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Dáil Éireann debate -
Wednesday, 1 Dec 1971

Vol. 257 No. 5

Courts Bill, 1971 [Seanad]: Committee and Final Stages.

Section 1 agreed to.
SECTION 2.
Question proposed: "That section 2 stand part of the Bill."

(Cavan): It has been drawn to my attention that section 2 does not go far enough to bring the general policy of extending the jurisdiction of the Circuit Court up to date. I suggest to the Minister that a further amendment needs to be made to the 1961 Act. If the Minister will look at the Schedule to the 1961 Act——

The Courts (Supplemental Provisions) Act, is it?

(Cavan): Yes, the Courts (Supplemental Provisions) Act, 1961. Sections 40 and 41 of the County Officers and Courts (Ireland) Act, 1877—it is at page 1345 of the bound volume of the 1961 Act——

Could the Deputy give the reference to it in the Act itself rather than in the bound volume?

(Cavan): I can. It is the Courts (Supplemental Provisions) Act, 1961, No. 39, the Fifth Schedule. It deals with an amendment to the County Officers and Courts (Ireland) Act, 1877. Section 47 is amended by the 1961 Act in the following manner:

In Section 47 the reference to £500 shall be construed as a reference to £2,000 and the reference to £30 as a reference to £60.

I would invite the Minister to look at that and see if it would not be necessary to substitute the figures £5,000 for £2,000, and £100 for £60.

I am sorry. I could not hear Deputy Fitzpatrick giving the reference in the Act.

(Cavan): If the Minister will look at the Fifth Schedule to the Courts (Supplemental Provisions) Act, 1961, he will see that it is a very long Schedule and it deals with amendments to various other Acts. The Act in which I am interested——

I see the one now —40 and 41 Victoria, Chapter 56.

(Cavan): Yes, 40 and 41 Victoria, Chapter 56. I should like the Minister to consider whether a further amendment is not necessary to increase £2,000 to £5,000 and £50 to £100.

No, I think not. The reference in the Schedule to the section was repealed by the 27th Act of 1965, which was the Succession Act, sections 8 and 9, Schedule 2, Part III.

(Cavan): If that is so, that gets over it. The next one is probably covered by what the Minister has said. It is 9 and 10 George V, Chapter 45, the Housing (Ireland) Act, 1919.

It is repealed by the 21st Act of 1966, the Housing Act of 1966, section 6, Schedule 1.

(Cavan): If that is so, those two are covered.

To make the matter clear in case there are any doubts afterwards I think I might put it on record that another Act which is referred to here, the Public Roads (Ireland) Act, 1911, which is in the Schedule, too, is repealed by the 24th Act of 1951, sections 2 and 10, Schedule 1 and the reference here to the Labourers (Ireland) Act, 1911, is repealed by the 21st Act of 1956, sections 6 and 121, First Schedule.

(Cavan): I am satisfied with that. I was asked to raise these two queries. The Minister has the necessary information to satisfy me that there is no substance in them. The next matter I want to raise on this section is subsection (3) which increases the lunacy jurisdiction of the Circuit Court up to £5,000 capital and £300 income. It has been suggested to me that the lunacy jurisdiction of the Circuit Court is not, in fact, availed of to any extent and that it might be a good thing to take away from the Circuit Court lunacy jurisdiction and the wardship of infancy jurisdiction. The argument put forward in favour of that is that the Office of the Wards of Court in the High Court has specialised machinery for dealing with this.

Indeed, I should like to take this opportunity to say how efficiently the Office of the Wards of Court in the High Court works, how simply it works and how little red tape seems to be associated with it. For example, I had a case recently where something in the neighbourhood of £20,000 was involved in capital. The ward, who was brought under the care of the court because of his mental condition, wished to have himself discharged from the wardship of the court. All that was necessary was for the man to get a certificate from his general practitioner that he had recovered and that he was now able to look after his affairs. Without any formal application in Chambers, or to the judge, or otherwise, an order was made discharging that man from the wardship of the court.

Many people including, I think, county registrars consider that they are not really geared to deal with the jurisdiction in the Circuit Court and that, instead of simplifying the work of people who have to invoke this jurisdiction, it is more complicated. The Minister may tell me that this is a concurrent jurisdiction, a jurisdiction which the Circuit Court exercises and which at the same time can be exercised in the High Court and that it is no harm to have it there. That may be so. I certainly should like to pay the highest possible tribute to the Office of Wards of Court in the High Court. This jurisdiction would be better exercised exclusively by them. It is cheap, simple and informal and I would like to have the Minister's views on it.

I would support Deputy Fitzpatrick some of the way and suggest that lunacy jurisdiction might leave the Circuit Court and be retained exclusively in the High Court for the reasons he has put forward. I am happy to say that I have had similar experience with the Office of Wards of Court. It is highly efficient, humane and practical. With the advent of increased jurisdiction to the Circuit Court, the amount of time that is available to the registrar and his staff will be limited and they will have to spend a lot more time on ordinary litigation and preparations therefor. The advent to their office of something as technical as lunacy matters should be avoided and I would support Deputy Fitzpatrick in saying that lunacy matters should go to the High Court.

I am not so sure about Guardianship of Infants Acts matters. Very often the parties concerned reside m the area adjacent to the Circuit Court offices and it might be more convenient for them in connection with the various matters that arise from time to time, that they would continue to have access to the Circuit Court. The only aspect of wards of court which gives any trouble to practitioners is the Accountant's Office in the Four Courts and I experience considerable complaints regarding that office. It seems to be undermanned and this results in considerable delays in payments being made.

The other point I would like to raise in regard to the section is the general point as to whether the courts as presently constructed will be able to cope with the extra volume of work that will come to them. The Minister has indicated that an extra judge will be appointed in Dublin which is where the greatest backlog occurs but I would suggest to the Minister that with the dramatic increase in jurisdiction now proposed, the backlog will be experienced also in the provincial Circuit Courts. There must be a careful and detailed look at the structure of the Circuit Courts in rural Ireland to see if they will be able to cope with the increased jurisdiction. I can say that with regard to the position of business of the Circuit Court in the area with which I am familiar there is a backlog building up. This is due to the increased number of criminal cases coming to trial. These cases arise mainly from road traffic matters and are not crime in the normal sense of that word. With the build-up of criminal work which is necessarily and properly slow it is reasonable to assume the amount of civil work will be increased vastly because this build-up will be increasing and at the same time the civil jurisdiction of the court will be vastly increased. Consequently, the present backlog will become greater and the position that was intended to be achieved by the Act will not be achieved, that is, to make available speedy justice in all parts of Ireland. The appointment of one extra judge in Dublin will not clear the backlog. It is a common-sense step in the right direction that the jurisdiction of the Circuit Court would be increased to the sum proposed in the Bill. However, I would not like to see the Circuit Court costs following the increase in jurisdiction.

The point of having a Circuit Court and of having a reasonable jurisdiction throughout rural Ireland is to provide easy access to the courts for the public. It is only right and proper that the public would have access to courts in their own locality and not have the expense of having to travel to Dublin for cases involving fairly substantial sums. That easy access would be nullified if the expense of going to court keeps pace with the increased jurisdiction. As I indicated at Second Stage, a Circuit Court action is in no way cheap in terms of costs. I suppose that in order to avoid frivolous or vindictive litigation, it is necessary that a party losing a case should be punished in terms of cost but, to my mind, the punishment is too severe and the amount of costs in which an unsuccessful litigant can be involved can inhibit people from coming to court with cases that they would be justified in bringing forward. It forces unjust compromises on people who otherwise would be entitled to and would be able to come to court. I do not know what the remedy will be. Practitioners complain constantly that litigation is the least profitable part of their operations and no doubt with the increased responsibility that follows the increased jurisdiction, they will regard themselves as being entitled to increased fees for the extra work and responsibility involved. This is a dilemma to which the Minister will have to give some thought to solving.

I would not like to see the situation in the Circuit Court that we have in the High Court whereby there are automatically two senior counsel and a junior counsel pleading every case. If, say, an insurance company, who might not be as much afraid of expense as would the ordinary citizen, decide to brief two senior counsel and a junior, the plaintiff would be forced to go into the same position in order to meet that heavy legal artillery and the result could be that litigation in the Circuit Court could be as expensive as it is in the High Court. That is not what is intended by the Bill. It would be very undesirable. It is difficult to know what might be the answer to remunerating practitioners reasonably for their work in the courts while at the same time keeping the cost of litigation at a figure that will not inhibit citizens from having resort to the courts in justifiable cases. Indeed, the day may be coming when there will have to be a panel of State advocates throughout the country and that advocacy and practice in the courts will no longer be a matter for the legal profession. That would be a drastic development.

Be careful of Deputy Fitzpatrick's blood pressure.

Deputy Fitzpatrick and every honest solicitor practising will be the first to admit and, I think, Professor Kaim Caudle ascertained it scientifically, that litigation is not profitable so far as solicitors are concerned. In those circumstances the profession would not mind the business departing from them. In any event our main concern must be the right of citizens to be able to go to law with an easy mind and not have to worry too much about the financial consequences. Perhaps at some stage thought will have to be given to the setting up of panels of professional, full-time independent persons who would look after litigation and who would perform functions of advocacy for citizens. It could be far-reaching and it would mean drastic changes in our legal system. If any such development were to ensue it would have to have within itself a built-in independence because while the public may criticise the Bar as being one of the main contributing factors to the expense of litigation, nevertheless, the tradition of the Bar and the independent and high ethical and professional standards maintained by them are one of the main guarantees of our liberties. Certainly, if the professional advocates as exemplified by our barristers were to be replaced by any other system, such system would have to be independent so that the present high standards would be maintained for the protection of citizens. These are some problems I see in relation to the increase in jurisdiction but I do not know how they are to be solved. Perhaps they will be a matter eventually for the cost committees when they are revising costs of the court in question. Costs would have to be increased to meet the enhanced jurisdiction but I would like the Minister to keep in mind that the increase in jurisdiction is pointless if people are frightened of availing of it.

Subsection (3) of the section we are discussing extends to jurisdiction in lunacy matters which was conferred on the Circuit Court by section 22 (2) of the Courts (Supplemental Provisions) Act, 1961 to cases where the value of property does not exceed £5,000 as against £2,000 at present or the income therefrom does not exceed £300 as against £100 at present.

This jurisdiction is exercised by the Circuit Court concurrently with the High Court and enables an inquiry under a commission to be dispensed with where the property of the person concerned is within the limits specified. The Committee on Court Practice and Procedure considered that the Circuit Court should retain its concurrent jurisdiction in lunacy matters despite the fact that the jurisdiction is rarely exercised by the court and although they thought the majority of cases would continue to be dealt with in the High Court.

I might, perhaps, read the relevant quotation from the fifth interim report of the committee, page 16. They say:

On the other hand the view has been expressed that it would be in the public interest to have this jurisdiction available at local Circuit Court venues throughout the country, and that such jurisdiction might in the future be more widely invoked particularly as the stigma which formerly attached to lunacy proceedings and which made it desirable to avoid a local venue was no longer apparent.

Notwithstanding the excellent facilities available in the Office of Wards of Court in regard to lunacy and wardship matters, the committee take the view that it is desirable that there should be also available in the Circuit Court a concurrent jurisdiction in these matters although we believe that the vast majority of the cases will continue to be dealt with in the High Court.

The committee, with the exception of Mr. Justice John Kenny, recommend, accordingly, that whatever figures are chosen for the increased limits of the Circuit Court's equity jurisdiction should also apply to wardship matters in that court.

It goes on to spell out the consequential proposed increases that are provided for here in the subsection.

The thought struck me when Deputy Fitzpatrick was suggesting the dropping of the lunacy and wardship jurisdiction that he was, perhaps, suggesting it on the same grounds as I am suggesting the dropping of the civil jury in section 6 because, basically, I think the point is much the same. To a great extent, I feel myself guided by the recommendations of the committee. This committee recommended the continuance, for the reasons stated, of the jurisdiction in lunacy and wardship and recommended the abolition of civil juries. I have no great feeling one way or the other but in view of the fact that all the members of the committee, with one exception, recommended its continuance I would be slow to do away with it. It does seem to have one practical effect anyway. It enables an inquiry under a commission to be dispensed with where the property is within the jurisdiction limits.

One possible solution to the problem that the office work may create in a county registrar's office might be that we might be able to provide, at some future time, that while the Circuit Court would retain its jurisdiction, the actual accounts and the more complicated side of the office work could be done in the Office of Wards of Court in Dublin and that the county registrar would simply have to produce the documents for the judge at the hearing but that he would not be involved in the very technical working-out of the accounts and everything else which he normally would not have staff to deal with. That might be a solution and if I found that to be a solution I could possibly include it in a Court Officers Bill which I am preparing at the moment.

With regard to the more general remarks of Deputy Cooney about the question of the Circuit Court, I want to reiterate that it is only in Dublin that there is any serious arrears problem. You may get a backlog from time to time in a provincial area but that can be quickly cleared by the judge sitting an extra week usually. There is no serious, permanent backlog as there is in Dublin. The Dublin situation is very disturbing and that is why I have taken the steps that I have taken with regard to appointing an extra judge.

As far as the reorganisation generally of the Circuit Court is concerned, Judge Walsh's committee recommends in their 12th report a fairly radical reorganisation of the Circuit Court by, in effect, creating two circuits in the country — Dublin as one circuit with four permanent judges and the provinces as another circuit with six permanent and two itinerant judges — by "itinerant" I mean travelling around, not anything else——

We know what the Minister means.

They are occasionally called that.

——and that two of these judges would hear crime full-time and that the others would be devoted to civil work in particular groups of counties and that each man would stay at his job for a period of two years only and then that he would be moved on either from civil to criminal or vice versa or, alternatively, moved to a different group of counties. Of course, the grouping of the counties under this system could be much bigger because the judges would be dealing with civil work only. This would give rise to greater efficiency. It would mean that the cases would be heard more quickly and it would also get over the present position where you can have a judge in a particular circuit of, say, three counties for a very long time, for example there is at least one judge on one circuit for over 25 years. In common with many people I regard this as undesirable no matter how good the judge is because he tends to stamp his own valuation of given injuries on all cases within that circuit. While I am in no way committed to it and do not want to commit the Government to it until it is more closely examined, at first sight many of the recommendations made by the Walsh committee on this do seem attractive even though it may turn out eventually that some of them just are not feasible.

Deputy Cooney said that he hoped we would not see the day when in the Circuit Court with the increased jurisdiction we would have two seniors and a junior. I certainly very fervently hope we will not see that day because I think it is monstrous that at the moment in the High Court one in practice has to have two seniors and a junior. The public find it very hard to understand why this must be so. Quite frankly, I find it very hard to understand why this should be so too. The public tend to look on this as a bit of a racket because in a very small and trivial case each side is represented by four lawyers—two senior counsel, a junior counsel and a solicitor. At the moment, pending the increased jurisdiction, you could have those eight lawyers employed to fight a case in which £700 was involved because until this Bill is passed that would be within the jurisdiction of the High Court. That situation is ludicrous because it will cost a lot more than £700 to pay the eight lawyers. I find it very hard to defend a situation where the costs, as they fairly regularly are in these types of cases today, are actually more than the amount involved.

I would recoil with horror at the thought that we might have something similar in the new Circuit Court. The whole purpose of this section would be defeated. It is basically, I suppose, a matter for the Bar and for solicitors and for insurance companies as to how many they will employ and there is no direct control that I can have over it but I can, I suppose, have an indirect control on the costs question by saying that the employment of more than one counsel should only be allowed on taxation in very unusual circumstances or in some particularly important cases. I would hope that except in exceptionally important cases no more than one counsel would be employed in the new Circuit Court. Indeed, I would hope that solicitors will exercise their right of audience in the new Circuit Court. They have it in the existing Circuit Court but do not exercise it very much. I hope they will exercise it to an increasing degree in the new Circuit Court. I certainly will do all in my power to see that costs in the Circuit Court will not spiral at a corresponding rate to the increase in the jurisdiction.

(Cavan): In regard to the Minister's remarks about the arguments in favour of transferring the lunacy jurisdiction to the High Court being something analogous to the argument in favour of the abolition of trial by jury in the Circuit Court, I hasten to assure him that when we come to section 6 I will be able. I hope, to show that an entirely different set of circumstances exist and, indeed, that the third report of the commission on the courts was based on a set of circumstances which do not exist now at all.

Like the Minister, I do not feel terribly strongly about this because there is concurrent jurisdiction but I agree with Deputy Cooney that perhaps it would be better to leave the minor matters to concurrent jurisdiction but if the lunacy matters were taken away, other functions could be given to county registrars, such as payment out of court of money; affirming of District Court appeals where the notice of appeal has been withdrawn; the ruling on settlements where the people are of full age. These and several other matters like them which are non-contentious could be taken out of the judges' lists which they are cluttering up at present and be ruled on by the county registrar.

