On this Committee Stage, Sir, I understand that it has been arranged that only Government amendments be taken, provided that ample opportunity is given for discussion of all the sections and any amendments that may be put in by Deputies after the Government amendments have been incorporated in the Bill in this Committee Stage.
Courts of Justice Bill, 1934—Committee.
I understand that the agreement is that, if this course is acceded to, the Bill will be treated, in practice, as coming from Second Reading.
That is so.
And that there will be no barring of any amendments.
That is so.
I take it that that will not be done during this portion of the Session.
Not until after the Recess.
The understanding is that on the next stage the Bill will be recommitted in its entirety, that is it will be taken de novo, section by section, and amendments may be submitted as for a first Committee Stage.
Will it be necessary to hand in amendments that have been handed in already?
I think that some of my amendments will cover some of the amendments that have been handed in, in principle.
As it is practically a new Committee Stage, it will be necessary to resubmit amendments.
I understand that this Bill is now to be put section by section. On that understanding we will not debate any section — not that we are to be taken, necessarily, as agreeing with it — but that is the understanding. The only other thing is that, if the Minister has any important amendments, I think we should hear them. We shall not discuss them, but we should like to hear them.
Would it facilitate Deputies if the numbers of the amendments that are being taken were read out?
I shall move the amendments.
Perhaps it would be better if the Minister would simply deal with the important amendments.
Sections 1 to 4, inclusive, agreed to.
SECTION 5.
(1) Whenever, owing to the illness of a judge of the High Court or for any other reason, the full number of the judges of that Court is not available for the transaction of the business thereof or, on account of the volume of business to be transacted in the High Court or for any other reason arising from the state of business in that Court, it is expedient to increase temporarily the number of judges available for the purposes of the High Court, the Chief Justice may request any ordinary judge or judges of the Supreme Court to sit in the High Court as an additional judge thereof, and every judge of the Supreme Court so requested shall sit in the High Court and be an additional judge thereof for such purposes and during such time as shall be specified in such request.
(2) No ordinary judge of the Supreme Court who holds office as such judge at the passing of this Act shall be required by virtue of this section to sit in the High Court save with his own consent.
I move amendment No. 6:—
In sub-section (1) to delete all from and including the word "and", line 23, to the end of the sub-section.
The object of amendments Nos. 6 and 7 is to remove any doubts that may exist as to the position of a Supreme Court Judge sitting in the High Court at the request of the Chief Justice by virtue of the provisions of Section 5. During the debate on the Second Reading of the Bill, Deputy Costello mentioned that the words "and be an additional Judge thereof for such purposes and during such time as shall be specified in such request," which it is now proposed to delete from sub-section (1), might have the effect of limiting the jurisdiction of a Supreme Court Judge sitting in the High Court and leaving him subject to certiorari. The deletion of the words I have quoted and the insertion of the new sub-section as provided for in amendment No. 7 should leave no doubt upon the point. This matter was raised by Deputy Costello on the Second Reading, and we think that that would remove his doubts.
Amendment No. 6 agreed to.
I move amendment No. 7:—
Before sub-section (2) to insert a new sub-section as follows:—
Whenever an ordinary judge of the Supreme Court sits in the High Court in pursuance of this section he shall be an additional judge of the High Court for all the purposes of that Court.
Amendment No. 7 agreed to.
Section 5, as amended, agreed to.
Section 6 agreed to.
SECTION 7.
I move amendment No. 9:—
Before Section 7 to insert a new section as follows:—
(1) Every judge of the High Court who, at any time after the commencement of Part I of the Principal Act and before the passing of this Act, discharged the office of Judicial Commissioner of the Irish Land Commission shall be deemed to have been, while so discharging such office, duly assigned in manner prescribed by law within the meaning of Section 3 of the Land Law (Commission) Act, 1923 (No. 27 of 1923), to discharge that office.
(2) The President of the High Court shall, from time to time as occasion requires, assign a judge of the High Court to discharge the office of Judicial Commissioner of the Irish Land Commission, and the President of the High Court may, whenever he thinks proper so to do, terminate any such assignment previously made by him.
(3) The President of the High Court may, whenever the judge for the time being assigned by him under the next preceding sub-section of this section to discharge the office of Judicial Commissioner of the Irish Land Commission is temporarily unable because of illness, absence, or any other cause to discharge the duties of the said office, assign temporarily (without terminating the assignment of the said judge) another judge of the Hight Court to discharge during such inability the said office.
(4) Every judge of the High Court who shall be assigned under this section to discharge the office of Judicial Commissioner of the Irish Land Commission (including a judge so assigned temporarily) shall be deemed to have been and to be so assigned in manner prescribed by law within the meaning of Section 3 of the Land Law (Commission) Act, 1923 (No. 27 of 1923), and that section shall apply and have effect accordingly.
This amendment is aimed at removing doubts which arise under the existing law regarding the position of Judicial Commissioner under the Land Acts. Section 3 of the Land Law (Commission) Act, 1923, provided, inter alia, that from and after the establishment of courts pursuant to Article 64 of the Constitution a judge of the High Court should be assigned in a manner to be prescribed by law, to discharge the office of Judicial Commissioner under the Act. The intention at the time, apparently, was that the then pending Courts of Justice Bill should prescribe the manner in which the assignment should be made. The Courts of Justice Act, 1924, did not, in fact, make any such provision and there is, therefore, some doubt as to whether the present holder of the office is lawfully assigned at all. The amendment regularises this position with retrospective effect and also implements Section 3 of the Land Law (Commission) Act, 1923. The opportunity has also been availed of to make provision for the temporary assignment of a judge of the High Court during the absence through illness or any other cause of the judge permanently assigned.
Is the first portion retrospective?
Yes.
It deals with the present occupant?
Yes.
Section 7 agreed to.
Sections 8, 9 and 10 agreed to.
SECTION 11.
Amendments Nos. 21, 22 and 23 to Section 11, in which Deputy McGilligan is interested and has an amendment on the paper will not be moved. I am not satisfied with my own amendments. There is something in the amendment put in by Deputy McGilligan, and I propose to consider the whole matter between this and the next stage.
Amendments Nos. 21, 22 and 23 not moved.
Section 11 agreed to.
SECTION 12.
I move amendment No. 24:—
Before Section 12 to insert a new section as follows:—
(1) An application under Section 25 of the Principal Act for the remittal or transfer of an action pending in the High Court may be made at any time after an appearance is entered therein and before service of notice of trial therein and, where the summons in such action is required by rules of court to be set down for hearing before the Master of the High Court, notwithstanding that such summons has not been so set down.
(2) Notwithstanding anything contained in Section 25 of the Principal Act, an action for the recovery of a liquidated sum shall not be remitted or transferred under that section unless the plaintiff consents thereto or the defendant either satisfies the High Court that he has a good defence to such action or some part thereof or discloses facts which, in the opinion of the High Court, are sufficient to entitle him to defend such action.
This is a new section which we propose to insert in the Bill following the recommendations made by the Joint Committee. The matter contained in this section was overlooked through an oversight when the Bill was first introduced. The object of the first sub-section of the section is to enable an application for the remittal or transfer of an action pending in the High Court to be made at the earliest possible opportunity so as to relieve the parties of avoidable cost. The Joint Committee's recommendation on the point is contained in paragraph 34 of their report. Sub-section (2) of the new section carries out the recommendations made by the Joint Committee in paragraphs 32 and 33.
Amendment agreed to.
Section 12, as amended, agreed to.
SECTION 13.
(2) In any action referred to in the next preceding sub-section of this section in relation to which the grant of a special certificate by the judge is mentioned, the judge hearing such action may on the application of the plaintiff grant a special certificate in writing that, in the opinion of such judge, it was reasonable, owing to the substantial or important nature of the action, that the action should have been commenced in the High Court.
(3) An appeal shall lie to the Supreme Court against the grant or refusal of a special certificate under this section.
I move amendment No. 30:
In sub-section (2), page 8, line 27, after the word "action" to insert the words "or the importance of any question of law involved therein."
This amendment provides that "the importance of any question of law involved" in the case will be an additional ground for the grant by the judge of a special certificate. This amendment was suggested by the Bar Council. An amendment on somewhat similar lines was also suggested by the Incorporated Law Society.
