Seanad Éireann debate -
Wednesday, 8 Apr 1981

Vol. 95 No. 15

Courts Bill, 1980: Second Stage.

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

Minister of State at the Department of Justice (Mr. Doherty)

The primary aim of this Bill is to make access to the courts in civil matters easier, cheaper and more convenient. This is brought about mainly by increasing the monetary limits of the civil jurisdictions of the lower courts and by conferring on them new or expanded jurisdiction in family law matters. The Bill also includes provisions to encourage litigants to make use of the lower courts, by extending to them the law as it applies in the superior courts relating to registration of decrees, limitation on costs and interest on judgment debts. An important new provision is the discretion to award interest between cause of action and judgment. In addition, the Bill makes new arrangements for the transfer of Circuit Court criminal trials, provides for an extra Circuit Court judge in Dublin, and makes other technical changes in the law relating to the Judiciary.

The monetary limits of civil jurisdiction in the Circuit and District Courts were last increased by the Courts Act, 1971. Shortly after this Government took office, the Minister for Justice asked the Committee on Court Practice and Procedure to examine these jurisdiction limits and report to him. That report — their 20th — was laid before both Houses of the Oireachtas and published in December 1978. The proposals in this Bill are based mainly on the recommendations in that report.

The existing limit on the Circuit Court's jurisdiction in contract and tort is £2,000. The courts committee recommended that it be increased to £10,000. In view particularly of the proposal to increase the maximum payable to the relatives of the deceased in a fatal accident as compensation for mental distress — a proposal of which the committee were not aware when they reported — the Government decided to make the new limit £15,000. In equity, probate and other chancery matters, the limits of the Circuit Court's jurisdiction are £5,000 for value of personal property and £100 rateable valuation of land; the Bill does away with the personal property limit and increases the land valuation limit to £200. Other jurisdictions whose limits are traditionally linked with these are being similarly amended.

In the District Court, the limit of jurisdiction in contract and tort is £250 at present. The Bill increases it to £2,500. The court's jurisdiction in Rent Restrictions Acts cases is limited to dwellings with an annual rent of not more than £315; the Bill increases this limit to £2,500 per annum. As with the Circuit Court, other jurisdictions which have traditionally had their limits set by reference to these are being increased.

These increases in the monetary limits of the Circuit and District Courts are not just to adjust for inflation. They represent a real increase in the jurisdiction of these courts, and will enable them to deal with a substantially greater proportion of litigation than heretofore. The benefits of this will be far-reaching. Not only will the pressure on the High Court be relieved — and the delays which at present exist in that court have been the cause of serious concern and complaint — but the fact that more cases can be dealt with by the lower courts, where procedures are simpler, venues are local and costs are less, will tend to reduce the cost to litigants of taking legal action generally.

In the area of family law, the Circuit Court will have jurisdiction to deal in a comprehensive way with family difficulties and breakdown. After the main provisions of the Bill come into effect, the Circuit Court will have jurisdition in divorce a mensa et thoro, guardianship and custody of children, maintenance of spouses and children and affiliation orders. The District Court will have jurisdiction in all of these except divorce a mensa et thoro, and the existing limits of maintenance in that court are being increased from £50 to £100 per week for a spouse and from £15 to £30 per week for a child.

There are provisions in the Bill as it stands dealing with the barring order jurisdiction. These have been superseded by the Family Law (Protection of Spouses and Children) Bill, 1981, at present before the other House which includes, as part of a general overhaul of the barring order remedy, similar provisions to those in this Bill. For that reason I propose to put down for Committee Stage an amendment which will remove the barring order provisions from this Bill.

The family law proposals in this Bill will have the effect of drawing together the remedies which the law provides for dealing with difficulties in, and the breakdown of, marriage. Jurisdiction in relation to the various remedies has hitherto been diffused throughout the courts structure, making it difficult, time consuming and expensive to obtain a comprehensive solution to what must appear to the parties concerned to be merely different aspects of the one problem. This diffusion has been the subject of criticism from many quarters, and I am happy to say that the proposals to rectify this have been almost universally welcomed by these same bodies and interest groups.

I say "almost universally welcomed" advisedly, for there has been opposition to the proposals from one of the professional legal bodies. I suppose it is only natural for a professional body — or any organisation, for that matter, which seeks to represent the interests of its members and sees, however remotely, a threat to the level of income of those members — to react in such a way. There has also been public criticism of the family law provisions of the Bill by one or two Senators. I understand that Senator McGuinness was reported as saying that the Bill seeks to provide for "justice on the cheap". There is an implication here that somehow an inferior or substandard courts system will result from these proposals, dispensing shoddy or half-considered judgments. Such implications must be repudiated utterly. This kind of publicity is clearly unjust to the people who operate our District and Circuit Courts. Neither does it do anything to help the people who cannot afford the expense of High Court proceedings or who have to contend with the present fragmented jurisdiction of the courts in family law matters. What this Bill will do is to make it less expensive, less awkward and less time consuming for the ordinary man or woman to have recourse to the courts for the solution of family problems or for other civil remedies. If that is "justice on the cheap", then I and many others welcome it.

I do not pretend that there will be no problems in implementing these proposals. It is well known that courthouse accommodation in many venues leaves a lot to be desired. There are many courthouses which lack the waiting and consulting facilities which are desirable where family law cases are concerned. The Minister for Justice has already stated that he has in preparation a set of proposals to tackle the accommodation problems, and I can inform this House that these are being pushed forward as quickly as possible. In addition, the time lag of 12 months before most of the proposals in this Bill become operative will give my Department and the rule making bodies an opportunity to make the necessary administrative and procedural changes in anticipation of the new jurisdiction arrangements.

It has been suggested that because of the difficulties in accommodation, this Bill should not come into effect until they have been sorted out. This strikes me as putting the cart of practical problems before the horse of what is right in principle. What we are doing in this Bill is getting the principle of easier access to the courts right; the practical questions of accommodation and the use of court time must be tackled so that this principle can come into effect, and they are being tackled.

There is no point in having courts with wide jurisdictions unless these jurisdictions are used to the full. The Bill contains a number of provisions which are designed to encourage this. The facilities for registering judgments and for obtaining interest on judgment debts which apply in the High Court and the Circuit Court are being extended to decrees of the District Court. These proposals are based on recommendations of the Committee on Court Practice and Procedure in their 5th and 10th interim reports. In addition, the law which limits the costs of a successful plaintiff in certain types of High Court actions which could have been taken in a lower court is being extended to all types of action in whatever court. These provisions should help to relieve pressure on an over-burdened High Court.

Another provision designed to achieve this aim relates to the virtual right of either party in a Circuit Court trial for an indictable offence to transfer to the Central Criminal Court. The existing provision is, I am satisfied, being abused at present, and the right of transfer to a higher court serves no end of justice. What is required is in fact a facility to remove a trial from an area when there is a likelihood of local jury bias either for or against the accused. What the Bill proposes is that transfer—subject to the same conditions as provided in existing law—should be to the Circuit Court sitting in Dublin rather than to the Central Criminal Court. This will allow the avoidance of any local jury bias to the same extent as the existing provision, and at the same time it will permit the Central Criminal Court to deal more expeditiously with the serious offences which are outside the Circuit Court's jurisdiction.

I have already touched on the question of interest on judgment debts and the recommendations of the courts committee in their 10th report. Among these recommendations was a suggestion that the rate of interest be updated and be made capable of being updated at regular intervals. The present rate of interest is 4 per cent and has been so since 1840; the Bill updates it to 11 per cent, which is the average of the personal overdraft and small deposit rates in the associated banks, and there is provision for variation of the rate by ministerial order at intervals of not less than two years. The courts committee also recommended that the courts should have a discretion to award interest on all or any part of a judgment for all or any part of the period between cause of action and judgment. The Bill gives this discretion to the judge hearing a case and limits the discretion so as to prevent the award of interest on certain parts of personal injury and fatal accident awards. This proposal is a significant one, and gives effect for the first time to the principle that a plaintiff should be compensated for being kept out of money which should have been his to use.

The Civil Liability Act, 1961, introduced into Irish law the concept of "solatium", or compensation for mental distress to the relatives of the deceased in a fatal accident, and fixed the maximum which could be awarded under that head at £1,000. While the term "compensation" is not perhaps the most appropriate for this type of payment—there being no amount of money alone which can compensate for the feelings of loss of a loved one — nonetheless the existing maximum has been affected severely by inflation and the Bill contains a proposal to increase it to £7,500.

There is a provision in the Bill which enables the appointment of an extra Circuit Court judge in the Dublin circuit. The volume of work in that circuit has necessitated the assignment of a temporary judge for about three years now, and there is no sign of a slackening-off of business. The creation of the new post will regularise the existing situation. The Bill does not, however, provide for the creation of new judicial posts to handle any increase in court business arising out of the jurisdiction proposals. This is because at this stage it is simply not possible to predict what increases will occur with any degree of certainty. On the basis of current figures, it is fairly likely that the District Court's workload will grow, but to what extent is unclear; the business gained by the Circuit Court by the increase in that court's jurisdiction is quite likely to be offset almost completely by the shedding of work to the District Court. However, because it will now be easier to take legal action—due in part to the measures in this Bill, in part to the effects of the civil legal aid scheme—the volume of new business which will arise is well-nigh impossible to gauge. I can assure Senators, however, that work-levels will be closely monitored once the new limits become operative, and where there is established a need for new judicial posts, the necessary legislative steps will be taken.

There are two other, technical, measures in the Bill which amend the law relating to the Judiciary. One is a provision to ensure that whenever there is a vacancy in the office of the Chief Justice or the Presidents of the High, Circuit or District Courts, or whenever the holder of any of those offices is unable to perform the duties of office, those duties may be performed by a substitute member of the Judiciary. The other provision permits the Chief Justice to travel and sit as a member of the High Court on Circuit without having to be asked to do so by the President of the High Court, as is required at present.

Taken as a whole, the proposals in this Bill represent a major step in bringing the administration of justice closer to the people. They are based for the most part on recommendations made by the Committee on Court Practice and Procedure, a body of dedicated and able people to whom successive Ministers of Justice owe a debt of gratitude for the sterling work which they have done and continue to do in the area of procedural reform. I should like to take this opportunity to pay a very sincere compliment to them today, and on that note I commend this Bill to the House.

Mr. Molony

I am always very pleased to do legislative business with the Minister of State at the Department of Justice. I have welcomed him here and assured him of my satisfaction that he is here to deal with this Bill. I must express some regret that the Minister himself is not here. I would have loved to have had the opportunity to probe further his philosophy on access to justice and the reasons he has given for the extension of the jurisdiction of the lower courts, which is the main thrust in this Bill. In his absence I want to refer to remarks he made in the Lower House on Second Stage because they astonished me and I can only attribute them to imaginative meanderings on his part rather than to any real sense of purpose in trying to achieve what he described as the goal of access to justice. I quote from the Official Report, column 80, volume 324 where the Minister states:

The Government are committed to making it easier for people — particularly the less well off sections of the community — to achieve access to justice. One obvious way in which to bring legal remedies within the reach of people in lower income groups is to subsidise the cost of legal services to them. This is what the Civil Legal Aid Board were set up to do. But there are other aspects to the question of access to justice apart from the financial one. The purely practical problems of leaving one's family and work and travelling to Dublin for a High Court hearing can sometimes make it impossible for a person to pursue his case, whether or not he qualifies for legal aid. The proposals in this Bill represent the second essential element in the Government's strategy for tackling the problem of access to justice.

If the reason for this Bill is to fulfil what the Minister has described as the second essential element in the Government's strategy for tackling the problem of access to justice I can only liken it to the extraordinary decision of the Minister for the Environment last year or late the year before when he decided that to overcome the problem of the enormous queue of people waiting to do the driving test he would simply abolish the test for bad drivers, in other words those people who had apparently failed the first test, who had not passed the test during the currency of the provisional driving licence. That sort of logic astonishes me. I sincerely hope — in fact I should not say that — I know the Minister of State holds more sincere and genuine views in the effort to ensure that we have a system of access to justice for the less well off people in our community.

The Minister for Justice in the Dáil made reference to the decision in the Airey case which dealt with the State's obligation under the Convention on Human Rights to provide adequate access to the courts. He said the decision made it quite clear that the State had a free choice of means to be used to that end. First of all, I question the adequacy of the system of legal aid introduced by the Minister. It has been in operation now for some time and I do not think anyone doubts that the system is grossly inadequate; it is over-burdened and simply does not provide access to justice for thousands and thousands of people. The Minister in the remarks I quoted from his Dáil contribution made the point that one of the main reasons for extending the jurisdiction of the lower courts is to ensure that people will not have to travel to Dublin to have their case heard in the High Court because they can have it heard in the lower courts. The Minister does not seem to have taken cognisance of the fact that the legal aid system he introduced requires people to travel not just for court cases but 40, 50, 60 or 70 miles for advice and consultation at the legal aid centres that he has set up. I come from a town that is not privileged to have one of the legal aid centres and many people in that area are as entitled to legal aid as anyone else in the country. It has been quite impossible for people who are poorly off, perhaps mothers who cannot afford to abandon their families for a day and find their way to Limerick where there is the nearest legal aid centre, to benefit from the State's largesse here. I am sure the Minister is very well aware of the inadequacies of that system and I am astonished to find that he regards this second essential element as something that is going to help to alleviate the problems faced by poor people trying to achieve access to justice.

Whatever about the extended jurisdiction of the lower courts we should not lose sight of the fact that we have not fulfilled our obligations under the European Convention on Human Rights. We should be ashamed of that fact. I do not lay all the blame for that at the door of this present Government because it should have been remedied many years ago, but I object to the Minister taking credit for introducing a system that is so manifestly inadequate and also in the face of a judgment with which he is not satisfied but with which he seems to be claiming to be satisfied.

It is quite clear that the existing legal aid centres cannot handle the work before them. It is also quite clear that a system of the provision of legal aid centres like this around the country simply cannot fulfil the need that exists to provide civil legal aid for disadvantaged people, people who are not well off. The simple fact is that in order to provide a system of legal aid in that way one would have to provide a legal aid centre in every town of any significant size in Ireland. I would say that, in order to fulfil the obligations that we have under the European Convention on Human Rights, indeed the obligations that we have under our own Constitution, the Minister would have to provide a legal aid centre in every single town with a population of more than 4,000 people. Clearly that is impracticable. Clearly it is extremely costly. I would urge the Minister of State to bring what influence he can to bear on the Government to change that system.

This whole question of legal aid is but one step in the process of achieving access to justice. I had the privilege a couple of years ago of attending a conference in a European University institute in Florence. Professor Mauro Cappelletti of that institute had undertaken a major study of the question of access to justice, and at the conclusion of that project his conference was held and experts were brought from around the world, including some people who were not so expert, namely, myself probably amongst some others, to benefit from the experience of those people involved in the project. The point was made that this provision of legal aid is just the very first wave in the achievement of access to justice, the other points involved being the extension of legal services and education on rights for members of the public, the protection of diffuse and fragmented interests throughout the community, public interest law, public interest advocacy and that type of thing. It further went on to deal with questions of dispute processing, not just within the judicial system but outside it. All of these areas are very important areas in achieving this very praiseworthy ideal of achieving access to justice. But this, the provision of legal services by subsidies or otherwise, is just the very first move in achieving that goal.