The Minister has given us the majority report contained in the Fifth Interim Report of the Committee on Court Procedure and Practice where they recommended that the lunacy jurisdiction should be retained in the Circuit Court but, although he referred to it, the Minister did not quote the dissenting recommendation of Mr. Justice John Kenny, who is a very learned judge of the High Court and a judge of great experience. He recommended to the Minister as follows— paragraph 7, page 32 of the report:

I dissent from the recommendation in paragraph 23. There is a specialised and very competent staff in Dublin which deals with lunacy and wardship matters only and which disposes of them quickly and cheaply. I see no advantage and many disadvantages in having these matters dealt with in the Circuit Court and I am glad to find that the members of the County Registrars' Association have the same views. I recommend that the lunacy and wardship jurisdiction in the Circuit Court should be abolished.

There you have the view of Mr. Justice John Kenny, which is backed up by the recommendation of the County Registrars' Association. I can tell the Minister that it is not a question of the County Registrars' Association trying to shed themselves of work and to draw salary for doing less work; they are quite prepared to take on, as I understand it, the type of work which I have mentioned, work of a non-contentious nature, and in that way relieve the court lists of items that could properly be dealt with by them.

On the general discussion by the Minister and Deputy Cooney on the question of costs in the Circuit Court, this argument and discussion flows from the fact that we are now about to pass this Bill increasing substantially the jurisdiction of the Circuit Court and are bringing it into operation before rules have been made by the Rules Committee to implement it. The matters that are agitating the minds of the Minister and Deputy Cooney can properly be dealt with under the Rules of Court which will operate this measure when we pass it. I certainly agree that it would be defeating the object of increasing the jurisdiction of the Circuit Court and of simplifying legislation if we were to go on as we are in the High Court at the moment with three counsel on each side, but it would be unfair to the solicitors' profession, and especially to the Bar, if we were to conclude the discussion on this section with the impression having been given that there are three or four counsel on each side reaping a rich reward and charging unnecessary fees and that there were unnecessary counsel in court. With all due respect, the Minister is the last person in the world who should give that impression. The Minister knows that three counsel are necessary because we have no free legal aid in civil matters. We all know that in many cases which are litigated in the High Court for two, three or four days, and where the plaintiff loses, that plaintiff walks out of court without having got any reward and in the knowledge that the solicitor and counsel in the case will throw the papers in the wastepaper basket and will never get a penny and, indeed, that the solicitor is at a loss because he has had to finance the court fees and, perhaps, some witnesses who had not enough money to get themselves from the country to Dublin. That is the reason there are three counsel in a case. One counsel could not afford to go into court and stay there for four or five days on a "spec" case without any certainty that he would get anything. That is the position.

I am afraid that until such time as we have here, as they have in Northern Ireland and England, a system by which a litigant with an arguable case can get a solicitor from the Incorporated Law Society and where his professional men will be paid out of a State fund, or some fund set up in conjunction with the Law Society and the State, I do not believe we have any right to complain too bitterly about the system we have.

I do not consider myself in any way obliged to defend the Bar or, indeed, the solicitors' profession, but I should like to be fair to them. Everyone will agree that if there were only one counsel in a case in the High Court and if he were to stay for four days on a case, his fees would be twice or three times as much as the charge now, or as the taxing master allows. Those are my views. I certainly believe that when Rules of Court are being made, only in exceptional circumstances — they would have to be very exceptional — would two senior counsel be taxed in an action in the Circuit Court and, I may incur the wrath of the Bar for saying this, but I believe that we might go even further and say that only beyond a certain figure should even one senior counsel be taxed in the Circuit Court.

We come now to the point of the backlog and the delay in court, particularly in the Dublin circuit. It would be a great pity if the increase in jurisdiction which we propose to confer on the Circuit Court here were to lead to further delays in the Circuit Court.

I am glad to hear that the Minister proposes to appoint more Circuit Court judges. What I am about to say might be more appropriate on the Estimate, but I think it is also appropriate on the appointment of judges. I would urge the Minister to make sure, when he is appointing judges, that he has accommodation for them because I believe there were rather unseemly, indeed disgraceful, scenes in the Four Courts within the last couple of weeks. Accommodation was being sought for a new Circuit Court judge and, in order to find that accommodation, it was sought to eject the Master of the High Court from the courtroom in which he and his predecessor before him presided for a great number of years. Apparently there was some misunderstanding about that because the Master of the High Court is still presiding in his court but this sort of thing can lead to misunderstanding between the Executive and the Judiciary and quasi-judicial officials. I understand that it was not only the Master of the High Court who was involved; there are two taxing masters, and, when one tried to get into his office one morning not so long ago, he found a lath had been nailed across the door and the lock had been changed; the key he had did not open the door. There was an arrow indicating to him that he was to go to another room. His furniture, his books, his files, the lot, had been shifted out of the room in which he had been presiding.

I do not know that this is relevant on the section dealing with the jurisdiction of the Circuit Court.

(Cavan): It is relevant on the accommodation for judges. I shall have more to say about it on the Estimate. Some high-handed, strongarm official decided, without consultation or reference, that he would upset the whole working of this man's office. The two taxing masters were changed: one had an arrow indicating to him that he should go upstairs and the other had an arrow indicating to him that he should go into a vacated office.

The situation was not at all as described by Deputy Fitzpatrick.

(Cavan): I have fairly reliable information about it. Perhaps it would be more opportune to await the Estimate to discuss the matter.

(Cavan): We will have the Estimate before very long. I would urge that the rules of court be drawn up as quickly as possible. Section 25, when we come to it, should ensure that this Act does not come into operation until we have proper rules of court.

Question put and agreed to.
Sections 3 and 4 agreed to.
SECTION 5.
Question proposed: "That section 5 stand part of the Bill."

(Cavan): This is the section which lays it down that if a plaintiff brings an action in the High Court but recovers only damages within the jurisdiction of the Circuit Court, he shall be confined to Circuit Court costs. By and large, I agree with that principle but, if the Minister insists—I hope he will not— on abolishing trial by jury, under the new set of circumstances in the Circuit Court, I think that certain types of action should certainly be excluded from this rule. There are types of action in which damages or money are not all-important. We have the type of action in which the vindication of a man's character is the all-important thing. We have other actions of a personal nature or involving personal claims.

The type of actions I have in mind are libel and slander, false imprisonment, malicious prosecution and certain kinds of assault. These are all actions about which people may feel very strongly. They may feel that only trial by jury will vindicate their claim. They may feel that such a case can be properly tried only by a jury. Indeed, the Constitution lays it down that certain types of cases involving the liberty of the subject, criminal cases, must be tried by a jury and only by an amendment of the Constitution can the law be changed in that respect. The dearest thing to a man after his liberty is his good name, his character. In a malicious prosecution or in false imprisonment his liberty could also be at stake. I am inviting the Minister to say that, if a person recovers damages in the High Court in these cases, then he should be entitled to High Court costs; otherwise, he will win the case, have his character vindicated, or his liberty restored, but he will be at a financial loss. This is not right. I hope I have got the point over to the Minister. If the High Court had discretion it would not be so bad. I shall be glad to hear the Minister's views on this. If necessary, I can come back to it again.

Under section 12 of the Courts of Justice Act of 1936, the figures of which are being amended by this section, the judge hearing the action has power to grant a certificate that it was reasonable to take the action in the particular court. In a case in which a judge felt it was reasonable that the case should be tried by a jury he can give that certificate. The judge has that power, as far as I understand, under section 12. So far as I know this is done from time to time, it is probably more likely to be done in the future because of section 6 of this Bill.

Question put and agreed to.
SECTION 6.

I move amendment No. 1:

In page 3, before section 6, to insert the following new section:

"Notwithstanding anything contained in any prior enactment no appeal other than an appeal on law shall lie from any judgment or order of the Circuit Court consequent on a civil action tried by a jury."

The amendment is a peg on which we can argue about the question of juries. I shall deal with what I feel are the technicalities involved in the amendment later.

I consider section 6 to be a retrograde section as it seeks to abolish the right to have a civil action in the Circuit Court tried by jury. I do not consider that a good development. I should like to see the right to trial by jury retained in the Circuit Court for a number of reasons. The first reason would be relevant to what Deputy Fitzpatrick said in regard to section 5. I would suggest to the Minister that certain types of actions for defamation of character, malicious prosecution and false imprisonment are such that they can best be tried and the personality issues that may be involved can best be assessed by a jury of 12 laymen. This is particularly so in a case of actions for false imprisonment. Such actions are infrequent happily in our courts but where they have occurred, to my knowledge, they have occurred where there has been excessive exercise of function by the Garda authorities.

The action has to be taken personally against the member of the force involved in the false imprisonment. The amount of damages involved could be comparatively trivial because the term of false imprisonment would normally not be more than a matter of hours — a person might have been held for too long in a Garda station — the amount of damage suffered would be small and damages awarded by the court would necessarily be small also. The action would lie to be taken in the jurisdiction of the Circuit Court and if this section comes into operation the action will have to be taken by the person before the judge only. It could happen that the person bringing the action might not be a very salubrious character and might not be a person who would command the sympathy of the judge. I am not saying that the presiding person would be in any way biased against any particular litigant but, nevertheless, if a person is in a position of authority in the State, as a judge is, I feel there is probably an unconscious leaning towards the forces of law and order when faced with an action in which they are named as defendants and a person who, as I say, may not be a terribly attractive character, is the plaintiff but whose rights nevertheless have been infringed. It is important that person should be able to bring that particular type of action before a jury and let 12 of his peers assess whether or not there was false imprisonment. In the case of malicious prosecution it is an equally personal thing and it, too, is very suitable for trial by jury rather than by judge and similarly with questions of libel and slander.

The Minister may say that if a person has such an action he can get his jury in the High Court but this is where section 5 can have an inhibiting effect. If a person goes before a jury in the High Court and he is awarded £10, £15 or £20 on an action for false imprisonment where the imprisonment may have been only for a matter of hours, it is the breach of his right and the breach of his status that is really at issue and not the loss he has suffered, it is almost certain he will be punished in costs. It is very difficult to imagine a High Court judge awarding costs on a High Court scale where the amount awarded by the jury is a small sum. This is a very strong argument for leaving the right to trial by jury in the Circuit Court.

Another reason for leaving jury actions in the Circuit Court is that they are a check, if one might use the word, on a judge who might be inclined to be oppressive or who might, as the Minister says, get into certain habits which might be common sense in most cases but in certain cases might work an injustice. I hasten to say that in my experience judges of the Circuit Court bench have been men of humanity and practicality and I have never experienced the dangers of which I speak. I can conceive of a situation in which that might occur and it would be of vital importance to the practitioners and litigants resorting to that court that as a check on such things they would have the right to call for a jury. This is a very important principle especially now with the enhanced jurisdiction. If a litigant can sue for £2,000, which is a large sum of money, in the Circuit Court it is important that his rights as a litigant be unimpeded and he should have available to him what we who live under the common law regard as the classic guarantee of justice — a right to trial by 12 of our peers. It would be a shame if that right were to be removed from the Circuit Court.

I have heard various arguments advanced in support of this section and its proposed deletion of the right of trial by jury in the Circuit Court. The first argument is that the right has not been exercised. That may be so but it has to do with the rules and regulations of the court and is no reason for saying: "Here is something which is not being used, let us tidy up the situation and cut it out." The point is, even though it has been exercised only in a small number of cases, once it has been exercised a mere exercise as to tidiness falls down. In any event, that argument does not hold when one considers that we have to look at the principle involved and not the mechanics. What is involved here is a basic principle of the common law system. It would be wrong to knock such a basic principle merely because there has not been need to exercise the right to trial by jury in the Circuit Court.

I have drafted the amendment to deal with another argument which has been raised in support of the Minister's proposition. It has been argued in support of the proposition that the right to trial by jury be abolished that if there is to be an appeal from the Circuit Court this appeal is by way of a rehearing and it is a fruitless exercise to give a person a right to trial by jury in the Circuit Court if the other contending party can enter an appeal and have the matter reheard by a judge sitting alone; therefore, why not in the first instance have the matter heard by a judge sitting alone? I concede there is logic in that argument. It points to an anomaly in the present appellate system from the Circuit Court. The answer to that argument is to change the nature of the appeal rather than abolish the jury trial. It is not the jury trial that gives rise to the anomaly but the nature of the appeal. Therefore, why not change the nature of the appeal to ensure that the anomalous situation does not arise on the appeal? I have drafted the amendment to the effect that where the trial by jury takes place in the Circuit Court the appeal will be on a point of law only; in other words, the 12 men who heard the case, as to the facts, in the Circuit Court, will be the final arbiters of the facts. This is a situation that pertains in the High Court at the moment. If there is an appeal to the Supreme Court it is an appeal on a point of law. It may be on a point of law that the jury were perverse and I suppose that impinges on the jury's finding on fact but it is a rare occurrence.

The answer to the anomaly is to make the appeal in the case of a trial by jury on a point of law only. I appreciate that this may lead to something the Minister referred to in the other House, namely, that there could be two types of appeal from the Circuit Court. You can have the appeal on a point of law only where the original trial was before a jury, or you can have an appeal by way of a full re-hearing where the original trial was held by a judge only.

I would suggest to the Minister there is no anomaly in those two different methods of appeal for the reason that in the case where the trial in the Circuit Court is by jury and the appeal is on a point of law only it is only proper to say that if 12 men have heard the facts of the case in the Circuit Court there is no point in appealing on the facts to a single judge in a higher court. If 12 citizens assess facts in a certain way that should be final and the only appeal is on law. However, if the appeal is from a case heard by a judge only, it is logical enough to have a re-hearing on the grounds that only one citizen has heard the facts in the Circuit Court. It is only proper and right that the assessment of one man of what might be a complicated, tendentious set of facts should be subject to review on the facts as well as the law. However, if 12 men have heard the facts there is no need for a further opinion on the facts. I would suggest there is nothing wrong in having two types of appeals in the Circuit Court depending on whether the action was heard by a judge only or by a judge and jury.

My amendment is drafted to deal with this position. I should like to see the right of trial by jury retained and appeals from such a trial on a point of law only. If litigants continue to have actions heards by a judge only in a Circuit Court that is all right, but if there is an appeal from that judgment where the trial was before a judge only the present situation should continue because it has within it a second assessment of the facts. It is a good thing that where the facts were heard and decided on by a single citizen— even though he is the judge — they should be subject to review but where they have been heard by 12 citizens their opinions should be good enough.

I am not very sure about the drafting of my amendment but the idea behind it is to provide that where a jury trial takes place in the Circuit Court it will be final on fact but there can be an appeal on a point of law. I know that in the other House the Minister made it clear — and I accept his assurance — that this is not the thin end of the wedge to abolish juries in the High Court. If they are relevant in the High Court, equally they are relevant in the Circuit Court, especially as that court now will be performing functions that previously were performed in the High Court and in which juries were involved. If they were not out of order there, surely they are not out of order, and indeed are desirable, in the Circuit Court.

It is basic to our common law system that questions of fact, whether the contending parties are the State and a citizen or two citizens, would be submitted to the decision of 12 laymen. It is an admirable thing that the right should be there to check on any judicial excesses that might occur although I said earlier, and I wish to emphasise it again, in my experience these have not occurred.

It is not a right that will be used frivolously in the Circuit Court. As I understand the position, an application has to be made to the judge for a jury in a civil action and it does not follow as of right. It may have been a good thing up to now when the jurisdiction was small that such restriction was there and I do not propose that it be removed. In fact, it could remain and we would have the best of both worlds — there would be the right, which would be restricted to some extent by the necessity of making application to the judge, whose decision would be subject to appeal in case the necessity arose. When the right is there it should be left there; it is bad logic to say that because it has not been used it should be discarded. I would ask the Minister to leave jury actions in the Circuit Court.

I should like to support the amendment of Deputy Cooney and the remarks he has made on this matter. It has been debated at length in the Seanad. It is right that trial by jury should be retained in the Circuit Court for the valid reasons outlined by Deputy Cooney. I do not think the case presented by the Minister has been strong enough. I welcome many of the desirable and commendable features of this Bill but this is one instance where I do not think the Minister has made a convincing case.

This fundamental democratic check and facility available in the system should be retained. With the extension of jurisdiction there is all the more reason for its retention. If in the years ahead it is found necessary to bring in amendments, I am sure this House would not prove unduly difficult in facilitating the Government. However, the Labour Party do not think the views expressed by the Minister carry sufficient weight to enable us to accept this section.

The arguments put forward today on this point are similar to those put forward in the Seanad. I dealt at considerable length with these points in the other House; I refer to the Seanad Debates, Vol. 71, column 919 and the following columns, and on Report Stage I dealt with the matter at column 1017 of the same Volume. It is significant that in the course of his argument although Deputy Cooney made various references to reasons against making this change he did not refer to the report and recommendation of the commission and they were predominantly in favour of the change now suggested in this section and which to a great extent would be negatived, or would entirely be negatived, by the amendment. There were some dissenters, as I remember, from that recommendation but they dissented not on the point that the right to a civil jury trial in the Circuit Court should be abolished, but on the point that it was not also being abolished in the High Court, because the dissenters, of whom Mr. Justice Kenny was one, felt that it should be abolished in all courts.

I want to emphasise here that what we are talking about is a proposal to do away with the right to a civil jury trial in the Circuit Court and I want to lay emphasis on the word "civil". Deputy Desmond referred to the section as doing away with the right to a jury trial in the Circuit Court. Of course, that is quite misleading because the vast majority of jury trials in the Circuit Court, which are of course being retained, are criminal trials, and the number of civil jury trials in the Circuit Court in the whole country in recent years has been minimal. I have not got the precise figure, but I said in the Seanad that I thought the figure would probably work out at one a year in the whole country and no serious disagreement was voiced by anybody with that estimate.

