Private Members' Business. - Courts Bill, 1971 [Seanad]: Second Stage.

I move: "That the Bill be now read a Second Time".

The Bill provides for increases in the civil jurisdictions of the Circuit Court and the District Court. It also provides for a number of other important matters relating to the courts such as giving the courts power to award deserted wives and the mothers of illegitimate children substantially greater allowances than at present, extending the right of audience of solicitors to all courts, giving district justices power to arrange for the speedy disposal of certain urgent cases of summary jurisdiction and improved arrangements for the service of court documents.

The present monetary limits on the civil jurisdiction of the Circuit and District Courts have with minor exceptions been in operation since 1953 when the original limits as fixed by the Courts of Justice Act, 1924, were increased under the Courts of Justice Act, 1953; the increases were made mainly to compensate for the decline in the value of money. The Committee on Court Practice and Procedure reported on the question of increasing the jurisdiction of both courts in their Fifth Interim Report submitted in 1966. The committee unanimously recommended that the civil jurisdiction limits be increased not alone to allow for the fall in the value of money since 1953 but, in view of the desirability of leaving the monetary levels of jurisdiction undisturbed for a reasonable period, to provide for the contingency of continuing inflationary trends over the next 20 years. The committee recommended, unanimously in regard to the Circuit Court and by a majority in regard to the District Court, that there be, in addition, real or basic increases in jurisdiction. The various levels of jurisdiction recommended by the committee and the present levels are set out in paragraph 2 of the Explanatory Memorandum to the Bill as introduced in the Seanad.

The Government accepted the view that new levels of civil jurisdiction should be conferred on the Circuit and District Courts which would represent a real addition to the monetary limits as well as compensating for past and future inflationary trends.

Taking all factors into consideration, the Government were satisfied that the most appropriate levels of jurisdiction would be, in the case of the Circuit Court, a jurisdiction of £2,000 in contract and tort and of £5,000 in equity and, in the case of the District Court, a jurisdiction of £250 in contract and tort. Both courts are fully competent to undertake the proposed new civil jurisdictions; they already have large criminal jurisdictions and these are not, of course, affected by the Bill.

The effect of introducing the new jurisdictions will be that a wide range of actions which would otherwise be heard in a higher court will now be capable of being heard in a lower court. This will be to the benefit of the public in a number of ways. Litigation will be less expensive because costs in the lower court will be less and, in addition, because of the decentralisation of the administration of justice savings in travelling and other expenses of litigants and witnesses will be achieved. Litigation will also be more convenient because of the greater number of actions which will be tried locally. The Bill will help to bring the costs of proceedings more into line with the amount recovered in the courts having jurisdiction. At present many actions where the amount involved is quite small have to be tried in the High Court, because of the very restrictive limit of jurisdiction on the Circuit Court and the costs in the High Court could be out of all proportion to the amount involved.

The Bill provides that the new jurisdictions shall not come into operation until 1st March, 1972; this is to enable the various Rules Committees to introduce new rules of court on such matters as costs,et cetera, which will be necessary as a result of the increased jurisdictions.

I pass now to the provisions in the Bill in regard to maintenance and affiliation allowances. The Bill provides in sections 18 and 19 for the introduction of new arrangements for the determination of these allowances in the fairest possible manner, that is, by direct reference to financial means of the parties concerned. At present the maximum amount which the District Court may order a husband who has deserted his wife to pay is £4 a week and there is no provision for additional payments for the maintenance of any children of the marriage. The maximum allowance which the court may order the putative father of an illegitimate child to pay is £1 a week. These amounts were fixed by Acts of 1940 and 1930 respectively and they have now become quite unrealistic. The Bill proposes to empower the District Court to order a husband who has deserted his wife to pay up to £15 a week for her maintenance depending on his means and on any means the wife may have. In addition it is proposed to empower the District Court to order the husband to pay up to £5 a week for the maintenance of each child of the marriage under 16 years of age.

With regard to the maintenance of an illegitimate child, the Bill proposes to empower the District Court to order the putative father to pay a weekly sum of up to £5 again depending on the means of the father. Provision is also made in the Bill for the conferring of concurring jurisdiction on the High Court but without financial limits both in maintenance and affiliation cases.

Section 17 of the Bill makes provision for the extension of the right of audience of solicitors to all courts in the land. At present solicitors have a right of audience in the District Court and the Circuit Court but, with minor exceptions such as the Bankruptcy Court, they have no right of audience in the superior courts. The provision if enacted will put solicitors on an equal footing with members of the Bar as regards right of audience and will go some way towards removal of the rigid division which exists in the legal profession. I might add that the principle of a right of audience for solicitors in all courts has been supported by a recent recommendation of the Committee on Court Practice and Procedure.

The next section in the Bill to which I should like to refer is section 15. This section provides special procedures enabling a justice to deal promptly with urgent cases of summary jurisdiction such as prosecutions in connection with foot and mouth disease where speed is of the essence. As sittings of the District Court are held in many rural areas only once per month and as justices do not, at present, have power to hold special sittings to deal with such urgent summary cases there may be a delay of several weeks before these cases are brought to trial. This difficulty will be eliminated by the enactment of the proposed provision.

