It was more like being immersed in a sound installation than standing in a corridor of the Four Courts. In the distance was the faint noise of an instrument being played. Muffled televised voices wafted through the walls of the Supreme Court where a remote hearing was in session. Otherwise, there was silence but for the footsteps of the odd passerby. It was a Monday in January.

The courts are open. But barely. Most court business is on hiatus. What activity there is going on is mostly happening online. Registrars sit in courts alone overseeing virtual proceedings. Lawyers log in to a session and judges preside from their chambers. 

Except for matters of the utmost urgency, such as essential family law and criminal law applications, remote hearings are currently the only game in town. And they are not deemed suitable for certain types of actions involving juries or where the credibility of witnesses may need to be assessed.

It has been like this for nearly a year now since the first wave of the pandemic struck in March but restrictions on physical court hearings have tightened since the Christmas break due to the surge in Covid-19 cases and the emergence of new pernicious variants of the virus.

Moves by the Courts Service to address the logjam of cases, like renting out Croke Park for jury trials, have had to be put on ice. Jury trials are not running.

It is a bad situation. And while it is too early to know the true impact of the pandemic on the legal system and how in the long run the courts, with a limited number of judges, will cope with the vast backlog of cases stuck in the system, expect a pile-up as delay is heaped upon delay.

There are obvious knock-on effects to the legal profession too; barristers, in particular, are only really working if they are representing clients in court. And litigation activity is extremely limited. Even before Covid, the number of High Court cases was in decline. The pandemic, however, has greased that downward path.

There is a sense of frustration and anxiety there. In a Bar Council survey of its members last December, 52 per cent of respondents identified the viability of practice as the most significant challenge over the next 12 months – a fairly gloomy assessment by those who took part. Trade mag, The Bar Review, said the survey highlights “the need for the Courts Service and the Department of Justice to ‘turbocharge’ preparations for alternative settings, modifying existing ones and streamlining the hybrid possibilities of remote hearings”.

Chair of the Council of the Bar of Ireland Maura McNally is well aware of the real and immediate challenges faced by the profession. And the need to meet those challenges. Every day may feel like groundhog day in lockdown, but in the space of a few short months, seismic changes in technology are transforming how we litigate. The senior counsel has been head of the barristers’ representative body since August, the second woman ever in the post. “It’s been a tough six months,” she tells me over a zoom call last week.

Unlike her predecessor in the role of chair, Micheál O’Higgins, McNally at least had the advantage of knowing what she was getting herself into, in terms of the existence of the pandemic, when elected by her colleagues.

But as she notes:  “All things considered, who in their right minds last March would have thought that we would find ourselves approaching the 12 month anniversary with the situation still obtaining and possibly, looking at the deaths and the infection rates, worse now than it ever was.”

McNally, however, is naturally ebullient even when discussing serious and pretty gloomy matters. “If I’m too loud, which a lot of people tell me, just let me know,” she says as we start.  In a time of uncertainty, she also expresses a strong faith in the value, variety, and resilience of the professional offering provided by barristers. It is not just start-ups apparently. Lawyers can pivot too.

Time is limited so there are several topics we don’t get round to discussing like Ireland’s legal offering post-brexit and the unification of the solicitors and barristers profession (a move deemed premature in a recent report of oversight body the Legal Services Regulatory Authority).

We start by discussing the pandemic.

The great IT leap forward

Francesca Comyn (FC): Nobody really foresaw the kind of shutdown that we are now experiencing in the courts, even those with foresight who might have said it was obvious there would be several waves of the virus. But in terms of the impact on court cases, we’re now having backlogs on backlogs. What is the general feeling down in the Bar?

Maura McNally (MM): I think everybody recognises that there was a backlog in the ordinary system if I can refer to it as that. Then with the inception of the lockdown last March, that just grew and grew. Part of the problem when you look at the Courts Service and the IT capacity and the ICT that’s there, they have yet, in my opinion, to be dragged into the twenty-first century in that the investment hasn’t been there.

