Modernising Staffing and Court Management Practices in Ireland

6. Towards more effective court, case and data management in Ireland

Abstract

This Chapter analyses the court and case-management approaches applied in Ireland, based on relevant OECD countries’ court and case management methodologies and international standards, and offers recommendations aimed at helping drive improvements in justice performance in Ireland. More specifically, the OECD recommendations concentrate on identified opportunities and potential improvements in the areas of court and case management, data and IT systems, coordination and simplification, and multi-channel service delivery.

Since the early 1980s, court and case management has grown in importance across many common and civil law countries. Overall court management, i.e. the sum of all responsibilities to ensure that courts work well to uphold the law and serve people and businesses, encompasses facility and information and communication technology (ICT) management, finance, human resource management, data collection and research, general administrative activities, and overall strategy development. Case management is connected to court management and includes court administration and other processes directly related to the processing of cases and bringing them to timely adjudication (Rooze, 2010[1]).

Driven by concerns about slow pace, high costs, procedural complexity and lack of predictable case outcomes, court leaders in many countries have focused on the development of different court rules and operational practices, collectively referred to as “case management”, to address problems in civil, criminal and family court contexts. Case management therefore has two meanings: the first refers to the overall policies, rules, regulations and techniques applied to all or a set of case types, while the second covers the management of an individual case by a judge supported by court staff. This chapter explores modern approaches to court and case management to help drive improvements in justice performance in Ireland.

6.1. Introduction

Most early efforts to enhance processing efficiency focused on internal court procedures to ensure timely decisions in response to motions, relevant and consistent enforcement of procedural rules, and the development of more effective case calendar scheduling practices to ensure sufficient capacity for hearings. The effectiveness of these techniques was quickly demonstrated; however, their adoption in courts often faced resistance from judges and private lawyers. Given the strong impact of judicial efficiency on economic performance and firm growth, these practices can be relevant levers for economic activity.

In the United States, where these approaches evolved first, fundamental common law principles of judicial impartiality were interpreted as requiring deference to civil litigants in matters of case processing. The role of judges in common law jurisdictions was, and still often is today, mostly seen as providing the forum for civil litigants to resolve their disputes. In this context, attempts to control case processing would limit litigants’ prerogatives to manage the case as they see fit. Furthermore, the assumption is that litigant interests were best served by professional attorneys who would advocate on behalf of their clients (Hannaford-Agor, 2018[2]; Rosen, 1994[3]). Civil law countries were even more cautious in considering approaches to enhance court efficiency, as the “common law” approaches were seen as not consistent with civil law principles. Judges in civil law countries have a different role as they drive the inquiries and have greater control, even in civil proceedings. The level of control is detailed in procedural laws, and diversions to reflect different case needs were seen as legally not possible. Civil law judiciaries also often did not consider such “administrative” matters as their responsibility, but that of the Ministry of Justice, which was tasked with the administration of the courts in most continental European nations (Langbroek, 2017[4]).

Confidence that existing court processes were functioning well continued to be widely shared by both the bench and private lawyers in common and civil law countries until increasing caseloads and shrinking budgets prompted a need for different approaches. Another element that contributed to advances in modern case management, especially in common law countries, was the ever increasing numbers of litigants resolved to represent themselves given the rising cost of civil litigation. In the United States, three‑quarters of all general civil cases in state courts today have at least one lay litigant. To ensure equal access to justice for all, courts must now balance the provision of adequate information to unrepresented litigants with their obligation of neutrality between parties. These developments have led courts in the United States, United Kingdom and other countries to the realisation that court rules focusing on efficiency are essential, but insufficient by themselves to address problems of cost and delay. Instead, many courts today are embracing a considerably broader view of case management that considers the combination of court rules, efficient business practices, local legal culture, governance, staffing and technology infrastructure. As a result, effective case management now recognises the importance of five core components that are necessary to achieve timely, cost-effective and procedurally fair justice (Hannaford-Agor, 2021[5]):

1. Use of triaging of processes to ensure that cases receive attention proportional to their needs.

2. Process simplification to remove procedural barriers that unnecessarily complicate litigation.

3. Stakeholder engagement to ensure clear communication about case management objectives at every stage of the litigation.

4. Effective use of court staffing and technology resources.

5. Ongoing commitment to data management and performance management.

The goal of case management nowadays is not simply moving cases effectively to disposition, but to achieve justice for all litigants served. This means that the processes must be designed to allow for the resolution of the matter within fair timelines without compromising the quality of the decision. It also means offering other less adversarial, easier to understand, and less costly options and support to litigants, when needed, to resolve disputes.

6.2. Current case management approaches applied in Irish courts

Across all court levels in Ireland, some case management techniques initiated by judges are applied, with changes introduced due to the pandemic driving further efficiency options. For example, particularly at the High Court level, list judges are judges with a specialism and have significant responsibilities for early case management actions and to ensure, as much as possible, that judges are available to hear all matters as scheduled.

Judges at the Commercial Court apply intensive case management approaches to encourage parties to settle cases early, follow realistic submission and hearing schedules, exchange evidence early, and aim to resolve contested issues up to the substantive hearing. This is an important measure to reduce hearing time. Judges also seek to promote the mediation of disputes, which allows parties to seek an amicable solution to their dispute that may allow them to continue commercial relations and protect their reputation.

The High Court has also established a practice in recent years whereby registrars go to the court about 20 minutes before the commencement of a motion list and are available to take on consent applications for strike out, settlement and adjournments. When there is consent, the motion is not called when the judge is on the bench - afterwards, the order is drawn by the registrar according to the consent agreement. Most motion lists in the High Court are currently also heard online, making it unnecessary for lawyers and litigants to travel to the Four Courts in Dublin for the hearings.

Judges at the Circuit Court level aim to mediate contested matters, especially in family law cases, as much as possible to limit the need for substantive hearings and to achieve a less contentious resolution to a family matter.

In response to COVID-19 restrictions, Callover processes at all court levels have largely moved to online hearings. Scheduling processes have also changed, and no longer require all parties to show up in the morning of a scheduled hearing, but are instead assigned set time slots throughout the day. This is considered an important improvement with respect to the way that Callover procedures were handled previously. Furthermore, at the District, Circuit and Court of Appeal levels, Callover is now mostly centralised, which relieves individual judges from this duty. Callover at the High Court level, while continuing to fulfil its original function, has also evolved into case management hearings to establish submission and hearing schedules.

At the District Court level, there is a special Drug Treatment Court that aims to effectively link addicted offenders to appropriate treatment options and reduce recidivism, thereby reducing the burden on all parts of the justice sector.

Selected judges at all court levels are slated to be available for emergency hearings. In addition, the District Court holds evening court each weekday at 4.30 pm in the Criminal Courts of Justice in Dublin. Two courts are also held each Saturday and on bank holidays for emergency business. In all districts, a judge is assigned for a week at a time to cover “out of hours” courts, which especially hear urgent search warrant applications, extensions of detention periods, preservation of crime scene applications, etc. This judge can be called out at any time. In the High Court, judges are rostered so that one judge is available each weekend to deal with urgent applications.

While it was beyond the scope of this study to assess all case management techniques currently employed across the four court levels that were part of this report, these examples demonstrate that the judiciary is actively exploring and implementing various case management approaches to better manage all cases.

At the same time, when comparing these efforts to the five core components of effective case management, only some have been partially developed. Judges are currently developing these efforts with limited access to relevant data, without support to assist in collecting and analysing results data, without access to comprehensive training in judicial case management to understand the full scope of case management techniques and their implications, and without the benefit of an overall strategic outlook for case management across all court levels. Therefore, their efforts are largely reactive in response to existing challenges, rather than systematic to overcome and prevent challenges in the future.

Earlier efforts to introduce more efficient processes, such as those recommended in the Kelly Report, are still largely waiting to be passed. As a result, most case processes still appear to be significantly lawyer-driven, while court efforts to attain appropriate control over its own business remains limited and reactive, rather than proactive.

Overall, most case management efforts in the Irish courts today appear to focus on encouraging mediation and early settlement at every stage of the case process. While valuable, without effective limits to adjournments and multiplicity of interlocutory hearings these efforts may not reap all the desired results. Except for the recently introduced timelines for judgement delivery at the Court of Appeal, no time standards exist. At the same time, cases are not triaged by complexity or level of dispute, and small claims proceedings could be further adapted to the needs of those who might be interested in faster and less formal proceedings. The plans for a different approach to be tested in the planned family law courts may include triaging cases to develop a more accessible, user-oriented system linked to family services (Courts Service, 2021[6]).

Despite all efforts in place so far, there is a growing backlog of cases to be heard at all court levels that accumulated before the COVID-19 pandemic, and has increased since. The full dimension of this backlog is unclear, as is the number of cases held back by litigants due to the pandemic.

International indicators of court performance are regularly gathered by international organisations, such as the European Scoreboard, (European Commission, 2021[7]) the Efficiency of Justice Report by the European Commission for the Evaluation of Justice (CEPEJ) and the World Bank’s Doing Business Report,1 which will soon be relaunched in a different format.2 These indicators show room for improvement in the efficiency and quality of service at Ireland’s courts. They continue to recommend that court proceedings in Ireland are made more affordable and speedier, and they highlight that courts require further support of IT solutions and modern case management approaches. While these international data collection efforts have their own limitations and must be viewed with a clear understanding of what they relate to within the context of a country, they can provide a useful barometer of the state of a country’s court performance in the international context.

6.3. Distribution of responsibilities between the judiciary and court administration

It is globally acknowledged that effective court administration, including case management, hinges on a successful partnership between the judiciary and those responsible for the administration of the courts (Martin, 2014[8]; UNODC, 2011, p. 40[9]). Nevertheless, challenges in the distribution of responsibilities between judges and those responsible for court management continue to exist in many countries. The key is to know where the action of “judging” begins, and where the action of “administering” ends (Cadiet et al., 2012[10]).

As pointed out by Lord Justice Thomas, former Lord Chief Justice of England and Wales, in his review of court governance systems for the Council of Europe, the distinction between matters of judicial responsibility and matters of administration was “never clear cut and there has been no success in drawing the line”, which is “a factor which has to be considered when deciding whether administrative services can be provided to the judiciary which are not ultimately answerable to the judiciary as opposed to the executive” (European Commission, 2021[7]). This becomes particularly important when the entity responsible for administration is either part of the Ministry of Justice, as in England and Wales, or created as an independent body governed by a board, even one with a majority of judges. The latter is the case in Denmark, Ireland, Norway and Sweden. However, these countries have very different appointment and governance structures that can impact judicial independence, and therefore require clarity in the distribution of responsibilities, especially for case management functions and related staffing.3

An article written by the former Chief Justice of Western Australia, Wayne Martin, provides an interesting summary of the evolution of court administration going back to the 18^th and 19^th centuries, a time when the judiciary in Britain controlled the administration of the courts. He outlines a step by step approach to clarify the roles and responsibilities of the judiciary, and court administration tasks that can be easily adjusted to any jurisdiction (Martin, 2014[8]).

He also pointed out that while the division of responsibilities is easy to determine for some functions, in many cases it has to be expressly established:

The adjudication of a case after trial is the responsibility of the judiciary, and nobody would suggest that the judiciary should take responsibility for the engagement of cleaning contractors or the acquisition of pens and paper. However, there are many areas between the two ends of this spectrum in which the allocation of responsibility is far from clear (Martin, 2014[8]).

In Australia, Chief Justice Martin then provided assessments of a judicial versus an administrative function for most of the key case and court management responsibilities performed in a contemporary court. The topics addressed were not meant to be exhaustive, and addressed policy setting responsibility and implementation for:

• accepting or rejecting documents filed at court

• case file maintenance and management

• the administrative disposition of cases

• allocating cases to judicial officers

• data collection and analysis

• effective utilisation of information technology

• budget management

• designing, constructing and maintaining court buildings

• recruiting, supervising and retaining court staff

• the development of policy with respect to court administration and procedures

• managing the relationship between the judiciary and court users.