The provision in the Bill in relation to the service of court documents by registered post are contained in sections 22 and 23. Under section 22 a wider range of District Court documents will be capable of being served by post. Under the existing law only documents initiating proceedings and witness summonses can be served by post. It is desirable that documents such as instalment orders, maintenance orders, affiliation orders and summonses under the School Attendance Acts shall also be capable of being served by registered post and provision is made accordingly. The section also provides for the assignment by the county registrar of summons servers to specific areas in a county and in respect of specified documents. This provision will resolve doubts as to the interpretation of section 7 of the Courts Act, 1964.

The provisions in section 23 which relates to the service of superior court documents have two main aims, first, a far greater use of the postal service for effecting service and, secondly, the removal of the requirement for a solicitor conducting litigation in the superior courts to have a place of business within a radial distance of two miles from the Four Courts and for a personal litigant to have an address for service within the same radial distance. The provisions follow recommendations made by the Committee on Court Practice and Procedure in the Eighth Interim Report with the exception that the committee recommended service by ordinary post. However, the Government considered that the more formal procedure of service by registered post would be preferable for a start at any rate.

Some of the remaining provisions in the Bill call for brief comment. Section 6 provides for the abolition of the right to jury in civil actions in the Circuit Court. This right is very rarely exercised as all appeals from the Circuit Court in civil actions, whether tried by jury or not, are by way of complete rehearing before a judge of the High Court without a jury. The proposal is supported by a recommendation of the Committee on Court Practice and Procedure in their Third Interim Report.

Section 13 declares the District Court to be a court of record. This is merely stating in statutory form what is, in fact, the present position. Section 21 of the Courts (Supplemental Provisions) Act, 1961, makes a similar declaration in regard to the Circuit Court.

It is provided in section 14 that the only evidence of a decision of the District Court shall be an order of the justice. This will put the District Court on the same footing as the Circuit Court. At present full particulars of the decision in every case in the District Court are entered in a minute book at the time of hearing. Apart from this procedure being time-consuming, it often results in perfectly good decisions of the court being upset because of minor textual errors which inevitably arise because of the need to enter the particulars hurriedly. The proposal has been strongly recommended to me by the District Court Rules Committee.

Section 21 provides that either the District Court or the Circuit Court may transfer any civil proceedings to the appropriate higher tribunal. At present this power is available only to the Circuit Court. The need for extending the power to the District Court arises from the fact that in proceedings involving a number of wrongdoers the plaintiff may be suing for damages within the jurisdiction of the District Court whereas there may be a counterclaim for an amount which would be outside the jurisdiction of the District Court. The object of the Civil Liability Act, 1961, is that the liability of all parties to an action should be determined in the one action.

The last section to which I should like to refer is section 20. The section will enable a parent to apply to the court for a legitimacy declaration; under the law at present the application must be made by the child. The section also provides that all such applications shall be heard in chambers. This will avoid embarrassment to the parties concerned and unnecessary publicity.

Before concluding I should like, on my own behalf and on behalf of the Government, to thank the members of the Committee on Court Practice and Procedure for the exceedingly valuable work which they have done and continue to do. Many of the provisions of this Bill were framed in the light of reports submitted by the committee. I hope to introduce further legislation over the next couple of years which will be concerned with other matters on which the committee have advised.

I trust that the Bill will meet with the approval of the House.

(Cavan): The object of this Bill, as the Minister said, is to increase substantially in civil matters the jurisdiction of the Circuit Court and of the District Court; to abolish the right of trial by jury in actions in tort up to £2,000; to increase the maintenance which may be awarded to a married woman who has been deserted by her husband or whose husband has failed to support her; and to grant to solicitors a right of audience in all the courts in the land. Broadly speaking, these are the major provisions of this Bill. The Bill was introduced in the Seanad and it is, I think, an example of the kind of Bill that can usefully be introduced in the Seanad. Without trying to be in any way patronising, I would say that the Bill got a very useful debate in the Seanad.

Hear, hear.

(Cavan): It left the Seanad—I hope the Minister will not mind my saying so— considerably improved.

Hear, hear.

(Cavan): The general tone and trend of the debate in the Seanad was what one would expect from a deliberative assembly. I hope we will have the same sort of debate here and that the Minister will continue to be in the same receptive frame of mind in which he was in the Seanad. The last measure here in which the Minister and I took part resulted in a rather protracted debate. The Minister was not receptive. However, we will leave that alone.

There is provision in the Bill to increase the jurisdiction of the District Court and the Circuit Court in tort, in the Circuit Court from £600 to £2,000, in equity from £2,000 to £5,000 and, where the Poor Law Valuation is relevant, from £60 to £100. I believe that these increases are considerably overdue. Indeed, the only question is whether the Minister has gone far enough in increasing the jurisdiction of the Circuit Court. It is based on a report made to the Minister in 1966 and it demonstrates to me, at any rate, how slowly great bodies move.

The greater the body the slower the movement.

(Cavan): It took from 1966 to 1971 to get these proposals transferred into legislation. When I see that the unfortunate Opposition are expected to draft in ten days very involved amendments to a completely new system of taxation I begin to wonder. This is hardly relevant, but it certainly occurred to me when listening to the discussion that just took place here. The increases in the Circuit Court jurisdiction are acceptable to me. My only reservation is whether they have gone far enough. It is desirable and right—I say this, subject to what I shall have to say on the trial by jury system later on—that people should have justice brought to their own locality and should not have to travel long distances in pursuit of justice.

