Civil Liability and Courts Bill 2004 [Seanad Bill amended by the Dáil]: Report and Final Stages.

This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 103, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question "That the Bill be received for final consideration", the Minister may explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. For the convenience of Senators , I have arranged for the printing and circulation of the amendments. I propose to group the amendments made by the Dáil as follows for the purposes of debate: Group one, subject matter of amendments Nos. 1 to 5, inclusive; group two, subject matter of amendments Nos. 6 to 37, inclusive; group 3, subject matter of amendments Nos. 38 to 46, inclusive; and group four, subject matter of amendments Nos. 47 to 63, inclusive. I remind Senators that the only matter that may be discussed is the subject matter of the amendments made by the Dáil and they may contribute only once on each of group of amendments.

Question proposed: "That the Bill be received for final consideration."

The amendments in group one are amendments Nos. 1 to 5, which were made in the Dáil and are now submitted to the Seanad where the Bill was initiated. Amendments Nos. 3 to 5, inclusive, are technical in character but amendments Nos. 1 and 2 relate to the commencement provisions.

The one point I wish to make on amendments Nos. 1 to 5, inclusive, is that the Minister has endeavoured to ensure that as many provisions of the Bill as possible will commence on the enactment of this legislation. Many of the provisions will take immediate effect.

Senators will note that two amendments of the Personal Injuries Assessment Board Act to Chapter 1 of Part 3, dealing with funds of suitors, section 49, providing for centralised issuing of summonses and their issuing by electronic means, and section 56, increasing the number of judges, will commence as and from enactment of this legislation.

On a point of information, can the Minister of State make available his notes to Senators because this is technical material?

Yes I can, if it is of assistance.

I thank the Minister of State.

My notes do not cover every amendment because some of the amendments are very technical. Where there are amendments of substance I have notes which I can make available to all Senators.

We are moving on to group two and I invite the Minister of State to speak on the subject matter of amendments Nos. 6 to 37, inclusive.

Again, a large number of these amendments are technical in character. Amendment No. 20 deletes the original subsection and substitutes two new subsections. Subsection (4) clarifies the intention of the section with regard to the powers of the rules of court committee. Subsection (5) is necessary to ensure that the reference to the courts earlier in the section includes the Master of the High Court and county registrars.

Amendment No. 21 deletes lines 19 to 27 in page 12. These sections related to the lodgement of pleadings in the relevant courts. Following extensive discussion on this issue in the Dáil, the Minister considered that such lodgements would prove time consuming and expensive for the Courts Service. There was a provision in the original legislation that pleadings would have to be lodged in court as another additional requirement in personal injuries proceedings and proceedings generally and the Minister believed that to insist on this would add to the cost of litigation and the burden on litigants and the burden on the Courts Service. Accordingly, he accepted an amendment deleting these provisions.

Amendments Nos. 24, 26, 28, 29 and 31 were introduced by the Minister to meet some concerns about the wording of the relevant section which relates to offers in settlement. It was felt that the use of the term "final offer" could indicate that the prescribed date would occur late in the proceedings. The Minister considered that it would be better to use the term "formal offer", which would allow more flexibility on the timing of the prescribed date.

Amendment No. 36 provides that the register of personal injuries action include information regarding the name and address of the solicitor for each party to the action.

Amendment No. 37 was accepted by the Minister following much discussion on the publication of the register on the Internet. The amended section now provides that the Courts Service shall make the register available to those who have established to their satisfaction a sufficient interest in seeking access to it. As I understand it, the former provision was a general publication through the Internet. That is being modified so that the register can be made available to those who have shown a sufficient interest in seeking access to it. It is difficult to strike a balance between making information available on the one hand and making it available to persons who simply wish to have it for prying reasons, or to know if their neighbour has taken an action. This is the balance that has been struck.

Clearly the Minister adopted the same approach in the Dáil as in the Seanad which was to take on board as much as possible the concerns of Opposition Members. While a number of the amendments are technical, they are significant. On the issue of the rules of court we had extensive discussion on Committee and Report Stages on how they would operate. The Minister takes a particular view of that being a practitioner. I stated that the Minister, being a practitioner, would know how the rules of court apply and so on.

