THE DAIL IN COMMITTEE. - THE COURTS OF JUSTICE BILL, 1923.—THIRD STAGE RESUMED.
Section 46 put and agreed to.
SECTION 47.
The Circuit Court shall be a Court of Record.
I move amendment No. 11:—
"To delete the Section."
I put down this amendment, not because I want to destroy the Bill, but because I should like a little information on this point. I have been discussing the Bill with several solicitors and I find that in almost every case they give a different interpretation to this Section, that is, a different interpretation of how it would be and how it would work. I gathered that the intention is that the Circuit Court should be a Court in which when no defence is entered, judgment is given without the case being pleaded in Court at all. In the present case in the County Court it is necessary for you to have your Counsel to put your case and plead your case, even if the defendant does not appear. If the Court is a Court of Record these things will be done simply in the office. If no evidence is tendered it will be done in the office, and the decree will be issued. I think that is an admirable provision. I should like a little information about the machinery, how this is to be done. Is our Circuit Court to have a Central Registry, where this work will be done, or is it to be done by Clerks of the Peace in each separate county, as it was more or less done in the past?
I think the Central Registry, if that is contemplated, will not work very well. Take the North-East Circuit, to which Deputy Redmond referred. Presumably it will be fixed at some central point, say, Navan or Naas. In that event a solicitor in Dundalk, who does not want to come to Navan or Naas to get things registered, would sooner come to Dublin, and if it is the intention of the Government to have a Registry of this kind in each Circuit I think it would be advantageous to have also an alternative Registry in Dublin, with the right to register, because every solicitor in the country has an agent in Dublin to act for him.
This Section is deemed to be of very great importance, in every respect, and the suggestion to delete it cannot, of course, be accepted. It makes the Court a Court of Record with power to punish for contempt, and it is deemed necessary that the Circuit Courts should have this power which the County Courts had. Moreover, the question of a Court being a Court of Record is of very great importance, having regard to the law of estoppel, and I understand there may be a General Registry.
In these circumstances I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Section put and agreed to.
SECTION 48.
The Circuit Court shall have and exercise the following jurisdiction in civil cases:—
(i) On consent—Jurisdiction without any limit as to amount of claim or value of property involved in the proceedings of the Court where all necessary parties sign, before the hearing, the form of consent prescribed by the rules to be made under this Part of this Act; such consent may provide that the decision of the Circuit Court shall be final and conclusive, in which case the decision shall not be appealable.
(ii) In Contract and Tort (save matrimonial and criminal conversations actions)—Jurisdiction when the claim does not exceed £300.
(iii) In Title to Land and Rectification of the Register—Jurisdiction when the Poor Law Valuation of the property in question does not exceed £60.
(iv) In Probate matters and actions, and Actions for Administration of Estates—Jurisdiction when the value of the personalty does not exceed £1,000 and the Poor Law Valuation of the realty does not exceed £60.
(v) In Equity (including winding-up of companies)—Jurisdiction within the same limits as in the preceding Sub-section (iv) and in winding-up cases where the issued capital of the company does not exceed £10,000.
Provided that nothing herein shall take away or prejudice the right of any party to any action to have questions of fact tried by a jury of twelve members, in such cases as he might heretofore of right have so required, and with like directions as to law and evidence, but the provisions of Section 24 hereof shall apply to any such trial before a Circuit Judge and jury.
I beg to move an amendment in Sub-section (ii) to delete "£300" and to substitute therefor "£100."
I notice that there are several other amendments put forward by other Deputies on this very point, but the figures are not actually the same. I hope to be able to give the Committee my reasons, both for moving the amendment and also for the figures that I have chosen. My main object in moving this amendment is to render this Section more in conformity with the rest of the general scheme of the Bill. As will be noted, the rest of the Bill provides that, in all other forms of jurisdiction which shall be exercised by these Circuit Courts, the jurisdiction shall be doubled. The whole general scheme of the Bill seems to me to be a process of duplication in the matter of title to land and the rectification of the register. Where the poor law valuation of the property in question did not originally exceed £30 it was possible to have the matter dealt with in the County Court. That sum of £30 has now been raised to £60 in probate matters and actions for the administration of estates, and also in what are known as equity suits a similar course has been adopted. In equity suits and probate matters, the personalty did not exceed £500, and the realty £30 under the old system. It is now proposed to increase the jurisdiction to £1,000 and £60 respectively, and furthermore the number of Judges has been reduced from 16 to 8, thereby doubling the area over which they are to have jurisdiction. It, therefore, seems plain that the whole object of the Bill is a method of duplication, and I cannot understand why, in matters of contract and tort, the proposal is not to duplicate but to multiply actually six times the present jurisdiction.
My further object in moving this amendment is, in my opinion, at any rate, to render the Act more workable. It may be said that £100 to-day is not what £100 stood for at the time of the framing of this old County Courts (Ireland) Act. That is perfectly true, but if it applies to the case of jurisdiction in tort and contract, I ask why it is not also applied in the other cases that I have referred to. It is true that the jurisdiction has been six times multiplied. That is a great departure from the previous judicial system, and here perhaps I may be allowed to say that though I and those associated with me may be taunted with a certain tinge of conservatism in this regard, I claim at any rate to be conservative of what I consider to be worth conserving, and I fear that throughout the whole of this Bill a spirit is manifesting itself of a desire for change merely for the sake of change. Now there are Conservatives and there are Radicals, but there are Conservatives who always want to preserve the existing state of affairs, and there are, equally, Radicals who always desire a change. I take my stand between the two, and I say that I desire, not so much to see the new system introduced, as to see the old system improved and brought into line with modern conditions and requirements. After all we have adopted, and I think very rightly, the British Common Law system and the Statutes which have been passed at various times, to have that system properly put into operation, subject to any repeal that we may so desire, as the bedrock of our judicial system here in this country. We have not gone back to the Brehon Laws; neither have we adopted the Napoleonic Code, and I, therefore, maintain that the system which has proved effective in England through proper administration there, would, properly administered here with the necessary alterations which I have already alluded to, be the best system for the future judicial control of our country. That being so I desire to move this amendment which, to my mind, will improve that system, but which will not make such a difference between the new and the old as to render the new a mere creature of experiment instead of being an improvement and an adaptation of a tried method.
It has been said that by the increase of this jurisdiction in tort and contract in the Circuit Courts that we will have cheap law. Cheap is a small word very largely used and very largely misused also. Cheap is an entirely relative term. One article may be cheap at a certain price, another article of a similar kind may be very dear at the same price, but what I want to impress, if possible, upon the Committee is this: that because the initial stages of the legal procedure outlined by this Bill in the future Circuit Courts may be less costly at the moment, that in the end they may be far more expensive both to the litigant and to the members of the legal profession. We hear a great deal about the establishment of local Bars throughout the country. Well, I do not think that the comparison between Manchester, Liverpool and some of our local country districts in Ireland is quite on a parallel. After all, within a few miles of Manchester, say a radius of 20 miles of that city, you have a population as large, if not larger, than unfortunately we happen to possess in the whole of the Free State, and to suggest that local Bars are going to spring up in remote country districts in Ireland where litigants and solicitors will obtain the best legal experience and legal knowledge is a suggestion that I contend does not hold water.
Perhaps it might be no harm for me to say here that many people do not realise the exact nature of a barrister's work. The law is there, it is true, but the law is not a fixed quantity or a fixed entity by any means. It is always changing. Judges are placed on the Bench to interpret the law, and from day to day and hour to hour different interpretations are made and new decisions are come to. As long, therefore, as what is known technically as case law exists and shall be the guiding spirit and actual method used by our Judges and our Bench, I say that it will be impossible for members of local Bars in Ireland to be sufficiently equipped in legal knowledge and to be up in all the requirements to bring about not bad but good law. That being so, I feel that to propose that all matters of contract and tort should be dealt with to the extent of £300 by these Circuit Judges makes for bad law and renders very serious the danger of not securing good law in the country.
Then take the position of solicitors. Previous to the passage of this Bill solicitors had prepared their cases, naturally small ones, under the past jurisdiction in rather a hurried fashion. They have not either had the time nor have they had the interest for using every endeavour to secure what would really amount to a first class High Court trial of every action that is brought into the Country Court. But what will be the case under this Bill? Every solicitor in every little bog case in Ireland will have to make sure that he leaves no stone unturned, that he calls up every possible witness and goes to every possible expense, that he has maps and drawings and expert evidence on questions of right-of-way or trespass in every little twopenny-half-penny case that arises; and I say that will not make for cheapening the law, but will, in effect, convert every small case in which but very few pounds are involved, into a High Court action.
Then we have the question of the official stenographers. They are to take down reports of all these cases under £300, and I say, we do not know, so far, what the cost of these stenographers is going to be.
There is also the question of where the records are to be kept, and the cost of keeping these records. Therefore, I would impress upon the Dáil that in this, as in many other institutions, the devil you know is better than the devil you don't know, and it is far better to keep as close as we can to the existing system, with all necessary changes, than to make such an extraordinary, sweeping departure as is proposed by this Section.
I notice—and this I think has a direct bearing upon this amendment— that it is proposed in Section 3 that "Commissioners of the High Court Circuit shall mean such Judges or other persons," and a definition is given therein. Then later on the same Commissioners are referred to in Section 36, where the rule-making power has already been given to certain people. I do not notice in any portion of the Bill any power to set up these Commissioners. What I would like to know is this: Is it the intention of the Government to set up these Commissioners? If it is their intention to set them up they will have to go down to the country as did the old Judges of Assize. They will have to hear the criminal cases which are excluded by this Bill from the Circuit Courts. If that is so I would seriously suggest to the Government, that having these learned judges going down the country engaged upon what I hope will be very few serious criminal cases, it would be wise also to allow them to hear appeals from the Circuit Courts in matters at any rate under £100. I would like if the Government could possibly consider that suggestion. If these Commissioners in substitution for the old Judges of Assize are never to be brought into being, then what will occur will be that all serious criminal matters, such as murder and the more serious forms of felony, will have to go before the High Court, necessitating the bringing up from the country of witnesses and of all the various accessories to such proceedings. Therefore, it will be thrown upon Dublin courts and Dublin juries to try all serious criminal cases throughout the country. I do not think really that that would be fair to Dublin juries, and I do not think they would regard it as such. But if that is the intention of the Government I would certainly like to know it.
