Amendments Nos. 1, 2 and 3 are being discussed together.
Courts Bill, 1986: Committee Stage, (Resumed).
The following amendment was moved by the Minister for Justice on Wednesday, 4 May, 1988:
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 ommission 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) ofshhis 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 thereof 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.".
—(Minister for Justice.)
Debate resumed on amendment No. 1 to amendment No. 1:
In subsection (3), third line, to delete "consist only of", and substitute: "comprises in whole or in part of a claim for".
—(Deputy McCartan.)
When this matter was last before the House about three weeks ago I reported progress, having tried to make the point that even if it could be shown that the change proposed by the Minister and the Government would produce a lower level of awards in personal accident cases, that did not address the question of whether it was a proper change to make in the law. We are dealing with a system which is embedded in our administration of justice. It is not an administration of insurance or of personal injuries but an administration of justice. The Minister, the Government and the House will have to be satisfied that whatever takes the place of the existing system will do justice to litigants. As an individual I am not satisfied but evidently I am in the minority in my party on this question. The mere fact that the crude level of awards may be lower does not prove anything. As an insurance premium payer I would rejoice over anything that reduced the level of premiums but if I suddenly found myself in the posture of a plaintiff having been knocked down and injured, say by Deputy McCartan in his hurry to provide competition in the trade of which he is an ornament, and bringing an action for compensation for personal injury, I would be very far from pleased to find that the Dáil had only yesterday enacted a law, the purpose of which was to make sure that the level of my award would be only about 50 per cent of what it would have been last week.
These are serious questions and we must have sober examination of statistical evidence from other countries, so far as that is available. I do not mean evidence just from the UK. We are not at liberty to legislate on a matter like this merely because insurance companies have a sort of hunch that the level of awards would be lower. We must be convinced that what we are doing will also make for justice. I am not at all satisfied about that.
It used to be said the reason awards in Britain were lower than here at a time when the British had made the change — which now, after the usual decorous interval of a generation and a half we are trotting after them to make with the peak of our caps turned to the back, the usual posture we adopt when imitating British legislation — was that British judges were usually appointed in their fifties or sixties and were men whose ideas about the value of money had been formed long before the Second World War when a £1 note was a large sum of money, a week's wages for many classes of people in the lower grades of employment. These judges had not personally kept up with reality. I must admit there is something in that argument. Everybody's ideas of the value of money are formed when they are very young. Personally I cannot rid myself of the notion that a £1 note is a substantial sum of money, even though it will no longer buy a pint of stout. I cannot get that idea out of my mind and I am not used to the sense of money I hear my children talking about. Everybody suffers from this. Is that a reason to go for this system, merely because the insurance companies have a hunch that the crude level of awards will be lower? Why is it necessarily more just that a man whose ideas about money were formed at a time when mine were should bring those ideas to bear in the assessment of personal injuries awards, rather than ideas formed at the time when, say, Deputy Anne Colley formed her ideas about the value of money? Where is the justice in preferring the evaluation of £1,000 or £1 million of one generation to the evaluation of another.
This House has been left very short of material on which to make up its mind about matters like this. One of my colleagues asked the Minister whether he had any statistical information which could give the House some idea of the probable impact of this change upon the level of awards and the consequential impact on insurance premia. The Minister did not appear to have the information. If he now has that information to hand, we would be interested to hear it. An hour ago when the Minister's colleague, the Minister for Industry and Commerce, was answering questions, I asked him, in a supplementary to a question asked by Deputy Mary Harney, whether he or his Department had looked to see whether the level of insurance premiums had fallen in Britain subsequent to the enactment of the law which transferred personal injury actions from juries to single judges. It should not be much of a job to look as far as Britain because most of our Government operations for the last 65 years have done little else. It should be second nature. Surely we might have some idea about whether there was a steep drop, as we are being promised, in the level of insurance premiums when that change was made in the law of our nearest neighbours who have a comparable legal system.
The Minister, Deputy Reynolds, had no information to offer. I asked him if he realised that a similar answer had been given by the Minister in front of me a couple of weeks ago under this Bill and he replied rather testily, but I have to admit with some justice, that he could not be expected to know what statistics were or were not relevant to the Department of Justice. Both these Ministers — they cannot perpetually throw the hot potato between one another — are jointly in charge of this area: Deputy Reynolds under his insurance hat and the Minister present, Deputy Collins, under his justice hat. Neither of them appears to have any concrete information which would enable this House to form any idea about probabilities of the impact of this measure.
We are now seeing the last stages of a very persistent, well kept up lobbying operation laid on by the insurance companies which has been going on for at least 20 years. I remember attending meetings under an academic hat on this point in the sixties. The insurance companies have now had their way. I suppose there must be something in it for them. It may be that they are sincere in expecting lower awards but that does not dispose of the question of whether that is just and it does not dispose of the question of whether premiums will, in consequence, be lower.
By a happy coincidence, a most felicitous chance, Deputy Harney's question to the Minister's colleague, Deputy Reynolds, was answered about an hour ago. She asked him if he has had any assessments carried out of the impact on insurance costs of the abolition of juries in personal injuries cases. He said that he had not carried out such assessments. What he did — I am very interested in this — was to quote verbatim, indented with inverted commas, a passage from perhaps a letter of comfort from the standing committee of the insurance companies in which a paragraph reads as follows:
When the Courts Bill, 1986 is enacted by the Dáil, IIF members will agree to introduce a special no-claim bonus for drivers who have been named on one of their existing motor insurance policies, subject to the following conditions. The driver must:
— hold a full driving licence for at least one year;
— have been named on the policy for at least two years;
— not have had any claims or driving convictions.
I would like time to think out my attitude but, at first blush, I am not very happy at this bargaining with the Parliament. I do not like to see the insurance companies say to the Government or to the Dáil through the Government: "If you will do this, we will do that". I would not mind if it took the form: "If you do this, the consequence will be that because there is a causal and evident nexus between the action demanded of the Dáil and the result which will follow outside". There is no such nexus here because the concession which the insurance companies are here offering has no obvious connection whatsoever with the abolition of juries. They are going to offer a special no-claim bonus to people on three conditions but all these conditions are ones which point to the reduction of risk. They are all conditions which, if I fulfil, will demonstrate that I am in a lower than average risk category for my age, my class of power or whatever. They are offering a special no-claim bonus, which I presume will be an attraction in the eyes of customers, but that no-claim bonus is conditional on things which have nothing to do with the change we are making here today. Therefore, the representation made to the Minister is not simply a statement of the consequence which will follow from what the Dáil is being urged to do. It is a promise to offer something by way of a make-weight or a consideration. That is what I am inclined to object to. It is not proper to bargain with the Dáil, the Government or a Minister in that way. Either it is right or it is wrong for us to make this change. We ought not to be hurried into it by reason of the fact that we are being promised something which will enable the Minister to say to young drivers, for example: "We have made it easier for you to get insurance" when that change has had no connection whatsoever with the change in the system which we are being asked to make today.
Deputy Reynolds also said, in the course of the same answer, that premium levels have been reducing in recent months as a result of increased competition — I want to emphasise the following words — in anticipation of the abolition of juries. That cannot be true. Naturally, I am not saying that the Minister is telling an untruth but I do not believe that is the reason why insurance premiums have been reducing, if they have been reducing, over recent months. The reason why I believe it cannot be true is that this legislation has been moving through the House at a snail's pace. Almost a complete year has passed since Second Stage of this Bill passed this House in June of last year. What has happened to the Bill since then? How could any insurance company be sure what time the Bill will become law? Even in this House there has been no impressive sign of urgency about it. It is three weeks since it was discussed in the House and we are only in the middle of Committee Stage. I know there is pressure of business but I cannot believe that any businessman, let alone an insurance company, would do anything so drastic as an across-the-board reduction in insurance premiums in anticipation of a change which depends on legislation that is moving through these Houses at a snail's pace. I do not believe that representation, if it was made to the Minister.
I hope, when the Minister replies to the contributions on this section, we will firstly hear the statistical and concrete factors on which he is basing an expectation that the level of jury awards will be significantly different from what it is, if he entertains that expectation; secondly, the reasons he feels that the level of insurance premiums will be beneficially affected and, thirdly, if the first is not going to be affected I would like to know how he can be so sure that the second will be.
I have been listening to much of the debate on this Bill and I share a great deal of the cynicism of my colleague, who has just spoken, about this Bill and the objectives that the abolition of juries are designed to achieve. I share some degree of cynicism with other aspects of the proposals put forward by the Minister. Firstly, I want to deal with the broad issue that arises under the Minister's amendment that we are discussing. It is suggested that if juries are abolished there will be some immediate saving in the area of insurance premiums. That is the proposition that is being made to this House. Everyone in this House, in all parties, would agree that the level of insurance premiums, in particular with regard to the main issue that appears to be directing attention, that of premiums for motor cars, is exorbitantly high in a number of areas.
The level of insurance premiums and the amount payable has no direct connection with juries. I will make a prediction, as someone who would like to see our courts system radically changed for a variety of reasons, that if and when this Bill is enacted, as appears to be inevitable, it will have absolutely no impact of any nature whatsoever on insurance premiums. Some members of my party seem to think that it will have a radical impact on insurance premiums. I would be pleased to be proved wrong but it is my view that it would have absolutely no impact and it is a false issue with regard to the problems of personal injury claims and the issue of insurance.
The more honest approach to this issue we have had in print from any group associated with the insurance industry is in a statement issued by the Corporation of Insurance Brokers of Ireland. These are the brokers as opposed to the insurance companies, and the group who are most in a position to carry out an independent assessment of what insurance companies do in their day-to-day dealings with them with regard, not merely to claims for damages but to obtaining insurance quotations for premiums.
Lawyers are very familiar with damages claims headings into the courts but they are not too familiar with the quotes when a young, middle-aged or elderly person seeks car insurance. In a statement issued by the Corporation of Insurance Brokers of Ireland, relating directly to the Courts Bill, 1986, and the abolition of the jury system, they say:
It is realistic to expect that whereas there may be no immediate reduction in premiums in the short term although stability and consistency in claims settlements should emerge quickly, however, the medium to long term should——
And I emphasise the word "should"——
——produce reductions in legal costs as the result of more out of court settlements and perhaps shorter duration of court hearings.
