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Dáil Éireann debate -
Thursday, 2 Apr 1981

Vol. 328 No. 5

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

SECTION 10.
Question again proposed: "That section 10 stand part of the Bill".

Having again inquired into a problem presented to us in subsection (2) I am not at all happy that the Minister is correct in his attitude and I would ask him to review his attitude to the section because there now appears to be written in for the first time since the abolition of rates a new distinction between certain categories: (1) people who did not pay rates and do not now pay rates and (2) people who in the Minister's view still have a superior or prior right to be involved in a hearing for malicious damages primarily or almost exclusively because at some time in the past they paid rates. They were participants in a system which was abolished because it was fundamentally unjust and inequitable. But that right is not merely to apply to people who had their own homes and paid rates. It is also now to apply to new home owners. It will, for instance, apply to new home owners who purchase their houses in 1983 or 1985. We encourage home ownership and the mere fact that the person has the ability or the financial capacity to purchase his own home gives him a right stronger and superior to the right of anybody else who is not paying rates and does not own his own home.

In truth, neither the new home owner nor the tenant of local authority housing or private housing accommodation, of which there are 300,000 to 400,000 now pay rates; but the fact of home ownership, for some reason which seems routed in a historical idea that those who own property should have a stronger right — it is purely historical in that context — will still give people a stronger and greater involvement in such hearings. That is unacceptable and does not gel with what I would regard as a proper system of social justice particularly in the area of malicious injury in which public moneys are involved. Persons living in private rented accommodation, whether they be students or workers, and the thousands of tenants in local authority accommodation should have an equal right to a say in how malicious injury compensation is handled. The fact is they do not have the same say. That is my point. They do not have the same right and neither do they have an equal right.

It is wrong to continue this distinction. We could argue that people who used to pay rates should not have the right taken from them. What we are concerned with here is that people who in ten years' time take out a mortgage or have the finance to buy their own homes — that is very difficult at the moment — have a different right. Such distinctions tend to divide society. I do not pretend there will be a major schism over the subsection but, as it stands, it is inequitable and should be removed. Nothing the Minister has said so far convinces me to the contrary. The word "ratepayer" should be replaced by some other word relating to a person's residence in a local authority area. That would be a step towards realising, regardless of property status, that we all have a common interest in the welfare of the community, a common interest in ensuring that vandalism, malicious injury or damage are all contained and that the increasing growth of such dire statistics is stayed. This does not do anything of that nature but simply says the same order prevaileth. Even now, when we have decided to get rid of the basis of such distinction, we will nevertheless continue a notional idea, and not just continue it but re-introduce it whenever anybody purchases a home. That is wrong.

The Minister should really give further consideration to the points made by Deputy Keating. We are talking here about the joinder of a second local authority where one local authority will be requesting the court to involve a second local authority. The definition of "ratepayer" must be looked at. A cursory examination of the definition section does not indicate who exactly is to be classified as a ratepayer. This is fairly obvious in the early days of malicious injury legislation but nowadays this is not the case. Rates are not paid on domestic dwellings and some farmers are entitled to agricultural relief. What is their position? Is the person with under £20 valuation a ratepayer even though he pays no rates?

Under section 17 of the Local Government (Financial Provisions) Act, 1977 he retains the status of ratepayer.

Why should that person be entitled to come in under the proceedings when he has no direct financial interest over and above any other member of the community? It seems to me, whatever about the position of a person who is paying substantial rates as opposed to somebody who is called a ratepayer but who does not pay anything, there may be some case for involving the person who is actually paying a substantial sum and giving him some entitlement. But there is no case whatever for giving special entitlement to the person who is called a ratepayer but who does not pay any rates.

I recollect that in certain situations awards over a certain amount were passed on to the Central Fund. If that is the case, any taxpayer who pays taxes to the Central Fund has an interest in the outcome of the case, because indirectly that taxpayer, the same as the ratepayer making up the county council awards, will ultimately have to pay his or her divisible share to provide the funds to pay the award. Why should anybody who has an interest in such proceedings not be entitled to appear? Why confine this at all? It seems to me that in framing the subsection to confine the entitlement to a ratepayer of the local authority it is too restrictive in some of the instances I have outlined. Would it not be proper that any person, whether a ratepayer or not, a ratepayer who pays rates or a legal ratepayer who does not pay rates, a taxpayer, or not, a resident within the local authority area or not, would if he has an interest in the proceedings have an entitlement to go along and appear on the application? That subsection should be reframed accordingly.

I can imagine a situation where people who might live in another part of the country might have a particular interest in a particular application before the court. There might be strong public feelings about the matter. There might be some group promoting some cause who would like to present their new point to the court. I am a great believer in always providing as many safety valves as possible. If people have something to say in a restrained and legitimate manner, why preclude them? Since the Minister is providing for the right of persons to appear on the application before the court he should go the whole hog, and reframe the section and not confine it.

The Minister should consider reframing the section to give entitlement to anybody who shows a legitimate interest to the court. Where the court is satisfied that a person has a legitimate interest in the subject matter of the application, that person should be given the right of audience on the application. I have, having dealt with many of those applications, never seen anybody wanting to appear in a court. It was always purely a matter between the applicant and the local authority. I do not believe that the provision will be much used or abused. When the provision is being made it should be left open to everybody. I urge the Minister on later Stages of this Bill or in the Seanad to consider the point I have raised in this regard.

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

This section is a very satisfactory one. In another part of the Bill it appears that an award could be levied on a small area. This section changes that. We are told that this was done by the solicitor for the local authority stipulating the area for levy. I doubt if this was legal in many cases. Even if it was legal, it was a wrong practice. Up to now there was a huge delay in the awarding of compensation, because it usually came out of rates struck for the year after the award was actually made. I know of a case where a delay of two years occurred. A man who got in touch with me this week is in serious financial trouble owing to damage caused and the difficulty caused by the recession. He has been given a decree for £40,000. That money is not payable for a long time to come. He is not sure how long it will take. It is quite wrong that that should happen. We should also bear in mind that such sums have not any element of interest or compensation attached to them. Therefore, anything that will improve that and allow for immediate payment once the claim is substantiated is a good thing.

Question put and agreed to.
SECTION 12.

Amendments Nos. 2 and 3 are related and we will discuss them together.

I move amendment No. 2:

In page 6, subsection (3), between lines 33 and 34, insert the following paragraph:

"(c) in respect of any damage or loss to the extent that compensation therefor has been recovered under any other statutory provision or under the common law or to the extent that reparation therefor has otherwise been made by or on behalf of the person who caused the damage or loss;".

This amendment is a new provision and is designed to rule out the possibility of a person being compensated on the double for damage or loss he has sustained. It will ensure that compensation will not be payable under the Bill to the extent that a person has received compensation under any other statutory provision or under the common law or to the extent that reparation has been made by or on behalf of the person who caused the damage or loss. There are a number of provisions in statute law which empower courts hearing criminal cases to order the offender or his parent or guardian to pay compensation to the owner of property that he has damaged. There are provisions of this kind in the Malicious Damage Act, 1861, the Probation of Offenders Act, 1907, the Children Act, 1908, and the Road Traffic Act, 1968. Under some of these provisions the courts may order the payment of compensation up to a specified limit only. The amendment will also prevent the award of compensation under the Bill in a case where a person whose property has been maliciously damaged recovers damages in civil proceedings against the offender. Neither will compensation be payable where reparation had been made by or on behalf of the offender. This would include payment of conscience money or payment made in a case where a judge adjourned a criminal case in order to give a defendant an opportunity of making reparation.

Amendment agreed to.
Question proposed: "That section 12, as amended, stand part of the Bill".

The provision here for a reduction in or for the exclusion of compensation so as to ensure that a person is not paid twice is obviously sensible. However, there are one or two queries arising from the wording of this section and particularly subsection (1).

I understand that it is in accordance with the law of negligence that apportionment can be made in a case where blame attaches both to the plaintiff and to the defendant and that the plaintiff's damages are reduced by an appropriate percentage. That is a reasonable provision and it means that a person's compensation may be reduced as a result of his being partly to blame for the damage. It is not unreasonable that cognisance should be taken of the fact that a person failed to take reasonable precautions and that that failure resulted to some extent in the damage in question being caused. The provision regarding a person being expected to take reasonable precautions is proper, but I should like the Minister to clarify the word "precautions" in this context. I have been trying to ascertain the kind of difficulties which confront judges in these situations. Is it not some-tionmen what woolly to talk about a person's conduct in relation to his taking any precaution which might reasonably have been taken by him to avoid the damage or loss concerned? We should try to spell this out more clearly, because otherwise we will not know whether precautions in this sense include, for instance, private insurance.

