I will be introducing an amendment on Report Stage which will deal with the commencement date of the Bill's provisions. The aim is to commence as many provisions as possible without the need for a commencement order. The amendment will seek to narrow the delayed commencement to as few provisions as possible.
Civil Liability and Courts Bill 2004 [Seanad]: Committee Stage.
SECTION 1.
Question proposed: "That section 1 stand part of the Bill."
Can the Minister explain the technicalities in this regard?
Section 1(2) effectively gives me free reign to commence virtually any provision whenever I want. I hope to amend this section on Report Stage to make it clear that certain provisions will commence on the passing of the Bill and will not rely on me to make commencement orders.
Can we underline the Minister's name when it is included in the legislation?
With the reshuffle coming up, I would not want to do that.
We have failed so often in the past.
Is there a message in that? The press should take note.
Question put and agreed to.
SECTION 2.
Amendments Nos. 2 and 3 are consequential on amendment No. 1 which is in the name of the Minister. Therefore, amendments Nos. 1 to 3, inclusive, may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 1:
In page 6, subsection (1), line 26 to delete ", for".
These are technical amendments purely to rectify a drafting point which emerged.
Amendment agreed to.
I move amendment No. 2 :
In page 6, subsection (1), line 27, before "personal" to insert "for".
Amendment agreed to.
I move amendment No. 3:
In page 6, subsection (1), line 28, before "both" where it firstly occurs to insert "for".
Amendment agreed to.
Section 2, as amended, agreed to.
Section 3 agreed to.
NEW SECTION.
I move amendment No. 4:
In page 7, before section 4, to insert the following new section:
"4.—(1) A notice under section 7 or section 16 shall be addressed to the person concerned by name, and may be served on or given to the person in one of the following ways:
(a) by delivering to the person;
(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address or;
(c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which and address for service has been furnished, to that address.
(2) For the purposes of this section, a company within the meaning of the Companies Acts 1963 to 2003 shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or place of business.".
This new section provides for the method by which notices in writing pursuant to sections 7 and 16 are to be served. The provision is similar to those on the same subject in other Acts. Examples are to be found in the Personal Injuries Assessment Board Act, the Communications Regulation Act, the Aviation Regulation Act and the Teaching Council Act 2001, among many others. It simply states a notice under section 7 or 16 shall be addressed to the person concerned by name and may be served on or given to the person in one of the following ways: by delivery; by leaving it at the address at which the person ordinarily resides or, in the case in which address for service has been furnished, at that address; or by sending it by prepaid registered post to an address where the person ordinarily resides or at an address for service, where this has been agreed.
For the purposes of the section, a company within the meaning of the Companies Acts shall be deemed to be ordinarily resident at its registered office and every other body corporate and every other unincorporated body shall be deemed to be ordinarily resident at its principal office or place of business.
On the face of it, there does not appear to be a problem with this amendment. There is only one minor issue which occurs to me. Is it necessary to have proof of service covered in the legislation, or is there a presumption that it will be properly served?
This is a standard provision. Proof is not something about which we should get too worried. If someone claims he or she served or left a letter at a certain place, he or she will have to provide some proof. However, it is not like a summons in that accidental failure to serve would not be catastrophic in any particular case.
These are all either-or provisions. If one delivers a letter directly to a person, there is no doubt about delivery. Generally there is no doubt about this in the case of a pre-paid registered letter for which a person signs. However, if it is sent to the address where a person ordinarily resides, one might have difficulty proving this. It seems paragraph (b) is not as watertight as either paragraph (a) or (c). Is the Minister leaving himself open?
We live in an age in which it is usual to have motorcycle couriers make deliveries. If they make a mistake or deliver to the wrong address, there may or may not be consequences. We are dealing with an initial warning notice and, under section 17, a final offer. There will not be massive disputes about whether they were or were not served. A prudent solicitor, with whom we will be dealing in the great majority of cases, will avail of paragraph (c) and send it by pre-paid registered letter to the address. One of the problems we have discovered is that many people in different contexts do not collect registered letters. There was a time when there was always someone home. Now, however, the postman could be hunting around for months on end trying to effect service.
The same applies to canvassers.
Amendment agreed to.
Section 4 agreed to.
SECTION 5.
As amendments Nos. 5 and 6 are related, they may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 5:
In section 7, line 39, after "applies" to insert "only".
These are drafting amendments to make the provisions clearer.
Amendment agreed to.
I move amendment No. 6:
In page 7, line 40, to delete "only".
Amendment agreed to.
Section 5, as amended, agreed to.
SECTION 6.
Amendment No. 7 is in the name of Deputy O'Keeffe. Amendments Nos. 8 to 10, inclusive, are alternatives while amendments Nos. 13 and 15 to 17, inclusive, are related. Therefore, amendments Nos. 7 to 10, inclusive, 13 and 15 to 17, inclusive, may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 7:
In page 7, lines 43 and 44 in page 8, line 1 to 4, to delete paragraphs (a) to (c) and substitute the following:
"(a) the addition, at the end of subsection (1) of section 3 of ‘, where the cause of action in one arising out of the provision of any health service to a person, the carrying out of a medical or surgical procedure in relation to a person or the provision of any medical advice or treatment to a person, and after the expiration of two years from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured in all other actions claiming damages in respect of personal injuries’,
(b) the addition, after ‘three years’ in subsection (1) of section 4 of ‘, where the cause of action is one arising out of the provision of any health service to a person, the carrying out of a medical or surgical procedure in relation to a person or the provision of any medical advice or treatment to a person, and after the expiration of two years from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured in all other actions claiming damages in respect of personal injuries’,
(c) the addition, after ‘whichever event first occurred’ in subsection (1) of section 5 of ‘, where the cause of action is one arising out of the provision of any health service to a person, the carrying out of a medical or surgical procedure in relation to a person or the provision of any medical advice or treatment to a person, and before the expiration of two years from the date when he ceased to be under a disability or died, whichever event first occurred, in all other actions claiming damages in respect of personal injuries’,”.
This is one of the outstanding issues causing problems. A reduction in the period of limitation from three years to one was proposed. However, as a result of the Minister's acceptance of our amendment in the Seanad to divide the difference, it has been left at two years. In the main, this is broadly agreed to as the correct balance between the rights of claimants and those of defendants. However, there is still a strong case to be made in respect of workplace accidents where there is a view on the part of insurers that even the figure of two years is a little high.
The main outstanding issue is in respect of medical negligence. Representations were made to me and, I have no doubt, others. From what I have read about the issue there seems to be general acceptance that medical negligence claims fall into a separate category from ordinary personal injuries claims. There is a variety of reasons for this. It is a matter of the trust a person has in his or her doctor and the fact that if problems arise, one's main concern is to work with medical personnel to find a solution rather than thinking of claims. If efforts are made to remedy a medical or surgical error, the process can take a long time.
People have enormous confidence in the medical profession which is mostly fully justified. While there may be complaints about the health service and public facilities, there is no doubt that those involved in the medical area have a proud record. When a problem emerges, one must go through the process of trying to find a remedy, coming to terms with it and finding an explanation. This case has been adequately made by the various organisations with an interest in this area. The organisation Patient Focus, in particular, has made its views known because of its involvement in the recent case of the Drogheda obstetrician and the position of some of his patients.
Does the Minister accept, as most others do, that medical negligence claims fall into a different category? If so, can we provide for a more balanced way of dealing with this area? I accept that the time limit of two years represents a balanced solution in the case of ordinary claims but if medical negligence claims fall into a different category, the fulcrum moves and the balance becomes different. This is the point of view from which I bring forward my proposal. I do not do so in the sure and certain knowledge that it is the best answer but it is an effort to present an approach that might provide a solution to one of the few remaining controversial issues arising from the Bill.
Amendment No. 17 attempts to do more or less the same thing. It would provide that amendments affecting this section would not apply to actions for personal injuries arising from medical negligence or other actions falling outside the jurisdiction of the Personal Injuries Assessment Board or actions for personal injuries which are so serious as to significantly impair the plaintiff's capacity to institute proceedings within two years from the date of the incident concerned.
The Law Society has specifically requested that we mention the area of medical negligence in which the circumstances can be of enormous complexity and also in which there can be catastrophic injuries from which an individual may not have recovered sufficiently after two years to contemplate bringing proceedings. It is one area that seems not to be dealt with by the changes the Minister has introduced. Many of us agree that the change from three years to two is probably a good compromise in trying to strike a balance between the time limit sought by the insurance industry and the current time limit of three years. The insurance industry would prefer that there was a time limit of one year for everything while the legal profession would prefer a time limit of two or three years.
There are arguments on all sides. Obviously, we should not have cases being dragged out forever — this is more expensive and takes up time. Cases should be dealt with as quickly as possible which is the intention of the legislation. However, there are instances of negligence in which there are complex medical issues involved. It is not the same as an ordinary workplace accident, for example. If one falls in the workplace and is taken to hospital straightaway, the timescale is very short in terms of initiating a case. However, for cases with clinical implications one could find oneself unable even to begin the process of initiating procedures. The medical fall-out from an injury might not even be known for a period of time. In such a case it would be reasonable to revert to the current provisions, with the Statute of Limitations continuing to operate at three years, while in all other instances it should operate on the new timescale of two years. This would probably be the most appropriate course of action. The insurance industry would like to see matters speeded up: in fact it would like to see a time limit of one year in all cases. However, that would be too crude. This degree of flexibility would benefit the legislation.
Deputies O'Keeffe and Costello have proposed amendments dealing with the issue of the Statute of Limitations, an aspect of the Bill about which I spoke on Second Stage. I commend the Minister for taking on board the persuasive arguments made by many, not just on the professional side. I commend the Law Society for carrying out its functions as a representative body in a reasoned way. It let the arguments speak for themselves. I refer to the reduction in the time period after which the Statute of Limitations applies from three years to one.
On Second Stage I asked that the Minister reflect on all the contributions made in the Chamber. I would be interested to hear the results of this. Subject to his opinion, I am inclined to agree with Deputy O'Keeffe's general assertion that medical negligence claims constitute a special category of claims. In ordinary claims one knows almost immediately that there has been an accident, who the prospective defendant is and the nature and type of injury sustained. However, medical negligence claims cannot be easily distinguished on these three grounds. In such cases it cannot always be determined immediately that there was negligence. If there is a car crash, everybody knows instantly that there has been an event from which a negligence case may arise and who caused the negligence immediately or within a short time. One also knows quickly that there is an injury and its extent. However, because of the nature of medical negligence incidents the claimant does not know straightaway that he or she has suffered an injury, does not know who caused it and the extent of the injury. If we accept Deputy O'Keeffe's general assertion that these claims constitute a separate category, we must consider what rules should apply.
We should consider extending the limitation period or, if we do not extend it by the arbitrary time of a year, or 400 or 500 days, should we not consider devising some mechanism to address any injustice caused by the alteration of the limitation periods, or the defined period of limitation in cases of medical negligence? If that causes injustice in certain cases, there should be some mechanism to redress it.
On Second Stage I suggested that the Judiciary be granted some discretion to permit a separate case to be brought, apart from the main action for negligence, which can deal with the Statute of Limitations alone. Medical negligence cases can be complex and long, with expert witnesses on all sides and counsel arguing fine points of law, for example, on causation, and whether, if there was negligence, it caused subsequent serious injury. Those actions can run for many weeks. The time periods in issues of justice can cause injustice. Justice is the issue we should address.
I know of a case which is not yet resolved involving a 43 year old male in Limerick who has been badly damaged through the alleged negligence of a practitioner. His spleen was removed when he was 12 years of age, but in those days when people came out of hospital, they put up with their lot. That attitude does not prevail today. For the past ten years this man's health has deteriorated seriously. When his medical history was examined the question arose of what happened and, over the course of examination, it emerged that removing his spleen may have been the wrong thing to do at the time. Medical opinion suggested in a general way that the man's serious health difficulties might have begun 30 years ago. Now he is on notice that this could have been caused by negligence and the clock started to tick just over three years ago because the Statute has expired in his case. He has no idea who to sue. He does not know what surgeon performed the operation or who advised that his spleen be removed because that might have been a different person. Many of the people are retired and the records in the hospital are almost non-existent.
This is a difficult case and we all know the mantra that hard cases make bad law. If the law as proposed here had been enacted over a year ago, the man would have no cause of action. Do we need to cater in some other way without reference to time for such special cases of real injustice involving no fault on the part of the claimant or the plaintiff?
This section is quite controversial. I met the Tipperary solicitors' association to hear its concerns about some aspects of the Bill. I welcome the compromise initiated by the Minister when the Bill was in the Seanad. It would not have worked with the original one year deadline where there was a five car pile-up and records of injuries had to be obtained and the various solicitors dealt with. In medical negligence cases it is difficult to access hospital records, and medical reports on the alleged negligence of an Irish practitioner must be supported by reports from an English practitioner. Communication is difficult and two years is the minimum time in which this can be done.
I support Deputy Power's proposal because otherwise people would have no option but to beat the deadline and would be involved in cases when it was not necessary. While we seek real justice for those who have been offended we must ensure that fair justice is provided. I welcome the Minister's comments. One can see the concerns that exist and we know that the time limit is three years. I am pleased that the Minister has changed the provision to two years and not one year as was originally proposed.
I read the submission from the Law Society on this amendment. I agree with the paragraph which encapsulates the problem to the effect that in serious and complex cases, it may not be feasible to get expert reports within two years of the incident occurring. This could place a solicitor in the invidious position of having to issue proceedings to protect client interest but possibly in a way that runs counter to judicial views of best practice. To guarantee or respect the rights of his or her client, a solicitor would have to lodge proceedings and may be too early, especially in medical circumstances. One needs only look at the developing cases against Our Lady of Lourdes Hospital in Drogheda to see that extra time is required for them. In England there are separate rules for medical negligence claims but I do not know what the Statute of Limitations is on those cases.
