Seanad Éireann debate -
Wednesday, 15 Jun 1988

Vol. 120 No. 4

Courts Bill, 1986: Second and Subsequent Stages.

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

Minister for Justice (Mr. Collins)

The Courts Bill, 1986, which has been passed by the Dáil, contains important procedural reforms in relation to the hearing of personal and fatal injury cases in the High Court. These cases comprise the vast majority of civil jury actions in the High Court — perhaps as much as 95 per cent of such actions. They are cases that involve many ordinary people as plaintiffs in actions for damages for personal injury or fatal injury caused through the negligence of others and most of these cases arise from traffic accidents.

As a matter of policy, we should be concerned that the administration of justice in these cases can provide compensation that is fair to plaintiffs having regard to the injuries and the other relevant circumstances that are involved; that the injured plaintiffs receive compensation with the minimum of delay, and that the legal costs involved in disposing of these cases — many of which are simple and straightforward — are reduced as far as possible.

It is also important that the courts should be as consistent and predictable as is possible in the award of damages. It is desirable that litigants who receive similar injuries, and whose personal circumstances are also similar, should be compensated in a consistent manner. Also the prospects of settling cases at an early stage, before heavy costs are incurred, is greatly enhanced if the manner in which the courts deal with cases that come to trial, and the compensation that is awarded, is as consistent and predictable as possible.

These are the principal policy objectives that provide the background to the proposals in the Bill which are designed to improve the position for litigants who are involved in personal and fatal injury actions. If these objectives can be achieved other benefits will follow. One aspect that has been highlighted is the area of liability insurance. I am confident that the new procedures proposed in this Bill will reduce the legal costs incurred by insurers in the area of motor, employer and public liability insurance. This should be reflected in reduced premium costs for such insurance. The Government are committed, in the Programme for National Recovery, to taking certain measures to reduce the cost of liability insurance to industry. That includes the Government's commitment to proceed with this legislation.

The Bill has been substantially amended and strengthened during its passage through the Dáil and I will return to this matter later on in my speech.

The Bill contains two main provisions. It provides that actions in the High Court for damages for personal injuries and in fatal accident cases will in future be tried by a judge sitting alone rather than by a judge and a jury as at present. The other main provision proposes to give the Minister for Justice power to make regulations to limit costs of legal counsel that may be recovered by a successful party in these actions against the unsuccessful party. I will refer to this matter later. A further provision will enable personal or fatal injury cases which are awaiting trial in the High Court to be remitted for trial to the Circuit Court if the proceedings could have been commenced in that court.

The first thing that I want to emphasise is that this Bill does not propose to abolish jury trials for all civil actions in the High Court.

The Bill is concerned with only one category of High Court action — claims for damages for personal and fatal injuries. Although these cases comprise the vast majority of civil jury trials in the High Court at present, juries will continue to be available in High Court actions involving claims for damages for defamation, for false imprisonment, for intentional trespass to the person — these are assault cases — and in some other actions for which juries are sometimes sought.

It goes without saying that the Bill will not affect juries in criminal cases. There is a constitutional right to trial by jury on a serious criminal charge which is subject only to the exceptions set out in Article 38 of the Constitution. The Constitution does not contain any reference to trial by jury in civil cases.

Another preliminary point I would like to make is that the main proposal in the Bill is part of a long-term trend, under way for over 100 years, to dispense with the use of juries to try civil actions. In the early days of the State the right to jury trial in actions for liquidated sums, for damages for breach of contract, or for the recovery of land was withdrawn by the Courts Act, 1924. The right to civil jury trial in cases in the Circuit Court, including personal injuries actions, was abolished by the Courts Act, 1971.

The Courts Bill, 1986, was initiated by the previous Administration. The original Bill contained one proposal only. It provided for the abolition of juries in personal and fatal injury cases. When my party were in Opposition we were not enthusiastic about the original Bill. Generally, we felt that the Bill, as initiated, was inadequate. In particular, it did nothing about the problem of over-representation by lawyers in personal injury cases — which had become a matter of acute public concern — or the related problem of excessive legal costs associated with these cases. These were factors that were contributing to the escalating cost of liability insurance for the public generally and for industry and through this to job losses in industry, the closure of businesses and the viability of many sporting and leisure activities.

Accordingly, in Government we decided that the Bill would need to be strengthened considerably before we could proceed with it. The Bill which was passed in the Dáil contains additional provisions to deal with the particular problems that I have mentioned and contains a new commencement provision which will have the effect of bringing the new arrangements for trying these cases into force as from 1 August of this year. The original Bill would not have taken effect for some considerable time.

There is no doubt that the growth in personal injury cases coming before the High Court in recent years has focused greater attention on the awards being made by juries in those cases. The high level of some awards attracted much publicity and a growing belief in some quarters that the incidence of excessive awards had become unacceptable. In 1982 the "McLiam Committee", which examined the problem of motor insurance costs, found evidence that awards given by juries were sometimes remarkably unpredictable, varying widely between cases where the circumstances appeared to be similar. It emphasised the unfairness of such a situation to litigants and the difficulties which this unpredictability created for the insurance industry. It concluded that it would be in the interest of justice if a greater degree of consistency could be achieved in the assessment of damages, bearing in mind the overriding requirement of doing justice between the parties.

The Supreme Court was also concerned about excessive jury awards and, in three important judgments delivered between 1983 and 1984, brought about substantial changes in the basis for assessing the quantum of damages in personal injury cases. In the last of these cases it indicated that a limit of £150,000 should apply generally to awards of general damages for pain and suffering and loss of the amenities of life in the most extreme cases of personal injuries, unless particular circumstances suggest otherwise. The then Chief Justice had remarked in that case that in attempting to compensate for very serious injury "All sense of reality may be lost" and he considered that "A yardstick of a reasonable nature must be applied if reality is to be retained in the assessment of such compensation". These cases show a concern on the part of the Supreme Court at what it regarded as clearly excessive awards by juries.

The excessive level of damages awarded in the courts in such cases have had a major bearing on the amounts for which insurers will settle personal injuries claims outside the courts. Insurance companies point out that such claims are settled under the shadow of a court hearing and that the unpredictability of jury awards has had a destabilising effect on the settlement process, reflected ultimately in the high cost of liability insurance.

