Amendment No. 1 is in the name of the Minister. I observe that the amendments to this amendment in the name of The Workers' Party are related. I suggest, therefore, that the Minister's amendment together with amendments Nos. 1, 2 and 3 to it be taken together, with separate decisions if required.
Courts Bill, 1986: Committee Stage.
NEW SECTION
May I, Sir, draw your attention to amendment No. 4 to amendment No. 1 and suggest that that be taken also as it is an amendment to this amendment?
Amendment No.4 to amendment No. 1 in the names of Deputy Colley and Deputy Desmond O'Malley are deemed out of order as they are outside the scope of the Bill. Deputy O'Malley can make his point on the amendments before us but his amendment proper is out of order.
That may be subject to reconsideration now.
The Deputy brought the matter to my attention. I had it further examined and I merely confirm my ruling that it is out of order. We are dealing with the Minister's amendment and the acceptance of taking with it amendments to the Minister's amendment. I refer to amendments Nos. 1, 2 and 3.
On a point of order, I wish to make a submission that amendment No. 1 in the name of the Minister is out of order because it is in conflict with the principle of the Bill. The reason I make the submission is that the Bill as adopted by the House——
Perhaps the Deputy can make that point when discussing the amendment.
No, I am making the point that it is out of order.
As far as the Chair is concerned, it is in order.
I am making the submission that it is out of order——
We must first get down to discussing the amendment——
I rose on a point of order.
Yes, I heard the point of order that the Minister's amendment is out of order but I do not accept that. I pointed out to the Deputy that he must put his point of view on the amendments to be discussed.
It is a little difficult to know how you can say that my point is not acceptable when I have not yet made it.
I heard the Deputy's point of view.
I have not made the submission yet. I merely said that it was out of order and I was about to give the reasons when you interrupted me.
That is correct.
I am entitled to make a point of order.
I heard the point of order.
I have not made it yet.
I would be interested to hear why Deputy Taylor thinks the amendment is out of order.
May I make a point of order?
We cannot have a speech and this is all highly irregular when dealing with Committee Stage of a Bill.
I put down amendments, on which you ruled, and I accept your ruling that they were out of order because they were in conflict with the principle of the Bill. However, I want to make a submission as to why the Minister's amendment is out of order——
Will you please allow the amendment to be put so that it can be discussed properly?
No, because I submit that it is out of order.
I have said that the amendment is on the floor of the House for discussion.
I submit that it is out of order and you will not let me give the reasons.
I cannot allow a speech on this.
You are comparable to a judge who purports to give a decision before he has heard the representations.
The Deputy will have ample opportunity to ventilate his grievances on this amendment during the discussion.
With respect, the discussions on Committee Stage will deal with the merits of the amendment proposed by the Minister. I am not talking about the merits or demerits of his amendment — I will certainly deal with it if it is in order but I want to give the grounds for my submission that the amendment is out of order.
I am sorry, that is irregular.
It is irregular to make a submission?
I deem the Minister's amendment to be in order. If the Deputy has any submission in that regard he may make it when the Minister moves his amendment. I cannot allow him to make a speech at this juncture.
I do not want to make a speech, I want to make a submission——
I have given the Deputy every opportunity——
You have not given me any opportunity to give my reasons. Deputy Cooney is interested to hear what I have to say and I thought you would have been interested.
The Deputy will have ample time to make his point.
On a point of order, I understood you to indicate to Deputy Taylor that if he believes this amendment is out of order he should put that argument in the course of the debate on it. If he makes his points and we are convinced of their merit, what will the position be because at that stage we will have been debating an amendment which will be found to be out of order? Will it then be withdrawn? What will happen?
We will have to await the outcome.
That is hardly convincing.
I will not enter into an argument on the merits of the amendment. As far as I am concerned, it is in order and I am asking the Minister to formally move it. Deputy Taylor will please desist. He is preventing Committee Stage from proceeding.
I want to make a submission that the amendment is out of order but you are refusing to allow me to do so.
I have heard the Deputy.
We have already wasted five minutes.
Surely you will allow me to make my point?
The Deputy had adequate time to make it.
I have not been given an opportunity to make it.
I am sorry, Deputy, I will not allow the discussion to be stultified in this manner.
As an elected Member of the House, I am entitled to make a point of order and to put a submission to you. Having heard me, it is at your discretion to accept or reject my point but, first, you must hear what I have to say. You are refusing to give me the opportunity to make my point of order.
The Deputy has had ample time. I clearly understand his point.
It is outrageous. I have not been allowed to make a point of order.
How long will it take?
Two or three minutes at most.
I will hear the Deputy but I wish to dissuade him from making a speech.
I have no intention of making a speech, I do not rise in the House on frivolous points. I have never come under the notice of the Chair in that regard in all the years I have been in the House.
For the Minister's amendment to be in order, it must be in accordance with the principle of the Bill. The principle of the Bill, as adopted by the House on Second Stage, in the critical section 1 (2), confines it to cases for damages for personal injury to any person. Perhaps the Minister's amendment highlighted a defect and seeks to change the principle by talking about claims in respect of matters other than personal injuries, which is the direct opposite of the principle of the Bill. This cannot be in accordance with the principle of the Bill and, therefore, in my respectful submission, it must be out of order.