They would include locking up property, for instance.

That is not unreasonable, but what about a person who does not have property inspected regularly? This is an adversary situation. There would be a temptation on the part of those who would not wish to concede the award to endeavour to imply that the person had not taken precautions. Therefore, what do we mean by "precautions"? What are the criteria on which a judge would base his decision in this regard? As worded, the provision is very loose.

In any situation of a claim for damages one could think of circumstances in which it could be argued that the plaintiff should have taken certain precautions. For example, let us assume that a person's car is stolen and destroyed. If the door had been locked but if there were no other safety devices in use, could it be implied that reasonable precautions had not been taken? Alternatively, if a car is stolen after it has been parked in an area in which there is a higher rate of such incidents than in other parts of the city or town concerned, could that be regarded as contributory negligence? If this is to be the case, there could be discrimination against certain categories of people, and indeed against TDs who are obliged to visit some of these areas as often as possible. If we do not clarify this whole situation, we could be providing an escape hatch and that would be unjust and would lead to abuse of the legislation.

I thank the Deputy for his welcome for this section in the main. Reasonable precautions are precautions that one might expect to have been taken by the plaintiff. What the court would deem to be reasonable in this regard should be a matter of interpretation by the court. The decision should rest with them as to whether any action or any omission on the part of the plaintiff contributed to the damage.

The use of the words "reasonable precautions" here are no different from their use in the Road Traffic Act, 1961, as amended. In that context it is a matter for the courts to decide on the reasonableness of the driving, to decide whether there was a contributory factor on the part of the driver. The same applies here when we talk about precautions that might reasonably have been taken by a plaintiff to avoid damage or loss to property. In many cases the question of whether reasonable care was taken can be assessed only in court where all the facts are available.

The analogy used by the Minister is not fair. The origin, the causation and the contributory factors in respect of a driving offence all fall within a very narrow ambit. There are only so many factors that can contribute to such an offence and these are fairly predictable. One could almost list them. There may be less obvious factors such as lack of attention, distraction or questions of concentration, but these are very subjective and are difficult to quantify.

In this legislation the questions relating to malicious damage or to loss are very widespread and the spectrum of possibilities is enormous. All I am endeavouring to do is to ensure that the courts have some guidelines on which to base their decisions. Otherwise, the situation of different standards would continue. One judge would be regarded as being particularly scrupulous about the definition of precautions while another would take a more lenient view. In fairness to the Judiciary and to the citizens, we should clarify the situation.

The same applies where compensation is concerned. One type of malicious damage might be regarded by one judge in a different light from that in which it would be regarded by another, but these are human elements for which we cannot prescribe in law.

We cannot do anything about the latter. There are different types of malicious damages. There are damages, for instance, to cars and there is damage to other personal property. It is not within our power to influence what may or may not happen in this respect but we are now approving a Bill which is intended to guide us on how we should deal with compensatory matters. I am less than satisfied about that reference which is a bit sloppy and woolly and will lead to certain difficulties even if we include examples of the sort of precautions that might be taken. I am willing to believe that in any case of malicious damage one of the first steps that will be taken will be taken by the people who have an interest in ensuring that a claim is not granted to imply that adequate precautions were not taken and because damage is being done to a property or something owned by somebody else, the obvious things are that there were not adequate safeguards, adequate security, locks and attention to the full range of security matters. There is no answer to that unless you have people minding their property 24 hours a day. Without delaying unduly on this I see room here for serious problems to arise. The Minister should consider re-drafting that subsection to make it clearer.

A person is not expected to do any more than take reasonable precautions and neither is he to be unreasonable about the kind of precautions he might be required to take. It would be unfair to require him to take precautions so costly that they would exceed in personal cost to him the actual value of what he was protecting. There might also be a situation involving the physical impossibility of somebody staying up all night to watch a lock-up store because it was in a particular area or because his car had to be parked in a particular street where he lived and because of the incidence of unsavoury acts there. We must also recognise the reasonableness of the person concerned taking certain action, something related to his own capacity and the value of the property involved and other circumstances. The court where all of this knowledge of circumstances is available is the only place that can decide on whether reasonable precautions were taken. "Reasonable" is a very necessary and desirable measurement of the type of precautions taken.

Having regard to the fact that the word "reasonable" is used in many areas of the legal system I do not envisage any situation where the court would, because of this particular matter, be unreasonable in the interpretation of the two lines to which the Deputy referred or that the court would have any motive for interpreting them in a very strict or stricter manner than they interpret them in another area for the purpose of minimising damages by being able to show, after interpretation of "reasonable precautions", that there was some negligence or some contributing element from the owner of the property.

It all depends on what we mean by "reasonable" and it is a very subjective area.

If the Deputy accepts what I am telling him, that is reasonable.

If I accept what the Minister tells me is reasonable it would not also necessarily be right on all occasions. I am sure the Minister would not deliberately mislead me. Assume somebody's car is stolen. He had locked the door but had not put on another safety lock of any kind. Has such a person taken reasonable precautions? Assume that a person, perhaps against the advice of his insurance company, does not use a steel shutter to protect the plate glass window of his retail premises in an area which has had problems of vandalism and breakages. The owner feels the shop is reasonably safeguarded and has an alarm or bell system which, of course, does not protect the window. Has such a person taken reasonable precautions?

That would be a matter for the court.

How will the court make up its mind when we do not know?

We should not deal in this area at all. You could have a situation where one shopkeeper did not put a steel barrier while the other 20 shopkeepers in the same area did put it up and had not their property damaged. Would not the person who did not put up the barrier, having regard to the knowledge he had of the precautions taken by the others, be very likely deemed by the court to be unreasonable? I can only presume what the court would say. The Deputy cannot come along with an illustration and then carry on with a list of assumptions about his doing this or that or the other and we could say he could be described as taking or not taking reasonable precautions. You cannot do that here in the House——

We have to do it.

No, it is not the forum in which to do it.

We have to be clear.

The Deputy is doing something unusual, trying to anticipate how the court will deal with any element of our law.

What does the Minister think the court must do? Where will the court look for guidance except to what is in the Act?

It would be an intrusion on the rights of the court for me to anticipate any particular interpretation of the law by the court.

Let the record note that as far as I am concerned lines 13, 14 and 15 are liable to give rise to significant confusion and will probably redound to the disadvantage of those who cannot argue cases against those who can because, putting it simply, the reference to any precautions which might reasonably have been taken is too wide and too woolly for clarity. Even Solomon in all his glory would have difficulty in making up his mind as to what that meant.

On subsection (3)(c) might I ask, in the reference to damage to or loss of coins, legal tender notes, bank notes, or currency of any country, any postal orders or post office money orders or any postage or other adhesive stamps, or articles of personal ornament, (including watches and jewellery) kept otherwise than as part of stock-in-trade, why are those excluded? What is the thinking behind that?

There is a similar provision in the Criminal Damage (Compensation) Act in Northern Ireland and in the preparation of this legislation that Act was looked at. Some of the information that became available was very valuable in so far as it was found that where a provision was there to include such items as are referred to in this part of the subsection there could and would very likely be an encouragement to defraud or engage in fraudulent activities. It also provides for the legitimate aspect of the matter when it states "articles of personal ornament, including watches and jewellery, except otherwise than as part of stock-in-trade. If you have a coin collector and part of his stock-in-trade is coins or ornaments, that person would be protected under the Act. The evidence available to us, having looked at the situation elsewhere, clearly indicates that this proposal is proper and correct.

It seems, with respect, to imply that there is very great reliance, as we hear every day in this House, on statutes on the British Statute Book for the delineation of what we draw up here. If this party were drawing up this measure doubtless we would be accused of all kinds of antics. It is extraordinary that the "Republican Party" has to rely so greatly on the alleged wisdom of statutes of another jurisdiction. The Minister has advanced two grounds for justifying excluding from damages, say, damage to a person's jewellery. That could mean a watch. It does not have to be very elaborate, ornate or expensive jewellery but basic items which perhaps a person has accumulated over the years which somebody could smash maliciously with a hammer or some other object, or a person's life savings could be stolen or set on fire if a room, for example, is vandalised in that way. These possessions are outside the scope of the Bill.