Similar to previous literature, his analysis suggests that all these important functions must be regarded as a joint responsibility of the judiciary and the administration if they are to be effectively performed.

In this regard, there appears room to create stronger synergies and improve co‑ordination among key stakeholders in Ireland across most of the areas analysed related to the above-listed topics that directly impact the efficiency of the work of judges and the courts overall.

While further study would be required to assess the reasons underlying difficulties in co‑ordination in Ireland, preliminary findings point to a combination of insufficient human resources within the judiciary and Courts Service, a need for additional investments in training and education to advance modern case management approaches informed by data, and the need for updates in IT and other infrastructure.

Differences in understanding among Courts Service staff regarding their roles with respect to that of judges were also found. In particular, while the Courts Service was created as an independent organisation led by a board with a majority of judges, it appears to understand itself as closer to the executive. In this regard, there appears to be a need for the board to clarify its relationship with the judiciary and the executive.

Some of these differences in understanding may result from differences in interpretation of the existing legal framework for the Courts Service. Section 5 of the Courts Service Act, 1998 states: “The functions of the Service shall be to: (a) manage the courts, (b) provide support services for the judges, (c) provide information on the courts system to the public, (d) provide, manage and maintain court buildings, and (e) provide facilities for users of the courts (Government of Ireland, 1988[11]).” The precise meaning of points (a) and (b) mean is open to interpretation.

The 2019 Review of Courts Service (Courts Service, 2019[12]) also reflects the unclear determination of responsibilities of the Courts Service in relation to the judiciary, and what court and case management exactly relate to. The report highlights that:

The Courts Service, through its offices in the Supreme Court, Court of Appeal, High Court, Circuit Court and District Court, together with the support Directorates established as part of the management structure for the Service, has responsibility for the management of all aspects of court support activities with the exception of judicial functions which are a matter exclusively for the judiciary (Courts Service, 2019, p. 10[12]).

The report states that the focus is on:

The organisation [Courts Service] tasked with managing the courts and thereby playing its part in facilitating access to justice – and not the Courts System – how justice is administered. Thus, the conduct of the Judiciary within their own courts, including decision-making, waiting times and case throughput, fall outside the remit of this review, reflecting the independence of the Judiciary as prescribed in the Constitution (Courts Service, 2019, p. 19[12]).

Over the course of evidence gathering, “stakeholders raised concerns about access to justice, drawing particular attention to matters around delays, costs and complexity. However, for its part, the Courts Service pointed to the constitutional independence of judges and to the limits of its own statutory remit to effect change on its own in relation to these matters” (Courts Service, 2019, p. 15[12]). In response, the first recommendation provided in the report is:

The Courts Service’s Board needs to exercise a much stronger strategic role on matters relating to access to justice and the effective operation of the Courts Service. That will include the Board overseeing the development of a strategic framework that would capture the long-term vision, goals, objectives and outcomes for the Courts Service along with a supporting action plan, implementation roadmap, and resourcing plan (Courts Service, 2019, p. 17[12]).

A range of activities have been undertaken in response to this review. A new strategy has been published, and several implementation plans to respond to key recommendations, as well as a comprehensive ITC strategy, have been developed. In this context, the promotion of activities around the essential topic of case management would support a clarification of responsibilities and establishment of processes regarding how to improve related capacities to effectively address issues such as delay, backlog and complexity. A specialised committee or group within the Courts Service’s internal structure, or on the Courts Service Board, to focus on case management or overall court performance would help to develop overall policies and drive needed changes in this area. Court and case management is a central topic assisted by a related committee for the institutions that support court and case management in jurisdictions such as Scotland (see Box 9.1 below), the Netherlands4 and most US states.5

The second report of the Working Group on a Courts Commission, focusing on case management and court management and developed to inform the creation of an entity that ultimately became the Courts Service, made a clear distinction between administrative and judicial case management, stating: “administrative case management is essentially concerned with the manner in which the administrative infrastructure of the Courts system carries out its tasks. This aspect of case flow management is to be distinguished from judicial case management” (Government of Ireland, 1996[13]). It seemed clear to the commission at that time that the administrative entity had to have certain responsibilities to ensure that cases move efficiently from filing to disposition.

The relationship between those responsible for the administration of the courts and the judiciary is often challenging, such as in the United States, where administrative bodies are part of the courts. However, here it is understood that collaboration is essential and in the interest of both partners in their efforts to achieve their shared goal – the effective and fair delivery of justice for all. Research has provided additional evidence demonstrating the importance of a collaborative environment to ensure that courts can and do perform well (Ostrom and Hanson, 2010[14]). 6.4 Advancing strategic case management approaches in Ireland

Modern court and case management recognises that timely case disposition alone is no longer enough to ensure that cases are processed efficiently and in a way that ensures all can access the courts, while still upholding the quality of processes and decisions. In practice, this requires justice sector leadership, including the judiciary, to establish what its overall goals are for court and case management, and then develop in collaboration with all relevant stakeholders solutions for how they can best by accomplished.

The Federal Courts in Australia have set out a National Court Framework and detailed the key objectives for case management (see Box 6.1).

Box 6.1. Case management: The National Court Framework (NCF) of the Federal Courts of Australia

The NCF is a fundamental reform of the court and how it operates. Its key purpose is to reinvigorate the court's approach to case management by further modernising its operations so that it is better placed to meet the demands of litigants and can operate as a truly national and international court.

The overarching purpose of civil practice and procedure and case management within the individual case list system is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.

The parties and their lawyers are expected, and have a statutory duty, to:

• Co-operate with the court and among themselves to assist in achieving the overarching purpose.

• Identify the real issues in dispute early and deal with those issues efficiently.

The goals of the NCF are to:

• Organise and manage nationally the whole of the court's work by reference to the great subject matter areas of the court's work.

• Organise the court's resources to meet the demands of the broad range of work done by the court.

• Develop the confidence of the profession and the community, particularly in areas requiring a degree of specialised skill and knowledge.

• Broaden the base of judicial knowledge and experience in the court.

The key objective of case management under the NCF is to reduce costs and delay so that there are:

• Fewer issues in contest.

• In relation to those issues, no greater factual investigation than justice requires.

• As few interlocutory applications as necessary for the just and efficient disposition of matters.

The court's national practice notes set out the arrangements for practice, procedure and case management within the court. These practice notes are a central part of ensuring a nationally consistent approach to case management and making the court more streamlined and efficient.

Source: (Federal Courts of Australia, n.d.[15]), Case Management under the National Court Framework, https://www.fedcourt.gov.au/about/national-court-framework/case-management.

To ensure the development of effective case management that meets the needs of different case types, court levels and parties, a range of activities can be undertaken.

Collaboration among judges, relevant Courts Service managers and staff needs to be generated across all court levels to begin developing the overall direction for case management and clarifying roles. Successful co‑operation should be underpinned by a clear vision established by the leadership, including Court Presidents. In other countries this has often taken the form of working groups, as part of a judicial council or separately. There are several governance approaches that can work effectively, as long as they can secure the necessary buy-in and staff support.

In Ireland, a working group would first establish the overall strategic direction for case management, aligned with the Courts Service strategy and with the national objectives for the judiciary. The reflections from the group could be used as basis to focus on setting the overall goals for case management and policy setting for functional responsibilities.

Collaborative groups could also be created at each court level to systematically outline functional responsibilities, which could then be adopted by the Courts Service Board, for example. With this roadmap, collaborative groups can identify the major processing issues and develop priorities for applying different case management techniques, further streamlining, data requirements, and the availability and need for staff, IT and other resources. The range of information and resources provided in this report may be helpful to begin such a process. The resulting recommendations may be pilot tested and assessed before a wider roll out is attempted, and provide the basis for well-supported shifts in resources or requests for further investments.

An example of a comprehensive strategic approach to improve case management options and create the capacities needed locally is the Better Case Management approach implemented to enhance the management of criminal cases in the Magistrate and Crown Courts in England and Wales (see Box 6.2).

Box 6.2. England and Wales – Better Case Management (BCM)

The BCM forms part of the implementation effort resulting from a Review of Efficiency in Criminal Proceedings. It is based on the overarching principles or themes of the review:

• getting it right first time

• case ownership

• duty of direct engagement

• consistent judicial case management.

The overarching aims of BCM are:

• robust case management

• reduced number of hearings

• maximum participation and engagement from every participant within the system

• efficient compliance with the Criminal Procedure Rules; Practice and Court Directions.

BCM supports Transforming Summary Justice1. Beginning in 2016, BCM introduced two major case management initiatives: 1) A uniform national Early Guilty Plea scheme; and 2) Crown Court Disclosure in document-heavy cases.

To ensure effective implementation, a “road show” has been developed and rolled out to the relevant local jurisdictions. In addition, local implementation teams have been created, along with a comprehensive implementation package that provides a set of core documents to assist teams in training judges and court staff, adjusting their own operations, and implementing the changes into their work to deliver BCM and the Digital Case System (DCS) in their circuits. Similar efforts for the local police and prosecution service are also under way.

These initial efforts were seen as a first step in ongoing reform efforts. They are based on core principles and goals and involve detailed process rules and practice directions.

1. The Transforming Summary Justice initiative was adopted by all England and Wales criminal justice agencies from June 2015. Its aim is to reform the way that criminal cases are handled in the magistrates’ courts, and to create a swifter system with reduced delay and fewer hearings. If it is successful, it will reduce the amount of distress that victims and witnesses suffer during the court process. More information available here https://www.justiceinspectorates.gov.uk/hmcpsi/inspections/transforming-summary-justice/.

Source: https://www.judiciary.uk/publications/better-case-management/ Judiciary of England and Wales (2018), The Better Case Management Handbook, available here https://www.judiciary.uk/wp-content/uploads/2018/02/bcm-guide-for-practitioners-05032018.pdf. Further information on the Courts and Tribunals Judiciary website https://www.judiciary.uk/publications/better-case-management/ [accessed in August 2022].

6.3.1. Advanced case management options

Case management generally refers to a set of principles and techniques that enhance processing efficiency, thereby reducing delays and case backlogs and encouraging better services from courts. Case management promotes the early court control of cases, and active court management of the progression of cases from initial filing to disposition across all court levels. It facilitates case coordination between different courts involved where there are separate criminal and civil law implications arising from the same incident to ensure seamless procedures for litigants. It also provides for greater predictability of court events, which can increase public trust, and increases the transparency and accountability of courts due to greater adherence to standardised processing steps and better reporting capacities.

Although courts have differed in how they apply case management concepts depending on their own needs and local legal culture, courts across the globe have applied standard principles to manage cases efficiently. These have evolved into a general set of case management techniques. The underlying principle is that, in compliance with the guiding procedural codes, the court, and not lawyers or litigants, should control how each case will be processed through the system to ensure that it is efficient and fair for the parties.

To develop meaningful rules for implementing case management, courts first need to review their own operations and then define performance goals and measures, such as creating timelines for processing cases that follow acceptable time standards for different case types and processing steps. Work practices should subsequently be adjusted to be more efficient and to better meet these goals.

Such changes require different and more consistent administrative actions from court staff, as well as changes in the judge’s role in the process. The following case management techniques can be applied in combination based on the court’s needs and capacities, and should continue to be adjusted as needed (Gramckow and Nussenblatt, 2013[16]):

• Timelines for key case processing steps, such as from filing to notification, from notification to first hearing, etc. These timelines should differ by case complexity to focus resources on the processing needs of cases to achieve timely solution without sacrificing fairness and quality. Such timelines will allow for some flexibility by case type and for special circumstances. Ideally, they are also combined with certain enforcement measures, such as fines or even case dismissal to ensure discipline among all parties involved.

• Firm and credible hearing dates and limits to the number of hearing adjournments, meaning that the court establishes and publishes hearing dates, as well as rules and policies that limit adjournments to a few, well-justified situations, and enforces its own rules within a reasonable margin of discretion.

• Pre-trial and scheduling conferences to narrow down contentious issues and evidentiary questions before the trial, while discouraging unnecessary pre-trial motions or other delay tactics. These need to also be used to set submission timelines and clarify submission needs so that all parties understand what information needs to be provided when, and what each party is expected to do at each processing stage.

