Before he became a lawyer, Richard Martin made a splash in London in the 1980s working for an American investment bank trading precious metals. It was, he says, “absolutely wonderful and very lucrative”. He had left his native Cork with a BComm from UCC having been talked out of his teenage ambition to study law by a friend of his father’s who told him it was too narrow and limiting jobs-wise.

But his father, a naval architect, was not so sure. On Friday October 16, 1987, he travelled to London and persuaded his son to pursue the career in law he had always talked about. Three days later, the stock market crashed, suddenly and spectacularly. Martin left banking on Black Monday; a young man with his life as a London trader behind him. He retrained as a lawyer, joined Ronan Daly Jermyn in 1989, and never looked back.

A stalwart of RDJ over three decades, Martin’s experience of the law would prove to be anything but narrow or restrictive. With his background in business, he built up a practice as a commercial litigator specialising in professional indemnity claims and media law. According to Chambers’ legal sources, as lawyers go, Martin is “the complete package”.

Gregg Bemis, the late American tycoon who owned the Lusitania, shipwrecked by a German U-boat off the coast of Kinsale in 1915, was a client for 25 years as he fought for an exploration license. Controversial property developer Owen O’Callaghan’s seemingly endless battles with the Mahon tribunal were steered through the courts by Martin. The RDJ partner also practiced administrative law in the areas of planning, public procurement, and public licensing. 

In 2012, he was appointed managing partner of RDJ, a position he has held for nine years despite at first being a “reluctant leader”. During that time, the firm has experienced substantial growth, a topic we discuss at length in a recent interview over Google meet.

With just 18 lawyers, RDJ was a minnow when Martin was starting out. It wasn’t even the largest legal practice in Cork. Now with over 100 solicitors, it ranks number ten, size-wise, in the Law Society’s annual listing of the top law firms in Ireland. A significant achievement. That, according to Martin, can be credited to the bravery of the old guard at the firm who forewent short-term profits for long-term growth, by expanding the practice into areas such as tax law and mergers and acquisitions in the 1990s when Ireland was beginning to reap the benefits of the European single market and foreign direct investment. The perspicacity of the RDJ partners paid off. It propelled the firm in front of its Cork competitors into the national, full-service practice it is today.

But Ronan Daly Jermyn is not like other big law firms. For one, its headquarters remain in Cork, not Dublin, although the Dublin office is where most of the firm’s partners are based. There is also a Galway office. This makes for an interesting cost-efficient, networked business model where client work typically feeds into the Dublin office and is then distributed by the partners to solicitors and associates in the regional offices. Cork, in particular, is the engine room of the operation as it is where the firm’s IT and administrative staff are based.

Explaining this shifting dynamic, Martin tells me: “We have lost our focus around being a Cork firm. Our teams are national teams.”

When we speak, the RDJ managing partner is in shirt sleeves at home in Cork. Judging by the decor, he is in his sitting room. As the Covid-19 pandemic continues, RDJ has split its staff into two teams who work alternate days across the three sites in Cork, Dublin, and Galway. “But you’re really supposed to only go in where necessary,” he adds. 

When RDJ conducted a survey of its staff, most responded that they wanted a hybrid model of working between home and the office.  He points out that having a distributed office network over three sites facilitated a smooth transition to remote working when Covid-19 struck in March last year.

But Martin is sceptical about the benefits of working from home. “I’m concerned about the long-term effect of this on people. There are people talking about the new way of work and all the rest and won’t it be great and I’m not sure how great it’s going to be because you see disconnection. People are becoming disconnected,” he says. It is not a subject we dwell on particularly. We say we will return to it but we don’t. Perhaps pandemic fatigue has set in.

Instead, we discuss leadership, risk, diversity, defamation, the failure of strategic housing, and the business case for law reform. We also talk about the march of the international law firms and the big four accountancy firms as they begin a carve-up of the Irish legal services market. In conversation, Martin is articulate without being slick and has the confidence to go off script, if not off-piste. He is frank and his answers appear considered rather than contrived. He is the sort of person you would trust to deliver bad news.

But first, a delve into the recent history of RDJ:

Francesca Comyn (FC): One of the reasons I thought it would be interesting to interview you is that RDJ is one of the big law firms but it’s the only big firm headquartered outside of Dublin. And I know RDJ has experienced a lot of growth during your time as managing partner so I suppose to get the ball rolling maybe you could tell me what it means to run a big firm from Cork, and how it might differ, as far as you can tell, from doing that in Dublin.

