Amendments Nos. 1, 8 and 14 are related and may be discussed together by agreement.
Civil Law (Miscellaneous Provisions) Bill 2006: Report Stage.
I move amendment No. 1:
In page 7, line 11, after " 1961," to insert "THE COURTS ACT 1964,".
The purpose of amendment No. 8 is to permit personal service of documents by persons other than an official summons server, as an alternative to service by registered post, in proceedings in the District Court to which that section applies and in Circuit Court proceedings. The amendment will provide for personal service of any document by which proceedings in the District Court are instituted and any other document relating to such proceedings which is a notice, order or witness summons other than proceedings by way of summons in which the complainant is a member of the Garda Síochána, a Minister of State, an officer of such a Minister, the Attorney General or an officer of the Revenue Commissioners.
Amendment No. 8 is in response to concerns which have been expressed regarding the difficulties encountered by practitioners in complying with the current District Court and Circuit Court requirements applicable to the service of summons by persons other than the designated persons I have listed. A summons server is employed by the county registrar and paid per summons delivered. According to the Courts Service, which has responsibility for employment in this area, the position of summons server has more or less been phased out. As current servers are retiring, replacements are not being sought. In 2003, there were summons servers only in Clare, Cork, Donegal, Limerick, Meath and Roscommon. I have been told that at present only one summons server remains in position and in the absence of the availability of that summons server all documents to which the section relates may, as an initial option, only be served by registered post. Personal service is, therefore, at present effectively only available following an application for substituted service. This is in contrast to service of documents in the High Court and Supreme Court, where personal service of documents has been available since the enactment of the Courts Act 1971.
In many cases, notification by An Post of a failure to deliver a document by registered post may not be received by the serving party until several weeks after the attempt to deliver, by which time the application to which the document relates may have been made to the court on the assumption, supported by production of the registered post certificate, that service was effected. In such cases, a further application to the court is then required. The proposed amendment is a practical solution to this problem and would place service arrangements for such documents on the same footing, effectively, as those obtaining in the High Court and Supreme Court.
Amendment No. 14 relates to service of documents for the High Court and Supreme Court and will amend the 1971 Act. As with amendment No. 8, this provides a degree of "future proofing" to take account of future developments with regard to service of documents which can be dealt with by rules of court.
Amendment No. 1 is a technical amendment consequential on the acceptance of amendment No. 8.
I agree with the amendment, which is sensible and accords with the practical situation. Given the Minister's comments on personal service as opposed to service by way of registered post, are statistics available to the Courts Service or the Department with regard to service of documents? I would have thought that at this stage the vast majority of documentation is served by way of registered post. Indeed, applications for substituted service usually give rise to a situation where service is made by ordinary prepaid post rather than by personal service.
Is it the case that a person so designated may in effect act as an appropriate or designated person in any part of the country? What we are doing in this instance is removing the boundaries for the service of different areas. As I understand it, servers were designated persons within the District Court or Circuit Court rules and were defined within court boundaries. From a reading of the amendment, it appears that any document can be served in any area at any time by any person involved. In effect, we are removing the constraints that were imposed by the court rules, which gave rise to personal service within areas or within boundaries. While Circuit Court boundaries, in country areas if not in the city, would appear to accord with county boundaries, there is a totally different designation of boundaries in District Court areas. I take it we are removing that designation. If so, I welcome it.
I will arrange for the Courts Service to give the information to Deputy Flanagan on the statistics for the different forms of service. The Deputy is correct that we are removing any statutory basis for the suggestion that there should be a localised system of service in the different circuit counties or district areas. The District Court has made proposals to me which are in the course of implementation and which will rationalise the District Court areas in terms of county boundaries. This work is under way in the District Court.
Amendments Nos. 2 and 19 are related and may be discussed together by agreement.
I move amendment No. 2:
In page 7, line 16, after "1954," to insert "THE SOLICITORS (AMENDMENT) ACT 1960,".
Solicitors appointed to the Solicitors Disciplinary Tribunal by the President of the High Court must be practising at the time of their appointment, which is a basic legislative requirement. This has been interpreted as requiring that the solicitor holds a practising certificate for each of the five years of his or her membership of the tribunal. To obtain a practising certificate, as I am sure Deputy Flanagan is aware, professional indemnity insurance is a prerequisite. Therefore, a solicitor member who wishes to retire from practice during the currency of his membership of the tribunal must nonetheless retain costly professional indemnity insurance. This is a disincentive, first, for tribunal members to stay on to complete their term on the tribunal on retirement from practice, and, second, with regard to taking on a position as a tribunal member as it is less attractive for a solicitor who may be planning to retire. It is fair to say that in a body such as a disciplinary tribunal, the experience of an older solicitor can often be very valuable.
The chairman of the disciplinary tribunal has indicated to the Law Society that this has created practical difficulties for the tribunal. Some of the current solicitor members, who are quite senior, may at some stage during their five-year term retire from practice but remain on the tribunal.
Amendment No. 19 amends section 6 of the Solicitors (Amendment) Act 1960 to ensure that no doubt exists in regard to the position of a solicitor who retires during a five-year term on the disciplinary tribunal. The provision will clarify that such a member who is a solicitor in good standing on appointment but who retires from practice, while still in good standing, during the course of membership of the tribunal will not be required to hold a practising certificate for the remainder of his or her term of membership. This would remove the requirement to retain professional indemnity insurance and make it more likely that the tribunal will not lose the benefit of the experience of valued members owing to this requirement.
Amendment No. 2 is a consequential technical amendment on that basic proposal.
The Minister has explained the circumstances well. I am not sure there is anything I can add, except to seek further clarity. The Minister makes an important point, particularly in the context of experienced persons or wise counsel, and particularly those who have served or are currently serving on the tribunal. I welcome the amendment. While I am not sure how many persons will be affected, I agree with the principle.
I too see the amendment as sensible. Is there anything in the amendment that would prevent a person who no longer has a practising certificate from being appointed to the solicitor's tribunal in the future?
That is out of the question. One must have a practising certificate at the time of one's appointment. A retired solicitor cannot be appointed. All we are providing for here is that if somebody is appointed while he or she is a solicitor, that person can serve out his or her term when he or she retires.
