Courts (Establishment and Constitution) (Amendment) Bill 2019: Committee and Remaining Stages

I welcome the Minister, Deputy Flanagan, to the House once more.

Section 1 agreed to.
NEW SECTIONS

Amendments Nos. 1 and 2 are related and may be discussed together by agreement. Is that agreed? Agreed.

Government amendment No. 1:
In page 3, between lines 15 and 16, to insert the following:
“Amendment of Courts and Court Officers Act 1995
2. Section 27 of the Courts and Court Officers Act 1995 is amended by—
(a) the deletion of subsections (6) and (7), and
(b) the insertion of the following subsection after subsection (11):
“(12) This section shall not apply to an adjudication of legal costs under Part 10 of the Legal Services Regulation Act 2015.”.”.

The primary purpose of these amendments is to facilitate the transition from the Taxing Master's office to the Office of the Legal Costs Adjudicators in the autumn. Due to their highly technical nature, these amendments have been the subject of extensive consultations between my Department, the Courts Service, including the Taxing Master's office, and the Office of the Parliamentary Counsel to the Government.

Amendment No. 1 proposes amendments to section 27 of the 1995 Act, which deals with additional powers of the Taxing Master of the High Court and of a county registrar exercising the powers of a taxing master. The proposed new subsection (12) clarifies that section 27 shall not apply to the adjudication of legal costs under Part 10 of the 2015 Act. That Part provides for the establishment of a new Office of the Legal Costs Adjudicators, which will replace the Taxing Master's office. Accordingly, section 27 will not apply to the new office, but it will continue to apply to county registrars in respect of matters of taxation.

The proposed deletion of sections 27(6) and (7) is in line with the proposal to amend the 2015 Act to allow for a lodgement and tender process in the field of costs adjudication. This will be set out in respect of the proposed amendment of section 154(10) of the 2015 Act, which I will address shortly. The existing subsections (6) and (7) represent an impediment to the lodgement and tender process, as they fetter the allocation of liability of the parties for the costs of an adjudication or taxation of costs. Accordingly, the deletion of the two subsections is proposed.

Amendment No. 2 proposes a new section of the Bill providing for a number of amendments to four sections of the 2015 Act.

If the Acting Chair agrees, I will address them individually.

Section 3(a) of amendment No. 2 provides for the insertion of a new subsection (6) into section 141 of the 2015 Act. The section in question deals with county registrars in the context of Part 10 of the 2015 Act which addresses the matter of legal costs. The purpose of this section of the amendment is to align the provision of reasons for legal cost determination by a county registrar with a similar obligation placed on a legal costs adjudicator under section 140(4) of the 2015 Act. This arises in regard to the maintenance by the county registrar of a register of taxation or legal costs, being determinations under the Act. Under section 140(4), costs adjudicators do not have to publish reasons for the determination where they are of the opinion that the adjudication concerned does not involve a matter of legal importance. The proposed section 141 uses identical language to that in section 140(4) to provide for a similar exemption for county registrars. The amendment is put forward in response to concerns raised by the Office of the Taxing Master and country registrars that an unqualified obligation to provide reasons for a determination as currently applies under section 141 would be unduly burdensome at a practical level and create a disparity in how the register of determinations is applied across the board.

Section 3(b) proposes amendment of section 154 of the Act, subsection (10) of which deals with matters relating to the work of the Office of Legal Cost Adjudicators which can be subject to rules of court. The purpose of this section of the amendment is to provide for the introduction of a procedure to enable a party liable for payment of costs to make an offer to settle those costs or a particular item of costs which, if acceptable, would obviate the need for an adjudication or reduce the scope of adjudication. This procedure is known as the lodgment and tender process. To provide an incentive to a party seeking costs to engage with such procedure, it is necessary to provide that a party which unreasonably refuses to accept an offer to settle the amount claimed would be liable to bear the costs of the expense of the adjudication process from the point at which the offer is made. The proposed additional provisions in subsection (10) would enable the making of court rules to facilitate such a procedure and set the respective liability of the parties for the cost of an adjudication where the amount offered is not exceeded by the amount of the costs determined to be paid.

