Dáil Éireann debate -
Wednesday, 21 Jul 1926

Vol. 16 No. 22

CIRCUIT COURT RULES. (RESUMED DEBATE.)

Motion by Minister for Justice:—

That the Dáil hereby approves of the "Rules of the Circuit Court" made by the Minister for Justice on the 13th day of July, 1926, under Section 66 of the Courts of Justice Act, 1924 (No. 10 of 1924), and resolves that it is expedient that such rules shall come into operation on the 1st day of October, 1926.

Amendment by Deputy Johnson:—

To delete all words after the word "Dáil" and to insert in lieu thereof the words "refuses to approve of the Rules of the Circuit Court because the Rule-making Authority has not formulated rules which will enable all cases to be brought to trial in the simple form that at present exists, without the necessity for "pleadings" and the heavy charges upon litigants which the system of "pleadings" will involve.

Debate resumed on the amendment.

MINISTER for JUSTICE (Mr. O'Higgins)

The discussion on the amendment has turned very largely on the question of pleadings and their precise value in securing the due administration of justice. On the one hand we have it contended that these are merely unnecessary formalities calculated to create delay and to pile up costs against litigants. I have been unable to share that view, and nothing that has been said in the course of the debate has convinced me that it would be a desirable thing to dispense with pleadings in dealing with jurisdiction as great as that which is now exercised by the Circuit Courts.

Deputy Johnson made one comment that, perhaps, was somewhat sounder than most of his comments. It was that the £50 limit, based on the limit of the jurisdiction of the old County Court, is scarcely reasonable now in view of the altered money values, and that even assuming that we were to adhere to the conception that cases that would have come within the jurisdiction of the County Court in the past might now be allowed to go without pleadings, that there is a case for extending the limit up to £100. There was considerable discussion with the Rule-making Committee on this and other matters before these rules were made, and the view of the Committee in favour of the proposal set out in the rules was very definite and emphatic.

I want to put it to the Dáil, however, that in view of the expression of opinion here, and in view of certain knowledge I have as to the opinions in the Seanad, I am prepared to leave over until next Session the further consideration of this set of rules, that is the Circuit Court Rules, and to have further consultations with the Committee with regard to them. I would be prepared to take up again this question of pleadings and to go into the matter at greater length and in more detail than has been possible up to the present.

I have no very great confidence that I will be able to induce the Committee to change their view on the matter; I am prepared to admit that, and I will discuss with them again this question of pleadings or at any rate the raising of the limit below which pleadings can be dispensed with. I will bring to their attention the views that have been expressed here in the course of this debate. I therefore propose to withdraw the motion seeking the approval of the Circuit Court Rules and to proceed with the consideration of the District Court Rules.

Mr. HEWAT

We have now heard from the Minister that he proposes to withdraw these rules. Up to the present we were only dealing with the amendments.

Mr. O'HIGGINS

I propose to withdraw the motion.

Mr. HEWAT

Yes, withdraw the motion. There are two or three suggestions regarding alterations in the rules that I want to make. Would the Minister now, in view of the absence of any discussion on the rules, desire that we should submit to him proposals for alterations?

Mr. O'HIGGINS

I would be anxious that anything that Deputies would have to say with regard to the rules would be said for my information and for the information of the Committee.

Mr. HEWAT

Is it now?

Mr. O'HIGGINS

Yes, that it would be said now.

AN CEANN COMHAIRLE

Then the amendment restricts us to a particular thing, the question of pleadings. If Deputy Johnson is accepting the Minister's proposal, that would involve the withdrawal of the amendment. Then, before the Minister's motion is formally withdrawn, Deputies who want to make suggestions can do so, it being understood that eventually the motion will be withdrawn.

Mr. JOHNSON

I acknowledge the action the Minister has taken, and I think it is promising of a very great improvement in the character of these rules as compared with the consequences that would result from the rules if they were put into operation as at present. I therefore ask leave to withdraw my amendment.

Amendment, by leave, withdrawn.

AN CEANN COMHAIRLE

Now with regard to the form of the discussion—I think we should ascertain what particular rules Deputies desire to draw attention to, and then take them in some kind of order. What rule does Deputy Hewat desire to speak on?

Mr. HEWAT

I want to speak on Rule 6. I have some comment to make on that.

AN CEANN COMHAIRLE

Very well.