I understand that, although upwards of 85 per cent of personal injury cases set down for trial in the High Court are settled without going all the way to judgment, this proportion is much smaller than the comparable statistics for neighbouring jurisdictions where these cases are heard by a judge alone. In Britain, for example, up to 95 per cent of personal injury cases are settled without going to trial. We still have a relatively high volume of personal injury cases going to trial, and I am sure that this is due mainly to the availability of jury trial. The elimination of juries is likely to produce a corresponding reduction in cases going to trial and will enhance the prospect of settling many more personal injury cases at an earlier stage. Injured plaintiffs will benefit by receiving compensation for their injuries more quickly. As a result there should be a reduction generally in the tension of worry that long drawn-out proceedings create for many injured parties.

Now, I want to make it very clear that the object of the proposal to abolish the right to a jury trial for personal and fatal injury cases is not to reduce the level of damages generally that the High Court will award in this type of case. The object is to avoid excessive awards as far as possible and to bring consistency and predictability into the awards given. I think it is necessary to be very cautious in speculating what effect the measure might have on the general level of damages awarded, apart from the expected effect that it will obviate excessive awards. For one thing, the recent Supreme Court decisions will have had an effect on the general level of damages. Moreover, although the incidence of personal injuries cases heard to date in the High Court by a judge sitting alone, with the consent of the parties, has not been great, what indications there are show that a judge can be no less generous than a jury when it comes to assessing damages in serious cases. Furthermore, judges sitting alone have been deciding personal injuries cases in the Circuit Court since 1972 and there has been no public reaction, as far as I am aware, against the level of damages awarded in the Circuit Court. Since the jurisdiction of that court to hear tort actions was increased to £150,000 in 1982, more serious cases are now being decided in the Circuit Court and I am not aware of any claim that Circuit Court judges are making inadequate awards, even in cases where minor injuries are involved.

Civil trials by judge alone are a normal feature in the High Court already. At present civil juries are used only in cases arising out of personal injury claims in motor accident, employer's and public liability cases in the High Court and in a very limited number of other cases. All other cases have been decided by judges sitting without juries for a very long time. As I have already mentioned, juries have not been used in personal injury cases in the Circuit Court since 1972.

It has been suggested that awards of damages by judges alone will be lower because awards of damages by judges in Britain have been lower than here. Comparisons with the neighbouring jurisdictions on this score are not valid, because there are crucial differences in the way in which damages for future losses and costs are assessed here and in neighbouring jurisdictions. One important difference is the reluctance of English courts to use actuarial evidence. Also, I understand that damages awarded in serious injury cases in Britain have increased substantially in the last few years.

The crucial point is that greater consistency may be expected to prevail under the proposed new system here and excessive awards will be largely avoided. Any variations that may arise from the norm on the part of individual judges will, I am sure, be corrected by the Supreme Court. I would expect that the Supreme Court will be more ready to interfere with the reasoned decision of a judge in these cases and that in time an acceptable and more predictable pattern of awards will emerge.

This will come about when all personal and fatal injury cases are being decided continually by a body of experienced judges, compared with the present "once-off shot" system involving a jury that will have no experience of the task. That task has become even more complicated and sophisticated in recent times, involving greater reliance on technical and expert evidence.

The new arrangements for trial by judges sitting alone will also lead to wider reporting of decisions in personal and fatal injury cases. It will make possible the publication eventually of a compendium of decisions of the Superior Courts in important cases — amounting to an authoritive book of quantum of damages — for the benefit of the legal profession and bodies such as insurance companies who wish to value the claims they receive. This development would further enhance the prospect of early settlement in more cases. There is a commitment in the Programme for National Recovery to the effect that I will examine the scope of the publication of such a book of quantum. I have already asked The Incorporated Council of Law Reporting to look at the matter. I regard the removal of juries from personal and fatal injury cases as a first, essential, step towards the systematic reporting of awards.

An effect of the proposals in the Courts Bill, 1986, will be to simplify the procedure for the trial of personal and fatal injury cases and to shorten the length of these trials. This should mean that less input will be required from the barristers who appear in these cases and I also expect that there should be less need for expensive expert witnesses to appear to give oral evidence. There is a link there fore between the proposal to abolish the use of juries in these cases and the proposals in the Bill to limit the costs that can be recovered by successful parties in respect of the appearance of counsel. Already the Bar Council have agreed to discontinue, when juries go, the former practice of requiring that three counsel — two seniors and one junior — be briefed in personal injury cases. Spokesmen for the insurance industry have assured me that they will not brief more than two counsel in connection with any personal injury case when the new arrangements are in place. There is a provision in the Bill to empower me to limit the costs that can be recovered for counsel in these cases by way of regulations. But I intend to wait until the new arrangments are in place before moving on the question of regulations. I intend to assess the actual situation in the light of the disappearance of juries, and the various commitments that have been given to me, before invoking statutory powers.

Subsection (1) of section 1 of the Bill contains the substantive provision to abolish the use of juries in personal and fatal injury cases in the High Court. Subsections (2) and (4) are necessary to take account of the fact that many personal and fatal injury cases include claims for damages under other headings and may involve counterclaims. Subsection (3) contains an exemption from the main provision in the Bill for cases involving claims for false imprisonment or intentional trespass to the person — jury trials will continue to be available for such cases. Subsection (5) will enable a jury trial that has started before the commencement of the Bill to continue until the trial is disposed of. Subsection (6) is a technical provision.

Section 2 will enable cases set down and awaiting trial in the High Court to be transferred for trial to the Circuit Court on the application of any party to the action if the proceedings could have been commenced in that court.

Sections 3 and 4 contain minor technical provisions consequential on the substantive provision in section 1. Section 5 contains the proposal about counsels' costs that I have mentioned. Section 6 contains the commencement provision and the usual provisions for a Short Title, collective citation and construction with other statutes. I commend the Bill to the House.

Mr. Kennedy

It was Justice Douglas of the United States Supreme Court who said of the vital and essential role of juries:

A jury reflects the attitudes and mores of the community from which it is drawn. It lives only for the day and melts away thereafter. It is not present the next day to be criticised. It is the one governmental agency that has no ambition.