The only reasons the Minister has advanced are that the parallel legislation operating in Great Britain says that it is right that it should happen, and secondly the inclusion might encourage an outbreak of fraud among the populace. I have a higher view of the mores of the Irish people than would be implicit in that. It does not bear up. If persons have a propensity to fraud there are many opportunities available to them not confined to these aspects of possible malicious damage. You cannot deny people justice on the grounds that making it available to some — because that is what we would be doing — would somehow be providing others with opportunities to take advantage. If that is the case we are in serious trouble because any new legislation could be looked at in that light. There are always those who will abuse and it is the job of the legislators, the Garda and other agencies of the State, to deal with that. It should not inhibit us from introducing enlightened and positive measures.

A hypothetical and perhaps typical example is an old person whose home is vandalised, whose small life savings are burned when a room is set on fire and whose one or two heirlooms, maybe an old watch given by a deceased parent, are smashed or broken. Such people cannot claim for malicious damages, but a multi-million-pound company can. That is nonsense and it is another indication of the thinking of this Government which is implicit in all the legislation that has come before us. Whether it be the Courts Bill or others, there is the same tendency to come down on the side of those who have already.

I see this measure as potential discrimination against people who would have to rely on the coins, legal tender notes or banknotes which they might have. It is fundamentally unjust that we should make that discrimination if we believe in the idea of compensating for malicious damage and malicious injury. That compensatory ambit should include any possession where the material loss to the person is shown. It should not exclude those elements and items because we feel they might be more conveniently open to fraudulent abuse or on the basis that the British dreamed up this measure as well, so it is probably right. We are getting that every time we ask questions on some of the issues which arise on legislation which is linked perhaps in some way to British legislation. That is an extraordinary attitude on the part of the Government and the Minister.

If it is good legislation what is wrong?

I am not denying that.

I am glad that the Deputy admits that it is.

I am not denying that it would not be wrong to introduce good legislation, but it should be introduced because the Government of the day think it is good, not because another jurisdiction felt it to be good.

It would not be before us today unless I was satisfied that it was good legislation.

The Minister in his reply to my question said that the appropriate parallel Act applying in the UK had a similar measure. He did not say that he then looked at this and gave it thorough consideration.

It applies in Northern Ireland which is very adjacent to us.

What kind of legislation applies in Northern Ireland except the legislation as enacted by the Parliament at Westminister?

We are in a position to examine the effects of that legislation in Northern Ireland.

I still contend that it is not a good justification to imply that because another jurisdiction introduced legislation it necessarily should apply here. In commonsense and natural justice there is no validity for excluding those items proposed to be excluded in section 12(3)(c). It is illogical and does not gel with the commonsense and obvious loss which arises if damage is inflicted on the properties outlined there. I submit strongly to the Minister that we should, therefore, not include that exclusion, we should reverse what is proposed here, so that people suffering a loss arising from the damage in these cases would be as entitled as anybody to lodge a claim. The Minister knows that the fraud he refers to or the possibility of it is a matter for the courts. They can adjudicate on it and, God knows, if they have the wisdom to be able to interpret what the Minister means by the first paragraph of section 12 when he talks about any precautions which might reasonably have been taken by the person, they should not have problems in making up their minds about the difference between fraud and non-fraud in subsection (3)(c).

I urge the Minister to reconsider the exclusion he proposes there in the context of natural justice. The loss, if it is there, should not be circumscribed by the nature of the properties or possessions involved. A loss is a loss is a loss, and the concept should apply right across the board to any area of personal possession or property where it can be alleged that malicious injury or damage was inflicted. It should not be circumscribed by any outmoded notions we might have here about a massive outbreak of fraud and abuse among certain sections of the people. I believe that the courts will have sufficient commonsense to make that distinction because both sides will be heard in relation to any such claim.

I have already stated the position and there is no point in restating it.

What is the basis for the Minister's assertion that it is likely that there would be a greater tendency to fraud in relation to the items named in section 12(3)(c) than in relation to other property?

The type of item involved, the smallness of the items. There are a number of reasons.

The type of item involved and the size of the item.

Those are some of the reasons.

What are the others?

In the course of preparation of the legislation we had indications that justify not including these items for malicious damage in the Bill.

If a car part is stolen from a car which was stolen, if it was taken off the car and the car was found minus certain small car parts, would the person not be entitled to malicious damage compensation?

That would be damage to the car. A car is not a coin or a banknote.

Car parts may be small and some parts are very expensive.

We are talking about a different matter. A coin is an entity or entirety. A car part missing is a different matter altogether. Malicious damage would be done to a car if it lost a part.

One coin is an entity, but it is unlikely that we are talking about one coin. We are talking perhaps about a hoard, small savings, a collection of coins, legal tender notes or banknotes, postage stamps or articles of personal ornament which normally would be kept not as single items but in small boxes or something like that.

You could not take a part of a coin in the same way as you could take a part of a car.

I am contesting strongly the Minister's basis for the exclusion which he says is the size of the item. For example, I contend that certain items which could be stolen off a car or out of a house which might not be items of personal ornament would perhaps be smaller than car parts. Would a clock stolen from a house be liable for malicious damage compensation?

The Deputy could envisage a situation where a house would be set on fire by its owner. That person could make a claim and include in his claim that he had coins or certain items of jewellery or such matters that would be impossible to identify or to prove the existence of after such a fire.

There are circumstances under which an attempt at burning or arson is not successful. Can a clock stolen from a mantelpiece in a house which has been broken into be included in a claim?

It is a question of whether its value is under the amount prescribed in the Bill.

It is not an article of personal ornament, unless traditions in County Roscommon are very different from elsewhere.

Did the Deputy ever hear of a grandfather clock? Would that not be an item of ornament?

I am talking about a clock on a mantelpiece. Will the Minister tell me what kind of clock would be an item of personal ornament?

I am not a clockmaker, a watchmaker, a jeweller or a person engaged in the identification of antiques.

The Minister only needs commonsense to know that a clock is not an item of personal ornament.

I did not suggest that.

I asked the Minister whether a clock stolen from a mantelpiece would be liable for compensatory damages in the context of a claim.

I am sure it would if it met the provision of the Bill.

A clock can be a very small item and the Minister gave smallness as the reason for these exclusions.

That was in relation to coins and items of jewellery and I would not describe a clock on a mantelpiece as an item of jewellery.

Is it not ludicrous that a mantel clock, which could be quite small, can be included in a claim but watches and bracelets or a person's life savings cannot be included?

I am satisfied that it is less likely that a person would attempt to defraud in the case of an item like a clock. It is different in the case of jewellery or coins and the Deputy should not make these comparisons between clocks and coins.

I am trying to show the House——

The Deputy is not making a good attempt at it because I am certainly confused about what he is trying to achieve.

I am trying to show the House that the Minister is making bland assumptions which are completely unsupported. He has just said that it is easier to be fraudulent in relation to——

Not necessarily easier but there is more likelihood of fraudulent activity.

What is the basis for such an assertion?

Experience.

Whose experience?

The examination and preparation of this legislation.

Has it been the experience of officers of the Minister's Department?

I am satisfied that the officers of my Department in the preparation of this legislation took all interests into consideration and closely examined all aspects. What is now before us is based on absolute satisfaction about what the position would be if we did not make this provision.

It sounds like a recording. On whose experience is the Minister basing his bland assertion, completely unsupported by any facts, that it is more likely that someone would claim compensation for loss of coins or jewellery than for other items of ornament which could be small and quite valuable and for which compensation can be claimed? A valuable mantel clock or a vase can be the subject of a claim, but this does not apply to a person's life savings. Is that logical?

The departmental committee independently recommended that provision in the Bill. That is another indication of a view held by an independent body.

The Minister is running for cover.

I am giving the Deputy the facts but he is not basing his argument on facts.

I am trying to show the essential nonsense and anomaly that the Minister is asking us to accept on the basis of alleged experience in other jurisdictions about which we know nothing. The reality is that the proposal to exclude is nonsense. It conflicts with the situation where other items of property, which may be more valuable but may not be of such personal importance, can be compensated for but a watch which may have been handed down for generations cannot be compensated for. Neither can life savings which may be hidden away in a biscuit box. This is allegedly because the Minister has some divine knowledge about the inherent flaws in the Irish character which would give rise to massive outbreaks of abuse. It is nonsense.

(Cavan-Monaghan): Section 12 is a completely new section introducing new provisions to the malicious injury code and changing the nature of that code. Subsection (1) is introducing what I might call contributory negligence. If I leave my car outside my house instead of putting it into a garage and locking it, a court may reduce the amount of compensation that I would otherwise be entitled to receive because they would conclude that I should have kept the car in the garage. That is contrary to the whole spirit of a malicious injury code. If my car is wantonly and maliciously damaged by someone who has malice towards me or is reckless in his actions, the amount of damages awarded to me should not be reduced in this way, especially at a time when people are forced for economic and other reasons to convert garages into extra rooms because of the high cost of building. I am entirely opposed to the introduction of this provision of contributory negligence to the malicious injury code. It is foreign to it. I would not be altogether against the reduction of the first £100 because there was always a provision in the code to discourage small claims. The figure was £5 under a code which operated for a considerable time.

