Vol. 382 No. 1
Amendment No. 1 in the name of Deputy Anne Colley.
Amendment No. 1 is consequential on amendment No. 14. Amendments Nos. 15 and 16 are alternatives to No. 14. With the agreement of the House, for the purpose of discussion we can take amendments Nos. 1, 14, 15 and 16 together. Is that ageed?
Agreed.
I move amendment No. 1:
In page 2, lines 7 to 9, to delete "FOR THE REGULATION OF THE NUMBER OF COUNSEL APPEARING IN CERTAIN ACTIONS" and substitute "FOR THE REGULATION OF THE NUMBER OF COUNSEL IN RESPECT OF WHOM COSTS IN CERTAIN ACTIONS MAY BE RECOVERED".
Amendment No. 1, which relates to my amendment No. 14, deals with the issue of the number of counsel appearing for whom costs may be awarded in actions covered in this Bill. Amendment No. 1 relates particularly to the title, and this amendment appeared on Committee Stage. I put it again because I believe that, perhaps due to time constraints on Committee Stage, it was not possible to deal with it properly. I would like to put it to the Minister that the amendment we are suggesting is correct in terms of the effect wished for in this Bill. The title has already been amended to allow for sections dealing with the numbers of counsel for whom costs may be taxed, but the title still says that the number of counsel appearing in certain actions are what is being regulated. I submit it is the number of counsel in respect of whom costs may be recovered. I ask the Minister to have a further look at this and perhaps he will be in agreement and will see his way to accepting this amendment.
Amendment No. 14, however, is the substantive amendment and is a substitute for section 5 in the Bill as amended in Committee. It deals with the possibility of the Minister introducing regulations to specify a different number of counsel and the type of counsel involved in an action for whom costs may be recovered. Substantially, our amendment does not differ greatly from the Minister's except in two main areas. The major one is where I make provision in my amendment at subsection (3) for the evening up of the odds as between the plaintiff and the defendant. I suggest to the House that the Bill, as amended in Committee, would allow the Minister to make regulations which could be used by a defendant — an insurance company which was a defendant in an action — to allow an uneven distribution of force as between the number of counsel involved on each side. It could be that it would be left to the plaintiff to pay out of his own pocket for any number of counsel above one in normal circumstances and two in exceptional circumstances. That could lead to unfairness and injustice.
I ask the Minister to consider if, in the unlikely event of regulations having to be introduced, he would consider it would be fairer to ensure that the party who is ordered to pay costs knows that he or she will be liable to pay costs for the same number of counsel on either side. I think that is only fair and just. No ordinary individual is in a position really at any stage to retain counsel or solicitors out of his or her own pocket. Most people cannot countenance doing that without some kind of financial backing. The Bill does not cater for the difficulties which might occur on the introduction of regulations and those who are in that extraordinary position of having to go to court will find it far more difficult than they would have otherwise to keep up with the kind of representation the insurance companies could afford to bring in. We have heard here in the House talk of "big guns" and the difficulties for the small person in the court facing large companies like insurance companies and the headstart they would have. I submit that the amendment here, particularly subsection (3) would go a long way to resolving that problem.
In relation to subsection (1) of our amendment, we have stipulated that where the Minister is of the opinion that by reason of any practice an excessive number of counsel are retained he may then make regulations. It is wise that the Minister should have to inform himself of these practices whereby an excessive number of counsel are retained rather than going ahead and mking regulations without having to have regard for issues such as that. As it stands there is no demand that the Minister must have regard to such circumstances existing and it would be fairer for the Minister to take that on board.
The Bar Council were treated rather badly in the last number of months in connection with the introduction of Committee Stage of this Bill. I believe there was a real willingness on the part of the Bar Council to change their practices quite substantially and to go even further than was being asked of them at the time by the Minister of State responsible for trade and marketing. Nevertheless, they showed good faith. They had held an extraordinary general meeting which unanimously authorised the Bar Council to change these practices. Having done that, the Bar Council then found they were, nevertheless, going to have regulations foisted upon them. That seemed to be the impression that was left with them and with the public in general. I appeal to the Minister to clarify whether he intends to bring in regulations, and what circumstances he would see leading him to have to do so, and to clarify it in general so that the possibility of coming to some future agreements with the Bar Council is not jeopardised because of what has happened in the last number of months.
If regulations are introduced under the section we could find that the tradition of barristers giving their services on the basis that if the case was successful they would be paid and if it was lost they would not, could be threatened. The regulations could radically change the listing system which operates in the courts. Barristers who up to now would have made themselves available may not be in a position to block out their time over a long period without knowing if they would be getting paid for the case.
Regulations should even up the balance as between plaintiff and defendant, particularly where insurance companies are involved, and subsection (3) of amendment No. 14 goes a long way towards doing that. It does not, and could not, address the problem of equality of representation for the plaintiff; but, as far as possible, it evens up the number of counsel who would be involved. Amendments Nos. 15 and 16 would be alternatives if amendment No. 14 is not accepted. If regulations are being made under the section it is only right that they should be brought before the House for debate so that the House will be clear on the implications of them.
The provision under discussion is new and was not included in the Bill published two years ago. We have not had a Second Stage debate on this radical measure which alters greatly the impact of the Bill. If passed it will have an enormous impact on practice at the Bar and on our judicial system. Once more we have an example of the dangerous practice of rushing through legislation. The least we can expect if regulations are introduced under this section is that they will be brought before the House and fully debated. I stress the latter point because there is a danger that we would be permitted one hour or so to debate them. That would not give us an opportunity to put forward our arguments on such regulations. We must remember that the House must consider all the implications of any legislation introduced. I hope the Minister will not find it necessary to introduce regulations but in the event of them being brought in they should be debated here and, if necessary, voted on.
Amendment No. 15 is in my name. For technical reasons that amendment was not accepted by the Minister on Committee Stage because when the composite question was put only amendments in the name of the Minister for Justice could be accepted.
That is so.
I got an assurance from the Minister for Industry and Commerce, Deputy Reynolds, who dealt with the Bill on Committee Stage, that regulations would not be introduced to control the number of counsel in respect of which costs may be recovered unless negotiations between the Minister for Justice and the Bar Council broke down. I am confident that will not happen. I have sufficient faith in the integrity of the Bar Council, and faith in the word of the Minister — I hope he repeats this evening the assurance I was given on Committee Stage — to know that the regulations will not be introduced if a suitable agreement can be reached between him and the Bar Council under which at least one senior and one junior counsel will be present for a case, except in exceptional circumstances when two or more senior counsel may be needed.
I was interested to hear Deputy Colley's remarks about members of the Law Library representing individuals who do not have the money to pay the costs. Deputy Colley felt the arrangement that exists might be affected if regulations are introduced by the Minister. That tradition was brought home to me by a constituent who is in receipt of disability benefit and lives in a caravan. Following an accident she took a court action but her solicitor, and the senior counsel engaged, will not receive any fee for that case because she lost, although I thought it was a good action. That individual would not have had an opportunity of having her case heard in a court unless members of the legal profession were prepared to give their services on the basis of a fee if the case was successful. I would not like to see anything happen, perhaps through a misunderstanding, to that arrangement. Long may that arrangement continue. We must take that into account when making any changes. We should not be afraid to protect the rights of individuals to earn a decent living provided they, in turn, play their part in helping the community. There is a need for a good working relationship between the Bar Council, the Minister and his Department on this issue.
I should like to ask the Minister to accept amendment No. 15. He should announce that it is not his intention to introduce regulations unless he fails to reach agreement with the Bar Council. That commitment was given by his colleague, the Minister for Industry and Commerce, last week. If that announcement is made, the Minister will be meeting the views of all sides. I will not delay the House any further if the Minister gives that assurance and accepts my amendment.
Standing Order No. 92 (1) of Dáil Éireann requires that the title of a Bill shall contain "a short description of its purpose". The purpose of section 5 of the Bill is to deal with the problem of over-representation by counsel in personal and fatal injury cases, and to reduce the number of counsel appearing in these actions. The way that this is being done is by placing a limit on the number of counsel in respect of whom costs may be allowed on taxation. That is the approach being adopted for legal reasons. There would be difficulties in a provision that would attempt to directly limit the number of counsel appearing in a case. I may add that the draftsman, with whom the matter has been discussed fully, is quite happy with the Long Title as it stands. I consider that the present text of the Long Title, as amended on Committee Stage, is adequate and conforms with the requirements of Standing Order No. 92 (1).
Amendment No. 14 differs from the provisions of section 5 of the Bill, which was inserted on Committee Stage, in two main respects: (a) subsection (3) would require the regulations to provide that the maximum number of counsel in respect of whom costs are recoverable would not be fewer than the number retained by the party ordered to pay costs and (b) subsection (4) would require an approving resolution of the Dáil before the regulations could take effect. While I have reservations about the way subsection (3) is phrased, I appreciate what it is trying to deal with — the fear expressed by a number of Deputies that wealthy insurance companies will not be deterred from employing a greater number of counsel than would be allowed for on taxation and that the ordinary plaintiff, who must pay out of his own pocket if he loses, would be placed at a disadvantage. In view of the assurances which I have received from the insurance companies, I would not think that there is much basis for that fear. However, if it transpires that I am wrong in that, I can assure the House that it is a matter that I would provide for in any regulations that I would make. The regulations could provide, for example, that the Taxing Master, in awarding costs, would have regard to the number of counsel retained by the party ordered to pay costs.
As I have indicated previously to the House, it is my intention to postpone the making of regulations until I have had an opportunity of seeing how matters develop once jury trials go. If there is a need to deal with the sort of problem envisaged by subsection (3) of this amendment, I will not hesitate to provide for it in regulations. As I have already indicated on Committee Stage, I accept that any regulations proposed would be subject to an approving resolution of each House — not only of the Dáil as this amendment proposes, but of both Houses of the Oireachtas. The House will, accordingly, have its full say as to what safeguards should be inserted in the regulations. I suggest that is the best way to deal with this matter and that it should be left for the regulations.
Subsection (1) of the amendment differs from section 5 of the Bill in that it would require me, before making regulations, to be of opinion "that by reason of any practice whereby an excessive number of counsel are retained... the amount of costs recoverable on taxation are unreasonable". I do not think that this is necessary or that it adds anything. I would not propose regulations unless I felt there was a need for them in the light of experience and, in any event, any regulations I would propose will have to be debated and approved by the Oireachtas.
In regard to the amendment No. 15, it was stated on my behalf on Committee Stage that I am prepared to accept Deputy Barrett's amendment. This will have the effect of substituting a provision for a positive resolution by both Houses of the Oirechtas for the present provision in subsection (3) of section 5 of the Bill. It means that the Oireachtas will have full control over any regulations I may introduce to limit counsel's costs. With regard to amendment No. 16, tabled by Deputy Barrett, the same applies and I am prepared to accept it.
Two things occurred to me from what the Minister has said. Firstly, whereas I appreciate that he shares the concern of Deputy Colley in her amendment, that the equality of fire power is something which should be kept in mind, I wonder is section 5 (1) of the Bill wide enough to allow him to put an equality of fire power provision into a regulation. It was because of doubts on that issue that Deputy Colley put that in. If she thought that it was possible to do so in regulations I presume she would not have bothered proposing that we put it in statutory form. Section 5 (1) states:
Notwithstanding any provision made by or under statute, or any rule of law or practice, the Minister may specify by regulations the maximum number of consel in respect of whom costs may be allowed, on taxation by a Taxing Master, for payment by another party or other parties...
It does not seem to allow the Minister to make regulations by saying that the Minister can, by regulation, vary the number of counsel employed by the other side. If the Minister understands it to have that effect, to allow him to make such a regulation, so be it, and obviously it is unnecessary to put it into statutory form but Deputy Colley's amendment at least had the advantage that it forced him to take on board the equality of fire power provision. I am concerned because the Minister is claiming that section 5 (1) is sufficiently wide to allow him to do that. He says he is so advised and I will not query it. An insurance company may in time decide that section 5 (1) is not that wide but that is, perhaps, a matter for court.
The equality of fire power principle is only a matter of choice. Admittedly, in view of the fact that Deputy Barrett's amendment is being accepted, if the Minister's view is correct this House will be in a position to put that into the regulations or to ensure that it is inserted in the regulations before the House approves them. It is important that it be on the record now that the House is passing this measure in the light of a determination that if and when regulations are made under this Act they will contain an equality of fire power clause. Therefore, no Minister can stand up later and say that this is outside the ambit of regulation and that he cannot accept the proposition.
I accept that.
