Seanad Éireann debate -
Friday, 9 Oct 1981

Vol. 96 No. 2

Courts Bill, 1981: Second Stage.

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

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

The purpose of this Bill is to increase from 12 to 14 the statutory number of ordinary judges of the High Court and it takes account of the fact that, by virtue of the provisions of section 14 of the Law Reform Commission Act, 1975, the number of such judges may, in certain circumstances, be one more. However, since no High Court judge is currently a member of the Law Reform Commission the provisions of the section in question do not affect the High Court at the present time.

The appointment of additional judges of the High Court, as provided for in section 1 of the Bill, is necessary because of the increased volume of business coming before that court in recent years, coupled with the fact that the court is in effect short of two judges, because the full time of one judge has been for some time, and still is, taken up with sittings of the Special Criminal Court. It is important that the Presidency of the Special Criminal Court be filled by a judge of the High Court and, in order to ensure that there would at all times be a High Court judge available to act as President, it became necessary to appoint four High Court judges to be members of that court. The effect of this has been to deprive the High Court of the full time of one judge, while the necessity to assign a High Court judge to conduct the Stardust fire inquiry has meant that the judge assigned has not been available to the High Court for several months past and there is as yet no indication as to when he is likely to be able to resume his normal High Court duties. As this is the second occasion within the last three years that a High Court judge has been called upon to absent himself from the Bench over an extended period to conduct such an inquiry I consider that the complement of High Court judges should be such that when a judge is called on to conduct an inquiry of this nature the remaining number of judges will be adequate to deal with the business coming before the court. Another factor which is a source of strain on the resources of the High Court is the substantial growth in recent years of family law business which, because of its personal nature, needs to be disposed of with the minimum of delay. The stage has now been reached where it has been found necessary to allocate the full time of two judges to it. The time of two of the three additional High Court judges provided by the Courts Act, 1979 has thus been absorbed and the court has not been able to reduce either its arrears of business or the average time-lag between the date of setting down of a case and the date of hearing which, in the case of jury actions, had grown from 16 months in 1979 to 18 months on 31 July 1981, the end of the legal year.

The number of jury actions set down for hearing in the High Court rose from 1,691 during the year ended 31 July 1979 to 3,653 in the year ended 31 July 1981 and, although the court disposed of 1,842 cases, arrears continue to accumulate and a serious position now exists.

Accordingly, it is essential that additional judges be made available to the High Court with the minimum of delay, otherwise a situation will arise in which it will be impossible to overtake the arrears of business, and the time-lag between the dates of setting down and of hearing of cases will continue to increase, a situation which, I am sure Senators will agree, must not be allowed to develop.

This Bill is, therefore, of vital importance to the proper administration of justice and I commend it to the House.

Mr. E. Ryan

There is no doubt that there is a case for appointing two extra judges for the reasons which the Minister has mentioned. There are two points which I should like to make. Circumstances will arise in the future when there may be a judge available but no court for him because there is very definitely a shortage not only of judges but of courts and the appropriate staff for those courts. I hope that in addition to appointing these judges arrangements will be made to provide the additional courts which are quite clearly necessary.

The second point I should like to make is in relation to jury actions. The difficulty which has arisen is very largely because of the number of jury actions and because of the delay or the length of time which jury actions take. I have on a number of occasions in this House advocated a review of the position in regard to the necessity of having juries for civil actions for running down cases. In my view it is not necessary. Originally we adopted that system from the British legal system. They also had jury actions up to 1940, up to the last war, but during the war they abandoned juries for civil actions and never went back to them. They have been carrying on since then without juries for these civil actions, negligence actions and so on. In fact, they seem to be doing very well without them. Having these cases without juries would certainly mean they would be disposed of much more quickly and it would, to a very considerable extent, eliminate the delays and so on which exist at present. I would ask the Minister to consider this matter again and also to look at the position of courts because in the future we may have a situation where we will have sufficient judges but not sufficient courts.

Mrs. Robinson

I should like to welcome this Bill. The necessity for additional judges has been referred to by the Minister in his opening speech. I see from the Legal Diary of this morning that there is a list in excess of 500 cases set down for jury trial and it is not possible under present circumstances that those trials could all take place before Christmas. Some of these cases have been waiting for a number of years to come into the list. The matter is one of great urgency. The Minister also referred to the substantial increase in volume in family law cases and that these now take up the full-time attention of two judges of the High Court.