The point I want to make at the very outset is that the system that we have introduced is utterly inadequate and will not satisfy our obligations under the European Convention on Human Rights, and certainly does not satisfy the moral obligation that we have to people in this country who cannot afford to employ their own legal representation to fight their cases in the courts. At that conference in Florence an expert on the provision of legal services for the poor was Professor Michael Zander who is Professor of Law at the London School of Economics, and he read a very interesting paper on this whole question of civil legal aid re the provision of subsidised legal services to poor people. He came to the conclusion, very definitely, that in order to provide a proper system of legal aid it was necessary to have a two-pronged approach. One was the establishment of legal aid centres. The legal aid centres would be there not merely to provide legal advice or assistance to people but also to educate the public in the area in which the legal aid centre is based on their rights and so help people to pursue their own rights and not to have to rely on lawyers or the legal aid centres at all times. But Professor Zander also made the very important point that in order to provide legal aid to people who are away from areas in which the legal aid centres are based the existing services must be utilised, and the fact is that private practitioners are scattered throughout the country; most towns boasting a population of 4,000 people will have a couple of solicitors or practitioners within them. Enabling people to consult local practitioners in that way ensures that the first wave of access to justice is available on people's doorsteps. It is no good having it 40 or 50 miles away. It is folly and illogical and mischievous of the Minister to talk about overcoming this problem by extending the jurisdiction of the District Court and Circuit Court that sits in Thurles while he still ensures that the person who is going to be able to go to court in Thurles would, in order to get legal advice, have to go to Limerick or Waterford. That sort of logic is something that the Minister should not engage in, and I am pleased that the Minister of State has not referred to this particular philosophy in his own contribution to this House.

We have a very serious obligation in this regard, and it is something that we should not forget. I am a little disappointed that the protests from the public, and particularly from the free legal advice centres, seem to have simmered off a little bit since the establishment of these legal aid centres. Those people who are working in the centres and those people who have been associated with their operation and who have examined their progress are well aware of their inadequacies. I believe that the Minister, if he is serious about achieving access to justice, should immediately review the position on that, should benefit from the recommendations in the Pringle Committee Report which were quite clear on the subject, and also benefit from the experience that has been obtained in other countries through years and years of experience. We are very far behind in this country in that respect. It is something that we should be ashamed of, and we should immediately set about changing it. I urge the Minister of State to take my remarks in the spirit in which they are intended on that. If we do not improve the system it is absolutely no use extending jurisdiction of courts; people simply will not be able to employ the professionals that they must employ in order to get into those courts in the first instance.

The second point that I wish to make arises in relation to this whole question of extending the jurisdiction of the lower courts. It is quite obvious that the limits of the District Court and the Circuit Court have become inadequate for the functions that they should be able to perform. It is time, if not gone beyond the time, for review in this area. But I feel that the steps taken in this measure might be just a little bit severe. I also feel that in some respects sufficient thought has not been given to the problems that are likely to arise once this Bill becomes law.

If we take it court by court and start with the District Court there are a number of problems which I see arising immediately. The first is that we have an excellent staff working in our District Court system, District Court clerks and their assistants. But I would like to ask the Minister of State whether consultations have taken place with staffs of the District Court offices around the country to see whether they will be able to absorb the enormous increase in workload that is inevitably to flow from this measure. Make no mistake about it, the workload of the District Court is going to increase enormously. In the District Court in which I practise most often, in Thurles town, precedence is given, properly, to the work of the State, prosecution matters and other associated matters and ordinary civil disputes between private individuals appear last on the list. I can say from personal experience that it is not really worth while issuing civil proceedings in the District Court in Thurles, or in many towns in the area. The simple fact is that probably six or eight courts will have sat before the case is dealt with. That is the position at the moment in that particular court and in other courts that I have first hand experience of throughout the country. I shudder to think of what is likely to happen when the District Court assumes not just an increase of jurisdiction but the entire jurisdiction of the Circuit Court and more. That is the additional workload we are talking about placing on the District Court. I do not believe that the staffs of the District Court are in a position to take on this new workload. I do not believe that we have sufficient district justices to take on the workload and I believe that unless steps are taken our District Court system is going to collapse. I feel that the Minister would need to tell us an awful lot more of the steps he is taking in this regard before this Bill ultimately goes for the signature of the President.

The question of accommodation has been referred to by the Minister of State, and indeed by his colleague the Minister for Justice in the Dáil. The Minister for Justice in the Dáil referred to the fact that he was taking urgent steps to deal with the question of accommodation in the District Court. His contributions to that debate took place five months ago, and I certainly know of nothing that has taken place in those particular five months to improve the accommodation in District Courts throughout the country. I want to ask the Minister of State who is here today to tell me what has been done in the past five months and to tell me what is going to be done. I am not satisfied with vague references, and we have had nothing but vague references. The Minister of State has had to acknowledge the inadequacy of the District Court accommodation throughout this country, because it is nothing short of appalling. I attend District Courts—I can mention one in Cappawhite which takes place in an old community hall and the district justice sits up on a stage and there are several doors into the small hall, the noise of passing traffic is awful, the freezing cold of the court room is awful, and when I go to discuss matters of family law later in my contribution I will describe some of the scenes that take place there from time to time when family law matters come before that court.

Almost every District Court in this country is in an appalling condition. It is something that we should be ashamed of and if we hold our legal system in any sort of respect, it is something that we should have set about solving years ago. I am not going to blame this Government for that. I could not because it is something that has been let slip for decades. But the fact is that the Minister is introducing a measure here which proposes not just to double but to multiply the work of that court. We are going to consider another Bill in a short while, the Malicious Injuries Bill, which proposes to add another great burden to the work of the District Court. I say that the District Courts in respect of their accommodation alone are not fit to take on the work load being created by this measure.

I want to say one thing in relation to my colleague, Senator McGuinness, who received a belt of the Minister's crozier in the Dáil and the Minister of State's crozier here. She is perfectly right. I did not hear her original contribution. I do not know where she made that remark and I do not know the context of it, but it is justice on the cheap to stuff the District Courts of this country with the type of workload that we are stuffing down their throats at the moment. The simple fact is that some of them are finding it difficult to cope with the work they have at the moment. The accommodation which I have described and which I am sure very many Senators and Deputies are perfectly familiar with is inadequate, and it is wrong to take this step without first ensuring that the accommodation of those courts is improved. We have heard nothing from the Minister that has indicated what steps are being taken apart from an acknowledgement of the appalling conditions of those courts and an indication that something is being done. I notice that the Minister did not say that he was doing anything urgently. The urgency was in the remarks of the Minister for Justice five months ago. I would like, from the Minister of State, a progress report on the urgent steps in the past five months.

It is difficult to know what changes are going to take place in the work of the Circuit Court. The Minister for Justice indicated in the Dáil that he felt that there would not be any great change. This is because of the fact that their existing workload will now flow down to the District Court and the workload which the Circuit Court will be taking on should roughly match its present workload. He did not quote any statistics to substantiate that and I do not know whether statistics exist. The Minister might enlighten us on that. It is certainly something that we are not in a position to judge at all without some evidence being brought before us.

I would like to say that our Circuit Court is held in the same courthouses as the District Court apart from major metropolitan districts, and the problems that I have already cited in relation to district courts still arise and will continue to arise in relation to circuit courts. I might also add that in relation to delays in a number of the circuits in the Circuit Court the system is not proving to be adequate. I know in relation to the south eastern circuit lists are frequently adjourned, judges just have not got the time — and many of those judges sit until very late in the evening trying to get through lists. They simply have not the time to deal with the workload. I am sorry that the Minister did not use the opportunity presented by this Bill to examine the circuits themselves. For example the south eastern circuit is too big; it has got too much work to do and I believe it should be changed in some way. He would obviously have to negotiate with various interested groups and parties before decisions could be made in that. But, if this Bill were properly thought out all of these questions would have arisen and would in some way have been dealt with. Maybe they have been dealt with. If they have been I would welcome a response from the Minister of State so that I can assess that and we can consider them further when we go into later Stages in this Bill.

The Minister for Justice feels that the High Court is certainly going to have a lighter load. It should have a lighter load in the sense that it will no longer have jurisdiction for cases of values less than £15,000. I agree that that is the way it appears at first glance. But there is a problem in relation to that. That is that anybody who brings a case in the Cirucit Court and is dissatisfied with the result will automatically be able, by service of notice of appeal, to achieve a full rehearing of the case in the High Court. The present position in the High Court is that if one loses a case in the High Court, the grounds on which one appeals are very limited indeed and one's appeal lies to the Supreme Court. There is no provision made in this Bill for limited appeals from the Circuit Court. If a man brings an action in the Circuit Court and he is dissatisfied with the result, he merely serves a notice of appeal and he is automatically entitled to a full rehearing in the High Court. I have no doubt that this is going unnecessarily to duplicate an awful lot of work. I say further that the question of legal costs is an important one nowadays, and one to which the Minister has not really referred in his contribution, but it is one that was going to arise in that context. Insurance companies are likely to use this opportunity to appeal cases the results of which they are dissatisfied with in the Circuit Court. It is also certain that dissatisfied plantiffs will use the opportunity to have another bite at the cherry in the High Court. I do not know whether it has been considered by the Minister, but it is something that warrants consideration because, if it happens to any great degree, the workload of the High Court will not in any way be appreciatively reduced.

I want, in passing, to refer to the appalling delays occurring at present in relation to waiting for a hearing in the High Court. The Minister made reference in the Dáil to 14 or 16 months. I do not agree with that. My experience at the moment is that it takes nearly two years. Maybe I am an unlucky practitioner, but I do not see how that could arise. I have personal experience of delays of nearly two years in getting cases on for hearing in the High Court in Dublin. I have always been an advocate of setting cases down for trial at High Court sittings in provincial areas. We have the benefit of High Court sittings now in places like Cork, Limerick, Galway, Sligo, Kilkenny and some other places. Even those are now becoming clogged up with cases, so much so that the High Court sitting in Limerick at the moment, starting its second week of operation — and it just sits for two weeks — is only barely going to scratch the surface of the workload that it has to go through for those two weeks.

The obvious answer to that problem is to extend the operation of the High Court in provincial circuits. I think the High Court should sit in Limerick twice a year for a month if necessary, or two months if necessary and it should do the same in Cork, Kilkenny, Sligo and other places of operation. There is absolutely no reason for these courts being centralised in Dublin at all. It is not a question of having to reduce the status of the court in order to bring the court or justice to people. The same court can be sent down the country and the people will be glad to meet the judges of the High Court and the bar that goes with it and perhaps some of the problems I have already referred to we are likely to come by as a result of this Bill would be overcome.

I must also particularly welcome the increase in the ceiling for mental distress under the Civil Liability Act. As Members of the House are aware, the Civil Liability Act provided for a maximum figure of £1,000 compensation for mental distress suffered by the relatives of a deceased person. It is important to reflect upon the fact that that does not represent financial loss but rather the pain and sorrow and anguish suffered by members of the family of a deceased person. That £1,000 which was introduced in 1961 has remained unchanged for 20 years. It is something that we should not have tolerated; it is something that should have been changed quite some time ago. I recall acting for an itinerant family in which two of their children had been killed in a motor car accident and another three of the children had been injured. It was very difficult to explain to their parents how the child with the small scar across her forehead would get £6,000 or £7,000 from a court but that in relation to the fatality of two of their children the maximum amount of compensation available was £2,000. It do not think that that compensated that family for the enormous mental anguish that they suffered as a result of the appalling tragedy that befell them, and I must say that, as a Member of the Legislature at the time, I felt rather ashamed to have to try to explain to the people concerned that this was something that simply had not been attended to for 20 years. I am very pleased that that change is being made now. I understand of course that it is difficult with the problems that Departments face in getting legislation ready and bringing it before the House. But there are ways out of that problem and a way out has been overlooked in this legislation.

There should be provision in this legislation to allow the Minister to bring a draft order before the Houses of Oireachtas to increase this limit at any time. I would ask the Minister of State to consider doing that in this instance. There is no need for any great Bills to be introduced to change figures like that. It is something that could be changed in a very simple way; it could still come before the Houses of the Oireachtas and it would overcome the type of oversight or dragging of feet that has occurred in relation to this.

It would be inappropriate in dealing with a courts Bill not to refer to the part played in our court system by the Judiciary. We have a Judiciary of which we can be justly proud; we have a system which, even though judges are appointed by the Government, has worked extraordinarily well. There have never been any serious accusations or allegations of jobbery or or jobs for the boys or anything like that in it. We have had a Judiciary that has served the country extremely well. In very difficult circumstances their job can sometimes be a dangerous one and at other times a boring one. Their job is onerous and sometimes involves travelling around the country, or travelling to a tribunal sitting somewhere and remaining away from home for months on end. But they have served the country extremely well and we should be particularly grateful to these, one of the greatest sections of the public service.

I have also to say that there are very occasional instances where members of the bench may not act in accordance with the standards set by the Judiciary as a whole and expected by the community. My own experience of this is limited to observing members of the bench being perhaps personally offensive to members of the public giving evidence, or indeed to practitioners. I have first hand and personal experience of such occurrences. I must say that they do not occur all that often, but the fact is that they do occur. I feel that they should not occur and that some system should exist whereby some steps can be taken to try to alleviate problems caused by such circumstances. I do not know what type of system we could have. As Members of the House are aware, the only system we have of dealing with members of the bench who fail to fulfil the duties thrust upon them is one of impeachment, and that is not at all appropriate for what I am speaking of now. I want to make it absolutely clear that I am not talking about major miscarriages of justices or anything of that nature. I am merely talking about instances where justices or judges of whatever court, perhaps through their own personality or characteristics, are inclined to cause offence to people in court. The type of system that I would suggest would be one whereby a complaint might be made to the president of the court concerned, District Court, Circuit Court or High Court and an inquiry would result.

An Cathaoirleach

The Chair feels that the Senator is going somewhat outside the terms of this Bill.

Mr. Molony

I think that when it is proposed to extend the jurisdiction of the courts I am entitled to make a passing comment on the people who are a central part of our court system. My comments are almost at a conclusion at this point and I would ask you, having——

An Cathaoirleach

There are specific arrangements in regard to the conduct of judges.

Mr. Molony

I acknowledge that completely. I would ask you, having allowed me to wander into the area, to give me the opportunity to come out of the area.

An Cathaoirleach

The Senator should return to what we should be discussing here. The Chair feels he has made his point.