Amendment agreed to.
I move amendment No. 32:—
To delete sub-section (3).
This amendment proposes the deletion of sub-section (3), which provided for an appeal to the Supreme Court against the grant or refusal by the High Court of a special certificate in connection with costs. The granting of a special certificate at the discretion of the trial judge as contemplated in the section is an exercise of discretion for which only the judge who has heard the whole case is, in general, competent. If such an exercise of discretion is made subject to appeal the appellate tribunal must of necessity (as a general rule) review the whole case, with consequent expense on the parties in putting before the court the entire evidence and documents for the limited purpose of reviewing the grant or refusal of a certificate as to costs.
Amendment agreed to.
Section 13, as amended, agreed to.
Sections 14, 15, 16, 17 and 18 agreed to.
SECTION 19.
(1) The jurisdiction in the winding-up of companies and in lunacy which, immediately before the passing of this Act, was exercisable by the Circuit Court shall, on the passing of this Act, cease to be exercisable by that court.
(2) Every proceeding for the winding-up of a company or in lunacy which was commenced in the Circuit Court before and is pending in that court at the passing of this Act may be proceeded with and completed as if this section had not been enacted.
I move amendments Nos. 41 and 44:—
41. In sub-section (1), lines 1 and 2, to delete the words "and in lunacy."
44. In sub-section (2), lines 5 and 6, to delete the words "or in lunacy."
The effect of these two amendments is that the Circuit Court will continue to exercise its present jurisdiction in lunacy matters. Numerous representations have been received from various organised bodies urging the adoption of these amendments. It has been represented that the exercise of this jurisdiction by the Circuit Court has proved satisfactory and cheap and is also useful having regard to the fact that in this class of case applications may have to be made from time to time for the release of funds, and this can be done more conveniently and expeditiously in the local court.
Amendments agreed to.
Amendments Nos. 42, 43 and 45 not moved.
With regard to these amendments, which I am not moving, I may say representations were made to me in regard to leaving this jurisdiction of the winding-up of Companies in the Cork area, and it was in deference to those representations that I inserted these amendments. I might point out at this stage that I am not anxious to do anything that would in any way cause objection. If any case is made for this proposal we shall be prepared to reconsider it on the next stage. But for the 11 years in which this jurisdiction was allowed in the Cork court, only one case has arisen. Deputies will understand that in order to deal with these cases officials must be au fait with the procedure involved and the rules and so on. While it is not suggested that any mistake might arise, at the same time it is not fair to the officials to call upon them to deal with matters of this sort with which they have not practical experience. However, if the Cork Deputies make any further representations upon the subject they will be considered.
You are not against the principle of this amendment?
No.
Does the Minister intend to deal with the Cork Bankruptcy Court in this?
I do not think so but I shall consider that also.
Section 19, as amended, agreed to.
SECTION 20.
Where an action is pending before a judge for the time being assigned to a particular circuit and application is made by any party to such action for the transfer of such action to another circuit for hearing before the judge for the time being assigned to such other circuit, such first mentioned judge may, with the consent of such other judge and of all the parties to such action, transfer such action accordingly, and thereupon such action shall be heard and determined in such other circuit by such other judge.
I move amendment No. 47:—
In lines 14 and 15 to delete the words "and of all the parties to such action."
The effect of this amendment is to remove the requirement that all parties must consent before a judge can grant an application for the transfer of an action from one circuit to another. The retention of the requirement would, it is believed, tend to defeat the object of the section. This amendment was suggested by the Incorporated Law Society.
Amendment agreed to.
Section 20, as amended, agreed to.
Section 21 agreed to.
SECTION 22.
Where an action is brought in the Circuit Court which that Court has not jurisdiction to hear and determine, the judge shall, on the application of the defendant or one of the defendants or on his own motion, as soon as such want of jurisdiction becomes apparent (unless such consent as may be sufficient to cure such want of jurisdiction is duly lodged within such time as the judge shall allow) order the action to be struck out and may, if he thinks proper, make an order awarding to the defendant such costs as the Court could have awarded if it had had jurisdiction to hear and determine such action and the plaintiff either had not appeared or had appeared and failed to prove his demand.
I move amendment No. 51:—
To add at the end of the section a new sub-section as follows:—
Whenever a judge of the Circuit Court is required by the foregoing sub-section of this section to order an action to be struck out, such judge may, if he so thinks proper having regard to all the circumstances of the case, in lieu of making such order as aforesaid, transfer such action to the High Court and make such order as to the costs of the proceedings theretofore had in the Circuit Court as shall appear to him to be proper.
This amendment provides that where, during the hearing of an action in the Circuit Court, it becomes apparent that the action is in excess of the jurisdiction of the court, the judge, instead of ordering the action to be struck out, may transfer it to the High Court. It is considered that this provision will be useful particularly in equity cases, that is, in an administration suit where during the course of the proceedings unsuspected assets came to light and excess of jurisdiction consequently occurs. It is felt that the expenses already incurred in such a case in the Circuit Court should not be wasted and the parties required to commence the proceedings de novo in the High Court. This amendment was suggested by the Incorporated Law Society.
Amendment agreed to.
Section 28, as amended, agreed to.
Section 23 agreed to.
SECTION 24.
(3) If in any such proceeding as is authorised by the next preceding sub-section of this section the court gives judgment in favour of the plaintiff, the court shall state in such judgment that the amount thereby awarded to the plaintiff is in full satisfaction of all claims by him in respect of the cause of the action on which such proceeding is founded, whether included or not included in such proceeding.
I move amendment No. 55:—
In sub-section (3), page 12, to delete all from and including the word "by", line 3, to the end of the sub-section and substitute the words "which, in pursuance of the said sub-section, are stated in the document originating such proceeding to be thereby abandoned by the plaintiff."
This is merely a drafting amendment. The Parliamentary Draftsman considers that the form of the words now proposed is better than the form in the sub-section as originally drafted.
Amendment agreed to.
Section 24, as amended, agreed to.
I move amendment No. 56:—
Before Section 25 to insert a new section as follows:—
Every judgment made (whether before or after the passing of this Act) by the Circuit Court in a civil proceeding shall continue and, in the case of any such judgment made before the passing of this Act, be deemed always to have continued to be in force and to have effect for so long as such judgment would so continue or have so continued if it had been a judgment of the High Court.
This amendment proposes the insertion of a new sub-section before Section 25, and its effect is to continue in force a judgment of the Circuit Court for as long as a judgment of the High Court. Deputy McGilligan's amendment No. 57 would have the same effect. And the adoption of my amendment will involve the deletion of Section 25, which will not, therefore, be moved.
Is Section 25 to be deleted now?
Yes.
Amendment No. 55 agreed to.
Section 25 is not moved?
It is not moved. There is a new section in its place.
Sections 26 to 31 inclusive agreed to.
SECTION 32.
(2) Notwithstanding anything contained in this Part of this Act, no appeal shall lie from any decision of the Circuit Court on an appeal to that court under an enactment relating to a tax or duty under the care and management of the Revenue Commissioners, save only such (if any) appeal by way of case stated as may lie under any such enactment as aforesaid in force immediately before the commencement of this Part of this Act.
I move amendment No. 66:—
In sub-section (2), line 14, to delete the words "by way of case stated" and substitute the words and brackets "(including an appeal by way of case stated)".
Sub-section (2) of Section 32 was intended to ensure that nothing in the Bill would in any way alter the existing procedure on appeal from a decision of the Circuit Court under an enactment relating to a tax or duty under the care and management of the Revenue Commissioners. When the sub-section was originally drafted, it was believed that there was no provision for any such appeal except by way of case stated. It appears, however, that Section 10, sub-section (5), of the Finance Act, 1894, as amended by Section 22 of the Finance Act, 1896, gives a right of appeal otherwise than by way of case stated to the Supreme Court from a decision of the Circuit Court on an appeal in relation to an Estate Duty case. The amendment now proposed will have the effect of excluding this type of case from the scope of the general provisions relating to appeals from the Circuit Court contained in Part 4 of the Bill.
Amendment agreed to.
