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Seanad Éireann debate -
Thursday, 22 Jul 1926

Vol. 7 No. 17

THE CIRCUIT COURT RULES.

CATHAOIRLEACH

I do not know what the wishes of the House are with regard to the Circuit Court Rules. I think that the actual discussion upon them would not take very much time, but I am very anxious to make a full statement about the position of this House in regard to them, and I am quite prepared either to do that now or, if the House thinks the matter of sufficient importance, to ask them to meet again to-morrow.

I suggest that you make the statement, and if we are going to discuss the rules in detail that we should meet to-morrow. But if there is only the question of postponing them it could be done to-day.

Is there any urgency about the matter? I understand that these rules have not been taken by the Dáil.

CATHAOIRLEACH

In the Dáil they have simply left them as they are. They have neither approved of them nor have they rejected them, nor have they adjourned consideration of the matter.

They have done the last. They have postponed consideration of them, on my suggestion.

CATHAOIRLEACH

But no motion was made for adjourning the consideration of them, as I understand. That does not concern us. I am only pointing out that I do not think we could leave them in that position. We must either, when these rules are before us, approve of them in whole or in part, or we must adjourn consideration of them. We cannot break away to-day, not meet again for three months, and say nothing about these Circuit Court Rules. I intended to deal with that later on. But what I wanted to explain to the House is the position in which we have been placed with regard to these rules. The House may recollect that on last Wednesday fortnight I suggested to them that they ought to refer these rules to a small committee for consideration and report. At that time I was under the impression that these rules had been passed, were in form to be presented, and had, in fact, been presented in the proper form to the Seanad. But the Minister cleared that up later in the day and told us that the Circuit Rules had not yet been ratified, either by the Rule-making Authority or by him, but he told us that they would be ratified and in possession of the Seanad by Friday. Accordingly the Committee was appointed, but these Circuit Rules were not, in fact, ratified until the following Tuesday, and they were not circulated until Tuesday night. Consequently your Committee were not authorised and had no right to touch them, because they had not been presented to the Seanad until the following Tuesday night. Your Committee only got them on the Wednesday morning—a week ago—and therefore they were left one week to consider 500 rules. We went through them as well as we could, and we found fault with and disapproved of a substantial number—I think twenty.

But I want to say that the Committee having broken up on the Friday, I became very anxious, because it occurred to me that these rules, taken as a whole, in so far as they introduced for the first time into the Circuit Court the whole machinery of the High Court, are going to add enormously to the time that these cases would take in the Circuit Courts and to the expense. I felt so concerned that I tried to get into touch with the Committee to get them to meet again. That was not possible, but I was able to get into touch with Senator Brown. After discussion he came to the same conclusion as I had come to, that we ought to ask this House to be very slow, indeed, before it sanctioned this remarkable revolution in County Court practice.

I thought it only fair then to let the Minister know this, and, on Monday, I wrote telling him that Senator Brown and I had come to the conclusion that we would ask this House not to take these rules up now, but to adjourn the consideration of them—that is, the consideration of such rules as the Committee had not knocked out—until after the Recess. We found that manifestly necessary because we had not really thoroughly examined the rules in Committee. We could not do so. We had not time to examine these 500 rules. We got them on Wednesday morning; we had seven days to do the work and we could not do it in the time. We were not in the position to do so, and we came to the conclusion to recommend the disallowance of about thirty of these rules. But subsequently, having investigated the whole thing and finding that these rules brought in, for the first time, this strong revolution of applying in the County Court the whole paraphernalia and machinery of the High Courts, we came to the conclusion that we ought to advise this House to adjourn the consideration of them over the Recess. That being so, I found that on the Tuesday the same view was apparently taken by some Deputies in the Dáil, and that, through the leader of the Labour Party, a motion was made to that effect based upon the necessity of giving further time and further consideration to this very big and sweeping change. That motion was fully debated, and the Minister, in defence to what was said there—and I acknowledge his courtesy in this matter—in deference, also, to a communication, he said, as to the views of certain Senators, withdrew his motion for approval of the Circuit Court Rules, and the Deputy who moved their rejection withdrew his motion, and the matter was left there. That is to say, neither were the rules approved nor disapproved.

I do not think we can leave the rules in that position. I think it is our duty either to approve, or disapprove, or to adjourn and postpone the consideration of these rules. We cannot approve of them as long as the report of the Committee stands, because we recommend the rejection of a substantial number of them. But there is this to be said for the suggestion of disapproval of the rules in globo and rejecting them entirely: that an opportunity would then be given to the Rule-making Authority, between this and October, of bringing in a new set of rules in lieu of the rules to which we have already taken objection. That would be one position. The other position would be to adjourn the consideration of those rules altogether until November. In my opinion that is the wisest and safest course, and for this obvious reason: If we were to disapprove of the rules in globo, it is quite true it would give an opportunity to the Minister and the Rule-making Authority of framing a new set, if they so thought fit. But they would be doing that in the dark as to what our objections were, and I do not think it would enable them to get them into shape any quicker. I may say, for myself, and giving my opinion for what it is worth, I believe that if these rules in their present form, or anything like that, are adopted, that delays and expenses of proceedings in the Circuit Courts will be enormously increased.