Judge Douglas continued:

A jury is as human as the people who make it up. It takes the sharp edges off the law and uses conscience to ameliorate a hardship. Since it is of and from the community it gives the law an acceptance which verdicts of judges could not do.

That quotation, I believe, encapsulates and sums up the vital and fundamental role of the jury system, where one is judged by 12 wise and sensible people not only in the United States of America — one of the great republics — but also in this country. However, this Bill provides that actions in the High Court for damages, for personal injuries, will be tried in future by a judge sitting alone rather than by a judge and jury as at present. As the Minister has indicated, juries will remain available in cases involving false imprisonment, assault and battery, defamation, malicious prosecution and for certain probate and matrimonial matters.

In 1972 the O'Connor Committee which was established by the then Government to inquire into the insurance industry concluded that juries should be retained to decide liability in negligence cases but that the responsibility for deciding the quantum of damages should rest with the judge assisted by assessors. The MacLiam Committee, the Prices Advisory Committee which reported in 1982 on the cost and method of providing motor insurance, concluded that the jury system should be retained but that certain changes were needed to deal with the problem of inconsistency and unfairness, as mentioned by the Minister, that arose from the operation of the system in deciding motor insurance cases. The MacLiam Committee stated on page 45 of their report — and I quote from paragraph 77:

At the present time neither counsel nor the trial judge may suggest any figures to the jury for general damages whether past or future. It is in the area of the assessment of general damages that the wide diversions sometimes arise in cases which can be regarded as truly comparable. By and large, special damages — mainly medical and hospital fees on the one hand and loss of earnings on the other hand — are a matter of proof and mathematics. Figures can be and are suggested to the jury by counsel and the judge in respect of these items and the mathematics is done for them, where, for example, a loss of earnings projected into the future is to be calculated with the help of actuarial evidence. When one comes to the general damages, however, both past and future, neither counsel nor the judge may give any help to the jury beyond the use of certain well known cliches.

Accordingly the MacLiam Committee strongly recommended:

That the rule that neither the judge nor counsel may suggest figures for general damages to the jury should be altered so as to allow the judge (but not counsel) at his discretion to inform the jury as to what he estimates to be the going range of general damages for the sort of injuries proved in the circumstances of the particular case before him, bearing in mind other jury awards and especially awards as assessed by the Supreme Court, of both of which he will have informed himself, whilst at the same time making it clear to the jury that they are at liberty to depart from such range in the particular case if they think fit.

Strong arguments arise on both sides of this issue and there are strongly divided views on the matter. This is true even of the judges, even of our Supreme Court judges, and even of our senior politicians in the various parties.

That was demonstrated very forcefully last night. It was demonstrated over the past number of years by leading spokesmen in the Fianna Fáil Party — Deputy Michael O'Kennedy, for example, senior Minister in the present Government, Deputy Michael Woods who made a very impassioned plea for the retention of the jury system. I decided to resist the temptation to quote those extracts on this occasion especially with a Limerickman here as Minister for Justice.

Professor Bryan McMahon, however, in his article entitled Jury Trial for Personal Injury Cases In Ireland, (1985) found the High Court judges who responded to his questionnaire were evenly split on this issue.

An Cathaoirleach

From what article are you quoting?

Mr. Kennedy

Bryan McMahon's article, Jury Trial for Personal Injury Cases in Ireland, (1985). Various possible options were open to the Government, as indeed to the previous Government, for the reform of the jury system. These options include: (1), retaining the present jury system for the determination of liability and damages in personal injury cases but empowering the trial judge to indicate the going rate for general damages in comparable cases to the jury; (2), retaining juries to determine liability but not damages; (3), replacing juries by a judge sitting with assessors to advise or make recommendations on damages; (4), introducing a statutory tariff for general damages for personal injury cases; (5), introducing a statutory maximum for general damages on the lines adopted by the Supreme Court in fixing a limitation of £150,000 in the case of general damages; (6), replacing juries by a judge sitting alone to decide on liability and damages in all cases; (7), allowing juries to decide on liability and damages in exceptional cases with all other cases being decided by a judge sitting alone.

My own preference is for the first option retaining the present jury system for the determination of liability and damages in personal injury cases but empowering the trial judge to indicate the going rate for general damages in comparable cases to the jury. Why should not 12 ordinary citizens, with the rising standards of education in this country, with appropriate guidance from the judges be the arbiters of standards for their fellow citizens who are the unfortunate victims of accidents and in many cases are maimed or paralysed for life? The alternative adopted by the Government is for members of the legal profession to control totally both the procedure and level of compensation and consequently the standards to be observed by drivers and employers. I believe that the decision taken by one man or one woman sitting alone is potentially inferior to the collective decision and wisdom of 12 ordinary citizens.

This view, of course, has been endorsed by the Third Interim Report to the Committee on Court Practice and Procedure which was set up by Deputy Brian Lenihan, Minister for Justice at the time, a committee which was chaired by one of the most distinguished lawyers this country has ever produced, Justice Brian Walsh of the Supreme Court. In this report the committee examined the historical background of the jury system, the existing position of civil jury trial, the social and civic value of jury trial and, indeed, the advantages and disadvantages of civil jury trial. In page 8 of this report this committee, a very distinguished committee, examined the historical background first. Civil jury trial, as they emphasise, is not the creature of statute but it has evolved gradually over a very long period of time and I quote as follows from page 8:

From about the time of Henry II the fundamental principle on which the institution was based on the concept of the determination of facts in the administration of civil justice by twelve lay persons sworn to decide facts truly according to evidence produced before them.

They go on then to examine the existing position of civil jury trial in this country and they note in paragraph 9:

At present the right to jury trial and civil actions is governed by the Courts of Justice Act, 1924, section 94, (as amended by the Courts of Justice Act, 1928, section 20), the Courts (Establishment and Constitution) Act, 1961 and the Courts (Supplemental Provisions) Act, 1961, the Rules of the Superior Courts, 1962, and the Rules of the Circuit Court, 1950.

They go on to state as follows in paragraph 10:

In practice civil jury trial is largely confined to High Court actions for damages for personal injury or death caused by negligence. Of these actions the greatest number arise from road traffic accidents while next in order of number are those brought by employees against their employers on the ground either of negligence of common law or of breach of statutory duty or both.