I take it from what the Minister said, that it will require a change in legislation to cater for what I suggest here.
I will deal with an amendment later that relates to ageism and juries. There can be a lot of talent out there that is precluded from being much more active. In this instance, I refer to people who are retired. I do not think there is any substantial reason the legislation cannot be examined in the context of allowing these people to participate. Go raibh maith agat, a Chathaoirligh.
Deputy O'Shea raised an interesting but wider point. We are dealing with the Solicitors Disciplinary Tribunal. There are persons appointed to this tribunal who are not solicitors and there are persons appointed who are solicitors and they must be solicitors in virtue of their appointment. I am not sure it would be desirable to have someone appointed in that capacity who was not a solicitor at the time of his or her appointment. I will deal with the amendment raised by Deputy O'Shea at a later stage.
I move amendment No. 3:
In page 7, lines 17 and 18, to delete "THE GAMING AND LOTTERIES ACT 1956,".
This is a technical amendment to reflect a change in the Long Title following an amendment made to the Bill on Committee Stage.
I move amendment No. 4:
In page 8, line 13, to delete "section 23" and substitute "sections 23 and 24”.
Likewise, this is a technical change to the collective citation to reflect an amendment made to the Bill on Committee Stage.
I move amendment No. 5:
In page 9, between lines 3 and 4, to insert the following:
6.—Section 88 of the Courts of Justice Act 1924 is amended by inserting the following after subsection (4):
"(5) For the purposes of this section (including any warrant under subsection (1))—
(a) subject to paragraphs (b) to (g), “county” means a county as referred to in section 10 of the Local Government Act 2001 and as its boundaries are in force from time to time under Part 8 of that Act,
(b) the city of Cork and the county of Cork shall be regarded as a single county, and a reference to the county of Cork shall include the city of Cork,
(c) the city of Dublin and the counties of Dun Laoghaire-Rathdown, Fingal and South Dublin shall be regarded as a single county, and a reference to the county of Dublin shall include the city of Dublin and the counties of Dun Laoghaire-Rathdown, Fingal and South Dublin,
(d) the city of Galway and the county of Galway shall be regarded as a single county, and a reference to the county of Galway shall include the city of Galway,
(e) the city of Limerick and the county of Limerick shall be regarded as a single county, and a reference to the county of Limerick shall include the city of Limerick,
(f) the city of Waterford and the county of Waterford shall be regarded as a single county, and a reference to the county of Waterford shall include the city of Waterford, and
(g) the counties of North Tipperary and South Tipperary shall be regarded as a single county.”.
This amendment is intended to clarify the meaning of "county" for the purposes of the appointment and powers of peace commissioners. This will ensure alignment with new local authority administrative areas while maintaining the links with the geographic areas familiar to most people. The amendment provides that a subsection be inserted into section 88 of the Courts of Justice Act 1924.
Section 88 of the Courts of Justice Act 1924 provides for the appointment of peace commissioners in each county. Neither the Act nor the section itself currently defines what is meant by "county". This has posed some difficulties in regard to the warrants of appointment of peace commissioners made since the commencement of the section. At certain stages the warrants of appointment referred to the "County of Dublin" or "County of Waterford" while at other stages reference is made to the "county borough of Dublin and County of Dublin" or to the "county borough of Waterford and county of Waterford".
The Local Government (Dublin) Act 1993 maintained the county borough of Dublin, the city, and divided what was County Dublin into three new administrative counties — Dún Laoghaire-Rathdown, Fingal and South Dublin. The Local Government Act 2001, however, abolished the concept of the county borough and replaced it with "administrative areas", or cities, separate to counties. The Act also established a new list of counties.
The proposed subsection (5)(a) provides that the local authority county and city administrative areas provided for in the Local Government Act 2001 will form the basis for counties for the purpose of the appointment and exercise of powers by peace commissioners. The intention is to remove any doubt that may exist regarding the meaning of county in section 88 of the Courts of Justice Act 2001.
The proposed subsections (5)(b) to (g) provide that cities, such as Cork, Limerick and Galway, will be regarded as part of the county for the purpose of peace commissioners. This is consistent with existing practice and will remove any doubt about the jurisdiction of peace commissioners regarding city areas. Peace commissioners appointed after the commencement of the Local Government Act 2001 will be reappointed to the role to remove any doubt as to jurisdiction. The subsection also provides that Dublin will be regarded as one area, including the city area and the counties of Fingal, Dún Laoghaire-Rathdown and South Dublin. In addition, in line with current practice, north and south Tipperary will be regarded as one entity.
Having regard to the huge level of mobility where, for example, my county is a commuter county, which would have been unthinkable in 1924, I would have thought it preferable to have a general application for the purposes of the signing or serving of warrants. I suggest that it could be done in any part of the country and that we would not differentiate between those who would be entitled to swear a document in any county, as opposed to another area, or persons who would be charged with a duty to take affidavits or statutory declarations in one county and maybe not in another.
Are we just going halfway towards dealing with a problem that might be dealt with by way of accepting that it would be sufficient for a document to be authenticated in any part of the country rather than having different designated persons for different counties? Would it not be possible to have the Republic of Ireland as a designated place for the purpose of the documentation and to state that any document could be sworn before any peace commissioner in any part of the jurisdiction without the need to introduce this amendment? The only difficulty I have with the amendment is that it seems to just go halfway towards dealing with an inconvenience, rather than a problem.
The thrust of the amendment is fine but there is a boundary issue I wish to bring to the Minister's attention. I am sure it refers to other city and county situations but this is one with which I am familiar because it relates to Waterford city.
Waterford City Council is building houses in County Kilkenny, which it rents. As the amendment is framed, it means that the writ of people who are just outside the borough boundary in Waterford city, will run as far as Castlecomer and Moneenroe in north Kilkenny, whereas the writ of people in the adjoining areas of the city such as the Ferrybank area of Waterford, would not run. I am not sure about the issue raised by Deputy Flanagan, as to whether it would be more sensible to have a general type of appointment for peace commissioners but from time to time I find it difficult to locate a peace commissioner in a particular area and there is a need to send somebody a distance to find one. It is not logical that, for instance, people can be appointed as peace commissioners in south Kilkenny who cannot operate in the interests of people just across the border in Waterford.