Those in practice, barristers, have had to be dragged up by the bootlaces into the present century IT wise, solicitors firms, the various parties etc. But the capacity and the platforms that are available are quite antiquated. Now I know they’re addressing investment, but everything goes back to investment, the lack of investment in our country and in broadband, despite the fact that we have some of the biggest technological companies based here in Ireland, huge financial services sector, huge IT sector. And yet, broadband outside of certain areas is quite limited. And then you apply it to government sectors, particularly the Courts Service,  and what’s available to the citizenry is just, at the minute, not up to scratch. I mean they’re doing their best in all of the circumstances. 

FC: You know when you hear healthcare professionals doing Covid testing and tracing and having to input results manually. That resonates because people understand from their own work practices what that means. Can you give an equivalent example in the legal system that might illustrate to people what you’re talking about?

MM: Well, I suppose, from the administrative perspective for cases, the fact that documents can’t just simply be sent in by email, that you had to make appointments even during the lockdown, solicitors did, to go down to physically hand documentation in and things like that. I mean, the Bar has recognised that the system has changed, is changing, and will change. And that is a good thing. Certain applications can be made remotely perfectly successfully, such as a case to the Court of Appeal where I would be here in my office, robed up or whatever. My solicitor would be in her office or his office and the client who doesn’t have to give evidence in the Court of Appeal because it’s argument based, it’s law based, it’s based on precedent, and upon the transcripts of the case, and then similarly so for the other side. They’re also tuned in, and then you have the three judges. And so you’re capable of doing that online because I don’t have to hand in anything physically. And similarly so for call overs of cases, where if something is on consent, I know what’s going to happen, you know what’s going to happen; ‘you don’t want it going on today judge can we put it back on consent for six weeks’. I mean the fact that I’ve had to show up for that and the opposite number show up for that, that’s such a waste of everybody’s time and resources, and it’s not an item you ever got paid for so it makes more sense to streamline things like that that can be done remotely. But in my opinion, when it comes to litigation which involves controversy, or where witnesses have to be not just examined but more particularly cross-examined –  there’s that old phrase that you kind of have to see the whites of their eyes. 

I have cases myself from last March, where the people had already waited their 12 months or so to get their case on.

Maura McNally

Then also under the constitution the administration of justice not only has to be done but it definitely has to be seen to be done. If you’re a participant in the case either plaintiff or defendant, or if you’re a victim in the case or the accused in the case, they have the right in my opinion and in accordance with our constitution to be in court to give their evidence. And not only have we got this backlog in the civil courts in cases which involve the giving of testimony by witnesses in person, but the criminal courts, their backlog, that I know the Courts Service were trying to address by the hiring of Croke Park in order to have four different courtrooms down there which would allow four different trials. I mean, we now have that additional backlog …

FC: Is that operational?

MM: No not until this lockdown is lifted. I mean we’re essential workers as are journalists. I’ve been in court. But if we ask jurors to travel outside of their five kilometre zone, how do you put jurors in a jury room when you’re trying to avoid congregation. And that also applies to the civil jury cases, which are trespass to the person, assault cases, things like that which are constitutionally protected cases that require a jury. 

FC: If this were to end tomorrow, what would be the tally for civil jury trials say? For example, you would hear in the past there are 18 month delays in the Court of Appeal. if we drew a line through it now, what would the figure be.

MM: I’ll be honest, I don’t know the exact answer to that. It has changed. I’m going to answer it in two ways. The Bar Council has  been asked to make submissions in respect of access to justice and not only that but we have been in direct discourse with the judiciary, and with the Courts Service. So the judiciary are very cognisant of the fact that, you know, the citizenry people have a right to get their cases into court. I have cases myself from last March, where the people had already waited their 12 months or so to get their case on. And here they are, what is it February, and we’re approaching that anniversary so their one year delay is now a two year delay and God knows how much longer that in turn is going to be.

Now they are introducing, and it started on Tuesday, a civil call over for High Court cases here in Dublin that do not involve controversy. In other words, assessment cases. We’ve been asked to identify cases that can be done remotely even though you would have witnesses in them. So you’d be reliant to a degree upon agreed medical reports or certain evidence that would be agreed that can be admitted into the judge, without the need for much questioning or cross examining.

But they’re quite limited in numbers. It’s the cases where you have a multiplicity of defendants – I don’t know how the courts are going to facilitate them even if [restrictions] were, as you say, lifted in the morning. How do you get all the witnesses there? Do we even have rooms big enough when you consider the social distancing that’s required?

