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Dáil Éireann debate -
Wednesday, 28 Jan 1981

Vol. 326 No. 2

Malicious Injuries Bill, 1980: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Last evening I welcomed the opportunity of discussing this Bill and I made three points of substance which I should like to summarise briefly now.

The most important of these points related to the legal cost of bringing a malicious injuries claim to the courts for a judicial decision. It has been the practice in the courts that costs are allowed with the case. In these circumstances, if a local authority lose a case, they must bear the cost. Under this Bill there is no provision whereby a local authority may be recouped in respect of such costs. That is an inherent weakness in this legislation. I accept that the excess of 20p in the £ which must be paid by any local authority can be recouped from the Minister for the Environment. That is essential. It is a reflection of inflation and also of the increasing burden on local authorities because of malicious injuries cases. However, I would ask the Minister to reconsider the Bill in respect of this vital question of legal costs.

The Bill should favour the local authorities in a situation in which they consider that a case should be contested in court but there is a disincentive so far as they are concerned in terms of taking a case to court. I am talking about major cases. Minor cases can be dealt with easily and at relatively little expense. We should endeavour in this legislation to give every support to local authorities to contest in court any case which they consider should be contested. I hope I have laboured the point sufficiently for the Minister to take note of and that he will refer to it in his reply.

My second point relates to the question of the minimum damage in respect of malicious injuries cases. In this context I consider the £100 stipulation to be somewhat on the high side. It may be a relatively small amount of money to some people but relatively large to others. In the case of the latter, it is hardly fair that they should be debarred from claiming malicious injuries damages in cases in which the damage is not to the extent of £100 but which may be of the order of £60 or £80. If, for instance, a person is the victim of vandalism by reason of having his car windscreen or headlamps broken during the night, the damage is likely to be of the order of almost £100 and to some people that represents a week's wages. Consequently, it is extremely unfair that provision is not being made for the claiming of malicious injuries damages in such cases.

The other point I made relates to the lack of support on our part so far as the District Court is concerned. The district justices deserve every praise for the work they are doing. They are supported in their work by the District Court clerks and indeed by the Garda Síochána who are the people on the ground and who have the responsibility for ensuring that law and order is maintained. By providing for the consideration by the District Court of claims to the extent of £2,500 we are adding to the burden that rests with the district justices though we are not making any extra special financial provision for that extra burden.

A short while ago I was speaking with a District Court clerk who indicated to me that the burden of administrative work on the District Court staffs is very heavy. The jurisdiction of the District Court has been increased recently and we are increasing it further in this Bill. If we are to ensure that the courts are adequately and efficiently staffed we must make the necessary financial provision. This, also, is a point that the Minister should consider.

We all know that during the seventies there was a serious increase in the level of vandalism in our society. I am talking of wanton vandalism as distinct from the vandalism and violence that is perpetrated by subversives. This phenonomen of increased vandalism is reflected in the writings of the decade just ended. The situation may have been brought about by the effects of modern media, of the portrayal of violence on television and of the pornographic literature that is available freely. However, this increased vandalism has become a serious problem. There has been the factor also of relatively higher levels of unemployment and this, too, may have added to the rate of vandalism because people who cannot find employement very often have a grudge against society. This is true especially of young people who may be under the impression that society has reneged on them.

The Garda Síochána are doing very good work in their endeavours to combat this sort of crime but their task is very difficult, particularly in the larger urban areas. I have been impressed by the work of the juvenile liaison service, which has been of value to young people. There is a need to enlarge that service and give it a greater backup than has been the case in the last few years. If we are serious about being in close contact with very young people we have a duty to ensure that there is a close and friendly relationship between the Garda and the young people who go astray in our society.

The level of vandalism is a cause for concern. Citizens are entitled to the full protection of the courts in relation to their private property and the damage that can be done by vandalism. I am pleased to have had the opportunity to discuss the Bill and I hope the Minister will reply to the points I have made.

The Minister in introducing this Bill proposes to consolidate with amendments what is commonly called the malicious injuries code, that is the statutory basis for the payment out of rates of compensation for malicious damage to property. Compensation out of rates for malicious injury to property is a totally out of date concept, especially as regards the motor car. A case could be strongly made that insurance companies should be responsible. If there is such a thing as malicious injuries and a concept that the State, in collecting taxes, has a responsibility to defend property or owners of property, it is nonsense in 1981 to say that it is a local charge.

When this code was introduced 100 years ago there may have been some merit in saying that local people should see to it that local property was not damaged and, if it was, that they had a duty to pay for the damage through the rates.

The Minister said he would not enter into a debate on the merits or demerits of the code. He said that whatever its origins it must be recognised that many people do recognise it as having been a non-profit making and valuable system of communal insurance against malicious damage to property. I never heard anyone defending that but it may be that many people do defend it. Whatever merit there may have been in it years ago there is no merit in it now. This should be a national charge and no portion of it should be levied on local rates.

Those of us who live in centres where big matches take place have all experienced one of the most common forms of malicious injury nowadays where damage is done to property. This is most common in Dublin with people following football teams and travelling here for various reasons. After the events, there are a number of claims against the local authority for malicious injuries. This is not just confined to football matches. There are many other events that large groups of people attend. It is not fair that people in Dublin, Cork, Limerick or wherever the event takes place should have to pay for the damage. It seems unfair that this should be a local charge, as is proposed to be consolidated under the Bill, even though there is a limit in the section of the Bill that states that an amount over 20p in the £ will be refunded to the local authority by the Minister for the Environment.