Then the committee go on to examine the social and civic value of jury trial. This is most important when we consider the ethos and the mores of the Irish people. They then said:

Article 6 of the Constitution describes the powers of government as being the legislative, the executive and the judicial powers of government. The trial and decision of civil actions is one of the spheres in which the judicial powers of government are exercised. In the legislative field of government the citizen participates, either by voting in the elections, or, even more directly, by becoming a member of the legislature. The only opportunity the ordinary citizen has of participating in the working of the judicial government of the State is in jury service.

An Cathaoirleach

Senator Kennedy, much as I dislike interrupting you, a series of long quotations strung together at times is not in order. It would be easier if you gave short quotations. I would consider it a proper contribution to the Second Stage debate.

Mr. Kennedy

I was just trying to outline the social and civic value of jury trial which is the key point I am trying to make. The committee have very pertinent points on this. They continue:

Jury service gives a sense of community responsibility, is an educating force in the community and acquaints the citizen with justice as it is in practice administered.

This is the fundamental weakness of this system. They go on to say:

Jury service helps to teach the members of the jury that they have a share in the rule of the society in which they live. The system also tends to make the law intelligible by keeping it close to the common course of individual and social life. The judge in a jury trial is obliged to explain precisely the law to the jury and in particular its application to the facts of the case. This in turn helps towards a clear outside judgment on those facts and thus to the inside world of the law the jury brings an outside sense and an outside animation.

It is most important to have independent juries who are able to communicate with the lawyers and with the judges who often seem to be remote from the sense of reality the Minister has been talking about.

This committee were composed predominantly of lawyers. It is to the credit of this committee that they endorsed so strongly the whole concept of the jury system in civil actions. They go on to say in page 11:

Bearing in mind that jury trial, whether in criminal or civil proceedings, is in reality a combination of trial by judge and jury the essential underlying fact is that if and where there may be a conflict between the judge and the jury on some question of fact it is the lay mind which predominates.

In questions of law it is the judge's mind which predominates for the trial of all criminal offences in the ordinary courts save in the case of minor offences,——

This has been mentioned by the Minister:

The Constitution prescribes trial by jury. To this extent the participation of the ordinary citizen in the exercise of the judicial powers of government is indeed mandatory. While the right of personal liberty is so fundamental that it must be strictly safeguarded, it is difficult to see why, so far as the participation of the ordinary citizen is concerned, he should not have the right and the duty, to participate in the administration of justice in civil cases as in criminal cases and, so far as the litigant is concerned, why the participation of his fellow citizens should not at least be as available to him in the defence or prosecution of his civil rights as it would be if he were on trial for a criminal offence.

The point I am trying to make is that, for the liberty of the citizen and for the safeguarding of the fundamental rights of the citizen, as enshrined in the Constitution, the existence of a civil jury in practical terms is almost as important as a criminal jury.

This committee go on to make the strongest point of all in paragraph 15 when they examine how relevant lawyers and judges are to make decisions affecting the ordinary citizen. They make the following comment:

The availability of jury trial also serves the useful social function of discouraging and even preventing litigation from becoming the exercise of an exclusive professional ritual engaged in by professional lawyers, judges and advocates, by ensuring that within the framework of the law, in respect of which the expert professional guidance is necessary, the kind of justice administered is one which the ordinary man can understand and desires rather than the kind which the professional lawyer thinks he ought to have or is good for him.

We know that in this country there are certain lawyers and certain judges who feel that certain things are good for us and that we should have these things, irrespective of what the public may think. That is a fine admission by this committee. It is a strong endorsement of the case I am making for the retention of the jury system. I am dealing at length with this report because I think it is absolutely fundamental in the case I am asking the Minister to consider.

Mr. Collins

The Senator will admit that that report is at least 20 years old.

Mr. Kennedy

The wisdom of the report has not deteriorated. Good wine improves with age.

An Cathaoirleach

There is a rule in this House that a Senator cannot go on at length quoting from reports of even six months ago, never mind 20 years ago. I am just giving the rules of the House.

Mr. Collins

The Senator knows full well that good wine, unless properly bottled and corked, deteriorates.

Mr. Kennedy

Indeed.

An Cathaoirleach

The Senator's contribution is so excellent that I would love if he got back to it, and put down the little red book.

Mr. Kennedy

With the Chair's indulgence, I would like to quote one final paragraph. The Minister and other speakers in the other House referred to what has been called the hardship on jurors. This was examined in great detail here. I have never really come across a good citizen who has objected to the inconvenience and to the hardship imposed on him. It may cause him much inconvenience and much hardship. The committee state, in examining this matter:

One of the objections which has been made to the jury trial system is that it imposes an unnecessary hardship on jurors in that a relatively small part of the adult population is liable for jury service. Almost all the jurors who attended before the Committee appeared to appreciate the civic and social value of the duty they performed and were quite willing to bear the measure of personal inconvenience necessarily flowing from the jury service.

That was a very wise statement. We know that the major insurance companies in this country have taken a different view over the past 20 years.

I have quoted enough from the report. I hoped to avail further of the Cathaoirleach's indulgence, so that other people in the other House might have been able to read some of the excellent extracts from that report. However, I believe that in the jury system we are dealing with a fundamental institution which is embedded in our administration of justice. As insurance premium payers, we would, as indicated by Deputy John Kelly in the other House, all rejoice over anything that would reduce the level of premiums; but there is no guarantee that insurance premiums will come down. The Minister expressed confidence that something of this nature would happen, but the insurance companies have persistently stated that they do not see premiums coming down. They see a stabilisation of premiums and perhaps in the future they may come down. I believe we should not legislate on something so fundamental as the right to jury trial merely because the insurance companies have a sort of hunch that the level of awards will be lower. I agree with the sentiments expressed by Deputy John Kelly in the other House when he stated in the Dáil, on 31 May 1988:

We are now seeing the last stages of a very persistent, well kept up lobbying operation laid on by the insurance companies which has been going on for at least 20 years.