Interesting points have been raised by both Deputies. I agree with Deputy Flanagan; in a sense this is a halfway house. During the term of office of my predecessor, a doubt was raised about the validity of the appointment of peace commissioners in the Dublin area because of the tripartite division of the county and hence we have this amendment to put that issue beyond doubt. I agree with Deputy Flanagan that it is a halfway house and, in fact, I have initiated a review within the Department of the status and functions of peace commissioners.
If one looks at the 1924 Act, one will see that the original intention of it was to provide an officer who would assist the District Court in the exercise of judicial functions. At the time of the 1924 Act, the State had decided to introduce a permanent, fixed, full-time magistracy in the form of the District Court but it was recognised that there were certain judicial functions which could not easily be performed by a full-time body. The issuing of warrants, the holding of remand courts and, in those days, the signature of summonses were identified as three functions which could usefully be performed by a layperson appointed as a peace commissioner.
The Supreme Court handed down decisions some decades ago which indicated that a peace commissioner could not perform judicial functions of a criminal character. As a result of that, the former power which a peace commissioner had to conduct a court and remand a person to the next sitting of the District Court can no longer be exercised. The question of the issuing of a summons is no longer relevant with computerised technology. The issue of signing warrants has changed in the sense that, as a result of these court decisions, the peace commissioner is no longer a judicial officer whose search warrant cannot be questioned but an executive whose warrant can be subject to examination and cross examination in the court of trial in respect of which the warrant is an issue.
All of this has effected a complete change in the original conception of what a peace commissioner was supposed to do under the 1924 Act. Apart altogether from those limited judicial functions, peace commissioners exercise wide powers in regard to the authentication of documents, and that has never been in issue. Again, I have decided to review all of these matters within the Department and I will bring proposals forward in due course.
Deputies Charlie Flanagan and Brian O'Shea raised the boundary question and they make a fair point. The commissioners for Dublin are appointed for the city and the three suburban counties, an area with in excess of 1 million people, while the area of the person appointed for Waterford city and county under this system has 100,000 people. The question is why that person should not cover County Kilkenny too. If somebody sought appointment from, say, Sliabh Rua, it would seem appropriate to give him or her authority in Kilkenny and Waterford. I can examine that in practical terms and it would present no practical difficulty because one can appoint a peace commissioner to two counties.
Deputy Flanagan asked why it should not be a national appointment. In every district headquarters a list is held of the peace commissioners available to do business in that district and there is a sense in which the peace commissioner is rooted in a particular community and is a person of credit and trust in that community. The peace commissioner is not a person in full-time service of the State, therefore it is important that local link is preserved. However, I will examine that issue in the context of a general review.
I move amendment No. 6:
In page 9, to delete lines 12 to 18 and substitute the following:
7.—Section 48 of the Court Officers Act 1926 is amended——
(a) in subsection (1)—
(i) by inserting "by regulations made under section 3 of the European Communities Act 1972" after "him by statute", and
(ii) by inserting "by such regulations" after "provided by statute",
(b) by inserting the following after subsection (2):
"(3) An assignment under subsection (1) of a district court clerk to a district court area may be—
(a) a permanent assignment,
(b) a temporary assignment, or
(c) a temporary assignment in addition to any permanent assignment.
(4) Where subsection (3)(c) applies to a district court clerk, the temporary assignment concerned shall be without prejudice to the exercise of all such powers and authorities and the performance of all such duties and functions for the time being conferred or imposed on him or her by law in relation to any district court area to which he or she is permanently assigned.
(5) Where a temporary assignment under subsection (1) of a district court clerk to a district court area is made pursuant to a direction given orally under that subsection, the Courts Service shall cause a record in writing to be made and kept, in such manner as the Courts Service thinks fit, of the direction.
(6) A record in writing referred to in subsection (5) shall, in any proceedings, be evidence that the district court clerk to which the record relates was temporarily assigned to the district court area to which the record relates until the contrary is shown.".
This amendment restates the amendment to section 48 of the Courts Officers Act 1926 as it currently stands in the Bill. It goes on to provide that District Court clerks can be temporarily reassigned from their regular areas of work to other areas at short notice, for example, to cover colleagues who may be sick or on leave. Reassignments of this type are now done by a formal direction in writing given by the Courts Service. The amendment contemplates that such a direction can also be given orally to a clerk and that a record of that direction is to be kept. This record is to be evidence of the temporary reassignment until the contrary is shown. The change will encourage greater flexibility. Traditionally the reassignment of District Court clerks was the responsibility of the Minister but was reassigned to the Courts Service in 1998 by section 29 of and Schedule 2 to the Courts Service Act 1998.
This amendment is related to the Minister's earlier point on the review of the District Court areas for the administration of justice. If the Minister does not have a reply for me now perhaps he will examine it and write to me about it. I understood this review was well under way and had been completed a couple of years ago. I wonder why such a length of time has been taken to reorganise the districts on the basis of significant population changes from the west coast, in the same manner that constituency boundaries have been reviewed over the years. The effect of population increases on the workload of the Courts Service and the administration of justice should be reflected in the number of courts in any district.
I would have thought consideration would be given to according the District Court boundaries with the county boundaries. That would give rise to a more consumer-friendly regime. For example, some districts in the midlands, districts Nos. 9 and 14, incorporate three and sometimes four counties, or portions thereof. That has given rise to the inconvenience or difficulty this amendment seeks to address through temporary assignments to other, perhaps adjoining, areas. There could be circumstances in which parts of one parish or town are in different court areas, like the example Deputy O'Shea gave in his constituency. A number of district court boundaries may encroach on an area, which would not accord with the county bounds. For ease of administration and to become more consumer and user-friendly, so that people might know, the designation could be along county bounds. If the review, which has been going on for a long number of years, does not require an in-depth study, I would have thought the matter might be dealt with expeditiously. The Minister will say the matter is primarily for the Courts Service, but perhaps he will determine the up-to-date position.
