Civil Liability and Courts Bill 2004: Committee Stage (Resumed).

NEW SECTIONS.
Debate resumed on Government amendment No. 32:
In page 17, before section 21, to insert the following new section:
"21.—(1) the court shall in assessing damages in a personal injuries action have regard to the Book of Quantum.
(2) Subsection (1) shall not operate to prohibit a court from having regard to matters other than the Book of Quantum when assessing damages in a personal injuries action.
(3) In this section ‘Book of Quantum' means the Book of Quantum required to be prepared and published by the Personal Injuries Assessment Board.".

I do not want to waste time but Senator Henry asked me why awards here are substantially higher than in the United Kingdom. Several factors influenced this. Juries persisted in Ireland long after they were abolished for equivalent cases in the United Kingdom. Irish juries tended to give more than those in the United Kingdom when our currencies were at parity. It is very difficult to reduce this to an exact science but I recall on one occasion when I was practising being struck by the fact that the norm in the United Kingdom for the loss of an eye was between £15,000 and £25,000 whereas in Ireland my estimate was between £80,000 and £100,000. I presume these figures mean little now, but which is correct? I will not advance any views as to which is right and which is wrong. If I lost an eye I would favour the Irish system, but if I had to pay for somebody else's eye I might favour the English system.

Will the Minister reply briefly to my question of when a review of the Book of Quantum will occur?

It will be updated periodically. I am not in a position at the moment to say how often it will be updated. The PIAB Act, which I do not have with me at the moment, covers that. It is not something which is frozen in time; it is a document which will issue from time to time.

Sometimes when one produces a guideline everybody regards that as the floor rather than the ceiling. We have to be conscious of that as well.

Amendment agreed to.

Amendment No. 34 is related to amendment No. 33 and we will discuss them together by agreement.

Government amendment No. 33:
In page 17, before section 21, to insert the following new section:
"22.—(1) The Minister may, by regulations, prescribe actuarial tables for the purpose of their being referred to by the courts when assessing damages in personal injuries actions in respect of future financial loss.
(2) A court in a personal injuries action shall refer to prescribed actuarial tables (if any) when assessing damages in respect of future financial loss.
(3) In this section ‘actuarial tables' means actuarial tables prepared by a person designated for that purpose by a body prescribed by regulations made by the Minister.".

This is a new innovation, but it is not unprecedented internationally, whereby the Minister can prescribe actuarial tables by regulations for the purpose of their being referred to by the courts when assessing damages in respect of future financial loss.

If one loses an income stream for the rest of one's life, at the moment in Ireland if it is a serious case an actuary comes to court and gives evidence by reference to actuarial tables as to what the appropriate multiplier for a capital sum should be. I am not in the slightest anti the actuarial profession whose members are skilled and wonderful people, but it is a waste of their time to have them hanging around courts to give fundamentally statistical advice by way of evidence when, as in certain other common law countries comparable to ours, it is possible to do so by a standard form table which can be varied from time to time to reflect realities. Somebody once asked "What is the definition of an extrovert actuary?" to which the reply was "An extrovert actuary is one who looks at your shoes when he is talking to you". I will stop there.

Amendment agreed to.
Government amendment No. 34:
In page 17, before section 21, to insert the following new section:
"23.—(1) The Minister may, by regulations, prescribe the discount rate that shall apply for the purposes of the assessment of damages in respect of future financial loss.
(2) Regulations undersubsection (1) may prescribe different rates in respect of different classes of financial loss or different periods of time.
(3) The court may apply a discount rate other than the rate prescribed undersubsection (1) if it considers that the application of the rate prescribed would result in injustice being done.
(4) In this section ‘discount rate' means, in relation to the assessment of damages by a court, the rate commonly referred to by that name that is applied by the court for the purpose of determining the current value of any future financial loss.".
Amendment agreed to.
Sections 21 to 25, inclusive, agreed to.
NEW SECTIONS.
Government amendment No. 35:
In page 20, before section 26 but in Part 2, to insert the following new section:
"26.—(1) The Courts Service shall, on the commencement of this personal injuries section, establish and maintain a register of personal injuries actions (in this section referred to as the ‘register').
(2) The Courts Service shall enter in the register—
(a) the name and occupation of each party to a personal injuries action, and
(b) the address at which he or she ordinarily resides,
as specified in the pleadings relating to the action.
(3) The register shall be published on the internet and in such other form as the Courts Service considers appropriate.
(4) In this section ‘internet' means the system commonly known by that name.".

This section provides that the Courts Service shall set up and maintain a register of personal injuries actions. The register shall contain the names, addresses and occupations of the parties to personal injuries actions. It does not require personal details beyond that to be available.

