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Special Committee Registration of Business Names Bill, 1963 debate -
Wednesday, 24 Jul 1963

REGISTRATION OF BUSINESS NAMES BILL, 1963

In accordance with the Order of the Dáil of 16th July, 1963 the Special Committee proceeded to consider the amendments in respect of which the Bill was recommitted to it.

Amendment No. 7 appears to be consequential on amendment No. 1. I suggest we take them together.

I move amendment No. 1:

In page 2, line 33, to delete " rules " and substitute " regulations ".

Deputy Sweetman raised the point that in the interests of consistency, and having regard to the use of the word " regulations " rather than " rules " in modern legislation, we should not use the word " rules ". I have agreed to that and I am moving this amendment to meet that suggestion.

I am grateful to the Minister.

Amendment agreed to.

I move amendment No. 2 :

In page 4, between lines 50 and 51, to insert a new subsection as follows:—

" (4) Rules of Court shall provide for the making of applications to the High Court under this Act."

There is no provision anywhere in this Bill about the procedure to be adopted in the case of applications to the courts. In subsection (3) of Section 5, there is a reference to the High Court. I think there must be some stipulation in the Bill in regard to the making of applications to the High Court. I do not think the court has power to make rules under the general powers contained in the Courts of Justice Act. I do not know whether this was adverted to when the Bill was being drafted. I should be glad to hear an explanation.

The Deputy adverted to this on Committee Stage. He did not pursue his amendment and I agreed to make inquiries as to whether it was necessary to introduce an amendment such as this. I have been advised not only by the draftsman but by the Department of Justice that it is not necessary in a particular case like this to provide that rules of court shall be made in order to enable applications to be made to the court under the provisions of the Act. The court has power to make the rules—its rule-making committee have power to draw up the rules and, if necessary, rules will be made to provide for the Bill we now propose to have passed. I would say, too, although it is only a small point, it would be unusual to put in by way of a subsection to one section of the Bill a general provision governing rule-making in connection with the whole Bill. I would have, of course, made a suitable suggestion to cure that if I had thought it necessary. I am advised by two sources that it is not.

If the Minister is advised that it is not necessary, I am quite happy, but the comment I have quoted came from a barrister practising in the courts.

Amendment, by leave, withdrawn.

I move amendment No. 3 :

In page 5, line 25, before " carried " to insert " normally ".

On the last occasion, Deputy de Valera and one or two other members of the Committee raised the question of whether the carrying on of a business was too simple a statement in order to cover a particular location. There was specific reference to a newsboy standing at a corner. In order to overcome that special requirement, the provision now will be that the certificate of registration shall be displayed in the place where the business is normally carried on.

Amendment agreed to.

I move amendment No. 4 :

In page 6, line 3, after " that person " to insert " or, in the case of an individual who dies, of his personal representative ".

This amendment is to meet the suggestion by Deputy Sweetman that certain obligations imposed by Section 12 of the Bill on a person who ceases to carry on business should pass to the legal personal representative when that person dies.

Amendment agreed to.

I move amendment No. 5 :

In page 6, between lines 36 and 37, to insert a new section as follows :—

" (1) A person carrying on business under a business name which is not registered may at the option of a plaintiff be sued under such business name and service of a summons or other originating document or any other document in legal proceedings may be served either upon the person so carrying on business by sending the same addressed to the person under the business name or upon any person having at the time of the service control or management of the business at the place where it is carried on and such service shall be good service upon the person so sued whether the person is out of the jurisdiction or not and no leave to issue the summons or other originating document shall be necessary.

(2) Where under subsection (1) of this section a plaintiff sues a person under his business name, he may apply to the Court for an Order directing any person or persons named in that order in the employment of the business to furnish on oath the name and address of the person carrying on the business at the time of the accruing of the cause of action and verified on oath or otherwise as the Court may direct."

This is a repetition of an amendment I moved on the last occasion when the Minister made the point that it was perhaps outside the scope of the Bill. I had the opportunity since of discussing the matter with a good many practitioners and I put down the amendment now in the hope that I will persuade the Minister to accept it. Even if I do not, I may be making it clear to him that the universal opinion of anyone with whom I have discussed the matter is that something like this is necessary if the Bill is to be effective at all—that without some method of providing a service on an unregistered business, there will be such a delay in trying to enforce registration as to mean that there can be much avoidance of liability.

