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22 May 2020

Irish courts thrown into confusion over 'bizarre' two-hour hearing rule

Clarity sought over policy for physical court appearances after surprise ruling that sittings could not last for more than two hours

By Dr David Cowan

Law Society of Ireland director general Ken Murphy described situation as 'bizarre and very frustrating' Law Society of Ireland

The Irish courts have been accused of applying a bizarre interpretation of Covid-19 social distancing rules after ruling that courts could only sit for two hours a day for physical hearings.

Court procedures were thrown into confusion for 48 hours this week following the imposition of the two-hour limit, which was condemned by Law Society of Ireland director general Ken Murphy as “out of the blue” and “bizarre and very frustrating”.

The confusion stemmed from evidence given to the Houses of the Oireachtas (Irish parliament) before a committee meeting on Tuesday that people shouldn’t be in the same room for more than two hours, even when they are practising social distancing. 

A statement from the Chief Justice and other presidents of the courts said the Courts Service was unaware, until that point, that there appeared to be additional safety considerations beyond those already published by the government. 

They imposed the limit pending “urgent advice" being obtained from the health authorities.

However, yesterday evening the Courts Service of Ireland said it had received further advice on the length of sittings and “on the basis of that advice, the presidents of each court jurisdiction are very hopeful that full sittings will be able to resume as soon as tomorrow, once certain additional procedures have been put in place”.

Micheál P. O’Higgins SC, chairman of the Council of The Bar of Ireland, said the original decision to impose the limit had been “a setback” after all the progress being made by the courts services and others administering justice who had been “rolling up their sleeves” to get the administration of justice running as normally as possible. 

Murphy added: “It is bordering on bizarre that Ireland is being given this advice for the first time more than two months into the Covid-19 crisis, where the public health advice, up to now, has been admirably clear.”

Meanwhile, a Consultative Users Group has been established, chaired by the CEO of the Courts Service, Angela Denning, to oversee the opening up of the courts to more physical hearings.

A number of novel social distancing measures have been put in place, including the Four Courts – which houses the Supreme Court, the Court of Appeal, the High Court and the Dublin Circuit Court - determining that when a judge is sitting in one courtroom, the adjacent courtroom will be utilised as the waiting area for the next case. 

The courthouse on Washington Street in Cork is considering a plan whereby the judge and registrar, having completed the hearing of one case, may move to another courtroom where the parties will be waiting for the next case to commence.

In a weekly bulletin, the President of the Law Society of Ireland, Michele O'Boyle, said participants agreed unanimously that it is unlikely there will be a “return to the volume and process of cases traditionally heard in our courts for a very long time, if ever". 

She added: “There needs to be a cultural change in the use of the courts and in litigation practice generally, which we as practitioners must lead. The resolution of disputes earlier, including by mediation, will have to be a feature of this cultural change. We will need to manage expectations for court users and, as practitioners, to lead by example.

On 19 May, The Global Legal Post published a series of reports from jurisdictions across the world that revealed widely differing responses by family courts to the Covid-19 pandemic.

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