Mr. HEWAT

May I take the opportunity of expressing to the Minister for Justice, as far as I and those I am interested in are concerned, the obligations we must feel under to him for meeting the demand that has been made for further time for the consideration of these rules. As regards Rule 6, which deals with the Sessions and Sittings of the Circuit Courts, there seems to be in this case an omission to provide for the vacation judge, and I think it is desirable that a vacation judge should be appointed to sit during the long vacation so as to hear cases from all the different circuits and so avoid the very considerable delay and also to deal with any urgent matters. Of course it is not unusual to have a vacation judge sitting. I ask that on the reconsideration of the rules this question should receive attention from the Minister and from the Rule-making Committee.

Mr. WHITE

I desire to say a few words in regard to Rule 155, which refers to pleadings. Now that the Minister has expressed the intention of giving further consideration to the views put forward by Deputy Johnson, I wonder would I be in order in putting forward my views. I am desirous of urging on the Minister the necessity for giving more serious consideration to the matter that Deputy Johnson has discussed.

AN CEANN COMHAIRLE

Deputy White can go into any matter he pleases dealing with the rules, but it is understood that the Minister is not pressing his motion now.

Mr. WHITE

The people whom I represent are anxious for cheap and expeditious law. I submit that we are getting that at present. I have no great fault to find with the procedure in the Circuit and District Courts except, perhaps, the high cost to the taxpayer. The present system is, in my opinion, sufficient, and is as expeditious a system as obtains in any other country. It would be made more effective and more expeditious if the Minister would accept Deputy Johnson's amendment as to pleadings. I would strongly urge the Minister to consider the point which Deputy Johnson made yesterday afternoon with regard to the value of money, now and pre-war. By accepting the proposal to substitute £100 for £50 as the limit of jurisdiction in the Circuit Court without pleadings, the Minister would be merely following the ordinary fluctuations of the period. The business and farming community want cheap and expeditious law, and I urge the Minister to give due weight to their representations, as well as to the opinions of the two branches of the legal profession which the Minister has consulted, as mentioned yesterday. If he does so I am sure that he will see the justice of our contention in limiting the jurisdiction to £100 without pleadings. There are a couple of other matters which I desire to bring to the notice of the Minister. These are mainly with regard to small and flimsy cases which are sent for trial by the District Justice to the Circuit Court. In almost seven out of ten cases that go before a jury in the Circuit Court, the jury find the prisoners not guilty and the taxpayer has to foot the bill.

Mr. O'HIGGINS

With what rule is the Deputy dealing?

Mr. WHITE

I am not dealing with any particular rule. I would refer the Minister to the Circuit Court held in Lifford in March last. There were thirteen cases for trial and in these cases there were only three convictions, so that ten, or eleven, small cases fell through and the taxpayers had to pay the witnesses' and other expenses. In a way, this may not be an important matter, but it is very important from the taxpayers' point of view.

Mr. O'HIGGINS

I do not know what the Deputy is criticising, but he seems to me to be criticising Donegal jurics.

Mr. WHITE

Not exactly Donegal juries, but the sending of flimsy cases to trial, not alone in Donegal but in every other county. The result is that the costs fall on the ratepayers. The Donegal jury is above suspicion. I have often been a Donegal juror, and that is sufficient recommendation.

AN CEANN COMHAIRLE

I do not know if this involves any criticism of the District Justices. I am taking it as not seriously intended and I am allowing it to go at that.

Mr. JOHNSON

There are a few items to which, in view of the Minister's invitation, I would like to call attention. They are somewhat technical, and, therefore, somewhat beyond my capacity to make clear, but the Minister, I have no doubt, will be able to pick up the intention. I am asked to direct the attention of the Minister to Rule 191 (d), which says:—

"It shall be presumed that the party moving had notice of such judgment within three days after the date thereof, unless he satisfies the court to the contrary."

I am asked to make representation that that period of three days is too short, that the inaccessibility of many parts of the country would mean that three days would be inadequate for the parties concerned to have notice and to respond.

In regard to Rule 195, which deals with execution, there is no provision made regarding the exceptions in respect to the value of tools, clothing, and such like. I do not know whether there is any particular value in putting in an exception in these rules, inasmuch as it is already contained in the statute. I draw attention to it for consideration by the Minister. Rule 296 has been drawn to my notice, and I am asked to state that where a few instances are stated here, amongst others, which may be the subject of interlocutory motions, they should be considered with a view to extending the list. For instance, discovery of documents and the answering of questions before trial by the judge's direction are matters that should be inserted, and also the examination of sick witnesses out of court. The desirability of adding these items to the list is a matter that can be considered.

A more important matter, from my point of view, is concerned with Rule 403, which deals with appeals in criminal cases. It says:—

"Applications for a certificate required by Section 63 of the Act shall be made to the court immediately on the termination of a trial or within three days thereof."

