Alternative Dispute Resolution in Irish Administrative Law
This is the third post on Irish administrative law arising from my draft paper for the Oxford Handbook of Irish Politics. Comments welcome!
Alternative Dispute Resolution
Great attention has been paid in recent years in the common-law world to alternative dispute resolution, which we can for present purposes define quite simply as means of resolving legal disputes that do not involve resort to ordinary court procedures.
There is a particularly useful discussion of the advantages of alternative dispute resolution and its potential to transform the roles of lawyers and judges in modern legal systems in Hryniak v. Mauldin,[i] a recent decision of the Supreme Court of Canada. This case concerned the use of the summary judgment procedure in Ontario, a procedure which allows courts to come to a final conclusion about the merits of litigation without going through the time and expense of a trial. Ontario’s Rules of Civil Procedure permit judges to resolve claims by weighing evidence, evaluating credibility or drawing inferences from the evidence without a trial or viva voce evidence where “satisfied that there is no genuine issue requiring a trial” (or on consent of the parties), unless it would be “in the interest of justice for such powers to be exercised only at a trial”.[ii]
Karakatsanis J. began her analysis by noting “a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system”, which “entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case”.[iii] Trials will not always be required and are not to be set up as an ideal-type against which “a fair and just adjudication” shall be measured.[iv]As Karakatsanis J. counselled in a notable passage, “[t]he interest of justice cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness and affordability”.[v]
Moreover, judges are no longer passive observers of counsel and witnesses, but must “actively manage the legal process”[vi] to achieve more efficient dispute resolution, recognizing all the while that “new models of adjudication can be fair and just”.[vii] Far from remaining a neutral arbiter perched above the fray as counsel cite jurisprudence and question witnesses, the modern judge must become a proactive case manager as parties try to settle their differences as swiftly and efficiently as possible. Counsel, too, must “act in a way that facilitates rather than frustrates access to justice”.[viii]
Canada again provides a useful contrast to Ireland, where formalisation of alternative dispute resolution mechanisms has occurred in a piecemeal fashion, with no obvious unifying principle (Ellger, 2012). Judges have noticed, it is true, “an evolving State and judicial policy which seeks to encourage the increased use of ADR wherever possible…”[ix] There is now a Mediation Act 2017, which sets out a general framework for one form – mediation – of alternative dispute resolution in Ireland law. Public law matters are, however, excluded from the scope of the 2017 Act by virtue of s. 3(1)(f), pursuant to which “proceedings in the High Court by way of judicial review or of seeking leave to apply for judicial review” may not be the subject of mediation. Of course, caution needs to be exercised with measures such as arbitration, mediation and negotiation, especially where organs of the state are involved (King, 2012). Where public power is being exercised, its exercise ought in principle to be public and open to scrutiny by politicians, lawyers, the media (Daly, 2016). Accordingly, there is good reason for significant caution in extending alternative dispute resolution procedures to the administrative setting. Nonetheless, initiatives of this nature, which would permit the articulation outside the courts of public law norms are at best in their infancy in Ireland.
One notable means employed to great effect in Ireland of providing individuals with redress against statutory bodies without bearing the burden of litigation is the Ombudsman. In respect of many of the complaints addressed by the office, the Ombudsman covers the same ground as the courts. Indeed, s. 4(2)(b) of the Ombudsman Act 1980 (as amended by the Ombudsman (Amendment) Act 2012) provides, amongst other things, that the Ombudsman may investigate any action taken by a public body which was or may have been “taken without proper authority” or “taken on irrelevant grounds” – these are issues which the High Court regularly has to address when assessing the legality of actions taken by statutory bodies. Section 6(3) of the 1980 Act makes clear, however, that the Ombudsman only has the power to make recommendations, which public bodies are – as a matter of law – not obliged to accept or implement.[x] Moreover, the Ombudsman, as itself a statutory body, is subject to the constraints of public law imposed by the High Court, and, to underscore the point that the even the Ombudsman comes under the supervening authority of the judiciary, a new s. 8A (inserted into the 1980 Act by the 2012 Act) allows the Ombudsman to refer a contested question of law to the High Court for authoritative resolution.
Even in an institutional setting designed to promote quick and cost-effective alternative dispute resolution, the Irish courts have been very cautious about loosening the constraints of public law. For instance, in an important Supreme Court case on the Financial Services Ombudsman – a statutory body designed to hear complaints by individuals against providers of financial services – “the concern for the conventional legalities of administrative law…[was] striking and came as a surprise to the Ombudsman” (Hogan, Morgan and Daly, 2010; cf Donnelly, 2012). Although the evident objective of creating such an Ombudsman was to allow for the resolution of disputes between private parties and financial institutions in a quick and cost-effective manner, the upshot of the approach taken by the Supreme Court was that significant procedural obligations were imposed on the Ombudsman.[xi]
[i] 2014 SCC 7,  1 SCR 87 [Hryniak].
[ii] RRO 1990, Reg 194, r 20.04.
[iii] Hryniak, supra note 34 at para 2.
[iv] Ibid at 50.
[v] Ibid at 56.
[vi] Ibid at 32.
[vii] Ibid at 2.
[viii] Hryniak, supra note 34 at 32.
[ix] Atlantic Shellfish Ltd v Cork County Council  IECA 283, at para. 27.
[x] Though see R (Bradley) v Secretary of State for Work and Pensions  EWHC 242 (Admin));  EWCA Civ 36,  QB 114.
[xi] Davy v Financial Services Authority  3 IR 324.
This content has been updated on April 18, 2018 at 10:30.