Dáil Éireann debate -
Thursday, 19 Jun 1986

Vol. 368 No. 3

Courts Bill, 1986: Second Stage (Resumed).

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

Mr. O'Kennedy

I hope the Government will demonstrate in the course of this debate that they have more concern for the administration of justice than they appear to have for the conditions of our courts arising from what my colleague, Deputy Wilson said about the collapse of the Cavan courthouse. This Bill deals with the effective administration of justice, ensures that justice is properly discharged and that the balance between the plaintiffs and the defendants is presented and determined fairly.

Last night I reviewed the alleged reasons for the introduction of this Bill by the Government and why it seems to us that the proposal is neither appropriate nor just in those circumstances. I will recapitulate briefly.

First, the Minister did not say why this proposal, namely, trial by judge alone, is preferable to any of the seven options considered by the Government. He confined himself to mentioning the various options and then said, without any explanation, justification or argument, that the Government had decided to propose the system of trial by judge alone. I think the House is entitled to more than that on a matter which has been accepted by all as an established right. It is for the Government to justify the abolition of that right because they are proposing to abolish what has been a central feature of our civil legal system in the High Court.

Secondly, arguments have been made that juries are inconsistent but it can be demonstrated, even by those who have spoken in favour of the Government's proposals, that judges have not been consistent when imposing sentences after criminal trials. Many Deputies, including Deputy Harney, who are supporting the abolition of the jury system but not with much enthusiasm say they are doing so to get a greater level of consistency but they acknowledge that they are concerned about the inconsistency in sentencing. I suggest that there is an inconsistency on the part of those who argue that way.

I am not suggesting for a moment that judges, particularly the High Court Bench, are not people of the highest integrity. I believe we are particularly fortunate to have people on the Bench with such high qualifications and integrity. Everyone will acknowledge that each individual has his own view and if that is reflected in the sentences imposed — and this is a matter of concern to some Members of this House — is there any reason that that should not also be reflected in the decisions of an individual judge who is determining the issue of liability and, having determined whose fault it was, measuring the damages appropriate in each case? That is where the jury system establishes a balance. the judgement of reasonable people, the person who used to be described in Britain as the man on the Clapham omnibus. These people set the standard of reasonable care which should be taken by citizens to avoid injury to others through fault or negligence. These 12 men and women from all classes of society decide in terms of the judgment of standard of reasonable care or the judgment of appropriate damages and compensation. The balance of the judgments they make after discussing the matter must be at least as reliable and as consistent as the judgment of any one man, however well intentioned, well qualified or whatever his integrity.

The case for the abolition of juries is not being made on the basis that it will reduce insurance premia. If that were so, one would have to give more serious thought to it. Spokesmen for the industry have acknowledged that this will not reduce premia. We all appreciate that the level of insurance cover for employers and motorists particularly is a matter of concern. We do not want to see either motorists or employers burdened with unnecessary or unfair costs but the fact is that it has not been argued — and I believe it cannot be argued — that the abolition of the jury system will result in a reduction in insurance costs.

I mentioned last night that we had examples of reductions in insurance costs as a consequence of Supreme Court decisions, notably the decision in Cooke and Walsh where the Supreme Court determined that henceforth the medical and hospital expenses in motor accident cases are not now chargeable against the defendant, namely the insurance company, and that they are paid by the State under the normal terms of State cover for insured persons or persons with medical cards. The fact that the insurance industry has been relieved by the decision of the Supreme Court of a figure which has been estimated at between £3 million and £5 million in one year, has not meant one penny reduction in the level of insurance premia.

That is not to charge the insurance industry with bad faith. I suppose they see it as an example of the swings and the roundabouts and if they get a windfall like this which helps to enhance their profits or in some instances to reduce their losses, they are prepared to take that as part of the normal hazards in which the insurance industry are involved or the benefits that accrue without passing on the benefits of that to the insured public. If the benefits of Cooke and Walsh have not been passed on to the insured public, why should we assume that such benefits as would accrue — although nobody suggests that they will accrue — to the insurance industry because of this decision will be passed on to the insured public?

Let me return to what has become a very important feature of the reason for the major accident awards. I want to give some figures which were not available to me last evening. Uninsured drivers account for 20 per cent of all driving in this country. The average for Europe is 4 per cent and in some countries like the FDR it is as low as 1 per cent. In the UK it is about 9 per cent, the next highest to us. If one out of five drivers on our roads is uninsured we have immediately the major cause of problems — there is no absolute exclusive cause — in terms of costs, particularly in motor accident cases, of insurance cover. We all know that, first of all, under the Motor Insurers' Bureau agreement the Department of Finance provide 50 per cent and this is a direct levy on the taxpayer, and the insurance companies between them provide the balance in proportion to the general state of cover which each of them has on the insurance market. Therefore, the compensation for injuries suffered through uninsured driving is a matter of major cost to both the taxpayer directly and to the insurance industry and accordingly, it has to be passed on in terms of premium claims and premium costs.

It must be said that the major awards, the biggest awards that have been made, are in respect of uninsured driving or drunken driving. In the nature of things the normal, prudent driver who makes a mistake, as any one of us can do, in terms of judgment, not keeping a proper look out, not giving an indication of turning right or left, driving across the path of another car, or suddenly facing emergency and not coping properly with it, does not cause horrfic injuries. They are caused when cars are stolen by joyriders and driven at a terrific pace through our cities and towns and on our roads. In many such cases the most horrific injuries are suffered by people who are unfortunate enough to come in the path of cars driven in that fashion. Similarly cars driven by people who are unfit to drive due to the consumption of alcohol can cause horrific injury. Here we are faced with the fact that our level of uninsured driving——

An Ceann Comhairle

I do not want to interrupt the Deputy unduly, but I think he will agree with me that the detail into which he is going would be more appropriate on a Road Traffic Bill or on some Estimate. He may, of course, deal with such matters in passing but to go into detailed discussion of them is not in order.

Mr. O'Kennedy

I will not go into it in too much detail but when we are talking in terms of the cost of reducing insurance premiums which the Minister says is the major element here, I think what I am saying is relevant.

An Ceann Comhairle

It is relevant to refer to it but not with too many nuts and bolts in it.

Mr. O'Kennedy

I will not put too many nuts and bolts in it but I hope at least that the general structure if not finally completed will be visible enough after the few comments I want to make. I will demonstrate that by saying that the amount of claims faced by the Motor Insurers' Bureau has grown from £2.1 million to just £9 million in 1985 and it is estimated that in 1986 it will be of the order of £9.5 million or £10 million, and that is caused exclusively by uninsured driving. For this reason if we want to deal with that escalating factor it is important that we deal with it in the most appropriate way, that is, by a proper application of the law in relation to insurance. I will not go into this in detail because it is a matter for road traffic legislation but it would concern insurance discs or whatever and proper enforcement of the law. That is the only guarantee that increases of that nature will not be a feature of the claims faced by the Motor Insurers' Bureau which in turn must be recouped from all the insurance companies who operate in the motor insurance market.

I understand that the estimate for outstanding claims in the bureau as on 31 December of last year is £55 million. The corresponding estimate at the end of 1984 was £48 million. This is the estimate, which is all one can make, of the claims that are already lodged against the Motor Insurers' Bureau that will have to be paid. Again that demonstrates that the real action which must be taken here is to protect the public in every sense, (a) in the first instance against injury from uninsured driving, (b) as either taxpayers or policy holders from having to face the level of compensation that follows serious injuries. That will exist whether we have judge or a jury trying the issue.

An Ceann Comhairle

Let me say that, as the Chair sees it, the issue here is whether what are known as running down actions can be more fairly and adequately tried by a judge sitting alone or a judge with a jury.

Mr. O'Kennedy

That is what I am saying. This problem of uninsured driving and the cost of awards following will continue to be there whether you have a judge dealing with the issue alone or a jury determining the issue. For that reason the Government owe it to us to explain in greater detail how they are going to avoid those costs if they are heavy costs to the motorists — and they are — and to the insurance industry or whatever. That is vital, and the Government have failed to do that. They should do it before coming in here and saying that they propose the abolition of juries because some people say they are too costly without taking into account the major reasons why juries have operated here and elsewhere for a considerable time.

International comparisons in relation to the incidence of accidents in this country indicate that it is very much higher than in other European countries. In terms of the number of road deaths per 10,000 vehicles, surveys indicate that we have a much higher rate of fatality than any other country. Figures for European comparisons in terms of the level of road fatalities and injuries in road accidents are much higher in Ireland than in other countries. This is a matter for the administration of law and it probably also has something to do with the condition of our roads, although I will not go into that.

It could also be as a result of the condition and supervision of vehicles and if we are concerned about these things it is a matter for the normal administration and implementation of the law to ensure that we reduce the level of accidents which puts us at the top of the list in Europe with Northern Ireland coming a close second. In terms of fatalities our figure is 7.2 per 10,000 motor vehicles; the figure for the North of Ireland is 6.7; Great Britain 3.4; France 4.9; Italy 3.6; Denmark 3.7; and Norway 2.9. It is time that we faced these realities and dealt with them thereby reducing not just the level of accidents but also insurance costs as a consequence of injuries suffered in those circumstances.

Since the collapse of the PMPA which covered the major portion of motor car insurance, two or three very interesting facts have emerged. In the first instance, juries who do not live in isolation have moderated their awards to a considerable extent. Any practitioner will tell you that the levels of such awards for damages are less than they were three years ago before the collapse of the PMPA. The impact which that had on the public and on premium holders was of such significance that men and women sitting on juries realised that it was a matter of obligation not just in terms of the public interest but also in their own interest to look at the balance of justice to be determined between the plaintiff and the defendant and to decide accordingly.

In terms of the administration of the insurance system, the PMPA are a good example of where the real costs may arise and how they can be coped with. The administrator of the PMPA, clearly a man of very sophisticated and professional skill in this area, and his staff have succeeded in halving the losses which stood at £27 million in 1983. These were reduced to exactly £13.5 million by efficient management. He also indicated that he hopes to halve those losses again this year. Therefore, the figure of £27 million in 1983 could be reduced to about £6 million in 1986.