If a person awaiting the decision of the Director of Public Prosecutions on whether to initiate criminal proceedings wanted to pursue a civil claim for personal injuries, for example, in a rape or assault case, and the DPP decided not to proceed, would the time within which the civil proceedings could be entered into be considered to have lapsed or would it be measured from the date of the DPP's decision? A problem arises if the DPP does not announce that a finding has been made.
When the Bill was introduced in the Seanad, the one year limitation period proposed by the Motor Insurance Advisory Board was considered too severe. In the course of the Seanad debate, the question of medical negligence was used as a battering ram to move me away from the one year proposal. The more I considered it, the more certain I was that the arguments were correct that it would be wrong to confine medical negligence cases to one year. I was subsequently confronted with introducing a differential statutory period for medical negligence and other cases involving health service provision. This area does not just cover medical negligence but other issues such as non-treatment.
From my experience as a legal practitioner, even if the statutory limitation period were 36 months, lawyers would still find themselves under the same pressures as under 18 months. Any cut-off point in complex litigation is always difficult to deal with due to possible difficulties in assembling a case. Many practitioners have been sued for missing the three-year period deadline because of being unable to get on top of the complexity of the case or identify the proper parties to sue.
The law in this area was liberalised only recently. I remember the late Mr. Justice Niall McCarthy's lectures where he preached and inveighed against the injustice of the law as it used to be; that one could lose one's right of action before one knew one had it. The law was changed to provide that the date of knowledge or the date of accrual, which ever was later, is the date from which the clock starts ticking. In medical negligence cases, it is not merely a matter of sympathy where one went into hospital, had an operation, felt dreadful for six months and knew the name of the surgeon. That does not set the clock ticking in a medical negligence suit. It is the point at which, with reasonable care, one became aware that what was done was medically negligent. There is an added ingredient that one must have knowledge that there was a departure from the standard of care that was owed. The law is objective and is not entirely subjective. A claim cannot be made ten years later because the person did not realise their grounds for action. The law now is objective in that a responsible person taking reasonable steps in the circumstances to ascertain the facts would have come to the conclusion that they had a cause for action. That is the new test.
Do we amend the law again to divide personal injuries actions into two categories? Do we have a separate category for medical negligence, using Deputy Jim O'Keeffe's wider term, arising out of the provision of any health service to a person, a medical or surgical procedure or the provision of medical advice or treatment to a person? I reflected carefully on this and it is not as easy as members might think. Frequently a single incident has several consequences. For example, where a person is knocked down and breaks a limb, he or she is brought to hospital and treated, either correctly or not. It may happen some months after the injuries have settled that he or she should have been warned that the bone had settled in the wrong position, that there should have been an X-ray follow-up and, had he or she been properly advised, a new treatment to mitigate the effects of the accident should have been given. There is a series of single incidents that lead to a multiplicity of claims.
I am concerned that, if the two year limit were to be imposed but it would be extended to three years where an additional claim for medical negligence would be made, a claimant would be tempted to allege that he was badly treated. In turn, he would launch a joint action against the original motorist and the doctor, claiming that between them his injuries resulted in a limp. Mixed claims would be difficult to disentangle.
Defensive medicine is also damaging to the national interest. Claiming that the boat must be put out for victims of medical negligence because they are a special category ignores that we want doctors to treat people in an effective and efficient way. It is not a public policy aim to encourage medical negligence claims and put them into a wholly different category from ordinary negligence claims. It is never pleasant to be on the receiving end of a professional negligence claim. A doctor, in working out what went wrong, will have to recreate the situation from the patient's treatment notes to determine if care was adequate. On public policy grounds, I am not as sympathetic as most Deputies are to free range for medical negligence plaintiffs. I tend to believe that the pendulum may have swung too far in favour of liability. If one has a case in medical negligence, then bearing in mind the new law and the new time period which starts at the point of knowledge, which is quite generous in its own way, two years should be sufficient for people with claims against doctors to have those claims articulated, put in writing and commenced.
Deputy Power mentioned the case he was familiar with in Limerick involving a person aged 43 now suffering potentially as a consequence of a procedure carried out on him when he was aged 12, which is 31 years ago. The Deputy made the point that many of the principal actors are now retired and some could be dead. Without being unduly clinical, so to speak, if the defendant dies, then that is the end of the matter in many cases. If a general practitioner mistreats a person and he or she dies subsequently, that is the end of the matter. It is too late to claim negligence a year after the death. The case is gone. There are all sorts of arbitrary aspects if one introduces arbitrary rules, but the advantage of such rules or definite rules with regard to limitation is that people know clearly when the letter arrives from the opposing side that a cast is statute-barred and cannot proceed any further.
Deputy Power makes the other point, for which I have sympathy, namely, that it would be nice to create a jurisdiction for the court to qualify the absolute periods under the Statute of Limitations where a serious injustice arose. I am not quite clear whether he is proposing that generally or with regard to medical negligence. That would defeat the purpose of a Statute of Limitations because it would mean that people would be sucked into litigation and arguing whether there were special reasons or a special injustice or whatever. If one creates that jurisdiction for the courts to circumvent the strict limits laid down in law, the defendant must argue that case, finance its argument and take on the whole business of going to court to argue the issue. I am not personally convinced that such a jurisdiction, although at one level it sounds attractive, would make for a fairer law in the long term. One must go back to the judicial, legal and claims ethos which we have. If one begins to open loopholes or create fuzzy areas on the edge of law, all our experience to date has been that this has tended to be interpreted constructively, if I can use that phrase, by the courts to aid the plaintiff rather than the defendant. That is something we should bear in mind.
Deputy Ó Snodaigh asked me with regard to the general issue — I presume it was not medical negligence he was concerned about — whether the fact of a criminal proceeding being instituted or not would affect the Statute of Limitations period. That is irrelevant. If one is assaulted by a bouncer in a pub and the Director of Public Prosecutions decides to prosecute or not, under ordinary law time runs against the plaintiff from the day of the assault. What the gardaí, the DPP or anyone else chooses to do with regard to the assault is irrelevant to the time period.
Regarding the example given by Deputy Power involving a 12 year old and regarding perinatal one year olds who are frequently the subject of medical negligence cases, they have in effect 18 years to make a claim, as I know from many cases in which I was involved. It may be that in a very exceptional case, such as the one noted by Deputy Power, even though the child was presumably under the custody of parents, nobody guessed that something had gone wrong while the child was aged between 12 and 21. The upper applicable age now is 18. In our system the dice are loaded in favour of the plaintiff, particularly juvenile plaintiffs. They normally have a substantial amount of time to decide whether damage has been done to them. Regarding people whose minds have been affected or whose injuries have physically prevented them from putting forward a case for themselves, the clock also stops with regard to them.
The Statute of Limitations is subject to a common law rule that fraud as used in limitation, which is not the same as fraud used in general law, also applies. That means that, for example, if I as a legal or medical practitioner act negligently and do something to conceal my negligence from the plaintiff such as burning files or destroying records, or if I give misinformation, put the person on the wrong track or do anything which in effect amounts to deception of the patient, or if I in some way cause the person to be deceived or kept in ignorance as to the right of action that person might have against me, then on equitable principles I am not entitled to invoke the Statute of Limitations.
We then come to the subject matter of the points made on radio today by Patient Focus, namely, whether I should create a second category where three years would remain the limitation period. On reflection, my view is that it would not improve the law and would in mixed cases introduce a serious complication. One would know one had a case against the driver of a car that knocked one down, but one could still be debating whether one had a case against the doctor who did not properly fix plates in one's broken leg, or whatever. As different limitation periods would apply to different parts of the same action, that would only complicate the law. Although I see the force of the arguments, I remain unconvinced that I should divide personal injuries into these two categories. The Law Reform Commission is considering all this as part of its work programme. If it comes to a persuasive view that I should create two categories, I will be happy to do so.
The best thing to do is to keep the limitation period generally understood among the legal profession as being two years from the accrual of the cause of action or the date of knowledge, liberal as that may be, and that the same period of time applies to personal injuries caused by medical or ordinary negligence. Legal practitioners confronted with medical negligence claims would then know that when a client enters the office, that that is the date they must deal with and not some other date.
The issue is fairly clear. The Minister has considered the matter carefully and some of his arguments are quite persuasive if one looks at the issue from the point of view of public policy. Along with some of my colleagues, including Government backbenchers, I am trying to find a balance which is fair and just and will ensure that no injustice will be done to people with genuine claims. The ground rules are fairly clear. We do not want fraudulent claims but we want to ensure that genuine claims are not excluded by what in certain circumstances might amount to an arbitrary time limit.
One can argue this both ways. It is fair to point out that even though the Minister is reluctant to divide medical and clinical negligence claims from other personal injuries claims, that division has already been made in the Personal Injuries Assessment Board. Such claims cannot be brought before it. An unusual consequence of that is that the times are frozen when one goes to the PIAB and therefore added on to the normal limitation time for an ordinary personal injury claim. It is not there for a claim for medical or clinical negligence. We end up with the unusual situation that, in practice, the time limit for those claims, which we all agree are complex and should at least be looked at carefully and separately, is shorter than for any other claim. That is an inverse argument, but it is of some relevance.
If the Minister has not opened the back door, there is the crack of a window. He has referred to the possibility of the Law Reform Commission producing a new recommendation, and perhaps he has touched on the possible routes ultimately to deal with this. He talks about the court finding in a matter of principle that an injustice has been done for some reason. The reason he quoted was one of fraud. Perhaps that route might be pursued from the point of view of a recommendation from the Law Reform Commission.
If that crack were widened a little, that might resolve the kinds of concerns we have. However, at the moment, I have to assume that the Minister has weighed up the present situation. He feels that, having gone from one year to two years, that should be the limit prescribed in the Bill. As going over the course again will not change his mind, I propose to put my amendment to a voice vote.
The Minister has gone into detail explaining his position. I have some sympathy with the desire not to create a second category of medical negligence. It is not necessarily along those lines that we will be looking. Medical negligence happens to be the form of personal injury with the greatest complexity and it is quoted more often. However, I see that there would be a problem in creating a separate category of medical negligence. My concern is more regarding the significance of the complexity of the injuries and that that would incapacitate a person from acting within the two-year period. Knowledge is one thing, but capacity is another. I am not sure how the Minister can respond to that if someone were so significantly affected by whatever injury he or she had received that it limited the capacity to act and institute proceedings. The term "accruing from the date of knowledge" is not very helpful in such a situation, since knowledge is not much use to a person who does not have the physical capacity to begin the process. My amendment specifically refers to that to ensure that a patient would have recovered sufficiently to have the capacity to begin the process rather than just the knowledge of it.
All the information supplied to us by the Law Society and other legal bodies and patients' groups interested in this matter, as distinct from the insurance companies, has referred not to four or five years but three. What problems have been experienced in the existing situation? Are there statistics indicating that one could make a case that there are some severe problems that have been affected by the existing statute of limitations?
The guarantee of the highest standard of medicine and medical care is not served by our cutting the limit for medical negligence cases under the statute of limitations to two years. We should retain the current figure. The Minister spoke of slipshod and low standards of medicine. The way of guaranteeing improvement is to leave the figure at the current level so that the medical profession knows that it is open to such claims. It should also know that any fraudulent or wrongful claims will be rigorously fought and defended on its behalf. That needs to be done and this legislation is intended to tackle some of that claim culture and the fraudulent claims that have been made and have tied up the court system. That aspect is to be welcomed, but it should not be to the detriment of patients who would hope, after they discover that something is wrong, sometimes two or three years down the road, that they would not be left out because they have not managed to get their act together. They will have been too worried trying to sort out medically whatever the problem is without having recourse to the law.
The other point I raised was that, once the incident occurs, the clock is ticking. Most people would prefer to see the State deal with wrongdoing. The problem I see if one cuts back the statute of limitations to two years is that some of the cases will not have been completed within that period because of delays in the courts. If one depends on the DPP, it can sometimes take six months or a year for a decision to be made and court proceedings to start. By cutting back the limit to two years, one will end up with solicitors advising clients who have been assaulted, raped or whatever not to depend solely on the State to take the case but also to initiate civil proceedings against the individual to cover both ends. We will end up with two cases running concurrently, with civil and criminal proceedings, thereby adding to the workload. I do not know how that could be done, but while criminal action is being considered, the statute of limitations period should be suspended until a determination has been made, whether by the court or the DPP, allowing people to initiate civil proceedings if they felt wronged. It is not an action that people take lightly, especially against abusive people in cases of assault.
We have given a great deal of time to this series of events.
I will be brief.
I ask the Minister to be concise in his response.
I will be very concise. Deputy Costello asked about the number of claims that fall into the various categories. The vast majority of claims are commenced within two years, with the exception of those by people such as disabled children, who can bring claims at a more leisurely pace. On Deputy Ó Snodaigh's point, I will take a typical example. Suppose that someone were beaten by a policeman and waited until his trial before commencing proceedings. If the policeman were acquitted, does that change the person's mind about whether he or she should bring a civil claim? Second, if the policeman is convicted, why should the person not have had his or her claim out there all the time, moving along, ready to be brought within the two year period? There is not much interaction between civil and criminal claims.
Amendment put and declared lost.
I move amendment No. 8:
In page 7, paragraph (a), line 43, to delete “two” and substitute “2”.
Amendment agreed to.
I move amendment No. 9:
In page 8, paragraph (b), line 1, to delete “two” and substitute “2”.
The new style is to put in the numeral rather than the word.
Amendment agreed to.