I move amendment No. 68:—
In sub-section (3) to add at the end of the sub-section the following word and paragraph:—
and
(d) the decision of the High Court shall be subject to appeal to the Supreme Court.
The object of this amendment is to provide for an appeal to the Supreme Court from the decision of the High Court in valuation cases.
It has been represented that questions of considerable importance sometimes arise in such cases and, furthermore, the decisions in such cases are frequently of much importance by reason of their effect on a number of other cases. It is very desirable that an appeal should lie to the final appellate tribunal.
Amendment agreed to.
Section 32, as amended, agreed to.
Sections 33 to 38, inclusive, agreed to.
SECTION 39.
Section 39 is not being moved. It is not proposed to move it for the reason that we will thereby allow appeals from the Circuit Court in civil jury cases to be disposed of in the same manner as the other appeals provided for in Section 40; that is, by way of rehearing.
Is the Minister quite satisfied that it is wise to delete that section for the time being? There are a lot of amendments here that might modify it.
We can discuss it fully on the other stage. The representations made to me at the moment are very much against it. I think that some of them are made on a basis of which the Deputy is probably aware— that people are inclined to discourage jury cases in Circuit Court jurisdiction.
Sections 40 and 41 agreed to.
SECTION 42.
The following provisions shall apply and have effect in relation to all appeals under this Part of this Act to the High Court sitting in Dublin or to the High Court on Circuit, that is to say:—
(e) the judge hearing the appeal shall have full powers of amendment in respect of summonses, pleadings, notices, and other documents.
I move amendment No. 98:—
In paragraph (e), page 17, line 6, before the word "pleadings" to insert the words "civil bills".
This amendment provides for the inclusion of civil bills amongst the documents in respect of which powers of amendment are given to the Appeal Judge.
Amendment agreed to.
Section 42, as amended, agreed to.
SECTION 43.
I move amendment No. 99:—
Before Section 43, to insert a new section as follows:—
(1) Whenever suitable courthouse accommodation is, for some temporary reason, not available in an appeal town for the purposes of a particular sitting of the High Court on circuit in that appeal town, the judge or judges assigned to sit in such appeal town for the purposes of such sitting may adjourn such sitting to any other convenient place (in the same or another county) at which suitable courthouse accommodation is available, and may so adjourn such sitting at any time after it comes to his or their knowledge that such courthouse accommodation is not or will not be available in such appeal town, and whether such judge has or has not, or such judges have or have not, entered such appeal town for the purposes of such sitting.
(2) Whenever, during a sitting of the High Court on circuit in an appeal town, suitable courthouse accommodation ceases to be available in such appeal town for the purposes of such sitting, or the courthouse accommodation available in such appeal town becomes or is found to be unsuitable for the purposes of such sitting, the judge or judges sitting in such appeal town for the purposes of such sitting may adjourn the remainder of such sitting to any other convenient place (whether in the same or another county) at which suitable courthouse accommodation is available.
(3) Whenever a sitting or any part of a sitting of the High Court on circuit is adjourned under this section from an appeal town, the place to which such sitting or part of a sitting is so adjourned shall become and be the appeal town within the meaning of this Act for the holding of such sitting or part of a sitting, and such sitting or part of a sitting shall be held at such place accordingly.
This is a new section. It is intended to meet the difficulty which may possibly arise in the event of there being no suitable courthouse accommodation in an appeal town which may be specified in the Second Schedule of the Bill, or in the event of such accommodation ceasing to be available in any such town. The judge or judges travelling on the High Court circuit are empowered to transfer the hearing of cases to any other town in the same or another county in which suitable courthouse accommodation is available.
How is the judge to ascertain that?
I suppose the Department will ascertain it for him. The county registrars will supply the information.
Will the judge be informed before he goes out on circuit?
He will be informed.
Will the Minister say how he anticipates this can arise? There are courthouses in all the places scheduled here for sittings of the Assize Court. How does he anticipate that such a situation will arise?
It may be very extreme, but it might happen that a courthouse might be burned, and we have to provide for such an emergency. It is probably a case that may never arise, but it is considered advisable to provide for such an emergency.
Why say "in the same or another county"?
In the county towns as the Deputy knows, in which the assize system was followed, there was special accommodation for two courts proceeding at the same time in the one building. There was what used to be known as the Criminal Court and the hearing of appeals. I do not know that —I only know one or two counties— in any other town except the county town where the old assizes were held, there are two courts in the same building.
Will you want two courts?
The intention is that the judges shall go out in pairs.
What is going to happen in towns in which there is only one court? I have the case of Cavan in mind. There was considerable protest made by the Department when there was only one courthouse left in Cavan, the other being turned into the County Council offices. What is going to happen in a case like that?
I suppose we have power under the Courthouses Act to make provision for such a position as that.
Is there not a danger that if you give this wide discretion to a judge he will consider his own convenience rather than the convenience of the litigants?
I do not think that will arise.
Amendment agreed to.
I move amendment No. 100:—
To add at the end of the section four new sub-sections as follows:—
(2) It shall be lawful for the Minister for Justice, whenever he shall think proper so to do after consultation with the President of the High Court, to direct one or more of the officers for the time being serving in the central office of the High Court to travel to a particular appeal town for a particular sitting of the High Court on circuit in that appeal town and there perform such duties as are mentioned in that behalf in this section.
(3) It shall be lawful for the Minister for Justice, whenever he shall think proper so to do after consultation with the Chief Justice, to direct one or more of the officers for the time being serving in the office of the Registrar of the Supreme Court to travel to a particular appeal town for a particular sitting of the High Court on circuit in that appeal town and there perform such duties as are mentioned in that behalf in this section.
(4) Every officer who is directed under this section to travel to an appeal town for a sitting of the High Court on circuit shall travel to such appeal town in accordance with such directions and shall there act as registrar (in addition to the county registrar) to the High Court on circuit during the said sitting of that court, and shall be and stay in such appeal town for such time before, during, and after such sitting as shall be necessary for the proper discharge of his duties as such registrar.
(5) Every officer travelling to and staying in an appeal town in pursuance of this section shall receive, out of moneys provided by the Oireachtas, such travelling expenses and subsistence allowance in respect of such travelling and staying as the Minister for Justice shall, with the sanction of the Minister for Finance, direct.
It is intended that High Court judges when travelling on circuit to hear Circuit Court appeals shall travel in pairs to each county, and will there sit separately to dispose of the cases coming before them. It will, therefore, be necessary to have two registrars available to sit in the two courts, which will be working simultaneously. It is possible that in some instances the county registrar will not be able to provide a second official to act as registrar, and power is taken in the amendment now proposed to direct one or more of the officers serving in the central office of the High Court or in the office of the Supreme Court to travel on circuit and to sit and act as registrars to the appeal judges.
I take it the Minister is satisfied that there are sufficient officials to go out?
I am advised that such officials will be available.
Amendment agreed to.
Section 43, as amended, agreed to.
Section 44 agreed to.
SECTION 45.
I move amendment No. 105:—
Before Section 45 to insert a new section as follows:—
(1) On the occasion of every sitting of the High Court on circuit in an appeal town, it shall be the duty of the county registrar within whose functional area such appeal town is situate to arrange, with the sanction of the Minister for Finance, for the provision of suitable lodgings, meals, and other accommodation for the judges (including commissioners of the High Court on circuit) constituting the said court at such sitting and for the servants attached to each such judge or commissioner in pursuance of this Part of this Act while they respectively are in such appeal town for the purposes of their duties as such judges, commissioners, or servants.
(2) All expenses incurred in the provision of accommodation for judges (including commissioners) of the High Court on circuit and their servants in pursuance of this section shall, to such extent as shall be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.
This is a new section. It imposes on the county registrar the duty of arranging, with the sanction of the Minister for Finance, for the provision of suitable lodgings, meals and other accommodation for judges travelling on circuit.
Amendment agreed to.
Sections 45 and 46 agreed to.
SECTION 47.
(1) Subject to the provisions of this section, every justice of the District Court who, after the passing of this Act, resigns or otherwise for any cause vacates his office after having completed 30 or more years of service shall be entitled for his life to a pension amounting to two-thirds of his salary at the time he so resigns or vacates his office.