The jurisdiction of the District Court will be increased from £50 to £250 in the commoner type of actions —that is, actions in contract and tort.

It has been increased in various other actions too. I accept these increases but, again, I wonder whether the Minister might not have gone somewhat further. I know that certain branches of the profession might argue against that but any sort of running down action involving any sort of damage to a car, which is the type of litigation most common in the courts, will involve £250.

Taking the Bill section by section, section 13 proposes to declare that the District Court shall be a court of record. This is of considerable importance because it increases the importance of the District Court. The section simply says that it shall be a court of record. That will be a court whose records will be available and whose judgments can work an estoppel in later proceedings. Section 14 is difficult to follow because I cannot see where we will get the records or what record of the District Court will be available. The section provides:

In any legal proceedings regard shall not be had to any record (other than an order which, when an order is required, shall be drawn up by the District Court clerk and signed by a justice or a copy thereof certified in accordance with rules of court) relating to a decision of a justice of the District Court in any case of summary jurisdiction.

Perhaps this would be more relevant on the Committee Stage when we will deal with the Bill section by section.

(Cavan): I do not propose to go into any great detail. I merely want to put the Minister on notice in the hope that he will introduce amendments on the Committee Stage. References of this kind can sometimes be very helpful. The order has only to be signed if required. The Minister said in the other House that in only about 1 per cent of cases will the order be required immediately. How is the record to be produced if it is not entered in some book? I understand the intention is to do away with the justice's minute book. If that is done there will be no record available. There should be some record which can be used ten, 15 or 20 years hence if a record of proceedings in the District Court are required. I would like the Minister to look into this before the Committee Stage.

Provision should also be made for the registration of judgments of the District Court now that it is to be a court of record similar to the provision in the Circuit Court (Registration of Judgments) Act of 1937. Under that Act Circuit Court judgments can be registered. Provision should be made also for converting judgments of the District Court into judgment mortgages because they can be very useful. I do not think any of these matters have been dealt with in that section.

Before coming to that perhaps I should have dealt with the section which proposes to abolish trial by jury, section 6. This is of considerable importance. There is a fundamental principle involved. I believe we should hold on to trial by jury in actions where there is any serious matter at stake and an action involving £2,000 is, to my mind, a serious action. I say that because judges like everybody are human and may have likes and dislikes. They can be honestly prejudiced in favour of plaintiffs or defendants. The trial by jury system has worked well and given reasonable satisfaction. Juries in their own way have always brought in verdicts based on common sense and rarely caused much dissatisfaction.

As I see it the case the Minister seeks to make in favour of the abolition of the jury system in the Circuit Court is that (1) it is rarely used at present; and (2) that appeals from the verdict of a jury in the Circuit Court would be by way of new trial to a judge without a jury. I agree that the system is not used to any extent at present and that an appeal from the verdict of the jury in a Circuit Court as the law stands would be to a judge without a jury. But I should like to bring the Minister back some years.

In the 1930s trial by jury in the Circuit Court was availed of very considerably in actions for negligence and other actions where it applied but at that time the appeal was not to a single judge by way to retrial but to two judges on the notes taken in the Circuit Court. You could only get a retrial, as you do now in the Supreme Court on appeal from the High Court, if the verdict was against the weight of the evidence or if the law had not been applied.

In 1936 that was changed somewhat and the High Court on circuit was introduced. Then the appeal from the verdict and jury was for the first time to a judge by way of a new trial instead of to two High Court judges on the notes. I suggest to the Minister that it was not the public who killed trial by jury in the Circuit Court nor was it that the legal profession did not approve of it; it was the legislators who killed it by enacting that appeals would not be on matters of law only but would be by way of complete new trial. In the position in which we find ourselves under this Bill when we will have substantial issues being tried in the Circuit Court and where we are increasing Circuit Court jurisdiction from £600 to £2,000 in the type of action I am talking about, I say the Minister should preserve trial by jury in the Circuit Court and that the appeal should be direct to the Supreme Court on a transcript of evidence only.

If the Minister does not agree with that he can have an appeal to the High Court but let it be on the transcript of evidence only and let there be a new trial only if the trial judge has not properly conducted the trial in the Circuit Court before himself and the jury, or if the verdict of the jury is obviously perverse or obviously against the weight of evidence or if there has been some other fault in the trial.

I do not want to delay the House unduly on this aspect of the Bill but there is a question of principle involved. Despite what the Minister said, I believe the abolition of the jury system in the Circuit Court is the thin end of the wedge. I know the Minister will not agree with that but I believe it and I further believe that the argument that it will speed up trials is not valid. Trials can be speeded up in other ways. For example, you could have, as there is in England and elsewhere, an effort to agree medical evidence, an effort to agree professional evidence of one kind or another. If that were done you would speed up the trial and reduce the costs and expenses involved. We all know—I shall come to that later—that professional witnesses can add considerably to the cost of a trial both in the Circuit Court and in the High Court. That is my suggestion regarding trial by jury.

The right of audience by solicitors in all courts is something which naturally, as a member of the solicitors profession, I welcome. It is considerably overdue and I believe this section of the Bill should come into operation on the passing of the Bill although I shall urge the Minister that certain other sections should not come into operation even on 1st March but should go back a bit. There is no reason why the section giving solicitors right of audience in all courts should not come into operation at once.