I should like, in connection with jurisdiction in family law, to draw the attention of the Minister to a recent problem that has arisen. This is a serious problem in relation to the jurisdiction of the High Court in an important area of family law, that is, in relation to barring orders. This has arisen because of recent changes that were made in the Courts Act of 1981 and in the Act passed a month later in June, the Family Law (Protection of Spouses and Children) Act, 1981. I should like to summarise the position. This was an unforeseen and unintended problem that arose. In the Courts Act, 1981 very substantial provisions were made for the transfer of jurisdiction to the Circuit and District Courts, specifically giving the Circuit Court a new juridiction in judicial separation, jurisdiction in married women status and, to both the Circuit and District Courts, jurisdiction in guardianship of infants but the various relevant sections do not come into operation until a calendar year after the Courts Act, 1981 is passed. Effectively this will be 12 May 1982. Meanwhile the Family Law (Protection of Spouses and Children) Act, 1981 was passed by both Houses and came into effect on 23 June last. This Act replaced the existing law relating to barring orders which was contained in section 22 of the 1976 Act. In doing so it is provided that the jurisdiction to grant barring orders is confined to the Circuit and District Courts. That Act has come into effect as of now. The result is that the High Court has been deprived of jurisdiction to grant barring orders. This has caused and will cause very serious problems in the immediate term because normally the relief of a barring order is combined with seeking other relief in the family court whether it might be a full judicial separation or relief under the married women's status legislation or guardianship of infants.

At the moment the only alternative open would be either to seek an injunction in the High Court in combination with the other reliefs being sought or, alternatively, having finished with the High Court jurisdiction to then start separate proceedings in the Circuit or District Court with separate costs and unnecessary delay. In particular, in this area of barring orders it is essential—indeed that was the intent of the new Act passed in June—that the procedure be accessible and available, because these are cases where there is violence or potential threat either to spouse or to children or to both. In view of the fact that we are dealing with a Courts Bill, and that this Bill has been introduced in the Seanad, I would ask the Minister to consider the possibility of introducing an amendment, either in this House or when the Bill is in the Dáil, in order to deal with this matter. It was unintended, it was missed on Committee Stage in the other Act and it is giving rise to very real problems at the moment.

Professor Hillery

I should like to join in extending a welcome to this Bill. I should first make the point that recent appointees to the High Court have been universally welcomed as people of competence and that merit has been the dominant criterion for their selection rather than allegiance to a political party. I would like to think that this trend, set by the previous Fianna Fail Government, will continue under the Coalition Government in the case of appointments to the High Court. Reference has already been made to ever-increasing litigation. The Minister has quoted certain figures. I understand that from 1971 to 1981 there has been about a 400 per cent increase in the number of actions. I fear that even the revised figure of 14 High Court judges will not be enough. The Minister has underlined the seriousness of the delay problem in jury actions. This 18-month delay before cases can be heard can, of course, lead to very genuine human hardship and suffering. For example, in injury cases a person may be unable to work for an extended period and could be hard-pressed for finance pending the outcome of a hearing.

Senator Ryan has referred to the acute accommodation problem in relation to court houses. I will conclude by making the suggestion that provincial court houses, like that in Naas, might be employed to relieve this problem.

Miss Kearney

I should like to join with other Sentors in welcoming this Bill. It is perhaps a cliche to say that justice delayed is justice denied but it is nonetheless true. Delays which we currently experience in the administration of justice in the High Court are quite intolerable. We have spoken of the problem caused by jury actions, cases where people have been injured in car accidents or at work. The Minister has spoken of a delay of 18 months from a date on which a case has been set down for hearing. That is a delay from the time in which the plaintiff is ready to go ahead with his action after all the documents have been filed and all the evidence has been gathered. It means that if somebody is involved in an accident today it can be three, four or maybe five years before that case is heard. In the meantime as Senator Hillery mentioned, severe financial hardship can be caused to that person, or to the family, and they can find themselves in a position of incurring substantial debt in the expectation of an award which may or may not materialise.

The other area which has not been touched on is the problems which are caused in non-jury cases. These normally would be the more commercial matters, suits for non-payment of debts or breaches of contract. The problems here may be slightly different but they are also very serious. In nearly all of those cases the plaintiff will not be entitled to interest on his money, he will be suing for a fixed sum and because of the effects of inflation the value of this claim is rapidly diminishing. Plaintiffs' legal advisers find themselves in a position of having to recommend to their clients to accept settlements for amounts less than what they are legally entitled to.

