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Dáil Éireann debate -
Wednesday, 3 Jul 1991

Vol. 410 No. 3

Courts (No.2) Bill, 1991: Committee and Final Stages.

Section 1 agreed to.
Question proposed: "That section 2 stand part of the Bill".

I want to say a good many words about section 2. What I have to say will relate also to some of the later sections. With regard to the figures which are mentioned in section 2, the Minister in the course of his Second Stage contribution, did not refer to the background to the decision which went into the production of these figures. It seems to me that he has produced arbitrary figures. For example, he has chosen a figure of £30,000 which was very convenient because it is a multiple by two of the original figure of £15,000. Throughout the Bill all the figures are multiples of two in each case. What is the logic and the reasoning behind the production of these figures? I am worried that no consideration has been given to the likely effect on the lower courts of this legislation. It seems to me that the effect could be enormous and I am worried that this legislation may be legislation for chaos.

In his Second Stage contribution the Minister did not give any indication of the likely outcome and what the increase in business might be in the lower courts. He has an opportunity today as we go through the various sections to remedy that matter. I hope he takes that opportunity because we need to know the basis for a particular decision. In section 2 how did he arrive at the figure of £30,000? Did he just think of a number? Did he increase the original figure by inflation over the ten-year period since 1981? Was it a case of doubling the money? It seems to me that it is an arbitrary decision and that there is no basis in it for logic and fact. It certainly did not appear like that on Second Stage. The Minister did not justify in any way whatsoever the insertion of a figure of £30,000 and why a figure of £29,000 or £35,000 was not put in place. I am worried about the effects of this decision as I am about the effects of section 3 and other sections also. I want to know if there is any analysis available and, if so, I want to hear it before I accept section 2 and the following sections.

Let us deal with section 2 at the present time.

What evaluation was used? The Minister said on Second Stage that the Government, after careful consideration, have decided to increase the Circuit Court's jurisdiction in contract and tort to £30,000. I have no evidence of the careful consideration that went into the production of that figure. The Minister produced only one figure in the section dealing with the delivery of summonses, namely, that the number of gardaí released would be 60 as a result of the changes in the legislation. That was the only analysis I saw in his Second Stage contribution. I want to see that analysis now. For example, what was the situation in 1983 as a result of the changes made in 1981? Does the Minister have facts and figures to show us what the effects were then? This Bill brings about new changes which did not exist in 1981. What are the likely effects? Will we have overcrowding? Will we have chaos in the lower courts? We did not hear the answer to those questions on Second Stage but we must hear the answers today. I leave it to the Minister to respond to that very central and crucial question before we move on.

I would like to comment very briefly on the principles behind section 2. The same issues will arise in respect of subsequent sections because they deal with the same principle, basically that of increasing the jurisdiction of the lower courts. Questions have been raised by Deputy Cotter and I would like to add my voice to some of his concerns. There was a very wide-ranging debate on Second Stage about the inadequate administrative back-up facilities for all of our courts, not just the Circuit Court but more particularly the District and the High Courts. Section 2 deals specifically with the Circuit Court. In addition, we talked at length about the poor standard of accommodation, the physical facilities available in many of the courthouses throughout the country and the multiple structures of responsibility that exist in some areas particularly in Dublin where — if I remember correctly — there are three separate areas of responsibility for even the maintenance of the physical condition and facilities at the various courthouses in the city.

The basic proposition here is that the Minister is seeking to address a problem that exists and is perhaps most often exposed because of the scale of work done in the High Court by shifting down the court structure a sizeable proportion of the workload of the various courts. The proportion of the work-load is not yet clear. The proposition is to double the jurisdiction of the Circuit Court under section 2 to £30,000 from the existing £15,000 and we have had no indication as to the likely impact of that decision.

In principle, I welcome the fact that the jurisdiction of the lower courts is being increased. It is proper and fair and will lead in time to more actions being taken in the more accessible courts with, I hope, a consequence that litigation generally will become cheaper. The District Court is an easier court to deal with, a quicker court to gain access to and a far less expensive court than the higher courts. The same arguments apply to the Circuit Court as opposed to the High Court.

The Law Society made a submission dated 2 July which the Minister probably only received yesterday. I received the submission this morning and I am not surprised at the points in it. They made the point — made here on Second Stage — that simply passing the work-load is not enough, it must be coupled with a programme of enhancing the administrative back-up of the lower courts. I understand, although I do not know whether there has been a public announcement, that a new, young and vibrant county registrar will be appointed in Dublin. I welcome the appointment and I have no doubt that the person in question will introduce a dynamic to the Dublin Circuit Court which is needed. His appointment, coupled with that of the new President of the Circuit Court, both of which are welcome, will introduce a much needed dynamic into that court.

The problem that arises with these appointments is that of accommodation. In the Dublin area we are pretty well served at Circuit Court level although not so well served at District Court level. Some of the Circuit courthouses in the country are certainly not up to standard necessary to accommodate the work-load envisaged and which will result directly from the provisions now contained in section 2. To take it at its crudest, by doubling the jurisdiction as proposed we would, by definition, double the work-load although I do not necessarily accept that will be the result. However, if it is, the court structures and existing accommodation will not carry that amount of work.

The Law Society, in their submission, said that as well as doubling the jurisdiction of the courts, we should contract the area which a judge on circuit is obliged to deal with. That would, of necessity, involve the appointment of a far greater number of judges to the Circuit Court than is provided for under this legislation in later sections. The Minister must assure the House that the implications in terms of the work-load which will be imposed on the Circuit court by the increase in jurisdiction will be matched by his Department in assigning additional administrative and judicial staff to the courts which will lead to — sooner rather than later — a programme of administrative reform in the practices of the courts and in the facilities available in terms of computerisation and other processes which are essential in terms of efficient administration at any level of Government, in the courts or elsewhere. I hope the Minister is in a position to assure the House in relation to these two very real concerns.

The final point dealt with by the Law Society in their submission is one which they regret has not been addressed by this legislation. It is that the recommendation of the Fair Trade Commission with regard to extending the qualifications of those who can be appointed to the Circuit Court has not been taken on board, namely, the inclusion and consideration of solicitors. We should go beyond what the Fair Trade Commission report said and look to other professions for suitably qualified people who could be considered for appointment to the senior benches of our courts. I am thinking of in particular accountants in the area of tax litigation and other matters, architects would be able to deal with litigation in regard to building and other contract issues. We should not confine ourselves to the legal profession in looking for people to serve on the benches of our courts. I hope the Minister will give an indication that this matter, although not to be dealt with in this legislation, will be addressed in the Solicitors (Amendment) Bill or other suitable legislation in the near future.