I agree entirely with Deputy Keating that it seems quite unreasonable to exclude valuable articles of personal ornament, including watches, from the malicious injury code. These items can be of great value and in these times of raging inflation people sometimes buy them as a protection. They will now be excluded from this code.

I do not agree with the reasoning behind section 12(3)(d). It proposes to exclude from the code damage to unauthorised buildings for which planning permission has not been obtained. That should be stated in another way. Quite frequently, through carelessness or otherwise, people go on with building without getting planning permission. However, the building is not always contrary to the planning rules and regulations in the area. When they later apply to have the building retained that permission is granted. If a building for which planning permission has not been obtained is maliciously damaged, the owner should be entitled to claim malicious compensation provided the planning authority confirm that if he had applied for permission to retain the structure it would have been granted. If the planning authority grant planning permission for a new similar building, that person should be granted malicious injury compensation.

The malicious injuries code is following the past too slavishly and does not compensate people for consequential loss or for other matters for which they are entitled to be compensated. Suppose a shopkeeper's premises are maliciously damaged. He can be compensated for damages to the building but he will not get compensation because he has been out of business for six, 12 or 18 months. That man could face financial ruin. Therefore consequential damages should be paid.

There is no provision in the malicious injuries code or in this Bill to introduce any provision for compensation for personal injuries. I may be told there is already in existence a personal injuries board or tribunal, but if that is so it has been there for only a few years. In many respects it may be described as a board which makes ex-gratia payments and there is no provision in that code for compensation to dependants who have lost a father or the breadwinner. Neither is there any appeal from the personal injuries board.

This attempt at updating malicious injuries claims is a poor effort and does not show very much imagination. Section 12(3) (d) is nearly an indication to people to destroy buildings about which there is a dispute under the malicious injuries code. It appears to say that if these buildings are damaged the owners are not entitled to compensation, and that is an indication to people to take the law into their own hands. The least that should have been done here was to include a proviso that, if the injured party succeeded in getting an order to retain the building, he should qualify for compensation.

Has the Minister any comment on section 12(3) (d)? What is the position under that proposal, the effect of which is to deprive or disadvantage somebody who is allegedly the owner of an unauthorised structure on the possibility of a malicious damage claim? What is the position if he has applied for permission to retain it? What is the position if a person inherits a property which may have an illegal structure on it? If he already made an application for permission to retain, would he be entitled to lodge a claim? Does the Minister see any difficulty in respect of the basic allegation contained in any presumption that a person owned an unauthorised dwelling? Is there a conflict there?

If a building is erected without planning permission, it is an unauthorised building. It will remain an unauthorised building until it becomes an authorised building, which could be achieved by an application for permission to retain, and compensation would then be provided under this legislation.

If the damage had occurred prior to that permission being granted?

It would be an unauthorised building and no unauthorised building is liable for compensation.

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

This is a general jurisdiction point and there is no problem.

(Cavan-Monaghan): This section confers jurisdiction on the District Court for the first time. The malicious injuries code, which compensates a person whose property was damaged, has worked well and with a minimum of trappings, red tape and expense. I wonder if this section, which extends jurisdiction to the District Court, is not going too far. This means cases will be tried in every District Court area in every county, whereas if they were confined to the Circuit Court they would be heard in the main towns of each county. In the long run that would be probably more convenient for witnesses. Time will tell if this was a wise decision, but I have grave doubts about it. I suppose a district justice could arrange to hold the hearing in the main town if an application was made, but the hearing of cases in the Circuit Court with an appeal to the High Court worked very well over the years and I have my doubts whether giving jurisdiction to the District Court is a good thing.

The interdepartmental committee on malicious injuries in examining this matter suggested that the Circuit Court often had to deal with trivial cases. For that reason it was felt a court of lesser jurisdiction would suit. Furthermore there was the question of access and proximity to people paying such claims. Also it has been the spirit of legislation including the recent Courts Bill that the District Court be given considerable additional jurisdictional powers, and it would be out of line with that concept in the Courts Bill if we were to exclude the hearing of malicious injury cases in the District Court.

Question put and agreed to.
SECTION 14.
Question proposed: "That section 14 stand part of the Bill."

Would the Minister agree with the idea of including a time provision in relation to the making of rules of court? If an application cannot be made except in accordance with the rules of court there should be a provision for it.

I understand that if there are no rules of court available the court has power to rule on an ad hoc basis. It does not really prevent the business of the court from being proceeded with. That is something that would arise only if they were not ready in time.

Question put and agreed to.
SECTION 15.
Question proposed: "That section 15 stand part of the Bill."

What is the justification for subsection (2) which says that:

(2) The Minister may, with the consent of the Minister for Finance, make regulations setting out the scales of solicitors' costs and fees of counsel which will be applicable where the costs of an application for compensation under this Act are payable by a local authority, and the power of any rule-making committee to make rules of court shall be limited accordingly.

That is in essence another matter in which the Minister may circumscribe the local authority in relation to the moneys that they may pay in relation to solicitors' costs and fees where the costs of that application are payable by a local authority. Why is a distinction being made now between that and the existing procedures with regard to costs? If the Minister were introducing a Bill which endeavoured to do something about regulating solicitors' costs and fees and legal costs generally it would be a very worthwhile exercise which would benefit the public, but that is not what is being proposed. It is being proposed that in specific cases, notably those where the costs of the application of compensation are payable by a local authority, there will be a difference of approach which will tend to depress such costs. It looks as if this provision is put in to deliberately reduce the cost which can be awarded to an applicant. The effect is that the applicant may have to carry portions of his own costs. If the costs are so many thousands of pounds and if this section is applied we may end up with a situation where a person has to pay a part of his own costs.

The Minister should justify why the ordinary proceedings regarding costs should not apply. These proceedings are at present fairly strict. It is simply not adequate just to reduce them further particularly for a category of people. It is not the lawyers who will suffer but the claimants who will have to pay the difference, because I have no doubt that when the dust of battle dies down the approach to the legal costs which was outlined by Charles Dickens in his famous novel Bleak House where the sum involved was a lot less than the actual costs and so on, is still appropriate in 1981. The person who will lose out is the person who would in any other case have been treated differently and would have got the costs whatever they were.

If the problem relates to the scale of costs and the concern of the Minister for Finance and of the Minister for Justice is that this burden is too great, the problem should be tackled not by making scapegoats out of people applying for malicious damages but by dealing with the problem of the actual scale of costs. There is no justification for making fish of one and fowl of the other, particularly in the area of malicious damages which will apparently have a different approach in relation to costs. If that approach is right it should apply right across the board, but if the approach to costs and the procedures governing it applying generally are correct then by implication the approaches proposed here are wrong. We cannot have it both ways. What is the justification for this proposal?

It is desirable that there should be greater control over the level of the amounts that local authorities are required to pay in respect of the cost of successful claimants. Where a court orders a local authority to pay compensation for malicious damage to a claimant, the court will also award him his costs against the local authority. This is in line with ordinary civil procedure, and it will continue unchanged after the enactment of the Bill. Under section 16(2) of the Bill, which is a new provision, a local authority against whom a claim is initiated will be enabled to lodge money in court in the same way as in ordinary civil actions. If the claimant accepts the lodgement, the local authority will be liable to pay the claimant's costs. In these cases, therefore, where a person takes proceedings under the Bill and obtains compensation he will also be paid his costs on a "party and party" basis by the local authority — that is, from public funds. These costs would be determined in accordance with scales prescribed in rules of court — as at present — were it not for the proposal that they should be determined in accordance with scales to be prescribed in ministeral regulations.

The reason behind the proposal is simple, namely, that proceedings for malicious damage compensation are essentially different in a number of important respects from ordinary civil actions. The local authority is not a wrongdoer who is being sued for damages as in an ordinary civil action. In a sense, of course, the local authority stands in the place of the person who causes the malicious damage. But that is no more than a fiction. In reality, this legislation is a non-profitmaking system of communal insurance against malicious damage to property, and there is no reason why a person who is awarded compensation out of public funds, that is, local authority funds, should also be awarded the same level of costs as a successful litigant in a civil action. There is no question but that he should get costs — but since they will be coming out of public funds the provisions governing them should be more stringent.