The case has been made that solicitors have a right of audience in the Circuit Court at present and that they do not avail themselves of it very often. That is true but I am glad to say that when I was younger and more ambitious and courageous than I am now, I conducted a number of defences in the Circuit Court before a judge and jury. I think it is a pity that other solicitors do not practice more in the Circuit Court. Might I suggest to the Minister, now that he has taken this step in the right direction, that he would encourage solicitors to appear in the superior courts if he were to declare that a solicitor is qualified to sit on the bench of a superior court. Once he has taken this step forward there is no reason why he should not follow it to its logical conclusion. At present, solicitors are declared qualified by law to be justices of the District Courts, but they are not qualified to hold the position of Circuit Court judges or High Court judges. I say that the Minister should immediately provide that solicitors would be qualified after a certain number of years practice—I think it is 12 years in the case of barristers—to sit on the Circuit Court bench. The Minister should seriously consider that as a first step towards having both solicitors and barristers on the benches of the superior courts.

It has been said and is said from time to time that there is one law for the rich and another law for the poor. It is not justified and the only reason why it is not justified is that any person with a reasonable case can, almost without exception, find solicitors and barristers to take his case up for him and fight it. However, there are cases in which it might not be reasonable to expect members of the legal profession to take up a case because there might be no end product one way or the other. It might be some right the plaintiff wanted to enforce against somebody who was not a mark. I believe there is not much use in talking about having a fusion of the professions or providing that only one counsel can appear in a case in the High Court or Circuit Court until such time as we provide a proper free legal aid system here. It is something that is overdue, something that will have to be tackled and it is something that in a few years time will be taken for granted. In the field of medicine or in other professions people are not expected to work for nothing or work on "spec". Until such time as we have a proper system of free legal aid, as they have in Great Britain, we cannot tidy up the legal profession and the courts as perhaps they should be tidied up.

I am very glad to see that provision has been made for a proper payment to married women who have been deserted by their husbands. The maximum sum which a court could order up to the present time in the case of a deserted wife was £4 and that apparently had been on the Statute Book since 1940. It is high time that was changed. I wish to congratulate Senator Kelly and others of the Fine Gael Party who introduced in the Seanad a Private Members Bill making better provision for deserted wives before the present Bill was introduced. When the Minister's Bill first came into the Seanad it was not nearly so generous as it is now. It provided for an increase from £4 to £7.50. Having congratulated Senator Kelly and Senator O'Higgins on introducing the Private Members Bill I want to now congratulate the Minister on dropping the rather meagre provisions in his Bill as introduced and accepting the provisions of the Fine Gael Private Members Bill or even going a little better.

I am glad to see that the provision for payment by the father of an illegitimate child has been increased from £1 to £2.50.

(Cavan): From £1 to £5 a week. When we realise that the payment was fixed at £1 a week as far back as 1930 we can see how slowly our social conscience moves in this country. It is a reflection on all of us that that figure of £1 a week, which was fixed in 1930, has stood there ever since.

I should like to avail of this Bill to draw a few points to the Minister's attention. There is a provision in this Bill—section 15 I think—which empowers a justice to deal as a matter of urgency with certain offences which the Minister may schedule or prescribe by order. A district justice can hear these offences at a special court and they can be heard on two days notice. I would have enough faith and confidence in members of the District Court to accept that, if an accused person was at a disadvantage because he only got two days notice, a reasonable adjournment would be given; but again I was interested to read the Seanad debate and to see the argument that was put forward for this particular section. It was to deal with a situation that arose out of the foot-and-mouth outbreak—another classical example of the speed with which our Civil Service moves. Perhaps it is not fair to say our Civil Service but another classical example of the speed with which the Minister moves because the foot-and-mouth outbreak referred to must have occurred at least 20 years ago and it is only now that——

(Cavan): That was only a Minnie Mouse one, thank goodness. The big one we are talking about was at least 20 years ago.

I should like to ask the Minister to do something about courthouses throughout the country. They are an absolute disgrace in many cases.

It hardly arises on the Bill.

(Cavan): If we are to house courts and if we are to spend money it is a proper remark to make on Second Reading.

It is another Minister.

It used to be.

Local Government.

(Cavan): There seems to be considerable doubt about that at present.

I am only brought in, all other fruit failing.

(Cavan): At any rate, there are places like Waterford and Wicklow and many other ones that could do with a facelift.

The point was correctly raised in the Seanad that the finding in the Supreme Court inSomebody v. the People and the Post Office should be declared to be the law, in other words the doctrine of the King can do no wrong should be abolished. I was speaking recently to a member of the senior bar who was a member of this House in 1955, although he is not now a member, and he told me that he put down an amendment in 1955 to have the law declared as the Supreme Court has now found it. He was told: “Oh yes, we are going to do that next year, but it would be out of order to do that in this Bill, it will have to be done in a Courts of Justice Bill.” He expected it to be done in 1956 but nothing was done about it until the Supreme Court declared the law this year. I understand, although the Supreme Court declared that to be the law, it might not necessarily be followed by another Supreme Court. The Minister should introduce a section in a bill to declare that particular law.