In relation to equality of fire power, the person will have a letter from the Insurance Industry Federation and that is fine until it comes to little "Joe Soap" who comes up against an uninsured employer or an employer who says: "I want to beat him down; I am retaining more counsel to deal with this case". The person may come up against somebody who does not have an insurer behind him and who is not privy to the undertaking made to the Minister and in those circumstances he will be caught by the inequality of fire power. No matter what assurances you get, there will be occasions when the rich specialist who has no insurance of any kind is sued for medical negligence and he will witness the hefty team. In other words, there will not be equality of fire power where the insurance company's agreement is not binding. It is a mistake to make one law for cases where insurers are involved and another law for cases where they are not involved. I want to underline what I perceive to be Deputy Colley's correct view — that is that the equality of fire power provision must be built into any regulation in regard to the number of counsel. You cannot ask a plaintiff to undertake an uphill struggle in terms of numbers.
I hope the Minister's discussions with the Bar Council — I am wearing my lawyer's hat now — are fruitful and that no regulations under this Bill when it becomes an Act will be necessary. It is my understanding, from what I have been told by the Bar Council, that they are willing to negotiate in good faith with the Minister and always were willing to do so. They went as far as they thought they were being asked to go and then discovered that more demands were being made of them which they were not even aware of when they had their extraordinary general meeting to which Deputy Colley referred.
I hope that in dealing with this issue, the Minister will bear in mind that there are cases where, due to their length or complexity, more than one barrister is needed. If you prescribe a maximum of one barrister per plaintiff, you are saying to the plaintiff that some of his damages are going to be applied inevitably towards paying for the correct number of counsel in the case. Some of what is his correct entitlement in damages is applied to his lawyers and that means he will get less than his correct entitlement in those circumstances. It is wrong for us as a House to seek to limit, unless there is a very good case to be made that there is something going against the public interest, the number of counsel which a plaintiff who is trying to recover damages can employ in order to do justice. I know that is to open the floodgates, but the other point is there can be overmanning of counsel if the plaintiff is allowed to choose how many counsel he wants without any regard to the questions in issue.
I want to make the point that where money has to come out of damages it is an injustice done. There are many solicitors who are taking 10 per cent off the top — I hope I will not be held to be disloyal by some of the solicitors in this House when I say that — but to me that is 10 per cent out of what the court has determined to be the entitlement of their clients. If we limit the number of counsel too rigidly, we will be further invading the compensation function of the court by requiring more and more burden to be borne by the individual plaintiff.
The title of this Bill is the Courts of Justice Bill, 1988. That presupposes that the Bill is about the administration of justice and the protection of rights, particularly the rights of the small man against the big person or a corporation. However, that is not what this Bill is about at all. This is about insurance premiums and the reduction of insurance premiums. It is being introduced and passed as a quid pro quo with the insurance companies — if this Bill is introduced, premiums will come down. I do not believe for one moment that the premiums will come down. I also do not think that counsels' fees in any running down action will be reduced dramatically as a result of this legislation. If there is only one counsel on each side, that counsel will commit himself to devoting his full time and attention to the hearing of the case for the duration, certainly the insurance companies counsel will do that, and he will charge a fee accordingly. When it comes to taxing the costs of the successful plaintiff I would be very surprised if the Taxing Master did not ascertain what was paid to the counsel for the defendant and tax the plaintiff's counsels' fees accordingly.
The effect of this legislation will be to make it much more difficult for the man of no means, or even the man of moderate means, to gain access to the courts. He will start off under a very big handicap. The amendments we are dealing with now seek to provide that there will be only one counsel or two counsel at most — one senior and one junior — for the plaintiff and the defendant. I put it to the House that while one counsel might, and could be said to be quite adequate for the defendant in such an action particularly when the defendant is a wealthy insurance company which can guarantee a handsome fee to the counsel no matter how long the case goes on, that one counsel could be quite inadequate for the plaintiff because the counsel who would take on the case for the plaintiff would be committing himself to perhaps a two weeks trial, and frequently a week's trial, with no guarantee that he would get one brass farthing at the end of it. If he loses the case the brief goes into the wastepaper basket and that is the end of story. If that happens to a counsel several times a year, he will end up a not very wealthy man. He will be very choosy about getting committed to such cases because if he takes on a brief and walks out on it, it will be very like the present position in a criminal case. He will be adversely commented on by the trial judge. That is the important point.
As I said in my opening remarks, this Bill is also all about insurance premiums and the reduction of insurance premiums. If I ever wanted to satisfy myself that I was thinking correctly, it was when I heard across the floor today assurances given that "we have exchanged letters with the insurance companies and they have undertaken to do this, that and the other". I take all that with a grain of salt. They will find ways and means out of that.
We have heard in this House on several occasions in recent years about an Irish solution for an Irish problem. Since the foundation of the State, a poor man, or a man of moderate means, was never deprived of the right to go into court particularly in a personal injuries act. He could always get a solicitor and a barrister to bring his case into court and to fight his case for him. That was because there was an Irish solution for an Irish problem. The problem was there was no free legal aid system in this country, nor has there been and there is not now so far as running down actions are concerned and indeed as far as most actions are concerned, with the possible exception of family law. That was and is the problem. The solution was two senior counsel between them decided that they would run the case for the plaintiff and he would not be left without a senior counsel to look after his case at any particular time.
This legislation is setting up, under pressure from the insurance companies which has been going on for years — it was going on when I was a member of the Incorporated Law Society and if I had not become a Minister in 1973, I would have been President of the Law Society in 1974 — to get rid of juries and two senior counsel. This pressure has been going on ever since and has been championed in the council chamber of the Incorporated Law Society by a clique of fashionable lawyers in this city who enjoy the patronage of the insurance companies. They have been fighting the case for the insurance companies and that is the reason this proposal to abolish two seniors is before the House. The Minister in all his innocence tells us that he has a letter from insurance companies saying they will be good boys and will not take advantage of the poor fellow. Why do they want this change? I do not think it will reduce counsels' fees. If there is a case which is to go on for a fortnight or three weeks with only one senior, the insurance company will not mind giving that senior an introductory fee of £3,000, plus £2,000 a day thereafter. Counsel will certainly be paid. However, if the man who ends up in a wheelchair for the rest of his life wants to take a case it will be at the real expense of the counsel, who will have to take the case on the basis that if he wins he will be paid but if he loses he will not be paid.
I was against this proposal when I was a practising solicitor and spoke against it when I was a member of the council of the Incorporated Law Society. I am still against it. I have not much faith in these regulations. My experience of nearly 30 years in this House leads me to believe that I am right. How many people read the reports of the debates on the Justice Bills in 1924, 1936 and so on? Of course people do not read them. The report of this debate will not be read either.
I am sorry to interrupt, Deputy Fitzpatrick, but I am concerned about a long speech on Report Stage which might have been more appropriate on Second Stage. I am concerned also that we should relate our remarks more closely to the amendments under discussion.
My arguments to date have been directed to showing the effect that the proposal to abolish two seniors will have on the underdog and how unfairly and unjustly it will play into the hands of the wealthy insurance companies and corporations. I thought it necessary to give very briefly the history of this Bill. It took nearly 20 years to get the proposal into the House but it took almost as long to get the rod licence legislation into the Dáil. Look at the mess that has created. These are things that are clamped on the House at a time of recession and cut-backs when everybody is in the mood.
Let us get back to the amendments.
It is necessary to explain fully that the insurance company lobby is behind this for one solitary reason — they think it will favour the defendant and prejudice the plaintiff.
I wish to make a few remarks on the amendments and the proposals that now surround them. I hope the Chair will allow a little latitude because the Minister indicated in his remarks that while he intends the section to stand he does not intend to introduce it.
In the earlier debate on the central issue of this Bill, the abolition of juries, the Minister was heavily criticised by representatives of Fine Gael and the Progressive Democrats on the basis that he had accepted letters of assurance and written undertakings from the insurance industry that they would reciprocate the Minister's move towards the abolition of juries by ensuring reductions in insurance premiums subsequently. We were told that legislation should not be hawked about in this way, that it was not the way legislation should be contemplated or addressed. Yet, when we come to deal with this proposal, we are prepared to put it into cold storage on the basis of a similar undertaking. I do not believe the Bar Council have committed themselves in writing to the Minister but they have indicated through their emissaries on the floor that they are prepared to meet the desires of the Government and of this House and to be good boys.
I hope the Deputy is not saying I am an emissary of the Bar Council.
I want to borrow the arguments used by Deputy McDowell, Deputy Barrett and others when they criticised the Minister in the matter of premium reductions and to use those arguments to good effect in relation to this section. I am not satisfied that the Minister is merely putting in place an enabling section. He has said "nothing will be done until we see how matters go". It is ridiculous that we are asked to discuss and deliberate while in the middle of that discussion we are told that nothing will happen on foot of enactment until we see how matters go. What an elegant phrase in the context of legislative reform and what light it throws on us as a working Parliament.
The Workers' Party are not satisfied with this approach. We are not impressed by the goodwill and good intentions of the Bar Council in this matter. Their response to long-standing criticism of their work practices in the Four Courts is very slow. They are indicating late in the day that they are full of good intentions. The contributions made by a number of Deputies, especially Deputy Fitzpatrick who has many years experience, have indicated the resources and ingenuity in the Bar and elsewhere to get around the regulations, if they are put in place. I gather, however, from what has been said tonight that the regulations will never be introduced. In the interim they will do as they have done in past decades by making it seem to the legislators and to the public that what they are doing is in the best interests of the man of no or moderate means as he has been called here tonight. So successfully have they pulled the wool over the Minister's eyes in this House in the last number of weeks that they will have no difficulty in pulling the wool over the eyes of the Minister and his successors and the eyes of the public generally in the next number of months or years or however long it goes on, in convincing people that what they have been doing down there is motivated by the best interests of the public at large, and all the problems that have manifested themselves in this section will continue on and not be addressed at all.
On Committee Stage I urged the Minister to put this section in place and not withdraw it in its entirety in concession to the Law Library lobbyists in the House. My plea to the Minister tonight is to proceed with the regulations without delay and let them be back in this House to be debated. It is in the light of the real intentions of this section that we will get any clear idea of whether the practices in regard to the conduct of cases in the Four Courts in future will go or not.
I have to disagree with Deputy Fitzpatrick that the two counsel rule developed out of some altruistic motives of concern for the poor man of no or moderate means. The two counsel rule developed as a skilful device of Bar Council mandarins who wanted to maintain control of as many of the lucrative cases as possible to enable them to control as much work as possible on any given day down in the Law Library; it was the means of bi- tri- or quadro location or whatever it is called where they could step into one courtroom and out of it and into another and move around switching and swopping, and at the kernel of the whole thing was surely control of the most lucrative work. The real impetus for changing these regulations has not come from without, from public concern or clear understanding of what is going on down there, but from the demand for democracy within the Law Library itself, from the many hundreds of young, educated lawyers who are in there watching the fat cats cream it every morning as they waddle off to the round hall with their briefs stuck solidly underneath their oxters.
Could I dissuade the Deputy and the House from drifting into a general debate on these amendment? I would much prefer that you related your remarks much more closely to the amendments directly under discussion, Nos. 1, 14, 15 and 16. There is a tendency for a general debate which is not appropriate on Report Stage.
I accept your ruling on that. I take the Minister's point, but I wonder why we are debating these amendments at all, apart from that it is another opportunity to make a plea on behalf of the Law Library and its interests, because the amendments make absolutely no addition, good, bad or indifferent to what is already in the Bill? There is the expression "if the Minister happens to be of the opinion that by reason of any practices" etc., but that is the basis upon which a decision would be taken under the regulations in any event. I fail totally to see the reason behind the amendments in the name of the Progressive Democrats when it is quite clear that the Minister indicated to the House the last day that so long as his Government were in power he was not going to make the slightest effort to introduce these regulations. It is sad that he indicated such and it must be commented on here tonight.
The amendment in the name of Deputy Barrett is welcome. It is included in the Progressive Democrats' amendment. It was clearly indicated that the Minister would accept that in principle but what of it? The regulations are not going to be implemented. An arrangement that is acceptable to the Opposition in terms of dealings with the Bar Council is utterly unacceptable when one comes to deal with the insurance industry. Arrangements outside of the operations of this House in writing or verbally and totally setting at nought any purpose of intention in the section would seem to indicate that we are being made fools of in this House here tonight by the devices of the Bar Council to pull the wool over the eyes of the Minister, ably aided and abetted by their emissaries here on the floor of the House tonight.