(2) Subject to the provisions of this section, every justice of the District Court who, after the passing of this Act, vacates his office owing to age or permanent infirmity after having completed ten or more years and less than 30 years of service shall be entitled for his life to a pension calculated at the rate of one-sixth of his salary at the time he so vacates his office with the addition of one-fortieth of his said salary for every completed year of service in excess of ten such years.
(3) A justice of the District Court who was formerly a District Justice under the District Justices (Temporary Provisions) Act, 1923 (No. 6 of 1923), shall be entitled to reckon for the purposes of this section, his services as such District Justice as service as a justice of the District Court, and if he shall vacate his office as such justice of the District Court owing to age after less than 20 years' service (reckoned as aforesaid) he shall be deemed, for the purposes of this section, to have served in his said office for 20 years.
I move amendment No. 110:—
Before sub-section (3), to insert a new sub-section as follows:—
(3) Any person who, at the passing of this Act, holds office as a justice of the District Court may, by notice in writing sent to the Minister for Finance not more than three months after such passing, elect to retain the pension rights conferred by Section 75 of the Principal Act, and, where any such person so elects, the foregoing sub-sections of this section shall not apply to him and, in lieu thereof, the said section 75 shall (notwithstanding the repeal of that section by this Act) continue to apply to such person subject to the following modifications, that is to say:—
(a) the amount of any pension to which a person becomes entitled under the said Section 75 (as so applied) after the passing of this Act shall be ten per cent. greater than the amount of the pension to which he would have been entitled under the said Section 75 if this section had not been enacted but subject to the limitation that the amount of such pension shall not, by virtue of the addition of such percentage, exceed one-half of the salary of such person at the time he vacates his office, and
(b) for the purposes of the subsequent provisions of this section, a pension payable under the said Section 75 as applied by this section shall be deemed to be a pension under this section and the said provisions shall apply and have effect accordingly.
The provisions of Section 47 of the Bill regarding the pension rights of District Justices represent a compromise between the recommendation of the Committee and the existing terms. The proposed terms are undoubtedly better on the whole and so far as I have interviewed District Justices, they are generally welcomed. There is one respect, however, in which the new scheme may operate to the disadvantage of some of the present justices. Justices at present are subject to the Superannuation Acts in the matter of pensions and, accordingly, the dependents of a justice who dies in office are entitled to receive a gratuity which is the equivalent of the annual salary of the justice. It has been represented to me that the loss of this gratuity, which the adoption of the new proposals would involve, must be a matter of some concern and importance to some of the justices. The fact that such a gratuity is payable is certainly a consideration for a middle-aged man with dependents because the £1,000 he would receive, if he died in office, is more or less regarded by him as an insurance policy.
Then, on the other hand, in the alternative when he retired he received a substantial sum by way of gratuity, calculated on the basis of the number of years he served. The amendment seeks to alleviate the hardships the enactment of the new provisions may create in particular cases. It proposes to allow any existing justice who so desires to opt in favour of his present pension terms. It is recognised that a justice who so opts will be forgoing the new and admittedly better terms because personal circumstances more or less compel him to choose the existing terms. The amendment, therefore, proposes as a measure of compensation to any such justice that the annual sum payable by way of pension should be increased by 10 per cent., subject to the limitation that the total amount payable will not exceed half the salary of the justice. It may be mentioned that half the salary is the maximum pension allowed in any case where a gratuity is also payable. I have interviewed representatives of the District Justices, and I afterwards interviewed some of those whose cases seemed to be exceptional. We have gone into the matter fully and we have gone as far as we can go to try to meet some of the difficulties that have arisen in regard to some District Justices.
I think the Minister is aware that the recommendation of the Committee in this case was largely to meet one or two exceptional cases.
We are meeting those cases. We have met them already without this amendment. No matter how you try to make provision, you will come up against cases in which there is some semblance of hardship. As regards justices in middle age, there are two or three cases that I am trying to meet. With regard to the cases the Deputy has in mind, these have been dealt with already.
Is the Minister satisfied, in dealing with these two cases, that he is giving effect to the Committee's report?
The persons concerned seem to be satisfied themselves. I have interviewed them.
That is the best test.
As regards the last portion of sub-section (5) of Section 47, is it mandatory?
Does the Deputy mean with regard to opting?
Yes.
It is not mandatory. He can choose between the two. The object of the amendment is to allow him to choose between the two.
Amendment No. 110 agreed to.
I move amendment No. 112:—
In sub-section (3), line 18, after the word "section" to insert the words "or of Section 75 of the Principal Act as applied by this Act".
This amendment is a logical corollary to amendment No. 110. Its effect is that a Justice who opts for his existing pension terms will have the benefit of the provisions of sub-section (3) regarding the reckoning of his period of service for pension purposes.
Amendment No. 112 agreed to.
I move amendment No. 113:—
In sub-section (3), line 20, after the word "age" to insert the words "or permanent infirmity."
This amendment provides that a Justice to whom sub-section (3) applies will enjoy the benefits of its provisions if he retires owing to permanent infirmity. At present he enjoys these benefits only if he retires owing to age.
Amendment No. 113 agreed to.
Section 47, as amended, agreed to.
Section 48 is not being moved. Amendment No. 160 will make that section unnecessary.
Will it cover retiring age and everything?
I think so.
SECTION 49.
(2) The Minister for Justice may at any time, on his own motion or in consequence of complaints or representations made to him, refer to the said advisory committee the question of the fitness of any particular justice of the District Court to continue to hold his office having regard to his mental or physical health, or his conduct (whether in the execution of his office or otherwise) generally or on a particular occasion, or any other relevant matter.
(3) The said advisory committee shall investigate every question so referred to them and shall make to the Minister for Justice a report in writing thereon recommending such one as they or a majority of them shall think proper of the following things, that is to say:—
(a) that no action be taken in the matter;
(b) that the justice to whom the report relates be censured;
(c) that such justice be transferred to another district;
(d) that such justice be removed from his office on account of mental or physical infirmity;
(e) that such justice be removed from office because of misconduct.
(4) The said advisory committee may at any time at the request of the Minister for Justice investigate the personal circumstances of any particular justice of the District Court in relation to the district to which he is assigned and may if they or a majority of them so think proper make a report in writing to the Minister for Justice recommending that for reasons personal to such justice and not involving misconduct on his part or affecting his fitness for his office, such justice should be transferred to another district.
(5) When the said advisory committee recommends under this section that a justice of the District Court should be censured, the Minister for Justice shall communicate such censure in writing to such justice.
(6) When the said advisory committee recommends under this section that a justice of the District Court should be transferred to another district, the following provisions shall have effect, that is to say:—
(a) if such transfer is so recommended because of the conduct (whether in the execution of his office or otherwise) of such justice either generally or on a particular occasion, the Minister for Justice, if he so thinks proper, may at his discretion either transfer such justice, when a convenient opportunity offers, from the district to which he was assigned at the date of such recommendation to another district or censure such justice and cause such censure to be communicated in writing to such justice;
(b) if such transfer is so recommended for any reason other than such conduct as aforesaid, the Minister for Justice may, if he so thinks proper, transfer such justice, when a convenient opportunity offers, from the district to which he was assigned at the date of such recommendation to another district.
(7) When the said advisory committee recommends under this section that a justice of the District Court should be removed from his office on account of mental or physical infirmity, the Executive Council may, if they so think proper, forthwith remove such justice from his office on account of the infirmity mentioned in such recommendation.
(8) When the said advisory committee recommends under this section that a justice of the District Court should be removed from his office because of misconduct, the Executive Council may do such one of the following things as they shall think proper, that is to say:—
(a) forthwith remove such justice from his office because of the misconduct mentioned in such recommendation, or
(b) authorise the Minister for Justice to transfer such justice, when a convenient opportunity offers, from the district to which he was assigned at the date of such recommendation to another district, or
(c) authorise the Minister for Justice to censure such justice and to cause such censure to be communicated in writing to such justice.
(9) Whenever a justice of the District Court is transferred by the Minister for Justice under this section from the district to which such justice was assigned at the date of the relevant recommendation of the said advisory committee to another district, such justice shall, immediately upon such transfer, become and be assigned to such other district in lieu of the first-mentioned district.
