From the opposite side speakers have persisted in describing this as a vicious attack on an uninstructed and perverse Minister. I entirely disclaim the use of that phrase for myself. The Attorney-General told us of the big number of witnesses who appeared before the Committee and wanted a change. Why did they want it? If you go deeper than merely counting heads, why did the two representatives of the Dublin Chamber of Commerce and other commercial organisations speak as they did? For this reason: the time delay in the hearing of appeals. That was the point that weighed with them. The attitude of certain classes of commercial men in this city and Cork is: give us an immediate hearing for our cases and hang the expense, but when you set up a system they are the first to complain about the expense involved. They were impressed by the delay as between the first hearing and the hearing of the appeal. I quoted statistics about the business in the courts. You were thinking then of the mass of appeals which never got below 200, and 200 was regarded as about a year's work. Those were the appeals that were coming from about 14,000 cases, then the average work of the Circuit Courts. They were going to the High Court that was dealing with a number of cases originating in the High Court and averaging about 7,000. The situation we have now is that these appeals have been so eaten into that, even with certain mishaps with regard to the illness of judges and so on, there are only about 150 appeals outstanding. The volume of Circuit Court work has dropped by about one-third and so also has the High Court work. There is less High Court work and less Circuit Court work to be done. There is not the same probability of appeals, so that even if we get an improved procedure there is not likely to be the same number left over.
The other thing was the expense. Of course, the cases that the Minister quoted the other night were quoted and made great use of by the Committee, but the Committee having heard a number of these examples formulated this opinion. They believed that in the smaller case, the £10 case, the costs were undoubtedly much more severe than they used to be but that that was a fallacious comparison, and they said this that there was no evidence produced which impressed them that in the higher range of cases the cost of appeals was anything more than what it used to be. The costs were mainly due to the stenographer's notes and to the fees of solicitors and counsel. They recommended the keeping of the notes. The Ministry have now added a new item, and that is that they are going to increase court fees, and if litigation is going to be cheapened, that is going to be at the expense of the legal people employed. That is the aim of the present Government.
A number of people who gave evidence before the Committee were in favour of going back to what is called the old system of appeal because they were impressed by the point of delay and the point of expense. The Committee had not made the point of expense because they recommended a type of rehearing which would involve as much expense, and the time question, I hold, would solve itself. The judges would get on top of the appeals, and as the appeals were likely to diminish in number, with less work in the High Court to be done, there would be an opportunity of dealing with the appeals and getting rid of them.
The question of perjury was undoubtedly raised before the Committee, and the Committee was impressed by it despite what the Attorney-General thinks. They say in the report that they thought that the arguments about perjury were rather strained and exaggerated, but remember they did this—they changed suddenly in their recommendation. Look at what they did. They had been impressed by the talk of expense, and particularly the expense relating to the notes. Yet they recommended keeping the notes. Why? I think that anyone who goes through the evidence and studies it in detail will find the reason: that there is a growing impression revealed towards the end among the members of the Committee in which they express the view that there is one way of meeting the perjury aspect and that is by keeping the notes. They changed away from the other view which they had held when economy was uppermost in their minds at one time, and recommended the retention of the notes because they were impressed by the arguments about perjury.
I do not care what view one may have about how naturally truthful the people of this country are, but if a man has a case in court and sees that it is going to be tried again, that he suddenly discovers he is going to be given an opportunity of mending his hand, then that is going to be a terrible temptation to him. The Attorney-General takes the point about a man going to be blatant in his perjury. That is not what happens. I am a novice in this, but I have read the report and the comments of experienced people and I am satisfied that it is not what happens. I think it was the President of the High Court who, in the course of his evidence, spoke of the artful perjurer trimming his case, taking away a little of the things that he found were against him at the first hearing and coming in at the second hearing with a story well arranged and all the small points cleaned out. It was to meet that kind of thing that the Committee recommended the keeping of the notes, even although the retention of the notes meant that they were going to involve a new type of appeal and an expenditure which, first of all, they wanted to avoid. Reading through the Committee's report, I was impressed by the number of people who stood against that current of opinion and were definitely in favour of keeping the new system. A very large number were in favour of that course. I do not want to make odious comparisons between the witnesses who appeared there, but I certainly thought there was more reason given by those who wanted the new system held than by those who wanted to return to the old system. The people who wanted to return to the old system founded themselves on the argument that the people have got used to it, that they do not understand the procedure of appeal in Dublin many months after the first hearing and that they wanted to go back to the old system. I want to quote from the evidence of one witness —I mentioned his name last night— the Registrar in County Monaghan, who had been a solicitor of considerable experience and eminence. He was quite definite and clear about this proposal. In the first place, he said that he did not think the system of appeal on stenographer's notes should be altered. Then he said:—
"I admit, if you like, that there is some advantage in a judge looking at the witness but it seems to me such a strange thing that a number of people are anxious— cost what it will to peasant or small shopkeeper — to enjoy the great privilege of having two judges of appeal looking at them face to face instead of the present method. If that be a good thing and if it be necessary to have judges of appeal, why is it then that the large merchants and people of high standing who are litigants in the High Court are not also given the same privilege?"