That sentence needs to be analysed because it comes clear on one thing, that there will be no immediate reduction in premiums as a result of the passing of this legislation. There is then a wonderful non sequitur. They say that in the medium to long term, there may be more out of court settlements which would reduce legal costs.
Anyone who practises in the area of civil litigation will know that in many instances properly brought claims on behalf of individuals who have suffered serious personal injuries, not people one might describe as "chancers" who are making spurious claims, but people who have suffered serious personal injury and who have very valid claims to process, very often they would be anxious to settle their claims. Most people are intimidated by the idea of having to go to the courts to obtain damages. Most people would wish to resolve their personal injuries claims without ever having to see a bewigged gentleman or lady in the Four Courts building or without ever having to set foot in the courts.
The reality is that insurance companies which provide insurance cover to ensure adequate compensation can be paid to people who suffer serious personal injuries, try to limit for their own financial reasons the sums they will pay in respect of injuries. Many insurance companies will not admit a realistic claim nor will they agree to pay a realistic sum in respect of personal injuries until they are outside the door of the court. The problem of cases not being settled and people not getting the damages to which they are entitled as a result of suffering serious personal injury is as much a problem created by the insurance companies, because the insurance companies have the facility to settle, but they have something else as well. They have the financial back-up of major corporations who can afford to litigate as much as they wish. They can use the weight and the financial security of their position to impose on the individual who have very little income and little financial backing a settlement that that persons may not only believe is detrimental to their interests but do not wish to accept, but which they may be forced to accept because they are faced with the danger of incurring legal expenses.
All this is a problem, but it is not a problem that relates to the existence or abolition of juries. This problem will be with us whether we abolish juries or not. That is another reality. For many years the insurance companies have had it in their hands to facilitate the settlement of claims that are justifiably brought for realistic sums before people are outside the door of the court. The insurance companies should put their house in order in this area. It is very interesting that the Corporation of the Insurance Brokers of Ireland are telling us that when this Bill is passed there will be no immediate change in premiums. Very succinctly and very honestly they have set out the position.
What the Minister is doing in this Bill epitomises something we do uniquely in this House, something different parties of different political persuasions in Government do uniquely in this House, that is, we look at the problem and realise something needs to be done but instead of engaging in what I would describe as a root and branch reform we tinker with the existing system. We tread warily but we do not provide the radical solutions that are necessary. We play around with the system instead of providing the overhaul that is necessary.
This amendment primarily deals with the abolition of juries in personal injuries claims. Why do court cases take so long? Why are they so expensive? Why will they remain so expensive whether or not we have juries? The reason is that we retain a system we inherited from the British, a system we have not sought to reform and which we have never even examined in a comprehensive way with a view to seeing how it can be radically changed.
Much of the time of the High Court and the Circuit Court in dealing with injuries claims is spent not so much on how much someone should get for a personal injury they have suffered but on disputes as to liability. Most of their time is taken up determining whether somebody should be held to have been negligible or not. If I am seriously injured in a road traffic accident and seek compensation against the driver I ran into, or who ran into me, and he denies liability, there is a court case to determine who was and who was not negligent.
Equally, there might be a case of alleged medical negligence when someone suffers a serious personal damage as a result of a medical operation in a hospital, and there is no doubt that that person suffered long-term psychological or physiological damage. The court spends time dealing with whether there is a negligence claim long before it deals with the assessment of damages.
Instead of tinkering with an antiquated outmoded system that no Irish Government have yet confronted, instead of playing around with juries in this Bill and pretending it will be some sort of a panacea that will resolve our problems that arise due to the expense of litigation when people seek to obtain compensation for personal injuries, the time has come for us to introduce a no-fault system for compensation of damages with no-fault insurance schemes backing it up, similar to that provided in New Zealand and a number of other countries.
The Deputy will accept that, since that is not a provision in the present legislation and we do not have an amendment before us seeking such a system, he is moving into what could be described as a Second Stage contribution rather than dealing specifically with the amendments and the section to which the debate must be confined.
With respect, I am dealing with Amendment No. 1 which deals with damages and personal injuries. I do not intend to go on at great length about this but it has been generally accepted on all sides of the House that in a sense we have something of a Second Stage debate because we have not dealt with this issue previously.
That is not accepted by the Chair.
I can assure you that I shall not stray, in dealing with this issue, any further beyond the Bill than have any other contributors to date.
The Deputy will accept that the Chair is the adjudicator as to whether any Deputy is straying or not. I must confine Committee Stage debate to what is correctly before us.
The issue is to try to reduce the costs incurred by those making claims for suffering serious personal injuries. If you genuinely want to do that, you should introduce the no-fault system of compensation claims. I believe that will have a far more dramatic effect on reducing costs and ensuring that people receive adequate compensation for personal injuries suffered. One of the problems of the current system, when insurance companies talk about large payments being ordered by way of damages, is that people who suffer very serious personal injuries are often provided with very large sums of money, around the £200,000 to £400,000 mark, the damages so ordered in these circumstances being designed to ensure that certain minimal comforts are provided for such people and that they are adequately compensated for loss of income and other losses as a result of the injuries incurred.
What happens on occasions to those who have suffered the terrible tragedy of serious personal injury and make such claims is that very often due to the tragic accident in which they have been involved, either they do not live long enough, to benefit in any way from the court award or the award made goes on occasions away beyond what is necessary adequately to provide for these people and compensate them in so far as they can be compensated for what they have suffered.
If we are talking seriously about reducing insurance premiums — and it is astonishing that the insurance industry here has honed in simply on juries rather than on this aspect — a totally different system of compensation based on annuity payments and damages for distress which would result in annual income being paid out to the person who suffered the serious personal injury would be a far more radical and realistic reform, providing a modern code of law in this area. This would, in the context of the insurance industry, to an extent delimit the immediate damage that any insurance claim can make on their resources whilst also ensuring that those who deserve to be properly compensated for suffering serious personal injuries have that compensation made available to them.
In this context, if we are serious about reforming our laws with regard to personal injuries, providing for a more coherent, a less expensive, a more efficient system of civil justice and at the same time have an anxiety to ensure that adequate compensation is paid to those who suffer serious personal injuries, it is my case that tinkering with the system in this way will not help. A more radical solution is required. It is regrettable that neither the Minister for industry and Commerce, nor the Minister for Justice, nor their individual Departments, have given any detailed consideration of any nature to introducing this more radical approach.
The provision before us with regard to the abolition of juries and to the rules relating to counsel are based on a perception that our court system is inefficient in the way in which it operates and is unduly expensive. Generally speaking, I agree that our courts system is inefficient in the way in which it operates. That is due to the fact that there are too few judges to cope with the amount of litigation coming before the courts. That means that justice is delayed for those who seek redress from our courts. I could never logically see any reason that an individual who requires justice from our courts and must go to the High Court to process a personal injuries claim should find it necessary to employ three or four lawyers, all to give him similar advice and act for him in our courts system.
There is no rational reason for having a solicitor, junior counsel and two senior counsel in any case, unless it is one of the most exceptional gravity and complexity. It is rare, indeed, that there is a case of such exceptional gravity and complexity as to require that amount of legal assistance. What we are doing about this in the context of the Minister's amendment is tinkering with the system. We are not radically overhauling it in the way that we should. The radical overhaul required is not one in which the Minister can, by regulation, determine that one can have one or two barristers in one type of case, perhaps three in another and one in yet another. That is not the way to tackle the matter. This needs a root and branch reform of the legal profession, not just as regards the number of barristers——
Deputy Shatter, I am not going to say this again. Advocating legal innovation or reformation extraneous to what is provided for in the legislation or amendments thereto is not appropriate to a Committee Stage debate. You must accept that and anybody else who is in possession while I am here will have to accept it also.
But, a Leas-Cheann Comhairle——
Excuse me, Deputy. While your personal reflections on the situation in the courts may be interesting, they are not appropriate, as I see it, to the section or the amendments before us. I ask you to accept that and to deal with what we have, rather than what we might have.
With respect, a Leas-Cheann Comhairle, during the course of the debate that took place on this measure on the last occasion, we were dealing with both an amendment and the section — as I understand, a motion. With regard to that issue there was reference made, which fact the Minister can confirm, to the rules with regard to counsel that we are now dealing with in the context of juries and of high court litigation. I do not wish to be obstructive.
Deputy, there may have been a passing reference which would have been in order, but I am quite sure that there was not any great development on that.
There is a notion before the House which enables those matters to be dealt with which we are currently discussing. That motion deals with the issue of juries and also with the Minister's amendment with regard to the number of barristers who can appear in a case. I am suggesting to the Minister that in regard to his specific amendment there is a better way of dealing with this issue than merely dealing with the number of barristers.
Has the Deputy put down an amendment to that effect?
I am entitled to express a view on the Minister's amendment and it is the Minister's amendment that I am addressing.
I fail to see the relevance. However, I wait patiently to hear the Deputy becoming relevant.
As I was saying, I do not believe the Minister's amendment, which would seek simply to delimit the number of counsel who should appear in a case, deals with this issue in the way in which it should be dealt with. The need for a root and branch reform of the legal profession stretches across the solicitors' profession and the Bar. If we want to ensure that people who litigate before our courts can have extended to them, with the minimal amount of expense necessary, a degree of expertise in individual areas of law which ensures that they do not require representation from two, three, four or five lawyers for one court case, the time has come when the Minister and his Department should look seriously at unifying the legal professions. They should allow solicitors and barristers to practice simply as lawyers, to specialise in individual areas, to advertise their individual speciality and allow members of the general public to have direct access to lawyers with regard to their areas of speciality.
There is no reason why members of the Bar should be hidden away in the Bar Library to which no member of the public can have access unless accompanied by a solicitor. I will say no more about that issue other than to say to the Minister that, instead of tinkering with the system, a more rational approach would be a root and branch reform of the legal profession to bring that profession out of the 17th century and into the 21st century. It is remarkable that no such reform has been provided for since the foundation of this State and apparently no such reform is currently envisaged.
