The last words in line 21 read: "No party to any such proceedings shall have any claim against any other party thereto in respect of costs incurred in such proceedings." In discussing it now we want to know really whether that means that those costs were absolutely lost or are they dealt with in another and subsequent part of the Bill. It will prevent an individual from losing money which is already spent in costs. It was more a question with a view to asking what the facts were than anything else, because it may be already covered in a subsequent Clause in the Bill.
DAMAGE TO PROPERTY (COMPENSATION) BILL, 1923. - COMMITTEE STAGE—CLAUSE I.
(1) No proceedings under the Criminal Injuries Acts shall be instituted after the passing of this Act in respect of any injury to which this section applies.
(2) All proceedings under the Acts aforesaid which are pending at the passing of this Act in respect of an injury to which the section applies and in which no decree has been made shall be and are hereby declared to be void and to be discharged, and no party to any such proceedings shall have any claim against any other party thereto in respect of costs incurred in such proceedings.
(3) It shall not be lawful for any person after the passing of this Act to take any steps to recover or enforce payment of the amount of any decree made before the passing of this Act under the Acts aforesaid in respect of any injury to which this section applies.
This sub-section shall apply to all costs and expenses as well as to compensation awarded by any such decree and to the interest on any such compensation which carries interest.
(4) This section shall apply to proceedings in and decrees on any appeal as well as to proceedings in and decrees of a court of first instance.
(5) This section shall apply to any injury whether to property or person committed in Ireland during the period between the twenty-first day of January, nineteen hundred and nineteen, and the eleventh day of July, nineteen hundred and twenty-one, both inclusive.
(6) This section shall not apply to or prevent the presentation or prosecution of a claim to or before any Commission of Inquiry in respect of an injury to which this section applies.
Question put: "That Sub-section 1 stand part of the Bill."
Agreed.
Question proposed: "That Sub-section 2 stand part of the Bill."
This first part is in respect of injuries committed before the 11th day of July, 1921, and there is no further reference given to them in any other part of the Bill except in the repeal in the Schedules of the Acts of 1919 and 1920. Now, this particular Clause stops all proceedings at present pending, and the case that is provided for here is where costs have been incurred which might possibly be recovered against the local authority concerned. It is to make sure that no such claim would lie against a local authority that this particular Section is put in, and it deals with cases that are pending. Unless the Section were put in such costs might be legally decreed against the County Council, and we would have to rehash the whole situation of the last three or four or five years, in which the County Council would refuse to pay these costs, and which the applicant himself would either have to bear or have a charge against somebody else. Now, the Shaw Commission, or the Compensation Commission, was set up by agreement between the two countries. I do not know that any person has any cause of complaint in respect of the cases that have been the subject of investigation by that Commission. I have not heard any complaint about it. I do not know that there is any degree of dissatisfaction with regard to that part of the proceedings. As regards the other question——
AN CATHAOIRLEACH
Before you pass from that let me take the opportunity of asking you this: you see Sub-section 2 deals with cases in which no decree has yet been made. Has the Shaw Commission jurisdiction over them at all?
Yes; all cases before the 11th day of July, 1921.
AN CATHAOIRLEACH
You see the object apparently was to prevent in such cases costs already incurred being recovered against the local authority?
Yes.
AN CATHAOIRLEACH
But why should there not be some provision to enable the Shaw Commission to deal with it—to pay these costs to the claimants?
Because there is no Statute. The Shaw Commission, as it is called, has not been set up by Statute. It is an agreement between two countries in respect of these cases. The necessity has not so far arisen for taking into consideration such a question. There is no cause for dissatisfaction, and the British Government will naturally have to consider the passing of legislation, and it is a matter of agreement between the two countries that there was no necessity for legislation in that case, but as regards the other question as to who should pay, the Government of Saorstát Eireann has undertaken to pay. I understand there is some dissatisfaction about payments. That arises from various causes. One of them is that we have to get a release from the person who has an award against the local authority, and if that release were not given then the claim would still lie legally against the local authority, and the last Section of Part I. provides against that.
Then we take it that the people within those days who have lodged claims and have incurred certain costs in connection with the preparation of these claims, that their right to get these costs are preserved somehow or other.
AN CATHAOIRLEACH
That is clearly the point, but I do not see anything in the Act of Parliament to preserve it. On the contrary, unless it was amended in some way I would read this Sub-section 2 as depriving them of these costs, and thereby impliedly preventing the Commission from giving them, whereas when you come to Part II. there is this Section, that in any renewed applications—that is a re-hearing—the costs incurred by the applicant incidental to the previous application should be deemed to be part of the loss occasioned by the applicant by the injury, and may be awarded to him. You see, my fear is that the Commission of Inquiry may say, "We are prevented by this Sub-section 2 from taking these costs into account at all," and that may not be the intention of the Government.
What we wanted to know, and perhaps the President can tell us, is whether the costs these people have incurred are saved to them in the subsequent part of the Bill to which An Cathaoirleach refers.
AN CATHAOIRLEACH
No; the subsequent part of the Bill does not deal with this period at all. I was only pointing out that when they came to a different period they adopted a different attitude. They preserve the right to these costs if the injuries occurred in another period, whereas in this particular period they have put in a Section which apparently expressly deprives them of the costs.
In connection with the costs to-day the Commission of Inquiry are no better or no worse before or after the passing of this particular Section. In the other case we have had the right to consider the question of compensation for costs. We have not the right here. The liability for the payment of these costs is distributed as between the British Government and ourselves. We have not got the right of legislation as to how the British Government shall compensate in these cases. We have got an agreement between the British Government and ourselves in so far as the presentation of these cases before the Commission of Inquiry is concerned. So far I have not heard of any cases of complaint for costs or anything in other cases except the natural one that no person is satisfied with any compensation.
AN CATHAOIRLEACH
I think it would clear the air entirely if you were prepared to tell us that the Commission of Inquiry, under this Section, should have power, if they thought fit, to pay a sum for compensation in respect of these costs.
I can only say, Sir, as regards that, that it is not part of the agreement we have had with the British Government, and so far as this part of the Act is concerned we are leaving them no better and no worse than they were before. The British Government and ourselves are still maintaining all the liabilities that we have borne up to this, and that we are still prepared to bear.
So far as we can understand the situation the issue is one between the Irish and the British Governments in the matter of these costs, and so far the Irish Government, though willing to pay these costs, does not know whether it can or not. What it proposes to do under this Act is to relieve the Local Authorities from these costs. That, I think, is the position from what the President has said, and then Clause 6 refers to a Commission which, I presume, is the Commission set up of which we got notice some time ago. Are we to take it that the Commission will have power, provided the British Government is satisfied, to deal with the question of costs?
Neither the British Government nor the Government of Saorstát Eireann has sought at any time to limit or interfere with the discretion of this Compensation Commission. It has full and complete power to deal with any and all of these cases, and anything we would pass here could not restrict the authority of that Commission. Any such restriction could only take place if and when there was agreement between the British Government and ourselves and which we were both satisfied to have passed, the British Government in their own Parliament and we here in the Oireachtas. There has been no such agreement as regards that and the Shaw Commission, or Commission of Inquiry, is in exactly the same position as it was a month, two months, six months ago, as it will be six months hence notwithstanding anything that is embodied in this Act.
AN CATHAOIRLEACH
Is not there this cardinal distinction? When this Commission was set up by the Government and up to now it was limited and had no legal sanction. It did not interfere with or bar the existing legal remedy. Part I. of this Bill absolutely abolishes the previously existing legal remedy and leaves the claimant with no right except to go before the Commission.
That is right and that, as I explained, is one of the causes of delay in payments, that some time is absorbed in getting releases. We want to pay rapidly and we want to reduce the number of complaints against us, and in order to get that we are doing under this what in fact means that in future we need not get releases from any person in respect of whom an award is made by this Commission of Inquiry, and we are paying at once and, as things stand, without the release a person can accept payment if we made it he would still have the legal claim against the local authority.
Would not the case be met if the words "against the local authority" were inserted after the word "costs"? By doing so you would leave it permissive that the costs could be given in other ways.
Then there is the other case in which the local authority may possibly have a cause of complaint as regards costs. The local authority may have entailed some expense in making up a case, for instance.
AN CATHAOIRLEACH
Would not the whole position then be met if you added after the words "no proceedings""without prejudice to such costs being entertained by the Commission of Inquiry"? The only thing I am afraid of is that the Commission of Inquiry might say: "The Irish Parliament has definitely shown that these costs are not to be paid and therefore we cannot deal with them." If you inserted there "without prejudice to the right of the Commission of Inquiry to entertain the question of the payment of these costs," or some words like that they would clear up the position entirely.
I think the President has clearly explained that this is not statutory and that covers the whole thing. This is an agreement between the two countries, and these words, "not statutory," cover the whole thing. It is simply an agreement between the two countries that this Commission has been set up. There has been no quarrelling about it; both countries are agreed to it, and as it is not statutory and the claims before it have been satisfied I therefore object most strongly to any words such as "without prejudice" being put into the Bill."
AN CATHAOIRLEACH
But you are wrong in saying that it is not statutory. It is not statutory, I think, now, but it becomes statutory and the only statutory remedy of the applicant once this Bill is passed. This Bill deprives them of their statutory remedy and substitutes by a statute an application to the Commission of Inquiry. That is the cardinal distinction.
AN CATHAOIRLEACH
The matter has been brought fully to the notice of the Minister and I think we may pass from it. It can be brought up again in Report if necessary. It has been fully discussed, and I think it is the wish of the Seanad to pass on.
Question: "That Sub-section 2, 3, 4, and 5, Section 1, stand part of the Bill," put and agreed to.
Does Sub-section 6 refer to what is known as the Shaw Commission as well as this new Commission which the Government proposes to set up?
It does, it embraces the two. There have been some cases in which no decrees were obtained for compensation for personal injuries. In such cases the passing of this part of the Act does not prejudice any person's right in presenting a claim to this Personal Injuries Commission which we are proposing to set up.
Question: "That Sub-section 6 of Section 1 stand part of the Bill," put and agreed to.
Question: "That Section 1 stand part of the Bill," put, and agreed to.
SECTION 2.
(1) Every application under the Criminal Injuries Acts for compensation for an injury to which this Part of this Act applies on which a decree has been made before the passing of this Act shall be re-opened and re-heard on the application at any time within three months after the passing of this Act of the applicant or of the Minister for Finance.
(2) Every applicant who intends to apply under this section to have any such application as aforesaid re-opened and re-heard shall serve a notice of his intention so to do in the form and on the persons prescribed by the Minister for Home Affairs.
(3) In every case in which the Minister for Finance intends to apply under this section to have any such application as aforesaid re-opened and re-heard he shall cause notice of his intention so to do to be served on the person who was the applicant in such application.
(4) Parts II. and III. of this Act shall apply to every re-hearing under this section as fully as they would have applied thereto if such re-hearing had been an original hearing commenced after the passing of this Act.
(5) Whenever a decree has been made for compensation under the Criminal Injuries Act, in respect of an injury to which this part of this Act applies, and
(a) the compensation awarded by such decree was assigned, mortgaged or charged before the 1st day of January, 1923, and
(b) Notice of such assignment, mortgage, or charge was duly given before the 6th day of February, 1923, to the County or County Borough Council liable under such decree to pay the compensation thereby awarded, and
(c) an application is made under this section to have the application for such decree re-opened and re-heard; and
(d) compensation is awarded on such re-hearing,
then and in every such case, every such assignment, mortgage, or charge shall, subject and without prejudice to any reinstatement condition attached to the compensation awarded on such re-hearing, affect such last mentioned compensation in the same manner and as fully as such assignment, mortgage, or charge affected on the 6th day of February, 1923, the compensation awarded by such decree: Provided always that whenever in any such case a reinstatement condition is attached to the compensation, or to any part of the compensation awarded on such re-hearing the Judge, if he considers it just and equitable so to do, may on such re-hearing extend or transfer any such assignment, mortgage, or charge shall affect such building either in conjunction with or in exoneration of the compensation awarded by such decree, and in such manner and to such extent as the Judge shall direct, and any such extension or transfer of an assignment may take the form of giving to the assignee a charge on the building aforesaid for the amount of the consideration actually paid on such assignment.