For example, one item in the present scale of costs laid down in Circuit Court rules for an applicant's solicitor in a criminal injuries compensation case is an instructions fee, that is a fee for taking particulars of evidence, attendance on witnesses, preparing proofs, which is discretionary as to amount. The actual amount to be allowed is fixed on taxation by the county registrar, subject, as in the case of every other item, to an appeal to the circuit judge. It is considered that a discretionary fee of this kind is inappropriate in the context of costs being awarded to a successful claimant under the Bill. It is envisaged that the ministerial regulations would specify a particular amount as the fee for this item.

Similarly, the proposed regulations will enable a greater degree of control to be exercised over the other items of costs. A successful claimant for malicious damage compensation will, like every other litigant, continue to be liable for his solicitor's costs on a `solicitor and client' basis, that is for all work performed, expenses paid and disbursements including the solicitor's outlay on counsel's fees made on his behalf. The successful claimant for compensation who is awarded his costs against the local authority, that is on a `party and party' basis, will stand to be paid a smaller amount in respect of his costs by the local authority if, as is proposed, those costs are to be calculated on the basis of the scales to be prescribed in the proposed regulations than if they were to be calculated on the basis of scales prescribed in rules of court, which is the system obtaining at present. That clearly indicates the justifiable reasons why local authorities, the ratepayers and the taxpayers should not be asked to pay extraordinary amounts of uncontrolled fees in a situation where the taxpayers and ratepayers are endeavouring to provide what I have described as a communal insurance with the local authority, the agency through which they pay compensation after a court decision.

Does this mean there will be two scales of fees — one for general civil actions and one for malicious damage claims?

So far as the computing of fees are concerned, the rules of court will prescribe the fees scales in the same way as has been done for matters other than malicious injury claims. After the enactment of this legislation the practice will be that a ministerial regulation will be made by the Minister for Justice after consultation with the Minister for Finance. The justifiable reason for this is to provide some protection for the ratepayers and taxpayers in this very costly area.

The suggestion that a person is gaining an advantage from the public purse by getting significant costs is a myth. The reason a person gets costs is to pay the people acting legally on his behalf. If there was a free legal aid system applying in this area costs need not be payable. I want to be sure that the scale of fees applicable in a case like this will be the same as it is normally. If it is going to be depressed by this section, is it possible that the amount awarded will be too low to pay the actual costs? If a person gets a decree for compensation he may find that the costs amount to £4,000, but by virtue of this section he is entitled to £2,000 compensation for costs. This means the person has to make up £2,000 to pay the people acting for him.

The ministerial regulations provide only for control because of the nature of the action and the involvement of the local authority on a party basis. It is different from the solicitor and client situation which obtains in the area where court rules are applicable. I do not think it is envisaged that there will be any depressing of costs, rather a controlling of costs. That is desirable because public money is involved. We have a responsibility for the expenditure of public money. In any legislation it is difficult to be totally protective of the interests of the person making the claim and to be totally protective of the people who are paying the piper. In this case that is the taxpayers and the ratepayers. In this instance they are paying through the local authority and there will be considerable expense involved in the investigation, processing and administrative work necessary to get the case to court in the first instance. There are sound reasons for inserting this provision in the Bill while, at the same time, not wishing it to be any more than a protection of the interests of the people who have to pay.

That is logical and I concur with the Minister has said. However, I have one query on the matter. Are there any circumstances where the costs awarded to the applicant will be less than the actual costs he will have to pay? In such a situation who will pay the difference?

In the absence of the ministerial regulations I cannot answer that. It is very difficult to envisage that situation arising.

It will happen. I do not think that solicitors and legal people will operate on a different scale of fees in this instance.

Then they will break the law so far as this is concerned. The Deputy is not suggesting the profession would do that?

I should like to think about that for a while before I could immediately agree with the Minister. There have been some examples of it happening. If I am a barrister or solicitor and I have a choice of cases between a malicious damages case where the Minister, "in times of economic stringency", has decided on the scale of fees——

People have to tighten their belts in that situation.

I know that. My point is that if I had a choice of cases to take on, one where the malicious damages claim costs will be less than the normal type of practice and I have another case — perhaps a juicy rewarding public inquiry or tribunal — which case does the Minister think I will take on? This means there may be an inferior standard of counselling and representation in the malicious damages case.

There is a grey area here. I can see a situation arising where a person would be forced to pay the difference in a malicious damages case. There is no way around that. If the scale of fees and costs in this area is going to be less than the average applying in other kinds of cases, the professionals will want to be associated with the latter.

There is no suggestion, nor can it be implied in what is proposed in the section, that the amount will be less than the costs. The Minister, by way of ministerial regulation, will have the function of controlling costs in a manner different from the method of calculation prescribed in the court rules. I have outlined the reasons for this provision. The Deputy is creating an unnecessary doubt about this matter.

I am expressing a genuine fear. Has the Minister discussed this section with representatives of the legal interests? Have they commented on the section?

It has been discussed.

Was there a mutually amicable conclusion to the discussion?

I consider that confidential.

Question put and agreed to.
SECTION 16.
Question proposed: "That section 16 stand part of the Bill."

Under this section a local authority is empowered to settle any claim brought against it by way of an application for compensation at any time before the application is determined by the court. I am a member of a local authority and for many years I have thought that the whole matter of local authority expenditure has been dealt with in an extraordinary manner and without adequate analysis. However, it has gone to the other extreme now.

How does the Minister expect local authorities to properly assess the grounds on which they should settle a claim? If, for example, there was to be some kind of a rider which would make sure, ensure and underline the highest standards of responsibility with public moneys it might be more difficult for people to, shall we say, indulge in a largesse approach in terms of settling claims. The natural tendency on the part of anybody engaged in any kind of litigation is to settle. The idea of not going into court if one can settle is particularly attractive when one is settling with everybody else's money, as are the local authorities. I would worry about easy settlements. Of course then, conversely, people will say that local authorities are a soft touch, we will get them to settle. What in-built standards of responsibility and accountability apply? Is the Comptroller and Auditor General, or anybody else looking at the books, empowered to say: "sorry, in my view that claim should not have been settled" with wilful ease? Are there any ways in which people can understand that they must be very careful about the manner in which settlements are made? Otherwise we get into a whole new area whereby public money is dealt with in a very lenient and easy fashion. I would ask the Minister not to indulge in the temptation in which we all indulge now and again of saying something like: I have every confidence in the officials of local authorities around the country.

I have no intention at all of saying that.

I just wanted to anticipate the Minister lest he might.

Seeing that the Deputy has reminded me, I will endorse what he is saying.

All I am saying is that when one is settling claims with other people's money the temptation will be to settle rather than carry on dispute. How do we ensure that that primrose path of dalliance, or whatever one might call it, is not too often taken, and taken not in the public interest?

In view of the fact that so many local authorities are now suspect as a result of what the Deputy has said in connection with the settlement of claims——

I am sorry, I did not catch that point.

In view of the fact that the Deputy has directed a certain amount of suspicion at local authorities as to how they would handle these type of cases——

It is even worse than I had thought.

——and not having referred to the fact that at present local authorities, in certain areas of their legal function, have the right to settle particular cases, they are settled on a regular basis. The Deputy omitted to mention the fact that this clearly indicates the capacity and capability of the local authority to do that efficiently, conscientiously and honestly.

That is why the Minister is screwing them; that is why they are being given no money.

Furthermore, I want to say——

This is not relevant.

That is correct, a Leas-Cheann Comhairle, it is not. Also the Deputy failed to acknowledge the fact that the existing legislation has left many people disadvantaged and waiting, and he has given an instance of two years.

In fairness, I agree completely that we should have some system of settlement. It is only a question of ensuring that there are not too easy settlements.

Well, no system of settlement is the right system from the point of view of that side of the House, often-times for the wrong reasons.

The Minister is being too hard.

I am not. I am being honest and I know that a person like the Deputy, with such a social conscience, did not intentionally omit the fact that this Bill provides that new dimension in which people now can settle without having to go into the court, as they had to do formerly. Furthermore, in settling, they have the opportunity of being paid in the year of settlement rather than in the following year, as obtains at present. The very question about which the Deputy was so concerned earlier can be further removed by the fact that settlements now can be obtained outside of court, often-times on a personal basis between the person who has suffered the damage and the local authority staff or official involved, consequently incurring no cost at all except perhaps that of travelling to a particular point to negotiate the settlement. These three very justifiable comments and reasons, as outlined by me, must secure in the Deputy's mind that the section in question is soundly based and will be good law.

