from the analysis. Some of this information was captured later, but the full workload of the participating Circuit Court during the data collection period may still not be reflected.
After data cleaning, the collected time study data were vetted and adjusted as needed by a team of expert judges. The results from this Delphi estimation process were compiled to establish an average minimum and maximum number of hours needed to handle each case category, i.e. the minimum and maximum case weight per case category and non-case related work. In the case of the Circuit Courts, a prior study had provided some information on the length of different processing steps observed in eight circuits in 2014. These data closely mirrored the Delphi estimates provided by the judges (O’Shea, 2014, p. 13[54]).
The total annual minimum and maximum workload required to handle all case types and other work in hours was divided by 1 802 hours, i.e. the standard annual hours (8.5 work hours by 212 annual days), to calculate the FTE positions needed to handle this workload (see Table 3.14). This is understood to be a snapshot of requirements in view of the current procedures and functioning of the court system, and it would be useful to review potential efficiencies, as discussed below, which may also have an impact on the needed judicial positions.
Table 3.14. Circuit Courts: Minimum and mixed workload and positions needed
The minimum workload and related position requirements represent the average estimated time judges need if the cases present less complications, do not involve frequent adjournments or hearings, and require less hearing time. The maximum workload and position estimate presents the opposite. There is currently no reliable way to accurately establish the exact number of less or more complex and time-consuming cases within each case category coming to the judge. As all courts and judges handle a mix of both less and more complex cases, the average mix workload value is calculated.
The minimum time estimates underestimate the number of complex cases handled, while the maximum times estimates overestimate the impact of complex cases on the entire workload. The mixed case weights and the minimum case weights should be considered together to establish the lower end of positions needed. Any further position calculations would also need to consider future workload trends triggered by recent or pending legal and other reforms, as well as any potential efficiencies that could be gained by improving and streamlining court operations.
Reported case increases in select locations could also be further quantified and considered accordingly in the allocation of judicial resources to each venue. For example, on the criminal side there has been an increase from 152% to 207% of cases in counties such as Kildare or Wicklow. Regarding family issues, the upcoming reform package presented will, among other things, allocate jurisdiction of complex cases to the Circuit Courts. In terms of civil matters, case numbers have also risen in selected categories, and it is envisaged that there will be a sharp increase in personal injury cases due to new Personal Injuries Guidelines. Other factors likely to impact judicial workload in the long term relate to data protection cases, the jurisdiction of the Circuit Court over capacity issues, and the 2015 Assisted Decision Making (Capacity) Act due to be implemented in summer 2022, which replaces the Wards of Court system.
As at other court levels, data from time study data collection show that case types with high numbers of cases do not necessarily require the most judicial time. While Circuit Court judges processed about 8 215 criminal matters per year (average minimum of 13 702 hours per year), the time needed to resolve the average 8 093 family cases was significantly higher, with an average minimum of 29 352 hours per year (see Annex C). In other words, criminal cases only account for about 9% of the judicial time currently needed, despite being around one-third of the total cases incoming to the Circuit Courts. Criminal cases tend to require less judicial time than most civil cases across common law countries for three main reasons: the prosecution service in common law countries generally has sufficient discretion to bring only those cases to the court where sufficient evidence appears to support the case; the prosecution service, in most cases, does not have incentives to prolong any proceedings; and finally, when the accused is in detention, both sides tend to have a desire to keep the process moving in a timely manner. By contrast, childcare cases tend to result in multiple hearings over several months or longer and require the largest percentage of Circuit Court judges’ time. The data indicate where time requirements are particularly high and where investing in alternative processing and support options could make the most difference.
The data also show that average hours worked by Circuit Court judges appears to be influenced by increasing numbers of court cases, increasing complexity of cases and greater demand due to other work requirements, and by the high number of work travel hours incurred by unassigned judges, specialty judges and others occasionally providing cover in provincial locations.