I heard the Deputy in further detail and I am satisfied that the amendment is in order. Will the Minister please move it?
I move amendment No. 1.
1. In page 2, before section 1, to insert the following new section:
1.—(1) Notwithstanding section 94 of the Courts of Justice Act, 1924, or any other provision made by or under statute, or any rule of law, an action in the High Court—
(a) claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of any such contract or any such provision),
(b) under section 48 of the Civil Liability Act, 1961, or
(c) under section 18 (inserted by the Air Navigation and Transport Act, 1965) of the Air Navigation and Transport Act, 1936, or a question of fact or an issue arising in such an action, shall not be tried with a jury.
(2) Subsection (1) of this section also applies in relation to—
(a) an action in which damages are claimed both in respect of personal injuries to a person caused as specified in subsection (1) (a), or the death of a person, and in respect of another matter, and
(b) an action in which—
(i) the damages claimed consist only of damages in respect of a matter other than personal injuries to, or the death of, a person, and
(ii) the claim arises directly or indirectly from an act or omission that has also resulted in personal injuries to, or the death of, a person,
and in relation to a question of fact or an issue arising in an action referred to in paragraph (a) or (b) of this subsection.
(3) Notwithstanding the preceding provisions of this section, subsection (1) of this section does not apply in relation to an action where the damages claimed consist only of damages for false imprisonment or for intentional trespass to the person, or in relation to a question of fact or an issue arising in such an action.
(4) For the purpose of the application of subsection (1) of this section in relation to an action, or a question of fact or an issue arising in an action, any set-off or counterclaim, or any other claim by a party (other than a plaintiff) to the action, shall be disregarded.
(5) Subsection (1) of this section does not apply in relation to an action, or a question of fact or an issue arising in an action, if the trial there of began before the commencement of this Act but does apply to the retrial of such an action, question of fact or issue if the retrial begins after such commencement.
(6) Where, as respects an action in relation to which subsection (1) of this section applies, or a question of fact or an issue arising in such an action—
(a) a notice of trial containing a requirement to have the action, question or issue tried with a jury, or
(b) a notice signifying a desire to have the action, question or issue tried with a jury,
was served or given before the commencement of this Act, the requirement referred to in paragraph (a) of this subsection or, as the case may be, the notice referred to in paragraph (b) of this subsection shall be disregarded.
(7) In this section "personal injuries" includes any disease and any impairment of a person's physical or mental condition.
This amendment proposes to substitute a new section 1 in place of section 1 in the Bill as introduced. There is no change in substance involved. The changes proposed in the revised section 1 will clarify the scope of the Bill and make adequate provision for various practical aspect of personal injuries litigation so that the policy intention of the Bill will be achieved in all cases. Additional provisions of a technical nature are included to reflect the fact that many personal injury actions also include claims for other heads of damages, for example, damage to property and that defendants in these actions may make counter claims against plaintiffs and join other parties as co-defendants.
In the discussion which took place earlier this morning, the question of the Government position in relation to this Bill was raised. Basically, the Government raised the question whether it is desirable to abolish juries in these cases. Would that reduce costs? During the term of the previous Government, the case was not adequately made for abolition. We did not oppose that measure on Second Stage and consequently the Second Stage passed, but we sought a package and said that if this measure is to be effective there must be package. That is the package I mentioned earlier which we believe is necessary if this measure is to be successful.
Other reforms in the legal system beyond the abolition of civil juries in personal and fatal injury cases are needed to facilitate a reduction in insurance costs. One reason we were not enthusiastic about the Courts Bill, 1986, when it was introduced in the previous Dáil was that we felt much more needed to be done to reduce the cost of liability insurance for employers and the public generally. We were particularly concerned about the need to reduce the legal costs arising in personal injury cases. When we decided in Government to proceed with the Courts Bill, 1986, it was on the basis that the Bill would have to be strengthened by including proposals to reduce legal costs. The official amendments to the Bill proposed on Committee Stage are designed to do this, particularly the proposal to limit counsels' fees and to deal with the so-called "two-senior" system which had given rise to considerable public controversy. Also the proposal to amend the Bill on Committee Stage to enable cases pending in the High Court to be remitted or transferred for hearing to the Circuit Court — if they could have been commenced there — will facilitate further reductions in legal costs in some personal injuries cases.
Although welcoming the recent voluntary decision by the Bar Council to reduce the number of counsel appearing in personal injury cases, the Government have decided to go further and to give the Minister for Justice the power to limit the number of counsel in such cases as proposed in an amendment to the Bill. It is to be expected that cases requiring more than one counsel will be extremely rare as most civil injury cases turn on matters of facts rather than detailed points of law. The legal costs of hearing claims can frequently be up to 40 per cent of the award. It stands to reason that the passage of the Courts Bill, accompanied by the reduction in the number of legal personnel involved, will lead to substantial reductions in costs and will ultimately lead to lower premia overall. Spokespersons for the insurance industry have stated that the abolition of the three counsel practice in personal injury cases should reduce their legal costs by up to 20 per cent.