I do appreciate—although I do not agree with it—that there is a case to be made that this is merely a matter of service and that accordingly it should be incorporated in another statute, but if that is the case, I would urge the Minister very strongly to prevail on the Minister responsible—I presume, the Minister for Justice—to arrange that perhaps a rule-making authority would provide something along those lines because without it we will not have effective operation of trading under business names.

I should like to repeat what I said on the last occasion, that the service of documents instituting proceedings is a general matter, one that would not be proper to this Bill, even though the intention in the amendment would be to provide for service on a business name, so to speak. As I undertook on the last occasion, I have had this examined in conjunction with the Department of Justice and they have borne out my opinion of the situation. They have agreed to examine it themselves and to have it submitted to a rule-making committee. These committees meet not too frequently. Whether or not they meet at irregular intervals, or according as they are summoned for specific purposes, I do not know. In any event, the Department of Justice Rules Committee will look into the desirability of the point raised by Deputy Sweetman and, if they see fit, decide accordingly.

I am obliged to the Minister. I would point out that what I was providing was not merely service but also the name of a party as well. That would be slightly greater than that. In view of what the Minister has done, I shall withdraw the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 6 :

In page 6, line 37, to delete " Minister " and substitute " Registrar ".

We had this discussion also on the Companies Bill. I had a similar amendment down to that Bill. I want to be able to ensure that we get speedy decisions. It is probable, I would say, that if there is to be the reference back we shall not get these speedy decisions. Having regard to the fact that the legislation is subject to appeal to the court, I think it is better to have it done by the Registrar rather than by the Minister. If the Minister does it, he will delegate it, I hope, to the Registrar so why not give it to the Registrar from the very beginning ?

There is one objection there and that is that the Registrar will be confined largely to formal matters. The Minister will be able to take all circumstances into account. In the matter of delay, if the Registrar has to go into all relevant circumstances—such as where there is a different reason why that name should not be allowed, where there are other people with an interest, and so on—by the time he would decide that, he would be just as slow as the Department.

Are we in Committee or on Report ?

We are in Committee.

We are in Committee dealing with Report amendments which have been recommitted to us. Members may speak more than once.

The practice in relation to the Companies Bill is that you get an answer within 48 hours as to whether or not the name of a company is available.

It is different here. In the case of a company, it is a very formal matter and you have a number of names. In the case of business names, it may be anything and you need a rather big organisation quickly to check. I cannot ad hoc make you a case now about what I have in mind.

Can the Minister indicate, if it is being retained by him, what powers he would propose to delegate ?

Initially, the intention is to give general directions to the Registrar as to the types of names we ought to exclude. He will be free to act within that general direction. He will make his decision which will be the decision of the Minister. In the event of something unusual or something peculiar or something which he feels his general directions do not cover, he may then have recourse to the Minister in particular instances. In that way, it is envisaged that there would be no avoidable delay. I suggest that Ministers do act reasonable expeditiously. That is a particular attribute of the Minister for Industry and Commerce, irrespective of who the incumbent for the time being is.

Deputy Norton will concur in that.

Furthermore, this is a responsibility of the Minister. The Registrar is an officer of the Minister. He acts in all cases as such and, therefore, he acts in the name of the Minister with the full authority of the Minister. It would be unusual to have a right of appeal from a decision of the Registrar which is, in fact, a decision of the Minister, to the Minister himself. I am satisfied that the arrangements we shall make will ensure that all these matters will be dealt with very expeditiously. Therefore, I suggest the amendment is not——

On the undertaking that these matters will be dealt with very expeditiously, regardless of whoever may be Minister——

I cannot speak for my successors but I think I can speak for the performance of my predecessors. In matters like this, I think decisions are made very quickly.

So long as we are sure the habits of certain other Departments are not transferred—we shall not say which ones they are. I have a letter from one which answers a letter sent eleven years before—not from the Department of Industry and Commerce, I must say.

Amendment, by leave, withdrawn.

Amendment No. 7 has already been discussed in conjunction with amendment No. 1.

I move amendment No. 7 :

In page 7, line 21, line 30, line 32, line 33 and line 34, to delete " rules " and substitute " regulations ".

Amendment agreed to.

I move amendment No. 8 :

In page 7, line 38, after " letters " to insert ", circulars and catalogues ".

This amendment is designed to meet points raised by a number of members of the Committee on the last occasion to the effect that proprietors' names should be shown on certain documents in addition to letters—that they should also be on circulars and catalogues since these often induce people to do business, and, therefore, they ought to know at that stage with whom they are dealing. I think the amendment meets the points generally agreed by the Committee on the last occasion.