Section 3(c) provides for the amendment of section 160 of the 2015 Act. Its purpose is to correct an erroneous cross-reference. The reference should be to section 163 which deals with the power of the legal costs adjudicator to specify forms in connection with the application for the adjudication of costs. The cross-reference in section 160 should be to section 163 rather than to section 166 which deals with information, documents and records.

Section 3(d) provides for the amendment of section 172 of the 2015 Act and deals with the advisory committee on the grant of patents of precedence. A grant of patents entitles a legal practitioner to whom it is granted to use the title of senior counsel. The purpose of the amendment is to correct the omission of the President of the Court of Appeal from the membership of the advisory committee on the grant of patents of precedence. The omission arose due to the fact that the Court of Appeal Act and the Legal Services Regulation Act crossed each other in time in coming to enactment. Accordingly, the amendment includes the President of the Court of Appeal in the list of members of the advisory committee. It also provides for a temporary alternative member of the advisory committee in the event of the death or retirement of the President of the Court of Appeal in a similar fashion to procedure in the cases of the Chief Justice and President of the High Court.

Amendment agreed to.
Government amendment No. 2:
In page 3, between lines 15 and 16, to insert the following:
“Amendment of Legal Services Regulation Act 2015
3. The Legal Services Regulation Act 2015 is amended—
(a) in section 141, by the insertion of the following subsection after subsection (5):
“(6) For the purposes of subsection (3)(f), a County Registrar need not publish the reasons for a determination where he or she is of the opinion that the taxation concerned does not involve a matter of legal importance.”,
(b) in section 154(10)—
(i) in paragraph (c), by the substitution of “adjudication,” for “adjudication, and”,
(ii) in paragraph (d), by the substitution of “attempt,” for “attempt.”, and
(iii) by the insertion of the following paragraphs after paragraph (d):
“(e) a procedure whereby a party to an adjudication may, upon notice to another party—
(i) pay into court a sum of money, or
(ii) make an offer of by way of tender to the other party,
in satisfaction of the costs of the other party that are the subject of the adjudication, and
(f) the respective liability of the parties referred to in paragraph (e) for the costs of the adjudication where the amount of a payment or offer referred to in that paragraph is equal to or greater than the amount of the costs concerned that, in the adjudication, are determined to be paid.”,
(c) in section 160(2)(a), by the substitution of “section 163” for “section 166”, and
(d) in section 172—
(i) in subsection (2), by the insertion of the following paragraph after paragraph (a):
“(aa) the President of the Court of Appeal;”,
and
(ii) by the insertion of the following subsection after subsection (6):
“(6A) On the death or retirement of the President of the Court of Appeal, the senior ordinary judge of the Court of Appeal who is for the time being available shall be a member of the Committee until the appointment of a President of the Court of Appeal.”.”.
Amendment agreed to.
Government amendment No. 3:
In page 3, between lines 15 and 16, to insert the following:
“Retirement age of judge of District Court increased to 70 years
4. (1) Section 30(1) of the Courts (Supplemental Provisions) Act 1961 is amended by the substitution of “seventy” for “sixty-five”.
(2) The amendment effected by subsection (1) extends to a person who is judge of the District Court immediately before the commencement of this section and, in particular, to such judge in respect of whom a warrant made under section 2 of the Courts of Justice (District Court) Act 1949 subsists immediately before such commencement (and the continuance in office, on and from the commencement of this section, of the second-mentioned judge shall be by virtue of the amendment effected by subsection (1) and not otherwise).
(3) The reference in subsection (2) to a warrant made under section 2 of the Courts of Justice (District Court) Act 1949 includes a reference to a warrant made under that section 2 in the circumstances permitted by section 1 of the Courts (No. 2) Act 1988.”.