It is perhaps possible to argue that the present situation is something of an encouragement to defendants to flout the law, knowing that even if a judgment is eventually obtained against them the decrease in the value of the amount owing and the income they will have received in the meantime on that money will more than compensate for the costs they may incur. In extreme cases this might even result in companies or businesses going bankrupt or having to be wound up with a consequent loss of jobs.

The area where these delays are most serious in terms of human suffering and human problems is the area of family law. While the Minister has spoken of the fact that this has priority, I understand that even here there still can be delays of a number of months before a case is heard. This situation cannot be allowed to go on.

I welcome the Bill with its provisions for the appointment of two extra judges. If I have a reservation about the Bill, it is that I wonder if two are sufficient. I wonder if the Minister would not consider using the opportunity to at least take the power to appoint perhaps three or four. It would not be necessary immediately to appoint three or four judges. We could just appoint two in the meantime. But at least the facility would be there, should the need arise and two were found insufficient, to appoint additional judges without having to refer back to the Houses of the Oireachtas. Nonetheless I welcome the Bill. I welcome the fact that it has been brought forward at this early stage as an indication that the Government realise the seriousness of the problem.

Mr. Ferris

I would also like to join in welcoming the introduction of this Bill by the Minister of State. I realise that there are certain judges at present being employed both in the Special Criminal Court and, as necessity dictates occasionally, in special inquiries. In the event of this situation improving and of the High Court judges no longer being required for these functions, it is still obvious that with the number of cases still not dealt with, additional judges are urgently needed. Senator Kearney has said that if justice is to be done it must be seen to be done. Unless we have our courts adequately staffed to deal with these problems justice will not be seen to be done by the people who require the services of these judges. So I have pleasure in supporting this Bill before us.

Mr. Reynolds

I, too, welcome the Bill. From what the Minister has said, it is clear that the period of delay is getting longer every day. It has moved in the past few months from 16 months to 18 months.

I wonder about the accommodation in the courts. What accommodation will be provided? I do not know how it operates in the city, but I do know how it operates in rural Ireland. For instance, the courthouses are controlled by the Department of Justice and have to be maintained by the local authority. This is most unsatisfactory. If we are to bring up the standards of our courthouses, money will have to be found somewhere. There is no way that the local authority can find the money to do it. The Minister will have to have a look at this to see what fund the money can come from. Courthouses are deteriorating all over the place. It is unfair to the judges. It is equally unfair to the unfortunate people who are attending these courts. Everybody who spoke on this so far would have a legal mind. I am far from that. But if anything can be done about the delay, it should be done. People arrive for a court here, the Supreme Court or the High Court, and for some unknown reason they have to wait over for some three or four days. I do not know if the Minister can do anything about this. It is certainly most unsatisfactory.

Mr. S. O'Leary

I did not intend to intervene at this stage. I think that we should not be carried away with the statistics which the Minister has put before us. While it is quite true to say that the number of actions has increased dramatically over the period of time from 1979-1981, the Minister does not refer to the fact that very substantial changes in the jurisdiction of the courts have been made under the provisions of the Courts Act, 1981 and that this will result in a substantial number of new cases being shifted from the High Court to the Circuit Court. These are cases where the jurisdiction lies within the range of £2,000 to £15,000 and also cases which have been already referred to by Senator Robinson as falling within the family law jurisdiction of the High Court at the present time.

I certainly have no objection to an increase in the number of High Court judges. The age at which people tend to be appointed to the High Court is sufficiently high so that if we want to reduce the number of judges that can be done over a period of time as a result of normal retirements. We should keep it under observation and under scrutiny. We should not just appoint judges for the sake of appointing judges.

Having dealt with the present problem, which I agree we have, we have to look to the future to see whether the increase in the number of judges might not be better in the Circuit Court, where the increased jurisdiction is going to mean a substantially increased number of cases and particularly where the family law jurisdiction is going to mean an increased and different type of legislation than Circuit Court judges are at present used to. The temperament and training of Circuit Court judges is, by and large, not historically of the type that would be dealing with family law matters and they are going to take a long time to read themselves into the situation. I suspect that at the Circuit Court level we are going to have a very serious backlog in some of the busier circuits. Of course, there are circuits that are not so busy and they will be able to absorb the increased jurisdiction without any difficulty. But there are other circuits where the existing structure is stretched to the limit and the addition of the increased jurisdiction from £2,000 to £15,000 in respect of tort and other actions of that kind, the extension of the family law jurisdiction of the High Court and developing it on the Circuit Court could place an intolerable burden on these circuits and the judges who are serving the public in that area.