Richard Martin (RM): I suppose that it has changed somewhat since we became a less Cork-centric firm and a more national firm. I’ve been with RDJ since 1989 and at the time that I joined nearly 32 years ago, it was a Cork firm. It was one of the biggest Cork firms at the time but not necessarily the biggest, and then it became the biggest over time but it was very much a Cork firm. 

We pushed and pushed those boundaries in terms of the nature of the work that we were doing and the calibre of the clients that we were servicing. But ultimately, Dublin was on our agenda for almost all of the time that I was with the firm. And then in 2015, we finally decided that we had to be in Dublin. We saw the growth of the bigger firms around us and knew it was necessary if there was going to be any prospect of us realistically competing with them in the future whilst not in any way dispelling or demeaning the roots from which we had come. And then there was our merger in Galway in 2010. But Dublin became an inevitability. 

We opened there in 2015 with eight people and we have 50 people there now. I won’t say in any sense we have lost our Cork roots, but we have lost our Cork focus. Our focus now is more national. There are clients for whom we do work, particularly the banks and some of the bigger insurance companies, who carve up their work on a geographical basis so that has worked very well for us because we can service areas in the south, in the west, and now in the east and that’s really good. 

But we do try very hard to position ourselves as not being a Cork firm or a Galway firm or a Dublin firm, but a single firm, which has three sites. That may sound perhaps like a somewhat artificial distinction but culturally it imbues in people a sense that there are no boundaries in terms of where we look for work and how we look for work and who we regard as our competition. So in Dublin, we have 50 people. But the truth of it is, there are 260 people in one firm, and when we look for work in Dublin, when we look for work in Cork, that is what is in our minds when we put ourselves forward for whatever work it is. 

In Dublin, because of the nature of the place and the cost of doing business there, we have a higher proportion of what I would call frontline people. And because we have a cost advantage in being able to do so we can actually service that work in Cork and/or Galway. So I think over time, and we’ve worked very hard to achieve this, we have lost our focus around being a Cork firm. Our teams are national teams. We don’t have a Cork commercial team or a Cork tax team or a Galway healthcare team. We have a healthcare team, we have a commercial team, we have a litigation team. And it doesn’t matter. All of those teams meet once a week by video link, generally on a Monday morning, and they operate as a single collective rather than three site-based teams.  Our biggest, our most significant office is in Cork. We have 160 people in Cork and then 50 in Galway and 50 in Dublin. That’s where the functional departments sit; IT, finance, marketing and people all sit in Cork but that belies, I suppose, the fact that we have in our own minds become one firm with three sites.

FC: Just to row back a little bit. You were talking about your three-decade span in RDJ and the firm outstripping other Cork firms. Would you put that down to this intention of building towards a national presence or do you think that the firm showed more gumption in terms of the type of work it took on?

RM: I’ll tell you exactly what allowed it to grow. When I joined, and for the years following my joining, there was significant, I think, courage; and a preparedness to allow profits to dip, through bringing in specialist lawyers to operate in particular sectors with a view to growing the firm. So, what I would now regard as the old guard at the time, I think they were quite forward-thinking in the fact that they were prepared to see a temporary dip in their own takings in order to bring the people in who would take the firm further than our competitors, and they did that very well. I suppose when I came in, there were a lot of homegrown lawyers, and not long after I came in, we went through a period of a lot of lateral hires; often from the big Dublin firms for people who perhaps wanted to relocate back to Cork or perhaps got married to somebody from Cork or whatever it was. The firm engaged in a strategy of bringing in specialist lawyers in order to grow, and that’s where that started.

FC: Can you elaborate on what sort of sectors you’re talking about when it came to the old guard bringing in specialists and then later when it came making lateral hires.

RM: When I came into the firm there were 18 people in total. There were generalist conveyancers, generalist litigators etc etc. So I suppose the first that I can recall was an M&A lawyer. He came in from McCann Fitzgerald and he was really successful in developing an M&A practice over time. There was a tax lawyer that they brought in who joined us from what was then Ernst and Young. We had an IP lawyer who joined us from Allen & Overy in London. So it was outside of the mainstream litigator, corporate and commercial conveyancers. It was within those areas, there were people who were brought in who were specialists.