3.7. District Courts
The Irish District Courts developed from the jurisdiction of “Petty Sessions”, which was a court of local jurisdiction presided over by a Justice of the Peace. To this day, District Courts remain the main face of the courts to the Irish people. The higher courts may be more frequently mentioned in the media, but people have their first – and mostly only – court experience at lower courts, especially District Courts. This is where decisions about most business and other licence applications, from fishing licensing to alcohol licences, must be made, where traffic violations can be contested, where all lower value civil cases are taken, and where many family cases are decided or begin. The District Courts have also been called the linchpin of the Irish criminal justice system, as they are where all persons charged with criminal offences are initially processed and, despite their limited jurisdiction, account for most committals to Irish prisons. The prosecution of cases in District Courts is conducted by An Garda, the Irish police, under the direction of the Director of Public Prosecutions (O’Nolan, 2013[55]).
There are currently 23 District Court districts across the country, plus the Dublin district, most with court locations in more than one town. Of the 64 District Court judges, there is one judge permanently assigned to 21 of the provincial districts, two judges permanently assigned to Limerick City and County, and three permanently assigned to Cork City. Some 20 judges are assigned as “moveable judges” serving across the provinces, and 18 judges, including the President of the District Court, are assigned to the Dublin Metropolitan District. The government may only remove an assigned judge from their district to another district or to the moveable list with the judge's consent. Temporary assignments of moveable judges are the prerogative of the President of the District Court, who assigns moveable judges temporarily to a district where they are to sit (Committee of Judicial Studies, 2000[56]). Of the current 64 judges, 2 FTE judges are serving on the Special Criminal Court. Others, especially the Court President, serve on a range of government, court and other committees. As a result, there are currently 61.6 FTE judges available to handle District Court cases. Taking into account that the District Court works 365 days per year, this figure must be considered carefully in view of judges’ illnesses, training time and annual leave (which may result in less than 60 FTEs being available for work in any given day, in accordance with the interviewed stakeholders).
District Court judges sit as single judges in all cases coming to the District Court. Ordinary judges do not have support staff, and administrative support is available to them during court sittings from a local registrar (who may also have to cover sittings in several locations, along with other responsibilities), but not outside of hearings. Stakeholders reported room to renew and modernise provincial court buildings to enable the instalment of modern electronic equipment and connectivity (Courts Service, 2021[57]).
3.7.1. Caseload trends and workload compositions
As a court of first instance serving all provinces and Dublin, the District Courts are very high-volume courts, which can often present challenges to effective case management. Available case data for the District Courts indicate that incoming civil cases increased until the COVID‑19 pandemic halted much of daily life across Ireland in early 2020. The same applies to criminal cases, while family cases saw a slight decline in 2019. While the District Courts resumed business during the first lockdown, its business was scaled down to accommodate health and safety measures, as well as the limited number of incoming cases during that period. This caused the percentage of matters judges resolved to be lower in 2020, except in family cases. Waiting times increased during this period (see Table 3.15).
Table 3.15. District Court case trends, 2018-2020
Note: *For civil: from issue to disposal, excludes licensing. For criminal: figures are provided by offence, and here, for reference only, as the average of summary, indictable dealt with summarily and return for trial. Note that time is considered for each category in the following way: summary: time from issue of summons to disposal of offence in the District Court; indictable dealt with summarily: time from lodgement of charge sheet to disposal of offence in the District Court; return for trial: time from lodgement of charge sheet to transfer of offence to higher court for trial.
Source: Courts Service Annual Reports, 2020, 2019, 2018: (Courts Service, 2022[35]), Courts Service Annual Reports, https://www.courts.ie/annual-report.
As the pandemic continued and mostly urgent matters could be dealt with, increasing numbers of non-urgent cases were adjourned. In addition, summons requests from gardaí were not processed for several months. As a result, a significant backlog of cases was reported for the District Courts (Phelan, 2020[58]). Related data were not systematically compiled due to constraints at the time. However, new data on waiting times for select cases were reported in April 2021 for Limerick, which indicated a slow-down of activities and related backlogs during the period analysed (Table 3.16).
Table 3.16. District Court waiting times in weeks, April 2021
Note: *Urgent interim applications are dealt with immediately, i.e. on next sitting day in every district.
(1) Time from receipt of summons application to scheduled date for hearing – this should never be less than 12 weeks.
