If the House would let me deal with this now, I am prepared to do so, or I will postpone it until Wednesday next if desired.
Tortfeasors Bill, 1950—Second and Subsequent Stages.
It may be taken now. I am prepared to take it though we got short notice, as far as I am concerned.
Could we take it as agreed?
Major de Valera
Let us have your views on it.
I move that the Bill be read a Second Time. This Bill might be said to have its origin in certain proposals for the amendment of the law relating to torts contained in a Private Member's Bill which was moved in Dáil Éireann as long ago as 1941 by the present Taoiseach who was then a Private Deputy on the Opposition side of the House. The fate of that particular Bill need not, I think, concern us now, except that I might say my predecessor accepted the principle of the Bill. The present Bill deals in a somewhat more comprehensive manner with the matters affecting the common law relating to torts that were covered by the Bill introduced in 1941 by Deputy Costello as he then was.
Of necessity the Bill is, by reason of its subject matter, somewhat technical in character. Deputies will no doubt have read the explanatory memorandum which was circulated with the Bill, and I feel that there is not much that I can add by way of explanation to what has been said in the memorandum. There are a few points, however, which I would like to make, if the House will bear with me for a little while.
The principal change which the Bill proposes to make in the existing law is to provide for contribution between tortfeasors. Under an archaic and outworn principle of the common law which we have inherited, there can at present be no contribution between tortfeasors. This is a serious defect in our law, which is capable of working considerable hardship and of being made the subject of grave abuses. If, for example, a passenger in a motor car receives a serious injury as a result of an accident involving the car in which he is travelling and another vehicle and, if he obtains judgment for damages, which may be substantial, against the owners of both cars, he can if he likes look to one of the owners for the whole of the damages and costs in the action and that particular owner, though he may have been by far the least culpable party in the accident, has in the present state of law no redress whatsoever against his co-tort-feasor who was far more to blame than him. This kind of case has been known to happen. Still worse, the present state of the law permits of, and indeed encourages, positive abuses because one of two or more defendants, against whom substantial damages may have been awarded, can bribe the successful plaintiff to pursue another defendant or defendants for recovery of the whole of the damages or costs.
I feel sure that the House will agree that it is time that the law in this matter was changed. The remedy proposed in the Bill is to provide for contribution between tortfeasors. The two possible kinds of cases are provided for, namely, the cases in which all the tortfeasors are joined as defendants in the one action, which is covered by Section 4, and, secondly, the case in which separate actions are taken against the tortfeasors, which is provided for in Section 5. In the first type of case it is provided by Section 4 that the full damages and costs may be apportioned among the defendants according to the extent to which they are respectively found responsible for the injury. It may be noted that, where the action was tried with a jury, the power of apportionment will lie with the jury.
In the second type of case, that is, where there are separate actions, any tortfeasor who has paid any sum on foot of a judgment obtained against him is given the right, under Section 5, to recover a contribution from any other tortfeasor who may be held to be liable. I would like to stress that the right to recover a contribution under Section 5 will operate against a person who may not have been sued at all by the injured party so that there will be no possibility of one of the tortfeasors escaping liability through collusion between him and the injured party.
The Bill does not deprive an injured party of the right which he now has to look for the whole of the damages to any one or more of the persons responsible for the injury, but, as I have explained, the position of the tortfeasors is being improved by the conferring of the right of contribution between themselves.
The other amendment of the law which is being made by the Bill, while important in itself is, in a sense, incidental to the main change which the Bill proposes. This is the provision in Section 2 which seeks to do away with the rather artificial distinction that exists under the common law between the case in which the wrongdoers are joint tortfeasors and the case in which they are not joint tortfeasors. Where the wrongdoers are joint tortfeasors, an action against one of them resulting in a judgment for the plaintiff operates as a bar against further proceedings against any of the other tortfeasors, even though the injured party may have failed to recover anything from the person whom he has sued. Section 2 remedies this position.
The Bill, being, as I have said, a somewhat technical one can, perhaps, be more appropriately discussed on Committee Stage, when any points of detail which Deputies may wish to raise can be dealt with.
