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Seanad Éireann debate -
Wednesday, 28 Oct 1931

Vol. 14 No. 35

Courts of Justice (No. 2) Bill, 1931—Second Stage.

Question proposed: "That the Bill be now read a Second Time."

The object of this Bill is to remedy a position that has already been made public by the Press, a position which has been brought about by a decision of the Supreme Court with regard to the case of Stokes and another versus Quinn and another. Rules with regard to the Circuit Court have been brought forward three times and, for various reasons, have failed to secure passage. The Circuit Court since it was established has been functioning without any new Rules and without any regulated scale of costs. It had been assumed that the costs lay at the discretion of the court, and that view was acted upon until this decision, which came rather indirectly when another point was raised. The decision has raised two rather difficult points. One is that for the future there is no scale excepting the scale that is applicable to the old County Courts, and that is quite unsuitable when one considers the heavier jurisdiction given to the Circuit Courts. The second point is that by reason of the judgment a doubt has been cast upon awards already made. It is considered necessary, therefore, to validate these, and that is done by a declaratory section in Section 2 of the Bill as brought forward.

The proposal is that until such time as the new Rules come into operation, and that, under the motion which is down to-day, would be the 1st January, 1932, a certain procedure would be followed in those circumstances. After that the Rules will hold. There are two smaller points referred to—one is with regard to appeals from the Circuit Court and fixing a scale of costs there; the other is that the leading case, which has brought about this situation, is not interfered with, nor are the costs regulated by that decision dealt with at all.

As regards these things that have been passed and are finished with, I suppose there is no use going on with the matter, because they cannot be rectified now, and the only thing we can do is to agree with them whether right or wrong. I understand that that was in a separate Bill, but I am not sure. So far as what has been passed is concerned, I have nothing to say, but there are some things to which I would like to call attention. One thing is with regard to these courts, prisoners who are to be tried or brought up before them for any offence, outrage or robbery, are not disposed of at once. Those prisoners may be kept in custody for a considerable time, when they are to be brought before the court and then——

Cathaoirleach

I think that is an extraneous matter and does not come under the purview of the Bill which we are discussing. This is a Bill to make provision in relation to costs and expenses in certain legal proceedings. I think what the Senator is speaking about does not come into this Bill at all, but into another Bill, or perhaps I should say the motion by Senator Milroy, which is down as No. 7 on the agenda.

Under what section does the point arise?

Under Section 1.

Cathaoirleach

Section 1 of the Bill reads:—

In this Act the expression "the appointed day" means the day on which the Rules of the Circuit Court made under Part II. of the Courts of Justice Act, 1924 (No. 10 of 1924) and providing a scale of costs for the Circuit Court come into operation.

How does Senator Colonel Moore's point come under that?

Are we not dealing with the rules of court?

Cathaoirleach

There is a motion down in the name of Senator Milroy.

We cannot oppose this Bill, because it is urgently necessary, having regard to the fact that the decision referred to by the Minister would really render illegal all the decisions previously arrived at by the Circuit Courts and all the costs awarded by them since the Court of Justice Act came into operation. What happened was this. The Oireachtas in its wisdom increased the jurisdiction of the local courts. There used to be County Courts having jurisdiction up to £50 in contracts and up to £30 valuation with regard to lands. In other respects it was limited in the same measure.

You increased the jurisdiction of that local court and you changed its name to the Circuit Court. But you did not make any provision for a scale of costs in respect of any action in the Circuit Court. The judges, whose duty it is to administer the law, found it necessary to adopt the principle, which, I think, was a fair principle, that in cases exceeding the old limit of the County Court jurisdiction they would award costs on such a basis as would give to the parties a reasonable indemnity against the expenses that they had sustained. The judges acted so reasonably that for many years there seemed to have been no objections. But then a case came up to the Supreme Court from the decision of the Taxing Master in one of the actions tried in the Circuit Court. When the matter came to be investigated it was seen at once that there was no statutory authority for awarding any costs in the court. Certainly there was no authority for awarding any costs above the scale that was in existence with regard to the old County Court. In that case, which did come before the Supreme Court, the costs incurred by the plaintiff were £90. That included out-of-pocket expenses exceeding, I think, £50.

