Courts of Justice Bill, 1934—Recommittal (Resumed).
Debate resumed on the following amendment:—
In page 11, before Section 22, to insert a new section as follows:—
Paragraph (ii) of Section 48 of the Principal Act is hereby amended by the insertion of the sum of £150 in lieu of the sum of £300 mentioned therein.—(Deputy Costello.)
The amendment before the House is, I know, one upon which there is a considerable difference of opinion. I submit to the House, however, that this amendment to reduce the jurisdiction of the Circuit Court from £300 to £150 is a sound move and a move in the right direction. An action for anything over £150 in this country is a very serious and substantial action. The old jurisdiction of the County Court was, as we know, £50. An action for over £50 had in those days to be tried in the High Court. Granting that there has been some change in money values from the time at which the County Court Acts were passed and that £50 does not now represent exactly the same thing as £50 did some years ago, still the increase from £50 to £300 is, I submit, altogether too large. If you take £50 as it then was, the value roughly of about £75 now, and double the latter figure, you are giving a very substantial increase in County Court jurisdiction. My submission is that it is quite an inadequate increase. Every action over £100, and certainly over £150, is in this country a very substantial action, an action that requires, and ought to get, very careful consideration. It is an action that ought to be fully argued out. Such a thing is not being done in the Circuit Court and cannot really be properly done there. To begin with, in the Circuit Courts there is a very terrible rush. It is impossible for a Circuit Court judge, when fixing his list, to know how much time is to be given for the hearing of cases in any particular circuit town. The result of that is that sometimes the Circuit Court judge has an abundance of time at his disposal. At other times he is so rushed that he must either run into very heavy arrears of work or else he must give the cases before him a very short hearing indeed, not that adequate and full hearing out that very substantial actions deserve.
I myself happened the week before last to go down to a Circuit Court to defend some prisoners there. One of the cases took two days. In another case there was, fortunately, a direction in the middle of it, and a third case was adjourned, but had that not taken place at those particular sittings, there could not have been any hearing at all of any civil business. As it was, the bulk of the civil business had to be adjourned. That is a very unsatisfactory state of affairs. There were some civil actions for hearing. One was a very substantial civil action to be tried by a jury. It could not go on and had to be adjourned until next sessions. As a matter of fact, it was a case that had already been adjourned several times.
It seems to me that the Circuit Courts at the present moment, certainly some of them, are not quite able to cope with the amount of business which they have got, and that cases involving big sums of money, cases that ought to be fully and adequately tried out, and if fully and adequately tried out in the High Court would take two or three days, are supposed to be disposed of and must be disposed of in a few hours in the Circuit Court if the business of the Circuit Court is to be conducted so that all cases can be heard. To my mind, it is impossible to do that unless you increase the number of Circuit Court judges, and especially in view of the appeal system which this Bill brings in. That appeal system is a reversion to the old appeal system which, as far as I am personally concerned, is, I think, sound. I think that the appeal on notes was unsound, and, personally, I am very glad that it is to go.
That is a matter on which I know that people have different views, but now you will have actions of £300 tried on appeal before going circuit judges of Assize. I have had experience of going judges of Assize. The Minister for Justice has had similar experience and the Attorney-General had experience, not at the Bar but as solicitor, of going judges of Assize. I put it to them to consider whether the rush and hurry of assizes and the necessity for getting through business in a very short time will make for the full and adequate hearing of actions of real substance such as actions between £150 and £300. I do not think it will. I know that it is argued that it is much cheaper to have cases heard in the Circuit Court than to have them heard in the High Court. I do not agree. I do not think that there is a substantial difference in the costs in the two courts. Circuit Court costs in big actions run to a very high amount. In the Circuit Court, there will be in an action for £150 a first hearing. The costs of that hearing, with witnesses' expenses, will be high. You will then have, almost inevitably, a second hearing on appeal. Witnesses' expenses are the important item in many Nisi Prius actions. You will have not only heavy expenses for witnesses in the two trials but you will have a double set of costs. The savings to litigants will be very trifling, indeed. It would be far more satisfactory to persons who are litigating about very substantial sums to have their cases heard out in Dublin in an atmosphere in which there is no hurry or rush and in which the cases can be thrashed out to the very end.
Another consideration applies to small actions as well as large actions. A case can be very much better done by the advocates if, in the first place, they are not tied to time and if, in the second place, they have behind them the full resources of the Law Library. The Attorney-General knows perfectly well how extremely difficult it is to argue a law point when you have not got the resources of the Law Library behind you, when you have not got the Reports and all you can do is cite to judges sentences from text books, which may or may not be accurate. Difficult points of law will arise in these cases and you cannot, I may say, argue law at all upon circuit. You can assert before the judge such and such a proposition and read out your authority for the proposition, but a full and adequate argument is quite impossible on circuit. Therefore, Circuit Court justice must be a sort of rough and ready justice. The hearing cannot be as complete or adequate and the decision cannot be as correct as it would be in a case heard in the courts in Dublin. For these reasons, amongst others, I submit that a jurisdiction of £150 is ample. If I were trying to decide for myself what would be in the interests of litigants I should fix the maximum jurisdiction at £100. Here you have a sum of £150 and surely that ought to be adequate.
Though there may be a great deal of clamour amongst what I may call lay people, who have got the idea that the Circuit Court is a cheap court and that law ought to be extremely cheap, that clamour is, I think, ignorant clamour. It comes from people who do not know the difficulties which judges have in doing justice between man and man. That uninstructed lay opinion is opinion to which the Minister could easily give too much attention. It may be more popular to give attention to it than to ignore it but I am not looking at the matter from the point of view of what is popular or unpopular. I am looking at the matter from the point of view of what is calculated to make for the efficient administration of justice. I think that it will be a very big improvement in the administration of justice if the present £300 limit is cut down to £150.
At the risk of being considered an instructed amadán. I must say that I was very much surprised to see the amendment that is now submitted by the ex-Attorney-General and supported by the ex-Minister for Justice. Let us for a moment look back and contemplate the jurisdiction of the old County Court. The County Court had jurisdiction in equity cases up to £500 and nobody knows better than Deputy Fitzgerald-Kenney that equity cases frequently involved very difficult questions of law and of fact. In malicious injury cases, now called criminal injury cases, the County Court had unlimited jurisdiction. Everyone knows that the Workmen's Compensation Acts are most intricate and that more litigation was caused under them than any other Acts passed by the British Houses of Parliament. There was no restriction as to the amount of compensation that might be granted. The court had jurisdiction in lunacy matters up to £700, in contract cases up to £50, and in cases of tort with the exception of defamation, breach of promise and crim. con. cases up to £50. Let me say that the old County Court judges, notwithstanding the fact that they had certain political prejudices, did their work very well. After mature consideration the old County Courts were replaced by circuit judges under the new dispensation and those who planned and framed the Act of 1924 extended the jurisdiction of the Circuit Court judges. In my honest opinion, and I have some little experience of it, the extended jurisdiction has been exercised well and wisely. The best proof of that is that there have been very few successful appeals against the decisions of the Circuit Court judges. Under these circumstances, I see no reason whatsoever why there should be any modification of the jurisdiction which is now exercised by Circuit Court judges. It is very easy to make provision to deal with extraordinary cases such as Deputy Fitzgerald-Kenney referred to. I am sure that the case to which the Deputy referred was an exceptional one. Therefore I appeal to the House and to the promoters of the Bill to reject the amendment.
As Deputy Fitzgerald-Kenney stated, there are two views about this particular matter. The amendment has been discussed in the light of trying to arrive at what would be most suitable in the conditions obtainable. While we might benefit from the experience of the past, we have to bear in mind what the position is as we find it now. It is not correct for Deputy Fitzgerald-Kenney to say that in resisting this amendment we are conceding something to popular opinion. The Deputy knows that the Joint Committee which was set up by him when he was Minister for Justice heard evidence largely from legal men, and other people representing chambers of commerce interested in this matter, and in their Report the overwhelming body was for leaving the jurisdiction as it was. Amongst the witnesses examined was the Chief Justice, who stated that when dealing with the 1924 Act he had considered that the jurisdiction might be £500. Numerous other witnesses were examined. With regard to the question raised by Deputy Fitzgerald-Kenney, I was struck by the reference to costs. That is a big consideration in dealing with this matter. Evidence on that was given by a gentleman who was quoted by Deputy McGilligan the last night the Bill was before the House in connection with another section. That gentleman was Mr. Henry Murphy, the County Registrar for Monaghan. Having regard to his experience, his evidence would be a complete answer to Deputy Fitzgerald-Kenney's question. When he appeared before the Joint Committee Mr. Murphy gave the following evidence, on page 131 of the Committee's Report, question 1890:—
"Coming to the jurisdiction of the Circuit Court, what is your opinion as to the jurisdiction of the Circuit Court? Should it be left as it is, or should it be altered in any way?"
His answer was:—
"I am of opinion that it should be left as it is.
Chairman: Would you give us shortly what your reason for that is? —Before the Circuit Court was introduced, the peasant farmer or village shopkeeper whose entire property was not worth, say, £500, if he wanted to recover either damages or a debt of, say, £250, £299 or £300, was compelled—I speak from my own personal knowledge—to employ one solicitor and two senior counsel. Of course, I will be met at once with the statement that one senior counsel would do. I have no hesitation in saying that I never went to Dublin with the virtuous intention, when I was a solicitor, of doing a case on the cheap with one senior and one junior counsel, but that the senior whom I briefed, immediately after he got his brief, told me, "Oh, I have three or four courts to attend to on the day fixed for this case. I cannot give it sole personal attention and you must have another K.C." It was almost unheard of in a common law action, during the years I practised, to employ only one senior counsel. It was the invariable practice to have two seniors even on cases as low as £100 or £150. Judging from the newspapers, that is not the case over the water. Over the water, I see quite big actions fought with juniors. However, I do not want to introduce that practice into Ireland and never did. But certainly employing two seniors is not so usual in England in the same class of cases as it is here in Ireland.
Yes, but their fees are on a different scale. Your objection is on the ground of expense?—Yes. The effect of that was that the man who lost a case had to pay two solicitors, four senior counsel and two junior barristers. I think that was a monstrous system in cases of the value I speak of, where the amount in dispute was small. I hope I shall not shock you, but I do not think it is fair odds that a man going for £250 should have to risk £250.
The costs of a High Court action such as you describe on both sides would be £250?—On a conservative estimate. In many cases they very much exceeded that."
Further on, in question 1896, he was asked:
"Have you any other reason for objecting to the reduction of the jurisdiction? Take a case from your own experience in your own district. Do you think that one of these larger cases is likely to be as well tried, I do not mean by the judge, but as well tried in the Circuit Court as it would be in Dublin?—Practically. If you ask me absolutely, of course, I say no, because there is talent at one's command in Dublin that is not, perhaps, procurable elsewhere. At least it would be so costly to bring it to the local venue that it would be out of the question. But I say that the difference is, if I may put it so, only fractional. If you have a competent judge and a competent advocate, though not a super-brilliant advocate, I believe that every material fact will be elucidated, and that justice will be done, even though some further facts might be brought out by some abler man...."
The reason I quoted that evidence was that Mr. Murphy was quoted here on the last night by Deputy McGilligan, and any of us who know of his experience certainly would not question his evidence. The other aspect of expense that has to be borne in mind is that of bringing up witnesses. As everyone knows, it is certainly much cheaper, as far as the witnesses are concerned, to have the case tried locally instead of in Dublin. There is considerable expense incurred in bringing witnesses to Dublin. In addition, under the new system of appeal proposed in the Bill, with which I notice Deputy Fitzgerald-Kenney agrees, if any mistake occurs on the trial before the Circuit Court judge, litigants have a further chance of having the matter brought up before a judge of the High Court on an appeal for rehearing of the facts, when any matters that have been ignored or overlooked in the first trial can be remedied and dealt with by perhaps senior counsel who will be available for dealing with these appeals.
I am not aware that, except in the Dublin Circuit Court, there are any considerable arrears at the moment or that there would be any improvement if these cases were tried in Dublin instead of in the Circuit Court. In some of the areas, the judges may work more expeditiously than others, but at present, according to the returns we have got, there are very few arrears outside Dublin circuit. The judges, as far as I know, are able to clear off the lists. We have the instance of one judge who may be able to dispose of his cases, say, within sixty days in the year, spread over the four sittings. In another area a judge might sit ninety days or so. In my experience there was very little rushing in these matters.
They were not tied down in any way and were able to sit for a couple of extra days to clear off the arrears. I am speaking from personal experience. I know that some of the judges did clear off the arrears and people were not obliged to wait to recover debts, or anything like that. Since this amendment was debated on the last night, I had a letter from the Limerick solicitors and they say it is the unanimous opinion of the Limerick Bar of solicitors—not only that, but that when it was previously discussed it was the desire of all the Bar Associations in the South of Ireland—that the jurisdiction of the Circuit Court should be left as it was. That is based on their experience as to the costs and expense incurred in having actions tried in the manner suggested here.
I do not think that the extract which the Minister has read from Mr. Murphy's evidence carries him at all as far as he would like us to believe.
When the Minister comes to consider this matter he will find that Mr. Murphy first dealt with the old actions in the County Court. He could not, of necessity, deal with the present system or what happened in the High Court in actions between £150 and £300. To say that in the old days every record of the High Court over £50 had two seniors in it, and was never fought with one junior, certainly goes against my recollection, and I am perfectly certain it is against the recollection of the Minister and of the Attorney-General. I have been in High Court actions led by only one senior. The Minister and the Attorney - General have frequently fought High Court actions in which they briefed only one senior. They have fought High Court actions with a junior, without any senior, and if I might say so, I am personally aware of the fact. That does not get away from the matter which seems to me to be important. An action is going to be tried in the Circuit Court. It is a heavy action and demands the bringing down of senior counsel specially. The fee of senior counsel going down to Cork or to Kerry specially is going to be very much higher than the fee he is going to receive on his brief in Dublin and is very much higher. Yet, if there are big actions between £150 and £300, in most instances senior counsel will be brought down specially, and brought down upon a special fee. When it comes to a question of appeal, if it is a case of weight, you will again have one or two senior counsel. Very often if it is a case between £150 and £300— in fact I hope it will be the general instance—there will be two senior counsel on appeal. On the argument of economy, the Minister has left out of consideration the fact that Mr. Murphy was only dealing with one set of witnesses. The expense of bringing the same set of witnesses twice is not a matter that was dealt with at all. I submit to the House that the Minister has not made a case against the amendment.
Deputy Costello, in arguing thus——
Would this have any effect on this amendment? I refer the Deputy back to No. 16, an amendment of Deputy Costello. That was on the Hosie and Lawless case in regard to remittal. I have been considering that matter with the Attorney-General since. I am trying to see if I can meet Deputy Costello with regard to it. I am not quite definitely accepting it, but that is the inclination at the moment.
That would make a very big difference. May I point out, first of all, that in these statistical returns Deputy Costello stressed it had been revealed, as shown by an appendix presented in the Reports of the Courts of Justice Committee, that by far the greatest number of cases fought in the Circuit Court, even under the extended jurisdiction of £300, were in the class of £50 and over, £100 and over, and up to £150. That is where the amount of claim was the test, but where the amount awarded was the test, the discrepancy is still larger.
There is an appendix in the Courts of Justice Committee Report which shows the position up to a point. I got that further extended by a question dividing these several cases, according to the amount claimed in the period from the Michaelmas sittings, 1932, to the Trinity sittings, 1933, and the results are again somewhat amazing. Out of a list of 6,000 cases in that period, there are very nearly 5,000 cases where the amount claimed was up to £100. There are 5,200 cases where the amount claimed was up to £150. Where you get the figures for the actual awards the discrepancy is still more striking. As I read the report, quite a number of witnesses who went to give evidence before the Committee were of the opinion that the new Circuit Court system had failed. I think an overwhelming number of the witnesses had come to that conclusion. The reason for objecting to the Circuit Court system was the ground of expense, and, secondly, the ground of delay. I think the delay has been met in a certain way, but the expenses certainly under this report are not going to be mitigated. I think the biggest percentage of those who gave evidence before the Committee, and who claimed that the Circuit Court system had failed, were of opinion that if there was what was called concurrent jurisdiction the whole difficulty could be met. In other words, the remedy was, keep, if you like, the Circuit Court jurisdiction by consent up to anything, have a pointer as to what you want to go to the Circuit Court by saying £300, and allow concurrent jurisdiction all the time.
The Minister is meeting that to this extent: he is going to leave it to the High Court to say if the matter is reasonable and proper to be retained in the High Court. The evidence given before the Joint Committee went a point further. The evidence of the big majority of witnesses was really this: fix your Circuit Court jurisdiction at any point, but give concurrent jurisdiction in the High Court at the option of either party. The Minister is not doing that. He is leaving the £300 jurisdiction and making a person move to have the action either brought in the High Court or kept in the High Court and leaving it to the judges of the High Court to determine whether it is reasonable and proper that it should be heard there. The witnesses wanted to have a situation that you could go at the option of either party to the High Court. They did not specify just what amount for which they wanted compulsory Circuit Court jurisdiction. There was a sort of mixed view as to that. Undoubtedly there was a big bulk of opinion that the best way to solve this was to leave concurrent jurisdiction with the High Court, then let it be up to litigants to go by consent to the Circuit Court for anything.
We must fix some point, if we are going to have Circuit Court jurisdiction at all. I suggest to the Minister that he might consider having concurrent jurisdiction, that is to say, either party can choose or object to go to the High Court as long as the case is over £150, and between the old civil bill jurisdiction and the £150 mark, which we will put as the new pointer to Circuit Court jurisdiction, then allow the High Court to determine whether it was a matter reasonable and proper to be tried in the High Court or in the Circuit Court. If you like, get back to the old point of over £50, or revalue it at the present standard of money and say £100, and have £100 more or less compulsory in the Circuit Court. Under that system the Circuit Court jurisdiction would be £100. Even inside that £100, one might move in the High Court to have an action heard there, and achieve a hearing of the action in the High Court, on good cause shown to the satisfaction of that court and for anything beyond the £100, or the £150 mark, let it go either to the Circuit Court, or to the High Court on either party desiring to go to the High Court, and then block any attempt to go to the Circuit Court.
I suggest that that might be considered as a way out of the difficulty. This is the amendment which gives us the best ground for discussing the whole matter. While there was through the report a feeling of this new system not having succeeded, there was a vehement expression of opinion that the best way to amend the whole matter was to have concurrent jurisdiction. There must be some point established, and I suggest £150 or £100. I think the figures show that, in fact, the Circuit Court, in the main, has only been used for cases up to £100. When you have, in the period I speak of, nearly 5,000 cases out of 5,960 tried claiming only £100, it surely shows that the Circuit Court has not been availed of to any great extent by claimants for amounts above that.
The Attorney-General
Despite the number of occasions on which this has been considered, the evidence which we have had before the Joint Committee, and the discussions here, I do not think it is possible for anyone to devise a system that will eliminate hardship on some individuals, no matter what way you provide for limiting the jurisdiction of the Circuit Court. I have a great deal of sympathy with what Deputy Fitzgerald-Kenney said. In fact the arguments which he advanced here this evening were more or less the arguments which I advanced when giving evidence before the Joint Committee. At the same time I feel with the Minister that, whether you are to call it lay opinion and uninstructed opinion or not, there is no doubt that there is quite a body of opinion in favour of retaining the present limit of jurisdiction in the Circuit Court. I find myself in agreement with Deputy Fitzgerald-Kenney that in the long run, perhaps, it is not best for the litigants, even though they may imagine so themselves, and that cheap litigation is often very dear in the end. The suggestion which the Minister has thrown out I think goes as far as one can possibly go to meet the point raised and to devise a system which can be tried out which will be elastic, which can be adjusted to meet the circumstances as they are found to exist, when the system has been working for some time. The Minister's suggestion is that the law as regards the remittal of actions to the Circuit Courts should be amended so as to go some way, if not the whole way, to meet the suggestion contained in Deputy Costello's amendment on the remittal section.
Deputy McGilligan wants to go further and wants to have a system of compulsory Circuit Court jurisdiction; that is practically, I suppose, to leave the thing as it stands at the moment with regard to the jurisdiction of the Circuit Court in claims up to £100 and above £150 to allow either party the option of choosing the High Court in preference to the Circuit Court. When he says either party, I presume, he means the plaintiff—that the plaintiff shall have it open to him to bring his action in whichever court he chooses.