I never disputed, nor did anybody else, the fact that the section was soundly based. I welcome the early resolution of such claims; all of us are at one on that. For example, one local authority might decide to settle too easily, might decide to keep free of the legal clutter. The kinds of things I had at the back of my mind were the possibility of surcharge in the event of somebody simply wilfully driving a coach-and-four through things and a local authority taking the line — pay them, it is not our money. The human factor does enter into it. I know that the overwhelming majority of local authorities would not dream of it.

Would the Deputy say 99 per cent?

Damn near it. The point is that there could be those few who, for one reason or another, might be so tempted. In fairness, we are dealing with public moneys, we are dealing with settlements and I would like to think there was some degree of in-built accountability greater than exists at present.

There is accountability built in because the scrutiny of the local government auditors is involved here. Also in the area of financial matters there are honourable members of different political persuasions on these local authorities, as the Deputy knows, who have the right to engage themselves in an examination of the finances of that local authority when preparing and dealing with estimates.

In regard to subsection (1), the Minister may remember that we talked about the right of the ratepayer to object to participate in the hearing. Is there a case being made whereby that right is made a nonsense of if the claim can be settled at any time prior to the application determined by the court? For example would the inclusion, after the word "time" of a phrase something like: "after one month after the application is lodged" help? Does the Minister know what I mean? We have agreed that the public have a rightful interest. We have disagreed on how widely that should be advertised. If that interest is to be legitimised, or the option taken up, should not there be some limit, some period within which that process of participation could be undertaken? In other words, if a claim is lodged today and tomorrow it is settled, the public interest, the right of hearing, the right of objection, the right of participation cannot really be validated or taken up. Would the inclusion of such a clause help? It would not detract from the local authority actually being able to settle but it would delay such a settlement by a matter of a few weeks, in some cases, sufficient to entitle people to consider the action under discussion and be enabled to make an observation thereon if they so wish. Also in that context such a provision would be helpful because, if a claim can be settled very quickly — I am sure few of them can be but there could be situations in which some could — it is just possible that it might encourage acts of destruction by a party, perhaps to his own or other property——

This is a very long brief question.

In fairness, it is a totally different point.

The essence of the question I am endeavouring to put to the Minister here is the need to ensure that there is not a too rapid settlement of claims — which is an echo of what we were saying — but more importantly that public participation or involvement could be taken up by some minimum delay period, in other words that settlement of a claim would not take place within two, three or four weeks, so that a person could say: yes, I want to make an observation and there it is. It would not inflict injury on any side and would give everybody a chance to make a comment.

There are provisions to meet the Deputy's concern. A settlement cannot be made until an application is made to the court and that application can be made to the court during any time up to three years. In that situation the ratepayer under section 17 (4) has a right of appeal.

That is fair enough.

Question put and agreed to.
Section 17 agreed to.
SECTION 18.
Question proposed: "That section 18 stand part of the Bill."

This is a totally new section. In essence it is highly acceptable but I would suggest that a subsection might be added on the following lines: Where a court states a case in accordance with the section the costs of same to be borne by the local authority. The reason for this proposal is that a case can only be stated on some novel point of law. It is then decided by the Supreme Court and the decision is available for the benefit of the public at large. The decision is in effect like an Act of Parliament. Should a person whose goods have been damaged and who brings an action find himself in the Supreme Court where he loses, he is caught for an enormous amount of costs. It seems wholly unfair that the costs involved should be borne by a body such as a local authority representing the common interest which is, of course, the beneficiary in the case outlined, that is, where a finding would be at Supreme Court level.

I do not believe this proposal would lead to exploitation or abuse because when a case is stated the court decides. An applicant may apply to have a case stated but it is the court decides. There would be no temptation for a litigant to say he wants to go to the Supreme Court just because the costs would come out of the public purse. A case stated will be referred on a point of law. It would be a specific case, a litmus test as it were. It seems to me when the public in general benefit then the public in general should pay the cost involved.

I would find it very difficult to concede this. What the Deputy suggests would mean that the taxpayer or the ratepayer would be required to engage in the payment of costs. A demand would be made on the public purse, a demand which I believe could not fairly be levied on the public. The situation is different from that of an appeal. I will have another look at it if that will satisfy the Deputy.

Fair enough.

Question put and agreed to.
NEW SECTION.

Amendment No. 3 inserting a new section has already been debated.

I move:

In page 9, before section 19, to insert the following section:

"19.—(1) (a) Where—

(i) compensation has been awarded under this Act, and

(ii) there has been or there is subsequently paid in respect of the damage or loss concerned, by way of such compensation or reparation as is mentioned in section 12 (3) (c), any sum which was not taken into account under that provision at the time of the making of the award,

the person receiving such sum shall forthwith notify the local authority concerned and shall, subject to subsection (2), forthwith reimburse to the local authority the amount of the compensation awarded, if that amount is equal to or less than that sum, or an amount equal to that sum if the amount of the compensation is greater than that sum.

(b) Where compensation has been awarded and the court has ordered that it be paid out of the funds of two or more local authorities, each of them shall be notified under and in accordance with paragraph (a) and the amounts to be reimbursed to them under and in accordance with that paragraph shall be in the same proportions, respectively, as were ordered by the court when making the award.

(2) Where compensation has been awarded under this Act and civil proceedings have been or are subsequently instituted in any court against the person who caused the damage or loss concerned in respect of the act which gave rise to the application for compensation, and

(a) the court awards damages against that person in favour of the plaintiff in the proceedings, or

(b) the parties agree to settle the proceedings in consideration of the payment by that person to or for the benefit of the plaintiff in the proceedings of an agreed amount of damages,

the court may order that person to pay the damages so awarded or agreed, or any part thereof, into court.

(3) Where the court makes an order under subsection (2), it shall direct——

(a) the payment to any local authority concerned out of any money paid into court under the order of the court of such amount as would have been reimbursed to such local authority under subsection (1), if that money had been paid to the applicant for compensation, and

(b) that the balance, if any, of the money paid into court under subsection (2) shall be paid to the applicant for compensation or otherwise dealt with for his benefit in such manner as the court considers proper,

and any amount so paid to a local authority by virtue of the direction of the court shall be deemed to have been paid under subsection (1).

(4) (a) Where, on an application to the court by a local authority, the court is satisfied that—

(i) the local authority has paid compensation on foot of an award under this Act to any person, and

(ii) the person failed to make full and true disclosure of all the facts material to the determination of the application for compensation concerned.

the court may make an order requiring that person to reimburse to the local authority the amount of the compensation or such part thereof as the court may direct, together with any costs paid by the local authority in the original proceedings.

(b) In paragraph (a) "the court" means the court that made the award of compensation.

(5) Subsections (1), (2) and (4) shall have effect in relation to a claim which is settled under section 16 (1) as if the settlement were an award of compensation under this Act.

(6) Any sum required to be reimbursed under subsection (1) or (4) and which is not reimbursed shall be recoverable by the local authority concerned as a simple contract debt in a court of competent jurisdiction.

(7) (a) Any person who is required by subsection (1), or by that subsection as applied by subsection (5), to notify a local authority of the receipt of any sum by way of compensation or reparation and fails to do so without reasonable cause shall, without prejudice to his liability under that subsection to reimburse any sum to the local authority, be guilty of an offence and shall, on summary conviction, be liable to a fine not exceeding £500 or to imprisonment for a term not exceeding six months or to both the fine and the imprisonment.

(b) (i) Where an offence under paragraph (a) which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and be liable to be proceeded against and punished accordingly.

(ii) Where the affairs of a body corporate are managed by its members, subparagraph (i) shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.".

Amendment agreed to.
SECTION 19.

Amendment No. 4 has been ruled out of order.

Question proposed: "That section 19 stand part of the Bill."

Local authorities believe this section will have the effect of penalising them unjustly. Would the Minister amend the section to ensure that the measure of recoupment should include the costs incurred by local authorities in defending claims under the malicious injuries code? The cost involved can be phenomenal and must obviously be taken out of the local authority budget. That means ructions will be kicked up by councillors from all parties, the Minister's included, at the implicit cut-back to make up the shortfall. If that is the case, then what I forecast earlier on at some personal risk of being misinterpreted as implying that local authority finance officers were a lot of Shylocks, namely, that we are on the road to easy settlements where costs are not involved, would be borne out again. The section says that where the costs to a local authority of compensation under this Act exceeds the produce of a rate of 20 pence in the £ in any financial year the amount of the excess shall be refunded by the Minister for the Environment.