I move amendment No. 10:
In page 8, paragraph (c), line 4, to delete “and”.
Amendment agreed to.
Amendment No. 11 is in the name of the Minister. Amendments Nos. 12 and 14 and related. Amendments Nos. 11, 12 and 14 will be discussed together. Is that agreed? Agreed.
I move amendment No. 11:
In page 8, line 6, to delete "a cause of action accrued" and substitute "the relevant date in respect of a cause of action falls".
This refers to the drafting of amendments, extending the deletion to "or 5(1) and substitution ", 5(1) or 6(1)".
I am sorry, these amendments are grouped differently.
We are dealing with amendments Nos. 11, 12 and 14.
Amendment No. 11 is to remove the phrase "a cause of action accrued" and substitute "the relevant date in respect of a cause of action falls". The purpose of this amendment is to rectify a drafting oversight. The new section 5(a), which it is proposed in section 6(d) to insert in the Statute of Limitations Act 1991 begins with the phrase “where a cause of action accrued”, that means where the incident complained of happened. The limitation period runs from that date or the date of knowledge, as defined in the 1991 Act, if later. The problem with the phrase used at the beginning of section 5(a) at the moment is a cause of action may accrue before the commencement of the Bill, but the date of knowledge may be after the commencement. In such cases the section, as it stands, has the effect that the limitation period will be two years after the commencement, irrespective of the date of knowledge. Indeed, the limitation period could expire before the date of knowledge, which would be an unjust and unintended result. This is to liberalise the law and make it fairer.
Amendment agreed to.
I move amendment No. 12:
In page 8, line 8, to delete "the" and substitute "an".
Amendment agreed to.
I move amendment No. 13:
In page 8, line 9, to delete "or 5(1)" and substitute ", 5(1) or 6(1)".
Amendment agreed to.
I move amendment No. 14:
In page 8, line 10, to delete "thereof" and substitute "of that cause of action".
Amendment agreed to.
I move amendment No. 15:
In page 8, paragraph (a), line 11, to delete “two” and substitute “2”.
Amendment agreed to.
I move amendment No. 16:
In page 8, line 17, to delete "later."." and substitute the following:
"later.',
and
(e) the substitution in subsection (1) of section 6 of ‘2 years’ for ‘three years.’.”.
Amendment agreed to.
I move amendment No. 17:
In page 8, between lines 17 and 18, to insert the following subsection:
"(2) The amendment effected by this section shall not apply to actions for personal injuries arising from medical negligence or other actions falling outside the jurisdiction of the Personal Injuries Assessment Board, or to actions for personal injuries which are so serious as significantly to impair the plaintiff's capacity to institute proceedings within 2 years from the date of the incident concerned.".
Amendment put and declared lost.
Section 6, as amended, agreed to.
SECTION 7.
Amendment No. 18 is in the name of Deputy Costello. Amendment No. 19 is an alternative. Amendments Nos. 18 and 19 will be discussed together. Is that agreed? Agreed.
I move amendment No. 18:
In page 8, subsection (1), line 20, to delete "2" and substitute "3".
I am again trying to provide for a little more flexibility by proposing to extend the period of time for issuing the initial letter of claim from two months to three months. Two months is certainly very short and might be unrealistic in a number of cases, particularly where the plaintiff is only recovering from his or her injuries. The problem is that if the timescale is not met penalties will also accrue. Therefore, there is encouragement for a person to go immediately to his or her lawyer or else face the danger of missing the timescale. It appears that a very tight timescale is demanded. Deputy O'Keeffe is proposing to extend the time to four months, but I am proposing the happy compromise of three months. Perhaps we will settle on that.
We are talking here about the requirement to provide information. I am in favour of the proposal in the Bill that information should be provided to the defendant prior to the proceedings. It is only a question of what is reasonable and fair from the point of view of the time limit within which such information should be provided. As Deputy Costello mentioned, certain inferences may be drawn and there is some downside from not proceeding within the time provided in the Bill. I mentioned four months. I accept the view of IBEC, the employers' body, and the insurers that proper notice should be given as soon as possible, particularly as regards workplace accidents where the evidence might not be available even after a reasonable passage of time. Therefore I am in favour of the requirement to have a letter of claim. I would have preferred "as soon as practicable", but I suppose that is somewhat woolly and loose. Again, my concern is to get a fair, balanced approach. If the Minister was prepared to accept Deputy Costello's three month limit, I would be prepared to withdraw my amendment.
Whereas I see some force to the argument for a longer period, the purpose of this is to give the defendant a chance to realise that he or she is being sued and to go out and inspect the locus in quo, the scene of the event and the machine, to get the witnesses and begin to put together the argument for the defence. Two months is provided here, but if someone serves the notice after three months, the court will not deem that wholly inadequate and award costs accordingly or draw adverse inferences where any reasonable excuse is offered for the delay in notifying the other side of the claim. This does not have immediate self-executing effects. It does not mean the case is gone because the letter was not written. It just means that if someone comes into a solicitor and says he or she was injured on such a day, the lawyer does not let a few months go by before notifying the other side. The solicitor has a fairly tight timescale within which he or she is supposed to notify the other side of a claim. Failure to do so would have to be “without reasonable cause” before it has any consequence. The consequence then would be for inference to be drawn from such failure as appears proper. There might be no inference to be drawn, except that the solicitor went golfing instead of sending the letter. Alternatively, where the interests of justice so require, there should be a diminution or disallowance of costs. When the Judiciary starts to disallow costs on the basis that this is so required in the interests of justice, it will be a fairly serious case.
I am not persuaded by the Minister's remarks.
Amendment put and declared lost.
I move Amendment No. 19:
In page 8, subsection (1), line 20, to delete "2" and substitute "4".
Amendment, by leave, withdrawn.
Amendment No. 20 is in the name of Deputy Costello. Amendment No. 21 is an alternative. Amendments Nos. 20 and 21 may be discussed together.
I move amendment No. 20:
In page 8, subsection (1)(b), lines 24 to 28, to delete all words from and including “required—” in line 24 down to and including “appropriate” in line 28 and substitute the following:
"deduct from any costs payable to the plaintiff such amount, if any, of additional costs as in the opinion of the court has been incurred by the late service or non-service of a letter of claim".
The Minister stated that he tabled his amendment in the interests of the defendant, whereas both my amendments are in the interests of the plaintiff. The Minister is apparently punishing the plaintiff unduly. In the first instance, the Minister is limiting the time in which he or she may put forward a claim, irrespective of the impediments and obstacles present, and the person has only two months to do that. Should the plaintiff fail to make the claim within the timescale or at all, he or she may lose the costs because of the deductions made from them. That is unrealistic. There should be a compromise where the plaintiff would be at risk of losing additional costs incurred as a result of the late service of the notice or claim. It seems far too harsh to "make no order as to the payment of costs to the plaintiff," as the plaintiff could lose out entirely if he or she does not meet the time schedule. I think the Minister takes some cognisance of that in amendment No. 21. As it stands, the penalty for the plaintiff who does not meet the time schedule as laid out in the section is very harsh, and I propose a compromise that mellows the provision in the Bill.
I do not like being cast as a person who is very harsh, because what this is about is in the main casting on legal advisers a duty to make an early notification to the defendant that something is happening. The alternative is that we have a two-year Statute of Limitations period and 18 months after an accident takes place, the defendant hears about it for the first time. That is an indefensible way to proceed. I believe the best way is to deal with it on the question of costs. It is not a deduction from the damages but a deduction from costs. It is saying effectively to lawyers who are involved in personal injuries litigation to get in the notice quickly because a judge may disapprove of the failure to serve a notice in good time and may hit the lawyer personally in his pocket when it comes to recovering costs in a claim. I believe that as between the defendant and his or her solicitor, if the fault lies with the solicitor, he or she would not be in a position to recover those costs out of the plaintiff's damages. It is giving lawyers an incentive to notify the defendant that he or she is coming after him. I do not think it is unfair.
Let me reiterate, the first line of section 8(1) states that there must be an absence of reasonable cause and only then the court may draw inferences from the failure as appears proper or where the interests of justice so require, which is a very high standard, penalise the plaintiff in relation to costs. It must be required in the interests of justice, in other words, if without any excuse whatsoever one allowed 18 months to elapse and if one replied, "It slipped my mind" when asked by the judge after the case finished why it took a period of 18 months before one notified the defendant of the case, one should know that one will not walk away from the litigation as if one had carried out one's functions properly.
I can see what will happen to lawyers. The normal practice as of now is that in a straightforward case when one knows to whom the letter is to be sent, the letter is sent straight away. Two situations can arise, first, when it is not clear to whom the letter should be sent and there may be complications. I presume that will be taken into account by the court. The other situation that could arise is that the claimant might not arrive into the solicitor's office for four or five months after the accident for a variety of reasons, because of their injuries or the special relationship with an employer, for example and he or she did not initially want to raise a claim against the employer. It is clear enough from the Bill that the lawyer will have a responsibility once he is instructed to follow the procedure and I have no doubt that will happen in most cases, if the lawyer does not want to put himself in the firing line for misconduct or negligence. What is the situation when the claimant has not instructed his lawyer, as he will not know the law, yet everybody is supposed to know the law? Will he find himself in a position where he could be penalised, perhaps unfairly?.
I think the way the section is drafted, he may be in a better position in that the lawyer can say that since he did not know about it within the relevant period, there is nothing he could have done. That is slightly undesirable.
The purpose of the section is fairly clear. I will consider between now and Report Stage whether we can table an amendment stating "or as soon as practicable thereafter". The problem of that is whether I am watering it down.
I would like the Minister to think overnight about the possibility of that as I believe that would cover all such situations that we envisage. It would ease my mind that an injustice would not arise. I am not talking about the lawyer but the plaintiff.
What I am worried about is that somebody goes into a lawyer after three months and the lawyer says that is irrelevant or academic, he cannot send that letter and has no obligation to send it now but will allow the 18 months to go by. That would be an undesirable result. Perhaps the problem is that it should be amended in my direction.
On the basis that the Minister has agreed to look at that again, how stands the amendment?
As the Minister will come back to this on Report Stage, I will withdraw my amendment.
Amendment, by leave, withdrawn.
I should have pointed out a typographical error on the bottom of page 3, where it states "Section 8". That should be deleted.
Is it still section 7?
It is still section 7. The words "Section 8" should not appear there.
I move amendment No. 21:
In page 8, subsection (1)(b), lines 27 and 28, to delete subparagraph (ii) and substitute the following:
"(ii) deduct such amount from the costs that would, but for this section, be payable to the plaintiff as it considers appropriate.".
Amendment agreed to.
On a point of information, are we still on section 7?
Yes. The words "Section 8" on the top of page 4 should also be deleted.
I move amendment No. 22:
In page 8 between lines 34 and 35, to insert the following subsections:
"(3) Where a plaintiff or proposed plaintiff serves a letter of claim on a defendant or proposed defendant, the defendant or proposed defendant shall, not later than two months after service of the letter of claim, serve a letter of response setting out whether the defendant or proposed defendant accepts that a wrong has been committed by him or her.
(4) Where a defendant in a personal injuries action has, without reasonable cause, failed to comply with subsection (3), the court hearing the action may, where the interests of justice so require—
(a) make no order as the payment of costs to the defendant, or
(b) deduct such amount from any costs to be paid to the defendant as it considers appropriate.
(5) Where a defendant in a personal injuries action has, without reasonable cause, failed to comply with subsection (3), the court hearing the action may draw such inferences from the failure as appear proper.”.
This is tit for tat. If we are to put such a harsh deterrent on the plaintiff, likewise the same deterrent should be imposed on the defendant. If the plaintiff has two months to issue the initial letter of claim, the defendant should have two months to respond. I see nothing untoward about this. What is good for the goose is good for the gander. It would be appropriate if the legislation reflected that. If the purpose of the legislation is to expedite the business of the courts and if we are to put an onus on the plaintiffs to initiate their claim as quickly as possible, we should put a similar onus on the defendant to ensure that he or she responds in an equally quick period of time. I am happy to accept the two sections as long as my amendment is reflected in the responsibility of the defendants.
I do not accept this. The purpose of the letter of claim procedure is to put the defendant on notice, as speedily as possible, that a problem has arisen that may in due course result in legal proceedings being taken against him or her. This is not a case of symmetry between the two partners. One party knows what the score is and has the onus of proof. The other party is the defendant and it is necessary to give that person some degree of notice of what is happening. It is necessary to provide for a prompt notification of the incident in question unless there is some reasonable cause that cannot happen. It does not follow that there must be a corresponding step on the part of the defendant. There is no point in such a step as no action has been launched against the defendant.
The defendant has not got a claim, which could have been referred to the PIAB. Why should the defendant be expected to admit or deny liability at that point? There is a danger of creating a false symmetry at that stage. I accept that it would be desirable that where a defendant knew full well that he or she was liable, he or she should admit it. For instance, the employer has an insurance policy and when a letter of claim comes in it is not dealt with on the managing director's desk. It goes off to the defendant's solicitors. The defendant's solicitors notify the defendant's insurers. The defendant's insurers look at the facts in the letter and decide whether they are liable, if they know the facts, and whether they can make a concession at this stage. The usual point is that the defendant does not know as much about the claim as the plaintiff and is certainly not going to admit liability promptly, unless the insurer tells the defendant that it is an open and shut case that needs to be settled straightaway. I know of one company which employs retired gardaí to settle cases quickly with cheque books because it is more effective to spend money in this way than spending it on lawyers.
It is more productive.
There are dangers in that as well. When the plaintiff is confronted with an open cheque book, he or she may settle a claim for an inadequate amount. Nonetheless, that is the way the world works.