I suppose I should congratulate the Minister on producing this Bill at last. When he referred to the fact that I, on behalf of the last Government accepted responsibility, I did not realise how long ago it was— nine years ago. I was abused in, I think, 1947 by the present Taoiseach when he was on this side of the House; he accused me of breaking my word and said that I had taken refuge in referring this matter to some nebulous law reform committee. I looked up what the Taoiseach said when he and the then Deputy McGilligan introduced the matter. In his Second Reading speech the then Deputy Costello recommended that we should set up a law reform committee in order to examine different types of Bills of this kind and to advise as to what reforms they thought necessary in the common law. The Government of the time was actually engaged in that; we were thinking of this thing and had it under way, but there was not quite time to have the thing done and, unfortunately, it was not quite set up when the change of Government took place. I certainly thought that when he was so keen on it the Taoiseach would have gone ahead with that idea and set up a law reform committee. The Bill was actually drafted before I left office. I referred to it on that occasion, but unless I am mistaken it was not the same Bill as the Minister has introduced now. He said this one was more comprehensive; it may deal in more detail with joint tortfeasors, but it leaves out an important feature of the Bill which was introduced in 1941. As a matter of fact, I thought that the Bill we had prepared included Section 2 of the original Bill and other items that required to be dealt with. Section 2 was a very important section of the old Bill, but some of the ladies must have got after either the Minister or the Taoiseach, because Section 2 of the Bill read:—
"The husband of a married woman shall not, by reason only of his being her husband, be liable—
(a) in respect of any tort committed by her whether before or after her marriage, or in respect of any contract entered into, or debt or obligation incurred, by her before the marriage; or
(b) to be sued, or made a party to any legal proceedings brought, in respect of any such tort, contract, debt, or obligation."
There is no reference whatever to that in this Bill.
It should be a separate Bill.
The intention is to incorporate that in a completely separate Bill.
I am a layman, as is the Minister, and I admit that this is very technical, but in so far as I understand it, it is a desirable amendment of the law.
From the point of view of married men, anyway.
A person said to me: "Whatever else I am held responsible for in regard to my wife, I should not be held responsible for her tongue." It is bad enough to be responsible for one's own tongue and we often say things that we are sorry for afterwards, but if we are to be responsible for our wife's tongue as well it is a very bad thing—though it is not a thing that I am worried about personally. I thought, perhaps, that undue pressure had been brought to bear on the Minister or the Taoiseach to get them to mend their hand in that respect.
I was abused here by the then Deputy Costello at the time and he accused me of breaking my word in not producing the Bill I had promised. He was a large factor in that himself, because he undertook to come to the office of the Attorney-General to help him in drafting the Bill so that the points which he and the then Deputy McGilligan had in mind would be covered, and he did not do so for 18 months. Therefore, he had responsibility for the delay. After these years we get part of the Bill that was introduced in 1941, so I am entitled to say, I think, that he was not so very keen on it and was talking with his tongue in his cheek when he accused me of breaking my word. I actually did not do so. We thought it would be a good idea and a help to the Minister—I would say a help to the present Minister, a help to a layman who is not a member of any branch of the legal profession—to have the advice of a good, competent law reform committee. It is a pity that the Minister and the Taoiseach himself, who advocated it so strongly when he was a member of the Opposition, did not see fit to go ahead with it. We were kept back by one of the usual finance stalling actions that prevented it from being set up by the time I left office. We were on the very point of launching it when we went out. It would have helped the Minister considerably, because I am sure that there are any amount of other things in the law that require reformation and he would be well served by a good, competent committee such as the one we had intended to set up. He has all the papers in his office. We are certainly not opposing this measure.
I will be very brief. The feature of the Bill I welcome most is that which provides redress, as stated by the Minister, for the plaintiff who unfortunately elected in the case of joint tortfeasors to sue the worse mark of the two from the financial point of view. To the knowledge of all of us very many hardships have been inflicted in the past on successful plaintiffs who could not recover damages. From the practical point of view the biggest thing the Bill does to my mind is to end that situation and that is the thing which will affect the most people.
I think it is a good thing, too, that the possibility of collusion between plaintiff and one or two defendants is ended by the Bill. Deputies may think that that was something that did not come within the realm of probability very often but many Deputies in the House will be aware that you had the possibility of the prospective plaintiff making an arrangement for a certain sum for damages with an insurance company representing one of the defendants and agreeing with that insurance company that proceedings would be initiated against the other defendant but that in the event of its being unsuccessful against the other defendant they would be compensated to the amount agreed upon with the party first approached. Deputy Peadar Cowan says that it is very seldom that that happens. I think that there are other Deputies in the House who know that that type of thing happened frequently. It was an abuse of the ordinary process of the law and it is well that it should be ended. The Bill puts an end to an anachronistic position and for that reason it should be welcomed also.