FC: What kind of timeline would you be talking about? What sort of era in the firm’s development?

RM: Mid-nineties.

FC: So that was in response I suppose to a changing economic and regulatory environment; kind of a natural response but maybe some other firms stuck to bread and butter work.

RM: There were some Cork firms who had very strong connections either with particular large clients or particular industries, and they didn’t do what we did. They haven’t significantly grown over the years, at all.

FC: And when you say frontline staff are mainly in Dublin, if you boil it down to solicitors, partners and so on, is it sort of even stevens between Dublin and Cork?

RM: You’re going to see a higher proportion of partners in Dublin and yes, of course, there are some assistant solicitors and associate solicitors in Dublin, but there are a higher proportion of assistant solicitors and associates in Cork and Galway than there are in Dublin. So to the extent that the work is brought in at the partner level and they seed some cases to their own colleagues in the Dublin office, but in as many cases they’re passing work out to Cork and Galway, in what has become a pretty seamless way. And I suppose that seamlessness in one sense prepared us a little bit better than others might have been, for what hit us in March of 2020, because we had already embarked on a practice of working with people who were not sitting beside you, or who weren’t even in the same building as you. They were in a different part of the country so at one level we had got used to that.

FC: Given that there is a Dublin focus then, regardless of the firm’s headquarters being in Cork or a national focus, what is the USP of RDJ, when most of the other big firms are in Dublin anyway. Is it just a matter that you’re all competing in the same fashion or is there something that is different about RDJ that appeals to certain clients?

RM: ​​I think going back to a point I made earlier there are some clients like the banks and the insurance companies who carve up work on a geographical basis and they like to have bums on seats in the places that they are doing their business. For instance, we have a significant health care practice. We do a lot of work in the clinical defence space and all of that is in the High Court sitting in Dublin. But allied to all of that in some cases, you’re going to have people needing to regularly attend inquests. They happen locally. Yes, of course, people can travel from Dublin or wherever it needs to be but it’s not terribly expedient and I think there’s also a question that if you’re practicing in a certain area, clients will expect you to understand the vagaries of the judges and the personalities in that particular area and how things work and all the rest. And I think that, for sure, is a significant advantage for us in relation to those clients who carve up their work on a geographical basis. Further than that, I don’t see any differentiating USP in relation to our geographical spread any longer. We are one firm, and it doesn’t matter where your issue is. Sometimes as I say, it does matter, people want a Galway lawyer, and interestingly, when we get international referrals, a lot of the time they choose us because their problem is, for instance, in Cork and they’re looking for a Cork lawyer. They may not even understand that Cork is only down the road from Dublin, they’re looking for a local lawyer. 

FC: Earlier you spoke of the bravery of the old guard at RDJ in allowing for a dip financially to let the firm grow. What would you consider to be a similar sort of brave move at a time like now?

RM: When I say brave, I mean brave in the sense that we are partnerships. And the practice obviously operates on the basis that we pay the costs and the remaining monies are profits for distribution to the equity partners. If we decide to invest in a new area of law, and when I say new area, I mean a new area for us rather than a developing area of the law, if we decide for instance to open a tax department, in reality, you’re going to need to hire a partner and you’re probably going to need to hire an assistant. That might cost you €250,000 to 300,000 and it’s going to take some time to produce a return. That cost has to be sucked up by the equity partners of the day because that cost falls to the bottom line. So I mean brave in the sense that they are prepared to make the investment and to spend their own money because it’s not a limited company. It is their own money, it’s a partnership share, to invest in that area because they see a future in that area and that it’ll pay dividends in time. I suppose that’s the sort of the bravery I’m referring to.

FC: I appreciate that but you’ve been at the helm as managing partner for eight or nine years now? And during that time, what kind of big decisions have you made that might be categorised as brave?