In the old system before pleadings were no longer lodged, it was possible to look at cause books, and still is, to find out who has sued who. This provision is to allow for all of these matters to be on the Internet. Rather than define the Internet, I am proud of subsection (4) which states "‘internet' means the system commonly known by that name".

That seems like a very good idea. Anecdotal evidence has it that some people are terribly accident prone. Is it right that all courts will report into this register? It will not be the case that accidents in Cork will simply be registered on the Cork courts register and there will also be one for Dublin and elsewhere? Will it be the same register for the whole country?

There will be a central register. It may be divided by courts but it will be maintained by the Courts Service for all courts.

How often will the register be published? Will it be done on a rolling basis?

The register, as opposed to a published document, will be published mainly on the Internet.

Will it be regularly updated?

I do not think anybody would buy this document.

This type of information should be published by all newspapers, local and national. That is why I wonder how often it will be updated.

If it is a register, there is an obligation to put into it the name and address of every person who took a personal injuries action. It is an ongoing register similar to the cause book in the local court office.

If Mary Henry is constantly falling down potholes, will these cases appear one after the other or would people have to keep searching for my name every six months or so?

The point made by Senator O'Meara could be looked at by the Minister before Report Stage. One would presume it would be updated on an ongoing basis as cases are advised to it, but perhaps there should be provision in the legislation, for example, that information would be added to the register within so many days of receipt of notice. I accept that one does not wish to be overly prescriptive, but if there were difficulties within that office the register might not be updated for one or two months.

Having such information available could also be useful in the processing of cases by either defendants or plaintiffs. Perhaps the Minister will examine the matter between now and Report Stage.

It would be possible to enter some time period after the words "shall enter", in subsection (2). I do not want to be overly prescriptive but it is clear it has to be established and maintained and that is a rolling process. I agree with Senator Walsh that one does not want a rolling process that never seems to roll. Perhaps something of that kind could be done.

There will be a search facility on the register so that the potholes of Ireland will in future be safe from Senator Henry.

Amendment agreed to.
Government amendment No. 36:
In page 20, before section 26 but in Part 2, to insert the following new section:
"27.—The Act of 2003 is amended by the insertion of the following section:
'54A.—(1) The Board may require any person (including a Minister of the Government or a body established by or under any enactment) to provide it with such records, documents or information as it may reasonably require for the purposes of the performance of its functions under section 54(1)(c).
(2) A person of whom a requirement is made under subsection (1) shall comply with that requirement.'.".
Amendment agreed to.
SECTION 26.

I move amendment No. 37:

In page 20, line 34, after "Courts" to insert "1986".

This is a straightforward technical amendment.

I am grateful for it.

Amendment agreed to.
Section 26, as amended, agreed to.
Sections 27 to 30, inclusive, agreed to.
SECTION 31.

I move amendment No. 38:

In page 22, subsection (1), between lines 12 and 13, to insert the following paragraph:

"(g) the Child Abduction and Enforcement of Custody Orders Act 1991;”.

Section 31 is a significant section which relates to the reporting of family law proceedings and the in camera rule, which has been a matter of almost as much discussion as civil liability claims, the Statute of Limitations and so on. A law practitioner has proposed the amendment to insert a reference to the child abduction Act for fairly obvious reasons. I would like to hear the Minister’s thoughts on that before we move on to substantial amendments on this section.

This amendment seeks to include the Child Abduction and Enforcement of Custody Orders Act 1991 among the list of relevant enactments in section 31(1) of the Bill. The term "relevant enactment" means those provisions for the hearing of family law matters otherwise than in public. Section 1(2) of the 1991 Act provides that the Courts (Supplemental Provisions) Acts 1961 to 1988 and that Act, in so far as it affects the jurisdiction or procedure of any court in the State, shall be construed together as one. Section 45 of the Courts (Supplemental Provisions) Act 1961, which provides that justice shall be administered in public in minor matters is a relevant enactment under section 31(1) of the Bill. I am informed that the matter is already covered and that the amendment is not necessary.

Amendment, by leave, withdrawn.

Amendments Nos. 39 and 40 are related and may be taken together by agreement. Is that agreed? Agreed.

I move amendment No. 39:

In page 22, between lines 16 and 17, to insert the following subsection:

"(2) Access to proceedings to which the relevant enactments relate shall be permitted to bona fide academic researchers, subject to such terms and conditions relating to access as may be prescribed in regulations made by the Minister: provided that nothing published by such researchers shall contain information which would enable the parties to the proceedings or any child to which the proceedings relate to the identified.”.

As Senator O'Meara stated, this section is most important. My amendment is designed to ensure there will be access to the documents of the courts by bona fide academic researchers. The Minister and I recently attended the launching of a document by Baroness Onora O'Neill about freedom of expression and freedom of the press. As the Law Reform Commission and others have pointed out, we want to build up, with this legislation, a body of jurisprudence. In addition, I would like the public to be in a position to know how serious are the cases that come before the family courts. However, we do not want those courts to become places where sensational cases, albeit it in an anonymous way, are reported. These are most serious issues and usually cause great distress for the families involved.