On the basis that no such approach will be adopted by the Minister a good case could be made for limiting the number of lawyers who represent an individual in any one case and that should make a small contribution towards reducing the expense of court proceedings. I do not believe the abolition of juries will. I have absolutely no doubt that that will have no effect at all. Deputy Kelly was correct in asking who is to say that the individual citizen who goes to our courts looking for justice and who has suffered serious personal injuries would necessarily do any better in front of a judge alone and get a better form of justice in front of a judge alone who makes a damages assessment than would be obtained from a jury?
In so far as the insurance industry are concerned in respect of the lowering of compensation orders which are made by our courts with regard to damages, it is noteworthy that some of the largest compensation orders have been made by judges without the assistance of juries. I ask the Minister to indicate whether his Department have examined that issue. Can he indicate to us in reply what amounts have been awarded in each of the past three years when High Court judges have assessed damages and what the particular cases related to? Can he also indicate how many of those cases were appealed to the Supreme Court and what the Supreme Court's ultimate decision was? I suspect that the Minister may discover — and I suspect that the insurance companies are already aware of this — that some of the highest damages awards have been made by judges sitting alone. If that is the case, one wonders why the insurance companies want to get rid of juries. Is it simply that they feel they might be able to read the individual judges better themselves? An insurance company who knows that a case is going to come before a financially conservative judge could try by way of settlement to escape from paying an adequate sum by way of compensation to someone who has suffered serious personal injuries?
We hear much about the quirks of our jury system but we hear little about the individual quirks of our individual judges each of whom would have to make assessments under this Bill as to what amount of damages it is appropriate to order. In theory they would do this on the basis of the specific criteria laid down by law. The reality is that they would have a broad degree of flexibility in making that decision and their own subjective views of the value of money would greatly impinge on the decisions made. It is equally my prediction that the suggestion that the absence of juries would introduce a greater degree of certainty into damages awards will be proved to be incorrect in practice and that there will be as much a variety of judicial approaches in the area of damages awards as there is in the context of juries.
The evidence of this can be seen in an entirely different area of our law where Circuit Court judges and High Court judges have to make maintenance orders or awards for the support of dependent wives in family law actions. We all know in practice that there are some judges who make very generous awards and who take a view that large financial sums are required by a wife to support her and her children and we all know that in practice there are other judges who make extremely conservative awards and that, somewhere in the middle, there are judges who make realistic awards. That variety of judicial approach, which results in a great deal of uncertainty in that area of our law and which gets no public notice because all of these matters are dealt with in private, will become clear if juries are abolished under this Bill and power is conferred on the Judiciary to make orders with regard to damages.
The major cost impact in the area of civil litigation — although I am critical of the number of counsel people have to use and although I would like to see reform in this area — derives from the fact that a 25 per cent rate of VAT is applicable on all legal fees which are charged to any individual who has to process a court case through our courts. It is quite ironic that our law in this area currently puts the individual litigant at a considerable disadvantage as against the major corporation or company. The individual litigant who has to pay a 25 per cent rate of VAT does so out of his or her hard-earned income and has no means of reclaiming that money. The large corporation which goes to court and litigates can set off the VAT which it pays on legal fees against VAT it may have coming in the context of income and, as a result, the imposition of VAT has no real impact on any court costs it might incur.
Perhaps the Minister could say something to us about the role of value-added tax for the personal litigant who has to process a personal injuries claim. If one wanted to wipe 25 per cent off the cost of litigation overnight, one could do it by abolishing VAT on legal fees. Therefore, there is a great peculiarity about this debate. It is equally strange that the insurance companies have not at any stage expressed any worry about the 25 per cent rate of VAT on legal fees which perhaps has resulted in an increase of 25 per cent on the amount they had to pay in costs and legal fees when compensation awards were made against them or when they settled claims. Is it because they can set that off and it is regarded as a different financial outlay from the rest of the outlay they make?
I believe that this Bill is well meant. I have no doubt the Minister genuinely believes he is doing something which will improve the position of people who have to litigate through our courts. I have no doubt the Minister genuinely believes it would save them substantial expense and I have no doubt the Minister genuinely believes that in some way the abolition of juries will provide a better litigation system. I have absolutely no doubt that the Minister means well and I have no doubt that other people in this House who think this Bill will solve all of these problems mean well, but I believe they are wrong and it is clear that the back-up work which should have been done by Government Departments has not been done.
I think the claims made by the insurance industry are spurious and that the brokers from the corporation of insurance brokers have come clean and said there is going to be no immediate change in premiums. I believe the claim that judges would provide a better form of justice for people who seek damages for personal injuries than juries do at present is equally spurious. I suspect that the Minister and his Department cannot respond to the queries Deputy Kelly raised as to what the impact on premiums in Britain was when a similar reform was introduced so many years ago. I simply say to the Minister that a more radical approach could achieve some of the things which I believe everyone in this House would like to achieve. The problem in this country is that traditionally we turn our backs against radical approaches. We tinker and play around with existing systems we inherited on the foundation of this State and that have remained unchanged for centuries.
There is one final issue — which arises under amendment No. 1 — to which I want to draw the Minister's attention, that is an aspect of this Bill I believe to be unconstitutional. I know it has been suggested that there may be other aspects of the Bill that are unconstitutional, but there is one particular aspect about which I would have grave constitutional doubts. As this House has an obligation to enact legislation which is in conformity with the Constitution it is only correct that I draw this issue to the attention of the Minister. Indeed I would be interested in hearing the view of other Members of the House on this issue.
In amendment No. 1, which proposes the insertion of a new section, in subsection (6), if one takes the linkage between subsections (1) and (6), as I understand the framework the Minister has laid down — and he can correct me if I am wrong — taking this amendment with a later one there is first an assumption that the provisions of the Bill will come into force by 1 August 1988. Let us assume that will happen. Let us assume this Bill passes through this House, the Seanad, is signed by the President and becomes law. As I understand the framework of the Bill, there may be a variety of court cases in being; people may have issued High Court plenary summonses seeking claims for damages. To illustrate my point I will quote subsection (6) of amendment No. 1 which reads:
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 issued 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.
Taking that subsection, the linkage with the rest of section 1 and a later provision of the Bill, it is my understanding that if proceedings have been issued in the High Court claiming personal injuries, if before 1 August next a notice of trial to have the action dealt with by a jury has been served, or if a notice signifying a desire to have the action or question tried by a jury has been served, that person's right to have a jury trial will be preserved as and from 1 August next. That would mean it would be possible, say, next autumn or early next spring that a number of jury trials will continue to take place although the provisions of this Bill will have come into force.
It is equally my understanding that the intention is that if a plenary summons, for example, was issued this morning by someone claiming personal injuries, that if no such notice as referred to in subparagraphs (a) and (b) of subsection (6) is served before 1 August next, that person will not be entitled to a jury trial and that, as a result, their claim for personal injuries will have to be determined by a judge alone whether they wish that to be the case.
The Minister, his Department and indeed other Members may be more familiar with what was known as the Sinn Féin funds case and a number of other cases of a constitutional nature which derive therefrom, which laid down that the Oireachtas cannot interfere, by way of legislation, with existing litigation. That is paraphrasing what that case determined. It seems to me that if I issue proceedings today, making a claim for personal injuries, I do it today under existing law having an entitlement to a jury trial — and I may only elect out of a jury at some later stage — the type of administration of justice to which I am entitled includes today an entitlement to have any claim for damages determined by a jury, or I might opt for a judge alone. It would seem to me that legislation enacted that interferes with that right, circumscribes it, which curtails or delimits my entitlement to have a jury trial, or which requires me to opt for a jury trial at an earlier stage in the processing of my proceedings in the High Court than is in my interests is an unwarranted interference by the Oireachtas in existing litigation.
Whereas it may be constitutionally correct for this House to pass a Bill which abolishes juries, in the context of future court cases commenced after the date of enforcement of the provisions of the Bill, I believe it is constitutionally unsound to pass legislation which, in a sense, provides a cut-off date for opting to have one's case determined by juries in the context of court proceedings that are in being at the time when this legislation is going through this House. For example, what would be the position if the provisions of this Bill said that after a certain date proceedings commenced in the High Court can be dealt with only by the District Court, and that that applies to all existing, current proceedings that have been issued? It would seem to me that that would be an unwarranted interference with the jurisdiction of the High Court and existing litigation.
To take a more extreme example, what would happen if this House passed legislation which said that all High Court cases in being as and from 1 August 1988, which had not been determined, will fall to be determined by a named High Court judge? It would no longer be a question of the President of the High Court determining who the judge should be but rather it would be a named High Court judge.
I say to the Minister it is my belief that if a constitutional challenge were to be instituted against the provisions of this section, this provision under the new section the Minister is proposing may be held to be constitutionally infirm. Indeed, it may be the case that if and when this Bill is passed the President may be advised by the Council of State that it should be referred, under Article 26 of the Constitution, to the Supreme Court for a decision as to its constitutionality. I will be very interested to hear what the Minister has to say in addressing that aspect of this Bill.
May I deal first with the last point raised by Deputy Shatter. I do not agree with him in relation to the constitutional implications of having a particular date as a cut-off one. I do not believe there is any constitutional argument which prevents this House from reforming the procedures in the law courts in a general sense. It is my belief that this proposal is the fairest one because it would be equally arbitrary to start denying one form of trial to people on the basis that their solicitor had or had not served a document on another person or that a writ had or had not issued before a particular date. If we are going to abolish juries we must do so, carefully, fairly and cleanly. It must be done by reference to a particular date after which jury trials will no longer apply to a particular class of action. I do not believe there is any analogy — other than perhaps a distant one — binding or having a firm connection between the ratio decidendi of the Sinn Féin funds case and a decision by this House to reform the general procedures appertaining to civil litigation of a general class such as a Bill of this type, if enacted, will do.
The second point I want to make is that I feel sorry for Deputy Barrett sitting here, as it were, surrounded in the lion's den. However, I note he now has one ally in Deputy O'Brien, to keep him company while being surrounded by lawyers. It might raise a cynical eyebrow or two that there are so many lawyers in the House today showing an interest in this matter but, on the other hand, it is a good and healthy sign that they are at least——
It might be interpreted even more cynically were we not present.