Therefore, we have to review the whole question of the structure of our Judiciary when the effect of the changes in the jurisdiction begins to change the number of cases which are brought initially in the High Court and the number that are brought in the Circuit Court. We should encourage a lot more cases, running down cases in particular, to go into the Circuit Court. We should make sure that the jurisdiction there does not fall so out of date in future that people get out of the habit of putting these cases into the Circuit Court. If the jurisdiction gets out of date people go to the High Court and they accept a delay because they think the award will eventually be higher.

With those comments I welcome the Bill. We have to look at the problem of the number of judges we have at the various levels — the District Court, where jurisdiction is also increased, and the Circuit Court and High Court. We hope that there will be a general moving of the number of cases from the High Court down to the other courts. We should therefore keep in mind the possibility of the necessity for an increased number of Circuit Court judges and, indeed, District Court justices if that proves necessary.

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

I welcome the comments of the Senators on the various points. It is quite apparent that all here are aware of the long delays and the subsequent hardships which are felt by the litigants as a result of not having an adequate number of judges.

In relation to the delays and in regard to the situation which is likely to arise on May 12 1982, when the jurisdiction of the Circuit Court is to be increased from £2,000 to £15,000, and some of the High Court jurisdiction in family law matters will also transfer to the Circuit Court, the position at the moment in relation to arrears in the High Court is so critical that not even this change will be an adequate measure to stem the rising tide of arrears. The appointment of these High Court judges at this time is necessary but if at any time it becomes apparent that the volume of business in the High Court does not warrant the number of High Court judges then, as has been rightly said this morning, we can allow for natural retirement and there will not be any superfluous appointments.

In relation to the actual increase in the number of judges, by doing this and combined with the increase in the jurisdiction, we should make an assault on the number of delays. We would hope that within 18 months to two years we will have a tolerable working situation. In regard to accommodation, it is common knowledge that we have an acute problem in courthouse accommodation, both in the city and in rural Ireland. In relation to courthouse accommodation in the Four Courts, I hope that by 1982, with the transfer of some court staff from the Four Courts to new rented accommodation, two new court rooms will be available and this will ease this problem.

I have to accept that the standard of our courthouses leaves a lot to be desired and I will certainly be looking at that aspect in conjunction with the division of responsibilities between the local authorities and the Department of Justice. I agree that it is essential, from the point of view of the litigants, the members of the professions and the judges, that we have adequate and fitting establishments in which justice will be administered.

There has to be concern in relation to the area of family law and, as Senator Kearney put it, the hardships resulting from delays in family law matters are not acceptable. We hope that these matters can be resolved as quickly as possible.

In connection with Senator Robinson's point on the situation which has arisen by virtue of recent Acts, I must say that I thank the Senator for bringing this matter to my attention. From my own experience I can say that since the Family Law (Maintenance of Spouses and Children) Act, 1976, and in particular the provision of section 22, where barring orders were introduced for the first time, has worked very successfully. That section gave jurisdiction to the High Court, Circuit Court and District Court in connection with barring orders.

I am aware that the Family Law (Protection of Spouses and Children) Act, 1981, transferred this jurisdiction to the Circuit Court and the District Court only. While section 17 allowed for a transition period, I am aware that a lacuna has arisen which at the present time, as Senator Robinson rightly pointed out, will confine the barring orders to the Circuit Court and the District Court. While I have to put the case that since this Bill is confined to increasing the number of High Court judges it does not allow me to consider an amendment either at this stage or when the Bill is passing through the Dáil, and considering the importance of the availability of barring orders and the success which this measure has met with in the administration of justice, I will certainly take an urgent look at the inadequacy that has cropped up in the present law. Should the necessity arise to have an amendment to the Family Law Act, 1981, I will certainly give that urgent consideration. While looking at that I will also take into account the fact that it may be more equitable to reintroduce to the High Court the jurisdiction for barring orders, because, as we are all aware, the High Court is a court of first instance and there might be a question of the constitutionality of that measure.

Question put and agreed to.

Agreed to take remaining Stages today.