There is, of course, in this Bill the new section 4 which purports to give the Minister for Justice the power to make regulations concerning the fees of counsel which may be recovered on taxation. I know that the Bar Council are most anxious to streamline their affairs and I know also that the Minister for Justice has a special concern to work out the details of any future regulations that will be made in this regard. However, I must on this occasion urge the Minister to give the barristers and the Bar Council the appropriate opportunity in time — I am not arguing for exhorbitant time but a reasonable amount of time and opportunity — for the self-regulation of their own affairs and of their own profession.

The problems facing the legal professions in regard to these changes as envisaged in the new section 4 have been well pinpointed, I believe, by Deputy Patrick Cooney, a former Minister for Justice and, indeed, a distinguished legal practitioner and also a man who knows the value of a good jury and when to take cases. When speaking in the Dáil on 31 May 1988, column 864, he had the following to say which I think sums up my attitude to the new section 4:

The county solicitor can put together the maximum legal team suited to his particular needs and the needs of that client in the knowledge that if the case fails everybody is on nothing and if the case wins everybody gets paid. That is the position at the moment. The second senior counsel may be brought in for a particular purpose in that case. He may be brought in to address the jury winding up the case; he may be brought in for a specialist cross-examination, or he may be brought in for his own personal muscle.

An Cathaoirleach

Who am I to check a lawyer, but the Senator cannot quote at length.

Mr. Kennedy

I have only a few more lines to quote.

An Cathaoirleach

We are well aware of Deputy Cooney's wisdom. The Senator can refer to his contribution but not at length. This is another House.

Mr. Kennedy

I thank the Chair for her indulgence. I will just conclude by saying that Deputy Patrick Cooney made the case that the present system——

An Cathaoirleach

I want to give my ruling. The Senator cannot quote at length directly.

Mr. Kennedy

I am not. I just want to say that the present system allows the humblest county solicitor, whether in Limerick, Clare, Longford or Westmeath, to act for the poorest man in the district to build a good legal team. I believe that, unfortunately, we are now proposing to end that, again at the behest of the insurance companies.

None of the arguments I have heard in the other House, or indeed read in extensive publications which I have studied, for abolishing the jury system stand comparison with the arguments for the retention of the jury system. I am not satisfied that the changes proposed in this Bill — quite clearly I am not talking in political terms, and I am sure, the Minister for Justice will accept that I am talking from conviction — are for the better. I believe the Minister for Justice has not discharged the onus of proof, which is a civil onus of proof, on the balance of probabilities. I hope, therefore, — it was suggested in the other House last night — that the Minister might be open to the acceptance of reasonable amendments at Committee Stage.

I conclude my remarks by referring to the great Sir William Blackstone, who in his Commentaries in 1809 said of the jury system that it was the most transcendent privilege which any subject can enjoy, that he, or she cannot be affected either in his property in his liberty or in his person without the unanimous consent of 12 of his neighbours and equals. He said that the impartial administration of justice which secures both our persons and our properties is the great end of civilised society.

Blackstone went on to say that every new tribunal erected for the decision of facts without the intervention of a jury, whether composed of justices of the peace, revenue commissioners, judges of courts of conscious or, indeed, any other standing magistrates, was a step towards establishing what he called aristocracy — the most suppressive and absolute governments.

I believe that these comments are as relevant today as when they were made by Blackstone in 1809. I ask the Minister to consider if further refinements could be made having regard to experience in other countries regarding the retention in some shape or form at least of the jury system in High Court actions in personal injury cases. I feel that the Minister has come a long way in regard to meeting the problems of the legal profession. I understand, for instance, that one of the biggest problems that barristers have at the moment, and especially the senior barristers, is this. For instance, I understand that next week in Cork there are three judges for 25 important cases in this area. If a barrister has one case for one day he is all right, but if he has to handle several cases over a period of a week or so, or if he has several cases on the one day, it is a very difficult thing. I can see the Minister is doing his mathematics and is asking how it all adds up. That is a fair comment.

Mr. Collins

The Minister has itchy fingers.

Mr. Kennedy

There are barristers throughout the country who would prefer to have a more uniform life and not to be away from home all of the time. I suggest that all politicians at this stage should be prepared to talk to the legal profession to see how it can be streamlined and reformed for the betterment of the profession and of the community at large.

Mr. McEllistrim

This Bill is "an Act to provide that certain actions in the High Court shall not be tried with a jury and to provide for the regulation of the number of counsel appearing in certain actions and for related matters." The Minister will also have power to introduce regulations to limit the cost of legal counsel.

This is an exceptional Bill. It was introduced by the previous Government during their term of office and at that time it was opposed by our party in the Dáil. Since then the Bill has been substantially amended. I am rather surprised to hear that Senator Pat Kennedy is opposing the Bill. I thought he would at least support it when the Bill was introduced by his own party.

(Interruptions.)

Mr. McEllistrim

The Bill provides that actions in the High Court for damages for personal injury in future will be tried by a judge sitting alone rather than a sitting by a judge and jury as at present. Juries will remain available, however, in cases involving false imprisonment or intentional trespass to the person, that is, assault or battery, even if the damages claimed include damages for personal injuries. Juries will also continue in actions for defamation, malicious persecution and for certain probate and matrimonial matters. The cases affected by the Bill are a small fraction of the jury cases. They are primarily negligence actions for personal injuries as a result of road accidents or accidents at work. They account for the vast bulk of jury actions coming before the High Court. The Bill will not affect juries in criminal cases.

The number of personal injury cases coming before the High Court in recent years has focused a lot of attention on the awards being made by jurors. The high level of some awards gave rise to people saying that the awards were excessive and led to very high premiums for car insurance and, indeed, for public liability as well. This has created a great problem for insurance companies and for people who are paying insurance premiums. We have heard a lot of this in the past number of years when we had many people making a case to the Government about the premiums they had to pay for car insurance and for public liability. They said they were excessive and very unreasonable. After careful consideration the Government decided that the best arrangement was to replace civil juries with a single judge sitting alone to decide the issue of liability and damages in personal injury cases. Civil juries are used only in cases arising out of motor accidents and accidents at work. All other civil cases, with a few exceptions, are decided by a judge sitting alone.

