How does the Minister envisage that this matter is going to work? Will most of these matters be held in Camera, or what is his view on it?
Courts Bill, 1980: Committee Stage (Resumed).
Question again proposed: "That section 15, as amended, stand part of the Bill."
All of them?
Yes.
Is the Minister satisfied that the District Court will be sufficiently able to deal with these matters, and is he satisfied as well that there will be sufficient time and back-up services to deal with them?
I am totally satisfied.
It is a little bit worrying that such important matters under the Guardianship of Infants Act will be dealt with by the District Court. I am concerned that they will have the opportunity and time to deal with those matters. That is the main objection that I have on it.
Yesterday evening I gave a very exhaustive reply in this connection. I am satisfied, as I have said, that the District Courts can adequately deal with all matters proposed in this section.
There have been comments here that District Justices might not do the job as thoroughly or as capably as Circuit Court judges. I believe that our district justices will be conscientious, fair and thorough in dealing with guardianship matters and awards of custody.
I am very glad to hear that. Deputy Enright is the first Deputy who has said that in the House and it is an enormous help.
I have seen the District Courts in operation for many years and 99 per cent of the district justices are dedicated to their position. I am quite certain that a lot will go above and beyond the call of duty in looking into those matters.
They will be restricted by the nature of the physical surrounds, in regard to court houses, interview rooms, waiting rooms —the whole environment of the District Courts. I am concerned about some of the places where justice is being administered—townhalls and even billiard rooms. Children will be coming into areas such as these and fundamental and important decisions will be taken in regard to their lives and their future in surroundings which are far from proper for the administration of justice.
I do not like to interrupt the Deputy, but he knows that there will be certain amendments in relation to the matters which he is discussing now. I would like him to please confine himself to this particular section.
I will be happy to do so. These environments are not proper or satisfactory but the district justices themselves will, I believe, discharge their duties fairly.
I asked the Minister about the back-up services for the district justices in making their decisions, involving court welfare officers. To make sure that this section and this Bill work, these matters should be very fully reviewed.
I mentioned on earlier sections that in matters of this nature special times and dates should be set aside for the hearing of these sensitive and delicate cases. I mentioned it also in regard to other family matters. In regard to family matters, there are affiliation orders and so on which come up to be dealt with along with criminal cases. That is not proper. A number of decisions are taken under the Guardianship of Infants Act, 1964, involving changes in custody of children and so forth. That family should not be in court on a day when serious assault cases, drunken driving cases and a long list of other serious cruminal matters are being dealt with. It would be very sad to have the wife, husband and children sitting in court in a local country area under those conditions, having matters of a sensitive family nature decided. To give the district justices and this section an opportunity of working well, I ask the Minister, with the help of his Department and of the court officials, to have special sittings set aside for the hearing of these family cases to prevent an unsatisfactory and unsavoury situation arising. The Minister should give this his closest attention, because of the importance of the issue.
I assure Deputy Enright that the matters which he has raised in connection with timing and the type of environment for such family law cases will be given consideration. What he is suggesting has already been considered and will be very closely and thouroughly examined with a view to providing suitable surroundings for the hearing of these sensitive and delicate family law cases. In that context, we accept that certain district courts are unsuitable because of their structure or their location and the possibility of a venue or two venues for a particular District Court area for the hearing of this type of case is being considered to ensure suitable accommodation in suitable surroundings to meet the requirements of these cases.
Section, as amended agreed to.
SECTION 16.
Amendment No. 11 is in the name of Deputy Keating. Amendment No. 12 is related so amendments Nos. 11 and 12 will be discussed together.
I move amendment No. 11:
In page 9, subsection (1), line 46, to delete "the Guardianship of Infants Act, 1964,".
Even if I were to concede that jurisdiction under the Guardianship Act should not be conferred on the District Court, as section 15 proposes among other things to do, the amendments now under discussion are not acceptable because they propose to delete reference not only to the District Court's jurisdiction but also to the Circuit Court's Jurisdiction under that Act.
I would like to remind the House that under existing law the Circuit Court already has the same jurisdiction as the High Court under Part II of the Guardianship of Infants Act, 1964. I have said already that the aim of the Bill in the area of family law is to draw together the various jurisdictions in such a way as to provide a forum where the whole range of remedies which the law provides can be obtained on one application. To make it easier for applicants to do this, section 16 allows an applicant or plaintiff to take the full range of actions in his local District or Circuit Court venue or, if he wishes, to go to the defendant's or respondent's local venue to initiate proceedings. In practice, the local venue will be the same for applicant and respondent in many cases but where one party has moved from the locality or is working away from the locality it could cause hardship or indeed discourage the taking of action in some cases if the party wishing to initiate proceedings was obliged to do so other than at his local court venue.
I should also mention that the rationalisation has been sought by many interested parties and has been recommended by the Committee on Court Practice and Procedure, which is an eminently qualified body chaired by a judge of the Supreme Court. It would defeat the whole purpose of the provisions of section 16, designed as it is to offer litigants choice of venue, to omit from the range of jurisdictions covered by it, the one relating to the very important questions of the guardianship and custody of infants.
Question: "That the words proposed to be deleted stand" put and declared carried.
Amendment declared lost.
Amendment No. 12 not moved.
Section 16 agreed to.
SECTION 17.
Amendment No. 13 is in the name of the Minister. Amendment Nos. 15 and 17 are cognate so the three amendments may be discussed together.
I move amendment No. 13:
In page 10, subsection (1), line 12, after "High Court." to insert "being an action".
These amendments are of a purely drafting nature and are to ensure that all civil proceedings come within the scope of the section. It was suggested to me that the wording of section 17 as it stands might be capable of the interpretation that subsection (4) would not apply to actions of tort or breach of promise of marriage commenced and heard in the High Court or to actions for the recovery of a liquidated sum where the amount recovered by the plaintiff exceeds £7,500. While it would, I think, be stretching a point to read this unintended interpretation into the section as it now stands, nonetheless if there is a potential ambiguity it should be removed at this stage.
These amendments to the first three subsections ensure that the exception provided in brackets in subsection (4) relates to the full specification of the actions given in those three subsections, and not just to the generic descriptions of those actions immediately preceding the words being inserted.
Amendment agreed to.
I move amendment No. 14:
In page 10, subsection (1), line 14, to delete "£7,500" and substitute "£15,000".
We believe that £15,000 should be substituted for the £7,500 in this subsection.
These amendments arise, I think, from a misunderstanding of what this section is intended to achieve and of its background in existing statutes. The kernel of this section is contained in subsection (4) and, in layman's terms, would be something like this: If you are a successful plaintiff, and you took your case in too high a court, then you will only get costs at the rate for the lowest court in which the same result could have been obtained, unless the judge thinks the case was important enough to justify you doing as you did. This general principle replaces a somewhat similar provision in section 12 of the Courts of Justice Act, 1936, which applies only to certain specified types of action. When one compares this general principle with the detailed provisions in the 1936 Act, one finds, in fact that in some instances the 1936 provisions are more restrictive, and these more restrictive provisions are in effect repeated in the first three subsection of the section now before the House.
If we now look at these subsections in detail, we will see their effect, and the effect that the amendments would have. Take the case of a person knocked down in a car accident who sues the driver of the car in the High Court. If the High Court awards him £8,000, costs will be calculated on the Circuit Court scale; subsection (4) applies. If the court awards him only £3,000, subsection (1) applies. Not only will the costs he can recover be calculated on the Circuit Court scale, but even if the costs on that scale amount to £3,500, he will be able to recover only £3,000 in costs. If Deputy Keating's amendment to this subsection were carried into effect, then the extra restriction of costs not exceeding damages would apply to all High Court awards between £2,500 and £15,000.
In the case of a claim for a liquidated sum, that is, where the amount claimed is not in issue but only whether it should be paid or not, subsections (2) and (3) apply. Thus, if I commence proceedings in the High Court for a debt of £7,500 or less I can never get High Court costs, but if the amount of the debt at issue is between £7,500 and £15,000 the judge will have power to allow High Court costs if he considers the case important enough according to the formula in subsection (4). If the amendment to subsection (2) proposed by the Deputy were accepted, then any case involving a liquidated sum of £15,000 or less taken in the High Court would always be penalised as to costs and the judge would have no discretion, as he would have under the Bill, for awards between £7,500 and £15,000.
The aim of the section is, certainly, to discourage litigants from taking action in a court other than the lowest court with jurisdiction to grant the relief obtained. I think that the restrictions provided are, however, sufficiently tight to achieve this. On balance, I prefer them to the more draconian proposals of the Deputy. I think that it is fair that the more severe penalty as to costs should not apply where the sums recovered tend towards the upper limits of jurisdiction.
I am not quite clear as to the way in which this will work. In fact the law society have sent out a memorandum and they are not quite clear on it either. They are especially anxious to have subsection (6) further clarified.
That is a subsequent amendment.
There is a bit of unease about this matter. If a lodgment of £4,010 was made in court and less than that was decreed in what way would the cost be dealt with? A plaintiff bringing some action for tort could find that the defendant's solicitor admitted that he was to blame, he would not put up a full defence but he would lodge, say, £4,010 in the court. If he got a decree of £4,900 for instance, what way would costs go in that case?
That illustration is not relevant.
Is the amendment withdrawn?
I would like to know the position in relation to a matter like that and perhaps the Minister will clarify this now or on Report Stage.
The question of a lodgment in court is not relevant under this section.
The Minister is satisfied that it will not affect the section?
Amendment, by leave, withdrawn.
Amendment No. 15 in the name of the Minister has already been discussed.
I move amendment No. 15:
In page 10, subsection (2), line 20, after "liquidated sum," to insert "being an action".
Amendment agreed to.
Amendment No. 16 not moved.
Amendment No. 17 in the name of the Minister was discussed with amendment No. 13.
I move amendment No. 17:
In page 10, subsection (3), line 25, after "liquidated sum," to insert "being an action".