(2) Time from receipt of charge sheet to first court date.
(3) Time from receipt of application to date when it is actually heard – not just listed for adjourning or fixing a date.
(4) Time from receipt of application to listing for hearing in domestic violence matters.
(5) As (4) but for other family law applications.
Source: Courts Service, Special Files 2021.
The number of scheduled court sittings has gone up for several years to respond to the growing number of cases and their increasing complexity. The number of special sittings (i.e. sittings scheduled in addition to those set annually) and out-of-hour sittings (i.e. sittings after regular court hours) experienced a remarkable increase. Out-of-hour sittings especially intensified in 2020, the first COVID-19 impact year, an indication that the initially assumed scheduling capacities were expanded to continue to handle incoming cases, despite the many health precautions that had to be observed and that slowed down processes (Table 3.17).
Table 3.17. Annual District Court trends
Source: Courts Service submission to the District Courts, 2021
Similar to other court levels, time study data show that case types with high numbers of cases may not require most judicial time. While District Court judges processed close to an average of 290 000 criminal matters per year, the time needed to resolve the average almost 74 000 family cases was almost the same (see Table 3.17). These cases are known to be judicially time consuming, especially childcare cases where the level of involvement can be high.
The time study data also show that average hours worked by District Court judges was influenced by an increasing number of court cases, increasing complexity of cases and greater demand due to other work requirements, as well as by the high number of work travel hours incurred by moveable judges and others occasionally providing cover in provincial locations.
As discussed in more detail in the following Chapter, there appears to be room to reduce judicial workload by moving certain cases, such as licensing and low-level undisputed traffic cases, elsewhere, or handling them through different processes (i.e. better small claims options, more effective mediation and ODR), if appropriate alternatives and services are available. There is also scope for creating other efficiencies through better support for lay litigants, a review of administrative requirements, and the streamlining and automation of processes. The principal need would be addressing how family cases are currently handled.
The further collection of solid court data to assess bottlenecks, inefficiencies and their causes would be crucial to design better processes for the future that can both reduce the burden on judges and court personnel, and better serve the Irish people, especially the most vulnerable groups, including children.
Data collection to assess backlog is crucial to support the analysis of where and why it occurs. It has been reported that neither Court Presidents nor individual judges have access to comprehensive case processing and management information to alert them to potential delays and processing issues. It would also be helpful to collect data to track the number of adjournments, why they occur and in what type of cases. Adjournments tend to be a major cause of delay and directly impact judicial time (and the time of all involved). Gathering this information would enable the development of reasonable adjournment rules.
With all the caveats and in view of the current court operations and procedures, what the workload data seem to show is a need to adjust the number of judges to process the increasingly complex cases coming to the District Courts, and in preparation for the expected surge of cases waiting to be heard and submitted to the court that were held back due to COVID-19. It would also be beneficial to conduct a detailed review of all processes and alternative response options to identify potential improvements, and consider more solid case and court management approaches supported by reliable data that reflect the core business of the court (i.e. people come to the courts for their cases to be decided by judges).
3.7.2. District Court workload and position calculations
Following the standard workload calculation methodology, the approach used for the Court of Appeal, the average annual number of cases incoming to District Court judges was compiled by case category from 2018 and 2019 annual Reports (Courts Service, 2022[35]) and confirmed with the Courts Service. To ensure that only cases that would eventually come to a judge were considered, and not those that would be resolved out of court without judicial involvement, “incoming” for the District Court was defined as “resolved and determined”. To calculate non-case based “other civil work”, “other criminal work” and “non-case related work”, the annual number of work weeks per judge (42) was applied.
The collection of the time study data by District Court judges faced particular challenges due to the very high case volume, rapid processes and the fact that these judges operate without support staff. The time during which data could be collected by District Court judges had to be adjusted as data collection during July would have been too burdensome in this end of year month. As a result, the three-week study was conducted in October 2021, with 13 participating District Court judges.