RM: I think the bravest decision that I/we made in 2013 was to leave the city centre in Cork, and move out to Mahon point, which although within the city boundary is very much a suburb, to a commercial park, which was almost exclusively occupied by US multinationals. That was motivated by the expiry of our lease in an unsuitable premises and the non availability of other suitable premises in the city at the time so we made that decision in 2012 and we moved into our current office in 2013. There were people who said to me in particular at the time ‘you’re nuts’ –  top law firms, top professional services firms do not leave the city centre. They operate in the city centre. Every big Dublin firm operates in the city centre. And I suppose, part of this was based on a culture that had developed. We had three years under our belt with Galway and we saw, and see, that things can work equally well where you’re not, perhaps, in the centre of things. We worked with our colleagues in Galway without any negative effect, and we just didn’t particularly see it as a huge issue. And as time passed, we realised that it wasn’t an issue at all. In fact, in terms of accessibility and for those clients who wanted to come and see us it was infinitely more convenient for them because we had a rake of parking and we didn’t have the same city centre traffic that others had. I think that was a brave decision at the time. As I said we opened in Dublin in 2015, call it brave or not. By the time it came around, we figured it was the right thing to do. What else did we do? 

We opened a small office in London, and again that worked out very well but that was a very focused service centre. We don’t even have anybody there full time but what we have is one partner and one assistant. They haven’t been there for the last 18 months but before that, they would spend a couple of days a week there in order to service international big insurers who write Irish risk. So it’s not UK law, it’s Irish law. But for London based insurance companies who are writing Irish risk. I think, in truth, it was a facility for those clients to get physical access to us when they needed to. But frankly, it was in some sense a sales centre as well. I know the word sales is not often used in the context of law firms but I don’t see why not.

Startups don’t have any money

FC: Yeah. It’s a business after all. Can you tell me about RDJ startups? How new is it as an idea and what is the business thinking behind it?

RM: It’s about two and a half, three years old. The startup community as you know, they don’t have any money. They don’t have any access to money and there is a proportion, albeit a small proportion of them, which will grow and thrive. And I suppose part of our thinking was to become known in that space as providers of legal services. But part of it also was an acknowledgment that for not a very significant investment, we could help these guys out now. I mean, this wasn’t for the good of our health, obviously you would hope that they’ll come back. 

So what we did is we created an online resource of template documents, legal documents, which the vast majority of startups will need access to in that startup phase. And we didn’t charge any money at all for them. All they needed to do was sign up with an email address so that we knew who they were and they could access it. And the idea was that in time, as those that flourished needed it, they would pick up the phone to us and say, ‘well look you guys helped us out at the very start’ and, obviously, to the extent that there was anything in addition to that which was available online for free, that they would pick up the phone to us, and it’s been great. As you know the proportion, or the level of success among startups, is low but it’s there and there are some fantastic companies that started up in Ireland over time and so we wanted as early as possible to put ourselves in front of those people to say, ‘we are here and this is what we do’.

FC: Is there any research to support the idea that there may be loyalty in return? Maybe not in an Irish context but was the idea based on international studies?

RM: No, there wasn’t any research behind it. It was a concept developed by our corporate and commercial lead Gillian Keating. Because we were getting a lot of requests, not even so much from the startups directly but from those who are involved in their promotion – perhaps early investors who would have been known to us – that these guys need help and they can’t afford to pay for us. I mean that’s a reality across the board, and there was no research done but we figured, when we thought about it that if we put ourselves in front of these people at the earliest possible stage and help them out, that at least there was going to be a prospect that they would turn to us when they grew and developed, and were in a position to need and pay for legal services. We didn’t rely on any research on this, but we were proved to be at least, in part, correct.

“I think the strategic housing initiative, with all of the right intentions, got it completely wrong”

FC: What areas of law would you consider  – regardless of whether RDJ is going into the space or not  – what would you consider to be potential areas of growth in law and legal services?

RM: I think the biggest at the moment is around data. We have become, and are becoming, extremely busy in that space, and we are having to train more lawyers, both commercial litigators and corporate and commercial lawyers in the data space, particularly around data breaches and obligations to the data commissioner and that sort of work.

We have a service that we offer to insurers which is 24/7, and it is absolutely used 24/7. We guarantee a 30 minute response time to an initial contact whatever time of the day or night, and the relevance of that is the data breach may occur in an Irish division of a US headquartered company or an Indian headquartered company and they need access to lawyers very quickly. We’re now the exclusive providers for three major insurance companies here and that has become extremely busy. Of course there are those clients of ours who may not have insurance and we do it for them also. 

FC: That means there’s someone who will be on call at any given time who may have to take a phone call at four o’clock in the morning. 