Amendment agreed to.
I move amendment No. 18:
In page 10, subsection (4), lines 38 and 39, to delete "judge hearing the proceedings grants a special certificate under this section" and to substitute "order is made by a judge and the judge grants a special certificate under this section".
This is a drafting amendment. Its purpose is to clarify that a certificate allowing full costs to a successful plaintiff who has commenced proceedings in a court other than the lowest court with jurisdiction to grant the relief obtained must be given by the judge who heard the proceedings. The amendment will also clarify that certificates of this type will not be available in default cases, that is cases where the relief sought is the recovery of a liquidated sum, the recovery of land or the delivery of specific goods, and no defence is entered. In such cases, judgment is entered in the office of the court without having been heard by a judge.
Amendment agreed to.
I move amendment No. 19:
In page 10, subsection (5), line 43, after "proceedings" to insert "made immediately upon the determination of the hearing relating to the action or order".
This amendment is designed to ensure that an application for a special certificate under this section must be made immediately on determination of the hearing. I understand that at present in the High Court such applications are almost invariably made promptly on determination of the hearing. However, it has been suggested that the wording of section 12 of the Courts of Justice Act, 1936, upon which this subsection is at present based, is such as to permit applications to be made even some considerable time after the main issue has been decided. This would cause practical problems in the High Court at present if it were to happen with any frequency; but it becomes more important now, with the extension of the costs limitations to the Circuit Court, that such applications be made promptly. With the higher throughput of cases in that court, and the fact that shorthand notes of proceedings are not taken in that court, it would be unreasonable to ask a judge of that court to entertain an application for a special certificate under section 17 at any time other than immediately on determination of the section giving rise to the application.
Amendment agreed to.
I move amendment No. 20:
In page 10, lines 49 to 55 and in page 11, lines 1 and 2, to delete subsection (6).
The essence of this amendment is that we wish that this section should not apply to any proceedings issuing prior to the date of coming into operation of the Act. There appears to be an implication here in this section that the costs follow the event unless the judge issues a certificate to the effect that the case is of exceptional importance. This is a matter that we should consider when discussing the question of the various strata of courts. The High Court undoubtedly gives greater time and consideration and there is far more legal argument there than there is in this context. Consequently one hopes to get a result where a matter of law of principle is involved where the matter is thrashed out carefully so as to ensure that the proper result is reached. This decision is then a guide or precedent with regard to future cases in that it establishes a principle that may be availed of in the lower courts where, as we know, matters do not get such a full hearing. This section to some extent needs a criticism with regard to the delay in the Act having effect but subsection (6) seems to us to be undesirable.
With the permission of the Ceann Comhairle I will make a brief comment in relation to the whole section.
Would the Deputy not wait until such time as we are discussing the section?
All right.
This subsection is a repetition of the final subsection in section 12 of the Courts of Justice Act, 1936. At that time there was a number of rules of court which repeated word for word certain statutory costs limitations which differed from those provided in the 1936 Act. The statutes upon which these rules were based were repealed by the 1936 Act, and section 12 of that Act provided in their stead. If the subsection had not been enacted, a conflict would have existed between the statute and the rules; the subsection ensured that no such conflict would arise. The same logic applies today. The subsection is being provided in this new provision for precisely the same reasons as it was provided in 1936.
I can appreciate that the subsection is not an easy one to understand at first reading, but once one is aware of the background, its significance becomes apparent. Its effect is to restrict the power of the rule making bodies when they are making rules as to the limitation of costs, but goes on to make it clear that their power to fix scales of costs is not affected by the provision.
What is the point of the subsection in the context of the general principle enunciated in section 17? It seems to me to be contradictory. The Minister said it is essential. I cannot see the wisdom of that. The essence of subsection (6) is that a limit is being imposed on the amount of costs recoverable. I wonder about that, because it seems to conflict with the spirit of section 17.
As I said, it may be difficult on first reading.
I have read it about six times.
I will not comment on the Deputy's difficulty. If we were to accede to the Deputy's request we would have a conflict or a contradiction. The rule and the statute would not be compatible if we were to accede to the Deputy's request.
If the Minister is satisfied, that is all right.
The Deputy can take my word for it.
Amendment, by leave, withdrawn.
I move amendment No. 21:
In page 11, between lines 2 and 3, to insert the following subsection:—
"(7) This section shall not apply to any proceedings commenced prior to the date of coming into effect of this Act."
This seems to me to be an eminently sensible amendment which proposes that the section shall not apply to any proceedings commenced prior to the date of coming into effect of this Act. It is obviously right and just that people who embarked on an action or a course of action prior to the date of coming into effect of this Act should have that action pursued and carried out without any hint of retrospective legislation applying to their efforts.
Section 31 (3) provides for what the Deputy is asking for.
It carries out my intent in this regard? That is fair enough.
Amendment, by leave, withdrawn.
Section 17, as amended, agreed to.
SECTION 18.
Amendment No. 37 is related to amendment No. 22.
I move amendment No. 22:
In page 11, before subsection (1), to insert the following subsections:
"(1) (a) If, during any period, the Chief Justice is unable owing to illness or for any other reason to transact the business of his office or the office of Chief Justice is vacant, all jurisdictions, power, authorities and functions for the time being vested in him by virtue of his office, other than the power of determination specified in section 7 (4) of the Courts (Supplemental Provisions) Act, 1961, shall be exercised or performed by the President of the High Court or, if the President of the High Court is unable owing to illness or for any other reason to exercise or perform the said jurisdictions, powers, authorities and functions, or if there is a vacancy in the office of President of the High Court, by the senior ordinary judge of the Supreme Court who is for the time being available.
(b) The power of determination conferred by section 7 (4) of the Courts (Supplemental Provisions) Act, 1961, on the Chief Justice and exercisable in his absence, by virtue of that provision, by the senior ordinary judge of the Supreme Court for the time being available shall also be exercisable by the latter judge if the office of Chief Justice is vacant.
(2) If, during any period, the President of the High Court is unable owing to illness or for any other reason to transact the business of his office or the office of President of the High Court is vacant, all jurisdictions, powers, authorities and functions for the time being vested in him by virtue of his office, other than those conferred on him by subsection (1) of this section, shall be exercised or performed by the senior ordinary judge of the High Court who is for the time being available."
These amendments make provision for the performance of the duties of the Chief Justice and the President of the High Court when the holder of either office is unable to do so or when either office is vacant. They represent a logical extension of the principle in section 18 as it now stands.
At present, by virtue of section 10 of the Courts (Supplemental Provisions) Act, 1961, when the Chief Justice is unable owing to illness or for any other reason to transact the business of his office, that business may be transacted by the President of the High Court, or, if the President is not available, by the senior Supreme Court Judge. In addition to this all-embracing provision at section 10 of the 1961 Act, there is at section 7 of the same Act a special provision allowing the senior Supreme Court Judge to determine the number of judges who shall hear certain business of the Supreme Court; no reference is made in that provision to the President of the High Court. There appears to be a conflict between the two sections of that Act.
As well as resolving this conflict, the new subsection (1) of section 18 proposed in this amendment provides that the functions of the Chief Justice may be performed not only in his absence but also when the office of Chief Justice is vacant, by the President of the High Court or, if he is unavailable or there is a vacancy in that office, by the senior available Supreme Court Judge.
As regards the President of the High Court, there is statutory provision for the performance of only one of the functions of his office—that of arranging the distribution of the High Court's business —when he is not available; this is at section 10 (3) of the 1961 Act. There is no provision for the performance of the duties when the office of President is vacant. The new subsection (2) proposed in this amendment provides that, when the President of the High Court is unable owing to illness or for any other reason to transact the business of his office, or if the office of President is vacant, his functions may be performed by the senior available High Court Judge.
Amendment No. 37 amends the Schedule to the Bill so as to repeal the existing provisions of the 1961 Act which the new subsection replaces.
This amendment seems to be a practical proposition. I wonder has the Minister considered what are the implications of the President of the High Court standing in for the Chief Justice? Will there be a vacancy at that level? Will that mean a backlog of work?
He will be in a position to continue to perform the functions of his own office.
I see.
Amendment agreed to.
I move amendment No. 23:
In page 11, subsection (2), line 11, to delete "if".
This is purely a drafting amendment.
We will not fight over the word "if".
Amendment agreed to.
Section 18, as amended, agreed to.
SECTION 19.
Amendments Nos. 24, 25 and 26 are related to Amendment No. 23 a and may be taken together.
I move amendment No. 23a:
In page 11, subsection (1), line 18, to delete "‘15'" and to substitute "‘11'".
The Minister, in his speech at Second Stage, adverted to the fact that the new rate of interest on judgment debts provided in the Bill as it stands at present was arrived at during a period when bank interest rates were subject to fluctuation. Subsequent changes in the Associated Banks'overdraft and deposit rates have necessitated an adjustment in the rate specified in the Bill. Re-calculation on the basis of current rates would give a rate for interest on judgment debts of 11 per cent, and amendment No. 23a alters the figure accordingly.
It is not possible to predict whether a further change will be required before the Bill becomes law; if such a change is indicated, the necessary amendment will be introduced at the appropriate stage. Acceptance of the amendment at this stage rather than, say, on Report Stage in the Seanad will save time if further modification proves unnecessary.
I cannot; however, accept the principle underlying the Deputy's amendment to section 19. If it is his intention that the court should in each case determine what the rate of interest should be, then there is no point in specifying any interest rate in a statute. But the whole purpose of providing a statutory interest rate is to remove uncertainty from the minds of judgment debtors and judgment creditors alike. If it is the intention of the amendment to enable the interest rate on judgment debts to be varied by reference to commercially-available rates, this is already adequately catered for by section 20 of the Bill, which provides that the Minister may by order vary the rate specified.