I thank Deputies for their contributions. I am at a loss to understand the point made by Deputy Cotter as to why the increase was not touched on by me in my speech on Second Stage I said on that occasion:

The limits of the civil jurisdiction of the District and Circuit Court were fixed originally by the Courts of Justice Act, 1924, and were increased first in 1953, mainly to compensate for the fall in the value of money. They were again increased by the Courts Act, 1971. The limits were last increased by the Courts Act, 1981, and on that occasion the civil jurisdiction in contract, tort and related jurisdictions was fixed at £15,000 for the Circuit Court and £2,500 for the District Court.

The Fair Trade Commission in their recent report into restrictive practices in the legal profession suggested that the jurisdiction of the Circuit Court should be increased to £25,000 and that the jurisdiction of the District Court should be increased to £5,000.

The Government, after careful consideration, have decided to increase the Circuit Court's jurisdiction in contract and tort to £30,000 and the District Court's jurisdiction in these matters to £5,000. Other jurisdictions of the Circuit Court which have been traditionally linked with the contract and tort limit, will also be similarly increased.

I was asked why I did not accept the figure of £25,000 suggested by the Fair Trade Commission. Since the last increase the inflation figure would have been about 85 per cent and the Government, on my recommendation, rounded the figure up to £30,000.

In 1988 the District Court had 125,916 civil cases which dropped to 111,000 in 1989 and 101,000 in 1990. The jurisdiction limits were not effective and it was a question which had to be tackled.

Deputy McCartan referred to the accessibility of our courts to the general public and making our court procedures cheaper. It is preferable to have an action heard in a Circuit Court or a District Court instead of the High Court. This is far better than forcing everything up to the highest level of the court; we should be forcing cases down so that the general public will have greater access to lower courts.

I can give the Deputies the assurance requested by Deputy McCartan in relation to assistance for the courts. I think my good faith in that regard can be judged by this Bill. When we discussed the rape legislation last year I promised to review how it was working and said that if it was found that extra judges were needed in the High Court I would appoint them. I am coming before the House now requesting two extra judges to deal with the heavy workload of the High Court in relation to rape cases. Due to the complex nature of those cases they go on for days on end, and there is a demand for extra judges. Deputies can judge my good faith in relation to court reform by the fact that I am proposing to appoint two extra High Court judges with the agreement of the House.

This legislation is one piece of an overall jigsaw of court reform. The aim of that reform is to make our courts more accessible, to make litigation cheaper, to increase the jurisdiction limits and to set up a small claims procedure, a process which is already under way. There will be three or four pilot projects around the country. Later in the year we will introduce legislation to establish a new court of civil appeal. All these measures are geared towards making our courts more efficient and more effective. Rather than clogging the system, as is the suggestion of Deputy Cotter and the concern of Deputy McCartan, I can assure the Deputies that the opposite is my aim and that of the Government. We want to make the courts procedure much more effective and efficient, and I believe we are heading in the right direction. That is the reason for the figures of £15,000 and £30,000, to come back to the initial point raised by Deputy Cotter.

We have succeeded in getting some figures from the Minister to back up his case. These are the first figures we have been given. The Minister's speech offered no justification for the changes proposed. It was simply a set of aspirations and platitudes. We have now received figures which give some indication of the position over a period of ten years. Surely the Minister is in a position to forecast, from all the information available to his Department, the likely increase in business as a result of all the proposals — not just those in section 2 — dealing with the Circuit Court. I would like to hear the Minister's projections for next year and the year after, based on experience and the experience immediately after 1981 when the previous changes were made.

The Minister proposes to appoint extra judges and justices. The information we have now is likely to shed light on whether that is a wise or arbitrary decision. I am still not happy with this section and I would like the Minister to concentrate a little more on projections for the future. I want to be satisfied that this is not, as I said earlier, legislation for chaos in the system that operates in the Circuit Court particularly and also in the District Court. The Minister said on Second Stage that the main objective of the Bill is to make litigation in the court cheaper and speedier. That aspiration has been the centrepiece of every ministerial speech I have read with regard to the introduction of a Courts Bill.

In 1981 Deputy Collins had the same aspiration for the legislation he introduced at that time, which was similar to a large degree to the legislation before us today, but it remained an aspiration and was not translated into fact. It did not result in cheaper and speedier access to the court. I would like to know whether the Minister can give fairly accurate projections based on all the information his Department have gathered over the years. I would like to know whether his aspiration in the summing up of the Second Stage debate is based on all the figures his Department can collate and put before us. That is central to this whole matter.

There is no point in producing legislation just for the record. There are all sorts of isolated Bills coming before the House at the moment and there is concern that there is no overview whatsoever, that the Government are trying to bring in legislation so that they can say to the public: "We are great lads. Look what we have done. We have processed 14 Bills since Easter".

Not very long ago the Minister proposed to close down many courthouses. That suggests that this legislation was put together in a hurry and was an afterthought. I assume it is part of a set of proposals the Government are bringing forward to overcome their embarrassment with regard to the extremely high and unfair cost of insurance. The Minister is projecting that as a result of this legislation, particularly section 2 with which we are dealing now, the cost of litigation will decrease, but I am not convinced of that. I will be continually pressing the Minister to produce factual information, or at least projected information, based on facts to justify the statements and claims he has made.

The decrease in business in the Circuit Court over a ten year period could well be related to the fact that there was no change in the jurisdiction over that period and the number of cases taken decreased from 125,916 to 101,000. It could be interpreted that the decrease resulted from the fact that the fall in the value of money put about 25,000 cases out of the range of the Circuit Court and into a higher court. Can the Minister project what the likely outcome of section 2 and the later sections will be over the next three to seven year period? He must be in a position to do that and I want that information before we leave section 2.

As regards the suggestion that this is rushed legislation, I would tell the Deputy that we have been working on this legislation for many months. As I have mentioned in my earlier reply, it is part of an overall package of reform in the courts area which will involve a small claims procedure, changes in the jurisdiction level in the District Court and Circuit Court, an increase in the number of judges and justices in the District Court, Circuit Court and High Court, the establishment of a court of civil appeal and general reform within the courts area. Reform is also taking place under a solicitor's Bill, which will be circulated during the summer, and voluntary changes are being made by the Bar Council in their fee structure for juniors and in other areas.