I will give you an example. I was running a personal injury action in the long vacation and we had notified the Courts Service that we had X amount of witnesses. And I was for a girl who was a minor, that meant she was under 18, and her mother was coming with her. So when we arrived, we were sent to a courtroom to facilitate 10 people. We had the judge, the judge’s crier, we had the registrar, we had the stenographer. That’s four people before we even start. Then we had myself, the solicitor, the client and her mother, and junior counsel. That left one space for the other team, despite having told them we need a bigger courtroom. We had asked in advance. 

FC: Is there a dedicated team in the Courts Service who are overseeing the handling of the pandemic? Is there that sort of structure in place?

MM: What is in place, and we were invited onto it is the President of the High Court Ms Justice Mary Irvine, she set up a working group to address the operation of the courts so that we make submissions, there are solicitors on it, the Courts Service staff are on it, members of the judiciary are on it. Here at the Bar of Ireland, we’ve also established our own Covid-19 working group. We have the Criminal State Bar group or who are constantly in touch with the Courts Service about the criminal cases. We have the Civil State Bar, they’re in touch with the Chief State Solicitor’s Office, and the Courts Service about the running of civil cases. And then we have the Bar Council itself, doing what we can within the particular limitations, in that I can scream and cry and ask the courts to be open but when you can’t travel outside 5k, when you can’t be within two metres of one another…

FC: But it depends on the work. Certain areas like childcare law, that can clearly be essential but is there still ambiguity about a lot of legal work, in terms of its essential nature? And what, in a time of lockdown, are the priorities for the Bar Council?

MM: Well, it does boil down as you say to a degree regarding interpretation. I mean who is essential, what is essential? Obviously doctors and nurses are essential. But their administrators are also essential because that hospital cannot work without the administrative staff. So similarly the courts, the essential workers there are obviously the judiciary who make the decisions. And then the Courts Service are administrative staff who are required in order to administer the judicial system in this country which allows access to justice. Now there’s probably a dichotomy as to what different people consider to be essential or urgent, or what’s an emergency, but I have clients in personal injury cases that I’m involved in, where I’m for the plaintiff, where for example, they were injured at work, three, four years ago. After a few months, the employer stops paying sick pay because of their injury they’re not able to return to work. Because they were on a lower wage they’re on the public health system. So they were waiting for physio waiting for medical appointments, and they were expecting their cases to run last March, April, and May, and some of them made promises to credit unions. undertakings if you loan me the money I’ll pay it back out of my personal injury award. They were counting on their cases getting on, counting on getting their awards, out of which they were going to pay for treatment, they were going to skip the public queue, and pay for private treatment, and now they can’t do that. Now you tell that person that their case isn’t urgent, or an emergency, and they will tell you that you’re wrong. 

FC: Can I ask you then, in this current phase of lockdown, are we relying solely on Pexip? (Pexip is software used by the Courts Service to facilitate remote hearings. It is not explicitly designed for that purpose)? Now obviously Commercial Court cases –  the odd one – has gone the Trialview route (Trialview is a bespoke software package for virtual hearings). Presumably, that’s because the parties can afford it. But it’s not something that’s open to your average case. So is it the case that the answer in the interim remains Pexip or physical court space? Is that what it boils down to?

MM: At present, they would appear to be the only two routes available. The Courts Service are hoping to introduce Pexip Infinity.  I’m not sure what magical technical wonders that’s going to bring with it in comparison to the Pexip that’s in use now. But, having said that, you must have wifi in every courtroom. The Courts Service did say that the Four Courts in each of the courts would have wifi. I’m not certain that that situation actually obtains. And if you go to every courthouse in the country, I’m not sure you’ll find that the wifi is sufficient, either in broadband speed or bandwidth to facilitate the type of trial that’s necessary if it’s to be done via Pexip.

FC: And it’s envisaged that Pexip Infinity would facilitate your average case?

