My Concise Oxford Dictionary defines a “gamble” as a risk taken in the hope of a gain”. Given that most experienced lawyers will stop short of guaranteeing their client a successful outcome in their litigation, whether plaintiff or defendant, this definition seems entirely apt as a definition also of “litigation”.

The element of “risk” in litigation can be seen in several ways:

  • The plaintiff or defendant may lose and have to pay not only his own costs, but also those of his successful opponent.
  • The plaintiff or defendant may win, yet be unable to recover his winnings in the case of a plaintiff, or in the case of a defendant recover his costs.
  • Even in a non-pecuniary loss type of claim, the plaintiff may succeed, yet his victory becomes Pyrrhic in the sense that his success has cost him so much as to be ultimately of little benefit.
  • The risk as to costs in the face of a ‘Calderbank’ letter or tender offer by the defendant, even where there is little or no risk of a plaintiff’s case failing on liability.
  • The risk that the sheer length of time that the claim takes to reach a hearing or settlement renders the eventual result of little value.
  • The risk that the emotional toll that the litigation takes on either the plaintiff or defendant, or both, outweighs any benefit that either party may derive from victory.
  • The risk that, on the day, you might just draw the wrong judge!

This short list could be added to quite easily; but it suffices to make my point – that there is nothing to be said in favour of the litigation ‘gamble’ when compared to the ineluctable benefits of mediation as a means of resolving disputes. It is no wonder that in his Devil’s Dictionary (1911) the American satirist and author, Ambrose Bierce, defined litigation as “a machine that you go into as a pig, and come out of as a sausage”!

I have myself, on occasion when talking about litigation as an unattractive option for dispute resolution, said that going to court is a game of chance to be engaged in only by the very rich, the very poor or the foolhardy. For the rich the financial cost of losing is a matter of some indifference; for the very poor the risk of a costs order against them is an irrelevance in their lives since they will likely have no assets which can be seized for the purpose of satisfying the costs order; and then the very foolhardy who are those unwise people who are happy to enter the casino, put everything on red, and hope it all works out.

Other judges have expressed themselves in similar terms: see for example (as helpfully recalled by Twomey J. in Connective Energy Holdings Limited v. Energia Group ROI Holdings DAC [2024] IEHC 23) Mr Justice Kelly’s remark in an article in the Bar Review February, 2018, Vol 23(1), at p. 11 that “Under the current system … the only people who can litigate in the High Court are paupers and millionaires”. 

Ms. Justice Butler had reason to comment upon the advisability of mediation in a Probate dispute where she felt that the level of costs which would be incurred by the deceased’s estate if the case went to a hearing  would result in there being nothing left for the beneficiaries. She decided to exercise the court’s power under s. 16 of the Mediation Act, 2017 to invite the parties to consider mediation as a means of resolving the dispute. In so deciding she stated:

“… I share the concern expressed by counsel acting for both parties that the size of the estate is not sufficient to justify expensive High Court litigation. There is a real risk that if this case proceeds and costs are awarded from the estate (and possibly the costs of both parties), then there will be nothing left in the estate either for the plaintiff, if she succeeds, or for the beneficiaries under the will. Consequently, I think that this is a case in which mediation is not simply advisable, it is imperative.”

Mr Justice Twomey has on several occasions expressed his concerns about the high cost of litigation, and the pressure that is placed on the court’s resources by the need to give a hearing date to cases that could easily be settled by mediation, so that other cases that really need a court hearing could be given an earlier hearing date. Take for example his judgment in SERE Holdings Limited v. Health Service Executive [2023] IEHC 63. In that case there were two issues to be determined. Judge Twomey went on to consider whether it was really necessary to spend court time determining the second issue in the light of the decision on the first issue. He clearly felt that to do so needlessly was a waste of both his own time in writing a judgment, and would in effect mean that time that could be devoted to a another case where the parties required a hearing.

In his judgment, Judge Twomey went to some lengths to urge State agencies “to consider whether a satisfactory resolution of the dispute might be achieved by means of mediation …. “. He stressed the cost of such litigation to the taxpayer stating, inter alia, that “court hearings should be a last resort”. He noted a comment by Mr Justice Kelly in his Review of the Administration of Civil Justice Report (2020) that “Ireland ranks among the highest-cost jurisdictions internationally for civil litigation”. He noted also the comment by Mr Justice O’Donnell (as he then was) in Lett & Company Ltd v. Wexford Borough Council & Minister for Communications [2012] IESC 14 where he stated that “litigation was the most protracted and expensive way imaginable of resolving disputes”. Judge Twomey made another point, namely that often the amount of costs spent by the parties in litigation will be out all proportion to the value or importance of the dispute”.

Until recently, judges have either refrained from commenting in detail on the level of solicitors’ professional fees, counsel’s fees and expert witness fees other than by referring to the enormity of them. Perhaps that is because it would be rare for the detail of such fees to be known by the judge. However, in a recent motion for security for costs Judge Twomey was apprised of the level of fees likely to be incurred by a defendant in defending proceedings brought against them by a company alleged by the defendant to be unable to discharge an order for costs if the plaintiff’s case failed. This made it possible for Judge Twomey to again express his clear view that litigation has become an exorbitantly expensive way of resolving disputes, and the associated question of whether the sheer cost of pursuing justice is an obstacle to a party’s constitutional right of access to justice – other than for “millionaires or paupers” to again use Mr Justice Kelly’s phrase.

In his judgment in Connective Energy Holdings Limited v. Energia Group ROI Holdings DAC

Twomey J. had evidence from two legal costs accountants as to the level cost of the defendant’s costs that the plaintiff would have to pay if the plaintiff lost the case. The lower estimate given by the plaintiff on the basis of a 7 day hearing was in the order of €500,000. The higher estimate provided by the defendant and on the basis of a 16 day hearing was just shy of €1,000,000 euros. In addition to these costs, discovery costs were estimated to be an additional €700,000. In passing, the judge referenced the fact that An Taoiseach’s salary of some €230,000 covers his work for an entire 12 months!

Like many judges, and indeed commentators in general on the subject of litigation costs, I have a real fear that many plaintiffs are now inhibited from pursuing claims to a conclusion in court by the real risk that if they fail they will be destroyed both financially and emotionally. Alternatively, even where they have commenced their litigation, they feel coerced into settling on less favourable terms than they might be likely to achieve if they were successful in court. This has serious implications for the constitutional right of access to court, and the linked question of whether the State should be providing civil legal aid to a wider section of the community – presently confined more or less to family/child law areas.

In his judgment in SPV Osus Limited v HSBC Institutional Trusts Services (Ireland) Limited [2019] 1 I.R. 1 at p 7 Clarke C.J (as he then was) stated.: “… I remain very concerned that there are cases where persons or entities have suffered from wrongdoing but where those persons or entities are unable effectively to vindicate their rights because of the cost of going to court. That is a problem to which solutions require to be found. It does seem to me that this is an issue to which the legislature should give urgent consideration”.

Litigation costs, and the delays involved in getting a case resolved in court, have become a real issue for litigants. Despite the appointment of additional judges to the High Court in recent times, delays are still to be expected in many types of cases. This is despite the best efforts of judges to keep delays to a minimum. My view is that much more needs to be done to constantly highlight the benefits that mediation can bring to help overcome these difficulties in many types of cases. Others who share my views should raise their voices too, so that mediation is seen as “a better way”.