I think that in regard to this multiplication of contract and tort a great deal too much is expected of it. It is true that we have now provided that applications may be made to have cases taken in the High Court, but after all the question of costs must be taken into consideration, and no solicitor will lightly, at any rate, take proceedings in the High Court when he runs the risk, if he loses his case, of being mulcted for costs. I do not intend to detain the Dáil much longer though this, I think, is probably the most important Section of this Bill. I do appeal to the Government not to be too adamant in regard to it, but to have some regard to the representations that have been made to them, and that are now being made to them; representations that have, it is true, appeared in the Press, representations that must have been also personally brought forward. I am confident that neither from the point of view of the country at large, nor from the point of view of the litigants themselves, and certainly not from the point of view either of the solicitors or barristers profession, is it desirable that this amount of £300 should be fixed as the sum within which an action can be taken in the Circuit Courts, and which will be within their jurisdiction.
In the interests of the amendment that follows this one, I feel constrained to oppose the amendment which you have just heard advocated by Deputy Redmond. Much of the speech might be summed up as an attack upon the extended jurisdiction. It was that rather than a defence of the case for reducing the figure to the amount specified in the amendment. Consequently in so far as it sought to reduce the absolute limit of £300 it is in line with the amendment which I shall have the honour of proposing immediately after this is disposed of. This is unquestionably, as Deputy Redmond says, the most important Section in the whole Bill, if there is any Section in the Bill more important than another. The amendment to reduce the jurisdiction of the new Circuit Courts in these types of cases to £100 strikes at the whole central principle of the measure. It is no exaggeration to say that to pass such an amendment in this precise form is practically to undo what we did on the occasion of the Second Reading, and to repudiate the principle of the Bill. Deputy Redmond disclaimed being a reactionary conservative. He was a moderate conservative.
There was precious little, if he will allow me to say with all deference, of radicalism, particularly in the concluding portion of his speech. He thinks that British law and British institutions are on the whole so admirable that it merely requires a little adjustment of them to suit the genius of the Irish people, and that all the contest of centuries between the two races was not with regard to the creation and the working of national institutions in this country so much as a dispute as to which precise body of men should have control over the institutions, and the jobs arising therefrom. If there be any Deputies who share this view I would suggest to them a careful re-reading of the terms of reference to the Judiciary Committee. I have already had occasion to quote from it. It has become a species of Bible in my hands from which I draw inspiration and doctrine. With your permission, I will read the paragraph that follows a paragraph I have already read in another connection:—
"Thus it comes that there is nothing more prized among our newly-won liberties than the liberty to construct a system of judiciary and an administration of law and justice according to the dictates of our own needs, and after a pattern of our own designing."
Later on it says: "The first Government entrusted by the people with a mandate to give effect to the Treaty from which the Constitution has sprung, finds amongst its earliest tasks that of presenting to the Oireachtas a measure which will establish courts in fulfilment of the Constitution, and will fashion an administration of justice upon which the people will lean with confidence and affection." Have they leant with confidence and affection upon alien institutions, of an alien creation imposed upon the people contrary to the people's will?
Again, in this letter of reference the Committee is requested to approach the matters referred to them "untrammelled by any regard to any of the existing systems," and this is what I wish to emphasise. They are to consider the requirements of litigants, not the requirements of the profession of the law—those no doubt incidentally, because it is part of natural equity and of ordinary justice—but "to consider and report upon the requirements of the litigants and other persons interested, and especially as to accessibility, efficiency, expedition and cost."
Now, the law in Great Britain, as administered, is a magnificent institution. I yield to no one in my admiration of it; I will go further and say, my reverence for it. But we are not engaged here in discussing all the great points of Teutonic and Anglo-Saxon institutions, but how to meet the requirements of our own people in view of what these people are and how they are situated—their especial needs. I do not know if it is in order, and if you will permit me to quote from a newspaper. A few days ago the Attorney-General gave an interview to leading Dublin papers, in practically the same terms to all of them, in which he stated the purpose of this measure. The great controlling idea of it was so clearly and so well stated that instead of paraphrasing, or repeating it in some other form of words, if you will permit I will read a few extracts.
"The Constitution of the Free State required a new judiciary to be created and the Government's method of approaching the question was to have the ground cleared of existing institutions, so that they could arrive at what would be most in the interest of the people for whose services courts were supplied at the public expense. The first great point in the working out of the new scheme of courts was the fact that Ireland is an agricultural country."
I need hardly stop to point out that Great Britain is not an agricultural country, a country made up of large cities, and great urban centres of population, the direct antithesis of the situation here. "Under the system that is now to be superseded the people, litigants and witnesses, used to be brought from remote parts of the country and kept in Dublin for the hearing of comparatively small cases. One need not dilate upon the hardship involved in that, upon small farmers for example, very often at the period of most activity in agriculture taken away from their farms and kept here at great expense and inconvenience while they were waiting for overgorged courts to reach their cases, meanwhile expenses piling up, great counsel had to be retained at huge expense, and fees paid and repaid. There had been cases of rights of way."
Here the Attorney-General enumerates the species of case that usually occupies the Courts from agricultural populations. "There have been cases of rights of way, water courses, boundaries of holdings in connection with which a number of people were taken up. Therefore, the central feature of the new scheme is the provision of courts for trying locally the average type of case, in which the people in the country are involved. In providing for this method we had the advantage of the experiment made in the Courts that were known as Dáil Courts, which in their hey-day were a great success." What we are doing is we are legislating for an agricultural country, and trying to meet the law needs of a farming population mainly.
Deputy Redmond is preoccupied, rather unduly I would suggest, with this question of local Bars—of course, I speak technically. It is alleged by critics who are no doubt competent critics that this makes for the destruction of the noble profession of the Bar. I am, unfortunately for myself, in a position to take a more dispassionate view of the matter than Deputy Redmond.
I quite agree with him that the parallel sought to be drawn between the advantage in England derived from the local Bars, such as those of Liverpool and Manchester, could hardly be obtained here, because with the exception, perhaps, of Cork, we have not the parallel. There is one man there who is in Queenstown, I think; so to make a deliberate bull the man in Cork is in Queenstown. But it is possible, and I think highly probable, that the effect of this will be to create Circuit Bars. They need not be of the type or character altogether of, say, the Liverpool Bar, but they will belong to the sphere or area of jurisdiction.
I do not want to reveal too many of the secrets, but anyone who was ever at the Bar is aware that with the centralisation of it the tendency is for half a dozen of the big wigs to monopolise the greater part of the business and leave the rest of the profession briefless. That is not a good thing for the briefless barristers, and it is still worse for the public. The result is delay. The law's delay has been the cause of lamentation for centuries. If it were a case, for instance, in which a will was being impeached, in my time everyone had to hurry to get Mr. O'Shaughnessy, the present Recorder of Dublin. More particularly if the principal agent in the preparation of the will were a parish priest, then the plaintiff must have the services of Mr. O'Shaughnessy. If he had he was bound to get value for his money. Here is an opening provided for developing ability in the Circuit Courts. Men, having made their mark there, would be selected by local solicitors to take conduct of cases in Dublin on appeal, and gradually the central Bar of the High Court and of the Supreme Court would be fed from this source, so that it comes to a question of prophecy, as between prophecy pessimistic and prophecy optimistic, and I would ask you to accept the more hopeful view, which is more in line with experience. The efficiency of the local Bar apparently would be diminished. So suggests Deputy Redmond, through subterranean channels.
I now suggest it above ground.
I want to make a suggestion myself. I want to refer Deputies to Standing Order No. 58, which specifies that in Committee a Deputy may make three speeches, but no Deputy shall speak for longer than ten minutes, unless he is the proposer of an amendment. As the proposer of an amendment, Deputy Redmond spoke for a good deal longer than ten minutes, but that privilege does not extend to other Deputies who are not proposers of amendments. And Deputy Magennis is, I think, the proposer of the next amendment, so that his opportunities are all in front of him.
I thank you for your indulgence.
Perhaps within that Standing Order, I am in order when I speak twice, and I do not desire to detain the Committee as long as ten minutes on this occasion. I would like to point out to Deputy Magennis that in regard to local Bars my particular objection is that, in my opinion, they will not be efficient Bars, because, after all, when Case law is still the system of coming to decisions on the law which is used, how can a barrister in the country have at his immediate disposal, or at his disposal at all, the latest law reports which he would have if that case came up in Dublin?
All law at present administered in this country, as well as in England, is decided upon the latest case on that subject, and how can a barrister at the local Bar have at his side the necessary reports, or how will he have time to send to Dublin for them if this is going to be the method of expedition? His holding up the case and sending to Dublin for the latest report will not expedite the case, and, therefore. I say that you may have law in the country before these Circuit Courts, but it will not be good law; it will not be law according to the latest interpretation of the law, and that being so, in the long run the law you will get there will not be cheap law, and it may result in appeals to the Supreme Court. That point is in the interests, not of the Bar or of the solicitors' profession, but of the community at large.
I cannot expect, in following the two previous Deputies who have spoken on this subject, to emulate their eloquence, but I rise to oppose the amendment, and I do so with a firm conviction that the Clause as it stands is an excellent one. This Bill is based on a very genuine knowledge that the old County Court system was a failure. The County Courts had insufficient work and were not looked upon in the country with that respect that a court of justice should be looked upon, and in considering the matter I thought that it was very necessary, in the changed circumstances of the country, to make a radical alteration in these Courts. Under this Bill the Circuit Court takes the place of the County Court. It is laid down that the Circuit Court would be fully occupied, and I think it must be hoped that the Circuit Court, when it exercises its functions, will be a national asset in the administration of justice that the County Court has not been. If that is to take place, surely it is not wise that the administration of that Court should be cramped within narrow limits, reducing its efficiency and its standing throughout the country. I say that the increased jurisdiction given to this Court will be of great importance to the litigants. I think it will be of great importance to the Court itself, and while undoubtedly at present you meet a good deal of criticism about it, I think that criticism is narrow, and that the Court will, in the future, justify the proposed change.