(6) Whenever a decree has been made for compensation under the Criminal Injuries Acts in respect of an injury to which this part of this Act applies, and
(a) such decree was made by a Judge of the High Court, and
(b) The Council of the County or County Borough in whose functional area the injury occurred appeared by Counsel or Solicitor at the hearing before such Judge of the High Court and bona fide opposed the awarding of any compensation or the awarding of the amount of compensation claimed, and
(c) the compensation awarded by such decree was assigned, mortgaged, or charged before the 1st day of January, 1923, in consideration of or to secure a sum not more than the amount of such compensation, and (d) Notice of such assignment, mortgage, or charge was duly given before the 6th day of February, 1923, to the County or County Borough Council liable under such decree to pay the compensation thereby awarded, and
(e) an application is made under this Section to have the application for such decree re-opened and re-heard;
then and in every such case the amount of compensation awarded on such re-hearing shall not be less than the consideration actually paid on such assignment or the amount actually paid on such mortgage or charge (as the case may be), but nothing in this sub-section shall prevent a reinstatement condition being attached to the whole or any part of the compensation awarded on such re-hearing, nor shall the provisions of this sub-section be taken into consideration by the Judge when deciding whether a reinstatement condition is or is not to be attached to the compensation to be awarded on such re-hearing: Provided always that whenever in any such case a reinstatement condition is attached to the compensation or to any part of the compensation awarded on such re-hearing, the Judge, if he considers it just and equitable so to do, may on such re-hearing extend or transfer any such assignment, mortgage, or charge to the building to be erected, pursuant to such reinstatement condition so that such assignment, mortgage, or charge shall affect such building, either in conjunction with or in exoneration of the compensation awarded by such decree, and in such manner and to such extent as the Judge shall direct, and any such extension or transfer of an assignment may take the form of giving to the assignee a charge on the building aforesaid for the amount of the consideration actually paid on such assignment.
(7) In this section the word "decree" includes a decision refusing compensation as well as a decision awarding compensation.
(8) On any renewed application under this section the costs incurred by the applicant of or incidental to the previous application shall be deemed to be part of the loss occasioned to the applicant by the injury, and accordingly if on such renewed application the applicant is found to be entitled to compensation the amount of such costs shall be added to or included in the compensation.
Question: "That Sub-sections 1 and 2 stand part of the Bill," put and agreed to.
I move the following amendment:—
"To add to Sub-section 3 the words:—
"Such notice shall state the grounds on which the application is made and whether any of the damage in respect of which the compensation has been awarded by the original decree is admitted and if so, shall contain an offer of such compensation as the Minister shall deem proper, and in case the offer shall be accepted within 14 days after service of the notice or such further time as the Minister may allow, a decree shall, subject to the provisions of Sub-sections 5 and 6 of this Section, be made for the amount thereof. The offer may be amended at any time before acceptance."
The object of the addition to the Sub-section is that when a case is re-opened the applicant should be made aware of the grounds upon which such case is re-opened. As the matter stands at present the Minister for Finance may order a case to be re-heard and the other party to the case has no information as to the ground upon which this case is being re-opened. It occurred to me and to others that it would be a fairer thing to either party that the Minister for Finance should state when a case is re-opened what the grounds of re-opening are. Then again, it provides that instead of going to very heavy expense on one side or the other it might be possible when an aggrieved individual knew why the Minister was re-opening the case he might be prepared to accept some offer from the Minister which would finally close the proceedings without going to heavy expense and additional litigation. That is the object of the amendment.
There are two objects in this amendment quite clearly. One is the saving of costs and lengthy proceedings. If matters could be arranged in the way Senator Guinness suggests there would be a great saving in many ways. There is another question. It is advisable that the Minister should state in re-opening any case why it is re-opened. There is nothing which the outside public are criticising more than this particular clause dealing with the re-opening of cases, and the Minister for Home Affairs in the Dáil when dealing with the matter said that they would be dealt with for cause given. That is quite right and, if the Government accept the amendment, in re-opening a case they will state why they re-open it. I have not the slightest doubt that they are going to open a case for any trivial matter and I do not believe that they want to take away unjustly the rights persons have got, but they should be extremely careful in all these cases that the justice of the Government's case ought to be known. This amendment would give them the means of doing so. Further, the opportunity it gives to the Government for showing their good faith and the amount of money it would save show that this is a good amendment.
I would be prepared to accept the principle of the amendment as proposed by Senators Guinness and Jameson, but it might be that there would have to be some slight alteration in the drafting. I do not know, however, because I only saw this amendment an hour ago. Apart from that the principle of the proposal is acceptable.
That is quite satisfactory.
AN CATHAOIRLEACH
It might be desirable to change the word "shall" into "may," because as it stands it compels you to make an offer in every case.
I think there is some danger in this amendment, and I do not think that it is quite as innocuous as it seems to be. It is possible to give claimants notice of the grounds on which a case is to be re-opened. I would not like to see this amendment accepted right off. The taxpayers will have to pay every penny of legitimate compensation, and, while that is quite right, we should close every possible loophole which would make them pay what they should not pay.
Would not that be met by the substitution, as suggested, of the word "may" for "shall"?
AN CATHAOIRLEACH
There are two things. The first is to give the applicant whose case is being re-opened some previous intimation of the ground on which it is being re-opened. That seems prima facie just. Secondly, it enables the Minister, if he thinks it is a case in which he ought to do it, to make an offer of compensation and thus stop litigation. If you put in the word “shall” he is bound to do it in every case, whereas if it is the word “may” it leaves it open to him if he wishes to do so, and if he thinks it is the proper remedy.
I agree with the principle underlying the amendment, but I also see that there is a danger by doing so of putting whoever may be the Minister for Finance in a very invidious position. Because we know that where the Minister for Finance or any other Minister or public representative makes certain offers to settle certain claims there will be a good deal of comment, and I think that some other course could be adopted other than that the Minister for Finance should make a settlement of claims, and that alternative would be much better. I want to protect the Minister from the criticisms of those outside. We can imagine for a moment the case of a person making a claim and getting a decree. Then the Minister may be advised that that decree was out of all proportion to the compensation that should be awarded, and he sends notices in consequence to re-open that particular case. He states his reason for re-opening that case, which reason I assume will be that the compensation awarded has been too great. He has the power then by this amendment to make an alternative offer to the person. I think that is an invidious position to put any responsible Minister in.
AN CATHAOIRLEACH
I think you have overlooked the fact that the Minister has the power, whether you give it to him or not. Every man has the power to make an offer to his enemy.
If he has the power then I suggest that we should not make an Act of Parliament giving him that power.
AN CATHAOIRLEACH
It may be better in this, that he is doing it under direction of the Act and not of his own motion.
If we were dealing with ordinary cases I would be prepared to accept this. We must remember that when we are dealing with certain specific cases, say, of members of the Dáil or Seanad or of other people, that there will be a good deal of hostile and undue criticism of whoever may be the responsible Minister, and I should prefer if some other means could be adopted, because it would be placing whoever may be in the responsible position in a very invidious position, because the people will complain that so and so has been offered too much or that he has been offered too little.
AN CATHAOIRLEACH
I think what is not realised is that you can quite conceive cases in which it would not only be in the interests of the Minister, but almost his duty to make an offer. There might be very little difference between the two parties, and to save money and trouble it may be the duty of the Minister to make an offer. Is it not better, then, not to have that done of his own motion, but with the sanction of Parliament? This is not compelling him to do it. It simply says he may do it.
I think one seems to think that this might be a personal affair of the Minister for Finance, but really when an objection is lodged it is not lodged by him personally, but by some officials. He could not be personally responsible for all the objections made by lawyers and other people. He is simply head of the State, and as such puts his name to it.
AN CATHAOIRLEACH
I think in view of the Minister's statement that he accepts the spirit of the amendment that we may pass from it.
Amendment put and agreed to.
Question: "That Sub-sections 3 and 4 stand part of the Bill," put and agreed to.
I beg to move, on behalf of Senator Eyre, in Section 2, Sub-section (5) (d), to insert after the word “charge,” in line 40, the words: “to the building to be erected pursuant to such reinstatement condition, so that such assignment, mortgage, or charge.”
AN CATHAOIRLEACH
I have received a communication from the Government that those words are actually inserted in the Bill, and it has been passed through the Dáil, but had been omitted by a printer's error. It seems to me that if they are in the print of the Bill as certified, we must take the Bill as certified, but it would be far simpler for the Government to let this amendment be inserted here. I do not think the fact that there has been a printer's error enables us to treat the Bill in any way except in the shape in which it has been presented to us. I would suggest that the Minister accepts the amendment now.
Line 40 as it stands is not sense, and the only way in which it can interpret the original meaning is the way Senator Eyre suggests in his amendment.
AN CATHAOIRLEACH
That is not the difficulty. Certain inconvenience follows, and in the opinion of the Government that could be obviated if it was accepted that this is a mere clerical error, and we would construe the Bill as it was corrected. My opinion is we cannot treat it in that way, and that the Government must either amend it here or in their own House.
I think that the suggestion that has been made that it should be moved here is the correct one, as that copy of the Bill has been certified.
Amendment put and agreed to.
I beg to move Section 2, Sub-section 6 (b):—After the word "occurred," to insert the words "or a ratepayer in that area." I happen to know from experience and I have been written to by people who are competent authorities on the matter, solicitors and others, who have pointed out that in many cases in the West of Ireland — probably it is the same elsewhere — the County Councils have not made opposition, but individual ratepayers have made opposition and that in some instances they fought out the cases a great deal harder and more persistently than the County Council. I will give an instance of a case I happen to know myself. There was a case of cattle-driving on a particular farm. That farm had adjacent to it the farms of several people who drove the cattle, but when the compensation was awarded it was placed over the whole of that area and the person who actually owned the cattle was obliged as a matter of fact to pay almost the whole of the compensation for the driving of his own cattle. In that case the owner objected, and apart from the County Council fought the question out. I suggest in those cases where a ratepayer fights the matter out that it should be the same as the County Council.
There was a rule for the House of Commons Committees that where a County Borough was represented by Counsel in a case of that kind a ratepayer had no locus standi. I do not know whether that would apply here.
AN CATHAOIRLEACH
I do not think that has any application here because under the law as it stood ratepayers could oppose an application for Malicious Injury compensation, and in the case mentioned by Senator Moore they did, in fact, oppose, and he wants to preserve to them the right to apply to have the case re-opened. He only proposes that they should be included in the category of persons who can claim to have cases re-opened.
I think that the case that is being made is that where opposition is offered to any claim before a County Court or a High Court Judge that opposition would be read as coming from an individual ratepayer as well as from a local authority. I have had some experience of the conduct of business of local authorities. Senator Eyre has mentioned that it was stated that a ratepayer had no locus standi. The position of a ratepayer in the particular instance of these two Acts was rather different, I think, to the ordinary position of a ratepayer objecting to extraordinary expenditure. He was entitled under these Acts to go into Court and to explain that as far as he was concerned he was without sin in this matter and that no levy should be made in respect of his property for any award that might be given. So that one had only got to say, “I am not in sympathy with this sort of work that is going on in the country,” and the whole of his property could have been relieved from any liability in respect to a claim for compensation for Criminal and Malicious Injury. That was one side of the case. Another side of the case is that the ratepayer, as such, has not at his disposal machinery that a local authority has for dealing with the building up of a case and presenting every aspect of it — dealing with an engineering proposition, an architectural proposition or tapping information from every source. There might be a case, I admit, where a ratepayer would know more than another individual, but that ratepayer's services ought to have been at the disposal of the local authority for use. The local authorities as such did not oppose and, consequently, the people of the country generally did not oppose these claims, although one or two might have, and the area of the inquiries was certainly restricted by reason of the fact that it was most unpopular to appear in Court at all in connection with these cases. Our firm and settled conviction in regard to these cases is that any individual opposition by a ratepayer or collection of ratepayers is not opposition that could be properly described as bona fide and did not afford the ratepayers sufficient protection and that it should not be looked upon as really bona fide and powerful opposition in respect of these claims. On that account we were not disposed to consider the same treatment for cases in which either an individual ratepayer or a collection of ratepayers appear against these claims. It did not appear to us, from our intimate knowledge of the circumstances of the various cases that had come before the Courts, that there was that opposition put up which would have been put up by a local authority, granted that the people were in favour of opposing these claims before the Courts.