I welcome the amendment related to the lodgement of pleadings in the relevant courts which is designed to make it less expensive. There was a passing reference to that here. It appears that the register to which the Minister of State has referred is a useful one. Given that this is the era of information, the availability of the register on the Internet is useful. Much legal information, settlements, wills and so on are published in the newspapers. The Revenue Commissioners publish a much greater amount of information than in the past. How will that work in practice? Given that the Bill was discussed at a late hour in the other House, I did not have a chance to read the entire debate but I accept the Minister's bona fides on amendment No. 37, that the register should be made available to such persons who have established to the satisfaction of the Courts Service a sufficient interest in seeking access to it. I hope that will work out in practice. The amendments in the group are largely positive and substantial.

Senator O'Meara appeared to be a little concerned about publication of the register. It must be realised that this is a targeted register as it relates to personal injuries proceedings. While, as the Senator rightly said, the will of everyone who dies is published in the probate office and the Revenue make certain statements also, this register is being created for the specific purpose of enabling those who must meet personal injuries claims to carry out research on the persons bringing the claims. In the case of such a register, universal disclosure might lead to people's private matters being analysed by others unnecessarily. Incidentally, it was Senator O'Meara's party which originally moved the amendment in the Dáil.

I had a feeling that might be the case.

We move now to the group of amendments Nos. 38 to 46, inclusive.

I wish to highlight the most significant amendments concerning dormant funds, which are now contained in sections 33 to 38, inclusive, of the Bill as passed by the Dáil. In amendments Nos. 39 and 41 certain new definitions have been added. The new definition of financial institutions allows greater flexibility to the Courts Service when deciding which financial institution should handle its account. The Bank of Ireland has always held the account and was specifically mentioned in previous Funds of Suitors Acts and, previously, in this Bill. There is no complaint whatsoever about the Bank of Ireland; it is simply deemed prudent to provide freedom of choice to the Courts Service. For the first time, an explicit definition of the nature and extent of the indemnity offered should any loss be caused to someone who holds a dormant account is provided.

Amendment No. 42 is critical and will permit the future realisation of dormant investments on each five year anniversary of the passage of the Act. Amendment No. 43 makes clearer the provision for the transfer of the dormant funds of suitors to the Exchequer. From time to time, the Chief Justice may now direct the amount of dormant funds to be paid to the Exchequer, while not exceeding 97.5% of the total amount available. The provision makes available a small reserve and rolling mechanism to enable the future disposal of all realised dormant funds without recourse to new legislation. The previous reference to the Bank of Ireland in this section has also been deleted.

Having noted the comments of Senators in March, I am now providing in amendment No. 45 for a public notification procedure of the transfer of the funds. Amendment No. 46 makes provision for the creation of a registration system for dormant funds. While these matters did not feature in any previous Funds of Suitors Acts, they are now necessary to assist and inform any persons who might have a claim on these dormant funds.

I welcome the amendments. They appear to put in place a useful, user-friendly and important framework. Sections 33 to 38, inclusive, have been enhanced through debate in the Dáil.

We move now to amendments Nos. 47 to 63, inclusive.

The first important set of amendments in this grouping consists of amendments Nos. 47 to 55, inclusive, to the section which relaxes thein camera rule in family law cases. Senators will recall the detailed discussion of this proposal on Committee Stage when the Minister readily accepted that the section in the Bill, as initiated, was not adequate. The Minister brought forward in the Dáil the amendments sought in the Seanad.

Amendments Nos. 49 to 51, inclusive, are key elements in the system envisaged in the Bill to communicate information about family law proceedings to the public and professions. They provide for the preparation by a barrister or solicitor or such other person falling within a class specified by ministerial regulation of reports of family law proceedings and for attendance at court for that purpose. There is a provision for rules of court to be made to regulate this process. These elements were absent from the Bill when it was last before the House at which time it was unclear who could report on the proceedings or if the media could attend.

Amendment No. 52 has two distinct elements. It allows parties to supplyin camera orders or extracts from them to such persons and in accordance with such conditions as may be prescribed by ministerial order. Examples of third parties who might need to see orders are schools, the Passport Office, the Revenue Commissioners and parties to conveyancing transactions. In all these contexts, difficulties have arisen due to the confidentiality of court orders. Judging by the debate on this element of the Bill, Senators recognised the problem. The Minister proposes that this process should be regulated by order to allow people to be clear about what they may and may not do in this regard.

The second part of amendment No. 52 allows for the attendance in court of an accompanying person. Organisations involved with the victims of domestic violence were particularly keen on such a provision being made and the amendment addresses the point adequately. While the accompanying person will be a person of the party's choosing, attendance will be subject to the approval of the court and any directions it may give in that regard. The judge, obviously, must have final authority in the courtroom.