We have read the reports.

The recommendations of the Fair Trade Commission in relation to legal education are also being considered. There is to be an overall package of reform for the courts and the legal profession generally.

The Fair Trade Commission recommended a limit of £25,000 and I have given my reason for thinking that that figure was too low and for increasing the limit to £30,000. The matter has been reviewed by the President of the Circuit Court, who agrees with the figure of £30,000. The Fair Trade Commission report estimates that about 35.8 per cent of the overall cost in insurance claims generally is for legal costs. I am trying to take cases from the higher courts into the lower courts, where the costs are lower. Instead of an insurance claim involving £25,000 or £30,000 having to go automatically to the High Court, where costs are more expensive, the idea is to take the claim to the Circuit Court or the District Court, where the costs are lower.

The most recent change occurred in 1981. Deputies will note from the Bill that in future jurisdiction limits will be changed by order confirmed by the House rather than by legislation. In reply to the Deputy's question of the experience since 1981, I note that there was an initial increase in the amount of business and then matters levelled off. I cannot give numbers on the amount of business. I am sorry that I cannot do that for the Deputy, but I would be misleading the Deputy and the House if I tried to do so. However, the matter has been discussed with the President of the Circuit Court and recommendations have been made by the Fair Trade Commission. The Government and I believe that in order to reduce costs and make the courts more accessible it is better to make the lower courts available to the public than to force people to go to the High Court.

I thank the Minister for the extra information he has provided, although I am not satisfied that the Government considered the matter carefully before making certain decisions. It is evident that certain arbitrary positions were adopted, justification for which was not based on fact but on aspiration. The Minister said he was not able to project the likely effect of these changes on Circuit Court business in the next few years. That is unsatisfactory. Surely the changes being made under the Bill are being made in the light of good, solid decision making rather than in the hope that the end result will be manageable. Logic should be a requirement, but the Bill does not deal in the realm of logic. Changes have been made in a cosmetic way.

The Minister described the Bill as part of a jigsaw of reform in the courts. I am not sure whether his choice of words was good — a jigsaw, indeed. The Government's approach shows no unity of thinking. The Government are rushing about in 40 different directions at once with small Bills that it is hoped will come together to form something manageable that will improve the situation for everybody. Such an approach is completely aspirational. I am not satisfied with the Minister's response. Decisions must be based on a likely outcome, but the Minister had told me he cannot possibly give an indication of the likely outcome.

The Government are making itsy-bitsy legislation. As I said the House could well be legislating for chaos. I shall be pressing the Minister through debate on the Bill for an explanation of the Bill's logic. The House is entitled to an explanation. I want more answers before the debate on section 2 is finished and when we reach section 3, and subsequent sections, I shall look for the same basis of logic. The Minister looks very unhappy at that prospect, but he will have to bear with it.

I assure the Deputy that, far from being unhappy, I welcome the teasing out of the Bill section by section. The Deputy should not be under any illusion about my state of happiness or otherwise in relation to his contributions. Deputy Cotter said the Bill was in some way rushed and badly thought out as far as the change in the jurisdiction limit of the Circuit Court was concerned. I told the Deputy that that change was made after the Fair Trade Commission considered the legal profession for three years. One of the commission's recommendations was to increase the limit to £25,000. I have explained why I felt a limit of £30,000 was more appropriate and that the matter was discussed with the President of the Circuit Court.

I should like to give the Deputy some idea of the number of cases heard by the Circuit Court. In 1984 there were 45,900 cases heard; in 1985 there were 47,400; in 1986 there were 49,000; in 1987 there were 49,500 and in 1988 there were 50,148. Those figures show that the number of cases heard in the Circuit Court has been increasing. Cases have been pushed up from the District Court, where they should have been dealt with, to the Circuit Court. If those cases had been heard in the District Court there would not be so many in the Circuit Court. The same push has been occurring from the Circuit Court to the High Court.

On the most recent occasion the limit for the Circuit Court was increased it went from £2,500 to £15,000. In this change it is going from £15,000 to £30,000. The scale of the increase previously was much greater than it will be this year. This time the limit is being doubled on the recommendation of the Fair Trade Commission, following discussions with the staff associations and the President of the Circuit Court, reviews made by my Department and taking into account moves in inflation since the previous increase. The change is part of a well thought out procedure, and it has been thought out not just by myself and my Department but also by outside groups such as the Fair Trade Commission, who took three years to consider the matter.

I support the principle of increasing the jurisdiction of the Circuit Court to the extent indicated in the Bill. The doubling of the limit will not lead to the chaos that has been predicted, provided the Minister stands by his commitment to keep under close and constant review the adequacy of the staffing levels and the backup services needed to administer the courts. The principle of increasing the capacity of the jurisdiction of the lower courts is a good one and is supported by the Law Society. We should not lose sight of the fact that in civil cases the vast majòrity of cases are settled. The difficulty is in getting to the point where settlement can be achieved. The vast majority of cases are settled at the court door and very few actually go to hearing. These provisions will enable cases to move with greater rapidity to the court door and they will be accommodated.

Having said that, there are serious concerns. The provisions of section 16 enable the Minister to bring back by way of order to the courts a variation in court jurisdictions. Can the Minister assure us that that would be availed of in cases where the courts were unable to deal with the workload? I do not think that will arise, but if it did for reasons that are not apparent at the moment, I would like that assurance from the Minister.

There is another matter that should be borne in mind. The courts share with us here the facility for long vacations. We here have been unable to address this and certainly the courts have looked at it from a distance with some dismay. It has never been clearly explained why our Circuit Court rises for the entire months of August and September each year, why there is a need for a summer recess of two whole months. They sit in vacation for emergency matters. However at Christmas, at Easter and at one other term, Whit, they can accumulate anything up to six weeks vacation period. I wonder if the Circuit Court have been asked to look at the necessity for having such long breaks in the working year, given the proposed increase in their workload.