The Attorney-General
I do not think that is acceptable at all, because the position might be that a wealthy plaintiff, who is able to afford a High Court action, would launch an action for a figure such as £150 or over against a man who could reasonably afford to fight an action in the Circuit Court and would be very frightened at having to fight it in the High Court. I think the Minister's suggestion is a much more practical and a much fairer one, that if a plaintiff brings an action in the High Court for an amount within the Circuit Court jurisdiction, a defendant can ask the High Court to remit the action to the Circuit Court, and if, in whatever circumstances the section will allow, the High Court consider it ought to be retained in the High Court, they will retain it; and if they think it is a case with no particular difficulty either of law or fact, it will be remitted to the Circuit Court. One must realise that measurement by amounts is not a wholly satisfactory standard for deciding in what court a case will get the best trial. Very often you have cases which involve large amounts where the issues are comparatively simple and could quite as readily be tried in the Circuit Court as in the High Court.
There is provision in the Bill allowing unlimited Circuit Court jurisdiction in respect of any claim where the parties agree to have it tried there. The justification for the section is that both parties may be quite satisfied that the Circuit Court judge, either with or without a jury, provides a satisfactory and adequate tribunal to try an issue between them, even though the amount may be above the Circuit Court jurisdiction. So that I think it is much more reasonable to devise a system whereby the High Court shall be entitled to say whether, in their opinion, an action should be tried in the High Court or should go to the Circuit Court.
It will take some time to discover what the difficulties are in working this system, and I agree with Deputy Fitzgerald-Kenney that some of the difficulties which he pointed out will very likely be discovered in the course of the working of the system. It will be found that certain cases will take up the two days of a High Court circuit judge's time and that the effect of that will be to shut out certain cases and the forcing of cases from High Court circuit to High Court circuit with consequent inconvenience; but experience by the High Court judges, in going around the circuits, will inevitably provide them with some standard or measure for deciding as to what cases are likely to engage the attention of the court over a long period and which can be judged important enough to be held in the High Court when remittal motions come before them. Although difficulties may be experienced in the early years, I imagine that the experience of the High Court judges in going out on the High Court circuits will enable them to devise ways and means by which it will be possible to apportion the business between the High Court and the High Court circuit in such a way as will segregate cases of importance, both of law and of fact, which ought to be tried in the High Court, from those which can be reasonably left to be dealt with in the Circuit Courts. It will be understood, however, that under any system difficulties will crop up, and we can only devise the most smoothly working system we can find.
On the point which Deputy McGilligan makes about the small number of cases in the Circuit Court which are above the £150 limit, the argument on that, of course, can be said to cut two ways. I suppose the Deputy means to convey that the Circuit Court cases are so little above the limit and are of such a nature that no widespread hardship will be suffered by taking such cases from the Circuit Court. I have had some figures—probably they are the same figures Deputy McGilligan has had—and, in conjunction with other figures, I worked out that the average cases over a number of years, in which decrees were made above £150 and under £300, is about 60 a year for the whole Circuit Court area.
Over 200? What figure did the Attorney-General mention?
The Attorney-General
Sixty a year for the whole of the Circuit Courts.
The Attorney-General
Cases between £150 and £300.
The Attorney-General
I have not examined the list to see how they are distributed, but probably one would find, if one analysed the list further, that the bulk of such cases were in, Cork and Dublin. Cork Circuit Court, undoubtedly, strongly favours the increased jurisdiction, and I think that Cork solicitors, as a whole, are happy in having to have their cases tried in the Cork Circuit Court, and agree frequently, in cases of much larger amounts than £300, to have them dealt with in the Circuit Court there. I imagine that the bulk of the cases over £300 would be found to be between Cork and Dublin. Again, however, we cannot take the numbers there as a proper test of the value to litigants of being able to go into the Circuit Court in those cases, because most of those cases which are over the £150 limit are cases which take up time in the Circuit Court. They are important cases and take up much more time than their numbers would show. I should say that, if one were to work out a time analysis, it would be found, probably, that more time was taken on the cases between £150 and £300 than on the whole of those under that figure. With regard to that large figure referred to by Deputy McGilligan, I think, the year 1932-33, of 5,000 cases, roughly, under £100, and 1,000 cases, roughly, above £100, I should imagine that more time was spent on those 1,000 cases than was spent on the cases below the £100 limit, and there is no doubt at all, if one looks through the evidence given before the Joint Committee, that, with remarkable unanimity—perhaps not unanimity, but at any rate by a very large majority— the witnesses who gave evidence were in favour of retaining the Circuit Court jurisdiction at its present limit, and the finding of the Committee was definite on it.
As I said in my opening remarks, developing along the lines of what Deputy Fitzgerald-Kenney said, I know that the feelings of a good many members at the Bar are in favour of the reduction of the jurisdiction. I do not think their desire in that regard is to be brushed aside merely on the suggestion that it is a question of personal interest. I do not think it is a question of personal interest in Deputy Fitzgerald-Kenney's case. He is a man who has had, in my own personal knowledge, considerable experience of the working of the old County Courts. Few men in Ireland can have had more experience than he has had of the working of the County Courts and of the Assize Courts. I briefed him myself when I was a solicitor, and I think his opinion is entitled to the highest respect. I believe what he has stated here has no element of self-interest in it at all and that he really believes that the system would work better if the limit of jurisdiction under the Circuit Court were reduced to £150. He did not, I think, appreciate the effect upon his arguments of what the Minister said. I was one of those before the Committee who suggested this idea of concurrent jurisdiction. I do think, allowing for objections made against this jurisdiction of £300, it allows at least any person, who wishes to choose the Circuit Court, to choose it. If the ordinary man in the street prefers the Circuit Court he is entitled to choose that venue for his action. On the other hand, he will not be compelled to go to the High Court if he can show that his case can adequately be tried in the Circuit Court. I do not know that there can be very much force in the objection to leaving the jurisdiction as it is in view of what the Minister says he is prepared to do in connection with the remittal motion.
I should like the Attorney-General to get it out of his head that there was anything like unanimity in keeping the jurisdiction of the Circuit Court. I went through this evidence in considerable detail. I do not propose to weary people with copious extracts from that evidence. Take the first dozen witnesses on the list or let us take, say in fact, the whole list.
The Attorney-General
I will give the Deputy the whole list—22 against reduction and 11 for.
Which included Mr. Murphy of Clones who was against it, if you keep the present system of appeals. Then there were certain others who said, "Keep it as it is, but we want certain things provided." Then we had the commercial community speaking through the chambers of commerce. One witness said he did not get sufficient speed by the appeals and then he added, "But mind you, we want no extra expense involved." The commercial man wants speed in the hearing of cases but he jibs at any extra charges and you are faced with the demand from them to get the new system but let it be a speedier system which will involve the payment for more duties but it is not to cost any more. These people are not to be counted in favour of the present system. In the whole Cork area there were two solicitors and the Registrar of the courts in Cork; I think some other people spoke for the Cork area certainly. There were five of them altogether. Cork has a view that the present jurisdiction must be maintained. They were very definitely of that opinion. Senator Lynch said he thought the jurisdiction should be reduced to, I think, £50. The next witness was a member of the Senior Bar and he wanted the jurisdiction reduced. You then had two solicitors representing the Incorporated Law Society and one of them more particularly than the other was in favour of a considerable reduction, down to £100. He was followed by a member of the Senior Bar who was distinctly in favour of a reduction. Then there was a solicitor from Limerick in favour of the present system and so on down through all the witnesses. If you segregate properly all these witnesses the phrase about unanimity disappears. Mr. Murphy of Clones, listed as being in favour of a change in the system, had this idea, "If there is one hearing only, let it be £300 in the Circuit Court and finish with it. Have no appeal on the question of fact." With a single hearing he said the present system would work out well and appeals must be done away with or if there are appeals, let them not be on questions of fact; leave it, as is the English system, to cases stated or to appeals on point of law. The earlier witnesses — half-a-dozen witnesses — were almost unanimous in the view that the jurisdiction ought to be reduced, but when pressed on it we can see what their answers were. When asked if they were in favour of the present jurisdiction of the District Court the matter was passed over.
The next question was, "Are you in favour of the present system of Circuit Court appeals?" The third question in the series was, "Are you a believer in the idea of concurrent jurisdiction?" The evidence would have to be analysed to get a real view of it. Those who had objection to the present system thought that everything would be solved by having concurrent jurisdiction in the High Court. There are certain witnesses whose evidence I do not discredit. One was a Circuit Court judge. I do not dismiss from my mind the fact that he is a Circuit Court judge. But taking the independent witnesses I think there was a big confusion of opinion and there was a criss-cross division. There were men who objected to the present system altogether and wanted the old system brought back. There were men who objected to the present system on the ground of appeals and there were other witnesses who objected to it on the ground of expense. As it was, the biggest bulk of opinion was in favour of a reduction from the limit of £300 to a £200 limit; some of them were down as low as £50. Those objecting on these grounds added on this as their second line of argument: "If you keep the present system as high as £300, then you are to have concurrent jurisdiction in the High Court." That ran through their argument. I would refer particularly to the evidence of Mr. Murphy of Clones. Question 1891 was the special reference given. The statement there is definitely taken out of the main trend of Mr. Murphy's argument. He was in favour really of what is a new system entirely—that is a Circuit Court with a jurisdiction of £300, the judges hearing these cases to be free from appeals on the question of fact. He would allow an appeal only on a question of law except in rare instances where the litigant can go and make a case for a new trial motion and get that agreed to by some branch of the High Court. But there was no unanimity about their evidence in this matter of the present system. Then the bulk of the people who were in favour of keeping the £300 jurisdiction had some reservation with regard to it, the reservation being, "Give us concurrent jurisdiction in the High Court or keep the present system as it is and do away altogether with appeals to the High Court." If a glance is taken at the figures a pretty good distinction will be found to be apparently made by the litigants themselves. Some claim that the jurisdiction should be £50. Others are between £50 and £100; then some others between £100 and £150.
A good bulk of the cases were in the lower category, and then there are a number between £150 and £200. They are small, but there are a good many claiming £300. That £300 is a false figure. When a litigant claims something less than the maximum he really is basing his claim on some constant figures with regard to damage or loss. But when the claim is put in at £300 it is the same as saying: "We make this a Circuit Court case, but we do not know what we will get." The special evidence with regard to the £300 case went to show that between the Michaelmas sittings and the Trinity sittings there were five cases in the whole country.
The Attorney-General
Does that mean over £300?
The Attorney-General
Where it was over £200 and up to and over £300, there were 67 cases in the whole country and in the next year there were 60 cases. Where claims were made for over £250 and up to £300, in Dublin City and County in the two years there were 233 cases. There were 217 cases in Dublin alone where the claim was over £300. There were only 67 cases in the whole country in which awards were made within those limits. It is known in practice that the £300 claim is a claim made without any real appreciation of the amount likely to be awarded. It is not a serious claim; it is not so serious as when the amount is set out in any of the lower groups. These figures will stand a great deal of cross-examination. There were 4,913 cases between the Michaelmas sittings of 1933 and the Trinity sittings of 1934. The total of all cases is 5,960. There were only 700 cases in which the amount claimed was over the £150 mark.
The awards give another picture, and it might be suggested that they favour the keeping of the Circuit Court jurisdiction where it is. That argument may be used either way. It may indicate that there is no necessity to lower the Circuit Court jurisdiction, because it is not being used very much above the £150 scale. I suggest it is a clear indication, when the whole Report is supposed to be based on what litigants desire, that we would be moving in accordance with what litigants desire if we reduced this jurisdiction to £150. It would be useful if we could get forward notice of what the Minister proposes on this question of reduction or non-reduction of the Circuit Court jurisdiction and the circumstances in which one would be able to have these cases under the £300 mark and up to some point taken in the High Court, with the High Court always to be the judge in the end, whether it is fit and proper to take the case there and whether it is reasonable to be tried there. I will ask the Minister to go further, to go along the lines suggested by Deputy Costello, associating a different scale of costs, if necessary, for High Court trials of cases between £150 and £300.
The Attorney-General
That is being done, in fact.
That, of course, will do away with some of the objections with regard to the expense entailed in going to the High Court in connection with cases between £150 and £300. There were other objections on the ground of bringing witnesses to Dublin. We are going in for a new system in which the witness will be brought from the locality to a central point in that locality. Other questions are very definitely interlocked. I suggest that this matter of concurrent jurisdiction should be better examined, and if the evidence is analysed it will be found there was a big volume of opinion in favour of that. The Bar Council has recommended a reduction in the jurisdiction. The Circuit Court judges' evidence is not to be regarded as entirely independent.
I do not know that there is any use in leaving this matter over. I have considered the thing carefully and I feel I have made a considerable concession in this matter by reconsidering this amendment of Deputy Costello's. I think that goes a very long way to meet most of the objections. As to leaving this other question over, I do not think there is any purpose in it, because I do not think I could possibly reconsider it.
I would like to press for this amendment. I do not agree with the suggestion of the Minister to reconsider the proposal with reference to enabling certain classes of cases to be retained in the High Court, if a case could be made out for such retention on the ground of the importance of the points of law involved, or the difficulty of getting a fair hearing in the local venue. I do not think that suggestion will meet the case made on behalf of the present amendment. They are linked to a certain extent, but I think they are two distinct amendments to meet entirely different cases. It has to be stressed in considering this amendment to reduce the jurisdiction that we are not going back to the old system of appeals. We are doing something more. We are giving a new hearing to a case of considerable importance in classes of cases where such a rehearing was never given before. The old rehearing at Assizes was confined to actions under £50. Over that amount they were heard in the High Court and they could only go by way of new trial motion to the then Divisional Court, the Court of Appeal, and perhaps to the House of Lords; but there was no rehearing. What this amendment proposes to do is to equate the old £50 jurisdiction and bring it up to date, to equate it with the suggested jurisdiction of £150. I think it is making adequate allowance for the cases to be heard in the local venue.
As to expenses, I think it will be found that it works out more expensively in the Circuit Court to try a big action involving £300 than it would to try it in the High Court. A graduated scale of costs might be fixed in reference to cases between £150 and £300. Practically the whole of the expense involved in an action is in reference to the cost of the attendance of witnesses. Speaking generally, the costs of solicitors and counsel in big actions of this kind in the Circuit Court and the High Court are more or less the same in practice. If you look at what actually happens on the hearing of a case involving £300 in the Circuit Court, it is almost impossible to get a special day fixed by the Circuit Court for the hearing of that case and the result, in practice, is that witnesses have to come in for several days in succession from their homes to the local Circuit Court town and that may be as inconvenient to get at as it would be for the witnesses to get to Dublin. They have to come in at almost as much expense and as much expense is incurred by going to the Circuit Court town as in coming to Dublin. Normally speaking, people who get a case fixed for Dublin will know the date on which it is to come off. That is possible in practice. Even in connection with jury cases, which are the most difficult of all in that connection, it is possible to get an approximate idea— and so save expenses—as to when the actual case will be heard and determined. It is not possible to get that in the Circuit Court. There is the further difficulty, in connection with the Circuit Courts, that two or three days' expenses will be incurred in connection with the assize hearing. Deputies may take it as a certainty that the amount of time that must be spent on the rehearing of cases that come before the assize judge, under the new Bill, will be vastly in excess of what they were under the old system.
No judge or county registrar can anticipate how many cases can be got through by the assize judge on particular days. If there are two judges hearing, concurrently, in an assize town, that will only add to the difficulty and cause more confusion. As I said in moving this amendment, there was always the case that perhaps the jurisdiction of the Circuit Court was fixed too high. If it is proposed to give a rehearing in these big actions— because, as I said, an action involving £200 or £300 is a big action—the case for this amendment is unanswerable.
The Attorney-General
One thing I doubt is that in practice there is an enormous amount of difficulty in fixing the dates for hearings in the Circuit Court. I have not very wide experience of the Circuit Courts, but I have knowledge of them in two or three counties. In the West, in Circuit Judge Power's Court, a working arrangement was arrived at which enabled one, with almost certainty, to know when the case would come on. I think it would be found possible to set out a list which would be almost acted up to, and to provide that a case came on exactly as scheduled by the judge. In Dublin there may be some difficulty though I think the Deputy said the difficulty was in places "other than Dublin."
The Attorney-General
I know certain difficulties do arise in Dublin. The Deputy's point, I think, was that sometimes it costs people more to go to Circuit Courts than it would cost to bring them to Dublin. That, I think, is a slight exaggeration. Everyone with experience of the High Courts knows that very often when people come to Dublin for a High Court action in the middle of the week, it does not come off, and they may have to go back to the country and come back again in the following week. That does not often happen. I know it is possible to fix a case here in Dublin with sufficient certainty to know when it will come off; but in most cases witnesses are kept one or two or three days waiting in Dublin for a case to come off; and having country witnesses spending their time in Dublin, is much more expensive than travelling backward and forward to the Circuit Court town on successive days. I do not think, in the county I have had experience of, that there is any difficulty in fixing the Circuit Court lists. As regards expenses, it may be that there are cases in the Circuit Court in which there are issues with more money involved and in which litigants provide themselves with the luxury of senior counsel. Deputy Fitzgerald-Kenney said that there were cases in which two senior counsel were engaged. But I would hazard a guess, if you were to take a case here in Dublin, and compare it with a case in the Circuit Court, then as regards time spent, and take everything else into account, the cost would be much more considerable in Dublin. Witnesses' expenses cannot be anything like the same amount for rehearing of cases in Mayo, Cork or Kerry or in any of the counties over 50 or 100 miles from Dublin that they would be if witnesses had to travel to Dublin. I do not think that the fees to counsel are on the average anything like as high in Circuit Court cases. I am afraid there is not a great deal of force in the argument that costs in cases of over £150 are as high in the Circuit Court as in the High Courts. It will require a great deal to convince me of that.
There is force in a good deal of the argument advanced, but I suggest to Deputy Costello that the Minister's concession goes a long way to meeting the point raised. It would enable the High Court to get rid of cases that ought to be tried in the Circuit Courts, and would leave in the Circuit Court cases involving amounts in excess of £150 and up to £300 where, as Deputy Costello will admit, very often the issues to be tried are more easily solved than those involving a £5 note. I think after the system is working a few years the Assize Court system will be welcomed by solicitors and litigants as the tribunal in which to try appeals and keep down costs and not to add to costs. In only 60 cases in the whole country were decrees given for over £300. The bulk of these were running-down cases where the only issue was one of negligence. The Circuit Court judge is quite well able to try that issue. If not the assistance of a jury could be had. There is objection to try jury actions in the Circuit Court to which Deputy Costello referred already; but I think it will be found if the Minister's amendment is accepted it will be possible to select the odd case in which there are questions of fact and of law involved of sufficient complexity to induce a High Court judge to say that it would help the proper administration of justice that that case should be tried in Dublin rather than in the Circuit Court.
The inducement to go into the Circuit Court and not to select Dublin as a venue is further strengthened by the scale of costs which is put into a section in the Bill. Suppose a litigant thinks that he would prefer a Dublin venue for his action and starts his action in the High Court, successfully resisting a motion to remit; notwithstanding that, if—when the case is being determined—he recovers a sum which is within the various limits fixed under the section, the High Court judge will allow him only the costs on the Circuit Court scale. The defendant who has been brought to Dublin, either unwillingly or willingly, will have the consolation that he will not be called on to pay anything more than Circuit Court costs where the amount awarded exceeds a certain sum, unless the judge certifies that it was a fit and proper action to be tried in the High Court. In all, looking at the matter from every point of view, I do not think that any great injustice will be suffered by anybody in leaving the jurisdiction as it stands, and that, on the balance, it is fairer to the people generally that they should be allowed the freedom of access to the Circuit Court which the present limit of jurisdiction allows.
I always like to face facts, and it is quite obvious that the Minister is not going to accept this amendment or to meet it except in the direction indicated. Consequently, I should like to get as far as I can in the direction in which he has intimated that he is prepared favourably to consider the matter. I should like that, when he is considering the previous amendment about the jurisdiction of the High Court retaining for hearing actions which are within the jurisdiction of the Circuit Court, he would not adopt the wording of the amendment I proposed, because it is not anything like as wide as I should like, nor do I think it would, in the form I proposed originally, go as far as the Minister appears to be prepared to go in connection with allowing the High Court to retain actions that they think ought to be heard in the High Court. What I really want to avoid is another decision on the policy of the Act. I want to make it clear, on the face of the section which the Minister puts in, what is intended, and that the construction of the Act will be given by the judges not on the wording of the Act, but upon some sort of policy about all cases going to the Circuit Court and all that sort of thing. If the Minister is prepared to consider the amendment on those lines, I would be prepared—for want of better, I admit—to accept that. In the same connection I should also like him to consider an amendment of mine which will be ruled out of order when we come to it because it is a direct negative of a section. It is amendment No. 37. Perhaps, with your permission, Sir, I might refer to it, as it is related to the subject matter which we are discussing now. It is an amendment to Section 23, which says that when an action is remitted from the High Court to the Circuit Court, the Circuit Court shall have jurisdiction to go over the £300. We felt that that was a direct invitation to the High Court to remit every class of action which they could possibly remit, because they would say, "No great injustice will be done by this. If a man is awarded £15,000 the Circuit Court can give it to him." It would open the door wide, and offer facilities for transferring actions which ought to be retained in the High Court. As that section is related to the previous matter I would ask the Minister to reconsider that section also in the light of the facts which have been put before him.