Deputy Boland referred to the Law Reform Committee. It may not be strictly relevant to the Second Reading of this Bill but I wonder if the Minister could give us any indication, when he is replying, of the prospect he can hold out of the ending of similar anachronisms in other branches of the common law. I do not know to what extent the Law Reform Committee is working at the moment at all. Apart altogether from this Bill, if it is permissible for him to do so, I should be glad if the Minister would refer to the position generally.
I should like to join with Deputy G. Boland and Deputy C. Lehane in welcoming this Bill. It is noticeable that this is, I think, one of the very rare proposals for law reform which we have introduced into this Parliament since 1921. As the Minister indicated in his opening speech, much of our common law and much of the law under which relations between our citizens are regulated to-day has been inherited from older days, with notions and principles that have really very little application in modern times. The British common law, which is our common law, has been amended and changed radically by the British Parliament over the past 25 years. In that same period it is unfortunate that we in this country have taken no steps to regulate and bring into accord with modern conditions the principles of the British common law. In England the whole property law was changed in 1925. We still operate an antiquated and feudal form of property law. In England also the particular proposal with which we are dealing here—and other matters with regard to torts generally—has been amended by the Law Reform (Miscellaneous Provisions) Act, which is a very notable statute introduced in the British Parliament.
It may be of interest to certain Deputies in this House to learn that in the British Parliament there exists a Parliamentary Law Reform Committee under the chairmanship of Sir David Maxwell Fyfe. That committee is composed of practising lawyers and people interested in social conditions who are members of the House of Commons. Of course, there is a far larger membership of the House of Commons than there is of this House. However, the purpose of that committee is to ensure that law reform is kept abreast of the times and of current difficulties in Britain. Accordingly, many of the things that irk us here in our legal system have been remedied by statute in Britain. It is a very serious black mark against our Oireachtas that, while our volume of legislation, comparatively speaking, is quite great for a small Parliament, we have never bothered about the things that really matter to our people. The ordinary legal principles that govern our people's relations as citizens one with another are something that, apparently, very seldom, get our attention here.
Irrespective of Parties, Government or Opposition, irrespective of the political views which any of us may hold, I think a great tribute is due to our present Taoiseach. I am not certain, but I think that he is the only Deputy who ever introduced a Private Bill into this House aiming at law reform. His Joint Tortfeasors Bill, introduced in 1941, was the first step in law reform which was taken by this Parliament. It is regrettable that that first step should not have come to fruition until ten years later. I think that appreciation should be expressed of the work of the present Taoiseach and of the step which he took in those days when he was Deputy Costello and the foremost practitioner at our Bar.
I want to say, with regard to the Law Reform Committee—and I hope that members of that committee will not take offence at what I am going to say—that I have no faith in law reform committees the membership of which we do not know much about. I am sure that they consist of very able members of the Department of Justice, very skilled lawyers. However, they are men who, by reason of their official position, are not practising lawyers in touch with the difficulties that are met each day in our courts. This is a small measure. It is only one fraction of the law reform that is needed in this country. It seems extraordinary to me that this measure should have taken ten years to come from the Law Reform Committee. It also seems strange to me that that committee has not a wider composition. I know that this particular Bill has been considered by the General Council of the Bar of Ireland and also, I am sure, by the Incorporated Law Society. However, I think it would be far better if we had a law reform committee composed of practising lawyers and people interested in social problems—because the law, after all, is merely a set of rules regulating social conditions. I think it would be far better if such a law reform committee, in touch with current problems, considered the question of law reform in relation to this country.
There are other matters that should be dealt with by Bills of this nature. The question of introducing what is known as the admiralty rule in negligence, in the settlement of negligence claims of torts in our courts, is of vital urgency. In many of the cases tried each day by juries in the Four Courts and by the judges in the Circuit Court, in connection with claims arising out of road accidents or torts of that kind, we are operating under a common law set of rules dealing with negligence which is quite out of keeping with modern conditions and the requirements of our times. The apportionment of negligence has been statute law in England for many years now. I think that that matter should, and I am sure it does, engage the attention of the Law Reform Committee but I should like to see a proposal in the form of a Bill introduced here. There are other matters also such as the complete reform of our law with regard to married women and the Married Women's Property Acts. They require the urgent attention of the Law Reform Committee and of this House. However, the measure before us is the first step and it is welcome. I hope and feel sure that this Bill will be followed shortly by a number of similar Bills which will rectify incongruous rules at present applying in our law, stop certain gaps and generally bring our Irish law into conformity with the conditions or requirements of the times.
Like the Deputies who have spoken, I welcome the Bill. It is said that the road to hell is paved with good intentions. Successive Ministers for Justice over a period of more than 25 years have put in a very substantial part of that pavement. We have been told, year after year, of the intention to do this, to set up that, to do something else.