• Early disclosure requirements and limits to late submission of evidence to ensure that both parties are aware of the evidence that will be presented, and that available evidence is not held back to delay the trial.

• Alternative dispute settlement processes that may encompass a broad range of options, such as mediation outside the court or as a court-annexed function, arbitration, and the establishment of small claims courts. For criminal cases, this can mean the introduction of case deferrals pending completion of a condition and certain forms of negotiating charges and sentences via plea agreements.

• Summary judgements and similar forms of no contest processes that allow courts to make a decision without a trial, often based on written statements and without evidence presented for the record when there is no dispute as to the facts of the case and one party is entitled to judgement as a matter of law.

• Differentiated case management (DCM) processes that provide multiple tracks for case disposition with differing procedural requirements and timeframes depending on the complexity of the case type. The courts then continuously monitor case progress to ensure adherence to track deadlines and requirements and establish procedures for changing the track assignment if needed.6

Case management also means that the court develops the operational policies and tools to guide and adhere to new procedures, assesses and adjusts resource needs to effectively manage cases, monitors performance and outcomes to assure quality and justice, and effectively communicates processing standards and requirements internally and externally.

Different case management options are needed depending on court and case needs, and a combination is usually what most courts need nowadays. Case management teams are often best placed to suggest which cases can most benefit from special fast tracks, and which require extensive, step-by-step management involving a judge. They can also assess which case types represent such a wide range of simple and complex cases that a special DCM process should be created to handle them (see for example Box 6.3).

Box 6.3. Montgomery County Circuit Court: Differentiated Case Management (DCM)

Most cases filed in Montgomery County Circuit Court are not just categorised as criminal, civil, family or juvenile cases, but processing tracks are established within each of these major case categories. The court developed DCM plans for each of these major business groups and published information on its website about how the case management system for the Montgomery County Circuit Court works. The processing of each case type and the assignment of cases to a specific “track” are solely within the discretion of the Administrative Judge.

Every effort is made to update DCM plans to reflect legislative, rule and policy changes. The office is managed by a DCM co‑ordinator who assists litigants with questions regarding the DCM plans, track assignments, or the policies and procedures contained within each plan. They also ensure that cases are handled accordingly.

Source: (Montgomery County Circuit Court, n.d.[17]), Differentiated Case Management (DCM) Office, https://www.montgomerycountymd.gov/cct/departments/dcm.html.

Some of the earlier recommendations for case management that could be considered by such court level teams are:

District Courts: New options for small claims solutions, including ODR offers; timelines for a strict fast track process for less complex cases; creation of a special Traffic Court.

Circuit Courts: Development of triage options for family cases.

High Court: Development of triage options for chancery and/or other cases; promoting more intensive case management from the early stages for Commercial Cases.

Court of Appeal: Development of an automated tracking system for judgements; development of timeline for other cases; creation of appeal review teams; review case process for streamlining options.

Court-level case management teams could be created to design and monitor overall case management approaches for all or selected case categories. Other case management options could be applied by teams reviewing and processing an individual case (see Box 6.4 for a range of case management team examples).

Box 6.4. Case-type specific case management teams

Miami, the 11th Judicial Circuit Court of Florida, has implemented the Civil Justice Improvements (CCMT) Pilot Project. This pilot is comprised of four management teams consisting of one judge, one case manager, a judicial assistant and a bailiff, each with specific case management tasks.

Judges of the CCMT handle tasks requiring judicial knowledge, such as conducting hearings, case management conferences and ruling on substantive motions.

Case managers, who have a legal background, assess cases and provide recommendations to the judge for the next appropriate steps to address any management issue arising from the case, reviewing substantive and dispositive motions, recommending rulings and drafting case management plans, highlighting legal issues, and ensuring proper co‑ordination among the team.

Judicial assistants handle the general hearing scheduling, monitor compliance with court orders, and prepare certain hearing and court documents and orders, while liaising with lawyers and parties.

Bailiffs deal with case intake, assign tracks or pathways for cases, and undertake courtroom preparation.

The pilots resulted in a significant decrease of delays, higher closure rates and reduced time to disposition. This reduction in case length contrasted with an increase of case events (hearings and conferences). The effort to design a methodology to evaluate the initiative by controlling for cases processed under the pilot was a key component of the project.

Piloted in 2015 in New South Wales, Australia, the Rolling List Court (RLC) is a case management model for criminal matters in District Courts that aims to discourage last-minute guilty pleas, better communication between parties, improved pre-trial disclosure and less frequent adjournments. In ordinary criminal proceedings, interaction between the prosecution and the defence is limited, and judges also hear other matters. In contrast, the RLC consists of a specialised judge who interacts with two prosecution and defence teams. One of these teams prepare for future matters, while the other is at hearings. As a result, almost 60% of cases assigned to the RLC achieved an early guilty plea, compared to 36% for the traditional process. Disposition times also dropped from 364 days to an average of 262 days from committal to finalisation.

The Single Justice Service (SJS) in England and Wales enables magistrates’ courts to deal with minor offences in a way that is quicker, more straightforward and more efficient, while still being fair, transparent and rigorous. A single magistrate, sitting with a legal adviser, can decide adult, summary-only, non-imprisonable and victimless offences (such as speeding, fare evasion or not having a TV Licence). They can do this where the defendant has pleaded guilty or has failed to respond to notification that they are being prosecuted. The defendant always has the option to choose to attend an in-person hearing in court. Most of the needed interactions, notifications, responses and submissions are handled online. As a result, 96.51% of cases resolved without the need for a defendant to go to court, with 87% of users either “satisfied” or “very satisfied” with the service.

Source: (UK Government, n.d.[18]), HMCTS services: Single Justice Service, https://www.gov.uk/guidance/hmcts-services-single-justice-service. (Hamblin and Hannaford-Agor, 2019[19]) https://www.ncsc.org/__data/assets/pdf_file/0013/26230/cjipp-final-evaluation-report.pdf; (Rahman, Poynton and Weatherburn, 2017[20]) https://www.bocsar.nsw.gov.au/Publications/CJB/2018-Report-The-NSW-Rolling-List-Court-Evaluation-Fianl-Report.pdf

6.3.2. Backlog reduction measures

Court backlog refers to cases pending before the court for a longer period than the one prescribed. If no timelines are defined, backlog cannot be defined and, more importantly, the actual volume of case backlog cannot be established, even it is clear that too many cases are waiting to be dealt with.

The issue of pandemic-related court backlog has now become a serious concern in many countries, and become a matter of media interest in Ireland and elsewhere.

In addition to mounting caseloads with many cases delayed for several years, the Courts Service has identified 87 206 outstanding summonses awaiting issue. The Courts Service estimates that it will take approximately 40 weeks (almost a full year) to address this task, which in turn affects court case completions. Some 114 000 outstanding fine enforcements are awaiting issue, and the pandemic continues to take its toll: at the end of March 2022, the District Courts had to cancel all hearings for two weeks due to many judges and registrars being sick or having to quarantine.

Requests for special courts to hear lengthy childcare and family law cases, help with hearings of backlog in districts and help with overloaded lists currently cannot be addressed at any court level. To address this issue, several OECD countries such as Canada, most EU countries, all UK nations and the United States have launched special teams to deal with backlogged cases. The Irish courts would benefit from this measure if it were possible through additional judicial and staff resources.

In an emergency situation, such as the one courts everywhere are facing as a result of the COVID-19 pandemic, bringing in additional judicial and other staff resources could be a solution to keep the courts functioning and to address the ever-growing backlog, as long as necessary guarantees of independence can be secured (see for example Box 6.5).

Box 6.5. Backlog reduction in teams in the Netherlands

The Dutch courts created a central backlog team, known as the “flying brigade”, which is a special task force helping courts to reduce backlog in civil and municipal divisions. Once cases are received, judges and court staff within the chamber prepare draft decisions that are then sent back to courts, providing the latter with more time and resources to hear pending cases or dispose of those with pending decisions. In addition, courts can assign cases to other, less busy courts.

Source: Information shared by the Netherlands, August 2021.

Other ways to tackle backlog, not related to emergency situations, have successfully been applied in other countries as a general case processing measure to manage cases effectively. These additional activities are important to address the current accumulation of cases and to build a long-term response to strategic backlog reduction and prevention.

The first measure can be implemented almost immediately at a limited cost, and involves defining backlog for different case types and by court level. Judges are often best placed to define these metrics. Then, with support from other legal staff, which can include temporary support, cases should be screened to identify gaps in information and outstanding submissions, needed legal research should be conducted, case summaries compliled, and an initial drafting of judgements provided to help judges decide faster. If combined with a pilot to triage selected case types, or at least to provide a fast track, some cases can be moved ahead that would otherwise linger in the system.

The National Center for State Courts in the United States has outlined 12 steps that courts can take to address and manage a backlog situation that cannot be resolved in a short period of time, even when additional judicial staff resources, temporary and permanent, are approved (National Center for State Courts, 2020[21]). Case-level teams in Ireland could review these to see which could be applied in their jurisdictions:

1. Provide information for litigants early, often and in an accessible way.

2. Ensure that traditional paper notifications accurately communicate details about scheduled court hearings

3. Triage existing cases and all new cases upon filing.

4. Embed flexibility into the triage pathways.

5. Get the cases that need judicial attention in front of a judge as soon as possible.

6. Engage judges and court staff in standardising processes to manage the entire civil caseload, including processes to monitor and incentivise effective case progression.

7. Put in place case scheduling orders, communicate deadlines to the parties and monitor compliance with case processing guidelines.

8. Compel lawyers and parties to communicate with each other and attempt to address procedural disputes without formal court involvement.

9. In high-volume case lists, provide procedural opportunities and resources for parties to reach resolutions.

10. Delegate essential case processing tasks to those who benefit most from their timely completion.

11. Embed meaningful deadlines for essential case events to ensure that cases continue to move toward final disposition.

12. Employ meaningful court hearing schedules as a substitute for firm trial dates to keep cases moving despite COVID-related delays.

Despite these helpful initial steps, without additional judges, the current volume of backlog cases may remain difficult to tackle, and likely take years.

In the long term, the Irish courts could aim to have clear backlog definitions for different case types at every court level that would need to be reviewed regularly as legislation and processing conditions change. In addition, Irish courts may continue to draw upon temporary judicial and other staff resources as needed to address temporary shortages, under specific circumstances and providing safeguards to ensure judicial independence. Finally, they may also put in place a strategy to arrive at a point where the collected data, systems and processes in place enable the identification of delays early on to adjust resources accordingly.

This would also mean implementing an IT system for judges to track the pending inventory of their cases. The system in place in several courts in Finland provides a helpful example of how such a system displays the pending caseload. This can be designed to be visible to the presiding judge and select court administrative staff as needed, as well as individual judges to track their own cases (see Figure 6.1). Similar data tracking, dashboards and displays are offered by major international court IT software companies.

Figure 6.1. Online pending inventory control and time-frame alarm-system in Finnish Courts

Source: (Finnish Ministry of Justice, 2011[22]), New way of systematic management of delay reduction projects in courts: Combining external expertise and internal participation, http://rm.coe.int/new-way-of-systematic-management-of-delay-reduction-projects-in-courts/16807931da.

6.3.3. Case file management and policies

Case file management is a seemingly purely administrative matter, but it is essential to the integrity of court operations and decisions. How well case files are structured and maintained, how clear and detailed related laws, policies and rules are, how well administrative staff are trained in such, and what control mechanisms are in place all impact the efficiency of court processes, including the operations of judges and their decisions, and can affect appeal rates.

The case file establishes the official record of the case. Files should be complete and easily located by registrars and judges to ensure the appropriate pace of justice and of the decision-making process. The structure of the case file and completeness of the information entered will also become relevant when designing an automated court and case management system. Such a system would help to ensure comprehensiveness; however, if rules, policies and current management practices to ensure completeness are lacking, there is a high chance that the related automated system will also be lacking.