I have consulted with the parliamentary draftsman and I am satisfied that the wording used in the subsection which will give this power to the Minister is the appropriate form of words to be used when conferring on the Minister a power which is to be exercised subject to conditions. Amendment No. 25 is therefore not accepted. In this particular instance there is in any event an element of compulsion implied in the use, in line 25 of the section, of the word "ought". There is no point in providing for such a power as this unless the intention is to exercise it. The aim of section 19 is to rectify the gross disparity that has existed for many years between the judgment debt interest rate and commercially-available rates; and the aim of section 20 is to ensure that such a disparity, if it arises again, can be rectified without undue delay. The Deputy need have no fear that, if the situation warrants it, an order will be made under this section, subject of course to subsection (2). The purpose of that subsection is to restrict the frequency with which the judgment debt interest rate may be varied.
This interest rate is intended only to be a rough approximation of the average between what one can earn in the banks if the money in question were deposited and what one would have to pay to borrow on overdraft. It does not have to be precise, nor need it reflect every fluctuation of a quarter or a half per cent in the Association Banks'interest rates. Indeed, there would be actual disadvantages if it were to do so, as would seem to be the thinking behind amendment No. 26: litigants, practitioners and court staff alike would have to involve themselves in multiple calculations of interest for perhaps negligible amounts, and such calculations would, as well as involving extra work, increase the likelihood of error.
By varying the rate of interest at less frequent intervals it is possible to maintain a reasonable relationship between it and commercial rates, while at the same time making the job of those who have to use the judgment debt interest rate less uncertain and error-prone.
The Minister has met most of the points made in amendment No. 24, the idea being that it would not need a debate in this House, or any major initiative by the Government, to change the limits of figures available to the courts in making such orders and that they would automatically change in line with the economic indicators, the cost of living index or the prevailing bank and other commercial interest rates.
I understand the Minister is saying now that under the Act he has power to make a ministerial order to give effect to such changes and variations. We can only wait and see how they will work. Ministerial orders are not made as often as they should be as a rule and I would be anxious to ensure that the figures we are talking about in this context would be realistic and current and would relate to the real values in existence. We know that the passage of time and inflation have eroded most of the real worth of such values. Only yesterday in relation to fining policy generally it was stated that the figures involved are completely out of date and bear no relationship to current values. It is to correct that situation that section 19 appears in this Bill. Is the Minister satisfied that this is the best way in which to achieve his object? It might be appropriate for the Judiciary to have the right at regular intervals to review the figures involved. Is a ministerial order the best way to achieve the Minister's object?
Under the Debtors (Ireland) Act, 1840, a figure of 4 per cent was permitted on decrees. I am sure in 1840 a figure of 4 per cent was perhaps a little bit above the going rate. Over the years a number of people have obtained decrees in which for one reason or another there were delays in the payment of the awards and that had a disadvantageous effect on many people who have obtained decrees. I welcome this section. I take it the Minister is now substituting 15 per cent for 11 per cent.
No, the reverse.
It will now be 11 per cent.
Yes. Interest rates are coming down all the time.
Deputy Keating and I are reasonably happy with that. It is a fair figure. Had it been left at 15 per cent a sizeable number of people who had decrees given against them would have suffered great hardship. I hope that interest rates will fall even further because they have a disadvantageous effect on farming, industry and so on.
Section 20 gives power to the Minister to bring in orders. Overall this amendment goes a long way to meet what we had in mind. We wanted some method whereby the figure could be reviewed annually. I accept the good faith of the Minister in that he will review the figure annually. Difficulty could be caused where a case might commence in February and be decided in October. There would be no prevailing interest rate for that particular year and that could cause problems. The amendment goes a long way to meet our objections.
Amendment agreed to.
Amendment No. 24 not moved.
Section 18, as amended, agreed to.
SECTION 19.
Question proposed: "That section 19 stand part of the Bill."
Will there be a minimum period within which ministerial orders may be made? I am anxious that there should be a proper reflection of economic indicators. The provision is to be recommended. It is one that should have been introduced long ago. We have taken years to catch up with the realities of the situation. The 4 per cent figure has become utterly unrealistic. Often people had to borrow money and pay three, four, five and six times that rate. In the pursuit of equity I want to ensure there will be a mechanism which will adjust the figures spontaneously and automatically.
The Deputy may take it orders will be made when it is appropriate to do so.
How often would the Minister envisage that happening?
Under section 20 (2) orders varying the interest rate will come into effect at intervals of not less than two years. It is the intention to make such an order only if associated bank rates have changed by more than two per cent up or down. In striking the new rate the same considerations will apply as those proposed in section 19. Subsection (2) provides the safeguard the Deputy seeks.
Does the interval of not less than two years apply to section 19 as well?
Yes. Section 19 provides for the 11 per cent rate and section 20 (2) provides for the variations on the basis of which the order is made. It deals with the time factor involved.
This is March 1981. Let us assume the Minister makes an order for this month and that order is in force. Am I to understand that under no circumstances would it be possible to make a ministerial order before this time two years?
That is correct.
Regardless of the fluctuations?
If a situation obtained in which orders were to be made more frequently than proposed it would cause a lot of difficulties and uncertainties. It could create problems for litigants, for practitioners and it would be very difficult to calculate the amounts within such short periods. Two years is a reasonable length of time within which this situation should be reviewed.
Just to take the argument a step further, let us assume the interest rates had come down to the rate at which they stood two years previously, which I admit is unlikely, the argument could then be advanced: well, there is no need to change them now. We should remember that what we are endeavouring to achieve here is not merely flexibility but a just system which reflects accurately economic indicators. I cannot see anything complex about devising a formula which relates to economic indicators, to prevailing bank or other commercial interest rates and which is applied throughout the 12 months of the year. Frankly, I do not know why the two year period is there at all; I do not see the logic of it. This will mean that orders will be made or figures decided by the court which will relate more or less to what should be the case and what is agreed to be the case.
Might I point out to the Deputy that we appear to be dealing with section 20?
No. I am dealing with section 19.
That is section 20, yes.
Anyway there is no dispute about the figure. I am more concerned about the ministerial order mechanism.
Question put and agreed to.
SECTION 20.
Amendment No. 25 in the name of Deputy Keating has been discussed already with amendment No. 23a.
I move amendment No. 25:
In page 11, subsection (1), line 23, to delete "may" and substitute "shall".
Is the Minister accepting the amendment?
No. I have already made my points. The amendment is more restrictive than anything else.
Amendment, by leave, withdrawn.
I move amendment No. 26:
In page 11, lines 29 to 31, to delete subsection (2).
Amendment, by leave, withdrawn.
I move amendment No. 27:
In page 11, subsection (2), line 31, after "order" to insert "made and not annulled".
This is purely a drafting amendment.
Amendment agreed to.
Question proposed: "That section 20, as amended, stand part of the Bill."
This section seems to make a lot of sense. Presumably it means that the Minister would have greater power to step in whenever circumstances would so dictate, though I am not totally satisfied that that mechanism will operate as ideally as it should. I should like to know if there is any better way of making sure that the figures about which we are talking, the interest rates and so on, would accurately and consistently relate to economic indicators rather than at spasmodic intervals, dependent on a minister making an order or dependent on commercial interest rates. If the section is to operate properly it needs not merely a two yearly interval gap; it also needs a coincidence of the two yearly interval with interest rates which are 2 per cent more or less than they were two years previously. Certainly I can foresee circumstances in which one or both of those aspects would not apply, in which we could have over three, four, five or six years the same interest rates prevailing. When the principle of responsiveness to economic indicators is being acceded to at all we should be able to devise some kind of formula which would act as a slide rule to people whose job it is to dictate these matters, so that they could get on with it. There is no virtue in itself in consistency in the figure: I see no advantage in that. What is important is that that figure bears a true relationship to economic costs and indicators. I think that is what the Minister had in mind in introducing this section. However, I can foresee a situation in which that may not happen. In other words, here we are getting half a loaf when we could be getting the whole pan. I do not really believe that we have the best formula for devising adequate figures which reflect economic costs because it will be dependent on a two yearly cycle and then bank interest rates being at a certain level. Would the Minister be agreeable to look at this again?
No. I am satisfied that what is proposed in the section is adequate to deal with the situation. On the question of accuracy in relation to the variation of the figure, while it is important that the interest rate on judgment debts should bear a reasonable relationship to prevailing commercial interest rates, it is not necessary that every move in the latter should cause an order to be made under this section. Indeed over-frequent changes of the judgment debt interest rate could give rise to uncertainty and difficulties of calculation, as I have pointed out already.
Subsection (2) provides, therefore, that orders varying the interest rate may not come into effect at intervals of less than two years. It is the intention to make an order only if the Associated Bank interest rates have changed by more than two percentage points up or down and, in striking a new rate, to use the same considerations as were used in arriving at the rate proposed in section 19.
Subsection (3) says:
Every order under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next twenty-one days on which that House has sat after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
What happens if the interest rate, within the two yearly cycle, goes up four, five or six per cent but falls again before the 24 months have actually expired?
That is great.
It is very good for the economy. But does the Minister not see a certain inconsistency in regard to people whose costs are being adjudicated upon within that period and who have not had the benefit of——
One must take every case within the context of its time.
That is a very profound statement.
Profound, yes.
There is clearly a lack of facility there.
At present it is a 4 per cent facility and has been for a considerable number of years—in fact, for 140 years. With respect to the Deputy, I do not know what he is trying to get at.
The Minister is effecting an improvement but I think it could be better still. What if it takes us another 140 years to make changes?
I accept that Deputy Keating is trying to convince me that there is another more suitable method of improving the situation than is proposed in the Bill. But, having examined it carefully, I am satisfied that there must be certain demarcation lines, certain time limits, certain methods of calculation. Otherwise, if we are to be responding to commercial interest rate fluctuations on a more frequent basis than is proposed the irregularity of the whole exercise would cause enormous problems. Having regard to the period of time that this type of litigation can take I do not think that the two-year period is either too long or too short but it is a period in which fluctuations in bank interest rates can be reflected. It is not likely that we would make any more worthwhile contribution to the Bill by altering this period.