Section 5 limits claims to cases where damage exceeds £100. The 1836 Act limited it to £5. There was a recommendation to increase it to £20 a few years ago and it is the present limit of £5 which is being increased to £100. No matter what the size of the claim the first £100 will not be paid. This figure is far too high. In his opening contribution from this side of the House, before the recess, Deputy Keating said that the 1978 Garda review showed that a huge proportion of the claims were for relatively small sums of money. I would venture to say that probably 70 per cent to 80 per cent of claims would fall between £1 and £100. Many of these claims are made by people who are least well able to carry the effects of vandalism on their property—the old person living alone whose door is kicked in or whose windows are smashed or whose garden gates have been stolen or knocked down or whose house has been ransacked and property taken. Such a person would not be able to afford the loss of property or the cost of repairing damage done to it.

The argument is made that such a ceiling would prevent frivolous claims being made against local authorities. I am not sure that that is a valid argument. There was a famous compensation case here which was settled about seven years ago for many hundreds of thousands of pounds following a big fire. If the State accepted liability for protecting that property against malicious damage it has far more of a liability to accept responsibility for damage caused to the property of the poorest and least well off sections of the community. I am speaking of widows and old people living alone in very remote areas. It is becoming common for old age pensioners and others to have their property damaged, their goods stolen and so on. If any of the claims is for £150 they will get only £50 compensation from the local authority when this Bill goes through rather than being compensated for anything over £5. This is a serious defect in the Bill and the Minister should rethink his position on it.

The Minister said that it is keeping in line with inflation and that it has not been increased for 80 years. However that is not the argument. The argument against increasing it and indeed for abolishing it, is that the Minister is automatically cutting out the vast bulk of claims from people who can least afford to pay for damage caused to their property.

Section 8 extends the period of notice of intention to claim compensation from the present seven days to 14 days. I have always taken the view that the date should run from the time the intended applicant becomes aware of the damage done to his property and not from the date the damage is done. When people are away on holidays their property is most likely to be damaged. Modern criminals keep an eye out for that kind of situation. They wait until people are on holidays and then ransack their houses. The people come back from holidays a fortnight or a month later and discover the damage. Under the provisions of the Bill they cannot get compensation because they have not made the local authority aware within 14 days of the damage being done. The Minister should reconsider the matter and ensure that the claim will be accepted providing the applicant makes a claim within 14 days of his becoming aware of the damage being done, not within 14 days of the actual damage being done.

Section 12 allows the court to reduce the amount of compensation payable by as much as it thinks fit having regard to the general conduct of the applicant in the circumstances of the case. I am not sure if there is a similar provision in any other legislation. It seems extraordinary wording to put into any Bill that the judge can make a decision on the basis of the attitude of the applicant in the conduct of his case — presumably that means whether the applicant has taken adequate steps to protect his property. I think Deputy Fitzpatrick will refer to this matter also. It might be prudent on the Minister's part to tighten up the section so that the grounds for a judgment being made on the conduct of the applicant will be more narrow than the provision in the section at present.

Subsection (3) sets out the circumstances in which compensation shall not be payable. The provisions in paragraph (a), (b) and (c) appear to be all right. Paragraph (d) refers to damage to an unauthorised structure under the Planning Acts or damage to a structure in respect of which specified notices have been served by the local authority. I can see what the Minister has in mind here but I should like to know if the provision in paragraph (a) of this subsection means that local authorities can wash their hands of the matter if there is the slightest technical breach of the planning laws? Every public representative knows that there are unintentional breaches of the planning laws, although I accept that many breaches are intentional and I do not have any sympathy with the people concerned in such cases. I know of one instance where an extra door was put into a building for which planning permission was not granted. The property in question, a warehouse, is worth about £60,000 or £70,000. If it were damaged tonight by an arsonist, does that mean the local authority under this subsection could decide not to entertain a claim for malicious injuries? I see what the Minister is trying to do but he should make a change here to ensure that there is a difference drawn between a technical breach of the planning laws and the deliberate flouting of the laws.

The provision in section 13 has been incorporated in a Bill that came before the House before Christmas. I wonder if more work is being thrown on the district courts? Has the Minister had any discussion with district court clerks on the general organisation of the courts to see if they are capable of handling this extra work? I appreciate what is being done but we must make sure there is adequate machinery to deal with it. Will the Minister tell the House if there have been any arrangements to appoint district justices? I know this Government are not adverse from appointing people to jobs. In this case I accept that the district courts have a much heavier burden of work and we must make sure the structure is adequate to deal with it.

Section 16 states that a local authority may settle any claim brought against them. While I disagree with the principle of the Bill, I accept that because the Government have a majority in this House the Second Stage will be passed. However, I welcome the provision in section 16 because there is no doubt that local authorities are capable of dealing with claims. It is a long overdue vote of confidence in the competence of the staffs of local authorities. However, subsection (2) needs some comment. It states that a local authority may make a lodgment in court against a claim made and this principle can be recommended. Nevertheless I think it would be simpler if instead of lodging the money in court the local authority would be empowered to make an open offer of settlement and if the applicant refused to accept it then such an amount could be deemed to be the lodgment in court. I think this would be a more efficient way of achieving the same result. It would save time from the point of view of the local authority; it would keep the money where it properly belonged and it would also save a lot of paperwork in court.