MM: Certain cases. Now the Courts Service have taken over Croke Park. Well when I say taken over, they’ve entered into a lease that was supposed to start at the beginning of January but obviously with the lockdown it didn’t. But they were using the King’s Inns for trials that had multiplicity of defendants from, I think last April up until last November. And they have converted what was the cafeteria space in Phoenix House, downstairs is where the family law in the Circuit Court goes on. Upstairs was a very large cafeteria that was converted into a space to deal with one multiplicity defendant case which ultimately settled. It was listed for weeks. So they have that space available which will suit those types of cases when, as you say, there’s a lifting of whatever the restrictions are or whenever that may be, whether it goes from five down to four or five down to three. 

It’s like anywhere else in the country. It’s investment and infrastructure. We’re dealing with buildings that were built hundreds of years ago in some cases. The width of the walls in the Four Courts block the ability..

FC: To have effective broadband. 

MM: Absolutely

Litigation slumps and the future of the Bar

FC: On a different topic, I had a look at some of the High Court figures in terms of caseload coming in year by year. 2020 was fairly bleak. That would be unsurprising. But  it was a downward trend anyway. So in 2017, there were about 18,400 incoming contentious matters; in 2019 that was down to 14,749 and in 2020 it was around 11,900. Obviously last year, there was the pandemic but there was already a slide before that. Is that something you’re noticing at the Bar, that there is only really work for a few hundred practitioners at the top?

MM: I was asked when I started this what was my aim for the end of the first 12 months and I said my aim for the end of the first 12 months is to make sure that there is a Bar of Ireland in existence. But with that in mind, we are answerable under the Competition Act as much as any other self employed person out there, so we can’t limit numbers. But in real terms when it comes to competition here at the Bar I mean it’s like every other private practice, and it’s like if you’re a shop or if you’re a barber or hairdresser or a taxi driver you either sink or swim.

FC: I’m not really coming from a competition perspective because of course people can do what they want, whether they succeed or not. I am more interested in what you make of this downward trend and what it might mean if it (this decline in litigation) were to continue. What does it tell us?

MM: I think the trend downward, I think you’re going to see an even further trend downwards which has probably got nothing to do with either government programmes or insurance industry programmes or lawyers programmes or input. I think in real terms, I got my €75 euro back from my insurance company when I was renewing and I haven’t had to service the car because I haven’t got the mileage on it. But the reality is, if you just look at it logically, there has to be for the year 2021, or 2020, a reduction in the number of cases, occurring because people aren’t on the roads. 

FC: But the trend was happening anyway.

MM: The trend was going down but next year I think you’re going to see an even bigger drop, premised upon the fact that people have not been out and about. But I think you will see a growth in areas such as employment law. And I think you will also see a growth in areas such as controversy between insurance companies and the insured as to what risks have been insured. And I think you will probably find an increase in banking law cases where the banks pursuant to, and landlords, pursuant to government recommendations no-one can be evicted from their residential property until this is going to be lifted on March 5. But I think after March 5, you’ll find there will be an increase in landlord and tenant cases and an increase in banking cases where they want their monies paid. So there may be a drop in personal injury cases but in those other areas there will be an increase and I can see it particularly in workplace relations with what’s being going on and what had had to happen because of Covid-19. 

(In the UK, a surge in pandemic related divorce proceedings are forecast but we don’t get into that.)

When you look at political parties years ago, they owned their buildings and then they sold them and leased them back because it worked out more appropriately for them, tax wise or investment wise of paying off debts or whatever.

MM: But the Bar has always pivoted, if that’s the right word to use, in order to answer the need in the market where the market has come to the Bar. And you know, 10 years ago, actually longer – again I’m back to when I started 30 years ago. I started on the midlands circuit. I remember in counties such as Offaly and Westmeath and Roscommon, the town of Boyle used to have a Circuit Court sitting there. When I started nearly every second case was a turbary case, which was to do with turf. They died a death. If I told the people who were devilling with me 10 years ago about a turbary case, they would ask ‘what’s that?’ Whereas now you might see an increase in turbary cases because of environmental imposition, as some might see it, of regulations and directives that don’t allow them to farm their turf as they would see it. 

So the Bar will answer. When they’re asked for advice, the members of the Bar have that expertise in specific areas of law that they’re able to address the issue and provide the appropriate advice to their clients. 

