In relation to section 2 there are four amendments which are related and may be discussed together.
Courts Bill, 1980: Committee and Final Stages.
Section 1 agreed to.
SECTION 2.
An Leas-Chathaoirleach
I move amendment No. 1:
In subsection (1) (b), page 3, line 24, to delete "£15,000" and to substitute "£10,500".
The arguments here are fairly obvious. We discussed on Second Stage at some length some of the problems arising in relation to the capacity of the lower courts to deal with the extra work or the new work that is being given to them. The Minister made reference on several occasions in the course of his reply to the Second Reading to the views of the Committee on Court Practice and Procedure. Indeed he went so far as to accuse some of us of not having read the report. I can assure him as far as I am concerned, and I am sure as far as all my colleagues on this side of the House are concerned, that we read the report but we did not conclude our reading at the end of page 15 of the report. We went on and we studied the minority views expressed by some of the committee members.
The proposal here in section 2, in so far as the Circuit Court is concerned, goes a good deal further than the proposals of the Committee on Court Practice and Procedure. The committee were concerned in their majority report that the levels of jurisdiction that existed in the Circuit Court had become quite unrealistic because of inflation. I accept that and sympathise with it. I agree with it. The minority view published in the report made some very important points in relation to these matters. I do not think that I should go into them all now, but the basic point was made that sometimes, even though cases may involve in monetary terms relatively low sums of money, they can require detailed consideration of important points of law.
It is for this reason that we must look on the Circuit Court as having some limit. The majority view of the committee suggested a ceiling of £10,000 in the Circuit Court. The minority view disagreed with that and said that it should be £5,000 in the Circuit Court. You can make arguments in favour of both sides. Though I sympathise with both points of view, I realise that inflation goes on and on and on in a never ending spiral and we need not only to bring it up to date but to allow for some inflation at least in the immediate and foreseeable future. I would go along with the view that the Circuit Court jurisdiction should be increased to £10,000.
The Minister proposes that it should go to £15,000. He acknowledges that this is away beyond the increase in inflation but makes the point that, in order to improve the accessibility of the courts to people, it is an appropriate measure at this time. I disagree with that because I do not believe that any proper steps have been taken to examine the capacity of the Circuit Court—and, when we come to discuss it, the District Court—to take on these new jurisdictions. The fact is that there are matters of considerable importance that may involve some funds between £10,000 and £15,000 that require the experience and the wisdom of judges of the High Court rather than judges of the Circuit Court.
In addition to this, Senator FitzGerald made the point on Second Stage that there are many cases involving the sort of potential awards that require the attention of juries and that many people —Senator Cooney made this point also on Second Stage—would prefer to have the assessment of damages dealt with by 12 of their peers rather than by a judge sitting on his own. There are arguments on both sides. I accept that but I am not at all convinced by the arguments brought forward by the Minister for Justice in the Lower House or the Minister of State in this House as to why the increase should be 50 per cent more than suggested by the Committee on Court Practice and Procedure and 150 per cent more than proposed by the minority view in the Committee on Court Practice and Procedure. In these circumstance I must urge the Minister to accept the amendment.
The Committee on Court Practice and Procedure recommended in their 20th Interim Report that the limit of the Circuit Court's jurisdiction in contract and tort be increased from £2,000 to £10,000. At the time they made this recommendation the committee were unaware of the proposal elsewhere in this Bill to increase the maximum solatium figure—the amount awarded in fatal accidents to the deceaseds' relatives as compensation for mental distress—from its present limit of £1,000. In view of the increase in the solatium limit it was decided, after consultation with the Chairman of the Courts Committee, to increase the general tort limit to £15,000. The equivalent today of the existing limit of £2,000 when it was set in 1971 is about £7,200. The figure of £15,000 proposed in the section represents a real increase to more than twice the level fixed in 1971, whereas the Senator's figure would represent only one and a half times that level. I am satisfied that, if the proposal is to have any significant impact on the degree of accessibility of the Circuit Court and at the same time make allowance for inflation for some years to come, then the higher rather than the lower figure is the right one.
I have already described on Second Stage the sort of running-down action which I envisage would fall within the new jurisdiction limit of the Circuit Court. There is a danger that, if the limit is pitched at any lower figure, the High Court will rapidly become clogged up yet again with cases of this relatively straightforward type. To allow this to happen would be unfair on all litigants, and for that reason I must oppose these amendments.
I do not wish to come in conflict with Senator Molony because I know that the expression of his views is genuine, but I am amazed that the Senator should attempt to retain the jurisdiction level of £10,500 as opposed to the proposal in the Bill to make it £15,000. The Senator by advocating the lower limit is merely pushing the situation over to people in the other branch of his profession. The Senator is creating job opportunity and a situation where the cost and the expense of litigation will be increased because of the lower limit. People would be forced into the High Court. I do not think that is what the Senator wants. I do not genuinely believe that the Senator wants increased costs, but the amendment would bring that about. Much of what I envisage, taking the £15,000 limit, would be dealt with in the Circuit Court. To reduce it to £10,500 would be favouring people in another branch of the Senator's profession. I accept that there was a minority report which contained recommendations from two members in favour of the lower limit. It would not be in the best interests of the very people for whom we are trying to provide lower cost legal facilities. For that reason I would suggest that my grounds for opposing the amendment are justified.
I am horrified to hear the reasons given by the Minister. Let me assure him, first of all, that it is no consideration to me when I give my view in this House as to what the costs or the benefits to any branch of the legal profession would be. I acknowledge that he has said that it is not my primary motivation.
I am inclined to withdraw, after listening to the Senator, that it might now be his motivation.
I assure the Minister that that matter is utterly incidental to the subject, and I have to deal with it now in view of what the Minister has said. If one were to examine the structure of any legal practice in this country and add or subtract the few pounds of difference that might exist between a Circuit Court award of £11,000 and a High Court award of £11,000, you would be talking about buttons. If the Minister does not accept that, he should consult a taxing master or somebody who is experienced in the matters of drawing up legal costs. There may be additional costs in the overall bill because people have to travel up and down to Dublin but that does not benefit solicitors or barristers. I object to the suggestion that it may motivate my views.
The views I have offered are those of the Committee on Court Practice and Procedure and I have asked the Minister to indicate his reasons for the change he is making. The Minister has given only one reason, that the proposal is to increase the limitation of £1,000 for mental distress under the Civil Liabilty Act, 1961, to £7,500. I have already welcomed that proposal. That is no reason to change it in respect of every other case.
I do not know what the figures are, but I am quite certain that of all the cases in tort and running down actions that come before the High Court, the number of fatal claims among them must be a very small minority. I have no doubt about that. To change the jurisdiction for that reason only is quite illogical and I ask the Minister to think again.
The Minister's comments in relation to costs are also insignificant in relation to the main problem that we have to deal with here. It is perfectly all right for the Minister to say that he wants to increase access to justice. That is a phrase that has been abused in the Lower House and is going to be abused in this House. Increasing the jurisdiction of our lower courts and doing nothing else will not improve access to justice, because it must diminish the quality of the justice you get. I do not suggest for one moment that the judges of the lower courts would intentionally provide a lesser quality of justice than that in the High Court. But we must recognise the fact that the Government, in making their decisions on whom they appoint to the Circuit Court and the High Court, will appoint to the High Court people of greater experience and greater knowledge of the law.
We must also recognise that when we are dealing with serious cases — and cases involving sums of £10,000 and £15,000 are serious — they require more wisdom, more experience, and more knowledge of the law than would be required when we are talking about lower levels. It is only in this context that I ask the Minister to consider again the observations of those who took the minority view on the Committee of Court Practice and Procedure.