Throughout the workload study, some stakeholders mentioned occasional challenges in ensuring file completeness. Occasional gaps in documents in paper files are not unusual and not a concern, unless found to be systemic. Many courts have set standards for case file management that generally cover issues such as retention and disposal policies, access to records, disaster planning, response, and recovery, creation, filing, maintenance and retention.7 In the context of this study, the Courts Service indicated that no such standards are yet established in Ireland. While some standards may be covered in Irish legislation and court rules, there appear to be some gaps in implementation that could be due to limited details or clarity in how the required procedures are outlined. The establishment of these guidelines, together with regular file completion checks and related training, may be useful tools to consider.

6.3.4. Court specialisation

Specialisation is globally considered important to create a more efficient and effective court system. It can also be useful to address broader economic development issues, such as the need for more effective access to contract dispute litigation, improvements in the investment climate or more adequate protection of the environment. Specialisation can refer to judges who have gained particular expertise in a selected field and are assigned almost exclusively to related cases, a special bench of judges dedicated to handling only certain types of cases, or an entire court set up to handle only a targeted type of cases (Gramckow and Walsh, 2013[23]).

All of these types of specialisation exist in the Irish courts and, with the development of the new Family Court divisions, will continue to develop. These include the Drug Treatment Court, the Commercial Court list and other lists focusing on certain case types only, especially at the High Court; and in the future, special Family Courts. There is still room to explore other specialisation options, such as a special Traffic Court in Dublin. The limited data collected for this study indicate that this could be a helpful option, but a more detailed assessment would be needed to design an effective approach.

Specialisation is not always designed to create greater processing efficiency, but rather greater effectiveness in achieving a justice goal. For example, the main goal of the Special Drug Treatment Court in Dublin is to link addicted offenders to the right treatment options and other services to help address the underlying addiction, lack of access to work opportunities, etc., thereby reducing recidivism in the long run. The new Family Court divisions currently being developed shift and expand current family law operations at the District, Circuit and High Court level. The aim is to increase judicial expertise and training in family law, and to streamline family law proceedings to make them more user-friendly and less costly (Department of Justice, Ireland, 2021[24]). This should lead to more timely and more effective access to justice for families. To ensure the achievement of this objective, processes would need to be adequately adjusted, together with the needed judicial and other resources within and outside of the court system.

When special courts or lists are created, it is important that data are available to understand if specialisation is justified by a sufficiently large number of cases of this special case category, and to test if the main goal of the specialisation can be achieved. Studies from Australia, the United States and other countries have shown that specialisation can be helpful in improving the processing of cases if the new approach is well designed, but that there are some drawbacks. For example, special attention to, and the allocation of additional resources for, handling business cases can lead to the perception that a court provides preferential services to the business community, but not to the average person. In some instances, special courts or specialised judicial positions have been created when the caseload did not actually justify the additional investment, raising questions as to whether the resources could have been better spent on improving overall court operations. In other cases, it was noted that judges who work on only one type of case may develop a deep but narrow expertise that may limit their focus and lead to a restricted view of the law, which may in turn lead to a reduced ability to consider new legal and societal trends reflected in other areas of the law. Judges may also develop too close a relationship with a particular group of lawyers and interest groups involved in special case types, especially if those groups are relatively small and if judges serve in this special capacity exclusively and for an extended period (Gramckow and Walsh, 2013[23]).

Solid data collection to assess the creation of the new family courts would be equally important to ensure that the design meets the expectations, and to inform if and where adjustments may be needed. Lessons learnt from the creation of the specialised personal insolvency positions have shown how important data are and the limitations that a strict position designation brings. For the Family Court, the Irish courts can build upon the experiences of many other courts in countries that have successfully implemented comprehensive family courts, such as the earlier example from Baltimore County (Box 4.15 in Chapter 4).

Box 6.6. Court specialisation to address different case and litigant needs

The Courts and Tribunals Service in England and Wales launched a Financial List in 2015 for financial matters between businesses to provide a “mechanism for authoritative guidance before disputes have arisen”, and to increase timely access to the courts. Claims of GBP 50 million or more, or those requiring special market expertise, are allowed on the list, and parties issue their claims in the Commercial Court or Chancery Division. Twelve judges, who normally preside on matters in the Chancery Division or Queen’s Bench Division, are available to hear these cases. The judges have financial experience and keep authority over a case from beginning to end. The procedures used are the regular Commercial Court and Civil Procedure Rules, so that the process is familiar to the parties. In addition, as part of the Financial List the court is piloting a Financial Markets Test Case Scheme for cases that need immediate guidance under English law, or that are in the public interest (See (Judiciary UK, 2021[25]).

In the Netherlands, the District Courts operate a Patents Chamber, a division specialised in intellectual property cases. This division uses an expedited procedure with strict case management timetables, and limits written pleadings from parties to only one round, with the possibility of a hearing if necessary.

In Canada, federal judges specialised in family law sit on Unified Family Courts (UFCs), which exist in several Canadian provinces. In the absence of a UFC, some family law matters fall within the jurisdiction of provincial or territorial courts, while other family law matters fall within the jurisdiction of superior courts. Where a UFC exists, jurisdiction over all family law matters is consolidated in the superior court in that province or territory. UFCs allow families to resolve legal issues in a single court with specialised judges, rather than in two separate court systems.

6.3.5. Timelines and performance measures

Performance measurement is a tool to promote effective judicial governance and accountability, and therefore help protect institutional independence. Court leaders are accountable to both the judiciary and the public for a well-run court, which means that the judiciary, supported by administrative staff, must be able to both effectively measure and understand court and case performance issues, and demonstrate successes and room for improvement.

The judiciary often relies on this aspect of court management, as does the public, to ensure optimum court performance.  Ensuring accountability, measuring performance and applying performance measures to court practices are concepts that have been applied in courts around the world for several decades, and continue to evolve. One of the earliest were the Trial Court Performance Standards developed in the United States (National Center for State Courts, 1997[26]), which evolved into the now widely applied ’CourTools‘ (National Center for State Courts, 2017[27]). The Framework for Court Excellence developed by the judiciary in the Netherlands follows a similar approach (Rechtspraak, 2008[28]), as does the performance measurement system established by Danish Courts, although this has a more limited range as it measures the four overall goals set for the courts (Danmarks Domstole, 2022[29]). In the United States, Principles for Judicial Administration have also been developed (National Center for State Courts, 2012[30]). 

These documents provide a solid foundation to help court leaders measure and manage performance. Court leaders must be able to apply them to move from performance measurement to performance management (CORE, n.d.[31]). This means that they must have the time and knowledge to lead the design of a performance measurement approach, followed by its implementation, application and future adjustments. What needs to be measured and how depends on the specific context and environment in which a court operates.

Article 6 of the European Convention on Human Rights states that “everyone is entitled to a fair and public hearing within a reasonable time” (Council of Europe, 1950[32]). This objective must be pursued through the development of tools, policies, procedures and actions throughout the justice chain, including policy makers, judges, court personnel, lawyers, justice system users and other stakeholders.

Timelines or time standards are one of these tools. The length of judicial proceedings is one of what can be defined as a “trilogy” of goals for judicial systems, whose functioning should be: fair, affordable and in reasonable time, but they have proven useful to assess court operations and policies. Setting timelines is a fundamental step to start measuring and assessing case processing performance and defining backlog.

The CEPEJ has developed a range of timelines for courts in EU member countries to adopt and aim to achieve in progressive steps. The set outlined as Timeframe A states the overall objective all courts in member states should achieve with all proceedings (Table 6.1).

Table 6.1. CEPEJ Timeframes A

Timeframe A for civil contentious cases and administrative cases

90% or 95% of all civil contentious cases and administrative cases should be disposed in 18 months from the date of their filing.

Buffer

5% or 10% of very complex pending civil and administrative cases could be older than 18 months from the date of their filing.

Timeframe A for criminal cases

90% or 95% of all criminal cases should be disposed in 12 months from the date of their filing.

Buffer

5% or 10% of very complex pending criminal cases could be older than 12 months from the date of their filing.

Source: (CEPEJ, 2016[33]), Towards European Timeframes for Judicial Proceedings: Implementation Guide, https://rm.coe.int/16807481f2

These initial timelines suggested by the CEPEJ are considered the minimum that countries should be able to achieve. Most importantly, to report correctly countries must have the systems in place to track cases and report on disposition times (i.e. from filing to final judgement).

The Scottish Courts provide an example of an advanced level of court performance measures. The Scottish Courts and Tribunals Service (SCTS) Board is responsible for monitoring the overall performance of the organisation as part of its governance role. On a quarterly basis, the board assesses progress against delivery of the Annual Business Plan and a range of key performance indicators (KPIs) that provide an overview of performance. These are presented to the board in its performance scorecard. The SCTS has a set of 18 KPIs that are being tracked. While several measure overall performance goals of the SCTS, others measure what are understood as core court performance measures, especially 2(b) Disposal of summary criminal cases within 26 weeks, 5(a) Sheriff Summary criminal waiting periods, 5(b) JP Summary criminal waiting periods, 5(c) Ineffective use of court time, 5(d) Court business waiting times (non-summary), and 5(e) Effective tribunal operations (Scottish Courts and Tribunals Services, 2018[34]).

Beyond the creation of timelines, the next level of court performance measures, such as those used in Scotland, are also present in the abovementioned International Framework for Court Excellence and CourtTools. Both also provide clear explanations for adjusting to a particular court environment and for implementation, including training, that could be helpful to the Irish courts. Other resources are available from the CEPEJ (CEPEJ, 2015[35]).8

Actual measures of the quality of court performance are more difficult to develop, as quality in the context of courts is more difficult to define. The CEPEJ has developed quality measures that could be applied across European member states, beginning with identifying areas of quality within the "production process" of the procedure or regarding the substance of decisions made. The CEPEJ working group tasked with this activity points out that in many legal systems, some of this analysis is carried out by judicial inspection bodies or as part of the appeals process, and states that its activities will rather look at compliance with the rules and obligations applied to the judiciary (CEPEJ, 2016[36]). Other efforts have taken a different direction, aiming to define “quality” in terms of procedural fairness.

Both the International Framework and the CourtTools provide models with some measures of quality of processes that are less controversial and easier to implement over time.

6.3.6. Use of data in the Irish courts

The efforts carried out as part of this OECD study have shed light on several gaps in the availability of data within the Irish courts. The lack of data impedes effective management and future planning for the courts, which has made developing the infrastructure for a solid data framework a core element of the Courts Service’s modernisation strategy. Similarly, the Criminal Justice System also faces data limitations, with available data being siloed and unable to track flows of cases, incidents and citizens in and out of the system. This urgently needed framework could have a significant impact on effective and efficient case management and evaluation of practices in Ireland.

The reason for the limited amount of data currently collected seems to hinge on the fact that data are not collected or used for the purposes of case and court management, but rather only for annual reports. While valuable, this limited use has created gaps that mean neither the Courts Service nor the judiciary have the data needed to effectively manage staff (and other resource) allocation, assess case trends and their impact on operations, etc.

For instance, the available data and discussions with Irish stakeholders indicate that in several court business areas, the number of cases at hand, otherwise referred to as pending cases, has increased at a higher rate than the number of incoming cases for several years. Effective data strategies would have reflected this continuously increasing backlog and would have triggered a review to understand the underlying causes and respond accordingly. Differences in case definitions, unclear terminology and data gaps for important measures have also been identified during this study. The Courts Service modernisation programme may be an initial platform to address this issue.

Court Presidents use case business lists created by the Courts Service to make judicial assignments and plan for the next term, which may also explain why the count of court sittings is cited as the measure of court business volume by the Department of Expenditure and Finance.

Several specific areas related to data collection and use are analysed in the following sections.

Specialisation and training for staff in the area of data

The successful completion of the Courts Service’s modernisation strategy will require judges to be significantly engaged in the process of developing the data requirements. This is understood by the Courts Service and there is recognition and great willingness to engage on the part of the judiciary. To ensure that judges can engage effectively, judicial resources would need to be set aside and those participating may need some preparatory information and insights as to what data are used by other courts, especially judges in other countries, to help them in their day-to-day work and to plan ahead.