I accept in general what the Minister says but I do not see the problems he mentions. He refers to confusion, for instance. If there is a simple formula based on economic indicators, as is the case in many other aspects of life, in regard to costings and so on, there should be no problem. We are not talking about higher mathematics but about taking prevailing interest rates and applying them to a judgment. The difference is that the concept is new, that is, the concept of having a variation based on true costs but that is only just. Perhaps it would be all right if we were to have fairly regular reviews but this may not happen.
We will have regular reviews but the formula for making the order is a totally different matter. The method of calculation in respect of what is provided for in the Bill has already been discussed.
Would the Minister accept that in the case of an order made on a certain date on the basis of certain costs, the bank interest rates could have soared within 12 months? With a current inflation rate of 20 per cent this could mean that a similar judgment made at the later date would be relatively unjust to the person concerned. Is that a fair assessment of the situation?
It is not. It is a pessimistic outlook.
Let us be optimistic, then.
Being an optimist I am satisfied that the reverse is also likely, that is, that the interest rates could drop and that the inflation rates could drop also.
When we have that situation, we may expect a blue moon.
Question put and agreed to.
SECTION 21.
I move amendment No. 28:
In page 12, paragraph (c), line 1, to delete "Courts" and to substitute "Court".
The purpose of this amendment is to rectify a minor drafting error.
Amendment agreed to.
Question proposed: "That section 21, as amended, stand part of the Bill".
This section commends itself to us because, as we all know, very often costs are not paid for lengthy periods after the action has concluded. In some cases these delays can be up to 12 months or even longer. This situation is caused not so much by inertia on the part of the legal profession, though I am sure that happens sometimes, but by delay in having costs taxed by the relevant tax master in the issuing of his report. In a situation of high inflation it is totally wrong that costs are not paid immediately or that they do not carry interest in the event of delay in payment. Ideally they should be paid immediately because payment of them, even with interest one or two years later, may have resulted in great hardship in the meantime to the people concerned. The solace of having interest paid at a later stage, and though helpful in itself, does not necessarily mean the elimination of hardship. Therefore, we should not in any way allow this section on its becoming operative to detract from our desire to have costs paid immediately. The amendment meets the situation in part but any other change that the Minister might think of to help the situation further would be welcomed.
Question put and agreed to.
SECTION 22.
Amendment Nos. 29, 29a, 29b and 29c are related while amendment No. 36a is consequential on No. 29b. Therefore, all of these amendments may be debated together.
I move amendment No. 29:
In page 12, subsection (1), line 7, to delete "damages" and substitute "all damages excepting those for personal injuries".
The thinking behind our amendment is fairly obvious. The approach to damages for personal injuries should be different and that is why I am asking the Minister to consider the amendment.
Since we are taking so many amendments together, I am sure the Chair will allow me a good deal of latitude.
Generally that is the case but the Deputy is inclined to take more than his share of latitude.
This is a very important amendment. In the section as drafted the word "damages" appears without qualification. This would leave the situation wide open in regard to motor insurance claims in particular but it would also touch on other aspects of insurance. This provision concerns me in my capacity here as spokesman on consumer affairs because if the section were to go through as drafted, it would lead to enormous increases in insurance premiums. Our amendment is designed to prevent that situation. If interest were to be allowed on awards from the date on which the cause of action accrued that would lead to a situation in which, for instance, in the case of a motor accident having occurred on 1 January 1981 in which somebody was injured and since the proceedings would not have to be issued in respect of personal injuries for a period of three years, in other words, before 1 January 1984, the person concerned might decide that there was no great hurry to issue proceedings and might wait until the end of November, 1983, before doing so, happy in the knowledge that he would receive a sizeable amount by way of interest on the damages that would be agreed by the court. In many instances people would deliberately delay proceedings. This would be true especially of the better-off people. The poorer sections would not be likely to be in a position to wait so long for damages in the first place. That concerns us on this side of the House, that a person as well as getting medical expenses, being paid for the period out of work and getting interest on those items, would also get interest on, say, personal injuries. That situation would have led to massive increases in insurance premiums. Insurance premiums are prohibitive at present but this would have led to a bad situation getting completely out of hand if insurance premiums were to rise further and this section would have led to that situation arising.
Insurance companies estimate their reserves for outstanding claims. For 1980 I believe they set aside a sum of £200 million and that the reserve for employers and public liability was in the region of £100 million. If the Bill had become law as introduced the danger is that those reserves would not have been sufficient. That is why I believe this amendment goes some of the way. The Minister's amendment does not fully meet the situation that we are anxious to remedy. If the matter is not thoroughly remedied insurance premiums will rise between 40 and 50 per cent. I read the Minister's comments in the newspapers over the weekend and I know he is anxious to avoid further increases in insurance premiums because he knows the very serious problems that would arise for people in all walks of life trying to get motor insurance.
We are just talking about damages here and Deputy Keating's amendment includes all damages except those for personal injuries. This does not affect only motor insurance. There are very heavy insurance premiums on those working in the building industry and premiums must be paid by building firms to cover accidents at work and resulting damages. In my view the bill as it is, would lead to a very sizeable increase also in the cost of insurance for building firms. I have had discussions with people in the CII and the Builders Federation about this and they are concerned about it. So are those in manufacturing industries. Unless the provisions are changed they will lead to very sizeable increases in insurance in the building and manufacturing industries. This will also affect farm insurance costs, the different types of insurance involved in the agricultural sector, and in many cases will lead to increased premiums.
I accept that there are insurance companies happy to avail of the current situation and delay cases coming up for hearing. To give one example, the cost of a motor car is, say, £5,000. If a car is very extensively damaged and almost a complete write off, you could not bring that action in the Circuit Court. You have to go to the High Court. Many of these actions would not come up for hearing perhaps for a year or two. In dealing with an insurance company about a car accident involving over £2,000, their attitude was more or less: "You can do what you like because it will be quite a long time before this is settled". They were able to postpone settlement of the claim. The present situation suited them in that they were able to avail of interest on their own money but the person who suffered the loss of the car was at a complete disadvantage.
I accept that there is need to consider the matter from both sides but as it stands at present this Bill is not correct. We must try to ensure that insurance companies are not allowed to evade their responsibilities and we must protect innocent people entitled to damages, personal or otherwise. Insurance companies in many cases have availed of delays up to now. We must consider the best way of meeting the situation. Deputy Keating's amendment in dealing with all damages except those for personal injuries goes a long way to meet the case. In England interest on general damages is paid from the date of issue of the writ. This came in under the Administration of Justice Act, 1969. There was a case of Jeffard v Gee in which this regulation was brought in. As regards special damages, 50 per cent of the standard rate from the date of the accident is payable and from 1 October 1980 interest calculated in the same manner must be added to lodgments.
We are dealing here with something of fundamental importance, the motor car is not a luxury. The vast majority of people need a car for family use. We must ensure that premiums do not become prohibitive and we must be most careful in this section to see that the proper amendments are made. My approach to it would be that interest would become due from the date of the service of the proceedings on the defendant. The Bill provides "between the date when the cause of action accrued...." People could manage to delay issuing proceedings for two or three years in the knowledge that they would get interest from the date the cause of action accrued. To be fair to everybody interest should be allowed in my opinion from the date proceedings are served on the other side. That would mean that the insurance company would be notified reasonably quickly that an accident had occurred and that proceedings would be commenced. it would speed up the process of law in this connection. Once proceedings are issued they can perhaps use different devices to delay the matter further if they so wish but on the other hand once proceedings are served, if the insurance company want to have the case heard they can compel the plaintiffs to bring the case for hearing. They can bring a notice of motion for that purpose. That would meet the situation. In this section we are dealing with enormous sums of money and that is why I consider this matter should be looked into very carefully. Deputy Keating's amendment goes a long way towards meeting the situation. These are the main points I would like to make and I would like to hear the Minister's views.
The amendment put down by Deputy Keating would, I think, be contrary to the interests of the public generally. To take an example: a person injured in a collision in his motorcar may — under the Deputy's proposal — be awarded interest on the cost of repairing or replacing his car but not on any medical expenses incurred. The aim of this section is to provide a means whereby a successful plaintiff may be compensated for being kept out of money which should have been paid to him. This is a perfectly just principle, and has universal application. There is absolutely nothing special about compensation for personal injuries which would justify blanket exclusion from this provision of that category of damages over and above any other form of debt or damages. There may well be circumstances in individual cases which might warrant an award of more or less by way of interest, but such circumstances can arise in any type of case, not just personal injuries cases. Because of the wide variation in circumstances that can occur, the award of interest is made discretionary and within flexible limits. It may be that the amendments which I have tabled Nos. 29b and 29c — which propose to narrow these limits — will go a long way towards achieving the Deputy's objective.
Much has been said and printed over recent months on the supposed effect of this provision on the cost of insurance, and all sorts of extraordinary figures have been mentioned. I would like to make it clear, however, that much of what has been said is based on a misunderstanding of what this provision says. Fears have been expressed that interest will be awarded in all cases and that it will be awarded on the whole of each award for the entire period between cause of action and judgment. That is not what the section says: it gives a discretionary power to award interest, and in the exercise of that discretion it gives two further discretions, in both the amount of the award which is to carry interest and the duration for which that interest is to be calculated. Given that the aim of the section is to provide a means of compensating an injured party for being kept out of the money which should have been his to use, then it is unreasonable to suggest that the courts would always determine that interest should be payable on the full amount and for the full period. In personal injuries cases there are clearly elements of such an award which the courts would inevitable exclude—significant elements. The proportion of an award on which interest could reasonably be expected to be awarded is generally quite small and would normally relate to compensation for losses actually incurred between cause of action and judgment. If there was evidence of delay on the part of the plaintiff, then of course it would be open to the court to reduce the amount or the period on which interest would be applied.