Clearly, if a reduction of that level can be achieved by a competent professional team, it is obvious that it has much to do with efficient management of the insurance industry and nothing to do with jury awards. A number of factors enabled the PMPA to achieve this. One is the earlier settlement of cases, long before they come to trial. Another factor is the much more constant appraisal of the development in terms of medical reports and discussions between solicitors on both sides with a view to concluding the negotiations successfully as quickly as possible without incurring extra costs that normally accrue when one has to go to trial.

Mr. Taylor

That will give rise to big fees.

Mr. O'Kennedy

Fair enough; we are talking about the abolition of the jury system.

An Ceann Comhairle

We are getting far away from the Bill.

Mr. O'Kennedy

I cannot understand that. I have been arguing ad rem and now the Chair takes that view.

An Ceann Comhairle

If somebody came in here who did not know what we were debating he or she would certainly think that it had something to do with insurance companies, running down actions and nothing else. This Bill deals with personal injuries sustained as a result of a motor accident, an accident on a building site or where someone takes a gun and shoots another in the leg and a whole series of other matters. The issue is not the efficient running of insurance companies or even the efficient running of the courts. It is whether having a jury is a better way of adjudicating on these issues than a judge.

Mr. Taylor

The thrust of the Minister's speech was in relation to insurance companies.

Mr. O'Kennedy

That is exactly what I was going to say. I read the Minister's speech and I am only responding to a case made by the Government.

An Ceann Comhairle

Well, may be you have something there.

Mr. O'Kennedy

I can deal with the principle of trial by jury and why it was established.

An Ceann Comhairle

It would be much more interesting.

Mr. O'Kennedy

It probably would but the Minister should have been told that when he introduced his speech because that is the case he made.

An Ceann Comhairle

I concede that you have something there.

Mr. O'Kennedy

I do intend to spend much longer on this issue beyond saying there are obvious ways in which the insurance industry can operate more efficiently to ensure that the cost to the policy holders or to the public generally will be minimised. It is not necessary to abolish what has been an established feature of the law, namely, trial by judge and jury, to achieve that.

In so far as the case cannot be made that insurance costs arise from jury awards only, we should look at the real issues in regard to trial by judge and trial by judge and jury. When you have eight or ten competent judges of the highest integrity but with different personalities, different monetary values and, inevitably, different social attitudes, clearly plaintiffs and their advisers will wait until the very last minute to determine whether they will let the matter go to trial or settle.

What will happen is that plaintiffs will tend to wait until the last minute to see which judge they draw in what will be a game of hazard before deciding whether to let the case go to trial or settle out of court. Certain judges are known in the trade to be plaintiffs' judges and others defendants' judges. So, instead of speeding up the process of trial this change proposed by the Government will have the opposite effect. Cases that are now settled well in advance because of the general norms of jury awards will be held up until it is known which of the judges will be dealing with the case and if it is Mr. Justice X — I obviously must refrain from mentioning them — the plaintiff may say there is a good chance of a favourable result in terms of damages whereas if it is Mr. Justice Y who is dealing with the case there may be little chance of a favourable result.

Judges have different attitudes to money and one judge may not be at all in tune with the demands of modern life in the same way as his colleague. Judges recognise this about themselves just as much as any of us would. If each of us were asked individually to value something, we would give different values and it is the average that is important. I suggest there is no reason why juries who can strike an average on the basis of the normal judgements of people cannot be given guidance they are not given at the moment. They cannot be told anything in relation to what awards would be accepted by the Supreme Court or the general standard of awards that will not be overthrown by the Supreme Court.

The Supreme Court have taken a new role in recent years. Previously the Supreme Court could only send a case back for retrial if they thought a jury award was perverse one way or another. Now they decide what is the appropriate level of award and, consequently, we now have norms that I think should be indicated to juries so that they will not be at large, so to speak, in fixing the amount of general damages. This is one of the options proposed to the Government by this side of the House. The Minister dismissed it and did not explain why, but decided to propose the option of trial by judge alone.

I feel juries would welcome a situation where there would be a balance between the judgment of 12 normal people and guidance from the Supreme Court in issues of negligence between fellow citizens. The Government should at least answer the case. If they will not accede to it they should say why it is not acceptable to them. It may be that my colleagues in this House or elsewhere will disagree with me in this but I see no reason why counsel for both the plaintiff and the defendant should not suggest to the jury the amounts they think are appropriate for general damages and let the jury decide which of the estimates is acceptable, having heard all the evidence. That would be a welcome innovation. The jury would get the benefit of the values presented by both sides who would have to justify them by medical or other evidence. There has been no attempt to consider modifications of that kind. There is only the very blunt instrument of abolishing juries and having a judge sitting alone. That is regrettable. The Minister will have a report of this detailed debate to which many have contributed and I hope he will assess all of these matters and will deal with them in his reply because that is what is required before we take such a major step as is now being proposed.

I would like to refer to two other matters before I conclude. The first is in relation to legal costs. I do not know if my colleague, Deputy Taylor, will concur with everything I will say here but it does not matter. It is suggested that the arrangement whereby a large number of lawyers are involved in cases has heaped very considerable costs onto the insured public. I do not accept that that is a significant factor in the costs. I do not have much time to practise at the Bar these days, unlike some of my predecessors who sat on these Opposition benches some 15 or 20 years ago, because the Dáil is becoming much more demanding, and properly so. Nevertheless I and many of my colleagues at the Bar would acknowledge that there is a case for abolishing the two senior system. We are not talking about abolishing the two senior system. here we are talking about abolishing juries.

If we want to get rid of the two senior system, abolishing juries is not the way to do it. That is turning the thing on its head. We could go on the basis that costs would only be allowed for one senior counsel and if a second is required it would be at a person's own expense. The fact is that insurance companies have been engaging two senior counsel. It is a matter for them to consider if this is efficient. I think in most cases they have come to the conclusion that it is. There is nothing sacrosanct about the two senior system. But if trial by judge alone is introduced in the expectation that it will get rid of the two senior system, that is a false expectation. The real reason this system exists is the listing system and the number of courts.

If a senior counsel is expected to take on a case and give it his exclusive attention and not take on any other responsibility on that day or the following day or for as long as the case goes on, he will have to charge an appropriate fee which would be on a higher scale than he would charge under the two senior system. In England, the fees to counsel in court cases are very much higher than they are here for that reason. I am not one, however, to say that one has to adhere to the practice of the two senior system, but this has nothing to do with jury trials. It is a different matter, although people have tended to confuse the two issues.

Juries offer an opportunity for all the public to engage in the essential legal process. To that extent it is a very healthy exercise of a democratic right and obligation. People are given an opportunity to make a judgment between their fellow citizens as to reasonable standards of care and appropriate compensation where those standards have not been adhered to. It is essential that we promote and encourage that sense of responsibility. There has been a recent tendency in representation on juries to have mainly young, unemployed jurors. That may be because the very people who complain about the jury system avoid serving on juries, for example, professional and business people who say that they cannot afford the time to attend. If we had a proper spread of representation on juries, not only would we have a much more effective discharge of democratic obligations, but perhaps we would get a different balance of opinion both as to liability and as to the appropriate level of damages.

It is important that unemployed young people should take part in this democratic process — there is no reason why they should not — but a balance of representation would be an advantage. Can business people or professional people who complain about heavy insurance premiums on their cars or property reconcile those complaints with the fact that almost 70 per cent, when asked to discharge their civil obligation by serving on juries, avoid doing so? I should not have imagined that the number attending would be as low as 30 per cent. If people are not prepared to discharge a civil obligation, can they complain afterwards that those who do are not doing their job properly?

If we are to have the judge only system, there will be more cases going to trial; there is no question about that. People will not settle in advance. At the moment 0.2 per cent — one out of every 500 cases — go to trial determined by a jury, which is a very small proportion, and we are talking here about the way juries are supposed to abuse the system. When trial by judge alone was introduced in England in 1965, the number of extra judges who had to be appointed at that level was 42, to cope with the growth of the burden of cases. Scaled down to our proportions, that would come to perhaps five extra judges and a back up staff. That will give rise to considerable extra cost.

A case had not been made to justify the Government's proposal. If a jury of our fellow citizens had been listening to this debate, trying to make a fair assessment as to whether the plaintiff — in this case the Minister for Justice — who proposes to the jury to change a system which has been well and truly established, has proved his case on the grounds of probability, the citizens would have to come to one conclusion only, that he has not. The Minister has stated his complaint and has proposed his way of curing it, but they would come to the conclusion that he has not done so in a way that satisfies them that what he is proposing is either fair or reasonable. That is why we are proposing the retention of the jury system, subject to the amendments which our spokesman, Deputy Woods, has mentioned and which I have outlined in some detail this morning.

Mr. Taylor

This Bill is really illthought out. I have studied carefully the Minister's speech in this connection and find the arguments propounded in it unconvincing. One of the reasons put forward by the Minister and the Government is to reduce legal costs in connection with jury actions in the High Court, thereby reducing insurance company expenses and, presumably, insurance premiums. I find that argument pretty poor, coming from the Government. If there was one single factor that escalated legal costs over the past few years by an appalling amount, it was the Government's decision to apply valueadded tax at 25 per cent——

Mr. O'Kennedy

Hear, hear.

Mr. Taylor

——on all legal fees, solicitors', barristers', the lot. That had a disastrous effect on legal costs. That a Government who at one fell swoop added a massive 25 per cent on to those costs of insurance companies and plaintiffs should say legal costs are too high and we must find ways of reducing them is too much. They should hang their heads in shame at putting that aspect of the matter forward as an argument. That has had a major effect on the insurance scene, the VAT rake-off by the Minister for Finance from solicitors' fees, barristers' fees, court fees, witnesses' expenses, the whole gamut. This amounts to a massive sum, even on one side, in any typical High Court action. There is often criticism about the high level of solicitors' fees, but the biggest single burden in recent years came from the quite unnecessary imposition of VAT on legal fees. It is rather a pity that that was done.