Amendment, by leave, withdrawn.
I beg to move:—
Section 2, Sub-section (8).
(a) To delete in lines 40-41 the words “loss occasioned to the applicant by the injury,” and to substitute therefor the words “cost of and incidental to the re-hearing.”
(b) To delete in lines 43-44 the words “or included in the compensation,” and to substitute therefor the words “the cost of such re-hearing and be payable with and as part of such costs.”
The object of this amendment is simply to provide that where an applicant succeeds fairly in obtaining a decree upon a re-hearing of a compensation claim that the costs shall be paid in cash; that the costs that have been incurred by him in the initial application and also at the re-hearing should be paid in cash. It is only equitable that he should be paid the costs in cash instead of having them forming part of the award that might not be paid in cash.
The objection to this amendment is that possibly a decree may have been given for a very considerable sum, let us say £5,000. My information is that the costs bear some relation to that decree. If that decree be reduced the costs accordingly in all fairness should be reduced. If the case be made for cash, then the cash should only bear the same relation to the new decree as the costs did to the old decree if we were going to pay in bonds. One cannot have it both ways. If it is to be looked upon as part of the injury, well then the payment of a sum in excess of the amount to which a person would be equitably entitled is the least compensation he ought to ask for in respect of the bonds he would get instead of the cash. If that be the meaning, I do not know that a good case has been made for the amendment. Some of the decrees given, I think, are rather generous. We are not disputing the costs at the moment, but we do dispute that a person has a greater right or a better title to the proposal we have made that the costs should be regarded as part of the injury if the other intention be embodied; that is to say that the Judge is bound to award costs. I take it the ordinary provisions of the Act still stand, but I do not think there is a real case for asking more than is in the Acts at present. We are not disposed now, and we do not think it is fair to ask us to accept this amendment. It is adding to the burden that I think we had generously shouldered in the terms of the Sub-section as it stands. If it were pressed it would mean that we would have to consider the question of reviewing the costs as well as the award, and that may possibly mean delay, and might not possibly give as much satisfaction as the Section now stands.
I do hope that the President will not ask us to take his reply as final. As he said himself, it may be necessary to review the costs, and justly so. Why not? These costs, as the President knows, are out-of-pocket expenses, and in many cases have been a severe burden on the injured party, who, in addition to losing his property, has had actually to put his hand in his pocket to provide considerable sums for costs. It does not seem equitable that costs previously incurred should not be open for reconsideration.
On that point my information is that a certain sum is paid on account of costs when a decree is awarded, and the remainder is paid when the decree is paid. My information is that no decrees have been paid, or that the number paid is infinitesimal. Therefore, there is still an opportunity for accommodation, and the person is certainly not out as much as the Senator seems to have in mind.
If people have to undergo these costs they may have to pay a considerable portion in cash before their case is heard at all, and, as Senator Sir John Keane very rightly points out, some of them find it very difficult to find money to pay these costs. Unless the Government were to say that costs should be paid in bonds or face value bonds, I think there is a hardship in the matter, for people who have to pay cash a considerable time before the case is heard. Some of these unfortunate people are in a position of very great difficulty, and if they find it hard to raise the money to pay these costs I think the Government might consider such cases so that they might do something to meet them.
There is no intention to ask the Government to pay anything except what is perfectly fair. It is only a question of cash or bonds.
AN CATHAOIRLEACH
It might be possible to meet this if, instead of saying "costs incurred by the applicant of or incidental to the previous hearing," we say "costs incurred by the applicant incidental to the previous application shall be deemed to be part of the costs of and incidental to the re-hearing, to such extent as the Court, on the re-hearing, may deem reasonable."
I will consider the form of that. I think that that would be reasonable.
AN CATHAOIRLEACH
That will also suit Senator Jackson's case.
Yes.
Amendment, by leave, withdrawn.
I move the following amendment:—
Section 2, Sub-section (8). "To add at the end of the Sub-section a new Sub-section (9), as follows:—
"This Section shall not apply to any decree made in respect of an injury to which this part of this Act applies, where such decree has been varied or affirmed upon an appeal, at the hearing of which the local authority or authorities concerned were represented and bona fide opposed the decree.”
This matter was debated at very considerable length in the Dáil, and I daresay a great many Senators have read the amendment already. The reason for putting down that amendment is not only that some very vital principle of law is concerned in it. That cases which have been fought through and appealed should be re-opened in the same way as unfought cases are does not seem the right thing to do. I do not at all deny that in reconsidering re-heard cases which have not been defended that the Government are acting perfectly correctly, but where cases have been fought, you may say, to a finish, I do think they are needlessly breaking through what ought to be, I believe, a principle of law, that in fact it makes retrogressive legislation. Now, the inducement to the Government not to accept this amendment I have been trying to see, and I have read through all that was said by members of the Government who spoke in the Dáil. The number of cases is admittedly very small. The President himself said the number is relatively small, that from two to six would probably be the amount of cases concerned. Now, there may be reasons why the State should do it for the money involved. There might be no very great amount of money involved if the cases are as stated; they are very small indeed in number, but you can quite easily see that these cases are very likely to be seriously fought against, and the re-opening of them, so far as costs are concerned, will certainly be a serious matter. In the Dáil the reasons advanced against the acceptance of this amendment, as far as I could make them out, were three. One was that these decrees might and probably would include consequential damage which was denied in the cases decided under the Act. As far as the facts are concerned, I believe that at the time the decrees were given the question of consequential damage was not much insisted upon by the claimants or considered much by the courts. Of course, the Government have probably got before them some means of estimating to what extent consequential damage is involved in those decrees, but so far as one can judge the amount concerned must be quite small and there can hardly be justification, as I have said, for making such an extremely radical change in what ought to be constitutional practice. The second reason for refusing to accept the amendment was that it would prevent a reinstatement condition. If the cases are as I have suggested, and as the President has said, so extremely small in number, it cannot be a matter of vital importance whether the reinstatement question is not made definite in such very few cases. Then the other reason given is that important evidence may have been withheld, a witness may have objected, in the dangerous times, to come forward and give evidence, but there were more cases where the defendants would undoubtedly have brought before the court the fact that they were unable to put forward important evidence and surely the court would have given weight to that in giving their decree. The Section as it stands includes all cases; it makes no distinction, as far as I can see, between contested cases and non-contested cases. Now, the real point that lies behind all this is, as far as I can make it out, that for the benefits to be got by adopting the principle of retrospective legislation they are sacrificing a great deal of principle and getting very little benefit because, though it may be said that this is a very small thing, dealing with a very few cases, and not of any very great importance, it does establish a fact that the Free State Government in starting on their own are taking up, even in a small way, the attitude that they have a right to upset legal decrees properly obtained in a court of law in a perfectly legal manner, that they are not only able to upset them and have them reheard, but that they are also able to alter the law under which they are going to be heard, and using Parliament for this legal purpose, and it does also establish this legal fact, that the State as a State is using its power to take away the legal right which an individual has got. I cannot see myself really why the Government, to whom their credit ought to be so extremely valuable, should establish a precedent which could easily be followed subsequently, and for such a small thing. If we were endeavouring to say that the whole number of the cases should not be re-heard, and that they should not be dealt with, as I want these appeal cases to be dealt with, I could see that they would have quite a reasonable excuse for saying that they could not do it, but I hold that by meeting us in this case and by taking the appeal cases out from under the Act they are showing that where they can do so with safety they are adhering to the sound principle that they should not touch retrospective legislation, and that they only do it where the amounts involved are so large that it is a necessity for them to do it. But if they do not do that, if they include the whole lot, they certainly give a handle to all their enemies to say that they are adopting what is undoubtedly a practice which, if followed out, would ruin the credit of the State. I think that the Seanad is a body which is peculiarly adapted for considering situations such as this. It is not a question of money. It is a question of both policy and an attempt to uphold the credit of our new Free State Government. I hope that the Government may see their way to reconsider the matter, but if not I think that at least the Seanad should have an opportunity of expressing its opinion as to whether they think such a piece of legislation as this is one which should be allowed to pass unchallenged.
I would suggest that the case of the people for whom Senator Jameson speaks is completely met, inasmuch as the Minister need not apply for the reopening of any case in which he is of opinion that the amount awarded is commensurate with the damage sustained. Now, the arguments advanced by Senator Jameson would be quite logical and very sound if we accepted the principle that the British Government was recognised as the real de facto and de jure Government of Ireland during the last three or four years. But we know that, as far as the last few years were concerned, the overwhelming majority of the people disputed the right of that Government to legislate for or to administer the affairs of this country. We know, too, that the underlying principle of the Criminal Injuries Acts of 1919 and 1920 was not to give compensation, but to inflict punishment upon the community. Judges in the lower Courts and in the Courts of Appeal made themselves the willing instruments of foreign aggression. Whether the cases were defended or allowed to go by default a punitive, vindictive spirit was manifested in every one of the decrees which were awarded. I agree that the cases may be few in which a bona fide defence was put up, but that is no reason, or no sound or just argument, why these cases should be allowed to go, and that injustice should be perpetrated upon the community. Consequently I fail to see why these people, who were so fortunate as to have decrees granted giving amounts out of all proportion to the damage sustained, even where a defence was put up, should be allowed to go scot free, while other cases, which are quite as just or quite as unjust, as the case may be, shall be re-opened under this Bill. I hope the Seanad will not commit itself to this very one-sided and unjust view of the position which Senator Jameson has put forward.
As a matter of information, I would like to know whether injuries that have taken place after July, 1921——
AN CATHAOIRLEACH
We are at present only dealing with Part II. of the Bill, and Part II. was confined to a certain period.
Well, that takes the wind out of Mr. O'Farrell's sails.
Retrospective legislation in reference to money transactions is always a very dangerous thing. Repudiating a liability is a very dangerous thing if a liability has been incurred, and I entirely support what Senator Jameson has said with respect to retrospective legislation. Once you have an Act of Parliament, obey that Act of Parliament while it is in existence. If you do not agree with it change it, but as long as the thing is law we must look to that as being what we have to obey. If we have to obey a law now and if to-morrow morning we are guilty of a serious offence because we have obeyed it, that is really a very hard position to be in. I am certain the President will give this very serious consideration and I think the Seanad will be very wise in suggesting it to him.
Under the Constitution it is provided that money must be recommended by a Message from the Governor-General, and that Message has not contemplated any expenditure for compensation for consequential losses. Some of these claims affected by this amendment may possibly involve the payment of compensation for consequential losses, and as such would be outside the terms of the Message that we received, and it would be outside the authority of the Dáil or the Seanad to pass any Act dealing with it. In these circumstances I do not know how, if the amendment were inserted, the Dáil would be entitled to accept that. I think it does involve a constitutional question of some magnitude. There are, I think, ways for dealing with the matter provided in the Constitution. In the case, I think, of Money Bills, it is mentioned in the Constitution that the Seanad may make recommendations. If the Seanad thought of that this was a matter of very considerable importance, and if recommendations of that sort were made I think they would receive consideration, but it must be borne in mind that the principle of the Bill as it stands is a thing upon which the Government have certainly recorded this conviction more than once. The case that is made here that, after careful and prolonged hearing and the fact that there are very few cases, might possibly have some influence in the matter, but on the general principle of compensation we know that the Government or, even if the Government were not there, the Dáil itself would accept the principle of compensation for consequential losses.
AN CATHAOIRLEACH
I must, as a matter of order, instruct the Seanad that they are not limited to recommendations in this Bill, because it is not certified as a Money Bill. There is nothing in the Constitution to limit their powers to making amendments. Of course it is another matter whether they would be accepted by the Government, or the other House. This not being a Money Bill I must instruct the Seanad that they are not limited to mere recommendation, but are entitiled, if they wish, to make amendments.
