I want to thank the Deputies for their contributions. Deputy Keating criticised the Bill on the grounds that it did not attempt to deal with crime or proposed ways to reduce the incidence of crime. This is not the purpose of the Bill. As will be seen from its long title, it is to amend and consolidate the law relating to compensation for malicious damage to property. The purpose of the Bill is described in some detail in the first two paragraphs of the explanatory memorandum which has been circulated to Deputies with the text of the Bill. The Bill is not concerned with the criminal law in general nor with suppression of crime. It is to do with the reform and updating of the code of law going back to 1836, under which compensation may be paid by order of the courts to those persons whose property is maliciously damaged. That is its only purpose.
Further suggestions were made that it should provide for the creation of recreational outlets and the operation of new schemes and so on. This is not the purpose of the Bill. The Deputy also mentioned the desirability of providing that the financial limits in the Bill could be updated periodically, in line with inflation, without the necessity of having to bring legislation before the House. In this connection, perhaps there was an oversight on Deputy Keating's part, because there is provision in section 25 of the Bill to enable the Minister, with the consent of the Minister for Finance, to vary by order the threshold figure of £100, which appears in a number of places in the Bill. Deputy Keating also made a similar suggestion in relation to the provision in section 13(1)(a) limiting the jurisdiction of the District Court under the Bill to cases where the amount claimed does not exceed £2,500. In the course of the recent debate on the Courts Bill 1980, the same question also arose. A suggestion was made that the monetary jurisdiction limits of the lower courts should be linked to the consumer price index and the changes should be made in those limits by ministerial order, rather than by Act of the Oireachtas. As the Minister for Justice said, when this matter came up in relation to the Courts Bill, such a suggestion was considered inappropriate for two reasons, namely, (1) the inherent importance of the issue which would justify the full attention of Parliament itself acting through its legislative process and (2) the special constitutional position of the courts which arguably make it inappropriate in principle that Parliament should seek to delegate to any other authority the right or power to determine the level of jurisdiction of the particular courts.
Deputy Keating also referred to the inflated claims for compensation and claimants being pressurised into settling for too low a figure. I agree that many claims are for inflated amounts but I am satisfied that the local authorities recognise this and do, in fact, contest the amount of such claims, employing expert consultants to give evidence in complicated cases. Section 8 requires a claimant to serve a preliminary notice on a local authority within 14 days of the occurrence. This will enable the local authority staff to carry out an early inspection of any damage done. Examination of decrees granted by the courts in malicious injury cases indicates that the amount awarded is usually much less than the amount claimed, which I think shows that both the local authorities and the courts are concerned to avoid unwarranted expenditure on compensation for malicious damage.
Taking a somewhat different line the Deputy also expressed concern at the empowering of local authorities to settle claims out of court, as is proposed in the Bill, that would result in injustice because claimants might be pressurised by local authorities into settling at too low a figure. I do not believe there is any danger of this happening. The claimant will always have the option of having the matter determined by the court. In some instances at present what might be described as a modified system of settlement operates. In these cases the claimant and the local authority agree on a figure to settle the claim but the case must still go before the court so that a decree may be given for the agreed amount. When this happens the claimant must wait a considerable time before receiving payment. This is because under the present statutory provisions the amount must be included in the local authority estimate and the award is not payable until the rate has been levied and collected. Under the new system in the settling of claims out of court there will be no such delay.
A further suggestion of Deputy Keating's was that interest be paid if payment of compensation is delayed. If it should happen that a successful claimant has to wait an unduly long time for payment of the compensation he should be entitled to be paid interest on the award. I would point out that under the present law interest is not payable on malicious injury awards even though delays in payment are inevitable because of the present statutory requirement that payment may not be made until provision is made therefor in the rate that is next struck after the court award. I am confident that the two proposals for amendment of the law embodied in this Bill, namely, the provision in section 16 enabling claims to be settled out of court and the provision in section 11 enabling compensation to be paid out of local authorities' funds, will substantially overcome the problem of delays in payment.
