Mr. Edmund Honohan:

I will put it this way. There is information out in the ether that is the law, but for a lay litigant, there is a paywall. He or she cannot access this information without committing himself or herself to huge expenditure. That being the case, there is certainly the temptation on the part of counsel to dodge the awkward questions on the legal position. He or she is on a fair bet that he or she will not be picked up on it by the lay litigant on the other side. I will give members an example. The 2013 Act, which the Oireachtas passed, allowed for the Circuit Court to adjourn repossession cases for two months to allow the defendant to consult a personal insolvency practitioner, PIP. The language of the Act is fairly clear. It provides that the judge "may" do this. Of course, it cannot say that the judge "shall" do it because that is an interference with the independence of the Judiciary. There we have a provision which states that the judge may do this off his or her own bat. That was 2013. I have never seen a case where a lay litigant has been given two months to go and consult a PIP. The reason for that is the counsel on the other side will not have reminded the judge that there is an option there for him or her to adjourn the case for two months. Judges are tearing their hair out and finding reasons to adjourn, but there is a specific statutory reason that has not been drawn to the attention of judges in any way by the plaintiffs in these cases, namely, the 2013 Act.

I will give members another example, which is quite interesting. It is the introduction of the Code of Conduct on Mortgage Arrears, CCMA, which came in in 2013. I do not know if members have read the submission from Professor Kenna. In any event, the mortgage arrears resolution process, MARP, was introduced in late 2013 under the code. I recall some surprise when in court I produced copies of the code, handed them out to the parties and said no one was going to get an order for possession until they had complied with the code. Nobody had told me to do that and nobody had told the judges that there was a new code. In fact, we then had a ding-dong battle, with a judge ruling eventually that the code was not justiciable, which is to say that it was not legally binding anyway. Eventually, it went to the Supreme Court and another judge, who was later the Chief Justice, decided that only one part of the code was legally binding. I cannot remember which part it was but the point is that it was a developing understanding of the nature of the legal obligation arising out of the code.

Finally, in 2020-----