My question is whether a court clerk could have a temporary assignment in addition to a permanent assignment. As the Minister indicated, this could arise due to illness. In my experience, court clerks are busy people. Is there a bottom line problem that two court areas could suffer under such an arrangement, that a person temporarily assigned leaves a permanent position that is not fully catered for? Is there logic in examining the idea of having locum court clerks that would be available to fill in at short notice when difficulties arise due to absence?
What Deputy O'Shea advocates already happens; there is already pooling of District Court clerks. The temporary assignment is done by a formal document signed by a senior member of staff in the Courts Service who has due delegation from the board. This is a very inflexible, time-consuming and cumbersome arrangement. The amendment is necessary to allow for an oral direction with a written record to be sufficient to validly transfer a clerk. It is a legal matter. Under the proposed amendment, legally speaking, shorter notice can be provided. There is nothing to stop the pooling of clerks in an assignment as advocated by Deputy O'Shea. One can have two clerks if necessary. The section as currently drafted, "as the Courts Service shall from time to time direct", does not specify how this direction is to be made or recorded. It could be argued that the Courts Service is at large to decide how to direct a clerk and make a record of it and that no change is needed. However the Attorney General's office advised that we insert this to put the matter beyond doubt, that as a matter of administrative practice a simple direction be given provided a record is taken.
On Deputy Flanagan's point about the wider issue of the District Court boundaries, progress has been made and the relevant orders are being made this year and have already begun to come into operation. While I appreciate Deputy Flanagan made this point from a wider national perspective, it will involve the creation of a Laois-Offaly district. As the Deputy will appreciate, while the Government assigns judges to particular districts, there is the matter of consultation with the judges and I am satisfied that we are in a position to implement the county-based scheme.
When the county-based scheme is introduced there will be anomalies. If a district judge is assigned to County Westmeath, that judge has no jurisdiction in the southern part of County Roscommon, adjacent to the town of Athlone. Similarly, Roscrea is adjacent to County Laois, but the judge assigned to Laois-Offaly will deal with that. For better or worse we should abide with the counties. Given that the counties have long been recognised as the basis of the Circuit Court jurisdictions, it is wise to use them for the District Court jurisdictions too.
I move amendment No. 7:
In page 9, to delete lines 21 to 47 and in page 10, to delete lines 1 to 17 and substitute the following:
65.—(1) The Minister for Justice, Equality and Law Reform may, by order made with the consent of the Minister for Finance—
(a) prescribe the fees to be charged—
(i) in the several offices established by the Courts (Supplemental Provisions) Act 1961, or
(ii) in any other office of, or attached to, any court,
(b) subject to subsection (2), prescribe the fees to be charged, in every financial year commencing after the making of the order, in respect of the income or funds in court during that year, or both, of every person who is of unsound mind, under the jurisdiction vested in the High Court by section 9 of the Courts (Supplemental Provisions) Act 1961,
(c) subject to subsection (2)(a), prescribe the fees to be charged, in every financial year commencing after the making of the order, in respect of the income or funds in court during that year, or both, of every person who is a minor, under the jurisdiction vested in the High Court by section 9 of the Courts (Supplemental Provisions) Act 1961,
(d) prescribe the persons by whom such fees are to be paid, and
(e) prescribe the occasions upon which such fees are to be paid.
(2) An order made under subsection (1)—
(a) may prescribe general or special exemptions from the payment of fees prescribed under that subsection,
(b) may, in relation to income or funds referred to in paragraph (b) of that subsection, be made by way of variation or extension of or in substitution for all or any of the provisions of sections 109 to 114 of the Lunacy Regulation (Ireland) Act 1871.
(3) Subject to subsection (2), the Courts Service shall collect all fees chargeable under an order made under subsection (1) in accordance with the provisions of the order prescribed under paragraphs (d) and (e) of subsection (1).
(4) All fees collected under an order made under subsection (1) shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct.
(5) The Courts Service may—
(a) determine the manner or method of payment of any fees chargeable under an order made under subsection (1), and
(b) determine the form in which the payment of any such fees shall be recorded, including the provision of a receipt in respect of such payment.
(6) An order made under this section before the commencement of section 8 of the Civil Law (Miscellaneous Provisions) Act 2006 and in force immediately before that commencement shall, on and after that commencement, be deemed to be an order made under subsection (1) and, accordingly, be liable to amendment or revocation by another order made under that subsection.".
This amendment relates to court fees. It replaces the amendment to section 8 of the Bill as it stands. As it stands, section 8 of the Bill seeks to replace section 65 of the Courts of Justice Act 1936 to ensure that the minutiae of the manner in which court fees are collected are left to the Courts Service rather than set out in fees orders made by the Minister. Unusually, responsibility for the collection of court fees was never formally transferred to the Courts Service when it became an independent agency. In practice, however, the CEO of the Courts Service operates on the basis that he or she is the Accounting Officer in respect of court fees. Notwithstanding this, it was considered prudent to remove the ambiguity as to who is the Accounting Officer in respect of fees.
In addition, as the provision currently stands in the Courts of Justice Act 1936, the Courts Service is not entirely free to devise and implement new methods of payment, for example, taking advantage of new technology for this purpose. If, for example, the Courts Service wanted to provide an Internet-based system of fee collection, it would be required to operate any such system under the authority of the Minister.
In practice, this would mean the Minister and the Department of Justice, Equality and Law Reform would be ultimately responsible for the arrangements and would have to issue the necessary Internet authorisations. It was decided that it would be far more sensible for the Courts Service to do the job itself, and the amendment at section 8 of the Bill provides for that. The provision in the form now proposed in this amendment also allows for the operation of the fee-prescribing power, with significant flexibility to cater for present and possible future fund management approaches within the Courts Service to the business of safeguarding and investing the funds for which it is responsible, including those of minors and other vulnerable persons.