Leaving that aside it would be wrong to regard awards of compensation for malicious injuries as being on all-fours with judgment debts. In ordinary civil proceedings where the plaintiff is awarded damages the respondent is a wrongdoer in that he has caused injury to the plaintiff in some way, by breaking a contract, by his negligences or whatever. In such cases the law provides that interest on the judgment is payable by the respondent in the event of delay. An entirely different situation obtains for malicious injuries compensation. In those proceedings the local authority is the respondent who is, as it were, standing in for the wrongdoer, the person who actually caused the malicious damage. The local authority has been given this role in the interests of the community and it is not necessary, nor would it be in the interests of the community, to deal with local authorities in malicious injuries legislation as if they were no different from respondents in ordinary proceedings for damages. It is for this reason that the Bill makes no provision for any change in the present law on this matter of the non-payment of interest on awards of compensation for malicious damage.
I might mention that in another respect also the Bill, like the present law, differentiates between court awards of compensation for malicious damage on the one hand and court decrees in ordinary civil proceedings on the other. This difference of treatment will be seen in section 5 (4) of the Bill which prohibits the award of compensation for consequential loss for which damages may be awarded in ordinary civil cases.
A number of Deputies, Deputy Keating being the first, also expressed doubts about the provision in section 7 of the Bill which states that it shall not be a defence to an application for compensation under this Act merely to show that the damage to which the application relates was caused by a person of unsound mind or by a child. He acknowledged that the purpose of the provision is to ensure that a person whose property is damaged does not lose the chance of getting compensation merely because the person who caused the damage was of unsound mind or was a child. However, the Deputy went on to suggest that the provision involved a contradiction and seemed to imply that on a test case might not stand up. The provision has effect solely in relation to this Bill — it has no wider purpose or effects. I would point out that under section 5 (2) the meaning of the word "malice" for the purposes of the Bill differs from its everyday meaning. Similarly, under the present code "malice", as judicially interpreted, has not its everyday meaning. I am satisfied that the provision is sound having regard, of course, to the fact that heretofore a child under seven years of age could not be considered to be capable of malice and indeed the proof would have to be there between the ages of seven and 14. I hold that what we are trying to achieve in this Bill is that malice is not a necessary ingredient or essential prerequisite insofar as the compensation claimed could be paid.
There was a reference by Deputy Keating to section 12 (3) (d), which provides that compensation shall not be payable in respect of damage to a structure which contravenes the Planning Acts. He instanced a case where, for example, a person inherits a property that contravenes these Acts but is not to blame for the contravention. He suggested that the provision should not apply in such a case. Apart from the obvious consideration that hard cases made bad law, to modify the provision on these lines would weaken it and provide loopholes for evasion. The Deputy seemed to think that the 14-day limit on the service of a preliminary notice under section 8(1) could not be extended and pointed out that in certain cases this could lead to injustice. I should perhaps say that this is a preliminary notice of intention to claim only. The actual application to the court for compensation is provided for under section 9. I would point out that section 14 (3) provides for an extension of the 14 day limit at the discretion of the court.
A number of other Deputies, including Deputies Keating, Tully and, I think, Kelly commented on the proposal in section 22 (1) to have a three-year period within which proceedings for compensation must be commenced. It was suggested that a three-year period was too short. As we all know, under the present law it is six years. The interdepartmental committee on malicious injuries recommended that the period be reduced to three years. A local authority is in a special position vis-á-vis claims in that they have no control over and possibly no knowledge of the property in respect of which a claim is being made and they could be placed in a very difficult position in defending a case taken towards the end of the present six-year period. In Northern Ireland the period within which a claim must be made is four months with provision for an extension of up to 12 months. It is to be noted that the proposed three-year period can be extended at the discretion of the court under section 14 (3).
A number of Deputies also mentioned situations in which malicious damage is caused in one local authority area by persons from another local authority area. The Bill provides that in these situations it is the local authority in whose area the damage was caused which is to be proceeded against, section 8 (2) (a), but it must be noted that the local authority can secure, under section 10 (1), the joinder of another local authority or authorities in proceedings and it would be open to the court to order that any compensation awarded shall be paid either in whole or in part by local authorities that are to be so joined. Similarly, in the case of damage to property — for example, a motor car or a boat — which, having been unlawfully taken, is removed from one local authority area to another, the claim for compensation under section 8 (2) (b) will be made against the local authority from which the property was removed. That local authority may secure the joinder of any other local authority or authorities in the proceedings and they need not be contiguous authorities. So it is quite possible that it would be the local authority in whose area the offenders reside who would be ordered by the court to pay the compensation.