I am horrified, if I understood the Minister correctly, at his implication that the views of those people were motivated by the interests of their profession. If the Minister believes that the views of the people of the minority group on the Committee on Court Practice and Procedure merely represented the selfish views of their profession, he should be consistent and seek their resignaton from the Committee on Court Practice and Procedure. I know the people concerned. One of them is now deceased but I have the honour to know many people on that committee. They are people of great experience and judgment, who, most of all, would put the interest of our legal system before their own selfish interest. It is wrong of the Minister, in their absence, to suggest that the reasons they give for a minority or a majority view are selfishly motivated. I do not accept that.
I will be looking for far more positive and comprehensive answers from the Minister when we come to deal with the question of District Court level. The Minister has not given any logical or rational reason for increasing the new jurisdiction limit as proposed by the Committee on Court Practice and Procedure from £10,000 to £15,000. I am obviously going to be beaten if this comes to a vote. I am not going to push it that far. But I am utterly dissatisfied with the reasons given by the Minister and I would ask him to tell me whether he has other reasons or whether the reasons he has given are the limit of the sense that he can put on his proposals.
I have not put my name to this amendment, but to raise the jurisdiction limit of the Circuit Court so high is to diminish the role of the civil jury. While Senator Ryan expressed on the last day a great many reasons why he felt civil juries should be done away with altogether, he also admitted that he was involved in the insurance business. We all know that it is primarily the insurance businesses who wish to diminish the role of the civil jury. From the point of view of the victim of an accident, this may not be satisfactory. It may, of course, be true that the members of a particular jury are not experts in judging the right level of compensation; nevertheless you do have a mix of people who have ordinary experience of the cost of living. A judge who has been serving for a long time may be out of touch with the levels of compensation that are given. It is not unknown for a very low level of compensation to appear in court cases where a judge alone is sitting. I am worried that the civil jury is being diminished here. Considering the remarks that have been made about Senator Molony wanting to put money into the pockets of barristers, I suppose I shall also be accused of wanting to put money in my own pocket. As I am only a junior, I will not be affected by the case being taken out of the High Court.
The implication is the Senator will make a fortune in the Circuit Court.
The Minister is taking too many opportunities to suggest that all lawyers argue only from self interest. If this was a Bill which affected the medical profession or the profession of the clergy, would he be as quick to suggest that they would speak only from their own personal financial interests? I will be interested to see whether Government spokesmen speak in this way in other areas of legislation.
I have no intention of repeating myself. I have given the Senator the reasons. My reference to the committee made the point that three members held a view that it should be a lesser figure. There was no suggestion implied that this was for any specific reason. In the Lower House and here, it appears that I will have to be constantly defending that committee, having regard to the views of some of the Senator's colleagues in the Lower House and the suspicion I have about Senator Molony's contribution in relation to the section we are dealing with. I refute and reject as misrepresentation the Senator's suggestion that I have tried to cast doubt on the three people involved or any members of that committee. I have repeatedly described that committee as consisting of eminently qualified people and have done so in the teeth of opposition from the Senator's colleagues in the Lower House. I regret it if the Senator is going to take that line in further discussion of the different sections of this Bill.
The Minister has expressed himself now and if that is really what he means, I accept it completely. I clearly understood him to suggest the contrary. I will look at the record of the House afterwards and if I am wrong, I want to apologise to the Minister. In the course of the Bill I will be criticising some of the views of the committee. But there is a major difference between criticising their views and suggesting or implying that they expressed those views for selfish reasons.
That is the point I want to raise at this stage. I certainly have no desire to get involved in that sort of squabble. I raised it simply because I understood the Minister to make the accusation but the Minister has clarified the point now. I thank him for his clarification and I apologise to him if I have offended him in any way by suggesting that that was not what he intended.
Amendment, by leave, withdrawn.
Amendments Nos. 2, 3 and 4 not moved.
Question proposed: "That section 2 stand part of the Bill."
May I ask the Minister what investigations he has carried out in order to satisfy himself that the Circuit Court will have the capacity, both staff-wise and courtwise — I am talking about court accommodation, the back-up staff needed, the number of judges — to take on the workload that is being given to it? The only comments I have seen were those of the Minister for Justice in the Lower House in which he reckoned that things would be all right. I think that reckoning in these circumstances is not good enough and that point was made very forcibly by the Committee on Court Practice and Procedure. I want to know whether consultations took place with the staff and the judges of the Circuit Court, and whether the Minister is satisfied that the staff of the Circuit Court, the county registrars, staff and the judges, have the capacity to take on this new jurisdiction.
I have stated on more than one occasion that if facilities, whether they are judicial or staffing, are required they will be made available. As the Senator knows, there is a 12-month time-lag which will provide an opportunity to examine the situation as to the likely requirements. If I take what the Senator said earlier in relation to an increase of two and a half times the workload in the District Court, the presumption there would be that much of the Circuit Court work would go to the District Court. On that basis I think the Senator's fears for the capacity of the Circuit Court to deal adequately with the wordload are not realistic. I have given repeated commitments that whatever is necessary, either by way of judicial posts or staffing arrangements for District and Circuit Courts will be done. In relation to county registrars and such people and the system of listing cases, it should be mentioned that this is something the Bar Associations and county registrars might consider taking up. It might be an opportunity for them to examine this with a view to working out a suitable arrangement which would make things easier for everybody.
I have not a clue what will happen and the Minister has indicated he has not a clue as to what will happen either. All the work of the Circuit Court will become the responsibility of the District Court. The Circuit Court will have responsibility for cases between £2,500 and £15,000 plus matters of family law which we will be dealing with later. I do not believe for a second that a 12-month period will be sufficient to solve the problem of courtroom facilities. The Minister has acknowledged, and I think everybody acknowledges, that the facilities we have in courtrooms around the country are disgracefully inadequate. There is no doubt about that. I do not blame the existing Fianna Fáil Government for that problem. It is something that has built up over the years. The Minister knows the problem exists. He acknowledges that, but he says he will wait until the Bill is passed, to see in 12 months whether a problem arises and within the 12 months he is going to solve the problem of decades. I do not accept that he can do it.
The Minister also made the point that the local authorities are responsible for courthouses. The local authorities do not have the money to fill potholes at the moment and unless the Minister provides them with the finance to fix up courthouses they will not be fixed. A 12-month period, after this Bill is passed, is completely and utterly inadequate and it is codswallop to suggest that all of that work can be postponed. We should be considering those problems now because now is the time to consider them. We should not impose increased jurisdiction on courts unless we are satisfied that the courts will have the accommodation and the capacity to deal with that increased workload.
I asked the Minister two questions and I ask them again. First, has he had consultations with the staffs of the Circuit Court in relation to the proposals to increase or alter the jurisdiction of the Circuit Court and, secondly, has he had consultations with the Judiciary of those courts? I believe that both the staff and the judges of the Circuit Court are dissatisfied with their capacity to take on this new workload. If the Minister has had consultations he will have to agree with me on that. If the Minister has not had consultations, I ask him why not?
It appears the Senator was not present when I went into very great detail about the improvements that were being carried out to various courthouses throughout the country.
I did not hear that.
That is regrettable. I am sure if the Senator was present he would not have made some of the statements he made. I gave instances where repairs are being carried out and I enumerated areas where it is intended to carry out further repairs. I am personally satisfied, apart from being informed, that the majority of courthouses where Circuit Courts sit are in good condition and the basic problem is the district courts.
I accept that.
I have given a commitment — and I will reiterate what I have stated — that necessary improvements will be carried out and if there is an increased workload adequate provision will be made for that. The 12 months time-lag must be of some advantage but you have rejected that as being totally unnecessary.
It should have been done before now. The Minister knows that.
An Leas-Chathhaoirleach
The Minister must be allowed to continue without interruption but the Minister should also address his remarks to the Chair. This is Committee Stage and there is very wide latitude but we cannot have the debate going right across the floor like that.