The collected time study data were vetted and adjusted as needed by a team of expert judges. The results from this Delphi estimation process were compiled to establish an average minimum and maximum number of hours needed to handle each case category, i.e. the minimum and maximum case weight per case category, other civil and criminal, and non-case related work. By multiplying the average annual number of incoming cases by case category with their related case weight, the minimum and maximum number of annual work hours needed to process each case and work category was calculated. Finally, the total annual minimum and maximum workload required to handle all case types and other work in hours was divided by 1 802 hours, i.e. the standard annual hours per FTE position (8.5 work hours by 212 annual days) (see Table 3.18).
As was also stated for the Circuit Courts, and as discussed with judges and the Courts Service, District Court data published in annual reports present challenges for establishing an average workload per judge. First, as mentioned, “incoming” civil and family cases refers to all matters brought to the court by litigants (or their lawyers) to move a legal issue forward, but many cases settle before they are ever assigned to a judge. Second, similar to the Circuit Court level, what is reported by the Courts Service as a “case” is frequently multiple applications or orders issued in a case. Consequently, counting these actions as “cases” would multiply the workload count. Case count issues in criminal matters faced the same constraints as at all other courts levels.
After careful consideration, it was possible to identify additional sources to address remaining data gaps, similar to those applied at the Circuit Court level, to develop reliable time estimates. For childcare cases, additional data from Tusla requested by District Court judges were added. For criminal cases, data from the Director of Public Prosecutions were consulted to verify the calculations.
The workload and position calculations below (and the full data table in Annex C) present the results of this combined data collection effort of District Court judges, the Courts Service and the OECD team. The data show where workload concentrations lie, indicate where time requirements are particularly high, and show where investing in alternative processing and support options could make the most difference.
Similar to all other court levels, the minimum time estimates underestimate the number of complex cases handled, and the maximum overestimate the impact of complex cases on the entire workload. Considering that the range of case complexity is more limited at the District Court level, the differences may be less here. However, there is a high frequency of adjournments not fully captured by the Courts Service. Although additional surveys of judges and registrars provided a more reliable count, underestimating and overestimating court events may still influence the results for the District Court. For this reason, the mixed case weights and the minimum case weights would need to be viewed together to establish the lower end of positions needed. As at other court levels, further position calculations would also need to consider future workload trends triggered by recent or pending legal and other reforms, such as significant changes in family law.
Notwithstanding the need for additional case data to reflect these future trends in further position calculations, the current data and qualitative information collected point to a need to increase judicial positions. All caveats considered, the data indicate that the minimum number of total judicial FTE positions needed by the District Courts ranges between higher than 75 and the low mid-point of 88. The medium mixed complexity workload presents the upper range of positions needed (Table 3.18, the full case weight table can be found in Annex C). Furthermore, the assignments of District Court judges to the Special Criminal Court and a range of committees must also be reflected.
As at all court levels, it would be important to consider position requirements in the current system together with the efficiency gains that could be prompted by procedural, operational and organisational improvements, and adjustments to support staff and registrar resources, which may have an impact on the actual needs for judicial positions.
Table 3.18. District Courts: Minimum and mixed workload and positions needed
Box 3.5. Key recommendations
Given the current workload and procedures, consider increasing the number of permanent judges at all court levels and providing further flexible work options, as well as review the numbers and necessary capacities of support staff.
To fully understand the need for streamlining operations, consider conducting a detailed process and organisational assessment, in line with the submission by the President of the High Court to the Judicial Resources Working Group.1 Such an assessment would map in detail the flow of different case types at a particular court level and in different locations. It could include each processing step, action and decision from first registration through to final decision at every stage of a case and by all those involved, including litigants and their lawyers.
1. Internal document provided to the OECD by the Chief Justice of Ireland in November 2021.
References
[28] Casaleiro, P., A. Relvas and J. Dias (2021), “A Critical Review of Judicial Professionals Working Conditions’ Studies.”, International Journal for Court Administration, Vol. 12/1, p. 2, https://doi.org/10.36745/ijca.334.
[5] CEPEJ (2020), Efficiency and quality of justice in Europe, European Commission for the Evaluation of Justice, https://rm.coe.int/evaluation-report-part-1-english/16809fc058.
[4] CEPEJ (2020), European Judicial Systems CEPEJ Evaluation Report, European Commission for the Evaluation of Justice, https://rm.coe.int/rapport-evaluation-partie-1-francais/16809fc058.