(10) Where a justice is removed from his office under this section in consequence of a recommendation that such justice be so removed on account of mental or physical infirmity, he shall be deemed, for the purposes of pension, to have vacated his office owing to permanent infirmity.
(11) No report made by the said advisory committee under this section shall be questioned or made the subject of proceedings in any court.
I am moving together amendments Nos. 121, 122, 132, 133, 134 and 143:—
121. Before sub-section (2), page 19, to insert a new sub-section as follows:—
(2) The Registrar of the Supreme
Court shall act as secretary to the said advisory committee.
122. To delete sub-sections (2) and (3) and substitute five new sub-sections as follows:—
(2) The Minister for Justice or any member of the said advisory committee may at any time bring to the notice of the said advisory committee either of the following matters in relation to any particular justice of the District Court, that is to say:—
(a) the fitness of such justice to continue to hold his office having regard to his mental or physical health, or
(b) the conduct of such justice (whether in the execution of his office or otherwise) either generally or upon a particular occasion.
(3) The said advisory committee shall investigate every matter brought to their notice under the next preceding sub-section of this section and—
(a) if such matter is the fitness of a justice of the District Court to continue to hold his office having regard to his physical or mental health, the said advisory committee shall either (as they or a majority of them shall think proper) decide that no action should be taken in the matter or decide that such justice is unfit as aforesaid to continue to hold his office, or
(b) if such matter is the conduct of a justice of the District Court, the said advisory committee shall either (as they or a majority of them shall think proper)—
(i) decide that no action should be taken in the matter, or
(ii) decide that such conduct amounts to misconduct and that such justice be censured in respect thereof, or
(iii) decide that such conduct amounts to grave misconduct and that such justice is, on account thereof, unfit to continue to hold his office.
(4) Whenever the said advisory committee decides under this section that a justice of the District Court be censured, the said advisory committee shall cause their secretary to communicate such censure to such justice and shall also, if they or a majority of them so think proper, cause their secretary to communicate the particulars of their decision to such persons as they direct.
(5) Whenever the said advisory committee decides under this section that a justice of the District Court is unfit to continue to hold his office, the said advisory committee shall make and send to the Executive Council a report of their said decision (including a statement of the nature of such unfitness), and upon receipt of such report—
(a) if the nature of the unfitness stated in such report is mental or physical infirmity, the Executive Council may, if they so think proper, give such justice an opportunity of vacating his office on account of such infirmity and, if he does not or cannot avail himself of such opportunity, remove such justice from office on account of such infirmity, or
(b) if the nature of the unfitness stated in such report is grave misconduct, the Executive Council may, if they so think proper, give such justice an opportunity of vacating his office and, if he does not avail himself of such opportunity, remove him from office on account of such misconduct.
(6) Whenever a justice of the District Court is removed from office by the Executive Council under this section on account of mental or physical infirmity, he shall be deemed, for the purposes of pension, to have vacated his office owing to permanent infirmity.
132. In sub-section (4), line 29, to delete the words "so think proper" and substitute the words "consider that the personal circumstances of such justice render the due discharge of his duties difficult in that particular district".
133. In sub-section (4), page 19, line 33, after the word "district" to add the words "and thereupon it shall be lawful for the said Minister to transfer such justice, when a convenient opportunity offers, from the district to which he was assigned at the date of such report to another district".
134. In pages 19 and 20 to delete sub-sections (5) to (10) inclusive.
143. In sub-section (11), page 20, line 33, to delete the words "report made" and substitute the words "decision of or report".
It will be convenient to consider these six amendments together as, except possibly in the case of amendment No. 132, they are all interrelated and are intended to effect certain radical alterations in the scheme as originally proposed in Section 49. It is proposed that the Advisory Committee set up under the section will have a statutory secretary who will be the registrar of the Supreme Court. Certain alterations are being effected in regard to the reference of questions to the Committee. In amendment No. 122 it is provided that the Minister for Justice, or any member of the Committee, may bring matters to the notice of the Committee. The original sub-section (2) provided only for reference by the Minister for Justice "on his own motion or in consequence of complaints or representations made to him." Also by reason of the form in which this sub-section was drafted, the fitness of a justice to continue to hold his office would have to be called into question if any matter affecting him were to be referred to the Committee. While the conduct of a justice on a particular occasion might be such as to be deserving of censure, it may well be that no question of the justice's fitness for office arises. Accordingly, the new sub-section (2), which is proposed in amendment No. 122, segregates the matters which may be referred to the Committee under two headings:— (1) the fitness of the justice for office, having regard to his mental or physical health, and (2) the conduct of the justice. As regards the functions of the Advisory Committee in relation to matters referred to them, the principal changes proposed are: (1) When the Committee decides that a justice should be censured they will direct their secretary to convey the censure to the justice and also to inform such persons as the Committee thinks proper. The original proposals provided that the Minister for Justice should convey the censure. (2) The idea of transfer by way of punishment has been dropped altogether. The Committee, on the conduct of a justice being referred to them, may decide (i) that no action be taken, or (ii) that the justice is guilty of misconduct and should be censured, or (iii) that the justice is guilty of grave misconduct and that he is on that account unfit to continue to hold his office. If the last-mentioned decision is reached the Committee will report accordingly to the Executive Council, who may then give the justice an opportunity of resigning and, if he does not do so, remove him from office.
Provision is also made for allowing a justice to resign whose removal from office is recommended because of the state of his physical or mental health. It is proposed to retain the provisions of sub-section (4) of the section which deal with the question of the transfer of justices for personal reasons not involving misconduct. Amendment No. 132, however, proposes the insertion, in place of the words "so think proper" in line 29, of a more specific form of words which, it is felt, will have the effect of making the object of the sub-section clearer and more effectually limiting its application to the type of case to which it is intended that it should apply. Amendment No. 133 to sub-section (4) is merely consequential on the deletion of certain of the subsequent sub-sections, which is proposed in amendment No. 134. Likewise, amendment No. 143 is consequential on amendment No. 122.
Amendments agreed to.
Section 49, as amended, agreed to.
Section 50 is not to be moved. It will be rendered unnecessary by the adoption of amendment No. 160.
Section 51 agreed to.
SECTION 52.
Paragraph A of Section 77 of the Principal Act is hereby amended by the insertion at the end of the said paragraph of a new clause as follows, that is to say:—
(v) in proceedings at the suit of the council of a county, a county or other borough, or an urban district, or the commissioners of a town for the recovery of any rates due to such council or commissioners, irrespective of the amount thereof.
I move amendment No. 147:—
In line 27, after the word "town" to insert the words "or a board of conservators of fisheries or a drainage board constituted under the Drainage Improvement of Land (Ireland) Acts, 1863 to 1892", and, in lines 28 and 29, to delete the words "or commissioners" and substitute the words "commissioners or board".
The effect of this amendment is to add Fishery Boards and Drainage Boards to the list of bodies who will be empowered to sue in a District Court for the recovery of rates. This amendment was suggested by the Incorporated Law Society.
Amendment agreed to.
Section 52, as amended, and Sections 53 and 54 agreed to.
SECTION 55.
I move amendment No. 151:—
Before Section 55 to insert a new section as follows:—
Notwithstanding anything contained in Section 83 of the Principal Act, an appeal shall lie by leave of the High Court to the Supreme Court from every determination (pronounced on or after the date of the passing of this Act) of the High Court on a question of law referred to in the High Court under that section.
This amendment provides for an appeal to the Supreme Court by leave of the High Court from the decision of the latter court on a case stated by a District Justice. It is possible that points of importance will arise in such cases and also that the decision would affect rights or privileges in many other cases. A case in point would be where a ratepayer contested the legality of a particular rate by refusing to pay and being sued in consequence by the local authority in the District Court. The power of the local authority to levy the contested rate would be the real issue at stake in such a case, and it is considered that having regard to the importance of this issue an appeal should lie to the Supreme Court.
Would it be by leave of the Supreme Court?
No, the High Court.
Amendment agreed to.
Sections 55 and 56 agreed to.
SECTION 57.