I would urge the Minister to proceed with the making of the regulations. Let us put this debate into context. I would like to deal with what I believe is the context of this whole debate. Unless regulations include regulations to control the level of fees the number of counsel will not in any way affect the fees levied. If the number of counsel is reduced they will simply do what they are doing currently and have been doing for many years, that is, increase their fees to cover the fact that they cannot slip in and out from one place to another to maintain control or interest in a number of cases running contemporaneously. The argument that it is inappropriate for this House to seek to regulate the work of barristers in this area cannot stand up to scrutiny. The solicitors' profession is regulated by statute from top to bottom, perhaps not enough.
There is an area that Deputy McDowell has indicated and I would join with him on this. That is this percentage cream off by lawyers, solicitors in particular, of clients' fees. It is an immoral and unjust practice that the Law Library is incapable of stopping because, again, the clique element that Deputy Fitzpatrick talks about controls it, and this is currently engaged in through the agency of solicitors by barristers themselves and will more so be engaged in and relied upon as a device to ensure the addition of counsel to the ticket so that bi- and tri-location schemes can continue as operate today. Therefore, to say that it is improper for us to regulate in this area does not stand up to scrutiny. When the regulations come in they should be far more wide-ranging even than is intended in the two provisions that are being presented to us here tonight.
In summation I am disappointed with the way in which we have stood back from this whole issue. The good faith of the Bar is not as worthy as people make it out to be. Regulations should be put in place. We should not be afraid to ensure that this House has a voice in how justice is administered in practice as it currently does with one side of the profession. It is time we looked to the other side. I hope the Minister will accede to the proposition I am making that the regulations would be introduced and debated at length in this House so that we can see how best to address the better administration of justice in the interests of litigants before the courts.
I found it hard to stomach what we have just listened to, because the Marxist/Leninist gentleman who has been lecturing us about fat cats has made more money in one year from the practice of law than I have made in the practice in ten years in the sixties.
We ought not to personalise this debate. Let us go ahead devoid of personalities.
I am obliged to the Chair.
I would like to say, Sir, in relation to the amendments, that I welcome the fact that the Minister is prepared to accept subsection (3) of Deputy Colley's amendment No. 14 in any regulations that he might make. For that reason I think that the main point which she and Deputy McDowell were trying to make in that regard has probably been made. It would need to be carefully recorded in the Official Report of this House that that undertaking has been given, that this proposal, whereby one side will not be allowed a larger number of counsel than the other side, has been accepted. Like most Members of the House I hope that the Minister or his successor will not have to resort to the making of regulations. I believe that if something can regulate itself in the public interest it is better that this is done rather than having it done by formal legal regulations. I have no doubt, in view of the manner in which the Bar Council have tried to meet this matter, at least in very recent times, that they will continue to bear the public interest in mind. I found that it was not as easy in more distant times to get them to do this. The prospect of this legislation has had a marvellous effect on thinking over the last few years.
Amendment No. 1 in the name of Deputy Colley is well-founded because the Long Title misstates the position, as does the side note to section 5 as it now is. In both cases there is a reference to a regulation of the number of counsel appearing in certain actions. Section 5 does not purport to regulate the number of counsel appearing; it purports to regulate the number in respect of whom costs can be recovered on taxation. That is a very different matter. If the Bill set out to regulate the number of counsel who could appear for somebody, very probably it would be held to be unconstitutional. If I can afford to pay for half a dozen counsel, I have a right to have half a dozen. On the other hand, if I have no money but have a just cause and a half a dozen counsel at my request are prepared to appear for me, neither the Minister nor anybody else has any power to tell them by regulation that they cannot appear for me. I would ask the Minister to look at this matter again, perhaps in the Seanad. It is not, perhaps, a major issue and does not affect the substance of the matter but what Deputy Colley has said is correct.
I am glad that section 15, which is essentially the same as section 16, is being accepted and will be substituted for subsection (3). It gives the House the opportunity to look again at this. The negative resolutions which often appear in sections of Bills are useless. It is only the Government that can move them, anyway, and since the Government have made the regulations, obviously they are not prone to annulling their own regulations. The only method that is of any value is the positive regulation which must be passed. For that reason this section is welcome.
In conclusion, it still is a cause of some concern whether or not it will be possible to have these cases now heard without a jury outside of Dublin. I raised this point on Committee Stage, moving an amendment to that effect. The amendment was not proceeded with on an assurance given by the Minister that the Superior Rules Committee would prefer to make rules, and have power to do so, to allow cases to be heard as heretofore in, I think, six or seven centres outside of Dublin. I have since checked that out with some members of that committee on whose behalf this undertaking purported to be given. They have not been consulted and know nothing about it. They cannot give me any guarantee that the committee will make any such regulation. The Minister cannot bind them to make any such regulation, although they are entirely free to do so if they wish.
I want the Minister and the House to realise that one of the consequences of passing this Bill tonight in this form will be to confine a hearing of all these personal injury actions to Dublin. Since thousands of these are heard in seven centres outside of Dublin every year, it will be a cause of great hardship and great expense if those thousands of hearings now have to be transferred to Dublin and all the litigants and witnesses transported to Dublin. I would like the Minister's assurance in this regard and to know how he proposes to meet the case. What he is doing now is preventing all these cases from being heard in Cork, Limerick, Galway, Kilkenny, Sligo and Dundalk, if I remember rightly. I do not think that that is the intention of the House and I hope that it is not the intention of the Government, but it will be the effect of the passage of this legislation as it is unless, as it is hoped, the Superior Rules Committee make rules allowing these cases to be heard elsewhere. They are under no obligation to do that, being independent.
It is in everybody's interest that any regulations coming from the Department of Justice would be debated and discussed fully in this House and that, if necessary, there would be a resolution of the House in the form of a division before these regulations become law. A very positive decision was taken by all members of the Bar Council and all practising barristers. I understand that a very open, democratic vote took place resulting in a resolution calling for one senior and one junior barrister to appear in these matters. That decision was taken before these amendments were brought forward and discussed in this House. It is better to have any organisation, whether it be the Bar Council, the Law Society, a trade union group, a farmers' organisation——
An insurance company.
——acting on a consensus. This is to the advantage of all individuals appearing before the courts in these cases, whether plaintiff or defendant.
Deputy McCartan made a number of points about the Bar Council, one being that a number of leading barristers appear to monopolise a very considerable part of the market. The Deputy would be honest enough to admit that, no matter what walk of life, or profession, or business you consider, a certain section of people will succeed better than others and obtain a greater share of the market. The Bar Council are no different from most other areas in this. A number of senior counsel are most sought after by particular insurance companies on the one hand and by plaintiffs' solicitors on the other. The democratic decision taken by the Bar Council will help to open up the areas. Many of the barristers who, financially, are not so successful, who may be as good as, if not better than, many of the leading people, but whose abilities and talents have not been recognised, will get recognition because there will be a greater spread of business around the Bar Council. That will be to the betterment of everybody.
As a person from rural Ireland, who has been in practice going back quite a long number of years, I have come across individuals of very limited means and have taken cases on their behalf. Most solicitors will also have come across people of no means. Many barristers and solicitors are quite agreeable to take on running down or civil actions in which there are quite large profits. However, in fairness to the young solicitors' society, the free legal aid group and others, I should point out that many barristers and solicitors are also prepared to take on the non-remunerative work. I will not dwell on that point because it is not within the scope of the amendment.
Following the passage of this Bill it will still allow access to the courts for people of very limited means. That is important because if I go to a junior counsel and later have to go to a senior counsel I can get information for a very small fee. I am sure I speak for the vast majority of solicitors in rural Ireland when I say that, if I want to consult an expert on taxation or to clarify an abstruse point in regard to a matter of equity or title I can do so, and I hope that will continue. There is plenty of expertise in the Bar Library, and indeed a number of our barristers and solicitors have gone to the courts in Brussels and The Hague and have made their case in a most competent manner. It also proves that our legal system is excellent.
I am very pleased that there has been a consensus in regard to this matter because the vast majority of Members were anxious to obtain it. There is a certain amount of concern in regard to the last point made by Deputy O'Malley in regard to setting down a case. Up to now you could specify whether you wanted a case heard in Dublin or in a different location. There appears to be a difficulty as to whether you can have you case heard outside Dublin. This matter came up on Committee Stage. I do not want to put the Minister on the spot, but perhaps tonight or when the Bill comes before the Seanad we will have an opportunity of investigating it in detail and, if necessary, of introducing an amendment. For instance, in Cork many of the surgeons attached to the hospitals like to give evidence in the courts there. It saves considerable time and expense. The lists in Dublin are much more lengthy and people cannot be sure when their case will be heard. Perhaps the Minister will examine this matter closely and let me know if a person's action can be heard outside Dublin.
Deputy Barrett's amendment is very sensible and I urge the Minister to accept it. It is important to get a consensus of opinion. Over the years in matters of this nature there has been a considerable amount of goodwill. Indeed, it is fundamental to our whole democratic institutions to get consensus on matters of this nature and that is why I support it.
I should like to refer to the replies from the Minister instead of the other contributors, although I appreciate the points made by them. The Minister said that he is willing to take on board amendment No. 15 in the name of Deputy Barrett. It is similar to amendment No. 16 in my name and therefore I will withdraw my amendment. The Minister also said that any regulations coming before the House will include reference to the subject matter of subsection (3) of our amendment No. 14 evening up the balance between the two sides. I accept the Minister's assurance that any regulations coming before the House will include that and I will withdraw amendment No. 14 on that basis.
I strongly believe that we cannot legislate for every situation. I take strong issue with Deputy McCartan's remarks about having to bring in the regulations immediately, that we need regulations and that we should use them if they are there. In any civilised society we should always strive to leave as much freedom with the individual as possible, and if it is possible for self-regulation to have effect in any institutions it should be allowed if it is in the public interest. If it is possible for people to reach agreement there is no place for the State to step in. I hope the Minister will not find it necessary to bring in these regulations.
I take it that amendment No. 1 is withdrawn.
Deputy O'Malley said that perhaps the Minister would look at it again and, if possible, do something about it in the Seanad.
I will do that.
We must deal with amendments in sequence. Amendment No. 2 is out of order because it conflicts with the whole principle of the Bill. Amendment No. 3 in the name of Deputy Colley is consequential on amendment No. 11 and amendment No. 4 is related.
On a point of order, is it not possible to put amendment No. 15 now so that we will not have a recurrence of what happened the last day? We may reach midnight and find that only amendments in the name of the Minister have been accepted.
Deputy Barrett will appreciate that in the present co-operative atmosphere of the House, such treatment of Standing Orders would be in order but it is not advisable to depart from the normal procedure for dealing with these amendments.
I suggest in this instance, bearing in mind our experience on Committee Stage, that if there is agreement all round we might do as Deputy Barrett suggested.
The agreement of the House is superior to that of the Chair. We welcome it but hope that it will not be taken as a precedent when a different mood prevails in the House. Will we now take amendment No. 3?
Has amendment No. 15 been put? I thought we simply agreed to put it.
Will Deputy Seán Barrett formally move amendment No. 15?
I move amendment No. 15:
In page 4, to delete lines 22 to 27 and substitute the following:
"(3) Where it is proposed to make regulations under this section, a draft of the regulations shall be laid before each House of the Oireachtas and the regulations shall not be made unless a resolution approving of the draft is passed by each such House."
We are taking amendments Nos. 3, 4 and 11 together for discussion. Is that agreed? Agreed.
I move amendment No. 3:
In page 2, line 13, after "law," to insert "subject to subsection (8) of this section,".
The purpose of these amendments is to facilitate, in exceptional circumstances, the trial of actions with juries to which section 1 of the Bill relates. Obviously there are differences between the proposed phraseology in Deputy Colley's amendment and that contained in the amendment tabled by Deputies Taylor and Spring but the principle of them all is similar, that is, to provide in certain circumstances for the trial of actions in relation to negligence and personal injury actions by a judge sitting with a jury.
On the last occasion the Minister took the view that there was something to be said for at least looking at the proposition that, in exceptional circumstances, there should be some way of permitting a trial of some of these classes of actions with a jury. On that occasion I indicated I accepted the Minister's thinking, that is, that if one sets out some exception containing so much of a potential floodgate, if opened, it would effectively nullify the legislation, there would be no point in having the Bill at all. It appears to me that the purpose of Deputy Colley's amendment is to be extremely restrictive of the right of people to seek a trial, in exceptional circumstances, with a jury.