RM: I think when anybody has a crisis in their lives or in their business, they want to talk to a human being. They don’t want to access some portal where they plug-in data and they get a response back, they want to talk to a human being. Part of what they need is an understanding of how the process is going to play out. They need, if we can give it, a level of reassurance but they also need to understand that somebody is in control of the crisis insofar as they can be so. And that is something that the insurance companies in their competitive reach, in trying to attract clients of their own, have to sell very hard  -that personal contact  – that there is a person at the end of the phone 24/7 who will do this and look after you.

The reluctant leader

FC: I suppose, moving on to the question of leadership. You’ve been managing partner for nine years, how have you found that experience?

RM: I must say, I was a slightly reluctant candidate. I was really busy in my practice and I didn’t know whether I wanted to do this but anyway, I did it, and I have really enjoyed it. I really enjoyed developing, because we’re not trained as managers, we’re not trained as leaders. I have learned an awful lot on the job to be honest. I think the biggest thing I’ve learned is around trust. The great places to work, their big thing is around the most trusted leader and I think trust is a huge issue and what I have found out about trust is that you will never achieve a level of trust, unless you have a level of really good and honest communication. You must tell people what you’re doing but you also must tell people why you’re doing it. They might not agree with you but at least if they understand where you’re coming from, they won’t necessarily question your motives or they won’t infer that your motives might be other than for the good of the firm. 

And I said to myself, actually with a pit in my stomach on the 1st October 2012 – and I’d been at the firm for a long time – when I drove into work as the new managing partner, I thought to myself,  if I can say that every decision I made was for the good of the firm, I think that I will have done well.

I don’t know if you’ve ever seen or read Jim Collins book Good to Great. It’s a great read, but he talks about how many leaders fail because their ego gets in the way of them putting the firm first and actually what they do is they put themselves first. And I suppose that’s another area. It has to be firm first and that requires sometimes unpleasant and hard decisions and choices that have to be made about people which might hurt, but if it’s for the good of the firm, well then it’s for the good of the firm and it has to be done. I think the other thing is you need to be very honest with people. I think they might not necessarily like your honesty, but they’ll certainly respect you for being honest. And I’m thinking in particular around career trajectory and that sort of thing. I think Covid has really demonstrated this, a level of nimbleness and agility is just so important and an openness to change. Allied to that you’ve got to have the persuasive capacity, particularly in a partnership. I have 22 partners and you have got to bring them with you to the extent that you can and that can sometimes be really hard.

FC: All lawyers too.

RM: I won’t even get into that but I think lawyers are a particularly hard bunch to lead because everybody has a pretty firm view of the world in which they live, and that might not necessarily accord either with your view, or sometimes, and this isn’t because they’re being in any way difficult but it might not accord with the needs of the business or the needs of the firm in terms of what’s best for it. They sometimes look through a narrower prism.

FC: Have you learned any hard lessons along the way?

RM: I suppose the only hard lesson really that I’ve learned along the way is if you’re trying to bring a group of people with you, whether it’s the partnership or the firm, you really have to do your homework and you have to understand exactly what it is that you’re trying to impress on people that we should do, because if you don’t, and if you haven’t put that time in, you will fail. Not because the project or the decision was the wrong one but because you made a balls of it in terms of, perhaps, the level of investigation and planning needed to bring people with you. 

I made some mistakes around people. And that’s inevitable. It happens. But yeah, there’s been a few catastrophic mistakes around people. But there we are. When you’ve got 260 people you’re going to make catastrophic mistakes about people. I think one of the things with people is when you find out, if you find out, that you have made a mistake in relation to an individual, you need to deal with it really fast. You need to deal with it really quickly because it will never get better, it will fester and get worse. And it will operate like a cancer because it will infect and affect people around that person. So if you have made a mistake and mistakes will happen, you need to be decisive. 

*****

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A new paradigm

FC: Just looking at how law has changed in recent years we’ve seen an influx of multinational law firms coming in, we’ve got the whole post Brexit scenario. There’s less chat about that now, maybe Covid has tempered the march of US and UK law imports but will that pick up again? Do you think this is going to be the reshaping of Irish legal services in the next decade?