I therefore want to make it clear that what is being proposed in the section itself is the abolition of something which in fact is rarely, if ever, used and that there is no question whatever of the abolition of criminal juries in the Circuit Court. Lay people might well be easily misled into thinking that this was some sort of fundamental attack on one of the pillars of the legal system. It is nothing of the sort. What I am doing simply is following the recommendation of a committee, which one of my predecessors set up to advice on necessary changes in the legal system, and this committee are overwhelmingly in support of what I am now proposing. The committee consisted of Supreme Court, High Court and other judges, and barristers and solicitors, as well as a number of laymen.

I do not think that in view of the fact that this is a Seanad Bill, initiated there and discussed there at great length, it is really necessary or desirable to go through all the arguments again. I think they are pretty well known, one of the more obvious of them, and I think the one this amendment is designed to counter, being that under the system of appeal from the Circuit Court, about which the committee made no recommendation for change at all — they decided that it was a satisfactory system — the appeal is by way of full re-hearing and this is so whether the trial in the Circuit Court is before a judge, as 99.99 per cent of trials are, or whether it is before a judge and jury, as a small fraction of 1 per cent of trials are.

One of the practical effects of that is that in the last resort a party can and will have his case heard before a judge sitting alone anyway. Since there is no recommendation by the committee and there is clearly no need to change the appeals system, it seems to me that it would put those who did have a trial by jury in the Circuit Court, few and all as they are, possibly a dozen people in ten years, at a considerable disadvantage vis-à-vis litigants who follow the normal procedure of having their case heard by a judge alone.

The particular amendment suggested seems to me also to limit the type of appeal that would be open to a litigant, if I were to accept it, because it would limit him to a far greater extent than a High Court litigant at the moment is limited in the type of appeal he may take to the Supreme Court, so therefore if I were to agree to delete section 6, as acceptance of this amendment would entail, I could not in any event accept the amendment, but I do not want to make any point of that. The basic principle involved is the important one, and although the amendment is defective in limiting the type of appeal unduly, I still do not accept the principle of having a different type of appeal procedure set up for very few people who take these civil actions.

I dealt at some length in the Seanad with one of the immediate consequences of an amendment of this kind, which would be to render it necessary for the appellant to get a transcript of the evidence. The appeal would have to be on a transcript and I think we all know what the costs of transcripts are in civil cases. We also know the difficulties particularly in provincial areas of getting stenographers. In fact, I am told that it is extremely difficult and the Circuit Court runs into that problem fairly regularly in relation to the sort of cases where stenographers are needed at the moment.

One of the problems about this type of appeal is that it would have to be brought in Dublin. That would be consequential on the amendment. It could not be brought in the——

The High Court on circuit?

I am afraid that for reasons which will appear from the debate in the Seanad, it could not be brought in the local High Court on circuit. That is dealt with in the Seanad debate fairly fully. It would have to come to Dublin. This would be one of the consequences — I am sure an unintended consequence but it would be a consequence — but apart from that, from having to come to Dublin, the litigant has the very high cost of the transcript. We would in fact be put back, with certain limitations, in the pre-1936 position, which at that time was found to be unsatisfactory and costly, and that is why it was changed, and I think it would be strange that a new and better system which has worked very well from 1936 should be set aside now in 1971 and that we should go back to this system which was found to be unsatisfactory prior to 1936 and which unquestionably would be found to be unsatisfactory now.

So far as the point made by Deputy Cooney with regard to certain types of actions that might more appropriately be tried by a jury is concerned, I want to say, first of all, that I am not convinced that there are any types of actions which would have to be tried by a jury, but if there were actions of a particular kind — and they are usually defamation, false imprisonment and analogous types of actions — if there were such an action, where it was clearly appropriate that it should be tried by a jury, it is open to the plaintiff to take his action in the High Court, and under section 12 of the Courts of Justice Act, 1936, as amended by section 5 of this Bill, there is power to the judge to certify that it was proper and appropriate that the action should have been brought in the High Court and brought before a jury. I understand that that section is used from time to time and that certificates of that kind are given, and there is all the more reason to believe that where this right would not be open to a litigant within the Circuit Court jurisdiction, a High Court judge would all the more readily give the certificate in order to ensure that the plaintiff could bring his case before a jury where the judge was satisfied — as he would be in certain types of actions presumably — that it was a case suitable for a jury and in fact desirable that it should be heard by a jury.

One has seen from time to time cases in the High Court, usually of defamation which, as Deputy Cooney put it, were brought to clear a man's good name and the plaintiff himself, in his case and his counsel's address, in his own evidence and on cross-examination, said that he did not really want any money, that he simply wanted to clear his name. That type of action has been brought from time to time and where judges have been satisfied that it was appropriate that it should be brought in that court the necessary certificate was given and the plaintiff was at no disadvantage.

There are many other arguments in favour of what is proposed in the section and against the amendment but as this is a Seanad Bill and as we debated these points at very great length in the Seanad and dealt, I think, with all aspects there of what was raised here, which is much the same, I do not think I need go through all these other arguments. I feel I have said enough to show that this is a desirable change, that it does not interfere with anybody's rights, that it will assist in the smooth running of the courts and that it will make things generally more efficient.

(Cavan): The arguments put forward by the Minister and the reasoning in the third report are not sound because they are based on a set of circumstances quite different from those that will exist when the Bill becomes law. One of the big arguments put forward in the third report and, I think, by the Minister is that trial by jury is not availed of in the Circuit Court in civil actions to any extent now. Trial by jury does not exist in the Circuit Court at present and has not existed since the 1936 Act was passed. I say that because, as the Minister has rightly said, the appeal is to a judge without a jury by way of retrial and, therefore, for all practical purposes trial by jury does not exist. I can tell the Minister, and I am sure he knows from his records or research, that trial by jury in the Circuit Court prior to 1936 was quite a common thing in civil actions, in negligence actions which were not as common then, breach of promise and seduction actions. You had juries in all of those but with the 1936 Act which said the appeal would be to a judge without a jury there was no point in having trial by jury.

Further, the jurisdiction of the Circuit Court was only £300 at one stage and was then increased to £600. Indeed, one of the arguments put forward in the third report is that the jurisdiction of the Circuit Court is so small that the discrepancy in the award of damages that might be made by a judge and by a jury would be very little in any case. That was because the amount of latitude for a difference of opinion was very narrow, only a few hundred pounds. Here we are creating entirely different circumstances. We are now deciding that the jurisdiction of the Circuit Court will go up to £2,000 and we shall now have substantial actions tried in the Circuit Court. From what I have read, most of the arguments in the third report are, I think, in favour of trial by jury and commend it and decide that trial by jury shall be retained in the High Court and, in my opinion, only decide it should not be retained in the Circuit Court because its jurisdiction was so small. But now we are increasing the jurisdiction to £2,000 which means that quite considerable actions will be tried there.

Our Constitution sets out that trial by jury must be retained in criminal actions. It must, therefore, have something to recommend it. It involves the wisdom and the vast experience of 12 men. I remember a High Court action not so long ago involving a new car which was only on the road a short time. One of the tyres on the car was bald. This great point was being made against the plaintiff because he was driving this car, that the tyre was bald. It was hard to understand this because the car was only on the road a short time. The jury disregarded this point completely and did not listen to it. In the course of conversation afterwards one of them, as they often do and they are not breaking any oath by talking, said they came to the conclusion that when the car was brought into the garage a good tyre was whipped off and a second-hand, worn tyre put on. Nobody had made the point in court but the jury were probably quite correct; there had to be some explanation and that was the one they selected.

Furthermore, some judges are known to be plaintiffs' judges and some defendants' judges. That is no reflection on them; they are only human beings and suffer from human defects and shortcomings. That is overcome if you have a jury of 12 men who bring their common sense to bear on things. By and large, jury verdicts are always sound. I have also noticed that many of the people who gave evidence before the Committee on Court Practice and Procedure which recommend the abolition of juries in the Circuit Court were people who normally act for insurance companies, some of the lawyers. I do not know what evidence they gave. I just looked through the list today and saw some well-known names of lawyers who act for insurance companies and probably have an insurance company bias.

Another argument against trial by jury is that trials take more time. If the Minister explored the possibility of tidying up trials by agreeing expert evidence beforehand, before the county registrar or somebody else, much time could be saved and only net issues as to who is to blame or who is at fault would be decided by the jury. As I say, I am not impressed by either of two arguments. I am not impressed by the third report because I think it contains vast arguments in favour of trial by jury. The report was made at a time when the jurisdiction of the Circuit Court was small and apparently the arguments took that into consideration.

They took into account the fact that they were recommending much higher jurisdiction.

(Cavan): No, it was the fifth report which recommended the higher jurisdiction.

It is clear from reading it. They referred to the fact that there has to be higher jurisdiction in the Circuit Court.

(Cavan): One of the arguments, anyway, was that the jurisdiction was such — I read that in the debate — that there was not much place for discrepancy between an award of damages by a judge and a jury. The next thing that occurs to me is that this is the thin end of the wedge. We will be asked before very long, if an action for £2,000 can be tried by a judge without a jury, why cannot he try one for £3,000 or £5,000? It will be the end of trial by jury. That would be a calamity.

The Minister tells us that he has no intention of doing away with trial by jury in the High Court. If it is necessary to try an action for £2,500, why is it not necessary to try an action for £2,000? It is hard to follow that line of reasoning. The Minister says that the appeal would have to be to Dublin. Even so that will not add very much to the expenses. On the contrary, it might reduce expenses if counsel were involved, because it will not be necessary to bring any of the parties to the High Court in Dublin. It will only be a retrial, as the Minister has said, on the transcript of the evidence. There is no substance to that point.

The Minister also said that the transcripts are expensive. Admittedly, if the hearings are long you have to pay quite a bit of money for a transcript, but you have to pay for the transcript only if there is to be an appeal. If there is not an appeal the amount involved is only a few guineas a day and that is invariably paid by the insurance companies because they say they want a transcript and, therefore, they pay for it.

I do not think there is any great difficulty in getting stenographers. You have to have stenographers at the moment in criminal trials before juries in the Circuit Court. They are quite numerous. Certainly they are numerous on the northern circuit where there are trials of smuggling cases before juries and cases before juries arising out of road traffic accidents causing death or serious bodily injury. Stenographers have to be used in all those cases and there does not seem to be any great difficulty in getting them.

As I say, if a person decided to pay the cost of the transcript he must think he has good grounds for an appeal or he would not do so. Indeed, many of these appeals are in cases where the judge has wrongfully — and by wrongfully I mean contrary to law — withdrawn the case from the jury. That is where many of these appeals are. A party will not be likely to order a transcript and pay for it unless he thinks he got a raw deal and that he will succeed on appeal. In most of the road traffic accidents it is the insurance companies who will be paying for it. If it is the plaintiff who is appealing, as often as not it is the solicitor who is paying for the transcript because many of his clients will not be able to put him in funds to pay for it. That is another argument for saying that there will be grounds for an appeal before the transcript is purchased.

The set of circumstances that we are creating here are totally and utterly different from those that prevailed in the Circuit Court in the thirties or, indeed, up to this date. It could be argued that £600 is not a very sizeable amount taking into account the present value of money and that the case could be dealt with by a judge without running any risk of a miscarriage of justice. We are creating a different set of circumstances now in which as much as £2,000 could be awarded. It is very difficult to see why a jury is necessary in a case involving £2,500—I will not say £2,001 — and is not necessary in a case involving £2,000.

With regard to the wording of the amendment I do not really want to have any long argument about it. The effect is to delete section 6 and to provide that the system which prevails at present for appeals from trial by judge and jury in the High Court will be applied to trials by judge and jury in the Circuit Court.

The Minister's arguments, I regret to say, have not impressed me. I do not think he has made a case for the abolition of juries in the Circuit Court. The first point which he relies on — and one to which I did not advert when I was moving the amendment — is that the report of the Committee on Court Practice and Procedure recommended that juries in the Circuit Court should be abolished. With respect to the gentlemen who comprised that committee, their report, I suggest, contains a certain amount of illogicality. For example, at paragraph 32 on page 20, they make the point which I made that, in certain cases, fraud, defamation, malicious prosecution, seduction, false imprisonment, a jury is the more satisfactory tribunal. They go on to say they are satisfied that actions of this type which involve a person's liberty are eminently suitable for jury trial.

All those actions lie in the Circuit Court. A committee which specifically said that they are suitable for jury trial cannot be guilty of good logic if they abolish trial in a court where such actions can be taken. The fact that the Committee on Court Practice and Procedure recommended the abolition of jury trial is not, to my mind, an argument in itself for abolishing it. I have no doubt that there are numerous recommendations from such committees which have come before the Minister and which have not been accepted. It is a weak argument on the Minister's part that he is following the committee recommendation.

The committee also said at paragraph 47 that, unless it can clearly be shown that the cause of justice would best be served by either abolishing or severely curtailing the present right to trial by jury in civil actions in the High Court, there is no case for doing so. They went on to say that, in their opinion, not only had no such case been established but they were satisfied that the advantages of civil jury trials in serious cases far outweighed their disadvantages.

Surely an action for £2,000 constitutes a serious case and these are the type of cases with which the Circuit Court will be dealing from now on. My argument for the retention of jury trials is reinforced by this committee. Their statement saying that no case has been established for the abolition of juries was made after they had heard much evidence and all the submissions that were put to them. I suggest to the Minister that because of the increased jurisdiction proposed, the cases will be serious and that trial by jury should be retained. I would reject the Minister's argument that the recommendation of the committee is a valid reason for abolishing jury trials. The Minister makes the point that the amendment limits the appeal from the Circuit Court. Again, I reject this argument because what the amendment seeks to do is to make the appeal from a jury trial to a judge of the High Court on a point of law only. That does not limit citizens' rights because the question of fact would have been decided already by 12 men. At the moment, a full re-hearing lies only when the questions of fact have been decided by one man— the judge — and if that should be the nature of the trial in the Circuit Court, my amendment would not affect the present position where there can be an appeal and a full rehearing. The Minister mentions, too, that if the appeal is to be on a point of law only, the cost of a transcript could be prohibitive. I do not think this argument goes to the basis of the matter because that factor applies equally now to appeals from the High Court to the Supreme Court.

The Minister said that the amendment would have the effect of changing the venue of the High Court appeal if the appeal was to be on a point of law only and he referred to the provision of the 1936 Act which sets out that where there is no oral evidence in the Circuit Court, the appeal is to the High Court in Dublin but that where there is oral evidence and there is to be a rehearing, the appeal is to be to the High Court on circuit. I doubt if it follows from my amendment if the appeal on a point of law following a jury trial in the Circuit Court, would be to the High Court in Dublin. Oral evidence would have been offered in the Circuit Court and I think the appeal would lie with the High Court on circuit. In any event, these matters are consequential to the basic principle of whether we have trial by jury. The Minister said, too, that there would be a trend in this amendment back to the pre-1936 position when, I understand, the system of appeal was to two judges of the High Court and if they did not agree, there was a further appeal to the Supreme Court. In effect, there were two appeals before a litigant could have finality. I fail to see how this amendment goes in any way towards getting back to that ridiculous position. I do not think the Minister has overcome the force of argument regarding serious cases such as that highlighted by Deputy Fitzpatrick when he said that in cases of £1,500 there is a right to trial by jury while in cases of £2,000 there is no such right. I cannot see why there should be a distinction. It is basic to the common law system we operate here that there be a right to trial by jury and that the facts as between the contending parties would be assessed by 12 persons. To my mind there has not been put forward any argument to oppose that principle.

The fact that there may be two different types of appeal is not in itself wrong nor would it result in any injustice. The appeal by way of re-hearing would be in a case where only one person judged the facts and it would be good to have those facts judged secondly by the High Court. There would be no re-hearing where the facts in the first instance were adjudged by 12 persons and it is logical that their decision would be final but that an appeal would lie on a point of law. I have read the Minister's arguments as put forward by him in the Seanad and they reduce themselves to the points he made here rather more briefly. I suggest to him that those points do not constitute valid arguments for doing away with something as basic as the right to trial by jury particularly now with the jurisdiction going in effect to High Court jurisdiction.

I want to correct something that I said earlier. That was that the appeal under this amendment would necessarily be to Dublin. That is not entirely correct and this is due to one of the defects in the amendment in that it does not specify to where the appeal would be. Although the overall effect of the amendment is the same as that put down by Senator Kelly in the Seanad the wording used in Senator Kelly's amendment made it mandatory that the appeal was to Dublin. That is not mandatory here but it would appear that it could be to Dublin as often as not.

If it was on a point of law, I do not think that would be any great hardship.

(Cavan): There is one point concerning the cost of a transcript. I think that an appeal on the transcript, even paying for the transcript, would be cheaper at the present time than a full-blown appeal where one would have to produce, maybe, ten witnesses, some of whom might be professional and receive considerable fees. Therefore, that argument is out.

When one appeals, one gets a retrial.

(Cavan): He would be entitled to a retrial if he won the appeal.

He may not win the retrial.

