Public Business. - Circuit Court Rules.—Motion of Approval. – Dáil Éireann (6th Dáil) – Wednesday, 12 Mar 1930

Public Business. - Circuit Court Rules.—Motion of Approval.

Minister for Justice (Mr. Fitzgerald-Kenney)

I move:

"That the Dáil hereby approves of the Circuit Court Rules which were laid on the Table of the Dáil on the 27th day of February, 1930, and resolves that it is expedient that the said Rules shall come into operation on the 21st day of April, 1930."

The latter date has been selected because it is a short period of vacation and it is preferable that this change of practice should occur at a time when the Courts are not in full swing. I do not intend to delay the House by going through these Rules in detail, because I fancy that members of the House who are interested in the matter have made themselves fairly well acquainted with the Rules as they now stand and that they feel satisfied that these Rules are very largely based upon the old County Court Rules. In fact, they follow the old County Court Rules as far as is possible in the slightly altered circumstances. The most important part of these new Rules, which we are most anxious to bring into operation, is the schedule of costs. The absence of a schedule of costs has been a most serious inconvenience to the Court itself and to the practitioners in the Court. Really, the fact that an impasse has not occurred during the five and a half years the Courts have been in force without any schedule of costs is a great tribute to the common sense and good will of the various practitioners concerned.

I would like to draw the attention of the House to the fact that while I am proposing that these Rules be adopted, they are not my Rules, nor have they been in any way drafted in my Department. These Rules have been drawn up by the Rule-Making Committee who were set up by statute. It must not be taken from that that I disapprove of the Rules or that I do anything in submitting them except completely to approve of them. I wish to point out, however, that in putting them forward I am not putting forward my own handiwork. I am putting forward the considered views of experts who were appointed under the Courts of Justice Act of 1924 for the purpose of drawing up Rules of Court. The Committee consisted of five Circuit Court Judges, two barristers and two solicitors. Not only was this body set up by statute but, in addition, the Dáil and the Seanad, as will be in the recollection of most Deputies, gave a very definite lead to this Committee, and pointed out very clearly to the Rule-Making Committee the course it should pursue when drawing up these Rules. The House will recollect that this Committee presented Rules to the House, and that those were considered in the summer of 1928. A Committee of the Dáil and Seanad was set up, and that Committee recommended the rejection of these Rules and suggested lines upon which new Rules should be drafted. The objection to the Rules as then presented was that they were rather too elaborate and that they followed the High Court rather than the County Court procedure.

I then found it my duty to approach the Rule-making Committee and to suggest to them that they should draw up another set of Rules, otherwise there would have been a deadlock. Though the Committee themselves were satisfied that the original Rules, upon which they had spent a great deal of time and expended a great deal of care, were the best Rules they could produce, they consented to draft a new set of Rules which would fall in with the views put forward by the Joint Committee of the Dáil and Seanad. The Rules now before the House are the result of these fresh labours. The House is aware that a Joint Committee has been set up to consider the whole administration of the Courts of Justice in this country. I would suggest to the House that they pass these Rules now as they stand, let them work, and let the Joint Committee, if they see in the working of these Rules any objection, bring that forward in their report and amendments can be made. It seems to me that this is a matter which the House ought to deal with forthwith, as the Courts have been hampered in carrying on their work. I am sure that Deputies who have experience in the matter will understand how difficult it is, how impossible it is almost for a Court to carry on its work without Rules. I ask the House to pass the Rules as they stand.

Mr. Ruttledge

I cannot understand why the Minister selected this time for the approval of the Circuit Court Rules which were laid on the Table on the 27th February. We have been waiting for five or six years for these Rules. We expected them every other year and now, when a Joint Committee of the House has been set up and is nearing the time when it will submit its report, a report which I believe, if it is acted on, will drastically amend the Courts of Justice Act of 1924, or the effects that flow from that Act, is scarcely the time to approve of Rules such as we have now before us. I would have thought that the Minister would have waited until he had received the Joint Committee's report. It will probably be not much longer than a month until the House will have an opportunity of considering the report. If we had the Committee's report before putting the Circuit Court Rules finally into shape, it would be more desirable.

The Minister has suggested that up to the present there has been embarrassment for practitioners, barristers and litigants because of the absence of Rules. I do not think the Minister could point his finger to any particular embarrassment brought about by the absence of Rules. Local Bar Associations have made their own Rules so far as was practicable and they followed those Rules and honoured them. That has resulted in no difficulty with regard to the taxation of costs or any of the other things that might be embarrassing because of no Rules being in existence. I do not propose at this stage to discuss the Rules or go into any of them in detail. There are a number of matters in those Rules that certainly are very far away from the practice and procedure followed in the days of the old County Court. I will just take one example. You have here the introduction of pleadings, a highly technical thing and a thing that operates in practically all sorts of actions. I think that is one of the matters that would be investigated by the Joint Committee and I believe it has been so investigated in the sense that evidence has been placed before the Committee. It is a matter about which the Joint Committee would be likely to have something to say in its report. In so far as I understood the Minister when he discussed this question before, the position is that we cannot amend one of these Rules, that we must take or leave the whole lot.