Why is there a reason for having a jury trial in exceptional circumstances? It is simply this; there are occasions on which for justice to be seen to be done, even in actions in respect of personal injuries, it is desirable that it should be seen to be done by a tribunal which is not a judicial tribunal alone. The reason it is desirable that it should be done other than by judges can vary. It is very difficult in advance to set out with precision the circumstances which could give rise to a case for an exceptional right to trial by jury. One that has occurred to me is that of a judge who is a defendant in a running down action, who has a good defence but his colleague on the bench feels massive pressure that the great phrase used in another context —"He would wouldn't he"— would be used in evaluating whether his defence was true especially if it turned on a question of credibility. Suppose a judge is driving home some day — it may seem a strange example — and knocks somebody down, according to the plaintiff, but does not according to himself. This has been known to happen. Supposing, in those circumstances, it comes down to a question of credibility and a High Court judge tells his own insurance company: I did not cause the accident, or the facts are that I am innocent and it was all the fault of the other person. If it comes to a swearing match; in those circumstances is it desirable that another High Court judge should be forced to disbelieve his colleague on the bench and accept the word of another witness against him? Or, worse still, suppose he is disposed to accept his colleague's account, that he is disposed to believe him. He may feel: what does the ordinary man in the street believe? Three people are saying the judge is wrong but I do believe conscientiously, in my heart of hearts, he is telling the truth. But nobody will believe that that is a bona fide judgment made by me of the facts; nobody is going to accept that this is me trying to be impartial because three people have sworn X, the judge has sworn the opposite; here I am in the middle trying to ensure not merely that justice is done — with which no judge has any problem — but that justice be seen to be done. He is sitting there, knowing that this is going to be very embarrassing; I am going to have to believe my colleague against two witnesses who say he is telling a lie and, in those circumstances, justice is not going to be seen to be done. I suppose those circumstances are somewhat extreme.
There will be cases in which, for various reasons, it is desirable that questions of fact be decided by a tribunal other than a judge because of the nature of the controversy or because of the nature of the people involved in the controversy. I can think of other examples but I do not want to waste the time of the House. They are all wholly exceptional circumstances but if we do not legislate to enable some method to deal with them we will put in place a law which drives the law somewhat into disrepute, that prevents the law, in a sense, from avoiding circumstances in which these unsatisfactory side-effects will arise out of litigation.
There are other circumstances in which I believe it would be desirable to have matters dealt with by a jury rather than a judge. In those circumstances I believe it is correct to permit a fall-back position for the judicial system so that the Judiciary can do their best, not simply by themselves but by the administration of justice, by giving the greatest possible weight to the desirability of justice being seen to be done.
In England in 1933 the right to trial by jury was scrapped in personal injuries actions. It was not scrapped in the absolutely categorical, clinical way that the provisions of this Bill provide. An exceptional circumstance was provided — I hear the simultaneous translation service going on——
I apologise.
In exceptional circumstances in England there is a right to trial by jury. That was left there in 1933 when the general right was abolished. Not only was it left there in 1933 but recently when the law was updated in England that exceptional proviso was retained. I do not know, and I have not been able to research it, but I can say this, that although many attempts have been made to invoke that exception, never once, to my knowledge, has somebody actually succeeded in persuading a judge of the English Queen's Bench, or whatever it is, that they should avail of that right, but it is there. It may be that there have been many cases in which people have sought to invoke the right but I do not know of any cases in which it has been invoked and in respect of which the judge has actually ordered a trial by jury. However, it does not take away from the general principle of what I am saying, that it is an extreme rarity in England. In fact, it goes the other way; it proves that it is possible, in legislation, to allow for exceptional circumstances and to do so without opening the floodgates.
Doubtless the Minister will be advised, and will receive a strong lobby from the insurance companies, against putting in any exception, contending that the lawyers and the Judiciary will get together and totally undo the purpose of the provisions of this Bill. Undoubtedly he will be advised that that is the case because that will be the attitude of people who do not want any exception, who want to copperfasten this principle, ensuring that nothing ever moves before a jury again which has the character of a personal injuries action. But the fact is that, in England, where this was done — and it is a similar jurisdiction — if there have been a handful of cases in the last 55 years since the right of trial by jury was abolished, I would be very surprised indeed. There must be a tiny number. There have been many occasions on which people have made the case to a judge that they ought to have it and they have been refused, but there have been a handful of cases involving the kind of circumstances to which I have referred. The fact that in England the Judiciary have diligently and conscientiously confined it to a handful of cases seems to argue all the more strongly and coherently for allowing an exception here.
Deputy Colley has put her proposal for an exceptional right to trial by jury in very restrictive terms by stating that it should apply only where a judge of the High Court is satisfied that by reason of the existence of special and exceptional circumstances which he shall specify in his order, the interest of justice or of the public interest would be better served by such a trial with a jury. When one goes before a judge in England with an application for a jury trial one is effectively saying to a judge that it is preferable that one of the judge's colleagues should not take this case and that there are good reasons why a colleague of the judge should not try the case but that it should be tried by jury. One is in a sense affronting the dignity of the judge by saying that neither the judge nor his colleagues should try the case and that the case is so exceptional that it would be better tried by a jury of 12 ordinary people. After this Bill has passed we will keep defamation and assault jury actions in the High Court, so the jurisprudence of juries and the machinery will all be retained whether or not this Act is passed. I have no doubt that there are cases where it will be desirable to retain the special exceptional right to trial by jury. The proof of the pudding in England was that retaining the exceptional right did not open the floodgates. If the Minister cannot accept Deputy Colley's wording he should indicate whether, if someone can come up with a formula which preserves a special right by way of exception, he will entertain such a formula in the Seanad. Will the Minister accept in principle that if a cast iron wording is devised he would consider it in the Seanad?
That would mean a recall of the Dáil, and it has never been heard of.
That is true. That was a bit naive of me, I suppose.
I am coming back this week with liquor law amendments from the Seanad.
But the Dáil is sitting. It will not be necessary to recall the Dáil.
Will the Minister consider a new wording in the Seanad, if the Seanad considers this before the end of the Dáil term? There will be a time, for instance, when a judge is disbelieved by another judge and that would create a scandal in the system. Is a judge to continue on the bench if one of his own colleagues has said that he is a liar, that his word is not being accepted? That is something which will happen some day. Judges have been plaintiffs on occasions. I know of several who have been plaintiffs and I know the poor counsel who have had to be savage with them in crossexamination. It is a sad state of affairs if one of their own colleagues has to disbelieve them on their oath and what about the poor insurance company who has to fight a judge who is demanding damages for whiplash and another judge has to decide whether or not the judge is codding everyone and whether or not he is really in pain? There are other circumstances. I know of one circumstance where a prominent person who is a Member of this House came before the courts and the question was whether he should or should not be accorded a trial by jury.
These issues arise. We should think through the implications of this, because some day a judge will complain that his back is injured and he will be either believed or disbelieved by another judge. If he is disbelieved the scandal will be massive. If he is honestly believed by the trial judge but there is evidence to suggest that he might be telling lies, there will be an equally large scandal. There are certain circumstances where we must retain the right to decide questions of fact even in these kinds of accidents by a jury. It is not beyond the wit of the Minister to devise a cast iron formula to do this. If the Minister does not accept Deputy Colley's wording he should introduce another amendment. However, what Deputy Colley suggested is so restrictive compared to the English law that nobody could suggest that it would open a flood gate and would undo the purpose of this Bill. Deputy Colley's wording is much more restrictive than Deputy Taylor's and I fully understand why Deputy Taylor has phrased his amendment in the way he has phrased it. There are circumstances in which we will regret a cold clinical exclusion of juries. On the last occasion I said that medical negligence cases could be such cases where the Judiciary may on some occasions not want to make the decision. There are hundreds of other cases which it is hard to catalogue now but which I am quite sure should be the potential subject matter of a trial by jury.
In speaking to amendment No. 4 I endorse the comments on this subject made by Deputy McDowell. The Deputy touched on one category of case in which it was appropriate to preserve the possibility of a jury trial. The Deputy mentioned a case of negligence actions against a doctor. That parameter should be broadened somewhat to include any case of a claim for damages for negligence against any professional person. People might take the view that they might not get a fair trial in such an action before a judge alone because professionals by and large come from the same category of people as the Judiciary and there might tend to be a bias in the way a judge alone would hear a case. That may or may not be well based, but for appearances it is very important that when a case of professional error is to be determined a jury should be provided. This aspect, interestingly enough, was touched on in Blackstone's Commentaries, written 200 or 300 years ago, when Blackstone dealt with this class that a judiciary are drawn from and the important value that a jury system has in preserving the position of ordinary people. It is worth giving a number of extracts from what was written all those centuries ago and to look at the situation as it is now, because his comments have the same force today. In relation to a jury trial he states at page 378 as follows that:
...it is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals ...The impartial administration of justice, which secures both our persons and our properties, is the great end of civil society. But if that be entirely intrusted to the magistracy, a select body of men, and those generally selected by the prince or such as enjoy the highest offices in the State, their decisions, in spite of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity: it is not to be expected from human nature, that the few should be always attentive to the interests and good of the many... But in settling and adjusting a question of fact, when intrusted to any single magistrate, partiality and injustice have an ample field to range in; either by boldly asserting that to be proved which is not so, or by more artfully suppressing some circumstances, stretching and warping others, and distinguishing away the remainder... This therefore preserves in the hands of the people that share, which they ought to have in the administration of public justice, and prevents the encroachments of the more powerful and wealthy citizens. Every new tribunal, erected for the decision of facts, without the intervention of a jury, (whether composed of justices of the peace, commissioners of the revenue, judges of a court of conscience, or any other standing magistrates,) is a step towards establishing aristocracy, the most oppressive of absolute governments.
It is interesting that the point I am trying to make here — and a similar point was made by Deputy McDowell — is that where a person is alleging in a court a professional error on the part of a professional person that person will want, and reasonably is entitled to, a jury as the arbiters of whether negligence has occurred in that professional conduct or not. That is their right. That is what the people want. They want that in all cases in my opinion and that is something to which scant attention is being paid. As evidence of the fact that they want juries it is open to any person bringing a case for trial to opt for hearing by judge alone if he or she wished. If a person wanted to have any negligence action tried by a judge alone it was open to them to opt to do so in their notice of trial. I suppose in 99.9 per cent of cases they showed what they wanted by opting for trial by jury. The Dáil has reached the position where the Bill has passed both Second Stage and Committee Stage but I think we should have a care and recognise the fact that there are a very small number, relatively speaking, of special situations that require special attention and which require to be distinguished from the general rule. If we bring in a broad sweep and throw all out in one effort and categorise all these actions as being of a basically similar essential point, the Dáil would be making a very grave mistake.
I have referred to the case of professional negligence actions. Most of the decisions in England that have been given by judges alone — or certainly some of those that I have read — have tended to take a rather harsh view against the plaintiff and have tended somewhat to lean towards favouring the professional person who was on trial in a civil suit for having made some professional error that could well have had devastating consequences on the plaintiff. There has been that tendency to lean towards the profession. The only way to cope with that situation is to preserve the possibility of a person bringing a claim, under that heading, to have a jury trial, not necessarily in every case, not necessarily as of right but to leave it open for an application to be made to the judge to highlight a particular circumstance of any particular case and to leave it open to the discretion of that judge to order a trial by jury if he considers it appropriate to do so.
There is one other category that should have a like possibility reserved and that is those few cases where the injuries are of a very severe and grave nature. I am talking about people who find themselves as a result of an accident ending up as paraplegics or quadraplegics, and condemned to spend the rest of their lives in wheelchairs and all the horrific prospects that ensue for them. Very often that happens to people in humble walks of life. The consequences for people who have suffered horrific injuries of that nature and whose whole lives and existences for the remainder of their days will depend on the response they get from a court, be it from a judge or from a jury. Those people would feel that their interests would more reasonably be served in having the damages assessed for them by a jury. The type of damages that have to be taken into account in such a case are damages that involve those every day needs, for example, care, nursing by day and by night, feeding the person, attending to their toilet needs, their linen needs, and so on, for the rest of their lives. A person in that position would feel that a jury of their equals, of ordinary people who make up juries, would have a better down to earth understanding of what their needs would be for the rest of their lives. In cases of very serious injury — there are not very many of them but they occur from time to time — in common with the other professional negligence cases referred to, and the comparatively rare cases referred to by Deputy McDowell, of a judge himself being involved, the possibility only should be there of a judge to exercise his discretion to allow that case and that plaintiff to have his case determined and his damages assessed by jury.