(Cavan): I am not basing this argument entirely on the basis that a plaintiff will be likely to get more damages. I am basing it on the common sense that a jury can bring to bear on a dispute between people. There have been cases in this country where a plaintiff might have got damages in a libel or a slander action from a judge alone but a jury, taking an overall view of the case and not applying, perhaps, absolutely strict law but bringing their knowledge of people and places and of humanity in general, dismiss cases.

It is very difficult to argue against trial by jury in substantial cases. The fault does not lie with the jury and neither does it lie to any great extent with the Minister because he has not been in office long enough for that. Rather, the fault lies with his predecessors who did not tidy up the procedure. The whole argument is that trial before a jury takes too long. The reason for that is that we have done nothing in this country that would expedite trial of court actions. We have done nothing to try to agree before going to court on certain evidence that is really non-contentious. Every fact has to be considered in court. Some solicitors try to agree special damages but there is no reason why, say, an engineer's evidence should not be agreed and the engineer left at home to get on with his work.

It is open to the parties to do that.

(Cavan): Yes, but it is not availed of. There should be some measure whereby a county registrar or Master of the High Court or some other such person could do it. Medical evidence, too, could be agreed so that the doctors could be left at home to attend their patients instead of spending a couple of days in court in Dublin against their will. If that was the case, a trial would not take any longer before a judge and jury than it would take before a judge alone. I think that is where we are to blame. We have not made any serious effort to modernise trials or to bring court procedure up to date. We are doing it now, I suppose, but it is unfortunate that we simply attack the system that has given satisfaction and leave the other slovenly procedures to continue. The Minister should seriously think about this. Apparently he has made up his mind and is not open to conviction but it is hard to see the logic of his whole approach unless it is that this is the thin end of the wedge, an experiment to see how it works and then go the whole hog.

I made it very clear in the Seanad and here as well that, as far as I am concerned, it is not the thin end of the wedge.

(Cavan): If that is so, it is hard to see the logic of the proposal. It is difficult to see the differences between £2,000 and marginally over £2,000.

One could say the same about £600 and £601. One must fix the jurisdiction somewhere. In fact, I think Deputy Fitzpatrick's argument on Second Stage was that, if anything, the jurisdiction for the Circuit Court should be higher than £2,000.

(Cavan): I still say that. I would have seriously thought of bringing it up to £5,000 but not if the jury is to be taken away, only on the basis that the jury trial remains. There is a lot to be said for going higher than £2,000. I think the Minister will see that it was largely the Bar who were in favour of the lower jurisdiction.

I remember the discussions at the time as to what the figure should be. I do not think one can talk about the progressiveness of the Bar after that.

(Cavan): The laymen, I think, were in favour of a much higher jurisdiction. One layman and one of the judges of the District Court were in favour of £5,000.

Several people were in favour of £1,000.

(Cavan): £1,500. I would not be in favour of that but I would be in favour of retaining trial by jury.

Amendment, by leave, withdrawn.
Question put: "That section 6 stand part of the Bill."
The Committee divided: Tá, 69; Níl, 63.

  • Aiken, Frank.
  • Allen, Lorcan.
  • Andrews, David.
  • Barrett, Sylvester.
  • Boylan, Terence.
  • Brady, Philip A.
  • Brennan, Joseph.
  • Brennan, Paudge.
  • Briscoe, Ben.
  • Brosnan, Seán.
  • Browne, Patrick.
  • Browne, Seán.
  • Burke, Patrick J.
  • Carter, Frank.
  • Carty, Michael.
  • Colley, George.
  • Collins, Gerard.
  • Connolly, Gerard C.
  • Cowen, Bernard.
  • Cronin, Jerry.
  • Crowley, Flor.
  • Cunningham, Liam.
  • Davern, Noel.
  • Delap, Patrick.
  • de Valera, Vivion.
  • Dowling, Joe.
  • Fahey, Jackie.
  • Faulkner, Pádraig.
  • Fitzpatrick, Tom (Dublin Central).
  • Flanagan, Seán.
  • Foley, Desmond.
  • Forde, Paddy.
  • French, Seán.
  • Gallagher, James.
  • Geoghegan, John.
  • Gibbons, Hugh.
  • Gibbons, James.
  • Gogan, Richard P.
  • Healy, Augustine A.
  • Herbert, Michael.
  • Hillery, Patrick J.
  • Hilliard, Michael.
  • Hussey, Thomas.
  • Kenneally, William.
  • Kitt, Michael F.
  • Lalor, Patrick J.
  • Lemass, Noel T.
  • Lenihan, Brian.
  • Loughnane, William A.
  • Lynch, Celia.
  • Lynch, John.
  • McEllistrim, Thomas.
  • MacSharry, Ray.
  • Meaney, Thomas.
  • Molloy, Robert.
  • Moore, Seán.
  • Nolan, Thomas.
  • Noonan, Michael.
  • O'Connor, Timothy.
  • O'Kennedy, Michael.
  • O'Leary, John.
  • O'Malley, Des.
  • Power, Patrick.
  • Sherwin, Seán.
  • Smith, Michael.
  • Smith, Patrick.
  • Timmons, Eugene.
  • Tunney, Jim.
  • Wyse, Pearse.

Níl

  • Barry, Peter.
  • Barry, Richard.
  • Belton, Luke.
  • Belton, Paddy.
  • Bruton, John.
  • Burke, Joan.
  • Burke, Liam.
  • Burke, Richard.
  • Burton, Philip.
  • Byrne, Hugh.
  • Clinton, Mark A.
  • Cluskey, Frank.
  • Collins, Edward.
  • Conlan, John F.
  • Coogan, Fintan.
  • Cooney, Patrick M.
  • Cosgrave, Liam.
  • Fox, Billy.
  • Governey, Desmond.
  • Harte, Patrick D.
  • Hogan, Patrick.
  • Hogan O'Higgins, Brigid.
  • Jones, Denis F.
  • Kavanagh, Liam.
  • Keating, Justin.
  • Kenny, Henry.
  • L'Estrange, Gerald.
  • Lynch, Gerard.
  • McLaughlin, Joseph.
  • McMahon, Lawrence.
  • Malone, Patrick.
  • Murphy, Michael P.
  • Cott, Gerard.
  • Coughlan, Stephen.
  • Creed, Donal.
  • Crotty, Kieran.
  • Cruise-O'Brien, Conor.
  • Desmond, Barry.
  • Dockrell, Henry P.
  • Dockrell, Maurice E.
  • Donegan, Patrick S.
  • Donnellan, John.
  • Dunne, Thomas.
  • Enright, Thomas W.
  • Esmonde, Sir Anthony C.
  • Finn, Martin.
  • FitzGerald, Garret.
  • Fitzpatrick, Tom (Cavan).
  • Flanagan, Oliver J.
  • O'Donnell, Tom.
  • O'Donovan, John.
  • O'Hara, Thomas.
  • O'Higgins, Thomas F.
  • O'Leary, Michael.
  • O'Reilly, Paddy.
  • O'Sullivan, John L.
  • Pattison, Séamus.
  • Ryan, Richie.
  • Taylor, Francis.
  • Thornley, David.
  • Timmins, Godfrey.
  • Treacy, Seán.
  • Tully, James.
Tellers: Tá, Deputies Andrews and Meaney; Níl, Deputies R. Burke and Dr. Byrne.
Question declared carried.
SECTION 7.
Question proposed: "That section 7 stand part of the Bill."

I welcome the increased jurisdiction proposed by section 7. Up to now the District Court had jurisdiction up to only £50 and this is quite ridiculous in this day and age particularly as our District Courts are presided over by professional lawyers, not like in England where the magistrates' court is composed of a bench of laymen advised by a professional clerk. Indeed, in the District Court, the standards of advocacy and litigation generally are quite high enough to warrant this increase in jurisdiction.

This is a very sensible increase as it will bring the venue to all parts of the country for a great number of small claims, claims probably arising from traffic accidents, and will ensure that these can be heard in the person's local town or village, as the case may be. The increase in jurisdiction will bring certain problems with it, such as problems of staffing in the District Court office, in the sense that District Justices may not have sufficient time to deal with the increased work the enhanced jurisdiction will bring to their courts. It will also bring problems of costs. It will bring problems as to what, if anything, is to be done about the question of pleadings in the District Court.

On the question of staffing, I should like to take this opportunity of paying tribute to the universal efficiency of District Court clerks. I have never yet met a District Court clerk who was not absolutely and completely on top of his job, au fait with all the rules and regulations and all the laws pertaining to District Court practice. I have no doubt but that this able group will be able to deal without any difficulty with the increased work which will come in their way.

Whether or not there are enough District Justices to deal with the increased jurisdiction and the extra work involved in that increased jurisdiction is a moot question. It is common experience in the District Courts that the amount of trivial criminal business is on the increase; road traffic prosecutions are on the increase and the average District Court day is now taken up, as to 90 per cent of it, with road traffic prosecutions of one kind or another, even trivial ones for defective lights, no tax, and so forth. These things take time as they have to be proved.

If a dangerous driving or drunken driving charge is added, invariably the business of the court goes on after lunch non-stop up to four o'clock, or thereabouts, and unless the sittings are increased there will not be time to deal with the increased civil business. If the number of sittings are increased, will there be, I wonder, enough justices to deal with these increased sittings? Occasionally justices may have half days, but these are not sufficiently frequent or regular to enable one to say that they could be appointed specially for civil business. There will have to be, as there is in some court districts at the moment, a division between days. There will have to be a summary day and a civil business day.

At the moment civil business and police business are done on the same day in most towns. This has proved fairly satisfactory but, if a contract and to case, involving jurisdiction up to £250 comes into the District Court, a special day will have to be set aside to deal with this because I cannot see how any of these actions could be heard in any District Court together with the police business that has to be done there. There will have to be separate days for civil business with no other business listed for those days. If this is done, it could happen that there would be days when the civil list would collapse due to settlements and unexpected adjournments, but that is a risk that will have to be taken. I think this will involve the appointment of extra justices. There is nothing to indicate the Minister's mind in this matter and I should be interested to hear what he has to say about it.

Another point that will have to be considered is the question of costs in the District Court. At the moment the kind of costs in which an unsuccessful litigant will be involved are reasonable and are such that no man will be deterred from taking his case to the District Court. The responsibility of practitioners will be increased with increased jurisdiction and there will have to be some compensation for that increased work. This is the old dilemma I mentioned when speaking on section 2. How will the Minister remunerate practitioners adequately and, at the same time, avoid making the court too expensive? This will have to be left to the good sense of the costs committee. However, I would emphasise that this is something that will have to be decided before the Act comes into operation. The Act is scheduled to come into operation on 1st March next and, in effect, we have only two months in which to change the costs and make any other consequential changes necessary in the rules of the District Court.

How does the Minister propose to regulate civil procedure in the District Court? Will he set up a form of pleading akin to that pertaining in the Circuit Court or will he leave it as it stands? In normal civil business a statement of claim can be expressed rather informally and I have not so far seen any objection taken to it. There is, I think, a very sensible decision of the High Court on this question of pleadings. Excessive formality and excessive detail are unnecessary so long as the cause of action is clearly shown and can be clearly seen.

The only thing that is lacking in the rules at the moment is provision for notice of particulars. At the moment, so far as I recall, there is provision for notice for particulars only in an action for liquidated damages arising out of contract. In that case the defendant can serve a notice for particulars and it is provided in the rules that these must be given before judgment can be made. There is no such provision in the case of unliquidated claims and, if the jurisdiction goes to £250, it is essential that such provision should be made.

Whether there is any need to put in formal heads of defence is something on which I have an open mind. So far, lack of a formal defence in the District Court has not inhibited trials and has not, in my experience, told against defendants. While I say that there is no provision for notice for particulars, they have been issued and practitioners generally have answered such notices as between each other and the issues have been very well defined in advance, sufficiently well defined for a satisfactory trial.

If the present form of civil process, with an informal statement of the cause of action, is retained, and provision for notice for particulars is inserted into the rules in the case of unliquidated claims, these two documents would be sufficient to get the matter to hearing and have the issues clearly defined beforehand. I do not think the notice for particulars should be in any particular form. I think it should just take the form of a letter of request setting out the matters requested. If there is any dispute as to what should be furnished or not furnished, as in the High Court, I think that matter will have to be decided by the court when the case comes for hearing. The court will decide whether it is a matter of evidence or a matter of furnishing particulars in advance.

It would be a pity if the smooth and easy procedure of the District Court, which can, and has been, operated by laymen, were stifled, made too cumbersome or too technical. If these points are dealt with I look forward to section 7 of this Bill making a great change, a change for the better.

I welcome the extension of the jurisdiction of the District Court but I think it should be extended still further. Certain matters have been brought to my attention at constituency level by members of the legal profession. I suggest the Minister should also include in the jurisdiction applications for licences under the Intoxicating Liquor Act, malicious injury claims up to £1,000—an arbitrary figure, but these are relatively small claims now — and valuation appeals and appeals from decisions of local authorities in respect of such matters as closing orders, which are local matters. If the District Court has power to grant a money-lender's licence, a public dancehall licence, a bookmaker's licence on appeal from a Garda decision or an off-licence for the sale of intoxicating liquor then it could usefully and effectively have jurisdiction in the matters I have just suggested. Too much song and dance is made about applications for intoxicating liquor licences in the Circuit Court. It should not be necessary in 1971 to have all the ceremony and paraphernalia surrounding these applications in the Circuit Court. One would think an application was being made to open a publichouse on a new planet. A great deal of the time of the gardaí is spent dealing with such applications. The District Court can grant an order for the payment of rates up to any sum and the Minister might bear this fact in mind. The matters I have mentioned could usefully come within the jurisdiction of the District Courts. If this extended jurisdiction was given it would take a good deal of work away from the Circuit Courts which are grossly overworked and it would expedite the work of the courts in general. As many members of the legal profession and local authority officers have to travel great distances in and out of the Dublin area this measure could be useful in rationalising much of the work which has to be done.

(Cavan): Like Deputy Cooney, and to a certain extent Deputy Desmond, I approve of an increase in the jurisdiction of the District Court. I would have gone a little further than the £250 but at any rate it is a move in the right direction. I wonder if we have room to implement section 7. I agree with Deputy Cooney, it would be a pity if we had to have any formal pleadings because that would be taking away from the advantages that this section will confer on litigants who wish to litigate on comparatively small matters. At the same time the rules of court should make some provision for an informal exchange of letters which would clarify the issues at stake, otherwise a plaintiff will have to come to court and prove every single item or he might find himself being dismissed on the grounds that some formal proof had not been complied with. This difficulty could be got over by providing rules of court which would stipulate that the plaintiff could serve a notice on the defendant asking him to admit certain facts or vice versa and the other side would be obliged to answer such a notice. In my opinion it would not be necessary for this notice to be filed on the court files but it would be necessary if this exchange of letters took place between the parties. In that way certain formal proofs might be dispensed with and certain expenses might be avoided. There is not any proper procedure in the District Court at the moment for making a lodgment with the defence. It can be done but I do not think there is any proper procedure there. Here again the rules of the District Court will have to be revised because as from now that court will be dealing with more substantial claims.

We are handing over to the District Court jurisdiction to give decrees up to £250 in contract and tort and indeed up to £1,000 in certain other matters, but I do not think there is any machinery by which a District Court decree can be converted into a judgment mortgage and that is essential. Garnishee procedures are available in the Circuit Court. There is also a procedure for recovering an amount due by way of appointing a receiver and by way of attachment and charging orders. A similar procedure will have to be written into the rules of the District Court otherwise this will be a court with power to grant decrees up to £250 but with no real machinery to enforce those decrees.

Suppose a claim is brought in the District Court on behalf of a minor and he gets a decree for £250. How is that minor going to be protected? Is the money to be handed over to the guardian and if so is there any guarantee that he will not spend it foolishly or spend it otherwise than for the benefit of the minor? Is there any guarantee that if a minor of 16 years gets a decree for £250 that that sum will be there when he is 21? There is no machinery in the District Court at present, of which I am aware, to deal with this and it will have to be provided. Perhaps it will be decided to transfer this to the Circuit Court and be lodged there for him. Something will have to be done or otherwise it will not be possible to proceed in the District Court on behalf of a minor and be sure that the minor will be protected. Most parents would lodge the money in the post office or some such place but some parents are living from hand to mouth and if they get their hands on a sum of money like that they might use it for the payment of general household expenses rather than for the benefit of the minor.

These are matters which strike me in relation to this section. Provision should be made for some form of informal pleadings, not unnecessary pleadings, but pleadings that will cut down the issues that are really at issue and thereby avoid the necessity of bringing unnecessary witnesses to court. If the defendant finds the plaintiff in court minus some formal witness he would be very foolish not to avail of it. If the procedure that I have suggested were adopted that could be sewn up beforehand. There is also the question of enforcing District Court decrees and the question of a minor.

The section has been generally welcomed. Most of the comments on it have been to the effect that the District Court should be given jurisdiction in matters in which it does not have jurisdiction at the moment, but of course any such extension of jurisdiction to different types of cases as opposed to this increase in monetary jurisdiction would be matters for Bills appropriate to the branches or codes of law involved. For example, if it were decided to give the District Court sole jurisdiction in licensing — it has jurisdiction at the moment in every type of licence application except in applications for new on-licences and for new club licences — the amendment would have to be made in a licensing Bill rather than in a Bill of this kind. I am not saying that the suggestions put forward were not worthy of consideration. Most of them were, but their implementation would be a matter for a Bill appropriate to each sector of the law rather than to a general Bill of this kind which deals with monetary limits.