First I will deal with the question of delay. The whole procedure of the High Court is carried on without hitch or delay, because the judges sit every day, in the same place, and every litigant who wants to make a motion or application is always certain to have a judge available, except during the long vacation. But in the Circuit Courts some of the judges have six counties, and if all these applications are to be made, in every case which comes before them—application for discovery of documents, application for inspection, application for judgment, application for particulars—exactly on the lines of the High Court, then I assure the Minister he will find that he will have to have a separate judge for each county. It will not be a case of one judge for six counties.

If these rules are adopted and are to be carried on applicable to their entire jurisdiction, it will be inevitable that the Minister will have to have a judge for each county. But in addition there are some very grave objections not touched upon by our Committee. We had not the time to get near them or to get to the root of them.

At present the crying complaint is that in money demands the defendants invariably appeal, not because they have any case but because they want time. Under the present practice there are appeals outstanding for hearing more than a year, and all that time the defendant had the benefit of the delay and the creditor is kept out of his money. Now you are going to increase that if you enable those litigants, in all those cases, to go through the whole machinery and procedure of the High Courts of Justice. The litigant will be able to keep the plaintiff out of his money for practically an incalculable amount of time. In addition to that, if this procedure is carried out there will be of necessity, as I have said, not merely the requirement of appointing more judges, but there will be as well the necessity for having some provision made to reduce the number of those appeals. I do urge upon the Minister and the Rule-making Authority to consider some very drastic proposal which will necessitate the plaintiff, or the defendant, as the case may be, making a substantial lodgment in court as a condition of his liberty to appeal. I am talking now, of course, of simple contracts, cases for the recovery of debts, the recovery on promissory notes, recovery of shop accounts, and all cases of that kind, and the right of appeal should be saddled with strict necessity for lodging a substantial amount of the debt as security for the costs of the appeal.

That is one matter. The Committee were conscious that if they applied the machinery of the High Courts to all this litigation, they would swamp the court, and they sought to remedy that difficulty by Rule 155—that rule providing that in any case for a money demand or for damages not exceeding £50 the case should go to trial without pleadings. Now, that, in my opinion, and my colleague agrees, is wholly illusory. £50 was the old jurisdiction of the County Court, but that was fixed nearly a century ago, and that £50 is certainly not equivalent to a sum of more than £100 to-day. Yet they propose that in every case over £50 all this machinery of pleadings, affidavits, discovery of documents, motions for inspection, and motions for particulars is to be applicable to a case of a simple contract debt. What we urge the Ministry and the Rule-making Authority to do is this: If they are going to apply the machinery of the High Court to the County Court at all, let them limit it to cases of contract exceeding £150, with a provision that in any case under it the judge, if satisfied that the importance of it so requires, may take it out of that limitation. But that the rule should be that every case should be tried without pleadings, the exception being cases which are to be tried with pleadings. We have the ordinary money debts, promissory notes, shop accounts, and all those things over £50, to which this machinery is to be applied. The old County Court had no pleadings, no motions for discovery, and I never heard anyone complain of their absence. There are certain things they should have, powers of attachment, garnishee and interpleader powers, but these extra powers of supplying documents and particulars and of making affidavits of one kind or another are only going to heap up enormous costs and will impose on the Circuit Judges a task which they will be unable to discharge as long as they have their present Circuits to look after. These applications have to be made without delay. They are no good if they are not made within a few days. In County Monaghan the judge has four other counties to look after. Some judges have six counties, some have less, and some have more. The judge is away from Monaghan for three months. Where is the application to be made?

The motions are to be made to the County Registrar.

CATHAOIRLEACH

No, the discovery is not to the County Registrar. Let us understand. Discovery and motions for further particulars are to the court. I am open to correction if I am wrong.

My impression is that the application is not made either to the judge or the registrar; it is simply a question of notice from either party. Rule 168 is:—

"Each party shall, after the pleadings have been closed, and within seven days after receiving from the other party a notice requiring him to do so, deliver a schedule verified by the affidavit of the party specifying the books and documents in his possession or under his control which he intends to use in the action, or which may in any way relate to any matters in question in such action, and those privileged from diclosure under the law of evidence must be set out separately with the grounds of such privilege."

CATHAOIRLEACH

If he does not do it and if the man gets a thing which is defective, what is to happen? What court is he to go to? I am talking of the man who is bound to supply. If he refuses or supplies a defective document what is the remedy and where is he to go for it?