I should like to comment on the provision that allows the Minister to lift the threshold of the amount that can be refunded to a local authority. It will be established in this Bill that the amount will be 20p in the £ on the rates and the Bill also states that a claim cannot be entertained if the amount is less than £100. The Bill provides for the first time that the amounts may be varied after consultation with the Minister for the Environment and the Minister for Finance. That should not be the case. Once this Bill is passed there is nothing to prevent a Minister for Finance who is short of money going to the Minister for the Environment and substituting a figure of £1,000 while deciding at the same time not to refund local authorities anything over £1 in the £ on the rates. Any change in that regard should be discussed in this House. At the moment local authorities have not got any money and the Minister is putting a very firm limit on the amount he is refunding to them. Any change would disimprove the services available to local communities. It is my opinion that the two subsections dealing with these matters should be deleted. Every other piece of legislation that has figures of this kind written into it has to be debated in this House if there is a proposal to change the figures. For example, if there is a change in the borrowing requirement of semi-State bodies, the Ministers concerned must bring the matter before the House. For the first time we are giving power to the Minister for Finance and the Minister for the Environment to put charges on local authorities and to exclude a further category if they decide to do so. I think this is wrong and that those two subsections should be deleted, that changes should be decided by the Oireachtas and not by two Ministers of any Government. Once this becomes law it will not be changed and it will find its way into other legislation. It will have a roll-on effect so that another Minister will come here in six months or three years and do exactly the same thing quoting as justification for doing so the precedent set in this Bill before us today.

I can only describe the Bill as a half-hearted, lukewarm effort to improve the present situation which is highly unsatisfactory. Vandalism has become a cancer in our society and it is high time to make a concerted effort to stop it or reduce its level. If we pick up a provincial paper we can read lists of cases coming before district courts or local circuit courts claiming for malicious damage to the property of business people or private householders. The efforts made to stop this type of thing — in some cases it is crime — are not coherent and logical. An effort must be made to get at the root cause of this growing disease in society. Has the Minister any solution? Is legislation the answer? I think it is not. We must bring in some measure to prevent the type of vandalism which is increasing year by year. There is no provision in this Bill for any preventive measures. Indeed the public have accepted malicious damage as a way of life, as a matter of fact. I think the public are entitled to be chided because the Garda are not getting the full co-operation of the people in many instances where the apprehension of wrong-doers is concerned. They look upon it as merely money out of public funds which is used to compensate the injured party. That is not the point. It shows a complete lack of civic spirit and if our society and our country are to thrive we must have the civic spirit and national pride so obviously lacking at present. Can the Minister give us any hope that a positive effort will be made, not with mickeymouse legislation like this, to eliminate the root cause of the increase in vandalism? That is the way to tackle it.

We have not sufficient recreational facilities for young people. Much of the time which should be devoted to meaningful recreation is spent in causing damage to other people's property. The notion has got abroad in this country, and it is merely another aspect of the permissive society which has spread from America to Europe and now to Ireland, that you may damage or destroy public or private property with impunity. We must get rid of that notion and the only hope of doing so is to provide some meaningful, gainful outlets for young people. The attitude of mind by which people break, or wrench off car aerials, smash windows or do general damage such as tearing up flower gardens cannot be tolerated but it is being tolerated. It must stop because that mental outlook is permeating our society.

I note that in the district courts and circuit courts where such claims are made and almost invariably succeed, most often the wrong-doers are not apprehended. Apprehension of these wrong-doers must increase and the perpetrators of these crimes will have to be made an example of because this is a crime against society, a serious offence against other members of the public. An example must be made of miscreants. The half-hearted, half-baked efforts at present made in the application of the Probation Act in almost every case is not sufficient. The time has come when those caught damaging public or private property maliciously should be compelled to make reparation to the community. It is time to evolve a system whereby offenders would be compelled to carry out community work. In most cases they plead that they have no money and cannot make reparation. Let them do it in time, in work. I should like to see schemes drawn up by the Minister's Department to ensure that these people are properly punished for their misdeeds. We are not facing the reality of the situation which will become worse if it is not tackled.

Some Deputies have already made the point that the cost of malicious damage claims to local authorities is not adequately dealt with. There is a ceiling of 20p in the pound. The local authority cannot be asked to make any greater contribution and the balance will come from central funds. There is a very important point which is not covered and I should like the Minister to indicate if he would accept an amendment from my party or consider putting down an amendment himself to the effect that the cost incurred by a local authority in contesting a malicious damage claim which they lose should not fall on the local authority. That cost can be considerable. Because of the restricted manner of financing local authorities nowadays they are not very well able to meet some of the prohibitive costs involved.

Recently in County Waterford the county council contested a malicious damage claim concerning the burning down of a hotel in Tramore. The circuit court awarded almost £1 million against them. On appeal to the High Court that sum was reduced by almost half but at the end of the day, while the council were protected as regards the amount of the award because of the 20p in the pound limit, it was not protected against, or compensated for, the cost incurred in contesting the case in the Circuit Court or the High Court. Because the case involved such a huge amount of money and a great number of experts giving their views on how the fire started along with other witnesses, the cost which the county council had to pay was something like £25,000. There is no provision in the Bill or under present legislation whereby the local authority can get that form of aid from central funds and that is surely a major failing. I would like the Minister to give us some hope that a ceiling will be put on the amount of costs which will be payable by a local authority. That is a major loophole. If a local authority had a number of major cases such as that in a year it would mean that other services for provision of water, housing repairs, refuse collection or repairs to roads would suffer grievously. The amount of elbow room a local authority have, because of the financial restrictions due to the elimination of rates on houses, is so small that an imposition like this can affect seriously the running of their services. I would like the Minister to consider that point. I make the point also that all malicious damages claims should be paid out of central funds and all the costs involved should be paid out of central funds.