Major de Valera
To reduce the cost of living, for instance.
Deputy de Valera may be flippant if he wants to be. The fact is that if one examines the progress that has been made in legislation in the British Parliament, in an imperial country, and compares that with the legislation in important matters in a country that started off with a Republican Constitution, one is entirely amazed. As Deputy O'Higgins has said, in the matter of the law of property, we are still under the old feudal system. I would not mind, but 26 years ago the matter was dealt with in the British Parliament. The British Act is there to be a help and a guide, but nothing has been done in regard to it. I know that when the Minister comes to reply he will tell us that they have set up a new sub-section of the Attorney-General's Department to deal with the question of the revision of the laws. Who is in that sub-section? When is it going to operate? When is it going to produce anything? Will we wait for another nine or ten years until that particular portion of this original Bill dealing with married women will be introduced?
I know that the Minister has the best intentions in the world in regard to it. I know that his predecessor had the best intentions in the world with regard to these matters. Intentions are no good. This House has been unduly patient. Our judges and lawyers and the public generally have not thrown enough effort into this matter of having our laws brought up to date. I am glad that the opportunity arises on this Bill to make those observations.
Deputy O'Higgins has thrown out a very useful suggestion, that there might be formed in this Parliament, from amongst those who are competent, a law reform committee which would keep an eye on progress made elsewhere, review legislation that we know is antiquated and out of date and suggest and, perhaps, draft legislation. I hope the Minister will be instrumental in bringing about the formation of such a committee. I think I speak for a number of people in this House in saying that they would be prepared to co-operate in every way in making a success of such a committee. Apart entirely from this question of law reform, which is vital and necessary, there is the matter of what I might term law revision, codifying statutes.
The Deputy would be nearly committing a tort if he were to proceed along those lines.
I will not do that. I only want to make that particular point, that it is necessary also to have our legislation codified and I do not see any difficulty in the way. If there is a will to do it, it will be done and done quickly and, as far as this House is concerned, there will be no delay in putting through any measure that has been handled in the first instance by a competent committee.
I, like the other Deputies, welcome this Bill. We hope that it is the spearhead, the first step, in bringing about this long-awaited law reform. The Minister can count on the co-operation and assistance of the House in any steps he takes to bring about law reform.
Major de Valera
A Bill of this nature is not a matter of urgent national importance. My first reaction when I saw it, in present-day circumstances, was that surely we could have more urgent and useful business to do than this. Nevertheless, from another point of view, I suppose this type of reform is of some importance but this, in a sense, is a very, very trifling bit of law reform. In saying that, I am not in any way minimising, or throwing aspersions on, the arguments advanced, for instance, by Deputy O'Higgins, as to why such a Bill should be passed. It is desirable, in fact, that such a change should take place but it is a relatively minor thing and one's first reaction to it is that, with so much of importance to be done, it seems to be trifling, fiddling while something is burning, to be dealing with this sort of thing. However, it is here now and we had better deal with it. I am a bit disappointed that, if we are going to deal with law reform, such a trifling and relatively unimportant matter of law reform should be able to come here for consideration so quickly when there are more urgent matters of law reform awaiting attention. For quite a considerable amount of time we have been waiting for a revision, say, of the landlord and tenant code. The delay in dealing with the rent Acts has been the subject of comment already. Apparently, there will not be any amendment of the Rent Restrictions Act for quite a long time. There are other aspects of landlord and tenant law that, under present circumstances, are urgently compelling attention and even in priority to such a Bill as this there is the matter which Deputy O'Higgins mentioned—I am glad he did mention it—the question of contributory negligence.
We will admit that the reforms that are suggested in this particular Bill have a case to be made for them. The Minister has made the case. This Bill in fact is, in our particular way of doing the job, largely enacting a reform which was enacted in England providing for a modification of the old common law rule in regard to joint tortfeasors. That was effected by statute in England a considerable time ago. You do meet an odd case—I think I heard Deputy Cowan say that he questioned whether the practice of collusion was a regular one. I think he said it sotto voce but I think he did question whether there was any abuse.
I do not think it happens.
Major de Valera
I agree with the Deputy. An odd case turns up, but where a plaintiff gets competent legal advice it is very infrequent indeed that a gross injustice occurs because of the common law rule in regard to joint tortfeasors. In fact, there is, perhaps, a case to be made the other way. I know the Taoiseach introduced this Bill and it was seconded by Deputy McGilligan, both of them lawyers, and they were probably taking the point of view that was adopted in England in the arguments that were put up here. I am not sure, if we were to stand back and forget England, that we might not look at it in another way.
