The closing days of the legal year always remind me of Leaving Cert exam season. There’s a frenzy of activity as people race to complete last-minute work before they can finally cast off the shackles and enjoy the summer. The work comes at you so fast that you have little time to think, and before you know it, August (and freedom) is upon you. Hard work can wait until October, when the new legal year begins again.

The Long Vacation has been a staple of Irish law since the inception of the State, though it is of course a remnant of the English common law system prior to independence and therefore traces its roots much further back. The original 1926 Rules of High Court and Supreme Court passed by the Irish Free State provided for the break between the end of July and the 10th of October each year.

Years ago, there was almost no possibility of getting a barrister to do any work in August and September. Part of this was the technological barrier, as there were no emails or mobile phones. My grandfather, a barrister, was disturbed precisely twice on his annual holidays to Italy over 42 years in practice. Bliss.

Things have changed in recent years, and there is now an expectation that you should be available to work over the vacation periods. After all, the law doesn’t stop when the courts are closed and if there’s money to be made, people will always be willing to work. However, everyone still has the option to make themselves as scarce as they require in August and September. Additionally, judges will use this time to write judgments, so it is not as if there is a complete absence of productivity during recesses.

For many, the Long Vacation might seem excessive. When you factor in the other vacation periods, the courts do not sit for about three-and-a-half months of a given year. For most people working in more standardised environments, 14-ish weeks of annual leave is a dream.

The first encroachment

The government has definitely noticed. This summer will see the first encroachment on the traditional Long Vacation period, with hearings in particular lists being set for September. Described as a pilot project, cases in the family, non-jury/judicial review/immigration and asylum, and planning and environment lists will be heard next month.

The pilot project arises out of a report by the Judicial Planning Working Group (JPWG) published in December 2022 and was announced by the president of the High Court in December 2023. The JPWG was made up of various representatives of government departments and, notably, only contained two judges as observers. This stands in marked contrast to other commissioned reports such as the Review of the Administration of Civil Justice, which was chaired by Mr Justice Peter Kelly and contained several other judges as members.

The JPWG identified that judges needed more time to write and deliver their judgments, which can be a time consuming and complicated process. It recognised that uninterrupted vacation time was important for writing those judgments. And yet, somewhat paradoxically, it determined that a longer working year would facilitate judgment writing and recommended staggered vacation periods across different court lists.

The conclusion is alarming. The JPWG stated: “Over time, as sufficient additional judges are appointed to enable this to happen, all courts should move to scheduling trials over a longer working year, with any period of court closure limited to some days in December and a short period in the summer.”

A complete upheaval

In other words, the JPWG envisaged a complete upheaval of court sittings so that we have hearings almost all year in all courts. It would be one thing if there were plans to cut the Long Vacation to August only and have a legal year that began in September. It is quite another to suggest that year-long sittings should take place, thereby removing the vacation periods for Christmas, Easter and Whitsun.

When announcing details of the pilot project in March 2024, Mr Justice David Barniville stated: “The government made clear, in its acceptance of the report and recommendations of the JPWG, that the appointment of the next six additional judges in 2024 would be heavily influenced by the implementation of the recommendations of the JPWG, including those relating to the pilot project.”

In linking judicial resources to a longer working year, the government has essentially said that the appointment of additional judges will come at the cost of maximum productivity in the court system. The bargain is 24/7 justice in return for more judges.

No thought or respect has been given to the lawyers who must run trials all year. Currently, a case is set down for hearing on a particular date, and lawyers do not have a choice as to when the hearing will be. Mostly, this is not a problem, because the legal terms clearly identify when lawyers should be available to have cases heard.

If the government has its way, you could have a case set down for hearing at almost any point in the year. Suddenly, the courts go from a 38-week year to something more like 48 or 50. This is utterly unsustainable.

Litigation is a hard business. The JPWG gave credit to the difficulties judges face in writing judgments but has failed to consider the considerable effort that goes into preparing cases for trial. The front-end work that is done by barristers and solicitors is enormous, and year-long court sittings would place everybody under incredible strain, mentally and physically. Lawyers do not work a typical nine-to-five job, and long days are a guarantee for any busy practitioner. Weekends are often lost too.

It is particularly galling that the government would suggest cutting court vacation time while the still happily maintaining Dáil sittings that mirror the current court sittings.

Of course, the JPWG recommended staggered sittings of different court lists, which would theoretically mean that there would still be ample vacation time for judges and court staff. However, staggered vacations do not account for the many lawyers with practices which extend to multiple court lists. Unless they are highly specialised, most lawyers will find themselves working across staggered lists, thus causing them to work constantly while judges are on vacation periods.

In essence, year-round court sittings would lead to lawyers having to make hard decisions about their practices and what cases they could take on. If there is a real possibility that you could be listed at any point in the year, a busy practitioner would never get a break, and would instead have to voluntarily give up briefs in order to take a holiday.

For the pilot project, cases listed in September have been done with the consent of the lawyers. However, we cannot assume this will always be the case.

Recent actions to reform legal practice leave little hope that the government will see sense on the issue. The passing of the Legal Services Regulation Act 2015, the failure to restore criminal barrister fees and the attempt to move all divorce cases to the District Court are just a few recent examples of governments paying no heed to lawyers’ concerns on matters which affect their professional lives and the justice system as a whole.

I am not blind to the fact that most workers are only entitled to four weeks’ annual leave per year, and that the current legal year would be considered a luxury. But we must also appreciate that well-defined legal terms provide for certainty as to when lawyers are supposed to be available, and when they can take a break. The nature of court work demands flexibility in the legal calendar.

This may well be the final year of the Long Vacation before it is discarded as a relic of the past. With that in mind, I plan to make the most of it.