The insurance companies in this country should be made responsible for a major part of malicious damages to property. That is their major function in society. At the moment they are virtually immune to charges under the malicious injuries code and that should not be the case. It should not fall back on the local authorities the whole time. If you want to solve the problem, to reduce the amount of vandalism and malicious damages claims, you must bring it home to companies such as insurance companies and the public in general that it is up to them to tackle the problem and to cooperate with the Garda Síochána in preventing or detecting these crimes. That message has not got through. The State, the insurance companies and the public in general will have to wake up to the fact that this cancer is gnawing away at the very core of and undermining our society and cannot and should not be allowed to continue.

(Cavan-Monaghan): The malicious injuries code which this Bill proposes to amend extends back into practically the beginning of the last century. We see here a number of Bills mentioned as dealing with it and the first is the Grand Jury (Ireland) Act, 1836, the next the Malicious Injuries (Ireland) Act, 1848 and then the Malicious Injuries (Ireland) Act, 1853. I mention those three Acts to indicate how far back this code extends.

The malicious injuries code, as I understand it, when it was introduced had a two-fold purpose. First it was set up to compensate owners of property who had that property damaged maliciously and "malicious" was defined broadly speaking as a wanton or malicious act. It was some act that was done by the wrongdoer intentionally either because he had malice against the owner of the property and wanted to damage him or it was done wantonly. It was something that was not accidental. It was done by a person who knew and appreciated what he was doing. That is a broad definition of the word "malicious". An accident had to be excluded. If there was no evidence as to how the damage was done but it could have been done accidentally as well as intentionally, then the applicant in the claim could not succeed. Also it had to exclude damage by either a very young person who was so young as not to be able to appreciate what he was doing or a person of unsound mind. That was the first object of the code, to compensate owners of property for damage caused to their property maliciously or by a wanton act. The next object of the code was to prevent the commission of crime of this nature by punishing the community where the wrong was done, by punishing the community of ratepayers by extracting from them the cost of the damage done to the owner. That, broadly speaking, represents the malicious injury code as I understand it.

The fact that the damage was meant to be paid for locally can best be appreciated when I say that the respondents in a malicious injury claim were the local authority, the local county council where the damage was done, but if the damage was done adjacent to a county boundary — within a mile of it I think — then the neighbouring local authority was joined as well as the authority within which the damage was done. That indicates to us that in those days if the damage was done near a county boundary the wrongdoer could have come across the county boundary. That shows the parochial nature of the code and it shows also that in those days people did not travel very far and it was meant to cover only a very limited community: those who resided within the boundary of the local authority where the crime was committed or, if a crime was committed within a mile of another local authority, it was presumed that people could have travelled the mile and they were hauled in as well. Of course the entire cost of the code was borne by the local authority concerned and by the local ratepayers.

Obviously, this Bill proposes to deal with a very different situation. Circumstances have changed dramatically. When this code was first introduced I suppose the bicycle did not exist, not even the penny-farthing bicycle. People travelled about on foot, by coach or on horseback. Certainly the combustion engine did not exist and there were no motor cars. That is all changed. People can fly about from one part of the country to another within a few hours. They are travelling distances of 20 or 30 miles in so many minutes or less. Illegal organisations are at large in the country who travel about over a wide area as well. The parochial nature of crime has disappeared completely and changed. It is absolutely wrong that people near where a crime is committed should be punished to any extent by having to pay the cost of that crime because there is no guarantee or even likelihood any longer that the people who committed that crime are from the area. Therefore, we think that the cost of malicious injuries should be made a national charge.

For another reason also it should be made a national charge. This Bill proposes to take away, to some extent at any rate, the element of malice necessary to succeed in a malicious injury claim. Section 7 states:

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.

Up to now, as I understand it, it was a defence in a malicious injury claim to show, for example, that a fire was started by a child under seven years of age because that child could not be guilty of malicious damage in that he or she was not responsible for his or her actions. That defence has now been taken away and the fact that the damage is caused by a child, however young or innocent, is grounds for a malicious injury claim. How can anybody say that it is sensible or reasonable to punish a local community for the act of a child? How can one ask a local community to pay £50,000 or £100,000 compensation, with costs — that is what 20p in the £ on the rates will amount to in a lot of areas — for the act of a child?

If the damage was caused by an unfortunate person of unsound mind, up to now, as I understand the law, no claim lay. It was impossible to succeed in a malicious injury claim if it was established that the damage was done by such a person because that person could not act in a malicious or wanton manner. That defence is being taken away. It is unreasonable to punish a local community or people of a district electoral division for damage caused by such an unfortunate person. Not wishing to compare the two but it would be just as illogical to ask ratepayers to compensate for the killing of sheep by dogs. The logic and reasoning is the same. It may be a good thing to consider including a provision in the Bill to cover damage by dogs to sheep because such animals are doing grave damage throughout the country. Very often it is not impossible to identify the dogs responsible.

The Minister should have been braver and grappled with this problem in a more comprehensive manner. The local element has gone because of modern methods of transport, but section 7 proposes to exclude to some extent malice from the proof of a malicious injury claim. The Bill changes the whole code because we now have what one might call a contributory negligence clause introduced. Malice has gone altogether. Up to now if my car which was parked outside my house was damaged during the night I could claim compensation under the malicious injury code but now contributory negligence is being introduced under section 12. That section states:

12. —(1) In determining an application for compensation under this Act, the court may reduce the amount of the compensation it would otherwise award by such sum as it thinks just and equitable having regard to the general conduct, in the circumstances, of the person who suffered the damage or loss to which the application relates, including, in particular, his conduct as respects any precautions which might reasonably have been taken by him to avoid the damage or loss.