A lucrative city portfolio

Our conversation turns to the Bar Council’s appointment of EY to carry out a strategic review of the profession aimed at identifying future legal markets for barristers and areas where the Bar Council should concentrate resources. We also touch on last December’s Bar Council survey of barristers which looks at how their practices have been disrupted by the pandemic. Around 15 per cent of members responded. Just over half (52 per cent) of those who took part identified the viability of their practice as the most significant challenge in the next 12 months. The findings feature in the current edition of the Bar Review, the profession’s trade magazine, which concludes “With almost a year now passed from the date of the pandemic starting, it is regrettable that the survey results convey a view among members that the court system in the main appears still in reactionary mode. Clear, direct and proactive communications as to the ‘what’, ‘when’ and ‘how’ of a modernised courtssystem would embolden both practitioners and court users as to their future welfare. Until then, a degree of angst and frustration pervade.”

However, it should be noted that the survey predates the third wave of the virus.

FC: Can I ask you what the EY study is about as mentioned in the Bar Review? It’s there to assess the future market, so that kind of goes to what I’m asking about. What are you hoping to find out?

MM: Well, the strategic review has been something that I have believed in for months, even before I became Chair when I was running for reelection. I spoke to members here at the Bar, certain members who are in different areas of law. It used to be you just had civil law, commercial law, criminal law, family law. It’s not like that anymore. In civil law, you’ve got judicial review experts, environmental experts, personal Injury experts, professional negligence experts. Each area is growing, almost like different tendons but all under the one umbrella. 

So, I spoke to them about what each particular niche area of the Bar thought it needed, or where it felt the Bar should go. And arising from that it was obvious that a strategic review was necessary. So, thankfully, I got reelected, thanks to the members who voted for me, and then they, the members of the Bar Council foolishly put their trust in me. As soon as I became Chair, we started the initiative of tendering for the strategic plan. 

Now, some might say, ‘you have plenty of experts, they can do their own strategic review of the Bar’ but that’s the whole point. We can’t. We can tell experts who know how to run the appropriate algorithms, who know how to do the appropriate research, who know who the appropriate stakeholders are to whom we should talk, the parties with whom we need to converse. 

And also, we have to look at the properties that the Bar of Ireland owns. Is real property with offices, is that going to be the way forward? I mean is it going to be the way forward for a lot of businesses when so many people are working at home. And this is a question that I’m sure insurance companies are looking at, that investment firms are looking at, pension companies ….

FC: Might you sell, if that was the recommendation. Would you consider it?

MM: Absolutely. They’re the experts. A lot of our members are working from home, but because they have children at home, or spouses at home, or people living with them at home. So when they go to do a consultation like this they don’t have the privacy or it’s not comfortable in their dining room or kitchen, but they don’t want an office because they’re not here five days a week or six days a week. They just want a pod. They want an area they can have air conditioning that they’re not going to smother to death due to lack of oxygen and just plug in appropriate wifi. So we’re looking at that as one example. And also where are we to go, what is the best route for the Bar as a whole to follow in respect of its investment…

FC: The Bar owns office buildings basically, that’s what you’re talking about?

MM: Yeah, we own the Distillery Building here and we own Church Street, and the property down in Cork. And then we have leases in respect of space in the CCJ (Criminal Courts of Justice) and other spaces.

I subsequently have a look at the details of the Bar’s property portfolio in last year’s 2019/20 annual report. It amounts to 302,111 square feet over six buildings. As McNally said, some are leased and some are owned. The report flags up the need for a medium to long term “property masterplan”. According to a Lisney valuation in September 2019, the Bar’s property assets are valued at €53.4 million, up €1.2 million from 2017. 

According to accounts filed for the year to September 2019, Law Library Properties Ltd had net assets of €31.2 million and paid €664,722 in taxes.

FC: So if you sold them, would it be a matter of you leasing other buildings or what kind of arrangement might you look at?

MM: I don’t know. I’m not being facetious when I say that. When you look at political parties years ago, they owned their buildings and then they sold them and leased them back because it worked out more appropriately for them, tax wise or investment wise of paying off debts or whatever. 

But when it comes to the monies here at the Bar, I mean last year, we gave a subscription reduction to members, a subscription credit. it worked out at about 25 per cent of their fees,

FC: Did that apply across the board?