Another point raised by the Law Society which the Minister might comment on is the areas of each of the Circuit Courts. This point will be made about the District Court later. The judge of any circuit is now sitting a four day week from very early in the morning to very late in the evening simply because of the geographical size of the area the circuit is built upon. I am open to correction on this, but I understand that the Circuit and District Court areas were established about 1926 very shortly after the founding of this State and have not been substantially altered since. The only change in the District Court areas was in respect of the Dublin Metropolitan Area when it was extended to bring in Dún Laoghaire, Kilmainham, Rathfarnham and other places. Outside of that the geographic areas of the Circuit Court have remained the same while the workload of the judges has increased dramatically. It has meant that judges sit very long hours and are very busy when they are in session. That must be looked at in terms of a radical reorganisation of the resources of the courts in an overall package. I hope that will be borne in mind. In principle, it is right that we should try to spread the work downwards rather than leaving it hanging as it is.

On the question of accessibility, we must not forget the appalling state of our legal aid system. We must not begin to suggest that extending the jurisdictions is a panacea, that it will resolve all matters. The Circuit Court is not a cheap court by the standards of the ordinary man or woman. The cost of a day in the Circuit Court is now very substantial. The whole question of fairness and accessibility can only be properly addressed in a comprehensive and adequate civil legal aid scheme. I wanted to make that point lest we all got lost in this idea of welcoming the increase in the jurisdictions of the Circuit and District Courts thinking that it resolves all the difficulties. It does not do that.

We will talk later about the increase in the jurisdiction of the Circuit Court to deal with family law matters. The issue really rears its head in that regard, as does the problem of inadequate facilities for private consultation rooms and other matters that are utterly absence from most of our Circuit Court buildings around the country.

On a Committee Stage Bill of this kind, the Chair allows a lot of latitude, but there has been a complete straying away from the section before us into other areas and other sections of the Bill yet to be considered. I would ask sincerely that from now on we confine our remarks to the section before us. Otherwise, we shall make no progress on an issue to which there applies a rigid time limit in respect of completion of the Bill.

I will not delay the House. Let me reply to a couple of the points made. The areas of the Circuit Court have not been changed since the foundation of the State. However, I will take note of the point that has been made. It is not a matter for me but for the President of the Circuit Court and I will draw his attention to it.

The District Courts are changed regularly, I am informed. On the question of the sittings of the Circuit Court, a number of the Circuit Courts are sitting on a fifth day now, on Mondays, to deal with family law matters.

On the question of upgrading facilities, a computer network is being installed in the Dublin Circuit Court at present and this will speed up the office procedures there. Preliminary work has commenced on the computerisation of the Central Office in the High Court which will, again, speed up the operations and procedures of the office. I strongly recommend section 2 to the House. There is little else that I can, with benefit, add to what has already been said.

Question put and agreed to.
Section 3 agreed to.

Amendments Nos. 1, 4, 8 and 9 are consequential on amendment No. 7. Is it agreed that we discuss those together? Agreed.

I move amendment No. 1:

In page 4, paragraph (c), line 41, to delete "justice" and substitute "judge".

This amendment arises because of the substantive change being proposed in amendment No. 7 in the style of address of judges of the District Court. I am proposing in amendment No. 7 to change the mode or style of address from justice to judge by the insertion of a new section 21 in the Bill. Although under the Constitution district justices are judges they have been styled as justices since the foundation of the State. Existing statutory provisions are contained in section 5 (2) of the Courts (Establishment and Constitution) Act, 1961 which provides that each judge of the District Court shall be styled "Justice of the District Court". There have been recommendations previously to change the style of address of a judge of the District Court, including one by the Committee on Court Practice and Procedure, and the opportunity is being taken in this Bill to make the change.

Subsection (1) (a) and (1) (b) in the proposed new section 21 make the necessary amendments in sections 5 and 6 of the Courts (Establishment and Constitution) Act, 1961. Subsection (2) provides for consequential changes in the case of all other legislation. As a result of amendment No. 7 there will be a consequential change in section 15 and in the long title of the Bill. A change is also proposed in section 22 of the Bill. These are the subject of amendments Nos. 4, 8 and 9.

Amendment No. 8 will amend the commencement provision in section 22 and will mean that the change in the style of address of judges in the District Court will come into effect three months after the date of the passing of the Bill. This will allow for the passing of other Bills before the Oireachtas which contain references to justices of the District Court, without having to amend them. As and from the commencement date all references to justices contained in any Statute or Statutory Instrument in operation on that date will be construed as a reference to a judge of the District Court by virtue of the proposed new section 21 of the Bill. As the provision of section 4 (c) of the Bill will not come into effect for three months, amendment No. 1 is needed to clarify the correct title that will apply in that section to judges of the District Court when the proposed change in the style of addressing judges comes into effect. Amendment No. 4 is necessary for the same reason.

I received great satisfaction from the fact that the Minister had taken this matter on board. I raised this issue on 12 June in the House in the context of another Bill. The issue unfortunately got lost in a controversy dealing with the Courts (Supplemental Provisions) (Amendment) (No. 2) Bill, 1990, which dealt with the question of pensions of judges. That Bill attracted a great deal of controversy in another direction. On that day I moved amendments to delete references to justices of the District Court and to include them as judges. We spent a short time on that before the more substantial controversy was taken up. I withdrew my amendment when the Minister of State indicated that this was something that would be looked at and fairly considered. I welcome the decision of the Minister and the Government to put this right. It was wrong to describe members of the Judiciary in the District Court as something other than judges, particularly, as the Minister has pointed out, since our Constitution of 1937 refers only to judges of the various courts being appointed and about justice being administered by judges in the various courts. A clear explanation was never given. Even in the 1961 Act to which the Minister referred the Irish text referred to "breitheamh" in relation to District Courts. It was in the English translation that "breitheamh", for some odd reason, became "justice", whereas in the context of the Circuit Court and the High Court the word "breitheamh" remained as "judge" in the English version. This was just a peculiarity.

Over the years it has given rise to concern among members of the District Court Judiciary that they were looked on as something other than judges and that it was a reflection on their work. I spent 15 years in law practice and the greater portion of my time was in the District Court. I have the greatest admiration for the judges who sit in the District Court. Three or four years ago we dealt with corrective legislation with regard to a member of the District Court Judiciary whose warrant had not been properly extended and the figures advanced as to how many cases he dealt with on an annual basis was staggering. That applies to all the judges of the District Court. The District Courts are vital to our judicial system. They are the most democratic courts and the most easily accessible courts. They have perhaps more impact on the everyday lives of people than any other court. It is important to have the fullest regard for the work of the District Courts and the role played by the judges in them.