It is against this background that amendments Nos. 29b and 29c have been tabled. They are intended to spell out in section 22 of the Bill—rather than leave it to the discretion of the courts—that two important elements in personal injuries awards will not attract interest. These are the elements of such an award which relate to all losses anticipated in the period after judgment, and to non-pecuniary losses experienced between cause of action and judgment. I should like to make it clear that without these amendments our courts here — in the exercise of the discretion given in section 22— would almost certainly exclude these elements from an award of interest. That is the position which has come about in England in giving effect to a similar provision. Nevertheless, it seems preferable on balance to spell out these main exclusions in the Bill itself. For one thing I accept that it is undesirable that the Oireachtas should give to the courts a statutory discretion very much wider in scope than the way in which we intend it to be exercised. In addition, the restrictions now proposed to be spelt out should allay fears which have been expressed as to any over-generous use of that discretion.
Amendment No. 29a clarifies the wording and intention of subsection (1) of the section; as it stands at present, discretion is conferred on "the court". It is intended that that discretion — to determine what interest, if any, is to be awarded in each case — should be exercised by the judge rather than by a jury. The amendment makes this clear.
It was originally proposed to bring this provision into effect six months after the date of enactment of the Bill, with the proviso that it would not apply to proceedings instituted in any court before that day. On further consideration, and particularly in view of the fact that by commencing the provision in this way it was possible that some defendants might find themselves liable for interest in respect of periods before this Bill becomes law, it has been decided to make a change. Amendment No. 29b provides that no interest may be awarded in respect of any period before the enactment of the Bill, and amendment No. 36a applies the provision with effect from the enactment to all cases determined on or after that date. The amendments taken together rule out retrospective effect in accordance with the general principle in that regard.
I have never held the view that amendments we tabled to achieve a certain objective should be technically accurate, but the Minister's amendments were tabled subsequent to our amendment which tried to ensure that there would be, at the very least, clarity in relation to the role of personal injuries and to ensure that they would not be open to abuse. I agree that the Minister's amendments partly meet the case and I do not wish to be petty about this but if the Minister is sure they are what are necessary, we would be happy about them. The section generally has much to recommend it.
We will deal with the section later.
The basis of my argument was that damages in relation to personal injuries were awarded as of the date of trial, and not the date of the cause of the action. There seemed to be a difficulty here: we could have an individual making a gain — getting interest plus inflation. That would be unjust. There may be times when we would wish that to happen and on balance I would prefer to see the individual getting the benefit of the doubt as opposed to a company, but we must have the concept of justice spread right across the board. Our amendment was intended to deal with that problem. I am not too certain that the Minister's amendments meet the case but we have alerted him to our fears in this respect and if he is adamant that his amendments meet the case, fair enough.
I want to make a number of points. I welcome the Minister's first amendment. There was some ambiguity as to whether a judge acting on his own was involved or a judge and jury. That matter has now been clarified.
For a number of years depreciation was not allowed in relation to damaged motor cars. The only costs payable were the cost of repairs and the cost of car hire. The situation has now changed and in most cases depreciation is also allowed. When a judge decides to grant interest from a particular date a precedent will be set and discretion will rarely be used. A person who suffers injury will be paid medical expenses and then compensation for any damage to clothing and loss of wages. As regards personal injuries, our courts have been exceptionally fair and generous in taking into account the rate of inflation in deciding compensation for those who have suffered. A person who receives an award today for injuries received in 1976 will be compensated at today's rates.
A change is now envisaged whereby a person will also receive interest on the award as well as compensation for inflation. If this occurs there will be a very sizeable increase in insurance premiums. Insurance companies do not need any excuse to increase premiums and do so at every opportunity. They will certainly make full use of a loophole such as this. When this Bill becomes law it will be necessary to keep a thorough check on insurance companes to see that they do not use this legislation to increase their profits.
The Deputy said most of those things in his first speech.
They are worth repeating and are relevant to this section.
Repetition is completely disorderly under the rules of the House.
The Minister may not appreciate the difficulties in relation to car insurance.
I am sure the Minister does not need repetition of the argument in order to assess it.
The Minister may have forgotton what the cost of car insurance is.
No.
When you read the Dáil debates you will see that I have not been repeating myself.
I doubt if the Chair could find time to read all Deputy Enright's contributions.
There is a very real danger that insurance companies will avail of this opportunity to increase profits and we must all be vigilant. As far as I am aware, insurance premiums in Ireland are higher than anywhere else in Europe. I do not feel that the Minister's amendments sufficiently cover the situation.
Is amendment No. 29 withdrawn?
Perhaps the Minister would comment on the very important points raised.
The amendments are expressly designed to ensure that elements of the award which account for inflation will be specifically excluded from the scope of discretion to award interest.
Is the Minister satisfied that Deputy Enright's fears will not be realised?
Yes. The Minister for Industry, Commerce and Tourism has responsibility for controlling prices.
That is no comfort whatever.
The Deputy should have some optimism.
We have had three-and-a-half years of optimism.
We are getting into another field now.
It is more like a bog than a field.
Amendment, by leave, withdrawn.
I move amendment No. 29a:
In page 12, subsection (1), line 7, to delete "court may, if it" and substitute "judge concerned may, if he"
Amendment agreed to.
I move amendment No. 29b:
In page 12 subsection (2), lines 18 and 19, to delete paragraph (c), and to substitute the following paragraphs:—
"(c) shall affect any damages recoverable for the dishonour of a bill of exchange, or
(d) shall authorise the giving of interest in respect of a period before the passing of this Act, or
(e) shall authorise the giving of interest on damages for personal injuries, or in respect of a person's death, in so far as the damages are in respect of—
(i) any loss occurring after the date of the judgement for the damages, or
(ii) any loss (not being pecuniary loss) occurring between the date when the cause of action to which the damages relate accrued and the date of the said judgement.".
Amendment agreed to.
I move amendment No. 29c:
In page 12, lines 20 to 22, to delete subsection (3) and to insert the following subsection:—
"(3) In this section —
‘damage for personal injuries'includes damages for personal injuries arising out of a contract;
‘pecuniary loss'means loss in money or money's worth, whether by parting with what one has or by not getting what one might get;
‘personal injuries'includes any disease and any impairment of a person's physical or mental condition;
‘proceedings'includes proceedings to which the State or a State authority (within the meaning of the Act of 1961) is a party.".
Amendment agreed to.
Question proposed: "That section 22, as amended, stand part of the Bill."
Amendment No. 29c refers to damages for personal injuries arising out of a contract. Is it envisaged that it will include damages for personal injuries arising out of torts?
Yes.
Why is the word "tort" not included in the amendment?
Damages for personal injuries normally arise under torts.
That is why I am surprised that this has not been included.
It is not necessary. It is understood.
There is also reference to mental condition. Is there any danger of it being used by some judge? Is there any danger of it conflicting with section 28?
No.
Question put and agreed to.
SECTION 23.
I move amendment No. 30:
In page 12, after line 28, to insert the following subsections:
"(2) The Minister for Justice may make an order varying the amount for the time being standing specified in subsection (1) (a) of this section and the said subsection (1) (a) shall have effect in accordance with the terms of any such order.
(3) Every order under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next twenty-one days on which that House has sat after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.".
The purpose of this amendment is to allow the lower limit of applicability of interest on judgment debts to be varied by order from time to time. It is expedient that this figure should be variable from time to time in order to take account of the changing value of money. This limit is not the jurisdiction limit and, as such, is an appropriate subject for variation by order.
I gather the purpose of the amendment is to get away from the hard line initially taken in the proposed section, namely, to put a base line at the lower limit and to leave it at that. We are opposed to the inclusion of the section unless we get satisfactory clarification. What is the purpose of the amendment? Some people consider that a small amount of money, perhaps not exceeding £150, is of no consequence, but I do not agree with that. There are many people for whom such an amount of money is a serious matter and if it does not carry interest it means that such people are being penalised heavily. The Minister must give us some justification for including the section.
The amendment the Minister has put down is another opportunity for cluttering up the Minister's office with ministerial orders of no great significance. Why insert a minimum amount in the Bill? For some reason I cannot fathom a person — perhaps an elderly person — who is awarded £120 is decreed to be less entitled to interest than somebody who is dealing with thousands of pounds. We are talking here of the true value of money. I do not understand the reason for the section.
I am concerned about this matter in my capacity as my party's spokesman on consumer affairs. If a person buys an electrical item or household furniture and finds that something is wrong with it, he may get a decree in court. However, the company concerned may decide that in the case of goods costing £140 they can sit tight and not pay interest. This could cause hardship to a young married couple who bought furniture that proved to be defective and in respect of which they got a decree. To such people £140 represents a lot of money and it probably took them a considerable time to save it. If they wish to replace the item of furniture they will have to borrow the money from a bank and pay interest at 14 or 15 per cent. We are totally opposed to the section as it stands. It will adversely affect the poorer sections of the community. Delay in payment by the company will impose considerable hardship on a section of people who are not well off.
We appear to be debating the section rather than the amendment. Let us dispose of the amendment first.
In my view the amendment does not meet the situation. Deputy Keating was quite right when he stated we were cluttering up the legislation with ministerial orders and changes. I ask the Minister to accept that the only people who will be seriously affected will be the poorer section of the community. Earlier we discussed claims amounting to thousands of pounds and we spoke of insurance companies who have millions of pounds but our main responsibility is to try to protect people who cannot protect themselves. Companies are aware of every device and loophole and they pull every trick in the game. This is one trick they should not be allowed to pull.