The majority of people do not want to act as jurors and regard jury service as a burden. They go to great lengths to evade it. Actually, it is claimed that only 30 per cent of the people called for jury service in High Court actions attend. There is an assumption in some quarters that the object of the Government's proposals to replace civil juries is to reduce the awards in personal injury cases. This is not correct. The purpose is to avoid excessive awards as far as possible and bring consistency into the awards given and obliterate excessive awards. Judges have been dealing with personal injury cases in the Circuit Court since 1972 and there has been no public reaction against the level of damages being awarded in the Circuit Court. A greater degree of consistency will prevail in relation to awards under the new system and excessive awards will be largely avoided. This is likely to come about when all personal injury cases have been decided by a body of experienced judges rather than being decided by a body of jurors who have no experience.

I differ from Senator Kennedy's statement here because he said a jury would be a much fairer system and that they would have a lot of experience. My contention is that many people who are selected as jurors do not want the job. They are not interested in the job, and, indeed, they would much prefer if they had not to do the job at all. As a result, we will do much better in not having juries and having cases decided by judges in future. The Supreme Court will be available to correct any awards made by judges whether they be too high or too low. It is thought that, under the new system, personal injuries claims will be settled more quickly by insurers. It is also thought that insurance premiums will become more stabilised as the compensations paid out will be more uniform. I feel this is a good Bill and that the country will benefit eventually from it.

Professor Murphy

I will not be very long. I simply want to put on record my opposition to the Bill and, in my view, the unsound premise on which it is based. There is evidence that this is the final stage of a process of lobbying by very powerful forces. If there are problems in the whole area of compensation, it is not proved that the problems are due to the jury system. If there are undue delays, uncertainty, unpredictability and so on, I do not think it has been sufficiently investigated whether in fact these are not due to a wide variety of causes. Nor is it proved that the insurance industry are losing money in non-life cases. Their profits are lower than they wish, but that is something else. Even there, it seems to me it has not been sufficiently checked out whether we can believe the insurance industry when they tell us that they are losing a lot of money in the non-life sector.

The Bill also ignores the fact that, if there have been excesses in the past, there is in recent times a new sense of realism in the awards made by juries since the influence of the Supreme Court judgments in 1984. It is ironic at a time when this sense of realism has crept into the jury awards system, when there is a very real Supreme Court check manifesting itself, that we have a cry for the abolition of juries expressed in this Bill. Are we taking sufficient steps to enforce the criminal side of safety regulations and so on? Are we keeping accidents down with sufficient penalties? Is our policing sufficiently realistic, because fewer accidents will mean fewer insurance claims? I am simply suggesting through the Chair to the Minister that there are a number of areas which will prove fruitful to investigate, and which might well lead to the conclusion that we are getting the wrong end of the stick in thinking that the system of juries is responsible for our problems in these areas.

Again it seems to me to be not proved that you are going to remove unpredictability and inconsistency if you remove the jury system. What proof have we that judges sitting on their own are necessarily any more predictable or consistent than 12 good men? Indeed, we have examples, very frequently, of the erratic nature of decisions taken by learned gentlemen sitting on their own. I do not believe we can expect any greater degree of consistency from a judge than we can from juries. In fact, the absence of juries will mean that the litigants will pay more attention to the identity of the judge. It cannot be assumed that all judges will behave automatically and predictably and, therefore, a new factor of uncertainty and delay will come into action in these cases, as people wonder what particular judge they are going to get, what kind of personality he has and how is he likely to pronounce. It does not seem to me that we are going to get necessarily predictability and consistency by removing juries.

The Minister referred in his speech to the abolition of juries in certain civil cases as being part of a trend which is with us for a long time. If that is so, it is a trend that should now be arrested. The whole idea that you take these decisions out of the hands of 12 ordinary citizens and give them to an expert is in keeping with a very undesirable and very sinister trend of our times, namely, that the experts know best, and that ordinary people are not competent to pronounce in these matters — leave it to the experts whether they are diplomats, Government Ministers or professionals in other areas. This elitist and anti-democratic trend is again expressing itself in this Bill.

We should accept the diminution of the jury system in our jurisprudence only in the gravest cases. Every erosion of trial by jury is an erosion of civil liberties. In criminal cases we have necessarily and rightly restricted trial by jury — they were abolished in political criminal cases in 1971 — but it remains a matter of concern. It is still a deprivation of civil liberties. I see every proposal to reduce the role of juries, irrespective of whether it is in the civil or criminal area, as a further erosion of our civil liberties. Let us remember, and it has been well said, that the jury is the lamp that shows that liberty lives. In principle I am opposed to this Bill.

Mrs. Fennell

I have very strong views about the abolition of juries in this instance. At present, persons injured in motor accidents or in accidents at work are entitled to a jury trial when seeking compensation for serious injuries. It has been suggested that large jury awards have contributed to the recent crisis in the insurance industry and that, if juries were abolished, premiums would be reduced dramatically. This matter has been under consideration for a number of years and, as far as I know, great consultation has taken place between the Department of Justice and the Bar Council.

It is claimed by the insurance industry that juries are inconsistent and unpredictable. There is an element of truth in this assertion, of course. Legal lore is full of anecdotal instances of jury differences. These considerations can only be partly explained by stating that no two cases are factually the same. Money values change and the juries selected from ordinary people in the street are probably more sensitive to social change and values than many legal institutions. The point that juries are inconsistent and unpredictable, however, cannot be considered in isolation. If you advocate the abolition of the jury system you have to consider the alternatives to the jury trial. The main alternative is a judge sitting alone. We must ask whether trial by a judge sitting alone guarantees greater predictability and more consistency than a jury trial. There is no absolute and sure affirmative answer to this. One could assume that each judge would act in a way consistent with his own style or his own track record. There is no consistency there.

It is well-known that we have a difficulty in Ireland with regard to some judges who are eccentric, difficult or temperamental. I have to stress this is the case with the minority of judges and district justices. The manner in which those who cause concern arrive at the decisions and the judgments they make is seen as a problem by legal practitioners in the courts who, of course, can do nothing about it. It raises very serious questions when a measure such as is proposed in this Bill is contemplated.

Consistency would not be guaranteed if actions were to be heard by a judge sitting alone. Once it was known which judge was selected to hear the case, it would be predictable whether the award would be, as it were, generous or mean. This information would only be known immediately prior to the trial, which could force settlements or agreements that would be unfair. Because that information comes too late, it is too late to change parties from firmly held stances.