I move amendment No. 154:—
Before Section 57 to insert a new section as follows:—
Notwithstanding anything contained in any other enactment and, in particular, notwithstanding anything contained in Section 18 of the Courts of Justice Act, 1928 (No. 15 of 1928), as amended by this Act, every appeal which lies to the Circuit Court from an order of the District Court in a criminal case under the Licensing (Ireland) Acts, 1833 to 1927, or under the Registration of Clubs Acts, 1904 to 1927, shall lie to the judge of the Circuit Court within whose circuit is situate the licensed premises or the club premises on or in respect of which the offence the subject of such order was committed or to which such order otherwise relates.
The object of this amendment is to remove the possibility of certain anomalies arising in licensing cases under Sections 56 and 82 as at present drafted. The latter section makes provision for appeals in cases arising under Section 26 and 27 of the Intoxicating Liquor Act, 1927. Appeals in cases which do not come within the scope of these two sections of the 1927 Act would lie, by virtue of the provisions of Section 56 of the Bill, to the Circuit Court Judge in whose Circuit the District Court courthouse is situated. In certain instances this would not be the judge to whom appeals under Sections 26 and 27 of the 1927 Act would lie by virtue of Section 82. Again, these latter appeals might lie to a judge other than the judge responsible for the grant or renewal of the licence. The proposed amendment, the adoption of which would involve the deletion of Section 82, would clear up this position by providing simply that every appeal which lies to the Circuit Court from the District Court in a criminal case under the Licensing Acts or the Registration of Club Acts shall lie to the Judge of the Circuit Court within whose Circuit the particular licensed premises or club premises is situated.
Amendment agreed to.
Section 57 agreed to.
SECTION 58.
I move amendment No. 156:—
Before Section 58 to insert a new section as follows:—
Every decree and every dismiss made (whether before or after the passing of this Act) by the District Court in a civil proceeding shall continue and, in the case of every such decree or dismiss made before the passing of this Act, be deemed always to have continued to be in force and to have effect for so long as such decree or dismiss would so continue or have so continued if it had been a judgment of the High Court.
This amendment places a decree or a dismiss of the District Court in the same position as a judgment of the High Court as regards duration. It will involve the deletion of Section 58.
Will that be retrospective?
Yes, it will be retrospective. Section 58 will not therefore be moved.
Amendment No. 156 agreed to.
SECTION 59.
I move amendment No. 159:—
Before Section 59, to insert a new section as follows:—
(1) Where a person is brought before a justice of the District Court charged with an indictable crime, and such charge either cannot lawfully be or is not disposed of summarily by such justice, and such justice refuses to send such person forward for trial on such charge, then and in every such case it shall be lawful for the Attorney-General to direct that such person be sent forward for trial to a specified court to which such justice could lawfully have so sent such person.
(2) Whenever the Attorney-General gives a direction under this section that a person be sent forward for trial to any particular court on any particular charge, the Attorney-General shall cause such direction to be communicated to the District Court clerk for the District Court area in which such person was brought before the District Court on such charge, and thereupon such direction shall have the same operation and effect in all respects as an order of a justice of the District Court sending such person forward for trial to such court on such charge would have had, and all persons concerned shall act accordingly.
This amendment proposes to give power to the Attorney-General, in any case where a District Justice refuses to return for trial a person charged with an indictable offence, to direct that such person be sent forward for trial. It had always been thought that the Attorney-General had this power, but a recent decision in the Dublin Circuit Criminal Court has raised doubts upon the point.
Amendment No. 159 agreed to.
Section 59 agreed to.
SECTION 60.
(1) In this section—
the word "enactment" means an enactment contained in a British Statute or in an Act of the Oireachtas;
the expression "the Dublin district" means the district prescribed under Section 68 of the Principal Act or under sub-section (3) of Section 47 of the Court Officers Act, 1926 (No. 27 of 1926), which for the time being consists of or includes the county borough of Dublin.
I move amendment No. 160:—
Section 60. In sub-section (1), page 23, to delete all words from and including the words "the expression", line 1, to the end of the section and substitute two new sub-sections as follows:—
(2) The Minister for Justice may, if and when he thinks proper, by order declare that as on and from a specified day (in this section referred to as the appointed day) a specified district prescribed under Section 68 of the Principal Act or under sub-section (3) of Section 47 of the Court Officers Act, 1926 (No. 27 of 1926), shall be styled and known as the Dublin Metropolitan District.
(3) If and when the Minister for Justice makes such order as is authorised by the next preceding sub-section of this section, the following provisions shall have effect as on and from the appointed day, that is to say:—
(a) the said Minister may, at any time or times, by order transfer the title "Dublin Metropolitan District" to any other district prescribed under the said Section 68 or the said Section 47 differing wholly or partially from the district to which such title was previously attached;
(b) so much of any Act of the Oireachtas as requires, expressly or by implication, that one of the districts so prescribed as aforesaid shall consist of or include or be delimited by reference to the Dublin Metropolitan area shall cease to have effect;
(c) every reference in Section 72 or Section 74 of the Principal Act to the Police District of Dublin Metropolis (now styled the Dublin Metropolitan Area) shall be construed as a reference to the Dublin Metropolitan District, and the said sections shall have effect accordingly;
(d) every enactment which shall, on the day before the appointed day, be in force in and apply to the Dublin Metropolitan area and in and to no other part of Saorstát Eireann shall, on and after the appointed day, cease to apply to the Dublin Metropolitan Area and in lieu thereof shall be in force in and apply to the Dublin Metropolitan District, and every reference in any such enactment to the Police District of Dublin Metropolis or to the Dublin Metropolitan Area shall be construed as a reference to the Dublin Metropolitan District;
(e) every enactment which shall, on the day before the appointed day, be in force and apply to the whole of Saorstát Eireann except the Dublin Metropolitan Area shall, on and after the appointed day, be in force in and apply to the whole of Saorstát Eireann except the Dublin Metropolitan District, and every reference in any such enactment to the Police District of Dublin Metropolis or to the Dublin Metropolitan Area shall be construed as a reference to the Dublin Metropolitan District;
(f) nothing in either of the two next preceding paragraphs of this sub-section shall operate to keep in force any enactment or any provision in any enactment after the time at which such enactment or provision would have ceased to be in force if this section had not been enacted.
The object of Section 60 of the Bill was to enable the Minister for Justice to carve out the Dublin district of the District Court with as much freedom as he has in carving out the other districts. Under the 1924 Act, by an accident of drafting, "the police district of the Dublin Metropolis," just as it stands, had to be taken as and for the Dublin District Court. Section 60 was drafted to give the freedom required and Sections 48 and 50 were consequential amendments. Section 60, however, does not solve the difficulty completely, as it still necessitates the inclusion in the Dublin district of the entire area of the County Borough of Dublin. This may very possibly be undesirable. The amendment which is now proposed gives the Minister for Justice absolute freedom to delimit the Dublin district just as he pleases without being bound to include either the whole of the City or the whole of the old Dublin Metropolitan area.
This amendment involves the deletion of a couple of sections.
Yes.
Amendment agreed to.
Sections 60 and 61 agreed to.
SECTION 62.
I move amendment No. 163:
Before Section 62 to insert a new section as follows:—
(1) From and after the passing of this Act, the power of fixing fees conferred by Section 8 of the Local Registration of Title (Ireland) Act, 1891, on the Land Judge with the approval of the Lord Chancellor and the consent of the Treasury shall be exercisable only by the Minister for Justice with the consent of the Minister for Finance, and the power of altering such fees conferred by the said section shall be similarly exercisable.
(2) The reference in sub-section (1) of the said Section 8 to the Land Judge (where that expression secondly occurs in the said sub-section) shall be construed and have effect as a reference to the Minister for Justice.
This amendment proposes to transfer to the Minister for Justice, with the consent of the Minister for Finance, the power of affixing the fees charged in the Land Registry which, under Section 8 of the Local Registration of Title Act, 1891, was exercised by the Land Judge with the approval of the Lord Chancellor and the consent of the Treasury. The question of who is now the Land Judge and who is now the Lord Chancellor for the purpose of this section is one which, it is thought, is incapable of being answered with certainty. The present opportunity is being availed of to remove this uncertainty and to bring the fixing of fees charged in the Land Registry into line with the fixing of court fees in general as provided for in Section 61 of the Bill. No change has been made in the existing scale of Land Registry fees since the establishment of the Free State.