Another matter which I mentioned to the Minister by way of a Parliamentary Question some time ago, which he would not agree with, is that the interest payable on judgments should be increased. The interest at present payable on judgments is at the rate of 4 per cent and it must be many, many years since that rate was fixed. Now that damages in the courts have gone up considerably plaintiffs can be at a considerable loss, if they are awarded £10,000 or £20,000 damages and there is an appeal to the Supreme Court, which may not come on for 12 months, or a new trial, because they will be paid interest at the rate of 4 per cent instead of 8 or 9 per cent. I know from recent dealings with a case in England that interest seems to be paid there as a matter of course at a much higher rate than 4 per cent from the day of judgment.

When dealing with the increases in the Circuit Court and District Court jurisdiction I omitted to urge the Minister to make sure that this increase, which we accept, will not lead to delays in the District Court and the Circuit Court. There is no use spoiling the ship for a hap'orth of tar. The Minister should look into it as a matter of urgency and, if necessary, appoint additional district justices and additional Circuit Court judges because if, by passing this Act, we are simply going to clutter up the lists of the District Courts and the Circuit Courts and cause frustration by delays we shall not be doing a good day's work.

The Minister will be aware that at the present time there is a very considerable delay in the Dublin Circuit Court. He will also be aware that the Solicitors' Association in Waterford passed a resolution on the 28th October this year deploring the fact that their Circuit Court judge was being taken away from them on a temporary basis to relieve congestion in the Dublin Circuit Court. The Minister should take a serious look at that and do something about it.

In dealing with sections 13 and 14 of the Bill I omitted to say that, in my opinion, the order about which I was speaking should be signed by the District Court clerk or the District Court registrar, if it is thought fit to so call him, rather than the justice because, in some places, this will cause delay if the order has to wait until it is signed by the District Court justice.

I should like to say something about the taxing of costs in the High Court at the present time. It is nearly more difficult and there is nearly more work involved in taxing a bill of costs in the High Court nowadays than there is in fighting the action which gave rise to the bill of costs. It is a most frustrating experience and much of the trouble is over witnesses' expenses. Before the action comes on, the professional witnesses about whom I am speaking have to be assured that they will get certain expenses. The taxing masters, in their wisdom, decide that these expenses are far too high and they proceed to allow lesser expenses. If that was the end of it it would not be so bad but the taxing masters will not certify the bills until receipts are produced for these witnesses' expenses which are, in some cases, about half the amounts claimed. Solicitors then find themselves sending a cheque for the amount allowed to the professional witness with a receipt which the professional witness will not sign. He will send it back saying that it is not the fee he claimed and that it is not the fee he is going to accept. Something should be done about this; there should either be agreement between the various professional bodies concerned or the taxing masters should allow these fees and certify the bill.

There is another farce which I am sure the Minister in his professional capacity must be aware of. If John Smith is a plaintiff and has an action which goes on in the High Court for three or four days and he has to come up from the country for it he is allowed £20 witnesses expenses. The taxing master will not certify that bill until the solicitor produces from the plaintiff, who has been allowed the £20 expenses, a receipt that the solicitor has paid him the £20 expenses, although he has not got it.

One can get that receipt without a cheque.

(Cavan): It is humiliating to be put to that and in some cases one might not get it. I suggest it is putting the solicitor's profession into a humiliating position. I have come to the conclusion that there is as much difficulty, if not more, in taxing a bill of costs than in fighting the action. We have recently had a commission sitting on the status of women. I believe women should be eligible for jury service. I know they are already eligible but they have to apply to be put on the jurors list. The position should be reversed and women should automatically be put on the jurors list unless they wish to be excused. Women are playing a part in public life, they are in the professions and we are told we are only a short distance away from the time when married women will be able to remain on in the Civil Service and in local government employment. If that is so it would be a step in the right direction that they should serve on juries unless they wish to be excused.

In the Seanad the Minister changed the date on which the Bill is to come into operation from 1st January, 1972, to 1st March, 1972. In respect of the increase in jurisdiction of the Circuit Court and the District Court I think that may be too soon. This Bill will become law towards the end of the year and it will then be necessary to have rules and regulations drawn up and for the Minister to see if the courts are properly staffed. I would suggest 1st August as the appropriate date. The 1st March is in mid-term but on 1st August the courts would be on vacation and they would run smoothly into operation in the new sittings.

I agree with the provision that court documents should be served by registered post so far as possible. It is time that the farce of serving documents on town agents was abolished. The documents had to be sent from Limerick or Cavan or any other area to a town agent who served them on the agent, who very often was the same person. The documents were returned by the next post. The procedure whereby documents can be served direct on the individual solicitor at his normal place of business is much better and I believe all documents could be served by post. I think it is the practice now not to appoint summons servers. I read, with a smile, the Minister's remark in the Seanad that if he were to serve all documents by post the income of the summons servers would be affected seriously. I know that would be serious for the Minister because, although the occupation is menial, it is a most highly political appointment in the country——

It was, but there have not been any appointments since 1964.

(Cavan): Most of the people were appointed by the Minister's predecessor and the Minister would be creating a lot of trouble if he tried to sack them. Seriously, most of these people would gladly accept a small gratuity and resign.

On the contrary. Their incomes are believed to be substantial in urban areas.

(Cavan): That is all I wish to say on this Stage of the Bill. There were a number of important amendments accepted in the Seanad and we are grateful for that but there will be a number of amendments to be put down on Committee Stage and I would ask the Minister to give us two or three weeks. When we come to that we do not propose to vote against the Bill.

