The cooling Celtic Tiger economy, more stringent credit terms from banks and a static property market are all revealing the failures in the Irish legal system when it comes to resolving commercial disputes. This in turn is giving rise to huge uncertainty in the commercial sector. While there has been improvement from the delays of up to three years from cases being set down to the hearing date, there are still problems for commercial matters in the jurisdiction of E38,000-E1m (£30,000-£783,000). This has led to difficulties for companies and has exacerbated the cooling of the economy and the availability of cash for trading companies.

One feature of commercial activity in Ireland which has assisted the growth in the Irish economy has been the willingness of banks and other lending institutions to secure lending against property. To illustrate this, the amount of activity carried out by Irish developers throughout Europe which was allowed and facilitated by domestic banks in circumstances where there was no additional security overseas is indicative of sophisticated commercial property lending in terms of deal structuring and credit availability.

However, of course now the subprime crisis in the US is informing analysts' views on the Irish banking sector's exposure to the property sector. The growth in credit availability provided by Irish banks has caused them to fall out of favour with analysts, which in turn has led to the banks taking a more cautious approach to arrangements that even last year would have been perfectly acceptable.

In tandem with this, two features of the domestic economy are a concern for commentators – the residential property market collapse and the rise in unemployment figures. There is a direct correlation between the rise in unemployment figures and the reduced level of new building starts, and most commentators agree that the contraction of the construction sector has led to the increase in unemployment.

Faced with reducing consumer confidence and tighter credit criteria from lending institutions, companies are turning to their debtor balances to fund their normal cashflow requirements. Whereas in the past, any shortfall in available funding could be met by either easily available short-term borrowings, or an increase in business, a feature of the booming economy, these are both now less available. Therefore, the debtor books are becoming a far more significant asset.

As this becomes the reality for more and more companies, the default in credit terms becomes a bigger feature of the trade of a company. But unfortunately where these now must be relied upon to generate cash flow, the delays in debt recovery arising from disputed debts is causing companies problems.

Paradoxically, claims in excess of E1m can be fast tracked in the Commercial Division of the High Court, which has an exemplary record of case management. Dispute resolution, with most matters determining some six to eight weeks following their admission to the commercial list is the norm. Companies that are owed substantial sums can have their disputes resolved quickly. However, those in the E38,000-E1m jurisdiction are left to the vagaries of the non-jury list, which is malfunctioning in terms of the commercial requirement that companies collect monies owed on foot of their credit terms.

The difficulties faced by companies seeking to collect a debt are that their debtors know of the opportunities to avoid or delay payment that are inherent in the court system. They offer excuses, or invent disputes that will render the case unsuitable for the summary judgment process which was initiated to deal with liquidated sums. Then, the dispute will be remitted to the non-jury list which is the subject of the substantial delays.

This causes problems for companies, and results in personal guarantees being sought from suppliers; restricted credit terms being offered; increased prices to factor the risks of substantial delays in payment being received; disproportionately high costs associated with recovering liabilities; and delays in the recovery of debts that, at their worst, render certain business sectors unviable.

The delays in the court system are in part infrastructural; there is a lack of courtroom facilities. They are also practical; it appears historically that the commercial interests of litigating parties were secondary to the physical administration of the lists. This is not to say judges are strangers to commercial expediency, but that in many regards the system as currently set up is not compatible with a modern commercial economy.

On a daily basis, this is apparent in my insolvency and corporate recovery practice which deals mostly with small and medium enterprises, whose debtors and creditors typically fall in the critical amounts set out here. Companies that trade without the types of personal protection that dominant players can demand are exposed and often fail to recover outstanding debts, most particularly in high value/low margin businesses. Here, failing to collect on a substantial debt can cripple even the best managed company. Exposure of this type is becoming more frequent as we see in the petitions for court protection through the examinership process and it is fair to say that failures in the system are having a direct effect on commercial activity here.

What is interesting is that the armoury of the Revenue Commissioners is not fettered in the same way as ordinary trade creditors. Arising from a bad debt or series of slow payments, the tenuous trading position of the company is often exacerbated by aggressive action to recover outstanding revenue liabilities. The state's position is protected, the company's is not and the economy falters.

While much debate has taken place on the issues raised above, to a large extent the remedies are already available in the existing system. The plans to deal with the lack of courts' infrastructure, particularly in the Dublin region, are well advanced, with a new criminal courts complex underway which will make other space available. The rules of the superior courts allow for steps to be taken to expedite proceedings, but the practice of another more leisurely age appears to predominate and it may be time to revisit the application of the rules in order to create a litigation environment that is representative of a modern economy.

Barry Lyons is a partner at Lyons Kenny in Dublin.