Mr. Molony

I would ask you to allow me to make one concluding sentence because I think, if I leave it hanging as it is, it might appear to be unbalanced, because there is another aspect to it. In a complaint system like this, if a complaint is substantiated there should simply be a register on which the complaint is recorded and that would act as a deterrent. The possible danger involved in doing that kind of thing is that some irresponsible people may choose to make frivolous or vexatious complaints. I would suggest that, in circumstances where a person who makes a complaint is found to have made a vexatious or frivolous one, sanction be imposed on such complainant. I think that would overcome the problem. I want to make it quite clear that I regard the independence of the Judiciary as most important and central to our entire legal system, and I offer these remarks to ensure that the dignity and respect in which our courts are held is maintained in the future.

The other major aspect of this Bill arises in relation to family law. The changes proposed in this area are very extensive indeed. The conclusion I would have to come to is that it is a mistake. I am aware that the Committee on Court Practice and Procedure are, at the moment, investigating this area. But I do not believe that there is anyone, or any group of persons or organisations in this country now, who doubts the fact that the proper way to deal with family law disputes is outside the present court system whether it is by way of family tribunals, or family courts. Almost everybody now acknowledges that the court system as we know it is an inappropriate forum to resolve family related or family law disputes. I feel that by creating this new jurisdiction for the Circuit Court and increasing the jurisdiction of the District Court in various areas we are providing an excuse for delaying the introduction of family law tribunals. That would be a very great mistake.

I know the Minister of State is very concerned about this area and I feel that he agrees with the necessity to introduce family law tribunals. I would ask him to consider taking more immediate steps in relation to the establishment of such tribunals. I have seen the most awful scenes in courts where family law disputes are dealt with at the moment. They are held in camera but that means, for example, that when lunch time comes at, maybe, a quarter to one, court is cleared and the District Court clerk makes an announcement that everybody except those concerned with the cases of Ryan v. Ryan and Maher v. Maher should leave the court. Everybody is aware that a family law court is about to take place. The public leave the court and one sees two couples, maybe with a couple of supporative friends beside them, waiting on to have their matrimonial linen, as it were, washed out. That type of approach is clearly inappropriate. I must say though that district justices, in my experience, have dealt with this whole area of family law—and their responsibilities in this respect multiplied over the last few years —in very compassionate and very humane ways. They are doing a tremendous job in that respect. But I do not feel it is their function. I feel that we should relieve them of the burden altogether and provide a proper system of family courts to deal with these matters.

There are certain urgent applications, for example, applications for barring orders—although one would not want to be in a hurry at the moment in applying for a barring order—and District Court sittings may be appropriate for that sort of thing, although I do not think so. I know that the Minister is going to propose in Committee the removal of the section dealing with barring orders in this Bill because of another Bill before the Dáil at the moment. My own feeling is that I would leave that one provision as it stands at the moment. Let us leave out the rest for the moment and get on with the job of providing a proper dispute resolution forum for family law matters. This is an area in which we have had discussions for years and years and I think it is time to come to a conclusion. I did a brief search today for a copy of the Fianna Fáil election manifesto of 1977 but I could not find it. Senator Brennan might be able to give me the details.

Mr. Brennan

They are sold out.

Mr. Molony

I would say they are—and burned out as well. I seem to recollect that this Government, if elected to office, were going to introduce family law tribunals. They have not done so and I do not believe that the steps taken in this particular legislation could, in any way, be construed as fulfilling their obligations in that regard. On that fighting note on a political level appropriate to an election year or an election season I shall conclude.

Mrs. Robinson

I am somewhat surprised at the absence of any showing on the other side. I hope this does not mean, as indicated to me, that there is going to be an attempt to have all Stages of the Bill discussed today. Perhaps the Minister could clarify that?

Mr. Doherty

No.

Mrs. Robinson

I begin with the sad comment that this Courts Bill, which deals with a number of other areas, shows that the Government have turned their back on the establishment of family courts or tribunals and have also dodged the issue of the urgent need for broad-based reform of family law remedies. I particularly regret this, because the urgency of the need, both for properly structured family courts and for reform of the basic family law remedies is becoming more urgent and more critical month by month. At the moment anybody who deals professionally as a lawyer with family law cases knows the extent of the problem.

Part of the problem is that family law in Ireland is becoming more and more complex, more and more convoluted and more intricate because we lack a remedy for legal dissolution of a marriage. Therefore, to the extent that family law remedies stem from a breakdown of marriage they just go on and on, because there is no way in which the parties can get a legal full resolution of them. It is in this context that if there were to be broad based reform of family law remedies, that broad based reform would have to include a remedy which would allow for the dissolution of marriage, in other words provision for divorce. Clearly, this Government have shown no political will and no recognition of the need for divorce. In the absence of that, the least one could expect would be an approach to a Courts Bill—which does not come along all that often on the legislative programme —which realised the necessity, as an urgent priority, for proper family law courts. This is the aspect of the Courts Bill which I propose to concentrate on, because it is the area which has given rise to most concern and on which it is to be hoped we can at least try to do something by way of amendment on Committee Stage.

The Minister referred to the 20th Interim Report of the Committee on Court, Practice and Procedure which made the proposals for increasing the family law jurisdiction of the District and Circuit Courts which are incorporated in this Bill. I would be very interested if he could refer to other authorities on family law in this country who support the recommendation of the Committee on Court Practice and Procedure, either to submissions made by professional bodies or experts on family law or anybody else who favours, from knowledge and expertise in the area, the kind of proposals on family law jurisdiction which are contained in this Courts Bill. It would certainly be news to me.

The Minister has singled out Senator McGuinness. It seems to be the practice here to single out one Senator by name in the opening speech, rather than what I had always thought was the normal course of waiting for a reply to what was said in this House if one wants to pick out particular issues. He singled out Senator Catherine McGuinness for her criticism of the provisions of this Bill as they affect family law jurisdiction and the extension of that jurisdiction in the Circuit and District Courts.

Senator McGuinness is in the main stream of expert comment on this Bill. She certainly is in the main stream of any comment I have heard—whether it be in the Law Library, whether it be from social workers, even from some members of the Judiciary, about the advisability or desirability of implementing the measures in this Courts Bill, in so far as they would extend the jurisdiction of the Circuit and District Courts in family law matters under present circumstances. This is something which may need a certain amount of explaining. In theory, the transfer of jurisdiction to lower courts should make remedies more accessible and, therefore, more available and more helpful to people. That would be an aim which we would all share and have as a high priority. That is not the case when, as has already been outlined by Senator Moloney—and I support the points he made on this—the accommodation in the courts in question is totally inadequate, when the remedies do not lend themselves to being dealt with under the present rhythm and practice and procedure before these courts, whether it be before the District Court or before the Circuit Court moving from one circuit town to another and dealing, first of all with criminal State cases and only later and at the moment with less priority with family cases.

Apart from these problems which are very real, you have a lack of privacy, of consultation rooms, of expertise in the Judiciary itself. This question of expertise is one worth considering. It is worth remembering that until 1970 there was no course in family law in any of the law schools in Ireland. It is fair to say that no judge at present holding office here would have taken a course in family law. That is not to say there are no experts in the Judiciary. Of course there are. They have built up their expertise both as practitioners and as judges. They have shown remarkable skill, humanity and expertise.

We do not appear to place enough emphasis on the need for further development and training of our Judiciary. Just because people have been placed on the bench is not, in my view, a reason to believe that they have all the wisdom and all the skills, particularly in this area of family law. If we are proposing to transfer jurisdiction in very complex and very important law matters, such as custody of children, judicial separation, divorce a mensa et thoro to the Circuit Court in the case of the latter and to the Circuit and District Courts in the case of custody and guardianship of children, then serious consideration should be given to ensuring that the resources of additional training and expertise, and even the wisdom of the experience accumulated at the moment in the High Court exercising in family jurisdiction, are available to Circuit and District Court judges. That is an important area where we have been very slow to take the steps which are common in other jurisdictions, where the Judiciary are much more involved in a learning process, in seminars, in ensuring that those who sit on the bench in these cases have an expertise.

Even if we were to do that, a number of my fundamental criticisms of this ad hoc superficial approach to increasing the jurisdiction of the Circuit and District Courts stem from a Government lack of awareness of the unsuitability of the procedure itself and of the remedies which we offer as legal solutions and legal assistance to people who have family problems. Take, for example, the proposal in section 5 of this Bill to transfer the jurisdiction in divoce a mensa et thoro to the Circuit Court. That is a very brief section, that there should be vested in the Circuit Court the jurisdiction specified in section 7 of the Matrimonial Causes and Marriage Law (Ireland) Amendment Act, 1870 in respect of divorce a mensa et thoro. The Minister is transferring a jurisdiction which happens to be the fullest jurisdiction for granting a judicial separation which exists under our law in the absence of a full legal divorce. He is transferring a jurisdiction which has remained unchanged, as far as its statutory form is concerned, for 111 years, a jurisdiction which is very unfamiliar to a great many practitioners because it is so cumbersome, because its language is so outdated and outmoded, because it relies upon proof of matrimonial offences, which means that witnesses have to be called to prove cruelty, adultery, or, in rare circumstances, unnatural practices. It, therefore, involves fairly lengthy and contentious hearings, which are all to take place in the Circuit Court sitting in whichever circuit town it may be before it moves on to the next town, while all the other cases on the circuit wait for these matrimonial cases involving petitions for divorce a mensa et thoro to proceed.

It does not sound real, or as though it could happen like that, and it does not sound as though it is going to help the victims of the system, the parties to a marriage which has irretrievably broken down who are seeking the full protection of the law. What they want and need is to have a family court or tribunal which is established for the purpose of considering remedies in family law, from separations to matters affecting maintenance, custody and access, guardians for children and the whole gamut of family law relationships, which places an emphasis in the case of matrimonial law on conciliation and on helping and supporting a couple if it is possible for them to make the relationship work and to live together on the basis of the support and help offered at an early stage, at a stage where it can help to affect the conciliation, if conciliation is possible, help which comes at the stage where it can be preventive. We hear a lot of talk and important discussion about laying emphasis on preventive medicine. Most of the strategists, in deciding on the way in which we should try to allocate a medical budget and try to provide for and improve the health of the nation place an emphasis now on more preventive medical care, on anticipating problems, on providing, in advance, rather than on picking up the pieces afterwards and having more of an ambulance and emergency service when it is too late.

Similarly, in the area of family law there needs to be this emphasis on preventive legal care and preventive legal help. This involves law being accessible to people which under the present narrow legal aid system established by the Government is not a reality for a great number of people who need help in this area. They need access to legal expertise and they also need access to a court forum and a whole procedure which is geared to help them with their family law problems, not one which actually encourages them to accentuate the differences between them, where they have to dispute, for example, over the custody of children, where they have to allege and prove matrimonial offences against the other spouse in order to get the remedies, where you have the lawyers on behalf of one spouse proving a matrimonial offence in order to obtain the particular remedy. This whole approach is based on concepts and perceptions of the marriage relationships which are no longer part of any modern society or any modern view of what the role of law is in this area. Yet, we see no indication of a recognition of this by the present Government, or of an intention to make any changes in it. The superficial transfer to the Circuit Court of jurisdiction in divorce a mensa et thoro under present circumstances is about the most inadequate way of bringing about reform in family law that one could envisage. It is not going to improve the situation for the small number who would have access to this remedy, because of its cumbersome nature, the old-fashioned language and procedure of the citation and petitions, and its lack of relevance to the real needs of a family where there is marriage breakdown.

The transfer of important jurisdiction in relation to the guardianship and custody of and access to children, simply by now providing, by amendment of the Guardianship of Infants Act, 1964, that the courts in question will be the District and Circuit Courts rather than at present the Circuit and, almost exclusively, the High Court, shows an insensitivity and a lack of awareness of what is involved in most cases relating to custody of and access to children. A lot of this stems from the complexity of relationships in modern Irish society where, very often, an action is brought under the Guardianship of Infants Act as a substitute for some other remedy recognising that a marriage relationship has legally broken down. There is not any useful legal remedy, so the moving party, the plaintiff, seeks the custody of the children and uses the procedure possibly also to seek an order for maintenance of the children, possibly combined with an order for maintenance of the spouse if the wife is the moving party in the circumstances and is not the main breadwinner, as is the normal pattern.

The problems become very much more complicated when there are second and, possibly, third relationships or when the court has to weigh up the primary question of what is in the best interests and welfare of the children concerned. Even under present circumstances, these are difficult cases, requiring a great deal of thought and consideration. The system is only barely adequate because it is this contentious procedure, rather than a procedure which takes place in the context of a properly established family court or tribunal whose primary purpose and whole focus is one helping to provide a legal remedy which is relevant to the particular problem of the family which is coming before the court, where you have the back-up of experts' reports and expert assessments of the needs of the children of the relationship, of the suitability of one or other parent to be the main parent with custody of those children and where the judge has all the benefit of this expertise, is also a person trained and equipped to make very difficult decisions and pronounce decisions for families who have come before the family court because they themselves are unable to resolve the particular problems.

It would be important to get away from the present emphasis on the contentious procedure, on the narrow rules of evidence which apply where a lot of the family context is excluded from the knowledge of and from the hearing of the judge who will be ruling on the matter and where there has been a simple extension of common law court procedure which is very adequate for resolving civil disputes in the area of contracts or torts or property disputes, but which is not the appropriate and best forum and processing procedure for resolving family law disputes.

These are the real issues which concern people who want a remedy for either a full breakdown of their marriage or a very difficult and, for them, a very harrowing dispute relating to the care and custody of children, or maybe a financial dispute relating to the lack of support being provided by one spouse for the other spouse and children, or, possibly, difficult areas of violence within the family. Whatever the problem, at the moment we do not provide a proper remedy for it, and the saddest thing about this Bill is that it will worsen the problem.

As with legal aid, perhaps we have to have a bad system in order to create an awareness of the need for more substantial and broad based reform. Perhaps we have to see the real difficulties, which I certainly envisage and I know a number of other family law experts in this country envisage, in transferring the jurisdiction in the manner described under present circumstances to the Circuit and District Courts. Perhaps we must have a year or two of the real difficulties which this poses in order to win through on the merits of doing it a different way. Then we may start with a Children's Bill which performs an inadequate job, in order to make the mistakes and then perhaps learn, with the passage of time, a little wisdom. It is a great pity this has to be so.

It is discouraging to see the lack of political commitment to, and appreciation of, the present real dissatisfaction with the courts as a place to go for family law remedies. The Minister of State may not be a lawyer and, indeed, it may be hard to listen to lawyers in this House speaking with their semi-professional hat on, speaking of lawyers as well as politicians on this subject, but he cannot be unaware of the dissatisfaction felt by ordinary people who, go along either to a solicitor's office or to a court, particularly in many instances when a husband or wife goes along to the District Court looking for help, for a remedy in family law. I do not believe that this Bill will in any way provide a structured response to the sense of helplessness and the inadequacy of our present court structure and remedies. It does nothing at all for a reform of remedies, it just moves them down a court or two.