Section 7, which deals with damage caused by persons of unsound mind or by children, was mentioned in a number of contributions. I believe I am correct in saying that Deputy Kelly viewed it as an improvement on the present position whereas Deputy Tully viewed it with some misgivings. The position under the existing law is that compensation is excluded where it is shown that the damage was caused by persons of unsound mind and I have referred to this in relation to Deputy Keating's contribution but in view of the fact that Deputy Kelly spoke at such length I will refer to it again. So far as children are concerned — and in this context we are talking about children under 14 — whether the damage caused can be compensated for under the present malicious injuries code depends on the circumstances, including the age of the child. Under the criminal law a child under seven years of age is incapable of the mens rea necessary for a crime and therefore is incapable of committing a malicious act for which malicious damage compensation would be payable. Under the general criminal law children between the ages of seven and 14 are presumed not to have criminal capacity but this presumption may be rebutted by strong evidence of a mischievous disposition. Where a child of seven to 14 years causes damage to property the decision as to whether malicious damage compensation is payable under the present code depends on the circumstances of each case.
I believe that the provision under section 7, which is a new provision and is to the effect that it will not be a defence to an application for compensation merely to show that the damage to which the application relates was caused by a person of unsound mind or a child, is a good provision. I think it will be generally accepted that where property is damaged by a person of unsound mind or by a child the owner of the property should not be deprived of the opportunity of securing compensation on those grounds. I should point out that the effect of this section will not be to make the action of a person of unsound mind or a child causing the damage criminal for the purposes of the criminal law.
Deputy Briscoe raised the question of the situation which arises where the person causing malicious damage is identified and convicted and the right of the owner of the property to secure compensation in those circumstances. The present law on the matter is not altogether clear but it is generally held that the effect of section 139 of the Grand Jury (Ireland) Act of 1836 is that where an injury is done to property for which the applicant is entitled to claim compensation from the local authority, under the malicious injuries code he is prevented from suing the wrongdoer in a common law action for damages. However, under the present law a person whose property is maliciously damaged is not prevented from obtaining compensation in a case where the wrongdoer is known and the Bill does not propose to change the position in that regard.
Deputy O'Keeffe and some other Deputies suggested that the threshold figure of £100 proposed in section 5 is too high and could result in hardship for some people. Under the present law damage must exceed £5 before compensation is payable. This figure of £5 was fixed in 1898. The 1963 interdepartmental committee on malicious injuries recommended a figure of £20. When adjusted by reference to the consumer price index, £20 in mid-November 1963 would be equivalent to £104.61 in mid-August of 1980. From that it will be seen that the figure of £100 proposed in the Bill does not even keep step with the decline in money values.
Deputies Collins, Keating and Kelly suggested that it would be desirable if, in the calculation of the amount of the refund that the local authority may be entitled to receive from the Minister for the Environment under section 19, account were taken of the local authority expenses, legal or otherwise, in defending proceedings for compensation under the Bill in the courts. I shall certainly look into this matter and will carefully consider the views expressed by the Deputies with other Ministers concerned.
Deputy Kelly referred to the financial responsibility for malicious injuries compensation. As I explained in the Second Stage speech, the involvement of local authorities in the administration of the malicious injuries code is vital. They have the expertise, professional staff and so on to process claims and to contest them in court. A centralised organisation could not hope to do the job as efficiently or as economically and the financial responsibility of ratepayers for malicious injuries compensation has been reduced or eliminated in recent years. In 1974 a non-statutory arrangement was introduced whereby if in any financial year the cost of compensation to a local authority exceeds the produce of a rate of 20p in the £ the excess is refunded to the local authority from the Exchequer. Section 19 of the Bill proposes to put this arrangement on a statutory basis and of course the threshold gives the Minister an opportunity to raise or lower and in most instances it would be considered that the best reaction would be the lowering of the threshold from 20p to 19p to account for factors that might arise from time to time. Since 1978 occupiers of domestic and certain other properties have been granted full relief from payment of rates and in fact 60 per cent of all rates in the country are now borne by the State. That in itself reflects the transfer or switch of responsibility to central Government and the Exchequer in this regard. Should it be decided at any time in the future that the financial liabilities of local authorities should be further reduced or effectively eliminated this can be brought about by order as provided for in section 19.