I reject totally the comments made by Senator Molony in relation to the time-lag. I also reject the implication in what he has said, that I am likely to dishonour the word given to the House here this evening.
Unable to carry it out. The Minister does not have the capacity.
That is Senator Molony's view. With respect to Senator Molony, I would claim that I know the facts. He has asked who the discussions were carried out with. They were carried out with the Judiciary.
Of the Circuit Court?
Yes. I am satisfied with what I have stated in the Lower House and here this afternoon, that I am prepared to provide what is necessary. In the meantime, I am prepared to examine what we need immediately and monitor thereafter the situation with a view to making any urgent changes that might be required. I think that within a 12-month period, having regard to the programme that is going on at the moment and having regard also to certain proposals which will be going to the Government shortly. Within the required period I will be able to ensure that facilities are there from both staffing and judicial points of view. The Senator's fears are not soundly and solidly based.
I will not let this lie. I am going to come back on it and demand some very definite replies from the Minister when we come to deal with District Court jurisdictions. The Minister referred to the comprehensive statements he made—maybe he did not use the word "comprehensive"—in the report he gave to this House and I believe he was referring to remarks he made today in his reply to the Second Reading debate when he referred to a couple of courthouse facilities that had been changed around the country. He mentioned Waterford as being one of them. There is a history to the one in Waterford, and the Minister knows that it took a lot longer than a year and a lot more than a decision of a county council to change the situation there. It took the judge of the Circuit Court to abandon the courthouse and flee from the city to another place before any action was taken in that respect.
The Minister for Justice, when he dealt with this Bill in the Lower House, said that urgent steps were being taken. That was in November, six months ago. I would like to know precisely what steps have been taken since then. The Minister of State came into this House today and the last day the House met and expressed the difficulties that exist from the Department's point of view, that the maintenance of courthouses is a matter for local authorities. It is a matter for local authorities because they have an obligation to look after courthouses, but it is up to the Minister to change that law if he wants to. He has not chosen to do so. Unless the Minister is prepared to say that cash grants are going to be made available now—not in 12 or six month's time—there is no prospect of those courts being altered in sufficient time to take on the workload if there is going to be a greater workload.
I would like to ask the Minister one more question. After several questions being asked of him, he says now that consultations did take place with the Judiciary. What was the attitude of the Judiciary in relation to increasing the jurisdiction of the courts without first altering the courthouse accommodation and resources?
It is quite clear that Senator Molony is endeavouring to elicit from me what the proposals that will be going to the Government contain. I want to state quite clearly to Senator Molony that I have no intention of revealing what the proposals are.
To alter the courthouses?
I have no intention of revealing what is contained in the proposals until the time is right. Furthermore, I want to state that discussions that have taken place with the Judiciary are of a confidential nature and I am not going to reveal or break confidentiality. The Senator is well aware of that and I am surprised that he should ask me.
I was not aware. What proposals is the Minister talking about that he is not prepared to tell us about? Is this a proposal to improve courthouses?
I will be repeating myself on a regular basis if I have to go back over every question the Senator puts to me and I have no intention of doing that either. I have given him the reasons. We are talking about something that comes up under another section of the Bill.
We will deal with it under the other section then.
It will be just a further repetition.
Question put and agreed to.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill".
Why increase the rateable valuation limit? I thought the point made by Senator FitzGerald last week was a good one when he said that when dealing with lands or buildings a rateable valuation of £100 was the existing limit before the Circuit Court. It is proposed to increase this to £200. With the increase in property values which have far outstripped the increase in inflation every year, it would seem that land values must have multiplied many times faster than inflation over the period. I wonder why it is necessary at all to increase the rateable valuation limit from £100 to £200. We could be talking about a farm worth £600,000 to £800,000. A few years ago it would not be unusual to see a farm that had a rateable valuation of less than £200 sold for something in excess of £.5 million. It seems to be going a bit too far to bring matters like that before the Circuit Court. If there are disputes over land worth that sort of money the forum of the Circuit Court, with every respect to the judges of that court, would not be adequate to deal with such matters.
I am satisfied that the intention is to increase the maximum jurisdiction in equity in the Circuit Court. This was a recommendation of the committee and I have nothing further to add except that I agree with it. I have accepted the recommendation and it is an endeavour to give the maximum jurisdiction to the Circuit Court.
Obviously we are not going to get too far in seeking amendments today, but the Committee on Court Practice and Procedure did not give any reason for their decision. They said that they considered the matter carefully which I am sure they did, but in this respect I have a very solid criticism to make of that committee. I think the question is begged by paragraph 13 of their 20th Interim Report. They literally propose in a very arbitrary way the increase of the rateable valuation limit from £100 to £200 without ever making reference to the fact that land prices and property values have escalated and multiplied in value. I have to ask the Minister whether he believes that the Circuit Court is the proper forum to deal with a dispute in relation to a property worth £.5 million. I question that with the most genuine motives that I could put before the House. It is far too high a limit to have in the Circuit Court. The ordinary increases in land and property values that have taken place have easily matched the levels of inflation that we have to compensate for when we are talking about running down actions, but in relation to property title or equity matters this is a mistake. If the committee did not offer a reason I would like the Minister to offer a reason.
I have heard minority views like the Senator's before this evening. I agree with the people who hold the opposite view and I am satisfied with the justification for the increase in the jurisdiction. I am also going to inform the Senator now that I have no intention of making any changes or alterations.
Question put and agreed to.
Section 4 agreed to.
SECTION 5.
Question proposed: "That section 5 stand part of the Bill".
While my name is not added to those who oppose this section, I would like to say a few words about it. I apologise to the Minister of State for not being present for the whole of his Second Stage reply. I am genuinely sorry about this. Unfortunately the exhaust fell off my car. If I had not gone to have it repaired I would be going about emitting illegal levels of noise and I feel sure the Minister of State would not like that either.
I am glad that it is expected that the rule-making body for the Circuit Court will be making changes in the rules so as to iron out the severe complications in the procedures for divorce a mensa et thoro but I felt it is worth while raising this point on Second Stage because the fact that one hopes that a rule-making body are going to make a change does not necessarily mean that they are going to make the change and it is very important to iron out the extra complex procedures.
I am speaking for Senator Robinson, who is not here, as well as for myself in saying that probably the reason that she opposed the section was not a technical one like this but simply that we both feel that a divorce a mensa et thoro in itself is a thoroughly unsatisfactory remedy to a broken-down marriage. I would oppose this section basically on the grounds that what we should be doing is producing a real remedy for the breakdown of marriage in allowing for a law which would provide for dissolution of marriage rather than tinkering about with divorce a mensa et thoro which is basically a most unsatisfactory solution to the problem of a couple whose marriage has broken down. This would be my reason for opposing this section.
I want to agree with what Senator McGuinness has said and I, too, oppose the section. I honestly believe, and I accept of course, that the consultations the Minister has had with the Judiciary in respect of any matter on this Bill are confidential as long indeed as the Judiciary and himself wish to keep them confidential. But I know, from discussions I had myself with members of the Judiciary, that there is some concern about this new jurisdiction being imposed on the Circuit Court. Like Senator McGuinness, I agree that this is a most unsatisfactory remedy to marriage breakdown. It is something that is well known to be unsatisfactory to those people who have sought such a decree or those people who have simply not gone to the courts, realising that it was such an inappropriate remedy. That is not, perhaps, what we are dealing with today. But I do not think that it is at all appropriate that the question of judicial separation should come from the High Court to the Circuit Court. It is a most serious matter. It is an action which should be altered in very many ways. But as it stands it is a most serious matter and I do not think that the Circuit Court has the capacity to deal with it.