With reference to these amendments, I think it was Montesquieu who said that one should never give reasons for laws in laws and others have said that exceptions make for inequality and, ultimately, injustice. Deputy McDowell mentioned the case of High Court judges and the possibility of each of those having to try one another, exceptional as it might be. There are more Circuit Court judges in the country than High Court judges. The jurisdiction in the Circuit Court is not to exceed £15,000 and the possibility exists, under present legislation, of a Circuit Court judge trying another Circuit Court judge. There are more district justices in the country than there are Circuit Court judges. Indeed, there are more District Court justices in the country than there are Circuit Court judges, High Court judges and Supreme Court judges put together. The possibility exists under present legislation with the jurisdiction limit in the District Court being far more of a district justice having to try another district justice in relation to a road traffic accident and having to make a judgment, and there is no provision for a jury. If you are going to travel down the road of making exceptions you must be specific. Deputy McDowell has been relatively specific. He stated quite clearly that he was using an example of High Court judges. What I am trying to get across is that you cannot stop at that. If you are going to make the argument that one judge should not try another, then you must go all the way down the road. One must go on from saying that a High Court judge cannot try a High Court judge to saying that a Circuit Court judge cannot try a Circuit Court judge and a district justice may not try another district justice. Then we have to go a step further and say possibly that a district justice may not try a commissioner for oaths or a peace commissioner. Before we know where we are the whole thing is up in the air and people do not know where they stand.
How far down the road can you go? For example should a district justice who listens every day to the local superintendent prosecuting given individuals have the right to try the superintendent in relation to a road traffic accident? To go a step further, if it is the local sergeant who calls out the list for the superintendent, should the district justice have the power to try the sergeant? Should a garda who is in a quiet squad, so to speak, on traffic patrol and who is before the same district justice every day be tried by the district justice at all? We are beginning to go round the mulberry bush and there seems to be no end to it. For example, if a High Court judge is tried by a jury and an individual is not tried by a jury will people say the jury awarded the High Court judge more than the High Court judge awarded the ordinary citizen? Will they say then there is one law for the rich and one law for the poor? I am afraid I make logical sense. Making exceptions at any given stage in any walk of life is to create inequality. Inequality creates injustice and, to use Deputy McDowell's phrase, by God justice is not seen to be done.
Will Deputy Donoghue come to Deputy Taylor and define "profession"?
I was going to go on from there and say we are now gone on to Deputy Taylor, defender of the socialist cause, and we are having High Court judges around the country deciding cases for the ordinary citizen but making a different decision if the man happens to be a doctor, engineer, an architect or a professional of any type. We are now into the realms of justice for one not being justice for all, and in this terminology justice for all means no justice at all for some. It does not make sense. If you are going to introduce a law for the professions and the judges and another law for the ordinary people you are creating a bad law. A bad law is a law which the majority of the people deem to be unjust. It is to encourage a class distinction. I abhor it and reject it and I regard it as the height of snobbery, be it from the left or the right.
I would like to comment on the amendments from someone who has a perspective and an abhorrence for class politics, but I think Deputy O'Donoghue and I perhaps would not have that abhorrence on the same basis. The facts of the matter——
The Deputy does not understand. He should talk to Deputy O'Malley who knows about Marxist-Leninists and will explain exactly the basis upon which class politics are advanced and why they are tackled and objected to by some socialists. We say they exist to be tackled. The people on the right say they do not exist at all, so they will never be tackled.
In addressing this amendment I want to put it in the context of the movers of the amendment, Deputy Taylor in particular, and myself on behalf of The Workers' Party, people who are extremely concerned about the very fact of the abolition of juries at all in the first instance. In the context of amendment No. 2 being ruled out of order, the opportunity now has passed for debate on that major issue as has been debated here on Committee Stage and one comes to address what can be done with the given position that juries are effectively for civil actions in the main.
I say to Deputy O'Donoghue and anyone else who has doubts about how one regulates the administration of justice that our Constitution establishes four square that justice will be administered by courts and judges appointed under the Constitution. It is totally consistent with our concept of constitutional justice as administered by judges and courts that we allow courts to regulate under what circumstances and in what manner courts and court hearings are conducted. It is not in the slightest inconsistent for us to leave the residual authority or power to a judge of the High Court to decide in what exceptional circumstances or cases one can rely upon the device of trial by jury as a means of achieving justice in a case.
In answer to the Deputy's question about how far down the road do we go, I say to him that one goes as far as the amendments in either Deputy Taylor's or Deputy Colley's names allow, and that is not very far at all. It is being addressed in these amendments. I have no preference one way or the other. The wording is more verbose in one amendment, but they achieve virtually the same thing at the end of the day. It is to recognise that there are always and often exceptional occasions when the courts should have the authority to decide in the interest of justice that in that case it is better that the hearing and issues be decided by jury as opposed to judge alone.
I must admit I am not altogether impressed by the singular incident case Deputy McDowell used. Previously he spoke in the cause of barristers; now it is in the cause of judges. The point is well made nonetheless that the residual authority should be vested and rest in the judges of the High Court to decide the circumstances, exceptional one recognises, under which justice would be better achieved in that way. This is an important safeguard for the litigant coming before the courts and is there in the interest of justice and justice being seen to be done.
In the litany of instances proffered as Deputy O'Donoghue weaved the road, he wondered were we all going to slip down in this whole affair, I suggest to him, and as a practising lawyer he will have to concede, that a district justice does not hear cases against the person whom he or she knows well personally or has everyday business or dealing with. The judge rises and moves on——
And another district justice comes in.
Not a jury.
This is the point one comes down to——
That is the best the judges of the District Court can do under their constitutional duties to achieve justice in their tribunal, in their courts. In the High Court you are dealing with a far more rarefied surround and a much more exceptional circumstance that do not necessarily apply in the instance given in the terms of the District Court and the Circuit Court. The point has been made that you have the mechanisms ready to hand because they will be there for defamation, false imprisonment and assault instances. The mechanism is available to call in the jury to decide in the very exceptional instance. On the point of simply giving it as a safeguard device in a corresponding jurisdiction and jurisprudence in Britain, that type of exceptional clause has been there available for upwards of 50 and odd years. This is a very modest proposal. It highlights a very useful safeguard. Despite the ingenious reasons the Deputy has woven to throw some doubt on the proposition, I commend the principle of the amendment to the Minister. I hope the Minister will accept either of the amendments advanced in the names of Deputies Colley and Taylor.
By a large majority the House decided to abolish juries in respect of personal injury actions but an attempt is now being made to bring them back through the back door. In fairness to Deputies Colley and McDowell, this matter was raised on Committee Stage when they both referred to "exceptional circumstances". Since then I have been trying to visualise the "exceptional circumstances" they were referring to but I could not, with the exception of those outlined this evening. Frankly, I do not accept those views. I cannot see how a judge can decide in one case to grant a trial by jury while in a similar case another judge may decide to refuse it. In such circumstances where does justice come in? We will have to clearly define such a provision. We must set out the circumstances in which a trial by a jury will be allowed. To leave the matter for decision by a High Court is a very dangerous precedent.
The amendment in the name of Deputy Colley refers to "any party to any proceeding to which the section applies" and so on. That could cause enormous difficulties. Advice could be given to people to chance making an application for a trial by a jury. There could be a great deal of inconsistency. I am not convinced of the arguments put forward by other Members that the ordinary punter will suffer to a great degree as a result of the abolition of juries. There are no juries in the Circuit Court or in the Supreme Court but we have one rung of the judicial ladder that has had juries up to a short time ago. Asking a High Court judge to decide on a certain amount of damages will not deprive a citizen of a particular right. How many times, can it be argued, did a jury bring in a wrong decision? We are all aware of decisions by juries that are open to question. Awards granted by juries, not always on the high side, could be questioned.
We either decide to abolish juries or not. If I was to agree with Deputy McDowell in principle I would have to call for such a procedure in specific cases. I would not like to see a High Court judge having to go before another High Court judge. For argument sake, in a negligence action against a doctor, I do not see how a jury are better qualified to decide that the doctor was negligent rather than a person who deals with similar actions almost every day of the week. I do not see how 12 people can decide to any better degree that a doctor was or was not negligent over and above what a High Court judge may decide.
The Deputy does not understand the jury system.
If that is the case, the Deputy will have to forgive my ignorance. I bow to the Deputy's superior knowledge of everything but, nevertheless, I will give my humble opinion on the subjects that come before me. It is the Deputy's business to decide to accept that opinion or not. Those Members who are not members of the legal profession at times can see things in a better light than those who are in the profession and it is important that all should remember that. Deputy McDowell should give the House an example of the case he has in mind rather than saying one High Court judge migh be afraid to hear the case of another High Court judge.
The Minister may accept the amendment before us or he may tell us that he will consider it between now and the debate in the Seanad. I am prepared to accept such a move but I have not been convinced that there is any great need for such a provision now that we have abolished juries. I can see why Deputy Taylor has tabled his amendment, because he was opposed to abolition of juries. The best of luck to him if he can succeed in having an amendment accepted that would bring juries partly back. I do not believe that the ordinary man in the street will not get justice as a result of the abolition of juries. Unless the Minister can throw some light on this issue I am not inclined to accept the amendment before us.
Amendment No. 3 is a consequential amendment, arising from the substantive amendment proposed in Opposition amendment No. 11, which I am opposing. With regard to No. 4, the amendment proposed by Deputy Taylor is in conflict with the policy intention of the Bill that judges should replace juries to decide all the issues in personal injury and fatal injury cases. The Deputy's amendment would leave a very wide discretion to the court to allow juries to continue for any special reason that found favour with a particular judge.
The Deputy's amendment would reintroduce uncertainty, and possible litigation in the Supreme Court as to what cases or circumstances should still qualify for jury trial and depending on how the courts would interpret such a general discretion it could lead to the very wide availability of jury trials and this would certainly defeat the purpose of the Bill.
Also, the process of realising the benefits that are expected for the insuring public from the legislation could be made more difficult. Plaintiffs who thought that they had a special case for claiming a jury trial, for whatever reason, would be even less reluctant to settle than they are at present.
The amendment refers to cases of serious injuries and the implication seems to be that such cases would not be adequately compensated without a jury. I cannot accept any such implication. Damages awarded will consist of loss of earnings, past and future, and cost of future care, and the amounts of the awards for these items will be fixed by reference to expert actuarial and other evidence. Damages will also include an amount of general damages for pain and suffering, which will be fixed taking account of the limit proposed a few years ago by the Supreme Court as a general rule for serious injury cases. In the circumstances there is no basis for any contention that serious cases need a jury to do justice to them.
I am convinced that the proper course is to go all the way with the removal of juries in these cases, as was done in the case of the Circuit Court in 1972. I cannot accept the amendment. I am opposing Deputy Colley's amendment.
On Committee Stage and again this evening Deputy McDowell suggested that jury trials should continue to be available at the discretion of the High Court in a personal or fatal injury case. He suggested that juries should be available for exceptional cases such as cases of medical negligence or motor accidents involving the Garda and cases in which the State is interested. A similar point was put forward by Deputy McCartan and Deputy Taylor. I have considered the matter very carefully since Committee Stage but I have to reject the suggestions that the Bill should be amended to introduce this discretionary element. It certainly would be against the principle of the Bill and it would introduce uncertainty and could provoke appeals to the Supreme Court. Depending on how the courts would interpret any discretion being given to them, it could result in juries being fairly widely available. That would defeat the purpose of the Bill and I think the House would agree that I must ensure that that cannot happen.
Does Deputy Colley intend to reply?
Yes.
I am in favour of an extension of the category of cases that should be heard by juries. I have made it clear that I believe, for the reasons given, that the jury system is the best system but I concede that the House, by a large majority, has decided to abolish juries. The arguments on these amendments bring forth some extraordinary conclusions. Deputy McDowell gave one list of people, mainly centred around judges, whose cases should be heard by juries. Deputy Taylor gave another, rather more vague, list, including the professional classes, who should have the benefit of juries.
I said a person taking an action against them.
Whose cases should be heard by juries. I would like to know where the professional classes would end. I would like somebody to give a definition, a modern interpretation, of "profession".
A professional golfer.
I could think of some interesting examples but that is beside the point. That would be a very long list. The Deputies gave their reasons in favour of the amendment. Deputy Barrett was opposed to the amendment. He did not agree with it in regard to the decision as to whether cases should be heard by a judge or jury because he would not rely on the wisdom of the judge to make a wise decision. I thought that the judges who would be hearing cases would be omnipotent, that they could not make a mistake, that a single judge would always arrive at the right decision. The whole issue was capped when the Minister came in. He said it would be unwise to leave it to the judge to decide whether a case should be heard by a judge or by a jury because the judge would decide on something that found favour with him, with a particular judge. This is the man who is going to decide the whole issue of the action. What bee might he have in his bonnet about the class of people he was hearing or the way the accident happened? What particular issue will find favour with a judge?