Mr. Fitzgerald-Kenney

That is according to the Statute.

Mr. Ruttledge

Well, that is the position. I do not propose to go into those Rules or discuss any one of them. I believe there are defects in them—not very many, perhaps, but there would appear to be some at any rate. If I say there are many the Minister may say there are not; we may hit a happy medium by saying there are a number of defects. It is not necessary to put these Rules into operation for the purpose of ascertaining what the defects are. If the Minister has waited five or six years to bring the Rules before the House and nothing serious has happened—the people in the country have been waiting for the Rules since the 1924 Act was passed—then why can he not wait a little longer? If we have been able to carry on for six years without anything serious happening, and with no embarrassment that the Minister can point to, surely we can afford to wait for another month or two until the Joint Committee has reported.

Captain Redmond

I would like to support the remarks of Deputy Ruttledge. I cannot understand the reason for bringing forward these Rules for confirmation now in view of the fact that the Joint Committee is at present investigating the working of the whole Courts of Justice Act. As both the Minister and the Deputy have stated, the Courts of Justice Act has been working for the last few years, in spite of the fact that there were no Rules, and yet it has worked fairly satisfactorily. I cannot see the sense of bringing in for confirmation a set of Rules now and, within a short space of time, having to revise them all again in view of probable amendments to the Courts of Justice Act. There may be this reason: the Minister has suggested that the Joint Committee should wait and see how the Rules work. I do not like that suggestion, because it strikes me as if the Joint Committee has to carry on for a considerable time before it makes its report. Otherwise, what is the use in having these Rules in operation at all?

If these Rules in their working are to be considered by the Joint Committee, surely they will have to be given a trial of at least six or twelve months, and does that mean that we are not going to get the report of the Joint Committee before that period has elapsed? I am afraid it looks like that, and I very much regret that that suggestion has come from the Minister. I am not on the Committee, but as far as I understand a considerable amount of evidence has been tendered to the Committee, and the Committee would, in the ordinary course, be in a position within a much shorter time than six or twelve months to bring in a report. If that is the case, what is the sense of bringing in these new Rules when not only may some of the Rules have to be altered by decisions arrived at by the Joint Committee and the House subsequently by way of amendment to the Act of 1924, but, as Deputy Ruttledge has reminded us, the whole set of Rules will have to go back again into the melting pot? With Deputy Ruttledge, I appeal to the Minister to postpone the action he is now taking.

Mr. Fitzgerald-Kenney

What harm would it do if they were put in force?

Captain Redmond

I do not see what good it will do to put them in force. Surely it is not the object of our passing motions and Acts of Parliament here to see what harm will they do if we pass them. The question I ask is what good will it do to pass them. The only good that I can see from the Minister's point of view seems to be that, as he suggested, the Joint Committee will have time to see the working of these Rules. I do not want the Joint Committee to have time to see the working of the Rules. I want the Joint Committee to make a report as soon as possible without having to await the experience of the working of these Rules. I think the very fact of confirming these Rules now would almost give an excuse to the Joint Committee to delay their report and to postpone decisions which up to this on the evidence before them they would have every reason to have come to and determined.

I cannot see the sense—I am putting it on the ground of sense—of bringing in and confirming these Rules. The only argument we have from the Minister in favour of confirming them is "What harm would it do to put them in force?" Having gone on for six or seven years without Rules surely it is not too much to expect that the Courts will continue to function for the next month or two months until the Joint Committee has brought in a final report and the House has determined when and how the Courts of Justice Act shall be amended. I think it is a futile waste of time to bring in these Rules now and confirm them when the whole subject matter of the Rules will be the subject of revision by the Joint Committee. I am not going to enter into a discussion as to the merits of the Rules. I do not think this is the occasion to do so, especially when the Joint Committee is sitting. I believe the whole matter is really sub judice. I appeal to the Minister to postpone the confirmation of these Rules. Why not let things stand as they are until the Joint Committee have decided what course they intend to pursue and what amendments they intend to suggest?