That is fine but I am concerned about the fact that the only actual benefit or finance coming back to the local authority will be that of the sum involved in the award itself. I wonder would the Minister clarify whether or not the costs would be awarded. I do not think they would be. If they are not involved, does he not agree there would then be a severe financial penalty put on a local authority despite the fact it had been given an award? The object of my proposal is to have included in the charge the costs incurred. At the moment these costs are not allowable and therefore are not included in a separate rate made for malicious injuries.

For example, in relation to the claim for the Majestic Hotel in Waterford the council finances had to bear £30,000 costs in fighting the claim alone in the Circuit and High Courts. The council, by appealing the case, which resulted in the State being saved £422,000, increased their own costs by £15,000. They won in the higher court. For 1981 their rates will need a maximum rate of 20p for decrees plus approxiately £40,000 or 13p for their own costs arising from malicious injuries claims. If the proposal whereby costs are included is not acceptable I believe we will have a situation where there will be a strong disincentive to vigorously pursue large claims. It could also be argued, on the other hand, that the local authority might pile it on in relation to costs. This could be got over by the appropriate court officer determining the council's costs as well as the applicant's. I believe all it would mean is the application of the section we talked about earlier in relation to adjudicating on costs.

This is a case of a county council who did a wonderful job in the public interest above and beyond the call of duty. They did not have to appeal. They did and they won the case. They saved nearly £500,000 of public money. What was their thanks? They are now down nearly £45,000, despite having saved the public purse an enormous sum of money. It is not an academic, financial or fiscal matter, it is more serious than that. It means that £45,000 is not now available for the very worthy causes which County Waterford would undoubtedly utilise it for or County Roscommon, County Longford or Dublin city would use it for. We should look seriously at this because otherwise we are asking officers of county councils and local authorities to act above and beyond the call of duty if they are to take action in the public interest and find themselves legally penalised for that even if they win the case.

The amendment, even if it had not been ruled out of order, would not be acceptable. The amendment seeks to include a local authority's legal costs in contesting claims in the reckoning of the cost to a local authority of compensation for malicious injuries referred to in section 19(1) of the Bill. What it boils down to is a proposal that the Exchequer should take over a greater share of the financial burden of the malicious injuries compensation system. Section 19 of the Bill proposes to put on a statutory basis the present non-statutory arrangements whereby if, in any financial year, the cost of compensation to a local authority exceeds the produce of a rate of 20p in the pound, the excess is recouped to the local authority from the Exchequer. The cost to a local authority of compensation for malicious injuries referred to in section 19, while including the amounts of compensation and costs awarded to successful claimants, does not include a local authority's own legal costs in contesting claims. Consequently, a local authority's own costs would not be taken into account when calculating the amount of the excess over the produce of a rate of 20p in the pound mentioned in section 19(1).

The Government have clearly indicated their proposals for Exchequer aid to local authorities in this area. These proposals are reasonable, and it is to be noted also that, under section 19(2) of the Bill, it will be open to a Minister for Finance at any time, after consultation with the Minister for the Environment, to make an order reducing the rate in the pound from 20p to whatever amount might be considered appropriate at the time.

Does that mean that local authorities will continue to suffer in the circumstances outlined by me?

No. Apart from the fact that the Ceann Comhairle has ruled the amendment out of order, it would not be acceptable. I have given the reasons for this. The fact that the Minister for Finance, after consultation with the Minister for the Environment, can vary downwards or upwards — downwards is the feature which would be attractive to local authorities and I am sure to the Deputy — means there is an adequate opportunity in the future if it is considered necessary that it should be done.

Has the Minister not got at the moment a parallel right? Could he not, at the present time, simply by giving the local authority more money or making a specific allocation to cope with the cost, get over this? Deputy Deasy and Deputy Eddie Collins from the Waterford area are worried — I am also worried that in the normal course of events there is very little incentive for local authorities to fight claims rigorously and justly. Now we are asking them to bear their own costs as well. It is not adequate that there is some hope in the future that the Minister might vary downwards the entitlement. I have a letter from the secretary of the Waterford County Council telling me of the bill for £45,000 in the situation where the public purse benefited to the tune of £500,000. The Minister now says to them: "You pay this yourself". I do not believe that is in the public interest. We should look after local authorities in a situation like this. The Minister should at least tell them they will get some portion of the costs. We should be able to tell them that if they are taking a legal case we do not expect them to bear all the legal costs, particularly when they are acting in the public interest.

The position is as outlined by me and I do not propose to change it.

Would the Minister be willing to have a look at that again and consult local authorities?

I am satisfied with what is proposed here. As the Deputy has asked I will give the matter some further consideration to see if I can detect anything of what the Deputy has referred to.

Question put and agreed to.
Section 20 agreed to.
SECTION 21.
Question proposed: "That section 21 stand part of the Bill."

In general I agree with this section but I have one reservation. The section states:

(1) Where property which was unlawfully taken and in respect of which compensation has been paid under this Act by a local authority is recovered, the local authority shall become and be the owners of the property and shall be entitled to dispose of it in such manner as they think fit.

(2) Where, in respect of such property, compensation has been paid by two or more local authorities in proportions ordered by the court under section 11 (3), those local authorities shall become and be joint owners of the property in the like proportions and shall be entitled to dispose of it in such manner as they may agree.

It is very important that we should include some provision whereby the first offer should be made to the applicant provided he is prepared to return the compensation award. A particular item may be of very great value for many reasons to one owner and the value of it by way of compensation does not meet the case at all. The article in question may only be of practical use to the particular applicant, it may be a family heirloom or an article of sentimental value. I urge the Minister to introduce an amendment along the lines suggested and ensure that the local authority are not entitled to dispose of the property in such manner as they might think fit, unless there is a first refusal by the owner.

I am satisfied that the local authority in all circumstances would seriously consider the re-sale of the property to the person involved. That would come under the right they have to do as they see fit in this connection.

Would the Minister not think that it should be amended?

I do not consider that necessary. The owner of the property might be deceased by the time the property is recouped.

That does not arise.

If there was a specific provision in legislation, as the Deputy is suggesting, we would exclude the other options the local authorities would wish to have open.

No. If the property belonged to somebody that person might have particular use for it. I agree with the Minister that in many cases the local authority would see fit to ask a person whose property had been recovered if he would be interested in having it back. But, in fairness, that is not mandatory. All local authorities can act from time to time in a strange and idiosyncratic way and they might decide that the best interests would be served by something quite different. If it is clear from the record of this debate that what is meant is that local authorities should approach the owner first and give him a chance of refusal, the point is probably met.

I would expect that that would be the line taken by local authorities.

That is fine, but there is no guarantee that this will be the case. However, I should hope that local authorities will take cognisance of the Minister's words, though I would prefer that what is intended would be written into the Bill because in this way there would be no problem.

Question put and agreed to.
SECTION 22.
Question proposed: "That section 22 stand part of the Bill."

Why is there a cut-off point in this Bill? Subsection (1) of this section provides that proceedings shall not be commenced after the expiration of three years from the date on which the cause of action accrued. The Minister may say that there are always cut-off points and limitations. I simply wish to make the case that in the context of this Bill there could be circumstances in which, for one reason or another — perhaps due to legal delays or to the subsequent discovery of damage to property — there could be a delay of the kind referred to. Should it matter very much, in the case of a just claim, that there would be a delay of, say, three years and one month? That would be a fairly extreme example, but I do not understand the thinking behind the concept that provides that a period of two years and nine months is all right in terms of claims for damages while a delay of a period of three years and one month precludes one from claiming.

The reasoning behind that is that from the point of view of the local authorities, it would be likely to be very difficult for them on many occasions to engage, after a fairly lengthy period, in examination and in recollection of facts which might be relevant for the purpose of a subsequent court hearing. For that reason this provision encourages the claimant to submit his claim as soon as possible. If the claim is not made within a reasonable time, it may be difficult for both sides, particularly for witnesses, to recollect accurately what occurred. In Northern Ireland a claim must be made within a period of four months though there is provision for an extension of up to 12 months. That curtails the situation much more than what is envisaged here. Contrary to the Deputy's personal view that we copy almost everything that happens in other jurisdictions, we did not follow the line taken in Northern Ireland in this regard.

I do not recall saying that we copy almost everything from other jurisdictions.

I recall vividly the Deputy saying something like that.

I am glad that the Minister recalls vividly something I said.

Question put and agreed to.
Sections 23 and 24 agreed to.
SECTION 25.
Question proposed: "That section 25 stand part of the Bill."

I am somewhat concerned by the provisions of this section which give the Minister the power in effect to play ducks and drakes with the compensations that can be awarded.