As I have emphasised, that in itself can be unsatisfactory from two points of view. Firstly, the remedy remains as unreformed and unsimplified as before and, secondly, the wider context of the complexity of family relationships in Ireland remains as a factor. We are now at a stage where, as a country, we will become of international interest because of the complexity of relationships here for the reasons which I have given, without a legal way of terminating these relationships unless you are well enough off to travel out of the country to get a foreign divorce which would be recognised in this country, or unless you are under the illusion that a Catholic Church annulment has done what you hoped it would, and ended a particular marriage relationship, and nobody has told you that this is not the case, that your second marraige is not a valid marriage and that children of that second marriage are not legitimate, and so forth. You can live in ignorance because you have not had access to legal advice, but that ignorance is, itself, a delusion and an insult to the people concerned.

At this stage, I confine my remarks on the Bill to this fundamental criticism of its provisions which relate to family law. I do this because in this House over the last number of years I have proposed motions and have participated in debates emphasising the urgency of the need for family law reform, for reform of the court structure, for reform of family law remedies and for a proper and broad based access to legal aid and advice. This Bill not only does not offer anything in this area, but also will worsen the position under present circumstances in the short-term for the unfortunate men, women and children who will be affected by it, who badly need a proper, broad based reform in family law.

I favour the aspects of this Bill in relation to increase in jurisdiction, increase in the award for mental distress from £1,000 to £7,500. I prefer to deal with those in detail on Committee Stage together with, as I hope, having some possibility of some amendments on the parts which, regrettably are unacceptable and all the more disappointing for being another opportunity missed. I agree with Senator Molony that another promise has been left unfulfilled. There was a promise of much more substantial reform of family law, and this promise, too, has gone down the drain.

Mr. E. Ryan

I welcome this Bill, the contents of which I agree with generally, although I have some reservations about some points in it. The increase in jurisdiction is perfectly acceptable and necessary, because inflation over the years has been such that it is certainly necessary to increase the jurisdiction of the lower courts. Of course, this Bill goes a bit further than merely providing for inflation. Again, that is justified. It is proper that the Circuit and the District Courts should be given a little more jurisdiction than in the past, in real terms. They will be well able to deal with the increased jurisdiction which will have the effect of removing some of the load from the High Court. Again, as far as the Circuit Court is concerned, some of its work will go to the District Court.

This will have the effect of improving the situation in regard to a number of problems that exist in the courts. Justice is too slow at the moment. Senators Molony and Robinson have commented on the delays of getting cases heard, and there is no doubt whatever that there is a great deal of delay at the present time. Not all of this, of course, is due to the amount of work that the courts have. There can be delays for a number of reasons. Very often, where you will see a case being held up for three or four years between the time the accident happened and the time it comes into court, some of the slowness is due to delay on the part of litigants, on the part of solicitors and on the part of counsel. It is not all due to the question of jurisdiction. Certainly, a lot of it is due to the fact that at the moment the High Court, in particular, is certainly not able to deal with the amount of work which it has. This sometimes means a lapse of three or four years between the time the accident happened and the time it reaches the court.

This, of course, adds to the cost of a case, and, again, moving cases and giving greater jurisdiction to the lower courts should have the effect of cutting down to some extent the cost of litigation, and this certainly is to be welcomed. Of course it is problematical exactly what the effect will be. How many will be able to move or will wish to move from the higher court to the lower court? Certainly there will be some move and this will make litigation cheaper, hopefully, it will make it quicker and it will give greater access to people. They will be able to have their case heard nearer home, and this is very necessary and very important and something which should always be kept in mind by the Department of Justice and by the Minister concerned when considering Bills of this kind.

There has been some reservation expressed as to the ability of the lower courts to handle the higher jurisdiction which they are being given. I have no hesitation, no doubt whatever, certainly in regard to the ordinary case. Family law is perhaps not quite so clear-cut, but certainly in regard to the cases which are normally handled by the court I have no doubt whatever that the Circuit Court or the District Court will be fully capable of handling the jurisdiction which they are being given by this Bill.

In regard, for instance, to the calibre of the judges of the Circuit Court I have no doubt whatever that they will be well able to handle this. In fact, the judges in the Circuit Court compare very well with their brethren in the High Court. There should be no difficulty whatever in their handling the kind of cases they are going to handle under this Bill. I would like to take the opportunity to add my voice to the tribute that has been paid to the integrity and capability of the judges of both the High Court and the lower courts. We should be very grateful and very proud to have them.

I am glad that the Circuit Court will now be able to handle cases of tort up to £15,000 and that they will be able to handle these without juries. I have never believed that it was either necessary or indeed desirable to have juries for the ordinary negligence actions in the High Court, for the running-down actions and factory accident cases which are relatively simple and where there seems to be no question of any principle involved as to why there should be juries. I think that in these kind of cases a judge alone could handle both the question of liability and the question of damages just as well, and indeed in many respects much better than a jury. When you come to ask a jury man for instance in regard to damages what is the appropriate figure in damages to give a person who perhaps has a broken hip or something of that kind — perhaps the jury man has never been in court before — it is a very, very difficult problem for him to arrive at a figure. In this kind of situation a judge would have much more experience and would be much better at dealing with that kind of thing.

The figure which used to be very much lower — it used to be £2,000 — is now £15,000. We are increasing the jurisdiction to £15,000. This is a figure which will be capable of being handled by the Circuit Court and capable of being handled without a jury. If cases of that kind up to that figure can be handled without a jury it is difficult to know what principle is involved which makes £15,000 right for a Circuit Court judge alone but not right if it is likely to be £15,001.

The jury system, apart from not being necessary, has many shortcomings. It certainly adds to the costs of cases, adds to the time taken and adds to the complexities of these cases. Juries have had the effect over the years of increasing the amount of damages awarded and the legal costs involved, to an extent which many people would consider quite unwarranted. It is, of course, a matter of opinion what is an appropriate amount of damages for a particular injury, but it is of interest and relevance to contrast the damages awarded in the United Kingdom, where there are no juries, with similar cases here. As far as comparisons can be made, damages awarded here are something of the order of 50 per cent higher than similar cases in the UK. We inherited the jury system, as we inherited most of our legal system, from the UK, but they abolished civil juries during the Second World War and have managed very well without them ever since.

Damages tend to be higher here because members of the jury have to decide, as I said a few moments ago — and often for the first time in his or her life — what an appropriate figure would be for a particular injury. Neither counsel nor judge can suggest what the figure should be. Consequently, the jury is almost literally in the position of being asked to think of a figure, to take a figure out of their head. Usually they think of a high figure because naturally they have sympathy for the injured person. Costs are very much higher than they would be where there are no juries for a number of reasons, but two in particular. Jury actions entail lengthy speeches to jury by counsel on both sides and a charge by the judge, which often means that a case which could be finished in one day without a jury takes two days, a two-day case becomes a three-day case and so on. The second reason why costs are very often higher is that the findings and awards of a jury are often so unrealistic that it is necessary to appeal to the Supreme Court, thereby incurring extra costs for the appeal, a new trial and so on.

Perhaps in the remarks I have made it may be suggested that I am looking at this entirely or very largely from the point of view of insurance companies. Perhaps in that case I should declare an interest in so far as it is necessary to do so. I am associated with an insurance company, but the point I want to emphasise is that premiums are decided on the history and experience of claims. They are decided on the costs, damages and claims over the previous few years and they are increased if these costs and damages go up. In the long run it is not the insurance company who has to bear the added cost, it is the motorist or the employer or whoever has to pay the premium. The public in the end have to pay these higher damages, have to pay increased premiums to provide for the increased cost of damages.

The cost of motor insurance, for instance, has been a matter of controversy and complaint for many years. The higher cost is unquestionably related to high damages and costs involved in motor accident cases. I think an even more serious aspect is emerging in recent years. An increasing number of negligence actions are in respect of injuries sustained in industry, commerce, mining and so on. The high damages involved must inevitably have the effect of increasing the premiums for the insurances carried by industry which, in turn, will have a detrimental effect on the costs of production and the competitiveness of the industrial firms concerned.

Finally, I would like to say in regard to the jury system that if the extra costs created could be shown to be necessary in the sense that only by such a system could justice be done then the burden would have to be accepted. In my view, and in the view of many others who have long experience with the system, trial by judge alone without a jury would be just as effective, and in many cases more effective, in ensuring that justice was done to the parties concerned in such action.

Under the new jurisdiction we will have an opportunity of seeing circuit courts dealing with very much higher jurisdiction, dealing with cases up to £15,000. I hope that when we have experience of that over a year or two and when it proves to be successful — as I am quite sure it will be — then perhaps the Minister will reconsider the question of juries in the High Court.

In regard to family law I speak with some hestitation because I do not profess to have any professional or practical experience of the work of the courts in family law. In general terms I think the Minister is justified in giving jurisdiction to the lower courts. There has been tremendous growth of family law litigation in recent years and it was inevitable that jurisdiction would have to be given to the lower courts to provide accessibility to those who were involved and to minimise as far as possible the cost in these cases. It is probably true that for a while the new system may not work perfectly, but even in the High Court family law is going through a process of adaption and review and I am sure there will be significant changes in regard to family law in the coming years. It is appropriate that family law should be established in the lower courts so that that adaption and review can take place there as well as in the higher courts. I have no doubt that as time goes on the hearing of family law cases will prove to be successful and satisfactory in the lower courts. I see no reason at all to believe that these cases, certainly in the Circuit Court, will be any less satisfactory than they are at the present time in the High Court.

The principal objection seems to be the question of accommodation in regard to extending the jurisdiction, and nothing in this Bill or any other Bill is going to make any significant improvement in this regard. This is purely a matter of providing better and more courthouses. I know that the Minister is doing his best to deal with that problem, and as time goes on I hope it will be improved and eventually will prove to be satisfactory.

Section 22 of the Bill deals with the question of interest. I think a case can be made for providing discretion on the part of the court to pay interest in some respects. It is justifiable in the case of special damages. For instance, if an injured person has to pay hospital expenses or garage repairs or he has not been able to earn wages and possibly has to borrow money until his action is heard, there is loss involved here and on the question of special damages there is certainly a case to be made for paying interest.

In regard to general damages, damages for pain and suffering, a different situation exists, and it would be quite inequitable for the defendant to have to pay interest on the general damages. I say this because general damages automatically increase as each year passes. In the case of a person who was injured four years ago, if his case was heard within one year the general damages might be perhaps £5,000; if it is not heard for another year, with inflation and the passage of time, the general damages would probably go up to £6,500 or £7,000 and so on, depending on the time which elapses. There is an automatic increase in general damages as time goes on and where damages might be £5,000 after one year if the case is not heard for four years they would certainly be £10,000. To have to pay interest on the £10,000 rather than what would have been appropriate three years before seems to me to be quite unjustifiable. I certainly would hope that the court would not feel that it would be appropriate to award interest in these cases.

In regard to the increased figure for mental distress, I think it is proper that this figure should be increased. It was originally £1,000. It was never regarded by any stretch of the imagination that this was based on any scientific process or anything other than the fact that it was felt that some figure should be awarded to somebody who suffered mental distress. In view of the time which has elapsed since the figure of £1,000 was first put into the Bill, I think £7,500 is appropriate now. It would be impossible to say that £7,500 is enough or to say that it is based on anything other than a figure that will provide some kind of solace for the person who has lost a relation. It can be said that no figure would be sufficient, that the mental distress that some people suffer is such that no figure, no matter how high, would be of any compensation or any use. In a sense one could say that having any figure at all is irrelevant. It is merely a gesture, an acceptance, a realisation that a person is entitled to some kind of damages for mental distress, and I think the figure which is being put in this Bill is, in all the circumstances, an appropriate one.

Mrs. McGuinness

I welcome the fact that we are to have a separate Committee Stage on this Bill. I was afraid from what was said on the Order of Business that perhaps there would not be a separate Committee Stage. I think this extremely important legislation and as such it well deserves section by section consideration, particularly as it is a kind of uneven piece of legislation in that some of the things brought in are very obviously desirable whereas others I feel are not desirable. I am very glad to hear that we will have it on another day.

There are a number of aspects of this Bill that I greatly welcome. For instance, it is obvious that there was a clear need to extend the jurisdictional limits of the District and Circuit Courts in contract and tort which were fixed about ten years ago. We all know what inflation has done since then. It has reached the stage now where today if you are drawing up pleadings in a case where in a car accident there was just damage to one small car, provided the car was relatively new you may find yourself outside the £2,000 jurisdiction without ever having any personal injuries coming into the matter at all. This seems to me to be quite clearly ridiculous. Such matters should be dealt with in a limited jurisdiction and should not be occupying the time of the High Court. In principle, I would certainly welcome a considerable increase in the jurisdiction of the lower courts in these various matters.

I welcome, and perhaps rather more unreservedly than Senator Ryan, the provisions as regards interest. I welcome in particular the increase of the solatium provision from £1,000 to £7,500 because the £1,000 fixed 20 years ago was certainly not at all a realistic figure. As has been pointed out, it creates a very bad impression if someone who is even rather slightly injured in an accident can get so much higher compensation than what the family get from the death of a loved one. However, I have a couple of reservations about this. First of all, there has been a great deal of reference to the delays in the High Court. Most certainly there are long delays in the High Court, and this is very undesirable. At the moment in the Dublin circuit at any rate there is the very good position where there is really comparatively little delay in bringing cases before the court. When we say this we ought to look at the position in the Dublin circuit say four or five years ago when there were enormous delays of up to two years or so in bringing cases. This position was ended by enormous and very creditable efforts by the Circuit Court judges and the Circuit Court officials, and particular credit should be given to the present President of the Circuit Court for his great efforts in sorting out this position. Sometimes it has been done at the cost of long lists and very late sittings for the Circuit Court. If we move too much into the Circuit Court now, may we not move the delays downwards from the High Court to the Circuit Court? I realise of course that more jurisdiction is also being moved to the District Court but there is a danger that we may recreate the position in the Circuit Court where we will have considerable delays in the hearing of cases.

As regards the position of juries, this is something to which I will refer on Committee Stage. It is undoubtedly an erosion of the position of civil juries that so many more cases will be moved out of the scope of civil juries. While I appreciate what is said about the level of damages and so on, I cannot help being somewhat suspicious that the most vociferous lobby and the most heavyweight lobby against the use of civil juries are, in fact, the insurance companies who are the people who feel they stand to gain financially from getting rid of the civil jury. This raises a certain number of questions in my mind which I can refer to at a later stage in the Bill.

As regards the possible overloading of the District Court, this is a very real danger in that the District Courts have about as much as they can handle already and to put a great many more tort and contract and civil dispute cases into the District Court may very well just break the camel's back as regard the staff, the district justices and facilities available. It is all very well to say if this does happen well we will then appoint more justices and we will deal with it this way. In fact, you cannot appoint more justices if you have not got anywhere to put them. Very often this has been the problem. Certainly in the Dublin area and also elsewhere it is not just the question of having an extra justice but of having an adequate court building, adequate offices and so on to put him in. We cannot, as it were, float him in mid-air over some small town and say "We have provided more facilities for the District Court and we can have plenty more cases".