[9] CEPEJ (2018), European judicial systems - Efficiency and quality of justice, European Commission for the Evaluation of Justice, https://rm.coe.int/rapport-avec-couv-18-09-2018-en/16808def9c.
[6] CEPEJ (2016), European judicial systems: Efficiency and quality of justice, European Commission for the Evaluation of Justice, https://rm.coe.int/european-judicial-systems-efficiency-and-quality-of-justice-cepej-stud/1680788228.
[24] CEPEJ (2016), Towards European Timeframes for Judicial Proceedings: Implementation Guide, European Commission for the Evaluation of Justice, https://rm.coe.int/16807481f2.
[3] CEPEJ (2014), European judicial systems – Edition 2014 (2012 data): Efficiency and quality of justice, European Commission for the Evaluation of Justice, https://rm.coe.int/cepej-report-on-european-judicial-systems-edition-2014-2012-data-effic/16807882a1.
[8] Cole, D. (2021), Pay and FTE Update to 30 June 2021 - Power Point Presentation, Courts Service.
[56] Committee of Judicial Studies (2000), “Judicial Information Handbook”, p. 51.
[36] Court of Appeal UK (2021), In the Court of Appeal (Criminal Division), 2019-2020, Judicial Office, Royal Courts of Justice, London, https://www.judiciary.uk/wp-content/uploads/2021/05/6.7429_JO_Court_of_Appeal_Criminal_Division_2019_20_WEB-v2-with-tweak.pdf.
[38] Court of Special Appeals Maryland (2022), Alternative Dispute Resolution (ADR) Division, https://mdcourts.gov/cosappeals/mediation (accessed on 12 May 2022).
[40] Court of Special Appeals Maryland (2018), A Guide for Self-Representation, https://www.courts.state.md.us/sites/default/files/import/cosappeals/pdfs/cosaguideselfrepresentation.pdf.
[39] Court of Special Appearl Maryland (2022), Welcome to the Court of Special Appeals, https://www.courts.state.md.us/cosappeals (accessed on 12 May 2022).
[46] Courts and Tribunal Judiciary (n.d.), Court Structure, https://www.judiciary.uk/about-the-judiciary/the-justice-system/court-structure (accessed on 21 May 2022).
[30] Courts and Tribunals Judiciary (2019), Judicial sitting days, https://www.judiciary.uk/about-the-judiciary/the-justice-system/term-dates-and-sittings/sittings/ (accessed on 21 May 2022).
[37] Courts and Tribunals Judiciary (2015), Practice Guidance: Court Of Appeal Hear-By Dates, https://www.judiciary.uk/publications/practice-guidance-court-of-appeal-hear-by-dates/ (accessed on 21 May 2022).
[15] Courts Service (2022), About us, https://www.courts.ie/about-us (accessed on 9 May 2022).
[35] Courts Service (2022), Courts Service Annual Reports, https://www.courts.ie/annual-report (accessed on 12 May 2022).
[13] Courts Service (2021), Annual Report 2020, https://www.courts.ie/acc/alfresco/b47652ff-7a00-4d1f-b36d-73857505f860/Courts_Service_Annual_Report_2020.pdf/pdf#view=fitH.
[57] Courts Service (2021), Opening Statement of Courts Service CEO at the Daiyl Joint Committee on Justice, https://www.courts.ie/news/opening-statement-courts-service-ceo-d%C3%A1il-joint-committee-justice (accessed on 22 May 2022).
[10] Courts Service (2020), Annual Report 2019, https://www.courts.ie/acc/alfresco/9bd89c8a-3187-44c3-a2e9-ff0855e69cb5/Courts%20Service%20Annual%20Report%202019.pdf/pdf#view=fitH.
[34] Courts Service (2019), Organisational Capability Review, https://www.courts.ie/acc/alfresco/909f953b-947f-4694-b99c-c1e422ca7338/Organisational%20Capability%20Review%20Report.pdf/pdf#view=fitH.