Amendment No. 163 agreed to.
I move amendments Nos. 164 to 172 inclusive:—
164. In sub-section (1), line 6, and in sub-section (2), line 8, to delete the words "Supreme Court" and substitute the words "Superior Courts".
165. In sub-section (2), line 8, to delete the word "four" and substitute the word "five".
166. In sub-section (2), line 9, to delete the word "two" and substitute the word "six".
167. In sub-section (3), line 13, to delete the words "senior ordinary judge of the Supreme Court" and substitute the words "President of the High Court, who shall be the vice-chairman of the said committee".
168. In sub-section (3), before paragraph (d) to insert a new paragraph as follows:—
(d) the Master of the High Court.
169. Before sub-section (4) to insert a new sub-section as follows:—
Two of the nominated members of the said committee shall be ordinary judges of the Supreme Court nominated by the Chief Justice, and two of the said nominated members shall be ordinary judges of the High Court.
170. In sub-section (4), line 18, to delete the words "The two" and substitute the words "Two of the".
171. In sub-section (5), line 23, before the word "ceases", to insert the word "or" and before the word "a" to insert the words and brackets "(as the case may be) an ordinary judge of the Supreme Court, an ordinary judge of the High Court" and, in line 24, to delete the words "ceases to be".
172. In sub-section (7), line 30, to delete the word "four" and substitute the word "six".
The object of these 11 amendments is to establish a single rulemaking committee for the Supreme Court, the Court of Criminal Appeal and the High Court, instead of the three separate committees which the Bill as at present drafted proposes. Representations were received on this point as a result of which it was thought better to adhere to the existing plan of a single rulemaking committee for the three courts. The proposed committee will consist of five ex-officio members and six nominated members. The ex-officio members will be (1) the Chief Justice (Chairman); (2) the President of the High Court (Vice-Chairman); (3) the President of the Incorporated Law Society; (4) the Master of the High Court; (5) the Registrar of the Supreme Court, as Secretary.
The nominated members will be (1) two ordinary judges of the Supreme Court, to be nominated by the Chief Justice; (2) two ordinary judges of the High Court, to be nominated by the President of the High Court; (3) two practising barristers (one a senior and one a junior) nominated by the Council of the Bar of Saorstát Eireann. The adoption of the amendments will involve the deletion of Sections 63 and 64.
Amendments Nos. 164, 165, 166, 167, 168, 169, 170, 171 and 172 agreed to.
Section 62, as amended, agreed to.
Section 64 agreed to.
I move amendments Nos. 180 and 183:—
180. In sub-section (1), to delete all from and including the word "following", line 45, page 25, to the end of the sub-section and substitute the words "said power shall be exercisable by the Superior Courts Rules Committee with the concurrence of the Minister for Justice."
183. In sub-section (2), page 26, line 8, to delete the words "High Court" and substitute the words "Superior Courts".
Amendments agreed to.
Section 65, as amended, agreed to.
Sections 66 to 69, inclusive, agreed to.
SECTION 70.
(1) The secretary of each of the several committees established by this Part of this Act shall summon a meeting of such committee once at least in every year on such day as may be fixed by the Minister for Justice, for the purpose of the general consideration by such committee of the practice, procedure, and administration of the court in relation to which such committee is constituted and the law affecting or administered by such court.
(2) As soon as conveniently may be after every meeting of any such committee in pursuance of this section, such committee shall report to the Minister whether any and if so what amendments or alterations should, in the opinion of such committee, be made in the practice, procedure, or administration of the court in relation to which such committee is constituted or in the law affecting or administered by such court with a view to the improvement of the administration of justice.
I move amendments Nos. 190 and 191:—
190. Before Section 70 to insert a new section as follows:—
(1) There shall be and is hereby constituted a committee to be styled and in this Part of this Act referred to as the Local Registration of Title Rules Committee to fulfil the functions assigned to it by this section.
(2) The Local Registration of Title Rules Committee shall consist of two- ex-officio members and two nominated members.
(3) The ex-officio members of the said committee shall be—
(a) the Judge of the High Court for the time being assigned to discharge the office of Judicial Commissioner of the Irish Land Commission, who shall be the chairman of the said committee;
(b) the Registrar of Titles, who shall be the secretary of the said committee.
(4) One of the nominated members of the said committee shall be a practising barrister nominated by the Council of the Bar of Saorstát Eireann, and the other of the said nominated members shall be a practising solicitor nominated by the Council of the Incorporated Law Society of Ireland.
(5) Every nominated member of the said committee shall, unless he sooner dies, resigns, or ceases to be (as the case may be) a practising barrister or a practising solicitor, hold office as such member for five years from the date of his nomination.
(6) A nominated member of the said committee whose membership thereof expires by effluxion of time shall be eligible for renomination.
(7) The quorum of the said committee shall be three members.
(8) The said committee may act notwithstanding one vacancy in its membership.
Before Section 70 to insert a new section as follows:—
From and after the passing of this Act, the power of making general rules conferred by Section 94 of the Local Registration of Title (Ireland) Act, 1891, on the Land Judge with the approval of the Lord Chancellor shall be exercisable only by the Local Registration of Title Rules Committee with the concurrence of the Minister for Justice.
These two amendments propose the setting up of a committee for the making of rules to regulate the conduct of the business of the Land Registry. The power of making rules was vested in the Land Judge, with the approval of the Lord Chancellor, by Section 94 of the Local Registration of Title (Ireland) Act, 1891, and, as in the case of the fees charged in the Registry, doubts arise as to who is now the Land Judge and who is now the Lord Chancellor for this purpose. The Registrar of Titles has represented from time to time that the existing rules are unsatisfactory in many respects, and could be amended with advantage to everybody concerned. In view, however, of the uncertainty regarding the rule-making power it has not been possible to do anything in the matter. The adoption of the proposed amendments will remedy this position.
Amendments Nos. 190 and 191 agreed to.
I move amendment No. 192:—
In sub-section (1), line 36, to delete the words "Minister for Justice" and substitute the words "chairman of such committee."
The object of this amendment is to confer on the chairman of the respective rule-making committees, instead of on the Minister for Justice as at present provided, the power of fixing the day on which the committees should be summoned to meet in accordance with the section. It will be noted that an identical amendment was put down by Deputy McGilligan.
Amendment No. 192 agreed to.
Section 70, as amended, agreed to.
Section 71 put and agreed to.
SECTION 72.
There may be paid, out of moneys provided by the Oireachtas, to judges of the Supreme Court, the High Court, and the Circuit Court, to justices of the District Court, and to Commissioners of the High Court on Circuit such sums (in addition to remuneration) by way of recoupment of expenses incurred in travelling or otherwise for the purpose of the execution of their respective offices as the Minister for Justice, with the sanction of the Minister for Finance, shall from time to time determine.
I move amendment No. 193:—
In line 7, to delete the word "may" and substitute the word "shall".
This amendment, which proposes that the opening words of the section should read "There shall be paid" instead of "There may be paid", is not regarded by the Department as of any great importance, but it was an amendment suggested by the Circuit Court Judges.
Amendment No. 193 agreed to.
I propose to have an amendment——
The Deputy will have every opportunity on the next stage.
I intended to put down an amendment that a sub-section be added——
This Bill will be recommitted as if it came from the Second Stage, and the Deputy can then put down any amendment he wishes.
Section 72, as amended, put and agreed to.
SECTION 73.
(1) In every trial before a judge or jury, whether of a civil case or of a person charged with a crime or offence, the jury shall consist of twelve members, and a majority vote of nine of those twelve members shall be necessary and sufficient to determine the verdict, and the judge shall so inform the jury, and the verdict of such nine members or upwards shall be taken and recorded as the verdict of the jury without disclosure of the number (save as is hereinafter mentioned) or identity of the dissentients, if any.
(2) Whenever a jury finds a person to be guilty of a crime for which the penalty provided by law is death, the judge shall inquire of the foreman of the jury, and the foreman of the jury shall notify to the judge privately in writing, whether the verdict was or was not unanimous and the number of the dissentients (if any), and the judge shall report to the Minister for Justice the information so obtained.