That is right. If the Chamber was empty perhaps everybody would be complaining that Deputy McDowell or others were down in the courts at the critical moment, or something to that effect. It will be seen that one cannot win when one is a lawyer; that is the beginning and end of that.
I have a view on this matter which is not held by most lawyers. The present system in regard to injury actions, employer's liability actions, and road traffic accidents, or the great majority of them, whereby juries are the determining tribunal of fact and quantum is not necessarily a good system. I know that many of my colleagues at the Bar and in the solicitors profession believe there are a number of arguments for keeping juries that have not been adequately stated, but in many senses the arguments against having juries have not been adequately stated.
The fact, as is undoubtedly the case, that this is done at the instance of the insurance industry has tended to cloud lawyers' judgments of the merits or demerits of the issue which lies at the bottom of it. I would say in agreement with Deputy Kelly that the bauble, a tinselly little bauble, pathetic in ways, of giving young drivers a temporary relief from exorbitant insurance premiums is somehow a quid pro quo for this legislation is an insult and demeaning to this House. It is so stupid that we should change the law generally in order to provide a slightly better deal at the instance of some insurance companies for a particular class of young drivers——
You know who will be boasting that they have reduced insurance premiums?
I know. Even the Minister did not fall for that; I blame his colleague, Deputy Brennan, who I think thought there was a headline or two to be got from saying he was giving younger drivers a better deal by abolishing juries. There is no connection between the two. One is a bribe to this House to do the other. The people to whom this bribe will be of value will not be the young drivers because in the long run economic forces will determine how they will be treated by insurance companies, and post 1992 it will not matter what the Irish Insurance Federation thought about who should or should not get "no claims bonuses" or special deals. It will all fall to be decided by the risk that they as a group represent, and that is the basics of insurance. A special deal. "Green Shield Stamps" of a legislative kind are a bit demeaning for us to fall for.
Absolutely.
We should not listen to the insurance companies going to the Minister and circulating Deputies in this House with demeaning and squalid correspondence to the effect that if we will change the law against plaintiffs, they will undertake not to bring in certain numbers of counsel in cases. What is their undertaking worth? Is it part of the law of the land? Are the Irish Insurance Federation entitled to come to us and say, if you nail down the plaintiff's representation we will guarantee that we will keep down our own representation. That is not law and it has nothing to do with the legislative process. It is wheeling and dealing with the Legislature. It is demeaning. As I have said it is something which is attractive only to the more superficial political minds, and I exempt the Minister who is defending the wicket on this occasion from that category. I think it applies to another of his colleagues, a junior colleague, who on occasions has approached this whole matter in a superficial and lighthearted way, with a view to getting cheap headlines. Although the Bar is not probably one of the most popular institutions, I believe it was shabbily treated by the junior Minister. They dealt with him honourably and he in his——
Can we deal more relevantly with the functions of the Minister in respect of this amendment?
Deputy Brennan, unfortunately——
An Ceann comhairle
The Minister of State.
The Minister of State chose unfortunately to get cheap publicity, and while I will not accuse him of being in anyway unparliamentary he did not keep to the highest standards in dealing with the Bar on that matter. All that put aside, I want to say that in the 19th century contract matters were dealt with by injuries and they decided what should or should not be awarded by way of damages in matters which are now non-jury matters, such as litigation or breach of contract.
Bardell v. Pickwick.
Indeed. Juries were employed much more generally as part of the legal process than they are nowadays. If you look at 19th century and early 20th century law reports you will see that it was commonplace that juries decided what damages the plaintiff should receive in relatively straightforward cases such as goods being substandard. This was got rid of without huge objection, even though it was, to use the classical argument for retaining juries "an instance of the ordinary man being involved in justice".
In Britain they decided to remove juries from the vast majority of cases but there is still an exceptional power to allow jury trial in personal injury cases. However, in the vast majority of cases they dispensed with the trial of personal injury actions by juries. I believe that was a sensible decision. We can chose to what extent we involve juries. In America, juries award billions of dollars in damages against large oil corporations for abuse of competitive or dominant positions and for fraud and so on.
In our jurisdiction we are entitled to take the view that the ordinary run of the mill industrial accident or car crash does not require that 12 people be sworn in and spend day after day listening to very straightforward evidence whether somebody did or did not have a whiplash injury and what they should or should not award for it. Juries were commonplace in the Circuit Court, and I do not think it dramatically affected the quality of justice coming out of the Circuit Court when juries were abolished in the kind of actions the Circuit Court dealt with. In all fairness I think to try any litigation arising out of the ordinary personal injuries accident before a jury is an unnecessary formality.
I appreciate all the arguments that people go away satisfied from a jury verdict, in the sense that they sometimes feel dissatisfied with a judicial verdict. I appreciate the other argument that quantification of damages is not a legal decision since it involves an ordinary man's view. I take fully on board what Deputy Kelly has said about the failings and the frailities of judicial quantification of damages, especially as judges become more and more remote from the hurly burly of life and as age catches up on them. I take all that on board but for the ordinary kind of case that I have seen dealt with in the High Court: fellows injuring their back and putting a disc out, claiming the accident took place at work while they were levering a manhole with the wrong end of a pickaxe and claiming they were not given sufficient keys to lift a manhole cover — such cases are not necessarily capable only of being dealt with fairly by a jury. I do not believe they require a jury.
I think it is wrong to erect huge gothic cathedrals of principle on what are really fairly straightforward situations which can and often are determined by a judge alone. In the case of a car crash where somebody suffers a relatively minor injury such as breaking an arm, we say at present that this is something which can be dealt with by a judge sitting in the Circuit Court but because it is a broken back, the same decision suddenly becomes one which demands a jury because the quantity of damages involved is brought to bear on it. In a sense it becomes more important. However it is still a car crash and it is nothing but a car crash. The quantification of damages in my view does not change qualitatively when it hits some figure like £15,000 or £2,500 as it was some years ago, or even £25,000 were the Labour Party amendment to be taken. I believe absolutely that relatively straightforward car crashes and industrial accidents do not require the formality, the expense and all the delay that a jury trial necessarily means.
When you bring in 12 laymen you must go through the matter slowly. You must go through it in a manner which does not presume any qualities of alertness of mind or capacity to follow technical evidence. If they are to be 12 ordinary people it must be done on the basis of the lowest common denominator in terms of understanding. Therefore it must be done slowly and carefully.
I believe the Minister is correct in seeking to withdraw the ordinary crash and the ordinary industrial accident from the remit of juries. The section as proposed by the Minister is undesirable in a number of ways. First, I do not believe that it should be a blanket rule, because there will be occasions when a jury, as in Britain, available in theory and very rarely availed of in practice, would be an appropriate tribunal to determine some questions of fact and questions of quantification. There are cases, and I have no doubt they are important cases, where a single judge's determination of fact is unacceptable in many respects. A doctor who is accused of medical negligence by a plaintiff puts his whole career on the line the day he goes into court. I know the case is in many ways about the plaintiff's cause of action but, in many respects, somebody like a doctor who goes to court brings his career, his professional reputation, his good name, his lifestyle and his livelihood with him into court.
If a doctor is disbelieved on his oath by a judge on a question of fact and effectively has no redress in relation to getting any appeal on the facts from any other tribunal, it is unacceptable that, as a defendant, he should be effectively put on the sidelines of society by a determination of this kind. People might say that this is a snobbish attitude and ask why I would not allow an industrial worker who has just had a very serious injury to have his case decided by a jury——
(Interruptions.)
There is a distinction between the two cases and if Deputy McCartan gets off his ideological box for a moment and listens, I will explain it.
He just lives like a capitalist.
(Interruptions.)
When a plaintiff goes to court looking for damages, the onus is on him to prove his case. A plaintiff goes to court seeking compensation but the defendant in many respects loses more than his money in that he can lose his reputation along with it. That is the distinction between a plaintiff and a defendant. It may be a subtle distinction but it is a real distinction.
I would have preferred if the Minister had allowed a jury to be retained in exceptional circumstances, since he is talking about allowing different numbers of counsel in exceptional circumstances. There may be some occasion when it would be more in the interest of justice that a jury should determine a negligence case rather than a judge alone, for instance, a case involving gardaí as potential defendants. The average plaintiff coming to court for a case where gardaí may or may not have caused a traffic accident would wonder if a judge weigh a garda's evidence against his fairly squarely.
In circumstances where the State apparatus is involved as part of litigation, it is desirable that there should be an exceptional right to a trial by jury. That is an instance where the ordinary man has something extra to bring to a court case, that is, objectivity where it is essentially needed. There should be an exceptional ground for trial by jury in cases where it should be seen that a judge alone is not making the decision and that the decision is being made independently on the apparatus of the State. People will ask if we do not expect judges to be objective and to be independent. Of course we do, but in the ordinary man's mind there is often a tendency to identify a judge as part of the State apparatus, rather than as somebody holding the balance equally between the State and the individual. A judge who sentences people to prison has in one sense a role as part of the State apparatus and it is hard for ordinary people to see that as a separate function.
As the amendment is presently phrased, in joint actions which involve both a claim in negligence and a claim for trespass to the person, or assault or something like that, wherever there is any element of negligence claimed in the plaintiff's proceedings, it is taken away from a jury and given to a judge alone. If there is any element which strays outside intentional assault on an individual, or false imprisonment, under the law it has to be taken away from the jury. That is wrong. In certain circumstances, for instance, I could claim against the bouncers of a club that they beat me up, or against the gardaí that they beat me up and their defence could be that they negligently dropped me down the stairway in the station, or whatever, or that they negligently failed to treat me for the injuries which I had sustained otherwise. There may be cases where assault and trespass to the person or wrongful imprisonment will be married to a possible alternative remedy in negligence.
In those circumstances the case for assault and wrongful imprisonment must be taken away from the jury if this wording is followed, because the alternative remedy is negligence or breach of duty, or whatever is being claimed as well, by the plaintiff. A plaintiff will be only restricted to black and white cases of assault and will not be able to have available the alternative remedy in negligence, going into one of these actions when it is about to be heard by a jury, because the Minister has drafted his amendment so restrictively. I know what the Minister and his officials were driving at. They were trying to prevent people from bringing in negligence actions before juries by throwing in a little dash of assault or whatever, to get before a jury. The Minister's aim was clearly to prevent people from using wrongful imprisonment or intentional trespass to the person as a vehicle to get around the prohibition on juries trying ordinary accident cases.