It would be the duty of the Speaker of the Dáil to exclude any amendment on a matter which is not provided for in the Message from the Governor-General.
AN CATHAOIRLEACH
That would be for him, but so far as the Seanad is concerned we were distinctly told, by the Minister for Home Affairs, I think, that the Bill would not be certified as a Money Bill. It has not, in fact, been so certified in the form it has come to us.
I have not the slightest doubt that the President definitely recognises the point I am driving at quite well, but I do not think Senator O'Farrell does. I believe that it is possible for the Government or the Government's legal adviser somehow or other to make a little bit of differentiation in those cases that would show the good faith of the Government and prevent them from being accused of this bad principle of legislation which I have been trying to deal with. I have not the slightest doubt that the President sees the point as well as I do. If he would in any way consider the matter I should be quite content, because I think that it is perfectly right. I think we would get nowhere if on an amendment of this description the Seanad got into loggerheads with the Dáil, and advised that legally they could not do what we are asking them to do. It would be an impossible situation. I would ask the President if he or his legal adviser could not find some way by which this blot on the Bill should be removed.
I am not sure if what the President has stated on the constitutional question is correct it would not also prevent the Dáil interfering with this provision of the Bill. It would equally apply to them, because if the Governor-General has allotted money for certain subjects, and you cannot go beyond that, therefore the Dáil cannot interfere. It is going very far, I think.
I think Senator Colonel Moore has not observed the retreat I have left open to myself in this matter. It is open, I think, to the Minister for Finance to exercise a certain discretion with regard to certain matters. The Minister for Finance does not usually in these cases exercise a personal discretion. If there is a feeling in the Seanad and there is a corresponding feeling in the Dáil, there is no reason why that discretion should not be exercised, but to make it mandatory is quite another thing. The Message from the Governor-General did not contemplate any provision whatever for compensation for consequential losses, and as such neither the Seanad nor the Dáil has any authority to appropriate money for a purpose which has not been recommended in the Message from the Governor-General, who, in turn, does not send out any Message except on the advice of the Executive Council.
I think what the President has said is true and clear, and that the position we are in is this, that we have no right to appropriate any money at all by adding it to any Bill, but that if we make an amendment — I am not speaking of its merits or otherwise — then when it reaches the Dáil it will not be possible to get any further unless the Government accepts it, by which they will instruct the Governor-General to make the necessary recommendations. The matter will then be quite in order, and I think it will be quite possible for the Seanad, as a matter of privilege, to insert an amendment of this kind.
AN CATHAOIRLEACH
Of course the difficulty, financial or otherwise, would be got rid of if the proposed new Section were to contain these words —"Where such a decree had been varied or affirmed on appeal, at the hearing of which the local authorities were represented and bona fide opposed the decree. Provided that the Minister for Finance is satisfied that the amount of the award did not include consequential damages.” That would make it watertight, in my opinion.
I should like strongly to support the suggestion which Senator Jameson threw out, and which I think the President did not entirely rule out. I want to appeal to him on broad grounds. We have all heard of a certain unjust Judge who neither regarded God nor man, but because it was to his own interest he was prepared to do certain things. No country can live on itself alone, and the future of this country will very largely depend upon the measure of tolerance which is accorded to it, especially in financial matters, by other countries, and I think the credit of this country would be very seriously interfered with if this Clause is passed in its present form, and that objection would be removed by the adoption of Senator Jameson's amendment. He says the number of cases that are involved are very small. I believe they are not very large, and that a great deal of money is not involved in those cases. I appeal to the Government to consider the matter in that light, and to see whether they should not probably enhance the credit of the country by accepting this amendment.
Amendment carried.
Question: "That Sub-section 9 stand part of the Bill," put and agreed to.
Question: "That Section 2, as amended, stand part of the Bill," put and agreed to.
SECTION 3.
The time for lodging applications for compensation under the Criminal Injuries Acts in respect of an injury to which this Part of this Act applies is hereby extended for three months after the passing of this Act.
I move to delete the words "three months" and to substitute the words "six months" therefor. I do not attach very much importance to the amendment, but it was put down in the original draft of the Bill. It was represented to me that as the Bill was drafted it might not give time to claimants to get in their applications, because it was a question of Quarter Sessions, and it was feared that the Quarter Sessions might be held at too distant a date to comply with the terms of the original Act. I understand that under Section 4 the matter has been remedied, but the question is of some importance, and perhaps some of the Senators might like to speak on it.
I do not think that this amendment will prove on examination to be necessary. It is not a question of when the Quarter Sessions will be held but a question of lodging claims. I think three months should be regarded as ample time. In the ordinary way claims under the Malicious Injuries Acts have to be lodged within three days.
Amendment by leave withdrawn.
Question: "That Section 3 stand part of the Bill," put and agreed to.
SECTION 4.
(1) Every person who has before the passing of this Act applied or who after the passing of this Act applies under the Criminal Injuries Acts for compensation in respect of an injury to which this Part of this Act applies shall serve such notices in such form and on such persons as the Minister for Finance shall prescribe.
(2) Every notice served in compliance with any order or regulation made by the Minister for Finance under the Resolutions passed by Dáil Eireann on the 1st day of November, 1922, shall be deemed to have been served in compliance with this section.
(3) If on the hearing of any application under the Criminal Injuries Acts for compensation in respect of an injury to which this Part of this Act applies the Judge is not satisfied that the provisions of this section have been complied with he shall adjourn the hearing of the application until such provisions have been complied with, and if such provisions are not complied with within one month after the date of the adjournment of the hearing he shall dismiss the application on such terms as to costs as he shall think fit.
(4) The notices to be served under this section shall be in addition to and not in substitution for the notices prescribed by the Criminal Injuries Acts.
I alluded to this Section before, and suggested that the Ministry should try and let people use old forms of applications as far as they could so as to save expense. It was suggested that a lot of new forms would be necessary; a good deal of expense has been gone to already, and it is hard that people should be called upon to incur all this expense again.
AN CATHAOIRLEACH
You are not moving any amendment?
No, I am only making a suggestion.
Question: "That Section 4 stand part of the Bill," put and agreed to.
Question: "That Section 5 stand part of the Bill," put and agreed to.
SECTION 6.
The right to compensation under the Criminal Injuries Acts shall as respects any injury to which this Part of this Act applies be limited to compensation for the actual damage done to the property injured and shall not extend to any compensation for any loss consequential on such actual damage and in particular shall not extend to compensation for the loss of the use of the property injured or for the loss of mere pleasure or amenity.
I move: "To omit the words from ‘be limited' to the end of the Section, and to substitute therefor the words ‘include compensation for the actual damage done and any loss consequential to such actual damage other than consequential loss consisting of the loss of mere pleasure or amenity.'" This raises a small aspect of the question we have just now discussed, and it may be that certain property has been injured by which a man is earning his livelihood. He is unable to continue earning his livelihood. He may not be in a position to earn his livelihood until such time as his claim has been decided and paid to him, and my object is that some compensation should be made to him or it should be possible to consider the making to him of some compensation for loss of his means of livelihood, from the time his claim is made up to the time that compensation is paid him. It seems to me that where a man is held to be entitled to compensation for loss of his property, and where the loss of that property meant to him a serious difficulty in the earning of his livelihood, that he is entitled to claim something for the loss of the use of his property. Let us take the case of the threshing machine owner. If this man's threshing machine is destroyed — he has invested money in it — he may lose the whole season. He may not be able to procure another one. In those circumstances some arrangements should be made whereby his loss in this respect may be considered. I think it is only fair in a case of hardship of that kind that the State should come to the rescue of such a man. I commend this matter to the careful consideration of the Government. I think it is a genuine case, and should be provided for in this Act.
I might say at once that I must oppose this amendment in the strongest way possible, and I must say if this amendment or an amendment of this character were to be passed by the Seanad we would be immediately up against a question of a deadlock on the whole Bill. To this question of consequential damages the Government has given careful consideration, and they feel they cannot give way at all on it. We believe that if compensation for consequential damages were to be admitted that the bill would be doubled or trebled, and we cannot afford that. We feel it is impossible to draw logically any line at which you should stop giving compensation for consequential losses. Until recently no compensation was given for consequential losses. I think, before the High Court of Appeal, the Court for Northern and Southern Ireland in the 1920 Act, went out of existence, it did confirm a judgment giving compensation for consequential loss. I do no not know that that matter was carried to what was then the highest Court of Appeal. In any case compensation for consequential loss up to this has not been given. It has not been the practice. It has only been given recently in a small number of cases. So in refusing compensation for consequential loss we are not introducing a new principle. We are adhering to the practice for years past. There is no reason, if once we decide to give compensation for consequential loss, why that compensation should be given only to the owner of the property injured or destroyed. We have heard the case cited of the owner of the threshing machine which was put out of operation. If the owner could get compensation for consequential loss in that case there is no reason why people should not claim for loss of wages owing to the machine being put out of action. A member of the Dáil some time ago talked about the burning of a factory and the owner being caused considerable consequential loss. The reply given was that if the owner was entitled to compensation for consequential loss there was no reason why the employees of that factory who were thrown out of work should not be given compensation for consequential losses. In fact, there was no reason why the owner of the publichouse at the corner who lost his custom should not get compensation. We might go on even to the Railway Company which was deprived of its freights and could reasonably claim consequential damage. Nearly everybody has suffered serious loss through the damage of other people's property. I do not think that anybody could point out any reason why you should discriminate between those and people who had the good fortune to have property destroyed, as it would be a good fortune in that case. If we were to give compensation for all consequential losses we would arrive at a stage where you would have an Income Tax of ten shillings in the £ and one shilling per lb. duty on sugar and we would have a huge sum of money out of which we all would have the pleasure of drawing something. I do not think that would be a desirable situation. This is a matter on which the Government, if it had been put up to them in the Dáil, would have been prepared to stand or fall. It is a matter on which we cannot give way. It would hold up this Bill and I do not know what solution we would find of the difficulty that would arise. It is the one point on which we have our mind firmly made up. We feel that the burden of giving compensation on the lines adopted up to recently is as heavy as the State can bear, and we would not be doing our duty in the particular position in which we are if we gave our assent to the inclusion of consequential losses in this Bill.
I hope the Seanad so far as possible will support the Government in regard to this question. The Minister has made the position quite clear, and I think he has exhausted practically all the arguments in regard to it. With the exception of a few persons who have gained as a result of the fighting, I doubt if there is anyone who has not suffered consequential losses. I hope, if possible, that the Seanad will make it quite clear that in this matter, at any rate, it supports the decision of the Government.
The Minister has put it very clearly in regard to consequential losses. Compulsory tillage has been stopped and I have had my place burned. Supposing I had my threshing machine in my hall it would have been burned too, but it happened to be outside. I said to the man from whom I bought it, "Will you buy it"? He said "No, but it is a pity it was not in your house, because then you would most likely have got something for it, as you will probably get for your furniture." He was quite right. I think I should have had a right to obtain compensation if I had put my threshing machine in my hall.
I do not want to press the amendment if it misinterprets the feeling of the Seanad in the matter. I could not imagine that any amendment of this kind could have the terrible effects which the Minister has stated. Probably in that case we would have to compensate the Chancellor of the Exchequer for loss of Income Tax.
AN CATHAOIRLEACH
Do you withdraw the Amendment?
Yes, certainly.
Amendment by leave withdrawn.
I beg to move the following amendment to sub-section 2. To insert a new sub-section (2) as follows:—
"(2) Compensation shall be awarded where the owner of the damaged property has insured against consequential losses not less than twelve months before the date of the injury (or destruction), but such compensation shall apply only to such losses as are covered by the insurance contract."
I wish to have this considered because consequential loss is a rather misleading term in many cases. It covers very many things, but there are some things arising out of destruction which are continuing and inevitable losses such as ground rents in many cases, and Debenture interests. If you have an agreement with a commercial concern that covers a number of years you must carry out that contract. This is a loss properly incurred under a contract of insurance which became payable if the property was destroyed by an ordinary fire. I think where a man has taken the precaution in the interest of the continuity of his business or of safeguarding certain charges that would accrue, to insure twelve months or some years before the damage was done that he is entitled to get consideration in respect of this when the damage or destruction has been done by malicious means. I was rather in doubt whether I should move this in view of the rather aggressive manner in which the Minister for Local Government said we would come to a deadlock, but I think if we have to face it we ought to face it at once. I am prepared to put this amendment to a division.