May I have this last word? Two representatives from the Junior Bar visited this Committee. The Attorney-General was one of them. His colleague gave evidence before it, and he was asked the definite question, "With regard to the jurisdiction of the Circuit Court, are you of opinion that the present jurisdiction should be diminished?" He replied, "Yes, I am." In reply to the question, "To what amount would you suggest?" he said, "I suggest that £100 would be quite sufficient in ordinary common law cases—contract and tort." He was asked to explain that, and he did so at great length. Later on in the course of that explanation he says, "I do not think that cases involving serious questions of law and fact and involving large sums of money can be satisfactorily tried in the Circuit Courts." He stone-walled very definitely on every question put to him to try and get him to change that opinion. He was asked did he not think that a better provision of rules would meet the matter, and he replied: "My own opinion is that this system is a bad system, that the jurisdiction is too high, and that no rule-making will make it better." That is at question 5028. He was asked finally about the stenographers' notes, and he said that stenographers ought to be available to take the evidence, and then possibly that the judges, having that before them, would be in a position to break down any attempt at perjury.
The present Attorney-General said he would not go over the same ground, he so thoroughly agreed with his colleague. I take it then he was in favour of diminution of the jurisdiction. At any rate he agreed with his colleague, and would not go into it. I quote this phrase of his: "Although people say it is more convenient to try cases in local centres, and that consideration of expenses, and so on, should induce the Legislature to spread the courts all over the country, I think the people who urged that view do not realise how much they are injuring the administration of justice by doing that." He further said: "It follows from what I have said that the jurisdiction of the local court should not be extended except under absolute economic pressure." And he went on to say that it was easy to exaggerate the value of cheap law. If the Minister for Justice cannot find any arguments here, will he, at any rate, go to those extracts from the Report? There were very wide arguments put up in those days in favour of reducing the jurisdiction.
The Attorney-General
Why did you not act on them?
Because we had the view that the present court system had not been properly tried out. I for one had that view, and was responsible to the extent of one person's voice in the Executive Council for preventing any Bill being brought forward to amend the system. On this matter I speak entirely apart from the profession to which I belong at the moment. I do not know what their views are. As far as the junior members are concerned, they would probably be in favour of keeping the £300 and having a new system of appeal. I do not pretend to represent them in any way. I speak simply with the layman's view on this matter. The Chief Justice was very strong in his evidence, and it is evidence which must have impressed itself on the mind of anybody who read it. Then there was the evidence of the President of the High Court, and that of Mr. Henry Murphy added to that. It was not a question of keeping the old system of appeals which we are now getting away from, but even going further and abolishing those appeals, and only having appeals in matters of law. The Chief Justice wanted the jurisdiction increased, I think, to £500, but he did that again, like Mr. Murphy, of Clones, in the atmosphere of keeping the present system. I accepted that point of view. It may have been right or wrong, but that was what moved me in holding out against any Bill to implement this Report on the matter of appeals. To return to the Attorney-General, he had another point of view which I would like to recommend to the Minister. He thought the stenographers' notes should be kept—that at any rate they should be available to the judge. It was pointed out that that meant having a stenographer in court, and he agreed. His final view was that in regard to the cost of the transcript in every case the State should be prepared to bear it. That should be set against the present idea of having court fees increased. The Attorney-General then thought that the State should bear more, and it was a good view.
It depends on who is in power.
Amendment, by leave, withdrawn.
Section 22 agreed to.
Amendments Nos. 36 and 37 not moved.
Question proposed: "That Section 23 stand part of the Bill."
I have already intimated to the Minister the view we wish to put forward on Section 23. The section proposes to give a Circuit Court judge full jurisdiction, where a case is remitted, to give damages in excess of £300. That, in our view, opens the door wide to the transfer of actions on a pretty generous scale, to put it no higher, from the High Court to the Circuit Court, because a High Court judge, hearing a motion to remit an action to the Circuit Court, will say: "Even if I do remit it, no great injustice will be done, because the man can get damages up to the sky." There is a complete addition to the jurisdiction of the circuit judge under this section. Instead of a jurisdiction limited to £300, he has now a jurisdiction without limit in a remitted action, and all a person has to do is to bring an action which is obviously unmaintainable in the High Court, have it remitted to the Circuit Court, and get considerably in excess of £300 from a sympathetic country jury. That will be one of the methods of enabling sympathetic country juries, in cases in which they know the parties, to give very excessive damages.
Of course, I recognise that there may be an appeal from that to a judge who will be sitting without a jury, and there is therefore some check, but at the same time I do not see any particular necessity for this section at all. In fact, we wish to achieve the position that the circuit judge should have no jurisdiction to entertain any application, or to grant himself, nor should any jury be entitled to give, damages in excess of £300 on a remitted action. I do not see why a remitted action should be in any different category from an action properly started, and started in the first instance in the Circuit Court.
It strikes me that considerable difficulty would arise if there were not some such provision as that. Suppose we start off on the basis of a jurisdiction of £300, subject to what is stated with regard to amendment No. 16 which the Deputy has introduced. Such a provision with a more limited jurisdiction obtained under the County Courts Act of 1887. Under Section 52 of that Act, where an action was remitted to the County Court, it had jurisdiction to give damages in excess of the ordinary jurisdiction.
Yes, as it was then, but since that was the jurisdiction at that time and we consider £300 a reasonable jurisdiction as proposed in the Bill, it is right and proper that this provision should be inserted. When an application is made to have an action remitted to the Circuit Court, affidavits have to be lodged and so on. The judge hearing that application has not the opportunity— he certainly has not the fullest opportunity—of enquiring into and seeing all sides of the case with a view to ascertaining whether or not it would come within the jurisdiction of the Circuit Court and I can see that in many cases hardships might arise from that. If a case were remitted—supposing it were a running-down case— it might be found that the injuries became more serious or there might be evidence produced before the Circuit Court to show that the case was much more serious than was brought to the notice of the judge who tried the action for remittal. The point I emphasise is that since the jurisdiction is proposed in this Bill to be maintained at £300, it follows as a corollary to that that what obtained under Section 52 of the 1887 Act, when the jurisdiction was £50, should apply.
Has the Minister had his attention directed to even a single case since the Courts of Justice Act, 1924, came into operation, in which any hardship was inflicted on a litigant by reason of the fact that the circuit judge had jurisdiction only to give damages to the extent of £300 or are we to take it that the only reason for this section is by some sort of false analogy with the provisions of the old County Court Acts?
There is the Chief Justice's evidence on that point.
I asked for a specific instance.
If the Minister cannot give it, the return I quoted from would appear to give the answer because, from the Michaelmas sitting, 1932, to Trinity sittings, 1933, in the Circuit Court, there were only five cases in the whole country in which awards of over £300 were given.
The Attorney-General
Possibly, but there were only five, and there were only six in the next period—in what amounts in all to a year. The Minister has quoted the Chief Justice to us. He was entirely in favour of keeping the present system. He wanted the present system kept and the jurisdiction raised to £500. Naturally, that mind brought to bear on the Courts of Justice Bill would be in favour of it because the whole tendency of the Chief Justice was towards further decentralisation and, therefore, he would be in favour of not having this bar, that a man could only recover damages up to whatever was the limit. The Minister used another bad analogy when he quoted the £50 jurisdiction of the old County Court. That was so remarkably small that undoubtedly there was unmistakable reason for allowing damages to be given somewhat in excess of that.
There are two contrary opinions in conflict here. We are unfortunately loosening up whatever moorings there were tying us to certain fixed things, and the whole tendency of this Bill— not merely what has been put into the clause itself, but the inherent tendency of the whole measure—is towards greater decentralisation, and this is another pointer in that direction. We had this fixed system here. It was objected to as being bad and we are changing it, but we had that system, that if a case was really within the limit of the jurisdiction of the Circuit Court, it was sent there immediately. There was this barrier against sending down other cases where the damages claimed were not precise, that a man could only recover—I am not speaking of the consent cases—whatever was inside the upward limit, but now we are going to loosen that, and we are to have a completely new system under which a judge of the High Court will no longer be deterred from sending cases down by the thought that there is a prospect that a man might recover more than £300, and we give him leave to give any amount. You might have £1,000 judgments being awarded in the Circuit Court, and this section will aid the tendency that is written into the Bill in every clause.
Surely if we are not going to stop the movement towards decentralisation, we should not, without greater thought and without some better aid from the evidence of witnesses, assist decentralisation. The best evidence given before the Committee was against further decentralisation. The bulk of the opinion, I say, was in favour of a lowering of the jurisdiction in the Circuit Court. This moves away from the Report in this whole matter.
The Attorney-General
I do not see any of the dangers that Deputies see in this section. It is really put in on a suggestion which came, first of all, from the Chief Justice. Deputy Costello referred to the false analogy between this and the old system. The Chief Justice referred to it, and I do not think that his answer, though Deputy McGilligan skilfully endeavoured to show that his attitude on this was tied up with his attitude to the whole system, can be said to be what the Deputy suggests. I refer to his evidence on page 325 of the Report, Question 4729. He volunteered the suggestion, because the Committee asked him:—
"Is there any other matter before we pass on to the question of jurisdiction? On the question of jurisdiction, Chief Justice, what is your opinion?"
The Chief Justice answered:—
"There is an amendment, no matter how you fix the jurisdiction, that is very necessary: It arose also in the County Courts in cases of remitted actions. In the case of a remitted action, under the Common Law Procedure Act, 1870, the jurisdiction of the County Court was £50. If you sent down an action, under the remittal section, of the Common Law Procedure Act, the jurisdiction was still only £50. Although it might turn out at the hearing in the courts that the party should get more, still you could not give him more. They then passed an Act in 1887—it is Section 52 of the County Courts Act of 1887— which provided that in the case of actions remitted, the court to which it was remitted should have the same jurisdiction in the case of unliquidated damages as the court in which the action is brought. That did not enlarge the power of remitting, but it prevented injustice when the action was remitted."
Deputy Costello wants to suggest that the new section, as it stands, will enlarge the power of remitting. My recollection of the period when this old system was in operation is that it was not relied on to enlarge the power of remitting.
Many a time a judge has said, in the case of a remitted action, if this case goes down and more than £50 damages should be given, then the County Court will give them, and the judge sent it down on that basis.
The Attorney-General
He may have said that in answer to a plaintiff who was unable to satisfy him on the grounds as to why the action should be remitted at all. In a case of that kind, a judge may have said: "If the case goes down you are going to be in no worse position because the County Court can give you £1,000 damages, if necessary." I do not think, as the Chief Justice says here, that it is likely that it actually narrowed the remitting motion very much. It probably would have some effect. I will return to that point, but let me give a further quotation. The Chief Justice gave an instance. He said:—
"Take the case of a person who is run down by a motor car. The injury at the time the action is brought in the High Court does not appear to be much and the evidence goes to show that the damages may not be more than £50. By the time the action is tried, however, you find that they may be more than £500 or £600, but the court has no jurisdiction to give a decree for that amount. No matter what limit you put on a court jurisdiction, that amendment is necessary."
Senator Brown said:—
"That is to have a similar section as the one in the County Courts Act of 1887?"
The Chief Justice answered:
"Exactly. It is a thing we think very necessary."
I presume that, when the Chief Justice said "we", he was thinking and speaking on behalf of the judges as a whole. That might possibly, as Deputy McGilligan argued, be affected by his view about the system as a whole, but I do not think so. If you go back to the old County Court, it does seem rather odd that Section 52 of the 1887 Act should not have been repeated in the 1924 Act. I think it is reasonable to put it in here. I see that when Judge Davitt was asked about the matter he seems to have been taken rather by surprise. On page 334 of the Report, in Question 4875, we find this:—
"There is another way in which the present state of affairs is not satisfactory. If a case is transferred from the High Court to your Circuit Court you cannot, except the parties agree, give more than £300, though it turns out in the hearing in the Circuit Court that there ought to be a larger sum. When the old County Court was working, there was an Act of 1887..."
and the question goes on to refer to the old sections. Judge Davitt asked:—
"Independent of the agreement of the parties, do you mean?"
Senator Brown answered "yes", and Judge Davitt said: "I can imagine cases in which it would be advisable." Senator Brown added to that, "They have occurred."
There was no particular instance of it given undoubtedly, but in view of the fact that, on consent, the Circuit Court has unlimited jurisdiction, can it be said that in allowing jurisdiction, where an action is remitted, there is anything novel in it, or that it introduces any new argument as regards policy; that it allows argument to be based on the policy of an action on remitted motions? I do not think it does. I know that this particular suggestion has been mooted from time to time by several people in the hearing of cases in which difficulties have arisen, where actions have been remitted to the Circuit Court and it was found that the £300 limit was too small for the amount of damages incurred. Take the case of a plaintiff who sues in the High Court and his action is remitted on the grounds that the judge, on the material stated in the affidavits, is not satisfied that he should recover more than £300. If he goes to the Circuit Court in consequence of that order and that his evidence—in, say, a running-down case —and the evidence of the medical witnesses establish much more serious injuries than are apparent in the affidavits, it seems rather hard luck that he should not be entitled to recover adequate compensation simply because, on the reading of the affidavits on the remittal motion, the judge took the view that he should not recover more than £300. I doubt it this section will create any difficulties or do the damage suggested.
I do not think the Attorney-General has dealt with the remarks that I made that it will tend, to put it no higher than that, to make High Court judges freer in remitting actions to the Circuit Court because they will salve their judicial consciences by saying: "Well, if anything does transpire in the course of the case that does not appear in the affidavits, then there is the Circuit Court, and it can give an amount of damages in excess of the £300."
The Attorney-General
The reason I did not deal with that was because I thought the Deputy had answered the point himself by saying that the case could go back on appeal to a High Court judge on circuit.
I want to put this aspect of the matter to the Attorney-General. The Minister and the Attorney-General will recognise the fact that it is impossible to present a person's case on affidavit adequately. Anybody who has had experience in dealing with running-down cases, negligence actions of all kinds, will know that when you read a doctor's or a surgeon's report in your brief, in so far as it is comprehensible at all, the evidence will not appear as it will when the doctor himself is in the box, so that High Court judges, reading affidavits, have no opportunity of finding out what is the real position in the case. If those actions are to be transferred, let us take the case of a person injured. He has been attended by a city surgeon or a city medical man. That action is transferred. It will be impossible for a litigant, who is not well off, to bring down these eminent surgeons or eminent medical men from the City of Dublin to the local venue.
The Attorney-General
I have frequently seen them brought down.
So have I, but the normal course in these running-down actions in the Circuit Court is for a local doctor to give evidence, and some of these local doctors are extremely good. But the surgeons with greater names and more eminence carry greater weight with judges and juries than the others, and, if an action is remitted from the High Court to the Circuit Court, the result will almost certainly be that lower damages will be got than would have been got in the same action if it had been retained in the High Court.
May I point out that the proposal made by this section either goes too far or does not go far enough? What has been said about remitted, or transferred, actions might be equally true about actions which are commenced in the Circuit Court. A man may be injured by the negligence of a motorist and may institute his action in the Circuit Court. It may turn out that he has suffered greater injury than would be sufficiently compensated by £300. Why is that man not to get the benefit of this section just as much as the plaintiff who has started in the High Court and whose case has come under the review of a judge, the judge determining that £300 will be the limit of his compensation? If the Minister proposes to give the Circuit Court limitless jurisdiction in cases of unliquidated claims let it be understood, but why is the man whose case has been held by the High Court to be fit only for the Circuit Court to have a right to unlimited damages while the man whose case has not been so determined is not to have that right? That is one sufficient answer to this section. Either it goes too far or it is not necessary at all.
Any analogy based upon the old system is quite false and could only be made by a person who was not familiar with the procedure under which actions were remitted under that system. At present, when a case is brought in the High Court, it can only be transferred to the Circuit Court if the judge is of opinion that it is within the jurisdiction of the Circuit Court and fit to be prosecuted therein. That is all he has to consider. As the Minister and the Attorney-General will probably remember when their attention is directed to it, there was no similar provision under the old system. In cases of tort, which are the ordinary cases of unliquidated damages, the application to remit was an application that the plaintiff should give security for costs or, otherwise, that his action should go to the County Court. In other words, the governing factor with the High Court in the case of tort, which is the case dealt with by this section, was the poverty, or as it was put in the section, the "want of visible means" of the plaintiff. Under the old system, a plaintiff who could give security for costs could keep his action in the High Court no matter how trivial it was. It was thought just and right, if a poor man brought his action in the High Court and was transferred to the County Court, that the County Court judge should have unlimited jurisdiction. Surely that was fair. The question of riches or poverty no longer enters into the case. When this section was put into the Bill and when the Minister supported it and sought to justify it by some analogy with the old system, this factor must have been overlooked.
Why do you keep this section tied to remittals?
The Attorney-General
I understand that the reason is that injustice would be done to a plaintiff who had his action remitted because the judge took the view that it was one fit to be prosecuted in the Circuit Court as he was not likely to recover more than £300 damages. It might emerge in the Circuit Court that the judge in the High Court was wrong in that opinion and it was felt that the plaintiff should not suffer thereby. Deputy Lavery has made the point that this section goes either too far or does not go far enough. I have already dealt with the question as to whether or not it goes too far. Deputy Lavery says it does not go far enough but I do not quite follow his reasoning. He says that, if we are to be logical, we should have no limit on the jurisdiction of the Circuit Court at all. He instances the case of a man who brings his action in the Circuit Court and it is found in the course of the trial that he made a mistake and that he should have gone to the High Court. That error can be corrected in either of two ways. He may withdraw his civil bill in the Circuit Court before it comes to hearing, discontinue his action and start in the High Court. Or he can do what was done, I think, in a running-down case the other day—move before the circuit judge under Section 48 of the 1924 Act to have the case sent into the High Court on the ground of a miscalculation as to the amount of damage suffered. That was done successfully the other day. That has been done, I think, in only a couple of cases.
Will that procedure be open in future?
Will it be open in the case of a remitted action?
Surely the position will be ludicrous if the two courses of procedure are to be allowed to stand side by side. One action is remitted from the High Court to the Circuit Court. When it goes down, it appears that more than £300 damages should be given. That is dealt with by the circuit judge. Another action is started in the Circuit Court and, during the course of the proceedings, it transpires that more than £300 damages should be given. The circuit judge is not to give £300 but he is to send the case up to the High Court. Are these cases to be going up and down in that fashion?
The Attorney-General
I think that there is a limitation on transferring to the High Court.
In a remitted action, when it emerged that the plaintiff should get more than £300, he could go back to the High Court. Is not that right?
The Attorney-General
I do not think that the section goes so far as that. Section 48 says:—
Provided that any party to an action commenced in the Circuit Court, and pending therein may at any time apply to the circuit judge that the action may be sent forward to the High Court, and thereupon in case the action is one fit to be prosecuted in the High Court and the High Court appears to be the more appropriate tribunal in the circumstances, the circuit judge may send forward such action to the High Court...
It does not follow automatically that because a plaintiff claims that he has not sued for the amount he should have sued for, he would be allowed to go to the High Court.
Suppose the circuit judges think that the High Court judges are sending them too much work and they commence to send up their actions to the High Court on the ground that fair exchange is no robbery, what is the position to be? Will a further remitting application be made in the High Court to transfer to the circuit judge an action the circuit judge has sent up to the High Court? The position would become ludicrous. As Deputy Lavery, behind me, says, the two might collide on the way. The Attorney-General has not answered Deputy Lavery's point on the question of the poor man. He has not answered the point that this section, as I pointed out, is supposed to be justified by analogy—a false analogy, as Deputy Lavery has fully demonstrated—with the old County Court system. That is pointed out as being founded on the fact that the plaintiff had no visible means. Anybody who could show that they had visible means or could give alternatively security for costs in a small sum could retain the action in the High Court. The principle attempted to be put into this section is entirely different. An attempt is being made to justify the new section by analogy with the old section. There is no analogy. The Attorney-General has not answered Deputy Lavery's point.