Deputy Kelly also raised the question of the doubtful constitutionality of the provisions requiring compensation to be paid for by local rates on the grounds that this might be held to discriminate against the ratepayers concerned or that it might impose a penal obligation on them. First of all, I would dispute that the payment out of rates for malicious damage compensation is penal at all. Many socially desirable local services are paid for out of rates and the extent of local funding is related to the extent of local demand and many people who avail of services in this country today avail of the services in so far as the taxpayers or ratepayers, who might not necessarily benefit under the services themselves, are prepared to contribute to those services in the social interest. Consequently if a malicious act is perpetrated against society we must accept the fact that the injury or damage done to an individual in our community should quite rightly be protected by a service that would operate under a malicious injury Act. In this situation it is intended that the providing of compensation for somebody who has suffered loss or damage can be best done by the community even though they themselves would be at some minimal loss. But that loss would be in the social interest and for that reason Deputy Kelly's point of being doubtful about the constitutionality of the provisions requiring compensation is not valid. Also, any objection on such grounds as there may have been to the existing law can scarcely apply to any practical extent to the provisions of the Bill for two reasons: the Bill abolishes the local levy concept so that any payment out of the rates will be from the county at large, and the Bill gives statutory effect to the arrangement whereby any liability of local authorities for compensation requiring a rate of more than 20p in the £ is being assumed by the State.
Deputy Kelly also referred to the phrase "unlawfully and riotously or tumultously assembled together". He questioned again the doubtful implications that the use of the phrase or these words might have in the proposed Bill. This phrase is well known to the law and has always been traditionally interpreted and I would refer the Deputy to pages 36 and 37 of Kennedy and MacWilliam's book on criminal injuries. I take the view that it would be unwise to introduce change for change's sake since to do so could lead to doubts and give rise to further litigation.
Deputy Barry and other Deputies referred to the question of items of jewellery — watches specifically — and coins, money and stamps. They said that watches should not have been excluded. One of the reasons that these items have been excluded is that there is a likelihood of temptation existing for people to try to get compensation fraudulently for these items because it is difficult not because of their value but because of their smallness to establish whether the damage actually occurred at a particular time or indeed at the time that the claim for compensation is connected with. He also referred to the question of contributory negligence and the question of reasonable care. If it is established that part of the responsibility for the damage done lies with them or that they in some way contributed towards the damage, it would be unfair for the community to have to bear the loss of compensation. It must be presumed that a person has an obligation to take reasonable care. It is not an unseemly presumption when it is a person taking care of his property. Anybody who through negligence shows a lack of responsibility should be obliged to suffer some reduction in compensation and where the negligence is deemed to be a total contributing factor the person must be presumed to have no entitlement.
Deputy Collins referred to the recoupment of local authorities and said that the Bill should favour local authorities more. Section 15 includes a provision for recoupment to local authorities and the threshold can be moved downwards by the Minister if he so desires. Where claims fail it is up to the Minister, in consultation with the Minister for Finance, to decide whether he will deal with the costs. Other Departments are involved. I would certainly have that aspect carefully considered after consultation with the Ministers involved. The court can and may award costs to local authorities if the claimant's case fails. If a claimant's case is a bona fide case it is usual for the court to make no order for the costs and that means that the local authority must pay their own costs.
Deputy Barry referred to the planning laws, as did other Deputies, and he referred to a technical breach of the planning laws and gave an instance where a door was not erected in accordance with the planning permission granted and said that in that situation the person suffering the damage might be disallowed compensation on the basis that the planning requirements had not been met. We must satisfy ourselves that our planning laws are an essential part of planning and development. To provide legislation which would afford an opportunity to people who would have suffered a loss although that loss while it was genuinely suffered was connected with an unauthorised development or building which contravened all the planning laws, to receive compensation would not be fair to the people at large or to the Government. One envisages a situation where the planning Acts invoked might not continue to be there when the accident occurred.
Deputy Barry also raised the point about the courts not being able to handle the increased workload. The Deputy referred to the provision for the settlement of claims and to the ability of the District Court to cope with the increased workload. Deputies O'Keeffe and Collins raised the question of whether the District Court would be able to deal with the extra work under this Bill. This arose in a more general context under the Courts Bill now before the House which proposes widespread increased jurisdiction in the District Court. Replying to the Second Stage debate on the matter on 18 November last at column 619 the Minister for Justice said:
Allied to the physical accommodation question, of course, is the question of how best to organise the use of the accommodation available and of court time. In anticipation of the enactment of the legislation now before the House my Department have been considering ways and means of improving the organisation of the District Court in order that it may be in a position to cope with the increased jurisdiction which will be conferred on it. Already plans are well advanced for the enlargement of the Dublin Metropolitan District Court district in order to provide for greater flexibility in the disposal of District Court business in Dublin city and county. Plans are also well advanced for the reorganisation of a number of provincial District Court districts in order to relieve pressure on some justices.