I only received this amendment the day before yesterday. It is quite a lengthy, detailed amendment and having read through it, I wondered what is the current position. I would have thought that such a provision was already in law and that this is normal practice in any event. The Minister may have confirmed that. Why is there a need for the amendment? What will be the net practical change in the proposal? I agree that the setting of the fees will still be by ministerial order, which is important. There has been great work undertaken by the Courts Service since its inception and it has succeeded in bringing about a great improvement to the system, in spite of its huge workload. Nevertheless, I urge that the setting of fees be maintained by the Minister and I do not think any change is proposed in this amendment or in this Bill.
The Minister may have dealt with my point already. Why is there a need for such an amendment if it was already normal practice? I cannot see why it should be amplified in statute law.
From the Minister's explanation, this seems to be an oversight that needs to be corrected from the time the legislation was enacted to set up the Courts Service.
In the amendment, the proposed section 65(4) states that all fees collected under an order made under subsection (1) shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct. I take it that all fees go back into the general coffers of the State and do not remain with the Courts Service. Would it not be more practical for that money to remain with the Courts Service, or does this make sure that the service has a more even flow of funding? What is the extent of these fees? How much do they realise in any given year?
I would be delighted to raise that issue with the Tánaiste and Minister for Finance. I understand that it is the traditional practice, but I will check it out. This is a restatement of the basic provision. The Courts Service was not in existence in 1936 and was not acknowledged in its own legislation to have a function in this area. Where fees are paid by franking machines, the courts policy division of the Department is responsible for the paperwork permitting solicitors to use franking machines. That is one of the consequences of not having a function for the Courts Service in this area. It is important that the function be in the Courts Service, and that will allow new forms of payment to be devised. It is also important that the accountability of these fees should be vested in the chief executive of the Courts Service as an Accounting Officer. That is really the purpose of this statutory restatement.
I will check out the issue surrounding the fee-making power, but the general statutory practice is that items of this character are repaid to the Minister for Finance.
I move amendment No. 8:
In page 12, between lines 23 and 24, to insert the following:
13.—Section 7 of the Courts Act 1964 is amended—
(a) by substituting the following for subsections (2) to (4):
"(2) This section shall apply in relation to the service of any Circuit Court document and any District Court document in any area notwithstanding the fact that a summons server may stand assigned to that area by the County Registrar for the county in which the area is situated.
(3) Subject to subsection (5), the service of a Circuit Court document or a District Court document may be effected by any of the following methods:
(a) the sending of a copy of the document by registered prepaid post in an envelope addressed to the person to be served at his last known residence or place of business in the State and the document may be posted by the person on whose behalf it purports to be issued or a person authorised by him in that behalf;
(b) personal service (including such service by a person other than a summons server) upon the person to be served, in such manner as may be prescribed by rules of court, or upon such person on behalf of the person to be served, and in such manner, as may be so prescribed; or
(c) by such other means as may be prescribed by rules of court.
(4) The service of a Circuit Court document or a District Court document upon a person pursuant to subsection (3)(a) shall, upon proof that the envelope containing a copy of the document was addressed, registered and posted in accordance with that subsection, be deemed to be good service upon the person unless it is proved that such copy was not delivered.",
(b) by substituting the following for paragraph (a) of subsection (5):
(i) a person upon whom it is proposed to effect service of a document pursuant to subsection (3)(a) or (b) is outside the State or his whereabouts are unknown and cannot be ascertained by reasonable inquiries,
(ii) an envelope containing a copy of a document intended to be served upon a person pursuant to subsection (3)(a) is sent to the person by registered post and returned undelivered to the sender,
(iii) personal service in accordance with subsection (3)(b) cannot be promptly effected, or
(iv) in a case to which subsection (3)(c) is applicable, the circumstances, prescribed by rules of court for the purposes of this subparagraph, occur, the Circuit Court (and, in the case of proceedings before that Court, the County Registrar for the county in which the proceedings have been instituted) or the District Court, as may be appropriate, may make such order for substituted service or for the substitution for service of notice by advertisement or otherwise as it (or, in the case of the County Registrar, he or she) may think proper.”,
(c) in subsection (6)—
(i) in paragraph (a)—
(I) by substituting "person pursuant to subsection (3)(a)” for “person pursuant to subsection (3) of this section”, and
(II) in subparagraph (iii), by substituting "subsection (3)(a)” for “the provisions of subsection (3) of this section”,
(ii) in paragraph (b), by substituting “subsection (3)(a)” for “subsection (3) of this section”,
(d) in subsection (7), by substituting “subsection (3)(a)” for “subsection (3) of this section”.
Amendments Nos. 9 to 12, inclusive, are related and may be discussed together.
I move amendment No. 9:
In page 14, line 30, to delete "6" and substitute "7".
Amendment No. 11 brings about a proposed change to the membership of the Circuit Court rules committee. It will add a county registrar from outside Dublin, to be nominated by the chief executive of the Courts Service, to the membership of the rules committee. The aim is to make available to that rules committee a wider range of experience in respect of the operation of the Circuit Court outside Dublin. The proposal emanates from the County Registrars' Association and has the support of the president of the Circuit Court and the county registrar for Dublin, who is the secretary to the committee. Amendments Nos. 9, 10 and 12 are consequential to amendment No. 11.
I agree with that.
It tended to diverge between Dublin and the rest of the country.
I move amendment No. 10:
In page 14, line 42, to delete "and".
I move amendment No. 11:
In page 15, line 2, to delete "Ireland." and substitute the following:
(d) one shall be a county registrar, not being the county registrar referred to in subsection (3)(d), nominated by the Chief Executive Officer of the Courts Service.".
I move amendment No. 12:
In page 15, line 11, to delete "or a practising solicitor" and substitute ", a practising solicitor or a county registrar".
I move amendment No. 13:
In page 17, to delete lines 12 to 33 and substitute the following:
14."(1) Subject to subparagraph (2) of paragraph 4 of the Sixth Schedule to the Courts (Supplemental Provisions) Act 1961, an order made on or after the commencement of this section recording a decision of a judge of the District Court shall, when signed by—
(a) any judge of the District Court assigned to the District Court district in which the order was made, or
(b) subject to subsection (2), any district court clerk assigned to the District Court area in which the order was made,
be evidence in any legal proceedings of the decision until the contrary is shown.