This was as far as we felt we could go in our efforts to reduce legal costs in the present Bill, but that will not be the end of the matter. There are further commitments to reduce insurance costs contained in the Programme for National Recovery. Some of these will involve more changes in the courts system— particularly the need for a system of pre-trial procedures in the High Court aimed at achieving as much agreement as possible between the parties on the issues in dispute in a case before a trial takes place and reducing the need for expensive expert witnesses to appear in court to give evidence. These matters will be dealt with in a proposed Courts and Court Officers Bill which is at an advanced stage of preparation. This is a further part of the package we said was necessary if this measure is to be effective overall.
A further commitment made by the Government in the Programme for National Recovery is to examine the scope to promote the publication of a book of quantum of damages. The Government believe that a judge sitting alone, with the aid of a book of quantum of damages summarising previous awards in personal and fatal injury cases, is much more likely to deliver consistent judgements on award levels. I am aware that the Minister for Justice has initiated discussion on this matter with the Incorporated Council of Law Reporting for Ireland to see how such a project — which is a large one — could be undertaken. However, even before a possible book of quantum becomes available, I would hope that judges, when they start deciding these cases, will consult among themselves with the aim of fostering consistency of awards.
Another important part of the Government's strategy for dealing with the insurance costs problem, is to put in place policies to reduce the number of accidents in the workplace and on the roads. There is a commitment in the Programme for National Recovery to introduce legislation to give effect to the main recommendations of the Commission of Inquiry on Safety, Health and Welfare at Work — the Barrington Commission — and to promote the introduction of safety arrangements by insurance companies. The Minister for Labour intends to introduce the Safety, Health and Welfare at Work Bill in the Oireachtas as soon as possible. His Department are also having discussions with the Irish Insurance Federation about the promotion of safety audit arrangements by insurance companies.
Already there are signs that measures taken to deal with the problem of uninsured driving are producing real benefits. As the Minister for the Environment has confirmed to the House recently, the results of the latest roadside survey by the Garda Síochána, in April and May 1987, revealed a level of motor insurance evasion of between 6 per cent and 8 per cent. This was much lower than previous estimates which ranged from 15 per cent to 25 per cent. The Garda Síochána instituted 74,000 summonses for insurance offences in 1986 — the last year for which published figures are available. The introduction of windscreen insurance discs in July 1986 has made it easier for the gardaí to spot the evader, and has been an effective enforcement measure operating in conjunction with Garda checks on insurance certificates.
However, there is a need for further radical measures to eradicate the scourage of uninsured and drunken driving. The Minister for the Environment will be bringing forward measures in a proposed Road Traffic Bill to empower the Garda to seize and impound uninsured vehicles, pending the production of the necessary insurance. The Bill will also contain proposals to reduce the blood-alcohol level. The Minister for the Environment recognises the link between road accidents and the condition of the road infrastructure. He told the Dáil recently that improvements in road safety will continue to be one of the main objectives of future road development policy. He stated that he would be taking all practicable steps to reduce road accidents, the related loss of life and personal injuries, the level of insurance evasion, and claims on both the Motor Insurance Bureau of Ireland and licensed motor insurers.
I think it is clear from what I have said that the measures in the Courts Bill, 1986, are just a part — but an important part — of a very wide package of proposals to which the Government are committed designed to deal with various aspects of policy that impact directly or indirectly on the cost of liability insurance. These measures prove that this Government are doing their part to improve the overall environment in which insurance companies operate. I can assure the House that the Government will be making sure that insurance companies play their part in this process by passing on the benefits to consumers.
The measures to reform the legal system governing personal and fatal injury cases in the High Court — proposed in this Bill — will come into effect when the next legal year starts in October. We will expect further substantial concessions from the insurance industry then. It is obviously not possible to estimate in advance what the level of those benefits will be for the public because insurance premiums are related to claims costs, but I can assure the House that the Minister for Industry and Commerce, and the Minister of State at that Department who has particular responsibility for the insurance industry, will ensure that the savings that will arise for the industry as a result of the various measures being adopted by the Government will be passed on to the consumer.
If this does not happen, and happen quickly, or if inadequate benefits arise for the public, I suggest this would place a serious question mark over the bona fides of the insurance industry and may jeopardise the various other measures the Government have undertaken in good faith to introduce to reduce the cost of insurance claims at the persistent request of the insurance industry and various employer and industrial interests who are suffering the costs of high insurance premiums.
Generally, the proposed revised text of subsection (1) is an amalgamation of the contents of subsections (1) and (2) in the original section 1 of the Bill, except for the final clause of the latter subsection which is now included as a separate subsection (3) in the revised section 1. Subsection 1 repeats the substantive provision in the Bill as introduced to discontinue the use of juries in High Court actions claiming damages for personal injuries to any person — paragraph (a) and under section 48 of the Civil Liability Act, 1961, or section 18 of the Air Navigation and Transport Act, 1936, in respect of the death of a person — the so called "dependency" action — paragraphs (b) and (c) respectively; or for the trial of a fact or issue arising in such an action, notwithstanding the provisions of section 94 of the Courts of Justice Act, 1924.
Subsection (2) contains additional provisions, not in section 1 of the original Bill, to deal with the fact that many personal injury actions include claims for other damages as well, e.g. damage to property, and paragraph 2 (a) provides that such a "mixed" action will come within the scope of the Bill, that is, will be tried without a jury. In the absence of the provision, the contention might be made that since other damages are included in the claim, the action is not for personal injuries only, and thus does not come within the scope of the Bill.