If a man insures will he get the money from the Insurance Company?
No.
Why?
Because he has not insured for the damage arising. If the contract covers that, my amendment would not arise.
What are the words as to the insurance? I understood that it was insurance which covered this kind of loss.
No. An insurance covering certain standing charges and other charges which would be payable if the building were destroyed by accidental fire or by other accidental means.
It differs from the normal insurance?
There is the insurance against loss or damage to the structure itself. That is the ordinary insurance contract. Some people go further and insure standing charges, loss of profit and debenture interest in the event of loss by fire. This is to ensure that compensation be granted in respect of such losses if covered by insurance by the proprietors, and if such insurance had been effected at least twelve months before this malicious destruction. This is to ensure that such a person should get compensation for the amount he would get under the insurance policy.
I do not quite understand that.
AN CATHAOIRLEACH
What Senator Dowdall proposes is that in all cases where an insured person has, in addition to insuring the property, insured it against consequential losses, and has taken out that policy at least twelve months before the malicious injury complained of, that in such a case as that compensation shall apply to the losses covered by the insurance contract.
Does not that appear to put on the Government the task of being insurers, and that they have to select the people who are going to default in insurance? Surely if a man is insured with a respectable Insurance Company he will get paid?
Not for malicious injury.
I beg your pardon. For any burning in the case of loss of profits.
AN CATHAOIRLEACH
That is not quite accurate. It will depend entirely on the terms of the policy. The policies to which Senator Dowdall is referring are policies which cover not only damage to the property, but also consequential loss resulting from that damage, but which contain a provision exempting the Insurance Company in the event of the injury being the result of a malicious act or a combination of an unlawful sort.
What has turned up in a great many cases to my knowledge is this: insurances have been effected to a very large extent at extraordinary high premiums in this country. Insurance Companies have pocketed the premiums and they have not paid the compensation. The people in many cases have assisted the Insurance Companies by not demanding the money, and trying to extract the money from the Government.
AN CATHAOIRLEACH
That really does not touch the point of the amendment as I understand it. Perhaps the Senator will tell me if I am right. Am I right in thinking, Senator Dowdall, that your amendment is intended to cover only cases in which the applicant is debarred from recovering under the terms of his policy by reason of the fact that the injury is malicious?
Quite so. In fact I understood from what you said before that it was quite clear, and that it would be clear even to the meanest intelligence.
I think a misunderstanding has arisen from what Senator Fitzgerald has said that these Companies refuse to pay claims on the grounds that a clause in their policy exempted them from paying where the place was set on fire maliciously. A great many people took out their policies where the underwriters were satisfied to receive higher premium and to stand the racket, even where it was malicious. I think what has been referred to by Senator Fitzgerald is this—and I think that steps ought to be taken by someone or by the Government, to find out whether it is the case—that people receive these high premiums and hold the money, and are coming at the Government to make it good. That may not touch this particular amendment, but it is a very important fact which should not be lost sight of.
AN CATHAOIRLEACH
This amendment, in order to make it beyond all question, should contain, I think, some words like this: "has insured against consequential losses other than those resulting from malicious injury." The amendment as it now stands would cover an insurance whether that entitled the applicant to recover in the case of malicious injury or not.
Very good; perhaps it is as well to put that in to make it clear. I thought it was covered by the last sentence.
There might be something to be said for the amendment if the objection to the payment of compensation for consequential losses was merely the difficulty of ascertaining that there had been real losses and of ascertaining the amount of the real loss. Of course, that is one of the objections to dealing with consequential losses at all, because it would produce an enormous crop of perjury and fraud.
If that were the main objection to giving compensation for consequential losses this would be a clause that might commend itself, as it would act as a sort of proof that there have been consequential losses. That is not the main objection to giving the compensation for consequential losses at all. It is one of the minor objections. There seems to me to be no good reason for distinguishing in this Bill between people who have taken the precaution to insure and people who have not. The losses may be equal in both cases, and they may be equally genuine losses. I think the Seanad ought not to accept the amendment proposed by Senator Dowdall. It would simply give a specially privileged position to a small body of people who have suffered loss by the destruction that has gone on.
Amendment put and negatived.
I move the following amendment:—Section 6.—To add at the end of the section the words "The amount of compensation awarded shall bear interest at the rate of 5 per cent. per annum from the date of the injury (which shall be stated on the decree) until payment."
As regards the Government's contention about consequential damage, speaking for myself I have no hesitation whatever in accepting it as a fact. There is nobody in this country who can judge as well as the Government can what the country is able to pay, and what it is not able to pay. When they tell us, as the Minister has told us, that it is totally impossible to go into the question of consequential damages, as it would lay a burden on the State which it could not pay, I do not think we have any right to quarrel with that decision. I think anyhow any criticism of mine will be subject to my acceptance of that as a principle. Now, this amendment might be held to break straight through that, but I think not, as the real cause why extra loss has been inflicted on a great many people who have claims, has been the delay which has occurred in arriving at a decision on this matter. The Government have admitted it freely, and have given quite justifiable reasons why it has taken place. By making no allowance whatever for the delay, and giving the unfortunate individual who has to put up with the consequences of that delay nothing to repay him, they make the sufferer bear the whole burden of it. That seems to me hardly fair. The cost of delay is not like the consequential damage with which Clause 6 deals. It is a loss that has arisen from the state of affairs in the country which nobody could have avoided, but it involves none of the dangerous consequences that the Minister has pointed out. It is clearly defined, and everyone can see the amount of it, and it meets a most peculiar need. Undoubtedly the people who have been burned out have between the date when the injury happened and the time when they will be paid many expenses to bear. If they get nothing but the award—which only considers the state of affairs at the time of the injury— they will be out of pocket an amount of money which is not a consequential damage, but is due entirely to the delay caused in getting these awards. The Act of 1920 is being repealed. Under that Act the award bore interest from the date of the award. The case was tried, and the award followed fairly soon. In the present circumstances we have a very great lapse of time indeed, and every possibility of the injured persons getting any return or payment at all is removed by this Clause 6. I do not think it is fair to people who have suffered from a delay with which they had nothing to do, and which the Government admit liability for. I do think this class of persons should receive some consideration, and the Government can easily, without breaking through their rules as to consequential losses not being recognised, meet the case. I believe my amendment would fulfil that condition. I hope, therefore, the Minister will seriously consider it, and see if he could not give some attention to the case of sufferers through the delay. I do not propose to force a decision, as I do not think it is a matter we should ask for votes on, but I ask the Minister seriously to consider whether the Government could not give some consideration as to payment to meet the cases where there was delay in giving the awards.
This question of delay would only be used as an argument, when thinking of the Acts of 1919 and 1920, which were very much objected to here and caused an organised resistance to be offered to their provisions. Previous to these particular Acts no interest was paid, and the delay was very considerable. Under the old Acts dealing with compensation for malicious injuries, if a person got an award at the Quarter Sessions in April, when the rates for the county were already struck, nothing happened until the following March, when the rate to meet that award was struck. That rate was not collected, perhaps, in its entirety for twelve months, so that under the old system it might easily happen, and frequently did happen, that a person who got an award under the Malicious Injuries Acts was two years before receiving payment. Although the delay has been very considerable owing to the very large number of cases involved, taking it all round it is probably not very much greater than it was under the old Acts prior to 1919 and 1920. In proposing to give no rate of interest we are adhering to the practice observed prior to the acute phases of the struggle that went on before the Truce. I think there might be cases where you could see a fairly good case being put, but if we were to put in a provision such as this we would be giving in some cases a very distinct advantage. In certain cases it might be destroyed property out of which no income was given to people, and to give them 5 per cent. interest on the award would simply mean that they would be getting an income for the loss of some amenity or some sentimental possession of very little material value. That would be a case in which income would be given to people who, while they should be compensated for the actual loss of property destroyed, ought not to be given a payment such as would be given by the 5 per cent. I do not think this is a matter which it is likely we could agree with the Senator upon.
I think what the Minister has just said about the Malicious Injuries Acts is scarcely applicable in this case, because in the old cases which he mentioned it was comparatively rare that a man was deprived of his home. It generally concerned some smaller things outside his home. As to the delay in the old cases the Minister has very truly said that it was anything up to the best part of a year, but, in the present cases, the delay may very well and probably, in many instances, will be considerably longer, and therefore, I think, there is rather an additional weight added to this suggestion. I do not urge that it should be as much as 5 per cent., but, after all, is not it really practically a case where the Government admits liability for a debt to the individual and, as in the case of all debts, a £100 in a year's time is worth less than £100 to-day, so that if I am right in the premise that it is a case of a debt by the Government or the community to the individual it seems only equitable that if the debt is, for one reason or another, not able to be paid for a period of years, that it should bear some interest, I will not say 5 per cent.
The Minister was not wholly unsympathetic in his reply, and he foreshadowed cases where undoubtedly there would be certain claims for the allowance of interest. Personally, I agree with him that where businesses, property involving big capital sums which may or may not have been productive, have been destroyed it might be stretching the principle of interest too far, but, as he knows, there are cases of quite small people who are, perhaps, paying for furniture on the hire-purchase system and have lost all their furniture and have to go on paying, or people who have had to borrow money, perhaps, to buy their houses, and the charge on that money continues although the house has been destroyed. Could not the Government possibly consider whether interest should not be allowed in a limited number of cases were the compensation is below a certain amount, and where it is only confined to dwelling-houses and personal effects? I think there really is a strong case for these people who have suffered very severely indeed, and the acceptance of an amendment of that kind would go a long way to relieve these cases.
It is much better to leave a case like this in the hands of the Government once it has been stated. I think what has been said has shown the real need that ought to be dealt with, and I do not think that there is anything in the Act that will prevent them dealing with this when they come to it.
Amendment, by leave, withdrawn.
I propose "To add a new Sub-section (2), as follows:—‘(2) The foregoing provisions of this section shall not apply to any case which has been re-opened under Section 2 of this Act, on the application of the Minister.'" This is quite a different matter from what we have been discussing as to the rights of individuals. It is again a question of re-opening cases, and the legal aspects of the question when that is done. What this amendment seeks to secure is that the re-opened cases shall be tried under the same law under which they were originally tried. What is sought by re-opening these cases, I take it, is to try the justice of them, and that the Courts are not to be asked to consider the question of the validity of the law under which they were tried. What is really happening is that the Bill is proposing the re-trial of the cases, and then it is altering the law under which they are being re-tried. If we adopt that practice at all, there is no end to cases where any decisions of any Courts may be upset by being brought before Parliament and the re-hearing insisted on, and the law altered so that the Judges who come to deal with them finally could not deal with them from the same point of view as when they were originally tried, but would have to act in accordance with a perfectly new law. The whole matter seems to me to bring up that principle of dealing backwards—retrogressive legislation again—and I should certainly have thought that the Government could have secured the whole ends of Section 6 and done away with consequential losses being recompensed for, and thus secure their object without breaking through what I have always looked on as an ordinary principle of law. I do not think I have anything more to say on the subject. It is exactly what I said on the other—that in all these cases, as well as in the few which have been appealed against, the Government are adopting the principle of retrogressive legislation, bringing up cases for rehearing, altering the law under which they are to be re-tried before they are re-heard, and establishing a precedent which is an extremely dangerous one, and more than usually dangerous for a new State just established as we are.