As regards the Bar, I think Deputy Redmond is looking too much into the past and too little into the future. If you assume that the Circuit Court will take the place that it should in the life of the country, I think also that you must recognise that the Bar will adapt itself to the changed order of things, and that a local Bar will grow up in the country which will not disgrace the traditions of that noble profession.
I think that it would be worth the while of junior members of the Bar to make a reputation at the Circuit Court, and that the growing importance of the cases that will be tried in these Courts will form a training ground which will supply in the ordinary natural course of events as eminent lawyers as we have experienced in the past in the High Court and Supreme Courts in Dublin. If it did nothing else but scatter through a larger number the work of the Bar I think that would be in itself a benefit. I think the real difficulty about the profession in the past has been the difficulty of the younger men to get an opening, not through their incapacity, but through want of training and want of practice, and if more use is made of the junior members of the Bar, if they can look forward to it as a profession in which they can start at the beginning and go up to the top, I think that in itself would be a benefit to the profession and raise it.
So far from looking forward, as some pessimists seem to do, to a lowering of the traditions of the Bar, I think under the new order of things there is no reason in the world why the old traditions should not be continued, and even extended. The County Court in the past has been used by litigants to come in mainly to find out what the other side's case was; in other words, they entered the case in the County Courts with the distinct purpose of going on for further appeal and being able to supplement their case and better it in the process. I think that is wisely done away with in the Bill, and the stenographer comes in there very usefully. It may be more expensive, possibly, in that particular item, but taking it as a whole the Circuit Court ought not to be docked of any of the jurisdiction which is put upon it in this Bill, but rather, I think, the Committee should emphasise the importance of the alteration by insisting on this Clause being left as it is.
I am very sorry, but I find it incumbent on me to exercise my full rights on this amendment, and say a few words in reply to Deputy Hewat. He seems to think that the experience of the junior member of these local Bars will be of great service to him when he comes to Dublin on matters of appeal. Unfortunately I have to differ with him in that respect, because the member of the Junior Bar on these local circuits will not have at his disposal the means of obtaining the knowledge of the law which he would have if the case had come on in Dublin. No barrister goes about with all the law in his head. The law is there for him to find. That is his job, and, unfortunately, what I fear is that instead of being a good training ground for good lawyers it will produce hurried and ill-thought-out, and, consequently, not accurate but faulty decisions.
A DEPUTY
That is not a bad description. I hope that will not be the case. I sincerely trust that all these local Bars will be equipped, and richly equipped, with all the latest law books and all the latest law reports, both in Ireland and in Great Britain, because much as we may talk about setting up a distinctive and new system in this country, nine-tenths of this Bill is founded on the existing system, and the whole measure is founded on the fact that we have adopted the British common law and the British Statute law, except where we have otherwise repealed it, for the future judicial system. I must take exception to what Deputy Magennis has criticised as my conservatism in the matter. My conservatism consists in this, that because a system was made in England I am not going to turn it down. I have not reached the stage of narrow-minded ultra patriotism that because a thing comes from outside, therefore, I cannot take it and make the best of it, and make the best use of it for the benefit of my country. That, after all, has been the great success of England in the past. England never despised outside inventions or outside systems. On the contrary, England took them and adopted them and adapted them, and that is what has made England what it is to-day. I hope, therefore, that in the future we will not be so blinded by our ardent desire to have everything changed and everything distinct, not for reason, but for blind prejudice; on the contrary, I hope we will have a stratum of commonsense and sound patriotism to take what is good from everywhere and make it adaptable to the best needs and purposes of our country.
In the first of his speeches Deputy Redmond referred to quite a number of other things besides the certain failure of the Junior Bar. He complained of the new proposition that appeals should be heard on a stenographer's notes. The very fact that he should object to the new procedure is further testimony of the hopeless conservative, reactionary character of his mind. Does he want a perpetuation of the method illustrated in Bardell v. Pickwick, where at the close of a very prolonged action the judge read to the jury as many of his notes as he could decipher. In quite a recent case—it would hardly be fair to mention it—involving a colossal sum of money, one of the parties to the suit was defeated through the fact that the judge had failed to make a note of the most important evidence of the most important witness. No cognisance could be taken of this pivotal evidence, on which the whole matter turned. The present procedure as you know is——
I am afraid the question of stenography is not in the amendment.
No. In reality the speech to which I am replying was a Second Reading speech and, perhaps, I am out of order in following what was out of order.
That is so, unfortunately.
Then I bow to that, because it is in sympathy with my own view of the matter.
I hope the Deputy would not refuse to bow if it were out of sympathy with his own view.
I might be disposed to dispute it were it not so. He spoke of the difficulty of local Circuit Courts doing justice in the way of serving out the very latest and, consequently, the very best law. This is part of the prejudice which belongs to a barrister nurtured in Dublin upon the hitherto existing system of Dublin. One of the peculiar features of Bar practice in Ireland was that the Bar was centralised in the Law Library where men met to discuss law and scandal, and retail not merely the latest legal decisions but the latest social reports. It was a scene in which history of various kinds as well as legal history was made. It was one of the great and one of the good features, notwithstanding its vices, of the Irish Bar system. I have seen the most junior of junior barristers go up to the first serjeant-at-law, a man bent down with the weight of legal lore, and ask him how to deal with a Civil Bill appeal. It was a great advantage, this fraternity, a very genuine fraternity, in spite of the fierce competition that existed between members of the Bar and, consequently, it was always possible to have an opinion upon an opinion. That is not the system in that great land before which Deputy Redmond bows awestruck.
I speak with reverence of English law. The practice at the English Bar enables a member of the Bar to live in chambers and his cases are brought in by a clerk. Deputy Redmond is thinking, therefore, of a big central law library as the essence of Bar practice. He is living a little out of his time, if it is not offensive to say so, not merely as to the relations between a carpenter and a cabinet-maker, but as regards the resources that are open to a man who wishes to know the law without being obliged to meet the expenses of a colossal library. In recent years enormous help has been given to the profession by the publication of digests of cases. It is possible, really, in half an hour, or so, for a man who is acquainted with the law and has a certain measure of legal training to acquaint himself with the decisions, and to inform himself of cases over-ruled. It is true it would be an advisable thing if time allowed that he should go and read the more detailed reports, but, at the same time, the essential part of the decision is usually given to him in foot notes so that these junior practitioners on a circuit Bar would not at all be so helpless, or handicapped, as Deputy Redmond is inclined to believe.
Furthermore, to indulge in prophecy again, new needs and new requirements usually bring about agencies for their satisfaction. That in brief is the history of civilisation, and when the need arose men proceeded, by the exercise of their ingenuity and drawing upon parallel experiences in the past, to supply it. The Circuit Judge will not be found travelling in a caravan from town to town consulting law books by lamp light overnight, like Napoleon in his tent examining the map of the country by a lantern. Experience and convenience of litigants will bring it about when the Courts of the Circuit area will be localised in one, two or three areas, and eventually a library will be forthcoming for storing there these detailed law reports, Law Reports (Ireland), Law Reports (England), and the new series and digests of cases so that this is merely a momentary hiatus which can be overcome.
Personally, I see in this creation of Circuit Courts one of the greatest of the new departures that will make for the benefit of the country. If I may be permitted to delay for one moment in regard to the peroration of Deputy Redmond, long before the British Empire was thought of, the Roman Empire set the world the model, of which he speaks, of looking round at civilization and at other races with which they came into contact, viewing sympathetically the institutions which they created, and making their own of those that were adaptable and that would serve the Roman population. That undoubtedly is wisdom—I am not speaking in any adverse sense in regard to that. The whole system of British law, of statute-made law, and the whole method of its administration is, I have no hesitation in saying, an alien thing, and we are not setting it aside all at once with the hurried zeal of young reformers. One of the things we did in the moments of enthusiasm, in the early days of the late Dáil, was to re-enact those statutes already applicable so as to give us time to think out the situation and see what new code of law was required to be created. Here we are taking on a great problem —how to set up constitutions, statutes, and tribunals which will serve the needs of the Irish people. What suits Liverpool and England generally, may not suit us, and consequently it does not follow that institutions or procedures that have succeeded there must slavishly be followed by us, or on the other hand that we must depart from them, not because of patriotic prejudice but because of patriotic duty, and consider the special requirements of our own people. We must remember also that in this matter sentiment counts for a very great deal. Deputy Johnson, no doubt, takes a very rationalistic view of these things, and sees life in the hard cold light of intellect, but a great part of man is ruled not by intellect, but by sentiment and ritual. Our people will look to the courts as the creation of Irish minds, and with feelings of affection, and with a sense of obedience which will create in them a feeling for law and order which they could not be expected to entertain when those institutions were administered by people whom they regarded as their natural enemies.
Deputy Magennis has strangely misread signs and portents. I would imagine he might have seen during his last year or two signs at least that sentiment affects my view of life to an extent perhaps not less than his own. This discussion that has taken place between Deputies Box and Cox has convinced me that the Government would be well advised to stand firm by the proposals of the Bill, and that applies to Deputy Magennis's amendment. I think the case he has made against Amendment 12 is equally valid against Amendment 13, and I, therefore, expect that the discussion on the next amendment will be shortened. As I see it, the case was fairly well admitted that the Bill as it stands will benefit the litigant and the public, provided there is no loss of efficiency in the practices in the Courts and in the abilities of the Bar. The layman can only judge that matter by the weight of evidence, and the evidence appears to me to lie between the statement of Deputy Redmond, and perhaps the more authoritative statement and beliefs of those lawyers, barristers, judges and solicitors who advise the extension of the jurisdiction to the extent contained in the Bill as it stands. I believe the desirable course to adopt is to extend the jurisdiction of the local courts, and I hope the Government will stand by the clause as it is printed in the Bill.
I cannot speak with the authority and technical knowledge of Deputies Redmond or Magennis on a matter of this kind. I simply put forward the views of a layman, of one of those who may be concerned in the operations of those Courts. The first and main objection raised by Deputy Redmond was to the extension of the powers of the Court. He suggested that the labours of the Courts were increased in some instances by six times. That was hardly a fair representation of the increase of duties that will be imposed on the judges of those new Courts. Multiplying £50 by six and giving a jurisdiction of £300 may mean only a small increase of the administrative duties of the Courts. The cases hitherto dealt with under £50 would comprise the biggest percentage that would have to be dealt with even in the limits of £300, because the sums we had to deal with in the past, and will have to deal with in the future, will be largely sums under £100.