I find it very difficult to know why this measure was brought forward. I cannot get any clear guidance from the Minister's speech as to the reason. Is it put forward that juries have been irresponsible, that they have brought in excessive awards away beyond what is reasonable or appropriate? There is a kind of covering the whole issue and it appears to run this way: juries have gone wild, are bringing in huge awards that bear no relationship to what is fair and reasonable and if one brings in trial by judge alone these amounts will be reduced, and consequently the insurance companies will do considerably better and the premiums, the hard pressed members of the public have to pay will be thereby reduced. That seems to be the basis of it although each and every one of those steps is clouded in a smoke screen.

If we take the proposition that the juries have gone wild and that the amounts of the awards they are making are excessive and too high, the corollary has to be that the awards of a High Court judge sitting on his own will be considerably less than the awards of juries. The Minister and the insurance industry freely admit that that is not so. In one part of the Minister's speech he referred to the high level of awards. In another part he said there is an assumption in some quarters that the object of the Government's proposal to replace civil juries is to reduce awards in personal injury cases generally. He said that is not correct.

Mr. O'Kennedy

That is the Minister talking.

Mr. Taylor

If he is saying that is not correct it can only mean that the awards given by judges will be more or less the same as the awards given by juries. If that is so, what precisely is the object of the exercise? The insurance industry take the same view, the Minister said that spokesmen for the insurance industry are not presuming that damages will fall when assessed by judges. In fact, they have expressed the view that it is unlikely that judges will reduce awards from the prevailing levels. If the awards given will be the same, why do we have to set about abolishing the juries? The thrust of it seems to be cosmetic. It puts forward the appearance of doing something about a matter which may need to be tackled in various ways. The implications are that jury awards, with exceptions, are fair and reasonable enough. There are always occasional jury awards that go wrong. There have been cases where jury awards have been considerably too high and there have also been cases where jury awards have been too low.

Recently I read about a case in the newspapers where the Supreme Court increased the amount of a jury award. The Chief Justice described that jury award as being a mean award. Is it suggested that awards made by High Court judges alone will not have the same degree of variance — and will be either too high or too low — as those of juries on odd occasions? That proposition does not hold water. In the UK where the judge system alone has been operating for many years the system has not worked with any delightful degree of consistency. If we are to emulate and copy the British system we will be in for a shock.

A UK Queen's counsel who is also a Member of Parliament referred to this when introducing a Private Members' Bill in the House of Commons on this subject. He referred to the level of compensation awarded by the High Court in road accident cases. He said the law on compensation for road accident victims is an archaic lottery. That system is put forward to us as being some kind of panacea that will bring in some magical degree of consistency into the system. If having judges alone produce an archaic lottery in the system in England, I do not see why we should rush headlong into that system.

Certain guidelines should be established between the awards given and the Supreme Court rulings on appeals so that people involved can settle the cases under these guidelines and not fight them in court. The object of setting up a position that will involve a fight in court should be avoided. That does not happen and has not happened under this system. As Deputy O'Kennedy rightly pointed out, the number of these cases fought out in court is minuscule. Thank goodness it is. If the number was doubled, minuscule as it is, the whole system would break down irretrievably. Deputy O'Kennedy said that only one case in 500 is fought out in court. The guidelines that have been established work very well. On odd occasions the Supreme Court have intervened and set a standard and a guideline. People settle their cases accordingly based on those guidelines. The system has worked tolerably well on that basis.

The insurance companies leave much to be desired in the way they manage their affairs. They bring much of their troubles on their own heads. They have an inbuilt reluctance to settle a case at an early stage. I do not know why that is. Is it that there is not an adequate delegation of responsibility and authority in the insurance companies that enables that to be done? A person who is injured in a road accident or at work does not wish to see his case drag on for years. That is what happens in the normal course of events. There are very few cases, if any, in the High Court that are settled within three or six months. This is not because the solicitors acting for the injured parties would not favour that. They favour it very strongly. Insurance companies seem to think that the longer they put things off the better. They raise pernickety objections to stall them off for years on end. It has been proved many times that the longer they put them off the more they cost them in the end. This contributes to the enormity of their costs and in many cases to the poor results that some of them show on the motor side of their business.

Many things could be done to improve the position. Much of the evidence is common between the two sides, and yet there is no procedure here that enables agreement to be reached at a very early stage. There is a procedure in the UK which has been in operation for a long time under which at a very early stage of proceedings the parties are called before a lesser official of the courts, a master, and he examines what evidence is common to both sides. He puts pressure on the two sides to agree the medical reports, thereby, saving a tremendous amount in time costs and expenditure. If some measures along those lines were being proposed it would be a worth while contribution to the entire debate, could reduce costs on both sides, improve the position of the insurance companies and, hopefully, have that translated into a reduction in premiums.

Some hard things have been said in the course of this debate about the members of the legal profession. No doubt the legal profession have their bad eggs the same as the members of any other profession, be they the medical profession or politicians. I do not deny that. However, by and large, they go about their tasks in a responsible and careful manner. The legal profession offer and provide what amounts to a free legal aid system. To a very large extent it is a system which rightfully ought to be provided in a proper manner by the State but which has never been done by this State in civil actions of the type this Bill comprehends. It is high time that was done.

I want to say a word about the role of the medical profession in High Court jury actions, in running down cases and cases involving injuries at work. I am afraid that many members of that profession behaved in a rather irresponsible manner. They caused costs to escalate and delays to take place. There seems to be no real measure of control over the situation. For a person injured in an accident to get their case moving they require a medical report. That can be an incredibly difficult and prolonged item to get. One can expend hundreds of pounds in costs in trying to get that. Some doctors charge £40 for a medical report while others charge £150 when it can be extracted. Many of them are reluctant to make themselves available to come to court to give evidence. Many of them are the cause of cases having to be adjourned, thereby escalating the legal costs involved. Efforts have been made to bring some regularisation into the situation, but I am afraid it has not worked very well. That aspect of the matter, if looked at, could bring about a very large improvement in the situation.

On the question of judges' decisions, the implication is that their decisions are going to be consistent. Is the objective of this Bill to bring about lower awards or is it to bring about consistency in awards? The Ministers speech on this is rather obscure. Quite frankly, I do not follow the broad thrust of his argument. If it is consistency he is looking for, all I can say is that High Court judges are not consistent in the judgments they give in other matters. Their opinions vary and are frequently overruled by the Supreme Court. Circuit Court judges, who already hear these cases without a jury, do not give consistent awards in running down accidents or in cases involving factory injury. There is no reason to suppose that the response of High Court judges will be any different from those of the Circuit Court judges. Circuit Court judges now have quite a high jurisdiction, up to £15,000. That may well be increased. Their judgments and the amount of damages they award vary quite a bit. Therefore, there is no consistency. The attitudes of the judges vary quite a bit.

Is it that the insurance companies want the abolition of juries for some particular reason? I wonder about that. I was interested to see a report in The Irish Times of 18 June 1986 regarding a statement by Judge Diarmuid Sheridan of Carlow Circuit Court. The report stated:

A judge has criticised insurance companies for insisting on costlier High Court actions rather than Circuit Court trials.

Judge Diarmuid Sheridan said at Carlow Circuit Court yesterday that insurance companies had moved heaven and earth to do away with High Court jury hearings, but the opposition to leaving such cases in the Circuit Court jurisdiction, where they are dealt with by a judge alone, was coming from the insurance companies themselves.

He said the insurance companies had mounted a very large campaign for waiving jurisdiction of High Court juries. To his certain knowledge since last October he had transferred at least 15 to 20 cases from the Circuit Court to the High Court.

Where they would be heard by a jury.

In each case he had inquired as to whether the parties would leave the cases in the Circuit Court and consent to jurisdiction, but in each case one party objected to that course and that invariably was the defendant who almost always was involved with an insurance company. He could not understand this.

Quite frankly, neither can I. If the insurance companies, based on that report, were so anxious and thought it would lead to their advantage to have the cases tried by a judge alone, all they had to do was to consent to the request made by Judge Diarmuid Sheridan and leave their cases in the Circuit Court where they would be determined. But no, it was the insurance companies who insisted on going forward to the High Court where they would be tried by a judge and jury. Therefore, I do not know what they are about.

The Minister in his speech states:

The high level of damages awarded in the courts in such cases have a major bearing on the amounts for which insurers will settle personal injuries claims outside the courts.

That is true. The amount of awards are a guidance, but the number and the effect of the appeal decision to the Supreme Court is a major factor in giving that guidance. It is a fact that very few of the damages awards from juries in the High Court are appealed to the Supreme Court. As we have said, the numbers which will go to a full hearing in the High Court are very small compared to the total. Of those that are heard and those where jury awards are given the number which are appealed — the number, in other words, that either party complains about — is minuscule. The guidelines are there. That system works well. Those figures are the guidelines under which these settlements operate.

The Minister says such claims are settled under the shadow of a court hearing and that the proven unpredictability of jury awards has had a destabilising effect on the settlement process. That is palpably not correct. The settlement process works very well. The number of cases which are not settled is minuscule. Therefore, it has had a very predictable effect. Otherwise, far more cases would be sent on for trial to take advantage of this alleged unpredictability of jury awards. The Minister went on to say that one judge of the Supreme Court in a recent case observed that the proliferation of personal injuries claims and a significantly high number of serious cases appear to have induced among lawyers and insurers alike a degree of what he called monetary punch drunkeness that had tended to remove reality from such settlements.

The Minister quotes that as a plus factor in advocating the abolition of juries. The one thing which the judge did not say in that quote is that the situation had anything to do with high jury awards. The first point the Supreme Court judge is quoted as making is that there has been a proliferation of personal injury claims. Probably that is true. No doubt the number of claims is large and there are various reasons for that. But the reasons for the proliferation of claims has got nothing to do with the fact that jury awards are too high, too low, inconsistent or whatever. There may be various reasons for their proliferation. Perhaps one is the extension of the licensing laws; perhaps that is a factor. I note that the Government have proposals to extend the licensing hours even more. I wonder are they taking into account that that action — thereby encouraging more drinking — will cause an even greater proliferation in the number of personal injury cases that will be brought about.

Perhaps there are inadequate safety precautions in factories. Perhaps that is a factor that has brought about a proliferation in the number of personal injury claims. Are there sufficient inspectors going around checking factories for safety? Are the Government doing enough to ensure that the factory inspectors' reports — where they point out defects — are being complied with in such factories, thereby reducing the number of factory accidents, which are many? That may be a factor in the proliferation of personal injury claims.