The Attorney-General
I do not agree. I think I have answered Deputy Lavery. It does not matter what the grounds for remitting were. It was thought that the law should be amended, and when a case was remitted the County Courts got unlimited jurisdiction.
Only the poor man's action could be sent there. The rich man's action remained in the High Court.
The Attorney-General
In principle why should the jurisdiction be so extended to the County Courts under a system where the ordinary jurisdiction was £50? Although the amount may be different, why should not they be able to hear these cases, particularly when under the section the jurisdiction conferred on the Circuit Courts on consent is unlimited? That did not exist in the County Courts. Under Section 48, on consent, there is not any limit as to amount of the claim or the value of the property. It does not seem to me to be illogical to allow the Circuit Courts to give more than £300 in cases which the High Court has remitted. By agreement between the parties, the court can have jurisdiction unlimited, and has frequently exercised it. Although the reason for introducing this section may be different to that which led to the introduction of the section under the Act of 1887, I do not see that there is anything illogical about it, or why jurisdiction should not be widened in the particular case that the Chief Justice mentioned in his answer, and which I accepted as an instance of hardship, following leaving the law as it stands.
That was taken midway in the Chief Justice's evidence. He pointed out that he wanted that jurisdiction and that if there was any move it should be towards an extension to £500. Following the point in the question mentioned by the Attorney-General he said that the ordinary run of cases should be tried locally. He expressed that point of view before. The example quoted by the Attorney-General went to show that the whole mentality of the Chief Justice was that the jurisdiction if it was to be given at all should be by way of enlarging it. Naturally under these circumstances the Chief Justice would not pay any attention to arguments based on a tendency towards decentralisation. It is that tendency I am speaking of. I think it is harmful. I do not think the Attorney-General has met the point that was put here. A case goes to the High Court and is discussed with a view to seeing whether it should be remitted. The High Court judge forms an impression as to whether it is a fit, reasonable or proper case to retain in the High Court. He has passed some sort of judgment on it. He sends the case down, and yet in that case which has passed a court test a Circuit Court judge may award more than £100. In a case which people start themselves, within the limits of the ordinary jurisdiction of the Circuit Court, although he finds it a great hardship, the court cannot immediately enlarge the damages beyond £300.
The Attorney-General
In cases which they start themselves?
Yes. The Circuit Court judge cannot enlarge the amount.
The Attorney-General
The phrase here is entirely different to the one we are speaking of.
This is the section the Bar Council recommended should be deleted.
The Committee recommended that it should be inserted —paragraph 68.
The position taken up in debate here by the Minister and the Attorney-General, as far as I can see, is that if they wish to retain a section they quote the evidence in favour of it, but, if they wish to reject an amendment from this side of the House, they say it is not a recommendation of the Bar Council. But when a recommendation of the Bar Council contrary to the section is produced, they just pass it by as being of no account. I should like to know why this recommendation of the Bar Council, seeing that this is a matter on which members of the Bar Council and the Bar generally feel strongly, is passed over.
I think it is only right to say that only two people gave evidence on the point.
The Attorney-General
Judge Davitt said it would be advisable in some instances.
The Attorney-General
See the Master's evidence, question 5561.
If there is any point in it it must be unique. It is about the only thing the Master recommended.
Is there any reason for this section other than the Master recommending it?
The Attorney-General
And the Chief Justice. I do not think there is.
There is really nothing but the recommendation.
Has not a case been made against the recommendation? Again, the Minister is stepping from one shoe to the other. I pointed out on the Second Reading, and again during the Committee Stage, that in no single instance of major importance does the Bill follow the recommendations of the Committee. In any case of minor importance, where the Bill does follow the recommendations the Minister says: "We are following the recommendations of the Committee." and we have to sit down and accept that as a conclusive argument.
The Attorney-General
You have never accepted it.
That is the only argument you have put up. You will never follow the major recommendations of the Bar Council in any instance, but in minor instances you put them in and expect us to accept the fact that the Committee reported in favour of them as conclusive arguments in favour of their insertion in the Bill.
Now that I have read the Master's evidence, it works out that the Chief Justice, having in mind bigger things like decentralisation, was in favour. Judge Davitt thought that in some cases it might be advisable, and the Master, in the course of a long answer, said definitely that he was in favour of less remitting. He wanted to have more actions retained in the High Court.
The Attorney-General
It is true that all the evidence was that given by the Chief Justice, the Master of the High Court, and Judge Davitt. I should like to challenge what Deputy Costello said, that we are not adopting the Committee's recommendation in major matters. I think in two major matters we are following them.
The Attorney-General
In reference to the Supreme Court and circuit appeals.
You are doing something in reference to the Supreme Court which is quite opposite to the recommendations of the Committee.
The Attorney-General
That is your interpretation.
Here you are doing something quite the opposite. You are adopting the stenographer's reports, and instead of having two judges at the hearing of cases you are only having one.
With regard to the Supreme Court, you say increase the strength there but do not let them do High Court work.
The Attorney-General
Question put.
The Committee divided: Tá, 58; Níl, 26.
Tá.
- Anthony, Richard.
- Bartley, Gerald.
- Beegan, Patrick.
- Blaney, Neal.
- Boland, Gerald.
- Bourke, Daniel.
- Brady, Brian.
- Brady, Seán.
- Breen, Daniel.
- Burke, James Michael.
- Cleary, Mícheál.
- Concannon, Helena.
- Corbett, Edmond.
- Corkery, Daniel.
- Corry, Martin John.
- Crowley, Fred. Hugh.
- Derrig, Thomas.
- De Valera, Eamon.
- Doherty, Hugh.
- Everett, James.
- Gibbons, Seán.
- Goulding, John.
- Hales, Thomas.
- Harris, Thomas.
- Hayes, Seán.
- Houlihan, Patrick.
- Kehoe, Patrick.
- Kelly, James Patrick.
- Kelly, Thomas.
- Kennedy, Michael Joseph.
- Keyes, Michael.
- Kilroy, Michael.
- Lemass, Seán F.
- Little, Patrick John.
- Lynch, James B.
- MacEntee, Seán.
- Maguire, Ben.
- Maguire, Conor Alexander.
- Moane, Edward.
- Moylan, Seán.
- Murphy, Patrick Stephen.
- O Briain, Donnchadh.
- O Ceallaigh, Seán T.
- O'Doherty, Joseph.
- O'Dowd, Patrick.
- O'Grady, Seán.
- Pattison, James P.
- Pearse, Margaret Mary.
- Rice, Edward.
- Ruttledge, Patrick Joseph.
- Ryan, James.
- Ryan, Robert.
- Sheridan, Michael.
- Smith, Patrick.
- Traynor, Oscar.
- Victory, James.
- Walsh, Richard.
- Ward, Francis C.
Níl.
- Beckett, James Walter.
- Bennett, George Cecil.
- Bourke, Séamus.
- Broderick, William Joseph.
- Burke, Patrick.
- Cosgrave, William T.
- Costello, John Aloysius.
- Daly, Patrick.
- Desmond, William.
- Dillon, James M.
- Doyle, Peadar S.
- Esmonde, Osmond Grattan.
- Fagan, Charles.
- Finlay, John.
- Fitzgerald-Kenney, James.
- Keating, John.
- Lavery, Cecil.
- MacEoin, Seán.
- McFadden, Michael Og.
- McGilligan, Patrick.
- McGovern, Patrick.
- Mulcahy, Richard.
- Murphy, James Edward.
- Nally, Martin.
- Rice, Vincent.
- Wall, Nicholas.
Tellers:—Tá: Deputies Little and Smith; Níl: Deputies Doyle and Bennett.
Question declared carried.
The following amendment appeared on the Order Paper in the name of Deputy MacEoin:—
In page 11, Section 24 (1), line 56, after the word "demand" to add the words "or transfer the said action to the High Court where such action shall then proceed as if it had been originally instituted in the High Court."
I think the Minister has already accepted this amendment. Sub-section (2) covers it.
The amendment is not considered necessary. The sub-section covers what the Deputy wants.
I think it does, though not exactly in the same way.
Amendment not moved.
Section put and agreed to.
SECTION 25.
(1) A judge of the Circuit Court shall, if an application in that behalf is made by any party to any matter pending before him and all other parties to such matter consent, refer any question of law arising in such matter to the High Court by way of case stated for the determination of the High Court.
(2) The decision of the High Court upon any question referred to it under this section shall be final and conclusive, unless the High Court gives leave to appeal to the Supreme Court.
I move amendment No. 39:—
In page 12, Section 25 (1), to delete all words after the word "shall," line 4, down to and including the word "consent," line 6 and substitute the words "if requested by any party to any matter pending before him unless he considers the request frivolous."
This amendment is merely to provide that it shall be the duty of the circuit judge to state a case for the opinion of the High Court, if either party to the suit requests him to do so, unless he is of opinion that the application is vexatious. I think the Circuit Court judge at the moment has power to state a case for the opinion of the High Court, which can ultimately go to the Supreme Court, in revenue matters. If that jurisdiction is to be extended, and I certainly have an open mind as to whether it ought or ought not to be extended—in view of the change of the system I am rather against giving him jurisdiction to state a case at all; I think it should be the judge at assizes who should state the case just the same as in the old procedure—but if it is given, it ought to be given in such a way as to be completely operative, so that either party might get a case stated for the opinion of the High Court with the possibility of going to the Supreme Court, in a just and proper case. It should not be dependent merely on the consent of the parties. As I said. I think the authority to state a case by a Circuit Court judge is of little or no importance if the system of rehearing is to obtain; but I do think that what should be considered is the power of the judge of assize hearing a case to state a case either for the opinion of the High Court or the Supreme Court.
Certainly I would leave discretion to the judge. There may be frivolous cases where the judge should not state a case.
Why is consent necessary to enable him to do it? Why should he not have jurisdiction, if he thought fit, in a proper case, on the application of either the plaintiff or the defendant, to state a case for the Supreme Court?
The Attorney-General
As the Deputy points out, under a later section the judge on circuit can state a case on the application of either party for the Supreme Court. There would be very little point in giving the Circuit Court judge the same jurisdiction, as the Deputy says. The cases considered worth providing for are cases in which a decision on a question of law will rule the whole matter or a considerable part of it. It is thought, where that is the position and where both parties agree that that is the position, that it would shorten the proceedings and expedite the disposal of the case to allow the Circuit Court judge, by agreement between the parties, to state a case for the High Court, the decision on which by the High Court judge becomes final, unless the High Court gives leave to appeal to the Supreme Court. The section has that advantage, that it will enable parties to get a High Court decision on a single or more points of law and have the matter disposed of without the necessity of going through the procedure of trying the whole case out in the Circuit Court and of going to the High Court judge on circuit and asking him to state a case. In view of the fact that that power is given to the judge going on circuit it is not considered necessary to provide that a case should be stated on the application of any single party. It is only where the parties consent that the Circuit Court judge should be allowed to state a case. The Minister suggests that the section should be amended by giving a discretion to the judge, so that even where the parties consent he shall not be bound to state a case.
I think that would not improve the section at all. I think it would be rather a detriment to the section. I agree that the case put by the Attorney-General is one that ought to be met, but I do not think it is met in this way. There may be cases in which there will be merely a net issue of law between the parties, where the facts are admitted, and where it is desirable to get, in as speedy a manner as possible, the ultimate tribunal to decide the issue. Under the section as it stands at present, that can only be done by consent. If one of the parties objects, it cannot be done. It has to go to the judge at the assizes, and he then must state a case on the application of either party. The actual result of it is to put the additional expense of hearing before a judge of assize on one or other of the parties ultimately, and also to bring about a considerable amount of delay.
The suggestion I made is that, in cases of that kind, where it appears to the Circuit Court judge to be a proper case, on the application of either party for the application of the rule of a case stated, he should have power to send it direct to the High Court instead of putting the parties to the expense of going to the judge of assize, who will then state a case, and it will come up in 12 or 18 months in the High Court, instead of allowing it to go in the course of a month or two without the interposition of the judge of assize. It is not a matter upon which I have very strong feelings. I am merely pointing that out.
The Attorney-General
Neither have we, but I think it is better to leave it as it is.
Does it not seem absurd, in a case in which one litigant feels there is a point of law to be determined and wants to get that stated in such a way that the High Court can determine it, that in order to achieve that against his opponent's wish he has to go to the trouble of an appeal and then, on the appeal to an assize judge, he can get it on his own application if the judge considers it right? Why should this not be allowed, possibly limiting the power to cases other than those considered to be frivolous? Why put it that the only way in which one litigant in the court can get a case stated on a point of law for the determination of the High Court is by going to the roundabout of taking an appeal and then getting it via the appeal judge on circuit? Why should it not be direct?
The Attorney-General
I cannot say any more than I said. I think it is only very rarely that there will be a case in which a single point of law will decide the whole matter. This simple method of getting it decided is put in, in addition to the power for deciding it which is provided under the ordinary appeal system. The Deputy asks why should a man be put to the trouble of going via the Circuit Court and the Assize Court to have a case stated, instead of going this short way. But in a good many cases, probably, the necessity will not arise at all. He may be satisfied with the High Court judge on circuit on the point of law. If he is dissatisfied with that, even though his opponent opposes he can get straight to the Supreme Court and have the point decided. This is not a thing upon which one can take up a strong line, but I think, on the whole, this is adequate to meet the particular type of case we have in mind.
Take a Circuit Court case where the judge is of opinion that the point that determines the whole matter is a point of law and indicates that he would like to have it decided by somebody other than himself. In that case, if one of the parties objects, the party who wants to get it, even with the will of the judge, cannot get it taken direct. He must go on appeal and in this roundabout way go to the Supreme Court. Supposing we were limited to giving the judge a discretion to wide out the phrase "if the parties consent", so that it was not peremptory on the judge, on the application of one person, to see that the other parties concerned in the matter consented, but that the judge could refer the question of law if one party to the case stated it: is not that better than by going in the roundabout way?
At the risk of being accused of taking those parts of the recommendations out that were not considered of much importance, I may say that this was recommended by the Joint Committee.
What is the evidence on it?
We took that matter up with the Circuit Court judges and they were not enthusiastic about this particular section. They said that they did not consider it very necessary, but they did say that, if the section was to be included, there should be inserted a proviso that all parties consented. That is all.
I know that the recommendation of the Committee was made, but I cannot find on what evidence it was based. I take it that there was some real weight, in the Committee's opinion, in the general evidence one way or the other, and that they finally consented to the inclusion of this proviso about the consent of all parties. However, I do not know if there was any evidence at all on the matter.
The Attorney-General
Does not the Deputy agree, however, that if a party in the Circuit Court opposed the granting of a case stated, he must have some reason for doing so, and that his reason must be that he prefers that a High Court judge should hear the evidence and decide the point of law on evidence before him; and that, if a case is to be stated at all it should be heard by the High Court judge and go to the Supreme Court judge rather than take this short course? The Deputy says that it should be done on the application of one party, but, on the other hand, why should that person's opponent be forced to agree to that if he prefers to go about it the other way and may have good reason for doing so? Is not this section useful where the parties concerned all agree that a decision on a point of law will decide the matter and consider that it is best to take the short course of going to the High Court, from which there is no appeal except by leave of the High Court?
Of course, it is useful. I am not denying its utility.
The Attorney-General
But why should it be forced on an unwilling party?
I agree that it should only be in circumstances where one party wants a point of law determined and where the judge says there is only one point outstanding and that that point rules the case. Only in those circumstances should it be done.
Amendment, by leave, withdrawn.
I move amendment No. 40:—
In page 12, Section 25 (2), to delete line 11 and substitute the words "Supreme Court gives leave to appeal in which case an appeal may be brought to the Supreme Court."
This is merely another instance of the court, from whom the appeal is to be taken, having the right of saying whether or not such an appeal shall or shall not be taken. It comes within the general principle we discussed here the other night as to whether it is proper for the High Court, in cases of criminal appeals, to have the power of saying whether or not in a particular case there shall or shall not be an appeal to the Supreme Court.
The only point in regard to that is the point I made before with regard to leaving it to the Supreme Court to decide whether an appeal shall or shall not lie. It really means that the Supreme Court, in order that they may be able to decide that point, must have all the facts placed before them.
I think the Minister is wrong. If he had had any experience of the tribunal that used to be known here as the Privy Council, he would known that, if they had an application for leave to appeal they took a very short time to deal with it—generally not more than a quarter of an hour. That is what we envisage in connection with this question of the leave to appeal—possibly ex parte—and on that the Supreme Court would say whether or not they would hear it. In a number of cases they would say that no issues of importance were involved and that the case might be heard ex parte with no expenses on the other side at all.
If that were the position in all cases, I could not see any objection to it.
That is the only case with which I am concerned. The principle underlying this amendment is one that lies more appropriately to be considered in connection with the Court of Criminal Appeal. I do not wish it to be discussed or even decided on this particular issue here, in which I am not particularly interested, if at all, but I do say that the only thing I envisage is an ex parte appeal to the Supreme Court on which the party concerned would have to make out a strong case to the Supreme Court in order to get leave to appeal from the High Court. That is the only thing I am concerned with, and I think Deputy McGilligan agrees with me on that.
The Attorney-General
Could the Deputy say is there any other instance of the working of that except the Privy Council?
No, there is not. Of course under the system of criminal appeals there is an application for leave to appeal. In practice, that has worked out as the full hearing of the appeal, but that is only the practice that has grown up in that particular court as a matter of convenience, because they give leave in 99 per cent. of the cases brought before them. However, it could be made clear by the words of the section that what is envisaged is not the full hearing, with costs, of both sides, but perhaps an ex parte application.
The Attorney-General
The Deputy says that this is more appropriately discussable on the question of an appeal from the Court of Criminal Appeal. I do not agree on that. I think there is a difference between the application for a certificate of the Court of Criminal Appeal and this type of appeal.
The Attorney-General
As I said before, I would be strongly opposed to granting liberty to go to the Supreme Court for leave to appeal against a decision of the Court of Criminal Appeal, because in that section which allows an appeal to the Supreme Court there are very strict words of limitation. They are only allowed to appeal to the Supreme Court where the matter involved is shown to be a matter of public importance and one in which the public interest is concerned. This section, and analogous sections which existed in the old Act, I think, are on a different footing, and I do not feel disposed to hold with the Deputy as strongly on the question as to whether permission should not be given to go to the Court of Appeal itself. I think, however, that a very important factor to be taken into consideration is the question of expense. If it were to entail, as it has entailed in the case of appeals from the Central Criminal Court and from the Circuit Court to the Court of Criminal Appeal, the opening up of the whole case, it would be difficult to justify it.
I would not put forward the proposition that the Supreme Court should entertain the application for leave to appeal in such a way as to spend a week hearing the whole case. What I had in mind was something like the appeal to the Privy Council where one had to make out a strong case. The Attorney-General points out that the present Bill contains strong words as to limitation. These words could still be retained, and it would be a matter for the Appeal Court to determine whether or not the decision of the High Court did involve a matter of great public importance and that an appeal should be allowed.
The Attorney-General
I should have added that on this section I certainly should oppose any such amendment here for this reason, that this is the course chosen by all parties by consent. They choose this short cut to the High Court in order to have the point of law decided, whereas if they wanted the Supreme Court to decide on it they could have gone to the judge of the Circuit Court and got from him an appeal to the Supreme Court. If they choose this short cut, I do think that the High Court should have the power to refuse an appeal to the Supreme Court.
Let us count the courts until we see the short cuts. Starting with the Circuit Court, by consent as it is now, we go to the High Court, and having got to the High Court you have later on to obtain from the High Court leave to appeal to the Supreme Court. I would suggest that as to Deputy Costello's idea of going to the Supreme Court for leave to appeal you would remember this—this matter started in the Circuit Court and in every case an appeal was allowed to the Supreme Court if the parties wanted to go there. The suggestion now is, that Deputy Costello would bring, in addition to the Circuit Court case stated for the High Court, leave to appeal to the Supreme Court and then go to the Supreme Court. The other suggestion sends us round the world. You started in the Circuit Court. You go on appeal to the High Court and you get those people to decide the case one way or the other. There was an action of a very big amount bearing on this point brought under the system established in 1924. The claim was that it was the right of every citizen to go to the High Court and that the onus was on the person who wanted to stop him to show why. Why should there be any prohibition against an appeal? Why should it not be open in every case to a litigant beaten in the High Court to go to the Supreme Court? I make a big distinction between that and the Court of Criminal Appeal because the Court of Criminal Appeal was an innovation. There was then a recognition that there might be points of law of exceptional public importance involved, and, added to that, it might be desirable in the public interest to take your appeal to the Supreme Court. The appeal will be within those limits—that there is involved a point of law of exceptional importance and that it is desirable in the public interest that a man beaten in the High Court should be allowed to take his case to the Supreme Court without having to get leave to appeal from the High Court. The litigant should have the right to go to the Appeal Court once he is beaten in the High Court.