The Minister suggested that not alone is the issue of whether the case should be heard by a judge or jury to be left to the judge but the trial of the entire issue can be left safely with him. I never heard a more absurd argument from a Minister in my life and I am surprised that he used it. In my opinion he has made a unanswerable argument for the trial by jury system, by 12 wise and sensible men who will not have bees in their bonnets about anything; if they have, it will be a sensible mixture and not one large bee that will decide the whole issue. These four people, for different reasons, do not want the judge to hear a case if it is a very serious case, or if the professional classes are involved and do not want issues to be heard solely by a judge because there might be something in it that would find favour with him and him alone or he would, for some other idiotic reason, come to the wrong decision. All I can say is, God help the plaintiffs when these actions come before the judge. I want to go on record again as saying that every case is an important and serious case when it involves the limb of a person, his expectation of life or pain and suffering.
Libel and slander are to be left to juries. Why? Invariably there is no insurance company involved and the influence of the insurance company does not come through. Assault by one person on another is not involved in this Bill. Why? Because there are no insurance companies involved and the influence of the insurance company does not come through. I venture to suggest that before this Bill is five years an Act there will be another lobby here—the lobby who will complain that his constituent cannot get his case brought to court and that he is being bullied about by adjournments and so on. He may have had a counsel who was to appear for him and he disappeared because the case went on too long. There will be all sorts of hardships and, as other people will call them, abuses. The gentleman who, a few years ago, rose up as the protector of the client of lawyers will now rise up in another form, to protect the lawyers from the failure to be able to get a case brought to court.
Does Deputy Colley intend to conclude?
Yes.
Without being over-meticulous, we will get the agreement of the House to your concluding. Is that agreed? Agreed.
At the outset, I would like to say that the thing that is furthest from my mind in this amendment is to bring back juries. That needs to be said after listening to the contributions from a number of Members in the House, including Deputy Taylor on my right, who no doubt wishes to see jury trials in existence throughout the system. I have consistently spoken in this House for the abolition of juries where personal in juries are involved. The purpose of my amendment is a very narrow one. It bears saying again, despite the eloquence of Deputy McDowell earlier, that justice being seen to be done is as much part and parcel of the judicial system as justice being done.
I have grave concerns that if this Bill is passed as drafted, justice will not be seen to be done in a very small minority of cases, but those are the cases that will be visible, they will have a high profile, they will be written up in the newspapers and they will be on the lips of the people. There will be no getting away from the fact that the judicial system will be brought into disrepute by these few cases.
The amendment in my name is extremely restrictive. One of the reasons I believe it stands above Deputy Taylor's amendment is that the judge when making an order would have to specify the reasons for making that order and there must be special and exceptional circumstances and it must be in the interest of justice or in the public interest. I cannot think of anything that is clearer than that, that the public interest or the interest of justice would require, in special and exceptional circumstances that a trial with a jury would be required.
The essence of my amendment is that it is restrictive. I do not believe, as in Deputy Taylor's amendment, that the seriousness of the injuries or the actuarial evidence that might be brought forward should be part of the basis of an application for trial by jury. They do not come within my reasoning for this amendment, which is that justice must be seen to be done. I believe justice could be seen to be done despite the enormity of injuries or the seriousness of those injuries if a judge sat alone. The difficulty is where one or other of the parties has a certain status — it could be a judge, a high-ranking politician, a garda or somebody who was seen by the rest of the community as part and parcel of the judicial system — and there is no doubt many people will assume a partisan approach will be taken by a judge sitting on his own in those circumstances.
I take issue with Deputy O'Donoghue when he said we were implying there should be one law for the rich and one for the poor, one for the professions and one for the ordinary man. Nothing could be further from the truth. I would dissociate myself from the remarks by Deputy Taylor in that regard because I do not believe the professions should be one of these special and exceptional circumstances. It should be a far more restricted than that. Any negligence actions taken against the legal profession are unlikely to have caused personal injuries and, therefore, they would not be involved in the circumstances envisaged in my amendment. It has to be far more restrictive than professional people up on negligence cases needing trial by jury. I do not believe trial by jury is necessary in those cases.
We are not looking for juries by the back door. We want justice to be seen to be done. The Minister has said he is not in favour of this amendment but I ask him to think again before this Bill goes to the Seanad. I understand what he and Deputy Barrett said — as this Bill calls for the abolition of juries, let us do it, and then everyone will know where they are. I do not believe that is responsible. We are going to bring the legal system into disrepute. It is not just for Johnny on the street who has a particular case and feels he will not get justice done; the difficulty is the whole judicial system will suffer because of one case. It is essential that as a House we have regard to the wider implications of any legislation we pass and not just look at individual cases and exceptional circumstances.
It is not the case that a judge would not wish to try a case involving another judge. I am not concerned with the niceties or the feelings of the judge involved. What I and the Progressive Democrats are concerned about is how that appears to the public. If it appears to the public that justice has not been done, then it is not the right way to try it. That is the rationale behind this amendment.
Deputy Taylor or the Minister said juries were abolished in the Circuit Court and there had been no untoward repercussions. I wish to remind them that at that stage there was, and still is, trial by jury in the High Court. Therefore, juries were not abolished completely because there was the chance of going to the High Court if one did not have the opportunity in the Circuit Court. There are circumstances where justice to be seen to be done would require a trial by jury, and those circumstances will still exist after the passing of this Bill. They will be extremely rare but they will be there. Even if they were only to be used once in every ten or 15 years, it is essential that they are seen to be there as part of the judicial system. As part of the wheels of democracy we should see that justice will be done.
I would like to remind the House of what Deputy McDowell said earlier about a case in England. Many years ago jury trials were abolished but they allowed for such exceptions in a wider context than my amendment. They trusted their judges. Deputy Fitzpatrick made a number of very interesting points about what a judge should and should not be trusted to do. Are we saying that a judge should be trusted with a judicial decision but should not be trusted with the decision whether he should try that case? In my view that is ludicrous. It is only normal and natural that such a decision should be left to a judge with the proviso that he gives his reasons for making that decision, and the reasons must be in the interest of justice or the public interest in special and exceptional circumstances. No floodgates opened in England and they have a wider interpretation than we do. They trust their judges.
I trust our judges and I do not see why my amendment, or a similar amendment which the Minister or his Department would be happy with, could not be introduced. I urge him once more to consider this and perhaps bring an amendment forward in the Seanad to make sure justice is seen to be done and that we are not throwing out the baby with the bath water. It is essential that we have regard to the wider aspects and not just to the smaller individual circumstances which we have referred in this debate.
Do I take it Deputy Colley is happy to leave this amendment to future consideration by the Minister?
No.
May I reply to amendment No. 4?
I thought when one moved an amendment one had the right to reply.
You did not move your amendment. You agreed that we take for discussion amendments Nos. 3, 4 and 11. As you know, you can only move one amendment at any stage. There will be a separate question put on your amendment but in your agreeing to having the three amendments taken together for discussion you automatically parted with your right to reply.
I do not see why that should be so. Why should I not have a right to reply to my amendment, as Deputy Colley replied to hers?
The Deputy has been forewarned in respect of any other agreement he might make that in so doing he foregoes his right to reply.
With respect, I do not think that follows.
He has been warned in retrospect.
It has already been given on several occasions. It is laid down that on Report Stage only the mover of the amendment has the right to reply or somebody delegated by him or her. That is why we asked earlier if there there was agreement.
I agree with that proposition.
The House was asked to agree to take for discussion amendments Nos. 3, 4 and 11, which included Deputy Taylor's amendment. In his agreeing to do that, knowing that one cannot have at any stage before the House more than one amendment which has been moved, he automatically agreed that he should not have the right of reply. That is and has been the position in respect of debate on Report Stage. It is not I who makes the rules.
Are you sitting alone or with a jury?
This is what happens when we have trial by judges alone. I submit that the crucial words in your speech——
I was not making a speech, except in so far as it was necessary to enlighten the Deputy.
I am not complaining about the fact that you made a speech, but you did make a speech. You are as entitled to make a speech as any other Member. The crucial words in your speech were that these amendments were being taken together for "purposes of discussion". The amendments may have been discussed together but that does not mean they are not separate amendments. It was agreed to take them together for discussion, as the Chair says, but they are separate amendments which are different in wording and purport. They may have some similarities. Deputy Colley moved her amendment, which happened to be first. I moved my amendment. She has replied to hers and I want to reply to mine. I do not propose to make a long speech in reply but I want to make one or two points which——
If, when the Chair asked for your agreement to what was put, you had risen and inquired, as you are inquiring now, whether such agreement would mean that you would not have the right to reply, I would have told you so and then you could have withdrawn from the agreement. I am not here to keep reminding Deputies of that they should know themselves if they had studied Standing Orders.
I do not need reminding from the Leas-Cheann Comhairle or the Ceann Comhairle or anyone else on the issue of what I agreed to. I agreed that the amendments would be discussed together. In my submission, that does not mean any surrender on my part of my right to reply. The coincidental fact that Deputy Colley's amendment had to be enumerated first puts her amendment in no higher priority position than my amendment. I am equally entitled to reply. The two amendments are of equal status.
This matter has been discussed on past occasions when Deputies who were new to the House made the inquiries which Deputy Taylor is making now. If he had been here on those occasions he would have had the benefit of being advised as to the position. I am not in a position to make new regulations to accommodate submissions made by any Deputy. I must advise the House of the precise position. Deputy Taylor, if he is present on any future occasion, will not see any departure from that in respect of my decisions from the Chair. I ask Deputy Taylor, who normally is agreeable to the decisions of the Chair to——
The most amenable of Deputies.
I am sorry that you have not now the right to reply.
It is not a matter of being sorry; it is a matter of what the correct position is. I know of no Standing Order which enumerates the proposition you are advocating and I would be interested to hear you refer me to it.
The order in respect of Report Stage is that only the mover of an amendment has the right to reply. We need say no more about it. You did not move any amendment.
Excuse me, when I stood up to speak I said "I move amendment No. 4", as the record will show.
The Chair did not take up the time of the House in advising you that we can never have a situation where two amendments are moved simultaneously.
We had agreed to discuss them together.
They were taken together for discussion but two amendments were not moved. If that were the case we could have ten amendments moved.
I moved it.
You were not in order in so doing.
Nobody objected, including the Chair.
It does not give me any pleasure to stand between a Deputy and that which he wishes to do. On the other hand, I am obligated to insist that the House carries out its business in accordance with Standing Orders. I ask Deputy Taylor to accept that.
I accept it without prejudice. I do not accept your ruling. It is not a correct decision. I do not want to take up the time of the House since there are still a number of matters to discuss. I will not press the issue any further, but I am not satisfied with your ruling on the issue.
If and when the Deputy discovers from his own research that the Chair is correct, I presume he will change his mind.
That should be regarded as mutual.
Does Deputy Colley wish me to put the question on amendment No. 3?
Am I to understand that the Minister is willing to consider a further wording which would be more watertight?
I have outlined my position very clearly. I cannot give any guarantee, but I am certainly prepared to examine in the Seanad everything raised in the course of discussion.
Is Deputy Colley happy?
Not very.
I ask Deputy Taylor to move his amendment now.
I move amendment No. 4:
In page 2, line 24, after "jury" to insert "unless upon application by any party to such action and having had regard to any special reason why trial with a jury should be ordered, including the seriousness of the injuries, that court in its discretion orders the trial with a jury of such action or question of fact or issue.".
Amendment No. 5. Amendments Nos. 6 and 7 are alternatives to amendment No. 5. Amendments Nos. 6 and 7 may be taken together, by agreement. Agreement means that the movers of amendments Nos. 6 and 7 will be foregoing the right to reply. Does Deputy McCartan accept that?
Yes.
It is agreed.
I move amendment No. 5:
In page 3, to delete lines 6 to 10 and substitute the following:
"(3) Subsection (1) of this section does not apply in relation to—
(a) an action where the damages claimed consist only of damages for false imprisonment or intentional trespass to the person or both,
(b) an action where the damages claimed consist of damages for false imprisonment or intentional trespass to the person or both and damages (whether claimed in addition, or as an alternative, to the other damages claimed) for another cause of action in respect of the same act or omission, unless it appears to the court, on the application of any party, made not later than 7 days after the giving of notice of trial or at such later time as the court shall allow, or on its own motion at the trial, that, having regard to the evidence likely to be given at the trial in support of the claim, it is not reasonable to claim damages for false imprisonment or intentional trespass to the person or both, as the case may be, in respect of that act or omission, or
(c) a question of fact or an issue arising in an action referred to in paragraph (a) or (b) of this subsection other than an issue arising in an action referred to in the said paragraph (b) as to whether, having regard to the evidence likely to be given at the trial in support of the claim concerned, it is reasonable to claim damages for false imprisonment, intentional trespass to the person or both, as the case may be, in respect of the act or omission concerned.".