The amendment seeks to amend section 30 of the 1961 Courts (Supplemental Provisions) Act which deals with the retirement age of a judge of the District Court. The effect of the amendment is to increase from 65 to 70 years the age of retirement of a judge of the District Court. The new retirement age will overtake the current practice of continuing a District Court judge in office from the age of 65 to 70 years by means of an annual warrant, which means that in each year the judge concerned must be extended in office. Subsection (1) provides for the increase to 70 years, amending the 1961 Act in a straightforward manner through the substitution of 70 for 65.

Subsection (2) provides that the increase to 70 will apply to serving judges when the amendment is brought into operation. In particular, it clarifies that the increase generally to 70 years applies to a judge who, having already reached 65 years, has been continuing in office by means of a subsisting annual warrant made under section 2 of the 1949 Courts of Justice (District Court) Act.

Subsection (3) further clarifies that an increase to 70 years applies in the case of an annual warrant made retrospectively under the 1949 Act in the circumstances provided for by section 1 of the Courts (No. 2) Act 1988. The circumstances referred to include where the omission to make a warrant is attributable to error or oversight. I was in the House when that Bill was passed. It arose in regard to a specific District Court judge who served in my district at the time, district No. 14. I make that point to underline that tempus fugit.

I am proposing this straightforward amendment in response to pressing views expressed by the Courts Service and the Association of Judges of Ireland seeking implementation of this measure so as to standardise the retirement age of judges of the District Court with that of other judges and to do away with the system of annual extensions from the age of 65. It will enhance court administration and the continuity of any District Court proceedings concerned. The amendment is based on section 59 of the Judicial Appointments Commission Bill 2017 as passed by Dáil Éireann and which is currently before this House. It is largely a technical amendment more appropriately suited to this Bill.

I welcome the amendment. It is sensible to make this provision and to do so in this Bill rather than in the Judicial Appointments Commission Bill which we will shortly have the pleasure of debating again. I did not get the opportunity to speak on Second Stage of this Bill. I very much welcome it. It is a brief and sensible Bill which seeks to extend the number of judges on the Court of Appeal, which has fulfilled an important and useful function and undoubtedly deserves support.

Amendment agreed to.
SECTION 2

Amendments Nos. 4 and 5 are related and may be discussed together, by agreement. Is that agreed? Agreed.

Government amendment No. 4:
In page 3, line 17, to delete “(Establishment and Constitution) (Amendment)”.

Amendment No. 4 provides for the amendment of section 2 of the Bill which sets out its Short Title. It is to be amended from the Courts (Establishment and Constitution) (Amendment) Act 2019 to the Courts Act 2019. The amendment was recommended to the Government by the Office of the Parliamentary Counsel to reflect the content of the Bill on the basis of the amendments proposed by the Government.

Amendment No. 5 amends the Long Title of the Bill. The amendment was proposed to the Government on the recommendation of the Office of the Parliamentary Counsel. It has the purpose of including in the Long Title reference to existing statutes which are now proposed to be amended by the Bill. This reflects standard practice in the drafting of the Long Title of the Bill. The Acts to be amended now include the Courts (Supplemental Provisions) Act 1961, the Courts and Court Officers Act 1995 and the Legal Services Regulation Act 2015.

Amendment agreed to.
Section 2, as amended, agreed to.
TITLE
Government amendment No. 5:
In page 3, to delete lines 5 to 7 and substitute the following:
“An Act to amend Section 1A of the Courts (Establishment and Constitution) Act 1961 to increase the number of ordinary judges of the Court of Appeal to fifteen; to amend the Courts (Supplemental Provisions) Act 1961; to amend the Courts and Court Officers Act 1995; to amend the Legal Services Regulation Act 2015; and to provide for related matters.”.
Amendment agreed to.
Title, as amended, agreed to.
Bill reported with amendments, received for final consideration and passed.