With regard to the independence of the Judiciary, the most important function that legislators have in relation to the care of the courts, and the greatest support we can give the courts and the judges, is to provide appropriate facilities in which to work with effective dignity. Nothing attacks the status of the court more than shabby surroundings and poor facilities and judges sitting on the benches complaining that they have to use buckets to catch the rain water coming through the roof, that they have to use mobile heaters under their benches to keep warm and have had to adjourn courts simply because the facilities were inadequate. We cannot expect the public to have due regard for judges of the District Court and the work they are doing when the people in power are not maintaining proper facilities. We must not lose sight of that. This amendment goes towards building up the status of District Court judges in recognising that they are full judges appointed under the Constitution. This amendment will be appreciated by all the judges who work in the District Court. When I worked in that area many judges privately or publicly made the point that they considered the form of address as being important. I commend the Minister for taking this point on board.

With regard to section 4 and the Minister's amendment, it is quite logical to make that change. I have no quibble with it. I do not suppose it will lead to any dissension within the judicial system. It is a minor, sensible change. However, a couple of things worry me in relation to section 4.

I suggest that we agree the amendment and then move onto the section.

Acting Chairman:

I was about to remind the Deputy that he can speak to the amendment if he wishes.

I will speak to the amendment and then talk about section 4. I accept the amendment and I have no difficulty with it. I was somewhat amused to hear Deputy McCartan referring to the status of the courts and of the judges and to the things which were likely to take from that status. I could not but be mindful of the vicious and slanderous attack he made during the debate on the Courts (Supplemental Provisions) (Amendment) (No. 2) Bill, 1990, on eminent members of the same courts.

Acting Chairman:

I would remind the Deputy to confine his remarks to what is in this amendment to section 4.

I will indeed. Deputy McCartan's attack came from a most unlikely source. He tends to speak to the Irish people from the bridge of his yacht. The slanderous and contemptuous remarks he made did much to minimise the status of our judicial system, which he is trying to defend here today. I was extremely disappointed at those remarks. I was also disappointed that the Minister did not rebut what Deputy McCartan put forward as factual information but which obviously was non-factual——

Acting Chairman:

I would again remind the Deputy that he is straying completely form what is in the amendment. I must advise him to confine his remarks to what is in the amendment.

You have given me a lot of latitude which I did not really deserve. I was stretching this point because I wanted to make what I regard as a fair point, that is, people who speak in this House and who have the protection of the House should be careful about what they say. I am in breach of the regulations of the House because I am not speaking to the amendment to section 4.

I accept the amendment and will not be opposing it.

I thank Deputies for the welcome they have given to this amendment which proposes that in future justices of the District Court shall be known as judges of the District court. This is more than symbolic as 90 per cent of the people who have contact with the courts of the land do so at District Court level. It is important that the men and women who sit on the bench of the District Court should be addressed as "judge", which is what they are and what the public perceive them to be. I am glad to have the opportunity of removing the title "justice", a relic of olden days, from our Statute Book.

As I indicated, I support this amendment. I want to make a brief point in response to Deputy Cotter. I would ask him to again read my Second Stage contribution on the Courts (Supplemental Provisions) (Amendment) (No. 2) Bill. I accept that he has his own definition of what is vicious, but if he can point out to me anything which approaches slander in what I said I would welcome it. It has been suggested that my remarks were vicious and slanderous. I was certainly critical but I challenge him to point out where I was slanderous.

Acting Chairman:

The Deputy's point is taken.

Amendment agreed to.
Question proposed: "That section 4, as amended, stand part of the Bill."

I should like the Minister to clarify a point in relation to courthouses. It is common knowledge that the Minister had plans to close down a number of courthouses. I should like to know how those plans, if they still exist, fit in with the terms of section 4 and the extension of the jurisdiction of the District Court. If the plans have been torn up and thrown away, I also want to know. It is crucial to the delivery of the service that we know whether the Minister still has plans to close down some courthouses, whether this plan fits in with what is proposed in the Bill or if he has abandoned his plans.

This is not relevant to the section. However, for the information of the House, a review of District Courts has been carried out over a number of years. The review of the areas dealt with by District Courts and whether they are as appropriate to the nineties as they were when they were established at the foundation of the State is still ongoing. It is only wise and proper that such a review would be carried out. When decisions are taken in regard to this matter they will be announced in the normal way.

Question put and agreed to.
Section 5 agreed to.
Question proposed: "That section 6 stand part of the Bill."

This section deals with the extension of jurisdiction of the District Court under the Hire Purchase Acts, 1946 and 1960. Section 6 (1) proposes that section 19 of the Hire Purchase (Amendment) Act, 1960, be amended by the substitution of £5,000 for £2,500 in subsections (1) and (2), while section 6 (2) proposes that section 33 (4) (a) of the 1961 Act be amended by the substitution of £5,000 for £2,500. Like most people I think of hire purchase in terms of the purchase of cars. Most ordinary people have to avail of hire purchase arrangements or some other form of funding to purchase cars. Has the figure of £5,000 been related to this element of hire purchase? Will the Minister say if any consideration was given to the fact that most of the hire purchase agreements entered into by ordinary people relate to the purchase of motor cars?

This section will increase the jurisdiction of the District Court in actions relating to goods let under hire purchase agreements or sold under credit sale agreements. The jurisdictions here have traditionally been linked with the contract and tort jurisdictions limits of the District Court. There is nothing more significant to it than that.

Question put and agreed to.
Sections 7 to 10, inclusive, agreed to.
Question proposed: "That section 11 stand part of the Bill."

This is the first of three sections dealing with the extension of the jurisdiction of the Circuit and District Courts in regard to maintenance and other related matters in the context of family law. Section 11 deals with maintenance provisions, section 12 deals with guardianship of infants and section 13 deals generally with family law. Although there are problems in regard to some Circuit Court courthouses the point I want to raise relates mainly to the inadequate facilities for proper consultation in District Court courthouses and the necessity for cases under the judicial separation legislation to be dealt with in a proper environment. Can the Minister say if any special regard is being had to this problem, with particular reference to the District Court, at this stage and if he envisages any programme being implemented to ensure that proper facilities are provided over a period in all our courthouses, the district courts in particular, so that consultations can take place in private and family law cases can be heard in the proper way having regard to the fact that we are increasing the jurisdiction and are going to allow these cases to be dealt with increasingly in the lower courts?