(2) Paragraph (b) of subsection (1) shall not apply in the case of an order sending an accused person forward for trial.
(3) Subject to subparagraph (2) of paragraph 4 of the Sixth Schedule to the Courts (Supplemental Provisions) Act 1961, a warrant issued on or after the commencement of this section by a judge of the District Court shall, when signed by—
(a) any judge of the District Court assigned to the District Court district in which the warrant was issued, or
(b) subject to subsection (4), any district court clerk assigned to the District Court area in which the warrant was issued, be evidence in any legal proceedings of the matters to which the warrant relates until the contrary is shown.
(4) Paragraph (b) of subsection (3) shall not apply in the case of a search warrant or a warrant sending an accused person forward for trial.”.
This proposed amendment follows discussions between the Courts Service and the president of the District Court. It replaces the amendment to Sections 13A and 14 of the Courts Act 1971, which is currently at section 19 of the Bill. It aims to authorise district court clerks to sign orders or warrants — though not orders returning for trial or search warrants. The redrafting of the amendment is specifically to render the provision subject to subparagraph (2) of paragraph 4 of the Sixth Schedule to the Courts (Supplemental Provisions) Act 1961. This makes it clear that the changes do not displace the provisions of the Sixth Schedule, which provides that in the case of illness or absence of the judge permanently assigned to a district, another judge may, with the consent of the Minister, exercise and perform, during such illness or absence, the privileges, powers and duties of the judge permanently assigned to that district.
I move amendment No. 14:
In page 17, between lines 33 and 34, to insert the following:
20.—Section 23 of the Courts Act 1971 is amended by substituting the following for subsection (1):
"(1) The service of a superior court document may be effected—
(a) by leaving the document or a copy thereof (as may be appropriate) at, or sending the document or a copy thereof (as may be appropriate) by registered pre-paid post to, the residence or place of business in the State of the person to be served or the place of business in the State of the solicitor (if any) acting for him or her in the proceedings to which the document relates, or
(b) by such other means as may be prescribed by rules of court.”.
I move amendment No. 15:
In page 17, to delete lines 34 and 35.
This amendment seeks to delete section 20 of the Bill. It is not clear that it is an improvement to our jurisprudence to appeal the requirement that a District Court judge must keep a note of the evidence before or him or her. In the absence of any universal transcript system, why should there not be a formal judge's note of evidence?
This amendment had considerable support on Committee Stage and the requirement that it should be deleted was called into question. The Minister made the point that an appeal to the District Court is not by way of a rehearing. A note of evidence is not necessarily an appeal, but it might well be necessary in a case stated or in a judicial review, or to deal with a complaint against the judge or in an issue arising before the proposed judicial council, if it is established. I would be interested in the Minister's response to this.
This amendment proposes the removal of section 20 from the Bill. Section 20 as it currently stands deletes section 20(4) of the Petty Sessions (Ireland) Act 1851. This section requires the District Court judge to take or cause to be taken a note of the evidence when required to do so. In 2006, some 560,155 cases were heard by the District Court. The vast majority of the cases heard in the District Court are summary, carrying a fine rather than a custodial sentence. The ability of a District Court judge to proceed through the large number of cases required to keep on top of his or her list of cases would be greatly reduced if section 20(4) of the Petty Sessions Ireland Act 1851 were strictly observed.
As matters stand, I understand District Court judges do not in practice keep a note of the evidence for a number of reasons, not least of which is the sheer impracticality of attempting to do so. Were District Court judges to perform this function, the activity would have a detrimental effect on their ability to hear cases.
Deputy O'Shea fairly conceded that a District Court decision is subject to a right of appeal by way of full rehearing in the Circuit Court so there is no prejudice to the litigant before the Circuit Court in not having a note of the evidence. The Deputy referred to the position regarding a case stated. However, it is my understanding that the District Court judge draws up a case stated in consultation with the parties when there is a case stated to the High Court. In effect, the judge prepares a form of what happened before him or her for the purposes of the exercise of his or her legal review powers by the High Court.
It is difficult to see what the generation of a note would achieve. The advice of the Attorney General is that this requirement is superfluous because every appeal of a decision of the District Court is by way of a complete rehearing in the Circuit Court. In fact, section 14(1) of the Courts Act 1971 provides that in any legal proceedings regard shall not be had to any record relating to a decision of a judge of the District Court in any case of summary jurisdiction. This means that even if a note had been kept of the evidence in the District Court, it would not be used in the appeal. Instead, the case must be completely reheard and the original note cannot be brought into the picture. I assume this provision was made to ensure the number of District Court appeals to the Circuit Court is not endless. It is clear the requirement set out in the 1851 Act is, as a matter of practice, no longer implemented in modern circumstances.
Deputy O'Shea referred to general jurisprudence. It is important to note that it is intended to roll out digital audio recording in a number of phases, starting with the criminal courts where cases are brought on indictment, followed by the civil and family law courts in Dublin and, subsequently, by Circuit Court and District Court locations throughout the country. In other words, at the end of the programme of work, all courts in all jurisdictions will have digital audio recording implemented.
The provisional timescale for the roll-out of digital audio recording is as follows. It is hoped to have all courts, except the District Court, covered by about March of 2009. It is then proposed to roll out digital audio recording in all District Courts, although some District Courts will be covered earlier because they are co-located with a Circuit Court or family law venue. The Courts Service is not anxious to revisit a building to install further equipment and under its plan, all locations will be covered by the end of 2009.
The current plan is scheduled to start in March of this year. In July, category 1, that is, the Circuit Courts, Special Criminal Court and Central Criminal Court, will begin to have digital audio recording installed. Following completion of this phase, digital audio recording will be installed in the civil and family law courts. The final phase will be implementation of digital audio recording in category 3, that is, all District Courts not covered by earlier roll-outs.