The second quotation of the judges of the Supreme Court by the Minister is that there was significantly a high number of serious cases and that appeared to have induced among lawyers and insurers alike a degree of "monetary punch drunkenness". There may well be a high number of serious cases but, for the life of me, I cannot understand what that has to do with jury awards. If a case is a serious one, then it is a serious case and an award will be high whether awarded by a jury or by a judge alone. To quote those two examples of the number of cases having proliferated, that there are a high number of serious cases, and to go on to relate that in some way to the abolition of juries is puzzling. Quite frankly, I do not see the interconnection between the two. The Minister continued to say:

The levels of awards by juries for personal injuries are inevitably reflected in the amounts agreed in settlements which comprise about 95 per cent of personal injuries claims.

Of course the amounts of the awards are a factor; so is the Supreme Court review of the situation. That would apply whether decisions on awards were made by juries or by a judge alone.

The Minister continues to say of the Bill before us:

The purpose is to avoid excessive awards as far as possible and to bring consistency and predictability into awards given.

The fact of the matter is that many of these cases that appear as similar to members of the public — looking at short reports or whatever of them in newspapers — are not similar at all. When one gets down to the nitty-gritty many of these cases that appear to be the same can be quite different in their effect on the person who has suffered the injury. Then the Minister had this to say:

Moreover, although the incidence of personal injuries cases heard in the High Court by a judge sitting alone with the consent of the parties has not been great, what indications there are show that a judge can be no less generous than a jury when it comes to assessing damages in serious cases.

Here again the Minister is saying that the awards of a judge will be comparable with those of juries. One comes back to the point: what is the object of the exercise? What is the purpose of this Bill? The awards will be the same. That appears to be conceded by the insurance industry and by the Minister. If the awards are to be the same it will leave insurers in the same position and will have no effect on insurance premiums.

I know that in the United States a very serious position has arisen in the area of insurance. I am sure we have all seen reports of the colossal awards running to millions of dollars in many of these cases. A very serious position has arisen in virtually all of the States in the United States where many firms now find themselves in the position of being unable to obtain insurance cover at all. Of course it is very important that we so organise our affairs to ensure that insurance cover is always available at reasonable costs to motorists and, in particular, to factory owners. By and large I think that is still the position. It is not helped by the factors adverted to by Deputy O'Kennedy, that so many motorist are not taking out insurance cover which is compulsory on them.

It is also not helped by the fact that very many people who own and run factories with hazardous and dangerous machinery are not taking out insurance cover for their employees. That line of insurance is different from the motor category because, to date, it has not been compulsory. I believe it should be made compulsory. I believe that a worker in a factory, involving hazardous or dangerous machinery, on building sites or wherever, is entitled to the same protection as any potential victim of a motor accident. Indeed, it would be very helpful to many workers who, unfortunately, on occasion suffered injury in their places of employment, in factories, and have been unable to recover compensation because their employers did not have insurance cover and were not in a position to meet the amounts of those awards. There have been quite a number of such cases. It is a matter of importance and no doubt would also help insurance companies if that form of insurance cover were made compulsory.

The whole field of insurance is in a state of disorganisation; it is extremely difficult to supervise it in a proper manner. The Minister talks rather optimistically of effecting reductions in premiums, for example, when he had the following to say:

Insurers say that the benefits of this will be passed on to the general insuring public, through, at the very least, a reduced need to increase insurance premiums and, depending on the overall outcome of the new arrangements, in possible reductions in premiums. I can assure you that my colleague, the Minister for Industry and Commerce, who has responsibility for supervising the insurance industry, will be concerned to ensure that economies that arise for insurers from the changes that are proposed in this Bill will be passed on to the insuring public.

All I can say to that is that the experience of the Department of Industry and Commerce to date of exercising any kind of worth while control over the insurance industry has not been very reassuring. We have had the examples of the ICI débacle and the PMPA when the supervisory responsibilities of the Department of Industry and Commerce failed in what this House could reasonably expect, that is, to ensure that that kind of situation would not arise. Therefore, I cannot say I would have any great confidence in the supervision of the insurance industry in ensuring that any benefits—if there were any from this Bill — were passed on to members of the insuring public.

I believe the purpose of this Bill has not been established. The concepts that have been put forward in its favour are full of inconsistencies. The purpose of it is cosmetic and I do not think it has any prospects of achieving any worth while improvements in the administration of justice. I do not believe it will lead to a reduction in the amounts of awards made by courts with or without a jury. The Minister conceded that point in his speech. If the legislation will not reduce the awards, what is the purpose of it? It will not affect the overall position of insurance companies and will make very little difference overall.

Having regard to the remarks made by the various contributors to this debate, the Minister should seriously consider deferring the measure after Second Stage and have a rethink about it before bringing it forward again.

Mr. Kelly

I should like to speak briefly to much the same effect as Deputy Taylor and Deputies on the other side of the House. It is not an issue of conscience and I have no intention of making any difficulties for the Government I support, but I share the misgivings which have been expressed by other Deputies. I do not believe the measure will achieve the benefits which have been promised for it and to change the existing system for reasons which are so slight is mistaken. I naturally submit to the judgment of the majority of which I am part and will, if I have to, vote for this Bill, but I will do so with misgivings for reasons which have been given here already.

I do not know whether any speaker has begun by saying that the basis of the law we are talking about when dealing with actions for negligence is the system of justice called commutative justice — the idea that if I inflict an injury on somebody else by my fault I am obliged to make good that injury to him. That is an impermeable, absolutely rock bottom feature of any conception of justice. Even the most primitive peoples with the most unsophisticated legal ideas and systems can understand that. Every human being who goes through life in a civilised society carries a range of responsibilities and liabilities, chief among which is the liability out of his own pocket — and therefore at the loss of pleasures, facilities and amenities which would have been available to him — to make good to somebody else, so far as money can do it, injury which he has inflicted on that person by his fault. That may involve a sacrifice in his lifestyle and expectation and may also affect those who depend on him, but it cannot affect the right in justice of the person injured to expect compensation from him.

That primary legal idea, which is not peculiar to the Irish system or the common law but is common, I would imagine, to all civilised mankind, is very much mitigated in its impact on individuals in a society like this by the system of insurance. We allow as a matter of public policy — some would say wrongly, but I believe rightly — the individual to reduce almost to vanishing point the impact of his own risk and wrongdoing by insuring himself against the consequences of negligent actions. Nobody would find insurance to cover him in respect of this malicious actions. Since most people do not really want to injure other people or. to get into trouble of any kind, negligence is something which is an insurable risk. It is calculable to some extent. We allow individuals to throw off the effective burden of the ordinary rule of law by insuring themselves. This involves joining a pool to which everybody contributes a little so that, when a very heavy burden falls on an individual, it will be carried by all.

I do not need to lecture the House on the basics of insurance. Some forms of insurance are prudential, that is, they are availed of by the individual at his own option. This type of insurance includes house insurance, fire insurance or the comprehensive dimension of car insurance. Some forms of insurance are compulsory in all civilised system such as third party motor insurance and certain forms of employers' liability. The insurance system is an obviously valuable facility and its evolution in the late Middle Ages was one of the great achievements of the European mercantile mind. I do not want to decry it or belittle it on moral grounds or anything of that sort. We all have benefited in one way or another but there is a point at which the convenience of an insurance system must not be allowed to take precedence over the fundamental idea of justice which underlies this area of the law.

When I find, as I have to find here, that the change which is before us today has largely resulted from agitation from the insurance part of the world, I have to ask whether we are not in danger of losing sight of the idea of justice in our anxiety to oblige those who have an interest in insurance, whether because they are insurers or policy holders paying premiums. We cannot do that. We need not get into abstruse areas here but if there were any suggestion that this was the purpose — that convenience or cheapness of insurance was the reason behind a system which would perhaps have the effect of diminishing the level of damages, that is, diminishing what would appear to most people to be the just level of awards — then I think we would have a constitutional problem on our hands. I do not want to raise a here of this sort at this stage because I do not think that is the only purpose of the legislation. I am sure it has an articulate purpose based, need I tell the House, on an observation of what happens in the jolly old UK.

In the jolly old UK from which we were so keen to be free, it is observable that judges sitting alone do not award, as a rule, damages of a level which are common here in jury awards or even awards given by a Circuit Court judge who sits without a jury. The British, among other differences from ourselves, are meaner about money. They have a different perception of a £1 note from ours. That is only another facet of the thrift and prudence and generally the Protestant ethic which has made them what they are and put them in several respects so far in advance of other peoples. It is undoubtedly a fact that they have a more sober view of a £5 note than an Irishman has. That I believe inarticulately contributes to the less generous level of awards to which the Minister referred. He spoke about the less generous — some would say meaner — level of personal injury awards which are common in England.

If I thought the only purpose of this Bill was artificially to force down awards to English levels by the employment of a judge sitting alone, I would be unconditionally against it because that would be a wrong, unjust and immoral thing to do. I accept that is not the purpose of the Bill, or at least not one of its main purposes. Nevertheless many insurers will be expecting that the damage award levels will fall after the enactment of this legislation.

Quite apart from the national difference between the English and the Irish, their different attitudes towards money and the substantially more flaithiúil approach of the Irishman to a £5 note, there is a difference in the perception of money as between a judge and a juror. It is not based merely on the fact that the juror is an anonymous person who, when the jury term is over, will be dispensed from service and will not have to account for having been extravagant with the money of an insurance company, but I think it is because a judge is usually half a generation older than the average age of the jury. The judge may be a complete generation older than them. I hope the House will not think it a far-fetched belief when I say that one's ideas about money, leaving aside national differences, are formed in youth. I first became conscious of money as a four of five-year-old in the years just before the Second World War and I cannot rid myself of the idea to this day that a £1 note is a substantial little sum of money even though it will not even buy a drink.

Mr. Donnellan

It depends on the type of drink the Deputy wants to buy.

Mr. Kelly

I cannot buy my sort of drink for £1.