The proposal by Deputy Costello is one that I do not favour completely. At the same time, he has raised an issue that should be recorded. When we talk about a compensation culture, we have a tendency to look at the development of fraudulent claims. We look at the laws, the delays and the accumulation of costs. We forget at times that a contribution to the costs in these matters can arise from the actions of the insurance companies. When I was engaged in active practice, I found that insurance companies seemed to contribute to the accumulation of costs and expenses. They often fought ridiculous claims for open and shut cases and I could not understand why. They often delayed constructively dealing with claims until the last minute at the door of the court, when all the costs were incurred. I understand that there has been a change of approach on their part to some degree, although not to the extent where they have been sending out a cheque book after each accident.
The thinking behind Deputy Costello's amendment is to raise the issue that the problems with personal injury claims and associated costs can often be laid at the door of insurance companies. They have a case to answer as well. It might be going overboard to require them to serve a letter admitting liability or otherwise within two months, yet in the development of our thinking on civil liability, we should be thinking of what obligations, if any, should be put on insurance companies to have a more cost effective system.
Deputy O'Keeffe has argued the case very well. I want to ensure that we get a balance in the legislation. The onus is always on the plaintiff. Right through this Bill, Seán Citizen is the poor devil who is being hammered as there is a presumption that the person instigating a claim is abusing the system and is at fault all along. I want to ensure in this legislation that there are other parties involved in the process. One of the parties involved is the insurance industry and another is the legal advisers. All these parties have a role to play and have responsibilities. We are imposing onerous responsibility down the line on the plaintiff, as though in some way he or she is responsible for all ills of the system. We are not imposing similar responsibilities on the defendant and the insurance industry to make sure that they respond in a meaningful fashion. That is the intent of what I am putting here. I want to ensure that the defendants come to grips with the issue at the earliest possible moment. It may not be encompassed and I heard what the Minister said about the difficulties. We need to ensure, however, that the response is forthcoming expeditiously and meaningfully. The legislation should reflect that.
Amendment put and declared lost.
I am concerned about the time limits for Report Stage amendments. If the committee agrees I wish to move the following amendment:
In page 8, line 20, after the words "cause of action" to insert the words "or as soon as practicable thereafter".
It seems the words as proposed might run against the spirit of the Bill. If someone comes into a solicitor after ten weeks, he or she might be told that the solicitor is under no obligation to serve an early warning notice as the time limit has expired.
For that reason, I favour this amendment. It is balanced and sensible.
I would hate the situation to arise whereby solicitors would claim that the section does not apply as long as the client comes in after nine weeks.
On the other hand, it covers the situation. If it arises after the ten weeks, the solicitor must act immediately. I would favour it.
There is a residual obligation to do something.
Let us get the wording correct first.
It is to insert after the words "cause of action," on line 20, page 8, the words "or as soon as practicable thereafter".
Can we clarify that? I understand the phrase "or as soon as practicable" but what is the meaning of "thereafter" in this context?
The phrase "or as soon as practicable" only applies where that period is already gone.
What does "or thereafter" mean?
It is not "or thereafter". It is "or as soon as practicable thereafter".
That is not what the Minister said.
If I did not move this amendment it would leave a loophole which would allow solicitors to ignore their duties completely.
Amendment agreed to.
Section 7, as amended, agreed to.
SECTION 8.
Question proposed: "That section 8 stand part of the Bill."
I warn the committee that there will be two Report Stage amendments, first, to provide that rules of the court can be made as long as they are not inconsistent with the terms of the Bill and, second, to give the master and county registrars power to grant extensions of time. They have this already but it should be preserved.
The Minister will bring forward amendments on Report Stage.
Yes.
Question put and agreed to.
SECTION 9.
I move amendment No. 23:
In page 9, between lines 41 and 42 to insert the following subsection:
"(3) Rules of court regarding proceedings in the High Court shall provide that a Statement of Claim shall not be required in a personal injuries action and that a defendant shall join issue on a personal injuries summons by delivering a defence thereto within twenty one days from the service of the personal injuries summons.".
This amendment is on the same lines. There is no need for a separate statement of claim because the personal injuries summons will contain specific information regarding the claim of negligence. As it includes this information, a defence should be delivered "within twenty one days from the service of the personal injuries summons." We specify a time limit for the defendant to respond, which is to some extent to get the balance right. If we are to streamline the procedure of processing the claim with the personal injuries summons, which will be a new approach and specific new type of statement of claim, we should expect a response within a short time. This period should be specified in the Bill.
I cannot accept the amendment. Although I am sympathetic to requiring defendants to plead rapidly, the defendant is frequently not in a position to do so having consulted his or her insurers and the like. It would be an exceptional case where a defendant could, within three weeks of receiving a legal document, put in a fully thought-out legal defence. The rules of court provide for this but also provide for extensions. I do not want to ramp up difficulties for defendants. The Bill is not concerned with producing total symmetry between plaintiffs and defendants.
I am not trying to do that. However, the amendment would put some responsibility on the defendant. What is the purpose of having specific summonses unless there is some element of response?
The current procedure is that if a defence is not delivered within, as I understand it, 21 days, the plaintiff can issue a motion for judgment against the defendant.
That is not in the Bill.
We must not make the Bill unworkable. I am trying to create a climate in which litigation is dealt with effectively while it does not become more difficult to defend claims. Defendants should not be under pressure to put in a document which effectively involves using a legal shotgun to blast all sorts of propositions against the other side when there has not been time to think about the case.
The Minister is definitely defending the defendant.
Amendment put and declared lost
Section 9 agreed to.
SECTION 10.
I move amendment No. 24:
In page 10, subsection (1), line 15 after "with" to insert "the following information so far as it is reasonably available to him or her".
This is a simple amendment that on the request of a defendant in a personal injuries action the plaintiff shall provide the defendant with "the following information so far as it is reasonably available to him or her". This relates to our earlier discussion in that there is much information which is not reasonably available because of the complexities of a matter, including medical particulars. While it may be difficult for the defendant to have his or her defence in place, it is also difficult for the plaintiff to have his or her personal injuries summons in place. A caveat such as "so far as it is reasonably available to him or her" would be desirable.
This amendment was also moved by the Deputy's colleague in the Seanad. I argued there that the law is always subject to certain maxims of interpretation, one of which is that nobody is ever requested to do the impossible. If one does not have information and cannot reasonably obtain it, one will not be penalised for not producing it. The Bill will be interpreted in that way. However, I do not want to loosen the obligation to go and get that information. The amendment is largely implicit in the legislation but by making it explicit, I do not want to create a new loophole for people to avoid the allegation to be fully informative.
We constantly include in legislation phrases such as "so far as is possible" etc. We have just dealt with the Minister's amendment which inserted the phrase "or as soon as practicable thereafter". Is the Minister saying that the caveats we introduce into legislation are not necessary? Are they necessary when he introduces them but not when a member of the Opposition does so?
The answer to the Deputy's point is that just as there is often not symmetry between plaintiff and defendant, there may not be symmetry between Minister and Opposition.
This is law, not justice.
Amendment, by leave, withdrawn.
I move amendment No. 25:
In page 10, between lines 26 and 27, to insert the following subsection:
"(2) Upon the request of a plaintiff in a personal injuries action, the defendant shall provide the plaintiff with full particulars of any matter alleged in the defence of the defendant and such other information as may reasonably be requested by the plaintiff within the knowledge of the defendant including full particulars of the plaintiff's earnings where such earnings were paid by the defendant, during such period as may be specified by the plaintiff.".
I do not propose to accept the amendment. There is provision in the present rules of court for particulars arising out of any pleading to be served on a party who has served that pleading. A defendant is obliged to provide particulars of any substantive matters raised in the defence. Sometimes, the plaintiff may require information from a defendant such as on their earnings. This is normally dealt with by letter and the court would expect the defendant to provide that information. I do not propose to accept the amendment as it is unnecessary and puts too much into statute form.
This is another example of the principle that what is good for the goose is not good for the gander. In other words, all this information must be provided to the plaintiff. The whole section contains all sorts of detail about the plaintiff's circumstances whereas there is no requirement that similar information be provided for the defendant. There may well be circumstances where the manner in which an employer has operated his or her employment would be valuable and relevant. There should be a balance in regard to the particulars to be supplied. That the plaintiff has to provide personal and occupational details while the defendant does not, even though the defendant may have been the employer of the plaintiff for a considerable period, would not appear to be the best way of proceeding.
Is the amendment being pressed?
Not unless the Minister wants to——
He has indicated he is not in favour of this one.
Amendment put and declared lost.
Section 10 agreed to.
SECTION 11.
I move amendment No. 26:
In page 11, subsection (1)(d), line 22, after “alleges” to insert “and full particulars of the acts of the plaintiff constituting any alleged negligence or contributory negligence”.
I am not accepting this amendment because such particulars can be sought under existing rules of court. It is difficult for a defendant to particularise a claim that the plaintiff was negligent. The defendant is not present frequently when the incident takes place, does not see what happened and does not know precisely why the employee was negligent. He has to infer it from the circumstances. Where somebody puts his or her hand into a machine, precisely why that person put his or her hand into a machine when nobody was looking is something the defendant rarely knows about. The defendant will allege contributory negligence from that fact alone, that he has put his hand into the machine. He cannot specify precisely what led to that. I said I would consider this matter further in the Seanad, and having considered it further I still believe it is better to leave it out.
Amendment, by leave, withdrawn.
Section 11 agreed to.
SECTION 12.
Amendment No. 28 is consequential on amendment No. 27. Amendments Nos. 27 and 28 may be discussed together.
I move amendment No. 27:
In page 12, lines 19 to 27, to delete subsections (3) to (5).
These are administrative amendments. The effect of amendment No. 27 would be to delete subsections (3), (4) and (5). The requirement in each subsection is to lodge pleadings in the relevant court offices after they are served. The case has been made to me that this will lead to unnecessary, unjustifiable expense, which we are trying to avoid, for both plaintiffs and defendants. This was the system in the old days as I recollect from my practice when I started off. The system changed in the meantime. As I understand it, the current situation is that one lodges the book of pleadings only when the case has been set down to trial. I do not know what is the justification for providing in statute that we revert to the old system. It appears to be an unnecessary expense. I gather that it would give rise to administrative difficulties also for the Courts Service. It was on that basis I tabled the amendments. If there is a particular reason for it I am prepared to listen to it but if not I ask the Minister to accept it?
I support the amendments. There is no need for these provisions.
In the Estimates next year will we have to seek extra staffing for the extra files that will have to be provided for the various Circuit Court and District Court offices?
Section 13 provides that where the plaintiff in a personal injuries action serves on the defendant any pleadings or provides further information the plaintiff shall swear an affidavit verifying those assertions or allegations or that further information. An affidavit under section 13 is required to be lodged in court. I am anxious to avoid extra impositions on the Courts Service. If I could think overnight on whether it is sufficient that a true copy of the pleading be annexed to the affidavit — that should be the entirety of it — I would go along with that. However, I want to think about that if I can.
In the light of the Minister's commitment to reconsider it for Report Stage, how stands the amendment?
That is fair enough. Is the verifying affidavit sworn by the defendant and the document filed in the court office at that time?
An affidavit under this section shall be lodged in court not later than 21 days after the service of the pleading, as contained in section 13(4).
Will the Minister have a look at the need for the affidavit to be lodged in court?
The affidavit has to be somewhere. We cannot have a situation where people can make fraudulent claims and nobody can find the affidavit afterwards. In that case the whole case would fall apart.
Could the affidavit not be sworn and served on the other party?
That assumes the other party will look after it.
Is the Minister trying to save money on costs?
No, but it is effectively privatising the basis for a criminal prosecution. If the defendant puts it in a shredder that is the end of the prosecution.
I am more concerned about where this will lead. Does this mean such affidavits will be available five or ten years down the road or will it be used solely in connection with the case, in respect of which it has been sworn?
It would be important to retain it for some period because in a case where a person has brought a fraudulent claim and says that as a result of X or Y he is unable to play golf and two years later there may be a video of that person playing golf. In those circumstances the person should know that he or she is still liable for prosecution. Even if one has got the money and walked away with it in one's back pocket one's affidavit is still lodged and if there is anything fraudulent about it there is a criminal prosecution hanging over that person.
Effectively the court offices are being used as a repository for a document that may subsequently be used in a criminal prosecution.
Yes.
The next question that arises is when is the appropriate time for such document to be lodged in the court office. I am thinking more in terms of the administrative upset in the court offices by having to accommodate this new procedure. Would it be adequate to have such documents filed at, say, the time of setting down of the case for trial?
In light of what the Minister said that he would review this for Report Stage perhaps we can move on and have this debate on Report Stage.
I understand the Chair's impatience, but Report Stage will be taken tomorrow. Will the Minister ask one of his officials to inquire from somebody in the court offices as to the practical out-fall of this proposal? Can we, even at this late stage, design a process that will not impose a major paper burden on the court offices that they are not geared to accommodate? I am trying to put forward a proposal that will lead to a sensible outcome? I will not go to the wall on a point of principle in regard to this but I would not like us, in trying to design a better approach, ending up with an unnecessary mountain of paper descending on the unfortunate people in the court offices.
That is beyond doubt, Deputy, but the Minister said he would reconsider it and that is as far as we can go at the moment. He will not give the Deputy a commitment to accept it and he does not want to reject it. The fact that he gave a commitment to review it is as good as the Deputy will get today.
A late night appointment with the senior people in the court offices is appropriate.
Amendment, by leave, withdrawn.
Section 12 agreed to.
SECTION 13.
I move amendment No. 28:
In page 13, subsection (4), lines 3 and 4, to delete "lodged in court not later than" and substitute "sworn and served on the other party within".
I will withdraw this amendment until we are satisfied about our thinking on it.