A safeguard proposed in section 26 seems inadequate in the face of the power proposed here. I can envisage the power in section 25 being used only for the purpose of excluding even more claims by way of increasing the £100 limit.

I do not expect that in some way — for instance, by way of benign benevolence or generosity — the Minister will decide suddenly to drop that limit and to broaden the whole scope of the legislation so as to include more claims, though one never knows what change might be made prior to a general election. It is reasonable to conclude, therefore, that the only objective of the section is to increase that £100 figure though I hope I am found to be wrong in this. The object in question may only be of any practical use so far as an applicant is concerned or it may be something which, as in this case, tends to disenfranchise him of the right to a claim. The £100 will be taken as the limit. I suspect that there will be pressure at certain times to increase the figure, for instance, in times of "economic stringency". I put the words in inverted commas because I have yet to come across such times. In a number of Bills, including this one so far, I have argued very strongly that the Minister should have the power to vary monetary limits in line with inflation, but my arguments were lost and the Minister argued that the matter was so important that it should be brought before the House on the occasion of an increase in limits. In other words, it was a matter of fundamental national importance that £1, worth 100p at any particular date, is not of the same value at a later date.

On that ocasion we were dealing with the Courts Bill. We are dealing here with malicious injuries. There are two different matters involved.

The argument is the same but the Minister is using it to suit himself.

The Deputy is not differentiating between the two.

I am making the point that the variation of a financial limit in the context of our discussion on that other occasion was seen to be a matter of limiting jurisdiction, but the Minister referred to the importance of such matters being of such magnitude that they had to come before Parliament in respect of any change in the amounts fixed. Here, however, the Minister slips in a dummy at the tailend of a Bill and this dummy gives him the power to play ducks and drakes with claims at any time he so wishes. There is no time limit in this case, so that the Minister may act whenever and as often as he considers proper to do so. That could be twice a year.

It would have to be proper to do so.

The word "proper" here, like the word "precautions" to which we referred earlier, is very subjective.

Reasonable people would be expected to do what was proper.

I expected the Minister to realise that the words "reasonable", "proper" and so on are quite similar. Here we have a case in which for the first time there is slipped in quietly a provision which means that if the claims situation is becoming too hot and too heavy, the limit can be jacked-up, thereby cutting off claims at the bottom. Earlier we were talking about people who suffered damages to the extent of less than £100 not having a chance, and the Minister agreed graciously to consider the situation. Will he deny now that the only likely use of section 25 will be to increase the £100 limit to some figure not specified and not thought of yet but which undoubtedly will be dictated by economic and budgetary matters and which will be changed whenever and as often as the Minister considers proper? In principle this is a bad section because it gives a Minister unfettered and unlimited power not just to vary a limit, which is a kind of academic concept, but to deprive people of the right to claim under this legislation.

This is the very power you wanted to give the Minister under the other legislation.

No. First, the Minister shot that down. If it was wrong then, it should be wrong here on the Minister's own argument. What I said at the time is very clear, that it should not be necessary to come back here to update on account of inflation. I would not argue with that concept per se. I would not argue with that, but that is not what is being said. If that were the case the Minister would have included reference to either the consumer price index of average industrial earnings or some other criterion. There would be some parameters to the power sought. The Minister has not done that. He says here “whenever and so often” as he thinks proper without any reference to any aspect——

No. The guidelines are there for the £100 at the moment. There are and have been methods used to calculate that.

But they are not statutorily dealt with.

I explained in regard to the £5 in the 1898 Act and the £100 today, that the £100 today was more liberal than the £5 in 1898 by something over £4.

Merely because they put children up chimneys to clean them in the time of Charles Dickens does not mean we should continue to do it.

The Deputy cannot make that kind of comparison.

The Minister is justifying his case by reference to historical circumstances.

No, I am not. I am linking it with inflation.

Would Deputy Keating make his point and await the Minister's reply?

I object to the section on two grounds, first on the grounds that it is rather a repetition of the earlier ground that there should be any cut-off point, because that is what this is designed to do. In the particular context of this section the fact that the Minister can at a stroke without reference to the House or anybody else in effect reduce very significantly the number of people entitled to claim compensation under the Malicious Injuries Act whenever and as often as he wants to do so involves a power that in my view needs some debate. There are times when I wish Ministers would act with a certain precipitancy but in this case the only likely effect is that the £100 limit, which is fundamentally obnoxious to me, will be updated very regularly and perhaps more than updated, and we will find it is £1,000 or £2,000.

The idea of malicious injuries, to use the Minister's own words, as a form of common insurance — a very good term — for damage inflicted on members of the community no longer applies. It does not apply even now because the damage and the members of the community are qualified; it is not all members of the community, only certain members who suffer loss above a certain limit. Here you propose to vary that limit whenever and as often as you like without reference to anything, not even a glance at the consumer price index or at this House, or even a Ministerial order. The Minister alone has the power. That is wrong fundamentally and I oppose it. Any limit is wrong but one could argue about that.

The Deputy fails to recognise that section 26 provides for scrutiny of any order made.

The Chair would be the first to tell me that I was out of order if I referred to section 26.

He would, but that section covers orders and the Chair would say that section 25 is in order also.

I am not saying it is not in order but the Minister has hinted that section 26 somehow gives us a safeguard. I contend the safeguard is not nearly adequate, and I said so already.

The Deputy said there was no scrutiny by this House, that it was a Ministerial order.

Does that come before the House? Is there a debate on it?

Every order and regulation made under this Act——

We shall dispose of section 25 first.

I have a fundamental objection to section 25 for the reasons outlined. I must leave it at that. I do not know if the Minister wishes to comment if I have convinced him by my argument. I rather doubt that.

Is section 25 agreed?

I do not want to be noted as agreeing

I shall put the section if the Deputy wishes?

Section 25 agreed to.
SECTION 26.
Question proposed: "That section 26 stand part of the Bill."

In the context of the power given to the Minister in section 25 I do not consider the safeguards in section 26 adequate. Anybody who takes the time and trouble to look at the record will see a fundamental conflict in the attitude of the Minister of State and his Minister for Justice, Deputy Collins, in relation to this principle between what he said and what has been said in reply to Dail questions tabled by myself and others and what has been said on the Courts Bill and on this Bill. The argument was that an unfettered power to increase or decrease monetary limits was one which it was the right of the Dail to debate and rightly the property of a separate Act. That was the answer given to me when I wished to introduce certain modifications in the Courts Bill. But that argument is now thrown out the window and buried in pursuit of the unlimited and unfettered right to vary limits as often as the Minister sees fit.

We are now dealing with section 26 which concerns the laying of orders and regulations before the House of the Oireachtas.

I am making the point that laying such an order before the Houses of the Oireachtas is not an adequate safeguard. Section 26 and the former section impinge on each other from that point of view. Those sections, in effect, depending on the Minister and the Government of the day, could completely negative the advantages — there are advantages in this legislation - and completely set them at naught. The limit could be varied to any figure and the order that goes before the House is not a matter on which there is any debate and which could be reasonably pursued despite the fact that the Minister and his senior colleague and other Ministers of the Government on this issue of monetary limits in legislation told us in the House that such issues were appropriate only to legislation and full debate and were not to be dealt with in this manner. Yet, we see here that they are to be dealt with in this manner. The order and the regulation we are talking about are inadequate from that point of view. I believe that the final page of the Bill virtually undermines completely the careful draftsmanship, intensive scrutiny and careful analysis that I am sure have gone into the other sections of the Bill. We have talked at length on various aspects of the Bill; the draftsmen have dealt with them in detail and the Minister has been good enough to scrutinise the Bill carefully and here, at the end, we pull out the plug and say: "Just in case anybody has any illusions, we remind you that the Minister can change any of this any time he likes without reference to you". As far as I am concerned that makes a joke of the whole thing.

That is not exactly true, because this is a normal type of provision that is in section 26.

But section 25 is not.

Section 25 is also.

We have disposed of section 25.

It is in this legislation for a specific purpose, to ensure that it takes into account the value of money. Section 26 is a normal provision and the fact is that the order must be laid before both Houses. The mechanics provided for the annulment of an order clearly vest in the Members of both Houses the right to alter a ministerial order provided for in section 25. I do not see anything in the last two sections or on page 10, as the Deputy has said, that undermines all the other sections in the Bill. It is not a fair description of what has been attempted here.

Question put and agreed to.
Schedule agreed to.
Title agreed to.
Bill reported with amendments.

May I make a comment on Report Stage?

No, there is no Report Stage once there are no amendments.

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