Paragraph 2 (b) eliminates a possible loophole that could arise if a possible action for personal injuries, and for other damages, were split into two separate actions. Under the Bill as drafted, a plaintiff in a case which involved personal injuries and non-personal injuries, such as damage to property, might attempt to initiate an action first for damages for the non-personal injuries, and seek to have a jury trial to determine the issue of liability in the case. It is not certain that such a request would not succeed. The matter would be likely to come before the High Court for decision. If access to a jury trial could be secured in that way to try the non-personal injuries claim, a later, non-jury court, trying a subsequent action for personal injuries arising from the same facts and circumstances, might feel itself bound by the determination of liability in the first action.
Such an outcome would circumvent the intention of the Bill that all the issues in personal injury cases should be tried by a judge sitting alone.
The insertion of the new subsection 2 (b) in section 1 of the Bill is designed to close off the possible loophole that arises under the Bill at present, by providing that where an action is taken for non-personal injuries, and the action arises directly or indirectly from circumstances which resulted also in personal injuries or death, then the first action will be tried in the same way as a personal injuries claim, in other words, by a judge sitting alone.
If a dispute were to arise in a particular case that a claim for damages for non-personal injuries was too remote from the circumstances that also caused personal injuries, it would be a matter for the court to decide whether the former damages were indirectly due to the same "act or omission".
Subsection (3) provides for the exclusion from the scope of the Bill of actions for damages for false imprisonment, or for intentional trespass to the person, often referred to as assault and battery cases. These cases are already excluded from the Bill by virtue of the final three lines in the existing text of subsection 1 (2) (a), but the exclusion will be highlighted by dealing with it in a separate subsection in the revised text of section 1. One modification is proposed by comparison with the existing text. It is necessary to restrict the exclusion to cases where damages are claimed only for false imprisonment or intentional trespass. The existing text would allow any case which included such damages to be excluded from the Bill. That could create a loophole that would enable a plaintiff in a personal injury case to evade the intention of the Bill by including a claim for assault in his action, say where he alleged that there had been a separate assault on him following a car accident.
Subsection (4) contains an additional subsection to make it clear that any set-off or counterclaim by a defendant against the plaintiff, e.g. in respect of assault or damage to property, or proceedings initiated by a defendant to join other parties as co-defendants in an action, will not be capable of being used to bring a jury into a personal injury case, on the grounds that the action was no longer an action for personal injuries only.
Subsection (5) contains a new, transitional, provision to enable a jury trial of a personal injury case which had commenced, but had not concluded, before the cut-off date for jury trial to continue until the case is disposed of.
The subsection also provides that a retrial of a personal injuries case taking place after the commencement date will be heard without a jury, even if the original trial was before a jury. Retrials may be ordered by the Supreme Court following successful appeals from High Court jury decisions, and it is necessary for the parties to set down the actions for trial again. In effect such a retrial becomes a new action and goes to the bottom of the list, and there is no reason to treat it differently from other personal injury actions heard after the Act has come into operation.
Subsection (6) is a purely technical provision to provide for requests for jury trial by parties in personal injury actions set down for trial before the cut-off date for jury trial, to be ignored without the need for a court order. Under the existing Rules of the High Court no notice of trial seeking a jury can be countermanded except with the consent or leave of the court — and such leave may be given by the court subject to costs or other terms. A plaintiff who requires a jury trial includes that requirement in his notice of trial. Where a jury trial is not sought by plaintiff in the notice of trial, the defendant may serve notice on the plaintiff in the action signifying his desire to have a jury trial in the case. The proposed amendment has been drafted to deal with both of these circumstances.
Subsection (7) relocates the provision at present in subsection (2) (b) of the Bill defining the expression "personal injuries". The definition is identical to the definition of the same expression in section 2 of the Statute of Limitations, 1957.
A number of amendments to section 1 have been put down by the Opposition. I am opposed to amendment No. 1. The words "consist only of" have been included in the text of subsection (3) to ensure that no loophole would arise which would enable a plaintiff in a personal injury case to evade the intention of the Bill by including a claim for assault in his action, say where he alleged there had been a separate assault on him following a car accident.
I am opposing amendment No. 2 on the same grounds that I am opposing amendments Nos. 11 and 12. I want the provisions of the Bill to come into effect on 1 August so that the benefits will materialise immediately. Acceptance of Deputy Taylor's amendment would postpone for many years the date on which the provisions of the Bill would come into effect. The amendment relates to the saving provision for cases set down for trial before the passage of the Bill contained in subsection (3) of section 4 of the Bill as introduced. In my amendment, No. 10, I am proposing to substitute a new commencement provision to replace the saving provision referred to in order to bring the provisions of the Bill into effect as quickly as possible. Jury trials would continue for up to four years if the existing saver for cases set down for trial remained in the Bill. That delay is not acceptable. I must ensure that the economic benefits expected from the passage of this Bill arising in the area of costs of liability insurance for the public and for industry can be realised as quickly as possible. The Deputy's amendment would extend the saver for existing cases to all cases where proceedings had been issued before passage of the Bill. That would postpone the time when jury trials would cease for a further substantial period and this would not be acceptable.
Amendment No. 3 which is being discussed again with this amendment is not acceptable either. Subsection (6) is a purely technical provision to provide that requests for jury trials by parties in personal injury cases set down for trial before the cut off date for jury trial can be ignored without the need for a court order. The Deputy's amendment is consequential on their proposed amendment No. 2 to my amendment No. 1. I am opposing that amendment also.