I am introducing this amendment in response to the point made by some Deputies, in particular by Deputy McDowell, on the Committee Stage that the present text of subsection (3) of section 1 of the Bill could result in an injustice in genuine cases that involved both a claim for damages in respect of false imprisonment or intentional trespass to the person, and also a claim for damages in respect of some other cause of action, arising from the same event. I accept the present wording of the subsection could be read as excluding a jury in such a case if, say, a claim for negligence were included in a plaintiff's claim as an alternative remedy. This is a technical point which does not affect the principle of the particular provision of the Bill and I am prepared to amend the Bill to ensure that no injustice will arise for plaintiffs in such circumstances.
My amendment has been carefully drafted to ensure that the High Court must be satisfied that there are reasonable grounds for claiming damages for false imprisonment and/or intentional trespass to the person before an action that included, but was not confined to, such a claim could qualify for jury trial.
I oppose the Minister's amendment. I had hoped he might have given some attention in the opposite direction, in the direction reflected in some respects by the amendment in the name of The Workers' Party Deputies which is a repeat of what was included on Committee Stage and was not reached by reason of the Order of Business at that point and no vote was taken on the issue. I speak of the amendment in the name of the Labour Party Deputies seeking to try, in some way, to achieve a balance in this legislation. The Minister, in fact, is weighting the balances even more in his own favour and that of Government by ensuring that every possible loophole is closed and that juries are excluded as watertightly as possible from ever being involved in actions of the kind contemplated by this section.
Observations and points were made on Committee Stage about the ingenuity with which lawyers address their minds to drafting pleadings in such a way as to bring as many of the potential actions as they felt would benefit from jury trial under the provisions of the exceptional clauses within the Bill as it stands. To avoid that charade and untidy practice The Workers' Party have proposed that the problem be squarely addressed. The way to do that is to consider that actions that comprise, wholly or partly, a claim for damages for false imprisonment or intentional trespass should not then be denied the right to trial by jury and recognise the complexity of actions, the mulitplicity of causes that can arise from any one incident and the desirability of not simply confining the exception only to the very narrow base of false imprisonment and intentional trespass proposed by the Minister. Now the Minister, in this cleverly drafted legislation, has brought in a further restriction that enables a party to move a motion within seven days of the notice of trial, or at such time thereafter as the court allows, to have drawn out of the arena of jury trials such action as the court might be asked to decide.
I regret the Minister's direction in this. I regret profoundly that he has not made any effort at all to address the concerns of those Deputies who approached this whole problem by asking him to, in some way, liberalise the regime to allow for the fact that there can be a multiplicity of causes of action arising from any one incident and that they should not be excluded simply because they include a claim for damages for negligence on grounds other than trespass or false imprisonment. There is a profound change being introduced in the Minister's Bill in abolishing juries absolutely in this area, but there is in place in any event a whole jury mechanism, so addressing this problem would not have been a terrible inconvenience, recognising the very minute proportion of all actions, 0.2 per cent, that at the end of the day seek to have a hearing by a jury of their cause even though the facility is there. Recognising all of that, we had hoped the Minister might, in some way, have eased up on his hellbent intention of wiping out trial by jury. I greatly regret it. I made my remarks as brief as I have because we have chased this matter at length on Committee Stage to no avail, which is, again, regrettable.
The acceptance of amendment No. 5 means that amendments Nos. 6 and 7 must fall and cannot be moved.
In response to that, I would make an observation. Amendment No. 6 would be consistent with and could be considered in the context of amendment No. 5 if the issue was put, in so far as the same wording is employed.
If amendment No. 5 had been defeated then what the Deputy says would be relevant.
Amendment No. 9 is related to amendment No. 8. Amendment No. 10 is alternative to No. 9. Amendments Nos. 8, 9 and 10 will be taken together, by agreement.
Agreed.
I move amendment No. 8:
In page 3, lines 16 to 18, to delete "if the trial thereof began before the commencement of this Act but does not apply to the retrial of such an action" and substitute "if a writ commencing the action was issued before the commencement of this Act".
Amendments Nos. 8 and 10 repeat amendments that we tabled for Committee Stage and, whilst they were debated to some extent, we did not have an opportunity to indicate a view on them one way or the other because, again, the time for deliberation did not allow.
Amendment No. 10 can be put aside quickly. It is merely consequential on amendment No. 8 being acceptable. The issue centres on what is included in amendment No. 8 and that is what I would like to address briefly. Again it is mirrored by the amendment in the name of Labour Party Deputies. We are again seeking in some way to soften the blow of this legislation. It is founded on a firm belief that it is not a progressive step but one that will have profound adverse effects upon the administration of justice, the quality of justice and the attempts and duties to see that justice is done in our courts. We are fundamentally divided on that point. It was a point on which the Fianna Fáil Party agreed with the Labour Party and the Workers' Party when in Opposition, when this matter was first moved before the Dáil. The have turned about in the matter and we have a very firm division now in the House and a very clear majority on the issue.
What is sought on behalf of The Workers' Party in these amendments is to respect in some sense, at least, the position of those litigants who have already started their cases, have set them down for hearing, or issued writs to pursue. I made the point on Committee Stage that the decision to issue a writ is very important and fundamental, not taken lightly by a litigant. It is taken in the pursuit of justice, of compensation for injury done. One of the factors that would be considered by lawyers advising a litigant, particularly where the writ is issued in the High Court, is the very real possibility of the availability of a jury to hear the issues and decide the facts of the case. This amendment seeks simply to respect the grounds upon which the decision was arrived at and to allow, in all those actions that were commenced before the passing of the Act, the right to select trial by jury if so desired, on the advice of lawyers, or otherwise. I believe that it is likely that in few or no such actions would there be election for jury trial, given the statistical base upon which they have proceeded in the past. It is, nonetheless, incumbent upon us as legislators to seek in some regard to have respect for the views and decisions of litigants in the initiating of their proceedings. If ever there was legislation in which the knee was being genuflected to all sorts of interests, this is one. We have genuflected to the interests of the insurance companies on the basis of a letter from them telling us that they will behave like good boys and that nothing should be brought to bear too heavily on them.
Prostration would be a better word.
We have prostrated ourselves before the Bar Council on the basis that they have told us that they, too, will be good boys if the legislation is not brought to bear too heavily upon them. We are asking the Government to make a very small gesture to those litigants, whose decision was partly based on the availability of a jury to hear their action if they so desired. It will not have a great bearing on the consequences of this legislation. It is not a back door. It is simply the closing of the door more gently on the fingers of those litigants clutching on desperately in the hope of an opportunity of a hearing before a jury. It will not do down the legislation or cause any huge rush of litigation and, at the end of the day, the Government may not be troubled by this amendment at all. This small gesture would represent much in terms of the immediacy of the implementation of the legislation. I am at a loss to see why the Minister cannot respond a little more favourably than he has in the past.
The effects of the amendment would be to allow jury trial to continue for all personal and fatal injury cases where proceedings had been issued, that is, had commenced, before the commencement of the Act. The provision in subsection (3) of section 6 of the Bill is also relevant to this matter. It contains a commencement provision to bring the provisions of the Bill into effect on 1 August 1988. The effect of the Deputies' amendment would be to postpone the time when jury trials would cease for a period of years after the Bill is enacted. That it not acceptable to me.
I must ensure that the benefits expected from the passage of this Bill, can be realised as quickly as possible. For that reason, I want the provisions of the Bill to come into effect on 1 August next so that the benefits can marteralise immediately.
By the way, I would advise Deputies that actions in the High Court are not commenced by writ.
May I move amendment No. 97?
It would be premature to conclude the debate.
"Writ" is a generic term.
The Minister referred to the benefits that would emanate from this Bill. I would love to know what benefits he is talking about.
Hear, hear.
Who does he think will benefit? Does he think that the people of Ireland who have to have recourse to the courts will benefit from this measure that he is introducing here? I am sorry to have to disillusion him. It will be of no benefit to them. There may be benefits to the insurers, the big insurance companies, those large corporations and so on. The ordinary people of Ireland certainly will have no benefit. It ill behoves the Minister to say that he is in a great hurry to get this Bill through because of benefits. The logic of that escapes me entirely. The object of this exercise — let us call a spade a spade — is to reduce the damages that ordinary people have been getting and are entitled to get for what they have suffered and lost. To do them down is the purpose of this measure. It is to damage them and to help the insurance companies, to boost their profits. They are the people that pressed for it, that want it. That is what it is all about.
The inconsistencies of many of the comments made in this debate I find rather disturbing. The contradictions in some of the comments made by Deputies Barrett and Colley, in particular, quite frankly have me flabbergasted. On these similar amendments in the names of The Workers' Party and the Labour Party, is it all that unreasonable to propose, when a course of action has been initiated based on a certain premise that juries are available and those proceedings are under way, that we maintain the set of circumstances that existed when the writ issued, when they got their proceedings under way? Is that asking too much or does this sledgehammer action have to be brought in? There is such a thing as retrospective legislation. To deal with a situation otherwise than to provide that the Bill will apply only to cases where plenary summonses have issued after the date of its passing is, for all practical purposes, retrospective legislation. That must be utterly deplored. There is a rule that one should avoid retrospective legislation. When a person had already issued a writ a month or a year ago, that was done in the expectation and knowledge that a certain set of circumstances existed and would follow. It has always been the law that they are entitled to a jury and they issued their writs on that basis.
They are entitled to justice and will still get it.
I do not know what Deputy Colley's amendment is about; I did not have the chance to reply. The Deputy would want to make her mind up whether she favours the thing or whether she does not.
Now, now, Deputy. Be gentlemanly.
The Deputy is becoming a little rattled now.
It was the Deputy who interrupted, not I. When a writ is issued and the proceedings are under way, based on a certain set of legal rules, that claim ought to be allowed to continue under those rules. The interests of justice require that. Deputy Colley is anxious to achieve justice, but justice requires, when that was the legal position when the writ was issued, that it be allowed to follow through on that basis. I see no need for the Minister to suggest that that is going to interfere with the passing of his Bill, or its coming into operation. If either amendment No. 8 or No. 9 is accepted, the saver is there. The Bill will be in operation and will apply to actions starting from now, which is right and proper. There will be a saver for those cases which are already under way. It is strange, to say the least, that in this Bill as originally introduced there is a provision that it would not apply to cases where notice of trial had been served and that when a notice of trial had been served the person would still be entitled to a jury if he or she wanted one. I thought then that that was going too far and that a reasonable test for a time cut-off would be when the plenary summons was issued. The Minister is now bringing in a sledgehammer by providing that, even where no notice of trial has been served, actions which commenced perhaps two, three or more years ago, when nobody was thinking of abolishing juries, would be affected.
The Minister makes it even worse by saying that unless the trial has started the jury has to go. Was it necessary to go to that extreme on this issue? What kind of pressures were brought to bear, or why was it thought necessary to alter even the notice of trial provision which was in the Bill as introduced? That was quite outrageous, but the Minister has now made it even worse by saying that the action has to be under way before you can get a jury.
I do not understand it. These amendments are reasonable and fair and they negative the retrospection being introduced in the Bill. I urge the Minister to rethink this issue. The House should not lend itself to the pressures of bringing in retrospective legislation. Many of these plenary summonses could have been issued a year ago or more and they should be allowed to see them through under the existing system. The number of cases affected is not great and the system will be phased out in the not too distant future.
I support the plea by Deputy Taylor to the Minister to reconsider this matter because there is something essentially unjust in changing the goal posts when the game has started. In effect, this is what is happening. When people commence the expensive, worrying and difficult process of litigation on the basis of a certain litigious regime being available to them and then, at some stage after the action has commenced, they find that something as fundamental as the presence of a jury to hear their case will be removed, the goal posts have been moved with a vengeance. The predicament of that person could be extremely serious and an injustice could be done.
It is quite possible that if he or she had known when the action commenced that he or she would be involved in a lottery as to which judge would hear the case, that person might have had second thoughts about bringing the action. If the whole law is changed people will then have to face a new situation before the action is commenced, but if a person commences an action in the expectation of a jury and after the commencement finds that he or she will be involved in a lottery as to which judge, with all the inbuilt — I hesitate to use the word "prejudice", although I referred on the last occasion to the inarticulate major premise of a particular judge — which may affect his view of that action, it is potentially a very unjust situation.