Why should you come to the relief of a person who is a tortfeasor, anyway—by contribution? If they are wrongdoers in principle, for a start, why come to their relief? I am not going to develop that argument in detail for the reason that probably on the balance of that argument there is a case to be made for this Bill and I think we should take it. But I think it is a pity, if we are going to deal with law reform, that we do not do what Deputy Cowan or Deputy O'Higgins suggested, and that is to get down to really urgent law reform, down to things that are socially necessary.
Deputy O'Higgins mentioned landlord and tenant and contributory negligence. For the odd case where you may have complications because of the common law rule, because of the joint wrongdoers that may turn up, you have in questions of negligence an issue that has been causing a considerable amount of trouble, even quite recently, owing to the fact that our legal system has turned what should be a pure issue of fact into a sublimated issue of law. In the Irish Law Reports you have one whole issue devoted to a case dealing with who is to be blamed in a running-down action. There is a matter where I would commend the Minister to take action.
This is a Bill we should not delay on. It is a relatively trifling one. The question of procedure in regard to law reform has been touched upon. The suggestion has been made to appoint a committee of the House to consider law reform. There is a practical difficulty. I am not quite so sure whether the Minister will not get the best service through the machinery of his own departmental officers. They can easily get in touch with the practice side of it. The difficulty is the amount of work and the time involved for a committee to do the job properly. I happen to be one of the members dealing with a Consolidation Bill at the moment, and I am convinced from experience of that Bill that it would be almost impossible for an individual Deputy to deal with a reform or a consolidation matter in the thorough way that a departmental committee can deal with it. The question of external consultants is another matter. I agree with Deputy O'Higgins that it is largely a question of balance. I am not sure that we have a solution yet, but perhaps the best method is the method which the Attorney-General has adopted, namely, consolidate what you have, first, where you have a mass of statute law, and on that build your reforms.
I think I am trespassing very much beyond my proper domain and if I do appear to have a cold welcome for this Bill it is not that there is anything wrong with the Bill or that reform is not desirable. It arises out of a sense of disappointment that we cannot be doing something more socially worth while. There is a sense of disappointment that here we have a Government dominated largely by lawyers and you would imagine that if law reform were to come that there would be some direction from them and that there would be some practical change in the law in relation to big things such as landlord and tenant. We have not got that and I must confess my disappointment.
There is one point I would like to refer to in connection with this small measure. While I welcome the measure for what it is worth, still, as Deputy de Valera said, I do not consider it any great advance towards law reform. There is one thing I can see in it and that is that it is likely to bring further grist to the lawyers' mill because, in certain circumstances, there will now be two actions instead of one. Naturally, that will be to the benefit of the legal practitioners. If a plaintiff fails in one instance he can bring an action against the second joint tortfeasor. Is that not correct? If a plaintiff fails in one action for damages against one tortfeasor, or if it turns out that that tortfeasor is not a good mark, that he has nothing and that no damages can be recovered from him, then the plaintiff can proceed against the second one, or there is a contributory right. Therefore, there can be more than one action.
The Deputy has got it all wrong.
I have not. I would like to hear the Minister on this.
Ask your neighbour —he will tell you.
Major de Valera
We will have it all on the Committee Stage.
I understand in any case that in this measure we are bringing the law of tort into line with the law of contract. I do think that is a desirable thing to do.
When I suggested taking the Second Reading of this Bill to-day, I thought we would get through it in a matter of 20 minutes.
You have not been very long.
I am answering the charge that we introduced something that should not get priority over other urgent matters. I am not going to delay the House in replying to the various questions raised but I must reply to some of them. On the point raised by Deputy Kissane, will he please read paragraph 3 of the memorandum and he will get his answer there? There is no use in my wearying the House in reading the matter out. The Taoiseach has urged, since this Government was formed, that not only this Bill but various other matters of law reform should be introduced. I want to assure the House that, so far as I am concerned, even though Deputy Cowan may smile and say that the road to hell is paved with good intentions, I have proceeded as quickly as possible in these matters. This is only the first of these Bills. A number of other Bills of a similar nature are ready and will be introduced in a short time, such as the Married Women's Status Bill, the Intestate Estates Bill, a Fatal Accidents Bill, an Arbitration Bill and so on. There are six or seven ready to be introduced.
Does the Minister say an Arbitration Bill?
Thanks be to God.