The Seanad has been referred to as a cooling chamber in another place. Well, the Constitution of the Seanad, and the reasons underlying the appointment of those who comprise the Seanad to-day were principally that those who compose the Seanad have some record in the past. They stood out more prominently than the average member of the community, either for wisdom or for some other qualification, such as marked business attainments. There is the matter of the wisdom that comes with years; none of us are very young people here, and to that extent we are different from the members who comprise the Dáil, and I think if there is one function more than another that a body of this sort has, it is that we hold to what I may term ancient usages in the matter of administration, and that we hold to fundamental principles. The present position has been stated. Senator Jameson has stated that we are departing from the fundamental principle, that is, that a man, an applicant or a plaintiff who has a grievance, who suffers a loss, if he carries that grievance successfully through the law courts, and gets a decree, and in the opinion of the judges who decide his case on appeal he is entitled to compensation to a certain amount, it is a very dangerous thing later on, owing to change of Government, to financial stress of the Government, or otherwise, that they should re-open a case of that sort, the conclusion of which was reached under the law as it existed at the time. We know, those of us who were intimate with County Council and District Council matters, and who have watched the awards in these cases that they were given out of all proportion to the damage sustained, thereby confirming the view that the judges must have been either fools, or that they were suborned, and that they acted in a venial sense in making these awards. Now, we are not, and the Government are not, proposing to introduce any vile or immoral principle of that sort. They could not stand behind it. The Government are only trying to get back to the law and the proper administration of the law. We may look on that period as a period in which everything was abnormal. Things were done under a certain stress and strain that would not have been in order in normal times. We are getting back to where we were, and in that sense I do not think that the Seanad should support the amendment.
I think I might say that the members of the Government are not unaware of the dangers of retrospective legislation, and they are not inclined to indulge in it more than may be necessary in view of the very special circumstances in which we find ourselves. I do not think that this particular clause bears in itself so much of the nature of retrospective legislation as might be thought, because these particular awards were not given against the State, but against the local authorities. The State is coming to the relief of the local authorities, which because of the enormous damage done and the enormous awards given could not possibly liquidate the damages that have been given against them. If these awards had been given against the State, and if the State proposed to have a re-hearing so that it might be relieved of part of the damages against it, you could truly say that that was retrospective legislation, but of course even that would not entirely condemn it. While it was generally agreed that retrospective legislation is undesirable and unsettling and productive of many undesirable consequences, still it is not entirely unknown. Even in Great Britain we have seen instances of retrospective legislation. What happens in these cases is that the local authorities are altogether unable to pay the awards given against them. The State comes in to pay something; it comes to the relief of the local authorities and to the relief of the persons who have suffered injuries. The State says that it is prepared to make payments if the awards are given on certain specified lines. It is not proposed, generally speaking, to give any compensation for consequential damages; it is not proposed where new awards are got after the passing of this Act that anything shall be given for consequential damages. It is the intention and desire of the Government that all payments made by the State shall be made exactly on the same lines and that everyone who is paid by the State shall be treated in the same way, and it is for that reason we would not accept the amendment giving compensation for consequential damages to people who got decrees against the local authorities, and not to people who have not yet got them but who will get them against the State direct. We are taking the same liabilities in respect of all cases of damages. If the amendment were accepted we would not be taking the same liability— we would be taking a greater liability in certain cases than in others. The intention of this particular clause which enables re-opening to take place was, first, to reduce the amounts where exhorbitant amounts had been given owing to the cases not being contested; secondly, to enable reinstatement or partial reinstatement conditions to be inserted if desirable, and thirdly, to exclude compensation for consequential losses so that all payments made by the State under this Act would be exactly on the same lines. There is something in the nature of retrospective legislation in it which cannot be described as purely retrospective legislation, for it is a question of the State assuming certain liability that it has not had heretofore. While I am quite at one with Senator Jameson with regard to this matter of retrospective legislation, I think he will recognise that we are in difficult times and that we are at a period of disturbance which is not merely physical, but that there is also a sort of psychological and legislative disturbance. Matters have to be dealt with in a way which none of us would think of dealing with them if we had reached calm waters and were proceeding in a normal way.
I do not think it is worth while putting the amendment. From some of the remarks made by the Minister, I think he misunderstood the purpose of my amendment; I was not in any way protesting against re-hearing of cases or their being tried by different judges. All I was trying to secure was that the law under which these Judges acted in the re-hearing would be the same law which existed as when the cases were originally tried. I have no intention of quarrelling with the Government about the re-hearing of general cases. The previous amendment I spoke on dealt with cases that I think they should not under any circumstances deal with as they are dealing. I cannot say that I should insist upon in any shape or form on a special class of claimants being established, and therefore I take leave to withdraw the amendment.
Amendment by leave withdrawn.
Question: "That Section 7 stand part of the Bill," put and agreed to.
SECTION 8.
(1) No Railway Company shall be entitled to any compensation under the Criminal Injuries Acts or this Act in respect of any injury to which this Part of this Act applies committed against any property belonging to such Railway Company.
(2) The Minister for Finance may enter into agreements with any Railway Company or Companies for the payment out of moneys to be provided by the Oireachtas, to such Company or Companies of compensation in respect of any injury to which this Part of this Act applies, or, in lieu of such compensation for the re-instatement out of moneys aforesaid of the property damaged by such injury, and may in any such agreement provide for the ascertainment of the amount of such compensation or the nature of such re-instatement (as the case may be) and the terms and conditions on which the same is to be paid or done.
(3) No action shall lie against any Railway Company for or in respect of the loss of or damage to any property entrusted to such Railway Company for carriage or storage in any case in which such loss or damage was caused by —
(a) An injury to which this Part of this Act applies, or
(b) a wrongful act for which an application for compensation could be lodged under this Part of this Act.
Question: That sub-section 1 stand part of the Bill," put and agreed to.
I desire to move the following amendment to sub-section 2.—
To insert after the sub-section, the words: "Every agreement entered into by the Minister for Finance under this Section shall be laid before each House of the Oireachtas as soon as may be after the agreement is entered into; and no such agreement shall be valid or binding unless and until each House shall, within twenty-one days on which the House has sat after the agreement is laid before it, pass a Resolution approving the agreement."
It will be seen that the effect of this amendment is to ensure that any agreement come to under this Section shall be laid on the tables of both Houses, and shall not become operative unless and until approved by Resolution within 21 days. Needless to say this does not mean that there is any danger of a discussion developing on the damage claimed in respect of every bridge destroyed or every signal cabin burned during the whole period covered by the Bill. There will have to be general agreement for compensation according to certain guiding principles and on a definite basis. The Minister for Finance on the Second Reading indicated that some such agreement had already been arrived at or was about to be arrived at. It was not quite clear whether this agreement covered the whole of the railways for the whole time, or whether it referred to one particular railway and for part of the time. I think it is not unreasonable to request that any such agreement shall be laid on the table and that the Oireachtas shall have some voice in determining the principle and basis on which millions of money may be paid out in compensation. It was suggested in the Second Reading that I alleged that three million pounds had already been paid to the railway companies. Needless to say, I stated nothing so manifestly absurd. What I said was that the Bill as it stands enables the Government to pay out compensation to the extent of millions of pounds without the Oireachtas having any voice or control whatsoever. Not only is there no control by the Courts or Parliament, but, so far as I am aware, no member of either House outside the Government has the least idea as to the basis upon which this money is to be paid out. It seems to me to be a case of shut your eyes, open your mouth, and swallow what the Government gives you. This may be quite a wise course to adopt on certain occasions, and particularly when we are living in what are officially termed abnormal times, but it is not Parliamentary government. The Minister for Finance promised to circulate the terms of the agreement to the members of the other House, but, so far as I am aware, this has not been done. I do not know if it is the intention to take the members of the Seanad into his confidence and disclose to them the secret, but it is evident that if we do hear anything about it, it will be after the Bill has passed through the Seanad. It is of very little practical use being told that a certain thing is being done in a certain way, but you must not discuss or alter it, or undo what has been done or about to be done. To me it is rather a puzzle to understand the need of secrecy in this matter. What do the Government fear? It is hardly a case of doing good by stealth and blushing to find it fame. We are told that the Government and the railways are satisfied with the settlement. If that is the case, it may be quite possible that the taxpayers may be satisfied, but as they have the honour to pay the piper they may have a very natural desire to know the name of the tune. This is a very important matter. The damage to railways and railway property has been very extensive. I understand that claims for compensation have been lodged amounting in the aggregate to some millions of pounds sterling. To make good the damage will involve very considerable sums both comparatively and actually. Yet it is proposed that this vast sum shall be paid out and disbursed according to principles and on a basis on which neither House has any voice whatever. I think that is a very dangerous precedent to adopt, no matter what the pretext is or how plausible it may be. It may, perhaps be that the Government would fear that the brilliancy of the scheme would dazzle the eyes of mortals outside the Cabinet circle. That may be; but as the taxpayers have to provide the material without which the brilliancy would fade away from the scheme. I think their curiosity should be satisfied even at the risk of damage to their eyesight.
The amendment as brought forward by Senator O'Farrell states that every agreement entered into by the Minister for Finance under this section shall be laid before the House. If he would confine it to the general agreement which the Government has made or is about to make with the railway companies I can understand his wish that it should be laid on the table of the House, but if he means that in the case of every bridge and every waggon which has been destroyed in connection with which there will be a separate estimate, that each and everyone of these agreements shall be laid on the table for discussion I do not see under these conditions when the railways would ever be repaired. It may be that he only means the general agreement. That, I think, is quite reasonable. If a general agreement is entered into with the railway companies it is a fair proposal that it should be laid before the Seanad, but if each individual, separate, agreement which will form the part of a general agreement is to be laid on the table, I think it is quite unnecessary, and would lead to endless delay.
I think an amendment identical with this was moved elsewhere, and was defeated there chiefly because it was felt that this was a matter in which the Government and the railway companies would arrive at a certain result after negotiations, and that if it had to be passed or approved of by each House before it became valid or binding, difficulties might arise—that the two Houses, for instance, might take entirely different views about it. One House might want it changed in one way and the other House might want it changed in another way, and there would be no way out of the difficulty. It was felt that it was a matter that could quite well be met by having the agreement made public after it had been arrived at. That was agreed to by the President, and it would have to come before the Dáil for necessary appropriation. It would be impossible to give effect to it without the money being voted in the ordinary way by the Dáil. There is no possibility of the Government going into the dark with a number of railway directors, and arriving at an agreement with which the Dáil would have nothing to say. It is a matter which normally would not come much before the Seanad as in this particular case it is a matter not of imposing any duties on the railway companies, but simply of agreeing to the expenditure of money. It is a matter which principally concerns the Dáil, and, I think, it will come in no effective way before this Seanad, because a Money Bill only remains before it 21 days and the Seanad has an opportunity of making recommendations, but the Dáil, which is charged with money business, will have an opportunity of considering the whole business. It was felt that that would meet the case, and in its present form either House might hold it up entirely. The amendment, therefore, would not be desirable and might lead to great confusion and difficulties.
I should like to know from the Minister if he can say whether an Agreement has been reached between the Government and the Railway Companies. He states the terms of that Agreement will be brought before the Dáil, but seems to infer that that part of the compensation is going to be certified as a Money Bill. To a mere layman it seems extraordinary reasoning that compensation paid out to one section of the community or one trade or industry should be such that this House will have no voice in it at all, although it has a vote in determining the nature and principle under which compensation can be paid to other sections of the community. I suppose this is a point of law, but to me it is very puzzling, and I have yet to be convinced of reasons why the Agreement with the Railway Companies if it required legislation at all should not have been embodied in this Bill. Alternatively it should have been left out of the Bill altogether, and a special Bill introduced.
I do not suppose I need discuss the constitutional question which arises incidentally, but a matter of this kind, to my mind, requires no legislation whatever beyond an Appropriation Act. It is put in here for the purpose of not dealing with it in that very summary and informal way, but it is a matter of the pure expenditure of money. There is no question of taking away people's rights, of setting up a Court, of re-hearing cases, or excluding consequential damages, except as far as Section 1 is concerned. The agreement involved practical expenditure of money, and does not differ from any other contract that might be entered into for the expenditure of public money.
AN CATHAOIRLEACH
Having regard to the introduction of this matter into this Bill I am of opinion that this amendment of Senator O'Farrell is quite in order, and that no question of the Money Bill or Appropriation Bill disentitles a member of the Seanad from moving an amendment in a Bill of this character not certified as a Money Bill.