I was somewhat surprised that the Minister did not merely reinstate the Courts Service's family law reporting project into the legislation. What is contained in the section is slightly different. We must ensure that people who are involved in serious research on family law will have access to the papers of the court and that this will not just be seen as a reporting situation. I do not believe that is what the Minister wants.

The Senator is entirely correct. The current section 31 is cast more widely than I had intended when I sent the Bill for drafting. Rather than delay the matter at the time, when there was pressure to proceed with the legislation, I intended to revisit it at a later stage because it is somewhat vague and could lead to concern among some people that members of the public would sit in the back of the court and watch the proceedings of their cases to gather salacious gossip. I intend to bring forward an amendment on Report Stage to deal with this issue. I would have done so on Committee Stage were it not for a technical problem caused by the non-availability of certain personnel involved in the drafting of the legislation. I intend to deal with the matter on Report Stage. To return to Senator Maurice Hayes's proposal, I will provide as much notice as possible to everyone of the line I propose to take in that regard.

I should have spoken on amendment No. 40 before the Minister made his contribution. Section 31(2) only seems to permit a report of proceedings and a report of the judgment. It contains nothing which would permit the publication of the results of systematic research or those of academic studies of trends or aspects of family law cases. Research of this kind has proven extremely valuable in other fields and we need to provide for it here if we are to learn from how the family law courts work. We have received a number of submissions from various groups and institutions seeking the inclusion of this provision. I ask the Minister to accept the amendment.

Will the Minister provide a broad indication of the kind of amendment he proposes to return with on Report Stage in order that we could discuss the matter now and that our remarks on the section would be relevant?

I concur with what has been said. The Minister indicated that he will accommodate Members. There should be a system in family law whereby cases are heard in private and where nothing said in evidence could be used to identify parents or children. On occasion, there may be certain individuals involved who would be anxious to get certain matters into the public arena because of the discord that has arisen between parties. However, this should not be allowed.

Another point I wish to put to the Minister — it does not relate to the Bill but rather to this specific issue — relates to the failure to provide adequate accommodation for family law hearings. In my constituency of Wexford, people are obliged to stand on the stairs of the county hall while waiting for their family law hearings. Other cases, including criminal cases, are heard at the same venue. These people's privacy is being invaded. The number of family law cases has obviously increased since the legislation dealing with divorce, separation, etc., was introduced. It is important that we should catch up with the needs and requirements in the area in order to ensure that they are dealt with in a fashion which, on occasion, might assist reconciliation but which would not advertise discord.

I am concerned that people do not believe that resources are involved in this area. I hope the Bill will include a provision to the effect that adequate resources will be given to the Courts Service to bring forward such evidence that is considered useful. The Courts Service must be provided with whatever funds are required.

I wish to give Senator O'Meara and others a sense of where I am coming from in respect of this matter. Subsection (2) states that nothing contained in a relevant enactment shall operate to prohibit the preparation and publication of a report of proceedings to which the relevant enactment relates. If that meant a law report of proceedings, it would be one thing. However, if it meant a newspaper report, it would be quite another. Likewise, in respect of the publication of the decision of the court in such proceedings, the term "publication" could be radically different from what one might expect.

What I have in mind is a system whereby responsible people can be admitted to these type of proceedings for the purpose of research in respect of them. In addition, the outcome of decisions should be capable of being put in place in order that a corpus of existing law will be available from court to court to show how family law issues are dealt with.

I also have in mind the concept that independent persons from the public, approved in some way — perhaps by the Courts Service or some other mechanism — could act as observers in cases of this nature. I rarely practised family law but I have been struck by the number of people who have claimed that the in camera rule has permitted inconsistency of approach and worse, without any real sense that the people who felt themselves to be on the receiving end believed there is anyone to whom they can turn to say that they have been unfairly treated or whatever. It is a good idea that family law matters should be conducted with persons present who would have some legitimate function in terms of acting as observers in the broad public interest. I am considering moving along those lines. In other words, I wish to tighten up matters in terms of what is involved in publication and what the term “report” actually means, and to facilitate research and independent and responsible observers being present in court to witness what happens.

I most certainly do not want a situation to arise whereby a newspaper could send someone to a family law court to watch an interesting case to see how it is proceeding. Like it or not, it would create a sense of unease and apprehension for someone, particularly a person whose life is of interest to the public at large, if the intimate details of his or her matrimonial life were examined in front of people who might afterwards use the material they obtained to come at the story from another angle. Such individuals might also approach those who could actually produce the same story without breaching the in camera rule. This could be frightening. If a public figure who was a subject of family law litigation turned and saw political correspondents watching his or her family law case, it would be a deeply unnerving and frightening experience. It would certainly have potential to invade the right of an individual to privacy. We must strike a balance between all the conflicting interests.