The Attorney-General
We have that in several cases, and the point was advanced by several witnesses before the Committee—the point that it was the right of every dissatisfied litigant to resort to the Supreme Court. As a practising barrister, I should welcome the granting of facilities for increased litigation. But in the public interest surely the Deputy must realise that restriction are placed upon the right of the citizen to resort to various courts. In certain cases you cannot get beyond the District Court and in other cases you cannot get beyond the Circuit Court. The decision of the Circuit Court in such cases is final. The various classes of courts through which a man may drag his opponent are in the public interest limited. It is not fair to the man who has won his case in the lower court that he should be dragged to the High Court and that, later on, he may be dragged by his dissatisfied opponent to the Supreme Court.
It is all very well in theory to advocate that, but in practice it might work great hardship, and in a good many cases it would create an abuse. It is only on these grounds that one can put up a defence against allowing the actions of litigants to go to each court from the District Court to the Supreme Court. It must be borne in mind that as regards the High Court in this and in other instances, there is committed a discretion to the judges who are appointed to do this work by the State. You give to these judges discretion to say whether a man should be allowed to go to a higher court— whether the case is of sufficient importance to allow him to appeal or not. There may theoretically be objections to allowing the court which has heard the case to refuse to the applicant the right to appeal and take that case further. It may possibly be held that the judges who have decided the case one way or the other do not want their decisions reviewed, that after all they are only human nature. But that is a very theoretical objection. In practice, I do not think it could be shown that the High Court has refused a certificate in any case in which an unbiased examination would justify the granting of a certificate for leave to appeal. The Deputy must realise that the judges to whom this right or power is delegated are themselves the guardians of the rights of the citizens. They must be expected to see that the man who has a serious point of law to bring forward will not be unduly restricted in his theoretical right to take his case to the Supreme Court. It is on that basis that such restrictions should be put in, and they are very properly put in. I altogether resist the suggestion that we should throw the doors open and allow dissatisfied litigants to take their opponents through the courts up to the Supreme Court without first satisfying the High Court judges that they should be allowed to do so.
If you are going to have an appeal at all, and that appeal is to be restricted, it surely is wrong in principle that leave should have to be sought from the body from whom you are appealing and from whom you want the appeal.
The Attorney-General
Why in principle? Are they not in possession of the facts of the case, having heard it?
Yes, and they have decided one way. I think, as human beings, they would be prejudiced against giving the litigant any further right of appeal. They are not going to approach the consideration of the right to appeal as freely as a new body that has not heard the case and has not come to a decision on it. The other body is approaching it with an open mind. If that is the only point, I think there would be no gainsaying that particular statement. There is the other side, that you do not want a multiplicity of appeals. It is wasteful of people's time and money and it is wasteful in connection with the courts also. The suggestion is that leave should be sought from the higher body instead of the lower body. The objection to that is that if you are going to look for your leave to appeal from the higher body, it means opening the matter once more. The only way of meeting all these difficulties is to have narrow limitations put upon the points of substance you can raise before the Appeal Court. There must be some point of law, some point of exceptional importance. In such circumstances you are either shortly victorious or shortly disposed of.
The Attorney-General
Take the position of the Circuit Court appeal at the moment. From my experience of the judges of certain cases brought up on appeal, if you were to put in a restriction such as the Deputy suggests, and allow the Supreme Court to decide the question of the certificates, you will narrow down very much the number of cases in which leave to appeal will be given.
The Attorney-General
Then does the Deputy not think that the last result would be worse than the first?
The only point that is being appealed upon is a point of law, a point determining the whole case. I do not see why, in these exceptional circumstances, one should not be allowed to go to the High Court and then to the Supreme Court. My suggestion is that there should be no restriction except the restriction inherent in the section. There must be a point of law and it must be taken with the consent of both parties. Have the right of appeal dependent upon leave granted with regard to the appeal, but if you are going to have leave granted, get it from the higher body and not from the body before whom you have suffered defeat. I do not see why there should not be an unrestricted right of appeal to the Supreme Court. I have found a considerable body of opinion moving in this direction, disposing entirely of the Court of Criminal Appeal and having an appeal direct to the Supreme Court, cutting out the High Court.
The Attorney-General
We will have that on the Report Stage.
The Bar Council recommend that the sub-section should be deleted altogether.
If it was rejected, I take it there would be a right of appeal. That is what I have been arguing for.
The Attorney-General
One advantage it would have is this, that it would encourage people to agree to have their points of law decided on a case stated in the Circuit Court and thus do away with some of the time to be spent in rehearing.
They could get direct to the Supreme Court instead of having to go around.
The Attorney-General
That certainly makes it attractive. Against that is the point I made, that it seems hard on the litigant that he may have to go to three courts though, as Deputy McGilligan points out, this is an agreement on consent to go to the High Court. I wonder could we have a suggestion between this and the Report Stage. We might consider whether the Supreme Court might be approached for leave on the restricted grounds mentioned by the Deputy.
Consider that and consider the abolition of Section 2 altogether. The two things are in the balance.
Amendment No. 40, by leave, withdrawn.
Is it also being proposed to remove "shall" and substitute for it the word "may", so as to give the court discretion, even though both parties agree?
The Attorney-General
I think it would be an improvement, because the Circuit Court judge might think the case was not one which ought to go.
Supposing he did not want to draft the case stated?
The Attorney-General
He probably will not draft it, in any case.
It seems peculiar that the judge should have power to hold it up if the parties are agreed.
They might agree in some frivolous case.
Let the judge have discretion in frivolous or vexatious cases, but otherwise not, if both parties agree.
Section 25 agreed to.
SECTION 26.
(1) No cause of action for a liquidated sum in excess of three hundred pounds shall be split or divided, so as to be made the ground of two or more different actions, in order to bring such action within the jurisdiction of the Circuit Court and, if any cause of action is so split or divided, proceedings shall not (save as is authorised by the next following sub-section of this section) be sustainable in the Circuit Court in respect of any portion of such cause of action.
I move amendment No. 41:—
In page 12, Section 26 (1). line 19, after the word "action" to add the words "but the judge of the Circuit Court in which such actions are pending may consolidate the same and transfer such consolidated action to the High Court to be proceeded on therein unless the parties agree in writing to such consolidated action proceeding in the Circuit Court, in which event such consolidated action shall continue to be tried and determined in the Circuit Court."
This amendment will amplify the powers of the judge under this section and I believe it will help to save considerable expense for the parties concerned. The proposal is that the judge may consolidate the action and transfer such consolidated action to the High Court, unless the parties agree to proceeding in the Circuit Court. I think the amendment should be accepted.
That amendment could not be accepted. There can be no argument put up surely where it is a liquidated sum.
Can an argument be put up where it is not a liquidated sum?
I do not understand the objection to this amendment. The section really is this, that you cannot, by splitting up an action definitely in excess of £300, make it appear to be a couple of actions and have them heard in the Circuit Court. The suggestion in the amendment is that the judge of the Circuit Court in which such actions are pending may consolidate them. Look at the alternatives. He may transfer such an action to the High Court unless the parties agree to proceeding in the Circuit Court, when the action shall continue to be tried and determined in the Circuit Court. In other words, it is then a consent action.
There is unlimited power under Section 48 of the 1924 Act.
Watch that the other section is not completely voided by this. This is a new section introduced and there is nothing in the section to direct attention to the section in the earlier Act. It may be construed that this abrogates whatever is before it. All that Deputy MacEoin's amendment amounts to is that you consolidate the actions, and the consolidated action is then sent to the High Court or, if the parties agree, it will be tried in the Circuit Court. Certainly it is an appealing amendment, if it is not already provided for.
The Attorney-General
Is it not merely an amendment to cover an incompetent bit of handiwork?
I would not like to say that. It may be possible for litigants to try to get into the Circuit Court though not entitled to, but if the parties agree I think they ought to be allowed to try.
The Attorney-General
Could not that be arranged by agreement before this?
It might be said that the parties could have agreed earlier but that is not the way human nature works.
The Attorney-General
What is the difficulty of withdrawing and starting afresh if agreement can be got from other side?
It is a question of expense.
It seems to me that this is a reasonable amendment. I do not profess to understand law, but I think to refuse this amendment is to deny a natural right to litigants.
The Attorney-General
There is no attempt to deny a natural right. If the parties agree, a fresh action can be started.
Provided the other party agrees.
The Attorney-General
The litigant does not suffer severely. If, in his attempt to get out of jurisdiction, or through a mistake, a defendant finds himself up against the jurisdiction, it is not a very severe punishment that he should withdraw his action and start again if he gets agreement.
Amendment, by leave, withdrawn.
Section 26 agreed to.
Question proposed: "That Section 27 stand part of the Bill."
Is not this a new section? I am not sure what reaction there is in that on the case of the Revenue Commissioners. Does it give them greater power than they had before?
The Attorney-General
This Section 27 deals with the duration of judgments of the Circuit Court.
There was Section 25 in the old Bill which was deleted, and I thought this was to take its place. That section dealt with the Revenue Commissioners' cases.
The Attorney-General
This is a perfectly innocent theme.
Sections 27, 28 and 29 agreed to.
SECTION 30.
Notwithstanding anything contained in paragraph (vi) of Section 52 of the Principal Act, any action founded on tort which is within the jurisdiction of the Circuit Court may be brought, heard, and determined (at the election of the plaintiff) either before and by the judge mentioned in the said paragraph (vi) or before and by the judge of the Circuit Court for the time being assigned to the circuit wherein the tort was alleged to have been committed.
I move amendment No. 42:—
In page 12, Section 30, lines 54-55, to delete the words "(at the election of the plaintiff) either before and by the judge mentioned in the said paragraph (vi) or before and" and substitute therefor the words and brackets "(with the consent of all parties to the action)."
I think the words "at the election of the plaintiff" should be deleted. I think it would give the judge more power in transferring such a case and in getting the consent of the parties. I think this is an essential amendment and will assist considerably in the administration of justice.
The amendment is not acceptable for one reason at any rate, that it is very unlikely that you would get consent between the parties. The position previously was that you had to sue where the defendant resided. It was thought it would be better to leave the choice to the plaintiff who was the aggrieved party. I do not think there is any hope of getting the parties' consent.
Amendment, by leave, withdrawn.
Amendment No. 43 not moved. Section 31 agreed to.
Amendment No. 44 is out of order as it would impose a charge.
Section 32 agreed to.
Amendment No. 45 not moved.
Section 33 agreed to.
SECTION 34.
(1) Notwithstanding anything contained in this Part of this Act, no appeal shall lie from any judgment or order of the Circuit Court in any civil action or matter which is final and conclusive by virtue of an Act of the Oireachtas whether passed before or after this Act, nor from any judgment or order of the Circuit Court made on a petition to the Circuit Court under Section 6 of the Labourers (Ireland) Act, 1906, or under the Sixth Schedule to the Local Government Act, 1925 (No. 5 of 1925).
(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 (including an 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. 46:—
In page 13, Section 34 (2), to insert after the word "in", line 23, the words "any enactment in force immediately before the commencement of this Act, an appeal shall lie to the Circuit Court from every decision of the Special Commissioners of income-tax and notwithstanding anything contained in".
This amendment is designed for the purpose of getting into the scope of appeals to the Circuit Court judge, the Revenue Commissioners on every possible point that these commissioners may decide. At present there is an appeal from the Revenue Commissioners on the question of income-tax. Tucked away, I have discovered, there are certain matters that the Revenue Commissioners deal with and in regard to which they allege there is no appeal. Those matters are tucked away from the knowledge of the public. There is an appeal from the Revenue Commissioners in most matters. Some matters, inadvertently or otherwise, have been left out, and I want them brought in. One of the matters on which there is no appeal at the moment from the Revenue Commissioners is the question of allowances in arriving at assessment of income-tax. I want to provide that there should be an appeal in a matter of that kind and on all other matters within the jurisdiction of the Revenue Commissioners. It is very doubtful, to put it no further, if the Revenue Commissioners exercising their functions, having reference to the terms of the Constitution, exercise functions that give them judicial powers. There ought to be an appeal in every one of these respects. I think the intention was that there should be an appeal in such cases. I want to make it clear that everything in the jurisdiction of the Revenue Commissioners who, after all, are only two civil servants, such as income-tax and taxes analogous, the Circuit Court judge should have jurisdiction to hear and to determine on appeal.
The objection to this amendment is that I do not think it is proper to this Bill to bring in the Revenue code.
Surely it is part of the jurisdiction of the Circuit Court?
I know it is, but there is a Revenue code, which has been in existence, I think, since 1925. If amendments are to be made with regard to procedure, or with regard to the position which exists, I think that should be done by way of amendment to the code itself, and that the matter should not be introduced into this Bill.
I fail to understand that. I think that bears all the stamp of the Revenue Department. That argument appears to me quite clearly to be an argument which has been put up by the Revenue Department—"Do not touch us." We are putting through an amendment to the Courts of Justice Bill, dealing, amongst other things, with the jurisdiction of the Circuit Court on appeal from various people. One of the appeals to the circuit judge is the appeal from the Revenue Commissioners. I think that has nothing to do with the Revenue code at all. "The Revenue code" is a very high-sounding expression, which, in fact, means nothing except it means all the things that the Revenue Commissioners want it to mean. When you say you do not think anybody should put their hands on the sacred Revenue code, I do submit to the Minister that in considering the Courts of Justice Bill, and the jurisdiction which the circuit judge has, he ought to consider whether or not some of those things which have been left out from the jurisdiction of the circuit judge in the matter of appeals might appropriately be considered on the hearing of such a Bill. I do press this amendment, because I think it is a matter of very vital importance. There are some veryfew things which are left out in the jurisdiction of the Circuit Court judge. I think this is the appropriate moment to consider the matter, and that it should not be brushed aside by saying "Hands off the Revenue code".
The Attorney-General
Was there anything said about it at the Committee?
The question was not raised, because you would have been crowded out with witnesses who wanted this.
The Attorney-General
If the pressure of public opinion about it was as great as the Deputy now represents, it is an extraordinary thing that no witness mentioned it at all.
I would not like to commit myself to that statement.
This thing was hidden away, and very few people know it. There are certain things which are within the exclusive jurisdiction of civil servants at the moment in reference to income-tax, and there is no appeal from them. When that is recognised by the people who are paying income-tax, then—whether or not evidence was given before the Joint Committee—I anticipate that there will be some sort of public opinion on the point. I am taking this opportunity of informing public opinion on it for the purpose of getting it into this Bill, or, if not into this Bill, into some other Bill at the earliest possible moment.
The Attorney-General
The Deputy says this is proper to the Courts of Justice Bill. Is it not proper to say there is such a thing as the Revenue code——
There is no such thing as the Revenue code.
The Attorney-General
——and that this differs from the ordinary type of litigation?
I emphatically deny that there is any such thing as the Revenue code, except in the minds of the Revenue Commissioners.
The Attorney-General
I say that the words "Revenue code" are very clearly understood by most people who have anything to do with Revenue matters. It may be improperly and loosely so described, but the law regulating the incidence of taxation, the methods by which taxation is to be levied, and governing the operations of the Commissioners, is something which, I think, can be conveniently, if somewhat loosely, described as the Revenue code. The fact that the circuit judge is allowed certain jurisdiction to inquire into the decisions of the Revenue Commissioners is an accident. It is only accidentally that the courts come into contact with the rulings of the Revenue Commissioners, and not the other way round. The Deputy seems to suggest that there had been taken away from the courts decisions which properly belonged to the courts. Apparently the tendency of legislation has been to commit to the body known as the Special Commissioners, and to the Revenue authorities generally, the regulations, say, as to the amount of income-tax which is to be collected from particular individuals. Whether, in doing so, they are acting unconstitutionally, is a matter on which I do not care to pronounce an opinion. If they are, it seems strange that they should have been allowed to go unchallenged for such a length of time. I certainly would hesitate to touch this particularly thorny subject in this Bill. I think the Minister is quite right in saying that it is something which is appropriate to another Bill. We have certain information as regards the position, and I could go at more length into it, but I think that it is really unnecessary to do so. After all, Deputy Costello was familiar with the position for a number of years——
I was not. I only found this out recently.
The Attorney-General
——and I do not think he was so impressed with the public interest in the matter as one would gather from what he now says.
I only discovered recently that certain matters are excluded from the jurisdiction of the circuit judge, and I took the earliest opportunity—which is this opportunity —of raising the matter in the House. The position at the moment is that the jurisdiction as transferred to the Circuit Court under the Act of 1924 was that everybody who is assessed to income-tax had his appeal to the Special Commissioners, and from the decision of the Special Commissioners there was an appeal to the circuit judge. That, I think, should be, and everybody believes it to be, a full right of appeal from the decision of two civil servants to a judge on the amount of his income. The position at the moment is that there are certain matters which are excluded from the jurisdiction of the circuit judge on the hearing of that appeal. I have given an example of one of those matters, namely, the amount of the allowances that a person is entitled to get before his assessment is reached. That is a matter which ought not to be left to two civil servants, and this is the proper time to remedy that state of affairs.
I suggest that it should be raised on the Finance Bill.
If I raised the matter on the Finance Bill I would probably be told that it should have been raised on the Courts of Justice Bill. I now raise it on the Courts of Justice Bill, and I intend to press it to a division. If I am beaten, I intend to press the matter on the Finance Bill.
The Attorney-General
If the law is not clear——
I think Deputy Costello's amendment would give an appeal to the Circuit Court by the Revenue Commissioners themselves, which they have not at the present time.
Certainly that is not intended.
That is the interpretation which we place on it.
I am prepared to consider it on a further stage if that is the construction placed on it.
Before we leave this point I should like to say that the power of the Revenue Commissioners was a matter raised before the Committee. It was raised in relation to what was called their power to get what was loosely termed a "body warrant." One of the witnesses giving evidence before that Committee said they had struggled hard against giving the Revenue Commissioners a certain right, but the Revenue Commissioners insisted on getting it and they found they had to give it to them. He raised that matter before the Committee, and the Committee recommended that this power of the Revenue Commissioners to imprison should be removed. That is the recommendation of the Joint Committee. That matter was adverted to—the power which the Revenue Commissioners apparently have to get a man arrested in regard to non-payment of income tax.
The Attorney-General
I think that is met in a section.
The Attorney-General
Is not that part of the Revenue code?
The Attorney-General
The Minister has said: "Do not deal with this because it is part of the Revenue code," but other matters can be dealt with although they are part of that sacred code.
That is a matter which was gone into at the Committee, and a recommendation was made on it.
We could even tread on the tail of the Revenue Commissioners' coats, because the Committee recommends and we are going to follow. One district justice alone raised it——
The Attorney-General
It is not strictly appropriate to this Bill at all, but we thought it was in conformity with natural justice.
Look at the natural justice that is being demanded here—that an appeal shall lie to the Circuit Court from every decision of the Special Commissioners of Income Tax. There either is at the moment, or there is not, such an appeal. If there is, the amendment does not add anything to the law, but if there is not, the amendment simply sets out that there shall be a right of appeal to the Circuit Court from the decision of the Revenue Commissioners. I suggest that is a reasonable amendment on the face of it, and, if it is not so, I should like to know the occasions on which there is no appeal, why there is no appeal and why the Minister will not have it at the moment.
I should like, for my own information, to be told how the Minister or the Attorney-General arrives at the conclusion, from the terms of the amendment I put down, that, if accepted, it would give the Revenue Commissioners power to appeal to the circuit judge from their own decisions. Would they suddenly discover that a decision had been quite outrageously wrong and appeal against themselves to the circuit judge? My amendment says that an appeal shall lie to the Circuit Court from the decision of the Special Commissioners.
The Attorney-General
The Minister said the Revenue authorities.
They are not parties to it. They are to appeal against the decision of the Special Commissioner.
The Attorney-General
I did not say that I had so advised.
That is the interpretation given to it by the Department, not by the Attorney-General.