Secondly, there is the matter of the court buildings of which we heard in the Dáil debate and of which we have heard here again today. I will refer to this in more detail later when I am speaking on the family law changes in particular. Here may I say that both the Bar Council and the Incorporated Law Society, not to mention individual solicitors, have protested again and again and again about this matter over the years with absolutely no result. The Bar Council have in one document described the facilities as "appalling" and in another as "grotesquely inadequate". The Minister in the Dáil sheltered behind two excuses. First of all, he said that the state of the court buildings was not the responsibility of the Department of Justice but was the responsibility of the local authorities, which is perfectly true. We all know perfectly well that the local authorities have not got the money to deal with this and they are not going to because their priorities are arranged in such a way that they cannot do it. I have heard it said that the Minister did, in fact, commit himself to taking the courts into the Department of Justice rather than leaving them with the local authorities. There has been some reference to that, and I would like the Minister of State to clarify this position. Are the courts going to remain with the local authorities or are the Department going to take action about this matter? I think they really will have to have responsibility for it.

The second excuse made is that the system will be improved because we have brought in this new jurisdiction, and that after we have brought it in it will force us to improve the position. Believe me, if this is not done now as part of the package in bringing in the new jurisdiction it will not be done. Once the thing is law no change will be made, just the same as no change has ever been made on any of the previous occasions when the jurisdiction had been increased. It seems to me that to provide facilities for the hearing of court cases is a prerequisite of jurisdictional changes, not something which follows after them. Do we have to wait until the system falls apart at the hinges before we do something about this situation?

I would like now to pass to the changes made by the family law provisions of the Bill because this is, of course, the situation in which I have the most interest. As far as section 5 is concerned — the move of divorce a mensa et thoro to the Circuit Court — I have always regarded the whole action of divorce a mensa et thoro as somewhat useless and a rather undesirable remedy in that it gives very little, it costs a lot and takes a very long time. I do not think it will do a great deal to put it in the Circuit Court, but nevertheless it is just one thing to say we will put it into the Circuit Court. One of the difficulties about this particular form of action is the complication of the pleadings, the slowness of the various applications that must be made and the number of applications that must be made before you ever get near putting your case down for trial. All these add up the costs. Even if you take them in the Circuit Court they will also add up the costs. I would welcome a commitment from the Minister of State that they are going to do something about the whole procedure, about divorce a mensa et thoro as well, even if in the heel of the hunt it is not going to solve the problem because the woman is left tied to the fellow for the rest of her life. At the same time if we are going to use this medieval action we might as well use it efficiently rather than having it going through these endless hoops before we ever get as far as trial.

As regards the provisions on barring orders, I realise from the explanatory memorandum on the Family Law (Protection of Spouses and Children) Bill that this matter will be transferred to that Bill. May I just take the opportunity here of very much welcoming that Bill. I agree with the changes made in it and I welcome particularly the change that will give the Garda power of arrest for the breaking of a barring order, because this has been one of the major difficulties in this field. I am very glad to see that the Government are going to take this step. This will arise on the other Bill so I think there is not much point in discussing it at length here.

On the matter of the raising of maintenance limits within the lower courts, I do not see that there is very much wrong in principle in this because maintenance is a net issue. It is a relatively simple issue and is generally susceptible of clear proof on either side, both of one spouse's expenses, the other spouse's income and so on. Theoretically and generally it is what you could call a matter of limited jurisdiction as is referred to in the Constitution in the setting up of the courts which can be dealt with by lower courts. There are plenty of cases where difficulties arise, difficulties to establish people's income where they have no regular job or where they are self-employed and so on, but these difficulties will apply in a High Court hearing just as much as in the Circuit Court hearing. They are not very susceptible of any ordinary legal way of dealing with them anyway and I would not worry too much about that.

I have the chief objection to section 15 which transfers jurisdiction in the Guardianship of Infants Act to the District Court with appeal to the Circuit Court. I most vehemently oppose this section. I feel there are a few preliminary issues which must be got out of the way before I deal with this properly. First of all, the Minister for Justice in the Dáil and the Minister of State here have attacked me personally in Second Stage speeches for what I said about this change. Perhaps I ought to be grateful because this is fame at last, to be actually named as being the nigger in the woodpile, as it were. I would like them actually to read all that I said instead of just picking out a phrase here and there, but I must say that I am rather pleased to find I clearly hit where it hurt in what I said.

First, when the Minister of State says that virtually everyone but myself welcomes the Bill, I would love to know who it is that is expert in family law that welcomes this. I would share what Senator Robinson said about this. I am glad she said she thought I was in the mainstream of criticism, because that is the way I felt too. In his criticism of my speech in the Dáil the Minister implied that I was attacking my elders and betters; that I was disagreeing with learned senior counsel who appeared on the Committee on Court Practice and Procedure. Yes, I have disagreed with my elders and betters, perhaps, and I have disagreed with learned senior counsel on this and I do not apologise for it for one moment. Might I point out that most of my learned seniors do not practise in family law and they most certainly do not practise in the District Court. In how many guardianship cases that come even before the High Court are senior counsel employed? When people talk about the high cost of these cases they ought to realise that in the vast majority of guardianship and maintenance applications only one junior is employed and very often that junior is working for a negotiated fee of a low level with the solicitor because they know perfectly well that the client has not a great deal of resources to pay for it. These are clients who come above the legal aid level.

One member of the Bar membership of the Committee on Court Practice and Procedure does occasionally appear in matrimonial cases but the other I do not think ever does. I would not presume, for instance, to tell practitioners who appear regularly in the Special Criminal Court in Green Street how they should run their business. I would assume that those who practise in those courts knew what they were talking about. If I wanted to know how people feel about family law in the legal profession I would go to the people who practise in family law, and this I have done most carefully. I have gone around the Law Library and I have gone to solicitors who I know practise in this area, and all of them have expressed horror at this, even barristers who are faithful and enthusiastic members of the Government Party, one of whom suggested to me today that the best thing to do with this portion of the Bill would be to burn it publicly at the Fianna Fáil Ard-Fheis.

So, I fear I must reserve my right to disagree with all these learned people because I feel I have virtually all the family law practitioners on my side. The general attitude of the Bar in fact was shown by the statement which they issued after a special meeting on this Bill in November last. I understand that the Incorporated Law Society have made some of the same points. While I am disagreeing with a number of my elders and betters I might point out that perhaps my eldest and best of all, the President of the High Court, who is extremely involved in this sort of situation and who has a special responsibility for children under our legal system as he is presiding over the wards of court jurisdiction, is also seriously disturbed by this idea of moving the jurisdiction into the District Court. Perhaps the Minister just might admit that the President of the High Court has some idea of what he is talking about in this field.

There are also a couple of nettles to grasp here. First of all, in the Dáil a number of snide remarks were made implying that all the legal profession cared about were the fees they were going to get and that they wanted High Court cases because of the fees. This came out again most clearly in the Minister of State's speech today. I wonder would the Minister of State, or any other Minister, make that sort of remark about some other industrial or commercial group that happened to make comments on a particular aspect of legislation. As I have said already, it is quite unjustified in that the family law end of the High Court is not a high cost area. The cost of a guardianship of infants action is nothing like the cost of an ordinary High Court action, and the picture has been put around of cases with two and three seniors growing fat on the fees from an unfortunate woman who happens to be trying to get a legal separation from her husband. This simply does not apply; is just untrue. I would point out that if any of the people who are practising in family law wanted to make money that is not where they would be, because as any solicitor and any barrister will tell you this is probably the least lucrative and the most difficult end of legal business and if you want to make money you will move into conveyancing or insurance business or something of that sort; you do not turn to family law. As an excuse for the Minister to hide behind in face of the criticisms of the Bar Council this is extremely unworthy.

Another nettle is one's attitude to the District Courts. It is very easy to try to get rid of criticisms of the District Court system and of moving family law into it by painting it as an attack on the integrity of district justices, which it is not. It is much too easy to get rid of criticism in this way. It is not a personal criticism of district justices, but I would point out that district justices can only be as good as the system in which they work. As Senator Robinson pointed out, most of them were trained when there was no teaching in family law: they work within a system of summary hearings, small claims, small crimes, long lists, quick-moving cases. A large number of district justices are spread throughout the country. I am aware that they have periodic meetings in which they discuss problems common to them all and in which they try to bring work towards uniformity of practice, but that cannot be really achieved in the present situation.

One has only to look at the present situation as regards the granting of barring orders in the District Court. Anyone who has applied for barring orders in the District Courts will tell you that there are great variations in practice. It was put to me that some district justices will hand them out like hot scones, while others would require blood and guts all over the kitchen before they would actually give a barring order. There is already a big difference in practice, and the person before whom you get the case matters far more than the law very often. I would suggest that perhaps when we are bringing in new legislation on barring orders we might add some guidelines on the practice in granting barring orders, which should be added to section 22 of the Family Law Maintenance Bill, or to the new barring order provision, because it is expressed in section 22 that the barring order is just for the safety and welfare of the child or spouse. This is so capable of widely variable interpretation that some guidelines could be included as, for instance, in the Sale of Goods and Supply of Services Act where exclusion clauses were mentioned, that certain things were to be disallowed unless they were reasonable. Four or five guidelines were given as to what "reasonable" meant. Surely, guidelines could also be given as to what "safety and welfare" means so that one is not faced with the case that sometimes "safety and welfare" means you must practically be at death's door before anything happens while in another case psychological welfare and so on can be taken into account.

The same position will apply under guardianship of infants actions where the welfare of the child is the paramount consideration. Even in the present High Court judgments one does get variations as to what is welfare, what importance is to be attached to religious welfare, to social welfare, educational welfare and so on. How much more will this arise if you have your jurisdiction spread out among a very large number of judges in small courts? In the actual proposal made in section 15 it is noteable that, of course, jurisdiction is again repeated in the Circuit Court. Jurisdiction already exists in the Circuit Court in the guardianship of Infants Act. It is seldom if ever used. We must ask ourselves why it is seldom or ever used at present. This is something that was commented on by the Bar Council in their statement in which they said:

It is recognised that jurisdiction in guardianship matters is given to the Circuit Court in the Guardianship of Infants Act, 1964. From any information available it is clear that this has been most rarely exercised and very few cases indeed have come before the Circuit Court. It is suggested that this is at least in part due to the reluctance of the parties to accept a local venue. They are hardly unaware of the inadequacies of the courthouse accommodation.

We are talking about how wonderful it will be for people to have a local venue to have their family law matters heard. If this is so, if they are longing so much for a local venue, why have they never used the present Circuit Court jurisdiction? I would suggest that it is because (a) they see the inadequacies of the system and (b) they want privacy. They do not want to have their cases heard in a local venue where, as Senator Molony has said, there is local knowledge as to what is going on.

The main argument given on behalf of this is the argument of easy access to the courts. Let us make no mistake: I and many others like me are very much in favour of the idea of easy access to justice for everyone, of easy access to the courts and indeed of dealing with things at a lower court level where this can be done successfully. But I think we must say: access is fine, but access to what forum? There is no use in providing access if your access is to an unsuitable forum for the kind of dispute that you are going to deal with. This has been highlighted by all the discussion that has gone on for years over the necessity to provide family law courts separate from the ordinary system, because the adversarial system is unsuitable for dealing with cases involving the welfare of children, because the whole thing is not an ordinary part of the legal system. After all, I might point out that at present both District and High Court family law cases are heard in a separate building in Dublin when we do use this possibility and in fact as far as I understand it was the present President of the High Court who particularly pressed for the provision of this separate building in Ormond House and who was successful in getting it.

Mr. Cooney

He was pushing an open door.

Mrs. McGuinness

When Senator Cooney tells me he was pushing an open door I am prepared to accept this, but this building was provided and it was a step in the right direction but it is not enough of a step and in fact its facilities are now overloaded both in the District Court and in the High Court areas, and if the District Court is already overloaded in Ormond House, what is it going to be when we put all these other cases into it? I feel that this is a missed opportunity to provide a genuine, easily accessible venue for a proper discussion of family law problems; to give access to the District Court as the District Courts now are is not going to help the matter. In fact it is going to make matters worse, because what is being decided in these cases is the total future of a child. It is not just who ran into somebody in a road accident or who owes somebody a couple of hundred pounds. It is the future of a child who is often already damaged by the break-up of the parents' marriage.

There really is an urgent need for decent surroundings, for privacy, for availability of expert evidence and above all, again to quote the President of the High Court — since I must defer to my elders and betters — for calm and time. What you do not get in the District Court are calm and time. If a case goes on over a day it goes on over a day in the High Court and it is the problem of the court to find judges to deal with the cases on the next day's list. This cannot happen at District and Circuit Court level throughout the country, where the district justice or the Circuit Court judge must move on to some other place next day: they cannot let their lists run on and on and put off next day's courts. There will be very considerable practical difficulties in this way.

Speaking from the point of view of the Constitution, I feel it is very questionable as to whether jurisdiction over the whole future of a child's life in these custody cases is a limited jurisdiction, as it is envisaged in the Constitution, as being suitable for the lower courts. Again, it was pointed out by the Bar Council that Article 34.3.4º of the Constitution provides for courts of local and limited jurisdiction with the right of appeal as determined by law. It is suggested that the custody of the infant citizens of this State is not and never can be an exercise of limited jurisdiction.

I think this is highly questionable. I should also like the Minister to make clear whether in the change of jurisdiction contained in this Bill the idea is to totally remove this jurisdiction out of the High Court, because I suggest that, constitutionally speaking, the High Court has jurisdiction in all circumstances and possibly this would be an unconstitutional step. It is not clear from the Bill whether the Minister is adding jurisdiction or whether he is entirely taking away the jurisdiction of the High Court.

I have accepted that maintenance cases and probably barring order cases also are fairly suitable for hearing in the District or Circuit Court, but I feel that custody cases are qualitatively different, not just quantitatively different, and this in all its other aspects is a Bill about quantities, not qualities. One has only to listen to the list of fixed dates in family law cases when you will hear people saying about a case: "Your Lordship, it is just a matter of maintenance, merely a net issue. It will take about one hour or one and a half hours" or "It cannot run more than half a day." But if it is a custody case they will say: "Custody is an issue. This is a very different matter. We shall have to hear a lot of witnesses and the matter will need serious consideration. It is bound to take at least a day." In my experience that is qualitatively a very different thing.

The decision about the custody of children is one of the most vital decisions that can be made in any court and requires full examination of the whole family circumstances and often expert evidence from doctors, psychologists, psychiatrists, social workers and so on. Such family disputes require to be heard in helpful surroundings and in a confidential atmosphere and in a manner that will guarantee privacy to parents and children and to their legal advisers. Hitherto, virtually all those custody cases have been heard by the High Court and the whole procedure has been under the supervision and control of the President of the High Court, who has a special role in our legal system concerning the welfare of the children and has a particular personal commitment in this area.

The chief problem in these cases up to the present undoubtedly has been the problem of cost as far as access is concerned although it must be pointed out, as I have done, that this cost is well below the cost of a normal High Court action. The setting up of the Legal Aid Board's new law centres last year has been a step towards solving this problem — not a big step, as others have pointed out, but it is a step and we hope a step that will be carried further. I am pretty confident that it will be. I would say that this is the answer to providing access very largely, to give access to a reasonable forum by legal aid rather than by lowering the level of the forum in order to make it cheaper.