RM: I do. Absolutely. Even during the Covid period. The most recent one I think, Taylor Wessing, opened in Dublin during the Covid period. I have a very specific example where we have a very significant Irish based client with a UK subsidiary, and they decided to sell the UK subsidiary, and they engaged one of the big multinational law firms in the UK. And then, in time, they decided in fact that they would sell the whole group. And whereas we had worked with this company for 40 years, the fact that there was an incumbent lawyer in England, who also had an Irish office opened in the last number of years, made it a logical follow on that that same firm would undertake the sale of the Irish operations, the group. That was to me the first time that it really hit how this is going to work. It’s in relation to the international reach that these firms have that there is going to be an impact on us, insofar as we might act in Ireland for a member of the group that is located in Ireland.

FC: I’ve interviewed Eavan Saunders from Dentons and David Carthy from DLA Piper. They make no bones about the fact that that’s precisely what they’re selling – that international reach. Does it worry you, that future?

RM: It does worry me a little because on that international piece, it’s really hard for us to displace that modus operandi that they have, because they’re getting in there in the US or the UK or France or Germany so by the time that anything comes into Ireland they’re already an incumbent, that’s hard for us to displace. Thus far we have seen a very significant loyalty, we haven’t seen any level of client attrition, the bigger impact for me is in relation to staff and talent. And it’s not just the influx of the multinational law firms, it’s also the expansion by the big four accountancy firms into law, and they are, at the moment, actively pursuing people in all of the big law firms to join them.

FC: They’re actively pursuing the most lucrative areas of law right, as well?

RM: Correct.

FC: What sort of expansion have you seen?

RM: I know EY law are on a particularly – aggressive is maybe the wrong word  – they’re on a clear growth strategy at the moment. They are hiring out of the big firms significantly, I couldn’t say what the numbers are. 

Our conversation turns to the government-backed joint initiative set up by the Bar Council and the Law Society to promote Ireland as a forum for international dispute resolution, post-Brexit. In 2019, former taoiseach John Bruton was appointed as chair of the working group established to promote Ireland as a centre for international legal services. The idea was to push Ireland’s advantage, particularly in the US, post-Brexit as the main English-speaking common law jurisdiction in the European Union. I ask Richard if he believes there is any reality to the idea of Ireland being a place to do legal business post-Brexit or whether multinational corporations would be as happy to resolve their contractual disputes under French or German law.

RM: I must say I’d be a little sceptical because I’ve seen it before. There was a drive some years ago, orchestrated primarily by some people in the Bar Council, to make Dublin a major international centre for arbitration in the same way that Dubai and London, and Paris are at the moment. I really didn’t see, or haven’t seen, much development out of that and I think there is a perception of Ireland, which is unfortunate but possibly well placed, that it’s a slow and expensive place in which to resolve disputes. I think the Commercial Court has done an absolutely amazing job. Peter Kelly spearheaded that many years ago and that’s worked very well but elsewhere within the system I mean the whole planning system, our judicial review, the whole discovery process within commercial litigation in particular, it’s crying out for some fairly serious overhaul at the moment. Taking discovery, for instance, I mean one of the things that a client wants to the greatest extent possible is certainty around the legal costs associated with a particular piece of litigation. Discovery at the moment, both the process and the breadth of it, the capacity for people to, in a sort of a David and Goliath basis, to misuse and oppress another party to litigation through the medium of discovery. I mean it’s insane. 

FC: Have other common law jurisdictions allowed it to get way out of hand. Does the UK have similar issues with discovery, is it a common law feature or is it just something that’s here?

RM: No. Firstly, it’s a common law feature but I think other jurisdictions have addressed or are addressing it. We have not addressed it. I mean it all started with this famous Peruvian Guano case where essentially the test is whether a document that I seek from you as the opponent in my litigation with you is necessary and relevant, but the interpretation of necessary and relevant need only be very tangential. Whereas, now what is being proposed, in Peter Kelly’s huge proposal for reform, they’re saying that the moving party seeking discovery must be able to identify specifically what it is that they’re looking for, and that it will affect the outcome of the case. That would massively narrow the scope of discovery. Not only is it too broad, and too expensive, and too slow, but it is being actively misused by litigants to cause oppression in litigation for sure. And that’s wrong.

The case for reform

FC: I’ll come back to those sorts of legal issues in a second. But back to Ireland as a centre of law post-Brexit. Is there a sort of naivety that American firms, in particular, will feel a sort of solace in being in a common law jurisdiction. Do you think that’s a kind of a naive presumption that they would give a damn, I mean if they have European lawyers in other jurisdictions who are able to work through contracts and litigate in those countries, surely they’ll be happy enough? How many executives really want to look through a contract and feel reassured as armchair lawyers ‘Oh, I’m glad [any dispute] will go through a common law jurisdiction because it’s more familiar?’