Among the speakers on this Stage of the Bill I shall probably be the only person who is not a lawyer. It is a technical Bill and it is difficult for a lay person to deal adequately with it. It is obvious from what the Minister said in his opening remarks and from what Deputy Fitzpatrick has said that this measure is long overdue and is necessary.

There is nothing more confusing to the ordinary person than the legal system, whether it be the courts or the legal process itself. This has resulted at times in unfair criticism of the law and of the people who administer and who work within the framework of the legal system. Some time ago I had some Parliamentary Questions down to the Minister about the introduction of a free legal aid scheme. No matter what one might say about the observation that there is one law for the rich and one for the poor, and no matter how one might argue that this idea is widespread, it is true to a great extent that a person's status and financial standing gives him easier access to the law than if he had not any financial standing.

I realise there are many solicitors who accept cases from people who have not financial resources but that is not sufficient. Generally speaking, such cases are accepted only when there is a more than reasonable chance of success. I do not mention this as criticism of the legal profession because I realise they have a lot of work to do and time might not permit them to deal with cases where people have not the necessary finances or which do not have a reasonable chance of success. Therefore, when one couples the ignorance of the ordinary person with regard to the legal system and the general idea that it is necessary to have financial resources in order to pursue a case, one can understand how much confusion exists.

Even the most fundamental aspects of the courts or legal system are hidden from the ordinary person. I do not suggest that is deliberate, but certainly a lot more could be done to make known the entitlements of the people in this regard. I am sure that lawyers' time is often taken up in dealing with the most fundamental and basic queries for information which should be known to literate people, and if that information could be made known to the general public, it would enable lawyers to devote much more of their time to more important and more urgent cases.

This is an aspect of the law which needs to be looked at, an aspect in which people should be educated, because I would hope that we would see, in the very near future, a free legal aid scheme in this country. I am afraid that if it were introduced in the present situation of ignorance of the legal system, a free legal aid scheme would be taken up by people seeking information and seeking guidance on matters about which they should not have to seek a lawyer at all. As a prelude to the introduction of a free legal aid scheme, something should be done about this matter because people who genuinely feel they have a case, that they maybe have a strong case— it is very difficult to convince such people if they go to a solicitor who, in his wisdom and experience, advises them that they have not, that the solicitor acted in good faith. More often than not, such people will go out and say that, because they had not got a cheque book or a wad of notes, the solicitor would not attend to their case. This kind of criticism is all too common and, in most cases, is unfair criticism but it stems from this basic lack of knowledge of the fundamental principles of our legal system.

This Bill, as I said, is long overdue and very necessary. It is difficult for me to understand, as a layman, why the financial jurisdiction of the District and Circuit Courts went by without change for almost 20 years, when one considers the almost complete devaluation of our currency in the same period. I would hope, too, that there would be sufficient personnel available in the District and Circuit Courts to deal with the increased business which is going to accrue as a result of the passing of this legislation. I would be interested to know if the business of the Circuit and District Courts has diminished as the devaluation of the currency has gone on. I should imagine that the courts would be dealing with many more cases in the early fifties than they were in later years.

I welcome any measure which will make litigation less expensive and the aim of this Bill is to do that. I sincerely hope that that will happen because sometimes the ideal of a measure like this does not always come true. The expense of litigation is something that has proved unjust in some cases, not in all, due, in the main, to the very co-operative attitude of the legal profession, or most of the legal profession. I could quote, as one could quote in relation to every profession, examples of non co-operation in this field.

I want to welcome the increase in the amount of allowances to deserted wives. It is very much overdue, and indeed I hope that this matter will be kept under review, not every 30 years or so, but with the same frequency as social welfare benefits are reviewed. There is one point in relation to these allowances, that the maximum of £5 allowance in respect of the maintenance of each child of a deserted wife goes when the child reaches 16 years of age. Here the Minister could copy the change, over a year ago, in the social welfare benefits to widows, who can claim an allowance for a dependent child up to 18 years of age. With the availability of post-primary education, it is now likely that a child will be at some kind of school until at least the age of 18 years, and we should not place the deserted wife in a less favourable position than a widow who gets the allowance for a child up to 18 years of age. I would ask the Minister to let us know if there is any good reason why this allowance could not be continued until the child reaches the age of 18 years, because this appears to be Government policy in relation to certain other benefits.

I welcome also the provisions for the extension of the right of audience of solicitors to all courts in the land. This is a good provision because the situation in provincial towns is that the only people readily available to the public in the field of law are solicitors. It is better that a solicitor in one of these towns could deal fully with a case himself rather than having to wait until he has referred it to somebody else.

I have grave reservations about the abolition of a right to trial by jury in civil cases in the Circuit Court. We should be very slow to limit this right in any way even though, as the Minister has stated, the number of times that this provision has been availed of has been very few, but the fact that it is there is a comforting feature of the system as it exists. I would hope that the reform of the courts and of the legal system generally would continue. There are many other aspects of law reform that are overdue. I assure the Minister that any proposal he may put forward here regarding the updating of the system will have the full backing of this party. We hope to see a system of justice that will be less expensive, that will be more readily available to the people and that will not give rise to the type of suspicions and criticisms that are voiced now. I urge the Minister to continue his efforts in this sphere. I know that he has been considering some form of legal aid and I hope that such a scheme will be introduced as soon as possible.