In other words, a judge can say that it was unreasonable for me to leave my car outside my house at night and that I should have put my car in a garage. Instead of granting me an award of £500, the cost of the repair of the damage, the judge could reduce the amount of the decree to £250. Up to now it would have been sufficient for me to show that the damage was caused by some ruffian passing by my house at night. If I left my kitchen door open when going to town and some of my property in my house was damaged while I was away, the judge may say I was negligent in leaving that door open and refuse to compensate me or decide to award me only a portion of my claim. That is wrong. I do not agree with that section.

Under the old code the amount of the damage had to be at least £5 before a person could pursue a claim. The intention was to eliminate trivial claims but in the event of a plaintiff succeeding in such a claim the award included the first £5 worth of damage. However, under the Bill unless the amount of damage exceeds £100 one cannot bring a claim and in the event of a decree being granted by the court the first £100 is excluded. That does not make sense and that proviso should be amended. Subsection (2) of section 12 states:

(2) The court shall reduce by one hundred pounds the amount of the compensation it would, but for this subsection, award to an applicant for compensation under this Act, so however that no applicant may suffer such reduction in respect of more than one claim under this Act for the same property as a result of acts occurring during any period of twelve months.

When I glanced at that provision first I did not know what it meant but it appears to me that, irrespective of the extent of the damage, a plaintiff will not be compensated for the first £100.

VAT should be excluded. I do not mind a limit being put on the amount below which compensation will not be paid but when that limit is exceeded the injured person should be compensated for all the damage. I see a proviso here enabling local authorities to settle these claims and if the code continues to be operated that is a good thing. I always thought it ridiculous that local authorities, even when malice and damage were sticking out a mile, had to go through the nonsense of contesting claims and adding to the cost of compensation awarded. The Minister — I presume the Minister for Justice — is taking the right to fix solicitors' costs and barristers' fees, which is wrong. Why should the Minister fix these costs and fees when there are several statutory committees already in existence for that purpose? I am no longer a practising solicitor so it does not affect me but it is wrong that this should be introduced into the code when we have various statutory bodies with judges, solicitors, the Minister's nominee and the Fair Prices Commission and so on.

Deputies Collins and Deasy made a very good point, apparently from their experience in County Waterford. Section 19 provides that where the cost to a local authority of compensation under the Act exceeds the produce of a rate of 20p in the £ the excess shall be refunded or recouped by the State, in the person of the Minister for the Environment. Apparently that means that while compensation will be refunded the costs will not. A substantial claim running into many thousands — and perhaps £1 million as happened in this city — which could happen in any rural county at present would be contested in the Circuit Court with expert witnesses, senior and junior counsel on both sides, with very substantial costs and expenses. There may even be an appeal to the High Court, resulting in a very heavy cost indeed. It is right, in the interests of the ratepayers, that the issue should be contested but, under the Bill as drafted — and I shall certainly be tabling an amendment on this — while the Minister for the Environment would be obliged to refund the compensation in excess of the produce of 20p in the £, he would not be obliged to refund the costs involved by the local authorities, which could be very substantial, and that is wrong.

There was an excellent case at any time on the grounds which I have argued, firstly, the change in methods of travelling and the loss of the parochial element and, secondly, the departure from the malicious element, that the cost of malicious injury claims should be shifted from the local authorities to the Exchequer. However, with the new change in financing of local authorities, there is an unanswerable case. I have been trying to work out what 20p in the £ amounts to. I knew what it was in old currency but it could, without any trouble, cost a local authority far in excess of £50,000 and we shall take that figure. An unexpected claim for £50,000 could upset the financing of a local authority, especially when local authorities are now prevented from budgeting for it. They are simply compelled to accept such percentages as the Minister for the Environment lays down.

I can put it on the record of this House that I am a member of a regional development organisation which commissioned a water survey for three counties — Louth, Cavan and Monaghan. The survey was a very useful exercise in deciding where there was sufficient water for industrial and domestic use and, having regard to the Government's stand at the moment on working on the infrastructure and being ready to take off when the recess is over, it was a very worthwhile exercise. Unfortunately, when the consultants had bored six bore holes and when there were still two or three bore holes to be completed, they ran out of money. It would have taken another £20,000 to complete the survey, but it had to be dropped last year. Cavan, Monaghan and Louth between them, after scraping the barrel, could not raise the £20,000 to complete the survey. The Minister was a member of a county council himself. The regional development organisation asked the consultants to have another look at the project to see if there was any way of getting this extra money even on tick, by promising to pay next year, so that the job could be completed, but the £20,000 could not be raised by the three county councils. The survey had to be terminated when three-quarters completed. I am merely bringing that point out to indicate how a claim for £50,000 — and it could be more than that, with legal costs on top of it, which could be £50,000 on their own if the claim were big enough — would upset the financing of a county council enormously and would mean, perhaps, laying off more men as has happened this year. I am arguing very strongly and with reason that the entire costs of this code should be changed from the local authorities to the Exchequer. I take it that the Minister does not seriously argue that the payment of these claims from local funds in any way prevents the claims, I do not think it does and that cannot any longer be seriously argued as the element of malice and the parochial element are gone. Therefore I cannot see the sense in continuing it.