I am glad of the opportunity provided by the amendment to point out that the programme of digital audio recording is a fundamental change in the operation of the courts. As Deputies are aware, at present a transcript is maintained in criminal and certain other proceedings. In general, a note must be taken by practitioners of other proceedings before the courts and evidence in them. Under the system of digital audio recording, a complete record of everything that happens in court will be kept in every court. This will be a valuable innovation which will allow us to reconsider the systems of appeal that obtain in the courts at present and enable us to put any system related to judicial conduct on a firm basis.
The information provided by the Minister on plans to have complete digital audio recording of court proceedings by the end of 2009 puts this issue in a different context. I seek clarification on another issue. When is it proposed to establish a judicial council? Given that full digital audio recording will be in place in less than two years, there will be a certain overlap in this regard. It is important that the best possible record is available in the event that a complaint is made against a judge. I accept the Minister's point that progress is being made.
I am pleased to note that progress has been made on the judicial council. As the Deputy will be aware from replies to parliamentary questions, I was awaiting the views of the Chief Justice. The Chief Justice has agreed to the establishment of a small working group comprising one nominee of the Courts Service and one nominee of my Department to progress the drafting of the judicial council Bill.
I move amendment No. 16:
In page 20, between lines 10 and 11, to insert the following:
23.—(1) Where a court is satisfied in proceedings before it that—
(a) a party appearing before the court in the proceedings, or
(b) counsel or a solicitor appearing before the court in the proceedings on behalf of a party,
is blind or partially sighted and for that reason requires assistance, the court may, at the request of the party, counsel or solicitor concerned and notwithstanding any enactment, statutory instrument made under any enactment or rule of law, authorise another person (in this section referred to as the "assistant") to accompany the party, counsel or solicitor, as the case may be, in the proceedings and provide such assistance subject to such directions as the court may give to the assistant.
(2) The assistant in proceedings referred to in subsection (1)—
(a) shall comply with directions referred to in that subsection given to him or her, and
(b) shall not, by virtue of being the assistant, have any right of audience in the proceedings.”.
My attention has been drawn to the difficulties which may arise in a courtroom environment for a lawyer or a party to the proceedings who is blind or visually impaired. Currently, the use by such a lawyer or party to the proceedings of a reader may theoretically — apart from other considerations — be restricted by certain court rules, for example, the in camera rule. The proposed provision will make it abundantly clear that a blind or partially sighted lawyer or a party to the proceedings in need of the assistance of a reader in court has access to one. This proposed amendment emanates from representations made to the Chief Justice.
I support the amendment.
I move amendment No. 17:
In page 20, between lines 26 and 27, to insert the following:
24.—Section 9 (as amended by section 35 of the Court and Court Officers Act 1995 and section 23 of the Courts and Court Officers Act 2002) is amended by substituting the following for subsection (3):
"(3) (a) Whenever an officer is required under subsection (1)(a) to perform the duties, or any duty or duties, of another office equivalent to his or her office, he or she shall, while the requirement remains in force, have all the powers of the holder of that other office in respect of the duty or duties concerned as fully as if he or she held that other office.
(b) Whenever a County Registrar is required under subsection (1)(b) to perform the duties, or any duty or duties, of the office of any other County Registrar, he or she—
(i) shall, while the requirement remains in force, have all the powers of the holder of that office in respect of the duty or duties concerned as fully as if he or she held that office, and
(ii) may exercise such powers concurrently with their being exercised by the other County Registrar.".
This amendment will allow for county registrars to take on additional functions of an equivalent office. It is envisaged that from time to time, in busier circuits, another county registrar will assist the sitting county registrar in relation to the exercise of these additional functions. This will have the effect of freeing up judicial time and should have a very positive impact on the timely disposal of a number of matters, not the least of which will be family law matters in the Circuit Court.
The Courts Service takes the view that an amendment on the proposed lines is necessary to clarify the position regarding the authority of county registrars to perform functions concurrently in a circuit. I am pleased to ask the House to provide accordingly. I wonder if it will have any implications for the counting of votes.
I agree with the amendment. Are reviews under way which could further enhance the powers of the county registrar? Changes introduced a few years ago to allow registrars deal in some way with motions to engage in hearing ex parte applications and in the ordering of the list have ensured greater administration of justice at circuit level and given rise to more ordered lists. Matters which may have awaited judicial hearing for months could be dealt with simply and easily before the county registrar. I ask that ongoing reviews take place with a view to hearing submissions from county registrars and their association on the powers they would seek to be vested in them with a view to speeding up the courts system and ensuring justice is administered in an expeditious manner. The amendment is important.
While I will take into account Deputy Flanagan's comments, county registrars are busy under the additional functions we have asked them to perform.
I move amendment No. 18:
In page 21, between lines 20 and 21, to insert the following:
26.—(1) If in any proceedings before a court it appears to the court that—
(a) costs have been improperly or without any reasonable cause incurred by a solicitor acting for a client who is a party to those proceedings, or
(b) by reason of any undue delay in proceeding under any judgment or order, or of any misconduct or default of that solicitor, any costs properly incurred have nevertheless proved fruitless to the client incurring those costs,
the court may, on its own motion or on the application of the client concerned—
(i) call on the solicitor of the person by whom such costs have been so incurred to show cause why such costs should not be disallowed as between the solicitor and the client and also (if the circumstances of the case require) why the solicitor should not repay to the client any costs which the client may have been ordered to pay any other person, and
(ii) make such order as the justice of the case may require.
(2) An order under subsection (1)—
(a) shall not be made in respect of a solicitor acting in good faith and without negligence,
(b) does not depend upon a finding by the court that the solicitor is guilty of professional misconduct or gross negligence in relation to their duty to the court.
(3) (a) Where a court is considering whether to make an order under subsection (1), the court may at any stage refer the matter—
(i) in the case of the High Court, to a Taxing Master,
(ii) in the case of the Circuit Court, to a county registrar,
for inquiry and report and may also appoint a solicitor to attend and take part in such inquiry.
(b) Notice of an order under paragraph (a) shall be given to the client in such manner as the court may direct.
(4) In this section, "court" includes the Master of the High Court.".