I have never heard an answer to that question. The registrar went on:
"Never, so far as I know, in the history of the High Courts in either England or Ireland have these people been favoured with an appeal by way of rehearing. Their only appeal in the biggest cases tried in England or Ireland has been an appeal on notes, and these were the judge's notes."
Then, he spoke of his experience of certain judges. I pass from that. He was asked what the remedy was if the stenographer's notes were wrong, and he said that that would be obviously a case for a new trial motion. He indicated later another point of view for which there is a great deal to be said. Speaking of appeals generally, he said:
"I respectfully submit that, if I may use a County Monaghan phrase, we are `polluted' with appeals all over Ireland."
He said the reason why there were so few of these appeals in Dublin— he was referring to the evidence of the Registrar of County Dublin—was that the bulk of the litigants in Dublin were intelligent and fairly educated people, whereas, in the country, the appeals were concerned largely with small family feuds, or "title cases," as they are called. He thought that these appeals should not be facilitated. He expressed the view that there should be as free an appeal on questions of fact as, and no freer than, there is in the High Court on questions of fact from the verdict of a jury or the judgment of a judge of first instance in the High Court sitting without a jury. He explained that that really meant no appeal at all on questions of fact. Again, he adverted to the historical reasons for the old form of appeal and he very definitely agreed with what the President of the High Court had said, that there was hurry and rush in connection with the old civil bill appeals, particularly towards the end of the assize period. Some of the witnesses—I think it was this gentleman—adverted also to the fact that it was never possible to quote the decisions on the old civil bill appeals, that they were not regarded as authorities. He alluded to his precis of evidence and said:
"The County Court was merely a trial gallop, a morning canter before the real race, and the real race was at the assizes. That is the way the people looked at it. So long as you give them an easy appeal by way of rehearing at their own doors, no matter how good a judge you give them in the Circuit Court, the people will appeal to that tribunal."
He was asked if he considered it unwise to give a real appeal on fact and he said he thought that cheap appeals were as bad as cheap drink. I am merely quoting from answers to a series of questions, and I am not quoting them in sequence. Mr. Murphy was tackled on all ends of that problem. As to the question that has been raised about the likely decline in the education of practitioners and, eventually, of the bench if you have not judges going on assize, he derided that point of view and gave reasons for his attitude. He tackled this question generally on grounds of principle. There has been no answer to the question I have asked on several occasions: "Why is this appeal on matters of fact required in this country when it is not required in any other country?" If we decide to have it in these small cases —£50 was the limit formerly — why should we not have it in the bigger type of case? When we have enlarged the jurisdiction of the Circuit Court to £300 and enlarged the scope of the appeal by way of rehearing to £300, why do we stop there and not give the same rehearing on questions of fact in High Court cases? The whole thing is illogical and the only reason that is given for it is that it was the old system. The researches which the Attorney-General has carried out in departmental records must not have been satisfactory. That report was presented to the last Executive Council early enough. On every point, other than about three, on which the Committee made recommendations, there was almost a unanimous feeling and that feeling was by way of approval. There was the question of increase in the numbers of the Supreme Court and there was the question of Circuit Court appeals On that, there never was a decision taken and the reason why there was no decision taken was that we felt the new system had not got a sufficiently long trial. There was a cleavage of opinion. Some people thought that the new system should be abolished and that we should get back to the old system. Others were impressed by the views of the Chief Justice and the President of the High Court as well as by the views of persons like Mr. Henry Murphy, that the new system had not been given a fair trial. But a decision was never taken by the last Executive Council to reintroduce the former system, and I doubt very much if the present Bill would have been introduced in so far as it deals with the scheme of appeal from the Circuit Court. There never was any decision taken on that and the reason was that there was a definite body of opinion in the Executive Council that the new system had not got a sufficient trial and that there was no argument on principle which should drive people back to the old system. I do not know if there is another view as to the mentality and morality of the people. But we were certainly warned by a number of people that perjury was rife enough in the country and that we were going to increase it if we adopted the recommendations of the Committee. We had that put up to us by a number of people but some people were not impressed and thought that that danger was exaggerated. It seems that there is a desperate temptation to mend the case on the rehearing. We had no definite opinion taken on that. Our view was that the new system had not been sufficiently tried, that it was a good system and that it should be given a further trial. The Government now take this further swerve. The Committee, no matter what they thought, decided in favour of the stenographer's notes, because they were impressed by the evidence. The Government is throwing aside the stenographers and is opening the door still wider to the evil that we have discussed. I cannot speak from experience in this matter, but I said previously on this Bill, and I say now what is the layman's view, and not from a particular study of it, that anything I gathered in conversation makes me still more definitely of opinion that I should like to see the new system tried out for a while longer. I recognise that there are numbers of people keen on a change. I think you can get reasons here and there to pick and choose in different circumstances.