Mr. J.T. Wolfe

I wish to endorse what has been said by Deputy Ruttledge, and I also wish to say that I agree with what has been said by Deputy Redmond. As a member of the Joint Committee. I cannot proceed to discuss these Rules at present. It would be manifestly wrong if I did so. But there are questions arising on the Rules that necessarily must be discussed in this House. The Minister asked what harm can be done by the passing of these Rules now. Assuming for a moment that the Committee which is at present sitting will bring in a report and that this House will act on that report, it must follow that the Rules that you are now asked to endorse will be scrapped. There is no getting away from that. These Rules claim for themselves the right to repeal statutes. At the Committee, other questions of the same sort will arise which Deputy Ruttledge and I are both estopped from discussing now. What I do respectfully suggest to the Minister is, that as these Rules have been allowed to remain in abeyance for the last six years, another two months' rest will do them no harm. I am sorry the Chairman of our Committee is not here, because he is, I think, the greatest living expert on the Courts of Justice Act. We, on the Committee, are all in agreement that nobody knows more about the Courts of Justice Act than Deputy Morrissey. I am sorry he is not here. When Deputy Morrissey speaks to you on this question he will speak to you as an absolute expert. I have had time and again to refer to him in connection with the Courts of Justice Act, and he has its provisions at his fingers' end. If he were here now he would tell you all about it. Without entering into a discussion on the Rules, which I cannot enter into because the matter is sub judice, I do not think any harm would be done if the Minister would agree to postpone these Rules for two months. If the Courts of Justice Committee continue in the same vigilant way as at present, I hope you will have their report before then. I know that you will not have an agreed report on many matters, but the report will be of some help to us and to the country in trying to remedy what must follow the passing of every great statute, and in trying to secure that we will have no more Bills coming into this House year after year and session after session to amend the Courts of Justice Act; that we have put together something which expresses the wishes of the country and which will help the Minister in framing a statute that will put an end to this matter once and for all. I appeal to the Minister, in all sincerity, to allow the matter to remain over for a few months.

An Ceann Comhairle

The Leas-Cheann Comhairle is unfortunately ill, and will be unable to attend this week in the House.

Mr. Wolfe

We are all sorry to hear that.

Mr. Little

I think that we are all in agreement with the Minister in our anxiety to get these Rules of Court passed as quickly as possible. I suggest, however, that the natural and reasonable time for the Rules of Court coming into force would be at the beginning of the year—that is after the long vacation. Bringing them in now would be putting them into force in the middle of the year. I think it would be better if the Minister would agree to withdraw the Rules, give us some little time to bring in our report, and then arrange his programme so that he would introduce the Rules in to the House in time to put them in force at the beginning of the legal year— that is after the long vacation. There are matters I can mention without in any way going contrary to what is sub judice. It will show you what harm might be done if the Rules are put into force now. Take the question of pleadings. Suppose pleadings are now instituted in the Circuit Court. There have been no pleadings up to this. Say pleadings are instituted, and suppose after three or four months the Committee report that the appeal be by rehearing. There would, therefore, be no necessity for pleadings, and you would then be changing again. I am only supposing that the report was on these lines. I am putting it that way because it is necessary in order to leave men's minds absolutely open on the matter. As a matter of fact, I think we all have open minds on this matter. In that event you would have to change back from the practice, and you would have three changes in one year. First, you would have the adoption of the pleadings, then you would have no pleadings, and, afterwards, it might arise that pleadings would be instituted about a case over a certain amount in value and not below that value. Other recommendations might be made.

Then there are other questions where the rule and legislation fit into one another. The whole thing is a very delicate matter. I suggest to the Minister that it would be better for him to make up his mind to introduce these Rules at the beginning of the year and to warn the Committee that they must have their report in in time, so that when the report is in there will be ample time to fit the Rules into the report. Of course, it is very objectionable that the rule-making authority is such an unwieldly body, because it is so hard to get them together and they take so much time. The Minister has explained that to the House. It makes it difficult to change rules as rapidly as it might be necessary to change them. Another objection that can be brought against the present system is that the rule-making authority has powers which are wider than the powers given to rule-making authorities in any other country in the world. But that is altogether a matter apart from the Rules themselves. I hope the Minister will accept the suggestion thrown out from all quarters of the House and thereby postpone his motion for a few months.

Mr. T.J. O'Connell

I do not know if an ordinary layman should intervene in this debate, but I should like to say, speaking as one who is not versed in the technicalities of the matter, that it would appear to me that a good case had been made out by Deputy Ruttledge and the other Deputies for a postponement of these Rules. I am not in a position to discuss the Rules from the layman's point of view. But it seems to me that if it is likely—it appears to be likely from what has been said here by the members of the Committee— that there will be material and substantial changes in the Courts of Justice Act as a result of the report of the Joint Committee, no good purpose would be served by now introducing Rules, putting them into practice as suitable under the present Act, and then to follow this by a new Courts of Justice Bill which will render it necessary to introduce a new set of Rules.