I am conscious that in family law cases, fathers, in particular, claim they do not get the same sympathy as mothers. I do not know whether that is true and pass no judgment on the issue. However, it would be nice to know some research project proved or disproved that theory. I would like to have the facts rather than, as happens now, be accosted on the street and told I cannot really know what is going on.

The current absurdity whereby a person cannot be brought before a professional body to be disciplined by reference to what happened in a family law case is a scandal. This means where a barrister or solicitor misbehaves or is grossly negligent, there is a huge inhibition against proving the substance of the misbehaviour. This is another area covered by the ambit of this proposal.

I am mindful of the legitimate interests of people going into this situation to have their privacy protected. By the same token this does not mean they go into the legal equivalent of a black hole from which no information emerges in any circumstance and nobody knows exactly whether they were treated fairly or unfairly within the process. There is a balance to be struck and the Report Stage amendments I will table will be directed towards that series of issues.

I take it from what the Minister said that while he is not accepting amendment No. 40 today, he is indicating that he recognises its substance and will bring forward a proposal along similar lines. I thank him.

I am glad the Minister has responded. It was important to have some discussion on the issue before he formulated his proposed amendment. What he said about the admittance of responsible people for research purposes reflects the thinking of the legal profession that not everybody should be allowed into the court to observe what is going on.

Section 31(2) states clearly: "does not contain information which would enable the parties to the proceedings or any child to which the proceedings relate to be identified." In other words, even if a journalist was in court during a case, he or she could not identify the parties. Is that not still part of the legislation? I see where the Minister is coming from in this regard. We all know that in a small town people know other people's business. Therefore, in the case of divorce proceedings or whatever, the case could be reported without the parties being identified, but in such a manner that we would all know who was involved. I presume this is the Minister's concern with the current framework. That is fine but we must be careful not to go too far.

A major concern is that in the area of family law we do not know what is going on. Not only the legal practitioners do not know what is going on in terms of case law, but the public does not know what is going on. Justice is not seen to be done. One of the fundamental principles of justice is that it must be seen to be done. If everything operates behind closed doors, we operate purely on the basis of anecdotal evidence. One group in the community, a certain group of fathers, believe they are hard done by and are the subject of injustice. This is unsatisfactory.

The framework arrived at must meet the concerns not only of the legal profession and public figures but also those of the broader community and the corpus of law must be recorded and reported. We referred already to a register in terms of the decisions of the court in personal injuries cases. I suggest the Courts Service could take on board the publishing of the relevant legal decisions in a manner that would provide easy access to them by legal practitioners, whether on the Internet or hard copy. Perhaps that would be helpful.

I also wish to comment on the issue of barring orders and domestic violence, which are also covered by the in camera rule. There are concerns in this area with regard to the inconsistency with which the law is implemented. At the same time children, women and families must be protected. We must be careful when legislating in this area.

As a former journalist I have an interest in how this relates to journalism. We had an excellent discussion in the House previously on the issue of the Press Council. There is a code of practice for the reporting of family law cases in the context of the in camera rule. Has the Minister had any discussions with the National Union of Journalists on this matter? If not, does he think such discussions would be useful? There appears to be an opinion abroad that no journalist can be trusted with a family law case. One lawyer said to me it would be fine if a journalist was from The Irish Times and that journalist could be allowed into the court, but not one from the Daily Star. Both the Minister and I know that distinction cannot be made. However, we should not completely rule out journalistic media coverage of the area. Is it possible to arrive at a framework which it is possible to implement and which protects the privacy of the individual and of the children involved, etc, but which also meets the important principle of justice being done in public so that the broader community know what is going on in our courts?

Regarding amendment No. 40, the national network of women's refuges and support services put it to me that the following type of information needs to be gathered: the age, gender, nationality, ethnicity and family status of all applicants; the age and number of children involved; the number and nature of applications made and whether previous applications exist; whether domestic violence is alleged; the nature of legal representation, if any; the existence of Garda or health board intervention; and the outcome of the application. All this information should be gathered.

Also, in cases where there is domestic violence there is need to examine whether a weapon was used and if so, what type of weapon. We should also have details of breaches of orders such as barring orders. We need to know too the outcome of an application to include sanctions imposed by criminal courts. Detail is sought so we can know in exactly which areas the public is under most stress and where social services are most needed to intervene. If the Minister is prepared to consider allowing the gathering of this sort of information, the data we get will have a large application.

Progress reported; Committee to sit again.