Mr. Enright

Ballygowan water still costs 75p.

Mr. Kelly

My children find my attitude towards £1 and £5 notes laughable. They have a different perception of money which I have to complain about because it is my money they have a different perception of and it is my money they are extravagant with. However, I have to recognise that these perceptions are formed in childhood, or early youth, and are difficult to shake off. Who is to say which is the more just perception of the value of a monetary award?

If I were a plaintiff who had been seriously injured in a motor accident and was half way in age between my children's age and my own age I would be very aggrieved if I felt that a system was being introduced which would quite exclude the money perception of the younger generation but enthrone the money perception of my generation, not to speak of people who are half or a whole generation older than I. One must remember that one can be a judge and be nearly 20 years older than I am. A plaintiff would be right to feel aggrieved in such circumstances.

The jurors who nowadays can include 18-year olds will likely have a better idea of what the current conception of money is, its buying power, its consolidatory power for a person who has suffered an injury, than I would have. I am baffled by the size of awards I see but I can equally appreciate that a person who has suffered a very serious injury, who has become paraplegic or lost a limb, may feel that no amount of money will compensate him for the felicity he has had to forego through his personal injury. I would feel that way if I were injured.

I would disagree with the Bill if I thought, notwithstanding that the Minister has disclaimed it, that its purpose, or its unintended effect, would be to reduce the crude level of money awards in such a way that what would now get through to a plaintiff would be a judge's perception of what his injury was worth as distinct from a juror's. One can make too much of a point like that, and I do not want to unduly labour it, but the involvement of a jury in the assessment of awards is a valuable thing and one that conduces to justice.

I know that in the United Kingdom for 20 or 30 years juries have been removed from this area and I am absolutely certain, had the British not made this change, we would not be making it here today. How often have Members heard me say something similar in the House? Does anybody seriously think that, if the British saw fit to hold on to juries in civil actions for personal injury, we would not be doing the same thing? We would move heaven and earth to find reasons why the system could not possibly be departed from but as soon as the British do it, after the usual timelag of 20 years or thereabouts, we are traipsing along behind them again. I am convinced that, had the British not made this change, the House would not be asked to make it.

The strongest argument in the Minister's case — I must confess that it is a strong argument — relates not so much to the crude level of jury awards as to the element of unpredictability of them. That is a strong and sound argument and I would have liked the Minister to meet that point which is undeniable. Even Deputy Taylor was inclined to concede that point and Opposition spokesmen were willing to concede it. The Minister should have tried to deal with that point in a somewhat more conservative way, not by ditching the whole system but by holding on to it and trying by some other means. It might have meant inventing something for ourselves. It might have meant a brand new Irish innovation, an Irish solution to an Irish problem, instead of a 25-year old British solution to an Irish problem. We might have taken a step away from mother England and waddled away from the playpen for half a day and thought up some system of our own, even on an experimental basis, for excluding the unpredictability element in jury awards.

The Minister was right to say that unpredictability in jury awards is a very serious matter for insurance companies. It slows up settlements; it tends to inflate settlements; and it has an impact on their work and, indirectly, on the amount of the premiums which policy holders have to pay, but that might have been excluded by a much more conservative means such as was suggested by the committee on motor insurance which I had the honour of setting up in 1981 when I was in the Department of Trade, Commerce and Tourism. That committee suggested that the judge might have a role which would be integrated with the jury's role, not for determining the issue of liability, who had been at fault in causing the accident, but for determining the appropriate level of compensation.

I do now wish to substitute a 60-year old judge's perception of money for that of a 25-year old young man or woman. It is not just to aim to do that, but one could fairly ask a judge to sit with a jury during at least that part of their deliberations, once they had settled the issue of liability, to instruct them on what was a currently normal or acceptable range of awards for injuries of the kind which the accident had caused. The judge would not be imposing his own opinion and, no matter what his opinion was, he could be trusted faithfully to transmit what he knew from his own experience to be the current level of award. The jury would then be constrained within a certain range in regard to their awards. They would be expected to keep their awards within that certain range of reason. There would be an appeal court to put the jury right if they exceeded what they had been told at either end, whether the award was too low or too high.

Alternatively, although this would be less satisfactory, there would be a basis for a system of appeal other than to the Supreme Court. One cannot exclude Supreme Court appeals except by law and I would not wish to do that here, but we could have a parallel system of appeal, merely on the issue of damage, to a small court consisting of two or three judges who would fit the award inside the acceptable and normal range given by juries for this kind of case. That would increase the predictability of awards and would tend to answer the objections raised by insurance companies which, in this connection, are quite justified.

The Minister adverted delicately to the point that jury trials tend to take longer. I can confirm that from my recollection of the Bar. Counsel dealing with a jury feels he has to labour points, to bring them out with excruciating repetitiveness in order that they will lodge with the jury, in order that a jury of untrained laymen — they are not supposed to be anything else — will grasp something firmly and permanently. Counsel must spend much longer on his feet on examination or cross-examination to get the jury to grasp something that he would not have to do with a judge sitting alone. A judge sitting alone who has been through the mill of the Bar will not require to have the ears bored off him by counsel labouring a point. While the judge will not be rude to counsel he will, by a gesture of impatience, hurry the case up. One cannot do that with a jury and a judge would feel outside his rights if he tried to hasten counsel's behaviour with a jury. If counsel feels it necessary to labour a point he will do so.

Not so deeply hidden, there is, of course, an obvious benefit for counsel because if a case is spun out into a second day which, if heard by a judge sitting alone, might take only one day or half a day, counsel will get an extra fee of perhaps 60 per cent. Fees have gone so much out of the range that was common when I was at the Bar that I would hesitate to put a figure on them, but counsel would get a substantial increase if the case were to stagger into a second day.

I am not saying that that necessarily is an inducement to try to make the case last for a second or third or fourth day, but counsel is cushioned by the expectation of an enhanced fee if the case were to go on longer. I do not say that any counsel would deliberately make that happen because they have got other cases to attend to and as often as not they want to get finished and get out. They would have other cases to deal with before a case went to court at all. I think it is true that cases take longer before a jury than before a judge.

I would regard that, though, as a subordinate element and I do not think I would throw out the jury system merely to take account of it. It would be useful if the Bar looked at their system of multiplicity of counsel. That does not exist in England, but we have not followed the British example and it is quite common for a senior counsel and a couple of juniors to appear on both sides of a very simple, legally speaking, running down action or an ordinary accident case which could very well be disposed of by a single experienced junior on both sides.

The Bar's defence, or explanation, of that has some substance, though it would not appeal very strongly to the public when they see the kind of money involved. The Bar's answer is that because counsel cannot foresee the days on which cases will come on — that is true; one cannot ever foresee when a case will be heard, and even though the trial may have been fixed up to the last moment, some unforeseen circumstance, like the failure of a witness to turn up on either side might mean its adjournment — because of the unpredictability, in chronological terms, of the way in which cases are set in the court list, counsel have to take on three or four cases simultaneously. In theory they cannot possibly do it simultaneously because they cannot be in three or four places at once; but in the ordinary way three or four cases might be settled, one might be adjourned for some reason, and counsel would find himself left with one case. Cases are settled in an unpredictable pattern, and therefore solicitors and insurance companies tend to retain two or three counsel, realising that, even if two of them were called away on some other case, they would have at least one counsel left to do a case.

I am not giving my argument so much as the Bar's as I understand it. If there was to be a system whereby only one counsel could possibly be engaged on either side of a personal injuries case, that counsel would have to undertaken to abandon all other competing work. That would mean that he would clear everything from his desk for, say, the following Monday and Tuesday if he foresaw it would be a two-day case, and send back other work. At the last moment that case might be settled or a witness might not turn up or one of the parties might be ill, and the case would be adjourned, and counsel would not earn anything in that case, his brief fee would have gone and he would have given back his other cases. In order to keep himself busy, counsel has to take on more than he can do, but knowing he is part of a little team of which at least one can be relied on to do a case properly when it gets to court. If he were expected to commit himself irrevocably to handle a case personally whenever it came up, counsel would have to reflect in his fees the fact that in order to do that he has been obliged to send back or refuse other work.

That is not my argument; it is an argument of the Bar, and I recall from my own experience the elements of unpredictability of case lists, and it seems to me to have some substance. Therefore, when insurance companies talk about multiplicity of counsel and so forth they are talking about an Irish system which does not exist in Britain any longer which, to some extent, represents a facility for them; they are obliged to employ a little team rather than a single counsel and they know that at least one man will be there to handle a case. If it were otherwise, they would probably end up with much the same fees but for one man instead of three. Whether that argument is sound or not, it deserves to be ventilated. The profession to which I have the honour to belong, though not in practice, is entitled to have that point made. I do not know what the House will think of it. I feel that the idea that you could save a great deal of money in non-jury actions by reducing the number of counsel is not as obviously correct as it seems.

The only area in which I can see much room for improvement and through which the Minister's legitimate object could be met is by integrating a judge, somehow, in the jury's deliberations in regard to the amount of an award; he could instruct them on the normal contemporary range of awards so that they will not exceed them. The Minister might have made that justified change in the Bill. I am sorry to see the proposal that the entire jury system should be scrapped. I do not think it will produce the benefits which are promised and I am afraid it will produce a crude reduction in jury awards which is not necessarily in consonance with Irish perceptions of justice. I think that on balance we will lose more than we gain. Even if we pass Second Stage of the Bill, I should like the Minister to reconsider it before Committee Stage so that in the remaining Stages he might be able to limit the scope of the Bill in the way I have suggested.

I will make one Committee Stage point in the hope that the Department will consider it before we reach that Stage. Although the object of the section seems to be simple and obvious enough, it would be no harm to say that as a further clause in paragraph (a) of section 1 (1) this new dispensation will apply to actions for the recovery of damages for personal injuries whether the plaintiff claims damages for other than personal injuries. I do not believe any problem will arise in regard to this paragraph, but so that it will be absolutely clear it would be as well to state that the system of non-jury trials would apply to any action in which there was a personal injury dimension, because as the clause stands it may be arguable that if there is any non-personal injury dimension in the claim — for instance, if a person claimed for the destruction of his car — that that would suffice to take it outside the ambit of the Bill and leave the claim with a jury as before. I would not mind that, but I know that is not what the Minister intends, and I wonder if the Department might look at whether a further clause would not be more in keeping with their intentions.