The chief objections, I think, however, that Deputy Redmond had to the operation of those Courts were that they operated adversely to the interests of the solicitors' and barristers' profession. The duty of the Executive Government is not to consider the interests of a small section of the population, or of one particular branch of the profession, but rather what is for the general benefit of the community. In this respect I believe that that benefit will be largely secured in favour of the people by the extension of the powers it is proposed to give the Circuit Judges under this Bill. I intend later to suggest that the powers of the District Justice Courts should be increased, and for this reason. Both those classes of Judges operating within limited areas will acquire an active knowledge of local conditions, of men and of things, which they can apply to the benefit of the law and to a clearer determination of the interests and disputes that will come before them and that would not be possible if those cases had to be tried in Dublin. The extension of the areas was a further objection raised by Deputy Redmond. The extension of the old areas of the Resident Magistrates whose duties are now discharged by the District Justices has not resulted in failure to administer effectively the new duties imposed on them in the new areas. The instructions given to the Committee who framed the suggestions on which this Bill is founded were that accessibility, expedition, efficiency, and cost should be taken into consideration.
Anyone reading the Bill must come to the conclusion that in its operations all those considerations are being given a fair show, and that under the new system the law would be more efficiently and cheaply administered, and be much more convenient for those who have to go to the courts. For this reason I suggest it is undesirable that the Dáil should interfere with the particular provision of the Bill to which this amendment has been moved. I think that the present provision makes the law more convenient and accessible to people in the country, and you may take it it in no way affects prejudicially the members of the Bar. We anticipate that in these local Courts the members of the Bar will maintain the high standard of efficiency for which the Irish Bar has been noted, and, in addition, to bringing the law home to the people in the country districts, we shall at the same time have the cost of administration, and the cost to the litigant considerably reduced. For these reasons I think there is no necessity to alter the jurisdiction of the Judges.
Táim sásta nach gcuirfear an leas-rún seo i bh-feidhm. An módh dlighe a bhi againn go dti anois bhi sé neamhoiriúnach. Na daoini do cheap an módh sin b'iad daoini nar theastaigh uatha ach a lamha a chur i b-pócaí muinntir na d-tíre. Buidheachas do Dhia, tá sé in ar g-cabhair anois na nidhthe seo a cheartú. Is orainn anois módh a cheapa i dtreó nach mbeidh mór-chostas ar mhuinntir an t-Saorstáit agus go mbeidh siad in-ánn Cothrom na Féinne a fhághail ar bheagan chostais agus troblóide.
It seems that we are going to have great difficulty in getting through Section 48. The amendment by Deputy Redmond proposes to reduce the jurisdiction of the Circuit Court Judge from £300 to £100. It was an intolerable hardship in the past, under the old system, that in cases where the figure in dispute was £60 the litigant had to undertake the expense and worry of a High Court action here in Dublin. I think the proposal contained in the Bill, to increase the jurisdiction of the Circuit Court up to £300, is a very worthy and admirable one. I have not heard any arguments advanced that would justify any reduction of that jurisdiction as far as the Circuit Court is concerned. We have had here a most extraordinary confusion of arguments all through so far as the discussion has gone in Committee. We have had an allegation made in regard to the stupendous and enormous amount of work that the Recorder of Dublin has to do, and it has been suggested that some additional Judges should be appointed to assist him. That is met on the other hand by a proposal to reduce the jurisdiction of the Circuit Court by £200, from £300. If the allegation is true with regard to the excessive work that the Recorder has to do, then the analogy is false, and it does not justify a reduction of the jurisdiction of the Circuit Court Judge.
I hope we will confine ourselves to what are the real merits of the case. We are being addressed here more or less as a jury by the Deputies who are supporting this amendment. It is all, to my mind, a case of special pleading, and we stand between the people who will be litigants and the Bar who will be the beneficiaries. We are asked to consider only the beneficiaries and overlook the interest of the litigants, and to insist that in all cases where over £100 is in dispute, these people shall proceed with their array of witnesses and at enormous expense to Dublin for the benefit and advantage of the Bar here in Dublin. We are told that good law is only to be obtained in Dublin, and that bad law is likely to be met with and is going to prevail in the provinces under the Circuit Court. I think if good law and bad law are to be scheduled in this Bill, that is not at all desirable. What we want is good law in the smaller Courts and in the smaller cases.
We do not care much about the larger cases. They are well looked after generally, because the interests involved are so powerful that they will take very good care of themselves. Where we want the good law is in connection with the smaller cases below £100 and down to £5. The nation requires good, cheap and convenient law. We are going to have those things under this Bill.
There should not, to my mind, be any diminution of the jurisdiction of the District or Circuit Courts. The terms of the Bill should be kept to tenaciously. I hope the Government will stand firm by the terms of the Bill. One suggestion is that the jurisdiction be decreased from £300 to £100, and another suggestion from £300 to £200. I hope the Government will stand firmly behind the figures set out in the Bill, and that they will not allow any arguments, that are largely influenced by a profession that in the past had certainly a great deal to do with the management of law, to influence them in the direction of a change. I hope the Dáil will see that we are going to lay down the principles upon which law is to prevail, and in doing so the interests of our community, which are largely in our hands now, will be considered, and we will stand firmly in the advocacy of the interests of our own people.
Táim ar aon intinn le Teachta Pádraic Mag Ualghairg i dtaobh an leas-rúin seo agus aontuighim le 'nar dhubhairt sé. Isé mo bharramhail go bh-fuil an Alt so nios oiriúnaighe mar tá sé fa lathair. Da mbeadh sé ar na daoini 'san dtuaidh teacht chun an chathair seo chun a gcúiseanna a phléidhe ins na cúirteanna annso, bheadh costas ana-mhór orra ar fád. Agus is é sin an rud go mba mhaith linn a sheachaint. Dubhairt an Teachta a chuir an leas-rún seo os ar gcomhair go mba chóir duinn aithris a dheunamh ar shompla muinntir Sasana 'san rud seo. Isé mo thuairim fhéin go mb'fhearr i bhfád gan rud ar bith a dheunamh acht amhain an rud atá oiriúnach do mhuinntir na tire seo. Agus tá fhios againn go fior-mhaith gur cheap muinntir Sasana an módh dlighe atá acu do réir an módh a bhi againnne san tsean-aimsir—An Seanchus Mór, Iarraim ar na Teachtai gan glácadh leis an leas rún seo.
I rise on a point of order to refer to a matter of courtesy to the Dáil. I would like to know whether a Deputy can address the Ceann Comhairle without somebody being on the front Bench representing the Government? Who on behalf of the Government will reply to the speakers who are now addressing the Dáil? This is a matter of interest to the Dáil and I now raise it.
I think there can be no doubt whatever that either the Minister in charge of the Bill, or some other Minister on his behalf, should be present during all the discussion. I will take a motion to report progress from any Deputy who wishes to put forward one.
I move to report progress.
The motion is that the Committee report progress and sit again on the next day on which the Dáil shall meet.
We are all agreed to that.
Is it in the discretion of yourself to adjourn the discussion for a period of half an hour or an hour?
I think that the Committee must report progress. Then when progress is reported to the Dáil, we could adjourn for a period, but not until then.
The President entered the Chamber.
Mr. President, a motion has been made to report progress, in view of the fact that there was no Minister present to hear the speeches made on this amendment.
I believe the Dáil will be agreeable to have that amendment taken. It was not out of disrespect to the Dáil that I left. I left it for only a moment. I had to put off several appointments that I made, not thinking I would be engaged here the whole time. The other Ministers have left for reasons of public business. I would be sorry that any Deputy would think that any member of the Ministry would leave out of disrespect to the Dáil.
I raised the question for the future guidance of the Dáil. If there was a Parliamentary Secretary who would take notes for the Minister or Ministers concerned a reply could be made to the points raised for or against the amendment, and it would be different, but as there was no Minister present I raised the question. I do not wish for a moment to embarrass any Minister, or to impute motives of disrespect to the Dáil to the members of the Government, but when I saw the benches empty I thought it necessary to draw your attention to that, and to the fact that on all occasions a representative of some sort, whether a Parliamentary Secretary or otherwise, should sit there to take a note of any remarks made.
I think the President can be assured that it is not precisely with reference to himself that the point is raised. The point was raised rather with regard to the fact that when the President himself was absent no other member of the Government was present.
I must say that we all appreciate the fact that the President himself has many calls on his time and could not possibly be always present.
It is my mistake and I regret that I did not see that there was some Minister in my place.
Is it possible to give effect to the suggestion of Deputy Johnson that we adjourn for a limited period?
If it is the President's desire that the debate should be continued, I will withdraw my motion.
Should not this amendment be disposed of?
The motion to report progress is withdrawn.
Ni raibh puinn eile agam le rádh, acht iarraidh ar an Dáil gan glácadh leis an leas-rún san. Cuirfeadh sé sin mór-chostas ar mhuinntir a bheadh a dul chun dlighe a chur ar a chéile.
I do not know that I can add very much to the various arguments that have been put forward against this amendment. Most of the ground that I intended to cover, was covered in a much better manner by Deputy Magennis and some of the other speakers. I should say that the recommendations of this Judiciary Committee were recommendations which it would be rather difficult for the Government to ignore. Their recommendation in this case, so far as the Circuit Courts were concerned, was that the sum should be £300. On that Committee, apart from members of the legal profession, there was one representative of Commerce specially appointed as the representative of Commerce. It is believed that this particular recommendation, that the jurisdiction of the Circuit Courts should extend to £300, is one of the main, if not the most important, features in the Bill. I do not by that mean to discount in any way the importance of the Supreme Court or of the High Court. Judging the usefulness of the Courts from the amount of business that will be presented to them, I think it will be admitted that a larger number of people will apply in the Circuit Courts, and that major business will be discharged in these Courts. I think that Deputy O'Mahony met the point very fairly, that we had sextupled the business of these Courts by increasing the amount from £50 to £300, by saying that it did not necessarily mean that six times more business would be discharged in the Courts by reason of that. At the time when £50 was fixed as the sum that the jurisdiction of the County Courts would cover, I think it was somewhere about the seventies, and there is no doubt that values have changed very considerably since then. Apart from the values there has also been, I think it will be admitted, a change in the general business—that is to say, cases are larger now, and for very much larger amounts than they were at that time. As regards the agricultural community, even though it be disputed that they are less prosperous now than then, the fact is that they are dealing in larger sums, and consequently some accommodation to meet the changes ought to be made in this Bill.