I wish to support my colleagues on this matter. I cannot understand why there should be any exemption in respect of interest running on a judgment. A judgment of a court which awards a plaintiff a sum of money is an acknowledgment that the money is due to him and has been wrongfully withheld by the defendant. The defendant should not be able to continue that wrong, which he will do if, as a result of not having an incentive to pay the money by virtue of the judgment carrying interest, he withholds payment of the money. Today money withheld can be extremely valuable. For instance, if the defendant happens to be a company of considerable means by withholding payment of their debts they can obtain profit on money invested. By withholding that money they can deny to the person not merely the interest on the money but, as Deputies Enright and Keating pointed out, they can impose on many plaintiffs the burden of having to pay interest on the money borrowed in the first instance.
Probably I am being generous when I say that most judgments are in respect of debts at least two years old at the time the judgment is awarded. I am not making a political point now, but in the past two years the rate of inflation has been 18 per cent. That means that a plaintiff who has been wronged by a defendant who withheld money has lost already 36 per cent of the capital value of the money by the time judgment is awarded. By withholding from that person the right to get interest on a judgment, he will suffer not merely the loss of interest but also a further capital loss. As Deputy Enright pointed out, by the time the debt is paid by a reluctant defendant there could be up to three or four years capital loss due to inflation, plus the loss of interest on a judgment. Even with inflation dropping it will take from five to ten years to get the rate of inflation down——
We must dispose of the amendment first. We can debate the section later. To date we have been engaged in debating the section.
I have nothing to add. I can make a comment but it will be in relation to points made on the section.
Is the amendment agreed to?
The amendment is not agreed to. The amendment infers that there will be an exemption but that the exemption limit can be fixed from time to time by ministerial order.
Amendment put and declared carried.
Question proposed: "That section 23, as amended, stand part of the Bill."
The main purpose of the provision is to avoid calculation of interest on small sums because the amount would not be worth the expense of calculation and collection. The figure of £150 is considered to be appropriate having regard to the general application of limits of this kind. As an example, cases under the Malicious Injuries Act exclude claims for compensation of £100. The limit on small civil bills excluded from crimiral legal aid schemes is also £100. I have listened attentively to what the three Deputies opposite have said and I am prepared to examine the position further and come back on Report Stage with my views.
What does the Minister propose to do with the section now?
I propose to let the section stand but I am prepared to examine it further.
We can table an amendment for Report Stage——
It is open to the Deputy to oppose the section on Report Stage.
That is what we will do. As the Constitution states, all citizens should be equal before the law. Some of the people about whom we are talking would regard £150 as being as important as the thousands of pounds being awarded to others. There cannot be any justification for the section's implicit discrimination against some people. If there are difficulties about administrative costs and about collection they are matters for tidying up at the administration end. People should not be penalised because they have been given awards to which they are entitled.
The Chair does not wish to mislead Deputies and therefore I would point out that the section cannot be opposed on Report Stage unless an amendment has been put down. Having debated the section to this extent I think the Deputy would be in a position to put down an amendment on Report Stage, if what the Minister decides to do on Report Stage is not acceptable.
I take it the Minister would accept, as a valid amendment, the deletion of the section.
It has to be in a certain form, such as, "to delete the lines".
I am aghast at the Minister's suggestion in regard to the cost of calculating 11 per cent of £150. If only to activate the grey matter of officials, it is an expense that should be borne by the State. I believe officials'brains and talents would be greatly improved if they had to make an occasional calculation. The money has to be collected, and whether you collect £150 or £166.50, the cost of collection is precisely the same. There is only a momentary involvement of the intelligence of highly qualified public officials in verifying that the calculation of the solicitor when he lodges the decree is correct. I do not for one moment believe it is beyond the capacity of our very competent public officials to do this, even if the State has to extend its resources to the purchase of a pocket calculator to enable them to do it. To ask any grocer who might be owed money to forego interest because the machine of the State is unable to calculate the interest is a ridiculous suggestion to make, and I do not want to be offensive to the Minister.
Is the Deputy suggesting there would be quite a number of this type of case?
There would be quite a number of such judgments, but no matter what type of case, the cost of calculating the interest is exactly the same, whether on £1,500 or £150.
I said this is the cut-off point which obtains in other areas.
What we have been trying to get across is that having a cut-off point is not justified unless the Minister is prepared to say that a judgment shall not be awarded for less than £150. That would mean the court would not be cluttered up with cases which, apparently in the Minister's view, ought not to be taken. There is not a cut-off in respect of the floor for malicious injury claims. Once a claim has been lodged it has to be processed through the local authority, the Garda and in many cases the courts. What the Minister is saying by insisting on a floor for such claims is dé minimis non curat lex, the law ought not to concern itself with trifles. It is not acceptable that people who are owed money of this dimension should not collect interest on what might be an old debt when the judgment is made. I am sure the Minister will bear these points in mind. If he has not reflected on them between now and Report Stage we will table the necessary amendments.
There has been a considerable amount of legislation dealing with consumer matters and the bulk of those cases would be dealing with matters ranging from £50 to £150. It makes little of such legislation as the Sale of Goods and Supply of Services Act if we now provide that interest should not be paid on all decrees. The ordinary man who brings a claim in court and gets a decree is every bit as entitled to be paid interest on £140 as somebody who had brought a claim for £1,400. Calculating it is a simple matter of arithmetic.
I know that the Revenue Commissioners and the State services are able to work out the most intricate calculations in regard to, say, VAT and income tax and everything else. Surely if they have that ingenuity they should be well able to apply interest rates to simple judgment debts.
Question put and agreed to.
SECTION 24.
I move amendment No. 31:
In page 12, after line 41, to insert the following:—
"(2) Judgements referred to in subsection (1) shall be entered in and retained for a period of five years upon a Register of Judgement Mortgages, which shall be readily available.”.
The essence of this amendment is to try to ensure that there would be full public availability of decisions made in relation to judgment mortgages and that a register would be made publicly available for a period in order to get us over the increasing amount of abuse in this area by the canny manipulation of company law and law generally, whereby people can evade the full impact of the law and of justice in this respect. Therefore we would like to see section 24, which in itself is a good one and seems to streamline the law, added to and supported in this respect by the entering in and retention for a period — in the amendment we suggest five years — on a register of judgment mortgages which would be readily available to any interested parties. Obviously, the purpose of it is to give real effect to section 24 and to make available the details so that people can take appropriate evasive or other action. We believe that that is not an unreasonable request and we would be grateful if the Minister would look at it as sympathetically as possible.
This section as it stands enables a person who gets a District Court award to register it in the Land Registry or Registry of Deeds against the property of a debtor so as to enforce his right to recover the debt. There is no need for any special register to be kept in that regard. Certainly there is no merit seen in restricting the life of such an entry to five years. That is what the Deputy intends. While this is not quite clear, the amendment seeks to have established a separate register for District Court decrees alone. This would be futile and would serve no practical purpose if, as proposed in the section, such awards are in any event registered in the central register. it would also raise the question of resources to be devoted to any such task whether at the Four Courts or District Court offices or the new central registry to be set up.
Amendment, by leave, withdrawn.
Section 24 agreed to.
Sections 25 to 27, inclusive, agreed to.
SECTION 28.
Amendment No. 31 a is in the name of the Minister. Amendment No. 32, in the name of Deputy Keating, is an alternative. Amendments Nos. 32a and 32b are related. Amendment No. 33 is an alternative to amendment No. 32b——
On a point of order, what is the order in which amendments are taken? Is it the order in which they are tabled or does the Minister get precedence automatically?
They are disposed of in the order in which they are numbered, but where there are alternatives and related amendments they are all lumped together for debate.
The point I am making is this. There have been—and I am pleased to see it— a number of amendments entered by the Minister which we might like to interpret as having arisen to some extent out of the impact made by amendments we tabled in reply to the original proposals. It puts us at a disadvantage to have to argue for our amendments in the second instance when in fact they were tabled initially. I just wish to know what the order is, but I am not going to make an issue of it.
The present occupant of the Chair does not decide these issues. It is the Ceann Comhairle who does so. As I see it here, amendment No. 31 was in the name of Deputy Keating. Amendment No. 31 a which follows naturally on amendment No. 31 is in the name of the Minister. Then we have to take these alternatives and related amendments and debate them all together. Amendment No. 31a is in the name of the Minister and the Minister will move it. Amendment No. 32 is an alternative and we will debate that with it. Amendments Nos. 32a and 32b are related and amendment No. 33 is an alternative to amendment No. 32b. Therefore the position is that amendment No. 31a will be moved by the Minister and we will debate amendments Nos. 32, 32a, 32b and 33 with it.
The only point I make is that 32a is insinuated in between 31 and 32 subsequent to 31b being tabled. I am just drawing the attention of the Chair to that fact.
That has happened over the years.
I just wanted to make the point.
I move amendment No. 31a:
In page 13, subsection (1), line 27, to delete "‘£5,000'" and to substitute "‘£7,500'.
The maximum amount which may be awarded to relatives of the deceased in a fatal accident was set at £1,000 when the concept was first introduced into Irish law in 1961. This new limit of £5,000 in the Bill as it stands at present is appropriate to the money values prevailing at the time the Bill was being prepared. On the basis of the latest available consumer price index the equivalent today of £1,000 in 1961 would be about £5,000. Deputy Keating's proposed maximum figure of £10,000 is excessive for an amount which is, after all, intended merely as a token of acknowledgment of the grief and distress caused and it cannot be regarded as a measure of that distress.
Government amendment No. 31a, which increases the maximum to £7,500, is adequate to restore the figure to a level more in keeping with what was intended by the Oireachtas in 1961, when the concept was first introduced, and to take account of inflation for some years to come. As well as providing for the award of compensation for mental distress in accidents generally, the Civil Liability Act of 1961 also provided for similar compensation to the relatives of the deceased in fatal aircraft accidents covered by the Warsaw Convention and related instruments. These international instruments govern the liability of airlines in respect of death or injury to passengers during the course of journeys by air and have been given the force of law in Ireland under the Air Navigation and Transport Act, 1936, as amended. The provision regarding compensation for mental distress in these circumstances was restated by the Air Navigation and Transport Act, 1965. Amendments Nos. 32a and 32b now propose to increase the maximum compensation of this type which may be awarded by a court in fatal air accidents to keep it in line with the new maximum for other fatal accidents provided in this section.