Creating the capacities to ensure widespread support for the development of new data requires significant work and time. A data maturity assessment was undertaken to inform the development of the Courts Service data strategy, and showed a range of serious data issues in every assessment category (Courts Service, n.d., p. 12[37]). Given that a significant challenge is recognised, much work and investment remains ahead. The Courts Service will require sufficient staff with the capacities to analyse the data and develop the needed management reports, as well as to track current processes, identify where issues occur and assist with informing future adjustments. The Courts Service is currently in the process of hiring staff with such capacities; however, they will need to receive additional training and access to the many available resources to have a solid understanding of modern case management techniques.

As highlighted above, the data strategy would also need to be informed by a clear case management strategy, leadership from judges and likely additional experts. Without this kind of support, developing a more meaningful data concept for the courts could be difficult to achieve.

Data collection and automated IT systems

The current software systems need updates, which hampers the task of collecting better and more reliable data. For instance, the civil and family case data collected by the Courts Service for the two lower courts is supported by many unconnected “systems” based on Lotus Notes. The Progress system developed later for the Superior Courts is a stronger system, but still presents data challenges. One potential reason may be that the software is mainly understood as a case tracking system, not a case and court management system, and that management data needs had not been clearly defined at the time of design. Furthermore, the number of licences do not match the number of registrars in the Superior Courts, which often impedes registrars from regularly entering all needed case information into the system during the day. The system appears to be outdated and fragile and reportedly often becomes blocked following the addition of new licenses. Limited existing data to manage cases effectively would be difficult to be complemented successfully until a solid automated case management is in place. In the meantime, the range of needed case data using international good practices and comparative examples could be used to begin developing an initial map of data needed and management reports.

Consistency in case definitions

Case definitions encountered as part of this study are driven by legal definitions, and do not account for differences in complexity. As a result, it is challenging to distinguish cases that require more time and resources. In addition, while many case processes involve many interim steps of different types, this information is not regularly collected and is difficult to get from the system. As a result, there is no management information for judges to track adjournments, especially by reason. For several case categories, especially at the High Court level, cases reported as resolved “out of court” actually required significant judicial time.

A lack of information regarding important elements that can contribute to longer hearing times has also been identified throughout the study. For instance, there is no information about the number of lay litigants, except at the Court of Appeal level, and there is no information about cases that involved child witnesses or translation and interpretation. As a result of these limitations, the range of less and more complex cases included in each case category makes it difficult to apply expert estimations to establish the time required by a judge to process them. This is especially significant for several civil law categories.

1. Criminal case data are stored in a different system compiled for all court levels, and appeared to provide greater consistency in data definitions and collection with respect to civil law. A good range of data important for tracking case performance and inform management decisions and planning were available; however, the system was not designed to provide such information, and separate reports had to be developed.

The way forward to better collect, analyse and use data in Irish courts

This report and time study provide a range of suggestions regarding the exact data that could be collected for management purposes. A suggested table with data to collect to better assess judicial (and other) resource needs in the future is provided in Annex D, which could be instrumental for judges and Courts Service to develop a plan to ensure that these data are available in the future, and to outline the needed reporting approach. These efforts would benefit from being part on a wider justice data strategy that would enable capturing access to justice indicators, monitoring the impact of reforms, and the development of an open justice data culture in Ireland. The Legal Education Foundation in the United Kingdom has highlighted that ongoing justice system reforms towards digitalisation can be an unprecedented opportunity to scale-up justice data collection and use. Relevant data on access to justice that could be captured includes data on legal needs of the population (OECD-OSJI, 2019[38]); on access to the formal legal system; to a fair and effective hearing; and to a determination and remedies (Byrom, 2019[39]) This would also support progress reporting under the new UN SDG Indicator 16.3.3 on access to justice (OECD, 2021[40]).

Court performance data should be developed after timelines and other performance goals are established for the courts. The most efficient process is often for judges to come together and define timelines, backlog, and other case and court performance measures using similar experiences elsewhere. Courts Service staff would need to be enabled (using current system information and training) to develop some reports that include information for court leadership to track case performance on a monthly basis. Guidelines for the development of judicial statistics for all EU member states are available from the CEPEJ (CEPEJ, 2008[41]).

HM Courts & Tribunals Service of England and Wales lists detailed information on how data are defined and sourced in its courts and tribunals (HM Courts and Tribunals Service, 2022[42]). As part of its work to reform access to justice, an evaluation and recommendation report was drafted in 2019 that outlines data points (page 18) and categories of data (page 25) that should be considered in a data strategy (Byrom, 2019[39]). The Ministry of Justice also released a dataset on Magistrate Court user data as part of the UK’s Data First programme to help future policy making by understanding links between administrative datasets and crime and justice. The dataset is accessible to accredited researchers (ADR UK, 2020[43]).

The National Centre for State Courts in the United States, among others, manages the Open Court Data Standards (NODS), a project that developed business and technical court data standards to support the creation, sharing and integration of court data by ensuring a clear understanding of what court data represent and how court data can be shared in a user-friendly format. The information developed covers all important elements of data management and collection specific to courts and can be adjusted to any jurisdiction (National Center for State Courts, n.d.[44]). Adjustments will be needed, but it is easier to make adjustments to a well vetted and tested set of tools than having to develop everything anew. The NCSC also publishes a guide on data governance policy as part of its Court Statistics Project that may be helpful for Courts Service staff to review for their own purposes. The report emphasises the importance of creating a data strategy for courts as an essential underpinning of the strategy for justice system reform as a whole, appointing individuals to oversee data, and managing data quality and validation. Data can include case management data, bulk data, compiled data and administrative data, and may come in a variety of formats (Court Statistics Project, 2019[45]).

6.3.7. Staffing and training for effective case management

Depending on the court level, staff to support judges in their daily work are limited or do not exist in Ireland. Similarly, the number of Courts Service staff assigned to directly support judges, especially registrars, is low with respect to increasing numbers of judges and hearings, which leaves less or no time to take on other responsibilities, such as support for enhanced case management, data collection and mediation.

Reportedly, there has been no formal assessment of the work or grading of registrars in any jurisdiction since the administration of courts was transferred to the Courts Service when established. Neither have their grades been revisited, except in a minority of cases. The role of registrar in the courts has been reported as mostly the same – namely to be the definitive record keeper for the court, including drafting the necessary orders. None of the registrars take on quasi-judicial roles, except those delegated to the High Court registrars as Deputy Masters. 

The Courts Service provides some case management training to court staff during the initial induction period; however, it was not possible to ascertain if case management in this context means more than a general introduction on how to manage an individual case within each court setting and how to use the diverse, not interconnected, case management systems. In this vein, a study conducted by the European Judicial Training Network (EJTN) indicated an overall lack of specialised training, not only in EU law but also other areas, for court staff in Ireland (EJTN, 2021[46]).

Considering the key role registrars play in ensuring case hearings and other court actions move efficiently, a review of their workload and functions could be useful, especially given the range of changes envisioned to modernise the courts and the need to enhance case management applications. As a positive step in this direction, an open vacancy for a registrar at the Circuit Court level includes the need to be familiar with the modernisation strategy, and envisions that the candidate will be engaged in informing and driving needed change processes (Courts Service, 2022[47]). At the same time, the question remains whether registrars have the time to support and carry out more effective case management options and case processes, as well as the time, knowledge and skills needed to effectively engage and drive the modernisation strategy as it relates to their work environment and responsibilities.

Other staff working in the offices of the Court of Appeal, High Court, and different Circuit and District Court offices tend to face similar situations, with general case management training apparently not available for registrars and other Courts Service staff directly involved in handling court cases.

Importantly, there is scope to enhance awareness of staff in courts and Courts Services of the evolution of and current trends in case management applied in other courts in common law jurisdictions, or in continental Europe. It may be useful to disseminate the available resources from organisations a range of institutions, such as the NCSC, Conference of State Court Administrators (COSCA), CEPEJ, All India Judicial Services (AIJS) and International Association for Conflict Management (IACM) and enhance training on advanced case and court management courses, as well as promote exchange of lessons learnt with similar jurisdictions.

Box 6.7. Court and case management training across countries

The Netherlands

Staff at courts in the Netherlands can opt for continuing education offered by the Training and Study Centre for the Judiciary (SSR), and spend at least 90 hours spread over three years on training, some of which is focused on case management training.

United Kingdom

Across all UK nations, the HM Courts and Tribunal Service offers a comprehensive training programme for staff supporting the courts, including target court and case management offers. In addition, new case management initiatives, such as the earlier mentioned Better Case Management initiative, include related training for staff.

France

Chief clerks receive 18 months of professional introductory training at the National School of Clerks (École Nationale des Greffes, ENG). In addition, the ENG offers continuing education in case management for judicial clerks on civil and criminal procedures, including practical internships to understand the organisation of services and become familiar with the management methods of judicial activity. Case management training was included in the introductory and continuing curricula after a reform in 2013 to pursue four objectives: 1) enhancing the professional identity of the chief clerks; 2) refocusing knowledge on the missions of management and administration; 3) revitalising and decompartmentalising training; and 4) individualising the training course.

United States

Extensive court and case management training resources and offers are available to state court administrators and other court staff from several organisations. For example, the Institute for Court Management offers three levels of certification: the Certified Court Manager (CCM) and the Certified Court Executive (CCE) credentials, and the Institute for Court Management (ICM) Fellows Program. These encompass a broad range of court specific management knowledge and skills components, some online, including an international fellow programme. International fellows can also take advantage of the many online offers. Some countries, such as South Korea, have used these opportunities extensively for at least two decades to expose judges and court administrative staff to the latest developments in this field. For South Korean courts, this was one of the pillars to develop a judiciary that can lead effective court management and automation.

Individual state court organisations also have their own comprehensive training programmes for court staff. For example, the Texas Center for the Judiciary offers a range of training opportunities for judges and court administration in court and case management, as well as an introductory courts and annual conference.

Source: (Rechtspraak, 2015, p. 69[48]), Kengetallen gerechten 2015 (in Dutch), https://www.rechtspraak.nl/SiteCollectionDocuments/Kengetallen-Gerechten-2015.pdf; (Judiciary of England and Wales, 2018[49]), The Better Case Management (BCM) Handbook, https://www.judiciary.uk/wp-content/uploads/2018/02/bcm-guide-for-practitioners-05032018.pdf; (ENG, 2013[50]), Refonte de la formation initiale des greffiers en chef (Overhaul of the initial training of chief clerks), http://www.eng.justice.fr/index.php?rubrique=204&ssrubrique=12124&article=25269; (République Française, 2013[51]), Arrêté du 5 mars 2013 relatif à la formation statutaire des greffiers en chef des services judiciaires (Order of 5 March 2013 relating to the statutory training of chief clerks of the judicial services), https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000027243027; (National Center for State Courts, n.d.[52]), ICM: Three Levels of Certification, https://www.ncsc.org/education-and-careers/court-management-program/icm-certification-model; (Gramckow, 2016[53]), Leveraging technology to improve service delivery in the justice sector in South Korea.

Providing both introductory and advanced case management training to registrars and Courts Service staff involved with handling cases could be useful. Currently, training in overall court management and specifically case management techniques for judges seems limited in Ireland, and presiding judges would benefit from training in effective court and case management. They would also need the time and support to actively advance, lead and monitor court performance and case management effectiveness.

Some of the development work and specific research studies needed could be outsourced. For example, outreach to local universities with a solid public administration masters and PhD programme or a similar focus may be a helpful option to boost the Courts Service’s internal capacities. Such collaboration between courts and universities have proven beneficial to both, providing researchers and students with a real-life challenge to study, and the court with access to skilled researchers to bolster limited staff resources. Examples of such collaboration can be found at the Justice Programs Offices at American University,9 the Montaigne Centre for Judicial Administration and Conflict Resolution at the University of Utrecht,10 and the International Institute for the Sociology of Law in Oñati, Gipuzkoa, Spain.11

As noted, the level of case management support judges need for their daily operations, for longer-term management and planning, and to inform policy development, input to legislative reform and longer-term strategy setting is a policy decision for Irish authorities to make.