RM: Your very last word there ‘familiar’, I do think there is a comfort in a litigant, understanding what it is that the process will entail. And as it’s vaguely similar to that which they experience in their own jurisdiction well there is a comfort in knowing how it works, and therefore, a capacity, perhaps to predict an outcome in a way that you wouldn’t be able to do if it was in a civil law jurisdiction, like France or Germany or Italy where the process is completely alien. You know, no lawyer at the office is going to explain or be able to explain the totality of the entire process. And therefore, you know, surprise can be a feature so I, I don’t think it’s naive, no. I think there is a degree of comfort in familiarity if you understand what it is that the process is going to entail, I think that provides some level of reassurance, in choosing that place, in order to do your business.

FC: So that would bring us back round to what you were saying, that the actual barriers to that becoming a reality, you think, would be much more on the practical side in terms of costs, and the resources of the Courts Service to deliver the kind of efficient justice that people might expect of a jurisdiction.

RM: Again, outside of the Commercial Court I think that there is a tolerance in Ireland for non-compliance with the rules of court which you just do not see, for instance, in England. There are timelines under the rules of court for the delivery of certain pleadings. Nobody ever sticks to those timelines, and there are no consequences to you not doing so. And if you haven’t complied with the timeline say to deliver your defence, I have to make an application to court. I have to send a 14 day warning letter. I then have to bring a motion and it’ll probably take six to eight weeks to get listed, and then I’ll be given six weeks in order to deliver my defence, and it might cost me a grand in fees. I mean, that has put that process back by four months.

FC: What happens in England, for example, if you don’t deliver on time?

RM: There’ll be costs orders made against the lawyers. And that’s a very fairly sobering outcome in ensuring that there is compliance. 

FC: Would you advocate the same here?

RM: Would I advocate the same here? I don’t like the idea of what they call wasted costs orders because I think that there are circumstances in which it’s not the lawyers fault, and I don’t see why the lawyer should be penalized for it. But I think there are occasions where there is deliberate foot dragging simply because the litigant wants to draw the process out, and I think on occasions where it can be seen that there is that deliberate foot dragging, I think it may be the only way in order to ensure compliance with the rules of court.

FC: So that’s kind of a woolly in between then. I suppose you could maybe go for a wasted costs order unless there was shown to be a justifiable delay. I’m sure there are ways around it, right?

RM: Yes.

FC: Other things like judicial review obviously some of the heat has gone out of that because the whole strategic housing scheme has been dropped or reformed, but it was obviously becoming a very tense issue. And yet some of the reforms that were being proposed by business groups and the Civil Justice Review Group were not finding favour with civil rights groups whether it be cost orders or putting extra barriers in and the whole question of access to justice. What did you make of the argument that was going on?

RM: There is a constitutional right of access to justice. I don’t think on the judicial review front, that the way to limit review is to penalise people heavily in costs. I think that’s going to create a bigger problem than it’ll solve to be honest, I think the way to deal with it is to sharpen the rules around judicial review substantially, largely as was proposed in the reform report, I mean one of the big things for instance which we see a lot is that there are campaigners out there who will judicially review decisions of public authorities because it accords with the objectives of that particular campaign, but I can bring an application for judicial review in the morning in relation to a housing development in Bundoran. I shouldn’t be able to do that. I have no standing or interest. One of the recommendations of the reform group was that you have to demonstrate a connection with the issue about which you want to judicially review. It’s far too wide. And it is leading in my view to abuse. 

I think the process needs to be speeded up, I think the strategic housing initiative with all of the right intentions, got it completely wrong, because what happened was the public were being excluded from the process, largely excluded from the process, in a way that they weren’t in the traditional ‘make an application to the local authority, the local authority makes a decision, you appeal it to An Bord Pleanála’ process. There was engagement at various levels. And even if the process went against you at the end, you weren’t seeing anything like the level of judicial review, even on major infrastructure projects in the past where you had gone through the process of local authority to An Bord Pleanála. There was nothing like it. I think the real problem with the strategic housing initiative was the exclusion of the public firstly until a very late stage in the process. And secondly, it was far too minimal and too tight and there was no recourse, really, other than through judicial review and I think it failed.