If I am to be challenged every time I bring in a Bill with the statement: "You should not have brought in this Bill, you should have brought in the other Bill," it is not much encouragement.
So long as you are bringing in some Bill, we do not mind.
As I say, it is not much encouragement if I am met with an attitude of that kind. The Government has to approve of these Bills but you can take it that they will come before the House fairly speedily and I do want the House to assist me in dealing with them. On the question of the law reform committee, Deputy Cowan mentioned what I had stated in the Seanad, that we have a special branch of the Attorney-General's office to deal with this particular matter. It was to relieve the parliamentary draftsman's office that this special branch was set up.
Will the Minister indicate who is in that branch?
I think it is as well not to.
I think you can take it that it is working.
Is it dealing with statute law or law generally?
It is engaged on statute law revision, consolidation and so on. It is a special division to deal with statute law revision and consolidation leaving the parliamentary draftsman free to deal with the ordinary day-to-day legislation.
Can the Minister say whether they are considering company law?
Every single one of these branches is under consideration. As I have said I do not wish to delay the House. If there are any changes to be made, that is a matter for the Committee Stage. Deputy C. Lehane referred to the great hardships that exist and said that this was the first step in a practical way to get rid of them. Deputy O'Higgins suggested that we might establish a committee composed of members of the House. I do not think that would work very satisfactorily but, however, it is a matter that could be considered. I know there are some Deputies who are great workers but I do not think it is fair to put this obligation on them. However, it is a matter that I shall take into consideration and see what we can do in that respect.
You would certainly give a headline to other Ministers.
In regard to the Rent Restrictions Act, which has been mentioned, I think everybody should commend the committee for the speed with which they are trying to deal with that particular question. Anybody reading the evidence can see that it is not just as easy to deal with the matter as the Opposition would suggest, that there are very serious factors to be taken into consideration and that no Government, unless there was a complete dictatorship, could undertake to proceed one way or the other without having all the facts before it. However, this Bill represents a good start. We shall, as quickly as possible, bring the other measures before the House, and I hope that when I introduce the next Bill, I shall not be met with the taunt that I should have brought in another one instead. I hope that each measure will be taken as a token of our endeavour to deal with the reforms necessary in the existing statute law.
Major de Valera
This Bill might need some qualification in this section and I recommend the following to the Minister for consideration. The section reads:—
"The recovery by a person (in this section referred to as the injured person) of judgment against a tortfeasor (in this section referred to as the original defendant) for damages in respect of an injury occasioned by a tort shall not be a bar to an action by the injured person for damages in respect of that injury against any other person, whether that other person is or is not alleged to be liable as joint tortfeasor with the original defendant."
It seems to me that some restriction might be desirable there. It means that a person can take an action against anybody allegely in respect of a tort, that is, of a civil wrong, and if he fails in that, he can proceed against another person. Look at it from another point of view. Is it a desirable thing to give a prospective plaintiff such a wide choice in the beginning? Is it, in practice, not going to lead to a certain carelessness, perhaps, in the launching of an action, particularly in the case of a particular kind of action? If an action is started and fails, another action may be brought against, as it is stated in the section, any other person,
"whether that other person is or is not alleged to be liable as joint tortfeasor with the original defendant".
Read the first two lines of the section.
Major de Valera
"The recovery by a person (in this section referred to as the injured person) of judgment against a tortfeasor."
That is where he wins.
Major de Valera
Quite. I will have to start to relate it to the whole Bill.
This is only intended to deal with a case where you cannot recover judgment.
Major de Valera
If you cannot recover judgment, is that not placing you virtually in the same position as if you lost?
At present you take your action, something happens and you forfeit your right to sue.
Would it not mean two actions?
Major de Valera
In effect, you lose your action if you cannot recover. Then you go on with a second action. The result is that you have a multiplicity of actions. It is relatively immaterial to a plaintiff as to which defendant he starts an action against.
Major de Valera
Because he can go at the other fellow again.
He has lost all his money in doing so.
It is the defendants who have to pay.
Major de Valera
What is usually done in these cases is that you sue both. Up to the moment of recovering judgment you are all right, that is up to execution stage.
Read Section 3.
Major de Valera
I will have to go into Section 3 about that. That is my difficulty in confining myself to the section here. I cannot see why you deal with the stage of recovering judgment because you can still always do what was done heretofore, and that is join everybody. You do it at a certain risk of having one or other of them dismissed. Would it not be better to provide an amendment dealing with it that way: that, whereas this does certainly meet the point that has been put up, does it, on the other hand, go a little bit too far in the opposite direction? I still feel that, instead of doing it in this particular way, if you were to deal with the execution stage and, if necessary, provide against the costs of failing against a defendant, it might be a better provision than this particular mode of attack which, as far as my recollection goes, is the mode of attack adopted in the British Bill.