Which of you has surrendered to the Revenue people— Justice?
Amendment put.
The Committee divided: Tá, 32; Níl, 55.
Tá.
- Anthony, Richard.
- Beckett, James Walter.
- Bennett, George Cecil.
- Bourke, Séamus.
- Broderick, William Joseph.
- Burke, James Michael.
- Burke, Patrick.
- Cosgrave, William T.
- Costello, John Aloysius.
- Daly, Patrick.
- Desmond, William.
- Dockrell, Henry Morgan.
- Dolan, James Nicholas.
- Doyle, Peadar S.
- Esmonde, Osmond Grattan.
- Fagan, Charles.
- Finlay, John.
- Fitzgerald-Kenney, James.
- Good, John.
- Keating, John.
- Lavery, Cecil.
- MacEoin, Seán.
- McFadden, Michael Og.
- McGilligan, Patrick.
- McGovern, Patrick.
- McMenamin, Daníel.
- Mulcahy, Richard.
- Murphy, James Edward.
- Nally, Martin.
- O'Neill, Eamonn.
- Rice, Vincent.
- Wall, Nicholas.
Níl.
- Bartley, Gerald.
- Beegan, Patrick.
- Boland, Gerald.
- Bourke, Daniel.
- Brady, Brian.
- Brady, Seán.
- Breen, Daniel.
- Briscoe, Robert.
- Cleary, Mícheál.
- Concannon, Helena.
- Goulding, John.
- Hales, Thomas.
- Harris, Thomas.
- Hayes, Seán,
- Houlihan, Patrick.
- Kelly, Thomas.
- Kennedy, Michael Joseph.
- Keyes, Michael.
- Kilroy, Michael.
- Lemass, Seán F.
- Little, Patrick John.
- Lynch, James B.
- MacEntee, Seán.
- Maguire, Ben.
- Maguire, Conor Alexander.
- Moane, Edward.
- Moore, Séamus.
- Moylan, Seán.
- Corbett, Edmond.
- Corkery, Daniel.
- Corry, Martin John.
- Crowley, Timothy.
- Derrig, Thomas.
- De Valera, Eamon.
- Doherty, Hugh.
- Everett, James.
- Flinn, Hugo V.
- Gibbons, Seán.
- Murphy, Patrick Stephen.
- O Briain, Donnchadh.
- O Ceallaigh, Seán T.
- O'Doherty, Joseph.
- O'Dowd, Patrick.
- O'Grady, Seán.
- Pattison, James P.
- Pearse, Margaret Mary.
- Rice, Edward.
- Ruttledge, Patrick Joseph.
- Ryan, James.
- Ryan, Robert.
- Sheridan, Michael.
- Smith, Patrick.
- Traynor, Oscar.
- Victory, James.
- Walsh, Richard.
Tellers:—Tá: Deputies Doyle and Bennett; Níl: Deputies Little and Smith.
Amendment declared lost.
Amendment No. 47 seems to be consequential.
I respectfully agree, but I would again like to point out that, while it is said that this sacred Revenue code is not being touched, it is being touched in this sub-section.
Amendment not moved.
Amendment No. 48 not moved.
Question proposed: "That Section 34 stand part of the Bill."
I have a very definite objection to this section. As Deputy Costello has stated, despite all that we have been told from the other side, this section is definitely trying to close down any question of appeal from any enactment relating to a tax or duty under the care and management of the Revenue Commissioners. For fear there might be any doubt about that, we have now this special section rammed into this Bill which is not supposed to deal with the Revenue code. Why not leave the Revenue Commissioners as they were if we could not get the small point of justice that was asked in amendment No. 46, that there should be an appeal to the Circuit Court from the Special Commissioners? The Special Commissioners have no judicial authority. They are only civil servants. If we could not get that, it is not right to go and copper-fasten the Revenue Commissioners in their present position.
I would like to say, by way of reinforcing the remarks already made, that when the argument is put up, as it has been put up, that this is not the appropriate moment to touch the sacred Revenue code, that in sub-section (2) of this section there is an express provision that no appeal is to exist in Revenue matters except such appeals as already subsist. While I am prevented by the argument of the Minister and the votes of his Party from providing that it should be made clear that, in all matters, the circuit judge shall have jurisdiction to hear appeals from the Revenue Commissioners——
The Deputy is not prevented by the argument of the Minister. That was the decision of the House.
I meant no disrespect, Sir. By the decision of the House, as the Ceann Comhairle properly points out, the position has now been reached that the Revenue Commissioners can in this section put in some part of some provision which will copper-fasten their sacred Revenue code, and we are not allowed in any way to touch that by making it clear that the Circuit Court judge has full jurisdiction to determine the matters which we think he ought to determine. Under sub-section (2) of this section there is an express, very clear and definite provision that no appeal is to lie from the Circuit Court judge from any decision on appeal under any enactment relating to Revenue, except cases stated. As regards cases stated, it is held, I believe, by the Revenue Commissioners that the circuit judge has no power to state cases on certain matters. Now I think that ought not to be so. I do not see why sub-section (2) of Section 34 should be placed in this Bill. I think it is a wrong provision to have in the Bill. The only purpose of inserting it is further to reinforce the Revenue position.
The section simply preserves the existing position.
No. Would the Minister say what is the necessity for preserving the existing position if it already exists? Why put in that section if there is not some point in doing it if the law is at the moment as I judge the Minister to state it? Why put it in again? There must be some point in doing so. That sub-section was obviously inserted at the request of the Revenue Commissioners. They must have had some reason for requesting it to be put in, and I want to know what the reason is.
The Attorney-General
The alternative method of appeal provision raises doubts that possibly an appeal would lie where hitherto it had not been allowed. The section has been deliberately put in for the purpose of preserving the status quo. No one has suggested that the position with regard to appeals to the Circuit Court in revenue matters should be touched, and I frankly confess that it is not.
I want to know, in view of the fact that all other judgments of the Circuit Court are being made, with the exceptions mentioned in the Bill, the subject matter of appeal to the going judges of assize, what is the case for taking Revenue cases out of that category? Why, in matters involving income-tax, which are of vital importance to the payer of the tax, should he not have the same right of appeal to the going judge of assize as the man sued for £5 for breach of warranty of a cow? I do not want to be told what the distinction is in principle. I merely want to know why that section is put in. We are told, with a flourish of trumpets, that a new system is being put into operation. Why is not this done? Why does it not apply to Revenue cases the same as other cases? I have got no answer to that question except that nobody made the case that it should be applied. I am making the case that there is no distinction between Revenue matters and breach of warranty of a cow. They ought to be in the same category and subject to the appeal given in this Bill—a rehearing before the going judge of assize, subject, of course, to the practice which subsists of a hearing in camera.
The Attorney-General
The Deputy does not suggest that the preparation of this Bill demanded that we should investigate every case in which appeals lie and do not lie and the particular restrictions on appeals, with a view to seeing whether these rights should be extended or further restricted.
I do. Before bringing in a new system, I think you should have considered the whole field of appeals.
The Attorney-General
That would have opened up a very wide field, and, surely, the field we have opened up is wide enough. This particular part of the Bill is, in the main, an alteration of the procedure with regard to appeals. It provides a different form of appeal and a different type of Appeal Court. Apparently, it was suggested to the Revenue Commissioners, or they were advised, that if they did not have this section inserted to safeguard the position as it is at the moment, it might be held that an appeal did lie in the way the Deputy desires it should lie. I should hesitate to say that, with one gesture, we should sweep in all Revenue matters and decisions of the Special Commissioners; that, because we are substituting one form of appeal for another, we should allow an appeal in every type of matter which comes before the Special Commissioners. I do not think that the Deputy can make a case for that. Whether you regard the code as a code or not, undoubtedly it has been worked out with great care and is very detailed. The Deputy says that certain provisions are tucked away and difficult to find, so that it would take some trouble to say what are the matters in which appeals lie and what are the matters in which they do not lie.
Give an appeal in every case and it will be quite simple.
The Attorney-General
It would be alarmingly simple.
The Revenue Commissioners would abhor it.
The Attorney-General
They would not at all like it. They would insist, and properly insist, that there should be an investigation of the position, so as to see whether a case had been made for giving a right of appeal from every decision of the Special Commissioners.
The use of the word "properly" implies judgment, and that would be judgment on the part of the Attorney-General. If he has considered the case made by the Revenue Commissioners and considers it properly made——
The Attorney-General
I say that they would properly insist that a case should be made.
Let us see if we can make the case briefly. The objection to what Deputy Costello has urged has been on two grounds. The first ground is that, as we were changing the procedure in regard to appeals, it might develop that the judges going circuit in the future would find themselves obliged to take this sort of appeal from the Revenue Commissioners and that that would not be desirable. Why is it not desirable? If we are to have the High Court judges sent round the country on circuit to hear appeals in regard to cases of an ordinary type, and if we are to give the people concerned an opportunity to parade their witnesses for a second time and to have matters of fact disposed of for a second time, is it not proper that Revenue matters should be included in that framework and that they should also be subject to review? I think the onus is on the man who says it is not proper to prove the negative. A simple amendment would be that suggested by Deputy Costello—that there should be an appeal from every decision of the Special Commissioners of income-tax. Does that strike anybody who thinks of the trouble we used to have as to people being taxed in an unfair way, as unfair—that there should be an appeal from two non-judicial people on the amount of taxation a man should pay? Does it appear unfair that there should be an appeal to a judicial person on that question?
The second ground of objection by the Attorney-General was that you might give an entirely new appeal on tax matters. We are giving a completely new appeal on a tremendous number of matters. There never was, up to date, in this country, an appeal on fact in cases over the £50 limit. We are giving such an appeal as between £50 and £300. We are giving a completely new appeal in all matters which are above the limit of £50 and below the limit of £300. Why stop short at that and say that you will not have this new system touch in any way on the Revenue Commissioners' rights to tax the people? Again, it must be stressed that, however valuable and experienced the Revenue Commissioners may be as civil servants, they are not judicial persons, and the only question raised here was as to whether it was desirable or not to give an appeal from them on any matter handled by them to the circuit judge. We can deal with what would happen when it got to the circuit judge afterwards. I doubt if anybody can say that, as between the people and the Revenue Commissioners, there should not be a right of appeal from the Revenue Commissioners to a judicial person. History in every country is littered thick with conflicts over methods of extorting money from people contrary to the law or in arbitrary fashion or by walking warily beside the law, but, perhaps, outside it. Let us have the test of a judicial person passing his judgment on these matters on appeal. That is all that is asked. So much for the Revenue Commissioners.
In this section there are included two other points on which the SubCommittee of the General Council put up recommendations. One was that the matter at the end of sub-section (1) should no longer stand there—that is to say, from "nor from any judgment...." to the end of the last line. These four lines should be deleted. They also recommended that the existing right of appeal in valuation cases dealt with in sub-section (3) should be retained. Incidentally, is not the valuation code not as well thought out and as carefully built up over centuries as the income-tax code? Is there not a valuation code which is almost as esoteric a matter as the Revenue code? Under Section 33 we passed the whole question of workmen's compensation which could be said to be somewhat of a code by itself. The only horror that strikes any sort of fright into the minds of the Minister and the Attorney-General is when the Revenue Commissioners are mentioned.
Section 34 and 35 agreed to.
Question proposed: "That Section 36 stand part of the Bill."
I do not know if this is the appropriate section on which to raise this point, but I think there are strong enough grounds for doing so now. Right through the measure one finds time and time again that the Minister for Justice is given certain powers, sometimes after consultation with, say, the President of the High Court, sometimes by agreement with other people, and sometimes on his own. This whole question of Ministerial powers, and the use of them, has been somewhat in the limelight recently in connection with leases of State property. I should like to know if there is any standard laid down by the Executive Council for their guidance in this matter. We found it related on sworn evidence before a select committee that a great many of the powers and duties imposed upon Ministers by statute are in fact carried out by civil servants. I had it in mind at one time to put down a variety of questions on this subject, where I found that the Minister for Justice or the secretary of a Department, of alternatively the Minister for Justice himself was mentioned, to see if I could get some fixity with regard to the matter. Under this section there is the question afterwards of grouping circuits. Has the Minister any views as to whether he will deal with them or hereafter leave them to civil servants? Where is the line drawn? There are also matters of assigning duties to servants which might seem from the levity view of the Executive Council to be a matter for a Civil Service department. If there is to be any real interest taken in the duty of retainers attached to the judges, it might be a matter for the Minister to inquire into in a precise manner. Is there any line of departure as to when the Minister is to handle these things or not? Opinions have been given previously.
The Attorney-General
Better keep to this section.
Is the Minister going to deal with them? I understand that under old statutes which were not passed by this Parliament, and under statutes at present passed by the English Parliament, there occurs a phrase, generally in a concluding section, that where power is given to a Minister or to a Secretary of State that that power may be delegated by him to the head of the Department or to someone in his name. Our legislation has not proceeded on these lines. We do not include such a phrase. I always understood that the omission of that phrase was intended to mark the new phase, and that when a statutory duty was imposed on a Minister he had to attend to it. Does the Minister propose to interpret it in that way?
That is my interpretation.
Is that the only interpretation possible when such a phrase is used?
Under a section in this Bill orders have to be laid on the Table of the House. Surely the Minister has to approve of and to sign the orders.
This very thing was sworn to before a committee where State property was given away for more than two years. Yet we were told it was done by two Departments, the Department of Industry and Commerce and the Department of Finance, that the matter was attended to by civil servants; that it was not merely that the Minister signed perfunctorily but that the Minister never saw it.
The Attorney-General
Sufficient for the day is the evil thereof.
If the Minister for Finance or the Minister for Industry and Commerce can do that with regard to the giving away of State property, I think it is a matter for consideration by the Minister for Justice not to have grouping done here by civil servants, or that he should have to swallow arrangements fixed by civil servants. We were told in sworn evidence that that is what happened, and that although the seal of two Ministers was on a certain lease, in fact neither of them ever saw it until some months after it was sent out.
I should like to put the point of view of the practitioners in connection with this matter. Speaking for myself, and, I am sure, for a considerable number of my brethren at the Bar, and perhaps I might include the Attorney-General, I do not want the circuits on which we will have to work for the purpose of earning our living under this Bill fixed for us by civil servants, without consultation with the Bar Council. There is not a word about consultation with the Bar Council. The views of the judges may not in any way reflect the views of the Bar. I am not interested in the solicitor profession, but this section does not indicate that there will be consultation with the solicitor profession in fixing the circuits. I am interested in my own profession, and there is nothing in the section providing that the Minister before starting to do something which may materially affect the livelihood of members of the Bar will consult the Bar Council. He is going to fix on a certain plan for the circuits without consulting the governing authority of the Bar, the Bar Council. When the Minister is replying I would like him to deal with that matter, and to say whether before he fixes the circuit he will consult the Bar Council and hear their views. I would also like to know whether he intends to make a completely new division of the circuits in the area now known as Saorstát Eireann, or does he intend to follow the old stereotyped lines that existed here before the passing of the Courts of Justice Act, 1924? As the matter is of considerable importance to practitioners, I think this is the appropriate time to gain some enlightenment from the Minister as to what are his intentions.
If the Deputy will look at the Second Schedule he will find that that matter is referred to. I do not know that I could have introduced it into the Bill or into a section that we should consult the Bar Council or the Incorporated Law Society because that would leave it open to other people to suggest that they should be consulted also about the convenience of business.
Like consulting an insurance company before the Insurance Bill was circulated.
I am not dealing with an insurance company at the moment.
No, but there is another Minister.
I have no hesitation about consulting the Bar Council and having their views taken so as to, as far as possible, facilitate them.
I am satisfied with the Minister's undertaking.
Section agreed to.
Amendments Nos. 49, 53, 55, 57 and 60 seem to me to have the same purpose, namely, to ensure that at least two High Court judges will sit on High Court circuits.
That being so, the principle of the amendments might be debated together.
SECTION 37.
(1) Twice in every year the High Court shall sit in every county and county borough (other than the County of Dublin and the County Borough of Dublin) in Saorstát Eireann to hear appeals from the Circuit Court and to transact such other business as shall lawfully be brought before it, and for that purpose one or more judges of the High Court shall, at the times appointed under this section, travel each High Court circuit and hold a sitting of the High Court in every appeal town in such circuit.
(4) The Minister for Justice shall by order made after consultation with the Chief Justice and the President of the High Court appoint, in respect of each half-yearly sittings of the High Court on circuit, the number of judges who shall travel and sit on each High Court circuit for the purposes of such sittings and the day and hour at which such sittings shall commence in each appeal town on each such circuit.
I move amendment No. 49:—
In page 14, Section 37 (1), line 33, to delete the word "one" and substitute the word "two".
I am glad to be able to fortify myself on this matter with a recommendation of the Committee and with the evidence of numerous witnesses. When the question was precisely put to witnesses they answered unanimously that they thought of appeals to two judges going on circuit. A number of witnesses said, after having objected to a return to the old system of rehearing, that they were of opinion that there should be an appeal to two judges. If there was any distinction made it was made by a certain witness who gave evidence asking that Circuit Court jurisdiction should be cut down, and then making a limit, some new division, as to the point of excess, an upper limit below which the case should go to the Circuit Court judge. Then the witnesses followed that up by saying that if there was to be rehearing on the higher level of cases the appeal should be to two judges, but that if you were thinking of this type of discrimination they did not mind if the lower cases went to a single judge. I think without doubt the Committee could have expressed itself in these terms, that all the witnesses were in favour of a rehearing by two judges, if it were not for these reservations I speak of. The only occasion on which any distinction was made by witnesses was when some of them objected to the rehearing at all. Sometimes those who were inclined to put forward that argument later said: "Very good, if there is to be a rehearing, let it be before two judges." Then they were asked: "Would you have two judges for the rehearing in a matter in which there is, say, only £50 involved?" and they said: "Let that go before a single judge." There was, however, a virtual unanimity of opinion on the point that there should be two judges. We are now going away from that.
The Committee expressed agreement with the view that there should be two. Again I say that on this point there was in the Committee's deliberations and in the Report a certain confusion. They were apparently at first taken with the view expressed to them by witnesses that there were considerable excess costs in the new system. They set out to get a system which would not involve the same expense, but they were in the end forced by the volume of opinion put to them, to express the view that the rehearing should be before two judges, no matter what that should involve in the way of expense. They were further constrained to express the opinion that the stenographer's notes should be kept, even though there should be the rehearing with two judges. The retention of the stenographer's notes could not in any way in anybody's judgment have lessened the expense.
Nevertheless, the Committee have put forward that case. I think it was later, when they considered the suggestion as to the likelihood of perjury, that they decided on keeping the notes, but on this question of the two judges there was virtual unanimity and certainly there was no reason put forward as to why there should be only one judge.
This matter was raised on the Second Stage along with the discussion on the keeping of notes, and we had the statement of the President on both matters that he had been impressed with the representations made. I had thought that we would have seen amendments providing for the two judges and also for the retention of the notes, if only to make them available to the judge on appeal, but neither of these matters has been attended to. As to what was the principle that ruled in the minds of the witnesses who expressed themselves in favour of two judges, it is difficult to speculate. Some people founded themselves apparently on the old belief that it is better to have two persons deciding a matter than one. Some of them were apparently impressed with the old and I think the wrong mathematical argument that if you have a Circuit Court judge and he decides one way, and the appeal judge decides otherwise, you have a divided opinion. The question was now and again asked and glanced over, as to what would happen if, on appeal, the two judges hearing it were in disagreement. The obvious answer to that was that then the decision of the circuit judge was not upset.
There was running through the minds of the witnesses the view that actions in which sums from £100 to £150 were claimed, represented very big cases in the eyes of the people of this country. They carried forward that view when they were talking of the appeal, and they said that cases of considerable magnitude, as they expressed these to be, should not be heard by a single judge going on circuit and hearing such a case with a previous decision one way or the other standing on record. It is hard to get any common line between the witnesses, but I think that it is not exaggerating the evidence to say that most of the witnesses, being impressed with the relative magnitude of, say, a £200 claim in this country, felt that it was right that an appeal on a claim of that kind should not be taken before a single judge. There was inherent in that expression of view this: that it was better to have two judges who could think the matter over and who could have their minds in conflict on the matter as it went along, and who could come to a common decision on cases of that magnitude. Whatever may be the reasons—and there were many—there was such an expression of opinion as made the Committee declare in favour of having an appeal to two judges and we are now going away from that.