[12] Courts Service (2015), Annual Report 2014, https://www.courts.ie/acc/alfresco/a4d65572-956f-4a95-9ec9-922cd5643220/Courts%20Service%20Annual%20Report%202014.pdf/pdf#view=fitH.
[16] Courts Service (2012), Annual Report 2011, https://www.courts.ie/acc/alfresco/e6101193-2abe-459e-b142-73316aac70f5/Courts%20Service%20Annual%20Report%202011.pdf/pdf#view=fitH.
[14] Courts Service (2009), Annual Report 2008, https://www.courts.ie/acc/alfresco/81de068e-db44-498d-8ce2-5a9361da52f4/Annual%20Report%202008.pdf/pdf#view=fitH.
[48] Courts Service (n.d.), Legal Diary, http://legaldiary.courts.ie/ (accessed on 22 May 2022).
[51] Department of Justice of Ireland (May 2022), “Civil Justice Efficiencies and Reform Measures”, pp. 44-45, https://www.justice.ie/en/JELR/DOJ_CJERM_2022.pdf/Files/DOJ_CJERM_2022.pdf.
[29] DPER (2022), Human Resource Management in the Civil Service (website), Department of Public Expenditure and Reform, https://hr.per.gov.ie/en/ (accessed on 10 May 2022).
[1] Fabri, M. (2017), “Methodological Issues in the Comparative Analysis of the Number of Judges, Administrative Personnel, and Court Performance Collected by the Commission for the Efficiency of Justice of the Council of Europe”, Oñati Socio-Legal Series, Vol. 7/4, pp. 616-639, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3040109.
[43] Government of Ireland (2021), AI - Here for Good. A National Artificial Intelligence Strategy for Ireland, https://www.gov.ie/en/publication/91f74-national-ai-strategy/.
[27] Government of Wales (2019), Justice in Wales for the People of Wales (Thomas Commision 2017), https://gov.wales/sites/default/files/publications/2019-10/Justice%20Commission%20ENG%20DIGITAL_2.pdf.
[41] HM Courts and Tribunal Service (n.d.), Guidance for Litigants in Person and third party assistance, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/644757/Guidance_for_third_parties_assisting_LiPs_0717.pdf (accessed on 12 May 2022).
[53] International Consortium for Court Excellence (2020), Global Measures of Court Performance (Third Edition), https://www.courtexcellence.com/__data/assets/pdf_file/0030/54795/GLOBAL-MEASURES-3rd-Edition-Oct-2020.pdf.
[42] Irish National Archives (n.d.), Guide to court records in Ireland post-1922, https://www.nationalarchives.ie/article/guide-court-records-ireland-post-1922/ (accessed on 21 May 2022).
[33] Judicial Commission of New South Wales (n.d.), Continuing Judicial Education Policy, https://www.judcom.nsw.gov.au/education/continuing-judicial-education-policy/ (accessed on 21 May 2022).
[21] Judicial Council of California (2001), A New Process for Assessing Judicial Needs in California (Action Required), Administrative Office of the Courts, https://www.courts.ca.gov/documents/judneedsreview.pdf.
[7] Judiciary of Scotland (2021), List of Scottish Justices, https://www.judiciary.scot/home/judiciary/judicial-office-holders/justices/justiceofpeace (accessed on 22 May 2022).
[22] Justice O’ Ryan, S. (2020), Benchmarking and Prouctivity for the Judiciary, http://www5.austlii.edu.au/au/journals/FedJSchol/2000/3.pdf.
[47] Kelly, P. (2020), Review of the Administration of Civil Justice, Department of Justice, Dublin, https://www.justice.ie/en/JELR/Pages/Review_of_the_Administration_of_Civil_Justice_-_Review_Group_Report.
[19] Kleiman M., S. (2019), “Weighted caseload: A critical element of modern court administration”, International Journal of the Legal Profession, Vol. 1/26, pp. 21-32, https://doi.org/10.1080/09695958.2018.1490293.
[2] Macdonnell, J. (1902), “Number of Judges in Different Countries”, Journal of the Society of Comparative Legislation, Vol. 4 (1), pp. 51-66.