There is no evidence, as the insurance industry seem to suggest, that awards given by a judge alone would be smaller than those given by a jury. So many cases involve calculations in which an actuary is invariably employed that it is difficult to see where there could be scope for any great difference between the view a judge would take and a jury would take in such cases. I do not really feel there is good reason for abolishing juries. We should defend the principle in any event. We should examine the system as it is at present. There are savings that could be made at the moment on legal representation. One cannot sustain the number and cost of, as it is at present, eight legal representatives in these cases. This is unsustainable. It is said that costs can be up to 40 per cent of the award. In the event of abolishing juries, what will the requirement be for the hearing of cases before a judge alone?

This Bill has come about because of insurance company assertions that jury trial settlements lead to high premiums. Yet, as other speakers have said, we are not told with any degree of certainty that, subsequent on the abolition of juries, premiums will come down. This concerns me. Could we end up with the worst of all worlds by getting rid of juries and not seeing lower premiums? I suggest that a commitment to lower motor insurance charges should have been secured prior to the introduction of this legislation.

I would regret the abolition of juries, in any event, because I believe all of us should have a right to have justice delivered to us through our peers. I am afraid this Bill is not a move in the right direction. Surely it could be possible to leave room to have jury trials in exceptional cases. It looks as if this Bill will become law, and it will then rule out the possibility of a jury trial in any event and in any case. I believe that in future exceptional cases will call for jury trials even if we do not have them for all the other cases.

On the whole area of cost awards in civil cases, I have to say that this is only the tip of the iceberg. At present there is a basic dishonesty with regard to claims made and settled by insurance companies. We are paying higher premiums. To a large extent we are paying them because 90 per cent of claims do not go to court. People with a whiplash injury walk around and do their job with a collar on. As far as I can see, professionals colluded to say it was a very serious injury worth £7,000 to £10,000, knowing that the case will be settled. There is a great toleration of what I can only call dishonesty. This is morally very questionable.

Perhaps we could probe into this and see if there could not be a degree of honesty — let us call it what it is — in calling a spade a spade. If people have very minor injuries, why should they go ahead and claim and be paid a substantial amount of money which, at the end of the day, levels out and costs all of us higher premiums in all areas?

Mr. Ross

I join with Senator Murphy in recording my opposition to this Bill basically on a matter of principle. The basic constitutional right in criminal cases to trial by jury has been extended to civil cases for very good reason. It is quite simply that it is regarded and has always been regarded as a fairer form of trial. It seems that this Bill is being introduced to some extent because it is a matter of convenience, that it will speed things up and that administratively the courts will be able to dispose of these cases more quickly if they are conducted by a judge. It also seems that fewer cases will actually come to court as a result of this Bill.

An Leas-Chathaoirleach

I am loth to interrupt you Senator but the Chair would like to recognise the presence in the Distinguished Strangers Gallery of distinguished guests in the persons of His Excellency the Turkish Ambassador Halil Dag, his wife Lady Dorothy Halil Dag, and their party. You are very welcome. Senator Ross to continue.

Mr. Ross

The premise upon which this Bill is based, that there will be greater consistency in judgments because such cases as these will come before a judge only and not before a jury, is fallacious. It is much easier to get a bad judge than it is to get a bad jury. We have had, as Senator Fennell so rightly said, some very dubious judgments in recent cases, not only in civil cases but in criminal cases. Nobody maintains — and I am sure the Minister does not maintain — that judges are perfect. In some criminal cases there has been a marked inconsistency between certain judgments and certain sentences for certain crimes. It seems quite logical as a result that, when it comes to the same judges dealing with civil cases, there will be equal inconsistency. I am afraid that is natural. Whereas juries certainly have been inconsistent, I see no reason to believe that judges would be any more consistent because they have no record of great consistency.

The second point I want to make is that this Bill has been introduced because awards have been regarded by public opinion as being too high. I do not regard any such awards as have been given by juries in recent times as too high. I do not believe there is any compensation that can be made for the loss of a limb, the loss of an eye, the loss of any part of one's body, or any physical injuries. You cannot compensate people in money terms for this. It is wrong for the Government to try to reduce compensation in this way. There is obviously a feeling that juries sympathise with the plaintiff, with the injured party. That feeling is right. That feeling is correct but why should not the jury sympathise with the injured party? Quite simply after years and years of seeing cases like this going backwards and forwards judges will become hardened to such cases and will not be as sympathetic as 12 men and women actually appointed at random who see this sort of dreadful case only once or twice in a lifetime.

A final point I would like to make — which I am not sure is totally relevant to the Bill but the Leas-Chathaoirleach will tell me no doubt — is that we must remember that judges are political appointments while juries are picked at random, or almost at random. It is very difficult to pick 12 people who are likely to come up with a certain result and have certain sympathies. Judges are political appointments and this is a matter of great regret. That extends not just from political to criminal cases but it also exists in civil cases of this sort. I would like to record my dissent from the Bill because the principle of reducing juries in any case is a dangerous one.

Minister for Justice (Mr. Collins)

Before I reply, I too, with your indulgence a Leas-Chathaoirligh would like to say how glad I am to be in this Chamber today on the occasion of the visit of the Turkish Ambassador and his good wife and to say how welcome they are. I note in particular, of course, the very good company they are keeping. There has always been a very good healthy relationship between our two countries and I have no doubt that it will continue. I know they have very good friends in both Houses of the Oireachtas and indeed throughout the country as a whole.

I would like to thank Senators very much for their contributions. Indeed, I want to say to the last speaker, Senator Ross, with whom more often than not we disagree, that we can always disagree in the most cordial of terms, and that is as it should be. I understand perfectly the concern which he has. Indeed, it is only on balance that I am on the other side of the line. The same would apply to the comments made by his colleague from Cork university, Senator Murphy, who I know had to leave.

I want to thank my own party for their support for this Bill, which was to be expected. I thank the Fine Gael Party and, in particular, their spokesperson, my countyman, Senator Kennedy, for his political support for the Bill. As I explained to him, I can readily understand the reasons that professionally he may not support what is involved in the Bill, or personally he may not want to support what is in the Bill, but I think on the whole he and his party have been very helpful in ensuring that legislation which was initiated during the term of office of the Government of which they were the major party is a much much better Bill. I think there is general agreement all around on that. That is as it should be.