I move amendments Nos. 195, 198 and 199:
195. In sub-section (1), line 15, to delete the word "or" and substitute the word "and".
198. In sub-section (1) to delete all from and including the word "and", line 18, and substitute the following:—"(save as is otherwise provided by this section) a majority vote of nine members or upwards of those twelve members shall be necessary and sufficient to determine the verdict, and the judge shall so inform the jury, and the verdict of such nine members or upwards shall be taken and recorded as the verdict of the jury without disclosure of the number or identity of the dissentients, if any."
199. To delete sub-section (2) and substitute a new sub-section as follows:—
The foregoing sub-section of this section shall not apply to any trial of a person charged with a crime for which the penalty provided by law is death (whether such person is or is not also charged with another crime or with an offence), and on every such trial the jury shall consist of twelve members and a unanimous vote of those twelve members shall be necessary to determine the verdict and the judge shall so inform the jury.
Amendment No. 195 is purely a drafting amendment. The word "or" was inadvertently inserted in the original draft. It should obviously be "and". With regard to amendments 198 and 199, there was a good deal of discussion on this matter on the Second Stage. The object of the amendments is to provide for a unanimous verdict in cases involving the capital penalty. A good deal of experienced opinion on that point seems to favour the requirement of unanimity in such cases. A majority of the Supreme Court Judges, the High Court Judges, the Bar Council, the Incorporated Law Society and several other organisations which made representations in the matter, were in favour or requiring unanimity.
Amendments Nos. 195, 198 and 199 put and agreed to.
Section 73, as amended, agreed to.
SECTION 74.
I move amendment No. 201:—
Before Section 74, page 28, to insert a new section as follows:—
Where, in a civil proceeding in any court, there are two or more defendants and the plaintiff succeeds against one or more of the defendants and fails against the others or other of the defendants, it shall be lawful for the Court, if having regard to all the circumstances it thinks proper so to do, to order that the defendant or defendants against whom the plaintiff has succeeded shall (in addition to the plaintiff's own costs) pay to the plaintiff by way of recoupment the cost which the plaintiff is liable to pay and pays to the defendant or defendants against whom he has failed.
This amendment provides that where there are two or more defendants in an action in which the plaintiff succeeds against one or more of the defendants, and fails against the other or others, the court may, if it thinks proper, order the unsuccessful defendant or defendants to recoup the plaintiff the costs he had to pay to the successful defendants. The Court of Appeal in Northern Ireland last year decided that the courts had the discretionary power to make an order requiring an unsuccessful defendant to recoup the costs which the plaintiff had to pay to the successful co-defendant. Our own Supreme Court, by a majority decision, decided in a contrary sense in a case which came before it in 1929. The proposed amendment is, therefore, necessary to remove all doubts upon the point.
Amendment No. 201 agreed to.
Section 74, as amended, agreed to.
Sections 75 and 76 agreed to.
SECTION 77.
(1) Notwithstanding anything contained in the Fatal Accidents Act, 1846, any action under that Act may be heard and determined by a judge without a jury, and when any such action is so heard Section 2 of the said Act shall be construed and have effect as if the word "judge" were substituted therein for the word "jury" wherever that word occurs and such further modifications were made in the said section as may be necessary in consequence of such substitution.
(2) Where, in an action brought under the Fatal Accidents Act, 1846, the amount of the damages to be recovered in such action is fixed by agreement between the parties to such action, the amount of the said damages shall be divided, in pursuance of Section 2 of the said Act, amongst the persons entitled thereto in such manner as the judge shall direct.
I move amendments Nos. 210 and 211:—
210. In sub-section (1), line 11, after the word "may" to insert the words "with the consent of all parties to such action."
211. To delete sub-section (2) and substitute a new sub-section as follows:—
Notwithstanding anything contained in Section 2 of the Fatal Accidents Act, 1846, the amount recovered in any action under that Act shall (after deducting the costs not recovered from the defendant) be divided, in pursuance of the said Section 2, amongst the parties mentioned in that section in such shares as the judge before or by whom such action is tried shall determine and direct.
The object of amendment No. 210 is to make the original intention of the section quite clear—that an action under the Fatal Accidents Act, 1846, may be heard by a judge without a jury, but only if all the parties to the action consent. The right to a jury is thus explicitly preserved. The amendment meets the point raised by Deputy Rice during the Second Reading debate.
Amendments Nos. 210 and 211 put and agreed to.
Section 77, as amended, put and agreed to.
Sections 78 and 79 put and agreed to.
Section 80 not moved.
Section 81 put and agreed to.
SECTION 82.
I move amendment No. 212:—
Before Section 82, page 30, to insert a new section as follows:—
(1) Sub-section (1) of Section 14 of the Agricultural Credit Act, 1929 (No. 30 of 1929), is hereby amended by the deletion therefrom of paragraph (e) thereof.
(2) The amendment of sub-section (1) of Section 14 of the Agricultural Credit Act, 1929, made by the foregoing sub-section of this section shall have effect as from the passing of the said Act and accordingly the said Section 14 shall be construed and have effect and be deemed always to have had effect with and subject to such amendment.
This amendment proposes the repeal of paragraph (e) of sub-section (1) of Section 14 of the Agricultural Credit Act, 1929, with retrospective effect as from the date of the passing of that Act. Section 14 provides for the taking of charges by the Agricultural Credit Corporation from persons in possession of holdings which are subject to the provisions of the Land Purchase Acts, and giving to such charges priority over all other charges thereon up to £400. Paragraph (e) imposes the requirement that:—
"at the date of such instrument (that is the charge in favour of the Corporation) no lis pendens is registered in respect of such land in the Central Office of the High Court or in the Circuit Court Office for the County or County Borough in which such land is situate.”
It has been found impossible to comply with this requirement as, firstly, a lis pendens is only registered in the High Court against the name of the person believed to be the owner, and not against the lands; secondly, there is no registry of lis pendens or machinery for the registration thereof in the Circuit Court. The Agricultural Credit Corporation has represented that this has created a serious situation, as a substantial amount of money has been advanced under the provisions of Section 14 of the 1929 Act. A number of cases are pending where the Corporation has to take proceedings for the recovery of moneys so advanced, but while paragraph (c) remains as it is proceedings cannot be instituted. It is, therefore, proposed to repeal paragraph (e) with retrospective effect.
Amendment No. 212 put and agreed to.
Section 82 not moved.
FIRST SCHEDULE.
I move amendment No. 213:—
In Part I, before the entries relating to the Supreme Court of Judicature (Ireland) Act, 1877, to insert the following:—
31 & 32 Vic., c. 54—Judgments Extension Act, 1868. The whole Act.
This amendment proposes the repeal of the Judgments Extension Act, 1868. This Act provided that a judgment obtained in the High Court in England might be registered in the High Court in Ireland and vice versa. The same provisions applied as regards judgments obtained in the Court of Session in Scotland. It has been recognised that the position in this matter was unsatisfactory, more especially as it has been judicially decided in England that the Act of 1868 does not, since the establishment of the Free State, operate to permit judgments of the Free State High Court to be registered in the English High Court. On the other hand, it has been judicially decided in the Free State that judgments of the English High Court can be so registered here. While, therefore, the English judgment creditor can avail himself of the benefits of the Act, a Free State judgment creditor cannot do so. There is no reciprocity in the matter.
Amendment No. 213 agreed to.
I move amendment No. 214:—
In Part I, in the portion of the third column relating to the Supreme Court of Judicature (Ireland), Act, 1877, to delete the words "damages than costs" and substitute the words "costs than damages."
This is purely a drafting amendment.
Amendment No. 214 agreed to.
I move amendment No. 215:—
In Part I, before the entries relating to the Courts of Justice Act, 1924, to insert the following:—
54 and 55 Vic., c. 66—Local Registration of Title (Ireland) Act, 1891. Sub-sections (2), (3), and (4) of Section 94.
This amendment, which proposes the repeal of sub-sections (2), (3), and (4) of Section 94 of the Local Registration of Title (Ireland) Act, 1891, is consequential on the adoption of amendment No. 191.
Amendment No. 215 agreed to.
I am not moving amendment No. 216, as the Ceann Comhairle considered that it is not in order.
First Schedule, as amended, put and agreed to.
Second Schedule and Title put and agreed to.
Report Stage fixed for this day week.