MM: People were given the option to either opt in or opt out and certain members whose practices were not affected, they chose honorably to to opt out and paid their full fees and we’re very thankful to those members who haven’t seen any reduction in their income. But you have to bear in mind that the survey last May showed that 44 per cent, by May, had seen their income fall in excess of 80 per cent.The good news is our most recent survey in December showed that only 10 per cent had seen their income reduced by 80 per cent but 50 per cent have seen their incomes affected by up to 50 per cent.

FC: But there was only a 15 per cent response rate to the December Bar Council member survey? How does that compare with the May survey? 

MM: Smaller numbers than the May survey but when you consider it in respect of previous surveys, which the Bar carries out every year (because how else does the Bar Council address what the needs of the entire profession are other than by means of the survey) it was probably along the same lines numbers wise. It gives us an indication of the impact on, and the financial well-being of members. And with that in mind, there are great people here at the Bar of Ireland, employees and people on the Finance Committee for example. 

We have between Ciara Murphy [chief executive of the Bar Council], Colin Potts [director of finance and operations] and our treasurer Seamus Clarke and our ex-treasurer Sean O’h’Uallachain, number crunched the figures. We’ve looked at the monies that we have and we’ve just announced this week that we could give a further credit to people. From now until the end of this legal year.

McNally says it works out at around a 33 per cent reduction between now and the end of July for those who pay monthly over a ten month period. 

While one in three of the members who completed the Bar Council survey were in their first seven years of practice, McNally says there are also many barristers in their middle years who are suffering the chill financial effects of Covid-19, practitioners with mortgages and children. I ask her about the Bar’s push for barristers to be considered key workers for the purposes of early vaccination,  whether it is for all barristers or just for those in certain areas of practice?

MM: I’ll explain that. Certain of my colleagues of their own volition have written to the Minister. I have no control over that.  I myself have written to the Minister, that was in December, asking which category we would come under. We are category 10. 

Group 10 is the vaccination of key workers in essential jobs who cannot avoid a high risk of exposure. They are a category above those working in education and also come ahead of members of the general public between the ages of 55 and 64.

MM: We will take our turn like absolutely everybody else. We have to. If you’re asking me do I want to jump the queue ahead of my mother? No way. Do I want to jump the queue ahead of a doctor and nurse, absolutely no way. If I thought somebody belonging to me was jumping the queue ahead of a doctor or nurse, I’d be rugby tackling them myself.

FC: So that’s pretty far down the list, just ahead of the general population. 

MM: I suppose I have to acknowledge certain of my colleagues are more at the coalface than I am. Like I won’t to be in the CCJ. And so, I don’t know, maybe an exception can be made for those practitioners in the criminal courts. So maybe when the guards are being vaccinated in the CCJ or the court staff down there, maybe those who are on that front dealing with those kind of cases on a daily basis can be considered, but as a profession as a whole, absolutely not me sitting here in my office on the days I come in, jumping ahead of people. No way. Absolutely no way.

FC: One last question. Why should anyone consider the Bar? If they have a choice in law between Blackhall Place or the King’s Inns. I think many might now consider  becoming a solicitor as being a better bet in many regards. It’s almost got more glamour than it would have had in the past with all the glass towers down the docklands and stuff like that.

MM: But there’s an entire difference between the two professions, and the Bar is the independent referral bar. And by that, it means that that you Francesca Comyn whether you be in Dublin, or whether you’re in Buncrana, or whether you’re in Leitrim – my home county – or whether you’re down in Cork, if you have a judicial review or you have a constitutional challenge, if you have a criminal trial, whatever case, you can say, ‘I want Maura McNally’. Whereas if we’re all sucked up or taken into solicitors firms, you will be limited then to which firm you can use or want to use and whether they do work outside of Dublin. You’d be limited to that, whereas the Bar… I mean, as a circuit practitioner, in a week when I was on circuit I could find myself in Letterkenny on a Tuesday and Galway on a Wednesday, Cork on a Thursday. You have brief, will travel. But that’s the beauty of it. You hire that person to go where you want them to go. And I don’t mean this in any disrespectful way and it’s probably inappropriate wording, but you’re not the puppet, or part of the singular law firm, who’s then answerable to the client. You’re answerable to the court. 

This interview has been edited and condensed for clarity.