Our District Court buildings, as has been pointed out by many people, are totally unsuitable for family cases of this type. Most of them are small, old, decrepit and exceedingly unattractive buildings. Some are foul-smelling and rat-infested. Some courts are held in bars and rugby clubs and so on. In a survey of these buildings which was presented to the famous Committee on Court Practice and Procedure it was pointed out that only one or two of the courts had any form of waiting room and that none of them had any public toilet. This may be considered as bringing the debate to a low level, but if you have litigants who are involved in a matter that is highly nerve-racking and emotionally difficult, one of the things they need is a public toilet. I suggest that when we have not got these things it is no use saying that when the jurisdiction is extended the position will be improved — I do not believe it will. It is then too late anyway; we need the improvements first before we change the jurisdiction.

There is nowhere for a solicitor or barrister to consult a client. At present consultations take place on the stairs or in draughty hallways or even in the public street, as is particularly noticeable in Rathfarnham where one stands in the rain and talks to one's client. Or one may, in fact, go where there is a group of clients outside the court and ask: "Where is Mr. So-and-So?" And so you find your client.

This is not the sort of atmosphere for a family law court. I suggest that possibly the Minister for Justice and the Minister of State should pay a kind of patriarchal visit to Kilmainham District Court some time. Possibly the Minister of State has been in Kilmainham District Court before now, but if he just looks around Kilmainham District Court and the hordes of people sitting on benches waiting for summary justice, perhaps he will think about what that is like for people whose lives are falling apart around them through a matrimonial dispute and a separation, the end of their marriage. This type of situation in the courts is quite bad enough when one is dealing with petty crime or small debt or road traffic offences which are the present staple diet of the District Courts, but the idea of dealing with sensitive family law matters in this way seems to me nothing short of horrifying. I do not think that there is any point in having the hearings themselves in camera if the parties have to consult their legal advisers on the pavement outside the door of the court in full view of their curious neighbours.

As I have said before, it would make things more convenient if people in distress could have their cases heard locally, but the present Circuit Court jurisdiction, it appears, would show that it is precisely because of the reasons I am talking about that the local venue is not used.

Another item that has been mentioned in regard to this court is that it will be better to be able to hear appeals by way of rehearing in the Circuit Court rather than by way of the present form of appeal to the Supreme Court because this does not allow for the hearing of evidence and one is dealing only with the transcript of the High Court case and so on. This has, I agree, certain disadvantages, but nevertheless in the comparatively few guardianship cases which are in fact appealed to the Supreme Court, the issues have often been ones of law and of the way in which the evidence is interpreted rather than of the evidence itself. The Supreme Court has been very careful in many of its judgments to say they will not decide on this particular point in this way because they have not had the benefit of hearing the evidence. Having gone through the trauma of having one hearing of one's family problems in the District Court, and to have to go through the whole thing again in the Circuit Court, which I feel will happen very often, is not particularly desirable, and I do not think that it is very helpful.

Certainly, this happens at the moment in affiliation order cases, which are quite frequently appealed to the Circuit Court, and I have very often seen girls in tears in the witness box and various other things happen like this in these cases first of all in the District Court and then later the whole thing has to be gone through again in the Circuit Court. I do not know that we are really helping people much by giving an appeal by rehearing in this way.

Whatever superficial attractions this proposal may seem to have its main, real advantage is to the Government, who hope that they will have to spend less money on legal aid and on court provision and so on by bringing the jurisdiction down into lower courts. I feel very certain that such savings will not be spent on the long overdue remodelling of the District Court system. What is being given with one hand in providing a legal aid law centre is being taken away with the other hand in this new Courts Bill by shutting off jurisdiction to a suitable forum. Is this sort of saving of a little money more important than considering the welfare of our children carefully? I do not even think that there will be all that great saving, because there will be a need to appoint new judges and so on on account of this. I notice that it was mentioned that some of these things would not come into effect until 12 months after the passing of the Bill and that this would leave some time to improve the District Court system, but I would point out that that does not apply to the family law part, certainly not section 15, so they would be coming in immediately as far as I understand it. I am quite cynical about the possibility of improving the present District Court system; if we did not improve things before the Bill we certainly will not get them improved afterwards. I would ask the Minister even at this late stage to drop this section in particular and to take another look at the possibility of introducing a proper system of family courts which would give a genuinely suitable forum for the hearing of these disputes. Certainly they could be local, they could be accessible, they could be cheap, they could be readily available and need not employ expensive barristers if that is what is worrying the Minister but they would be a proper forum for the decision in family cases rather than the kind of hovels we are trying to move them into now.

I would draw the attention of the Minister of State to the conclusions made by William Duncan, the Senior Lecturer in Family Law in Trinity College, in an article on custody cases which he wrote for the FLAC magazine, FLAC File, recently in which he said: "It is time that we looked more seriously at procedures and structures for decision making in family law matters generally. Many other questions about custody procedures which are not immediately relevant to the Courts Bill need to be asked. Are we providing sufficient incentives and support to encourage parents to reach agreed solutions about custody and access? Would it be helpful to have a professionally staffed conciliation bureau linked in some way to the court system to provide families with help in the early stages of proceedings?" I might just add that this could perhaps be done by an extension of the present quite helpful social welfare system which comes under the Department of Justice.

The article continues: "Is too much emphasis placed on the interlocutory nature of custody decisions — i.e. on the freedom with which either parent can return to court to seek a variation where there has been a change of conditions? In order to avoid disruption in the relationship between the child and the custodial parent should we consider giving greater finality to custody decisions, restricting the possibility of variation to narrow and strictly defined circumstances?" None of these questions are dealt with in moving the jurisdiction into the District Court.

Mr. Duncan goes on to say: "The High Court has rightly established in recent years a reputation for the sensitive and painstaking manner in which it has dealt with custody cases. The present system therefore merited a far more detailed and thorough review than that given in the scant report of the Committee on Court Practice and Procedure. The proposals of that Committee which basically involve a downgrading of custody cases — proposals which are about to pass into law — seem likely both to prejudice the progress which the High Court has made to date and to exacerbate the weaknesses of the present system".

May I just end by asking the Minister to take another look at this situation and not to be afraid to change his mind?

Mr. Alexis FitzGerald

One of the justifications for many of the provisions in this Bill is the reduction in the costs of litigation. I do not think we can talk in any useful way about doing justice without looking at this question of the expense of litigation, and anything which reduces the expense of litigation is to be welcomed. Included in such a reduction would be taking a step that is not contained in this Bill. The Minister may say that it is not appropriate for a Courts Bill, but it is something of a scandal that you have in quite ordinary High Court actions both parties represented by solicitors instructing three members of the Bar, two senior counsel and a junior, where in like cases in the United Kingdom one junior counsel might well alone be instructed on behalf of the plaintiff and one of behalf of the defendant.

The Minister for Justice has a role in the question of legal fees, and if the Minister for Justice has not a direct role in the matter of counsel's fees, if it is necessary for the discharge of justice that he should have a role then he should take power to interest himself in this matter and to take, on behalf of the public, steps to protect the interests of the public.

I welcome what Senator Eoin Ryan said in the course of the debate, and agree with what he said on the subject of the jury system. The jury system as it operates and the extensive way in which it does adds considerably——

Acting Chairman (Séamus de Brún)

As there is a division in the other House I suggest that we adjourn for 15 minutes.

Sitting suspended at 6.57 p.m. and resumed at 7.12 p.m.

Mr. Alexis FitzGerald

In my agreement with Senator Ryan's observations about the jury system I would like to make the point that juries have a function. I will be suggesting a change in this Bill which is taking away from them a function they ought to retain. What are our Four Courts at the moment largely clogged up with? The results of motor accidents. One of the good things about this Bill is that it gives us a chance to see how judges, without a jury, will operate in the disposing of the damages for injuries which result from motor accidents. If what Senator Eoin Ryan has said is correct — if anything I think he understated it — and if decrees in Irish courts are for amounts 50 per cent in excess of those normally awarded in United Kingdom cases and if this is because of the jury system, then we may be able to go ahead and make inferences from that about very important changes that may be made to benefit the running of the whole court system.

It is undoubtedly true that the existence of juries delays the cases. They extend the time required for proof and, let us face it, lawyers who have been in a few running down cases have learned their business. There is nothing particularly skilful involved in what they are doing, but the awards of juries are so enormous because of the national ability to give away other people's money, the juries' decrees make the sums involved so important, that it justifies the insurance companies in briefing the best people they possibly can and paying them anything you like to be there for the cases. The effect of our failing to face the consequences on our legal system of running down cases is, in my opinion, which has been formed after a very long period of time, I regret to say, that the quality of service you get in the Law Library in my lifetime has greatly decreased — not increased. There is a great deal less expertise available now at the Bar than there was when I was a young man because there is an easy income to be made out of what are not difficult cases.

Costs and problems arise in applying the no-fault system, but I would like to see examinations made in the context of the modern costs of running down cases in the High Court. I would like a modern analysis to be made, and I wonder whether we would not very greatly reduce the whole cost of running a car, because a consequence of high decrees and heavy expensive litigation is, of course, increased insurance premiums. It is not a question of insurance companies exploiting the situation. There is exploitation from the structure and I regret to have to say that it comes from professional gentlemen, but let us be fair to professional gentlemen. It is very hard to ask professional gentlemen or any other kind of gentlemen to take steps voluntarily to reorganise their lives so as to reduce their income. It is for other people to look at that situation and see whether the incomes generated under this system are justifiable. I do not think they are justifiable for what is given in return. Obviously, I have a loyalty to my own profession and I recognise that good advice should be very well paid for, but by the man who hires the adviser, not by someone else who is going to have to pay the bill under taxation if the hirer is inevitably going to — or is extremely likely to — win the case, and the costs of the litigation fall on the insurance company and through them in increased insurance premiums payable by the motorist.

This is an important public matter. We must see how we can reduce the cost of determining who was at fault in a motor accident, or at least consider the possibility that it may not be worth while determining who was at fault in a motor accident. The community should make up their mind that if people are injured in motor accidents, no matter who is at fault, somebody is going to have to compensate them for the injuries that result from being on the road. That may be a much cheaper way of looking after this modern problem. One of the great advantages of that solution is that it would take away a great deal of the demand for legal services which is blocking our courts system and which, by providing easy incomes to people who do this kind of work, means that attention is not given to the development or specialisation which would represent a real service that this growing and commercial community need.

If a big and easy income is to be made out of running down cases the opportunity-cost theory applies. It raises the costs of all other types of legal services, because if that kind of money can be made in doing this thing obviously people who are asked to give their time to do something else will turn to evaluate it in terms of what they have given up if they have given up doing the road traffic cases. I like the move up to £15,000 which probably is somewhat in excess of what would be represented by inflation. Judges in the Circuit Court will operate without juries and it will be most interesting to see whether the cost of getting decrees in the Circuit Court as a result will be reduced. Perhaps the decrees will be more sensibly measured.

I am not going to make a judgment here without seeing the answers first, but I am very open to the idea that we should have a no-fault system with regard to road traffic cases. I foresee enormous improvements in our whole legal system if this happens. I would be slow to abolish juries as such and I would leave juries for all other types of cases. For example, as a result of what I think is a defect in this Bill I suggest for the Minister's consideration that existing jurisdiction for libel and slander should be kept. There should be an increase in jurisdiction except in the case of libel and slander. In the last ten to 20 years the number of decrees in excess of £15,000 in these cases is exceptionally small. This is an important point and I know that a widely held view among the Judiciary is that no cases are more difficult for judges than libel, slander and defamation cases generally. They like the matter of these issues to be determined by a jury, and these are issues of a kind that make juries satisfactory. Over very many years practitioners have argued that they would much rather a jury would determine whether a decree should be given in such cases. Juries who have been well directed in the law applicable in a particular case are much better judges of the integrity of the witnesses and on the whole they get a balanced view of the person's character and are better able to measure the damages that should be given than is a presiding judge. If I am correct that over the last ten to 15 years there have not been more than five decrees in five figures, then there is a great deal to be said for keeping the present jurisdiction for libel and slander where it is in the High Court and leaving the jury system to operate in that kind of case. I would recommend for the Minister's consideration that that be left as it is.

The Minister would garner more advantage with regard to the move to increase the jurisdiction of the Circuit Court to £15,000. I do not want to be looking across the waters all the time at what they do in the UK, but it is foolish not to learn where we can. The appeals from the County Court in the UK go to the Courts of Appeal, and I suggest that one of the dangers of increasing the jurisdiction of the Circuit Court and leaving the present system unchanged is that on appeal to the High Court you are going to have the costs of the action, say a decree for £10,000, in the Circuit Court, and the action fully reheard with additional costs in the High Court. I suggest that there should be the present limited kind of appeal that there is from the High Court to the Supreme Court and that the appeals from the Circuit Court in the cases of the increased jurisdiction should be to the Supreme Court on the same limited grounds such as they are in appeals from the High Court. Where there is not a complete rehearing, it is not as expensive for the litigants and the costs of getting justice are, therefore, less. This is a very important point for the Minister constantly to keep before his mind.

I would revert to the first point I made in regard to the system of two seniors and one junior. There is a special history attached to it. It grew up when there was a lack of general business and an economic decline and the people who happened to be leaders of the Bar at the time turned themselves over into this and they were in every sort of case. Their fees were extremely modest and if they had any kind of an income at all their practice grew. Three or four of them were in every case that was going on — well, not exactly, but they were all over the place and they were not expected to be there unless they could happen to be there. That practice has, unfortunately, continued. My own profession has failed in its duty, which is to measure the fees of counsel. What is more, the Taxing Master has been caught up into a position where if the solicitor has marked a fee for counsel the Taxing Master cannot quarrel about the fee and he has got to take it. Therefore, bills come across that are taxed against the party who did not employ the counsel, which is the point. It is all right if you are going to pick a man and are prepared to pay any damn thing for his intelligence because you are right to say that a clever chap is worth hiring and you will pay him whatever he bloody well wants, that you want his brains. That is fine, but if you can pick a clever chap and let somebody else pay for it that is a very bad system indeed. The large fees should be payable by the person who hires but not necessarily by the other party. I think a change in the law is required because of the way the cases have gone on this. The Taxing Master and the High Court generally have got themselves into a mess and they need a system to get themselves out of it.

We talk about the necessity and desirability of an incomes policy. You are not going to have an incomes policy if you do not include the professions in so far as you can successfully do so. When I see answers to questions in Dáil Éireann about fees that have been paid to counsel during the year I am not surprised that trade unions look for whatever the blazes they look for all the time. The State have a function when employing counsel to consider the effect this matter has on its own incomes policy. A blind eye has been turned to this question, and it is proper on a Courts Bill that the matter should be mentioned. That is why I have raised it. When you read that somebody made £1 million on the Stock Exchange yesterday you wonder when you are going home if you were out of your mind getting up in the morning to work for what is your income. I am surprised that it does not drive people demented. The sort of sums awarded by juries make it the same sort of lottery which has the same disturbing effect on people. This should be of concern for whoever has the job of legislating and administering the affairs of this State.