[17] McIntyre, T. (2015), Judicial Oversight of Surveillance: The Case of Ireland in Comparative Perspective (Draft), In (eds.) Scheinin, M., H. Krunke and M. Aksenova, Judges as Guardians of Constitutionalism and Human Rights, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2694512.
[50] McMillan, J. and H. Temin (n.d.), “Dynamic Case Weighting - Using the Data We Have to Manage the Courts”, http://anterior.cumbrejudicial.org/c/document_library/get_file?p_l_id=389797&folderId=186079&name=DLFE-4608.pdf.
[23] Ministry of Justice (2020), Judicial Salaried Part-time Working, https://judicialappointments.gov.uk/wp-content/uploads/2020/11/Revised-Judicial-Salaried-Part-Time-Working-Policy-Final-002.pdf.
[18] National Center for State Courts (2008), Measuring Current Judicial Workload in Texas, 2007, https://www.txcourts.gov/media/868706/Weighted-Caseload-StudyFinal-Report-July-7-08.pdf.
[49] NCSC (2015), “The lanscape of civil litigation in state courts”, https://www.ncsc.org/__data/assets/pdf_file/0020/13376/civiljusticereport-2015.pdf.
[55] O’Nolan, C. (2013), The Irish District Court: A Social Portrait, Cork University Press, https://www.corkuniversitypress.com/Irish-District-Court-p/9781782050483.htm.
[31] Ontario Superior Court of Justice (1992), Callaghan Scheduling Convention, https://www.ontariocourts.ca/scj/news/callaghan/ (accessed on 22 May 2022).
[54] O’Shea, R. (2014), Judicial Separation and Divorce in the Circuit Court, Waterford Institute of Technology, http://arcmedlaw.com/wp/docs/Headline_Findings_phd_ROS.pdf.
[58] Phelan, S. (2020), Justice delayed by backlog of 95,000 cases in District Court due to pandemic, Independent.ie, https://www.independent.ie/irish-news/courts/justice-delayed-by-backlog-of-95000-cases-in-district-court-due-to-pandemic-39847041.html (accessed on 22 May 2022).
[26] Provincial Court of British Columbia (2016), What judges do in a day, https://mdcourts.gov/cosappeals/mediation (accessed on 22 May 2022).
[32] Reaves, R. (2016), “Continuing education for judges”, Journal of the International Organization for Judicial Training 5, pp. 29-39, https://ncfsc-web.squiz.cloud/__data/assets/pdf_file/0017/6146/iojtjournal005.pdf.
[25] Rubotham, N. (2017), The Budget of the Courts and Judicial System Ireland, Courts Service, http://rm.coe.int/the-budget-of-the-courts-and-judicial-system-in-ireland-by-noel-ruboth/168076d496.
[11] Scottish Courts and Tribunals Service (2018), People Strategy 2018-2023, https://www.scotcourts.gov.uk/docs/default-source/default-document-library/people-strategy---14-02-18.pdf?sfvrsn=2#:~:text=Our%20vision%20is%20to%20build,of%20respect%2C%20service%20and%20excellence.
[45] Supreme Court of British Columbia (2021), Annual Report of the Supreme Court of British Columbia, http://www.bccourts.ca/supreme_court/about_the_supreme_court/annual_reports/2020_SC_Annual_Report.pdf.
[44] Supreme Court of New South Wales (n.d.), About Us, http://www.supremecourt.justice.nsw.gov.au/Pages/sco2_aboutus/sco2_aboutus.aspx (accessed on 22 May 2022).
[52] UK Commercial Court (2021), Court Report 2019-2020, https://www.gov.uk/courts-tribunals/commercial-court (accessed on 13 May 2022).
[20] United States Government Accountability Office (2009), Federal Bankruptcy Judges: Measuring Judges’ Case-Related Workload, https://www.gao.gov/products/gao-09-808t.
Notes
← 1. On the EU enlargement process, see https://ec.europa.eu/neighbourhood-enlargement/enlargement-policy/glossary/accession-eu_en.
← 2. For information on the OECD accession process, see http://www.oecd.org/legal/accession-process.htm.
← 3. Currently, the number of High Court judges is 46 with the appointment of an additional judge in February 2022.
