Mr. Edmund Honohan:

No, it is not. However, the procedure is skewed. The final outcome is the result of a decision by a judge, but how one gets there is troublesome from my point of view because we have a situation at the commencement of the problem. After the banking crash, I used to handle all the mortgage cases from up and down the country. People would travel from Roscommon, Limerick and all sorts of places. I protested to the then Minister for Justice, Mr. Shatter, and the Government legislated to give jurisdiction to the Circuit Courts. The Circuit Courts now have the jurisdiction to deal with the family homes. Those homes are the subject of home loans legislation. The Circuit Courts are under pressure, and they have a tendency to operate on a kind of production-line basis. An example of that is where the question arises of what they call an own motion assessment of compliance with EU law.

Irish courts say, "What is that?" They say we operate an adversarial system here in which one has to ask for something before one gets it. There has to be a dispute on paper first. European courts do not operate an adversarial system. The judge in a European court will examine the matter even though no one has asked him. He must look to see whether the contract is fair. There was huge resistance to the idea that the courts should have to look by way of own motion at the fairness of the terms. That is an institutional resistance or pushback.

Then the situation arises that if a person loses in the Circuit Court, they go to the High Court thinking they will get a hearing there. The High Court will then say that no new grounds of appeal can be introduced because they were not mentioned in the Circuit Court. The person has, in effect, left it too late. Then the person goes to the Court of Appeal and is told that the High Court hearing was their last shot. I do not think that was ever the intention of the Oireachtas. It is worth noting that all the significant decisions that have produced new thinking on this have come from the Supreme Court. Now we are faced with the situation that very few cases will get to the Supreme Court.

I have a proposal to make. The Supreme Court operates on the basis that it will only hear cases which are of significant public importance of a constitutional nature, or otherwise. That being so, that is a test they have to pass before they are put into, as they call it in America, the docket. They say they will accept the case and hear that because it is a matter of public importance. Straight away, that decision should entitle the litigants, if necessary, to legal aid because the same test applies to legal aid - is the case for which legal aid is required a matter of public importance? Automatically, there should be legal aid available to anybody who wants to appeal to the Supreme Court. That is just a suggestion.

I mentioned in the eight-page letter I wrote that there are a couple of Supreme Court hints, if I could put it that way, that the court wants cases on particular points to come, especially on some of the matters we have been talking about here. It wants to hear these cases but cannot do so. The cases have to come in. The only way to encourage a full interrogation of what is going on in this system is to give legal aid to people who want to bring an action and an appeal to the Supreme Court. It is cumbersome but effective, and it is also in compliance with EU law.