The second major point was in relation to procedures or possible changes in procedure under the proposed increased jurisdiction. These procedures would be a matter for determination in the rules of court by the District Court Rules Committee. It is not a matter for me to initiate changes in the rules. No doubt the committee shortly will send me new rules for my concurrence. Broadly speaking, I agree with what has been said today as to the type of rules that might be desirable. I agree that no more elaborate pleading system should be introduced than exists at the moment because it seems to be satisfactory and simple to operate.

I had been under the impression that there was provision for a notice or a letter for particulars in the District Court but I understand from Deputy Cooney that there is not. In practice, most practitioners write and reply to these letters as a matter of course and I do not think there is any great problem there. If a reply was not forthcoming, I should imagine they would apply to the justice to adjourn the case until it is forthcoming. In order to give that usual procedure full backing, I am sure that the District Court Rules Committee will avail of the opportunity to make a rule to that effect.

So far as lodgments are concerned, there would be two courses open to the committee. Either they could make new rules under which lodgments could be made and retained in the District Court for the benefit of the minor, or they could arrange to have such moneys transferred to the Circuit Court accounts. I do not envisage that it would be necessary to apply in the Circuit Court to get the money out. It would be necessary to go only to the District Court and when that court granted an application for payment the Circuit Court would forward the cheque to the appropriate person.

These are matters for the rules making committee and I look forward to receiving the rules as soon as possible. The Bill has been published since last June and the committee are aware in broad terms of the likely outcome. Although there have been some amendments to the Bill, they did not go to the root of the Bill and the jurisdiction changes are the same as when published. I should imagine the committee have made a fair amount of progress and I do not anticipate that there will be any problem in having the rules ready as from 1st March.

The new jurisdiction and procedures laid down by the Bill will apply only in respect of cases commenced on or after 1st March so that it would be some months later before some of these cases would come for hearing.

I have covered in a general way most of the points raised. Deputy Cooney referred to the staffing of the District Court under the increased jurisdiction. We recognise that there will be increased work and I am providing some additional staff. I cannot say how many at the moment but they are easily recruited. So far as the sitting hours of justices are concerned, at the moment they seem to me to be remarkably uneven. I have seen a return for 1970 of the hours put in by each justice and there seems to be extraordinary discrepancies between them. These figures are not comparable because some justices are very fast and some are very slow but in some cases justices appear to sit five times as long as certain other justices although on the face of it the areas appear to be similar in size. These figures are not comparable and they could be misleading because some justices will do as much in one hour as another would do in four hours. I am not saying that the man who is going quickly is not doing his job properly. He may be doing it as well if not better than the man who takes an excessive length of time.

The Committee on Court Practice and Procedure have made some recommendations with regard to re-organisation of the District Court. I have not studied them in detail but my impression from their 12th interim report is that if a reorganisation on the lines they suggest is carried out extra district justices would not be necessary but some increases in staff would be necessary. If it is necessary I shall appoint another one or more additional district justice. I am inclined to think we might solve problems by changing around the districts to make the burden of work more evenly distributed.

Question put and agreed to.
Sections 8 and 9 agreed to.
SECTION 10.
Question proposed: "That section 10 stand part of the Bill."

This section deals with enforcement of court orders. I would draw the attention of the Minister to what might be called the most unsatisfactory part of District Court activities, namely, the collection of debts pursuant to the Enforcement of Court Orders Act.

As the Minister knows, the procedure is to obtain a decree, which is simple and not fraught with technical difficulty. If the debtor is unlikely to produce anything to the sheriff the plaintiff can apply for an instalment order. This is an order which requires the defendant to attend in court on a day specified in the order to be examined as to his means with a view to the district justice making an order for so much per week. It is necessary to allow 21 days service of the order. My experience is that in nine cases out of ten it is ignored by the debtor. The district justice then has to rely on what he is told by the plaintiff's solicitor as to the defendant's means and he then makes what he thinks is a fair order, having regard to whatever scanty information is before him. He makes what is called an instalment order for the payment of the debt, usually by weekly instalments of whatever amount is fixed which he thinks is fair. This order is also served, and in theory, the debtor should then commence paying the weekly sum. If he does not do so, plaintiff's remedy is to issue a summons to have him attend in court to show cause why he should not be committed to jail for his failure to pay the weekly instalments.

As described, that seems a simple enough and speedy enough procedure, but in practice it is extremely cumbersome. After the committal summons is served, the debtor at that stage will begin to sit up and take notice because he is in danger of being put away. He will probably come in and plead that the original order made was too high for him to meet and seek to have it voluntarily reduced. He may come into the District Court to make this plea to the justice and the justice may vary the instalment order down to an amount expressed to be equitable by the debtor. Again, he may make a few payments and then fall down, and it is necessary to start the whole procedure over again. I wonder has the Minister ever considered in some way streamlining this collection of debts. While it may seem a trivial enough matter in relation to the general business of the courts, as far as merchants up and down the country are concerned, it is a matter of considerable importance that they are able to get after the defaulting debtors in an effective and speedy way.

At the moment these matters have to be dealt with by solicitors through solicitors' offices and it is my experience that there is no solicitor who wants to deal with the enforcement of Court Orders Act procedure. It is expensive in the sense that it involves the expenditure of a considerable amount of court fees, paying stamps on various court documents to be served, paying a summons server if there is a summons server in the area, and fees to commissioners for oaths and, in addition, there is quite an amount of work in preparing affidavits of debts, of service and the various other documents. At the end of it all, the solicitor may find himself collecting 2s 6d a week or not even in regular weekly payments, having to keep books and submit accounts to the creditor.

I suggest that the Minister might consider putting the actual collection of the debt, or the operation of the Enforcement of Court Orders Act procedure, in the hands of the District Court office. These offices are highly efficient and I do not think they would be unduly burdened by having this extra work put into them. I think, too, that the matter has been dealt with entirely by the court and there is no solicitor acting as a buffer between the parties and the eventual sanction of the court would ensure more speedy collection and a better rate of payment, and this is what the Act is all about. I put that suggestion to the Minister for consideration at a future date or perhaps even for a new Part of this Bill.

I agree with Deputy Cooney that the present enforcement procedures are unsatisfactory and over-elaborate. I understand that the District Court Rules Committee have draft rules in hand which would simplify this considerably. I have not yet received them, but they did say it would be necessary to amend the Enforcement of Court Orders Acts and if an amendment was made, as it were, taking the procedure out of the Acts, their draft rules, if I then concurred in them, could come into operation and could of course, be amended more easily. I certainly would be willing to fall in with their proposals, in general terms anyway because I do not know the details, to simplify this procedure, and since I think it would be necessary to amend the Judgment Mortgage Acts to enable judgment mortgages to be registered on the strength of District Court decrees, I might at the same time, provided I got the draft rules at that time, be able to incorporate with that the necessary amendments of the Enforcement of Court Orders Acts.

It is encouraging to hear that.

Question put and agreed to.
Sections 11 and 12 agreed to.
SECTION 13.
Question proposed: "That section 13 stand part of the Bill."

(Cavan): We had a discussion on this on Second Stage. I know, and I am sure the Minister knows, that the District Court bench and the District Court Clerks Association are not entirely satisfied with this section, or at least with this section taken in conjunction with the next. The District Court is now to become a court of record, and whether it is for this House, or for the Oireachtas, to provide the machinery by which these records are to be kept or whether that again is a matter for the rule making committee — it is probably more a matter for the rule making committee — it is felt that provision should be made for registering District Court decrees. There is no such provision at present. Probably what I want to say could more properly be said on section 14 but the Minister will appreciate that the converting of the District Court into a court of record does impose further considerable obligations, work and duties on District Court clerks and in that event, perhaps, the status of District Court clerks should be upgraded and the salaries accordingly adjusted. I hope that the District Court Rules Committee will make proper rules for retaining the records, because as the matter stands at the moment, we are simply saying that the District Court is to be a court of record and not imposing on anybody any obligation to keep records.

Under section 14, the District Justice has to sign an order, if it is required. I think that in the vast majority of the cases no orders are required, and I should like the Minister to say whether the old minute book is to be scrapped or whether it is to be retained. There was not very much detail put into that book but it certainly was a book in which the issue before the court could be found and the decision of the court could be found, and the order could be made up years afterwards from this minute book. Perhaps the Minister would deal with that in a general way.

The two sections are really bound up together and, with your permission, Sir, I will have to talk about section 14 as well, because this section in conjunction with it proposes an amendment of the present law related to District Court orders and records which was recommended by the District Court Rules Committee. Under section 21 of the Criminal Justice Act 1951, a justice of the District Court is required to enter concisely in a minute book, or a charge sheet in the Dublin Metropolitan District, his decision in every case of summary jurisdiction. He must also sign each entry which is then held to be the decision of the court. The entry made by the justice is only prima facie evidence of the decision and the court's decision can be upset on certiorari proceedings if there is any mistake or omission in the entry in the minute book. As a result of this, it is necessary for justices to make elaborate and time-consuming entries and it is possible to get the High Court to upset perfectly good decisions of the District Court on technicalities in regard to entries in the minute book.

It is proposed in section 13 to declare the District Court to be a court of record. This appears to be the present position, although there is no statutory enactment similar to section 21 of the Courts (Supplemental Provisions) Act, 1961, which was formerly section 47 of the Courts of Justice Act 1924, which provides that the Circuit Court should be a court of record. In section 14 it is proposed that in any proceedings relating to a decision of the District Court, regard will be had only to a formal order drawn up by the District Court clerk and signed by the justice. The section will ensure that orders will be drawn up and signed only when required and the provision for the drawing up of the orders by the District Court clerk gives statutory effect to the present practice, and I may add that section 14 is on the lines requested by the District Court Clerks Association——

(Cavan): Section 14?

Subject to one thing, that they wanted it to go a bit further and that they themselves would sign the order, but I amended section 14 in the Seanad to meet in part their request. I cannot see a justification for relieving the district justice of final responsibility in the signing of his own orders. This has been a feature of the District Court system for a long time and while it is true that it contrasts with the position in the Circuit Court where the others are signed not by the judge but by the county registrar, the important distinction is that the county registrar is a legally qualified person of at least eight years standing and usually a good deal more than that. It is probably fair to say that these two sections, which are there at the request of the District Rules Committee, have the agreement of justices and subject to one fairly minor point, have the approval of the District Court Clerks Association also.

(Cavan): Am I right in thinking the minute book is gone?

It is. The minute book was extremely troublesome and very unreliable and even if this section were not about to be passed the District Court Rules Committee had recommended, as far as I can recollect, scrapping the minute book anyway. The minute work will go in the sense that it is the justice's official minute book but, of course, a book will be kept in which decisions will be noted.

(Cavan): My difficulty about these two sections is that we are making a District Court a court of record now and if an order is required it is to be made up by the clerk and signed by the district justice. But if an order is not required for five years who is to make it up if there is no record?

The person having custody of the book.

(Cavan): What book?

The book in which the clerk at the time took the note of the decision.

(Cavan): But there is no obligation on the clerk or on the district justice to take any such notes. There should be some provision——

Provision could be made in the rules. There is no provision in the Circuit Court rules or, indeed, in legislation in relation to the Circuit Court imposing a duty on the county registrar or any of his staff to take notes but it is done and I am sure the same applies in the High Court. It is clearly part of their duty. One could argue indirectly at least that section 14 can impose that duty on the clerk because it imposes on him the duty of drawing up the orders.

(Cavan): If required. It might not be required at the time but it might be required five years afterwards to prove that the claim was already dismissed or that somebody was barred from bringing it again. We are to rely on the efficiency of the District Court clerks to do something that they are not obliged to do, something not prescribed for them, to organise their own system of keeping these records—that is what we are doing. As I see it, it is very seldom that an order of the District Court will be required at the time but if we are making it a court of record it could be required certainly within five or six years. A District Court clerk may have died or a justice may have died and if no record was kept at the time I fail to see how an order can then be drawn up.

The Deputy will agree that precisely the same problem could arise in the Circuit Court or the High Court or the Supreme Court. It does not seem to arise in practice, and therefore there is no reason why it should arise in the District Court.

(Cavan): I do not know whether the rules of the superior courts provide for the keeping of records. In the High Court there is a file kept and I am sure the result of the trial is written into it and the file removed after some time to the general records office. I do not know whether that is done as the result of established practice or because the rules of court require or some statute requires it to be done. The Minister has told me that the only book that was ever kept, the minute book, is being scrapped and, as far as I can see, there is no obligation on the District Court clerk or anybody else——

There is. It is the duty of the clerk to draw up the orders and he must have something on which to base them. Precisely the same situation exists in the Circuit Court, the High Court and the Supreme Court.

(Cavan): If the Minister could satisfy me that there was such a duty on the District Court clerk I should be satisfied but the Minister can only tell me that it is done in other courts and he is sure that it will be done here. That is not enough.

The words of the section say that when an order is required it shall be drawn up by the District Court clerk. It is not the justice who has to keep the note on which to draw it up; it is the District Court clerk who has to draw it up and, therefore, he has to keep the note on which to draw it up. He would be failing in his duty if he is asked to draw up an order, the duty which is imposed on him by this section to give the order. He cannot get out of this duty by saying that he did not keep notes in a book.

(Cavan): I think it should be written into the Bill that he should keep such particulars as will enable him to draw up an order. If that is not done here, the rule making committee should do it. What will happen if a District Court clerk should die and then an order is required?

That problem can arise in any other court.

(Cavan): I should certainly like the rule making committee to deal with it and I should like the Minister to draw their attention to it. If the rules come before him without such a provision, I think he should——

I shall do that.

(Cavan): The District Court clerks feel very strongly that they should be empowered to sign these orders and I think the district justices feel the same way. Otherwise, it could mean delay in having the order signed as it might mean sending the order backwards and forwards through the post. The Minister has said he does not think District Court clerks should be entrusted with the signing of these orders because they are not professionally qualified. The standard of our District Court clerks is exceptionaly high. One is impressed by their standard even if they have not the benefit of formal legal training and do not hold legal qualifications. They are entrusted with so many other things that they could well be entrusted with signing these orders.

Question put and agreed to.
Section 14 agreed to.
SECTION 15.

As amendment Nos. 2, 3 and 5 are related, perhaps, they could be discussed together.

I think they could. I am not sure as some of them could stand on their own. I move amendment No. 2:

In subsection (2) (b), page 4, line 35, to delete "place or time not" and substitute "courthouse".

Section 15 has the commendable motive, as the Minister explained in the Seanad, of enabling speedy proceedings to be taken in the District Court in an emergency situation. The example he gave there was where it might be necessary to issue a summons consequent on an outbreak of foot and mouth disease so as to get very quick remedial action. One can understand the need for a quick procedure and, indeed, if one thought about it one could agree that there is a need for a fast procedure.

Of course, such a procedure carries within itself certain elements of danger. The section as drafted lets these dangerous elements in. I have no quibble with the Minister's anxiety to get a speedy hearing of an urgent matter, but I would be anxious to ensure that that speedy hearing, and the procedure for it, would not lead inadvertently to a situation where there could be what, in effect, would be private, secret courts. I would suggest to the Minister that, as drafted, this section could allow that to happen. My amendments are designed to ensure that, while a speedy hearing could take place, it would have to be in a normal place, in a normal courtroom and that the normal organs of publicity would be alerted.

Section 15 (2) (b) gives a justice of the District Court power to hold the court at a time or place not standing appointed. In other words, it gives him power to direct that this summons be heard in a place other than a courthouse within his district or within his area. I have no quibble with the provision giving him jurisdiction to deal with it in any court area within his district. That is quite sensible. I would complain about the provision giving him power to deal with it at a place or a time not standing appointed. That is extremely dangerous. It is too wide. It opens the door completely to secret and altogether too sudden courts.

"At a place"—that could be anywhere within the district of the justice. It could be in his own home. Worse still, it could be in a Garda station. It could be in a caravan. There is an endless list of unlikely places where it could be heard. More than likely as a matter of convenience, the justice will direct that the short summons should be heard in the nearest courthouse, but there are so many courthouses in every District Court area that there would be no hardship, and it would not in any way cut across the intent of the section, in specifying that these summonses should be heard in a courthouse.

It would be altogether wrong if they were to be heard in the justice's own home or, worse still, in the Garda station, or in an office of the Department of Agriculture and Fisheries. These summonses should be heard only in a courthouse. Every district has a courthouse. There would be no hardship on the justice or the party in directing the summons to a courthouse. In the end it adds to these proceedings that they should take place in a place which is usually, although not always, laid out as a courthouse. This helps the dignity of the proceedings.

There is provision for the justice specifying the time being a time other than a normal court time. If this is to provide for a speedy trial of an urgent matter it is reasonable enough that the justice should have power to say that the summons would be heard at 5 o'clock in the evening rather than at 11 o'clock in the morning, the normal sitting hour of the District Court. Nevertheless, I should like to see the actual time of the sitting specified on the summons originating the proceedings—and that is the purpose of amendment No. 5—so that the defendant will be adequately warned as to the time of the sitting.