Let me say also something I have referred to very often in the course of this Bill so far, the very atmosphere, the almost cattle mart atmosphere of a Circuit Court sitting is no atmosphere in which any couple should have to have the judicial separation of their marriage considered. From that point to the points of law and the points that must concern a judge, I do not believe that the average judge in the Circuit Court has the experience or capacity to deal with this matter and I believe that those judges themselves would be the first to acknowledge that. The vast majority of legal practitioners in this country, solicitors or barristers — the judges come from the Bar — are people who have not engaged in family law practice at all. The vast majority of judges on our Circuit Court benches would, I am sure, readily admit—and it is a matter of fact anyway—that they have not engaged in family law practice while practising at the Bar.
I do not believe it is right that a matter as serious as a judicial separation and the breaking down of a marriage should be one to be dealt with by the Circuit Court. It is far too serious a subject. I must say in all seriousness that the Minister is dealing with this question far too lightly in bringing it before the Circuit Court. When objections such as this were raised before by people they were pooh-poohed by the Minister. It was said, certainly by the Minister's colleague in the Department of Justice, Deputy Collins, if not by the Minister of State himself, that people who said that the jurisdiction for divorce a mensa et thoro should not be given to the Circuit Court were objecting to informalising the procedure. It is a most serious matter. It requires the dignity of the High Court; it requires the experience of High Court judges, and it requires, for the sake of the couple involved and the family, that it not be dealt with in any shipshod manner. I do not say that the Circuit Court judge will deal with it in a slipshod manner but I am saying that the necessary resources, because it is taking place in some courthouse away from the Law Library, away from the centre of legal activity in Dublin, will not be available.
I would say that the atmosphere of the courthouse itself is wrong. The matter is altogether too serious to be given into the jurisdiction of the Circuit Court. There is a recognition of the fact, for example, that the Circuit Court should not deal with matters involving sums in excess of £15,000 in civil law. Is the Minister equating the two? For example, if you have a £20,000 claim you will go to the High Court. If you break your leg and you are not able to resume work for a while and your solicitor thinks you are going to get more than £15,000, he advises you to bring your action to the High Court because it is a serious matter. However, somebody now who is seeking redress and who seeks an order of divorce a mensa et thoro will bring the action to the Circuit Court. The Minister will reply that it is there to facilitate those people; it is there to make it easier for them. There are other ways of making it easier for people, by providing the proper facilities in the proper places. The Minister has made the point — and I agree with it fully — that there could perhaps be courts throughout the country, let us say, wherever there is a legal aid centre. That could be done without any great difficulty, and it could be done immediately. I hope the Minister is not going to tell me that he is going to do all of this in the next 12 months as well, because I will not accept it. This is a most serious matter and it is being dealt with far too lightly. I urge the Minister to accept our amendment.
What Senator Molony says about the lack of experience of judges of the Circuit Court or practitioners is probably true. On the other hand, 10 or 15 years ago there were very few judges of the High Court with any experience of these matters. There were very few practitioners in the High Court who had any experience in these matters. They just had to learn gradually by some of the judges getting experience in that area and some of the practitioners specialising or doing a good deal of work in that area. They gradually built up experience. The same thing will happen gradually in the Circuit Court. It is not an ideal situation, but they will gain experience and, in a relatively short time, they will have the necessary experience and expertise to deal with these matters.
It is not as though there is a choice in the ordinary sense of having or not having any of these cases in the Circuit Court. There is, in my view, no choice. There has been such a volume of work of this kind in recent years that it just would not be possible to handle it all in the High Court. It is necessary to extend it to the Circuit Court and, in some cases, to the District Court. We should face up to that fact and rely on the fact that experience will be gained in a relatively short time. So I do not think there is any alternative but to do it in the way that is suggested by this Bill.
On section 5, in the absence of any mandate either clear or implied from the electorate to do away with the constitutional prohibition on the dissolution of marriage, we have to concern ourselves with judicial separation. The purpose of this section is to make that easier for people, particularly people in rural areas. I have said on Second Stage, and I say again, that marriage is a relationship which either works or does not work. The main problem for people is that they should be relieved of its burdens when it does not work in as quick and as efficient a manner as possible.
Some of the main objections to this section have been the unsuitability of Circuit Court buildings. The Minister has said, and Senator Molony has agreed with him, that there is in every Circuit Court area some building that is suitable and that can provide privacy for the hearing of these cases.
As to the competence of the judges, I am in the hands of the experts in the House. Senator Cooney said something that rather worried me as a member of the general public. He seemed to suggest that in these matters the views of High Court judges were limited; he seemed to imply that judges of the Circuit Court tried cases on the balance of prejudice and he was only happy about the ability of the district justices. So, as a member of the general public and going on what he says, I think I would choose to have my case heard by a district justice.
Also we have had criticism about the suitability of buildings from the General Council of the Bar. I think Senator McGuinness quoted what they said. While commenting on this they said that reluctance by people to apply to the Circuit Court for relief is at least in part due to the reluctance of the parties to accept a local venue. They go on to say that they are hardly unaware of the inadequacies of the courthouse accommodation. I do not think that follows at all. People in rural areas would very much rather go to a local venue than undergo the expense of a journey to Dublin to the High Court, where the mystique of the law has, to say the least of it, a very offputting effect. I welcome this section. It will make matters very much easier for people who are caught up in a marriage breakdown situation.
As reference has been made to this quotation from the Bar Council document might I say that this was the submission made by my branch of the profession to the Committee on Court Practice and Procedure which was referred to earlier by the Minister and which I had with me on the last day. It is not just that people are aware of the inadequacies of Circuit Court buildings for these family law cases. It certainly is generally felt that people are not necessarily desirous of having these cases heard locally because they feel that the local forum is not necessarily as private as having them heard a distance from home. This is one of the matters which exercised the minds of the Bar Council and members of the Bar generally, not merely the actual inadequacy of the courthouses. People would rather pay the money to go to Dublin and be sure that everybody does not know what their business is about.
The form of proceedings for divorce a mensa et thoro is accepted at present in the High Court as being a very complicated form. For that reason, it has been held, and the committee have recommended, that the jurisdiction for divorce a mensa et thoro be vested in the Circuit Court. I understand that the committee have also recommended that the necessary statutory changes be made in order to enable applications in the Circuit Court for divorce a mensa et thoro to be commenced by way of civil bill. The rules provide that where proceedings under any statute are not specifically catered for, the proceedings can be commenced by civil bill in accordance with the rules.
I agree totally with what Senator Ryan has said. The argument that the judges of the Circuit Court are not capable of dealing with the area involved in divorce a mensa et thoro on the basis that they have not had previous experience is unrealistic and a poor argument. Senator Ryan is right when he states that, because these people have not had jurisdiction in the past, it is quite natural that they would lack certain experience because of non-involvement in the type of case. I claim, as he does, that the High Court experienced the same lack in so far as the number of cases that came to the High Court some years ago were few and far between also. I am satisfied that just to maintain the status quo for the sake of maintaining the status quo is not a justifiable reason for excluding this type of case from the Circuit Court. I have stated elsewhere, and reiterate it here, that in the Circuit Court we are providing for a number of other family law matters. There are a number of matters which are very likely to arise in connection with the hearing of cases for divorce a mensa et thoro. For that reason it is desirable and important that at least there be a “package”, if you like, in family law, that the access would be there. I know that Senator Molony is nodding his head——
At a bargain price.
Well, if the Senator wants to lower the level of the debate by making remarks like that, it is regrettable. I am satisfied that what we are doing is in the best interests of the people who will find themselves in the tragic circumstances of having to seek judicial separations in the court. The circumstances in which I can justify them going to that court and justify the provision in that court for divorce a mensa et thoro are proper and correct based on the ground I have given. I have been repeating some of the views given by Senator Ryan and agree with him totally in this regard. I do not know why there should be an attempt to suggest that the Circuit Court judges are not capable, based simply on the argument that they never had any experience of the matter in the past. In recent years it has been accepted that the numbers of cases in the High Court have not been nearly as great as they might have been, for factors and facts well known to Senator Molony.