Close collaboration between the judiciary and Courts Service management and staff is needed to support effective case management, coupled with training in this area appropriate for their position. Case and court management is a team effort that requires clear alignment of responsibilities informed by data, as well as the creation of case management teams at each court level and eventually also for major case categories and lists. This would ensure that all operations are reasonably streamlined, and maximise judges’ time to deal with cases instead of tracking events and analysing data.

Beyond training to enable judges and court staff to manage cases effectively on a day-today basis, longer-term perspectives would need to be adopted. This would enable judges and staff, particularly presiding judges, to manage and plan the overall workload and staffing requirements, inform future reform needs, and adjust to the courts’ strategic direction. While this is a function currently not present within the Courts Service, there are plans underway to address this as part of the modernisation effort. An example of such a division created to support the courts in Washington DC is outlined in Box 6.8.

Box 6.8. Strategic Management Division at the District of Columbia Courts

The Strategic Management Division works to build court capacity to develop, execute and evaluate strategy and performance to better serve the public. It provides innovative strategies and evidence-based information to develop policies, enhance the administration of justice and improve the quality of services at DC Courts. The division performs strategic planning, analysis, research and performance measurement functions to enhance strategic management of DC Courts. Services enable judges and court administrators to make decisions based on evidence and best practices, and facilitate court performance monitoring and accountability to the public as the District’s Judicial Branch.

The Strategic Management Division team is responsible for:

Strategic planning and development: Leading court planning and development initiatives to set organisational goals, foster innovation and change management, and promote effective strategy execution, collaborating with other divisions in ongoing efforts to develop strategic and performance solutions to enhance the delivery of justice. Staff work with the Strategic Planning Leadership Council (SPLC) to produce a Strategic Plan for the Courts every five years and to monitor implementation.

Research and evaluation: Designing and executing research studies, programme evaluations, and data, policy and business process analyses to evaluate court programmes, services and operations. Research results are used to inform programme enhancements, request funding for new services and reengineer business operations to increase efficiency. The division promotes collaborative partnerships and data exchanges with external research organisations and academic institutions to support evaluation initiatives that will enhance the state of knowledge about the justice system.

Organisational performance: Working with court leadership to identify organisational performance measures that align with the Strategic Plan and focus on outcomes important to the public. Division staff work closely with the Chief Judge's Performance Standards Committee to foster continuous performance improvement within the Superior Court, and with divisions to develop cost-effective data collection and reporting procedures that adhere to quality standards. The division co-leads the courts' business intelligence programme with the Information Technology Division. The courts' ability to monitor its performance as a public institution is essential to maintaining the independence of the Judicial Branch, as well as the trust and confidence of the community.

Source: (District of Columbia Courts, n.d.[54]), Strategic Management Division, https://www.dccourts.gov/about/learn-more/strategic-management-division.

6.3.8. Case management IT solutions for judges and court staff

The evolving modernisation programme in Ireland is designed to replace the systems currently in place. Significant planning activities have been underway, including a review of lessons learned. This is an important exercise, as even the newer Progress system for the Superior Courts showed room for improvement and requires additional licences to enable smooth working conditions for registrars.

A new jury management system is also being developed. Envisioned to handle the approximately 120 000 jury summons the court issues per year, a three-part implementation plan was announced in 2020, with the objectives being to 1) centralise the jury summons process; 2) streamline and improve processes; and 3) inform the design of a fully centralised digital system. So far, phase one has been accomplished, and initial cost savings could be measured. Some progress was also reported to have been made regarding the streamlining of processes. Nevertheless, when the most recent annual report was issued, all work continued to be paper based (Courts Service, 2021[55]; Government of Ireland, 2020, pp. 21-29[56]).

Implementing IT solutions in complex systems such as courts tends to be a slow process. Lessons learnt from failed projects have shown that effective court and case management processes must be built upon effective, streamlined processes to make a difference, and must be designed in close collaboration with court administrators and judges. See next section for further discussion on simplification of procedures.

A good Court Management Information System (CMIS) is designed to support the case management techniques implemented and the related organisational functions throughout the entire court process across all courts. If appropriate case management techniques are developed and translated into CMIS, they offer the ability to effectively track the status of cases and their position in the court process, support the development of caseload and possibly workload statistics and management reports, and monitor case processes, all of which contribute to performance monitoring. Regularly gathered statistical information of the flow of cases through the court process can identify process bottlenecks and case delays, which can inform about needed resource and process adjustments (Gramckow and Nussenblatt, 2013[16]).

These systems support controlling data and defining electronic, paper and other media input to case records; establish record control; support managing case processing and record updating, as well as scheduling case events and tasks and sending notifications; support controlling and storing final records; and provide reporting management information. More advanced systems bolster broader court administration support functions such as expenditure accounting, budgeting, tracking, collecting and accounting for filing fees; revenue accounting and accounts receivable; and the full range of human resource and talent management functions. These applications can be integrated with or at least connected to case management solutions, thereby enabling the court to manage its resources according to case volume and demands. Other technology applications can also be linked, such as electronic document management, electronic filing or judicial decision-making support functions.12

Many third-party providers offer effective and flexible software solutions for the entire range of functions needed, which are scaled and phased to the needs of each particular court system. There are also many resources available online to assist courts seeking to develop a new system in developing the details needed and building upon lessons learned by others. A broad and comprehensive range of guides and tools that assist in design, including system and data standards, are for example available online from the US National Center for State Courts 13 and from the CEPEJ.14

Many different functions have been automated across court systems around the globe, with the examples shown in Box 6.9. All automation can be helpful by itself, for instance it can limit foot traffic at the courts, save time for litigants and others to come to the court, and save postage costs for sending summonses and notices. Nevertheless, the basis for all further automation to be effective is a good case management system informed by effective policies and processes and sound user experience. If the fundamental functions of the courts are not effectively structured, effective management of the courts will remain hampered. In this context, there appears to scope for the Courts Service to review its digitalisation and other modernisation efforts.

Box 6.9. Court automation solutions in selected countries

United Kingdom

Courts across the United Kingdom have been supported by a range of solutions that continue to evolve. For example, Civil Money Claims Online, earlier versions of which had been introduced over ten years ago, is a service that offers parties the ability to issue, respond and settle money cases online 5.2 weeks faster than before, and without the involvement of a third party. Similarly, the divorce online system, rolled out in 2018, allows parties involved in non-contested divorces to carry out the process faster, reducing application errors to 1% compared with the paper-based system (HM Courts & Tribunals Service, 2019[57]).

There is a new online system for jurors to reply online to summons, confirming their availability or requesting a date change. An overwhelming majority of jurors (close to 99%) now respond online within seven days, and accepted summons are uploaded automatically to the internal court system without the need of staff members to manually complete forms (HM Courts & Tribunals Service, 2019[57]).

Case management across all courts is supported by the “Common Platform”, a case management system integrated with other systems to decrease task duplication and free up administrative staff time. The platform allows users to access, manage and share criminal case information for several relevant stakeholders, such as the judiciary, police, solicitors and barristers, prosecution service, probation service, youth and witness support services, and court staff (HM Courts & Tribunals Service, 2019[57]).The HMCTS Magistrates’ Rota system, an online calendar system for magistrate sittings, was piloted in 17 areas before being rolled out across England and Wales in 2016. Magistrates enter their availability and court administrators use the tool to allocate sittings and share the information online (UK Government, 2016[58]).

CaseLines, an evidence management platform, has been introduced for Crown Court matters so that legal professional and court staff can access case information quicker and in digital format. This has led to a 50% reduction in hearings because parties can prepare, advise and enter pleas more effectively. This reduces the number of unnecessary adjournments and helps deliver justice quicker. It is estimated that this system cuts cost by GBP 70 per hearing. It is worth noting that the introduction of this system is a starting point in building new capabilities such as artificial intelligence tools that can search bundles, translate and read text (Reform Research Trust, 2018, p. 8).

Singapore

Singapore eLitigation started at the Singapore Supreme Court with an initial case management and electronic filing solution in 2000, which reduced case backlog by 92% within three years. The system was upgraded in 2013 to deliver new functionality in response to technical advancements and the needs of the justice system. The upgraded eLitigation is a web-based platform that provides access to a content management system and e-form technology. Users engage through a single access point and can actively manage files from front and back end. When a user inputs information into the e-form, the system stores this information on the cloud and can auto-populate supplemental documents in the case (CrimsonLogic). Implementing the broader upgrade required a “structured and comprehensive change management programme”. This included seminars, e-guides, module training, and a 24/7 helpdesk to train staff and users on how to use the system.

Scotland

A simpler, less automated but important tool for managing the performance of the courts is used by the Scottish Courts and Tribunal Service (SCTS). In October 2020, the SCTS started publishing a monthly workbook with information on volume of cases and trends for criminal cases, which has since been expanded to other cases. The workbook can be used alongside quarterly office statistics to provide forecasts and transparency around scheduled trials. As part of its performance management system, this includes monthly information about case levels and court backlogs (present and projected). This information is obtained through data and modelling carried out by analysts and a statistician. It is shared with the judges, court managers other justice organisations, and published on its website (Scottish Courts and Tribunals, n.d.[59]).

Source: (UK Government, 2016[58]), Magistrates' Rota application roll out, (https://insidehmcts.blog.gov.uk/2016/07/22/ magistrates-rota-application-roll-out/); (Scottish Courts and Tribunals, n.d.[59]), Official Statistics, https://www.scotcourts.gov.uk/official-statistics. (HM Courts & Tribunals Service, 2019[57]) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/ 902301/HMCTS_Annual_Report_and_Accounts_2019-20_WEB.PDF

A key concern regarding technology is that any IT-supported solution must be easily available and easy to handle by all who access the courts. The design would benefit from adopting a people-centred lens that ensure the system is user-friendly for staff, counsels and parties alike. It should also consider inter-operability, or even integration with, existing alternative dispute resolution mechanisms, to capture processes both online (ODR) and in-person. Limitations in bandwidth, connectivity and available technology make it difficult for some individuals or organisations to participate in virtual court processes, creating a vulnerable group due to the digital divide. A balance must therefore be struck between using data to ensure that technology’s benefit to people is maximised, while protecting fundamental human rights and the most vulnerable groups. A multichannel approach to justice that offers different possibilities to cater to the needs of each group is preferable. Some US courts with “user support” centres that had to close due to the pandemic started providing assistance online and via phone and chat options. Other courts set up programmes to allow parties to loan technology and get free virtual private network (VPN) access to be able to join virtual proceedings.15

Other concerns are that the distance introduced by virtual proceedings can limit the efficiency of some tasks, such as document-sharing during proceedings or easy access to private discussions between individuals involved in the process. Technology may also be a challenge to key processes, including defence counsel building rapport with clients.

Recent studies conducted in the United States show that remote hearings take somewhat longer than similar hearings conducted in-person, mainly due to ongoing issues with the use of remote hearing technology. In addition, preliminary data suggest that fewer cases end up in default judgements as more people attend remote hearings, which can extend the time a hearing takes, but also may increase the number of hearings held. The full impact of remote hearings on different case processes and case types is not yet completely understood, and may change over time as people get more used to them (National Centre for State Courts, 2022[60]). Similar observations were made for European courts, with a survey of active and former members of the Council of Europe’s Consultative Council of European Judges finding that rather than saving time, remote hearings were not more efficient than face-to-face hearings. Therefore, the hope that remote hearings alone will suffice to reduce backlogs may lead to disappointment (Sanders, 2021[61]).

These justified concerns should be addressed in consultation with others involved. Policies should reflect the issues, and the solutions developed elsewhere that can be adapted by other courts should be considered.

Not all court sessions lend themselves or are appropriate for virtual hearings. As mentioned, studies in the United States, where courts have over ten years of experience with virtual hearings, have pointed to issues such as higher pre-trial rates due more frequent denials of bail. It is likely that similar patterns will appear in Ireland, but without related data this cannot be confirmed. Research efforts focused on these issues could provide a broader understanding of the effects of substantially adopting virtual technologies, and inform decisions for court technology implementation going forward.