Amendment No. 55 provides that the section shall apply to proceedings brought or a decision made whether before or after the commencement of the section. While the arrangements for attendance and reporting and the attendance of an accompanying person must be prospective in their effect, the amendment will, for example, allow a person to supply an order made in the past to a third person in the circumstances I mentioned earlier.

Amendment No. 58 provides for the centralised issuing of summonses and their issue by electronic means to facilitate the penalty points system. Amendment No. 63 provides for increases in the maximum complement of judges by three in the High Court, three in the Circuit Court and two in the District Court.

I thank the Minister of State for setting out the amendments. Clearly, the Minister listened during the extensive Seanad debate regarding the relaxation of thein camera rule. It is a difficult area. In general, I welcome the amendments and note the Minister intends to bring forward regulations by order which it will be very important to consider. While the Minister is meeting the concerns of bodies such as schools, the Passport Office and the Revenue Commissioners, a measure of regulation is required.

I welcome in particular the amendment which allows an accompanying person to attend court in accordance with a specific request by organisations working with women and others who are victims of domestic violence. The provision meets their concerns. Given that consideration of the Bill by the Dáil did not conclude until 10.30 p.m. last night, can the Minister of State clarify if the legislation as amended also meets the other concerns of Women's Aid? The organisation wishes the Bill to ensure the consistent application of the rule of law by family law courts in cases of domestic violence and the facilitation of reporting and compilation of information on family law cases. A major issue has been that a corpus of law has not been recorded and that we do not know what is happening in one family law area versus another. When people go to court they do not know what various judges have said. This also affects practitioners who do not have the information they need. Such information in required, first, to ensure that the law that has been consistently applied and, second, to ensure that third parties, people like ourselves, know that the law has been consistently applied.

As this is the last opportunity I will have, I ask the Minister of State to clarify, if possible, how far this legislation, which is critical for organisations such as Women's Aid, has progressed. The issue of the accompanying person has been dealt with satisfactorily in the legislation. Will the Minister of State clarify the position regarding the consistent application of the law on the ground? Is it possible for the appropriate people to have sight of the details of results to ensure this happens? Are there clear criteria regarding the details recorded of family law cases, and is that available to the appropriate people?

I echo what Senator O'Meara said. I compliment the Minister of State who seems to have taken on board many of the concerns expressed in the Seanad when this Bill was previously discussed here. I refer in particular to amendment No. 51 which deals with the issue of an accompanying person. This is an area in respect of which all Senators received correspondence. I am delighted the Minister of State has included this provision.

I echo the questions put by Senator O'Meara regarding thein camera rule. That was the second part of the two major issues raised with Senators by the bodies that deal with domestic abuse. It is important that the Minister of State should clarify the position in that regard.

Many bodies have been established in recent years that are concerned about the impact of matrimonial, family and domestic litigation on people's lives and fortunes. We have to strike difficult balances in these matters.

To answer one of Senator O'Meara's questions directly, not all of the amendments proposed by the organisation to which she referred were accepted. In this legislation we have, for the first time, provided for the compilation of information, on a systematic basis, on this area. The previous operation of thein camera rule effectively meant that it was impossible for us to assemble that type of information. Therefore, many of the submissions we received from the interested organisations would have contained much material which was, in research terms, anecdotal. In saying that, I do not want to take from the sincerity or the passion of the viewpoint expressed by many of these organisations. However, the fact remains that we were working in a void because of the operation of the in camera rule. As a result of the discussions in the Oireachtas and the initiative taken by the Minister in this legislation, we now at least have a statutory framework that allows the collation and assessment of information in regard to this type of proceeding.

Senator O'Meara referred to the exercise of particular powers by the courts, for example, in regard to the family home or custody disputes. Under this legislation it is now possible to assemble information about that type of area on a systematic basis. That will inform debates in the future in this area to a far greater extent than was the case in the past. We will then have research-based information at our disposal. That will also inform us as Members of the Oireachtas. We often have important decisions to make about how we should draw up the law in this area. That is as far as I can go on that side of the matter.

The issue of consistency was raised by Senator O'Meara and also, to some extent, by Senator John Phelan. Many of the organisations dealing with this area would say that the courts are not being consistent in regard to cases.

We do not know if they are consistent.

We do not know. At least we will now have an evidential basis from which we will be able to find out whether they are being consistent.