It might be desirable in the view of many people to have these appeals heard by two judges, but the real objection to that is that it would involve the appointment of additional High Court judges. If you are going to have every appeal heard by two judges, it will certainly entail the appointment of additional judges. I think if the present scheme were allowed to be put into operation, we could see after a year or two how it would work with the number of judges that are available. There is another body of opinion which feels that a hearing by one judge might be better than a hearing by two, that is, in cases where the two judges might disagree. Such a case was referred to by the Deputy. The position then is that the decision of the Circuit Court judge stands. That has happened in some cases already where we had an appeal on the notes. The main consideration at any rate is that unless additional High Court judges are to be appointed, we could not carry out that recommendation of the Committee.
It is impossible to go through the evidence of everybody in detail, but I doubt if there was a member of the Bar called before the Committee who did not express himself in favour of an appeal to two judges. The witness representing the Incorporated Law Society, Dr. Quirke, an ex-president of the Society, expressed himself very distinctly in favour of the two judges. Right down all through the list of witnesses I could quote similar expressions of opinion one by one. In fact, I have failed to find any reason for the Committee saying that "the majority of the witnesses" were in favour of an appeal before two judges. I think that is a considerable underestimate of the number of witnesses, as between members of the profession and others, who gave evidence in favour of two judges. I do not know that there is any one of them who had any firm view in favour of a rehearing by a single judge. There were some of them who started with that view, but upon a question or two being put to them explaining what was going to happen, they unanimously reverted to the suggestion of the two judges. If there had been a new reference of this matter to the Committee, and their view was taken, as to whether or not it was advisable to adopt the old system of appeals, I doubt very much if there would have been anything like a unanimous report in favour of a rehearing, with the Circuit Court jurisdiction kept at £300, if the rehearing was to a single judge. The evidence was overwhelmingly in favour of two judges. I cannot find any reference that satisfies me that anybody stuck resolutely to the idea of a rehearing by one judge only.
The Attorney-General
There is the evidence of Mr. Price on this point. He does not say that he would prefer two to one, but he does say that he would much prefer one to the previous system. His evidence is given on page 284, beginning with question 4259, and is as follows:—
"Coming to the question of appeals from the Circuit Court, I understand that your Council favour an appeal by way of rehearing before High Court judges?—Yes.
"How many judges do you suggest?—That was discussed very fully, and there were very divided views on that subject. Two judges, of course, are better than one, but, of course, two judges would cost the State more than one. On the whole, we have come to the conclusion that a rehearing even by one judge who would have the witnesses before him would be infinitely superior to the present system and far cheaper to the litigants.
"Apart from the question of cost to the State, your Council would favour two?—Yes, as two are better than one. Occasionally some judges are not as good as others. I was thinking over this only last night. Of all the judges I have known on the bench, there were five or six who probably were not good judges for trying cases on rehearing. The majority of the judges were splendid. With two judges you would obviate a hurried or impatient hearing of a case, and then there has to be considered the mutual help and assistance one judge would give another from his knowledge and experience.
"Senator Brown: The judge of appeal at assizes was trying the small cases?—He was. I think they were models in the way they tried them.
"It would be a reason for having only one judge where the jurisdiction was limited to £50. Do you think it might be limited to £300?—I do not know if a system could be suggested by which two judges would go to a certain town, such as Galway, and the smaller cases might be tried separately, and on special days they might be required to sit together for larger cases."
As the Deputy says, undoubtedly the balance of opinion, not the great majority of the witnesses, was in favour of a two-judge appeal court. I personally have already given my opinion here. I do not think I committed myself on the point before the Committee, because I was not asked the question; but I have already stated here, and I reiterate my opinion, that I think the single judge is a better appeal tribunal than two judges for the rehearing of cases. I think, on the whole, that two judges will be an unsatisfactory type of tribunal. We had a two-judge tribunal under the circuit appeal system as it now exists, but I think it would be a wholly different matter to have a number of witnesses before two judges and have them trying to co-ordinate their views as to the impression the various witnesses made upon them and as to the questions they would like to ask.
In theory, it might possibly be true to say that two heads are better than one, as I think Mr. Overend said also. He pressed very strongly in his evidence that there should be two judges. He made that remark that Mr. Price repeats there, that two heads are better than one, and for that reason he favours two judges. I would myself prefer a single judge as a tribunal on rehearing. I think it would be more satisfactory and more speedy. It possibly has the fault that it might, in some cases, be too speedy. But, from the consideration which I have given it, I am quite satisfied that a one-judge appeal court is satisfactory, and, I would be rather inclined to think, more satisfactory than two judges.
As the Minister said, the Government might have been prepared to yield to the demand of the Committee and accept the view put forward there, though it is a view which is formed on the working of the two-judge appeal court under the present system. The Government might have been prepared to adopt that but for the obvious requirements as regards the number of judges. As the system stands, even taking it at four circuits, if we have to send out two judges on each circuit, that will take eight judges. It may be possible that on some circuits two judges will not be necessary; one judge may possibly be enough. But, under the scheme as it stands, with the addition of two judges of the Supreme Court and calling on them to go on circuit, eight judges would be required to go round on circuit. If there were to be two judges sitting together as a court of appeal, it is obvious that the volume of business to be discharged would be halved, if not more than halved. The only way the situation can properly be met would be by an addition to the High Court judges' panel. The Government felt that the reasons in favour of a two-judge appeal court were not sufficiently strong to justify them in coming to the Dáil and, in addition to adding to the Supreme Court, adding to the High Court.
The Minister has pointed out, as we have pointed out in reference to other matters, that this is one of the matters which can only be solved in the working. If it turns out that it is in the public interest that a two-judge court of appeal should be provided, I suppose the Government will have to come and ask for extra judges, or some Government may have to do that. I am myself clearly of opinion that this will not be the reason for it. I think it will be found that in practice a single judge will be a more satisfactory tribunal than two judges. For that reason I oppose these amendments.
I am certainly in favour of the amendments moved by Deputy McGilligan. Whatever justification could be made for the change to the new system proposed to be set up under this Bill, it can only be made if provision were contained in the Bill for the rehearing of cases from the Circuit Court judges by two High Court judges. There is nothing so unsatisfactory, in my view, at all events, and in this apparently I differ completely and fundamentally from the Attorney-General, as an appeal from one judge to one judge. We had experience in the old days of appeal from County Court judges to judges of assize. You presented a case before a County Court judge who knew his work, who was experienced in his work, who knew the county in which he was working, and who gave a decision which everybody knew to be correct and respected. You had the position that a High Court judge then came down, a couple of months afterwards, and just with a wave of his pen reversed the decision of that County Court judge—the reversal of the decision by a man who had not perhaps a tenth of the experience or knowledge, and who did not command a tenth of the respect that the judge from whom the appeal was taken commanded. I think that is the experience of everybody. It will be the experience in future that there will be certain circuit judges—I do not say the whole of them, far from it—but there will be certain circuit judges who will be outstanding in their decisions, whose decisions will command respect, and whose decisions everybody will feel to be correct; and an appeal will be taken from that decision by the person who has lost the case in the hope that somebody will come down from Dublin who will not know the conditions in the country so well as the judge who decided the case, who perhaps will not have the same experience of life or the same experience of law as the judge who decided the case, and a disappointed litigant will gamble his chances on appeal, and in five cases out of ten, I believe, he will succeed in pulling it off.
I do not want to elaborate on this very much. I do not want to go very deeply into that aspect of the case. We all know, however, that certain County Court judges were vastly superior to a large number of the old High Court judges, and their decisions carried more respect. But there was the position—that an appeal from a competent man to an incompetent man took place with the appropriate result. I had experience myself of a case where the whole point of the case turned on the question whether or not there was a certain beam of wood between two cottages. That was the only point in the case—whether that was there or not. The County Court judge went out for himself and saw that it was there and decided in favour of my client; but a High Court judge came down six months afterwards from Dublin, and without seeing the cottage decided that the beam was not there. I fail to see how anyone can say that an appeal of that kind from person (a) to person (b) is such a wonderful instance of judicial reform as to command the plaudits of the entire population of Saorstát Eireann. I take entirely the contrary view from that, and I think there is no more unsatisfactory appeal than from one person to another person. The only justification for an appeal is that two minds should be brought to bear on the question whether or not the person who first decided the case was correct. One of the great advantages of the existing system of appeal—one of the things that gave the shorthand note system some chance of success— was the fact that there were two judges to appeal to. I think it was the experience of everybody that, so far as that system was a success, it was a success by reason of the fact that two minds were brought to bear on the issue to be decided. I gathered from the Minister that he would accept the view, were it not for the financial position, that two judges should be the appropriate tribunal. Certainly the mass of the evidence before the Committee was in favour of it. Everybody is in favour of having at least two, and if the financial position of the country does not permit at the moment of a proper system, staffed by two judges of appeal, being put into operation, then I think it is better to wait until your financial position improves and enables a proper system to be set in force in this country rather than set up the sort of thing that is going to be set up under this Bill when it is in operation.
It is really amazing the unanimity that there was before this Committee. The first two witnesses were members of the Senior Bar—Senator Lynch and Mr. Overend. There is no doubt about their view in favour of the two judges. Then there was Dr. Quirke, a solicitor, representing the Incorporated Law Society, and he was clearly and definitely in favour of two. There was also Mr. Ryan, who was in favour of two. Then a member of the Senior Bar was in favour of two. After these we have what I might call the reservation cases, such as Mr. O. hUadhaigh, a Dublin solicitor, who said that he thought one would be sufficient, provided the appeal was limited to cases of £50 and under. He held that the rehearing of cases from £50 up should not be allowed. Then there was a solicitor whose view I forget for the moment, but it is possible that he was in favour of a single judge. Then you had Mr. Delaney, who was in favour of two, and Judge Davitt, who was also in favour of two. Judge Davitt felt that the finding of fact should not be interfered with at all and refused to answer the question of whether the appeal should be taken to one or two. Two members, representing commerce, made their appearance and they were both in favour of two. Then another Circuit Court judge, Judge Kenny, was also in favour of two. Then there was a member of the Bar from Cork—and on this point Cork was found to be in unison with the rest of the country for once—and he was in favour of two. There was another solicitor—one of what I might call the reservation cases—and he might be said to be on the side of one judge. Following him, there was a group of three—two solicitors and a registrar—in favour of the rehearing by two judges. Then there was a district justice, and I do not know whether he expressed an opinion at all or not, but the remainder, I think, were entirely in favour of two judges, excepting that there were two, again of what I might call the reservation cases; the President of the High Court objecting, of course, to the change in the system at all, parried with the question somewhat at the beginning, but in the end said that if he were to have a rehearing he would prefer to have a colleague sitting with him; and the Attorney-General's colleague, representing the Junior Bar, who said that one judge would be right, but again he had the viewpoint that the jurisdiction should be limited to £100. Besides him, there was the solicitor from Dublin whom I have mentioned, who was in favour of one judge but who favoured the limitation of these rehearings to £50 and under. Excepting these two, and with the possible exception of one other solicitor—I have a feeling that there was a solicitor from Limerick who expressed himself without any doubt as being in favour of the rehearing by a single judge— but excepting those I have mentioned, the others were in favour of two judges. Even in the case of the exceptions I have mentioned, two of them in the end said that they wanted rehearing by two judges and the other two of the four were people who objected, the one to a rehearing on anything more than £50 and the other on anything more than £100. In these cases they held that a single judge would do. I think there was another case of a solicitor from Cork, but I am not sure. With these exceptions, however, every other witness who spoke on the matter spoke definitely and clearly in favour of the rehearing by the two, and I do not think the quotation that has been given to us from Mr. Price helps very much. I was reserving him to the end, as he has been quoted.
The Attorney-General
He says the Bar were divided on that.
Well, if they were divided on it, they did not choose good representatives. Senator Lynch and Mr. Overend were in favour of it.
The Attorney-General
Mr. Overend was not their representative there.
But he is a senior member of the Bar. There were Mr. Lynch, Mr. Overend and Mr. Fitzgerald, and those people all spoke definitely and clearly in favour of the two judges. Mr. Price said that he would rather have two than one, but that of course two judges would cost the State more than one. In the end, he said that on the whole they had come to the conclusion that a rehearing even by one judge who would have the witnesses before him would be infinitely superior to the present system and far cheaper to the litigants. He then went on to speak of peculiar and special assizes in such a town as Galway where you could have all cases above £50 tried.
The Attorney-General
What he said was that the judges were to sit separately for the smaller cases and jointly for the larger cases.
Yes; he said distinctly let us have the judges sitting together in the larger cases and separately in the smaller cases. He got back to the point expressed by Seán O hUadhaigh, and to some extent by Mr. Binchy. He said:
"I do not know if a system could be suggested by which two judges would go to a certain town, such as Galway, and the smaller cases might be tried separately and on special days they might be required to sit together for larger cases."
So there was virtual unanimity from a variety of opinion that two judges were better than one, that the two judges could deliberate, that you would have the litigants better pleased. You would have steadier judgment and a better decision in the end. Everybody combined in the view that a rehearing was not of any great importance except it was before two judges. The only people who spoke against that were the people I have mentioned, who spoke with the reservations I have given.
Is the Deputy pressing the amendment?
Question—"That the word proposed to be deleted stand"—put.
The Committee divided:—Tá, 51; Níl, 26.
Tá.
- Bartley, Gerald.
- Beegan, Patrick.
- Blaney, Neal.
- Boland, Gerald.
- Bourke, Daniel.
- Brady, Brian.
- Breen, Daniel.
- Briscoe, Robert.
- Concannon, Helena.
- Corish, Richard.
- Corkery, Daniel.
- Corry, Martin John.
- Crowley, Fred. Hugh.
- Derrig, Thomas.
- De Valera, Eamon.
- Doherty, Hugh.
- Everett, James.
- Gibbons, Seán.
- Goulding, John.
- Hales, Thomas.
- Harris, Thomas.
- Hayes, Seán.
- Kehoe, Patrick.
- Kelly, Thomas.
- Kennedy, Michael Joseph.
- Keyes, Michael.
- Kilroy, Michael.
- Lemass, Seán F.
- Little, Patrick John.
- Lynch, James B.
- MacEntee, Seán.
- Maguire, Ben.
- Maguire, Conor Alexander.
- Moane, Edward.
- Moore, Séamus.
- Moylan, Seán.
- Murphy, Patrick Stephen.
- O Briain, Donnchadh.
- O'Doherty, Joseph.
- O'Dowd, Patrick.
- O'Grady, Seán.
- Pattison, James P.
- Pearse, Margaret Mary.
- Rice, Edward.
- Ruttledge, Patrick Joseph.
- Ryan, James.
- Ryan, Robert.
- Sheridan, Michael.
- Smith, Patrick.
- Traynor, Oscar.
- Victory, James.
Níl.
- Beckett, James Walter.
- Broderick, William Joseph.
- Burke, James Michael.
- Burke, Patrick.
- Cosgrave, William T.
- Costello, John Aloysius.
- Daly, Patrick.
- Desmond, William.
- Dockrell, Henry Morgan.
- Dolan, James Nicholas.
- Doyle, Peadar S.
- Fagan, Charles.
- Keating, John.
- MacEoin, Seán.
- McFadden, Michael Og.
- McGilligan, Patrick.
- McGovern, Patrick.
- McMenamin, Daniel.
- Mulcahy, Richard.
- Murphy, James Edward.
- Nally, Martin.
- O'Leary, Daniel.
- O'Neill, Eamonn.
- O'Sullivan, John Marcus.
- Rice, Vincent.
- Wall, Nicholas.
Tellers:—Tá: Deputies Little and Smith; Níl: Deputies P.S. Doyle and Nally.
Question declared carried.
That decision governs amendments Nos. 53, 55, 57 and 60?
Yes. I move amendment No. 50:—
In page 14, Section 37 (4), to delete all words from the beginning of the sub-section down to and including the word "with," line 51, and in line 52 to delete the word "appoint" and substitute therefor the words "shall determine".
This is a small point, but I wonder what is the meaning of the wording. In Section 37 (4) it is solemnly stated that the Minister for Justice shall, by order made after consultation with the Chief Justice and the President of the High Court, appoint the number of judges who shall travel and sit on each High Court circuit and the day and hour at which such sittings shall commence. Surely the courts might be allowed to look after their own business?
That is a matter that could be conceded. I would like to point out that it is considered an Executive act to try to arrange those things. It has appeared in other Bills previously. I do not see any objection to leave it to the Chief Justice, to let them settle their own procedure where and when they will sit. I will accept the principle of the Deputy's amendment, but I may have to alter the wording.
The next section gives the Chief Justice and the President of the High Court power to appoint the several judges who are to travel. Surely they might be allowed to appoint the hour and the day on which sittings are to commence.
Amendment No. 50, by leave, withdrawn.
Section 37 agreed to.
SECTION 38.
(2) Every ordinary judge of the Supreme Court shall travel and sit as a judge of the High Court on circuit whenever requested by the Chief Justice so to do, and every such judge when so travelling and sitting shall be an additional judge of the High Court.
(3) The Chief Justice and the President of the High Court, after such consultation as they think proper with the judges concerned, shall determine, in respect of every half-yearly sittings of the High Court on circuit, the several judges of the Supreme Court and of the High Court who shall be requested to travel and sit for the purposes of such sittings and the particular judge or judges who shall so travel and sit on each High Court circuit.
I move amendment No. 51:—
In page 15, to delete Section 38 (2).
This amendment aims at what we have discussed already, and that is the matter of appointing Supreme Court judges and making them do High Court work. I have argued that and I am not going to argue it any further.
Amendment, by leave, withdrawn.
Does not that govern amendments Nos. 52 and 54?
Amendments Nos. 52 and 53 not moved.
Section 38 agreed to.
Amendment No. 54 not moved.
Section 39 agreed to.
Amendment No. 55 not moved.
As regards Section 40, the Bill originally had three sections dealing with these matters. We had an appeal from the Circuit Court on civil cases heard without oral evidence. That is now in Section 40. We then had an appeal from the Circuit Court in civil jury cases. That has disappeared. I am taking it that what was included in Section 39 is now brought in under Section 41 as being not otherwise provided for.
Section 40 agreed to.
SECTION 41.
(1) An appeal shall lie from every judgment or order (other than judgments and orders in respect of which it is declared by this Part of this Act that no appeal shall lie therefrom and judgments and orders in respect of which other provision in relation to appeals is made by this Part of this Act) of the Circuit Court in a civil action or matter—
(a) where such judgment or order is given or made by a judge of the Circuit Court for the time being assigned to and sitting in the Dublin Circuit, to the High Court sitting in Dublin, and
(b) in every other case, to the High Court on circuit sitting in the appeal town for the county or county brough in which the action or matter resulting in such judgment or order was heard and determined.
(2) Every appeal under the section shall be heard and determined by one judge of the High Court and shall be so heard by way of a rehearing of the action or matter in which the judgment or order the subject of such appeal was given or made.
(3) The judge hearing an appeal under this section may, if he so thinks proper, on the application of any party to such appeal, refer any question of law arising in such appeal to the Supreme Court by way of case stated for the determination of the Supreme Court and may adjourn the pronouncement of his judgment or order on such appeal pending the determination of such case stated.
Amendment No. 56 is governed by amendment No. 36, I take it.
Amendment No. 36 had reference only to damages that might be given in an action where unliquidated damages might be claimed. I move amendment No. 56:—
In page 16, Section 41 (1), after the word "matter", line 6, to add the words "in which a sum not exceeding £100 has been claimed or awarded".
The point I am driving at here might have some relation to another amendment of Deputy Costello's on the limitation of jurisdiction from £300 to £150, but I suggest that this is somewhat different. The section reads:
An appeal shall lie from every judgment or order (other than judgments and orders in respect of which it is declared... that no appeal shall lie therefrom and judgments and orders in respect of which other provision in relation to appeals is made...
My amendment sets out that after the words in line 6, "in a civil action or matter," the following words shall be added, "in which a sum not exceeding £100 has been claimed or awarded." In other words, I want to limit the appeal to matters only in which the claim or the award has been £100. I am getting at what the evidence put before the Joint Committee aimed at.
The Attorney-General
I read it the other way. I thought the Deputy wanted to abolish the right of appeal in the larger cases.
That is what I am stating. If a sum exceeding £100 has been claimed or awarded, then there is no appeal. The body of evidence given before the Committee was in favour of this, giving what was called the old right of appeal, which was in relation to £50. It was accepted by a lot of the people appearing before the Committee that £50 then would be represented by £100 now, taking the present value of money into account. A lot of those who professed to be in favour of a rehearing limited themselves to a rehearing as of the old type. In other words, I accept evidence of people who went before the Committee rather than what the Committee recommended. A point was made on the last day by Deputy Lavery that going back to the old appeal in this connection was a misuse of words. There was no old appeal except in relation to £50 which was equated to £100 now. There never was an appeal on fact in cases above the £50 mark; there was no other case.