Senator Ryan has made a very excellent case for the establishment of a proper family court. I have no doubt that there must be many supporters of the Government party at the moment who recognise the necessity for family courts, tribunals — call them what you like. The Minister suggested in his reply to the Second Stage that those people who look for family courts were looking for a Utopia, which is impossible to attain. It was not impossible to attain when Fianna Fáil published their 1977 Election Manifesto, but three years later, it is impossible to attain it and it is Utopian to think of the establishment of family courts——
That is totally incorrect. I did not say that.
I do not want to quibble with the Minister on what he said or did not say. The record will show what he said. He did refer to the Utopia sought by certain Members of the House when they looked to have family courts provided. This is a cheap way out. There is no doubt in the world about that. The Minister should have undertaken a proper study beforehand of the courthouse facilities around this country. I am taking a shot in the dark when I say this, but from discussions I have had with members of the Judiciary, I know there is concern among members of the Judiciary in the Circuit Court as to their capacity and as to the wisdom of giving that court the jurisdiction to deal with matters of divorce a mensa et thoro.
This is why I said it is cheap. I referred on Second Stage to this move to pass all these cases to the Circuit Court. The reasons given by Senator Ryan are a bit like the decision of the Minister for the Environment when he could not deal with the thousands of people who were lined up waiting to do a test to get a driving licence. What was the way out of it — abolish the necessity for a test altogether. Everybody who is on their second provisional licence does not require a test, he or she can have a licence. If you failed a test, you can have a licence. That is the very same type of thinking that brings the Minister in today to suggest, as Senator Ryan has said, that we have so many cases of people seeking divorce a mensa et thoro decrees in the High Court that the High Court cannot deal with them, therefore you pass them on to the Circuit Court, bring them down a step. That is not the answer. This is a specific problem that requires a specific measure to deal with it and that is what the Minister should be doing. If the Minister even told us that he was going to have a half-way house - and I understood him to say in his reply on Second Stage that it might be a good idea to have a special place in every circuit to deal with matters like that — I would go the whole way with him. I would say that at least he was facing in the right direction. At the moment he is going backwards and what is being done is wrong. I accept that the Committee on Court Practice and Procedure said “Let us do this.” But I will remind the Minister, as we go through every section of this Bill, that the Committee on Court Practice and Procedure made this comment on court accommodation in paragraph 24:
The general Council of the Bar of Ireland in its submission strongly urged the desirability of providing proper courthouses before embarking on any increase in jurisdiction. It is true that too many courthouses are in need of immediate and extensive repairs or replacement. Justice cannot be adequately administered in unsuitable premises. The Committee reiterates the comments and recommendations concerning courthouse accommodation which they made in paragraphs 160, 161, 162 and 163 of the Committee's Twelfth Interim Report (26th August 1970). The Committee expresses the hope, if their recommendations in this, the 20th Interim Report, are implemented, that one result will be to hasten the necessary provision of suitable court accommodation.
That is 11 years ago now. I would remind the Minister that the Committee recommended that before we embarked on this measure the provision of courthouse facilities be carried out. One thing the Minister has made quite clear is that he has no immediate plans. He is going to wait to see what happens, and he has now an impossible period of 12 months in which to do it. I think it is wrong and I will say what Senator McGuinness was accused over — this is justice on the cheap, certainly in relation to this matter.
I think we should get it clear whether Senator Molony objects to law being cheap, because he says that is just a cheap way out and he said earlier that this is justice at a bargain price. I think Senator Molony should state quite definitely whether he is against law being available at a cheaper price than it is that merely because it is cheap that it must necessarily be bad?
This Bill sets out to do three things in particular. It sets out to ensure as far as possible that justice will be available to people at a cheaper price than it is at the moment, that it will be available quicker than it is at the moment and that there will be greater access, more convenient access for people who wish to have some matter adjudicated. I think this Bill does all three things.
Senator Molony seems to be adopting the attitude that, if it is going to be cheaper, it must necessarily be worse. That does not follow. I think that merely saying that because it is going to be cheap it must be bad is a completely wrong approach to this Bill. I have no reason at all to believe that dealing with this kind of case in the Circuit Court is necessarily going to be any worse than in the High Court. I believe that the average Circuit Court judge is just as able, just as competent as a High Court judge and, given a little bit of experience, will be just as effective. Obviously, it will take a little while. That is inevitable. That is something that cannot be got over, just as every High Court judge who is dealing with this at the moment had to deal with a case for the first time, second time and third time when he was doing it at first. I see no reason at all why it should not be just as effective when done by the Circuit Court and why Circuit Court judges should not be just as effective in dealing with this kind of case. The fact that it is going to be a bit cheaper is not a reason why it should be criticised. I think it will enable these cases to be heard more quickly and I think it will be more convenient for the unfortunate people who have to bring these kinds of cases.
The throw-away criticism that this is bargain basement law, a cheap way of doing it, is certainly not the proper way to approach this and I think Senator Molony should say now whether he believes that merely because it is cheap it must be bad. That is a totally invalid way of approaching this section.
I want to thank the Leader of the House for drawing my attention to something that certainly, if it appeared in black and white on the record of the House, could have left it open to people who wanted to attack me to interpret it in the way that he chose to interpret it. I am quite sure that Senator Ryan, if he listened to what I said when I compared it with the abolition of the queue of people for driving licences, must realise that I did not mean cheap in the monetary sense; I meant that people were going to get a lesser quality article. When he refers to the bargain price basement we all know what you get in the bargain price basement. Sometimes you may get a good bargain, but when you go to the sales and you buy a shirt for £5 that would normally cost you £12 you know it is not the same article.
I welcome the opportunity that Senator Ryan has given me to clarify this. I want to make it quite clear that I believe that this measure is going to cheapen the quality of justice that is available to people who seek this remedy. I want to make it quite clear that I am utterly in favour of delivery of legal services to everybody at the cheapest rate possible in monetary terms. I have always advocated that. I believe that there is a proper way of doing that and that is by subsidising it in the proper way, not by pushing it out of one jurisdiction and into a lower jurisdiction because it might save money. It might save a few bob for the State and the State are the only people who will save a few bob in this respect. Senator Ryan made it quite clear that he thought this was the right solution when he said that there are too many cases of this occurring in the High Court. So, what do you do? You push it into the jurisdiction of the Circuit Court. I disagree with that. I would just like to ask Senator Ryan whether he believes that there is one section for family courts because it is not what the published policy of the party was when he was Director of Elections in 1977. I would like to ask him to tell me why no steps have been taken to establish family tribunals and I would like him to tell me in regard to the view that he has expressed, that this is the proper way to deal with this problem, whether he disagrees with the Minister for Justice who has said that this is an interim measure. The Minister for Justice wants family law tribunals but Senator Ryan does not. It seems that Senator Ryan regards this as the proper way to deal with the problem. I do not. I believe in cheap justice where it is cheap in terms of monetary cost to people who are paying for it, but I do not believe in giving them a shirt with a torn collar at a cheaper price simply because it is available in the bargain basement.
It is quite clear from what Senator Molony has said that he has even worsened the situation and confused it to my mind; he has shocked me. He has taken up Senator Eoin Ryan on the matter of providing access to good law cheaply. He has now taken up that cudgel, having been reminded of his omission. He now appears to want to rectify it for reasons that I think this House could suspect. However, he goes on to state quite clearly that he has no objection to the law being cheap in the monetary sense but he has stated that the law, as provided in the Circuit Court, is cheap because of the fact that it is in that court in this case. That, clearly, is denigration. It is a despicable comment about the judges of the Circuit Court to say that they are in this business of delivering or providing cheapened justice.