I have a number of other points to make. I think the legal description of criminal conversation is going to cease so I need not concern myself with that. But there has been one case of that, according to my information, in the last ten years so giving jurisdiction to the Circuit Court in that regard is not going to ease the High Court. That was my point on that but if there are not going to be any more cases, it is not much of a point to make so we can pass on from that.

On the question of family matters, I am going to stay out of what I do not understand. I do not profess to know all that I should know about family courts and how they, necessarily, are going to be superior in every way to other kinds of courts. There is one point worth making here, and that is that section 5 of the Bill confers on the Circuit Court power under the Matrimonial Causes and Marriage Law (Ireland) Amendment Act, to grant a divorce a mensa et thoro. I know it is not a dissolution of such a nature as permits re-marriage. But a point that was made by a number of Senators, including Senator Cassidy in a speech on another Bill here last week, is that in a case where there is a divorce a mensa et thoro there can be marital rape. So it is a fairly fundamental decision to make. It is perhaps useful that the Seanad should know, and maybe the Minister's attention should be drawn to it if the point has not been made to him, that in England — and they obviously have a different point of view of marriage from the one we have — when, because of the pressure of business in the High Court in the matrimonial area, they conferred power on the County Court to make these divorce decrees, which of course in England are ex vincula and not merely a mensa, in fact, they created the County Court judges, for the purposes of doing these decrees ex vincula, Commissioners of the High Court to emphasise the significance of what the County Court judges were being asked to do when they were being asked to pronounce divorces. So, I wonder should the Minister not have a second thought about transferring the jurisdiction in this particular area to the Circuit Court. Incidentally, in aid on the practical side — and the Minister, I am sure, wishes to be practical-minded about this whole thing — I have made some inquiries about this and I am told that there are very many more of these cases. We have only to look at the law list to realise the whole sad business, to know that nowadays the part of the law list given over to family matters is as large as the law list without the first part remitted to solicitors. But of all these family matters, not more than one per cent in fact involves judicial separation, involves divorce a mensa et thoro. So from the practical point of view, from the point of view of taking the load of work off the High Court, it is not in fact going to do anything that is going to signify at all. Whether it is from a theoretical point of view, from a point of view of the emphasis that we properly lay on marriage, we seem to be taking a step without perhaps sufficient consideration of what may be implied by it. So much for that point.

On another point, I suggest to the Minister that in relation to the section which deals with the valuation of land and raising the jurisdiction of the Circuit Court from £100 to £200, there is one thing that a first year economics student or law student knows never happens, and that is that the valuation of land is never increased. It is always the same no matter what is done to it. If it is made a multiplier in fertility of a hundred of what it was in the 1850's, it is the same valuation as it was; it is never raised. There is no need to increase that valuation from £100 to £200. If we are talking about values, the values of land have already increased the jurisdiction of the Circuit Court in this area because the values of land have increased, even with the present unfortunate drop in the farming situation. The values of land are just total multipliers of the figure that was there when that figure of £100 was fixed and that multiplier already brings in land of a very high value. By increasing it from £100 to £200 we are not just simply reflecting inflation in any way, we are taking over what are perhaps substantially difficult questions to the Circuit Court judge, the sort of questions that arise with regard to valuable land. We are transferring to him serious time-absorbing problems involving postponed judgments and all that kind of thing with all the disadvantages of that, and in cases too where he might in fact be helped sometimes by juries. I would suggest that the Minister should reconsider this. I take the point that we want to reflect inflation generally, perhaps prop it up a little bit, but here it is just not relevant because inflation has already swollen up the value of this £100 land. In that way it is already covered.

I just want to refer to one or two other matters. The section on interest, section 22, has been amended on Committee. I am always in awful trouble making speeches here because I do not spend as much time as I should reading what my colleagues said in the Dáil, so I do not know whether they welcomed the amendment or tried to shoot it down. At any rate I welcome the amendment, whatever injury may result to me from that. I think that the change that is being made in subsection (2) and the introduction of subsection (3) are right, I would, however, draw attention to a point which still remains on the section. That is that, in subsection (1)

the judge concerned may, if he thinks fit, also order the payment by the person of interest at the rate per annum...

and so on. He may order the payment of interest on the sum between the date when the cause of the action accrued and the date of the judgment. But, say he does not make an order—and this defect has been spotted in other legislation elsewhere but I do not know whether, having been spotted, it has been cured and I suspect it has not—the result of this is that there is a pecuniary sum which is substantial and which the judge is likely to award interest on when giving his judgment, it will be in the interest of the chap who is going to be liable to delay the settlement as long as he can but to pay it just before the judgment—so that the judge will not be able to make the order to attach interest to the pecuniary sum because the interest will have occurred before he made the order.

Having observed the point that the defect was spotted elsewhere, I am quite unable to assist the Minister as to how he cures the defect or whether there is any way in which he can cure it. It seems desirable that he should. Again, I am not convinced that it is right to put in section 23 a provision for the lower sum of £150 which is not to carry interest. Why distinguish between £150 and any sum over £150? If the chap is going to be liable to pay interest if he does not pay, it will encourage him to pay the sum, whether it is £110, £200 or £1,000. The section seems to me merely to give an encouragement to people not to pay sums that they know they are going to have to pay which involves the special damages which have been incurred by plaintiffs in any of these cases. I therefore must say that I would wish to see that section go.

Let me make this point to the Minister. That is that he is going to be taken to the District Court. God knows I am not going to follow my colleagues around the country inspecting their District Courts. I do not know what problems there may be about buildings, and no doubt there are great problems about buildings. But at any rate the district justices are going to have a lot more work to do and there may have to be more district justices. If we can do anything which will reduce the number of cases that come into the District Courts that involve the district justices, let us do it. One of the things that would encourage cases not to go into the District Court would be to attach interest from the time the cause of action arose so that there would be no advantage to be gained by a defendant in going on with a case to the District Court because he would have to pay the interest on it if he did. If there is an exemption from interest it may add to the number of cases which the district justices will have to deal with. To some extent it obviously must; some cases are going to be affected by it anyhow. I am as unable as anybody else to estimate how many, but there are going to be some people affected by this. If the debt is due it is due and, if it is due from a cause of action. I cannot see why it should not bear interest in that case as well as in other.

I have one final point and then I shall be silent, and that is, while I see the difficulty of Ministers taking the general line that the things that the Circuit Court is doing at the moment, it will continue to do except in certain limited cases but with increased jurisdiction, and while I see why certain cases cannot get transferred to the Circuit Court, for example, proceedings under the Companies Act because it would be hard lines on a Circuit Court judge if he were expected to know all about company law as well as all the other things he is expected to know about and I suppose the general idea is that there might be somebody in the High Court who knows something about company law from time, I think that there is the point which the Minister has to consider that access to justice could be said to be improved in most cases except where the Government or another public authority is a likely defendant. I wonder whether the power to declare administrative acts illegal, which the High Court has, should not be vested in the Circuit Court as well in appropriate cases where again the sums involved or the criterion for value was, in some fashion, limited. Of course, we must understand that in no case can we vest anything that is obviously a constitutional question—that has got to remain with the High Court in all cases.

My final point is on structures of courts. I am really only taking advantage of the debate, but it is absolutely relevant to a courts Bill though I do not know whether this particular Bill is the way one would go about improving it. People talk about the desirability of family law courts. But we very much lack a commercial court. We very much lack a court of judges whose business it is to deal with commercial cases in a commercially expeditious way. In relation to that, it may be of some interest to the Seanad to know that this is a significant invisible export to the United Kingdom; the Queen's Court in London get a lot of legal business from here, cases that are agreed to be referred to the Queen's Court in London simply because they have an efficient commercial court that understands what commercial business is about and that it is absolutely no use deciding who owned the egg long after the hens have hatched out of it. In other words, decisions that are appropriate to commercial cases are expeditious decisions and if they are not expeditious decisions they are no use to people who are interested in commerce, particularly in a time of roaring, raging inflation. Unless we get all of that right we are going to be finally demented. However, the Minister should at least interest himself and his Department in the idea of a commercial court. How one goes about that, whether one does it by legislation or by communication or whether it is a matter of the organisation of his courts by the president, I do not know, but I would have thought it might possibly need some courts Bill to constitute it. Then of course we would have to have the Executive aware of the job that they were filling when they were appointing somebody to the commercial court. It would have to be somebody who knows about commercial law.

Mr. Cooney

I welcome the intention behind the Bill though I do not know if I would be unqualified in my welcome for all the details in the Bill. Various reservations have been expressed by speakers up to now and I would share many of those reservations. I take the Minister's point that the object of the Bill is to provide for easy and quicker access to justice for citizens, and the way it has been chosen to do this is by increasing the jurisdiction in the District and Circuit Courts.

To take the Circuit Court first, there is a very substantial increase in jurisdiction awarded to that court of up to £15,000, a jurisdiction that up to now has been exercised exclusively by the High Court. In most types of cases that are going to be involved in the Circuit Court, the running down cases as they are called, and which Senator FitzGerald made reference to in detail, up to now have depended on the decisions of juries. The argument has been made here that it is not necessarily a bad thing, and indeed the arguments have gone further and said it would positively be a good thing to take this type of case away from juries altogether, including, presumably, in the High Court. Linked with that there was consideration given by Senator FitzGerald to the possibility of bringing in the principle of no fault and getting away altogether from trying issues of liability and cases of personal injury and thereby speed up litigation and make it less expensive.

The main criticism that has been put forward with regard to juries is that their awards are too high. I would ask from whose point of view. It is certainly not too high from the point of view of the person most intimately involved, the injured party. It may be too high possibly from the point of view of the insurance company that has to pay, but let us recognise a very positive vested interest. It may be too high possibly from the point of view of somebody reading the morning newspaper and saying that that is a huge amount of money to give to that particular young girl for those apparently trifling injuries. But that amount of money has been given by 12 sensible citizens, chosen at random, with the advantage of seeing the plaintiff and having full medical reports of the plaintiff's disabilities presented to them and having an opportunity to assess the damage and the physical suffering that that person has had to bear and may very well have to bear for the rest of his natural life. I think it is forward on the part of people to suggest that juries in that position are over generous or are extravagant.

I would defend the jury system particularly in this jurisdiction where the number of judges dealing with running down claims is limited. The argument has been put forward in defence of the jury system by successive reports of the Committee on Court Practice and Procedure that in a small jurisdiction with a limited number of judges dealing with these particular types of cases, judges can develop a certain point of view which may be unduly narrow or biased and they may fail to do justice to the entire case coming before them. That danger is totally obviated by us giving the decision in these cases to 12 of our fellow citizens. Certainly, speaking as a citizen, I would prefer, should I be unlucky enough to have to maintain a personal injuries action on my own behalf, that the amount of damages I would receive would be determined by 12 fellow citizens or a majority of them rather than by a single judicial person.

The position may be bad enough in the High Court because the view of judges in the round hall, to use the phrase from that part of the world, is limited. But when we go down to the Circuit Court it is even more limited and the unfortunate litigant is at the mercy — I do not use the word in any offensive sense — of the particular views or whims, as they may easily be, of a particular judge with regard to particular types of injuries. There are some injuries which may defy objective diagnosis and those injuries, presented to a person of long judicial experience, possibly a bit cynical about the ways of the world, might get very short shrift indeed. But the fact that they defy objective diagnosis does not mean that they are any the less real because the mysteries of the back are still mysterious, as far as I can see in my experience, to the medical profession. I feel that a decision from 12 fellow citizens would produce a much fairer result in that particular type of case. That is one particular instance. But, as a general principle I would like to see a continuation of the system where damages for personal injuries, so long as we continue to have the fault system, would be assessed by juries.

Again it was suggested here by Senator FitzGerald — I seem to be debating with my own side but nobody is offering over there so we might as well have a debate between ourselves — that juries should certainly be kept in defamation cases. It is too late to declare an interest, but I agree that they should. But I cannot see why we should want to keep juries for cases involving injuries to one's character and dispense with them for injuries to one's person. I do not see a distinction there that justifies the argument for having them in one case and not in the other. Undoubtedly, having issues of liability tried before juries will make the legal proceedings a bit longer but not very much longer. Judges will have to be addressed as juries will have to be addressed, and at the same length. To suggest that it would not be necessary to address a judge as long as it would be necessary to address a jury perhaps helps to make the point I am trying to make, that going in before certain judges counsel might know that if they were to go into the case in too much detail for their client, they may provoke the patience of the judge and their client might suffer accordingly. Nevertheless, if the case is to be fully and properly fought before a perfect judge, then there should be a full opening and a full address to him as there would be to a jury.

It is the question of liability that causes the length of cases. If we want to get rid of the question of liability we have to consider introducing as a new principle in our legal code the idea of no fault, that if a citizen suffers an injury that citizen becomes entitled to compensation from the State. One jurisdiction that has introduced that system — and I believe it works well though I do not know the details of how well it is working or whether it has been quantified financially or in any other way — is New Zealand. The principle of fault has been abolished there and there is now a State system of insurance to compensate citizens injured in accidents whether it be their own fault or not. Part of the thinking of the commission which recommended that change was that if society organises itself so as to become so complex that it is difficult to go about one's daily business without running the risk of injury and that if one runs the risk of injury one then has to take part in a lottery to see was one at fault or partly at fault, that burden should be lifted from the citizen and if he gets injured through his membership of society he should be paid compensation. That is what they have decided to do in New Zealand and they are working through a system of State insurance.

I lay emphases on those latter words because if we were to introduce the no fault principle, I presume we would also have to introduce a system of State insurance. That would cause me to get a certain cold feeling down my back when I consider the bureaucratic consequences of having to organise that and work it. One may say that the present system through the courts is dear, but I venture to suggest that its costs would be insignificant compared with the costs of running a State system of insurance to admit the introduction of the no fault principle. There might be a committee formed on the no fault principle through the courts with juries retained to assess damages there. That would be fairer and, on the arguments that I have put up previously in favour of retaining juries, 12 citizens are better judges of how badly a person is damaged and the likely effect on that person's future life and what monetary compensation can go towards making up for the injury and the loss than some form of administrative tribunal under a State system. There is one comparison to be made in regard to a State system but it is not a fair comparison because it is not totally comparing like with like but comparing only a small State scheme with the general level of insurance company claims, and that is the criminal injuries compensation tribunal. That is the tribunal which awards damages to people who have sustained personal injuries in a criminal attack. It is a non-statutory scheme and the damages are assessed by a panel of lawyers nominated by the two branches of the profession, having regard to their experience in the general legal area of running down and common law damage cases. So far as I am aware, the scheme is working well. Occasionally, there has been the expression of dissatisfaction at the level of damages awarded under it, but these have been few and far between. One very impressive statistic visible, after one or two years' working of the scheme was the expenses of the scheme as a ratio of the total awards under it. Compared with a similar ratio taken from insurance company reports of what they had to pay in expenses and costs towards what was paid in damages, the difference was quite outstanding. However, one is comparing a small neat scheme with a much larger scheme where things can get out of hand. Nevertheless, the ratio was interesting, and cannot be ignored.