My Department will consult closely with the President of the District Court, the justices, the local legal profession and the Garda to see what further improvements can be made. Deputy Enright's suggestion that different days be set aside in each District Court area for the hearing of the different categories of business coming before the court and his other suggestions for the more expeditious disposal of court business will be borne in mind when the administrative arrangements necessary to implement the new jurisdictions are being made. The various interests concerned will, of course, be consulted.
Provision has not been made in this Bill for additional judges of the Circuit Court or justices of the District Court to take account of any increased workload falling on these courts as a result of the jurisdiction proposals as it is difficult at this stage to forecast the extent of the increase.
At the levels of litigation prevailing at present, the only certainly is that the workload of the District Court would increase, justifying the appointment of some additional justices and court staff, and that the work of the High Court will be reduced. As far as the Circuit Court is concerned, however, and still assuming the present level of demand on court time, it appears that any new work falling on the court as a result of the increase in the contract and tort jurisdictions would, at the least, be offset by the District Court taking over the Circuit Court's existing caseload in its entirety.
However, it must be emphasised that the direct result of the proposals must be to reduce the overall workloads of all the courts since they involve a transfer of cases from courts of considerable procedural complexity to courts of comparatively simple procedures. The real uncertainty in estimating future demand on court time arises from the successful outcome of the proposals in terms of access to justice — in other words, the greater ease with which legal action may be taken as a result both of the provisions of this Bill and of the civil legal aid scheme. I am sure that many Deputies will be aware of instances where difficulties might have been resolved by recourse to the courts but for the inconvenience or costs of taking such action. It is impossible to quantify the number of such cases which as a result of this Bill will now come before the courts.
I am reluctant, therefore, to make provision for an increase in the number of the Judiciary until such time as the scale of the increase can be determined with a reasonable degree of accuracy.
That should allay any doubts or fears in the minds of well-intentioned Deputies who have contributed to this debate this morning. The Minister for Justice is quite committed to ensuring that if any difficulties arise, either physical difficulties in relation to the provision of accommodation or improved accommodation on the one hand, or in relation to the improvement of existing accommodation, or in relation to the examining of the situation as it develops increased numbers in the Judiciary will be provided once it is established that they can be suitably deployed in the best interests of the court services.
Deputy Fitzpatrick referred to the first £100 being excluded. Section 12 (2) deals with that. This section is a new provision which provides for the reduction or exclusion of compensation in certain cases. In Northern Ireland Article 10 of The Criminal Damage (Compensation) (Northern Ireland) Order 1977 is a somewhat similar provision. Section 34 (2) (d) of the Civil Liability Act 1961, deems a plaintiff's failure to exercise reasonable care in the protection of his property to be a contributory negligence in an action for the conversion of the property. Section 26 (2) of the Pawnbrokers Act, 1964 relates to the return to the owner of stolen property which was pawned, such return being with or without payment by him to the pawnbroker of whole or part of the loan, regard being had to any failure on the part of the owner to protect his property. Section 9 of the Damage to Property (Compensation) Act 1923 provides that an applicant shall be wholly disentitled to compensation if he connived at, assisted in and so forth the causing of the damage or was associated with its perpetrators or was connected with a subversive organisation.
Subsection (2) provides that compensation shall not be awarded in respect of the first £100 of a claim. However so that no applicant may suffer a reduction in respect of more than one claim for the same property as a result of acts occurring during any period of twelve months, article 10 (7) of the Criminal Damage (Compensation) (Northern Ireland) order 1977 contains a similar provision, which also provides for a reduction of £100. This provision is in line with the practice followed by insurance companies. In the absence of such a provision a person who suffers a loss amounting to £99 would not be entitled to any compensation. That can be seen in section 5 (1) whereas a person who suffers a loss amounting to £100 would be entitled to full compensation. A line has to be drawn somewhere in this connection. If one relates the £5 which has existed to £100 in mid-August 1980, to inflation and the changing value of the currency, it is the equivalent of £104. We are a little step ahead of the £5 if one takes it in association with the value of the currency changes.