I see what the Minister was trying to avoid, but surely the wording of the amendment could have been changed to say that, where the principal claim in the action is for assault or for wrongful imprisonment, it should be triable by a jury. It should not be necessary to completely exclude an action brought for wrongful imprisonment or assault from trial by jury solely on the basis that the plaintiff is holding open the possibility that there was negligence as well. That is unfair to the plaintiff. It is taking away from a plaintiff the right to have his assault action fairly tried with an alternative remedy available to him. The right way to do this would be along the lines suggested by The Workers' Party. They want to say "comprise in whole or in part a claim for". That would allow too much latitude which the departmental officials advising the Minister are afraid of, but there is probably a middle road and that is to say that the principal claim in a proceeding should be for false imprisonment or intentional trespass to the person, and that that should make available to one a jury trial.
In relation to the Minister's amendment, I am probably the only lawyer in this House who will say to the Minister that he agrees with him in general terms——
(Interruptions.)
I am certainly the only practising lawyer who will come into this House and say that I agree with the Minister that juries are not necessary for accidental injuries arising from road traffic accidents and industrial injuries cases. It is a mistake to attempt to keep them there. The Bar of Ireland and the solicitors' profession will not be undone, destroyed or relegated to a minor position by the abolition of juries in this manner.
Many of the things barristers have been forced to do, such as haggling over money for damages, are not the particular arts for which they were educated in the King's Inns where they underwent their legal education. The legal profession should not be afraid of change of this kind and they should be willing to view this change in principle as one which is sensible and the same as in the change in the early 20th century when jury involvement in contract cases was scrapped. The legal profession should not get hysterical over this. If I get back into the debate later I will talk about the number of counsel, in relation to which there is a very profound injustice being planned by the Minister.
If the Minister, first, allowed an exceptional right of trial by a jury where a judge — and judges are not likely to bestow the right lightly — feels that the public interest would be served by trial by jury, he should accede to that. Secondly, he should accede to an exceptional right of trial by jury in cases of negligence where they are ancillary remedies to a main action being brought for assault or wrongful imprisonment. If he would permit of those exceptions to the general principle of what he is trying to bring about, I would be wholly with him. However, I think too much rhetoric has gone into this and too many people have tried to justify what I think is unjustifiable on the basis of high principle when the reality is a good deal more mundane than is made out.
If the Government had sat down with the lawyers and the trade unions and asked them in a rational way to reform the right of jury trial, instead of posturing in public and dealing in these little baubles of young drivers insurance concessions this debate would have been a lot more rational and would have led to a much fairer conclusion.
I appreciate that much of what has been said is relevant to the section and the amendments but I feel I must dissuade Members from making long speeches more appropriate to Second Stage rather than Committee Stage, especially having regard to the time limit on the debate.
I recognise what the Ceann Comhairle has said and I can assure him that I will try to keep my contribution both relevant and brief. We are discussing Committee Stage of this Bill. I regret that a new Bill was not brought in so that the amendments we have before us could be discussed in the context of a Second Stage debate.
I was not in the House for the Second Stage debate.
However, it is a matter of historical fact at this stage. The main reason given for the abolition of juries was that it would lead to a reduction in the cost of insurance premiums. That was the argument put forward by the insurance companies and their lobby in their demand for the abolition of juries. A decision was taken by the previous Government, and reiterated by the present Government, to abolish juries but I am afraid this commitment later developed into something far less positive and the reduction in the price of insurance premiums is now becoming more vague as the abolition of juries becomes more imminent. I urge the Government to ensure if and when juries are abolished that the insurance company lobby, who were so vociferous, will be obliged to meet their stated commitment to try to reduce premiums.
However, there is one qualification I want to put on that. I hope when the injuries suffered by an individual are being assessed that the injured party will be uppermost in the minds of all concerned. Today we are discussing the insurance lobby, the situation in regard to the courts, juries, barristers, solicitors, doctors, engineers and so on but the one person who has to be uppermost in the minds of all concerned is the injured party, the ordinary Seán Citizen. We have to ensure that the compensation he receives is adequate, fair and reasonable.
The jury system has been a safeguard to the person of limited modest means who was able to have his case heard in court. We have to ensure that the injured party will not be in any way victimised. I have already stated that there is no civil legal aid in these cases similar to what is available in Britain and because of our financial resources I doubt if it will be possible to introduce even a limited form of legal aid in civil actions. People will say they have been able to have their cases heard in Ireland and in the past solicitors and barristers brought many cases to court and they did not charge any fees when cases were lost. We are living in a changing environment and if people have problems in bringing cases before courts — and this is likely to occur because of the cost of court proceedings — some basic fundamentals should apply to them. What I am saying is that a case should be initially investigated, a junior counsel's opinion obtained and, if necessary, a senior counsel's opinion obtained, for people of modest means. We have to bear this in mind. I appreciate that it is not possible at present because of our financial problems but because the abolition of juries will make major changes I want to warn the Minister that this could occur in the years ahead.
An injured person has to prove negligence on the part of the defendant. That is all very well but it is a difficult thing to do and the insurance industry have excellent advice and personnel available to them. We have to ensure that people have access to our courts. It would be a sad day if they did not have access to them. People must be allowed to obtain the compensation they are entitled to. I am sorry the State has relieved itself of all responsibility for malicious damage to property in almost all instances. That is wrong and people whose property is maliciously damaged should be entitled to some compensation. Similarly, an elderly person who is injured will no longer receive compensation for his injuries. This is a serious matter. We should try to ensure that people are compensated when they suffer serious injuries.
Matters of law are decided by the judge; matters of fact are decided by the jury. The judge has a specialised training in matters of law but 12 citizens, chosen by lot, bringing together their common sense, their common humanity and their wide experience, are much more likely to provide a fair and balanced view of reasonable people. It is important that that be retained. I am afraid it will not be retained now with the abolition of juries.
There has never been a major cry for the abolition of juries other than from the insurance companies and their lobby. I admit that there has been no major demand for them to be retained either. The issue has not generated any great amount of interest, so really it is not a major issue. With the passing of time it will be recognised that the day we abolished juries was a bad day for the country. It is wrong to do away with juries because judges have little practical experience of working in the marketplace, in factories and in various industries. Many of them come from middle class well-off families. Some come through from ordinary working people, qualify as barristers and go on to become judges, but that is the exception rather than the rule. So many judges have not had the real experience, the hard graft of living down the country or in the inner cities, and so on, where life is so different from the rarefied atmosphere that many of these judges come from.
That is why it is good that judges will be assessing matters of law but, in regard to matters of fact, issues such as the injuries a person living in a high rise flat might have suffered, some judges may not be able as accurately to assess the damages and compensation that should be paid as 12 fellow citizens who bring together their collective wisdom in making those decisions. I mentioned that free legal aid is something that is away in the future, but it will have to be provided at some stage to ensure that there is access to our courts. Deputy Shatter mentioned the removal of VAT. VAT was imposed at 25 per cent across the board and its removal helped to increase access to all sorts of professionals, lawyers, engineers, architects and so on.
I am concerned that the decision to abolish juries is being taken too quickly. What is really being said is that juries are not competent to assess damages. I disagree with that. I believe that they are competent. If we are to follow this point through and accept that a jury is not competent to assess damages a person is entitled to be paid for injuries following the negligence of somebody else, will we, at a later stage, state that a jury is no longer competent to assess whether or not a person is guilty of a crime?
The fact that we have juries has helped to bring the ordinary man in the street into contact with our courts and our judicial system and it is all part of the democratic process. The citizen has been well served by juries and will be the sufferer by their abolition in civil matters. I know it is not in the Minister's mind now to abolish juries in criminal matters but one must ask: if they are not competent to assess damages in civil cases, are they competent to decide on guilt or innocence in criminal cases? In our criminal system juries have been the hallmark of a fair judicial system. The ordinary person could decide, on the evidence, whether a person was guilty or innocent. It is wrong that juries should be abolished in this instance because there is a real danger that the system as we know it will be changed. This system has served the public well. We should take great care to provide some safeguards if juries are abolished. In particular judges should get continuous training in these matters.
People have been speaking about a reduction in the cost of insurance premiums. It is incumbent upon the Minister, as Minister for Justice, to pursue an active and vigilant campaign to prevent people from driving without insurance. This would help to spread the load of insurance premiums across the board. Juries in civil cases are in their last days and this is a sad day and not a wise day. I have the greatest possible reservations about this.
I am, by and large, in agreement with what Deputy Enright had to say. Someone said that there were quite a substantial number of lawyers in the Chamber today. Unfortunately the people who will be most affected by this change, Joe Soap and Seán Citizen, are not here. They are not in the Gallery either.
I am here.
Excluding Deputy Barrett, the Minister and the Leas-Cheann Comhairle. Deputy Enright said there is no lobbying in relation to this. The reason is that the group who may be affected by this, the people who in future may be injured, are not definable at this time. That is why no such lobby is coming to Deputies asking them not to go ahead with this legislation.
I have an open mind as to whether juries should be retained. There are a number of arguments in favour of doing away with juries. Anyone who has been involved in the legal system can see that juries tend to lead to quite substantial delays in the court. When the panel is taken in the juries are selected and four juries may be selected at any one time. Some have to be sent home because there is not a case for them or their case will be taken later in the week or the day. This, in itself, leads to the people empanelled on juries having a very bad impression of the whole legal system.
If the people who have been involved in jury service are asked what they think about it most of them say it was an honour to be chosen but it was a bit of a nuisance they could not go to work, or if unemployed they had perhaps had to go through the mill at the local social welfare office because they were not there to claim the dole. Generally people say it was an imposition on their private lives. Recently on either the "Gay Byrne Hour" or Marian Finucane's "Liveline" a gentleman rang up and said that in England juries are entitled to meals, expenses and whatever, whereas in Ireland they are not. This has been a bone of contention with our jurors for as long as I have been involved in the system. They are obliged to turn up for service when called. Maybe the legal profession and the Department of Justice did not look at that in time.