I think that he has also, in the same long winded breath, stated that the Committee on Court Practice and Procedure which I defended on a regular basis in the Lower House against opposition from his colleagues — and I predicted that I would have to do it here in this House also against the same side although Senator Molony disagreed that any such defence would be necessary — was getting the Government off the hook. He has suggested, by making the comparison in relation to the abolition of the driving test and the recommendation of the committee, that this committee of eminent men merely recommended this change from the High Court to the Circuit Court for purely political purposes to get the Government off the hook. That is the implication and it is a direct and despicable accusation against the eminent highly-qualified men who serve on that committee. That committee also stated that the facility afforded in the High Court was over-elaborate, out of date and should be provided in the Circuit Court. Today the Senator has thrown dirty water on the judges of the Circuit Court by his accusation of them providing cheapened law.
Earlier, while presuming to defend the committee by misquoting me and misrepresenting what I said in relation to the minority report, he accuses them now of being prepared to take a decision in the sensative, delicate and important area of judicial separation purely for the purpose of providing a political solution for the Government so that they would be got off the hook by transferring this jurisdiction from the High Court to the Circuit Court. I will make no further comment. The arguments given by me and by Senator Eoin Ryan are clear. They are justifiable and they are desirable in the situation, and the implication of what is proposed by the Senator on the grounds that he has used here today is nothing less than appalling and shocking.
I would be concerned that Senator Molony's concept of cheap justice might be taken to mean that the litigant would receive an inferior service or a service that depends on the size of the fees that are paid to his legal representatives. If that is the meaning of Senator Molony's cheap justice, it is something that should be rejected by this House.
I should like to remind the Senator also that long before the days of FLAC who do very good work, there was a tradition at the Bar — I cannot speak for his profession — that poor people would be represented where their case is needy, where they can show need. They have been represented by members of the Bar without the expectation and without the hope of getting a penny payment for their services.
It seems as if there is some support for the Senator on this side of the House. If, when we go to the hustings I hear anybody talking about family law tribunals, I shall have the record of the House to deal with the subject. I am surprised Senator Cassidy did not understand me when I made that point when replying to Senator Ryan.
I agree with the Senator: that is exactly what this proposal is doing. Certainly, members of the Bar had a tradition. Solicitors, too had a tradition, and a very important tradition. I might say further that my experience in this whole area came from my involvement in the free-legal-aid advice centres. It was a long and bitter struggle for the miserable legal aid system we have now. Most people who have any sort of social conscience and who are members of any branch of the legal profession have concerned themselves with this area. It is good by way of a smart jibe to talk about cheap justice and all the rest. I have made my position quite clear and I would ask Senator Cassidy to accept what I have said with the sincerity with which I offered that view. There is no question whatever of my being against justice just because it is cheaper in one court than it would be in another. What I am talking about is the quality of the justice that is available. What I want is that cases which demand a certain jurisdiction because of the seriousness of the case should be given by this country the forum that has the dignity and the experience to offer a solution to the problem. We are dealing with judicial separation which is a most serious matter and whatever resources we need to provide a solution to that problem ought to be provided. It is a matter of peripheral interest as to where those resources are provided — whether they are provided in Dublin or in Cork. I do not think any farmer would mind having to get somebody else to milk the cows so that he could go to Dublin to fight a case involveing his judicial separation from his wife. This is the seriousness of what we are talking about. Many of the arguments that have been used to back up the proposals for this measure are inadequate and false in that respect. Senator Ryan, in his contribution on this Stage of the Bill, made the case for family tribunals. I am sorry that the commitment that I thought Fianna Fáil had to that concept seems to have evaporated over the past four years.
Question put and agreed to.
SECTION 6.
Question proposed: "That section 6 stand part of the Bill".
I want to go back to the matter of courthouse accommodation because I am not satisfied with the position. We are talking about the District Court here. I want to get from the Minister details of the specific proposals he has. There are a number of problems that arise in this regard. First, the maintenance of District Courts is a matter for local authorities. I want to ask the Minister specifically whether he would consider taking that responsibility away from local authorities altogether. The local authorities do not have the resources to maintain District Courts.
Is the Senator speaking on section 7?
I am speaking to section 6.
Sorry.
The District Court basically is a service provided through the Department of Justice. The court service is controlled by the Department of Justice. It is senseless to expect local authorities to deal with the maintenance and provision of courthouses around the country. I have already said to the Minister that I do not blame him for the condition of our courthouses but I am going to blame him for putting a lot more work onto them. It is wrong that he should do that without first taking the precaution of improving the facilities available. I would ask him to consider taking over that responsibility from the local authorities direct to the Department of Justice.
I want to know why the Minister goes so far in agreeing with the Committee on Court Practice and Procedure, but apparently disagrees with them in that they asked that before this measure be brought in the courthouses around the country be improved. If they were improved I would not be standing up here discussing this matter, wasting my time, as I am going to get nowhere with it anyway. I would like to put it on the record, because I can see a lot of mess occurring around this country, and I can speak from personal experience of the inadequacies of District Courts and I believe that there is not a solicitor who practices in courts in this country who will not speak of many courts that are inadequate both in their physical accommodation and in their capacity to take over this work.
I also want to know, in relation to the District Court itself, why the Minister must wait over to see what is going to happen? Whatever arguments might be made in relation to the Circuit Court there can be no doubt that the work of the District Court is going to be multiplied. We are giving them an increased jurisdiction from a measly £250 up to £2,500. That is a multiplication by ten of the work of the District Court. We are giving them new jurisdiction in relation to matters of family law which is completely new. We are proposing in the Malicious Injuries Bill to give them a new jurisdiction in respect of the malicious damages code. The work of the District Court has been multiplied. Of course, they will need more staff unless the workload is going to collapse. It is impossible to foresee a situation in which the workload is going to collapse. The District Court will have to do the work of the District Court and the Circuit Court. That is the position at the moment. The Minister must be aware of that fact. I want to know if he has had consultations with the District Court clerks and their associations, whether he has had consultations with the justices of the District Courts and whether he is satisfied that the District Courts are in a position to take over this load the day the Bill becomes law. The fact is that their work is being multiplied by ten. The decisions that have been made to introduce this legislation without first making provision to improve courthouse accommodation is cracked.
I have given every indication already as to what steps will be taken both by way of the provision of staff and of additional justices should they be required, and that there are proposals for improving courthouse accommodation. Senator Molony has alleged that I have not accepted the Committee's recommendation in relation to poor courthouse accommodation. I have acknowledged that there is poor courthouse accommodation, particularly where District Courts are concerned.
What are you going to do about it?
I have told the Senator I have given a commitment and all he is asking is for a repetition of the commitment and in inviting that repetitive commitment from me, the Senator has been repeating himself since we came in this evening. I have also told the Senator — and I notice he has tried to elicit it again — that I will not disclose what is contained in the proposals that will be going to the Government.
I asked the Minister has he had consultations.
The Senator has attempted to elicit from me something that is confidential and something I am satisfied the Government should know before Senator Molony. I have clearly indicated what I intend to do in this regard and I do not intend to add further to that.
This is a most frustrating experience. Perhaps it is for the Minister also, I do not know.
It is, when I hear the same question being put repeatedly.
I have asked the Minister a question, and I shall put it on the record again. Has he had consultation with the District Court Clerks' Association about this?
I am not going to reveal to the Senator——
I just asked: did the Minister have consultation?
I am not going to reveal to the Senator the investigations, the approaches, or with whom I consulted or what was stated. I have told the Senator that it is confidential. I repeat it and that is it.
That is fine. The Minister does not propose to tell us whether he has had consultations with the District Court Clerks' Association.
I have had consultations with anybody I considered necessary.