There is a need to better understand the impact of the different procedural measures, virtual and other alternative hearing solutions on users, as well as on the time judges and court staff need. Across the United Kingdom and the United States, many courts are observing that these formats impact their workload differently, especially as they become more permanent fixtures. As a result, there is a need to track this impact to ensure future workload assessments and related position adjustments reflect the differences compared to in-person proceedings. Further workload studies would need to reflect both types of hearings as they are implemented. A good first step would be qualitative sessions such as Delphi or focus groups to develop adjusted workload estimates (National Center for State Courts, 2022[62]).

Case management strategies can take advantage of the many resources available that have been developed by courts and gone through similar efforts. They should ensure that any system is designed in close collaboration with judges and court management, with input from other stakeholders, as needed.

6.3.9. Potential IT and other solutions to serve all court users more effectively, especially in outlying provincial districts

In April 2020, courts in Ireland began conducting the first remote hearings, joining many OECD countries that introduced virtual hearings for the first time, including Greece, Italy, Israel, Latvia, Poland, Portugal, Slovenia, Spain and Switzerland (OECD, 2020[63]). The successful use of virtual hearings during the pandemic for thousands of cases in Ireland has created new opportunities to design more effective access to justice solutions. Even though virtual hearings could not be held in some rural venues, most locations provide some options that can be built upon. Even in countries with the most advanced digital tools, judges and other justice and legal actors faced challenges to abide by social distancing rules and be connected to the needed secure technology outside regular court premises. Additional locations had to be found and technology had to be scaled up and expended. Box 6.10 and Box 6.11 highlight some options to maintain digitalisation and other advances prompted by the pandemic based on lessons learnt globally and in Ireland.

Box 6.10. Looking ahead: stabilising digital transformation from the COVID-19 pandemic

Studies and lessons reported from Canada, the United Kingdom, the United States and many European countries indicate that implementation of digital tools scaled up in response to the pandemic will be helpful to ensure efficient and effective court operations for all in the future in many countries, including Ireland. These are:

• Maintaining remote and paperless work processes for courts: Even before the COVID-19 pandemic, courts were pursuing paperless processes and other IT improvements. Although models that allowed easy working from home were valuable during the pandemic, they also would improve efficiency after the pandemic.

• Continuing virtual elements of in-person processes: Although a return to traditional in-person jury trials is a priority, maintaining virtual components wherever possible – for example, in the jury selection process, callover and some interlocutory hearings – would increase efficiency and make jury service less burdensome.

• Maintaining virtual connectivity between courts and corrections facilities: Courts and correction agencies noted the high value of bringing individuals from custody to court virtually as it increased safety for all and cut costs involved with prisoner transportation and security at court. The impact on the time needed for these hearings, and especially the outcome and decisions, must be compared to in-person hearings to fully understand if efficiencies in one area are not offset by negative consequences in others.

Note: A range of resources have been developed in other countries that Irish courts could adapt to the national context as relevant. For example, helpful information can be found atRemoteCourts.org, an international research initiative supported by HMCTS. In addition, the OECD Compendium of Country Practices (OECD, 2020[64]) gathers examples, as does The Pandemic and the Courts, a website from the National Center for State Courts focused on US courts (National Center for State Courts, n.d.[65]), andThe Functioning of Courts in the Covid-19 Pandemic, an OSCE/ODIHR report with an international focus (OSCE/ODIHR, 2020[66]). In May 2020, the Michigan (United States) Supreme Court and the State Court Administrative Office created a Lessons Learned Committee to assess the experiences of judges, court staff, other justice sector actors and court users during the pandemic to develop recommendations for adjustments and future planning, with a large focus on the use of digital tools such as Zoom for virtual trials (see Box 6.11).

Box 6.11. The Lessons Learned Committee in Michigan

The Michigan (United States) Supreme Court and the State Court Administrative Office created a Lessons Learned Committee that drafted a report summarising experiences that may be helpful to the Irish courts.

Only 24% of the Michigan State Courts had disaster response and management plans in place before the pandemic struck. Prior to the pandemic, some Michigan courts had consulted with their local health department regarding the impact of an infectious disease/epidemic outbreak on the justice system, and others were experimenting with Zoom® for certain limited hearings. However, even these courts struggled to adjust to the challenges of the pandemic, although less so than others. An assessment by the committee showed that “the more coordinated a court’s operations were among administration, judges, magistrates, referees, clerks, registers, staff, prosecutors, public defenders, city/county operations, sheriffs, jails, friends of the court, bar associations, Michigan Department of Health and Human Services, local health departments, and other key stakeholders, the more nimble and responsive the court – and the more positive the experience for those using and relying on the courts” (Michigan State Court Administrative Office, 2021, p. 6[67]).

One relevant finding was that courts in more rural areas could not support Zoom sessions, even though they were authorised to do so and sufficient licences were available. Existing hardware, connectivity and staff were not able to accommodate this option, and neither were most court users. In addition, co‑ordination with other justice sector agencies proved challenging given the limited early cross-sector co‑ordination in some locations. This report mirrors many issues courts across the globe and in Ireland faced, and some of the recommendations developed as a result may be helpful.

Source: (Michigan State Court Administrative Office, 2021[67]), Michigan Trial Courts: Lessons Learned from the Pandemic of 2020-2021, https://www.courts.michigan.gov/4a4803/siteassets/covid/covid-19/lessonslearned.pdf.

The need to cover outlying provincial locations appears especially important for those with less means, as public transportation does not exist in many rural counties. As such, it might be important to explore solutions with others, especially social services, and access to lawyers could be one way to develop the needed service network in provincial areas. Access to lawyers in rural areas, for example, seems to often present a challenge, and can add to uneven representation in rural court locations contributing to delays and higher numbers of lay litigants. A review of access to lawyers and options to address gaps was conducted in Canada, and highlighted the need for courts to consider this issue and involve lawyers in developing joint solutions (Baxter and Yoon, 2014[68]). This type of review mapping the justice journey and barriers faced by users to reach legal counselling could be beneficial for more cost-effective, evidence-based resource allocation and regulation Ireland, especially if coupled with a study of the legal needs of the population.

An additional consideration regarding the use of virtual trials, highlighted by the OECD, the CEPEJ and other international organisations, is that closed virtual hearings limit the right to public hearings, while broadcasting virtual sessions can have negative impacts on some parties, especially victims, witnesses and the accused (OECD, 2020[64]). Ensuring access for parties, the press and others, while at the same time making sure that vulnerable participants are not exposed to unnecessary risks, has been an issue with virtual hearings since before the pandemic. Where available before, measures such as limited access streaming and the preclusion of unauthorised recordings were in place. In countries where virtual hearings were less common before the pandemic, these had to be developed along with mechanisms to ensure adherence can be regularly checked. Given the sensitivity of the issues involved, the privacy interests of participants must be considered.

This important consideration goes beyond concerns for the safety of victims and witnesses involved in trials. Streaming trials may also be potentially unfair to the accused, regardless of whether they are found guilty. Streaming risks creating additional "digital punishment" as a result of broadcasting the hearing, and has to be mitigated by limited access policies. Broadcasting proceedings are particularly incompatible with the goals of problem-solving courts (Jackson et al., 2021[69]). Equally important is the need to provide special victim support during backlog situations to keep victims informed and engaged to ensure that they are not discouraged to appear in court, virtually or otherwise, when the time comes (Victims Commissioner, 2021[70]). The need to cover outlying provincial locations appears especially important for those with less means, as public transportation does not exist in many rural counties. As such, it might be important to explore solutions with others, especially social services, and access to lawyers could be one way to develop the needed service network in provincial areas. Access to lawyers in rural areas, for example, seems to often present a challenge, and can add to uneven representation in rural court locations contributing to delays and higher numbers of lay litigants. A review of access to lawyers and options to address gaps was conducted in Canada, and highlighted the need for courts to consider this issue and involve lawyers in developing joint solutions (Baxter and Yoon, 2014[68]). This type of review mapping the justice journey and barriers faced by users to reach legal counselling could be beneficial for more cost-effective, evidence-based resource allocation and regulation Ireland, especially if coupled with a study of the legal needs of the population.

There is also an uneven provision of other social service and alternative settlement options. If courts and other services face similar issues, the cost of creating information kiosks or special joint rural services websites could be shared. Co-locating these courts in more modern buildings, where mobile mediators and social services would be available, possibly on the same days the court is sitting, could offer both cost-saving options and could make referrals easier, as well as potentially creating other synergies.

It would also be important to consider the needs of judges regularly sitting in rural locations, who tend to have fewer opportunities to converse with colleagues, exchange experiences and hear about the latest legal developments, as well as more difficulties participating in training. Creating regular virtual exchange opportunities and access to online information and training is essential, as is the need to ensure that rural-based judges can attend judicial gatherings and in-person training. Both are important for ensuring that all judges are up to date with the latest legal developments and court modernisation trends, and can enable the sharing of experiences that can be fed into policy and resource discussions and inform processes about the needs of litigants. They can also help maintain judges’ personal well-being.

The Irish court districts in their current configuration were last adjusted in 2008. However, much has changed since then, including population shifts, moving of economic activities to other locations, seasonal population shifts and electronic connectivity in rural areas. This has reportedly resulted in a substantial disparity in caseloads among District Court districts. In this context, it could be an opportune moment to assess the current configuration of the districts, and possibly create larger districts to allow for more flexibility in assigning judges across an area.

This re-configuration would require a mapping of the cases that currently come to District Courts, actual justice needs, other resources available in assisting with legal matters, and other support services available locally, on regular rotation or virtually. While this mapping process would need to be tailored to individual jurisdictions, examples from other countries could serve as a relevant starting point.16 For example, a 2018 policy paper issued by the US-based Conference of State Court Administrators focused on defining the challenges and needs of different rural jurisdictions in the United States, and outlined some of the core options to focus on to build a more efficient court service delivery system in rural areas (Conference of State Court Administrators, 2018[71]).

6.3.10. Simplification and streamlining of procedures: learning from the COVID-19 pandemic

Simplification of procedures is a relevant tool to reduce the time and resources required from public services when required, as well as a way to reduce access barriers for citizens who may find it challenging to navigate complex, long or cumbersome procedures. This approach became particularly relevant during the COVID-19 pandemic, when justice systems increasingly adopted risk-based approaches to maintain accessibility of services. The application of good regulatory principles (such as risk proportionality, using the lightest possible process/procedure for the desired result, using information regulation rather than product approval when no major risk is present, etc.) can be useful to foster efficiency gains.

In Ireland, along these lines, callover at all court levels was moved to virtual or audio sessions and centralised at the District Courts and Court of Appeal, and to some extent at the Circuit Courts, and became more streamlined at the High Court. This significantly simplified a process that had been complicated before. In addition, hearing schedules at all court levels were finally assigned timeslots throughout the day, a necessity for virtual hearings and also useful for in-person sessions. Building on the lessons learned in Ireland, as well as other countries (see Box 6.12) during the pandemic, there is scope to continue exploring opportunities to simplify processes and procedures across a wider range of areas, also as the basis for improved case management and implementation of digital / IT technologies.

Box 6.12. Selected examples of procedural simplification

In an effort to streamline existing processes, the Federal Courts of Australia devised a specific, nationwide and fast-track “COVID-19 list” for urgent family matters, such as child abuse or domestic violence (Federal Circuit Court and Family Court of Australia, n.d.[72]; Centre for Justice Innovation, n.d.[73]). To apply to the list, parties are provided with affidavit forms that must be emailed to a dedicated COVID-19 list email to certify that:

• The application has been filed as a direct result of, or if indirect, has a significant connection to, the COVID-19 pandemic.

• The matter is urgent or of a priority nature.

• The party has made reasonable attempts to resolve the issue unsuccessfully.

• The matter can be dealt with using electronic means (e.g. using telephone or video link).