For some reason or another, jewellery or articles of personal ornament are excluded. They include a watch, for instance. How can a watch be described as an article of personal ornament any more than a suit. A watch could be worth £200 and some ruffian could break in and smash it. I can agree that money should be excluded in the same way as it is from many insurance claims, but I cannot see why a watch, which could be of considerable value, should be excluded.

In this Bill the Minister is only tinkering with the problem. For a start, the cost of these claims should be shifted entirely from local to central government. Circumstances have changed utterly since the malicious injuries code was introduced. Nowadays there is no local element in crime: it is a travelling operation. Other Deputies have shown the absurdity of operating the malicious injuries code on a local or parochial basis. Yesterday Deputies pointed out, for instance, that if you had a trainload of football enthusiasts — we will call them them that for want of a better word — from Dublin to Cork for a match and they wrecked the train at Portloaise, the people of County Laois would have to pay the compensation. That does not make sense. It is a striking example of what could happen.

The next reason I have given for changing this from a local to a national charge is that malice is no longer a necessary ingredient, if one refers to section 7. Section 12 seems to change the whole nature of the code. At the moment, it is not possible for local authorities to raise funds locally. They are not permitted by the Minister to levy the amount on the rates. If they budget for their ordinary expenditure during a given year and there is a claim for £100,000, or 20p on the rates, the Minister will chop it and tell them they can increase the rates by only 10 or 11 per cent. That will prevent local authorities from raising the amount of compensation in the way the Bill is directing them to do.

I will be putting down some amendments, particularly in regard to the watch. For the moment I will content myself by saying that I am against some of the proposals.

It is only right that all legislation should be overhauled and up-dated and it is fair to say that whoever attempts such an operation will not satisfy everyone. Some aspects of this Bill are welcome and I will preface my remarks by saying something about malicious damage in general. The greatest victims are local authorities themselves. It seems to be a trait of our times to commit wanton damage to property, and I instance the graffiti we see on walls of public buildings at a time when we are better educated than ever before.

When I was growing up, only a few had post-primary education, but this problem of defacement and other damage to public property hardly existed. Now we have the terrible problem of young people going out deliberately to wreck and deface public property. I do not know what the answer is. It could be more Garda serveillance but the gardaí cannot be everywhere at once. Perhaps it has something to do with education.

This wanton destruction of public property is a thing you do not notice among our counterparts in the Common Market. In capital cities abroad you do not have this vandalism demonstrated by graffiti. We should cop ourselves on in this regard. It is a big weakness in us when we resort wholesale to this type of damage which costs everybody a lot of money.

Deputy Fitzpatrick a few moments ago referred to the inability of local authorities to raise money to pay for this damage. Ultimately it is John Citizen, the taxpayer, who has to pay for all this damage, whether it is done to local authority or Department of Posts and Telegraphs property. One should look at telephone kiosks throughout the country. One would think people have some sort of hatred for the telephone service. They hack the kiosks to bits. Whoever is responsible for legislation to conserve and to protect our little country has one hell of a job. As spokeman for tourism, this wanton damage bugs me particularly. I am being reminded of it constantly by letters from constituents.

I agree with Deputy Fitzpatrick in regard to injuries to the individual or damage to his property. In the old days if a haybarn was set on fire the cost would be no more than £200. Now it is counted in tens of thousands of pounds. There was such damage in my area recently, it looked like a job of vandals, but even in the biggest council area in the country we cannot face up to these bills. Local authority money has been cut to the bone because of the virtual abolition of rates and if we are to pay for such damage it must be out of the Central Fund and it must be designated and budgeted for properly. We are put to the pin of our collars to get by on our estimates, we have to cut back substantially on our services and we cannot come up with the money to pay huge bills we had not bargained for. There should be some kind of national insurance policy to help to meet such bills.

I am glad to note that the malicious aspect has been removed and this is a very important point. It has in the past been very difficult to prove that damage caused was malicious. People have approached insurance companies and been told to make a malicious injury claim, but having gone through this lengthy process they have been told that the damage was not malicious and that they should make an insurance claim. The position now is that the local authorities can deal with these matters, and they are competent to do so because they are experienced in dealing with compensation of many kinds for the acquisition of land and so on. This will certainly cut the cost to the State and it is right that such matters should not be hauled unnecessarily before the courts.

I agree with other speakers regarding marauding dogs. If there is one thing that will wipe out the Irish sheep industry it is the problem of these marauders, not price levels or costs. I should like to see included in this legislation——

I am allowing the Deputy to make the point but the Chair finds it hard to understand how dogs can be introduced on this Bill.

Damage has been caused to property and it does not matter very much whether it has been caused by people of unsound mind or children or dogs.

That is really stretching it.

I do not think so and it is a matter which could be included in this Bill. A sheep owner is not at present covered by any law if he cannot find the dog who killed his sheep. This might be as good an opportunity as any to rectify this omission.

I appreciate what the Deputy is saying but in this Bill we will have to deal with human beings. However, I have allowed the Deputy to make his point.

It seems that a person who suffers merely £100 worth of damage must pay that sum himself. If that interpretation is correct. I would strongly oppose it. It is damage of this type which is all too prevalent. For instance, some careless person may walk through a car park carrying a sharp instrument and scratch every car, causing about £100 worth of damage to each vehicle. The person whose property is so damaged is entitled to compensation. People must park their cars in public places and they pay the corporation for permission to do so. Perhaps we could extend the role of the traffic wardens by giving them some responsibility with regard to these vehicles because a person who pays for parking should be protected, even to the extent of damage costing only £10.