Amendment, by leave, withdrawn.
I move amendment No. 29:
In page 13, subsection (8)(b), line 31, after “where” to insert “a plaintiff decides to swear such an affidavit or”.
I propose that the plaintiff should be given the option of swearing an affidavit voluntarily rather than being required to do so by the defendant in regard to the existing proceedings. That might be a desirable amendment to include at this stage.
On the issue of the seven days, did we say that would be revisited on Report Stage? It concerns the swearing of the affidavits and the lodging of the——
Is that amendment No. 28?
Section 13.
We are dealing with section 13 now to which there are two amendments, one in the name of Deputy O'Keeffe and the other in the name of Deputy Costello. Deputy O'Keeffe withdrew his amendment on the basis that the Minister would re-examine it. We are now dealing with Deputy Costello's amendment.
I do not see much point in this amendment. It envisages the possibility that a plaintiff would swear an affidavit without being required by anybody to do so. People do not normally say they want to swear an affidavit. It is very unlikely that anybody would go to the trouble to volunteer an affidavit where nobody asked for it.
The Minister does not have much confidence in——
I have more confidence in the solicitor acting for the plaintiff going off with his few euro to some other solicitor for oaths and saying that somebody may not want it but we might as well do it.
Amendment, by leave, withdrawn.
Section 13 agreed to.
SECTION 14.
I move amendment No. 30:
In page 14, subsection (5), line 20, after "conference" to insert "or any records or other evidence thereof".
It appears from subsection (5) that only the notes of the chairperson of a mediation conference should be confidential. I propose that any other records or evidence be included as well.
I am in a mood of generosity and I will accept the amendment. It does not do any harm.
Amendment agreed to.
Section 14, as amended, agreed to.
SECTION 15.
I move amendment No. 31:
In page 14, subsection (1), line 28, to delete "court, hearing the personal injuries action concerned," and substitute "court hearing the personal injuries action concerned".
Again, I am trying to help the Minister. The section states: "... satisfied that a party to the action unreasonably failed to comply with a direction under section 41" and that an order would be made on costs if somebody failed. I am including the caveat that it would be within reason. It is the old adage of "as far as practicable" or what is recently——
I think Deputy Costello is talking about amendment No. 33.
We are on amendment No. 31 to section 15.
Yes. This amendment corrects what I regard as a grammatical error. The section states that a person appointed under section 14(4) to be the chairperson of a mediation conference shall prepare and submit to the court, hearing the personal injuries. There are a number of options in that regard but probably not the one that is there. I propose that it should read "shall submit to the court hearing the personal injuries action concerned or shall prepare and submit a report to the court which is hearing the personal injuries case". The grammar is a little askance and perhaps the Minister will examine it.
What is the Deputy proposing?
I suggest dropping the comma.
The original states: "A person appointed under section 14——
I think the Deputy's version is preferable. The comma should not be there.
That is two amendments in a row the Minister has accepted.
Let us get it right because I believe it is slightly different from the amendment proposed by the Deputy. The text currently states: "A person appointed under section 14(4) to be the chairperson of a mediation conference shall prepare and submit to the court, hearing the personal injuries action concerned a report which shall include ....". Deputy Costello is proposing, and the Minister is agreeing, that shall read as follows: "The chairperson and mediation conference shall prepare and submit to the court hearing the personal injuries action .....".
No, it is not the court hearing, it is "the court which is hearing", but we will delete the comma.
The comma is deleted.
Is the amendment agreed?
I understand amendment No. 31 deletes two commas. I want to delete only the first of those commas.
Did we not insert "which is", to read "the court which is hearing"?
It is not intended to delete the——
I am happy to remove both commas. I accept amendment No. 31.
Sorry, you have confused me now.
I am accepting Deputy Costello's amendment.
As it stands.
Yes.
Amendment agreed to.
I move amendment No. 32:
In page 14, subsection (1), line 29, to delete "include" and substitute "state the following but not any other details of the contents of a mediation conference".
The purpose of this amendment is not to leave wide open what would be reported to the court before the outcome of a mediation conference. We do not want to outline the nitty-gritty of the reason the conference broke down because nobody would engage in a mediation conference if every tittle-tattle that took place in the conference was brought into open court. I agree with the section apart from "any other details". The current wording is that the chairperson shall prepare and submit to the court hearing a report which shall include ..." If we delete "include" and leave in (a) and (b) but that it shall not include any further details it will be clearer and every tittle-tattle from the mediation conference will not be brought into the court.
I do not propose to accept this amendment.
If the Minister had accepted it, it would be three in a row.
I am sorry about that. The purpose of the mediation process is to help matters. There is an element of without prejudice to all the mediation procedure. I do not want to start getting particular in this way. I would prefer the text the way the parliamentary counsel drafted it.
Can I take it that Deputy Costello will withdraw his amendment?
No, this is a fairly important amendment. A mediation conference would be an excellent way of resolving a dispute, if that could be done without the need for all the other procedures, costs and so on. If the chairperson can put anything he or she wants in the report and given the Minister proposes the wording that the report shall include the following, that means that it could include many other matters. Many personal, private and angry scenes may take place in the course of a procedure, but there is no need to report the detail of everything that takes place. What needs to be reported is the relevant matters, namely, where a mediation conference did not take place, a statement of the reasons it did not take place, where a mediation conference did take place, a statement as to whether a settlement was reached in the personal injuries action, or where a settlement has been entered into, a statement of the terms of the settlement.
What is the value of giving a blow by blow account of what did or did not transpire in a mediation conference? Only the results of the proceedings of the conference need to be given. If the chairperson prepares a long drawn-out report about who said this and who said that, and attaches blame on one side or the other, that will be of no advantage. We need to be specific about what the chairperson will be required to put in the report rather than leaving it open to his or her discretion.
Will the Minister clarify if the report and the mediator will be available to the solicitors representing the people in question?
Yes, section 15(2) states that a copy of a report prepared under subsection (1) shall be given to each party to the personal injuries action at the same time as it is submitted to the court. It will not be secret and will be handed to the court. This is a derogation from the general rule that procedures that happen with a view to settling a case are covered by the without prejudice rule, which is a privilege that such material cannot be used in court afterwards. If two barristers or two solicitors are outside a courthouse and one of the solicitors or barristers says that his or her client looks guilty but there is A, B and C, the other solicitor or barrister cannot run into court and take an oath on the bible and say that the other solicitor or barrister half admitted that outside and said that he or she would give me €40,000. There is a rule against admitting such material. It is a form of privilege that without prejudice negotiations are not admissible in evidence. The general rule is that without prejudice material is not admissible. Therefore, only that which is made admissible is covered by the procedure.
It seems that as the section stands the chairperson could come into the court and give a statement as to why agreement was not reached in the mediation conference. I do not believe such detail is necessary.
If we deleted the word "include" on line 29 and inserted the word "state", that might address the matter.
Yes.
Perhaps that would address the Deputy's point.
A slightly different amendment proposed by the Minister states that in line 29 of page 14 the word "include" shall be deleted and replaced by the word "state". Is that correct?
I would accept such an amendment.
I will put the Minister's amendment first. Is it agreed that the amendment be made? I take it that Deputy Costello will withdraw his amendment on the basis that the Minister will amend the section?
That is not quite three in a row but it is two and a half in a row.
The word to be inserted cannot be the word "state" rather it should be the word "contain" because it can contain a statement.
I suggest that some of the Minister's officials examine that wording and we can revert to this amendment in a few minutes.
All right.
Is that not the best way to deal with it? I am advised we cannot proceed with the Bill and then return to deal with this amendment. We will suspend for a few minutes if the Minister wishes to consider it. Anyhow it is timely for us to take a short break.
Amendment, by leave, withdrawn.
Sitting suspended at 3.45 p.m. and resumed at 3.55 p.m.
Prior to our suspension we were discussing amendment No. 32 to section 15. The Minister suggested that he would bring forward an amendment that would suffice instead of amendment No. 32 moved by Deputy Costello. Will the Minister give us the wording of the amendment he proposes to move?
I move the following amendment:
In page 14, line 29, to delete "include" and substitute "set out".
Amendment agreed to.
I move amendment No. 33:
In page 15, subsection (3)(b), line 3, after “action” to insert “unreasonably”.
The amendment simply seeks to insert the word "unreasonably" where an order might be made directing payment of costs. There would have to be satisfaction that the party to the action failed unreasonably to comply with the direction. It is another one of those caveats that I am attempting to insert in the section to help the Minister with the legislation.
I am against that amendment because in this case the court has directed that somebody should participate in the conference. One must obey the rules of the court. One does not say that one will obey them if one thinks they are reasonable.
The Minister has a point. I will withdraw the amendment.
Amendment, by leave, withdrawn.
Section 15, as amended, agreed to.
SECTION 16.
I will be introducing minor technical amendments on Report Stage tomorrow to add the words "offers of tender and payment" to the reference to lodgement. In this section, I will also be proposing an amendment to change "final offer" to "formal offer" so as not to circumscribe anybody in prescribing when the offer is to be made.
Amendments Nos. 34 and 35 are cognate and may be discussed together.
I move amendment No. 34:
In page 15, subsection (7), line 35, to delete "order of the Minister" and substitute "rules of court".
The Minister is seeking to take unto himself absolute power by ministerial order rather than by court rules. As I understand it, that should be done by the rules of the court and then approved by the Minister rather than dealing with the matter by ministerial order. Amendments Nos. 34 and 35 are on the same lines.
As regards these amendments, I want to create a right of initiative for the Minister. I do not want to be totally reliant on the rules committees in arriving at a set of time periods. It was a deliberate choice. The rules committees function on the basis that they deliberate and may or may not come to me. All I do is concur in a decision made by them. If they do not come up with some period I am powerless in the matter. Therefore, I want the right of initiative on these periods.
Is that wise?
It is when I am holding the job. I am only joking.
The Minister is being side-tracked.
We have not even started to discuss the reshuffle ahead.
We will not enter into political judgments like that.
No. Dates of proceedings and for lodging pleadings are normally dealt with under the rules of court. Will it not incur an enormous amount of detailed work by the Minister in having to take the initiative rather than having something come from the courts for his approval? Will it not increase his burden of responsibility? As regards the Minister's decision, how will he inform himself as to the appropriate time for such orders to be prescribed? It appears as if it will be difficult for a Minister in the future, leaving the current Minister out of it.
The Deputy can rest assured that the Minister, for the time being, will confer with the Courts Service before making orders.
Amendment, by leave, withdrawn.
I move amendment No. 35:
In page 15, subsection (7), line 37, to delete "order of the Minister" and substitute "rules of court".
Amendment, by leave, withdrawn.
Question proposed: "That section 16 stand part of the Bill."
I wish to raise some concerns about section 16 generally. Normally in dealing with a claim, one expects the defendant or the defendant's insurers to make an offer. If they do not, in many cases they should. Here, however, we are also requiring the plaintiff to serve notice in writing of an offer of terms of settlement. Has this been thought through? Is it fair to the plaintiff? Normally, the plaintiff makes a claim. It is then up to the defendant to declare that the plaintiff does not have a claim, to tell him or her to go to the Devil, to defend or otherwise state the claim is worth a certain amount. The initiative is taken by the defendant and the plaintiff may or may not make a counter offer once negotiations start. I wonder if the Minister has thought through what will happen and when this procedure will be initiated. As he well knows, haggling often occurs in the round hall of the Four Courts.
I have indicated that I intend to substitute the word "formal" for "final" in a Report Stage amendment. I will not try to prevent haggling on the steps of the court. I want to introduce a provision — this is not a novel concept or unique to Ireland — whereby both sides in litigation will be told on an objective basis as a precondition prior to trial that they must set out the terms on which they are willing to settle the claim. The idea is that plaintiffs can be forced to act reasonably. They will not be able to state they want €1 million for a broken finger and not a halfpenny less. If this is his or her totally unreasonable attitude, it will be borne in mind at a later stage by the court in deciding on costs.
The only issue is whether the word "shall" should be replaced by the word "may". I understand that in the United Kingdom there is a similar procedure but that it is not mandatory, although the plaintiff is encouraged to take such an approach. This section provides that it will be mandatory. Has the procedure in the United Kingdom been checked to see what the impact of the civil procedure rules has been?
It is not a novel procedure. It is intended to be mandatory. The purpose is to require a plaintiff to indicate clearly to the defendant that the case can be settled for a particular amount.
Who will make the first offer?
The plaintiff will make the first offer because he or she must do so after the prescribed date, whereas the defendant——
That would be contrary to normal practice.
Sorry, I should not say it will be in that order.
I am sure the Minister appreciates that normal practice is that the plaintiff makes his or her case and, if necessary, issues proceedings. It is then a matter for the insurance company to come up with an offer. Here we seem to be inverting the procedure.
It appears the defendant will not even have to make an offer. According to the section, the defendant may state he or she is not prepared to pay any sum of money to the plaintiff in settlement of the action. Therefore, the plaintiff will have to indicate what offer he or she will accept but the defendant will not have to make any statement.
The reasonableness of that attitude is something which the court can take into account at a later stage. If one thought the case was fraudulent, it would be wrong to require a defendant to offer a sum of money to settle the claim. If one intended to blow the plaintiff out of the water, it would be wrong to tell a defendant that, nonetheless, he or she must offer to settle the claim for a sum of money other than zero. That would give the plaintiff an opportunity not to opt for making a fraudulent claim.
I accept the point in regard to fraudulent claims and emphasise that we must do everything we can to stop them. However, I am worried that this approach might run counter to the normal process, that it would give an unfair advantage to the defence in that the plaintiff will have to set out the claim in detail, that there may be a contest on liability. Therefore, there may be two issues to be resolved. Without an offer from the defendant, the plaintiff will have to state a minimum figure. I am not sure that this is a constructive approach. If it was a Circuit Court claim, the minimum would be €38,000 or whatever the limit was at the time.