The attendance here tonight and the possible small attendance that we can expect during the Committee Stage of this Bill might be said to indicate that only legal men will be dealing with this measure. It is not that other members have no interest in the Bill but, rather, that they know very little about it. People outside very often regard the legal system as being a closed shop. I do not know why that situation should exist. Perhaps we might hope for some amendments to this Bill on Committee Stage that would improve certain measures contained in it.

I would like to avail myself of the opportunity to look briefly but generally at our courts. Of course, our courts are independent of the Executive. They are the third arm of the Constitution but at the same time they are dependent on this place for their jurisdiction and, to some extent, for their rules of procedure. The fact that they are a constitutional arm of the State emphasises their importance to us and, perhaps, this is a factor that has contributed to what I would consider an unsatisfactory development in relation to our legal system.

The courts, being, as it were, an organ of the Constitution and being places to which citizens have a right to resort for the purpose of resolving their differences, must be serious institutions and they must appear to be serious institutions. Consequently, their procedures must be formalised with all the dignity and authority that that formality can give; but I wonder sometimes if the formality of our courts has existed for so long that citizens approach the courts with apprehension and, in many cases, in actual fear. The very formal nature of the proceedings in the courts and the technical nature of these proceedings gives the litigant—the person for whom they are designed—a feeling that he is an outsider while those working there are possessed of some peculiar knowledge. I get the impression regularly from members of the public that the courts, instead of being places to which they should be able to resort without any fear, inhibition or apprehension, are places to be avoided. Of course, it could be that the very cost of going there is the reason for these fears and apprehensions, but I shall deal with that question later. A person going to court should be able to go in the same frame of mind as he would approach any other organ of the State, perhaps the Department of Social Welfare or the Department of Labour, but perhaps not in quite such a free and easy manner. The courts have an important position under our Constitution and it is necessary that their proceedings should be formalised. There is that air about them and there is a feeling among litigants that the courts are to be dreaded. It is difficult to see what the solution is. The phrase that comes to mind is an unhappy one, the people's court. That now has an eastern European connotation and we certainly do not want anything like that here.

There is no doubt that the High Court and the Supreme Court, to some lesser extent the Circuit Court, and the District Court to an even lesser extent, all produce this feeling amongst litigants. Perhaps it is a good thing that litigants going into the courts should have a slightly awed feeling towards those tribunals so that their conduct before them will be that much more regular, and their acceptance of the decisions will come that much easier perhaps. It is difficult, I can see, to get a balance. I suppose in the ultimate one has to rely on the humanity of the persons working the courts system. From my own personal experience, the judicial personages with whom I have come in contact have been men of humanity and impartiality. It is the reputation of the system that is, perhaps, at fault rather than the practitioners within it.

This Bill is designed to improve access to the courts for ordinary citizens by making their local courts more powerful and capable of dealing with a greater variety of cases. To that extent it is very much to be welcomed. I have no complaint about the proposed jurisdiction for the District Court and the Circuit Court. I have no doubt that the amount of business in both of these courts will be increased dramatically once this Bill comes into operation. I wonder has the Minister considered all the implications that will flow from these increased jurisdictions?

Let us take first of all the question of the number of judges available in the Circuit Court and the time available to deal with the existing criminal jurisdiction and now the enhanced civil jurisdiction. I think it was in the Minister's reply in the Seanad that I read that there is no delay in the High Court. I agree that, happily, that is so. It is still a long procedure to get into the High Court but there is no delay if the procedure happens to go smoothly. The Minister mentioned that in the Circuit Court the backlog was more or less confined to Dublin. I beg leave to differ from the Minister because it is my experience that a considerable backlog is building up in the different circuits throughout the country. At times this backlog can be eased and some of it cleared.

The backlog is generally caused by criminal business which, of course, has to take precedence. There may be a run of criminal cases in particular sittings for two or three terms. This results in a build-up of civil cases awaiting trial. A special sitting may clear the backlog but the position for the public and for the practitioners is unsatisfactory because there is no way of knowing when the backlog is likely to be cleared, or when a judge will have time to hold a special sitting. It has been my experience that many of the cases comprising these backlogs are settled. It may be a good thing that they are settled, but it is not to be desired that they should be settled in default of the parties getting a speedy trial. That factor eliminates quite an amount of the backlog.

It is unrealistic for the Minister to say that there are few problems in the Circuit Court in rural Ireland. The problems are there and when the enhanced jurisdiction comes into effect it will not be as easy to settle a case where there is £1,500, £1,800 or £2,000 at stake as it is in cases in the present instance where the sum involved may be £150 or £200. The backlogs will remain because, unhappily, the amount of criminal business—and again I am speaking from my own experience in a limited area—is not decreasing, principally because of prosecutions for dangerous driving causing death or serious bodily injury under the Road Traffic Act, a new type of crime in the Circuit Court.

In the District Court I wonder too if there will be complications which were not foreseen by this increase in jurisdiction? In the larger areas a District Court sits possibly three times a month and in some cases four times a month. In most towns it rarely sits less than twice a month. Again, speaking from experience which I would submit is average experience and typical of country side experience, I find that the business of a District Court takes well into the afternoon. The business taking up this time is entirely summary. Occasionally there may be some civil litigation. If that happens the business will certainly go into the late afternoon. Generally the summary cases, that is, Garda prosecutions for lights on bicycles, parking offences, Attorney General prosecutions at the suit of the Garda Superintendent for dangerous driving, petty larcenies, misdemeanours of that sort and minor felonies, take up the greater part of the working day of the District Court in an average Irish town or village.