Mr. Enright

This is a very important and serious matter. There are two important facts one must address when considering the Bill. If we abolish juries will their abolition ensure that the existing system will continue to be fair to the injured party? In other words, will we be changing from a system that has been proved to be fair to the injured party, and, if so, will the change result in a reduction in motor insurance premiums? Will the cost of employers' liability be reduced?

From what insurance companies have said, I have doubts that they intend to reduce the cost of motor insurance premiums. Prior to the publication of this Bill we heard continually from representatives of insurance companies that motor insurance would continue to escalate in cost because of the awards made by juries. They hammered home that point regularly but shortly after publication of this Bill it was stated publicly by representatives of the insurance industry that they did not see how abolishing juries would lead to a reduction in the cost of motor car insurance. There was considerable discussion and controversy in the newspapers and on radio and television as to why insurance companies were changing their viewpoint and, as a result of public attention being drawn to the statements made by representatives of the insurance industry, they adopted a somewhat different approach. It appears now that insurance companies are reluctantly conceding that there may be a reduction in the cost of motor insurance premiums.

This morning I tell the Minister for Justice and his advisers that before we enter into Committee Stage or have further discussions on the Bill he should have immediate discussions with the insurance industry and obtain from them a copper-fastened guarantee that they will reduce the cost of premiums. This Bill should not be processed further until the Minister and the Government get that assurance. It is absolutely essential that such a guarantee be obtained and all of us have an obligation to help in this matter.

On occasion there has been a public outcry because of the size of awards made by juries. However, it is on very rare occasions that they have given exorbitant awards — perhaps up to £500,000. It has not been outlined as fully as it might have been by the media that insurance companies have the right of appeal to the Supreme Court. That process can take up to two years and during that time the company concerned has the benefit of the money. In many instances the Supreme Court has stood by the original award but in some cases it has been reduced. Nevertheless, that important safeguard existed and it was used by the insurance companies. That right of appeal will remain.

Now we are proposing to leave the making of an award in the hands of one man. Members of this House will be aware that there is intense criticism levelled against the Judiciary because of variations in sentencing or in awards made by judges. Judges have varied considerably in their decisions with regard to drunk driving cases and even in minor cases. That is a human problem and it is something that must be expected when matters are decided by human beings.

Even when juries are abolished in civil cases, there will still be huge variations in the decisions made by the various judges. I will not mention here the names of judges but if I were acting for a plaintiff, or if I were the plaintiff, there are some judges whom I should like to come before because I know their approach and I know of their active participation in society. I know they understand the importance of medical expenses and other costs incurred by an injured person. Some judges will continue to be generous in their awards, but others will make awards on a much smaller scale. On the morning of a court case when the person involved in the litigation knows the judge before whom he will have to appear, his counsel or solicitor will be able to advise him whether he should accept or reject an offer from the insurance company. It is inevitable that there will continue to be variations in the size of awards as there will be in the decisions made by district justices in many cases. The human factor must be taken into account.

Personally, I regret the passing of the jury system. We are living in a democracy and it is good for the ordinary man in the street to involve himself in politics. It is good for the individual to support the party of his choice, whether it be Fianna Fáil, Fine Gael, Labour, The Progressive Democrats, The Workers' Party and so on, and get involved in elections, because in a healthy democracy people should be involved in the day to day running of the country.

I believe it has been healthy for our judicial system that the ordinary man and woman in the street has been involved in the legal system. At present individuals are asked to do jury service. Sometimes they find it irksome, troublesome and time consuming to have to go to court for two, three or four days and they find it very boring, but not very long ago there were many Irishwomen who were anxious to do jury duty and they fought for that right. I am pleased they were given that right. The point is that the jury system as we know it involves the man in the street in the day to day running of our courts and they see at first hand the legal system in action. Now the ordinary man in the street will not be able to see or to participate in the working of our courts.

Some people say our judges are austere and far removed from reality, but I have found most of our judges to be courteous, helpful and polite to litigants and those who appear before them. Our judges have gone out of their way to be helpful and to put people at their ease. Of course there are exceptions, but in general our judges make a great effort to see that the people coming before them are relaxed. People serving on a jury see the legal system working at first hand and have an opportunity of participating in it. This is good for everybody, but now this right will be removed from our legal system.

The Minister, his officials and the media will have noticed the considerable amount of advertising undertaken by insurance companies to attract new motor insurance business. I believe that if an insurance company go to the trouble of advertising for this business, it is obvious they are making a profit. No sane person will look for business if he is making a loss. That is a fact. It is obvious from the number of advertisements we see regularly in our newspapers that there is money to be made in the motor insurance business.

The Minister has an obligation to ensure that motor insurance premia are reduced. If he is having discussions with the motor insurance industry I want him to raise the subject of motor cycle insurance and particularly insurance for pillion passengers. The cost of motor cycle insurance is prohibitive. I can understand the reluctance of insurance companies to accept the risks because once a motor cyclist is involved in an accident the injuries are horrific. A motor cyclist has no protection if he is involved in an accident and he may suffer from serious head, leg and back injuries. Nevertheless, many young people require transport to and from work. It is important that people who do not have the money to buy a car should be able to afford a motor cycle and to get motor cycle insurance. I ask the Minister to bring this matter to the attention of the insurance companies and to see if a scheme can be devised so that motor cyclists will be able to obtain reasonable insurance cover at a reasonable cost.

I want to discuss pillion passengers now. I am sure the Minister has the necessary statistics, and I am relying on my memory when I say this, but only about 10 per cent of people riding motor cycles have insurance cover for pillion passengers. In other words, nine out of ten pillion passengers are not covered by insurance. A pillion passenger involved in an accident cannot claim against the motor cyclist because normally the cyclist does not have insurance cover for a passenger. Unless the pillion passenger can prove negligence against the other party, if they can even prove one degree of negligence, then they are covered. We cannot allow pillion passengers to be uninsured. I know a young girl in my constituency who received the most horrific injuries — serious leg and back injuries — she is unable to work, her future has been changed as a result of that accident, and yet she did not get one penny compensation. I put it to the Minister that we cannot in this House allow that people who get up on a motor cycle in all good faith and are involved in an accident — the motor cyclist perhaps running into a wall and the passenger sustaining head or back injuries — be left without compensation. This Bill proposes to do away with juries. There is an obligation on the Minister, on the Department, on us as a Government and on everybody in this House to ensure that that drastic situation is changed immediately so that people who travel on motor cycles will be allowed insurance cover for injuries.

I want to pay tribute to the President of the High Court and his predecessor who is now Chief Justice, for an improvement in regard to time. The delay before a case would be heard could be up to two years after it was set down. Through the appointment of additional judges and the improvement of the High Court system that time is now down to ten months. I have seen juries in action over the years, and with reluctance I see their passing from our courts. The jury system was set up centuries ago. It is to be retained in some instances. I believe that in general the jury comprised of 12 ordinary people from every level of society, men and women, has served society and the legal system well. It is with regret that I see this change.

Minister of State at the Department of Tourism, Fisheries and Forestry (Mr. Donnellan)

I want to thank the Deputies who contributed to the debate on Second Stage of the Courts Bill, 1986.

Many points were made. I hope to cover what seem to me to be the main issues raised in the debate so far in these closing remarks. If I do not seem to answer each and every point raised that Deputies regard as important, I hope that an opportunity will arise during Committee Stage to deal with any remaining matters.

I fully accept that the issue raised by the proposal in the Bill — the question of the abolition of civil juries in the High Court in personal injuries cases — is a controversial one that arouses deep feelings and divergences of opinion among any group of people considering the matter. That has been evident from this debate also. No one would have expected to find a unanimity of views on the matter among Deputies.

However, I must confess to being somewhat taken aback by the opposition expressed by the main Opposition party to the proposal in the Bill. Deputy Woods said that his party had considered the matter at length and had taken full account of the views expressed by the various groups who have been campaigning for and against the proposal, but as recently as 29 April his party's Front Bench spokesman on insurance matters, Deputy Flynn, was criticising the Minister for Justice for not proceeding with this legislation. That was during the debate in the House on a Private Member's Motion on the subject of motor insurance, when he referred to the fact that our personal injury awards are the highest in Europe, inflicting:

...crippling losses of up to £100 million in the general insurance area... Those, together with high legel fees, contribute to equally high levels of insurance dodging and to high premiums for those who pay.

The Deputy's remarks are contained in the Official Report, volume 365, columns 2060 to 2062.

It is surely no coincidence that Ireland is the only country in Europe where the jury system operates for deciding personal injury cases. In Scotland, although civil juries remain available in the Court of Session, which is roughly similar to our High Court, they have gradually dwindled away to almost nothing because parties apparently no longer ask for them due, it is suggested, to generous awards made by judges. In the case of Northern Ireland the most recent consideration of the issue of jury trial by the Pearson Commission in 1978 yielded no recommendation one way or the other. But it is clear that, in deciding not to recommend the abolition of civil jury trial at that time, the commission were influenced by the importance attached by lawyers in Northern Ireland to consistency with practice in their jurisdiction.

In the same debate in April another Opposition member, Deputy Fahey, was equally explicit. He said, I quote: "There is no question or doubt in my mind but that the jury system is a significant contributor to the high cost of motor insurance". He promised that under a future Fianna Fáil Government jury trials in civil actions will be discontinued and accused the Government of not having the backbone to bring in this legislation because, he alleged, of opposition from a lawyers' lobby. There were other criticisms of the jury award system from other Opposition Deputies during that debate. These remarks are contained in the Official Report, volume 365, columns 2296 to 2238.

As I see it, Deputy Woods is opposed to the measure for two main reasons. First, he believes that the standards of the ordinary citizen are the best to apply in deciding personal injury cases and are superior to the standards that would be applied by members of the legal profession, including our judges, in deciding these cases without a jury.