The cost of the present system is reflected in insurance premiums which are high, but how much greater expense would be imposed on the individual motorist if he had to be a participant in a State proposal to fund a "no fault" scheme, or how much higher expenses are than if they were relevant to a court system where only measured damages would be issued and liability had to be contested. I do not know how you quantify these things.

What we all want to see achieved is fair recompense for the victim. Regarding the present system of choice between judge by himself or jury, without any doubt whatever I feel that from the victim's point of view — not from the insurance company's point of view, or that of the citizen reading his newspaper — the best and fairest tribunal is a jury and not a judge. This is relevant to the question of increasing the jurisdiction in the Circuit and in the District Courts. The increase in jurisdiction is very substantial indeed and will have another complement. It will impede the Minister's objective of having quick and easy access.

This enhanced jurisdiction in the Circuit Courts, in relation to common law claims, to claims affecting land and in the increased general family law area, will considerably increase the level of work in those courts. There are very few circuits which are not busy and there are some which are overcrowded and where there is considerable delay. If this rush of new business generally comes into the Circuit Court system, I fear delays in cases coming for trial.

The Minister must pay careful attention in the year's grace that he has given himself to ensure that when the new jurisdiction comes into operation, the system will be able to handle it. It may mean extra judges to sit as itinerant judges assisting in the circuits that may be in arrears; it may mean a carving up of the circuits and reallocation on a smaller basis to more judges. For traditional reasons and because of the compositions of the Bar in the way in which the circuits have been organised for so long, I would recommend against that and would prefer to see itinerant judges coming in to take up the excess work that may occur in different circuits.

Another consequence of increasing the jurisdiction of the Circuit Court was adverted to by Senator FitzGerald in the context of appeals to the High Court. At the moment, if a litigant appeals from the Circuit Court to the High Court, the hearing in the High Court is a total rehearing with prima voce evidence all over again. A second trial takes place. Undoubtedly, if there is to be increased jurisdiction in the Circuit Court, with sums involved of the magnitude of £15,000, there could be a great temptation on the part of insurance companies to have a rehearing in the High Court, because according to them, the Circuit Court judge is not terribly good, or is a plaintiff's judge. They may take a chance on a defendant's judge coming around on circuit and have a go in the Circuit Court, because in for a penny, in for a pound, the extra costs of going to the High Court on circuit would not be that great. One answer is, as Senator FitzGerald suggested, that the appeal in those cases be provided directly to the Supreme Court where it would be on a transcript and they would be as rare as they are in the High Court. The Minister will have to decide if it is a desirable answer, whether he wants to interfere with the right of having a second hearing in the High Court.

The reason for second hearings in the High Court after hearings in the Circuit Court is that, traditionally, the Circuit Court has been a court not of inferior jurisdiction but not of total jurisdiction. I suppose the feeling among the promoters of the earlier legislation in providing a second hearing was that it was a safeguard for the citizen that a court of enhanced jurisdiction should be entitled to hear the case fully. That, would appear to have been a proper argument and would still be a good one. If the Minister feels that it is a good argument and is going to continue full hearings in the High Court on circuit by way of appeals from the Circuit Court, further consequences could arise that, if there is any significant volume of such appeals, there will be delay in having them disposed of, or if they are to be disposed of quickly there will be delay in the ordinary High Court list because the High Court will have to spend a longer time on circuit. There are various consequential effects from what the Minister is proposing here, that will have to be considered to ensure that he does not unwittingly stand in the way of the objective he is hoping to achieve of easier and quicker access to justice for citizens.

As to the intention to keep down the costs in the Circuit Court, the biggest factor in costs is probably counsels' fees, slightly larger than solicitors' and I can say that, in fairness, as Senator McGuinness has returned, the biggest element in Circuit Court proceedings would be if insurance companies decided to bring senior counsel into Circuit Court cases, now that the jurisdiction is gone to £15,000. I can see this happening quite readily. That puts the pressure on the other side to match silk with silk. The parties are of course entitled to the best and to the representation that they want. If that happens I can see the costs of two sets of senior counsel becoming the norm for running down cases in the Circuit Court and the objective of easing the costs and making law somewhat cheaper could be defeated. It would be interesting to see if the insurance companies who work to abolish juries and complain about the cost of litigation, will be content to deal entirely with the junior Bar at Circuit Court level.

The District Court will also get a very substantial increase in jurisdiction. So far as common law cases are concerned, I would not have any qualms about the capacity of that court to deal with the jurisdiction conferred on it. I would have some worries about the enhanced jurisdiction which the court is getting in the family law area, particularly the guardianship of infants. Every practitioner is well acquainted with many of the district justices officiating in this country, many of them former colleagues. We know their legal and general background and, knowing that, we would have confidence in them as, generally speaking, men of common sense and normal intelligence, able to bring those two qualities, plus their experience of life, to bear on their adjudication. As regards their legal training — I say this as one in that position myself — that ended when they qualified. From then on, we began to forget law and depended on the Bar to provide legal knowledge for us in any cases of complexity.

That would be the position with regard to most district justices who have been solicitors. Like most busy practitioners, they were dealing with routine conveyancing and dealing with the pleadings side of litigations and leaving the strictly legal questions to the Bar. That is the way the legal system works. Obviously, if a person goes on the bench from that system, the legal knowledge on the bench to deal with complex questions will be that much less. This might raise a question mark on giving enhanced jurisdiction in something so critical as guardianship of infants. One might say that the main quality to be brought to bear in dealing with that problem would be common sense and not the law. That may very well be.

It is somehow less than effective to give jurisdiction to such a sensitive area as guardianship to a court which is the court of least jurisdiction in the State and the time of whose members is taken up with a huge variety of matters — some relatively serious, some not so serious — and who do not have time, in communicating with each other on a regular basis, to build up a corpus of experience that they could bring to dealing with a really serious and sensitive case under the Guardianship of Infants Act. We would have to contrast that scene with the scene that would take place in the High Court, whereby judges take their turn in family law, so that there is no question of specialisation. Nevertheless, the total number is small, the scene is more intimate and a corpus of knowledge and experience can be built up that, in my opinion, would do better justice to the case than having these dealt with on the basis of District Court hearings. The whole scene is the District Court is totally unsuited to work of this nature. The organisation of the courts, the way the lists are compiled, the presence of the public, the toing and froing and the generally inadequate premises make the District Courts unsuitable venues for dealing with guardianship matters and some more complex family law matters, though that argument applies more to the Circuit Court.

The Minister of State, in his speech, has told us that his Minister is tackling these questions, and he went to the extent of underlining the words "and they are being tackled". To tackle them is an immense job. It will need an immense amount of money to put all our District Courts and Circuit Courts in a fit state to receive the volume of business that it is intended to give them. We know that that volume of money is not there. The administrative problems of transferring responsibility from the local authorities to central government and of getting the Board of Works organised to do the physical work will defy the Minister's best intentions. I cannot see the courts being ready even within the 12 months allowed for the Bill to come into operation.

My remarks concerning inadequacies apply equally strongly to the Circuit Court. Consultations on the street are quite a regular feature of both the Circuit and District Courts. When the system forces such to happen, it is not capable of dealing with sensitive areas of family law.

As I said at the outset, while we welcome the intention behind the Bill we have considerable reservations about how the Bill will fulfil that intention. Nevertheless, we have to experiment to a certain extent, though it would be unfortunate if the guinea pigs are citizens who do not get satisfactory justice. If the Minister's intentions do not work out, that, unfortunately, is what will happen. The danger of that happening could have been lessened considerably by not increasing the jurisdiction, particularly of the Circuit Court, as much as is proposed, by not giving it the jurisdiction it has been given in the cases of marital breakdown and by refraining from giving the District Court guardianship questions. I sense lately on the part of the Government an ambition to build an image of caring in this area, which is highly commendable and understandable, having regard to their predicament in the economic field. I warn against trying to build too much of an image too quickly, because that could bring undesirable consequences with it.

Miss Harney

Today has certainly been a day for the lawyers. To date on this Bill we have had three contributions from members of one branch of the profession, of solicitors and three contributions from the other branch of the profession, the barristers. I speak as one who has absolutely no practical experience of the legal profession other than that of the average person and as one who has never stood in a courtroom — which is probably something of a reflection on me since, as a legislator, I should on some occasion have paid a visit to one. I would, however, like to make a few brief comments on this Bill before the House. The reason that so few people on this side of the House may have been anxious to contribute to it is mainly because it is essentially a very technical Bill. It is one more for the practical lawyer than for the rest of us, and perhaps because we have only one lawyer at this side of the House we did not have as many contributions as we might have had on other Bills.

I welcome this Bill for two reasons. Firstly, as the Minister said, it will make access to the courts easier, it will not be as expensive and will confer upon the lower courts extra powers, thus alleviating some of the existing burden on the High Court lists. Side by side with bringing in a Bill of this nature which will alter our court system in some way, we need to have an examination of the legal profession in general and to ask ourselves why the courts up to now have not been accessible to the ordinary person. Most people thinking of taking legal proceedings to court are frightened by the idea. They are frightened because of the high cost, because of the whole atmosphere and the whole idea that this conveys. If this Bill in any way helps to alleviate those fears, if it helps by alleviating the present financial burden, it will be going a long way. We do need to examine the high cost of legal fees. I cannot understand why we have to have two branches of the profession and why, in some court cases, we have to have junior counsel, senior counsel and a solicitor, three, four or five legal people representing us. That is utter duplication at an extremely high cost. If matters like this were to be examined side by side with extending the powers of the courts, it might make them more accessible and, in some way, bring us to the point where we can have the sort of legal aid system that Senator Molony asked for earlier.

I would love to have free legal aid services in every town with a population of 4,000 or more as was recommended. It would be lovely if we could afford that type of system. Unfortunately, it would be very costly and would take a long time to bring those advances to our legal system. The present legal aid system, for all its faults, is a start in the right direction. It recognises that people have a legitimate right to take their grievances to court and to fight for their rights in the courts and they will be aided in this by the Government.

Much was said on the Bill about the powers being conferred on the Circuit Court and, in some cases, on the District Court in relation to family law matters. I agree with the Senators who have called for the introduction of family law courts or, preferably, family tribunals. I am told that the average courtroom sets out with the idea of confrontation straightaway. That is not the sort of place where family law matters can be solved. These need to be solved in a very small, intimate room, where the husband and wife, with their various legal representatives, come together and can work out, in a fairly realistic way, their future. They need all the back-up professional services of the social workers, psychiatrists and all the other people which should be part and parcel of any system which claims to provide some remedy for marital breakdown.

I do not think it is just a question of providing legal remedies. No matter what type of court we have, or what type of procedure we have, in dealing with family law matters we must place the emphasis not so much on legal remedies but on prevention, as Senator Robinson said earlier. In Ireland, we must place more emphasis on preparing young people for marriage. If we do not, our courts in future years will be overburdened with cases involving numbers of people seeking legal separations, or trying to find some way out of a tragic marital situation. From my experience as a public representative in the Dublin area, marriages are breaking down at a tremendously high rate. As public representatives, we must be concerned about this—not just concerned by providing legal remedies, which can only go so far. We must adapt the family and must make sure that young people, with all the pressures they come under when they get married, are adequately prepared for that step and that when they do get married that they have available to them all the necessary professional advice.

I refer now to what the Minister called the increased burden which will obviously come upon the courts in future years. He said that his Department would monitor this very closely and if additional justices and staff are required, they will be provided. That is a very welcome step, because a frequent complaint about the legal system in Ireland is the long delay from the time you go to a solicitor with a complaint, to fight for your rights, until your case is sorted out. It can take many years in many instances, and it is a shame that it takes so long. This, again, may often put people off using their constitutional right to take things to the very end and making sure that, under our laws, they get proper legal protection. Many recent cases challenged the constitutionality of the law, for instance, the McGee case and the Murphy case. This is a welcome step is the right direction, showing that people are at last prepared to fight for their rights even if it means taking Governments to court. That is as it should be.

Senator Molony referred to the increase in the amount of money awarded for mental distress from a maximum of £1,000 to a maximum of £7,500. He said, correctly, that you cannot in any way compensate somebody for the loss of a loved one, but monetary compensation at times like this should rightly keep pace with inflation. If it has not increased in 20 years, it should be increased now. I am also happy that the maximum allowances that courts can award for maintenance cases are being increased from £50 to £100 per week for the spouse and from £15 to £30 per week for the child.

I hope that this Bill is only a start in the reform of our whole court system. Some people from the legal profession to whom I have spoken have described the court facilities available in places in Dublin like Rathfarnham and Lucan, where clients have to be interviewed in cars or in public houses. That is not a legal system of which we could be proud and the sort of system that we should continue to have in 1981. If that is the case, I hope that the Minister for Justice, as he said, will examine accommodation problems and facilities in our courthouses to make sure that we have proper, modern facilities and that people can, in the privacy of a court building, have a room where they can meet their legal counsel and their solicitors. That is as it should be.

I welcome the Bill and, in particular, the setting up of a comprehensive way of dealing with family law matters. I hope that we will eventually have family law matters held not in courtrooms but rather in some other place where the proper facilities can be available to those whose marriages have very tragically broken down. As a greenhorn in this area, that is the only contribution I will make. I am the only lay person among six lawyers and hope that others in the same position will give their thoughts on this Bill. It is a very welcome and necessary Bill, and I hope that the Minister will rely not just on the opinions of all the lawyers who do well in their semi-professional capacity but on the opinions of other Members of the Seanad who will, it is hoped, give their views, too.

Mrs. Cassidy

This Bill deals with a very complex area and is a Bill where fools should hesitate to rush in where angels fear to tread. In dealing with the setting up of family courts, the principal criticism has been that the buildings and facilities are inadequate for such cases. Nobody could disagree that there is a great difference in the quality of the court buildings all over the country—some are very good and some are totally inadequate. In fact, one hears of stories where members of the Bar who, I must remind the house, are still in mourning for Queen Anne, have to display their braces to the general public before they can appear in court. Indeed, sometimes looking at court buildings in country towns, one wonders if it is the flagpole alone that keeps them from falling down. However, if we wait until we have all these proper facilities, we will have no family courts at all. When the legal aid system was initiated some two years ago, it was subject to very much the same sort of criticism. Since it was implemented, however, experience has shown that the main problem is that it is not extensive enough. There are so many people looking for legal aid centres in country towns that we must extend the present system. The point was very well made by the then Minister of State when introducing the scheme and when the criticism was that it should be established on a statutory basis, that it should be given a chance, that it would be very carefully monitored and that, after some time, we should examine it and see how it was working and then take steps to establish it on a statutory basis.

Debate adjourned.

The Seanad adjourned at 8.30. p.m. until 2.30 p.m. on Wednesday, 15 April 1981.