I suggest, too, to avoid any danger that this procedure might be used for holding secret courts, that a copy of a summons issued pursuant to this section should be sent to the editor of the newspaper published nearest to the place of the sitting. There is no compulsion, and newspapers are not served with notice of existing District Court sittings. They are notorious in the sense that they are a matter of public knowledge and newspapermen can be present. I think it is essential, particularly with the dangers that are contained within this procedure, that organs of public opinion should be aware of where these sittings were taking place. I remember an outcry some years ago when a prosecution for drunken driving, I think it was, was held in the District Court—I forget the personalities involved but I remember hearing about it at the time —in Dublin, I think it was, in the afternoon long after the normal sitting had ended. There was considerable dissatisfaction that that should have happened. Of course, it was quite illegal that it should have happened.

One could imagine a situation where, perhaps, powerful personages might be involved and there would be a temptation to invoke the powers under this procedure, or the type of offence specified under this procedure might be the one in question and the procedure here could be invoked and there could be a speedy trial in an unusual place at an unusual hour. This would be contrary to our system and it would be most undesirable. The Minister's reasons for wanting this are good. He gave an example in the Seanad, a rather unlikely one, perhaps, but I gather this is where the need has come from. I do not quibble with the principle but I think it should be hedged around with guarantees to ensure that it will not lead to secret courts in unsuitable places at odd times.

My amendments are designed to ensure that the place will be a courthouse, that it will not be secret in the sense that the nearest newspaper will have notice of the procedure and that the time will be specified in the summons so that, while the newspaper may be served with notice of the sitting, if it is in the summons the newspapermen will see precisely the time and cannot arrive when everybody has gone home. I propose in amendment No. 3 that the sitting will be only at the place and at the time to be specified in the summons.

I am in some doubt—I did not consult the District Court rules—but I recall that the District Court rules give the justice power to abridge the time of service of the summons and to provide for substituted service in certain cases. I wonder has the Minister examined the powers in the District Court rules and satisfied himself that they are lacking and do not enable the justice to do what is required in the emergency envisaged by this section. It would be altogether preferable if the rules could provide for it and avoid the necessity of introducing this section.

I am not against the principle because I can see the need for it, but it is such a novel principle that I think it should be hedged around with restrictions of the type aimed for in the amendments.

I take it that we are dealing with amendments Nos. 2, 3 and 5 together. Is that right?

I will take amendment No. 2 first. I am afraid the amendment is not acceptable since it would make it mandatory on justices to hold sittings in a building that is called or generally recognised as a courthouse. Very frequently this is not possible and the eventuality of normal court accommodation not being available and alternative accommodation having to be used must be provided for. In any event, courthouses are not appointed for sittings. I have the duty of appointing the places at which the District Court shall sit in each District Court area and of appointing the days and the times but "place" does not mean a physical building. It means the town or village of X. I have no duty in regard to the actual building in which the sittings are held other than to ask the local authority to provide accommodation, a task in which I regret to say that I am unsuccessful regularly.

The accommodation which is provided by the local authority is very often premises of one kind or another which by no means could come within the description of a courthouse. Such places as dance halls, lounge bars with the bar cut off, church halls, libraries, fire stations and even sheds are provided for this purpose from time to time by local authorities. The accommodation may be leased by the local authority for appointed sitting days only and may not be available on other days for special sittings in which event the local authority would have to make alternative arrangements. This is usually the case when part of a hotel or when a dance hall or some such place is used.

Therefore, I am afraid that for these reasons, amendment No. 2 would not be feasible and I am sure the Deputy would accept that. So far as amendment No. 3 is concerned where the Deputy seeks to add the words "and at the hour specified in the summons and hereinafter provided for", this proposed amendment is unnecessary because it proposes that a sitting of the District Court to deal with these sort of urgent cases under this section will be at the hour specified in the summons. This as it were, is putting the cart before the horse. The justice must fix the time of the sitting and the summons then must be for whatever time the justice fixes. One cannot have, for example, a situation where a sitting is fixed for a day without any time in that day being specified. Equally, of course, the summons without a time on it for the court would be invalid. Therefore, the necessity for the amendment does not arise.

I would find it difficult to accept amendment No. 5 for much the same reasons. The proposal that the summons should specify the hour of commencement of the sitting is unnecessary for the reasons that I have given and also because the prescribed form of the summons provides already for this. I see no grounds for giving newspapers or any other third party entitlement to copies of summonses in the type of case envisaged by section 15 or, indeed, in any other type of case. If copies of summonses were to be provided for newspaper editors the same right could be claimed by any other citizens who might say they were interested. I can appreciate the fear on the part of Deputies that newspapers might not be aware of a case under the section but I think that fear is groundless because a case under this section will, in the normal way, be arranged for a prescribed sitting of the District Court in an area other than the area in which the offence is committed, but which comes within the justice's district. On occasions it may be necessary to list such a case for hearing at a special sitting but the number of occasions on which it would be necessary to have a special sitting in the sense that the justice would have to sit in a particular place where he would not otherwise sit, would be very few because in any event a justice would be sitting on most days of the month, excluding Saturdays and Sundays. Therefore, the obvious place where one of these summonses would be taken would be at some place where he would be sitting on the appropriate day, say, the third day after the service of the summons.

Special sittings are held by justices in areas where the work is very heavy for the purpose of trying to clear arrears of work and the newspapers never had any difficulty in keeping themselves informed of cases that take place at such existing special sittings or at the normal prescribed sittings because notice would be given at the ordinary sitting of the court that it was intended to have a special sitting.

So far as general restrictions on the procedure under this section are concerned, I accept that the concept is a novel one. In order to try to allay the legitimate fears that people might have about this I added subsection (5) as an amendment in the Seanad at the suggestion of one of the Opposition Senators. Since the Order has to be laid before each House and since it can be annulled within 21 sitting days, I have no doubt that any proceedings necessary under this section would get ample publicity and that people would be on the lookout to ensure that there would be no abuse of it.

The procedure under the section, even with subsection (5), could be over and done with before anyone would become aware of it because it states that the annulment would be without prejudice to anything previously done thereunder so that the Order would be valid until annulled and it would take 21 days to annul it. The Order provides for dealing with offences in respect of which only two clear days service is required. There could be a lot of summonses issued and convictions imposed on foot of an order which might subsequently be annulled by the House.

I appreciate the Minister's motive but I do not know whether it goes very far towards allaying the fears we have concerning this section. I accept that the Minister has not jurisdiction to nominate the actual venue beyond saying the time at which the sitting will take place but that is a drafting matter and it would be quite simple, instead of using the word "courthouse" to use the words "in the building for the time being used for the holding of sittings". This would meet that point and would cover the difficulty of having secret courts in unusual venues. I would not accept the Minister's argument that because he appoints only the places, there is no point in the amendment. If it was to read "that the justice may hold a sitting of the District Court within his district to deal with the offences at the place where courts are normally held within his districts", the difficulty would be met.

I am afraid that would not necessarily meet the difficulty because many of these temporary premises are rented by local authorities on an arrangement that they are available on a particular day of the month and on that day only and that on other days they are used for other purposes. At present where a special sitting has to be held the local authorities frequently have to try and find some alternative premises. This would apply even more under this procedure because the amount of notice that the local authority would get would be very short.

I accept that. All I can say to the Minister then is that the hearing of these special short notice summonses should be confined, even if it means a bit of travelling, to full-time courthouses.

I am sure the Deputy will accept that in practice they will because a justice in a district will sit nearly every one of his sitting days in his district and, therefore, he will be sitting in the ordinary or usual place for sitting and the special court or the special prosecution under this section would, therefore, be brought in one of the other areas in which he happens to be sitting in any district on that day so that the question of his having to sit in some unusual premises would not arise. I would imagine that if no suitable premises in the area were available at short notice the justice would say that he would sit in the courthouse of the adjoining town.

I can see that it probably would not normally arise but the point I want to make is that it could arise and it does leave an open door to secret courts. The Minister does not intend that, the justices do not intend that, but nevertheless the door is there. It would be bad for us to pass an Act that would leave that door open, particularly if we are now down to a question of drafting. I would ask the Minister to close that door. If the thing is above board let it be seen to be absolutely above board.

I think the Deputy is the only person who saw anything in it that was not above board. It would never occur to me, on reading the section, that you could have secret courts. The Deputy should bear in mind that every night of the week, in this and every city, there are courts held in Garda barracks before peace commissioners when people are remanded in custody.

This will obviously be more than remand. This is intended to deal substantially with the offence because a remand obviously would not meet the circumstances envisaged here. What is intended here is to get something done quickly before harm is done. A remand would not be sufficient there. What is obviously intended is finality. I indicated to the Minister earlier that I have a recollection of a case, I think in this city where there was a trial in the late afternoon and there was talk and whispers and some amount of publicity afterwards. It would be a bad principle to allow summonses to be issued at short notice to be heard in any place decided on by the district justice. There should be some certainty, uniformity and regularity about it. I would ask the Minister to look at this. If it is only a drafting problem it could be got over.

I think it is more than that because the word "place" there has a particular meaning. It means a town or village. It does not mean the physical building. I cannot specify that the court will sit in any particular building. I have no jurisdiction to do that. That is a matter for the local authority. I think the House would achieve nothing by amending the Bill on the lines suggested by Deputy Cooney because I would not have the power to specify.

Surely the Minister can take power in this section to specify. I understand that his power at the moment is to say that the District Court shall sit in Town A or Village B on such a day of the week, but where the District Court sits in that town or village is a matter of getting a suitable premises. There is nothing to prevent the Minister saying that, for the particular narrow requirements of this section, the District Court shall sit only in buildings, in places.

No. In any event it is the justice who makes the order under section 2.

I want to prevent the justice being able to make an order to hold the court in his own house.

Justices do not do that sort of thing. They do not want to hold courts in the middle of the night where nobody can see them.

I know they do not.

Is there any reason why a remand would not suit in cases like this?

It would not normally be an arrestable offence. It would be a summary offence.

What is the urgency of it then?

The urgency would be because it could possibly give rise to a national emergency. At the time of the outbreak of foot-and-mouth disease this was necessary. We did not have the provision at the time, but the lack of it was very seriously felt in many counties and it seriously interfered with the efforts of the Department of Agriculture to control the situation.

I grant what the Minister says. I do not know any District Justice who will hold a secret court and the Minister does not know any either, but we are passing a piece of law here to apply in saecula saeculorum and I do not think we should leave in it power for a district justice in 20 or 30 years time, or even sooner, to do something that would be wrong when we can exclude that power.

At the moment a District Justice could adjourn at 2 or 3 o'clock or at 11.30 or 12, when many of them finish, and say, when the few members of the public who might be there had left: "I am adjourning until 11.30 tonight." One can always think of things like this that a District Justice could do if he was bad-minded enough but we must draw the line somewhere. Deputy Cooney is wrong in his approach that you must assume the very worst from everyone and try to legislate against that. You have to accept a sort of normal standard of behaviour. In the example I gave, a district justice could hold secret courts in the middle of the night and could, on the face of it, do it legally by muttering that he was adjourning until 2 o'clock in the morning.

He could not because he would have to give notice of it and it would not be a valid court if it went across midnight. It would be on a day not appointed for a sitting of the District Court.

He could adjourn till the following day. It is an example of what he could do if he was bad-minded enough.

I am not saying that any district justice would be bad-minded enough but we are not debating the standard of district justices. We are debating a piece of abstract legislation and we have to consider whether there are any features in it which could give rise to an unlegal procedure in the future. I suggest that this is a positive feature which could give rise to that in the future. It is bad for us to let such a law leave this Parliament when it can be cured without inhibiting or taking from the power the Minister seeks in the section.

(Cavan): I think there is substance in Deputy Cooney's amendment. I know that as it is drafted the word “courthouse” might give rise to difficulties because courts are held in various buildings that are not courthouses but if the Minister were to accept:

may hold a sitting of the District Court within his district to deal with any offence at any place within his district appointed for the sitting of a District Court.

There will be several such places within his district. As the Minister has said, it is likely that he will avail of a sitting of a court within his district to hold one of these courts but it is undesirable, if it can be avoided, that district courts should be held in Garda barracks.

They regularly are and there is never any allegation that it is in any way abused.

(Cavan): The accused person will get the feeling that he starts off with the dice loaded against him. That section would not lose anything by amending it as I have suggested, that a court could be held at any place appointed for the holding of a District Court within the District Court area. That will give a choice, in most places, of several buildings.

That may be a very great distance away and it may suit the defendant much better, if the local building normally used was not available, to have the court held in some other building in that town rather than have to go perhaps 20 or 30 miles away.

(Cavan): It is unlikely that they would be a great distance away.

In any event, this problem will very rarely arise because the district justice, if only from the point of view of his own comfort and convenience, will want to hold, and will so order, the sittings in places used for existing sittings.

(Cavan): Certainly, in County Cavan there is a courthouse or building used for holding district courts every ten miles. I could run off Ballyconnell, Cavan, Cootehill, Arva, Ballyjamesduff, Bailieboro', Virginia, and many others. I do not think there would be any real problem about finding a suitable venue in which to hold a court, a recognised building for holding a court. I do not think the section would lose anything if the Minister were to accept the suggestion.

Quite honestly, I do not think there is anything in Deputy Cooney's point, unless one were to have district justices trying to do the most absurd things. They have power to do that sort of thing at the moment if they want to. As Deputies know, I am always amenable to amendments and I have accepted a very large number of amendments on this Bill but I really do not see any great point in this one.

A district justice cannot do ridiculous things or, if he attempts to do ridiculous things, he will find himself the subject of an order of certiorari or will have a prohibition order of one kind or another served on him by a higher court and, if he does a ridiculous thing, under this section he can do it without fear of anybody because it is in the section that he may hold the sitting within his district at a place or time not standing appointed for the time being. This gives specific power to go away from the normal venue.

He has that power already in respect of ordinary sittings. For example, he can adjourn a sitting until the following day.

He can, but there is public notice given of that. That is the point. In this case, the section as drafted enables a district justice to hold a special secret sitting of a District Court in any place he pleases in his district and I think that is a wrong power to let loose out of this House. All I am asking of the Minister is to confine him to holding it in a normal courthouse. I do not think that is unreasonable.

As the Deputy knows, half the buildings used as courthouses are not courthouses at all. They are the lounges of hotels.

They are the places appointed.

They are all sorts of unusual places—dance-halls and so on. In any event, I have explained to the Deputy, and I think he accepts it, that the word "courthouse" which he uses in his amendment is just not feasible.

This is a matter of drafting. If the word "courthouse" is wrong——

But I did not put down the amendment. The Deputy put down the amendments and drafted them badly and I cannot help that and I do not think he should blame me for it.

Does the Minister agree with the principle as I have explained it.

I do not think it is necessary. I think the principle is valid all right but then the principle is valid in any sitting of the District Court.

Does the Minister concede that there is that danger within the section as drafted?

There is a danger within the law as it stands.

There is not that danger within the law as it stands.

If there is that danger within the law as it stands, would it not be a good idea to attempt to remove it either by this amendment or in some other way? Surely that is what the Bill is for—to tidy up legislation?

Amendment put and declared lost.
Amendment No. 3 not moved.

I move amendment No. 4:

In subsection (3), page 4, line 43, after "served" to add "personally".

This is to ensure personal service of the type of summons provided for in this section. Subsection (3) provides that a summons may be served at any time not less than two clear days before the sitting. This is the special sitting which may be held at any place in the district and at any time which may suit the justice and the exigencies of the case. The summons has to be served on the defendant within not less than two clear days. Two clear days would be, as far as I know, a Saturday and a Sunday. A summons served on a Friday night to a defendant who is away for the weekend could be heard on Monday morning, before he would get it, unless the service has to be personal. In view of the drastic abridgement of time proposed in the section, it is essential for justice to be done, that the service be effected personally on the defendant.

(Cavan): I strongly support this amendment. There is an unanswerable case for it because many summonses can be served by leaving them, say, at the residence of the defendant or accused person with somebody over the age of 16 residing there with him. In that case there is seven days notice at least of the court. Here we are giving only two days notice and a person could quite easily be away from home and the people in the house might not know where he was. There are many provisions for serving documents personally. Under the Enforcement of Court Orders Act certain documents have to be served personally. In many rules of court there is provision for the service of documents personally. If ever there was a case where a document should be served personally, it is this case where only two days notice is being given. It is absolutely essential that the person concerned should know that the court will be held. If it has not to be served personally, then in many cases the accused person may have no notice whatever and may first learn of the proceedings when the garda comes to arrest him or when he reads in the paper that he has been fined a substantial sum of money.

He will not even read it in the paper. It will be a secret court.

(Cavan): There is a substantial point here, an unanswerable case. It may well be said that the district justice may ask did the defendant get the notice but if the service is not personal there is no reason why he should. It is very difficult to justify an abridgement of the time of service to this extent without making it absolutely obligatory that the service be personal.