I should say — and I see Senator Cregan looking at me — a word of thanks for the help I received from all parties in the other House and for the amendments which were put forward and which I accepted in good faith because I recognised the value of and the need for them. On another occasion in this House, in my absence, I was criticised unfairly by one person who is not here as being the type of person who does not take amendments. As far as I am concerned on matters which are totally non-political, why should we not all pool our knowledge and our experiences from our different walks of life and try to have the best legislation possible on our Statute Book?

I also thank Senator Fennell for her contribution. She has changed somewhat in her thinking since she was junior Minister at the Department of Justice but I suppose ladies are allowed to change their minds more often than we are. I will not hold that against her. In her heart I know she will support the Bill. At least I am sure she will.

I must give credit to Senator Kennedy. He made a most interesting case and he certainly had a lot of research done. It was just as well from my point of view that I too had to do a lot of homework and a lot of research because we did come across the same sources. I wonder would that great American, Justice Douglas, of the Supreme Court mentioned by our Senator Kennedy — not the American Senator Kennedy — repeat these sentiments today in support of the role of juries. I doubt it very much because, by all accounts, a national crisis exists in the United States at present in relation to liability insurance, so much so, that President Reagan has placed the subject of civil liability reform on his legislative agenda. Six liability reform Bills are reported to be sitting before the US Congress at present. Every State Legislature is considering some measure of liability reform. Excessive jury awards are among the reasons advanced for the present crisis. This is the problem we have here. Many instances are quoted, none more dramatic than the reported award of $3.5 million, punitive damages, to a couple who sued an insurance company for wrongfully refusing to pay a hospital bill of $1,650.

Mr. Kennedy

They deserve it.

Mr. Collins

That makes my case. A number of points were made but I think I covered the situation more than adequately earlier. The principal policy objectives that provide the background to the Bill are designed to improve the position of litigants involved in personal or fatal injury actions. That is the main purpose of the Bill. If these objectives can be achieved other benefits will follow.

I want to tell Senator Kennedy through the Chair that I have nothing but the best regard and respect for the Bar Council. On several occasions I have met the Bar Council when a request came through at the shortest notice. I have had nothing but co-operation from the Bar Council. I am sure I will have nothing but co-operation from the Bar Council. I am sure Senator Kennedy will agree with me that co-operation will be most willingly forthcoming. I do not think I will have to exercise the power which this Bill gives me, that is, the authority by way of regulation to bring about situations which I believe will be there voluntarily. It is amazing how we can have agreement between ourselves in the most practical and realistic of terms to ensure that the system works as it must and should work. We can have agreement with regard to representation. The only reason that bit of extra muscle is in the Bill is for my successor who may not have the same good relationship with the Bar Council as I have or, indeed, with the insurance companies for that matter. I would not say, in particular, that I have a great relationship, but I am sure I will have a good working relationship with them to ensure that the principles of this Bill are followed right through.

It is excellent legislation. We had a thorough and deep study of the Bill. We accepted quite a lot of amendments to it. We have improved the Bill considerably. I will not talk about the principle of juries and so. This has been discussed by quite a number of Members. There are mixed views but, on balance, we are doing the right thing. I thank the House for their contributions on this Stage and hope that we can move on from there.

Question put.

Mr. Ferris

Vótáil.

An Cathaoirleach

The question is: "That the Bill be now read a Second Time." On that question a division has been challenged. Will those Senators calling for a division please stand in their places?

Senators Ferris, Murphy, O'Shea and Ross stood.

An Cathaoirleach

As fewer than five Senators stood, I declare the question carried. The names of the Members who stood in their places will be recorded in the Journal of the Proceedings of the Seanad.

Agreed to take remaining Stages today.

Bill put through Committee, reported without amendment and received for Final Consideration.

Question proposed: "That the Bill do now pass."

An Cathaoirleach

Would the Minister like to make a comment?

Minister for Justice (Mr. Collins)

I wish to express my thanks to the House, and that includes Senator Ross——

Professor Murphy

Why does the Minister not thank me?

Mr. Collins

It is a personal matter between Senator Ross and me. I thank Senator Murphy also. I want to thank Senators for the way in which they dealt with this Bill. I am satisfied it is a good Bill and I am more than happy with its contents. There is one thing which I said in the other House and which I will now repeat in this House. If after a short period of time, having closely monitored this Bill in operation, there is a need to come back to this House for help, by way of amending legislation in any shape or form, in achieving what this Bill is intended to do I will gladly do so. I will come back with all speed to seek help and advice on how to strengthen our position in trying to fulfil the aims and objectives of this Bill.

Professor Murphy

Will the Minister bring down the cost of premiums?

Mr. Collins

I have no doubt that Senator Murphy will agree after a period of six months or so that the legislation we have dealt with here this afternoon is important and progressive legislation which will prove to be of benefit to the community right across the spectrum.

Mr. Lanigan

On the Intoxicating Liquor Bill the Minister said he was quite prepared to come back into this House in the autumn if need be and that if there are problems he will amend the legislation. He has said again today in his final comments on this Bill that he is quite prepared to listen to arguments. I thank the Minister for what he has done. I do not think anybody could object to his final statement on this Bill.

Mr. Kennedy

I wish to join with the Leaders of the House in expressing our thanks to the Minister for Justice for the courtesy he has shown to the House and for the general discussion he has had with us. I certainly welcome the offer he made to come back to this House if there are any problems.

Mr. Collins

There is one section of the Bill which would give me certain powers, by way of regulations, to do certain things. I want to say for the benefit of all the Members of this House that I am confident that there will not be any need for me or obligation on me to use them. I believe that through commonsense and goodwill and because of my good relationship with the Bar Council it will not be necessary for me to use those powers. If they have to be used by my successors, let us remember that those regulations can only be put in place once they have been approved by the Members of this House. I think that is something we all like to see in our legislation. It is a new concept which I have been partially responsible for bringing forward in this and other legislation. It enables the Oireachtas to be involved in the making of those regulations and that is the important aspect.

Question put and agreed to.