Take, again, this motion for particulars. Where are they to be asked for? Is application to be made to the registrar? You will find that all those applications have to be made to the judge. A motion for judgement has to be made to the judge. Am I right in saying that this application to inspect documents is to be made to the court? I think I am right in that. At any rate, it is brimful of applications that can only be made to the court itself. My point is that you will have your courts sitting only three times in the year in the case of the Circuit Judges. If you impose this High Court practice on certain judges, you will ultimately be coerced into having a Circuit Judge for every county in Ireland.

There is one other matter. I am not mentioning this to score a point off the Minister. Everybody knows quite well that the Minister has his hands chock full and that he cannot always speak with authority on those abstruse and difficult legal points. I was startled to find that the Minister in defending the application of these principles of High Court practice to the Circuit Court did so on this ground: I will quote his own words:—

"On the facts proved before the Circuit Judge, his decision cannot be reversed on appeal, notwithstanding that the Court of Appeal might feel, were they entitled to try the case, that they would differ from his conclusion."

Where did you get that?

CATHAOIRLEACH

I got it from the "Independent."

I would like to correct it.

CATHAOIRLEACH

Is it wrong?

Quite wrong.

CATHAOIRLEACH

Am I to understand that you did not convey that the High Courts had not power to reverse the Circuit Court on questions of fact?

Not at all. Let me quite definitely state that that quotation is inaccurate. I did not use these words. I did not say or wish to convey anything of the kind. The point I made was this: that the appeal on notes from the Circuit Court is tending to become more and more an appeal on matters of law, and, less and less, an appeal on matters of fact. I told the Dáil that I had noticed that the High Court Judges were taking the view that as between Witness A, who swore one thing, and Witness B, who swore something quite the contrary, if the Circuit Judge opted to place his credence in Witness A, the High Court Judges were not inclined to differ with him. They would simply say that the judge in the lower court had the witness before him, heard him, and that they did not propose to interfere. I said that the tendency would be that appeals would become more and more appeals on questions of law and, less and less appeals on matters of fact, and, therefore, that the Dáil had to remember that they were dealing with a court with a jurisdiction as high as £300, and that that court, for all practical purposes, would be a final court save on matters of law. I never said that a High Court Judge who felt that if he had tried the case himself he would certainly give one decision, would, despite that, uphold the decision of the lower court.

CATHAOIRLEACH

I am very glad to hear that. I was certain that there was some misunderstanding. The statement in the "Independent" went much further. It stated that the Minister said that the judges had ruled, having regard to the terms of the section of the Act, that they were not in a position to reverse the Circuit Judge on questions of fact. They put that statement into the mouth of the Minister. All I want to say is, if that is the idea any person has, be he judge or anyone else, it is entirely in the teeth of the Courts of Justice Act.

I did not say "entitled"; I said they were not "inclined" to reverse on questions of fact.

CATHAOIRLEACH

I accept your statement. I am referring to what you are reported to have said. You are reported to have stated that the judges ruled that, by virtue of the wording of Section 61 of the Courts of Justice Act, they were precluded from reversing on questions of fact. The opposite is the truth in the clearest and most emphatic way. The section says that the High Court on appeal shall determine questions both of law and fact. The section giving the right of appeal expressly confers it in respect of law or fact or either. I have every reason to recollect that, because these words were suggested in Committee, when the Bill was going through this House. They met with the full approval of the President and the Attorney-General of the day, and they were afterwards brought in on a Government amendment and inserted here on the Report Stage. I have, therefore, every reason to remember them, and if there is one thing clear, beyond the possibility of mistake, it is that the judges of the High Court are not only entitled, but are bound in duty to reverse a decision of the Circuit Judge on a question of fact if they think it was wrong. I do not say anything more about that. I think that it would be very injurious if any impression to the contrary got abroad, and I was greatly startled by the statement put into the mouth of the Minister on the subject. He has cleared that up and I am very glad of it.

That brings us back to the question: What are we to do with these rules now, if anything? My suggestion to the House would be simply to pass a resolution adjourning further consideration of the rules until we meet again in November, and referring back the report on the rules to the Committee for further consideration and report, because we have not had time to go into them, or to do justice to the terms of reference. If the Minister thinks it would be any advantage to disapprove of them in globo, he can make his case for them, and I am sure the House will listen to it with all respect. I do not think that would be the wisest thing now.

I accept the suggestion that the consideration of these rules be left over until the House meets again in November.

I move:—"That the consideration of the Rules of the Circuit Court be postponed to a date to be fixed by the Seanad at its next meeting."

I second that.

Motion put and agreed to.

I move—"That the report of the Committee on the Rules of the Circuit Court, as presented, be referred back to the same Committee for further consideration and report."

I second that.

Motion put and agreed to.
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