People are not bound to the Circuit Courts in actions up to £300. That, I think, is a very important matter. Taking into consideration the amount which would be allowed for jurisdiction in the cases of the Circuit Courts, it would mean that if you limit this amount as between £200 and £300, anything over £100 could not, I think, go to the Circuit Courts. As regards the amount of work the Circuit Courts will meet with, I think it must be borne in mind that it is rather difficult to make any estimate. The whole system has been changed. The recommendations for changes have been very large, and they are not merely for the purpose of change. That has been dealt with ably by Deputy Magennis. Experience of the last few years has shown the necessity for that change; we are aware of the popularity of the Dáil Courts, and the fact that matters could be settled expeditiously and with little cost, and, I believe, under great difficulties, with great satisfaction to the various litigants. The case for reducing the amount does not appear to us to have been sustained. With regard to the question of change, I notice in one section of the Dublin Press that an impression seems to have got around that we want changes simply for the purpose of making changes. That is an utterly wrong view to take.
It is scarcely fair to put it that way, and I gather that from some of the criticisms made in various newspaper articles now and then. One must take into consideration the psychology of the country. After a long period in which the Courts were unpopular many of the decisions that may be given now may not be to the satisfaction of the persons concerned, who will say: "There is no change in the administration of the country," and in order to meet the peculiar views some indication of change is not at all undesirable, but certainly not for the sake of change. I would say this, in reply to Deputy Redmond's complaint about information not reaching the local Barristers connected with these local Bars; I was engaged during the last three or four years as Minister for Local Government, in the first Dáil and throughout the second Dáil, and during that time I came in contact with, I suppose, the largest number of public representatives from local authorities from all over the country that, perhaps, it was ever the fortune or misfortune of any other person to have come in contact with. What amazed me about those representatives was, their keen and precise knowledge of the various difficulties and complexities that arise in the administration of Local Government, gained in some cases from the Press, and in some cases from inference or reports. In every case they showed most extensive knowledge, even in the most unimportant details, as they might appear to us here. Whenever a question affecting Local Government, arose they spoke as if they had made a special study of Local Government, and with as much practical knowledge as if they were engaged here in the Central Office dealing with these matters. I think if that be the case in regard to intimate knowledge on the part of members of local authorities it is unlikely that a very important and learned profession such as the Bar would not be able to get all the information required about the latest legal cases without any great difficulty at all.
It was, also, pointed out, I think recently in the Press, that this local Bar experiment has had a large measure of success in Belfast. The NorthEast circuit in the old days was certainly benefited by the fact that it had a local Bar, and when members from that particular Circuit came up to town it was observed that the cream of the profession came. It may be that both now and for some time to come there will be a general attraction towards the metropolis. Objection to this Bill comes from many quarters. My information is that the solicitors in the country generally approve of the Bill and of this particular Section, and whereas there is some unpopularity about this Section in this city I take it that the general idea in regard to the whole country is that there ought not to be a centralisation in the metropolis. There is no objection, but on the contrary there is every desire that the cream of the profession ought to be attracted to the metropolis, and we ought not to minimise the importance of some of the provinces that have sent up remarkable men—prominent public men —that we have in the public life, and in the various professions in the country. There is also some unpopularity about these so-called local Bars by reason of the fact that barristers now living in the city will have to take up their residences perhaps in the country districts, and this country question and centralisation question is one that may give us some little trouble in the future. There is a desire to get away from the country, but as this country is an agricultural country, we ought not to stimulate that desire.
I do not know whether I have dealt with all the points made by Deputy Redmond, but many of them have been answered by other speakers. I must say that we were very seriously impressed by the views of the commercial community in fixing upon this £300 jurisdiction for the Circuit Courts. The Circuit Courts in our view ought to be popularised in this country, which is relatively a poor country. These courts are popular and they are less costly in the operations that will be conducted in them, and I am sure, and hope that they will give greater confidence to the people to go into them. At the present moment I believe a very large number of people will not go into court by reason of the idea that the cost is prohibitive. I think it is our first duty, in a new State, to see that justice will be put within the reach of every citizen at a cost that will not be exorbitant, and that the institutions of justice will command the confidence of the people.
As there is a subsequent amendment to reduce this amount to £200, which I am sure will be ably argued by Deputy Magennis, and as there does not seem to be very great likelihood of this amendment being accepted by the Dáil, I ask leave to withdraw it. Before doing so, however, may I ask one question of the President: Whether, if not now at some future period, during the course of the progress of this Bill, he will be in a position to inform me if it is the intention of the Executive to set up these Commissioners of the High Court Circuit to which I have referred? I do not ask for an answer now.
Yes, like the question of not more than eight Judges raised yesterday, it will be governed by the necessities of the case; that is, if the necessity arises, that will be done. If the necessity does not arise I do not think it likely it will be done. However, I will consider the matter and inform the Deputy on the report stage.
Amendment, by leave, withdrawn.
The last amendment was a very important one, and I allowed considerable latitude in the discussion of it. I think the discussion of the next amendment, number 13, must be confined altogether to the advisability of reducing the jurisdiction of the Circuit Court from £300 to £200, the proposal to reduce it to £100 having been withdrawn as not accepted.
I beg to move the following amendment:—"In line 52 to delete £300 and to substitute therefor £200; and in line 55 to delete the figures £60 and to substitute therefor the figures £45; and in line 59 to delete the figures £60 and to substitute the figures £45."
I have just now supported, as strongly as I could, what I regard as the clue of this measure, the decentralization of the courts and the enlargement of the jurisdiction of the local courts to meet the needs and special requirements of the people.
AN LEAS-CHEANN COMHAIRLE, at this stage, took the chair.
Deputy Johnson and Deputy Redmond believe that in doing so I have barred the door against the amendment for which I am, technically and officially, at any rate, responsible. Everything that I have just now said on behalf of decentralization I stand over, even as the spokesman for the present proposition, and the optimistic view I take of the future of the Bar, not merely as a profession, but as an instrument for the advancement of the public good, I am prepared to repeat. It is now not a question of principle, but simply a question of the more or less. Now, this is one of the amendments which I tabled on behalf of the Bar Council, and inasmuch as my views are very pronounced in favour of the scheme of decentralization I found it necessary to get a special brief for the proposal to reduce to £200, and so with your permission I propose now to read from the brief: "A case in contract——"
On a point of order, I desire to ask if these are the Deputy's own views?
That is a question which, I submit with all respect, the Deputy is not entitled to ask with regard to another Deputy. We are all here as representatives; we are here in a representative capacity, and an exponent so determined of democracy as Deputy Johnson ought to uphold, and strenuously uphold, the view which I am putting forward, that a Deputy here is not merely a Deputy by official title, but a special type of representative whose duty it is to expound the views of his constituents. I am speaking now as one of the members for the National University of Ireland. The National University of Ireland has a school of law in each of its constituent colleges, and one of the main functions of that school of law is to provide barristers and solicitors for the country. I should be failing——
I would remind the Deputy it would be better to confine the discussion to the amendment before the Dáil.
I am speaking on the point of order raised by Deputy Johnson, and not on the amendment. You will observe the distinction.
The point of order that I have raised is really one that will have to be decided some day, and it is whether a Deputy is entitled to read views which are not his own not merely to illustrate his argument, but really to make somebody else's speech — the speech of a person who is not a Deputy.
I do not think it is fair that that should be done, but the Deputy who has raised the point did the very same thing here himself on a former occasion when he read from "The Jail Journal." I think on these matters it would be better if Deputies confined themselves to the amendments on the Order Paper.
With all respect, Deputy Johnson is trying to imbue you with what I must call, for want of a better term, a perverted view of the position which I am taking up. I merely draw attention to the fact that at one and the same moment I, as a representative here, uphold the principle of the Bill, and at the same time seek to depart, as regards one small item of its details, from what the Bill contains, in correspondence with the recommendations of the Judiciary Committee. If Deputy Johnson chooses to raise constitutional questions in connection with that, surely that is his own affair, and there is a fitting time and way for raising these questions. This is merely a humorous turn which he seeks to give to a very serious debate. I claim I am perfectly within my rights as a Deputy to declare that the views which I hold and seek to put before you now as to the reduction of the figure from £300 to £200 are views impressed upon me by distinguished members of my constituency. It is a question of greater or less candour and honesty.
Deputy Johnson expounds here doctrines the source of which volume, chapter and verse I could give. Is every speaker here, when he is using information or special knowledge to impress the Dáil in favour of the conclusion to his argument, obliged to say: "I am now quoting from John Smithkins, volume 3, on the advantages of keeping a cat." If that is your ruling, then I think our speeches will have to be considerably elongated.
The Deputy is in order to give the quotation.
Thanks very much. The case in favour of the reduction from £300 to £200 is this: Usually in an action up to £300 there are intricate questions of fact, and sometimes difficult questions of law. A very cautious solicitor, in charge of such a case, would feel himself bound to bring down from the central Bar in Dublin eminent counsel at great expense. That may be useful to the Bar, but I think it is to the credit of senior counsel that they take the view that though that would add to their remuneration it would increase the burden of cost to the litigant. If the case were, as a matter of course, brought in the first instance before the High Court, the parties to the action would be satisfied usually with the decision of the High Court as being a decision of the High Court, and litigation would come to a natural end. If the case is instituted in a matter of £300 in a Circuit Court, the chances are that one of the parties will move under the facilities provided by the Government's amendment, which is to be reached shortly, to have the case brought to the High Court. That is a suit involving costs, and then at last the case is brought in the High Court in any event. The proposal is this, that where a case is a very big one, and likely to involve a long hearing, together with the expenses I have indicated, other litigants are affected injuriously by the delay in the hearing of their cases, so that it is usually a question of convenience. Now, I am upholding the principle of decentralisation, and I repeat that the very extension of the jurisdiction of the Circuit Court would indicate a limit beyond which it is not desirable to go. That is the whole case.