Once an application has been made, early diversion strategies are set forth and the National Registrar triages the case to assess if it is suitable for an urgent electronic mediation or conciliation. If there is significant risk to the parties, the registrar refers the case directly to a judge. To ensure flexibility in how judicial resources are deployed, judges will hear COVID-19 List matters on a national basis, i.e. from across the country, not just by their assigned districts.

In New Brunswick, Canada, a pilot project for jury summons and selection was established by the courts. Processes for summons and paperwork for jurors were streamlined, making it easier to identify ineligible or exempted jurors. Language was revised, question and answer sheets were added to the summons, as were checklists providing step-by-step guidance to enable potential jurors to understand the duties and possible exemptions for jury duty (Government of Canada, 2020[74]).

The courts in Ontario, Canada developed a new case management approach to address the significant backlog that developed during the COVID-19 pandemic and continued to grow. The Judge-led Intensive Case Management Court (JICMC), a separate division, was introduced in every major court location across the province. JICMCs supplement and assist the regular case management courts operating at each court location. Cases are referred to the JICMC based on case age, with priority being given to older cases. Unless otherwise directed by the regional senior judge or designate, all cases in regular case management courts that are 15 months or older will be referred to the JICMC. At the direction of the regional senior judge or designate, the age threshold for referral to a JICMC may be adjusted in a location to account for case volumes. Cases that meet the age threshold but do not require further case management may be adjourned to another court (Ontario Court of Justice, 2021[75]).

6.4. Reviewing court functions

In many countries, courts have a range of other functions beyond handling criminal, civil, family, administrative and other cases, and judges and court staff have different responsibilities in handling these other matters. Decades, often centuries, of the development of local, regional and state governments and court jurisdictions determine today the range of responsibilities of courts beyond handling cases brought to them, and judges may or may not have a role in these proceedings and decisions. The creation of a unique administrative law structure in most continental European countries that follow the Napoleonic law tradition, for example, generally meant that the initial review and appeals of decisions and actions of administrations are handled by government lawyers within the administration, and only appeals against their decisions are handled by the courts. Most of the many licensing applications currently handled by the District and even Circuit Courts in Ireland, for example, would not come before most courts in continental civil law countries in Europe, unless they involved a contested licensing dispute that was reviewed and declined by the relevant licensing agency (see discussion in Chapter 4).

While it is not unusual that courts have other responsibilities, it would be important to ensure appropriate consideration of how to optimise the use of judicial time. In Germany, for example, courts manage a range of registers, such as land and real estate, movable property, company registries, and registries of wills that historically were part of the courts’ responsibilities. These rarely require judicial time, but tend to require significant non-judicial resources and often generate a significant fee-related income source for the administration of the courts. This is also true for most licensing cases handled by the courts in Ireland, which may be why the courts would be less interested in these cases being handled elsewhere. Automating application processes and moving most decision making to non-judicial staff, leaving only contested applications to the judges, could be a more efficient option to explore.

In comparison, how the more than 150-year-old Wards of Courts system is currently set up in Ireland requires judges to make decisions that would tend to be the initial responsibility of related administrative agencies in other countries, leaving only review and disputed issues to the courts. It also places the responsibility of managing these related assets on the courts. This is not the most common approach, but is not unique to Ireland. The scope of responsibility awarded in relation to asset management is less common. In 2015, assets reached over EUR 1.5 billion resting with the court (Joint Committee on Justice and Equality, 2018[76]). A significant reform effort is still evolving (Holland, 2020[77]). The Assisted Decision Making (Capacity) Act 2015 (the 2015 Act) introduced a new legal framework for supported decision making in Ireland. On commencement of Part VI of the 2015 Act, S.54, which was recently triggered, a three-year review period begins during which all existing wards of court must be reviewed and transferred to the new system, requiring additional High Court and possibly Circuit judges for this temporary additional work. The longer-term impact on judicial time required to handle future cases remains to be clarified. As will be explored in Chapter 4, some options applied in other countries could potentially be used with adjustments in Ireland.

Box 6.13. Towards more effective court, case and data management – Key recommendations

Short-term:

• Data for case management and planning: Repurpose existing data collection efforts to ensure that data reports and processes are not only conducted with public information objectives, but to also assist in case management and resource planning. In this vein, develop a definition of backlog for each case type and court level.

• Clarity of responsibilities, co-ordination mechanisms and internal capacities: Enhance clarity in the distribution of responsibilities and links between the judiciary, Courts Service and other relevant institutions regarding case management policies and their implementation. Consider the establishment of a specialised committee or group within the Courts Service’s internal structure, or on the Courts Service Board, to focus on case management or overall court performance to develop overall policies and drive changes in this area. Establish innovative co-ordination schemes among institutions and external partnerships to boost Courts Service’s internal capacities, including outsourcing projects that require specific technical expertise and reaching out to local universities with a solid public administration masters and PhD programme or a similar focus.

• Goals for court and case management: Set goals for court and case management overall and at each court level, and develop advanced case management options in collaboration with the Courts Service and other stakeholders.

• Case management pilots and resources: Consider pilot-testing specific case management techniques led by case management teams (e.g. fast track for small claims, triage by case type and complexity, effective limits to adjournments and multiplicity of interlocutory hearings), following a review of priority areas and implementation requirements, including adjustments to staffing and training. Disseminate among court staff international practical resources available online concerning case management approaches.

• Case file management policies: In relation to the Courts Service, assess current case file management policies and ensure clearly established procedures, standards and regular audit processes are in place for the creation, maintenance, disposal and retention of files, supported by related staff training.

• Lessons learned from COVID-19: Continue efforts to leverage the modernisation measures adopted during the COVID-19 pandemic, including by considering the creation of a “Lessons Learnt Committee” that includes all relevant stakeholders and judges from each court level. The aim could be to assess the impact of new processes and IT solutions introduced on users, especially vulnerable groups, and other justice sector officials, and on time requirements for judges and court staff. In view of the lessons learned, reflect on the needed adjustments to court operations and infrastructure, support for court users, proposals for legislative adjustments, and staffing and budget requests.

• Procedural simplification: Maintain existing simplification and streamlining of procedures derived from the COVID-19 pandemic with a view to reducing administrative burdens on people and businesses.

• Consider upgrading IT systems: Consider upgrading and connecting various IT systems and applications (e.g., inputs to case records; scheduling of case events, sending notifications, controlling and storing final records, expenditure accounting, budgeting, tracking, and accounting for filing fees and revenue and human resource and talent management functions) to enable better decision making and to support the court to manage its resources according to case volume and demands.

• Monitor impact of virtual hearings Consider deepening the understanding of the impact of virtual hearings on judicial time requirements, including through Delphi estimates of the requirements for virtual versus in-person hearings.

• Multi-channel service delivery: In view of increasing adoption and adaptation of technologies by the justice system, establish a multichannel approach to legal and justice service delivery to ensure vulnerable groups are reached, while placing emphasis on ensuring fair access to technology so that no groups are disadvantaged when accessing justice.

Medium and longer term:

• Cross-jurisdictional collaboration: Strengthen coordination mechanisms between the courts involved where there are separate criminal, family law and possibly also child protection hearings arising from the same incident to ensure seamless procedures for litigants, avoid victim re-traumatisation (where applicable) and foster efficiency gains.

• Backlog reduction: Scale-up collaboration between the judiciary and Courts Service to review case data and consider options to develop backlog reduction measures, including the creation of special backlog reduction teams for select case types.

• Caseflow in the Criminal Justice System: Consider matching annual reports with an IT system that enables judges to track the pending inventory of their cases and a clear idea of caseflow in the Criminal Justice System.

• Court timelines and performance measures: Building on the experience with judgement delivery timelines in the Court of Appeal, consider the CEPEJ recommended minimum timelines to implement related measures with the needed staff, underpinned by data support from the Courts Service. Eventually, consider adopting broader court performance measures in Ireland, benefiting from experiences in other countries.

• Data for Family Courts: Support the current planning for the special Family Courts with data to ensure that the design is anchored in solid information, that the initial pilots can be assessed and to enable needed adjustments for further roll-out.

• Staff support: Considering the relevant role played by registrars for effective hearings and the potential identified to strengthen staff support across all court levels, assess current staff positions, roles and capacities to inform needed adjustments, ensuring that there are capacities to support the development and implementation of effective case management options.

• Court specialisation: Consider selected additional court specialisation options, such as a District Traffic Court in Dublin and adjusted small claims operations.

• Monitor the impact of digitalisation across the system and its users: Consider ensuring that data collection and case management systems being developed can effectively track the use of virtual/audio hearings or online dispute resolution (ODR) solutions created by case type and court level. At the same time, measure and evaluate the impact of digital tools on court users, especially vulnerable groups, those without access to digital connectivity or skills, and sensitive user categories such as victims, witnesses, minors and the accused.

• Research strategy: Develop a research strategy for the courts that could be overseen by a joint research group including the judiciary and other key stakeholders in court management.

• Emergency preparedness: To ensure courts are prepared for future pandemic or other crisis situations, consider updating the disaster management and response plan based on current experiences, along with mock implementation test and related training programmes.

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Notes

← 1.  See https://archive.doingbusiness.org/content/dam/doingBusiness/country/i/ireland/IRL.pdf.

← 2.  As reported by World Bank staff during consultations with international court experts, the revised report, preliminarily titled “Business Enabling Environment”, will continue to include measures related to court performance similar to the enforcement of judgement indicators included to date in the Doing Business report with some adjustments, such as use of mediation/ADR and support for lay litigants. See also: https://www.worldbank.org/en/programs/business-enabling-environment.

← 3.  The differences among the appointment and governance structures laid out by Lord Justice Thomas in this report could be reviewed to better understand why some of the collaborative processes are not working as well as they should and why a clear delineation of responsibilities is essential.

← 4.  See https://www.rechtspraak.nl/English/The-Council-for-the-Judiciary.

← 5.  See for example administrative Office of the Courts of Maryland www.mdcourts.gov/aoc or the Federal Courts of Canada https://www.cas-satj.gc.ca/en/about/mandate.shtml.

← 6.  Cooper, Solomon, and Bakke 1993; NCSC 2001a, 28; Jacoby, Gramckow, and Ratledge 1992

← 7. For example State Court Administrative Office (2022), Michigan Trial Court Records Management Standards: Data, Case, and Other Court Records, https://www.courts.michigan.gov/4a81cf/siteassets/court-administration/standardsguidelines/casefile/cf_stds.pdf.

← 8.  Several CEPEJ working groups responsible for the implementation of concrete actions related to the compilation of official documents of the institution also publish helpful studies and tools, and some provide assistance to member states or can link them to the pilot courts they are working with. These include: the Working Group on the Evaluation of Judicial Systems (CEPEJ-GT-EVAL); the Centre for Judicial Time Management or Study and Analysis of Judicial Time Use Research Network (SATURN Centre); the Working Group on Quality of Justice (CEPEJ-GT-QUAL); the Working Group on Execution (CEPEJ-GT-EXE); and the Working Group on Mediation or Alternative Methods of Resolving Disputes (CEPEJ- GT-MED).

← 9.  See https://www.american.edu/spa/jpo/upload/jpo-brochure-2016.pdf.

← 10.  See https://www.uu.nl/en/research/montaigne-centre-for-rule-of-law-and-administration-of-justice.

← 11.  See https://www.iisj.net/en/oñati.

← 12.  see NCSC 2004, World Bank 2007; Fabri 2001, 11; Velicogna 2009, 29

← 13.  See https://www.ncsc.org/services-and-experts/areas-of-expertise/technology.

← 14.  See https://www.coe.int/en/web/cepej/home

← 15.  See Rand 2021

← 16.  See for example CEPEJ (2013), Revised Guidelines on the Creation of Judicial Maps to Support Access to Justice within a Quality Judicial System, https://rm.coe.int/european-commission-for-the-efficiency-of-justice-cepej-revised-guidel/168078c492#_Toc356475576 (last visit 17/02/2022); Washington Courts (n.d.), Rural Court Survey, Summary and Analysis, https://www.courts.wa.gov/programs_orgs/pos_bja/ptc/documents/RCSurvey_FinalReport.pdf (last visit 17/02/2022).