It is represented to me that three days may not be a reasonable period in which to allow a prisoner to decide upon questions of appeal. The accused is probably in prison, and affidavits will have to be drafted and settled by counsel, so that the consequent rush will often amount to a denial of the prisoner's rights in the matter. It is pointed out that interviews with men in prison are pretty commonly recognised as rather troublesome, and that a lot of time is spent in securing them. That may be avoided in many cases near the city, but in country districts, where appeals may be in question, it would be more difficult. The net result is that it is suggested that three days is too short a period within which a prisoner must lodge notice of appeal. As regards Rule 175, it is suggested that a special jury is a luxury which is not required in the Circuit Court, and, in any case, the costs of a special jury are apparently, intended to be the same as in the High Court, that is to say, twelve guineas. These are the matters to which I have been asked to draw the attention of the Minister.

Mr. HEWAT

As we are going through the rules now I might as well submit to the Minister requests that have been made to me in regard to alterations that are desirable. In regard to Rules 201 and 211, I wish to put forward a request that the county registrar should be empowered to deal with applications. I think that would be more or less relieving the court of some of the formal matters that can be quite as well dealt with by the county registrar without going to the court. Rule 277 says:—

"All affidavits shall be sworn before the county registrar or a commissioner to administer oaths for the High Court, or where the person making an affidavit resides outside Saorstát Eireann, or is for the time being thereout, before any person duly authorised to administer oaths, in the country where such person ordinarily resides or is."

I suggest, for the convenience of people making affidavits, that affidavits could also be taken before a Peace Commissioner. Rule No. 429 sets out that any originating document or process of the court requiring to be served on three classes of bodies, which are named, may be served in a certain manner. I would suggest that the Minister add to that list a fourth class, namely, societies under the Friendly Societies Act. I think these points cover the suggestions I am in a position to make at the moment. I take it that when the rules come up for criticism later on an opportunity will be afforded for making any criticism we may have to offer, but in globo these are the suggestions made to me as to suitable alterations.

Mr. McGOLDRICK

I hope that the feeling that the House has indicated in the course of the discussion in regard to Rule 155 will help the Minister to secure the concurrence of the Committee in having the amount with regard to pleadings increased. That I hope will be one of the results of the postponement of sanction of these rules. Rule 201 deals with the life of a decree. The life of a decree in a District Court is six years, and the life of a Circuit Court decree is renewable every year. That, of course, involves considerable expense in the renewal of decrees. I do not know why the system relating to the District Court has not been applied in relation to the Circuit Court in regard to these decrees. It is very troublesome to be obliged to renew decrees every year that are not executed or are not paid. Another very important thing not provided for in the rules is registration in relation to a decree of the Circuit Court. The result of that is that in cases where there might not be assets that would be realisable, but where there might be other tangible assets, those who would have to sue for debts would have to proceed to the High Court. That is a very costly procedure, and I think it could be made a good deal more simple if registration were allowed in the Circuit Court as it is in the High Court.

I am satisfied with the Minister's statement that Rule 450 is not to be accepted as final and that the provision relating to a reduction of one-third on High Court costs as costs of the Circuit Court will be reconsidered. It could be made considerably easier than that, and I do not think that provision is at all fair. I do not think a reduction of one-third would be quite enough. Civil bills under these rules will have to be recorded by the registrar. That will involve considerable expense, because we all know that a great number of Civil Bills that are issued never come to trial. Seventy or eighty per cent. of them never reach the stage of trial, and the costs involved in having them sent through the registrar to be recorded is going, to some extent, to penalise business. I think that the system that prevailed before in regard to civil bills might well have been continued. I think it would have been in the interest of litigants. Besides, this method will impose work that is heavy and that is going to be of no avail, as far as I can see, on the registrar.

Mr. WHITE

If the Minister would accept the suggestion that the issue of processes should continue to be through solicitors' offices, instead of through the county registrar, it would simplify matters very much. At the present time a solicitor can issue Civil Bills for £50 through his office. Under the new Rule 91, the Civil Bill will have to be sent to the county registrar or the registrar of the Circuit Court to be approved of, before being issued. I would suggest to the Minister that in the event of the sum of £50 being extended as the sum to be sued for, without pleadings, processes should be allowed to be issued in the same way as at present, through solicitors' offices, and that in the event of processes being issued for a higher amount, they would have to go through the hands of the county registrar.

Mr. O'HIGGINS

In view of the fact that I intend not to press the resolution it seems scarcely necessary to deal in detail with the points that have been raised. I will bring these matters, in addition to the major matters of pleadings and costs, before the Committee in the interim between now and the reassembly of the Dáil.

Motion by leave withdrawn.