On a point of order, is it in order to request permission to move amendments Nos. 1, 2 and 3 in the name of The Workers' Party as they are being taken together?
They are being taken together and I will afford you the opportunity, when your time comes, to move them.
Is it not in order to do so now?
Acting Chairman
I am calling Deputy Barrett.
The Minister said that when the Bill was introduced on 28 May 1986 the case had not been made by the previous Government for the abolition of juries in personal injury claims for personal damages. I fail to see how the Minister justifies that statement if he has changed his mind in the meantime because nothing has happened since May 1986 to suggest that the present Government have changed things to such an extent that there is now a need for them to proceed with this legislation. I would suggest that the only party, perhaps with the exception of the Progressive Democrats who are consistent on this is ourselves, because we introduced this legislation and we stick by the principle of the legislation. We are extremely concerned that an attempt is being made here by the Government to pretend to the electorate that something enormous is being done in relation to insurance costs, and in the process there is a danger that we will ignore the right of the ordinary individual to be properly represented, particularly in relation to the measure that is now being suggested to control the number of counsel.
As I said at the outset, I have no brief for any particular group. What I am concerned about is that the average person who finds himself in court seeking damages as a result of an accident will be properly represented. I do not want to see him put at a disadvantage when the defendant, who in most cases is likely to be an insurance company, can produce as many experts as necessary to make a particular case.
To concentrate this whole legislation on the suggestion that if it is passed insurance costs will be reduced dramatically is false. There are other aspects involved here that are a cause for high premium rates. One is the size of our population. The principle of insurance is based on a pool of funds where the good pay for the bad. The smaller the pool the more likely the premium will be high. Of course the size of damages awarded has an influence, but the reality is that as long as we remain in a situation where insurance companies underwrite risks based on the experience in this country alone we will be faced with higher premium rates than those in the UK. A British insurance company operating here should view the totality of the fund; in other words it should take into account the UK situation and the Irish situation. But what they consistently do is look at the experience in Ireland alone and justify a hike in premium rates because of the situation they find themselves in here. If we were part of a greater pool, and I hope the Single European Act will help to some extent here, we would have a far higher chance of reducing premiums. But to say that this Bill will sort out the insurance problems and ignore what could happen to the ordinary individual who may find he is not properly represented and cannot make his case is wrong. It is important to bear that in mind and not use this as a publicity exercise to pretend that something is happening since this Government came into power to bring about a massive reduction in premium rates. That is not the case.
For instance, the Minister pointed to the need to enforce the existing laws. As far as I am aware numbers in the Garda Síochána have reduced since this Government came into power and there is a non-recruitment policy at the moment. There are no new measures in terms of a proper traffic unit to enforce existing laws. The existing laws in relation to traffic lights and pedestrian crossings and safety on the roads are a joke. There has been no move to have on-the-spot fines for minor traffic offences instead of blocking our courts with summonses for breaking through traffic lights. We have not modernised our laws at all in that area despite repeated requests. Yet we are pretending that there has been greater enforcement of the existing laws.
In relation to the elimination of the cost of uninsured drivers which was a point made by Fianna Fáil in Opposition, I am not aware of any dramatic increase in the numbers driving around without insurance. The main difficulty in that area is the difficulty of enforcing the law. I have suggested on many occasions that we should insure the person and not the vehicle; in other words, everybody who drives a vehicle here should carry third party liability cover and have an insurance disc displayed when driving a car, indicating that it is the person who is insured and not the car. We have this ridiculous situation of a car with ten drivers and nobody knows who is the insured person. It is very difficult to check on the spot. A Garda has to go to a lot of bother to have a certificate produced and time is spent in court with blockages in the court resulting. The end result is that the law is not being properly enforced. Before we take the dramatic step of changing the level of representation the ordinary individual should have in our courts we should enforce the present laws and make other changes that are also necessary.
The Minister, again when he was in Opposition, suggested that the jurisdiction of the Circuit Court should be raised from £15,000 to £25,000 or £30,000. They have not done anything about that either since they came into Government. So to come in here and suggest that since they have gone into Government the case has been made for the abolition of juries is not accurate. I cannot see any evidence of it and it is misleading to the public to suggest that it is so. My party took a decision and we are being consistent but we are not leaving it stand at that. We want to see action being taken in respect of the enforcement of the existing laws whereby real progress can be made in relation to the overall cost of insurance by making it practical and feasible to enforce the existing laws.
At the end of the day, I and members of my party are extremely concerned that the ordinary individual should have the opportunity to be properly represented. If we are going to abolish juries we have to give gurantees to people that they will get a fair deal. That is what we are here for, to represent the ordinary individual who is the person who has put us in here. We are not here to represent insurance companies; we are not here to represent the Law Library, we are not here to represent insurance brokers or any other vested interest group. We are here to represent insurance brokers or a situation whereby when this Bill goes through the average individual will be properly protected. Rushing into something for the sake of giving the impression that this Government are doing a lot to reduce insurance costs is not sufficient reason to force this House to adopt measures that could ultimately affect the ordinary individual.