In recent times because of the large lists in Dublin, jury trials were panned out to various major centres. My home town of Dundalk has been the recipient of the jury trial system for a number of years. That helped the system in both Dublin and Dundalk, but I got the impression that many of the jurors were well known to either the legal representatives or the litigants themselves. I know jurors are under an obligation to declare whether they have any connection with the people involved, but there is no doubt — I have been involved in such cases — the people may not have been known personally but were known by sight or whatever and that in a way makes the jury system slightly unreal.
If I was involved in a car accident or an accident at work and had the choice of trial by judge or trial by jury I would rather have my case adjudicated upon by a jury of 12 ordinary citizens who, as Deputy Enright said, are not subject to the rarefied atmosphere and do not live in the ivory towers some of our judges live in. I would rather that my case would be decided upon by the 12 good men and true. Many of the judges, particularly in the higher courts, have become divorced from reality. Deputy Shatter made the other side of the argument here when he said abolishing juries may not in itself lead to reductions in awards. A number of awards made recently by judges alone were quite substantial, probably much more than a jury would award, given the type of economic atmosphere we have at the moment.
The whole push by the insurance companies in particular, and to a certain extent by the media, to abolish juries is having a delayed reaction, maybe because of a problem with our political system in that we have had a change of Government. When the previous Government brought in this legislation there was an argument for abolition of juries because some horrific awards were being granted by juries, massive awards which the general public began to realise some day they would have to pay for. There was a turning around, as it were, in the perception that juries could be done away with because juries were making nonsensical awards. Generally speaking, any massive award made got headline publicity, but that clouded the issue that the average award made by a jury was reasonable.
Most of these massive awards we heard about on radio or TV or read about in the newspapers were appealed to the Supreme Court and the judges sitting there would have reduced the award, or the parties to the case would have agreed to settle the case before it went to the Supreme Court. The Supreme Court itself set a ceiling in relation to quite a number of cases. I am thinking particularly of the Quinnsworth case which was heard in the intervening period from the first call for the abolition of juries. The legal system in itself started to regulate the types of awards being made. As I said, the need to abolish juries may not nowadays be as great as it was three, four or five years ago.
The public attitude also has changed. People now realise that ultimately they will be the paymasters for any of the major awards that have been made. I am not saying awards should not be made. As most Deputies here said, people are entitled to proper compensation for the injuries they sustain because they will have to put up with the effects for the rest of their lives.
A fault in relation to the legal system, and anyone practising in it will know this, is that insurance companies themselves adopted an attitude that their insurer was never wrong. One of the major insurance companies in the Republic until recently adopted the attitude that their Johnnie was not at fault. Even though a Garda report may have shown without doubt that their Johnnie was at fault, the insurance company insisted on the case going to court, on barristers being briefed and on they themselves briefing two senior counsel, even though there may have been no need for that. I know that because I have acted for insurance companies and I hope they will not take the business from me. The insurance companies are not without sin. They had in their own hands the settling of cases much earlier than before they came to court. Part of the reason insurance premiums are so expensive is that fact and we are now paying for it.
Recently — again, this is a reason why there is not a great need to abolish juries — the insurance companies have adopted a far more reasonable attitude in relation to claims. The insurance inspector will come in and sit down with solicitors or whoever and say that this is an obvious case for settlement and they will try to agree on a figure. At that stage, if there is no agreement, the matter would go to court. However, when the Garda report is issued and the injuries are determined, insurance companies adopt a much more reasonable attitude.
Deputy Kelly and Deputy McDowell referred to the fact that insurance companies seem to be bent on having a Green Shield Stamp system if we pass this Bill. They say they intend to bring in low cost insurance, particularly for young people. I am not in agreement with that system and, if the Bill is passed, the Minister should make it clear that they must conform to various conditions. This was the case when the much-maligned Minister of State at the Department of Industry and Commerce told the Bar that they must comply with certain conditions——
The insufficiently maligned Minister of State.
The Minister should adopt that attitude in relation to the insurance companies because anyone who knows anything about the legal system knows that the abolition of juries by itself will not reduce premiums. The Government, quite rightly, made the point that they are bringing in a package which they hope will reduce costs. However, we are merely dealing with the jury system and its abolition will not reduce costs.
The Minister for Industry and Commerce should adopt a more stringent attitude in regard to insurance companies and he should get a definite commitment from them instead of a mere undertaking to do this. Deputy Shatter referred to subsection (6) and the Sinn Féin funds case. I agree with Deputy McDowell that this section could not be regarded as unconstitutional. The point made was that it deals generally with the system instead of a particular case as happened in relation to the Sinn Féin funds hearing.
Deputy McDowell also made the valid point that a judge sits alone in the Circuit Court to deliberate on cases in relation to occupational injuries or road traffic accidents. Why should it be any different in the High Court? Perhaps there should be a jury hearing a case in the Circuit Court but that is another day's work. Deputy Shatter suggested that we are only tinkering with the system. Perhaps the time has come to merge the Circuit Court with the High Court or, alternatively, there should be a substantial increase in the limit which the District Court may award, which is currently £2,500. The whole system should be more open to my own profession, solicitors, who, by and large, do not participate in cases where the awards are likely to be over £2,500. They would be as able as anyone else to participate in these cases.
I agree with Deputy Enright that the tide is running against juries although that may seem slightly unfair. People most affected will not realise what has happened until they are in court, not in front of a jury of 12 men and women, but before a judge who may not have a sympathetic attitude to their injuries or indeed to the case itself. There are two sides to the argument but the die is cast and the day of juries in civil cases is over.
I should like to take up a point to which Deputy Shatter devoted some time, the question of making a radical change. I do not think Deputy Shatter would consider the merging of courts to be radical or, indeed, increasing their jurisdiction. He wanted to introduce the "no-fault" system and seemed to think that had never been considered. Of course it was looked at and, prima facie, you have to run a mile from it because the cost of a “no-fault” system would be immense. It would mean, in effect, a system of State insurance against all personal injuries. There is no doubt that it would be radical but it is just not practical. We must keep the system we have, which is based on fault, and look at it carefully. That involves being extremely careful and slow in regard to making changes.
I was involved in the genesis of this Bill in 1986 and I had some reservations then about it but I was overwhelmed by the collective wisdom of my colleagues. That constraint no longer applies and my reservations have become much more firm, thinking about the matter since. Having heard them articulated here today by able advocates, I have no doubt that my reservations were correct. The first reservation I have is that we should not change our legal system, particularly in a major way, unless we are certain that the change will bring a better regime for the citizen affected by it. We must be certain that that will be a consequence. We may not be totally certain because human nature does not permit of total certainty, but we should be as near it as we reasonably can that the change will be for the better. All the arguments I have heard today for and against the retention of juries does not convince me — and it could not convince any objective listener — that this change is reasonably certain to improve the lot of the citizen coming into the legal system.
Deputy Enright mentioned the plight of the citizen. He was the only one who mentioned the injured citizen, the person who suffers from the careless driving of a fellow citizen, or who has a lazy or mean employer who does not provide a proper system of work for him——
I spoke on that subject for about five minutes.
I regret that I missed the Deputy's speech.
Deputy Enright also mentioned it.
Deputy Cooney agrees with all the remarks made.
I do. The prime consideration is the person who is injured. He is entitled to have his bodily integrity in its pristine state for the duration of his life and, if that is interfered with and the quality of his life is disimproved by reason of having to endure pain, physical or mental, and if his earning capacity is diminished, he must be adequately compensated. I do not think any victim of negligence who has been awarded damages by a court would say that he got too much. Who are we, on the outside, to say that he got too much? The Supreme Court in a couple of instances said that some victims got too much but because in one or two cases a jury has given what another tribunal regarded as excessive is not a good argument in itself for ending the whole system of juries. It would be as logical to say that because one Deputy makes an intemperate speech we should curtail the rights of all Deputies to make speeches. It would have the same logic and I do not think that should be applied.
The Committee on Court Practice and Procedure in 1970 investigated the question of the abolition of juries in civil actions and came to a conclusion, by a majority view, that juries should not be abolished in civil actions in the High Court. They felt that, unless it could be shown clearly that the cause of justice would be best served by abolishing juries or curtailing their present right, it should not be interfered with. In their opinion, having researched the matter at length, no such case had been established. They were satisfied that the advantages of a civil jury trial far outweighted the disadvantages.
Some of the criticisms of jury trials relate to excessive awards. The number of awards that objectively could be described as execessive — never by the recipient — are very few. They are capable of being corrected in the higher court and because an occasional excessive award has been made is not a good ground for condemning the whole system. It is alleged that jury trials are a significant factor in the high cost of litigation. I do not see how they can be except in one possible way in that they protract the trials. It is agreed that they protract trials by about one-third. They account for about one-third of the time but I do not think that a saving of one-third of the time of the trial will have a significant impact on the costs attributable to that litigation. In any event, even in the present system, the vast majority of cases are settled before they come to trial at all.
There is no doubt that for some years past a comprehensive and carefully structured campaign has been mounted by the insurance industry to get rid of juries in civil cases. It is common case that that campaign was being advised by, and possibly organised by, what one would call a professional communicator not unknown to the gentlemen and ladies on the other side of the House. They employed a professional PR man to orchestrate this campaign. They managed to build up a climate of opinion where it was wellnigh irresistable. It became common case among all sections of society that there was something wrong with juries. It was a notion that became insinuated into the public consciousness without people really analysing why that should be so.
As Deputy Ahern pointed out, there is no organised lobby in favour of juries and by definition there cannot be. Deputy Enright made the point that there was no major outcry to retain juries and that is so because there cannot be an organised lobby to retain them. The case for the retention of juries falls on those who are involved in the legal system and on Members of the House when the case is being made before us to abolish juries. The case I have heard made in the House has convinced me that there is no good reason for abolishing juries. I have not been shown in any contribution in the House how the lot of the injured citizen is going to be improved by going before a judge without a jury. In fact, the arguments tend to suggest the contrary. Those arguments for a case being heard by a single judge were carefully considered by the Committee on Court Practice and Procedure in 1970.