May I raise one dissenting voice here ? Is, for this purpose, a periodical, whether it is a monthly, weekly or daily periodical, a circular within the meaning of this amendment—because it is not customary in such recurrent cases ?

I do not know what the legal effect might be but I can say definitely it is not envisaged.

It is the legal content of it that I am speaking of Take a case which is fairly common—something corresponding to what would be like a circular enclosed with such periodical distribution, whether it is a magazine, newspaper or any other periodical publication which is published generally and can be bought as such. Is it envisaged here, because it would not be normally, to have that ?

You have the law about imprint which requires that an imprint will be on such documents identifying them. This even goes down to election literature. For instance, I do not know that the political Parties have so far advanced as to become businesses. But if a political Party, for instance, were to be incorporated, all its election literature would be captured by this. Therefore, it would require to carry the names of whoever were the executives, and so on. I know that these are legal consequences of the word " circular " but I should like to refer to them now.

This amendment was put in by the Minister to meet an amendment I had down the last day. I am obliged to the Minister. Notwithstanding Deputy de Valera's observations, I think it is a good amendment.

I thoroughly agree with the aim of Deputy Sweetman in this but I am just wondering if it is capturing more than he intended.

No. It is capturing slightly less. I think Deputy Sweetman's amendment also provided for show cards.

I was persuaded by the Minister that they were undesirable.

To deal with Deputy de Valera's point, political Parties are unlikely ever to qualify for the description of business in connection with this Bill.

Some lawyer may think of that point.

It is possible that a circular could be distributed with a periodical. We have all seen it—a perforated part of the magazine which proceeds to make contact with a business as a result. There is no doubt that would be a circular.

Inside a monthly magazine there may be a tear-off order strip and the usual promotional matter asking you to order. According to the spirit of this, certainly the information here must be on that card.

Surely there will be something in the magazine in relation to it?

Not always. You very frequently have the name of the editor in popular magazines. In serious technical magazines, you usually have the editor and a list of the editorial board, but not necessarily the directors—the business side.

Is not every magazine published by a company ?

Usually, I agree.

Only in the event of their trading under the business name are they required to put in the names.

Supposing a company is trading under a business name, would it not be sufficient to have the name of the company ? You are providing in the section for the names and initials of every director, etc.

There is a section somewhere in the Bill which says that if Irish Press Ltd. carry on business as Izvestia, you have only got to put under the heading Izvestia the “Irish Press Ltd.”

Section 18, sub-section (1) (c).

I like the Deputy's comparison. Am I to answer that one in kind ? As it has been mentioned, let us take the Irish Press as an example. Suppose a newspaper issues a supplement. On that supplement will be found a name identifying it and it may have nothing else. In fact, that happened this very week. Is it necessary under the new law that the full canonical particulars should go on that even though it is enclosed ?

Does the Deputy mean it was a supplement ?

It is a circular in a sense.

A circular by the publisher of the main document ?

Supposing a shop sends out half a dozen separate sheets, I do not think you need put them on each one.

Paragraph (c) of subsection (1) certainly by implication says you simply use the name of the limited company.

I do not know whether the Independent and the Irish Press have separate companies for their evening papers. The Evening Herald is published by Independent Newspapers Ltd. and the Evening Press is published by Irish Press Ltd. As long as they put that in, is that not all that is necessary ?

I mentioned newspapers in the wider sense but I was thinking of periodical magazines with an inserted circular. Probably you would decide you have no objection.

If the company publishing the magazine are incorporated, they will have their corporate name.

I am not objecting to this provision. I merely wanted to amplify what is involved in it.

It is not intended that every single piece of paper sent out in the one wrapper wil have the information on it. If a person gets through the post a communication, the intent is that in some part of that communication there will be something to show whom he is entitled to hold liable for delivering the promises contained in the communication.

Amendment agreed to.
Bill reported with amendments.

The suggested report of the Committee is as follows :

The Special Committee has gone through the Bill and has made amendments thereunto. The Bill, as amended, is reported to the Dáil.

I move an amendment :

That the words " considered " and " thereto " be substituted for the words " gone through " and " thereunto " respectively.

The form of this Report is one that has been used for 40 years.

It is time it was brought up to date.

Amendment agreed to.
Report, as amended, agreed to.
The Special Committee concluded its business at 11.40 p.m.
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