The apparent aim of amendment No. 33 is to permit the courts to order payment under the head of mental distress up to the new limit in cases which are not determined until after the passing of the Act. This, in effect, means that the Deputy would, whether he realises it or not, actually increase retrospectively the liability of the defendants. A defendant whose case was not determined until after the passing of the Act would find himself liable not for £1,000, as was the law when the cause of action was accrued, but for anything up to the new limit. To give the provision such a retrospective effect would be objectionable on grounds of general principle.
There would, of course, be consequences other than for defendants in such cases if the Deputy's amendment were accepted. Take the case of a plaintiff whose case is determined by a court on the basis of the existing limit immediately before this Bill becomes law. He would be worse off than a plaintiff bereaved in the same accident but who delays taking action and subsequently has his case determined by reference to the new limit. What the law would in effect be doing would be rewarding the dilatory and punishing the prompt litigant. It is no harm in this context to point out once more the real nature of this provision. It is described as "compensation" for want of a better word. No amount of mere money, be it £5,000 or £50,000, can compensate the members of a family for the grief and distress which the death of one of them causes. All that it can hope to do is to act as a token acknowledgment of that grief and distress. That was the intention behind the 1961 provision.
It is important also to note that the amount to be awarded for mental distress is determined by the judge and is over and above any damages awarded by the court for such quantifiable or approximately quantifiable heads as loss of potential or actual earnings, medical and funeral expenses. It is a misunderstanding of the real nature of the provision to associate it with in particular, any consideration of means or needs. These are elements which fall to be considered under other heads of damages.
There are two points I wish to make. I am pleased that, since the Bill was first introduced, the Minister has agreed to increase the amount of money involved in this section by 50 per cent. This is a case where the Minister on one hand says the sum proposed is actually a gesture and is not meant to reflect a true assessment of the distress caused to people. At the same time, it obviously should have some relevance to some criteria. The sum of £1,000 in 1961, for example, if we look at the consumer price index or the economic indicators to which we have referred once or twice, we will see that the initial sum proposed, £5,000, was clearly inadequate, even in the context of the arguable inadequacy of £1,000 in 1961. At that time the consumer price index, say at base £100 in 1961, would now be £571. In other words, the £5,000 initially proposed would have been less than the £1,000 in 1961 and, therefore, not alone did not represent an improvement——
Not at the time this Bill was published.
I am concerned about the time the Bill will come into operation. The thinking behind it is that at the time this Bill will come into operation, which is the relevant time, the sum involved will be less in real terms than the £1,000 in the Bill in 1961. Is that disputed?
Are you happy with the £7,500?
I am coming to that. I want to establish, first of all, that the initial proposal of the Minister was less in real terms than the proposal which was in the Bill. That was 20 years ago, in 1961. Therefore, throughout those 20 years we saw a dimunition in the value of that fairly meagre £1,000. Now the Minister proposes to increase it to £7,500 which is obviously a step in the right direction.
Thank you.
However, in view of the fairly scant attention this clause has got during that time and in view of the fact that no opportunity was taken to increase that amount, it is reasonable to assume that it will be a long time before it is increased again. That is why we are asking for £10,000. I do not expect the Minister will be coming into the House in the near future asking that this sum be raised. I think it only reasonable that, even though it might be in concept a gesture of our concern at the distress which somebody suffers, that we make it a reasonable gesture. I ask the Minister to give a little bit extra because in two or three years' time the sum of £10,000, taking a figure of 15 per cent or 20 per cent for inflation, will not be very much out of tune with the figure of £1,000 in 1961 which we are using as a base. We are not asking for a cosmic leap in terms of the amount of money involved.
I think it important to mention another matter, although I do so somewhat gingerly. It arises in the context of amendment No. 33. Our concern is to try to ensure, in view of the accepted inadequacy and injustice of the present £1,000, that, although further anomalies or difficulties might be created, those actions recently commenced which had not yet been terminated would find that they would benefit from the Act when it came into operation—in other words, that any action which had been commenced before now or before the Act comes into operation would get the increased sum. I know there are difficulties about that and I will not push it too hard because there are people affected just prior to that who would feel aggrieved. But by virtue of the fact that this sum has been so outdated for so long, it is only reasonable that people who are now on the brink of getting an award would get something closer to its true value. I ask the Minister to give his usual respectful consideration to those points.
With regard to section 28, I had questions tabled and answered in the House 18 months ago, because I felt it was a gross injustice to people who had suffered a tragic bereavement in their family and who only received a sum of £1,000 for mental distress, pain and suffering. I felt it an insult that this figure, which was fixed under the Civil Liability Act, 1961, had never been changed. I welcome the improvement in the situation and I congratulate the Minister on introducing it.
I appreciate the Deputy's congratulations.
There have been many Ministers in the intervening period who could have done it but they did not. I agree with Deputy Keating and I ask the Minister to consider a further amendment and bring the figure to £10,000. The loss of a member of the family is very serious for the family concerned. While £7,500 is quite generous, I would have gone the full way because in many instances, the amount of money which is received is often quite small. Apart from the money being paid for mental distress, pain and suffering, £10,000 would be a tremendous help.
I am not quite clear in regard to section 28, subsection (2), which says it shall not have effect in relation to a cause of action that accrued before the commencement of this Act. I note the statement in the explanatory memorandum on section 31, that the remaining provisions will in the ordinary way commence on the passing of the legislation. I am not quite clear what the Minister means. Is it that, when the Bill is passed by both Houses of the Oireachtas and signed by the President, this section will apply to an accident that occurs the following morning as distinct from after a lapse of six months?
From the commencement. There is no retrospection.
I appreciate there is no retrospection. After it is signed by the President, if an accident occurs the following morning are they entitled to it or do they have to wait for six months?
That is correct.
I ask the Minister to consider going the full way on it. This matter has been going for years. I raised it at a time when I thought it would be met. It has been met now, but I think the figure should be raised to £10,000.
In 1961 and for years after that as a practitioner of the law I had great trouble endeavouring to console next of kin with a ceiling of compensation of £1,000 in most cases. Next of kin of deceased persons complained bitterly that that was the ceiling which legislation thought could be put on their grief as a result of the death of a loved one. I remember the debate in 1961 and part of the argument at that time was that you had to take into account that even if an accident had not happened or a wrong had not been done, somebody might have to suffer the loss of a dear one anyway. Obviously if you are the survivor you have to suffer the loss of a dear one and that was taken into account in fixing this ceiling of £1,000. It is a shame that we as legislators have allowed 20 years to pass by before adjusting this figure, but this is not the only sin of omission which we as a parliament have committed down the years. I would love to think that we will soon arrive at the day when we can have some omnibus legislation which will index to some acceptable figure and update the value of compensation payments made after due deliberation of this Legislature.
Consider what we do every year, for instance, in relation to the ceiling of eligibility for benefit and liability for payment under the social welfare and health codes. The Minister makes an order which in due course has to be confirmed here in the House. We do that deliberately in order to make an annual adjustment of figures where we are concerned that the value of benefits should not be eroded. Why do we not do it in cases of this kind? The Minister will probably agree with me that that would be the ideal. It will be argued that the only reason it is not done is the legislative time that it takes to do it. However, were the order to be made on an annual basis it would not necessarily have to be debated in the House on all occasions. I would like to think that even this Bill could be amended—and I urge on the Minister to amend it—in such a way as to enable an order to be made and laid on the table of the House to adjust this figure from time to time in accordance with some acceptable index, and if any Member of the House wants to challenge the order it should be left open to him to have the matter debated and, if necessary, amended or rejected as the case might be. Knowing now that through sins of omission we neglected this area for 20 years, some responsibility lies on us to try to find some means whereby the figure can be adjusted more frequently. I am an optimist but I do not anticipate that inflation is going to come to an end over the next 20 years. Even if inflation were to get back to the halcyon days of 1961 there would still be a continuing erosion and the burden of work on this and all other democratic parliaments is increasing, not decreasing. So if it took 20 years, from 1961 to today, to make this amendment I fear that it will be our grandchildren who will be making the amendments some time after the year 2000, and that will be a serious injustice.
I was hoping that the Minister, arising out of our endeavours to convince him, might be agreeable to go a little bit further.
I will make a few brief points in relation to what Deputy Ryan has stated. It is the intention constantly to review this limit. I am informed that the present day equivalent of the £1,000 provided under the 1961 Act would be about £5,800 and the proposed £7,500 is in excess of that. It is also fair to state that this is not compensation as such for distress suffered by somebody who loses a relative. No matter now near or far the relative is I do not think that in monetary terms the person can be compensated.
The question of retrospection was mentioned. I have already stated regarding the defendant whose case was not to be determined before the passing of this Bill when the figure would stand at the 1961 amount of £1,000, that retrospection if it were to provide for the new limit would impose an increase of liabilities on the defendant and it would be unfair and unjust to have it included.
Is it reasonable to assume that this section of this Bill and the first payments under this will not come into effect for between three to five years?
I understand that it is a question of how quickly or how soon the people settle.
Yes, but is that not a reasonable estimate?
Six to eight months.
You can argue, say, two-and-a-half years, to come to a minimum. For the next two-and-a-half years under this section people are still going to continue to be awarded £1,000. The reference the Minister makes to the constant review is presumably precisely what was said in 1961 when the thing was introduced. I do not see any way in which we can honestly avoid the conclusion that this sum is going to remain on the books for many years. I would argue that the very first time it comes into effect will be probably three to five years' time and inflation, running as it is present at 18, 19 and 20 per cent, could very well mean that the sum involved at the first date of operation would be no better — or no worse — than the £1,000 was 20 years ago and will not bring about the improvement that the Minister believes it will. From that date on it will continue to decrease in value. I do not see any reason why there should be a limit on it at all. If we are talking about mental cruelty we should consider whether the judge should be entitled to assess a number of factors and make an order or settlement based on real factors rather than this gesture we keep on talking about. Let us at least treat the person suffering from the loss of a next of kin with some dignity and respect and give such person something that is at least meaningful. The Minister has come more than half way on this and I would be very grateful if he would come that little bit further which would mean that for some number of years at least that figure would remain genuinely useful and would not be eroded immediately with inflation, as it will if we go ahead with this figure which is little more than an updating of the 1961 figure and which by the time it comes into effect will be as that was. Therefore, I appeal to the Minister to consider adding an extra dimension to it.