There is a more fundamental issue in this regard. The Oireachtas decides to commit these decisions to the judges and courts because an element of discretion has to come into the decision made. This is the great difficulty in that we want consistency. We want an absolutely rigid standard applied to all cases, but no two cases are the same. The search for consistency can become self-defeating in any context. The reason the Oireachtas asked the courts to take on this task is that it is recognised that the complex, factual positions that establish themselves in these cases do not readily admit to a uniform solution. If there were a uniform solution, we would legislate for it. We would not say to the judges in the courts that they had better listen to all the evidence and make a decision they think is fair and reasonable in the circumstances. That is the difficulty with consistency. I do not decry the need for consistency and uniformity of approach in the courts as far as it can be achieved. I have no doubt that the evidential basis we will establish under this legislation will assist that.

Question put and agreed to.
Question proposed: "That the Bill do now pass."

I thank the Minister of State and his officials for the exceptional work done on this legislation. In my seven years in the Seanad it has been one of the most satisfactory debates because of the attitude adopted by the Minister of State. He has been open and has listened to what all Members had to say. In particular, he was prepared to accept amendments to the Bill. In that regard, one must note the Minister of State's acceptance of a key amendment to the original published legislation, the effect of which is to reduce from three years to two years the limitation period for the taking of cases. In doing so, he has shown himself to be fair-minded and an excellent legislator.

I have a sense that the news has not spread of what is contained in this legislation. Only this week I heard a radio report on the Neary case in Drogheda. A strong impression was given that this legislation would potentially prevent women who had been injured due to medical negligence from taking cases a few years later. My understanding from our debate on the legislation is that the date it will apply from is the date of knowledge of the injury. It is important the reality that is contained in the legislation is put into the public domain, otherwise there will be a degree of concern and unnecessary apprehension about people's rights.

I hope we have retained sufficient rights in regard to genuine — a word I use advisedly — victims. We have had considerable discussion about that. Undoubtedly there are genuine victims of negligence and of accidents who have a right to compensation and to take a case to court. It is not our objective to prevent that from happening. However, it is our objective to ensure that the framework will be fair, effective, speedy and will act as a deterrent against the compensation culture, which has developed in certain sectors in this society and which has an economic effect.

I commend the Minister of State and his officials on the work they have done on this Bill. It is a fine and necessary piece of reforming legislation. I hope it will work. We will only learn that by observing its operation. It may be necessary to revisit the legislation in years to come, but the work done in this House and in the other House has led to important and significant reform in the area of civil liability.

I thank the Minister of State for his work on the Bill to which amendments have been accepted from this side of the House. I thank the Minister of State on my own behalf and on behalf of my colleague, Senator Terry, in her absence, who dealt exclusively with this Bill on behalf of my party when it was previously before the House.

I have not previously heard the concerns expressed by Senator O'Meara in her last comments. It would be regrettable if the perception existed that this Bill would bring about such changes. It would be opportune for the Minister of State to respond to that particular issue. Many amendments have been made to the Bill since it was last before the House. I thank the Minister of State and his officials for their work.

I congratulate the Minister of State, Deputy Brian Lenihan, and the Minister, Deputy Michael McDowell, on all the contributions they made to the Bill in the House. Theirs is one of the most accommodating Departments. When legislation is finalised in this House, we all know exactly where we stand on it. I congratulate Senators Terry and Tuffy and my colleague, Senator Jim Walsh, on their contributions to shaping the Bill.

The Bill was initiated in Seanad Éireann and was the subject of a number of amendments. Amendments were then made in the other House, some of which were based on discussions that had taken place in this House. It was a matter of casting those discussions into an appropriate formula that would serve as an amendment.

The part of the Bill on which most public attention has focused is Part 2, which radically changes civil liability law. The most significant amendment was that made in this House when the Minister accepted a proposal by Senator Terry to reduce the limitation period for personal injuries actions from three years to two, rather than to one, as originally proposed.

The Minister very much appreciated the assistance of Senators on this Bill. One barrister, in his memoirs, referred to the Statute of Limitations as the "Statute of Lamentations". One has to strike a balance between the interests of all the parties involved. It is important in the context of Senator O'Meara's point to stress that the sole change to the Statute of Limitations is the reduction from three years to two years in the case of a personal injury claim. We are not changing any rule or law on the discoverability of injuries or on when the cause of action accrues. These matters are dealt with elsewhere. It is important to note this because Senators might be concerned about the issue. Senator John Phelan echoed that certain changes might be more dramatic than I am suggesting, but that is not the case. The sole change is the reduction from three years to two.

It was a concern of the public.

It was a concern of the public and I reassure people that the reduction from three years to two is the only change to this legislation. When it comes to law, I can understand that the public can get lost in a fog of technicalities very easily. I thank the Senators.

Question put and agreed to.