It points up the contradiction or dilemma of what we are doing: we are removing juries for personal injury actions but we are leaving them for actions for defamation. Where is the logic in that? If we feel that juries are necessary to do justice to a citizen who has been defamed, why is there not an equal logic to say that a jury is necessary to do justice to a citizen who has been personally injured? I do not know the answer, but there seems to be an inherent contradiction. By reserving juries for defamation actions there is an admission that juries are essentially the arbiters of absolute or pure justice in so far as the system can deliver it. I mention that as a general point against the whole concept of abolishing juries.
Deputy Fitzpatrick answered that point earlier by saying that no insurance company would be involved.
Possibly it is a materialistic reason like that. However, I should like to think there is a purer argument, but apparently there is not and it points up the reason: it is in ease of the insurance companies and let the injured person go hang. That is the unfortunate position.
I appeal to the Minister to reconsider the prediciment of a person who has embarked on an expensive and worrying course of litigation and who now finds that the goal posts have been changed. That is essentially unjust and there is no gainsaying that fact.
It is extraordinary that when a person decides to bring an action for hearing before one tribunal, namely a judge and jury, has incurred considerable costs and has got as far as serving notice of trial, one of the last steps before he arrives in the Four Courts or wherever the action is being held, is that he should suddenly be told that he will not be tried by a judge and jury because the tribunal has been changed and he will now be heard before a judge only. As Deputy Cooney said, perhaps the fact that the trial would be before a judge and jury had a very big influence in deciding whether the action would be launched. As Deputy Taylor said, to have retrospective legislation which will change the tribunal to hear the action is fundamentally wrong.
The longer this debate goes on, the clearer it becomes that it is not about the administration of justice or seeing that a person is adequately compensated for injuries received at the hands of a motorist or employer. It has nothing to do with that because the Minister said that he could not agree to it as it would delay the benefit that the Bill will bring. Who will it benefit? The injured person? The person who seeks the aid of the court in his action against stronger forces? Not at all. These benefits will come to a third party at the expense of the injured person who has been mutilated or deprived of his earning capacity for the rest of his life. That is the enormity of what we are doing here. If we were doing it in exchange for a proper, free legal aid system that would be something, saying to people: you can only bring an action if you have reasonable grounds for doing so; if you have those reasonable grounds, the State will come to your aid, ensure that a proper legal team presents your case to the court and has expert witnesses there. But that is not so. The old Irish solution to an Irish problem is being abolished and replaced by absolutely nothing. I honestly believe we will rue the day we will do this. We will be forced into introducing a free legal aid system to cover running down actions, personal injuries actions and so on.
If I thought it would do that it would have some merit.
It will, but it will take a long time because that lobby will not be as powerful as is that of the insurance companies, but as soon as the provisions of this Bill are implemented we will have to introduce free legal aid. There has been a free legal aid system operated by the Law Society under the United Kingdom Government for almost the past 50 years. There, if a person has a stateable action which he may win or lose, his legal team are paid for at the expense of the State or some fund operated by the State. We are not proposing that. Oh, no, we are big fellows: we are mighty generous; we are mighty generous with other people's bones and bodies, with the insurance companies. We are generous in endeavouring to get young people to believe that premiums will tumble but I venture to say they will not. As a Legislature it is our duty to be just, to ensure that the people who have a claim will not be handicapped in bringing their claims to court.
I have listened to most of the discussions on this Bill. I am beginning to believe that those of us who consider, rightly or wrongly, that the abolition of juries will not introduce a great deal of injustice into our system means that, for once, we will face up to reality. I have listened to much talk about the right of the individual to get this and that but would somebody please tell me who will pay for it? I contend that what will be done will be the abolition of compulsory third party cover. Perhaps that is what should be done so that I and others will not have to carry the can for those who do not arrange insurance cover on their vehicles. Then we will ascertain who will pay for the awards handed out every day in our courts, whether by a judge or jury. Whether we like to believe it or not, the reality of life is that there are large numbers of people who do not insure their motor vehicles, resulting in others having to carry the can for them. It should be remembered that the insurance companies have a facility known as Motor Insurers' Bureau fund out of which awards are consistently paid which they are not entitled to do. It should be remembered that those awards are being paid by mine and other people's money. That practice cannot be allowed to continue.
I am not here to defend insurance companies, or any other vested interest group. Hopefully, I am here to face reality just like the reality we have had to face in the amount of money to be spent on health, education and farming relative to the amount of taxes collected. The principle of insurance is exactly the same; if one wants to pay out more then one must collect more but the question must be asked: who will pay? The answer is that it will be I and every other citizen who will pay. I want to ensure that those who are severely injured will get a fair deal.
I do not accept for one moment that because it will be a judge alone deciding whether it should be £100,000 or £120,000 that should be awarded, that a plaintiff will not get a fair deal. After all, there is the recourse to the Supreme Court, which has always been the redress of somebody who feels they are not getting a fair deal and remember, juries do not sit in the Supreme Court. The reality is that, when we talk about benefits, we are talking about people who must pay large premiums every day of the week. If one wants to get at insurance companies, then I suggest that one introduces a new system of taxation but do not let it be me and others who must carry the can for those who refuse consistently to pay insurance cover on their vehicles. Yet, when they are in court they are handed down a mediocre fine that does not encourage them in any way to pay what they should. I am all in favour of the retention of juries once that is not done at the expense of the ordinary individual.
Let us decide whether we should introduce legislation to abolish compulsory third party insurance cover in respect of motor vehicles because, if that is done, then it will be a free market, then those who want to insure can do so but there will be no onus on anybody to carry the can. For far too long in this country we have spoken about rights we cannot afford. We cannot afford to pay out vast sums of money in that manner. If we had had annuities or some other methods of payment they would have been more realistic. It is wrong to imply that those who have taken the difficult decision to abolish juries in personal injuries actions are doing so without compassion. It is wrong to suggest that.
It is wrong to suggest that I and others who have taken that decision are doing so in order to increase the profits of insurance companies. That is not true. I am here to defend every individual who is at present obliged by the law of this land to insure against third party liability if they own a motor vehicle. Perhaps we should decide to abolish that obligation, retain juries and have a free-for-all but as long as everybody is obliged to have third party cover then the premiums chargeable should be realistic. Perhaps we should even consider nationalising motor insurance if that would satisfy some people. Then we would ascertain whether our taxpayers would carry the losses incurred on motor insurance in recent years. We would then ascertain whether people were prepared to pay increased taxes for that luxury.
It is wrong that there should go into the record of this House the implication that those of us who support the abolition of juries, for practical reasons, are doing so in an inhumane and uncompassionate way. That is totally wrong. It is also wrong to suggest that we are concerned only with increasing insurance companies' profits because that is far from the truth.
It is up to the Minister for Industry and Commerce to ensure, before he allows an increase in premiums, that the profits made by insurance companies are taken into account, that is, the profits made by them on the investment of motor premiums collected. Of course he should take investment profits into account. It is up to him to decide he will not agree to an increase in premiums if that is the way he wishes to go about it. Because of the vast increases that have taken place over the last five or ten years more and more young people are not bothering to get third party liability cover. What happens then when they injure an individual? Who will pay the bill if a person becomes a paraplegic after an accident, whether the award is by a jury or a judge? What will happen if there is no Motor Insurance Bureau and if I and others say we are not going to contribute part of our premium income towards this Motor Insurance Bureau? Who will pay that unfortunate person? Will he have to claim personal damages against an individual who may not have a shilling? That is the reality of what we are talking about.
It is all very well to talk about the injustice of abolishing juries, but the experience to date is that the premia collected are not sufficient to meet the claims made. In other European countries that situation does not arise because one does not even have to have passenger cover. If one is a passenger in a vehicle in Greece and one has a serious accident there is no insurance company to pay out damages because passenger cover is not compulsory, whereas in this country it is compulsory to have passenger cover. There was a girl in my constituency who was involved in a car accident while on a holiday in Greece and she suffered multiple injuries including severe brain damage. Her parents even had to collect money to bring her back from Greece because there was no insurance company to pay up. That does not happen here, and I am proud of it. But at the end of the day we have to decide whether or not we can afford to pay out vast sums of money when the kitty is getting dry.
I hope that between the Department of Industry and Commerce and the Department of Justice insurance companies will be brought to heel and that they will not be granted increases in premia without taking into account their investment profits. If the situation we hope will not arise as a result of this legislation does arise and there are abuses, I hope somebody will have sufficient courage to come back in here and call for the reintroduction of juries because the man in the street is not getting a fair deal.
You will not hear that in this House.
If the Dáil can abolish them, they can reintroduce them. Let us get back to reality and talk about the facts we have to face every day of the week and the number of uninsured drivers as a result of high premiums.
I had intended to have little or nothing to say in reply to the debate on this amendment because everything that could be advanced in the cause of this amendment was advanced on Committee Stage and was mirrored again here. The Workers' Party introduced this believing that it was a small measure that would in some way cushion the shock of the introduction of this proposal in the Bill. I would be happy to leave matters as they were, having listened to the wise counsel and words of two of the most senior lawyers and practitioners in the courts, both Members of the Fine Gael Party, who have contributed to this debate. It is a pity that their spokesperson for Justice could not have listened more attentively to some of the things they had to say.
The Workers' Party, in opposing this Bill and seeking to promote this amendment, did so on the clear statement that no benefit would emanate from this legislation for anyone. It is foolhardy in the extreme to suggest that benefits will accrue. If one is to take up Deputy Barrett's arguments, the insurance companies are in such a pickle that they are running at a loss — that is a new poor mouth story for me — and if that is the case this legislation will be of no assistance to them. It will certainly not benefit the administration of justice. It will not benefit the people who want to go to court to seek justice, it will not benefit the administration of justice generally and it will not benefit the people who pay insurance premia, because the insurance companies will not pass on the benefit to the insured persons if they can avoid it. Nothing illustrates that better than the point Deputy Barrett made. At the commencement of this debate about six weeks ago the Deputy talked in the context of insurance companies bringing down premia as a result of this legislation. In the last dying moments of this debate, with the kick that Deputy Barrett can give to the debate, the Deputy tells us that what we are really talking about is not allowing the insurance companies an increase in the future.
I am not spokesman for the insurance companies.
The whole notion of a decrease has gone out the window. The notion that the insurance companies will reciprocate this legislation by a decrease in their premia is gone. What they are now talking about is asking the Minister to look at their books and see what profits they are making when they come in looking for the next increase. That is the context in which we are now debating this fundamental legislation.
We make the point very clearly that there are rights which we can and must afford and they should not be up for sale at any price. One of those rights is the right to trial by jury on issues of concern before the courts. We are selling that right cheaply here tonight with no benefit in return. Deputy Barrett appears to support this Bill, so why can he not sit on the other side of the House and sit beside the Minister. This Bill is his work. It is his proposal. It is a great pity that there is not unanimity in the Fine Gael Party on the issue.
There is a lack of compassion here. This is a cold piece of legislation. The right involved here is a right which we have always described in this House as a safeguard mechanism available to those at the end of a very long process who might on an occasion have recourse to trial by their peers. That is the essence of jury hearings — a recognition that there is a higher authority than judge alone, that there is a higher authority of the law-maker. We, the community, can appoint delegates on our behalf to be a higher authority and adjudicator based on no other reason than that we are the peer group of the person coming before the court and we bring with us the experience of the life, the circumstnces and the surroundings to which that litigant comes and seeks justice. That is what it is all about. When one gets down to looking at the balance sheets of insurance companies and the profit and losses of the shareholders and directors of insurance companies, that implies a notion and those principles mean very little and that they can in fact be sold. Deputy Barrett has not listened to a word of this debate——
I do not want to listen to you anyway. That is a load of rubbish.
We pay nothing towards the cost of running the jury system by way of administration. The jury system adds nothing to the cost of administration because juries are so rarely if ever employed and their impact on awards is in line with what judges are doing at the moment anyway. At the end of the day even if you vary premium awards you will not get a change in premium levels because the insurance companies simply will not pass them on, and Deputy Barrett has told us that tonight. We are now at the close of this debate talking about holding insurance companies back when they come to look for the next increase. We have sold the right to jury trial very cheaply.
Utter nonsense.
As it is now midnight I am required to put the following Question in accordance with the order of the Dáil of this day, "That Fourth Stage is hereby completed and the Bill is hereby passed."