Throughout the debate on this Bill my party will be endeavouring to see to it that no steps are taken that will affect the right of that individual. I am sure everyone in this House is concerned at the high cost of motor insurance, the non-availability of public liability and employers liability insurance and the high cost, when it is available, of both those types of cover.
At the end of the day other measures can be taken outside of what we are talking about here that could bring about this situation particularly in relation to insurance companies. Insurance companies — and I know the business — have not always been open about the manner in which they have done their business. To suggest that you can look for an increase in motor premiums as a result of underwriting losses and ignore your investment profits from the sums of money taken in through motor insurance premiums is not fair. It is not reasonable to say that we have made a loss on our underwriting income but ignore the fact that vast sums have been made on investment income. Part of that investment income should go towards the cost of the insurance premium. It is part and parcel of the same business. They are financial institutions.
I do not think we should allow ourselves to scrap a system that has been in place whereby the individual has rights and those rights have been protected simply because the case has been made that insurance costs are high in this country. I hope that the abolition of juries when it becomes law will help to reduce costs. As I said at the outset, I do not want to see the rights of the ordinary individual being affected.
I welcome section 1 and the amendment which now substitutes a new section 1 which is much more extensive than the original section 1. It is about three times or more as long as the original section 1. This is the kernel of the Bill which has been long awaited. It had an unusually lengthy period of gestation and we are now taking Committee Stage approximately two years after its Second Stage debate. I hope it will be law by the date envisaged in the amendments to section 4 which is 1 August. It is long overdue.
We should remind ourselves that we are the second last country in the entire world that retains this strange 18th and 19th century system of allowing civil juries to award damages to people who have been injured. All other European countries have long since abolished that system, whether they were of the common law tradition or otherwise. All the British Commonwealth countries have long since abolished it. The only country retaining it at present, apart from ourselves, is the United States of America. The United States of America has a system of compensation which is not appropriate — most people would agree — to any other country. From time to time it has the most extraordinary results, including the awarding by juries of damages of millions and millions of dollars for punitive and exemplary purposes and to express their disapproval of certain things. The damages are out of all proportion to the loss suffered by the plaintiff.
There was a time in this country when civil juries tended to look on the award of damages as some sort of automatic right. It was just a question of assessing the amount. The question of liability scarcely arose with them and we got ourselves into very severe difficulties. It was only when this Bill was introduced two years ago that suddenly the word began to percolate through to juries that they had better stop acting as they had been acting and start being a bit more reasonable. Up to that time they looked on every defendant as automatically insured and they looked on every insurance company as being like the Irish Exchequer — a bottomless pit out of which they could freely draw for all time. Jurors in Ireland at one time, theoretically at any rate, were people of some substance. You had to have a poor law valuation of £20 and you had to be a male before qualifying. That was all done away with by the Mairín de Burca case when the entire electoral register became liable to be jurors. The electoral register was then opened to people of 18 years of age.
A jury can now be very different from what it was a few decades ago. It can consist of a number of very young people and very uneducated people some of whom often have the greatest problem in trying to assess actuarial evidence and who through no fault of their own, find great difficulty in trying to comprehend the difference between £100,000 and £1 million because the noughts are entirely confusing. Their own personal circumstances possibly are that they never had more than £20 or £30 in their pockets in their lives. To try to think in very large numbers is something which, through no fault of their own, is beyond them. The system that has often been adopted in practice by juries who were faced with this difficulty was that the foreman of the jury instructed the 12 members of the jury to write down whatever number they thought appropriate. He would then add up the 12 figures and divide the total by 12 and that was the result. I have often been told that by people who served on juries, as have others. That is a well known fact and it was unavoidable.
Jurors told me, for example, that sometimes there was a difference of several hundred thousand pounds between the lowest and the highest figure. The whole thing was totally arbitrary and it no longer made sense. I am glad to see that it is being changed. It is interesting to see that the change is so slow, so painful and so protracted when I would have thought it made sense to do it quickly and to do it some time ago.
When I was in the Department of Justice I recall that we abolished civil juries in the Circuit Court in 1970 or 1971. That was subject to some limited criticism but, at that time, the jurisdiction in the Circuit Court — believe it or not — was only £600 so it could not have made much material difference. I recall rather tentatively trying to extend that Bill to the High Court — I was very young then — and being told to behave myself and to stay in my place. Little did I think it would be 16 or 17 years later before I would see this Bill enacted.
That seems to have been the story of the Deputy's life.
If I thought I would have had to wait 16 or 17 years to see this desirable thing happen, I might have fought with somewhat greater tenacity in the early seventies to introduce it. I was up against one of the most civilised, but nonetheless effective, lobbies I have ever seen. That is why this is now happening 16 or 17 years later than it should. It seems to have been particularly inappropriate that for all these years we should have retained this system of going through all the panoply of the law for the award of compensation to people injured in normal traffic accidents when, first, other countries were able to do without it and, secondly, we ourselves established here about ten years ago a tribunal to deal with personal injuries to award compensation to people who were subjected to criminally inflicted personal injuries and that it was possible to do that without any reference to a court, in a private committee room or meeting room, where private individuals appointed to this tribunal would interview the injured person and award him compensation for whatever injuries he sustained criminally. If it could be done there in respect of criminally inflicted injuries, why could it not have been done all along and why can it still not be done that way in respect of accidentally inflicted personal injuries?