Secondly, he believes that the elimination of civil juries will not produce any savings to the public who pay insurance premiums, and that savings can be achieved only by adopting various recomendations advocated by the MacLiam Committee in their report to the Minister for Industry and Commerce in 1982; by taking certain measures to reduce legal costs, and by greater law enforcement and accident prevention measures. He apparently accepts the need for reform of the jury system, but only to the extent recommended by the MacLiam Committee, which was to empower judges — but not counsel — to indicate a going rate for general damages in personal injury cases to the jury but leaving the decision on general damages still in the jury's hands. I have to disagree with the Deputy on both counts.

I do not think there is such a thing as a standard for compensation for injuries which the ordinary citizen has and which may be ascertained in the context of a personal injury case by consulting 12 people on a jury. In truth there are many different standards varying from one citizen to the next and, of more significance in conection with the present debate, varying from one jury to the next.

Dr. Woods

And varying from one judge to another.

Mr. Donnellan

Possibly. Indeed, it varies a good deal. It varies so much even in the Deputy's party and possibly people on this side of the House cannot agree fully on it.

Dr. Woods

But 29 April was before the parliamentary party decided——

Mr. Donnellan

All the evidence goes to show that the civil jury system provides awards which can be remarkably unpredictable, varying widely between cases where the circumstances are comparable. This is what the MacLiam Committee accepted. They agreed that widely different awards, where the circumstances were comparable, were inconsistent with fairness, and concluded that it would be conducive to the proper management of motor insurance if a greater degree of consistency could be achieved in the assessment of damages, bearing in mind the overriding requirement of doing justice between the parties.

This propensity towards inconsistent and unpredictable awards is an inherent fault in the jury system of assessment of damages, which involves thousands of people every year in a once-off task of putting a financial value on injuries and in deciding issues of fault as between the parties in personal injuries cases.

The problem for juries is compounded by the fact that some of the matters to be decided are entirely subjective, such as the assessment of general damages for pain and suffering and loss of amenities. In these circumstances I believe that it is unreal to talk about the standard of the ordinary individual for deciding the issues that arise in the personal injury case. Indeed, the only attempt to introduce a standard or guideline in assessing general damages has come from the Judiciary in the form of the rough limit of £150,000 suggested by the Supreme Court to apply in very serious injury cases.

Although Deputy Skelly was critical of this limit, I am not aware that anyone else has seriously criticised the judges as having set an unreasonable standard that is out of line with ordinary standards. I am aware that this particular amount is quite generous by comparison with the maximum awards for general damages in Britain. Deputies may be interested to know that in the USA excessive awards by juries of compensation for non-economic damages, such as general damages for pain and suffering and loss of amenities, are greatly worrying legislators there and have led to various proposals that are currently before the US Legislature for tort reform, including a proposal from the Reagan administration to introduce a limit of $100,000 on jury awards for all non-economic loss, in personal injuries cases arising in the area of product liability.

Dr. Woods

On a point of order, is the Minister of State delivering this speech on behalf of the Minister for Justice? Deputy Donnellan is Minister of State at the Department of Tourism, Fisheries and Forestry. Is the Minister of State at the Department of Justice not available to deliver this speech? Is the Minister of State delivering the speech on behalf of the Minister for Tourism, Fisheries and Forestry? Does the Minister for Justice not think it is important to come into the House to reply to a debate of such major importance where the rights of citizens are very seriously affected by the removal of the right to trial by jury? This is the conclusion of a major debate which has gone on for some time and where points have been made on both sides of the House against this measure. Does the Minister not think it worthwhile to come into the House, when such a right is being abolished, to reply to the debate?

An Leas-Cheann Comhairle

I cannot compel the Minister or the Minister of State to reply to the debate. Minister Donnellan indicated that he would conclude the debate on behalf of the Minister.

Dr. Woods

I accept that the Minister reads very well, although I would be happier if he did so more audibly. However, it is scandalous that neither the Minister nor the Minister of State are here to speak at the conclusion of a major debate in which a genuine civil right——

An Leas-Cheann Comhairle

That is not a point of order. I accept what you are saying, but I have no control over the situation. As I have said, Minister Donnellan indicated that he would conclude the debate on behalf of the Minister.

Dr. Woods

The usual position is that the Minister of State would be available in those circumstances. Surely the Department of Justice should be represented when such an important matter is being concluded? I have no argument with the Chair but I wish to highlight the fact that it is scandalous. It shows a total and utter disregard for the importance of the House and the work which goes on in it.

Mr. Briscoe

In my 21 years here I am not aware that this has ever happened.

Mr. Donnellan

I think it happened yesterday.

An Leas-Cheann Comhairle

Continue, Minister.

Mr. Donnellan

There was a debate yesterday to which the Minister in question did not reply.

An Leas-Cheann Comhairle

Please continue your speech, Minister.

Dr. Woods

This morning members of the Minister's party appealed to the Minister to withdraw this Bill and to consider the matter further. The Minister is not even here to consider the appeals from his own side of the House to withdraw the Bill until the matter is considered in greater depth.

An Leas-Cheann Comhairle

Please continue, Minister.

Mr. Donnellan

This leads to another point. The standards of the Judiciary are those that already prevail, ultimately, in deciding personal injury cases. This is because all High Court jury decisions are appealable to the Supreme Court, and that court consists of judges sitting without juries. The Supreme Court have become quite active in this area and have been prepared to substitute their own assessment of damages for that of a jury in an appeal or quantum to an increasing extent in personal injury cases. The court confirmed their constitutional right to do so in a recent case.

I cannot accept the point made by some Deputies that the standards that judges will apply in evaluating injuries will be seriously out of line with other standards in the community, due to their alleged elitist social background. The fact is that judges all come from within the ranks of the Senior Bar, whose members are continuously involved in evaluating injuries in personal injuries cases, and in settling about 95 per cent of cases where proceedings are instituted, based on such valuations.

Dr. Woods

Has the Minister asked members of the Judiciary to give their views in relation to the question of whether they would prefer to have juries?

Mr. Donnellan

I am sure that on Committee Stage the Deputy will have an opportunity to raise these matters.

Mr. Briscoe

We will not be allowed to as no section deals with this matter.

Mr. Donnellan

I am sure the Deputy's ingenuity will ensure that he will raise it on some other section.

There is experience already with the assessment of damages without a jury in a large number of serious personal injuries cases. That is in the operation of the Stardust Victims' Compensation Tribunal currently sitting. That tribunal, consisting of a judge and two lawyers, have already dealt with about 400 cases, and a further influx of cases is expected before the extended closing date for submission of cases expires. I understand it can be said that there is general satisfaction among injured parties and their lawyers with the way in which their cases have been dealt with and the level of compensation granted, which have included awards up to about £200,000. Also, awards are decided by lawyers acting alone on the Criminal Injuries Compensation Tribunal which has dealt with over 3,000 cases since it commenced operation in 1974. Individual awards made by the tribunal have exceeded £300,000.

It may be expected that under the new arrangements proposed in the Bill the Judiciary will quickly develop a range of standards or guidelines in relation to quantum for damages. Such a development would contribute to greater consistency and predictability of awards. The value of such a development is likely to be considerable in relation to stability in the insurance market. Deputy Woods made the point that as only a very small percentage of personal injuries cases actually go to trial the savings that could result from the abolition of juries would not, therefore, be significant. But this conceals the fact that there has been considerable growth in the number of jury actions in the High Court in recent years. Statistics published in the Comprehensive Public Expenditure Programmes, 1985, show that between 1978 and 1984 the number of jury actions disposed of in the High Court increased from 1,550 to 5,650. While separate figures are not available for personal injuries cases, the overwhelming majority of jury cases — well over 90 per cent — are in that category.

Also, it should be borne in mind that the implications of having very excessive awards given by a jury in even a small number of cases can have the most serious and wide-ranging effects over a whole range of insurance premiums. The matter is put, rather succinctly I think, in the following extract which I would like to quote from a recent article in Time magazine, which reported on the crisis that has arisen in the area of liability insurance in the USA.

If a few giant jury awards, actual or merely possible, can offset the premiums on an entire line of insurance, the companies feel they must raise premiums for everybody until there is some hope of making a profit. This means that premiums may bear no relationship to an individual policyholder's record, and buyers of many kinds of insurance are suddenly paying three or four times as much as they did a year or so earlier.

The serious implications of unpredictable verdicts by juries extend beyond the area of quantum of damages. In relation to such important issues as the issue of contributory negligence, for example, juries may vary considerably in regard to the degree of contributory negligence that will be attributed to a plaintiff for failing to wear a safety belt in a motor vehicle. I understand that some juries have taken the view that a degree of fault of 2 per cent should be attributed to the plaintiff, while others have assessed the degree of contributory negligence as 20 per cent or more. Such variations in the outlook of different juries can have very substantial influence on the actual damages that a plaintiff will be awarded in one case compared with another.

Finally, as various commentators have remarked, to an increasing extent more sophisticated and technical matters have to be decided nowadays in personal injury cases. These are matters which call for an increasingly high level of comprehension and intellectual capacity. For example, questions relating to the proper allowance to be made for future inflation, what discount rates to apply in calculating the present value of future costs or losses, what contingency or risk probabilities should be used to allow for the vagaries of employment, redundancy, illness or early demise.

Actuarial evidence, which is frequently adduced in such cases, is no doubt a help; but the Supreme Court has made it clear that such evidence is only a guideline, so that a range of decisions may have to be taken by juries and they are becoming increasingly complex and difficult in many personal injury cases.

In saying all this I do not intend to denigrate in any way the contribution which many citizens have made, as jurors, to the administration of justice. What I am saying is that the Government believe that there is a better way to decide personal injury cases and that the time has come to adopt new arrangements more suited to present needs and circumstances.

