Select Committee on Legislation and Security debate -
Thursday, 7 Dec 1995

SECTION 46.

Mr. O'Donoghue

I move amendment No. 42:

In page 22, subsection (1), line 17, after "fees" to insert "but not in any case when Ireland and the Attorney General or any member of the Government sued in his capacity as a member of Government is a party to the proceedings".

This amendment ensures that the Minister or the Government will not interfere with the setting of fees where they were the defendant in an action. It is incongruous and unjust that a party to the proceedings would subsequently be a party to deciding the fees. This argument speaks for itself and there is no need to elucidate it any further.

Mrs. Owen

This amendment seeks to treat the State and members of the Government in a different way from any other person or body and I am not sure if that is appropriate. Over the years the trend has been that the State and a Minister acting in his or her official capacity is treated like any other defendant or party to an action. Like any other party, the State takes what it gets in that situation, which is appropriate.

I understand there may be concern that a Minister may, to some extent, be a judge in his or her own cause when deciding making cost rules under this section. Rules would apply in all cases and not only to those where the State is a party. I do not believe it is proper to absolve the State and Ministers from rules and to treat them differently from other defendants. A Minister making cost rules would have to act fairly having regard to the Constitution. In the numerous cases relating to State authorities acting judicially, any Minister who acted in a capricious or unjudicial way would be subject to a judicial review.

There would be practical difficulties with this amendment. What would happen if there were different defendants, including the State, in an action? Would the State be liable for different costs from the other unsuccessful parties or would it be more financially advantageous for a successful plaintiff to pursue the State rather than the other unsuccessful party or parties? What costs would the State be required to pay and would they be higher? Would that be fair to taxpayers? This opens up the vista of an unequal system. I cannot accept the amendment because it would cause inequality.

Mr. J. O'Keeffe

It appears that we are talking about making general rules not relating to a particular case. I understand Deputy O'Donoghue's point but I am not sure if it would be appropriate when making general rules in relation to cases that we should apply a restriction on any party. There cannot be an abuse of power when making general rules.

Mr. O'Donoghue

I was making the point that where the State is the defendant it becomes a judge in its own cause. The State is then treated differently from any other litigant in that no other defendant has the right to interfere in the question of fees. With deference to the time factor, I will withdraw the amendment.

Amendment, by leave, withdrawn.