Dáil Éireann debate -
Friday, 23 Nov 1928

Vol. 27 No. 6

IN COMMITTEE ON FINANCE. - COURTS OF JUSTICE (No. 2) BILL, 1928—SECOND STAGE.

MINISTER for JUSTICE (Mr. Fitzgerald-Kenney)

This Bill validates certain judgments given in the High Court over a considerable period of time. The necessity for this Bill has arisen owing to the decision in the High Court in the case of Stokes against Wilkie. The old practice in the High Court was that in the case of an undefended action you went into the office and marked judgment there. It was considered by the legal profession and by the officials that the new Rules of Court did not destroy the existing procedure, and in consequence a considerable number of judgments were marked in the old fashion, that is to say, in all undefended cases the old method of procedure was adopted and judgments were marked. In the case of Stokes v. Wilkie it was held that the new Rules of the High Court superseded the old Rules of the High Court, and that judgment could only be marked before the Master or a Judge. That decision invalidates all judgements given in undefended cases in which no appearance has been entered. This Bill is a Bill to validate all these judgments with the exceptions of any judgments which have been set aside before the 18th October, 1928. The reason why the 18th October, 1928, has been inserted in this Bill is because upon that date, in answer to a question by Deputy Wolfe in this House, I undertook that legislation of this nature would be introduced, and in consequence every person against whom a judgment of this nature had been marked had fair and ample notice that this legislation would be introduced and that any steps he took to set aside a judgment would be at his own risk and loss and would not be in any way fruitful to him.

Section 4 lays it down that in cases— and there are very few—in which judgments were set aside before 18th October, 1928, these judgments remain good but that in any proceedings which are taken upon these judgments for illegal seizure or anything of that kind the plaintiff shall not be entitled to receive what I would call vindictive damages and would only be entitled to recover the actual sum of money the sheriff received into his possession.

There are certain other exceptions in this Bill. They are set out in Section 2. If the person is an infant or of unsound mind a judgment would not be validated. The House will recognise that this Bill is one which does no injustice to any person. The persons against whom judgments were marked were persons who had no defence to the actions and who did not go to the trouble even of entering an appearance. They were all persons who by their attitude admitted that the debts were due. It appears, through a mistake made by the legal profession in interpreting the new Rules of the High Court and also through a mistake on the part of the Court Officials, it would be a grave injustice to people to whom money was due and who got judgment and also who took further steps to realise such judgments if all such judgments were en bloc declared to be bad.

Mr. RUTTLEDGE

So far as we are concerned we welcome the Bill. The only criticism I wish to offer is in regard to the delay that there has been in introducing it. The Minister is aware of the considerable amount of hardship that has been inflicted in consequence of the confusion caused by these Rules. These Rules, owing to the interpretation of which this confusion has arisen, were before the Judges. I am not criticising the judgments but the fact that these Rules were before the Judges of the High Court and were approved of by them. The opportunity was availed of by someone to interpret them and to find loopholes in them. It was only because the case of Stokes v. Wilkie was decided that this question arose but even this Bill does not go far enough because there is considerable doubt amongst solicitors whether if it were passed they would be safe in entering judgment. The time, however, to deal with that is in Committee and if the Minister does not put in amendments which we think are necessary it will be for us to do so.

The first question that will arise is the interpretation of that word "hearing," that there must have been a hearing before the Master. Possibly what was decided before the Master in Stokes and Wilkie is that there should be a hearing. Since Stokes and Wilkie, solicitors, and their officials go up with the papers which are put in the Master's list, who rules on them. A number of legal men are of the opinion that that does not constitute a hearing in the broad sense of the word. It has been the practice since Stokes and Wilkie to have a hearing. Many legal men are of opinion, and I would say from what I know that it was the opinion of a good many sound lawyers, that to constitute a hearing it is necessary to serve notice on the other side to attend before the Master. That is not done in the present practice. It is very questionable if this matter came before the High Court that you would not have it set aside on the ground that it was not a hearing within the ordinary meaning. That is the first question I want to raise.

The second difficulty is where, even in those undefended cases, there can be only costs levied according to the Circuit Court, that is, where the Circuit Court jurisdiction would obtain. The difficulty then arises with the officials that they do not know what the Circuit Court costs are, because there is no Circuit Court ruling. There again is the difficulty that will arise. If someone, as in Stokes and Wilkie, is so fond of irritating litigation as to make some little point or question like this, that may upset the question again. I am informed that there are a number of solicitors in Dublin who are afraid to enter judgments as a result of this indefinite position. It has been suggested that this Bill might settle the question of the Master's jurisdiction finally. It has been stated, and it would be an advantage especially to the solicitors' profession, that his jurisdiction should to some extent be extended. With the present system, whether as a result of that decision or not I do not know, the other courts are, it is said, overcrowded with work that might be dealt with by the Master. I do not know if that is so, but the Minister could find out whether it is, and also whether benefits would result by having the Master's jurisdiction more clearly defined.

The first amendment which I had in my mind is with reference to Section 3 —the matter of hearing. I suggest that instead of the words "shall be deemed always to have been valid" there should be put in the words, "shall not be deemed to be invalid." In Section 4 I would like after the words "High Court or judge thereof" to add the words "the Supreme Court." I do not know how many cases there have been, but I know one case in which there has been a judgment of the Supreme Court. The Minister will probably remember that case.

Mr. FITZGERALD-KENNEY

No.