I do not think that the last Deputy has made it quite clear why £200 is a more suitable limit than £300. I suggest to you that a case which involves £200 will raise as difficult a question of law as one involving £300, and, therefore, will be quite as expensive so far as the advice of eminent Counsel is concerned as a case of £300. I should be very sorry if the Dáil in any way did anything to diminish the limit of £300. I did not speak on the last amendment because it was so obviously against the whole spirit of the Bill, especially this portion of the Bill; so conservative as to be reactionary, and did away with the whole conception that the Bill has of the value of these Courts. I suggest that £200, considering the value of money now and the value of money when £50 was fixed under the Judicature Act, is not much of an advance. The other objection about the difficulty of getting verdicts from country juries owing to local prejudices I am glad to say has not been unduly pressed in this Dáil, if it has been pressed in the public papers. That, as you will see, is covered by an amendment that will come on very soon in one of the next Sections. I do not think that Deputy Magennis has made it clear that there is a different kind of case involved in a £300 action that is not involved in the £200 one.
There is no doubt a great deal in what Deputy Professor O'Sullivan urges. There may be a very big point of law in a question that comes before a District Justice, and provision is made for that in the Bill. A case may be stated for the Judges of the High Court. There I am quite with him so far as regards that contention. All these figures are arrived at by way of compromise. The yard is 3 feet long, or 36 inches; that is the standard convention. If the yard is considered long, then 2 feet 3 inches is long, and 2 feet is not so long. Then where do we stop saying that the thing is long and begin to say it is short? These are all arrived at arbitrarily. Even the figure of the Judiciary Committee was arrived at by compromise. Some wanted it £500. It is a question of psychology really in the end. A man will, at a gaming table, stake more money and yet more money; in other circumstances he will not. What makes the difference is the amount of the plus. There is no one in this Dáil so familiar with the fallacy in question as Deputy Professor O'Sullivan himself. He is an authority on these matters to whom I defer. It is known as the fallacy of the auction room. A. B. bids £10 for an article; someone says guineas. The auctioneer allows at that stage an increase of 10/-, and he advances another 10/-. But it is not an increase of 10/-; it is an increase of 10/- upon 10 guineas. It is a question of jumping from £10 to £11. These things have all, in other words, to be considered relatively. What Bar the solicitor will engage, a heavy Bar or a light Bar, will depend very largely upon whether the client considers the question at stake of sufficient importance, and the estimation of sufficient importance is based in the case of tort upon the amount of damages recoverable. So that I know perfectly well, and Deputy Professor O'Sullivan knows equally well, that I could not say the reason why £300 is more likely to involve the employment of senior counsel at great expense than £200 is. I can only say in a vague sort of way that experience shows that on the whole, in the long run, the employment of senior counsel is more likely to be necessitated by a £300 case than by a £200 case.
I have been interested in the arguments that Deputy Professor O'Sullivan raised countering the proposal to reduce from £300 to £200. He asked what different point of law was likely to be raised in one that would not be covered by the other. Supposing that be extended, what different point of law is likely to be raised in the £300 case that would not be covered in a £500, £600 or £700 case? Why not, therefore, continue to extend it? The argument cuts both ways. The appeal that this amendment has to my mind is this, that the larger the jurisdiction the greater the tendency, the greater the temptation there will be to bring the greatest possible amount of influence to bear in the first place, and also another matter that I will mention later. I raised this question of influence yesterday, and the President dealt with it as though I were making some impeachment of Irish juries. There was no impeachment of Irish juries. It was a principle that was applicable not only to Ireland but to every country. The question is not whether juries are likely to be prejudiced. The question rather is that where a community is so small that each member of that community knows every other member of the community, that then you certainly have got a city population or a town population—or however one desires to describe that population—that is unsuitable to serve as a unit for the creation of a jury. That has been proved in other countries. I have myself on occasions heard arguing in France where local judges have tried local cases. Obviously it will apply far more in the case of juries, and I think that a jurisdiction of £200 would not lead to the same tendency to use local influence to prejudice a case as there would be in a case of £300. There is a further argument—it is one that the President has referred to earlier to-day. He stated with considerable force that the value of money is not what it was, that the kind of case that would be covered by the earlier jurisdiction of the County Courts would not be covered by the same jurisdiction to-day because money has declined in its purchasing power. Allowing for that I suggest that £200 would be a sufficient kind of case to leave to the jurisdiction of the Circuit Courts.
And there is yet another argument. It was urged yesterday with considerable force by Deputy Redmond, and anyone who has worked out the figures must have felt it. It is obvious also that the drafters of the Bill felt that possibly 8 Circuit Judges will not be enough to cover the business to be done by these Circuit Courts. Provision has been made for assistant judges. Now, the reason why it is doubtful whether 8 Judges will be sufficient to cover the business is chiefly in regard to the extended jurisdiction of Circuit Courts in matters of tort and contract. Therefore, if that limitation were to be accepted by the Ministry, I think it would be far more in the capacity of the 8 Judges whom this Bill creates to handle the business that will arise within these Circuit Courts. In arguing against the last amendment, Deputy Professor Magennis stated that while reports might not be available for the library of each of these Circuit Courts, digests would be. I am not a lawyer, but I do know something about the written and printed end of study in some of these matters, and I know that if you are going to get an adequate set of digests for each of these Circuit Courts and going to move them in the perambulation of the Courts from one place to another, you are going to have very heavy expense both in the furnishing of the libraries and also in their removal. I support this amendment because, I think, in the first place, £200 would give a range of business that would be more likely to be covered by the 8 judges created by this Bill than £300 would; and also because the larger the jurisdiction the more temptation there would be, and the greater inducement, to bring local influence to bear. We have got to recognise the fact that it is true of Ireland that our country towns are smaller, owing to historical causes, than country towns are in other countries. That means that if a large and important case, involving a considerable sum of money, were to be appealed to a jury from a country town in respect of one of the citizens of that town, there would be every opportunity existing for him to exert his influence and to prejudice the case. The larger the jurisdiction the greater that temptation would be. I suggest an important change has been made by this Bill. It has been affirmed in the principle of the Bill that at least for a beginning it would be unwise to extend that too far and that to make the jurisdiction of this Court £200 is sufficient, at least, for a time.
Deputy Professor Magennis is very honest in this amendment. He used all his own arguments and then he used some of mine. I was going to inform the Dáil that the Committee at first suggested £500, and £300 was a compromise. This particular amendment is one, as Deputy Magennis knows better than any of us, that is most difficult either to recommend or to refuse to accept. It is really a question of degree, and it depends on how far one brings to bear on the judgment of it experience or an estimate of its usefulness in order to decide how one's vote will be cast, as to whether it should be £300 or £200. As the case appears to me, I should say a really great attempt ought to be made to popularise these Circuit Courts; to make them the Courts in which people all over the country would have implicit confidence. In this country, perhaps more than any other, one is affected by the status of whatever institution is in question. That is one reason why I would like to see the status of this Court raised as high as possible with regard to its own particular jurisdiction. There is provision for the Court by agreement dealing with cases of any amount, but in considering whether or not the case would be brought in the Circuit Court, one of the first questions that will arise is what is the jurisdiction of the Court? If it be £200, and only £200, then a man who has an action for £190 will probably say: "We will try the High Court first." From that angle I would say it would be better that the sum should be £300. In fact, if my own opinion were taken, I would go another £100 and say £400, as we would then surely rope in all the £300 actions, as long as the higher sum was taken to be the status. As regards what Deputy Figgis said, I was rather glad to hear it, but I would point out that each of these Circuit Courts operates in a district in which the population is something like 300,000 or 400,000. That is a pretty considerable number to draw from for juries. In addition to that, it is open to the Circuit Judge to change the hearing of a case from one town to another. If, for example, a man living in a town called X has a case against a man in a town called Y, and that it is brought in the town of X, the Judge can change the hearing of the case to the town of Z, so that neither of the two parties would have any cause for complaint. I think the very large population in each one of these places raises again the status of the court and is a matter of very considerable importance. I would certainly prefer very much, even if these Courts were overworked, that there would still be only eight Judges, because of the fact that they embrace a very large sector of the country within their ambit. That, to my mind, emphasises the status of the Court in the same way as the £300 case would as against the £200 one.
Amendment put and declared lost.
I move:
In sub-clause (v.), line 1, page 12, to delete the words "including winding-up of Companies," and to delete from the word "and," line 3, to "£10,000," line, 4, inclusive.
The reason for seeking to withdraw the winding up of companies is because that requires very special machinery which, in this case, can best be had, in point of view of efficiency, as well as of economy, in the Central Court, or rather in the offices attached to the Central Court. It is one of the exceptions to the otherwise excellent principle of decentralisation. We feel that the winding-up of a company and questions dealing with the misfeasance of directors, and cognate subjects could be more effectually dealt with in the capital city, so that it is not by way of aspersion upon the competence or capacity of local auditors. There may, in the various areas, be quite as competent and quite as experienced auditors as in Dublin. It is merely that the tradition of this peculiar class of work is here and that is the sole argument.
I am informed that there is no specialised machinery for dealing with these cases in the Dublin Courts, and I take it that if this amendment were passed it would mean that a company, if there be such in this country, with a capital of £9,999 could be wound-up in one of these Courts. I am not sure. I think it might take in the winding-up of companies with larger capital than £10,000. It would mean that the winding-up of companies was to be excluded from the jurisdiction of Circuit Courts altogether. I would undertake, if the Deputy likes, to consider that on the next stage, but I would not undertake to consider it very favourably.
Amendment, by leave, withdrawn.