We have a reasonably small Judiciary. Judges are human with the quirks of their own personalities. As Deputy Kelly said, some of them may value £1 as being a lot of money and some of them may have a different regard for the value of money. Their individual perceptions will colour the amount of the award they will give. Their history in practice may also cause them to acquire prejudices or leanings in certain directions. A man may be appointed to the bench after a practice acting for insurance companies. He may have developed a certain cynicism about litigants and about their injuries and he is hardly going to get rid of that cynicism by being elevated to the bench. Yet, what is proposed is that that person will be sitting as a single arbitrator on an injured party coming before him, a party he spent his professional life fighting against. Likewise, some judges may have different values of compensation. It becomes a bit of a lottery as to who is drawn when a case is set down. If a litigant is unlucky he may end up before a judge who is regarded as being biased against plaintiffs or before a judge who is regarded as being ungenerous in his consideration of damages.
Deputy McDowell made the point, when arguing in favour of the change, that a lot of time has to be spent in opening technical details to a jury, that so much time might not have to be spent with a judge. With respect, some judges might require even more time having matters opened to them than would a jury. I do not think that is a good argument.
At least one would know that a judge would understand the argument.
I would not share Deputy Colley's poor opinion of her fellow citizens to assume that a judge would automatically be able to assimilate the complexities of matters pointed up to him whereas we are not sure about a jury. We have to rely on the common sense of the jury.
One cannot physically ask each one what they understand.
We get back to a fundamental legal question which is the test as to whether there has been negligence or not, whether the standard that one would expect of a reasonable man was present or was failing. I do not think a judge is a better person to make that test than 12 fellow citizens. I would prefer the reasonableness of the reasonable man to be engaged by 12 ordinary citizens than by a reasonable judge. It does not follow that a reasonable judge will apply the standards of a reasonable man but what is being proposed leaves us without any choice and we will have to accept whatever a judge finds, conditioned as he is by his background and legal training.
One school of American jurisprudence, in analysing the sources of law, particularly the law made by judges, said that one of the greatest influences in deciding our law was what they call the judge's inarticulate major premise. When that was examined it was found it could be anything, leading that particular school of jurisprudence to be known as the digestive school of jurisprudence because it was found in one case that the unhappy state of a judge's digestion influenced his finding in a particular case.
That may sound like a rather extreme case being made in favour of juries as against judges but it is not so when one considers it. We are all victims of our own inarticulate major premise in some way or another, our own bias or prejudice. We are the victims of our personal history and we are now proposing to send an injured citizen before a single person, subject as he is to all those constraints and handicaps. The arguments in favour of the injured citizen going before 12 of his peers are unanswerable.
Deputy McDowell mentioned the wide right to a jury in the 19th century in a whole host of actions relating to contract and so on. He said that because it was abolished without too much brouhaha it could be abolished now. To compare the conditions of 19th century Great Britain or Ireland with the complexities of modern western society is a false analogy. The class of people involved then was a comparatively affluent, narrow, mercantile class who were quite happy to have their contractual problems adjudicated by one of their own. One hundred years have elapsed and society has become much more complex and more egalitarian.
Deputy McDowell mentioned the jury system in the United States as a reason for curtailing the jury system here. It is a case of different societies, different mores. We should not condemn our system, which has not been producing the same excesses that the US system has produced. We have a system for correcting it on the odd occasion when it could be argued that excesses did take place, although the recipients of what others thought to be excessive awards might not have agreed.
The point has also been made that the jury was abolished without any difficulty in the Circuit Court. The important point to remember is that an appeal from the Circuit Court is by way of full rehearing in the High Court, so that a second mind is coming to adjudicate on the facts. If we abolish juries in the High Court the appeal will not be by way of re-hearing. It will be on a transcript to the Supreme Court. That is a very significant point in demolishing the argument that because juries were abolished in the Circuit Court they should be abolished in the High Court as well. That point cannot be overemphasised.
Deputy McDowell made a colourful point when he raised the case of a man injured lifting a manhole because he was not given proper tools and had to wrestle at it with a badly-made crowbar. He asked why we should waste the time of the jury in hearing such a case and whether it could not be decided equally well by a judge. This is precisely the point I am making. A judge might very well say that the tools with which he was provided were good enough to do the job. The judge's background and training, and possibly his professional career as an insurance company lawyer, might lead him to draw that conclusion, quite objectively in his own mind. He might never have used a pick in his life. On a jury there would be a cross section of 12 people who might have a better perception of the realities of a workman's lot and would be able to come to a better conclusion on whether that system of working was safe or unsafe.
None of the arguments I have heard here for abolishing juries stands any comparison with the arguments for their retention. There is such an area of doubt and uncertainty raised by the two contending sides that the question should be resolved in favour of the status quo. We should not change the status quo of something so fundamental in our legal system unless we are satisfied beyond reasonable doubt that it is for the better. If this debating forum teases out issues in a certain direction which is contrary to that proposed, it should not be ignored. We have been victims of that thinking for too long. There should be more flexibility in the House in hearing a matter debated and analysed and if the conclusions mean a rethink of policy it should be done.
The case had been to some extent won in the public consciousness by the intensive and very proficient lobbying by the insurance companies over the years. One of the great fallacies of that lobby was the tacit implication that premiums would be reduced. In the past couple of months the line is that premiums will at least be maintained or that the rate of increase will decrease. The suggestion of a reduction has disappeared.
If premiums are to be reduced, two important things must be done, neither of which has any connection with juries or courts. In the first place, uninsured drivers must be made to take out insurance and, secondly, the standard of driving on our roads, the standard of vehicles and the standard of the roads themselves must be improved so that the incidence of traffic accidents is reduced. These are the two essentials if there is to be a reduction in insurance claims.
The insurance companies made the case — and it was made at one stage by the Department of Industry and Commerce — that the companies should be entitled to underwriting profits in any class of business. That is the view of the National Prices Commission. Two Government accounting committees examined that view, in the McLean report and the O'Donoghue report. In each case the conclusion was that investment income must be taken into account in determining profitability and that companies have no right to make underwriting profits. In 1984 the example was given of Irish companies in the motor market who made a profit on the motor side before tax of over £7 million. There was an underwriting loss of £24 million but an investment income of £21 million and expenses not charged to other accounts of £10 million. There was a profit before tax after an underwriting loss. It is now being proposed that there should be an underwriting break-even point or indeed an underwriting profit. The total profit could become immense and totally out of proportion.
The case being made by insurance companies that the abolition of juries will bring a great new dawn for drivers or for employers is fallacious. It has not been proved. There is no guarantee that the incidence of claims will drop, or that the level of awards will be reduced. We will have to wait and see what will happen. There will be a kind of lottery as to how the individual judges will perform, whether they will show a bias in favour of the plaintiff or the defendant or whether they will show themselves to be generous or otherwise as regards damages. The unfortunate litigant, the person whose bodily integrity has been injured by the negligence of his employer or fellow citizen, will have to take part in that lottery and if he is unlucky he will not be adequately or properly compensated for the injury he sustained. He is entitled to be adequately and properly compensated. The best guarantee we can give that that will happen is to allow his compensation to be decided by 12 fellow citizens.
I listened carefully to the arguments put forward by those in favour of retaining juries. As I said the last day, having read the statement by the then Opposition spokesman on Justice, Deputy Michael Woods, I wonder why Fianna Fáil brought this Bill back to the Dáil. However, I am sticking by my original stance, that juries have to be abolished from a practical point of view.
I would like people to recall 1984 to 1986 when this Bill was first mooted and brought into this House by the then Government. You can talk all you like about the rights of an individual who goes to court. The reality at that time was that a handful of insurance companies were underwriting motor insurance. Two or three companies were underwriting motor insurance for young people and a handful of insurance companies were underwriting public liability and employers' liability cover. The net result was that the number of people driving on our roads without insurance was increasing dramatically, particularly among the younger age groups. More and more firms were going out of business because, first, they could not afford the premiums they were being charged for public and employers' liability and, secondly, they could not even get the cover. This House had to face up to a situation where an insurance company, which at the time held up to 60 per cent of motor insurance cover, went bust.
We can talk at length about the rights of an individual who goes to court but we have to get back to reality. The reality is that we are a small country that can afford a certain amount and no more. Let us compare our situation with that of some of our counterparts in the EC. For example, in Greece if you are unfortunate enough to be a passenger in a motor vehicle that is involved in an accident, you might not get any compensation because they do not have Compulsory cover for passengers. I have yet to see anybody in Great Britain start a campaign for the re-establishment of juries in that country. All these unfortunate people are supposed to be without adequate compensation as a result of injuries but I have not read one line where there has been a demand for the re-establishment of juries. I have not read one line about people who brought their cases to court for perhaps breach of contract, who feel they are not getting a fair deal and want juries re-established. They do not seem to think that these judges we have heard about for the past couple of hours who will not be humane enough to deal with an individual plaintiff who has suffered very severe injuries will not grant a just reward.
At the end of the day we have to deal with reality. The reason there are now more insurance companies in the marketplace is that when the Courts Bill, 1986, was published more companies came back into the market for public liability, employers' liability and motor insurance. That, in itself, had the effect of stabilising premium rates and in some cases reduced, through competition, premium rates in employers' and public liability. In particular it made cover available to those the law of the land obliges to carry insurance. Motor insurance is not something that you take upon yourself to pay if you so wish. The law obliges you to do so.
I have listened to various arguments in the past 18 months about cuts in public expenditure. I do not like cuts in public expenditure, in education or in health. I would love to see people getting a far better health service, a far better education service and a far better service in most areas but the reality is that we have only a certain sum of money to spend. At the end of the day it is difficult to justify any cut, just as it is difficult to justify not giving somebody £500,000 who is unfortunate enough to lose an arm. Who am I to say that Deputy McDowell or Deputy Cooney should not get £500,000 if they are unfortunate enough to lose an arm. Will £500,000 compensate you for the loss of an arm? If we want to have insurance companies underwriting risks we will have to have some sort of system whereby if people suffer a certain type of injury it will be reasonably predictable as to the compensation that will be awarded in that case. Otherwise people will not underwrite the risks that we want them to underwrite.