← 4. As the Handbook for Judicial Information, 2020 version, prepared by the Committee for Judicial Studies, shows.
← 5. Submission of the High Court President to the Judicial Planning Working Group, shared with the OECD team on January 2022.
← 7. See www.bccourts.ca/supreme_court/about_the_supreme_court/annual_reports/2020_SC_Annual_Report.pdf.
← 8. See www.bccourts.ca/supreme_court/about_the_supreme_court/Judges_and_Masters_of_the_Supreme_Court.aspx.
← 10. Reported resolved civil and family “case” data can fluctuate, increasing or decreasing, based on litigants and/or their lawyers entering more or less applications or filing for more motions due to how the data is recorded.
← 11. One of these insolvency judges is retiring on 31 March 2022.
← 12. One judge is permanently assigned by the government to the Eastern Circuit (comprising Meath, Louth, Kildare and Wicklow – sits in Trim, Dundalk, Naas and Bray), the South Eastern Circuit (Waterford, Wexford, Tipperary, Kilkenny, & Carlow – sits in Waterford, Dungarvan, Wexford, Clonmel, Thurles, Nenagh, Kilkenny and Carlow), the South Western Circuit (Limerick, Clare and Kerry – sits continuously in Limerick and in Ennis, Kilrush, New Castle West, Tralee, Killarney and Listowel), the Western Circuit (Galway and Mayo – sits in Galway, Loughrea, Clifden, Castlebar and Ballina) ), the Midland Circuit (Laois, Longford, Offaly, Roscommon, Sligo and Westmeath – sits in Longford, Portlaoise, Tullamore, Mullingar, Athlone, Roscommon and Sligo) and the Northern Circuit (Cavan, Monaghan, Leitrim and Donegal – sits in Cavan, Monaghan, Carrickmacross, Carrick on Shannon, Letterkenny, Buncrana and Donegal).
← 13. The OECD team was informed that to provide consistency in family law, the Court President tries to assign the same judge for family law sessions in each circuit, although it is not always possible.
← 14. The second Special Criminal Court was established in 2016.
← 15. The following is a non-exhaustive list of those committees: 1) Judicial Council (the President and one other member of the Court); 2) Committees of the Judicial Council Personal Injuries Guidelines, Judicial Conduct, Sentencing Guidelines, Educational and Wellbeing; 3) Courts Service Board (the President and one other member of the court); 4) Committees of the Courts Service Board – Finance, Building Committee, Modernisation; 5) Judicial Appointments Advisory Board (President); 6) Judicial Liaison COVID Committee (President); 7) Circuit Court Rules Committee (President and two other members of the Court); 8) Complaints Referee; 9) Benchers Kings Inns; 10) Hammond Lane Project Board; 11) Family Law Court Development Committee; 12) Council of King’s Inns; 13) Audit Committee; 14) Irish Legal Terms Advisory Committee; 15) Annual Circuit Court Conference Committee; 16) Annual National Conference Committee; 17) Library Committee; 18) Courts Martial Rules Committee; 19) Criminal Justice Strategic Committee; 20) Association of Judges; 21) Working Group to report on University Research.
← 16. In general terms, the Dublin Circuit sits 5 days per week, while most other Circuits outside Dublin sit 4 days per week.
← 17. See Court Sittings (2019), Special data files, received from Court Service in July 2021. These data received by the OECD consisted of several spreadsheets of information compiled by circuit court registrars in all locations for 2016-2019. The data contained information about the dates, start, end and length of daily court sitting by major case categories. These detailed sitting day data are collected only for the District and Circuit Courts for the purpose of informing related travel expense submissions from the judges. The standard sitting day data collection is relatively consistent, although still require significant data cleaning and statistical work and had limited use for the time study. Additional information related to number of cases heard and decisions was also included in 2019, but is not available for other years.
← 18. Among other data, the Courts Service provided the OECD team with a range of additional Excel data worksheets for the Circuit and District Courts that represented a range of data details regularly collected, not all which is of interest for the annual report but was essential to get a more precise case data breakdown for this study. The same are not available for the superior courts as they come from different sources and systems.