Has the Minister considered setting up a family law tribunal, for example, having regard to the considerations mentioned by Deputy McCartan and others? The judges who operate in the District Court and the Circuit Court have a rag bag of business to carry out. Most of them would accept that they do not possess any special qualifications in psychology which would give them a greater understanding of family dynamics. Given that there has been a substantial increase in the number of cases involving family breakdown, which are both complex and complicated, coming before the courts, would the Minister comment briefly on his overview of that situation vis à vis section 11 and following sections which deal with family law?

Would the Minister share my view that judges who hear family law cases should receive some special training in psychology which would give them a better understanding of family dynamics and a better affinity with the people they deal with having regard to the fact that the break-up of families can have a serious psychological effect on the people involved who find themselves under enormous pressure and are extremely vulnerable? For such people the business of moving around ordinary courts in the ordinary way is a different matter from the case of the person who is not under such desperate strain. I am of the opinion that a family law tribunal could be tailor made for those who find themselves in this set of circumstances. As well as this the staff of the tribunal would receive the special training I have referred to. I would respectfully ask the Minister to respond to that suggestion, to indicate if he has considered it and, if so, if he intends to follow it up and take action in that area or if he has decided to discard it in the belief that the present method is adequate.

I share the Deputy's concern that family law business in our courts should be transacted with great delicacy, in private and in confidence and that the best possible facilities for briefings should be provided. At present at District Court level there is a special courtroom at Dolphin House with waiting and consultation rooms. In the High Court and Circuit Court, family law courtrooms together with a suite of waiting and consultation rooms and a conference room are now located in purpose built facilities in a new office block at Áras Uí Dhalaigh in the Four Courts complex in the Dublin area. These facilities are considered to be fully adequate to meet the demands likely to be made on them for family law business in the Dublin area in the foreseeable future. We are reviewing the position at Kilmainham, Green Street and other courthouses.

In most centres outside of Dublin the volume of business transacted is relatively small but I believe that it will increase. The practice at present is for justices and court staff to use existing facilities but in such a way as to ensure as much privacy and confidentiality as possible. In many cases the ordinary courtrooms are used outside the times for ordinary court business and in others the justice uses his private chambers or specially provided rooms. It was mentioned earlier that there are difficulties surrounding the provision of accommodation for the hearing of cases instituted under the Judicial Separation and Family Law Reform Act. Section 32 of that Act provides that the circuit family courts shall sit to hear such proceedings in a different place or at different times or on different days from those on which the ordinary sittings of the Circuit Court are held. It is a matter for the courts to operate within these options.

Earlier Deputy Cotter referred to the review of courthouses currently taking place around the country. I can tell him that one of the things guiding me in carrying out the review is the question of the adequacy of some of the older buildings for the transactions of family law cases. They are totally unsuitable. The best possible facilities that the nation can afford should be provided for the transaction of family law business. The Deputies can be assured that this is a matter of concern for me and that I am trying to ensure that the best possible facilities are provided for the transaction of family law business.

I am happy that the Minister shares our concern with regard to the difficulties being encountered by those involved in family breakdown cases. However he did not say whether he shared my view that judges who hear such cases should have a different background to the norm or whether they should receive training in psychology which would give them a greater understanding of family dynamics. He either forgot or avoided commenting on that matter. I want to draw his attention to it again as it is a very important matter for the reasons I have mentioned already. I would ask him to focus on it and outline his view in relation to it.

We are now into the question of interference with the independence of the Judiciary; far be it for me or for this House to get into that matter but training can be provided.

Question put and agreed to.
Section 12 and 13 agreed to.

Acting Chairman:

Amendments Nos. 2 and 3 in the name of the Minister are related, and I suggest therefore that we take the two amendments together by agreement. Is that agreed? Agreed.

I move amendment No. 2:

In page 7, line 30, after "High Court" to insert "or, if the proceedings were heard and determined in the Circuit Court, the appropriate county registrar".

This is a technical amendment and it is needed to take account of the fact that the provisions of subsection (5) (a) will apply also to cases heard and determined in the circuit court, in addition to the High Court. Where a defendant in a Circuit Court case is awarded costs against a successful plaintiff under that provision, and the judge granting those costs decides to apply the mechanism in paragraph (a) (ii) of the subsection to determine what the amount of the costs should be, then the appropriate taxation authority will be the appropriate county registrar and not the taxing master of the High Court. Under the Rules of the Circuit Court — by Order 58, Rule 6 — all costs directed to be taxed in the Circuit Court must be taxed by the county registrar, who is invested with all the powers of the High Court for that purpose. Amendment No. 3 is a technical amendment also and is needed for the reasons I have just outlined in amendment No. 2.

Amendment No. 2 agreed to.

I move amendment No. 3:

In page 7, line 37, after "High Court" to insert "or, if the proceedings were heard and determined in the Circuit Court, the appropriate county registrar".

Amendment agreed to.
Question proposed: "That section 14, as amended, stand part of the Bill."

This section could be described as a stick to ensure that the practitioners do not ignore the trend that the jurisdiction of the lower courts has been increased and start off their proceedings in the higher courts available to them in the hope that perhaps they will cover their professional responsibilities on the one hand and have a stronger bargaining level on behalf of the clients. Those who think less of the professions might suggest that the lawyer tries to enhance his or her potential to earn costs from litigation. This section provides a mechanism or formula to ensure that such attractions do not lead to an overloading of cases in the higher courts that should properly be taken in the Circuit and District Courts. For that reason I support in general terms the thrust of the section and the efforts being made by the Minister to have practitioners apply their minds to bringing the case in the proper court at the outset so that the higher courts do not become clogged up with cases that should not properly be there in the first instance.