Of course. And, if the Minister has not had consultations with the District Court Clerks' Association, I may now take it that the Minister did not think that was necessary. That is what the Minister has said.
I have said nothing of the sort; misrepresentation again.
The Minister can have his Bill, can have everything he wants——
We are on the section.
I appreciate that. I am just asking questions that every practitioner in this country is asking at present. I object to the fact that the Minister is refusing to give me answers. I am not asking the Minister for details of the results of his consultations with anybody. I merely asked did they take place, because I think they should have taken place and if they have not taken place they should take place immediately. It is a matter for the Minister; I accept that completely. But, as a Member of this House, as a public representative, I am entitled to ask those questions. I object to the implication that I am not or that I am doing anything wrong in asking those questions. I know what are the views of District Court clerks on the proposed increase in jurisdiction of the District Court. I am not satisfied with what the Minister said in relation to District Court accommodation. The Minister is skirting the issue and is making a mockery of this House.
Question put and agreed to.
Sections 7 to 11, inclusive, agreed to.
SECTION 12.
Government amendment No. 5:
In page 6, to delete lines 2 to 37, and to substitute "1976, is hereby amended by the substitution of the following section for section 23:".
This amendment removes from the Bill the provisions relating to the barring order remedy. I informed the House on Second Stage that there is a Bill before the Dáil — The Family Law (Protection of Spouses and Children) Bill, 1981 — which is a result of a general review of the barring order procedures which has been going on in my Department for some time. I do not propose to go into detail at this stage on the contents of that Bill. It is sufficient to say that it will provide additional protection for spouses and children affected by domestic violence. It includes jurisdiction proposals of similar effect to those of subsection (a) of this section which are therefore unnecessary in this Bill.
It is an excellent thing that the other Bill is being introduced because it is extremely necessary and very welcome. I only hope that events outside this House may not prevent it from actually coming before the House. I should hate to see it disappear and indeed its companion, The Family Law Bill, 1981, which is an equally desirable measure. I hope that, whatever happens, these Bills will not be lost sight of and will not disappear from the Houses of the Oireachtas owing to other events.
Amendments agreed to.
Section 12, as amended, agreed to.
Sections 13 and 14 agreed to.
SECTION 15.
Question proposed: "That section 15 stand part of the Bill."
I do not feel that there is any need to take up time of the House or Minister in repeating what I said already on the Second Stage of the Bill in regard to my feelings about the transfer of the custody of children cases to the District Court. There are a couple of things I would like to add to that. I would like to refer to the excellent contribution made by Senator Mary Harney on the Second Stage debate when—although she said she hesitated to come in because everybody who had spoken before her had been professionally qualified and she was not—what she said made a great deal of sense, in that she said that she would like to see these matters brought before special family tribunals. She appeared to feel that what the Minister was doing in this Bill, in transferring the jurisdiction to the District Courts was the first step in this direction. Alas, it is not a first step in this direction. I only wish it was because, if I felt it was, there is no doubt that I would wholeheartedly support it. The Minister of State may know—certainly his colleague, the Minister for Justice, knows — that I was not among the people who gave blanket opposition to the introduction of the civil legal aid scheme simply because it was not perfect to begin with. I quite publicly expressed the feeling that it was better to make a start somewhere. For all the inadequacies it may have, there is no doubt in my mind that the civil legal aid scheme has helped quite a number of people who otherwise would not have had recourse to legal remedies for their problems.
Similarly, in this case, if I really felt that what is being done is an effort to provide a suitable, cheap, accessible forum for family law cases, I would be the first to welcome it. Unfortunately, while it may be cheap and in some ways may be accessible, I do not think it is a suitable forum, for all the reasons I put before the House on the Second Stage. I continue to feel that the forum of the ordinary District Court is in no way a suitable forum for hearing these kinds of cases. Therefore I cannot but oppose the introduction of this entire section. Incidentally, I must apologise to the Minister for having said the last time that this was not covered by section 33—I agree it is—that it is to be delayed for a year. This was simply a slip of the eye and I owe the Minister an apology for having said that.
I definitely feel that, even a year later —even with whatever improvements can be effected in the District Court system within a year—that cannot transform District Courts into being the right place to hear cases which involve a child's entire future or existence, cases which really need time for calm and careful consideration of them. I am left in no doubt that I must continue to oppose this section, to oppose the whole idea of moving this jurisdiction into the District Court as at present formulated.
I want to second the views offered by Senator McGuinness. I am entirely fed up arguing the toss on this Bill. Obviously I am going to get nowhere at all. The Minister has indicated that he has no intention of changing anything in it. But it is very important that it goes on record that this, another very serious matter, is being put within the jurisdiction of a court that does not have the capacity or the resources to deal with it. I simply want to record my dissatisfaction with it. I will not go further than that.
The provisions of this section are based on the recommendations of the committee. They have been carefully considered by the Minister for Justice and the Government. With regard to some of the justifications or reasons I gave, again it is a package——
Paragraph 24 included.
——plus the fact that you have at present in the District Court jurisdiction in maintenance orders and also in barring orders. In some instances today, the Civil Legal Aid Board are finding it difficult where they have maintenance or barring orders in connection with a particular family being dealt with in the District Court while matters of guardianship and so on are only dealt with in the High Court. Part of the continuity which is achieved in the Circuit Court is now being provided in the District Court.
I want to put it on the record of the House that the Minister is following the recommendations of the Committee on Court Practice and Procedure but not Recommendation No. 24 in relation to courthouse accommodation.
Question put.
The Committee divided: Tá, 21; Níl, 13.
Tá
- Brennan, Séamus.
- Cassidy, Eileen.
- Cranitch, Mícheál.
- de Brún, Séamus.
- Donnelly, Michael Patrick.
- Doolan, Jim.
- Dowling, Joseph.
- Ellis, John.
- Harney, Mary.
- Herbert, Anthony.
- Hillery, Brian.
- Honan, Tras.
- Hyland, Liam.
- Kiely, Rory.
- Lambert, C. Gordon.
- Lanigan, Michael.
- Mulcahy, Noel William.
- Ruttle, James.
- Ryan, Eoin.
- Ryan, William.
- Whitaker, Thomas Kenneth.
Níl
- Butler, Pierce.
- Cooney, Patrick Mark.
- Governey, Desmond.
- Harte, John.
- Howard, Michael.
- Kilbride, Thomas.
- Mc Donald, Charles.
- McGuinness, Catherine.
- Markey, Bernard.
- Molony, David.
- Moynihan, Michael.
- Murphy, John A.
- O'Brien, Andy.
Tellers: Tá, Senators W. Ryan and S. Brennan; Níl, Senators Butler and Harte.
Question declared carried.
SECTION 16.
Is amendment No. 16 being moved?
As this was a consequential amendment on the removal of section 15, there is no point in moving it at this time.
Amendment No. 16 not moved.
Question proposed: "That section 16 stand part of the Bill".
As I understand the existing system in relation to an order for costs, the matter was totally within the discretion of the court concerned. If somebody was awarded a sum less than the jurisdiction of the High Court, the High Court judge had the right to give a certificate allowing the Taxing Master to allow the costs of the High Court despite the fact that the case could have been brought in the Circuit Court. Why is it proposed to change this and to remove the discretion from a judge where the amount of the award is between £2,500 and £7,500?
The existing position is this. Section 12 of the Courts Act, 1936, as amended, limits the cost which a successful claimant may recover in certain types of High Court action if the amount recovered is within the jurisdiction of the lower court to award. He may recover full High Court costs only if the judge hearing the action certifies specially that it was reasonable, owing to the substantial and important nature of the action or to the importance of any question of law involved in it, that the action should have been commenced in the High Court. In some types of action the judge does not have the discretion to issue a certificate.
