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Seanad Éireann debate -
Thursday, 28 Mar 2002

Vol. 169 No. 17

Courts and Court Officers Bill, 2001: Committee and Remaining Stages.

Sections 1 to 3, inclusive, agreed to.
SECTION 4.
Question proposed: "That section 4 stand part of the Bill."

I want to raise the issue of qualification for the appointment of judges. The Bill states that practising solicitors of not less than 12 years standing will be eligible for direct appointment to the High and Supreme Courts. Would a person who has been appointed to the Circuit Court be excluded from appointment to a higher court if they had not practised for the full 12 years?

It is possible for a person to go straight from the District Court to the Circuit Court. This has happened on a number of occasions in the past. However, it is not possible for a person to go straight from the District Court to the High Court.

My question is more relevant to section 5 and I will question the Minister further when we reach that section.

Question put and agreed to.
SECTION 5.
Question proposed: "That section 5 stand part of the Bill."

Is it possible for somebody who has been appointed to the Circuit Court and practised there for one year – in other words, they have 11 years in practice – to be appointed to the High Court?

No. A person must have ten years plus two years, making 12 years.

Question put and agreed to.
Sections 6 to 10, inclusive, agreed to.
SECTION 11.
Question proposed: "That section 11 stand part of the Bill."

On balance I feel it should not be "at the request of" the President of that court. All cases should be completed by the judge who initially hears the case. I am aware there have been situations where two different judges have adjudicated or heard the same case. A judge who starts a case is more familiar with the details than a judge who comes in along the line. It is not in the interests of best practice of administration of justice to have two judges hearing a case.

This section refers to the completion of partly heard cases by judges appointed to higher courts. It states that it can be "partly heard by the person in the Court in which the judicial office is vacated if, at the request of the President of that Court.". In order to have equity and consistency one person should have charge of a case right through. Cases where two different judges have been involved have shown that it has not always been in the interest of either the defendant or the plaintiff. Will the Minister review that matter?

We are providing here for a situation where if a judge is promoted he or she will hear the rest of a case already commenced. It is not possible for a person who has passed away to hear the rest of a case.

That is an exception.

I assume the Senator is referring to a person who retires possibly being allowed to finish hearing a case. The presidents of the various courts are careful when allocating business. If it is anticipated that a case will take six months then the case will not be allocated to a judge retiring in three months. There must be some flexibility here for judges, especially the presidents of the courts, to run their courts.

If I am an ordinary plaintiff who believes my case will be best heard by the one person I must firstly employ a solicitor or barrister and then must seek permission from the president of the court to have the same judge hear my case. The procedure is not user-friendly. Could we not ensure that the same judge adjudicates throughout a case?

There is already a procedure, if a judge is promoted, for him or her to hear a case which he or she heard, let us say, in the District Court originally. If the judge was appointed to the Circuit Court, then under this legislation there is provision for that person to go back and hear the rest of the District Court case. What I cannot do is allow judges who are retired to go on acting as judges. That is not possible.

We are splitting hairs. The Minister has chosen to refer to people who have died or who have retired as the exceptions to the rule. I am talking about the body of living judges who are still in the profession and administering the courts who have been promoted, etc. In those circumstances could they not complete the number of cases they have already commenced? I am not talking about judges who have retired but about practical reality.

So am I. The reality is that if a judge is promoted there is provision in this legislation to allow him or her go on hearing a case they originally started to hear in a lower court.

If the president of the court so requests it.

I have to allow a certain amount of discretion. In reality and practice that is what I anticipate will happen. There may be an exceptional case where that would not be appropriate. We are allowing a little discretion for that to be addressed. We have consulted with the Judiciary and the courts in relation to the legislation.

We need to consult the citizens.

I am consulting with the citizens as well through being here listening to what the Senator, who represents the citizens, is saying. I am trying to explain that what the Senator is seeking is being granted.

There is no reason I should not get involved here. I will try and help the Minister and his dead judges. For example, take two judges of the Supreme Court who go out golfing and are unfortunately both killed in a car accident on the way home. Two High Court judges will have to be promoted almost immediately to take up their places because we cannot have only three Supreme Court judges – we must have five on the Bench. Those promoted judges may have to leave behind some cases but they will do their utmost, as at present, to hear them. That is the practice at the moment. How about that Minister for dead judges?

The only certainty is that they cannot take the cases with them.

Question put and agreed to.
Section 12 agreed to.
SECTION 13.
Question proposed: "That section 13 stand part of the Bill."

I welcome section 13. Increasing the jurisdiction of the Circuit Court to €100,000 is a welcome improvement. It is long overdue and I compliment the Minister.

I welcome it too. It might make a big difference to costs because there will be a lesser number of barristers involved.

Question put and agreed to.
SECTION 14.
Question proposed: "That section 14 stand part of the Bill."

Again, I welcome the increase in the jurisdiction. It could even be a little higher, up to €30,000. The Minister should have it reviewed constantly in his Department so it will move with inflation.

Question put and agreed to.
Sections 15 to 34, inclusive, agreed to.
SECTION 35.
Question proposed: "That section 35 stand part of the Bill."

This is the only place I can find where I might get an answer to my question about the reporting of the courts. The Attorney General gave the advice that the in camera rule will cover even a person like the barrister referred to earlier. I am quite happy to wait if the Minister would prefer to reply somewhere else. Will the Minister give me a reply about the reporting of the courts on an anonymous basis?

The Senator is referring to reporting family law cases. That is an interesting point. I recall making inquiries in relation to this. I am awaiting a report from the courts service. The matter is being examined and I hope the report will be issued soon.

I thank the Minister for the interest he has taken in this matter. I have queried the Courts Service about it and the Minister may be able to get more action than I can. This has been going on for over a year and I keep hearing that it will require legislation. We constantly receive complaints, based on anecdotal evidence, from people who feel they have been badly treated by the courts and about which we can say nothing but if there were generalised reports, we could do so. Essentially, the courts function well.

The Courts Service appointed a person but the Attorney General said that the in camera rule was so strict that, without further legislation, the woman, who is a barrister, could not report. Although I realise the Minister is very busy, I would be grateful if he would pursue this matter.

The committee appointed by the Courts Service which has been dealing with this has not yet reported. On foot of the report, legislation will be required and I assure the Senator that if such legislation is required I will publish it and have it implemented, if I am in a position to do so.

I thank the Minister.

I support Senator Henry's comments on this section. There are constant reports from people who feel they have not been treated well in the family court and comments of an unacceptable nature have been made in some cases. Sometimes people try to ensure their case is not heard by certain judges because they are apprehensive that they will not do as well in front of them. This has to do with balance, consistency and the necessity for proper training. More female judges are required to bring balance, particularly to the family court.

The in camera rule has merit and is commendable from many points of view but because of the rule, unacceptable comments that could not be made in open court may be made behind closed doors. People have been subject to unacceptable remarks during in camera court hearings. The onus is on the Minister and his Department to ensure this does not happen.

While anonymity is required for plaintiffs and defendants, I do not accept that the details of these cases cannot be reported using the forms of "case A" and "plaintiff B" and so on. It is in the interests of justice that this matter is closely examined. There is a tendency towards a more chauvinistic attitude in our society. This attitude permeates certain courts, including the family court, and the Minister has a responsibility to examine that.

Question put and agreed to.
Sections 36 to 46, inclusive, agreed to.
Schedules 1 and 2 agreed to.
Title agreed to.
Bill reported without amendment, received for final consideration and passed.
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