With the greatest respect to those who argue in favour of the rights of the individual who finds himself or herself in court, there are thousands of people who have to pay the premiums every year. I want to be able to say to young people that the premium they will be charged for the cover the law obliges them to have is reasonable enough, that they should pay it and that the law of the land will punish them severely if they do not carry that cover. Whether we like it or not there is a direct link between this Bill and insurance. That is a fact that we cannot deny. This Bill would not have been introduced if there was not a difficulty in the insurance industry. I want to say to people that they have premiums that are reasonable and if they do not pay them we will throw the book at them. I am not going to tolerate a situation where a higher percentage of people every year are driving vehicles without proper insurance cover.
The Motor Insurance Bureau are funded by insurance companies and indirectly by myself and others who are paying our premiums. People who have no insurance cover and are involved in accidents cause personal injuries to people and others have to pick up the tab for them. I do not think that is just in the same way as people may think it is not just that one person should judge how much should be given out in a particular case as against 12 people making the decision. It is not just that I should have to pick up the tab for people who drive around without insurance cover and are involved in an accident causing personal injuries. Many things have to be taken into account when deciding whether the abolition of juries is right or wrong. I am on the side of practicality. It is practical, first, that we have a system that gives the cover we want people to have and, secondly, that we have people to underwrite it.
There is another section in this Bill which causes me concern and that is the section which deals with the restriction on representation when people go into court. That is a far wider principle, but I will deal with it later.
That is not relevent at the moment.
I will be very brief because I know we do not have very much time to discuss this. This legislation was brought in by the previous Government in 1986 because of the situation the country was in in relation to the motor insurance industry. I do not believe anything extraordinary has happened in the meantime to suggest that more and more insurance companies will be anxious to underwrite motor insurance. I made it clear the last day that I would not be accused of representing any lobby group, but the reality is that a number of insurance companies came back into the market because that Bill was published. They felt this was a justifiable reason for them to get involved again in underwriting certain classes of business. They felt they were going to get a fair deal.
I agree with some of the points made by Deputy Cooney when he spoke about the application for increases in rates and that we must take into account the return on investment that insurance companies are getting as well as underwriting the profit and loss account. That is a valid point but other things could be done in relation to underwriting motor insurance in particular. I have always held the view that we should have a system where each individual carries their own insurance instead of insuring the vehicle. In that way everybody would contribute to the pool. In my book to have one policy covering ten people is nonsensical. If everybody carried their own insurance more people would be contributing and the premiums would be lower. That should be looked at when we are talking about the cost of motor insurance. I have yet to hear a valid argument suggesting that what I am proposing is not correct. However, that is for discussion another day.
In relation to the issue we are discussing this evening, the reality is that some years ago the major motor insurance underwriter went bang and the State had to rescue the company which covered 60 per cent of insured motorists. I would not like to see more people without insurance cover, fewer people contributing to the pool and the few picking up the tab for those who refuse to pay their fair share.
If the House finds that the public are not getting a fair deal because of the abolition of juries and that judges are not treating plaintiffs in a humane way, there is nothing to stop us re-establishing juries in civil actions. If we can abolish them we can re-establish them.
The Deputy is not being realistic.
I am being very realistic. The reality is we have the power to re-establish juries if we wish. If we find people are not getting a fair deal, we can change the law as easily as we are doing now. The reality is we have to look at the insurance industry and the obligations on people to carry motor insurance in particular.
It is a pity employers are not forced to carry employers' liability cover because many people suffer when an employer does not have adequate insurance cover. When the employee brings an action against the employer they find it is a waste of time because there is no money to pay them. In 1985-86 one jury would give Y award for X amount in a particular case and a month later in similar circumstances another jury would give Y amount — the amounts granted could be poles apart. Insurance companies found it difficult to get realistic settlements and many cases were settled on the steps of the court. At the end of the day the insurance companies are using my money because my premiums go into that pool which is used to pay awards.
I do not want to see anybody who has been unfortunate enough to have received serious personal injuries not getting a proper award. That would be a retrograde step. I want to see justice being done as far as possible, but I do not believe we can ignore reality. The reality is there are a small number of people contributing to the pot out of which claims have to be paid. I could argue for those thousands of people who are paying high insurance premiums and never get a penny back.
I respect the views expressed by those who fear the abolition of juries but, on balance, I believe what we are doing is in the interests of the majority. As I said, if we find it has not worked there is nothing to stop us coming back to the House and not alone re-establishing juries in the High Court but introducing them in the Circuit Court; we do not have juries in the Circuit Court at present — I listened to Deputy Cooney's argument about that — nor do we have juries in the Supreme Court. The insurance companies know that if the Supreme Court lays down guidelines for general damages and the jury in the High Court action go beyond that figure, the case will be appealed to the Supreme Court. This has happened in the past.
Why do we need to abolish them?
How will the individual suffer? Judges are deciding the limit——
What is the point in abolishing them?
I said I respect Deputy Taylor's viewpoint and I am arguing my viewpoint. The Deputy's party in Government with Fine Gael decided to bring forward this legislation and we did so——
I voted against it.
At the time it was a good piece of legislation.
I can quote four witnesses if the Deputy likes.
Deputy Taylor has the habit of quoting what happened at the Cabinet table. I have always respected secrecy at the Cabinet table. This has been a tradition since the State was founded, and long may it continue. I would hope any Cabinet member would be able to express his or her view around that table without hearing, two years later, another Deputy quoting what he or she said at that time.
The Government have collective responsibility under the Constitution and the Coalition Government decided on something given the circumstances of the day. I believe they acted correctly and their actions stabilised the insurance industry. They brought more companies back into the market place and the public at large are benefiting from that action. I stand over that decision, and hope we will pass on to the next section. Even though people may disagree with the abolition of juries, the case has been made for and against.
I would like us to get to a very important issue, that is, the right of an individual to have legal representation when they go to court, whether it is before a judge or a judge and jury.
On a point of order, am I right in thinking we are dealing with amendment No. 1 and not the related amendments?
Amendment No. 1 and amendments to amendment No. 1.
We are discussing amendments Nos. 1, 2 and 3 together.
In reference to the remarks made by Deputy Barrett about an insurance company which had about 60 per cent of the motor business in the country some years ago, and then got into trouble, my recollection is that that company came into existence after a campaign that insurance cover could be retained and insurance premiums abolished or some such campaign. Of course, that company got into trouble and had to be bailed out.
Another Irish company took up business across the water and reinsured every crazy risk on which they could get their hands. They got into trouble and had to be bailed out, also. I think I can say I have no vested interest in the remarks that I make on this Bill. I have not been associated with a solicitor's practice since 1973, but for over 30 years prior to that I acted in the courts of this country, for plaintiffs and defendants, in the Circuit Court and the High Court for plaintiffs and — believe it or not — insurance companies. At that time a country solicitor thought he had really landed if he was allowed to act for insurance companies in Dublin.
It is still the same.
In that period of over 30 years, I acted for a middle-aged woman who had been less than generously treated in the matter of wages by her employer. When her case had been settled she shook me by the hand and said: "Goodbye, sir"— she called me sir before I got into politics.
What does she call the Deputy now?
She said: "Goodbye, sir and God bless you, for only for the like of you the poor would not be let live". What that woman was really saying or thinking was that were it not for the courts of this country and were it not for the fact that access to the courts was available to all and on equal terms the poor would be trampled on by the strong and the wealthy.
I believe this Bill is a dangerous one. It is embarking on an interference with the administration of justice, although that is not the intention behind it. This Bill is about insurance premiums, their level and their reduction. That theme has been running through this debate since it started. We have heard very little about the injured person, about the man whose career has been destroyed and who will be unable to earn anything for the rest of his life. Fair enough, Deputy McDowell did mention that aspect when he introduced the case of an action for negligence against a doctor. Deputy McDowell is one of our leading barristers. Many people would regard him as an ornament at the Bar. If he were promoted to the Bench, I have no doubt we would have leading articles saying this is the sort of man that we want there.
Hear, hear.
Do the Fine Gael Party want back the seat in Dublin South-East?
He made the strongest possible case for the retention of the jury system. He stated, if I understood him correctly, that that system should be retained in some cases. He gave an example of an action for negligence against a medical man, saying that the jury system should be retained there because if the case went against the doctor his career was gone, his reputation was gone and he would be accused of perjury. Perhaps I am not interpreting Deputy McDowell correctly but he gave me the impression that one should be very slow to decide against a doctor. If that is so and if Deputy McDowell is a typical example, because of his qualifications and his judicial approach to things of someone whom we might find on the Bench, then I certainly think that that is an unanswerable case for retaining the jury system.
Hear, hear.
I am not saying that in any personal way. The effect of this Bill, if enacted, will be to make it more difficult for the average person to have access to the courts on equal terms with his opposite number. This Bill deals with a class of case, 99 per cent of which will have a wealthy insurance company on one side and a man of little or no property on the other. It may be said that this has always been the way in this country, that we had wealthy litigants on one side and a poorish person on the other. We had no free legal aid system here.
One of the points made — and made with some considerable force here — is that we are the only country left with a jury system. However, the people who say that do not go on to say that we are the only people left, in this part of the world, at any rate, without a free legal aid system. We have, I know, a free legal aid system on the criminal side. We also have some sort of Mickey Mouse free legal aid system confined largely to family law, and let me say that it is doing an excellent job with the amount of money that it has at its disposal.
We have here an Irish solution to an Irish problem in so far as the man of no property is concerned who wants to have recourse to litigation. We have the jury system coupled with the two senior counsel system. Those two institutions are ridiculed, but they have stood behind the litigant with little or no means. All litigants, or 90 per cent of them, who go to the High Court are poor people. Nobody can afford to become involved in a High Court action which will go on for three or four weeks, or even for a week, if he has to pay out of his own resources. An eminent senior counsel, now deceased, told me that no matter what he was sued for in the High Court he would settle because he could not afford to fight the case. If we do away with the jury system and the two senior counsel system, it will not be possible for people to have their cases brought to the High Court and litigated there. I think that the insurance companies are inclined to exaggerate things.
Progress reported; Committee to sit again.