As a result of the decision all the plaintiff now gets is £4. He loses considerably. He was the successful party and had justice on his side. Now justice has been declared, but at a very considerable loss to him. I think it is right that the possibility of a repetition of anything like that should be put an end to. The object of this Bill is to legalise all the assessments of costs which had been made up to the date of the passing of this Bill, and for the future and until a plenary measure is introduced to allow the courts to go on according to the principles which they have hitherto adopted. These principles were found to work well. I am very sorry that the Minister found it necessary in this Bill to make a special exception in the case which has been the origin of all the trouble. That is the case that went to the Supreme Court. The exception is made here in Section 3 (2), which reads:

Nothing in this section shall apply to any costs which before the passing of this Act were directed by the Supreme Court to be taxed on any particular principle appointed by that court in respect of those particular costs.

Therefore, the plaintiff in whose case the illegality, if I may so express it, is discovered, is the one person who will have to suffer. I think I could not make any serious objection to that, because if the plaintiff were to get more costs than the £4 which had been awarded by the decision of the Supreme Court the defendant would have to pay, and the defendant would be entitled to object. Moreover, I think it is a very good principle that where a court has arrived at a decision between parties, that decision should not be interfered with by legislation. I think the principle is good, but the particular individual suffers considerably.

The reason I go so fully into that is with the object of making a suggestion to the Minister that the party who suffers under that exception which is here introduced should be indemnified in some way. There is a precedent for indemnifying a litigant in these circumstances. There was a case from Bray that went to the Privy Council, the decision in which was nullified by legislation. When that case and the Bill dealing with it came before this House, I suggested that the parties should be indemnified, and the parties were in fact indemnified. I suggest to the Minister that the same rule should be applied in this case. This is one isolated case which has been the cause of this legislation.

I have only one other observation to make. It is a very curious and very unusual thing that Courts of Justice should be compelled to function for a great number of years without proper legislative machinery. They should have had a scale of costs from the very moment that they started on their judicial work. These courts have been working for nearly seven years, and there was no scale of costs to guide them. No pressure of public business is sufficient to justify a fact of that description. It may be said that you could not agree as to rules. The Seanad was responsible once, they say, and the Dáil was responsible on another occasion. Whoever was responsible, it is somewhat of a reproach to all parties concerned. I hope that the larger measure, which is to be introduced as a result of the report of the Joint Committee which sat in reference to the Courts of Justice, will be introduced within a reasonable time.

I have another objection to make. It appears that this scale of costs in respect to the Circuit Courts has been the subject of dispute in the Dáil and in the Seanad. Until it comes before you, I make no observation in regard to that scale of costs except this: that in my opinion the scale of costs is too high. You may think it is a very remarkable thing for a lawyer to say that the costs are too high, but in my opinion the scale of costs is in many respects excessive and ought to be reduced. It is wrong that litigants should be compelled to pay more than reasonable costs. It is no advantage to lawyers, because our advantage lies in allowing people to have free access to the courts and getting justice on reasonable terms.

That is our opinion as lawyers. We want to do the business which is our profession on reasonable terms. We want to give the people an opportunity of going to the Courts of Justice; we want to familiarise them with Courts of Justice. I think that the scale of costs which has been fixed, which was before the Dáil, and which will come before us, is excessive. I have no objection to the Bill.

I only wish briefly, with no very intimate knowledge of the subject, to re-echo what Senator Comyn has just said. I have received complaints as to the very heavy scales of costs. I take it they are ancillary to, if not directly connected with, the sheriff's fees. The sheriff's fees are levied on the nominal amount of the decree, but very often the actual collection is very small. It is all swallowed up by these fees, and it is exceedingly hard on the creditors. I hope, when the proper time arrives, the matter will receive consideration.

Question put and agreed to.
Committee Stage to be taken on Wednesday next.
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