I move:
In page-12, to delete lines 5 to 10 inclusive, and to insert in lieu thereof the following words:—
"(vi) In Bankruptcy.—In Local Bankruptcy Courts which may be established under the Local Bankruptcy (Ireland) Act, 1888, for which purpose that Act shall be construed and take effect as if the expressions `Executive Council,' `order of the Executive Council,' `Minister for Finance,' and `Chief Justice' were respectively substituted for the expressions `Lord Lieutenant,' `Order in Council,' `Treasury,' and `Lord Chancellor' wherever those expressions respectively occur in the said Act, and the words `in any Circuit' were substituted for the words `in Londonderry, Galway, Waterford, and Limerick, respectively, or in any of those places' where those words occur in Section 5 of the said Act: Provided that nothing herein contained shall take away or prejudice the right of any party to any action (not being an action for a liquidated sum, or an action for the enforcement, or for damages for the breach of a contract) to have questions of fact tried by a jury in such cases as he might heretofore of right have so required and with like directions as to law and evidence, but no party to an action for a liquidated sum, or an action for the enforcement or for damages for the breach of a contract shall be entitled to a jury unless the judge shall consider a jury to be necessary or desirable for the proper trial of the action and shall of his own motion or on the application of any party so order. Every jury in a Circuit Court shall consist of twelve members and the provisions of Section 24 hereof shall apply to every civil trial before a Circuit Judge and jury. Provided also that any party to an action commenced in the Circuit Court and pending therein may at any time apply to the Circuit Judge that the action may be sent forward to the High Court, and thereupon in case the action is one fit to be prosecuted in the High Court and the High Court appears to be the more appropriate tribunal in the circumstances, the Circuit Judge may send forward such action to the High Court upon such terms and subject to such conditions as to costs or otherwise as may appear to be just, and an appeal shall lie from the exercise of the discretion of the Circuit Judge in granting or refusing any such application.
Provided also that a Circuit Judge may on the application of any party or without any such application, if he thinks fit, change the venue for the trial of any action pending before him from any one place of hearing to any other within his Circuit."
This amendment is a rather lengthy one. It really embraces what might be regarded as four separate amendments, because it refers to four entirely distinct and different things. There is an impression in the minds of some of the Deputies because of the manner in which the amendment appears in print that all of it relates to bankruptcy. That is not so. The amendment, in the first place, is intended to enable bankruptcy jurisdiction to be conferred upon Circuit Courts under the Local Bankruptcy (Ireland) Act of 1888. That means that in certain towns in which Bankruptcy Courts might have been set up under that Act it is intended that the Circuit Courts may have that jurisdiction. In the second place the amendment is intended to provide that the absolute right to a jury for actions for liquidated sums or contracts in the Circuit Courts shall be taken away. That is that very often in cases of that kind it is found in practice that they can be more effectively tried by a Judge without a jury; at the same time the amendment gives a judge ample power to have a jury whenever he thinks a jury would give assistance to him in the proper trial of the case. The third part of the amendment enables actions to be transferred from the Circuit Court to the High Court whenever the High Court appears to be the more appropriate tribunal; and, fourthly, the amendment enables a Circuit Judge to change the venue of any action to any place within his Circuit.
I am very glad to see that the last paragraph covers the point embraced in the amendment which I have put down. I suggest to the Minister that perhaps he might add the last condition that I have put in the amendment which stands in my name—"due regard being had to the convenience of suitors and witnesses" in the event of a change of venue. It may be a direction or a guide to the Judge, and also I think he might add that "no appeal shall lie from the exercise of the discretion of the Judge in this respect."
That matter will be considered. As a matter of course, question of convenience, and so on, are always considered in a change of venue.
I know, but regarding the question of appeal, would it not be advisable to add these words to prevent unnecessary litigation and delay?
I would like to consider that.
Amendment put and agreed to.
Amendment by Professor Magennis and Captain Redmond:—
To delete lines 5 to 10, page 12, and to substitute therefor:—"In all actions heard before a Circuit Court where the amount of the claim exceeds £20, any party to an action shall have the right to have questions of fact tried by a jury of twelve members, with like directions as to law and evidence as applies to cases tried before a Judge and Jury of the High Court; but the provisions of Section 24 hereof shall apply to any such trial before a Circuit Judge and Jury."
The lines from 5 to 10 have already been deleted, and this might be taken on as an addition if the Deputy wishes to propose it.
All I have to say on this is, that the proposal in my amendment is substantially met in that which has just been passed. The existing practice in the County Court is that in all actions where the claim is not less than £20 and questions of fact are involved, not question of title to the land merely, a jury is empanelled, but only a jury of six, and the proposal is to have a jury of twelve, then an appeal later from that to the Judge of Assize. We are getting rid altogether of the Judge of Assize for civil matters because, as I read the Bill, Deputy Redmond was wrong in imagining that the Judges of Assize might go round and might be asked to take up Civil cases. If they do go out it will be merely to deal with criminal trials. One of the drawbacks to this trial by a jury of six in the County Court was that when the appeal was heard by the Judge of Assize it was really a rehearing, and the Judge was in no way bound by the finding of that jury. It would be irregular for me, I think, to raise that point now, because it will arise in the interpretation of a later Section. The only thing I would have to say now in connection with amendment 16 is that it opens the way for raising that further question, because if we decided to lay down the doctrine that it was a matter of right for any party to an action to have a Judge trying the case with a jury of twelve, even having granted that power, there would be solid ground upon which to raise a further question as to the effectiveness or otherwise of the verdict arrived at by that jury. But upon second thoughts it seems to me that even with the amendment just passed, we have the standing upon which to raise the further question under the other Section. Consequently I withdraw the amendment with your permission.
Amendment, by leave, withdrawn.
Amendment by Mr. Alton:—
In page 12, line 5, to omit the words "Provided that" and to add, after the word "jury," line 10, the words "Provided that in every jury case where the contending parties do not all reside within the limits of the same Circuit as defined by Section 37, the Circuit Judge may, if he think it desirable in the interests of Justice so to do, direct that such jury trial shall not be held in the immediate locality in which either or any of such contending parties shall be resident, or have a place of business or office, but shall be held in such other town or place within such Circuit as the Judge may direct, due regard being had to the convenience of suitors and witnesses, and no appeal shall lie from the exercise of the discretion of the Judge in this respect."
I beg to withdraw that amendment. I am sure the Government will consider the suggestion that I have made.
Amendment, by leave, withdrawn.
Question: "That Section 48, as amended, stand part of the Bill," put and agreed to.
Amendment by Capt. Redmond:—
Before Section 49 to insert a new Section as follows:—
"When any action shall be pending in the Circuit Court which might have been commenced in the District Court, any party to such action may, at any time before service of notice of trial therein, apply to the Circuit Court that the action be remitted or transferred to the District Court, and thereupon, in case the Court shall consider that the action is fit to be heard in the Circuit Court, it may retain such action therein, or if it shall not consider the action fit to be heard in the Circuit Court it may remit or transfer such action to the District Court in which the same might have been commenced upon such times in either case and subject to such conditions as to costs or otherwise as may appear just."
That is unnecessary. It has been provided for.
Amendment, by leave, withdrawn.
Section 49 put and agreed to.
Section 50 put and agreed to.
SECTION 51.
There shall be transferred to the Circuit Court all jurisdiction which, at the commencement of this Act, was vested in or capable of being exercised by Recorders, County Court Judges, and Chairmen and Courts of Quarter Sessions, or any of the same in Saorstát Eireann (save such jurisdiction of Justices at or of Courts of Quarter Sessions as is hereinafter conferred on or transferred to the District Court) and the provisions of Sections 21 and 22 of this Act shall applymutatis mutandis to the jurisdiction vested in and transferred to the Circuit Court by this Act.
I move:—On page 12 to insert after the word "jurisdiction," line 21, the words "not here-inbefore expressly excepted."
I am not quite sure about the necessity for this but I think it is necessary. I move it really to get the Government's Law Officers to consider the necessity for inserting the words, and I myself am disposed to think that they are required.
Amendment agreed to.
Question: "That Section 51, as amended, stand part of the Bill," put and agreed to.
SECTION 52.
Provided that the jurisdiction hereinbefore vested in and transferred to the Circuit Court in civil cases shall be exercised by the Circuit Judges severally as follows:—
(i) In actions relating to Title to Land and Rectification of the Register, by the Judge for the time being assigned to the Circuit where the lands in question are situate, or where are situate the lands out of or in respect of which any incorporeal hereditaments in dispute issue or arise, or where the larger portion of any such lands may be situate.
(ii) In Equity Cases, by the Judge for the time being assigned to the Circuit where matters of such kind have been heretofore heard by the Courts superseded by the Circuit Court.
(iii) In Probate Matters and Actions, and Actions for Administration of estates of deceased persons, by the Judge for the time being assigned to the Circuit where the testator or intestate at the time of his death had a fixed place of abode.
(iv) In lunacy, by the Judge for the time being assigned to the Circuit where the lunatic or alleged lunatic ordinarily resides.
(v) In all other cases, by the Judge for the time being assigned to the Circuit where the defendant or one of the defendants ordinarily resides or carries on any profession, business or occupation.
I beg to move:
"In Sub-clause (v.), line 52, to insert after the word `where' the words `the plaintiff or' and at the end of the sub-clause, line 54, to add the words `Provided that if the case comes for hearing in the Circuit Court where Plaintiff resides where a bona fide defence can be shewn the Court may transfer the hearing of such a case to what appears to it to be a more convenient venue, having regard to the convenience of witnesses or any other good consideration which may occur to the Court.”
I think the principle that is embodied in my amendment is also covered by a Government amendment later on. Might I ask for the assurance that it will be dealt with by the Government? The principle that I seek to have embodied in the Bill is in all cases to extend the privilege given to the defendant to the plaintiff in cases where the Judge is clearly of opinion that the case defended is not prejudiced by being heard or dealt with where the plaintiff resides. I think that is obviously a privilege that he is entitled to; for instance, in a case where a claim is for a sum of xmoney against any person in a remote part of the country, the case is quite clear, and I think it would be a hardship on the plaintiff to be asked to go down to the Circuit Court to prove it. If he is allowed to start his case in Dublin, say, and prove it by documentary proof or otherwise, I ask that he shall not be compelled to go to remote districts to prove. If a defendant puts in a case that has substance in it the Court would have power to remit it to the district in which the defendant resides, and there is no objection to that, but where the case could be made clear to the Judge that the applicant has a case where no reasonable defence is put in he should not be compelled to go down to the Circuit Court in the defendant's district to prove his case.