I understand a similar amendment was ruled out of order on Committee Stage. However, the section which caused the problem has been removed. In essence, the amendment is designed to promote consumer protection and prevent the emergence of cosy cartels. The consumer would have greater protection and greater recourse to justice if a case involved simple negligence rather than gross negligence. The section is designed to ensure solicitors who incur costs due to negligence are required to pay those costs by empowering the court to so order. It is a long amendment but this is the essence of what we seek to achieve. Will the Minister accept the amendment?
I accept the spirit in which the amendment was tabled but a Bill is in preparation to deal with the question of legal costs in a comprehensive way including the issue of consumer protection referred to by Deputy O'Shea. The issue of legal costs in all contentious cases is being examined by the Department. By "contentious" I mean any legal service provided in connection with legal proceedings before a court.
A group was established by my Department to advise on the implementation of the Haran report of 2005. Officials from my Department have commenced work on drafting a Bill to reform the manner in which disputed legal costs are assessed with the allied objective of making the market for civil legal services more predictable, consistent and transparent to consumers. We cannot deal with this issue in isolation. The question of legal costs requires a comprehensive response and it is intended to provide this in separate legislation.
It is encouraging to hear the Minister will undertake this major reform and intends to produce legislation to this effect. Will the Minister give the House an indication of the timescale involved? Dáil Deputies hear complaints from people about this issue and it would be helpful to be able to assure people that legislation is being developed. I hope it is not in the dim and distant future. The issue needs to be addressed and consumer protection is becoming more important in the type of economy we now have. Will the Minister assure the House that the proposed legislation will deal with the specific issue of making the distinction between gross negligence and simple negligence in a consumer friendly way?
Yes, it will. I am glad Deputy O'Shea raised this question because on my appointment as Minister I examined the extremely detailed Haran report, much of which relates to the costs and expenses associated with substantial litigation. I raised concerns with my officials, and gave directions that the first priority with regard to costs should be precisely the type of circumstances referred to by Deputy O'Shea, such as where an easy remedy is available to a litigant complaining of overcharging in a family law matter. I gather the proposals will be available either later this year or early next year.
After the proposals are ready the drafting of the legislation will begin. Does the Minister envisage the drafting phase will be prolonged or, bearing in mind the nature of the issues, that we can hope to see the Bill produced in 2009?
One of my concerns is that if one examines the Haran report, one sees the legislation associated with its implementation would take a prolonged period because it proposes the establishment of an entirely new body to deal with costs. I am not satisfied the abolition and replacement of the taxing masters are essential to the process. It may be that the redefinition of the functions of the taxing masters as legal costs controllers and the development of a facility whereby clients have more ready access to measuring the costs of solicitors and counsel would be a more desirable way forward. This would require a shorter Bill. I have attended to this matter and if Deputy O'Shea examines the Haran report he will see the full implementation of the model it envisages would take a number of years.
If solicitors were farmers they would be claiming and receiving compensation.
On the basis that the Minister will address this issue in a wider context I will withdraw the amendment.
I move amendment No. 19:
In page 22, between lines 2 and 3, to insert the following:
28.—Section 6 (as substituted by section 16 of the Solicitors (Amendment) Act 1994 and amended by section 8 of the Solicitors (Amendment) Act 2002) of the Solicitors (Amendment) Act 1960 is amended by inserting the following after subsection (1A):
"(1B) Where a solicitor member of the Disciplinary Tribunal, during the course of his or her membership of the Disciplinary Tribunal, ceases to be a practising solicitor by virtue of not making an application for a practising certificate, that cesser shall not of itself—
(a) cause the solicitor member to cease to be a solicitor member of the Disciplinary Tribunal, or
(b) prevent the solicitor member from continuing to serve as a solicitor member of the Disciplinary Tribunal for the remainder of his or her appointment or reappointment as a solicitor member of the Disciplinary Tribunal.”.
I move amendment No. 20:
In page 23, between lines 28 and 29, to insert the following:
"(2) Where a tenant has, on or after the 12th day of December 2007, effected a renunciation as referred to in subsection (1), the tenant shall be deemed not to be entitled to a new lease for a period of 20 years, and any lease for a shorter period effected on foot of such renunciation shall be deemed to be valid.”.
I understand the issue in question arose from a particular case on which Deputy Rabbitte had representations. I understand the person in contact with Deputy Rabbitte was also in contact with the Minister on this issue. The amendment is designed to ensure renunciations to the right to a new lease made pending the passing of the Bill will be recognised as valid. Otherwise, some tenants will have their tenancies terminated and hardship will ensue. Landlords who allow a lease to continue beyond a certain period may find their ownership of the property will become defunct and landlords do not want to leave tenants in situ because of this risk.
In this particular case, questions were also raised about changes to the landlord and tenant legislation. The Minister indicated the specific matter would be dealt with either through this Bill or through changes to the landlord and tenant legislation. The concern is to safeguard tenants while dealing with the difficulty faced by landlords.
As Deputy O'Shea is aware, this Bill allows the tenant to renounce in writing, whether for or without valuable consideration, his or her entitlement to a new tenancy, having received independent legal advice with regard to the renunciation. This is of particular importance in the constituency represented by Deputy O'Shea, given the interest in developing the port in Waterford. I gather this section is important as an inducement to persons interested in investing in development there and in other similar developments throughout the State.
However, a general problem exists with this amendment. In principle, retrospective legislation is undesirable. The amendment fixes on the date of 12 December 2007 and effectively facilitates people to reorder their transactions in advance of the commencement of the legislation and in the absence of a definite legislative framework. Acceptance of the amendment would privilege some categories of tenant, whose tenancies expire on or after the date in question, while discriminating against all those whose tenancies expired before this date and who, in consequence, had to make alternative arrangements in their business activities. I understand the motivation underlying the amendment but I am slow to accept it. The purpose of these amendments is to establish a new legal framework but this must come into operation from the enactment of the legislation.
As the Minister is aware, the reason this amendment was tabled is that without it some tenants will have their tenancies terminated and hardship will be caused. I understand the point on retrospective legislation. However, can the group about which Deputy Rabbitte is concerned be safeguarded? I take it the Minister is not favourable to accepting the amendment but its acceptance is not the primary issue, it is the protection of this group of people who could be subjected to hardship.