On behalf of The Workers' Party I formally move our amendment. Our amendment No. 1 to the Minister's amendment No. 1 reads:
In subsection (3), third line, to delete "consist only of", and substitute: "comprises in whole or in part of a claim for".
This amendment deals with the paragraph in the Minister's amendment in respect of claims for damages which arise out of false imprisonment or intentional trespass to the person. The wording of the Minister's amendment is that the claim should consist only of damages, whereas we are proposing that the words "consist only of" be deleted and be substituted by the words "comprises in whole or in part of a claim for". The reason for our amendment is that the small percentage of the writs issued and litigated before the court, but which are ultimately dealt with by way of hearing, often involve a multiplicity of claims and the wording of the Bill from the Minister's point of view is much too restrictive. He suggests that the restrictive wording of the section arises out of a desire to avoid the multiplicity of claims in a writ so as to bring the ordinary car accident or other type of incident before a jury. I anticipate that that will be the case in any event, that there will be skilful drafting of writs in areas other than those covered arising out of general accidents whether they happen on the road, in the workplace or at or in property. I anticipate them being drafted in a way which would allow action be taken by jury at the election of the relevant lawyers or litigant. I do not anticipate lawyers giving in very readily to the provisions of this Bill. I anticipate that henceforth the ingenuity of our lawyers will be such as to get around the specific provisions of this Bill.
The second amendment to amendment No. 1 proposed by The Workers' Party is in regard to the date of commencement of this Act. The Minister contends that this must take place as and from 1 August next. If our amendment is conceded he anticipates that jury action would continue for perhaps four years. I believe he is absolutely wrong about that. Even if it were to happen, would it not be much better that there be a phased approach to this rather than the absolute deadline suggested? In any event will we not be calling in jurors around the country for the purpose of hearing other allied actions, other types of actions, that would be entitled to juries as of right? That is a point that has been missed absolutely in the course of this debate. It will be incumbent on the registrars of the High Court, wherever it sits, to assemble jurors and juries for every sitting. For example, who is to know what action might arise within the term of that court sitting that would be entitled to a jury trial, say, in cases of defamation of character, false imprisonment, personal accident and so on.
It will be seen that the working of this provision would present no pragmatic difficulty, recognising that the most important stage in litigation is when the decision is taken to issue the writ. So many writs are currently in existence which have been issued on the basis of a decision taken by a litigant at the time, that it should be remembered that ultimately such a litigant will have the possibility of a trial by jury. It is very unfair and grossly wrong for Government to intervene in the proceeding in being and say: we are now taking away a feature of the decision on which you initially launched your proceedings. There is no doubt that many proceedings and cases are launched on the basis that a litigant will have the opportunity of a trial by jury, the benefit of having his or her case argued in front of his or her peers.
We suggest that this be approached in a phased manner. I have not heard any rejection on the part of the Minister of the percentage figure presented, that 0.2 per cent of all personal accident cases end up at hearing, so that one will realise we are talking about a miniscule number of actions requiring recourse to the facility of a jury hearing should this amendment be acceded to. Nonetheless it constitutes a recognition of the rights, the factors obtaining at the time a litigant started proceedings, ensuring that those same conditions would obtain at the end.
As has been pointed out, the third amendment in the name of The Workers' Party is consequential on the second, in that it involves the deletion of subsection (6).
I have found the Minister's response to each one of the amendments exceptionally disappointing. With the Minister coming in advocating a complete and utter change of heart on the part of the Government on the principles involved, one might have expected some concession by the same Government with regard to some of the more practical approaches being advocated by Deputies in the course of the debate.
I want to address some of the more general points surrounding the Minister's amendment, that is the need to abolish juries in the first place. The single, greatest point advocated by the proponents of the abolition of the jury system in civil actions is that, in time, it will lead to a reduction in litigants' costs and, on the other, in the amount of the premium to be paid by persons seeking insurance cover.
In regard to legal costs, Professor Bryan McMahon, in his booklet entitledJudge or Jury? published in 1985, in anticipation of this debate said:
The jury trial of itself, i.e. the actual hearing, is not a really significant cost factor in causing high premiums. Very few cases actually go to trial. The shadow which the trial casts on the settlement arena, however, while difficult to fully assess, is a significant factor.
In a footnote to that passage Professor McMahon indicated that it is estimated that 0.2 per cent only of all cases set down for hearing ever end up being heard. Many practitioners who know the workings of the courts also appreciate that cases that even commence at hearing rarely, if ever, see the end of the full deliberations. Settlements are achieved within the first half hour, hour or two hours of hearings, often, if not invariably, before the first day of the hearing is over.
The first point to be made is that the convening of a jury, embarking on a jury hearing, does not add substantially to the cost of litigation. The fees are regulated on the basis of a one-day hearing — known as a brief fee — without consideration being given to whether or not the case is settled on the door of the court or is embarked on in a hearing before the jury.
In regard to insurance premiums, whether one accepts the argument advanced that jurors and juries lead to increased costs on the basis of irregular or excessive awards, there was not one piece of convincing evidence in anything the Minister said to indicate that the abolition of the jury,per se, would, in turn, reflect a reduction in premiums being sought by insurance companies.