FC: And they were winning as well. It’s not like there were just loads of challenges. Those taking judicial reviews were winning.

RM: Absolutely. And that’s another thing. When you change the law, and you provide for a new system, which is going to put pressure on a statutory or a quasi-statutory body like An Bord Pleanála, you have to resource that organisation in order to cope with the new system which is going to place a huge degree of greater pressure, and they didn’t do that. There were no resources added. I think, and I’ve seen reference to it, An Bord Pleanála were completely swamped with work. They had a finite number of inspectors to do it and they were completely swamped.

The jury problem

FC: And they were being asked to do something different, outside of what traditionally would have been their remit. Are there any other areas of law that you believe are in dire need of reform, or just in need of reform, for efficiency reasons or otherwise?

RM: Defamation is one of them. I think the whole jury system is not working. I’ve been directly involved, I’ve been at many civil jury trials. It was one of my key practice areas, defamation, and you see Donal Kinsella, the Kenmare Resources director got €10 million and the pilot against the Irish Aviation Authority – I mean, what did they say about that guy – something like ‘the boys won’t get off scot free’ and the jury awards him €387,000. In circumstances where you are in an accident caused by me and you end up a quadriplegic, the maximum that you’re going to be awarded for general damages is half a million.

FC: Would you get rid of juries entirely or do you think they still should decide whether there has been a defamation and then let that be the end of their participation.

RM: I think there is a validity to the retention of juries to make a decision on whether there has been a defamation or not; the idea being it is the ordinary man sitting on a jury, deciding whether another ordinary man, by reference to my standards, not to legal standards or a judge’s standards, but to my standards as a human being, has that guy or that girl had their reputation taken from them. I think it’s appropriate that a jury would make that decision because that decision is not clouded perhaps in any way by a consideration necessarily of legal principles. I mean legal principles are a part of it but I do think that the matter of damages should be for a judge who has a lot of broad experience, and is aware of guidelines and caps in other areas of civil law. Now I know the most recent defamation act now permits the jury to be addressed on the question of damages as the jury was in that Irish Aviation Authority case. There isn’t a whole lot of evidence that they take account of it to be honest, so I think damages are a matter for a judge.

There was research done some years ago. I think something like 95 per cent of defamation plaintiffs in the High Court collected, either on foot of an award or on foot of a settlement. That’s not good. There are areas of defamation law which are complex enough, particularly around the public interest defense that a jury would need to get their heads around but I think if you take the issue of damages away from the jury and give it to the judge, I think that would be the best balance. 

FC: Away from defamation, are there any other areas of law you believe are in need of reform?

RM: The only other one is is is in the area of shareholder disputes, where the mechanism available to a shareholder, perhaps in quite a small company, who has a dispute with his or her shareholder or shareholders in the company, the resolution mechanism is the high court under a number of provisions, whether it is a petition to wind up the company, whether it’s an oppression action or whatever it is. It’s a sledgehammer to crack a nut in many cases because a lot of these disputes occur in quite small companies who simply cannot possibly afford the cost of a high court, contested shareholder action under the Companies Act. I think there needs to be a simpler and cheaper resolution mechanism for those kinds of disputes because it just doesn’t work, it doesn’t work at all.

FC: I’m guessing that your time as managing partner may be drawing to a close or maybe that’s presumptuous. I presume there are votes from time to time.

RM: My term is up at the end of September 2022. You talked about gas in the tank. Yes, absolutely there’s gas in the tank. In terms of what happens then, I said earlier that any decision must be for the firm and in the best interests of the firm. It can’t be centered upon the desire of me or anybody else wanting to stay wanting to go whatever, it must be what’s best for the firm as determined by the partners of the day. So, we’ll see.

As our time wraps up, I ask Martin if he is happy to go back to his commercial legal practice or if there is anything else he still has a hankering to do. He replies that he never fully left his practice and that he enjoys the different sets of problems and issues that the law throws up. But there’s an equivalence in his response that suggests he has not ruled out another five years at the helm. “As managing partner, it’s not just managing the practice but managing 260 people, that’s the real challenge. So to go back to legal practice, yeah, absolutely I’m up for it and looking forward to it when it happens, whenever it is”.