The amendment is not accepted.
Is it merely "not accepted?"
I do not see how it could be when you give a jurisdiction to the circuit judge of £300. You would give an appeal where the award reached £100, but no appeal where the award was between £100 and £300. I cannot see the reason for that. Why should a person who gets an award of £100 have the right of appeal and no appeal beyond £100 and not exceeding £300?
Why does the Minister say that beyond £100 you will not get an appeal to the Appeal Court? The Minister is getting logical. He says if you are committed to the fact that there is good reason for giving an appeal in an award of £100 why make a difference between £100 and upwards.
You are giving an appeal on circuit jurisdiction. Why split up what the Circuit Court may award? Why give people who get £100 award a right of appeal and deprive people of that right who get a bigger sum, £299 for instance? There is an appeal by way of rehearing in all cases that come within the jurisdiction of the Circuit Court. I do not see why we should differentiate between the £100 and the £300.
Because the only point on which a case for rehearing was made, was that people got used to it and that they wanted the old system back. There was a general appeal under the old system up to £50. They were not tried by a judge in the first instance, but by an assistant barrister. The view was taken that it was only right to give one judicial hearing. There never was in this country an appeal by way of rehearing except in cases up to £50. Why give it now? If you are giving it now why split up the £300? Why should not the big litigant have the right to have his case on fact reheard?
In this amendment the Deputy proposes to deprive a man of any sort of appeal if the sum is between £100 and £300.
We can amend that. Will you accept the idea that all judges going on circuit only take the old civil bill equated to £100? It is the easiest thing.
I cannot accept that. What the Deputy is talking about is the time when the jurisdiction of the County Court was £50, and he equates that to a figure of the present time. Later, the Government here fixed the jurisdiction at £300. That was not done by a system of equation; it was not by any method of equation of £50, It was simply the jurisdiction of the court. Similarly, here in the 1924 Act the jurisdiction was increased to £300. If you change the system, why should not the £300 and over apply? When the jurisdiction was given to the Circuit Court up to £300 as against £50 in every case, why not an appeal?
The 1924 Act blocked appeals upon fact.
The Attorney-General
It says in the Act that there is an appeal on fact.
Let us leave that phraseology as it is, and let us apply ourselves to the £100 and £300 cases. You have to think of two things together—the increased jurisdiction of the Circuit Court and the right to appeal. If there was an increased jurisdiction to £300 there was no appeal on questions of fact; it was only given in questions of law. You are not going to give an appeal and rehearing in reference to £300. That is a complete innovation. We want a limit. I would like to go back to the £50. I think we could take in that nominal sum or what it represents. The evidence given before the Committee was that members of the Committee spoke of £50 and used it in a sense that in present-day money it would equate £100. They had the view put to them and fortified by argument for rehearing, in fact, what used to happen in the old days. Man after man said that the old civil bill rehearing was only £50 jurisdiction. All the evidence, except that of persons who wanted the appeal increased in amount was: go back to what used to be. I admit it is awkward to split the Circuit Court jurisdiction. The only argument used was by people who wanted to get back; they had not got used to it.
With regard to the present Circuit Court jurisdiction, they did recommend that appeals not exceeding £100 should be heard by one judge, and over that by two judges. They did not interfere with appeals so far as the Circuit Court judge is concerned.
You are running right against that recommendation as to two judges. You are going to limit the harm by confining appeals to £100.
The Attorney-General
Are we to return to the old system and say the old system was such and such? What the witnesses obviously meant was to substitute for the present system of appeal the old system, retaining the jurisdiction of the Circuit Court, because the Committee recommended that the jurisdiction of the Circuit Court should be retained at its present figure. I think I am correct in saying that the witnesses who spoke of a return to the old system of appeal did not at all carry in their minds or intend to convey that they only wanted the restoration of the old system exactly as it was with the limitation of £50 or £100 in the Circuit Court. It is hard to treat this amendment seriously, because I do not think the Deputy really means to deprive of an appeal the persons who obtain decrees above £100 and under £300. He says, of course, that he is prepared to consider some way of providing a form of appeal analogous to the appeal from the High Court as it stands at present.
He must remember that in the Courts of Justice Act, 1924, there was this new right given to parties who had claims over £100 and under £300 of an appeal on fact, even though it was to be on the stenographer's note, and in Section 61 it was provided that the appeal court could send to the Supreme Court for a further review in cases which they considered involved a question of law or fact of such importance as to justify them in doing so. You there had a new form of appeal given to the persons whose claim was above the old County Court jurisdiction, measured at £50 or its equivalent, and under £300.
There is a new appeal given on fact, and a right to go to the Supreme Court on fact. It is not as easy to apply a logical rule as the Deputy seems to suggest. His argument is subtle and ingenious, and I think is more intended to try to impale the Minister on the horns of a dilemma than really to achieve any practical result. I agree with the very last remark he made, and that is that you cannot split the Circuit Court jurisdiction; you cannot deprive litigants who obtain decrees above £100 of a right to appeal without approximating the procedure in the Circuit Court to the present High Court procedure. One of the reasons why it is claimed that there is no case for giving an appeal on fact from a High Court judge to the Supreme Court is the elaborate precautions which have to be taken by litigants to have their cases properly presented—the elaborate machinery of pleadings, the assistance available to them of skilled and experienced counsel in preparing their cases for court, and the direction of proofs, which is a feature of a High Court action where a considerable amount is involved, and where expenses can be easily borne. It is reasonable enough I think to say that where there is all that preliminary preparation of the case—the examination of it from the legal aspect to see what points of law might arise on it, the fact that counsel are there available, that the library is at their disposal, and that they can safeguard themselves against any fatality in the hearing of the case—it justifies the legislature in saying to a man "When you go to the High Court and have your trial before the High Court judge you are not going to be allowed a rehearing on fact." It is different when it comes to the Circuit Court cases, where all the things I have just mentioned are absent, and where this form of appeal—the old form of appeal which we are now introducing here— is justifiable. The reasoning which justifies it, I think, in respect of £100 and £50 cases is equally applicable to cases above £100 and under £300. Apart from the practical difficulties which arise in discriminating between cases which involve more than £100 and those which are less than £100, I think every other reason justifies us in leaving the position as it is under the Bill, and leaving to all the litigants in the Circuit Court the same form of appeal.
Those last remarks are an able argument in favour of reducing the Circuit Court jurisdiction and nothing more. All that the Attorney-General has now said is this: There are certain cases above £300. They are important cases. We are just measuring them in a rough and ready way by the amount. They are important cases. You want to have a good detailed system of pleadings, interrogatories and all the rest; you want to have counsel there available, and you want to have law library facilities. We take the arbitrary decision that the £300 and upward cases are cases that should be dealt with at one hearing.
The Attorney-General
I do not follow the Deputy.
With regard to that £300 and upward case, having all the facilities, there is no appeal except a new trial motion. Then we turn around and say with regard to the £300 case we think it is good for them to have a first run, without having the law library facilities, or a judge of the particular calibre, and so on. Then we say again: "Having, unfortunately, made that decision, we are going to have a rehearing. We will send down judges, and we hope that the Bar will follow, carrying as much as possible of the law library with them in their heads." I do not see why you should make the differentiation point at £300.
The Attorney-General
We have had that already on another section.
The Attorney-General has raised it here, and I think has made a magnificent argument for changing the jurisdiction point, because there apparently is a feeling that the £300 case, the £200 case or the £150 case is too important to have it disposed of by the Circuit Court judge, with the Circuit Court group of counsel, and with the absence of law library facilities. We think it is too important a case to have it disposed of in that way, and we are going to have this double procedure.
The Attorney-General
The Minister has met that on another section.
I do not think so. I think it could have been met by reducing the jurisdiction.
The Attorney-General
I agree that it could have been met by reducing the jurisdiction, but we have decided against that.
You have decided against it; logic has departed from you at that point. In regard to the people who gave evidence in favour of this rehearing—I really think that this can be stood over in regard to every witness who appeared after the Chief Justice; of course he gave evidence late in the hearing, and it is rather a limited number to talk about then, but after even about the fifth or sixth witness I think what I am about to say is quite true—once the argument began to be made: "No other country has this rehearing; England has not got it; England only tried it here; there was this trying it on the dog business. No other country wants it. There is nothing that you can get from your reason which makes you decide that there should be a revision of witnesses on the second hearing in regard to one type of case and not in regard to another" there was only one way in which it could be met, and the phrase with which it was met runs through this report: "It used to be the system and the people want it." Then you have got to examine what used to be the system. Of course historical matters have to be gone into. It was not an appeal, because there never was a first trial. What is considered an appeal is really the first judicial hearing. At any rate it had to do with those minor matters of the £50 and under cases, and I think the appeal now going to be granted by way of rehearing should only have relation to very much the same matters.
I think there is a great deal to be said for the point of view that once you have fact ascertained—and it can only be ascertained by the man who sees the witnesses—you should stop with fact, and there should not be any appeal anywhere on a question of fact. Very few countries have it and the only way in which people can make any case for having it now is to say, "We were unfortunately brought up to it, no matter how it arose; give us back what we once had." I want to give back what we once had and to limit it strictly and narrowly to what we once had.
Amendment by leave withdrawn.
Amendment No. 57 not moved.
Amendment No. 58 imposes a charge and cannot be moved.
The stenographer might put them in free.
I think the Deputy has been communicated with in regard to this amendment. The ruling given by the Ceann Comhairle was that it imposed a charge and, therefore, could not be moved.
I do not think I got notice from the Ceann Comhairle about amendment No. 58.
The amendment is in the names of Deputies Costello, McGilligan and McGuire. Possibly Deputy Costello got the communication, being the first mentioned name.
I got a series of notices about a lot of other amendments but I do not think this amendment was amongest them.
The Attorney-General
Does it not follow from all the other rulings?
No earlier amendment of that type to which I had my name has been objected to.
I think Deputy MacEoin had an amendment down on somewhat similar lines which was ruled out.
There was another amendment proposing a charge which was ruled out.
Question proposed: That Section 41 stand part of the Bill.
Would the Minister not consider the desirability of himself introducing an amendment to secure what was aimed at in this amendment which has been ruled out of order? After all, I understand that the Committee reported in favour of having the stenographers' notes, and I suggest that the Minister in this case should himself meet the wishes of the Committee and bring about what is in itself a very desirable amendment of the Bill. However, I rose chiefly to deal with the question of appeals. Speaking purely as a layman, I would be anxious to limit the appeals as much as possible, but I gather from listening to the discussion that, for the sake of what the Attorney-General called logic, and what Deputy McGilligan says is the opposite of logic, they have actually extended the right of appeal. In fact, an appeal is now being given in cases of fact in which it used not be given before.
I suggest that as far as possible the Minister should try to limit within what he thinks is the scope and purpose of the Bill, the power of appeal. I make a suggestion for his consideration between now and the next stage. Suppose there is a case being tried by a jury before the Circuit Court and that there is a disagreement of the jury. In that case I suggest that the case be dropped unless either party applies that it be heard before the High Court—that, in fact, a disagreement of the jury for the purpose of appeal be regarded as a decision; that the next trial of that case be heard before the High Court; and treated, the step being taken by either party, as an appeal by both parties. So, instead of having a possible hearing three times—in the first case a disagreement, in the second a decision in the Circuit Court, and then, an appeal to the High Court—you limit it, and merely having had a disagreement, the next step to be not a rehearing in the Circuit Court, but an appeal to the High Court straight away. I do not see that in itself that is at all impossible. It will at least limit the expense of and objection to one of the hearings.
I would be anxious to limit the question of appeal, but, looking at it not from the professional point of view but from the layman's point of view, I think the main thing to get is a definite decision one way or another. I do not care what court gives that. If a man has sufficient knowledge to deal with a certain type of case, a District Court judge can give a final decision as well as the Supreme Court. So can the Circuit Court judge in this particular type of case, so that I am personally opposed to anything in the nature of appeal. Despite the Attorney-General's scepticism about the spread of perjury, I think it will lead inevitably to perjury. I would ask the Attorney-General how many places there are in which owing to its prevalence, perjury is a reserved sin. There is perjury and many practitioners have told me that they do not know their case themselves until they go into court and hear the case put up, even by their own client. I think that ought to be limited by every possible method.
I see only one ground for appeal on fact, and that is the crankiness or worse of the particular person who happens to be trying the case. It might be useful to try to hold the whip of an appeal over a peculiar character like that, but, taking the whole of the judges—be they district justices, Circuit Court judges or others—I think that appeal in itself is objectionable. It may be necessary, in a few individual cases, to hold the whip of an appeal over them, but, beyond that, candidly I do not see the necessity for an appeal. I think it is much better that there should be a definite decision given. It may not be scientifically the best decision, and if you went to the High Court with the smallest case, and then to the Supreme Court, you might get a theoretically better decision, but in practice it is better to limit these things, because a definite decision one way or another is much better than to have this continual appealing from one court to the other. I understand that the Government has in certain cases rejected that argument. They say it is necessary to have appeals. I am sorry they take that view, but I make my suggestion as limiting that particular evil in one set of cases, and I suggest that between now and the next stage, the Minister should consider whether it is a practical suggestion or not.
At the moment, it may seem peculiar that you should appeal where no decision has been given, but that is a purely verbal objection. In essence, I see no objection to it, and I should like to get full consideration for it. Looking at it from a layman's point of view, what is wanted is a decision. It is much better that the people should get into the habit of accepting a decision. I will admit quite readily that for a long time they got into the bad habit of not accepting a decision. Very often, they got into the bad habit of not even stating their case to their own solicitor, and very often the solicitor did not know the case until he heard both sides in court where, frequently, he heard his own side for the first time. It is better that they should get out of that habit. It is one they probably do not wish to get out of, but, in the long run, it is in the interests of the administration of justice in the country to limit appeals and to have a definite decision and to let it stay there.
The Attorney-General
The suggestion is to me a novel one, but I do not suppose it would be rejected on that ground. Under the 1924 Act, in cases tried by a judge and jury, there was an appeal by way of notice of motion for a new trial. Under the system contained in this Bill the verdict of a jury will carry no more weight than the decision of a judge on an appeal. I suppose it may be admitted that that will have the effect of reducing the number of jury cases in the Circuit Court. It has been found to be the case, in some areas, that parties hold up the business in the Circuit Courts by asking for a jury. That applies particularly here in Dublin. Strong representations have been made to us on that head: that, if possible, something should be done to prevent the hold-up of the civil list in the Circuit Courts by persons who, thinking that they would fare better before a jury, serve notice of motion for a trial by a jury. However, that is by the way, but it does, I think, to some extent meet the Deputy's point and that it is very unlikely that trials by jury will become popular in the Circuit Courts and that where there is disagreement before a jury it is likely that the parties concerned will try to take an appeal to a judge without a jury on the next occasion.
The Attorney-General
I see the Deputy's point. It has just occurred to me that there is a provision in the present Act with reference to appeals in civil cases—Section 61—that where there is an appeal and two judges differ and that the judge in the court below was affirmed, then either party can go to the Supreme Court. The Deputy's idea is that where a jury disagree, then either party can take an appeal.
I do not want a decision on this now.
The Attorney-General
There is this difficulty that seems to me at the moment, that there is no order against which an appeal can be made. Of course, that is a matter of words and, possibly, could be provided for. However, we will consider this.
The Attorney-General will admit, I think, that the first portion of his argument had nothing to do with my case. I was dealing with the case that went before a jury in which there was disagreement. It is bad enough to have two trials on that, and what I want to avoid is having a third trial. Perhaps the Attorney-General will look into that between now and Report.
At the risk of repeating myself, I want to say that when discussing the whole matter of appeals there can be no argument as to its being the old system. It was not the old system. The full history of what was the old system is set out in the evidence of the Registrar for County Cork. It is given on page 216 of the Report. Stating the position in a brief way, there used to be what he called paper petitions tried before a judge of Assize, and that afterwards the judge of Assize was taken off to do merely criminal work. The civil jurisdiction that he had, which previously was for sums under £20, was vested in an assistant barrister, who first came into being under an old Act, and the £20 was later increased to £50. It is there we get the civil bill jurisdiction. What was called an appeal was, in fact, not an appeal. This assistant barrister had a summary procedure for determining debts under £20 originally and eventually increased to £50. Then the view was taken that there ought to be at least one judicial hearing. There was what was called an appeal. It was really a first judicial taking of that case. In face of that, we are asked to substitute the whole panoply of the Circuit Court going solemnly through the business of hearing cases up to £300, and when it is all over, in fact before it is all over, you give this notice to every witness who appeared on behalf of every litigant in the court: "Remember you need not put your best case forward at this moment; we will have another chance at this." It can even be put to the man who is not ill-disposed towards perjury: "You can do a great deal better the next time; try out your best this time, but remember that there will be another opportunity when you have heard the other man's case."
We are going to have that paraded now as a new judicial system to allow these £300 cases to be taken. Every one of them can be taken on an appeal before a single judge. My amendment dealing with the stenographer's notes has been ruled out of order. I want to stress the point that under the suasion of a very able member of the Committee, the Committee itself started with the viewpoint that the present system, which we are departing from, was unsound. The Committee started with that as their mental attitude towards the whole system, but by degrees, when witness after witness came before them and objected to the £300 rehearing on fact because of the amount of perjury it was going to lead to, the Committee were swayed by all that and made up their minds to rule out the system at present in operation because of the expense, but to keep the stenographer's notes. Their opinion was that while that would mean a great burden of expense they voted for it because it was the only way to prevent perjury. It would give counsei the opportunity of breaking down witnesses ready to commit perjury. If the Committee did report in favour of going back to the old system, as it was miscalled, and if they reported in favour of giving an appeal on fact, with the consequences that were likely to follow from that, they put in the definite provision, contrary to their ideas of economy, that the only way to prevent perjury was by the retention of the stenographer's notes. Now we are to have this new system, unheard of in our history, with no argument to back it except of the vaguest kind. There is nothing in the way of logic to recommend it. The big argument, and the main retreat for those in favour of rehearing, is that people will get used to it, and that we had better give it to them. On that argument we are going to give them something that they never sought and for which there does not appear to be any great desire. Despite the best efforts of the Committee, we are doing it in a way that will enhance the value of perjury in the courts.
Economy is looked to in this part of the Bill and disregarded in other parts. In the case of the appointment of judges, economy goes by the board, but in the matter of charges to litigants, by way of court fees, economy steps in and we are going to have court fees raised. In the matter of having two judges sitting, economy again steps into the forefront and we are told that we cannot have them, and even in the very important matter of stopping the growth of perjury, not at all to put it down but to stop an increase in perjury in the country, we are still swayed by economy considerations and will not have the notes.
I had hoped that the Attorney-General would have said something beyond merely the appeal that I made to him in the particular case that I put forward when stating the general arguments against appeals. I was under the impression, watching the Attorney-General closely, that mentally he was in full agreement with me. He continued to nod, but perhaps that was only the nervous affection which my eloquence produced on him. At any rate, I got the impression that he did not like an extension of the system of appeal that we have. I would ask him to bear in mind that under the new system he is putting a premium on the growth of perjury. Will he say if he was serious in what I understand he stated here on a former occasion, that he did not think perjury was so prevalent.
I think the Attorney-General had strong views himself about perjury, and that he was rather inclined to think that it was prevalent in the country.
The Attorney-General
Not in connection with this.
But, generally speaking, I think the Attorney-General was rather taken by a suggestion made by the Chief Justice. I am not pretending now to quote the Chief Justice in this, but I think the idea was promulgated that a witness should not be sworn in court at the beginning; that the only time you should put a witness on oath was when, in the course of a case, you suddenly thought that he had reached the point that he was either laying or going to lie. Then you proposed to him the solemnity of the oath. I think I have heard the Attorney-General to say that it was better not to have people sworn because you then had a better chance of catching them out.
The Attorney-General
I know that in the Sinn Féin courts it frequently happened that we did not swear witnesses.
I think your point of view was that it was easier to catch a man out when he was not sworn.
The Attorney-General
I have always refused to agree that there was perjury at the Assizes as I knew them in the West.
I move to report progress.
Progress reported; the Committee to sit again on Wednesday, 27th November.
The Dáil adjourned at 10.30 p.m. until Wednesday, 27th November, at 3 p.m.