The point has been made here that in no way do Government control the levels at which insurance premiums are fixed. If we have been talking in terms of reductions in premiums in recent years such discussion has not taken place in anticipation of anything contained in this Bill. Rather it has taken place because of increased competition. We should recognise the fact that for instance, the PMPA have got back on their financial feet. It is remarkable that they have done so, that they have wiped out a deficit in excess of £53 million by increased efficiency, competitiveness in the market-place, without one day of juries having been abolished. They did not need the abolition of the jury system to put their house in order, to get back into good, productive competition. The Government cannot regulate or control premium levels within the insurance companies. Indeed, there has been no indication, beyond promises, that the insurance companies would respond. The example has been cited of the 10 per cent reductions in premiums being levied on young drivers. All of us have known over the years that the actual level of premium charged by insurance companies to young drivers was ridiculous, outrageous, way over the limit. Therefore, it will be seen that the insurance companies are merely reducing their excessive margin of profit derived from the pockets of such young drivers; they have been doing nothing more than responding to community pressure. That did not take place on account of the provisions of this Bill. Rather did it come about because of the demonstrations, drives through the city, by young drivers on their motor cycles and the pressure of representations from politicians directly to the industry. The insurance companies realised they could not get away with the daylight robbery they had carried out on young drivers over a number of years.
I want to say to the Minister that neither he, the Government nor anyone who has changed their minds on the matter since 1986 has made a case on why we should do without juries today. In fact, I would argue in the opposite direction. The Minister highlighted a number of facts which developed in the interim period and which he said changed the horizon and the scenario and make it easy for him and the Government to change their minds. He indicated that there is a court officers' Bill at an advanced stage of drafting. One has to ask when that will see the light of day.
It is interesting that the Minister's speech in 1986 did not mention pre-trial procedures as a matter of concern but that they are mentioned today. There was a time when there were excessive delays in the listing of cases but it has to be recognised that actions, particularly in the High Court, now move at an exceptionally rapid pace. There is no inordinate delay in getting to hearing on a civil action in the High Court in a list waiting for jury hearing. In fact, if anything, practitioners are attempting to slow up and delay the setting down of actions because it takes so much time to investigate an injury or accident that lawyers are simply not geared to moving as quickly as the lists of the High Court demand them to move once an action is set down.
The book of quantum damages has been referred to. I cannot for one moment see how that will affect decisions on the level of damages any more than the decisions of the Supreme Court which were made in the period 1983-85 have had where the Supreme Court laid down very strong guidelines to the lower courts on how to deal with the level of general damages to be awarded in accident cases.
The Barrington Commission which dealt with procedures and safety at work was referred to. The roadside surveys — and I think the Minister told us that the last survey was carried out in 1985 — indicated that then there was a 15 per cent evasion rate. That has now been reduced to between 6 and 8 per cent. This is a significant development.
All of these aspects, if they have an impact to make on the issue, go towards the argument that what we should have had here today was a Second Stage debate so that all of these points could have been investigated and debated because all of them impinge on the principle of whether it is right to abolish juries in civil actions. They go nowhere in justifying a decision made without explanation as to why the Government should change their minds on this matter. The only point I can decipher from what the Minister for Social Welfare, Deputy Woods, has said is that promises have been made that premia will come down, that such promises were received by the Minister for Industry and Commerce sometime in the recent past and that there have been decipherable trends of downward movement in premium levels. Those promises are not worth the paper they are written on and I suggest that the downward trend is due to factors other than, and substantially other than, the legislation we are now dealing with. I say to the Minister that he has not made any case which would warrant his massive change of heart on the issue. If all these factors impinge on it the least we should have done was embark on a Second Stage debate on the matter.
The point has to be made that there is no public demand for the abolition of juries. The only demand for their abolition has come from within the insurance industry itself. They have their own reasons for this but they have not fully explained or outlined them. I do not believe those reasons stand up to any criticism. The point has to be made that of the overall level of claims levelled against insurance companies, only 4 per cent arise from actions taken by way of litigation in our courts for personal injury. A very small percentage of the overall level of claims made against insurance companies start from claims originated in litigation and only 0.2 per cent of them ever threaten the doors of the High Court looking for a hearing before a jury.
The juries are an essential part of the democratic process and of the democratisation of the law. That is a fact that cannot be overlooked. They are a means of giving the public and the community an opportunity of being involved and having a say in the running of our courts and the administration of justice. I believe that that democratic feature is recognised by the exceptions written into the Bill and by the amendment from the Government, the exceptions in the area of a personal injury arising from a personal attack and false imprisonment. I would love to know why the Government think it is important to have a jury in those cases but not to have a jury decide who was the cause of an accident either at work, on the road or wherever. Juries provide a safeguard. They are rarely sought in civil actions as a means of remedying an issue but they are incredibly important in terms of their being there and of a litigant knowing they are there and available to him or her should he or she be dissatisfied with what has been negotiated or settled on their behalf. They are a means of bringing the public into contact with the processes of the court and what goes on there.
In that context I want to take the opportunity of referring to the unbelievable intervention of Deputy O'Malley this morning when he sought to cast insult on young people in particular who have come forward in huge numbers to assist the jury system in our civil and criminal courts. The point has to be made that no court officers' association, none of the legal professions and indeed, looking at the survey of Professor McMahon, none of the judges who work in the courts demand that juries be abolished, sent home or done away with. I have to make the point again, because it is overlooked, that we are not relieving the courts of the necessity of having jurors attend and be available for the hearing of actions, be it in the High Court in Dublin or wherever, because there are many other actions running in the lists any day of the week that may or could require the presence of a jury. I have found among the hundreds of thousands of people who come into our courts to attend hearings that, irrespective of their age, there is a huge enthusiasm for getting involved. I have spoken primarily to people on the criminal side who have come out from jurors rooms and I have heard some of the greatest sense being applied to the decisions of the court cases taken. I have listened to the inconsistencies and the level of debate in this House today, primarily from lawyers. Perhaps we should be giving some serious consideration to the abolition of the legal professions rather than of juries when it comes to political debate. What Deputy O'Malley says must be corrected by at least some of his colleagues in his party, and some of those members in his party who are much younger than he. I would address Deputy Colley, recently appointed to the Front Bench of the party——