It is very difficult to prove that there has not been contributory negligence. A person who parks his car outside his own house may be told that he should not have done so or, in the case of damage to his house, he may be told that he should not have left a bedroom window open. The part of section 12 dealing with contributory negligence should be completely omitted.

Perhaps there should be more emphasis at school level on respect for private and public property. There must be something wrong with us as a nation that our record in this respect is so bad. Wanton damage is caused to cars, particularly if they are new and expensive. It is reprehensible and stiffer penalties should be introduced for those caught in the act. The taxpayer cannot afford to pay for the damage being perpetrated throughout the country and I cannot comprehend how we can be so unchristian as to damage the property of our neighbour or of the State. The cost of this damage should be met from a central fund and the bill for a single year would make the taxpayer aware of the huge extent of the damage being cause by irresponsible people who deface our beautiful country.

There is a lot of very good material in this Bill and certain sections are welcome and desirable. If I had to tackle the malicious injury situation I would approach it from a different viewpoint than the Minister and from that mentioned by everyone else. I would approach it from the point of view of the Criminal Injuries Tribunal. If possible I would have all these claims heard by the tribunal. Proof would be submitted in writing and then rejected or passed. The applicant would have the right to appeal to the Circuit Court. If the local authority or the Department of Finance were dissatisfied, they also could appeal.

I know from experience that when applications are made for malicious injuries there have been considerable delays in obtaining compensation and repayment of expenses incurred. In many cases when these people got their cheques they found they had suffered a loss. That is wrong. These people had to go to the Circuit Court, perhaps had their cases adjourned not just one day for three or four days, Garda witnesses had to travel long distances to prove malice and so on and the applicant had to travel and incur very heavy expenses. All this has made the malicious injuries code appear archaic and, in many cases, silly.

If a bomb blast injuries somebody, or if somebody is seriously injured because of a stabbing or something like that, he applies to the Criminal Injuries Tribunal for compensation. In many cases written submissions, affidavits, medical reports, reports from the Garda and so on are sent to Dublin and there is a very strict time limit. I know of cases where cheques were received by applicants within six to 12 months. There were few problems and very little expense involved. This is a very highly desirable system and I am putting it to the Minister today because it has not been mentioned by anybody else.

I am disappointed this has not been investigated by the Minister or his Department. The present malicious injuries code needs a drastic overhaul. If I ever had the power to overhaul that code I would do it in the manner outlined above because it would be expeditious, economic and satisfactory. For what they are worth those are my views and I ask the Minister and his advisers to consider them.

I am totally against the levying of claims for malicious injuries on local authorities. This system should be scrapped. At present a very limited number of people have to meet these claims because householders no longer pay rates. This burden has fallen on a limited number of farmers and the business community. Because the number of people who pay rates is limited it is undesirable that rates should be increased to pay malicious injuries damages. These claims should be charges on central funds. This would be a much more desirable and satisfactory approach.

I would continue to use the services of the Garda to carry out investigations. To avoid unnecessary travelling expenses for engineers, architects and so on I would ask local authorities to continue their investigation work. I am sure their personnel would be very happy to oblige. As I said, local authorities should not be responsible for paying these claims but they could investigate them.

Under section 11 people in certain localities will no longer be responsible for the payment of malicious injuries. Up to now the people in one small townland could be held responsible for paying malicious injuries claims — for example, damage to a haybarn costing £5,000 or more. It can be in the form of a shed burnt down and machinery inside being malicious damaged. It could run into £100,000. People in a townland, who may number no more than 100 and are ratepayers, would have to pay the compensation. This is distinct from levying the rate on the whole county. Normally, the order by a judge is that the decree will be levied on the county at large but I have seen instances where a particular townland has been responsible. This appears to be amended in the Bill by section 11. I am glad to see that item being changed, because even at present there are claims being made whereby people in certain townlands have been levied with specific decrees, which is very unfair and unjust.

The Minister should make section 11 retrospective to a year or two because I have seen a case in a townland where a decree was going to be levied on the townland. I consider it a grave injustice, where perhaps five farmers in a townland may be levied with a very sizeable decree. That is wrong and should be rectified.

In regard to section 5, I am disappointed to see that, where the aggregate amount which exceeds £100 is maliciously caused to property, the person who suffers damage shall be entitled to compensation. The Minister should leave that figure at a maximum of £10. A number of people have had their windscreens broken by stones and it costs £70 or £80 to have them repaired. It now appears as if they will no longer be able to claim for amounts under £100. It is a strain on a working man to find £60 or £70 for a new windscreen.

I am glad to see the District Court will be playing a far more positive role in regard to malicious injuries. Up to now, all the actions have been in the Circuit Court. The District Court will play a very important part and will help to expedite the hearing of a lot of claims. It will simplify them also and they will be dealt with far more expeditiously. I welcome this innovation because, for far too long, this was a matter for the Circuit Court alone and they sat only once a quarter and on occasions on a half-yearly basis. It has meant that claims have been outstanding for a long time, over periods of years instead of months. Normally, the District Court sits monthly which means that the cases can be heard on a far more regular basis. I congratulate the Minister on this innovation. Overall, the bringing in of the District Court will improve this whole matter.

Up to now, there have been far too many delays and this will, to some extent, expedite matters. I am not sure if it will expedite them sufficiently but it will improve them to a large extent. While I am opposed to the particular method of collecting decrees by imposing them on the farming community and the business community — they should come from a central fund — the Bill itself contains a lot of welcome innovations and I am happy with most of it.