Deputy Woods and some other Deputies accepted that some reform is needed in the present jury system and suggested that the recommendation of the MacLiam Committee that I have referred to already should be implemented. As the Minister indicated in his opening speech, the Government did consider this option but rejected it. Briefly, the reasons for this were that it would be difficult to estimate the effect, if any, that such a change would have on the level or consistency of jury awards, mainly due to the discretion that would apply both as regards the judge and the jury. It could be difficult for a judge to know what the going range for damages in relation to different injuries actually was at any time. And, if a judge were permitted to mention a figure to the jury, it might be the cause of many appeals on the grounds that he had given the jury the wrong information, or that the figures he used were out of date or represented totally different types of cases. Also, it is clear that there could be a great deal of argument about what was a comparable case and there would be wide scope for appeals on that issue too. There could also be serious objections to empowering a trial judge, but not counsel for either party, to suggest a figure to the jury. In fact, even if counsel were forbidden to suggest a figure to the jury, it would be extremely difficult to defend a situation where, if the judge had that role, counsel would be forbidden to address the judge on the subject in the jury's absence.

Most of the judges of the Superior Courts who were consulted by the Minister's predecessor, and who commented on this matter, indicated that they did not favour this recommendation. Some judges thought the idea unworkable in practice. Insurers believe that the implementation of the MacLiam Committee recommendation would not constitute any real change in the present system or reduce legal costs.

Also it is relevant to point out that the MacLiam Committee reported in 1982 before the recent debate on the jury issue came to the fore, after the intervention of the Supreme Court in 1983 and 1984 to restore reality into the assessment of damages, following some very high awards in personal injuries cases, which had received considerable publicity.

Deputy Woods quoted with approval the words of Justice Douglas of the US Supreme Court in support of the role of juries. I wonder would he repeat these sentiments today? By all accounts a national crisis exists in the US at present in relation to liability insurance, so much so that President Reagan has placed the subject of civil liability reform on his legislative agenda. Six liability reform Bills are reported to be before the US Congress at present and every State Legislature sitting this year is considering some measure of liability reform. Excessive jury awards are among the reasons advanced for the present crisis. Many instances are quoted, none more dramatic perhaps than the reported award of £3.5 million punitive damages to a couple who sued an insurance company for wrongfully refusing to pay a hospital bill of £1,650.

Coming on to the reasons advanced by Deputy Woods for not supporting the Bill, I have to say that he is wrong to imply that we do not expect that benefits will arise for the insuring public from the abolition of juries. In their most comprehensive statement on the issue, made since the debate commenced in the House, the Irish Insurance Federation said that the abolition of juries will produce savings of the order of 25 per cent in legal costs, which have a major hearing on their total claims costs and that these savings will have a direct and positive effect on premium levels. On the question of reduced premiums they said:

The industry has been reluctant to create false hopes or expectations of an immediate reduction in premium levels because it recognises that many of the existing cases in the pipe line would continue to have the option of jury trial. However, it is incorrect and blatantly misleading to suggest that because premiums will not reduce overnight no benefits will accrue to policyholders. It must be remembered that over the past 3 to 4 years premium rates for motor insurance have increased annually by an average of 20 per cent. Premium rates for employers and public liability insurance have increased by much higher percentages. Consequently, the stabilisation of premiums at their current levels or a reduction in the rate of increase that otherwise would have been applied, will represent a significant real saving for policyholders.

Deputy Woods advocated that certain changes should be made in the operation of the legal system and arrangements for hearing personal injury cases aimed at reducing legal, medical and expert witness costs.

Dr. Woods

Could I point out that this last piece which the Minister has read out is merely giving the view of the insurance industry? Is this why the Minister for Justice does not want to come to the House to give us his own view?

An Leas-Cheann Comhairle

Deputy Woods, at the conclusion of his Second Stage contribution you could ask the Minister that.

Mr. Donnellan

Deputy Woods suggested a doubling of the jurisdiction of the Circuit Court to allow more cases to be dealt with in that court, which sits without a jury, and urged greater law enforcement to eliminate the cost of uninsured driving, reduce motor accidents and accidents in the workplace. He made a case for introducing a system of periodic and provisional payments to equate compensation for personal injuries more closely to needs. He also advocated a review of the social welfare code as it applies to compensation for personal injuries. The Deputy believes that such reforms, if implemented, will reduce insurance costs and he has put them forward instead of the proposal in the Bill, which he believes will not affect insurance costs.

I would not disagree about the need for reforms in the area of legal costs and in the wider operation of the legal system as it applies to personal injuries cases. Various Deputies, including Deputy Allen and Deputy Yates, in their contributions laid particular emphasis on these matters. But these are further measures which need to be looked at after the most important single reform in this area has been introduced, that is, the abolition of the civil jury system for deciding personal injury cases. That is the first necessary step in our view. The question of a major "root and branch" reform of our whole civil litigation system, which some Deputies have called for, is obviously a matter for separate consideration.

The next thing that should be said is that the replacement of civil juries by a system of judges sitting alone should help to secure some of the reforms that have been advocated in the legal system during this debate and that, by itself, should provide Deputies who are opposed to the proposed measure, with sufficient grounds for supporting it.

For example, it is accepted by almost everyone who has considered the matter that there will be substantial reductions in the length of trials before a judge sitting alone. This should produce some savings in legal costs. The insurers expect so, too. But more important, with less functions to perform for counsel in the absence of juries, the case for multiple representation of counsel is weakened. Much has been said about the so-called three counsel rule. Apologists for lawyers frequently blame the listing system in the High Court for the need to brief two senior counsel in a High Court case so that one senior can be sure to be available to take the case, but I cannot accept that the matter is as simple as that.

It seems to me that the uncertainties that exist in relation to the availability of counsel have much more to do with the high incidence of late settlements in personal injury cases and the restrictive practices operated by the Bar, rather than with the present listing system for cases. The practice of settling so many cases after lists have been called over and finalised seems to make a nonsense of planning the hearing of cases. I am not against settling cases but have to seriously question the necessity of waiting until so many cases are literally ready to go on before serious attempts are made to settle.

The Joint Committee on Small Businesses have made a recommendation aimed at reducing the incidence of settlements "on the steps" and I am having the matter examined as quickly as possible. I am aware that the question of restrictive practices in the legal professions——

Dr. Woods

May I take it that the piece in the Minister's script which is omitted begins:

From figures I have already quoted it can be seen that there has been an almost four-fold increase in the number of civil jury trials, heard in the High Court between 1978 and 1984.

Mr. Donnellan

The Deputy is reading the whole lot.

Dr. Woods

I just want to be clear about the part that is to be omitted.

An Leas-Cheann Comhairle

Deputy Woods, please.

Dr. Woods

The piece omitted continues:

Examination of the list of subscribers to the Law Library published in the annual Law Directories shows that the number of practising barristers increased from 382 to 501 during the same period — an increase of less than one-third. The number of senior counsel increased from 70 to 96 in that period.

An Leas-Cheann Comhairle

Deputy Woods, at the end of the Minister's contribution I shall let you speak.

Dr. Woods

The piece continues;

Clearly if, in the monopoly situation that the Bar enjoy in regard to the supply of the services of counsel, these services do not expand to meet the increase in the demand for services, then problems are bound to arise about the free availability of those services.

An Leas-Cheann Comhairle

Deputy Woods, please.

Mr. Donnellan

I am aware that the question of restrictive practices in the leagal professions——

An Leas-Cheann Comhairle

Deputy and Minister, I cannot listen to the two of you at the same time.

Dr. Woods

The omitted portion continues:

If in that situation some counsel take on unlimited commitments without regard to their likely availability to appear when the cases in which they have been briefed come to trial, then naturally they may not be able to appear, and find they are frequently faced with clashes of commitments.

An Leas-Cheann Comhairle

Deputy Woods, would you resume your seat? As I told you already, you can raise these questions when the Minister has concluded his Second Stage contribution. I ask you for your co-operation in the matter.

Dr. Woods

Certainly.

An Leas-Cheann Comhairle

Could you resume your seat, please?

Dr. Woods

I presume it is that piece the Minister is omitting.

An Leas-Cheann Comhairle

I am trying to make it clear to you, Deputy, that you can put your questions to the Chair but at the conclusion of the Minister's speech, not until then. If you continue along that line, you are being disorderly and it is not in your usual pattern to be disorderly.

Dr. Woods

I just wanted to ask for clarification.

An Leas-Cheann Comhairle

I am quite sure that you are very clear.

Dr. Woods

The piece ends with:

In so far as unforeseen difficulties may arise in some cases for counsel where cases take longer than expected to hear, the benefits of shorter trials expected under the new arrangements proposed will be of obvious assistance.

An Leas-Cheann Comhairle

Deputy Woods, for the last time I am asking you to resume your seat. As spokesman for the main Opposition party you are being asked to resume your seat.

Dr. Woods

Certainly. It is clear now.

An Leas-Cheann Comhairle

If it is clear to you now, would you allow the Minister to speak?

Mr. Briscoe

Why is this script circulated?

An Leas-Cheann Comhairle

Deputy Briscoe, please.

Mr. Donnellan

I thank the Leas-Cheann Comhairle for his protection. I certainly could not manage without it.

Mr. Briscoe

The Minister never needs protection.

Mr. Donnellan

I should love to get into this argument and do my thing, as well. I am aware that the question of restrictive practices in the legal professions is at present under consideration by the Restrictive Practices Commission in connection with their general examination of restrictive practices in the professions. I expect that the operation of the so-called three counsel or two senior rule will receive attention from the Commission in this regard. Deputy Yates and other Deputies expressed strong views about this matter and I am aware that the Joint Committee on Small Businesses have recommended that the three counsel rule should be terminated voluntarily by the Bar Council and, failing that, that legislation should be introduced to deal with the matter. The Minister already said in his opening speech that the need for multiple representation of lawyers in personal injury cases will be looked at critically in the context of the new arrangements. I am sure the abolition of juries will affect the position positively and reduce the need, if indeed there is any justifiable need at all, to brief so many counsel in High Court cases.

On the point about increasing the jurisdiction of the Circuit Court, the last increase in the jurisdiction of the lower courts was effected in 1982, under the provisions of the Courts Act, 1981. That relatively recent increase — the previous one was in 1971 — effected a more than seven-fold increase in the jurisdiction of the Circuit Court — from £2,000 to £15,000. It provided for a substantial real increase beyond what would have been justified by reference to inflation alone. In these circumstances it would be difficult to justify a further review of the jurisdiction of the Circuit Court now. In England the jurisdiction of the County Courts is only £5,000.

Dr. Woods

Is it intended to have the Minister here later?

Debate adjourned.

Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.