I hope that the Minister will now appreciate the force of what I had to say on the Second Reading because it seems to me that a Committee Stage discussion of matters of interest to lawyers only is quite impracticable in this House. The various matters referred to by Deputy de Valera which can arise on this section and on Section 3 are of considerable interest to lawyers, and could be discussed here ad nauseam by the Deputies interested in them. For that reason I did suggest on the Second Reading that it would be of assistance if these various matters could be discussed by lawyer-Deputies before the Bill was introduced in the House. I do not think that a discussion in Committee on a purely legal Bill can be considered in the same way as a discussion on Bills of a different kind. I think that the swopping of views by Deputies interested in matters of this kind can be quite fruitless. I would suggest to Deputies that they should regard this Bill as being something more than a bit of legislation. It is a Bill containing a principle which was suggested in this House in 1941, and which was referred to a special committee, then to the Law Reform Committee and eventually it comes before us in Bill form ten years later. That is a point which all Deputies should consider. They should realise that each proposal in this Bill has been studied very carefully and its repercussions considered.
I have read the Bill carefully, but I do not want to say that I would be prepared to support every line and comma in it in absolute confidence. I have no intention of discussing the Bill from the legal point of view. All of us, whether lawyers or not, know well of cases where an action has been taken by an unfortunate injured person against a particular defendant. Some fatality of that kind may have taken place with regard to a particular case, and the injured person has been unable to collect the amount of compensation which the court declared he was rightfully entitled to. If his action had arisen in such circumstances that two or more people caused him damage, as the law stands to-day if he goes into court and sues John Jones or anybody else, he has to elect to make John Jones his paymaster. If, by reason of something that happens, he cannot recover from the defendant he is deprived of all right of action against anybody else. This Bill attempts to cure that. It only applies to successful actions because it is only there it could arise. Section 3 ensures that no injustice, such as Deputy Kissane has in mind, could possibly arise. I suggest to all Deputies that we might regard the provisions in this Bill as provisions which have been arrived at after considerable thought and research by the members of the law reform committee. It is not going to be fruitful if we attempt to parse each line and section of the Bill, and I think we could let it go at that.
Major de Valera
It is not often that I find myself in general agreement with Deputy O'Higgins. I do agree with him in regard to what he said as to the futility of our going into these matters in detail. There is a great deal of force in his argument that this Bill has been specially considered. Nevertheless, we have our responsibilities in these matters in this House, and, when a Bill comes before us, we should discharge that responsibility. I quite realise that the approach which I have suggested to this section would mean a radical change in the Bill. It is not a change which could be easily dealt with by way of amendment. For that reason, I do not want to pursue my own attitude on this as it is a relatively unimportant matter, but since it is before us it should be done properly.
The only criticism is that there can be a multiplicity of actions. That possibility is there and my purpose in getting up was to bear out what Deputy Kissane said in that regard, since he was challenged, that it was possible to have a multiplicity of actions under this and the question arose as to whether that was a desirable course or not. I think that will be conceded now. Beyond that, let us hope that the bringing in of a Bill of this nature will not lead to too much litigation. The trouble about law reform Bills generally, especially when they are taken in this way, is that they tend to bring about litigation, which is not so good for the community. In this case I think there is that danger and that danger arises under this section.
With regard to the point made by Deputy Major de Valera, it appears to me that it is very desirable to have a multiplicity of actions with the result that justice ultimately will be done, rather than to have just one action which is in effect unsuccessful and therefore results in injustice.
Look at all the costs.
If you are going to regard a multiplicity of actions as an evil, I think it is clear that the plaintiff's failure to recover in the first action is also an evil and, consequently, taking this at its worst, you are choosing the lesser of two evils in adopting the machinery given by this section rather than allowing the law to remain as it is. There may be some method, for further examination, of curtailing the number of possible actions, but, facing up to the realities of life as we know it, I do not see that there can be such a very great number of actions, that the number involved would be a real evil. If there were three actions it would be about the limit, I think, in 99 per cent. of the cases that we can visualise. Therefore, I suggest that there is not the weight in the point made by Deputy Major de Valera which, at first blush, might appear to be there.
I am afraid that some of the Deputies who listened to me on the Second Reading did not grasp the point I was driving at. When I said that there could be more than one action or a multiplicity of actions, as Deputy Major de Valera said, I had in mind a case where the plaintiff would be successful.