Is it quite clear that, where the judge now has discretion to allow High Court costs in a case where perhaps the award of damages may have been only at Circuit Court level of damages, this discretion to grant the special certificate will be continued as at present?
The discretion will be continued.
Even where the sum is less than £7,500?
The discretion will be there as at present.
Where the award is less than £7,500, between £2,500 and £7,500, will the court have the right to award High Court costs?
The types of action and restrictions on costs are as follows: in tort and breach of promise of marriage, where the amount recovered is in the upper half of the Circuit Court's jurisdiction between £1,000 and £2,000, costs are calculated at the Circuit Court scale unless the judge issues a special certificate. Where the amount recovered is within the District Court jurisdiction or is in the lower half of the Circuit Court jurisdiction—£1,000 or less—costs are calculated on the Circuit Court scale, but the amount of the costs cannot exceed the amount of the decree: The judge may issue a special certificate.
I presume that, as the action of breach of promise of marriage is to be done away with by the new Family Law Bill, this will disappear and that this is a kind of a withering away provision.
It would be.
At least we hope that it will be removed by the new Family Law Bill.
Question put and agreed to.
Sections 17 and 18 agreed to.
SECTION 19.
Question proposed: "That section 19 stand part of the Bill".
When do the provisions of section 19 come into operation?
The first half will come into operation straight away.
In section 28, with which we will deal later on, there is an amendment proposed the effect of which will be to allow for retrospective enactment of the provision. Why was the same provision not made in relation to the section?
I would refer the Senator to section 33 (2) and (3):
(2) The Courts (Supplemental Provisions) Acts, 1961 to 1979, and this Act may be cited together as the Courts (Supplemental Provisions) Acts, 1961 to 1981.
(3) Sections 2 to 17, 19 (2), 20, 21, 23 and 25 to 27 of this Act shall come into operation on the day that is twelve months after the date of the passing of this Act, but shall not apply in relation to proceedings in any court instituted before that day.
Question put and agreed to.
Sections 20 and 21 agreed to.
SECTION 22.
I move amendment No. 7:
In subsection (1), page 12, line 18, after "may," to insert "on application being made to him,".
As this section stands at the moment, the court without application being made to it by either party may decide of its own volition to impose an obligation on one or other party to pay interest. If both parties for some reason or another are agreed that neither of them is interested in pursuing the question of interest, the judge should not have any independent right to make a decision on the matter and the effect of the amendment would be to give the judge the right upon application being made to him to exercise the discretion.
From a practical point of view I wonder whether a judge would ever make an order of that kind without an application. If he felt that it was a case in which interest should be payable and if he felt that for some reason the counsel on behalf of the plaintiff was nodding or something of that kind, and he felt it was a suitable case, I imagine that the very least he would do is say that he was considering the payment of interest and would ask the parties if they had any views to offer on the question. I cannot see him merely exercising his discretion and not allowing either party to make any submission on the matter.
When I saw the amendment first I thought it was good but on reflection I feel that from a practical point of view a judge will never make that kind of an order without being asked to do so or certainly without asking both parties if they had any submissions to make on the matter.
I am aware that it is a feature of certain provisions that a power of discretion vested in a judge may be exercised by him only "on application" by one or both parties. Indeed this Bill contains two such provisions: section 17 dealing with certificates exempting a plaintiff from the normal limitation on costs, and section 31 which deals with transfers of Circuit Court criminal trials from the Circuit Court in which they would normally be held.
The difference between provisions of that type and the one at section 22 is that those provisions dealt with deviations from the norm, and it would not be appropriate for a judge to exercise the powers of discretion which those sections confer without such an application being made.
If the words which the Senators propose were inserted, I would be concerned that there might be read into the section a requirement that cases must go before a judge before interest could be allowed, and that as a result sums offered in settlement would not and need not take account of this provision. This would certainly be contrary to the intention of the provision; it could result in claims which might otherwise have been settled being pursued to the last, simply to obtain interest.
If these words were inserted, it would presumably become standard practice for a plaintiff's legal advisers to make the application. The requirement to apply would, however, act to penalise the plaintiff whose advisers overlooked making the application.
On balance, it would be safer to leave these words out and let the section stand.
Am I to understand that if the parties agree a settlement the judge can subsequently decide to allow interest on the settlement figure without any application being made?
I am concerned that it would be implied that interest could not be obtained without application to a judge.
I thought the Minister said that one of the reasons he did not agree with the amendment was that the parties could agree settlement terms and that it would be open to the judge afterwards to provide that interest be payable on the sum of a settlement without application being made, and this was a good thing.
No. It would be a situation where the whole case would have to go to court.
I do not understand the point the Minister is getting at.
I am aware that it is a feature of certain provisions that a power of discretion vested in a judge may be exercised by him only on application by one or both parties. Indeed, this Bill contains two such provisions, in section 17 dealing with certificates and exempting a plaintiff from the normal limitation on costs and in section 31 which deals with transfers of Circuit Court criminal trials from the Circuit Court at which they would normally be held. The difference between provisions of that type and the one at section 22 is that those provisions were deviations from the norm and it would not be appropriate for a judge to exercise the powers of discretion which those sections confer without such an application being made.
If the words which the amendment proposes were inserted, I would be concerned that there might be read into the section a requirement that cases must go before a judge before interest could be allowed and that as a result sums offered in settlement would not and need not take account of this provision. This would certainly be contrary to the intention of the provision. It could result in claims which might otherwise have been settled being pursued to the last, simply to obtain the interest. If these words were inserted it would presumably become standard practice for plaintiffs' legal advisers to make application. The requirement to apply would, however, act to penalise the plaintiff whose advisers overlooked making the application. On balance, it would be safer to leave these words out and let the section stand.
If the parties agree a settlement they can also agree between them an amount for interest.
Yes.
And it will not have to go before the court at all?
That is correct.
Surely that is the position at the moment.
Yes.
It seems to me that the phrasing is quite sloppy here. Surely there is no need for the phrase "if he thinks fit" since the judge's discretion is all. What is the point of saying "if he thinks fit"? Presumably the judge will not do anything unless he thinks it fit. Is that not sloppy phrasing?
We are dealing with the amendment now, not the section.
I happen to think the amendment is unnecessary as well.
Amendment, by leave, withdrawn.
Question proposed: "That section 22 stand part of of the Bill."
I simply repeat that the inclusion of the phrase "if he thinks fit" is superfluous nonsense. If I were a professional draftsman I would be ashamed of including it.
Question put and agreed to.
Sections 23 to 27, inclusive, agreed to.
SECTION 28.
Government amendment No. 8:
In subsection (3), page 14, lines 12 and 13, to delete "commencement of this Act" and to substitute "15th day of October, 1980".
Subsection (3) of the section 28, as it stands, prevents the application of the new limits of compensation for mental distress, that is £7,500, to causes of action which accrue before the Bill commences. The justification for this is that in principle defendants should not be made liable for damages other than those appropriate at the time of the occurrence of the accident concerned. Giving further consideration to the matter in the light of the debate in the Dáil and in particular an amendment which Deputy Keating moved there, which would, in effect, have deleted subsection (3), I accept that strict adherence to the principle I have mentioned would mean that the limit now proposed should not have effect in proceedings coming before the courts for a number of years to come, possibly up to four. A figure of £1,000 would remain in force in these cases. This, I am satisfied, would give rise to hardship and would be clearly out of line with the intention of the Oireachtas in the 1961 Act which set the limit originally. For that reason I now propose that the new limit should apply to all cases where the accident in question occurred on or after the date on which the Bill was presented, that is, 15 October 1980. It is a fair and just compromise.
I agree and welcome the amendment.
Amendment agreed to.
Section 28, as amended, agreed to.
Section 29 to 33, inclusive, agreed to.
Schedule agreed to.
Title agreed to.
Bill reported with amendments, received for final consideration and passed.