Mr. RUTTLEDGE

It is a case in which a letter was written to you on the 3rd October, 1928. At that time the decision had not been given. It was a letter from Mr. J.J. O'Shea in the case of Stokes and Quirke v. Johanna Quinn. I shall read it. It is as follows:—

Stokes & Quirke v. Johanna Quinr

Dear Sir,

Referring to the decision of the Supreme Court on 13th July last in the case of Stokes & Son, Ltd., v. Wilkie affirming the decision of Mr. Justice O'Byrne setting aside judgment by default on the grounds that the procedure under Order VII., Rule 4, for marking judgment was not observed; following the decision the defendant in above case moved to set aside judgment against her for £225 12s. 11d. obtained on 5th June, 1928, under Summary Summons served on 25th May last, to which she entered no appearance, and the judgment was set aside by Order of 27th July last with costs against our clients, Messrs. Stokes & Quirke, the plaintiffs in the action. We communicated by telephone with your office when the Notice of Motion to set aside the judgment had been served and we were informed that you had already received a deputation from the Incorporated Law Society on the subject of the invalidity of all the judgments in undefended cases marked since the Rule mentioned was made on 13th July, 1926. We were informed by your representative that you promised legislation as soon as the Dáil reassembles this month to validate all these judgments.

We have appealed to the Supreme Court against the decision setting aside above judgment in the hope that the judgment would be validated. Meanwhile, notwithstanding Plaintiff's appeal being duly entered, the Defendant taxed the costs of setting aside the judgment and Plaintiffs have had to pay £15 3s. 9d. taxed costs to the Defendant's Solicitor. The defendant has threatened proceedings for a seizure made by the sheriff on foot of plaintiffs' judgment which would be a very serious matter for them or the sheriff.

Please let us know whether you have had a Bill drafted to deal with the situation as promised, and whether under its terms plaintiffs will be enabled to recover the costs they have had to pay and will be protected from the threatened proceedings.

Since that letter was written the appeal appeared in the list, owing somehow to the way in which the case was fixed for hearing. The case appeared on the list and has been disposed of by the Court of Appeal. The Rule made in Stokes v. Wilkie has apparently been followed. That is undoubtedly a hardship and there would be hardship in any case of a similar character. It was not the fault of these people. It was due to the interpretation of the Rule by the Court Officials. It is unfair that any loss should be entailed by any litigants in such cases. That is the reason that I suggest adding the words "Supreme Court."

Another amendment is in connection with Section 4, sub-section (3). I would suggest an amendment there to this effect. It may be possible; indeed, I believe it is probable, that in some of these cases where judgment has been set aside a mortgagee may have come in and registered a judgment, and in that way would gain priority. I suggest that an amendment should be made in Committee dealing with that, so that no priority could be gained by another party who came in subsequent to the judgment having been obtained but previous to its having been set aside. I suggest that, perhaps, this would be an opportune time for the Minister to consider whether he would have the whole working of these High Court Rules considered. They have resulted in confusion and, as is proved by the necessity for introducing this Bill, have also resulted in a considerable amount of hardship. This Bill is brought in to meet something like 2,000 judgments which are affected by this particular rule. Considering the costs and expenses of entering judgment, it means considerable hardship. Perhaps the Minister would adopt my suggestions, namely to define the Masters' jurisdiction and to obtain a proper definition of the word "hearing" so that no one will be taken advantage of, especially as these are cases in which defendants have not entered an appearance except to come in afterwards and, on a technicality, get the judgments set aside in cases where they owe money.

Mr. KILLANE

I wish to draw the attention of the Chair to the fact that there is not a quorum present.

House counted, and twenty Deputies being present,

AN LEAS-CHEANN COMHAIRLE

There is a quorum present now.

Mr. LITTLE

I think there is a gap in Clause 3. Sometimes judgment is marked, and it can be set aside owing to wrong service. I do not think that that is right. Perhaps the Minister would deal with that.

Mr. FITZGERALD-KENNEY

With regard to the question of the Masters' jurisdiction, I may say that that is a very difficult matter, because it becomes questionable whether the Constitution does not limit very much the powers which could be conferred on the Master. As to the exact meaning of "the exercise of judicial power" in the Constitution, I had hopes that at some time we would get a decision from the Supreme Court setting out the meaning of "judicial" in the particular clause of the Constitution. An extension of the Master's jurisdiction would lead to a grave risk of infringing on the Constitution and to give him the extra power which Deputy Ruttledge would like to see—I know there is a strong feeling amongst solicitors to give him that jurisdiction—it would be necessary probably to amend the Constitution. That is rather a big thing to do.

This Bill is brought in rather ad hoc, simply to deal with this particular emergency which has arisen owing to the mistake made in marking judgment. In regard to the question of "hearing," that is really a question which hardly requires legislation, because it was not the interpretation of a Statute but rather the misinterpretation of the Rules which caused all this confusion, and the Rule Making Authority can, and I hope will, deal with this question. It is really a matter for them. As the Deputy knows, I have no control over them but I feel satisfied that they will deal with this question. I venture to think that it is highly probable that they will go back to the old procedure, if they ever really meant to depart from it. I think it is quite sufficient to go into the office and mark judgment when the other person does not wish to attend. This Bill does not validate, and I do not think it should, judgments already set aside. The case which the Deputy mentioned is a case in which judgment has been set aside. This Bill does not deal with that except it safeguards where a judgment mortgage has been entered or where a seizure has been made—if there is a case in which a seizure has been made under a decree of the Supreme Court, because I do not think there should be. I do not understand how that case could arise because judgment by default is always judgment of the High Court, never of the Supreme Court. This was not a judgment which went to the Supreme Court but the setting aside of the judgment did. I suggest to the Deputy that that amendment would not be one which would apply. All that this Bill deals with is undefended judgments.

Question "That the Bill be now read a Second Time" put and agreed to.

Committee Stage ordered for Friday, 30th November.

The Dáil adjourned at 2 p.m. until Wednesday, November 28th.