You said unsuccessful.
I said successful.
I thought you said unsuccessful.
No, successful, and that it would be found that after being successful no damages could be recovered from the named defendant. Another step in the same action is to have a joint tortfeasor named as defendant and damages recovered from him, or if damages could not be recovered from him and if there is another one, well and good. But I understood Deputy O'Higgins to say that that would not increase the costs, that the costs would be the same.
I was referring to sub-section (3).
I would take that to mean the actual costs that would be arrived at in the court.
He is only entitled to costs in the first action.
Yes, but I am referring to lawyers' fees because, when a second defendant is named and there is another step taken, that means a further fee.
A lawyer who advises a man to pay a second fee would not be employed as a lawyer for very long.
That could happen. Even the plaintiff himself could make a mistake in the presentation of his case to the lawyer. That often happens, and the lawyer discovers sometimes when it is too late that that has been the position.
Do you mean as mistake or as misstatement?
It could be. I wanted to make my point clear because I did not want to elaborate on it at the time as I was in agreement with those who said it was a committee matter. Reference has been made to this law reform committee. It is very hard of course to divorce the codification of law from law reform. They do not exactly mean the same thing but they are very closely related. How long is it since this law reform committee was set up in the Attorney-General's office to which the Minister referred?
There was a law reform committee set up which never functioned. This is a section in the Attorney-General's office and is only about three or four months in operation.
That is news to me.
The law reform committee which was established never functioned.
I thought the Minister was referring to that.
It was never actually constituted.
I came to the conclusion that the Minister was referring to the codification committee which was set up in that Department more than a couple of years ago.
There was a law reform committee set up.
As a result of the joint report submitted by the Dáil and Seanad. That step was taken for the purpose of codifying statute law, and statute law only.
It never functioned.
There is codification going on at present. There is a committee sitting on it.
I want to make sure that that was not the committee we were referring to when discususing the law reform committee. I should like that point to be made clear.
The committee set up by the joint members of both Houses never functioned. There was an order for the committee and it did not function. We then adopted this new method of setting up a separate section of the Attorney-General's Department to deal with the whole matter efficiently.
We may then expect something out of it.
That is so. Things are now moving rapidly. I do not think this matter, however, arises on this section.
It does not.
Major de Valera
On the Bill, perhaps the House and the Chair would permit me to trespass a little beyond the limits. This Bill is a step in law reform. It is a trifling step.
I do not think the Deputy should deal with that. It is not so very trifling.
Major de Valera
There are other matters which I would like to take this opportunity of urging upon the Minister. If he will look at the Irish Reports, 1949, at page 91 and subsequent pages, he will find a good deal written there as to what should be a simple issue of fact and a simple question of determination as to who is to blame for damage caused. As a result of a long series of judicial decisions this has now become a highly complicated and technical question of law. The result is that a very common form of action has become a hazard for the injured party and a gamble for the litigants. It is wrong to have our law in that position. It is wrong that one should read in a judgment where a judge with the voice of common sense says one thing but must come to a different conclusion having regard to the law. When the law gets to that stage, as it sometimes does, after a long train of decisions, one grafted over the other, there is only one cure; that cure is speedy legislation. If there is one case for law reform apart from landlord and tenant and social legislation, that case is contributory negligence. I might mention that that has also been dealt with in England. Let us hope that this Bill is the forerunner of more substantial contributions in the future.
Following on the line taken by Deputy Major de Valera, in at least eight courts every day in the City of Dublin cases are decided in actions turning upon negligence. The lawyers engaged in these cases, the litigants and the judges have said time and time again that they are operating a system of common law which inevitably works injustice to litigants and to citizens generally. That situation has arisen as a result of legal sophistry over the centuries. Its effect is now being felt in our common law. It is something that cries out for immediate reform.
If that situation has arisen, who has brought it about? The answer is the lawyers.
It is the lawyers who have created that situation.
The Minister is quite right.
Major de Valera
You are on weak ground there. This is a lawyers' Bill.
Both Deputy Major de Valera and Deputy T.F. O'Higgins have a profound knowledge of this. I challenge them to bring in a Bill forthwith dealing with the matter, and nobody will render them more assistance than I will.
Will we have the Minister's support?
I think this Bill is a useful one. It is very far from being a trifling Bill. I trust it will meet the object for the purpose of which it has been introduced. I think it will do that because it has been considered very carefully. If every Bill is to take nine years it will be a poor lookout.
We will all be tortfeasors then.