The defendant will not have to do it unless the plaintiff is refusing to make an offer. Section 16(2)(a) requires him or her to offer terms of settlement, or state he or she is not prepared to pay anything. The defendant must come down if favour of one or other of those propositions.
I am not sure the Minister is getting my point which is that it should be a matter for the defence to make its offer in response to the claim first.
There is nothing to stop the defence from doing so. The rules on lodgement still apply.
I accept that.
The defence can make its offer at any stage.
I would like to see the process reversed. I have no problem once the defence has indicated its position. Otherwise, we are imposing a requirement on the plaintiff to state whether he or she will settle for something close to the offer, or that it is one million miles away, in which case this could subsequently be used against him or her. It is wholly unfair to the plaintiff to have to nominate the first figure in the settlement stakes.
Because it will be mandatory on the plaintiff to nominate the figure, the problem is that it will be a ballpark figure which will bear little relation to the final settlement. Therefore, is it of any value to make it mandatory in such circumstances? As Deputy O'Keeffe said, it reverses the normal procedure whereby the defendant indicates settlement terms first and then the plaintiff responds.
All of which will happen in any event. This provision requires a formal exchange of offers. It is highly unlikely that a case will get to this point without intensive efforts having been made. There could well be mediation. There is nothing in the provision which states the normal procedure, whereby the defendant will offer, say, €50,000 and horse trading will ensue, will not take place. This is a different system whereby the two parties will be required, as a pre-condition prior to trial at a late stage in the proceedings, to state the terms on which the plaintiff is willing to settle.
Deputies O'Keeffe and Costello question the wording whereby the plaintiff in a personal injuries action "shall" after the prescribed date serve a notice in writing of an offer of terms of settlement on the defendant. Is that not the point at issue?
If I was devising this provision, I would change the word "shall" to "may" or, for a better approach, require the defendant to put his or her best foot forward. There is nothing wrong then with requiring the plaintiff to formally respond but it is wholly unfair on the plaintiff that he must put his best foot forward first as that gives the advantage to the defendant.
The Minister stated he would amend the reference to "final" to "formal". Will all references to "final" be substituted by "formal" in the section in order that a new process will be pursued whereby formal offers will be made that may have a bearing on the final offer?
No, I will provide for a scenario whereby final offers have not been exchanged. If the case is about to be taken and a final effort takes place at the door of the court to settle or it is settled a day and a half into proceedings, I do not want to prevent people from varying their offers to each other. However, as a precondition for setting a case for trial, both sides must address independently of the other what are the terms on which they will settle the case. For example, if a plaintiff is willing to take €30,000, under Deputy O'Keeffe's hypothesis, the defendant must outline what he is willing to offer before the plaintiff does that.
That is the normal procedure.
What is wrong with that?
What is right about it?
Leave the option.
If the plaintiff is happy to take €30,000, why should the defendant be bound to provide what the plaintiff wants?
Is it mandatory that the plaintiff must show his or her hand first?
The plaintiff has suffered.
The legislation is silent on who must show his or her hand first.
The section puts the onus on the plaintiff.
After the prescribed date.
The amendment has been well explored. Perhaps the Minister will agree to examine it before tomorrow. He will have a busy night. Deputies O'Keeffe and Costello could table amendments before tomorrow if they wish.
I would be happy if section 16(1) and section 16(2) were reversed as that would clarify the defendant must serve a notice on the plaintiff. The plaintiff would then have to come back and outline what he or she wants.
That would address the issue.
I am trying to get away from the "I will take what is going" culture. For example, I want the plaintiff and his advisers to outline what they want for a broken ankle and not wait to see what they will be offered. The plaintiff should outline a clear view.
That presupposes liability is not an issue and if that is the case, it may be dealt with by the PIAB. The question of liability as well as the assessment for damages is still a matter for the defence. The defence must, for example, say it is worth paying 60:40 in this case and make an offer.
That is a traditional view.
The Minister and Opposition spokespersons will examine the issue overnight and a perfect formula will be agreed tomorrow.
Question put and agreed to.
Sections 17 to 20, inclusive, agreed to.
SECTION 21.
Amendment No. 37 is consequential on amendment No. 36 and both may be discussed together.
I move amendment No. 36:
In page 17, subsection (1), line 23, to delete "shall" and substitute "shall,"
Amendment agreed to.
I move amendment No. 37:
In page 17, subsection (1), line 24, to delete "action" and substitute "action,".
The amendment provides for the insertion of a comma after the word "action".
Amendment agreed to.
I move amendment No. 38:
In page 17, subsection (3), line 30, after "Board" to insert "under the Act of 2003,".
The amendment provides for the insertion of words "under the Act of 2003".
Amendment agreed to.
Section 21, as amended, agreed to.
SECTION 22.
I move amendment No. 39:
In page 17, subsection (2), lines 35 to 37, to delete all words from and including "shall" in line 35, down and including "loss" in line 37 and substitute the following:
"shall, in assessing damages in respect of future financial loss, refer to such actuarial tables (if any) as are prescribed under subsection (1)”.
Amendment agreed to.
Section 22, as amended, agreed to.
Sections 23 to 28, inclusive, agreed to.
SECTION 29.
I move amendment No. 40:
In page 21, subsection (2), between lines 15 and 16, to insert the following:
"(a) the name and address of the solicitor for each party to a personal injuries action,”.
It is strange that a section has been inserted under which the name, occupation and address of each party to a personal injury action must be identified without referring to the solicitors involved in cases. I propose that the names of the solicitors for each party should be provided. It refers to the same principle that what is good for the goose is good for the gander. Personal injury claims do not take place in a total vacuum and the presumption that Seán and Mary citizen are entirely to blame for abuse in such cases should not be dealt with as lightly as this. The presumption inherent in the section is that there is something questionable about their behaviour and they will be shamed by having to register their names, addresses and occupations. If that is the case, the names of solicitors should also be provided. I have reservations about establishing a register for such private and confidential information, which can be viewed by all comers on the Internet. People may talk about it in chatrooms. It is a dangerous road to go down. I do not like the presumption inherent in the section.
There are a number of inter-related issues. Rather than waste time, I shall refer to just one.
I have no problem with amendment No. 40 which reads: "The name and address of the solicitor for each party...". I am worried about having a register available on the Internet which, as Deputy Costello mentioned, could be open to misinterpretation. Perhaps the Minister will explain the rationale behind the section, thus allowing us to re-examine the matter. It appears to highlight the fact that someone is taking an action, or perhaps it is an action being taken against people for not paying their taxes which indicates they are being named and shamed or, alternatively, involved in a questionable activity. That is what worries me. Possibly, the approach adopted by Deputy Costello would be a neat solution. I worry that the register may be misused. That is the reason I oppose the section.
An earlier section allows an insurance company to serve a notice requiring information. Perhaps it could legitimately check the register to see if a claimant had previously been involved in an accident. A register should be available to those who have a legitimate reason to use it rather than purely from the point of view of public curiosity. I shall listen to the Minister's response with interest. Deputy Costello's suggested approach is a good one.
I do not understand the need for a register. Why is there a requirement to place it on the Internet? Imagine the amount of spam that would be sent to someone whose name, occupation and address was published on the Internet. Every legal firm in the world would promote its services and claim it could represent a person better the next time he or she took a case.
Obviously, there are certain occupations that are more dangerous than others. Some have lodged several claims. Perhaps the Courts Service could maintain a register to find out which occupation has had most claims lodged against it. Perhaps the Health and Safety Authority could also ensure the courts were not tied up with personal injury actions.
I hope other aspects of the legislation will prevent fraudulent and mischievous claims. However, I am concerned about the public nature of the register.
I see force in what has been said. I can also see force in the claim that when a person's name appears on a register, he or she could be inundated with unsolicited legal advice.
Or begging letters.
Traditionally, there were cause books in every High Court, Circuit Court and District Court office. It is a matter of public record if Deputy Jim O'Keeffe sues Deputy Michael McDowell in any context.
What about personal injury claims?
I can see force in the Deputy's amendment about which I want to think overnight.
Will the Minister consider my two amendments?
We shall deal with them one at a time.
I am referring to Deputy Costello's amendments to section 29.
The Deputy is on a roll.
I tabled two amendments to the section.
I am not keen on his amendment which refers to solicitors. I do not know what it is all about.
I shall withdraw my amendment.
I shall think about it overnight. It might be relevant to identify the solicitor if someone has lodged three claims. It might be good to know whether the solicitor is the same in each case.
The use of the Internet is also questionable. Is the Minister prepared to look at my amendments to see whether a register should be placed on the Internet?
In amendment No. 41 the Deputy proposes to delete subsections (3) and (4).
The aim is to have the register available to people, including solicitors, with a bona fide interest as determined by the Courts Service.
I shall think about it.
The Minister has agreed that both of my amendments are valid.
We shall deal with them separately. Will the Deputy withdraw his amendment on the basis that the Minister shall look at it overnight?
Yes.
Amendment, by leave, withdrawn.
I move amendment No. 41:
In page 21, lines 20 to 23, to delete subsections (3) and (4) and substitute the following:
"(3) The register shall be made available to such persons as establish to the satisfaction of the Courts Service a sufficient interest in seeking access to it.".
Amendment, by leave, withdrawn.
Deputy O'Keeffe opposes the section. Will he reconsider his position overnight on the basis of what has been said?
I shall.
Section 29 agreed to.
SECTION 30.
I move amendment No. 42:
In page 21, line 34, to delete "requirement"," and substitute the following:
"requirement.
(3) Nothing in this section shall apply to require the disclosure by a solicitor of records, documents or information which—
(a) would place the solicitor in breach of his professional and legal duty to keep confidential all matters coming within the solicitor/client relationship, or
(b) would normally be subject to legal professional privilege.’.”.
This section adds the provision that the PIAB can require persons to provide it with information. The Law Society of Ireland has expressed its concern to me that it could require a solicitor to disclose records and documents that could place him or her in breach of his or her professional and legal duty of confidentiality to a client. My amendment would ensure the section would not do this.
The Law Society of Ireland's submission refers to the well established principle of legal professional privilege and indicates that we should not make law that would put client confidentiality in jeopardy. This is an aspect of Irish law that we should cherish rather than interfere with. The section has the potential to force solicitors to disclose information given to them by a client in private.
I support the principle underlying Deputy O'Keeffe's amendment.
I do not propose to accept the amendment, even though I am aware of the arguments made by the Law Society of Ireland and Opposition Deputies. First, I do not believe the section could be used to breach legal professional privilege. It must be given a constitutional construction like every other section of a Bill or Act. I do not believe it could be interpreted to mean privileged matters would be discovered by reference to a direction by the board. Therefore, paragraph (b) of the amendment is already implicit and constitutionally mandated.
I am not happy about paragraph (a) which is cast too wide. If I went into Deputy O’Keeffe’s solicitors’ practice, he would be obliged to keep every last scrap of paper confidential unless there was a reason for doing otherwise. The PIAB needs to know what pleadings have or have not been exchanged between parties. It may want to get records in order to compile its book of quantum. I need to think about this aspect because it is not directed at solicitors.
Yes, that is the point. As currently framed, it could catch solicitors within its net. The whole principle of confidentiality between solicitor and client has been a foundation stone of legal practice for hundreds of years, which has been upheld by the Supreme Court. Many claim it is a fundamental right under the Constitution. In that context, I would be worried about agreeing to any change in the law which could infringe on this aspect. I would be happy if the Minister re-examined the matter because it is a serious issue.
It appears that the Minister will be coming back on a range of issues for Report Stage. As the time tomorrow is limited, perhaps he will deal in his introduction with the aspects to which he said he would return.
Given the Minister's commitment, will Deputy O'Keeffe withdraw his amendment?
I will withdraw it on the basis that it will be examined overnight. I would refer the Minister to Article 8 of the European Convention on Human Rights, which supports the principle I am enunciating.
Amendment, by leave, withdrawn.
Section 30 agreed to.
NEW SECTION.
I move amendment No. 43:
In page 21, before section 31, but in Part 2, to insert the following new section:
"31.—(1) For the avoidance of doubt, the reference in the definition of ‘proceedings' in section 4(1) of the Act of 2003 to ‘proceedings in court' includes, and shall be deemed to have always included, a reference to—
(a) proceedings by way of a counterclaim, and
(b) proceedings by way of the service of a third party notice (other than a third party notice claiming only an indemnity or a contribution).
(2) Section 30(4) of the Act of 2003 is amended by the insertion after ‘subsection (3)' of ‘or is one relating to a proposed action for damages under section 48 of the Act of 1961'.".
This amendment seeks to clarify some aspects of the PIAB Act.
We will have to trust the Minister to some degree on this issue. It is the first time I have read the amendment and I have not had a chance to consider it. I appreciate that he wants to conclude the Bill before the recess. It is not the best way to make law.
I will circulate my speaking note tomorrow.
My general point is that we are gradually giving some shape to the Bill.
Could all the amendments, including the in camera rule amendments, be circulated to us this evening with the speaking notes?
There has been a suggestion that the Minister might circulate in advance his speaking note on the in camera amendments which are being tabled tomorrow. Perhaps they can be circulated to Deputies as soon as possible to give them an opportunity to examine them.
I will do that as soon as possible.
The various speaking notes on the new amendments will be circulated to Deputies this evening to give them an opportunity to examine them overnight.
That will be helpful.
Is the amendment agreed to?
I thought we agreed to withdraw the amendment and retable it.
I will retable it tomorrow.
Amendment, by leave, withdrawn.
SECTION 31.