Unless the sittings of the District Court are to be increased I cannot see under the present structure that there will be time for the district justice to deal with the amount of extra civil business that must come into his court as a result of this increase in jurisdiction. This is a serious problem and it will have to be tackled immediately and arrangements made before this Bill becomes law. Deputy Fitzpatrick mentioned the appointment of extra justices. It seems to me that this will have to be done.

There are some districts I know where there are gaps in the week and where a justice might have two days without a sitting. In some districts by increasing the number of sittings which a justice has to hold, part of the difficulty might be overcome. I would suggest to the Minister that it is a real problem and that the District Court as at present constituted is not geared to handle the extra business that will come to it as a result of this Bill.

I am unable to speak for the District Court office. My experience has been invariably that these offices are run most efficiently. I have never yet met a District Court clerk who was not absolutely and completely on top of his job. I have no doubt that they will be able to handle the increased work but I do not know the mechanics of the District Court office well enough to be able to comment on that. I suggest to the Minister—although I am sure he has done it—that he should have serious consultations with the District Court Clerks' Association, so that when the new jurisdiction comes into effect its arrival will be smooth.

The most serious thing from the point of view of the public is to decide whether or not these changes will make any difference in the cost of litigation and, unhappily, I am afraid they will not. The Circuit Court at the moment is, in my opinion, an expensive court to have to have resort to. Take a decree for, say, £250, which is now going to the District Court but presently in the Circuit Court. In an action which is fought to the stage where there is a decree for £250, the taxed costs of a successful plaintiff, assuming normal witnesses' expenses normal counsels' fees, will be nearer to £200 than to £100 and as these costs have to be borne by the unsuccessful litigant on the other side one can expect that his total bill will be in the region of £250 to £300. One can readily understand why people may be apprehensive of engaging in litigation.

Failure in an action, unless backed by an insurance company, can involve a party in what could be, to him, a crippling sum but yet the issue might have been such that he had no choice but to take the chance of going to law, There are certain legal issues in which it is not possible to forecast in advance the result. All the lawyer can do is make his estimation of the facts and of the law on the situation and give his opinion as to which side is likely to be successful. That opinion may be discounted by the actual proceedings. A witness may present himself badly. The instructions he got might not have been complete. There are various imponderables which can enter into a legal action which can produce a result contrary to what the professional people opined originally and if the litigant is unfortunate enough to be affected by these things he can have a very expensive quest for justice.

I do think that the system is wrong that an ordinary citizen with an ordinary income should have to be put in such financial jeopardy to get his rights. I would echo Deputy Pattison's appeal to the Minister to consider as a matter of urgency the provision of legal aid in non-criminal business. It is an excellent thing to have local courts with a realistic jurisdiction but it is not realistic if it is financially out of the reach of the person who wants to resort to those courts and, as a social service, the time has now come when we should fall into line with many modern States and ensure that no citizen is inhibited or actually prevented from going to court because of fears of the financial implications.

The Minister indicated in the Seanad, or perhaps in his speech here, that the Rules of Court Committees will have to sit down immediately and revise the rules for the Circuit Court and District Court to take account of the increased jurisdictions. Of course, the first thing they are going to have to do or will be pressured to do or will probably do automatically is to look at the costs involved and the argument that the costs will have to be increased as the responsibility of the practitioners are being increased by virtue of the greater sums becoming involved. It is right, of course, that legal practitioners should be paid according to the responsibility of the tasks they carry out but that should not be the sole criterion and in my submission should not be the main criterion. I may be unpopular with colleagues for advancing that particular view but I know it is a view held by many within the professions. It is difficult to establish a yardstick to measure the value of a professional service. Some attempts have been made to evaluate the cost of these things and certain activities in legal offices which one thought were profitable have been shown scientifically to be the opposite and, of course, the reverse has been found to be true also.

So, I would ask the Minister to perhaps consider something more sophisticated than the present Rules Committees when it comes to establishing what should be the cost structure, certainly under the new District Court jurisdiction and, I think, under the new Circuit Court jurisdiction as well. It would be a pity, as I say, to see these jurisdictions enhanced in this sensible way but to find the public inhibited from using the courts.

Again, with regard to the procedures in the courts, I should like to say a few words on the question of pleadings and the mechanics generally for getting a case as far as a hearing. In the District Court the matter is simple and I would make the suggestion that it should not be interfered with. An action is initiated by a simple document and all it need carry is a simple averment of the nature of the action, that AB drove negligently and thereby damaged CD, causing him £X loss. That is sufficient to start an action for negligence in the District Court. In the Circuit Court this has been excessively formalised in the manner which I have referred to earlier and that simple statement is expanded into numerous paragraphs which are only in my submission, verbiage on the essential averment of negligence or breach of contract. I would ask the Minister to ensure that certainly the District Court Rules Committee does not bring in any form of complicated pleadings. The aim should be to keep the District Court as simple as possible. I move the adjournment of the debate.

Debate adjourned.
The Dáil adjourned at 10.30 p.m. until 10.30 a.m. on Thursday, 11th September, 1971.