I did not suggest that.
AN CATHAOIRLEACH
I know, but these things seem to get misunderstood and perverted. I only want to keep my position and that of the Seanad quite clear with regard to this very difficult and highly constitutional matter.
In view of the fact that the Minister guarantees that the matter will be brought before the Dáil at all events I would withdraw the amendment, because I realise it is not a satisfactory way of dealing with the matter, but it is the only way which suggested itself to deal with the difficult situation.
Amendment, by leave, withdrawn.
SECTION 9.
(1). When assessing the amount of compensation to be awarded to any applicant for compensation under the Criminal Injuries Acts in respect of any injury to which this part of this Act applies, the judge shall take into consideration the steps taken or which might reasonably have been taken by the owner of the property, his servants or agents, either before or at the time of the committal of the injury,
(a) to protect the property from any anticipated injury or from any injury which ought to or might reasonably have been anticipated; or
(b) to avoid exposing the property to the risk of injury; or
(c) to resist, prevent or defeat the committal of the injury; and the judge shall in assessing the amount of such compensation have regard to the extent to which the injury was, in the opinion of the judge, on the evidence before him caused, facilitated or affected by the failure to take such steps as aforesaid or by the insufficiency of the steps actually taken.
(2). An applicant for compensation under the Criminal Injuries Acts in respect of an injury to which this part of this Act applies shall be wholly disentitled to any compensation under those Acts if in the opinion of the judge the applicant was at or about the time the injury was committed,
(a) associated or combined or in league with the person or persons by whom the injury was committed for the committal of that injury or for the committal of other similar injuries to property, or
(b) a member or helper of or active sympathiser with any organisation engaged in armed opposition to the late Provisional Government of Ireland or the Government of Saorstát Eireann.
I move to delete the whole of Sub-section 1. As far as I can see the effect of Sub-section 1 of Section 9 would be to make it necessary for anybody who has suffered injuries to prove that he had done everything humanly possible to prevent that injury being perpetrated. I think that is not a fair position to place a man in. I do not know what a householder under existing conditions can do. Being a law-abiding and respectable citizen he has properly given up all arms long ago to the Government. If it is to be said that because a man put up a fight he is better entitled to compensation than a man who did not put up a fight it seems to me to institute a form of justice which is new. It has never been held that a hero was entitled to be better treated in matters of financial adjustment than a coward, and if a man was the greatest hero in the world, and had made every arrangement possible for the protection of his house, he might be let down by some of its inhabitants. His servant might, in contravention of his orders, open the back door. It seems unfair to me that a man should be placed in the position of being possibly penalised by the action of a servant over which he could not by any possibility be held responsible. I do not see what good the sub-section does in the Bill. I suppose we shall be told it is to provide against collusion between people against a man deliberately encouraging the destruction of his property. The cases in which such a thing is likely to happen are so few that I venture to hope the Minister in charge of the Bill will agree it is better to omit Sub-section 1 of the Bill altogether.
Perhaps the Minister will tell us whether acceptance of membership of the Seanad is to be taken as taking proper steps to protect your property or not?
I would support this amendment in the interests of the poor Judge who has got to try and interpret this exceedingly complex phraseology. He has to decide whether the reasonable steps were taken to protect, and he has to have regard "to the extent to which the injury was, in the opinion of the Judge, on the evidence before him, caused, facilitated, or affected by the failure to take such steps or by the insufficiency of the steps actually taken." Really, that is putting the Judge in an almost impossible position, to interpret all these human motives and psychological complexities that may have arisen owing to the effort or lack of effort to defend the property. It will lead to vexatious litigation, and has no useful purpose as far as one can see.
I think we might consider the case the other day of Lord Desart, whose house was burned down, but some of whose furniture was saved. He tried to remove that furniture, but on the road it was taken and destroyed. If he had left it, and it had been destroyed where he left it, he would have been accused of being an accessory because he did not take it away. But he tried to take it away and it was destroyed, and therefore he was bound to get no recompense because he made a mistake in taking it away. A good many of us have been in a situation where it is really very difficult to know what is the wise thing to do. I think we are not putting the case too strongly to the Minister to ask him to consider this. Not only is our own conduct a matter of serious consideration, but if one of our servants happened to open the door because he thought he recognised a voice on the other side, we might be held accountable for the whole thing. I do not think that this sub-section is wanted by the Government, because I noticed that anything that was said in the Dáil was about Sub-section 2, which was dwelt upon as the one that was essential for them. That is to say, that accessories to the damage who themselves happened to suffer damage were not to be taken into consideration. One can see the point in that, but I cannot see how Sub-section 1, which deals with a whole lot of other people who have suffered loss, is of much use to the Government.
I think this Sub-section would be more suitable to the Middle Ages, when we could have armed our castles and put garrisons into them and defended them against all comers. In the present circumstances we have all been in a good deal of doubt as to whether we ought to arm people to defend houses or leave them without protection, or ask the Government to do it. The Government would have a great difficulty in sending troops to defend each of these houses. Some of us might have done it, but it would be difficult and dangerous, and probably the Government would object to our having firearms to defend ourselves. In these circumstances this sub-section does not seem to be reasonable.
This Section is described as "Conduct of applicant.""Courage of applicant" would, I believe, be a better description. Personally I have been turned out of my house at the point of the revolver, I have had my gardener shot dead, I have had my motor car commandeered also at the point of the revolver. When I come to the Judge to apply for compensation, my courage is going to be placed in the balance. I have little or none, I imagine. Still, there are the facts, and I do not think it is fair or reasonable that people who have been in the same position as I have been should have their courage weighed in the balance and assessed at a money value.
The most peculiar thing about this is, that if you take proper steps to defend your property your life may be taken, and if you lost your life you would get no compensation. The Government cannot have it both ways. That strikes me as a curious position.
I think I need hardly reply to Senator Farren's chestnut about personal injury. This is not a Section which I would imagine is vital to the Bill, but I do not think it is entirely without value. It might be for the Seanad to consider whether it could not be altered rather than struck out altogether. There were two or three sorts of cases in mind when it was being drafted. There were the cases of people who could have had guards and who refused to have guards and whose houses were burned. There were people who would have had them but could not get them, but when people who could have them refused them there would seem to be some reason why a Judge should take that into consideration when considering whether compensation should be given or not. It does not say even in such a case that compensation will not be given. It simply says that the Judge may take it into consideration. Then there were other cases. I know of a case myself where a man's house down the country was entered by Irregulars who made it a sort of headquarters. He left the house and went to London and never said a word to anyone about it. The Irregulars were living very comfortably there and operating from that house for a considerable time before our authorities were aware that the owner was not living there himself. That was a case in which the man might have said that Irregulars had come and turned him out of his house, and even if they had threatened him he might at least have reported the fact. That case was thought of. Then there were cases where it was reported there were people who had old crocks of motor cars and who put them in the way of being taken thinking they would do better under the Act. I do not know whether you could prove anything in a court for the Judge's consideration in these cases. There were one or two cases of people who when they were asked for keys gave them up without making any attempt at evasion. There were cases where it was thought that they did not do even the minimum which might be expected of anybody. However, if the Seanad were to strike out the Sub-section the Bill would not be destroyed. If the Seanad leave it in I would undertake that we would reconsider it to see whether it could be improved in any way.
I wish to mention, having regard to what the Minister has said as to providing guards, that I know a case where a man who is at present immune from attack by the Irregulars was told that if a guard were provided he will be attacked.
AN CATHAOIRLEACH
Possibly the whole object of the Government might be secured by a single sentence which would entitle the Judge to take into account whether the applicant had connived at or procured commission of the injury.
I would not like to accept anything definitely, but if the Senator gave me an opportunity of reconsidering the clause I would undertake to do so.
The EARL OF WICKLOW
I beg to withdraw the amendment.
Amendment, by leave, withdrawn.
Question "That Section 9 stand part of the Bill," put and agreed to.
SECTION 10.
(1) If on the hearing of an application to which this section applies, the Judge is of opinion that the applicant is entitled to compensation, it shall be lawful for the Judge, subject to and in accordance with the provisions of this section, to attach to his decree one or other of the conditions following, that is to say:—
(i) A condition (in this section called a "full reinstatement condition") that the compensation shall be applied either in or towards erecting a new building on the site of the injured building, or in or towards the repairing of the injured building, but so that the new or the repaired building shall be either of the same character as the injured building or of a character suitable to the neighbourhood and not less valuable than the injured building;
(ii) A condition (in this section called a "partial reinstatement condition") that the compensation shall be applied in or towards the erection on or near the site of the injured building of another building (in this section called a "substituted building") of a nature named by the applicant and specified in the decree and differing from the nature of the injured building.
(2) The Judge shall attach a full reinstatement condition to his decree in every case in which the injured building was
(a) situate in Upper O'Connell Street, in the City of Dublin, with a frontage to that street, or
(b) situate elsewhere, and was before the injury ordinarily used for the purpose of any trade or business.
(3) The Judge may, if he thinks it reasonable in the circumstances of the case so to do, attach a full reinstatement condition to his decree in any case in which either.
(a) the Judge is of opinion that the injury to the building has materially prejudiced the economic welfare of the district, or
(b) though the injury to the building has not materially prejudiced the economic welfare of the district, the applicant shows reasonable cause why a full reinstatement condition should be attached to the decree.
In considering whether it is reasonable to attach such condition as aforesaid to his decree, the Judge shall have regard to the use made of the building immediately before the injury, and shall not have regard to any proposal for a different future use of the building if reinstated.
(4) The Judge shall not attach a full reinstatement condition to his decree in any case in which he is of opinion that the injury to the building has not materially prejudiced the economic welfare of the district and the applicant does not show reasonable cause why a full reinstatement condition should be attached to the decree.
(5) The Judge, if he thinks it right to do so, may in any case (except a case in which he is by this section required to attach a full reinstatement condition to his decree) attach a partial reinstatement condition of his decree, provided he is satisfied that the substituted building named by the applicant would not be unsuited to the neighbourhood, and that there would not be an unreasonable discrepancy between the cost of erecting the substituted building and the market value thereof when completed.
(6) In every case in which a full reinstatement condition is attached to the decree the amount of the compensation shall not exceed the amount of the cost of the full reinstatement less the amount, if any, by which, in the opinion of the Judge, the price of the premises as reinstated would by reason of the reinstatement, exceed the price of the premises in the condition in which they were immediately before the injury or destruction, the price in each case being estimated according to normal market conditions as at the date of the award and on the basis of a sale of the fee-simple interest in the premises.
(7) The compensation in any case in which no reinstatement condition is attached to the decree shall not exceed the amount by which the market value of the buildings was reduced by the injury.
(8) In every case in which a partial reinstatement condition is attached to the decree the compensation shall be the probable cost of the erection of the substituted building with such further sum (if any) as the Judge shall consider reasonable, having regard to the value of the injured building and the other circumstances of the case, but the total amount of the compensation shall be so measured that the estimated market value of the substituted building, together with the further sum aforesaid (if any), shall not exceed the amount by which the market value of the injured building was reduced by the injury.
Where the compensation awarded under this sub-section includes any such further sum as aforesaid beyond the probable cost of the erection of the substituted building the partial reinstatement condition shall attach only to so much of the compensation as represents such probable cost.
(9) Notwithstanding anything in the foregoing provisions of this section, in any case in which the injured building was, at or about the time of the injury, ordinarily maintained as a residence for the applicant or his family, and the nature of the building was such that, though the building was not without value it had no market value or it would be impracticable or very difficult to estimate the market value, the Judge, whether he attaches or does not attach a reinstatement condition to his decree, may grant such compensation as he considers reasonable in the circumstances of the case not exceeding in the whole the amount which he estimates to be necessary to acquire elsewhere the fee-simple of premises which would provide suitable accommodation of the standard appropriate for the persons ordinarily accommodated in the building before the injury, less the estimated market value of any remains of the building: Provided that the Judge, in considering whether the total award of compensation is within the amount aforesaid, may as regards any part of the compensation which is subject to a condition of reinstatement reckon that part according to the estimated market value of the work to be done by way of reinstatement instead of the actual amount of the conditional award.