Would the Chair indulge me, although I have already spoken? I want to add a point which might be helpful and which I inadvertently omitted when speaking yesterday.

It is absolutely out or order. You could raise it by way of question afterwards. Very well, it is an interjection. I shall accept an interjection.

What I said yesterday about the arbitrary discrimination element which the whole malicious injury code represents, of course also applies even in a particular county as between the rate-paying population and the non-ratepaying population, both sections of which are equally guiltless in regard to the malicious act.

As far as the Chair is concerned that is a disorderly interjection.

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.

Surely the point is that if the damage is malicious and if there is a loss it is not so very important whether it is £5, £100 or £1,000? A sum of £100 could be very important to some people. If the damage is malicious and it is shown to be malicious why should there be any bar?

We are satisfied that it has worked successfully. We have reduced it by giving the figure of £100. I take the Deputy's non-acceptance of the point. I must make the point as I understand it to be valid. Deputy Fitzpatrick also referred to the question of the child and the person of unsound mind. He stated that it was unreasonable that provision should be made in this Bill where a presumption would exist that a person under seven or a person between seven and 14 years might, in certain circumstances, be presumed to have criminal responsibility. There is no criminal responsibility in the sense that we know or understand it. We are simply providing in the Bill an opportunity to protect people from serious and extraordinary losses that could have occurred from the act of a child who would not be capable, in the first instance, of maliciousness and, on the other hand, would not have criminal responsibility as we know it over the age of 14, so far as young persons are concerned.

Deputy Fitzpatrick also referred to the fact that malice could not exist. The Bill does not provide for the existence of malice in the case of a child or a person of unsound mind. He equated the situation with one where worrying dogs were killing or damaging sheep and said that that should be provided for in this Bill as did another Deputy who spoke after him. First of all, the equation is a bad one and, secondly, the question of extending maliciouseness to animals for the purpose of the Bill could be described as nothing less than a little bit silly. I do not think Deputy Fitzpatrick meant that it should be included. I believe it was an afterthought by him.

It could be a vicious dog.

A vicious dog, yes, but not a malicious one. A number of Deputies mentioned section 12 of the Bill in relation to the reduction or exclusion of people and the question of reasonable precaution. Deputy Fitzpatrick also mentioned section 15 and asked why should the Minister for Justice, with the consent of the Minister for Finance, regulate the scales and costs of solicitors and fees of counsel where the costs are payable by local authorities. At present these scales of costs and fees are prescribed by the Rules of Court which are made by the Court Rules Committee with the concurrence of the Minister for Justice. I will give the reasons for this. The second part of subsection (1) provides that subject to the exceptions stated the Rules of Court in relation to the costs will apply to proceedings under the Bill when enacted. The only Rules of Court relating to costs that would not apply are those actually prescribed in the scales of solicitors' costs and the fees of counsel which would be applicable. Costs are normally payable by a local authority where the applicant is awarded compensation by the court. Subsection 2 empowers the Minister for Justice, with the consent of the Minister for Finance, to make regulations prescribing the actual amounts of items of solicitors' costs and counsel fees that will apply.

This provision is new. At present in legal proceedings under the malicious injuries code scales of solicitors' costs and fees of counsel as between party and party are prescribed in Rules of Court made by the Circuit Court Rules Committee with the concurrence of the Minister for Justice. This subsection provides that in future the scales of solicitors' costs and the fees of counsel that will be applicable, where the costs of an applicant for compensation are payable by a local authority, will be prescribed as regulations to be made by the Minister for Justice with the consent of the Minister for Finance.

An applicant's costs are normally payable by the local authority where the court finds in his favour and awards him a sum in compensation for the malicious damage. At the end of the subsection, it is provided that the power of any rule-making committee to make rules of court shall be limited accordingly, that is, that the rule-making committee will no longer have power to prescribe the scales of costs and fees which, under the subsection, are henceforth to be prescribed in ministerial regulations. It should be noted that the costs to be prescribed by the ministerial regulations are party-and-party costs and not solicitor and client costs. This is a fundamental difference.

In conclusion I should like to refer to the fact that the Local Government (Financial Provisions) Act, 1978, gave full relief in relation to the payment of rates in respect of domestic property, including secondary schools, community halls and farm buildings. From 1978 on, rating authorities have continued to strike the rate annually, but the rating authorities are compensated for the rates due on the property mentioned by a grant from the Exchequer. Other properties on which rates are due, business premises and so on, are therefore unaffected by the scheme of relief, and occupiers continue to pay their usual share of total rates.

This morning reference was made to malicious damage to schools, places of resort, places of recreational ammenity, and so on. The fact that some of these properties, community halls and secondary schools, have been derated shows clearly that the Exchequer has taken over responsibility for the payment of rates on these properties. Responsibility for 60 per cent of the rates is now vested in central government. The lowering of the threshold in certain situations indicates the direction in which the Government are going in connection with compensation under the Malicious Injuries Bill.

In relation to charges on rates in respect of malicious injuries I want to give some statistics to the House. In 1949-50 the total charge on the rates for County Councils and Borough Councils was £24,729. In 1979 the total charge for both authorities was £5,067,495. This reflects what I said in my Second Stage speech. The increase in criminality is something we all regret but it is a justifiable reason for ensuring the provision of a proper and adequate system of malicious injuries compensation for people who are injured or who suffer damage or loss in our society.

Question put and agreed to.
Committee Stage ordered for Wednesday, 11 February 1981.
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