I do not envisage a situation where the figure will, as in the past, remain static or fixed for 20 years.
Can the Minister make a ministerial order on it?
No.
Then how in the name of God is it expected to change? By new legislation?
By statute.
Does the Minister not know well that no statute would be introduced into this House for distress?
It will if necessary, the Deputy knows well.
It was necessary for 20 years.
Amendment agreed to.
Amendment No. 32 not moved.
I move amendment No. 32a:
In page 13, between lines 28 and 29, to insert the following subsection:—
"(2) Subsection (2) of section 18 (inserted by the Air Navigation and Transport Act, 1965) of the Air Navigation and Transport Act, 1936, is hereby amended by the substitution of ‘£7,500'for ‘one thousand pounds'."
Amendment agreed to.
I move amendment 32b:
In page 13, subsection (2), line 29, to delete "Subsection (1))” and to substitute “Subsections (1) and (2)”.
Amendment agreed to.
Amendment No. 33 not moved.
What is the point regarding those amendments that were not moved?
They cannot be moved once we accept the £7,500.
Section 28, as amended, agreed to.
Section 29 agreed to.
NEW SECTION.
Amendment 34a proposes the insertion of a new section.
I move amendment No. 34:
"In page 13, before section 30, to insert the following section:
30. —The Courts Act, 1977, is hereby amended —
(a) in section 1, by the substitution of the following subsection for subsection (2):
(2) ‘The number of ordinary judges of the Circuit Court shall not be more than twelve.', and
(b) in section 2 —
(i) by the substitution of the following paragraph for paragraph (a) of subsection (1):
‘(a) There shall be five judges of the Circuit Court permanently assigned to the Dublin Circuit.', and
(ii) by the substitution of the following paragraph for paragraph (a) of subsection (2):
‘(a) to the Dublin Circuit if at the date of the appointment there are less than five judges permanently assigned to that circuit, or'.".
This amendment increases the number of ordinary Circuit Court judges from 11 to 12 and assigns the new post to the Dublin Circuit, as mentioned by the Minister in his reply to the Second Stage debate. At present, the number of permanent Circuit Court judges authorised by statute is 12 — the President and 11 ordinary judges, of whom four are assigned to the Dublin Circuit. In addition, there is one temporary judge who has held office since 1978. The present volume of business of the Circuit Court shows no sign of falling off and commitments which must be met by the existing complement of judges warrant the creation of an additional permanent post. It has been noted that the new post created by this amendment is to cater for an already existing situation and does not prejudice, in any way, the provision of additional staff or judiciary to cater for any extra workload falling on the District and Circuit Courts as a result of the jurisdiction proposals in the Bill. The Minister has already indicated his commitment to the creation of such new posts when they become necessary and I reiterate that.
I was concerned that it was envisaged to transfer cases from, say, Kildare to Dublin, that the State might decide to have indictable cases transferred from Kildare to Dublin.
We are dealing only with the appointment of additional judges, as I understand it.
Does this not concern the transfer of trials in criminal cases?
That is a subsequent amendment, the next new section.
We are dealing with amendment No. 34.
On amendment 34, the number of judges is to be increased from 11 to 12. What areas will the 12 judges cover?
All of the country, I understand.
The whole country.
How many circuit judges have we?
Eleven permanent Circuit Court judges and one temporary. The number is being increased now to 12 with the new post in the Dublin Circuit.
With the very vast amount of litigation which will follow on the extension of jurisdiction in the District Court from £2,000 up to £15,000, I am fully convinced that, in spite of the increase of one, the demands for the creation of Circuit Court judges will not be sufficiently met.
I do not wish to interrupt the Deputy but I want to clarify a point. This new section proposes to appoint one additional judge to the Dublin Circuit. It is not intended to deal with any increase in the amount of litigation which may occur as a result of this legislation. It is intended to deal with an existing situation. The Minister for Justice has already given a commitment, which I have reiterated here this morning in speaking to the new section, that whatever numbers are required to deal with any increase in the work-load as a result of the coming into operation of this legislation, the judges will be appointed, if required.
The Minister gives a commitment but does not give any judges. Is it not commonsense——
It is not normal to appoint judges here.
No, but the Act could facilitate the appointment, although there are those who differ from what the Minister has just said. I am not sure where the judges are sometimes appointed. Is it not commonsense that the increase in jurisdiction imposed in relation to the Circuit Court will mean extra work? Is the Minister not aware that the Circuit Court is presently the most efficient tier of the courts, by virtue of the fact that these good men work themselves very hard and quite late into the evening? I do not understand what the Minister is waiting for. Is it the case that, by some magical process, extra work will be handled by the Circuit Court without the need of extra staff — not just extra judges but extra staff?
We do not make these appointments in anticipation of a workload which has not established itself. The Minister for Justice has stated, as I have, that should this workload come about, the appointments will be made, as required. All that we are doing in this section is giving an indication in advance of our preparedness to provide the necessary number of judges for the Circuit Court when the occasion requires it. This new section could be seen as an indication of our good faith
Go on now.
The Deputy can be satisfied that, in the future, there will be a continuity of that approach.
Within what period will the judges be appointed?
I must make the point that it has been overlooked that the Bill will ensure that the District Court will take some of the workload from the Circuit Court. There will be a balancing-out effect on this situation.
Regarding this preparedness which the Minister talked about, the new amendment says that the number of ordinary judges to the Circuit Court shall not be more than 12. That seems a lack of preparedness. The Minister has said that this amendment does no more than recognise the existing situation.
That has been the standard English used in all previous situations. We are not departing from that, but using the powers of this House to provide an additional judge in a situation where he is required. We will proceed to provide further additional judges, when necessary.
I am trying to point out that the Minister implied, for a moment, that this was a first step in appointing more judges. Forget about the degree for the moment, will there be an extra workload in the Circuit Courts, subsequent to the passing of this Bill, yes or no?
I cannot read into the future and anticipate a situation which has not yet occurred. In actual fact, the Bill has not yet passed.
But when it does——
I cannot deal with ifs and buts and whens. I must be practical and honest.
The Minister is being unduly evasive.
I am genuinely not in a position to read into the future.
I am only saying what is obvious.
In that case, the Deputy should not pose the question.
I want to follow up with another question. It may not be obvious to the Minister, but it is obvious to me that there is increased jurisdiction for the Circuit Court and the District Court.
There is an extension of jurisdiction for both courts.
I am particularly concerned about the Circuit Court. Does that increase in jurisdiction not mean extra work?
It may not necessarily mean the amount of extra work which the Deputy is speaking about, because the District Court will be taking on responsibilities which it has not had before.
That means extra work.
It may or it may not.
It may not? Increased jurisdiction may not mean extra work?
For the purpose of appointing additional judges, I cannot, at this point in time, state the amount of extra work, if any. I would not be justified.
I accept that it is impossible to be certain about the amount of extra work, but one thing is clear: we are going to need extra members of the judiciary. I am not at all consoled by the reference to the fact that the Minister for Justice will undertake the implementation of the necessary appointments if they come about, whatever about the present Minister. If that is as cast iron as other promises made by the Minister for Justice, who unfortunately is not present, we will be in serious trouble.
An Leas-Ceann Comhairle
We are getting into another field altogether.
The Deputy is happy if given a commitment and I reiterate the commitment given.
I know that the Minister has no problem in giving a commitment, no trouble.
Amendment No. 34 agreed to.
NEW SECTION.
I move amendment No. 34a:
In page 13, before section 30, to insert the following section:
(1) Subject to subsection (2) and (3) of this section, where a person charged with an indictable offence (in this sect ion referred to as ‘an accused') is sent forward for trial to the Circuit Court sitting other than within the Dublin Circuit, an application by the prosecutor or the accused to the judge of the Circuit Court before whom the accused is triable to have the trial transferred to the Circuit Court sitting within the Dublin Circuit shall——
(a) in case the party making the application, not less than seven days before making it, notified the accused or the prosecutor, as the case may be, of the application, be granted, and
(b) in any other case, in the discretion of the judge, be either granted or refused, and the decision to grant or refuse the application shall be final and unappealable.
(2) Where——
(a) two or more accused are sent forward for trial to the Circuit Court sitting other than within the Dublin Circuit and it is proposed to try them together, and
(b) an application by one or more, but not all, of the accused ander subsection (1) of this section is granted,
an application, without notice to the accused, by the prosecutor to the judge who granted the application to have the trial of one or more of the remaining accused transferred to the Circuit Court sitting within the Dublin Circuit shall be granted.
(3) Where there are less than seven days between the date on which the accused is sent forward for trial and the date of commencement of the trial, an application under subsection (1) of this section shall be granted.".
In his reply to the Second Stage debate on this Bill, the Minister indicated that he was actively considering how best to change the law to permit the transfer of criminal trials from the Circuit Court to the Central Criminal Court. These amendments are as a result of that consideration. The present position is, broadly, that, by virtue of section 6 of the Courts Act, 1964, if either party in a trial for an indictable offence in the Circuit Court gives seven days' notice to the other that he intends to apply for proceedings to be transferred to the Central Criminal Court, the judge must grant that application. If the seven days' notice is not given, the judge has discretion.
An Leas Ceann Comhairle
Incidentally, amendment No. 37a is consequential on this new section.
Progress reported; Committee to sit again.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.