The Minister asks what harm will it do. One thing it will do is, it will put a great many legal gentlemen to the cost of making up those Rules and finding out all about them. There was just one thing from Deputy Little's point of view that I would be particularly anxious to get some light and information on if the Minister himself did not happen to belong to the profession. He said: "One of the principal things they had to do was to put into force a schedule of costs," and the unanimity with which the legal profession objected to that would make me suspicious, under other circumstances that the Minister had a reduced scale to be put into operation and that the lawyers were objecting. Perhaps the Minister would be able to tell us whether that was the case or not. It might considerably alter my view with regard to the Rules. On the whole, it does seem sound if we are to have a change in legislation involving a radical alteration in the Rules and if we have gone on five years without the Rules that we might be able to struggle on for a few more months without them.

Minister for Justice (Mr. Fitzgerald-Kenney)

My reasons for bringing in this motion are very clear. I am perfectly aware that there is a Committee dealing with amendments to the Courts of Justice Act. I hope, as other Deputies do, that the Committee will bring in, within a few months, a well-balanced and well-considered report. Deputy Redmond suggested that my attitude was prompted by some desire that there would be a delay on the part of the Committee. That is not so at all. I hope there will not be any undue haste. I hope there will be a well-considered and well thought-out scheme, that there will be due thought given to a solution of all the problems that come before them. I anticipate that that will take some two or three months more at the very shortest. It may take longer. After they have brought in their report it will be necessary for the report to be considered. When that report has been considered, I presume it will be necessary to have an amending Bill brought in. That will take some time to draft and, in addition, will take some time to be brought through the House, with the result that I do not expect to see for a year at the very shortest the Courts of Justice Amending Act in full operation. I think that is the very shortest period.

It is quite true that this Court has worked for five and a half years, but I gather it has not worked very satisfactorily, and that there is a view on the part of the Judges and generally all round, that certainly there should be some regular scale of costs. Supposing those Rules are put into force they will be the basis, at any rate, of whatever Rules come into force for the Circuit Court. They will be the basis upon which any Rules will work. Deputy Little talked about pleadings, that there are too elaborate pleadings. Where does he find elaborate pleadings in these Rules at all? I do not know where to find them, and I have gone through the Rules fairly carefully.

Therefore, what I considered would be the proper course to adopt was to bring in these Rules, to let them work, also to let the Committee consider them, and afterwards the Committee, in considering what amendments should take place to the Courts of Justice Act, should also consider what amendments should be made in the procedure. That seems to me to be the proper logical thing. In the meantime the Court would have Rules under which they could properly function. There are a considerable number of improvements brought into these Rules, and they are, as I say, considered Rules which must certainly be the basis upon which any Circuit Court Rules must be built up. There is no doubt about that. If there be alteration in a year's time, then alterations can also and must then be made in the Rules. I have been taken by one argument which was put forward by Deputy Wolfe, and it is an argument which I frankly admit I cannot get ever. Deputy Wolfe says there are Rules which he would like to discuss, but which he did not find himself free to discuss. He says he is a member of a committee and did not feel himself in honour free to discuss here in the Dáil these Rules. Well, if there are members of the Dáil who consider that they cannot discuss the Rules adequately and fully, that there are considerations which stop them, I feel that is an argument to which I must bow.

I cannot ask the House to pass these Rules if there are Deputies who would like to discuss the Rules and find that there are external considerations which prevent them giving the Rules adequate discussion, but though I am willing to adjourn the discussion of these Rules and adjourn the motion, say, for six months, I would like to point out to the Dáil that this is the third time the Rule-Making Committee has brought these Rules to the Dáil. It brought Rules in in 1926 and they were withdrawn. It brought Rules in in 1928 and they were turned down. It brought Rules in in 1930 and they are turned down. Do you think that the Rule-Making Committee will go on? Men give hours to the work, not paid time at all. They do it on Saturdays when they would not be sitting or doing ordinary work, all gratuitously. They have given hours of hard labour and they come in, and for the third time they are turned down. I practically foresee myself that unless there is a changed attitude that the Circuit Court, which has carried on for the last five and a half years without any Rules, will carry on for the next twenty-five years without any Rules, but I see also that serious difficulties may arise at any moment in a Court functioning without Rules.

Deputy O'Connell mentioned the question of costs. As to the question of costs, solicitors have arranged between themselves a scale of costs in relation to the draft Rules. It would be hard to lay down any hard rule, because the scale of costs of the solicitors vary from county to county, but if a party were to say "These costs are not legal at all, what are they based on? I will not pay them," I think there would be a very nice question raised. I have heard the suggestion.

Mr. O'Connell

Thanks for the hint.

Mr. Little

I do not think the Minister should be allowed to give the impression that we are going to turn down the Rules and that it is merely for business sake that he is proposing to postpone them. I would like to ask the Minister, in connection with his suggestion that the Courts of Justice Committee should deal with these Rules, for his interpretation of the original resolution and to state whether we can deal with the Rules.

Dáil Éireann debate - Wednesday, 12 Mar 1930