(10) A substituted building may consist of one or more attached, detached, or semi-detached houses, whether dwelling-houses, offices, or business premises, or such other structure as the Judge may approve.
(11) Where several persons have different interests in any injured building, and no reinstatement condition is attached to the decree, the Judge shall apportion the compensation amongst such persons in such proportions as he thinks right, and may cancel or vary in such manner as he thinks reasonable, having regard to the other terms of his decree, any of the covenants and conditions contained in any lease under which the injured building is held.
(12) Where several persons have different interests in any injured building, and a full or a partial reinstatement condition is attached to the decree, the Judge shall award the compensation to the owner or owners of such one or more of those interests as the Judge thinks right, and shall cancel or vary in such manner as he thinks just all or any of the terms of and the covenants and conditions contained in every or any lease under which the buildings are held, and may, if he considers it just so to do, wholly terminate and cancel any such lease.
(13) This section shall apply to every application for compensation under the Criminal Injuries Acts in respect of the injury of any building by an injury to which this part of this Act applies.
(14) Where an application is partly for such compensation as is mentioned in the foregoing sub-section and partly for compensation in respect of other matters, this section shall apply to the application in so far as it relates to such compensation as is mentioned in the foregoing sub-section.
(15) On the hearing of any application to which this section applies, the Judge may, if he think it reasonable so to do, allow any local authority to appear and be heard by solicitor, with or without counsel, and to examine and cross-examine witnesses and tender evidence, and it shall be lawful for any local authority so to appear and to provide for the cost of so doing, and of producing witnesses and other evidence.
(16) In this section—
the word "building" includes a house shop, factory, or any other permanent structure; the expression "market value" means the price which the property might be expected to fetch if sold by a willing seller at the price prevailing in a free market for such property at the time of the award; the word "injury" includes destruction as well as damage; the expression "injured building" includes a destroyed building as well as a damaged building; the word "reinstatement" includes the replacement of fixed machinery and plant: Provided that the Judge may in any particular case of full reinstatement release the applicant from the obligation to replace such machinery or plant upon such terms as he may think reasonable in the circumstances.
(17) In any case in which any land, garden, or curtilage was commonly enjoyed with any building so that such building would not ordinarily have a market value apart from such land, garden, or curtilage, the Judge, in estimating the market value of the building, shall give such consideration to that state of facts as he thinks reasonable.
I beg to propose the following amendment:—
Section 10, Sub-section (1) (ii.).—To add after the word "compensation," in line 47, the words "or such part thereof as shall be specified in the decree." I think this is a matter of mere drafting so that the amendment would specify the amount of the award, for partial reinstatement should be specified on the decree as part of what might be payable in cash or otherwise.
I am afraid Senator Jackson is not quite correct in describing this as merely a drafting amendment. I think a partial reinstatement condition does not mean that a person is to get part of the compensation for that purpose in cash. It means a different type of building, and there is a definition in the clause. Partial reinstatement does not mean that a certain amount of money is to be paid for a building of a certain kind or given to the applicant to do what he likes with. Partial reinstatement means that it is to be a building of another type—a substituted building.
It is not clear and perhaps it could be made so.
Yes.
Amendment, by leave, withdrawn.
I propose the following amendment:—
Section 10, Sub-section (1) (i). —To insert before the word "compensation" in line 38 the words "such part of the," and to insert after the word "compensation" the words "as shall be ordered by the Judge."
My reason in proposing this amendment is that I consider the Sub-section as it stands practically compels the Judge, because the word "shall" is used, to award all the compensation so that it will be expended on the building, while making no provision for the contents— the furniture and the chattels in the building. It may be thought they are provided for later on in Sub-sections 13 or 14, but I do not think it is at all clear. For that reason this amendment simply aims at making the meaning clear.
I do not know if Senator Dowdall has seen Sub-section 14.
I did.
I do not know that there would be any objection to the amendment.
I do not think there can be any objection; it is purely a matter of drafting.
I would like to have an opportunity of considering whether the amendment might not do more than the Senator intended to do, and as it was not on the printed Orders of the Day I had no opportunity of seeing it earlier.
I am perfectly prepared to accept that if recommended between now and the Report Stage. I posted the amendments days ago, but they were never delivered, so I handed them in again this morning.
Amendment, by leave, withdrawn.
I propose the following amendment:—
Section 10, Sub-section (1) (i).—To insert after the word "on" in line 39 the words "or near."
The object of the amendment is to allow the applicant to erect a new building near the original site. It is only a very small point if the Minister will accept it. It may be desirable some time to make a slight change in the site of a building.
I do not feel inclined to recommend this to the Seanad. The object of the full reinstatement condition was that the building be restored, and not for the person whose building was destroyed to have it restored in some better position, where it would be of considerably more value or to select any position whatsoever. That would be a case if it was desired to have the building or a smaller one restored in some other place, that would be a case where a partial reinstatement condition might be got. If it is a case where there is to be a full reinstatement, as in, say, the O'Connell Street houses, I think there is no doubt re-erection should be made on the site where it was destroyed.
I have no site in any city in view. I had in view the site of a farm residence where it would not make any difference to shift it a few feet. It might prove easier and less costly to erect such a building on a new site rather than take down the old walls.
AN CATHAOIRLEACH
I think it is so obvious in the case particularly of farm buildings that I think the Minister might be well advised to say he would consider it. It would seem a hardship if a man was not allowed to move the site of his residence to another field.
I quite accept that. As a matter of fact as the Bill stands in the case of farm buildings no difficulty would arise. It could be done by a partial reinstatement condition if the building was a different one. Certainly there would not be any objection to allowing a building to be moved, or a farm house in any country place, and I would consider it with a view to removing any difficulty in such cases, but not in the case of buildings in a city.
The Minister might remember what has been said about our houses in Ireland—that they are always built near the right place, but never in it.
Amendment, by leave, withdrawn.
I propose the following amendment:—
Section 10, Sub-section (3).—To omit the word "immediately" in line 14.
On a point of order I think my amendment comes before that.
You are passing over two previous amendments for the same Section.
AN CATHAOIRLEACH
I think Sir John Keane was anxious that they should not be taken at the moment. He spoke to me about it.
I heard some talk of adjourning, and as I should like to develop mine at some length I do not think it would be convenient for the Seanad to take them now.
AN CATHAOIRLEACH
Perhaps we had better now consult the wishes of the Seanad with regard to the further consideration of this Bill in Committee. There are two courses which we can adopt; we can either adjourn now for an interval and resume later this evening, or we can adjourn until to-morrow.
I propose that we adjourn until 3 o'clock to-morrow.
I second that.
Eleven o'clock to-morrow.
SEVERAL MEMBERS
No.
AN CATHAOIRLEACH
There is a conflict on the question of 11 o'clock as compared with 3, and I am anxious to consult the convenience of the greater number, but I think also we must have regard to the convenience of members who come long distances from the country and if a substantial number of the Seanad would like to sit to-morrow at 11 or 12 I am quite prepared to do so.
Is there a sufficient case for breaking the rule for meeting at 3 o'clock? Many of us have a great deal to do in the morning and we are quite willing to come here, if necessary, to work the whole afternoon, but if you are going to take away our mornings you will be going a little too far. The ordinary business man needs to pay some attention to his affairs.
We are prepared to accept Sir John Keane's first amendment, No. 12.
AN CATHAOIRLEACH
Perhaps we might dispose of that amendment before we adjourn.
As the Minister said he will accept it he has saved me the somewhat difficult task of presenting my case. I beg to move:—
"Section 10, Sub-section (1) (ii.)—To add at the end of the Sub-section the words ‘Provided always that, when a partial reinstatement condition has been attached to the decree, an applicant may, within three months of the making of the decree, submit to the Judge a scheme setting out an alternative proposal for rebuilding anywhere in the Free State—up to the full amount of compensation awarded—a building or buildings, and if the Judge is satisfied such scheme, with or without modification (hereinafter called the scheme) serves a housing need, he may substitute a condition approving the scheme for the partial reinstatement condition.'"
I should like to say that unless I could come here to-morrow at 11 o'clock, I will find it very difficult to come in the afternoon.
AN CATHAOIRLEACH
Perhaps the Seanad would give permission to Senator Parkinson to move the next amendment on the Order Paper?
Agreed.
I move "Section 10, Sub-section (1) (ii.) —To add at the end of the Sub-section the words, ‘a condition that such part of the cost of reinstatement as may consist of necessary building material may be deducted from the amount of compensation awarded, and such building materials may be supplied by the Minister of Finance to the amount or value of the sum so deducted, and at such times as may be reasonable, having regard to architects' certificates. The prices to be charged by the Minister of Finance shall not exceed the amount at which materials of a similar quality could be bought in the open market.' "
There are three main sections of our people who will benefit by this amendment. The first will be our Irish industries, and particularly industries from which raw materials—slates, bricks, cement, and other materials used in reconstruction—will be drawn. If I mentioned a few of the negative effects of the thing, perhaps you would better understand the positive advantages to be derived. Nothing in the amendment would be of any assistance to the Welsh slate quarries; nothing will help the British brickworks; the Portland Cement combine will not likely accept it with acclamation, and the carpenters of Norway and Sweden will not have to work overtime to provide us with doors and window frames. These are matters that Irish labour could produce from Irish materials. If our industries are working, our unemployed people will have something to do, and the Minister will be relieved by having a prosperous country to levy taxes on. All the money necessary for this compensation will have to be repaid by the Irish people, and I contend that as much as is humanly possible of the money ought to be spent in Ireland. Another section of our people who would benefit under this amendment would be agriculture. At first sight it does not quite appear where the farmer would benefit by the rebuilding of mansions and castles, but if the Government accept the amendment and use it in the spirit in which I think it could be applied, we might establish a trade for our surplus cattle and surplus horses with nations with which at present we cannot deal on account of the exchange. The Minister might buy large quantities of rails, large quantities of steel for reconstruction work, and large quantities of cement, and by buying these in countries with which at present we cannot trade on account of the exchange, he can put these people in a position to pay for our horses and our cattle with our money. In other words, we can spend the money abroad and keep it at home. The Minister under this Bill takes power to compensate the dead. If he will accept this amendment he will be in a position to do something for the living and to show another section of our people that there is some other paradise than the emigrant ship, which I am afraid, if we are going on as we are without providing any new industries or reviving the dead ones, there will be nothing for our people except America or somewhere overseas.
I am not altogether clear what object the mover of the amendment wishes to secure. If it is merely wished to use Irish material, surely that could be done more effectively and directly by some clause to the effect that where possible home-manufactured materials should be used. Of course, there are many people here who are better qualified to deal with this matter. This is a matter that may lead to complications. If it is a contract, you must begin when a contractor takes a contract for a job, and the Minister will then have to deal with a third party for certain of the materials. We have not had much experience here of Government trading, but in other countries during the war we saw the result of Government trading and I think we are all agreed that it has not been very efficient. I think any amendment which suggests the revival of Government trading is to be strongly deprecated.
I might explain that if Sir John Keane reads the latter part of my amendment he will see that no matter how incompetent the Government may be or how foolish the Minister for Finance may be, he cannot under this clause supply the material except at prices at which they could be bought in the open market.
I think this would impose a task on the Minister for Finance or his Department which, in the circumstances that exist at present, would be beyond his power of carrying out satisfactorily. I do not know what might be done in this way in normal circumstances if we had time to look around or had the Governmental machinery been running smoothly, and we were able at our leisure to give sufficient attention to the matter of setting up an organisation to deal with the work that is suggested here. But I do think that in the present circumstances it is not a work that we would be able to do satisfactorily, or in such a way as to enable building to be done as cheaply or more satisfactorily than could be done by leaving matters to stand as they are.
Might I point out to the Minister that we do not ask him to take any particular powers in this amendment. Already they have in existence particular departments, such as the Board of Contracts, the Board of Public Works, the Local Government Board, and Trade Departments to deal with these matters, and which they could deal with in either a large or small way.
I am inclined to agree with this proposal if the Minister could see his way to accept it, especially as it is not obligatory.
Amendment carried.