I must confess that my initial reaction to this amendment when I looked at it was on the lines that I agreed with it but when I went into the matter in somewhat more detail and the consequences of accepting the amendment were put to me, I had grave doubts as to the advisability of accepting it. It does seem that the whole purpose of the section could be avoided by the defendant evading personal service. It is, of course, very easy to evade personal service. Deputy Fitzpatrick is not, I think, right in saying that personal service is necessary for a wide range of documents. Under the Enforcement of Court Order Acts, as amended, it is no longer necessary for any document, even committal summonses, to be served personally. Up to quite recently they had to be served personally, but not now. The Committee on Court Practice and Procedure have advised in one of their most recent reports that personal service should be done away with as much as possible because they believe it only creates difficulties. Where personal service is necessary there are usually efforts at evasion. So far as I know, in the case of superior court documents, the only documents that now have to be served personally, and I think the committee have advised that the obligation be removed from them, are debtor summonses and certain motions of judgment and an originating matrimonial summons. There is some special name; whether it is a mensa et thora or the other one, whatever you call it——

Conversation.

Outside of this very limited range, and the range is rapidly decreasing, there is no need for personal service. I am very much in two minds about this. My reaction would be that there could clearly be a situation in which a man genuinely would not get a summons; on the other hand, I have to look on the other side, too. There clearly could be, and I am afraid there will be, situations, if the amendment is accepted, where people will evade service and the summons will have to be constantly re-issued. Frankly, I am in some difficulty about this because I think the argument on each side is pretty compelling. I find it hard to know what to do.

Might I suggest to the Minister that, if the difficulty is a person evading service and thereby prolonging the thing that should be dealt with quickly, the answer is to go to the District Court and the district justice can allow substitute service. Some provision like that would compromise the two positions.

The trouble about that is that the application would probably have to be made in the District Court area in which the defendant lived and there might not be a sitting there for one, two, or, in some cases, three months and the whole purpose would be defeated. If the justice happened to be sitting on the other side of the county one could not go over there and apply to him for leave to serve the summons other than personally.

The people discussing this are all members of the legal profession. Perhaps a layman's point of view might help the Minister to make up his mind. As an ordinary layman, I feel that to give authority to serve a summons other than personally on someone who might not only be away for the weekend, as the Minister said, but could be working away for the whole week——

That happens all the time.

But it would not happen all the time where only two days are stipulated.

It happens regularly where seven days is the normal service.

The suggestion here is that it should be two days.

This is an entirely different set of circumstances. A great many people, through no fault of their own, could find themselves on the wrong side of the law because it would not be possible for them to know that these summonses were served if, in fact, they were not served personally. The Minister is quite correct when he says it might be easy enough to evade service and, if you have to go to the District Court, there is no point in serving the summons anyway because that would defeat the whole object. If you have to go to the District Court you might as well take it in the normal way. This is one case in which the Minister should spell out that it must be served personally. Could he put in some kind of protection by stipulating that, if this cannot be done within seven days, then it can be served other than personally?

That can be done only by application to the District Court.

Could the Minister not write that into the Bill? We are talking about legislation that is being framed, not about existing legislation.

(Cavan): I have very strong views about this because the whole thing is weighted against the accused person. He will get only two days notice. His rights are being restricted by the section, as it stands, and we are now going further because we are not imposing on anyone the obligation to see that the particular person gets the summons. If there is a genuine case of a man not having notice that will mean an appeal. Suppose the man were taken by surprise, he could have judgment set aside. I agree there is a possibility of evading service but that is not a good reason for introducing this dangerous sort of provision into an Act of Parliament. It has been said, and it has always been a rule of our law, that it is better that many guilty people escape rather than that one innocent person be convicted. I would say that it is better that the odd person should evade service — this is something that can be put right — than that some innocent person not guilty of an offence should be convicted in his absence. I do not think our concept of the law or our interpretation of the law should stand for this sort of provision.

In practice, where someone is away at the moment, the member of the family on whom the summons is served would tell the summons' server that the man was away.

That is provided there is someone in the house.

If there is no one in the house it could not be served.

It could be served on someone who just happened to be going out of the house.

No. He must be residing there or be a relation.

The Minister from his ivory tower is talking about something he——

(Cavan): No. The Minister has fairly said in his capacity as a lawyer and as an individual that he knows this amendment is right, but he is under pressure from advisers who say that this gap must be closed and it must be closed at anyone's expense.

It is not a gap.

(Cavan): It is in a way. It is a case again of taking a sledgehammer to kill a fly. This is a trend which is creeping into our legislation. A justice, even in chambers, if he is satisfied an accused is evading service, can endorse the summons and it can be served on a third party. There is provision already, as the Minister knows, in the District Court rules for an abridging service.

Yes, but as I explained to Deputy Cooney I understand that provision is limited to applications made to the justice sitting in the appropriate area. He might not sit there for a month or two months.

(Cavan): With all due respect, I think a justice can do it sitting in his house without any formal application.

Can the Deputy give me the authority? That would ease the difficulty.

(Cavan): I cannot give the Minister the authority for saying that but I can say I have never heard an application to abridge the time made in open court in all my experience. I am not giving this with any great authority but I think the procedure is that the justice simply endorses the summons by saying, “I hereby abridge the time and reduce it to two days or three days”. If a guard were to go to the justice and say, “This man is evading service, I know he deliberately went away. He was expecting a summons”, the justice would then have authority to abridge the time. That would be going far enough if not too far.

It would not be a question of abridging the time because it would be a two day summons anyway, it would be of substituting service.

(Cavan): Yes. It is unlikely there would be evasion of service here because how is an accused person to know that he may expect a visit from the guards? A guard can come at any unusual time and serve a summons.

The Minister will remember that the guards have been known to come at half-past seven in the morning.

(Cavan): It is not as if the accused person knows——

I will take a bit of a chance and accept the amendment.

(Cavan): I am obliged to the Minister.

It may take all the good out of the section, but I will take a chance on that.

Amendment agreed to.
Amendment No. 5 not moved.
Section 15, as amended, agreed to.
SECTION 16.
Question proposed: "That section 16 stand part of the Bill."

Could the Minister explain the need for this section in view of paragraph (f) sub-section (1) of section 26 of the 1953 Act because I cannot see the need for clause (g) which is proposed to be introduced by this section?

(Cavan): I would like the Minister to tell us what exactly is involved.

This section is designed to resolve doubts which have arisen in relation to the powers of the Minister for Justice under section 26 of the Courts of Justice Act. 1953. The section referred to authorises the Minister for Justice to create, vary or abolish District Court districts and District Court areas and to alter the places and times appointed for court sittings in any District Court area. However, the section does not authorise the appointing of places and times for sittings of the District Court in a newly created District Court area. It does not authorise the changing of the name of a district or area which for convenience of the public may from time to time be desirable. The section proposes, therefore, to empower the Minister whenever he creates or varies a District Court area to appoint a venue for sittings of the District Court and also the time and days of the sittings of the court at such venue. Power has also been taken to assign a name to or change the name of any District Court district or area. At present under the District Court Districts and Areas Order of 1961 District Court districts are assigned numbers and the areas are identified by the name of the place at which the sittings are appointed to be held.

Question put and agreed to.
SECTION 17.
Question proposed: "That section 17 stand part of the Bill."

I welcome this section which gives solicitors the right of audience in any court in the land. Up to now their right of audience has been confined to pleading in the District Court and Circuit Court. The practice has grown up whereby that right has not been exercised in the Circuit Court. The Minister expressed the wish earlier in this debate that the right would in fact be exercised in the Circuit Court. It is a wish with which I would concur but I do not ever see it coming to pass to any great extent. The reason is this: the profession of advocate is a skilled profession and it is one that requires constant practice, like any profession, before the practitioner will become adept. The solicitor's business is such that he does not have sufficient opportunities to practise his advocacy to reach the high level required to practise it successfully and at all levels. This is something which barristers do achieve because their time is almost entirely spent pleading in the courts. If a person spends enough time at any particular activity he will become proficient and more professional at it. While this right may be given to solicitors I foresee that it will continue to be exercised and carried on almost exclusively by barristers, and properly so, because they will be the experts at the particular skill of advocacy which is a skill that has to be acquired like any other skill, by constant practice. I know the Minister is in favour of the fusion of the two branches of the profession——

Do not get on to that now.

It arises on this section so I shall have to say something about it. There is a great deal to recommend that as an ideal; it is logical and it is tidy but when one considers the nature of the Bar and the nature of the solicitors' profession in rural Ireland it is not a good suggestion. If it were to happen and we were not to have any more barristers the position of a single solicitor, or even a partnership of solicitors, in rural Ireland would be very difficult under a number of heads. First of all they would be in difficulty in getting a second opinion on what might be an abstruse legal point. At the moment these opinions are available at a reasonable cost from the Bar as part of the service and part of the work they perform. They have the facilities of a large library and up-to-date reports available to them but above all they have the facility of contact with each other, the facility to consult with each other and thereby provide a very wide range of expert opinion. This would be removed if the professions were fused. The position of the average solicitor practising in rural Ireland — I am not talking about the solicitor who might be a member of a powerful firm in Dublin where one member could specialise — would be difficult.

Again, too, the facilities which the Bar provide by way of skilled advocacy would not be available to the solicitor in rural Ireland. Large Dublin firms would employ a partner who could become trained as a skilled advocate and it would mean nothing to them. The general public do not realise the importance of the independence of the Bar to their liberties. While there are aspects of the barrister's profession which one finds tedious and which could be condemned as a little precious at times, nevertheless it is essentially a healthy profession with high ethical standards. It does have this rather fierce and jealously guarded independence. My experience is that independence is a wonderful buffer between the State and its citizens. If fusion were to mean the end of that I would not be for it. I am in favour of this section which gives solicitors the right to plead in every court in the land. This is as it should be, but I doubt if it is going to be exercised in the way the Minister hopes.

As a Deputy of some years standing in this House who is known to be a practising barrister, I would like to support this section. The section is timely and I see no reason why we should have had any prohibition in our statute law on the right of any lawyer to practise and plead his clients' interests in any court in the land. I say that because I believe I am expressing the view of the majority of my colleagues at the Bar. I do not claim to speak for them, but because I sense that people may have felt that the Bar of Ireland was concerned in relation to a possible bar on a solicitor pleading in any court, I would like to assure the House that this is not so. I do not know whether the advent of my colleagues, Deputy T.J. Fitzpatrick or Deputy Cooney, into the High Court of Justice and the Supreme Court of this country is going to destroy my practice. Maybe it will; maybe it will not. I would like to feel that they have a great deal of work on hands which is going to continue to engage their attention——

(Cavan): You might have the Minister with you very shortly.

——and that they may still feel the necessity for someone who specialises in the art — and it is an art — of advocacy and would continue to seek such a person. In any event, I think it is right that we should have in the High Court of Justice what has been the position, ever since the Courts of Justice Act, 1924, in the Circuit Courts of this country where solicitors were entitled to appear and plead and do their cases. I have found as a professional man that I have the support and goodwill of many solicitors all over Ireland and I have found that solicitors are generally men of sound commonsense, and it is, and has been, the exceptional case in which a solicitor in fact exercises his rights to appear as an advocate in the Circuit Court.

I should imagine that this will continue to be the situation, but it is important that the right should be there, because I remember being present many years ago when I was a junior member of this House and a junior member of the Bar, seeing a solicitor seeking the right to appear before the Court of Criminal Appeal and being denied that right. I often questioned whether the denial was right or in accordance with the Constitution. I very much doubt whether it was.

I think that is probably so. May I say — I can only say it as a Member of this House — that I would support this section? I think it is the removal of an anomaly which has survived in our laws and it is well to put it right.

My friend and colleague, Deputy Cooney, supported the fusion of the professions or seemed to indicate that he was in favour——

I must have misunderstood what the Deputy was saying. I do think that irrespective of any changes of this kind there will continue to be a need for some kind of profession or separate association of advocates, unless we are to face the high-power merger of firms of lawyers which certainly has become the besetting sin of so many other countries. In most of the States of America, and indeed in Canada, the provincial areas, the areas outside centres of population, just cannot get adequate legal advice because the position has arisen whereby groups of lawyers get together to form a complete firm, a firm which is able to give specialised advice on income tax, on death duties, on company matters, on ordinary nisi prius claims to title and so on and able to provide an advocate, a court lawyer, who is able to do the case, if court involvement arises. This has meant that the single one-man lawyer down in the rural areas is more and more bypassed. He cannot compete; he cannot provide the service; and he cannot give his clients the kind of advice which the bigger firms can give.

There is this development at the moment taking place in the legal profession in this country, in centres of population — in Dublin city, in Cork and, as I noted recently, in Limerick city. This is a development which is in accordance with the trend of the times, but I would like to feel that as long as there is available at a moderate fee to the independent one-man solicitor in some remote part or some part of Ireland — I hesitate to mention any part of Ireland — in relation to a matter relating to income tax, death duties, company law, law of property — whatever it may be—the specialised mystic subjects — as long as there is available to him on the payment of a reasonable fee, which is never extreme, the advice of a specialist which he gets as a result of sending a case to counsel in the Law Library, he is able to match in the advice which he gets for his client the services of the largest merger of lawyers in Dublin city.

I think that is important, and as long as we can maintain that situation here, I think the interests of the people are better served, and — I do not regard providing a right of audience to a solicitor as of any real significance— the solicitor will continue to be, as he has been for many decades in this country, a very significant person in his own locality and amongst his own people.

Perhaps I have strayed from the real effect of this section but I want to say that I support the section. I do not think it is going to bring about drastic fundamental change in our courts and I want to say as a practising barrister that in my interpretation of the feelings of my colleagues, there certainly would be no feelings against a section of this kind.

(Cavan): I rise to say that I support this section too and say that it is refreshing to hear a member of the Senior Bar such as Deputy O'Higgins standing up here and supporting the right of the solicitor's profession to audience in every court in the land. It shows very clearly the good fellowship that exists between the two branches of the legal profession in this country. As time goes on I think solicitors will avail themselves of this right of audience in the Circuit Court and, perhaps, in the High Court. I should not like to think that it would be the crank who would avail himself of this right but rather would it be the member of the profession who feels he is on top of his subject and can do justice to his client as well as any senior counsel. I sincerely hope that is the type of solicitor who will avail himself of this provision.

I do not know whether Deputy O'Higgins will agree with the hope I expressed on the Second Reading and again express now that this is a move in another direction and that it will follow from this that solicitors will be regarded as qualified to sit on the Circuit Court bench. There are many solicitors who would adorn the Circuit Court bench and bring to it the commonsense and knowledge of country people and their lives that their experience as members of the profession over the years has brought them. I hope that suggestion will be given consideration by the Minister.

On a point of clarification in regard to section 17 which says: "A solicitor who is acting for a party in an action... and a solicitor qualified to practise ... who is acting as his assistant shall have a right of audience in that court," I could see a situation where a solicitor would make himself a specialist in advocacy and would be retained by another solicitor to act as a pleader for him. Is that closed?

I think that is prevented. We had some point like that in the Seanad. The reason for the wording there—"... a solicitor qualified to practise (within the meaning of the Solicitors Act, 1954) who is acting as his assistant ..." is that he would have to have a practising certificate. It would not be sufficient for him to be qualified to practise. For example, if you are the proprietor of a firm of solicitors and you employ an assistant solicitor, that assistant solicitor does not need a practising certificate unless he appears in court. That is to ensure that the position in regard to the High Court and the Supreme Court would be the same as it is in regard to the District Court and Circuit Court. Even though he may be an assistant he can only appear if he has a practising certificate.

Does the Minister realise that under this provision as it stands you could have a solicitor who says: "I shall specialise entirely in advocacy" and who would be briefed and therefore become an assistant to a number of other firms of solicitors? I see no reason why he should not have this but you could, I think, have this situation.

No. He would have to be an assistant of the solicitor acting for the party. I do not think it is sufficient that he would be an assistant just for the day or the case. I think it is clearly intended that he should be employed by the solicitor as an assistant.

But he is acting as his assistant. Would not that be wide enough to cover an ad hoc engagement to assist in a particular trial?

I am told that the wording used here is the same as the wording used in the corresponding provisions of the Courts (Suplemental Provisions) Act, 1961, in relation to the Circuit Court. Assuming the interpretation of Deputy O'Higgins to be right, it would have been open for the last ten years for somebody in those circumstances to set himself up in the Circuit Court. I do not think that has happened.

I know it has not happened.

The wording, I am told, is the same as in the 1961 Act.

It may not have happened because the temptation which would lead to its happening was not there. Say Mr. A. B. is a solicitor who may have, or whose firm may have a particular case at issue in the High Court or Supreme Court which may be initially presented by Mr. A. and Mr. B. is an assistant in the firm and he wants to continue the argument or take some other part in the case. Is not this section designed to provide that that should be so? I do not think it is intended that somebody who was never involved in the case, who was never a solicitor acting in the case and who was engaged ad hoc for this particular trial should appear — I am trying to think of the gentleman on television, Perry Mason — somebody who is the Perry Mason of our courts. Is this section not wide enough to allow a Perry Mason development?

All I can say is that section 60 of the Courts (Supplemental Provisions) Act, 1961, is exactly the same as this section except that we dropped the word "generally" in the Seanad in this case. That opportunity would therefore have been there all along in the Circuit Court and was never used. I do not think a man who tried that sort of thing would get very far.

(Cavan): If there is a gap there it could easily be closed. At the moment we say “...who is acting as his assistant...”. If you put in between “his” and “assistant” the words “full-time” you would close any gap that exists and prevent the development of a sort of journeyman solicitor, specialising as an advocate.