The section is not dissimilar to an earlier provision in the law in relation to the transfer of cases from one jurisdiction to another and the penalty that can be visited upon the lawyer for having commenced proceedings in the wrong jurisdiction. We have no great difficulty with it. However the Law Society in their submission have raised a number of points on the section. I have just received their submission which was dated 2 July 1991, which is yesterday. They should not necessarily be criticised for the late arrival of their submission. The Bill was published on 10 June, just a short time ago, and like all legislation that is technical and has an important impact on situations it needed a little time to be considered and reviewed. It takes time for an organisation as large as the Law Society to bring their committee together and to agree a final position. In any event their submission has arrived at the eleventh hour. We have ordered our business to deal with all Stages of the Bill in the next 25 minutes and we are not going to have a Report Stage in effect and for that reason I would request that, before the Minister brings this legislation to Seanad Éireann, he take the opportunity in the interim period to look at the points raised in the Law Society's submission to see if it is possible to introduce a fairer and more simple formula. The reasons advanced by the Law Society for considering a simpler formula to deal with the same idea is that it is not easy to decide in the initial stages in what jurisdiction the action should be commenced. They say, and I support them on this point, that often when a client comes in with a medical complaint it is difficult to know how quickly the person will recover. For example a person could make a very good recovery and therefore have a much lower expectation of compensation; alternatively a person may make a poor recovery and what might have seemed on the first flush not to have been a severe injury might escalate into something much greater. The consideration might be to delay the institution of proceedings on the one hand or to start at the highest possible jurisdiction to cover all eventualities and in time to consider the jurisdiction in accordance with the facts as they emerge. The problem with that is that in time the lawyer and the client can be penalised for taking what could be a very good decision initially in the interests of the client. Their second point is on the apportionment of blame. For example, in the initial consultation one side of the case is explained to the practitioner and he may decide that the case merits being taken in the High Court or the Circuit Court, but as the pleadings develop and the issues emerge and as the positions crystalise it could well be that the lawyer realises that there is a strong probability that there will be an apportionment of damage or of liability and what was initially a High Court or Circuit Court action could on apportionment be reduced to an award properly within the jurisdiction of the Circuit Court or District Court. Under the formula contained in section 14 at present there are inbuilt penalties for the litigant and the lawyer in terms of the costs that can be recovered from the other side. There are very real considerations required of the lawyer and very difficult decisions have to be taken at an early stage of the proceedings. The Law Society are making a very reasonable case that the Minister should look at this again to see whether a more general formula could be arrived at, and I quote:

We would submit that the entire section should be replaced by a simpler section that will hold the scales fairly between the parties. We have in mind a section that would simply give the higher court power or discretion to deal with costs in such manner as the court thought most appropriate having regard to all the circumstances including the power to restrict the plaintiff to the costs that would follow an award in the lower court or to allow costs to a defendant for the additional expenses of defending in a higher court.

They are merely asking that the Minister take a second look at the provision in the section. I support this concept in principle because I believe there is need for a certain amount of stick to require the litigant and the lawyer to apply their minds carefully to what is the proper jurisdiction to commence their case and not to be shooting off flyers to higher courts in the hope that it will deliver either a higher and probably an unwarranted award or a better bargaining counter for settlements on the steps of the court or, as suggested in some quarters, the potential for earning higher costs. The Law Society are making a fair case that this is not as straightforward as the section suggests it can be. As I have said for the practical reasons of the way we have ordered the debate we cannot press this amendment but we can ask the Minister to have fair regard to what has been suggested in the Law Society's submission before the Seanad debate.

I will be very brief because of the time constraints. In the narrow confines of the Bill section 14 brings about a completeness which is necessary in order to balance the Bill. In so far as that is the case I am quite happy with it. I will accept section 14 in its entirely when the question is put. I am happy that it brings about a completeness in the sense that it limits the amount of costs that can be recovered by a plaintiff who takes an action in a higher court than is necessary. I have not had time to examine this in all its detail but it seems, on the face of it, to be a fairly good section which adds an element of completeness.

I would use the word "disincentive" rather than "stick" in relation to this section. The existing section 17 allows wide latitude to a court hearing a case to allow higher costs. The general effect of my proposed substitute section will be to reduce the discretion of the court to allow such higher costs and to introduce a new disincentive to taking an action in a higher court than necessary by making it incumbent to pay to the defendant the equivalent of the additional costs incurred in having to defend the action in a higher court than necessary. That is eminently fair and reasonable. There is a procedure at present where by certificate a court can decide as to the cost. It is only right and proper that we should write into our law that we want to encourage the greatest possible use of the lower courts. Question put and agreed to.


I move amendment No. 4:

In page 8, subsection (1), line 8, to delete "justice" and substitute "judge".

Amendment agreed to.
Section 15, as amended, agreed to.
Section 16 agreed to.
Question proposed: "That section 17 stand part of the Bill."

The Minister is appointing additional judges to the High Court and in subsequent sections he is appointing additional judges to other courts. Perhaps he would respond regarding the suggestion by the Fair Trade Commission, which is referred to in the Law Society's submission, that judges appointed to the higher courts, including the High Court and the Circuit Court, should include members of the solicitor's profession. It does not come within the ambit of this Bill but the Minister might give some indication as to his intentions. Will it be dealt with under a solicitors Bill or is he moving in that direction at all? He should not confine appointments to the Bench to members of the legal profession. There are other professions who have the expertise, knowledge and capacity to act as judges. It is time to move outside the narrow confines of the Bar Library.

This section deals with the appointment of judges of the High Court. My comment will be applicable also to section 18. I refer to the Minister's views regarding the operation of the court as a result of this legislation. He is appointing judges to various courts but has he considered the total requirement in support staff in order to make the system properly functional and to ensure that we do not have any more problems than currently? We should be minimising any difficulties apparent in the system. Is there any restriction on the appointment of support staff of whatever grade might be necessary? I want an assurance that the staff, particularly in the lower courts which are not dealt with in this section, will be made available and that we will not have a number of judges appointed who will be unable to operate efficiently because the required support staff will not be there to ensure that cases are brought before the courts, processed and finalised with the utmost speed and efficiency. I want that clarified before I agree to section 17 and the following sections.

On the first point raised by Deputy McCartan, further legislation in relation to the courts will be introduced later in the year and I have under review the question of solicitors being eligible for appointment to the higher courts. On the question of back up and staffing implications, it will be necessary to see how this legislation operates in practice. It is not possible to say definitely what effect it will have on the business of the courts and whether it will in time have staffing implications. The position will be kept under review by my Department and the possible need for any additional resources will be fully considered if and when it arises.

Question put and agreed to.
Section 18 and 19 agreed to.

Acting Chairman:

Amendments Nos. 5 and 6 are related and may be taken together, by agreement. Agreed.