Amendments Nos. 44 to 46, inclusive, are related and will be discussed together.
I move amendment No. 44:
In page 21, to delete lines 40 and 41 and substitute the following:
"‘accounts' means—
(a) the general cash account,
(b) the dormant account of the funds of suitors of the High Court,
(c) the ledger account, and
(d) the special account for small balances;".
Amendments Nos. 44 and 45 relate to an amended definition of the term "accounts". "Accounts" means the general cash account, the dormant account of the funds of suitors of the High Court, the ledger account and the special account for small balances. Amendment No. 45 seeks to delete "1986".
It is a straightforward amendment.
Amendment agreed to.
I move amendment No. 45:
In page 22, line 5, to delete "1986,".
Amendment agreed to.
I move amendment No. 46:
In page 22, between lines 8 and 9, to insert the following:
"‘financial institution' means the person with which the accounts are maintained, being—
(a) a person in respect of whom a licence under section 9 of the Central Bank Act 1971 is in force, or
(b) a building society within the meaning of the Building Societies Act 1989;
‘fully indemnified' means, in relation to a person—
(a) that, in the case of funds in the form of money, the person has been paid the amount standing to his or her credit on the date that the funds were paid into the dormant account of the funds of suitors of the High Court and any interest accruing from that date, and (b) that, in the case of funds other than in the form of money, the person has been paid the amount standing to his or her credit on the date of their realisation and any interest accruing thereon from that date;
‘general cash account' means the general cash account of the funds of suitors held with the financial institution in the name of the Accountant;".
The purpose of the amendment is a new definition for the type of financial institutions which might hold the accounts of the Courts Service. This is essentially to allow the Courts Service greater flexibility in deciding which financial institutions might handle its accounts. Up to now, the Bank of Ireland has always held the account. That bank has been specifically mentioned in previous funds of suitors and in the Bill as passed by the Seanad. There is no animus or complaint against the Bank of Ireland. It is simply prudent to provide this freedom of choice to the Courts Service.
The second new definition concerns the indemnity to be offered should any loss occur to anyone who holds a dormant account. The proposed definition follows further consultation with the Courts Service and is designed to provide for the first time an explicit definition as to the nature and extent of the indemnity. A third new definition under the proposed amendment relates to the general cash account. It is essentially a drafting point which complements the other proposed changes.
Amendment agreed to.
Section 31, as amended, agreed to.
SECTION 32.
Amendments Nos. 47 to 51, inclusive, are related and will be discussed together.
I move amendment No. 47:
In page 22, lines 19 to 23, to delete subsection (1) and substitute the following:
"(1) The Chief Justice shall, as soon as may be after the commencement of this Chapter, order the Accountant to realise all of the investments of the dormant account of the funds of suitors of the High Court.
(2) The Chief Justice shall, not later than 3 months after—
(a) the expiration of 5 years from the making of an order under subsection (1), and
(b) the expiration of each subsequent period of 5 years from the date on which an order under this section is made,
order the Accountant to realise all of the investments of the dormant account of the funds of suitors of the High Court.".
The proposed new subsections (1) and (2) revise and clarify the previous provision with the regard to the Chief Justice giving an order to the accountant. The reference is now "as soon as may be after the commencement of this Chapter". It is a drafting point. The previous references in subsection (1) as passed by the Seanad to small accounts balances held solely in cash and to the non-realisation of 2.5% of the dormant funds are deleted. This section now deals only with the realisation of non-cash dormant investments. The proposed subsection (2) is a provision to permit for the future realisation of dormant investments on each fifth anniversary of the passing of the Bill.
On amendment No. 48, the general objective of that section remains the same. This provides for the transfer of dormant funds of suitors to the Exchequer with the proviso that they can be used for the benefit of the courts projects. On Committee Stage of the Bill, some Deputies highlighted this as a form of ringfencing. I want to make it clear that these dormant funds are a special case.
The previous Funds of Suitors Act, in allocating funds to certain specified cultural and legal projects, could be considered a form of ring-fencing. This Bill continues that approach but provides now that it should be used for court related projects, all likely to benefit those who need to use such facilities that will receive the funds. The Minister for Finance is agreeable that these funds can be seen as extra for that specific purpose. If he is willing to see it that way then I must do so. I am sure that Deputies will be able to put forward many suggestions to the Courts Service as to what should be done with those moneys. Nonetheless, it is a court function.
The previous reference to the Bank of Ireland, in this section, has been deleted for the reasons that I explained earlier. The proposed provision is that the Chief Justice can direct, from time to time, the amount of the dormant funds to be paid to the Exchequer, as not exceeding 97.5% of the aggregate of the moneys available, effectively providing for a small reserve and for a rolling mechanism to enable the future disposal of all realised dormant funds without recourse to new legislation. This complements the amendment under section 32 providing for the realisation, in the future, of non-cash dormant investments.
With regard to amendment No. 49, the revision of the original section as passed by the Seanad is minimal and essentially of a drafting nature. As has been previously noted, the reference to the Bank of Ireland has been removed and replaced with a generic reference to the financial institution. The reference to the indemnity to be offered to suitors in the unlikely event that funds are not available to meet claims for repayment is shortened. The committee will recall that I proposed to include a definition of indemnity in the definitions section.
On amendment No. 50, the proposed inclusion of a new section requiring the Courts Service to make a public notification of the transfer of dormant funds to the Exchequer is consistent with the provisions of the dormant assets legislation already enacted, the Dormant Accounts Act 2001 and the Unclaimed Life Assurance Policies Act 2003. The four previous Funds of Suitors Acts did not include such a provision. Thus subsection (1) of the new section 35 provides that within three months of the transfer of the value of the dormant funds to the Exchequer the accountant shall make a public notification to that effect in Iris Oifigiúil, in newspapers circulated within the State, the Law Society Gazette or by any other means considered appropriate. The notification procedure will facilitate suitors to make legitimate claims for repayment. The public notification procedure for any subsequent transfers of dormant funds to the Exchequer is made conditional that the amount exceeds €100,000. This is a sensible approach as it might only concern small sums and the expense involved would not be justified.
In subsection (2) the accountant is required to make all reasonable efforts to write to persons with an entitlement to their own funds informing them of its transfer to the Exchequer. In reality, this is unlikely to impose a great burden on the Courts Service as due details are available for most of the dormant account holders. In subsection (3) it is provided that the expenses involved in public notification can be paid from the remaining funds not paid over to the Exchequer.
On amendment No. 51, the new section 36 provides that the accountant should keep a register of the key details with regard to dormant account holders. The proposed new section requiring the Courts Service to keep a register of dormant fund holders is consistent with the reform of the accounting procedures in the courts and the provisions of the dormant assets legislation already referred to. Again, the four previous Funds of Suitors Act did not include a provision for such a register.
This looks to be a matter of accounting. The technical details seem to be in order. Again, it raises the question of ring-fencing. When the Minister persuaded the Minister for Finance to agree that it was extra funding, did he also make any progress on the proceeds of crime legislation? We sought to have the latter ring-fenced in the same way because it was not mainstream funding for the Exchequer. Instead it was additional and came from the Criminal Assets Bureau. It is very desirable to use the windfall funds for the Courts Service's building projects that might not otherwise have been undertaken. I hope the Minister will continue with the precedent that has now been clearly established.
I am now driven back to resorting to the tyranny of consistency argument in relation to all of this.
What kind of money are we talking about? Is it about €10 million?
It is €9.4 million.
I had a quick perusal of the list of amendments and they seem to be in order. To a large degree, we have to trust that the Minister and his officials teased out all of the angles. I have no objection, in principle, to anything that is being proposed here. I hope it all hangs together.
The Deputy has not discovered any objection in principle.
Why is there only 2.5% left in the fund and 97.5% transferred to the Exchequer? Is it a normal accountancy procedure?
The purpose of the 97.5% is because experience has shown that it is unlikely that a claim will be made on the dormant accounts. We want to maximise the use of the moneys. Everybody is covered by an indemnity. Effectively, I could pitch it at 90% or lower but experience has shown that 97% should be enough. Nonetheless, there will continue to be a small amount of moneys called the dormant account. There will always be a continuous process to be triggered every five years to disburse the account.
Amendment agreed to.
Section 32, as amended, agreed to.
SECTION 33.
I move amendment No. 48:
In page 22, lines 28 to 33, to delete subsection (1) and substitute the following:
"(1) The financial institution shall pay out of the general cash account to the Exchequer such sums as the Chief Justice, from time to time, directs, not exceeding 97.5 per cent of the aggregate of the amounts in the form of money standing in the dormant account of the funds of suitors of the High Court and the special account for small balances, as may be required for the purposes of subsection (2).”.
Amendment agreed to.
Section 33, as amended, agreed to.
NEW SECTIONS.
I move amendment No. 49:
In page 22, before section 34, to insert the following new section:
"34.—Where, by virtue of the compliance by the financial institution with a direction under section 33, the funds of suitors are not sufficient to enable suitors to be fully indemnified, the Minister for Finance shall, for the purpose of enabling them to be so indemnified, advance out of the Central Fund or the growing produce thereof such sum as he or she considers necessary.”
Amendment agreed to.
Section 34 deleted.
I move amendment No. 50:
In page 22, after line 46, but before Chapter 2, to insert the following new section:
"35.—(1) The Accountant shall, not later than 3 months after the compliance by the financial institution concerned with a direction under section 33—
(a) first given after the passing of this Act, and
(b) each subsequent such direction where the sums paid to the Exchequer pursuant thereto exceed €100,000,
cause a notice of the payment of the sums to the Exchequer pursuant to the direction to be published in Iris 0ifigiúil, the Law Society Gazette, two national daily newspapers and by such other means (if any) as he or she considers appropriate.
(2) The accountant shall, upon compliance by a financial institution with a direction under section 33, make all reasonable efforts to serve a notice in writing of the payment of the sums to the Exchequer pursuant to such a direction on such persons as have an entitlement to any of the funds for the time being standing to the credit of the dormant account of the funds of suitors of the High Court.
(3) The expenses incurred by the Accountant in complying with this section may where the Chief Justice so consents be paid out of funds standing for the time being in the dormant account of the funds of suitors of the High Court.".
Amendment agreed to.
I move amendment No. 51:
In page 22, after line 46, but before Chapter 2, to insert the following new section:
"36.—(1) The Accountant shall establish and maintain a register of funds of suitors of the High Court (in this section referred to as the ‘register').
(2) The register shall contain the following particulars—
(a) the title of the proceedings to which the funds to which order 77 of the Rules of the Superior Courts applies relate,
(b) the names of the parties to those proceedings and the addresses at which they ordinarily reside,
(c) the ledger account number,
(d) the value of the investments realised in accordance with section 32 on the date of their realisation,
(e) the date on which those funds were paid into the dormant account of the funds of suitors of the High Court,
(f) if those funds were repaid to the ledger account, the date on which they were so repaid,
(g) the account number of the special account for small balances,
(h) the moneys paid over to the special account for small balances, and
(i) such other matters as are provided for by rules of court or the President of the High Court directs.”.
Amendment agreed to.
I move amendment No. 52:
In page 22, after line 46, but before Chapter 2, to insert the following new section:
"37.—This Chapter shall come into operation upon the passing of this Act.".
I shall withdraw my amendment because I said earlier that I was going to deal with it differently.
Amendment, by leave, withdrawn.
Section 35 agreed to.
Deputy Jim O'Keeffe has tabled a series of amendments on the in camera rule.
Does the Minister intend to table proposals?
Yes. I shall table my proposals tomorrow. Will the Deputy withdraw his amendments?
I am happy to withdraw and retable my amendments so that we can have a look at them tomorrow.
I wanted to propose a number of amendments to section 36.
We shall deal with it tomorrow.
I wanted to announce my intention here so that I can table them later.
Sitting suspended at 4.50 p.m. and resumed at 5 p.m.
SECTION 36.
The Minister circulated draft proposals for Report Stage amendments to section 36. As members have not had a chance to consider them, we will postpone consideration of the amendments until Report Stage. However, we will note them now.
Amendments Nos. 53 to 56, inclusive, are related and may be discussed together.
I move amendment No. 53:
In page 23, subsection (2), between lines 28 and 29, to insert the following:
"(a) the disclosure or publication of data or results of research conducted relating to proceedings, or”.
I understand the Minister has tabled amendments to section 36. My amendments may be similar.
They are premature.
I would not say they are premature in that I tabled my amendments first.
Perhaps the Deputy will postpone consideration of his amendments until he has had an opportunity to consider the Minister's amendments.
I presume we may be able to introduce amendments at a later date in light of the Minister's amendments.
Yes.
Amendment, by leave, withdrawn.
I move amendment No. 54:
In page 24, between lines 16 and 17, to insert the following subsection:
"(4) Nothing in this section shall permit the publication or broadcast of journalistic or news reports of a case relating solely to a relevant enactment.".
Amendment, by leave, withdrawn.
I move amendment No. 55:
In page 24, between lines 31 and 32, to insert the following subsection:
"(5) The provisions of the Acts requiring proceedings under these Acts to be heard otherwise than in public shall not prevent parties to such proceedings supplying copies of Orders or extracts from such Orders made in such proceedings to prescribed persons.".
Amendment, by leave, withdrawn.
I move amendment No. 56:
In page 24, between lines 38 and 39, to insert the following subsection:
"(6) The Minister shall by regulations prescribe the categories of persons who may publish reports or data relating to proceedings to which the relevant enactment relates.".
Amendment, by leave, withdrawn.
Question proposed: "That section 36 stand part of the Bill."
I mentioned on Second Stage my intention to table a series of amendments to this section. The amendments relate to the collection and collating of data from the family law courts and the urgency in that regard. I do not believe the legislation as currently drafted prevents that. Article 34 of the Constitution states: "....save in special and limited circumstances as may be prescribed by law, justice shall be administered in public...". That data and its collation would have to comply with the rules in that regard.