I think we would have had that development in the past ten years——

No, because the opportunity or the temptation was not there.

(Cavan): I do not say it is necessary, but if there is a gap it could be closed in that way.

I do not think this is likely to happen.

Question put and agreed to.
SECTION 18.

Amendments Nos. 6 and 8 are cognate and may be discussed together.

I move amendment No. 6:

In page 5, lines 50 to 54, to delete subsection (5) (a).

The amendment is to delete subsection (5) (a) of the section which increases the sum that may be paid to a deserted wife from the present figure of, I think, £4 10s which was fixed a great number of years ago. It is completely out-of-date and it is payable irrespective of the means of the husband. This section increases the amount which may be paid but, under subsection (5) (a), there is a limit of £15 for the support of the wife and £5 for the support of the child. I propose to delete that sub-section and leave the discretion entirely with the district justice.

I know that the Minister argued in a half-hearted way in the Seanad that he was half-advised that there was some constitutional objection to giving district justices unfettered power under this Bill. If it is constitutional for him to award a sum with a fixed ceiling I cannot see how it is unconstitutional for him to award a bigger sum or a lesser sum, as the case may be, depending on the means of the errant husband. A district justice can order the payment of weekly sums to pay off a debt and can enforce his order with committal to prison and this situation here seems to be analogous. If he is to be trusted with that procedure for the collection of a debt, he is surely to be trusted with it in deciding what a husband should pay the wife and children he has deserted.

I have confidence in the District Court bench. I believe that their powers under this section will be exercised reasonably and with justice to both parties. I should like to see the ceiling removed. In the case of a very wealthy husband who deserted his wife the ceiling is altogether too low. The court should have power to make an order according to the means of the individual.

(Cavan): Is there a ceiling?

Only in the District Court. Deputy Cooney may be under a misapprehension that the figure of £15 is the limit. That is not so at all.

(Cavan): In the District Court.

In the District Court, but a wife can apply in a summary way in the High Court and there is no limit on the figure she can get there. Deputy Cooney said that I was half-advised that it was unconstitutional. He is half-wrong, because I was fully advised by the Attorney General that it might be unconstitutional and that I should place some limitation on the District Court and give unlimited jurisdiction to the High Court. I have done that. The number of cases that would have to be brought in the High Court would be very few. The sort of people who would be in that category would probably be able to afford it without any great problem. In any event, it would cost them very little because it would be a purely summary application.

(Cavan): I agree with Deputy Cooney's amendment. I think it should be left to the District Court. I read in the Official Report of the Seanad that the Minister said he was advised that to give the district justice power to award more than £15 a week would be unconstitutional. I certainly respect the opinion of the Attorney General but I find it hard to follow this reasoning. As Deputy Cooney has pointed out, a district justice has power at the moment to order the payment of £1,000 in one sum. Furthermore, I think the Minister will find that a district justice can give a decree for rates in any amount. He can certainly give a decree for rates in a sum far in excess of the jurisdiction of the District Court.

That is a summary procedure.

(Cavan): This is a summary procedure too.

There is no question about the amount. It is an ascertained amount which is never disputed. If there were a dispute about it the proceedings would be in the Circuit Court normally.

(Cavan): It confers on the district justice a very substantial jurisdiction. Possibly if this were questioned in the Supreme Court it might be found to be unconstitutional too. Perhaps the discussion on this will prompt people to think more about the jurisdiction already conferred on the District Court. The provision here is, I think, that when it goes above £15 it will have to go to the High Court. Would it not be better to leave it to the Circuit Court?

The number of cases that will not be covered in the District Court will be very small.

(Cavan): Arising out of this discussion perhaps the constitutionality of the jurisdiction already conferred on the District Court should be looked into.

Subsection (5) (a) provides:

The District Court shall not have jurisdiction to make an order under the said section 1 or 2 for the payment of a weekly sum of which more than £15 is for the support of a wife or of which more than £5 is for the support of a child.

Does that mean that for a wife and one child £20 is the maximum the District Court can order?

It is £15 for the wife and £5 for each child. It depends on the number of children. For a wife and three children the maximum would be £30 and for a wife and five children it would be £40.

Amendment, by leave, withdrawn.

I move amendment No. 7:

To add to the section the following new subsection:

"( ) Proceedings taken under the Married Women (Maintenance in case of Desertion) Act, 1886, shall be heard in chambers."

Acting Chairman

Amendment No. 9 is cognate.

At the moment proceedings by a deserted wife looking for a weekly payment from her erring husband, or an application for a payment under the Illegitimate Children (Affiliation Orders) Act are heard in open court. Very often these proceedings involve matters of intimate and distressing personal details. Without any doubt they should be heard in private in chambers. I do not think anyone would suggest that we were instituting a star chamber or a private court if we agreed to this.

It was highlighted to me recently in the District Court in Limerick. I heard an application under the Married Women (Maintenance in case of Desertion) Act and the defence was that the applicant was engaged in an unholy alliance. This had to be made in open court and I understand that children of the marriage were present. The whole thing was very distressing. There is no doubt that these proceedings and proceedings under the Illegitimate Children (Affiliation Orders) Act should be heard in chambers.

At the moment section 3 of the Illegitimate Children (Affiliation Orders) Act, 1930, provides for the clearing of the court of all persons other than the parties' legal representatives, relatives, et cetera, and Press reporters. Publication of the proceedings is severely restricted. I think this meets the point in relation to the illegitimate children. I understand that it is the usual practice, in fact; to hold them in private so that disposes of amendment No. 9.

With regard to the other amendment, there has been no demand for a change of this kind. Normally these cases are undefended. The case Deputy Cooney referred to must be a very unusual one, first of all in that it was defended, and secondly in that it was defended in the particular way in question. If that defence was open the normal thing would be that the applicant would not bring the application, I venture to think.

There was a denial.

If that is the situation it may be no harm to have these cases heard in public to deter an applicant in those circumstances from bringing what on the face of it would seem to be an improper application because she would appear, certainly morally and probably legally, not to be entitled to any money. However, something which occurs to me about this is that it is like some of the extensions of jurisdiction that were suggested earlier for the District Court. Really, they are matters that would have to be dealt with in an appropriate Act amending, say, the Married Women (Maintenance in case of Desertion) Act, 1886 and the Enforcement of the Court Orders Act. That would be the appropriate place in which to make an amendment of this kind. In general, because of the fact that there is no demand for this, since the cases are rarely contested anyway and the evidence consists simply of a woman saying: "My husband left me and is now living elsewhere," one hesitates to make private unnecessarily any part of the judicial proceeding and I contrast, respectfully, Deputy Cooney's anxiety for secrecy here with his undue anxiety to avoid it in an earlier section we were discussing.

Is the Minister serious in comparing the pathetic plight of a deserted wife with the plight of one involved in a criminal offence?

No, but, in general, justice should be administered in public.

Correct.

It is only in cases of unpleasant details of a particular kind or in cases where the national security or something analogous to it is concerned that a hearing should not be in public. In these particular types of cases there is usually no embarrassing evidence involved. It is simply a question of the applicant saying "My husband left home on such a day".

(Cavan): The husband might well say that he had very good reasons for leaving home.

Yes, but is it not a good thing that in the absence of a very limited type of defence such as that mentioned by Deputy Cooney the case should be heard in public? If a wife knows that the case is to be heard in private and that her husband is not in a position to defend himself anyway, is it not an encouragement to her to bring the case without having any basis for doing so and to go into court and say outrageous things in private about her husband which she would not say in public?

I am sure that is one of the reasons why we have always been so keen to ensure that justice is administered in public. Apart from the necessity for the truth, people might be prepared to take a false oath if they were going to get away with it privately but they would not be prepared to make false statements in public if they know that their neighbours can contradict them.

Surely a matrimonial matter is of a personal and intimate nature and that it is no concern of the general public that a marriage has failed to progress satisfactorily. There is no breach of the principle of public justice when the matter concerns a private relationship between a man and his wife. When the Minister says there is no demand for such cases to be heard in Chambers and that all that is involved is a wife going to court and telling the justice that her husband has deserted her, surely he can appreciate the plight of an unfortunate woman in such circumstances who has to make that humiliating statement in a courthouse packed with the public, with gardaí, solicitors and witnesses. Surely, that should take place in the privacy of the judge's Chambers.

(Cavan): I think the High Court has jurisdiction to hear in camera certain types of matrimonial problems. There has been a case within the past couple of years that went on for many days in the High Court and there was then no admittance to the court other than by people involved.

These are cases where the marriage has ended and the husband has gone.

(Cavan): I can tell the Minister from my experience as a practitioner that I knew of a wife who sued her husband in the District Court for maintenance but the husband's defence was that the wife was guilty of conduct that would entitle him to leave her and to refuse to support her. During those proceedings the most intimate details were given of traps set by the husband and of evidence that he ascertained in roundabout ways. There was a full disclosure before the court of a very intimate set of circumstances that would have been better dealt with in private. However, this is something that the Minister should keep in mind. Deputy Cooney's suggestion is a reasonable one. It is of the utmost importance that, in general, justice should be administered in courts that are open to the public and the Press but there are cases, and I submit that this particular type of case is one of them, at which the public should be excluded and where the evidence should be heard in camera either at the request of one or both parties.

I agree with Deputies Fitzpatrick and Cooney. Undoubtedly, there are cases where extremely difficult circumstances arise. I cannot understand why the Minister is not prepared to accept the amendment. I have heard what he has to say but this has made no impression on me. There are certain matters that are so private that privacy ought to be respected.

I might be able to assist the Deputy on that by referring him to section 45, subsection (1) of the Courts (Supplemental Provisions) Act, 1961 which applies to all courts. This stipulates that:

Justice may be administered otherwise than in public in any of the following cases:

(a) applications of an urgent nature for relief by way of habeas corpus, bail, prohibition or injunction;

(b) matrimonial causes and matters;

and so on.

Does that refer to the High Court?

I am told it applies to all courts. It is a sort of general provision and is not confined in its operation to any particular court. Also, I recall a general rule in the District Court rules of 1948 as amended that where matters of a sexual nature arise in the course of a hearing, the justice can order the court to be cleared. With that and with the provisions of section 45 of the Act from which I have quoted, there is adequate power for clearing a court when matters of this nature arise.

Amendment, by leave, withdrawn.
Section 18 agreed to.
SECTION 19.
Amendments Nos. 8 and 9 not moved.
Section agreed to.
SECTION 20.
Question proposed: "That section 20 stand part of the Bill."

(Cavan): What is the effect of section 20?

Basically to do what was wanted in the last amendment that we discussed, to have legitimacy applications heard in Chambers. The section amends section 2 of the Legitimacy Act, 1931. This Act provides for the legitimation of illegitimate children by the subsequent marriage of their parents and it provides that applications for declarations of legitimacy by children so legitimated may be made to the Circuit Court under the Legitimacy Declaration Act (Ireland) 1868. Under the 1868 Act an application for a certificate in respect of a legitimated person may be made only by the legitimated person himself. Moreover as such an application is not specifically mentioned in section 45 of the Courts (Supplemental Provisions) Act, 1961 (Administration of Justice otherwise than in Public)— that is the provision I referred to recently—it appears that it must be heard in open court. In order to avoid embarrassment for a legitimated person it is desirable that his parents should be able to apply for the declaration and it is desirable also that the circuit judge should hear the application in Chambers.

Question put and agreed to.
SECTION 21.
Question proposed: "That section 21 stand part of the Bill."

(Cavan): I take it that the effect of this is really to enable the Circuit Court to transfer an action to the High Court if it is thought that it can be more properly tried there or that it is an action suitable for High Court jurisdiction and that it enables the District Court to transfer an action to the Circuit Court or the High Court. Candidly, I thought that was always the law.

It has been the law since 1961 to allow transfer from the Circuit Court to the High Court but it was not the case from the District Court before. This gives the power to both of them.

Question put and agreed to.
Section 22 agreed to.
SECTION 23.

I move amendment No. 10:

In subsection (2), page 8, lines 3 and 4, to delete "but for which personal service is not required".

The Minister said something earlier which might make this amendment unnecessary. I tabled it on the understanding that originating plenary summonses in the High Court had to be served personally.

Only matrimonial originating summonses and debtors' summonses. I think there is one other category

If originating plenary summonses do not have to be, I withdraw the amendment. I understood that the rules had not been changed in relation to plenary summonses because I had occasion to look at the thing quite recently.

The rules require documents to be personally served in particular instances. Some examples, apart from the position of an originating document already mentioned, are:

Citation in matrimonial matter—

which is the equivalent I think of a plenary summons.

Debtor's summons under the Bankruptcy Acts and an application for an order of attachment for contempt.

The Minister mentioned an originating document?

I am quoting from the eighth interim report of the Committee on Court Practice and Procedure. It says:

Service of any summons on the defendant shall, except in the cases in the following rules of this Order specified, be effected by personal service if it be reasonably practicable. Where it shall appear by affidavit that such defendant is personally within the jurisdiction and that due and reasonable diligence has been exercised in endeavouring to effect such personal service, service of such summons may be effected by delivering a copy thereof at the defendant's house or place of residence, or at his or her office, warehouse, counting house, shop, factory or place of business, to the wife, husband, child, father, mother, brother, or sister of the defendant, or to any servant or clerk of the defendant (the person to whom such copy shall be delivered being of the age of 16 years or upwards) and showing to such person the original or duplicate original of such summons.

Personal service shall be effected by delivering a copy of the summons to the defendant in person, and showing him the original or duplicate original.

They go on in this report to suggest service by post in nearly all of these cases.

If the Minister tells me that plenary summonses are accepted, I withdraw the amendment.

Amendment, by leave, withdrawn.
Section agreed to.
Section 24 agreed to.
SECTION 25.
Question proposed: "That section 25 stand part of the Bill."

(Cavan): It is clear from the Committee Stage discussion on this Bill today that there is much work to be done by the rule making committee and by the cost committee before the Circuit Court and the District Court will be ready to deal with the increased jurisdiction which will be conferred upon them by this Bill. The Bill provides that the increase in jurisdiction shall come into operation on 1st March next. I am not satisfied that the necessary rules will be made and in operation, that the necessary scales of costs will be drawn up and ready for that date. If these requirements have not been brought into operation before then, I can see considerable chaos and difficulty in operating this Bill. I think the Minister is satisfied that there are several matters in regard to the District Court jurisdiction like the provision for dealing with minors which will need a lot of thought and probably there will be rules necessary in connection with the Circuit Court jurisdiction. There would certainly need to be new scales of costs drawn and it is not proper to increase the jurisdiction of these courts without at the same time revising the scales of costs. That should not be done. I suggest that the date should be put back to 1st August at latest. I would even agree to providing that sections 2 to 12 of this Act shall come into operation on such day as the Minister may appoint. He could hold that over the committee that he said were inclined to be rather slow moving, to urge them to get on with the work and complete the rules. I cannot see these new rules and new scales of costs being in operation by 1st March.

That is three months from today and they have had notice since June last.

(Cavan): They will have Christmas holidays in between and there will not be a thing done from now until 1st February.

I do not know how much work they have done but I know that at least one of them has done a share of it. They would not come to me officially until they had sent up the actual set of rules but I believe that one of them anyway is making some progress. That is not to say that the other is not.

(Cavan): Unless the Minister brings a fresh approach to bear on these matters I can see comings and goings of these draft rules between himself and the committees and especially the draft scales of costs. They will be coming to the Department and they will be read over by the Minister's advisers and there will be considerable delay.

The Deputy knows I put back the date.

(Cavan): I am fully aware that the Minister put it back from 1st January to 1st March but I would be prepared to entrust to the Minister the bringing into operation of sections 2 to 12 on such day as he thinks proper, having regard to whether or not the rules are in operation.

Some progress having been made to-date and there being three months from now to the relevant date, it seems to me to be ample time. I fear that if I accept Deputy Fitzpatrick's suggestion that the particular sections will come into force on a date to be fixed by me, they will come along to me when I am about to make an order and tell me that they have no hope of having it ready and I might find myself in the position that the very necessary provisions of this Bill still would not be in force until the Christmas after the coming Christmas. That is why I put back the date by two months, to give them a reasonable target to aim at and I think three months is ample.

(Cavan): It should be.

The Circuit Court will have very little to do as far as their rules are concerned. The District Court will have a certain amount more but the District Court Rules Committee are an active committee and they have been meeting very frequently. I have every confidence that they can have it in the three months. I believe they have started on it but how far they have got I could not really say. I do not like to say this in case it is quoted against me afterwards but it is really only when the cases are over that the rules will be needed, for the most part, rather than when they begin. So, in fact if they are ready by 1st April it would be time enough in most instances. Off-hand, I cannot think of any amendment that the Circuit Court Rules Committee must necessarily make as a result of this Bill, apart from the jurisdictional references. I do not see that there is any other thing that is necessary as a result of the Bill.

(Cavan): Are the scales of cost sufficiently elastic?

They give a good deal of discretion. They will just have to add one or two categories at the end of the scale for some of the fixed ones but I cannot see that taking very long.

Question put and agreed to.
Title agreed to.
Bill reported with amendment
Agreed to take remaining Stages today.
Bill received for final consideration and passed.
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