I move amendment No. 5:

In page 10, line 5, to delete "district justice" and substitute "justice of the District Court".

These amendments are necessary to substitute the present correct mode of address for a judge of the District Court — as provided for under the Courts (Establishment and Constitution) Act, 1961 — into the provision that is being substituted into the Courts (Supplemental Provisions) Act, 1961 by section 20 of the Bill. This provision in the Bill will come into effect immediately on the passing of the Bill and the reference to a justice in the provision will be construed as a reference to a judge when the substantive provision proposing that change, which is the subject of amendment No. 7, comes into effect.

I accept these amendments. I would ask the Minister to explain the import of this section because I am at a loss to understand what it is attempting to achieve, other than what might seem to be apparent on the face of it. The reading of it would seem to suggest that if there are 11 temporary district justices, the next judge to be appointed to the District Court will be appointed permanently. Does that mean that the 11 temporary justices remain there and that the twelfth will be made permanent? I have some difficulty in understanding the precise impact of this provision.

I thank the Deputies for the agreement on the amendments. Let me explain. The section is consequential on the increase being made in the number of permanent judges of the District Court under section 19 of the Bill. The increase in the statutory number of judges in the District Court, who are not permanently assigned, from nine to 11 is necessary to provide adequate cover for permanently assigned judges who are ill or on leave. The proposal does not affect the substantive proposal in section 19 to increase the number of permanent district justices from 39 to 45.

Could I clarify that? The provisions under section 20 would not preclude the Minister from appointing one of the 11 temporaries as a permanent district judge when that decision was being taken.

That is the intention. The intention is to appoint him permanently.

So the next permanent district judge to be appointed could be from among the 11 existing temporaries.

It does not preclude it.

Amendment agreed to.

I move amendment No. 6:

In page 10, line 5, to delete "district justices" and substitute "justices of the District Court".

Amendment agreed to.
Section 20, as amended, agreed to.

I move amendment No. 7:

In page 10, before section 21, to insert the following new section:

"21. —(1) The Courts (Establishment and Constitution) Act, 1961, is hereby amended—

(a) in section 5, by the substitution in subsection (2) (b) of `Judge of the District Court' for `Justice of the District Court', and

(b) in section 6—

(1) by the substitution in subsection (1) (b) of `judge of the District Court' for `justice of the District Court', and

(ii) by the substitution in subsection (6) of `judge' for `justice'.

(2) References in any statute or instrument made under statute to a justice of the District Court shall be construed as references to a judge of the District Court.".

Amendment agreed to.
Question proposed: "That section 21 stand part of the Bill."

I wonder if the Minister has discussed the terms of section 21 with the Minister for Tourism, Transport and Communications, Deputy Brennan. The implications of sending something by post these days would be rather emotive, to say the least. The results of the local elections in certain areas would have reflected that and I am sure the Government and the Minister will have taken note of these matters. I wonder about sending a registered prepaid letter to an individual and how it might be delivered these days. I understand that at one stage in the last 12 months quite a number of letters went to Hong Kong or Honolulu and places like that before being delivered to their intended address.

My experience is that unless the address is very specific, delivery is not effected any more. I had an unusual case recently where a letter addressed to an individual in a household — there being two individuals in that household with the same name was returned to me as not being capable of being delivered.

I wonder if the Minister has looked at all the implications of posting registered letters, for example in the context of the situation which may evolve in rural Ireland now the elections are behind us where we will have post boxes sticking up out of the ground all over the place, and how the delivery will be effected. Will it be necessary to get the person's signature that the delivery has been effected or will it be enough to have the letter delivered through the front door? Will it be enough to have it dropped into the postbox which might be two miles down the road or at the end of a very long lane or whatever? I want to hear the Minister's views on that because there is little point in the Minister for Justice introducing a section which will be torn up and thrown away by the Minister for Tourism, Transport and Communications in a month's time. I reserve the right to respond to the Minister when he has responded to the points I have raised.

I want to deal with the point raised by the Law Society in their submission at paragraph 6, page 2, where they argue for a comparable order of service of documents as applies in the High Court. I support that argument. In addition to the provision of prepaid registered post or other record of post, the rules and regulations under section 21 should also provide for, as they put it succinctly, "a provision facilitating personal service or service by leaving a document at a defendant's residence of a person over 16 years of age as in the case of the service of High Court documents". They say it would be a simple matter to provide this. I ask the Minister again if he will undertake to look at this matter before the Bill is completed in the Seanad. It is a fair point. Practitioners in the field have argued that because we have very few summonses service remaining in the country the majority of service will be by post now that we are providing for it, but there should also be follow on provisions available so that in the event of registered post not being possible to effect because of the absence of an address or other difficulty, there are facilities in the rules to enable the court to order that service be by personal delivery to the last known residence or to a person over the age of 16 years at that address. I ask the Minister to consider these matters.

Deputy McCartan referred to the point raised by the Law Society. Service of a summons by delivery to the person to whom it is addressed or by leaving it at his residence in the manner suggested is already possible in the case of all summonses to which the provision of section 21 of the Bill apply. The system has been retained under the Bill and can be used wherever necessary to serve summonses that cannot be served under the new system of service by registered post proposed in the Bill. It is not just by registered post; it can be recorded post. I have much more faith in the postal service than Deputy Cotter and members of the Fine Gael party apparently have.

The Minister has not experienced my problems.

I had the honour of being Minister for Communications for three years and I was very impressed with the independent assessments made of the next day delivery of letters by An Post. I know the parcel service has improved dramatically.

By 80 per cent.

I noted in yesterday's paper, or that of the day before, that they now have well over 90 per cent of next day deliveries in their most recent report. I have every confidence in them. The real heart of this section is that it will relieve over 60 gardaí in the Dublin region to get out on the streets to protect our citizens rather than serving summonses. With that in mind I think it is a measure which should commend itself to this House.

Question put and agreed to.

I move amendment No. 8:

In page 12, subsection (4), line 23, to delete "and15" and substitute", 15 and 21."

Amendment agreed to.
Section 22, as amended, agreed to.

I move amendment No. 9:

In page 3, line 6, after "1961," to insert "The Courts (Establishment and Constitution) Act, 1961,".

Amendment agreed to.
Title, as amended, agreed to.
Bill reported with amendments, received for final consideration and passed.