I noticed on Second Stage that the then Minister for Justice, Deputy Dukes, referred to this possibility and the possibliity of "no-fault" liability being brought in here. He said he thought that these were away down the line and rather radical. I do not think they are particularly radical. This is the way in which we should be thinking. I cannot see any justification for having a tribunal quietly, efficiently and effectively dispensing compensation to those who are criminally injured and then to have the great panoply of a court to give compensation to those accidentally injured. In the vast majority of these cases there is no law involved. It is simply a question of the assessment of the damages. It could be much more easily done in a much more informal fashion. However, I suppose I must be thankful that at least what is being done in this Bill is being done at long last. I hope that will not be the end of it until well into the next century. I hope the question of the possibility of a tribunal, or some simplified form of award of compensation, will be thought of.
I listened as carefully as I could to the Minister's speech just now on this amendment. I want to draw the attention of the House to one phrase which he used which I think is very important and which may well cause a great deal of debate if it is reported accurately and if it is considered. That is — and he will correct me if I misquote him, not having written down the exact words, but certainly having got the sense of it — where he said that it would, in his view or in the Government's view, be rare that more than one counsel would be needed in these cases, as they were not complicated and so on. I think it has been envisaged, particularly in the later amendment, that what was being done was reducing the number of senior counsel from two to one, but if what the Minister said this morning is correct and only one counsel is envisaged in the great majority of these cases, I presume that one counsel will be a junior counsel. Or is it envisaged that one senior counsel on his own can be briefed in these matters without a junior counsel?
This may not appear to be of great moment to many people throughout the country, but if what the Minister said is correct and if that is what the Government have in mind, it is going much further than anything that has been suggested up to now. It goes away beyond what the Bar Council recently voluntarily agreed and I think it needs to be clarified. It is possible that in reading out what he read the Minister omitted the word "senior". If he did, that could change the sense of it very considerably. If the Minister is right, I certainly do not disagree with it at all, but perhaps more notice should be given to those involved or those affected. All this is a welcome development. I look forward to it being brought into effect on 1 August, as is now envisaged in the Bill, as amended.
In conclusion, I want to draw the Minister's attention to what I think is an error which has been made, simply by an oversight, which is quite understandable. In the Rules of the Superior Courts and the practice of the courts as such, unless a jury is involved as of right, a plaintiff does not have the right to have his case heard outside of Dublin. That may seem strange, or pointless, or whatever, but that is, in fact, what both the law and the practice are at the moment, unless you have, as of right, a right to a jury. After this Bill is passed, a plaintiff will not have, as of right, a right to a jury.
It is decentralisation in reverse.
It is. Therefore, unless some provision is made in this section to enable the present practice of these personal injuries cases being heard at different venues throughout the country, that practice will come to an end. The position is dealt with in Order 36 of the Superior Courts rules of 1986. Rule 1 of Order 36 says:
All proceedings in the High Court shall be tried at the Four Courts, Dublin unless otherwise ordered or provided by statute or by these Rules.
It then goes on to give the exceptions and one of these is, in 2 (b), that in the case of any proceedings which the parties are entitled as of right to have tried with a jury, notice of trial may be served for any of the following venues: Cork, Limerick, Galway, Sligo, Dundalk and Kilkenny without prior application to the court and the matter may be set down for trial at such venue.
That right has been taken away. It will be still possible to get a trial at a venue outside Dublin when this Bill is passed but only if, under rule 2 (a), an application is made by way of motion to a judge sitting in Dublin on notice to the other side for an order from that judge enabling the case to be heard at a venue outside of Dublin. Two counsel and solicitors have to be employed to make that application; affidavits have to be drawn up and all the rest. It will cost, at the very least, several hundred pounds and it will delay notice of trial by several months. It achieves nothing, but it will be a bureaucratic requirement that will simply delay things.
Deputy Colley and I have put down an amendment, No. 4, to this amendment which covers the point. It appears to have been ruled out by the Chair for very technical reasons. I am not sure that the technical reasons that were adduced to me are correct. Perhaps it is confusing for some of those who have to consider it. I cannot believe that it was the wish or the intention of the Government, or of the Department of Justice, to prevent all these thousands of cases that are heard in provincial venues every year from continuing to be heard there. A most chaotic situation will be created, as well as huge additional costs, if all the thousands of cases heard in the High Court around the country every year have to come back into the Four Courts in Dublin. The additional inconvenience and the cost are enormous and simply this should not be allowed to happen.
I ask the Minister to prevent this, as Deputy Fitzpatrick calls it, decentralisation in reverse, total centralisation of our High Court. Already, even with the thousands of cases heard throughout the country every year, we are very much over-centralised so far as the High Court is concerned. All the judges live in Dublin. They seem to think that Dublin is the only appropriate place in which they should live. One could contrast it with other countries where judges of superior courts live all over the country and work all over their respective countries. There are permanent High Court sittings in Britain, for example, outside of London and it would be regarded as absolutely intolerable if London were the only permanent centre for the High Court in Britain, and similarly in other countries. On the appointment of High Court judges from now on it should be made clear to them that they should be expected to live for at least a period of a couple of years outside of Dublin. There is no reason there is not at least one High Court judge permanently sitting in Cork — not necessarily the same judge, as it would perhaps be desirable that he should change from year to year. Certainly there should be a judge there all the time.