The Minister is bringing forward amendments tomorrow.
I wish to deal with that aspect of it and with ensuring people are permitted to attend the court.
The matters raised by the Deputy will be flagged for tomorrow.
Question put and agreed to.
SECTION 37.
I move amendment No. 57:
In page 25, lines 1 to 17, to delete paragraph (a).
This amendment seeks the deletion of paragraph (a) of section 37. There appears to be something of an injustice here which prevents interest on costs, charges or expenses being awarded to a party or payable until the entire proceedings and the taxation process are complete. This would make it possible to drag out the procedure for a long time which is a concern also expressed by the Law Society. The concern is that if the provision was enacted, the defendants would have no incentive whatsoever to encourage the taxation process which could be dragged out over a considerable period of time. It also seems to be a serious injustice to the plaintiff that none of the interest on costs, charges or expenses would be available until the end of the process.
This amendment seeks to delete that section. I do not see why it should be there. It would be preferable to leave it out, especially since the Minister has been arguing that the thrust of this legislation is to expedite the business of dealing with personal injuries claims and cut down on costs.
I am surprised Deputy Costello has accepted the Law Society's view. That society is a wonderful institution, but on this occasion it is wrong. Currently, undetermined liabilities for costs carry interest, even while nobody knows the exact amount payable. It is clearly understood that the amount of a decree carries interest from the date of judgment. However, to give solicitors interest rates of 8%, which is what is involved here, on their costs at a point when they cannot say what their costs will amount to or have not determined them would make a bad situation significantly worse. The Government proposal is that costs should only attract interest when they are quantified and crystallised in a certain amount. That is much fairer than the current unjustified situation which provides quite a bonus, 8%, to solicitors on an undetermined liability for costs.
I am not sure I agree with the Minister's reading of it. Section 37 states that interest on the amount of costs and charges shall not be payable, etc. That means that the interest accumulates until it is paid and will not be payable until the amount is agreed by all the parties — a delayed process — or in default of agreement, until a date on which certificate of taxation etc. is provided. Therefore, the payment of interest will, potentially, be dragged out which will create the very problem the provision is intended to prevent. If there is an 8% interest provision——
It is 2% at the moment but it would be 8% if I accepted Deputy Costello's amendment. An unintended consequence of his amendment would be a 6% bonus to solicitors.
Can I get clarification on this? If the interest will not be payable until the amount is agreed by all the parties, what incentive is there to agree it? Is it not likely the interest will be allowed to accumulate and that there will be no agreement?
The truth is that if costs are awarded to one party, there is a phase during which they can either sit down and agree the costs or one party may bring it to taxation and force the other party to pay at the end of a taxation process. If a person is on the losing side in these cases and must pay costs, taxation is not an attractive option because the taxation costs must also be paid. There is no percentage for a defendant in dragging out the ascertainment of costs.
Is there a percentage for a plaintiff? The plaintiff will get nothing in this procedure. Is he or she not going to be deprived of his or her interest?
They will get their judgment. The interest is on the solicitor's costs. Most plaintiffs could not give ——
It is interest on the amount of costs, charges or expenses awarded to a party. It is not just to a solicitor.
They are not the damages.
What about the plaintiff? Surely he or she suffers.
The damages are not covered by this. It is all the trimmings that attract interest.
The section uses the phrase, "Subject to section 23 of the Act, interest on the amount of costs, charges or expenses awarded to a party".
Yes, but it does not mean damages.
It appears the Minister is saying the actual award is payable forthwith and that what we are talking about——
The damages attract the judgment rate of interest from the moment they are awarded.
Does this provision affect the plaintiff at all?
Not personally, it affects his advisers, etc.
Amendment, by leave, withdrawn.
I move amendment No. 58:
In page 25, subsection (3), line 28, to delete paragraph (b).
I do not agree with this amendment because it would mean that the new interest rate would only apply to actions brought after the commencement of the section. The rate should also apply to pending actions.
Amendment, by leave, withdrawn.
Section 37 agreed to.
Section 38 agreed to.
NEW SECTION.
I move amendment No. 59:
In page 25, before section 39, to insert the following new section:
"39.—Section 27 of the Court Officers Act 1926 is amended by the substitution of the following subsections for subsections (1) and (2):
‘(1) In the event of the temporary absence or the temporary incapacity through illness of any Taxing-Master or in the event of the office of any Taxing-Master being vacant the Courts Service may appoint a deputy to execute the office of such Taxing-Master during such absence, incapacity or vacancy.
(1A) In any of the following cases, namely—
(a) the temporary absence or the temporary incapacity through illness of the Master of the High Court,
(b) the office of the Master of the High Court being vacant, or
(c) any other case in which the Courts Service considers it desirable that the following power be exercised,
the Courts Service may appoint one or more than one deputy to execute the office of the Master of the High Court or, as the case may be, to execute such office concurrently with the Master of the High Court.
(2) A deputy appointed under this section shall while his appointment continues have and exercise all the powers and authorities and shall perform and fulfil all the duties and functions of the officer whose deputy he is—
(a) in a case falling within subsection (1) or subsection (1A)(a) or (b) of this section, in place of their being exercised, performed and fulfilled by that officer, and
(b) in a case falling within paragraph (c) of subsection (1A), concurrently with their being exercised, performed and fulfilled by that officer.'.".
The purpose of this section is to allow the Courts Service to appoint additional deputy masters of the High Court to alleviate the workload on the master. At the moment such deputies can only be appointed in circumstances which will apply to the taxing master under the new subsection (1). The essential new element for the appointment of deputy masters of the High Court is that this can now be done, not only when the master's office is vacant or he is incapacitated, but also when the Courts Service considers it desirable to do so.
Amendment agreed to.
SECTION 39.
Question proposed: "That section 39 stand part of the Bill."
I will put a minor Report Stage amendment on this section.
Question put and agreed to.
Section 40 agreed to.
SECTION 41.
Question proposed: "That section 41 stand part of the Bill."
What does section 41 do?
Section 41 deals with the Registration of Title Act. Now that rateable valuation has generally been abolished, a market value is being substituted as the threshold for determining whether property falls within the remit of the Circuit Court and the High Court.
Therefore, anything under €3 million is dealt with in the Circuit Court.
Question put and agreed to.
Sections 42 and 43 agreed to.
NEW SECTION.
I move amendment No. 60:
In page 27, before section 44, to insert the following new section:
"44.—(1) The Courts (No. 3) Act 1986 is amended by the substitution of the following section for section 1:
‘1.—(1) Proceedings in the District Court in respect of an offence may be commenced by the issuing, as a matter of administrative procedure, of a document (in this section referred to as a "summons") to the prosecutor by the appropriate office.
(2) The issue of a summons may, in addition to being effected by any method by which the issue of a summons could be effected immediately before the enactment of section 44 of the Act of 2004, be effected by transmitting it by electronic means to the person who applied for it or a person acting on his or her behalf.
(3) An application for the issue of a summons may be made to the appropriate office by or on behalf of the Attorney General, the Director of Public Prosecutions, a member of the Garda Síochána or any person authorised by or under an enactment to bring and prosecute proceedings for the offence concerned.
(4) The making of an application referred to in subsection (3) of this section may, in addition to being effected by any method by which the making of an application for a summons could be effected immediately before the enactment of section 44 of the Act of 2004, be effected by transmitting it to the appropriate office by electronic means.
(5) Where an application for the issue of a summons is made to—
(a) an office referred to in paragraph (a) of the definition of "appropriate office" in this section, the summons may, instead of its being issued by that office, be issued by an office referred to in paragraph (b) of that definition, or
(b) an office referred to in paragraph (b) of that definition, the summons may, instead of its being issued by that office, be issued by an office referred to in paragraph (a) of that definition.
(6) A summons shall—
(a) specify the name of the prosecutor who applied for the issue of the summons,
(b) specify the application date as respects the summons,
(c) state shortly and in ordinary language particulars of the alleged offence, the name of the person alleged to have committed the offence and the address (if known) at which he or she ordinarily resides,
(d) notify that person that he or she will be accused of that offence at a sitting of the District Court specified by reference to its date and location and, insofar as is practicable, its time, and
(e) specify the name of an appropriate District Court clerk.
(7) For the avoidance of doubt, particulars of the penalty to which a person guilty of the offence concerned would be liable are not required to be stated in a summons.
(8) Where the issue of a summons is effected in accordance with subsection (2) of this section, references to an original summons in any enactment relating to the service of summonses shall be construed as references to a true copy of the summons.
(9) In any proceedings—
(a) a document purporting to be a summons shall be deemed to be a summons duly applied for and issued, and
(b) the date specified in the summons as being the application date shall be deemed to be such date,
unless the contrary is shown.
(10) In any proceedings in which the issue of a summons was effected in accordance with subsection (2) of this section, a true copy of the summons shall, unless the contrary is shown, be evidence of the summons concerned.
(11) A summons duly issued under this Act shall be deemed for all purposes to be a summons duly issued pursuant to the law in force immediately before the passing of this Act.
(12) Any provision made by or under any enactment passed before the passing of this Act relating to the time for making a complaint in relation to an offence shall apply, with any necessary modifications, in relation to an application under subsection (3) of this section.
(13) The procedures provided for in this section in relation to applications for, and the issue of, summonses are without prejudice to any other procedures in force immediately before the passing of this Act whereby proceedings in respect of an offence can be commenced and, accordingly, any of those other procedures may be adopted, where appropriate, as if this Act had not been passed.
(14) In this section—
"Act of 2004" means the Civil Liability and Courts Act 2004;
"application date" means, in relation to a summons, the date on which the application for the issue of the summons was received by the appropriate office;
"appropriate District Court clerk" means, in relation to a summons, a District Court clerk assigned to any district court area in the district court district in which a judge of the District Court has jurisdiction in relation to the offence to which the summons relates;
"appropriate office" means, in relation to a summons——
(a) the office of any District Court clerk assigned to any district court area in the district court district in which a judge of the District Court has jurisdiction in relation to the offence to which the summons relates, or
(b) any office of the Courts Service designated by the Courts Service for the purpose of receiving applications referred to in subsection (3) of this section;
"prosecutor" includes a person acting on behalf of the prosecutor;
"summons" has the meaning assigned to it by subsection (1);
"true copy" means, in relation to a summons the issue of which was effected in accordance with subsection (2), a document that purports to be a reproduction in writing of the summons certified by the prosecutor as being a true copy thereof.'.
(2) This section shall come into operation upon the passing of this Act.".
This amendment proposes to insert a new section which effectively deals with the commencement of proceedings by a method other than the current administrative method. It will provide that proceedings in the District Court in respect of an offence can be commenced by the issuance of a document. It will provide a new method for a summons to issue designed to support the new points system. We will have a centralised electronic issuance of summonses as part of a routine process and whoever is running the points system will be able to apply for summonses against people who have not paid on the spot fines etc.
Amendment agreed to.
Sections 44 to 48, inclusive, agreed to.
SECTION 49.
I move: "That section 49 be deleted".
Question put and agreed to.
SECTION 50.
I move amendment No. 61:
In page 30, paragraph (a), line 28 to delete “shall” and substitute “shall,”.
This is a drafting amendment to insert a comma. I wish to indicate to the committee that regarding the register of reserved judgments, I will be introducing an amendment suggesting a two month period after which reserved judgments must be listed. We will provide that if this happens during vacation, the listings shall be as soon as possible after that.
Amendment agreed to.
Amendments Nos. 62 and 63 are cognate and may be discussed together.
I move amendment No. 62:
In page 31, paragraph (c), line 9, to delete “The” and substitute “the”.
This is a spelling change.
Amendment agreed to.
I move amendment No. 63:
In page 31, paragraph (c), line 10, to delete “The” and substitute “the”.
Amendment agreed to.
Section 50, as amended, agreed to.
NEW SECTION.
I move amendment No. 64:
In page 31, after line 20, to insert the following new section:
"52.—(1) The Courts and Court Officers Act 1995 is amended by—
(a) the substitution of the following section for section 9 (inserted by section 2 of the Courts and Court Officers (Amendment) Act 2003):
‘9.—The number of ordinary judges of the High Court shall not be more than 31.',
(b) the substitution of the following section for section 10 (inserted by section 27(1) of the Act of 2002) of section 11:
‘10.—The number of ordinary judges of the Circuit Court shall not be more than 33.',
and
(c) the substitution of the following subsection for subsection (1) (inserted by section 27(1) of the Act of 2002) of section 11:
(1) The number of judges of the District Court in addition to the President of the District Court shall not be more than 54'.'
(2) This section shall come into operation upon the passing of this Act.".
This amendment provides for the appointment of eight additional judges, three judges of the High Court, three judges of the Circuit Court and two judges of the District Court. The appointment of these additional judges will speed up the hearing of cases in each of the courts concerned and will reduce delays in the delivery of judgments. The additional judicial resources being provided will greatly enhance the capability of the courts to deal with an ever increasing work load, both in terms of civil and criminal business. The provision of additional High Court judges in particular, will, I hope, assist in further reducing delays in the Central Criminal Court which deals with murders and rapes. It will make it possible to expedite trial in the Special Criminal Court and will speed up judicial reviews which are in arrears at present.
Will there be an opportunity to speak on that amendment tomorrow?
There will be an opportunity on Report Stage if the Minister allows. That new section relating to amendment No. 64 will be available for discussion on Report Stage tomorrow.
Amendment agreed to.
Title agreed to.
Bill reported with amendments.
I thank the Minister and his officials for attending this meeting and the members of the committee who helped the committee in its work this afternoon.