Irrespective of the technicalities that seem to arise in respect of this amendment, it is essential that the amendment to the amended section be accepted, or else something very similar to it. The Minister should express what I assume to be the Government's view, that there is no desire to recentralise all these cases back into Dublin. That would be crazy and would cost hundreds and thousands, if not millions of pounds. Whatever form it is in in this amendment should be accepted. It is not just Deputy Colley and myself who spotted this problem. My attention was drawn to it by a judge of the superior courts who said it would be intolerable if this change were inadvertently made and that it would be the cause of great hardship to litigants. The whole idea of this Bill and these amendments is to simplify things and to make them less expensive.
The lawyers are passing the baton around here.
Acting Chairman
Deputy Taylor, without interruption, please.
(Interruptions.)
I was totally aghast at some of the comments made this morning by Deputy O'Malley with reference to the men and women who have served and who continue to serve on juries. His description of many of those juries is totally consistent with the line of thought of the Progressive Democrats. Not for nothing are they described as the yuppy party. Certainly the disparaging comments made by Deputy O'Malley about many of the jurors who serve in civil and criminal trials have to be strongly deplored. He described many of them as being young and uneducated and as having great difficulty in assessing the difference between £10,000, £100,000 and £1 million. I hope his comments are noted by many of the young people who serve on civil and criminal juries. There is no suggestion about abolishing the responsibility of jurors in criminal trials. Do not the same test of qualification for jurors in criminal trials apply to jurors in civil trials? Would Deputy O'Malley have us believe that those who determine the guilt or innocence of people in serious criminal trials are those he airily dismisses as being young, uneducated people who do not know the difference between £10,000 and £100,000 and that these people are sitting as jurors to assess the innocence or guilt of people charged with serious crimes? That is a most outrageous statement for the Deputy to have made to the House this morning. I am totally surprised that Deputy O'Malley would have made such a statement. Having seen jurors in action over many years, many of them young, it is to their credit that they have made a very fine contribution to the juridical process in this country, both in the criminal field——
(Interruptions.)
Acting Chairman
Deputy Mitchell, please.
——and as jurors in civil trials. They have given of their time and energies and have applied themselves with great concentration and determination to matters they are well qualified to deal with. They have approached the tasks accorded to them by and large with a degree of concentration and they determine the facts before them and decide the issue. Perhaps it can be argued that they can do that at least equally as well as a judge. It could be said that they are ordinary people who have more of a connection with the everyday facts of life than many of the judges who are remote from the problems that affect everyday people within the education system and within the health services which are being decimated severely by the present Government. These people are well qualified and have done a fine job. We can be proud of the jury system as it has operated here.
There are all sorts of criticisms levelled at the jury system from time to time and I will deal with these on an interim basis. First, I will refer to the appalling cynicism of this Government and of the Minister for Social Welfare in coming into this House today to move this Bill and these amendments. I do not understand how a person who made the statements the Minister made on this issue on 28 May 1986 can now come in here and recommend to this House that this amendment should be adopted by the House. I will refer to some of the statements the Deputy made on that occasion. Deputy Woods said on 28 May 1986, as reported at Column 520 of the Official Report:
We in Fianna Fáil have considered this matter at length and have taken into account the views expressed by the Government, the employers' organisations and the representatives of insurance companies who all favour the abolition of juries and, on the other hand the views expressed by the Irish Congress of Trade Unions, the Bar Council and the individual trade unions who oppose the measure. We have come to the conclusion that the case for the abolition of juries has not been established. This is borne out by the findings of three independent commissions. In addition, the direction of what the Government are saying has been changed to something more vague and general than what has been said publicly up to this time. They speak about stability and predictability in the future, but gone is the thing the motorist is interested in, the reduction in premium costs as soon as possible.
Will the Minister for Social Welfare address himself to the fact that he and his colleagues in the Fianna Fáil Party considered the matter at length having taken account of those views and having come to the conclusion that the case for the abolition of juries had not been established? I wonder if the Minister will tell the House what precisely has changed his opinion on the matter between then and now.
Did you go out for a while?
I did not go out at all. I am reading what the Minister said.
I covered that. The Deputy fell asleep, obviously.
(Interruptions.)
Acting Chairman
Deputy Taylor, without interruption.
I will say this for the Minister for Social Welfare: I appreciate his difficulty and the fact that he must be squirming in his seat, but I admire his gall and courage in coming into this House to put forward this amendment in the face of what is here on record staring him in the face. No kind of shilly-shallying or interjection will deflect me from bringing out to the full every syllable. I intend to refer to every syllable and every measure to show the absolute lack of sincerity of this Government in bringing forward this amendment.
I just thought the Deputy was either asleep or had slipped out when I was replying.
That will not help the Minister. I intend to go through it column by column. The Minister should take his medicine. The Minister must have known it was coming to him.
The Chair should apply his rulings evenly in the House.
We have come to the conclusion——
(Interruptions.)
Acting Chairman
The Chair will deal with you, if you do not——
The Chair will be brought before the Committee on Procedure and Privileges if he treats unfairly one side of the House.
The Minister for Social Welfare at that time said that the Government had come to the conclusion that the case for the abolition of juries had not been established. I want the Minister to say now precisely what has happened since then that has made him change his mind.
Debate adjourned.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.