I would like to know from those who are capable of dealing with this matter what is the present practice. Is it not right to say that the assumption in such matters of civil liability is that the case must be dealt with rather at the place of business or residence of the defendant? That is the principle which has been hitherto embodied in the law. We know, of course, that in many cases the trial has been centralised, and the principle seems to me to be a good one. When the plaintiff has an action it should be in the area of the defendant, and it is the plaintiff himself should bear the responsibility of suing in the locality in which the defendant lives or has his business. It is rather reversing the procedure. One can imagine, for instance, a business firm in the city having accounts in all parts of the country, and in a wholesale manner taking such action as will mean that all the defendants will have to come to Dublin. I think the other course is much more reasonable, and that to remit should be the exception, that it should be a remission from the local Court to the central Court, and not the other way about. I hope unless there is a very definite case made and much more forcible argument used in favour of this amendment that it will not be accepted.
This amendment is much the same as one in my name, and perhaps it would meet Deputy Johnson's wish if I explained what actuated the putting down of these amendments. It is true that the existing practice in the County Court is to proceed in the place of residence or business of the defendant, but we are giving these Courts much larger jurisdiction, and giving them power to deal with very much larger sums of money. It is perfectly right, and I concur with it that when you are giving the power to deal with larger sums of money the interests of the business community should be considered. Deputy Johnson suggests it would be inconvenient for defendants to be brought up to Dublin from the country, but it would be equally inconvenient for a business firm to have its books posted to Letterkenny, say, one day, and to Listowel or to somewhere else the next. It is not an insurmountable difficulty; it could be surmounted, no doubt, by an office organisation, but in the case of a wholesale firm with accounts all over the country, and a considerable number of bad debts, this Section is going to give them more difficulty and more trouble than they have had in the past. I think the President has admitted that this Bill is not very popular in the city. I have had representations—I do not know whether Deputy Johnson has had them, too, and he represents the same constituency—from various classes of business people who feel that this is going to handicap them in their business. I would not mind that so much; what I am afraid of is that the result of leaving the provision as it stands in the Section and not adopting the amendment of Deputy Hewat or the one I have on the paper will be to restrict credit, and that in the future the wholesaler will not take the risk of having to send down to cases all over the country, but will say "Cash with order," and that would cause a very serious disturbance in the business world. It will not be for the convenience of the retailer; it may be for the convenience of the wholesaler, but generally speaking it will check business and make the running of it less smooth than it had been before. Business has had great difficulties to contend with in the last few years, and I do deprecate any course that is likely to restrict credit and make it more difficult for the man carrying on business than it is at present.
I believe the amendment, if adopted, would establish something which is contrary to the long-established rule in other countries, that the plaintiff must follow the defendant and sue in the defendant's district. If it were to achieve the purpose which has been described by Deputy Hewat and Deputy Cooper, I take it we might also take into consideration what other reactions might occur. We will take it that I may be on holiday or visiting some remote part of the country and some person, who is displeased with something I do down there, takes an action against me. In that case I would be brought to a district a hundred miles from my base and would have to defend the action there. It is possible that more vexatious litigation might take place than would be compensated for by any advantage derived by the amendment. As I understand it, it is open to a person, if he is dissatisfied with the decision in a certain Court, to go into the High Court. A question then arises as to a change of venue, and I think these questions are usually decided upon the matter of convenience. If that be so, I should say the plaintiff would have no cause for complaint, and should it be likely to happen that dissatisfaction would be found with the juries in any one of these eight Circuit Courts, I am positively certain due consideration will be given to that fact if an application be made for a change of venue, and that the case would subsequently come to the High Court in Dublin. I do think what is the established practice in every country ought not to be changed here. If, even for a period, dissatisfaction should exist with the Circuit Court, we should keep our minds fixed on the fact that if people practise abuses or interfere with the institutions which we set up, then it is brought home to these people that there are alternatives to such a policy, and that justice in the long run will prevail. There will be fair judgements in these Courts, and nobody can complain that the defendant has not as good a right in this country as he has in any other. I do not see that it would be wise, apart from other considerations, to adopt the amendment.
The real meaning of the amendment is that in case of debt, especially in cases for the recovery of small debts, if the plaintiff has clear documentary proof of the amount being due he ought not to be put to the expense and trouble of going to a distant part of the country. It does not provide that the case should be heard there in the event of a dispute, because where the defendant has a bona fide case he has not to come up at all, and automatically the case would go to the defendant's area. I do not wish to undermine the principle that the defendant has a right to have his own case tried in his own area. I do say that the practice in the past has very often been that where the defendant is not prepared to pay the amount of his debt he has no earthly claim to delay collection, but he makes use of it by putting in a defence with no facts to justify it. In this instance all the defendant has to show is that he has a good defence, and if it is a reasonable one, so far as the plaintiff is concerned, he may be called upon to waive his convenience against that of the defendant. It is really in cases where there is a bogus defence, or no defence, that the defendant should be brought out of his own area.
Has the Deputy read the second paragraph of Amendment 15?
That is exactly what I referred to when I said it was not very clear. If that is a general provision it fairly well covers the case.
It only refers to the first part of that amendment.
Would it, in a case of that kind, carry High Court costs? That is the real difficulty. If you took a case, normally in the purview of the Circuit Court, to the High Court, you would have to pay very much higher costs.
I wonder does the second paragraph actually meet the case. The essential words appear to me to be "from any one place of hearing to any other within his circuit," whereas the amendment of Deputy Hewat says that the Court may transfer the hearing of such a case to what appears to it to be a more convenient venue. The two phrases I have quoted clearly are not co-incident at all. I think the argument the President put forward against this amendment neglected other important words of the amendment. It says: "The Court may transfer the hearing," and it goes on to say, "having regard to the convenience of witnesses or any other good consideration which may occur to the Court." The force of all his reasoning in the matter is not in the least applicable to this amendment, as the amendment leaves the question of essential justice where the Bill has put it and only allows the venue to be changed when the Court has been justified that good consideration has been shown. I think we may take it that, human nature being what it is, no Circuit Court Judge is going to remove the venue outside his jurisdiction unless very good consideration is shown. The normal dignities, which may sometimes decline to be jealousies, attaching to his office would constrain him to keep it if he could. Therefore, all the argument of the President against the clause remains in spite of the addition of this amendment. The Court has first to be justified, and only when the Court has been justified can the venue be changed. Now, we come to the other point. How far, and within what range, should that change occur? The second paragraph of Section 15 limits it to the circuit. The amendment now before the Dáil does not do so. I think that as the Circuit Court Judge will keep what he can in order not to diminish his authority, the extra addition may, with advantage, be adopted.
I wonder would I be in order in suggesting that Amendment 15 be re-drafted to make it more clear in the first paragraph that several different matters are being dealt with.
It is merely a matter of printing. With regard to questions raised by Deputies Major Bryan Cooper and Hewat, it is the intention that the Circuit Courts should have the same jurisdiction as the High Court has. In some cases there the defendant put in an appearance where he had no defence. Notwithstanding that appearance it was open to the plaintiff to apply for judgment on the ground that there was no defence. The Court could then give final judgment. It is the intention that Circuit Courts should have that power.
Amendment, by leave, withdrawn.
I think the business community will be very much rejoiced by the President's statement, and therefore I withdraw Amendment 21 on the Order Paper.
Amendment, by leave, withdrawn.
I move:
"In line 54 to add at the end of sub-clause (v.) the words:—`save in the case where the plaintiff or one of the plaintiffs ordinarily resides or carries on any business profession or occupation outside the jurisdiction of Saorstát Eireann, in which case it shall be exercised by the Circuit Judge for the City and County of Dublin."
This deals with a different issue. I move it because I want to deal with a doctrine laid down yesterday in this Dáil by Deputy Magennis in which he stated he did not want to make it easy for anyone in Manchester to collect debts in Ireland. We look to Universities for enlightenment. That seems to be a doctrine of darkness. A man should be able to collect his debts whether he lives in Massachusetts, Manchester or Mullingar. It is a test of civilisation. I am quite certain that that statement of Deputy Magennis, if it had gone uncorrected, would have done a vast amount of harm. It is known that there is a propaganda against this country, and so far as one individual can, I have tried to meet that propaganda and fight it. I put down this amendment so that it would show that we were prepared to go forward and meet the fears of people doing business outside this country. It has been said that it would be impossible for a North-Irish or British merchant to get decrees in the Irish Courts. I am not enamoured with the provisions of the amendment. What I would prefer would be that if I should withdraw this amendment the Government would consider the inserting of certain words in the Bill to make it clear that anyone could go to the High Court and get a decree. The President warned us against believing all the Attorney-General said in interviews. I had one with him about this, and I think what he said was genuine. It would allay the fears of such people as are concerned and would have more justice done for the country if the clause I suggested were in the Bill.
I am very much indebted to Deputy Major Bryan Cooper for bringing me back to the days of infancy, and giving me elementary lessons on elementary matters. I did not require to be told, and I did not expect to be told, that I ought to uphold the credit of the Irish nation at this particular moment, when so-called friends of the Free State and so-called defenders of the Treaty carry on insidious propaganda against its credit. There is scarcely a British newspaper, more particularly a Sunday issue, in which this propaganda is not sedulously cultivated. When I spoke against Deputy Figgis' arguments it was against Deputy Figgis, and not against any proposals as to the machinery for the collection of debts, whether the creditor in question lived in Massachusetts or in Mullingar. I protested against legislation being made to facilitate foreigners which was to be withheld from natives, a very different proposition. Now, let us consider Deputy Major Bryan Cooper's amendment. What does he propose? If a merchant in the City of Dublin is owed money by one of the natives of Mullingar, all the inconvenience that he considers it to be must be suffered by the merchant in Dublin, but happily if it were a merchant in Liverpool or Birmingham, thanks to Deputy Cooper, there would be a special clause in this Bill to make things easy for him. I believe in equality being equity. "Many of the critics," said the Attorney-General in that interview from which I quoted to-day, "exercised their criticism because they have not taken the trouble to read and understand the Bill." There is nothing to prevent those cases from being taken in the High Court in Dublin and remitted to some other place. It may be even sent down to the District Justice. If people take the trouble to read the measure they would find one of the earliest things we passed contained that provision. In the amendment we passed half an hour ago the case may be transferred from a Circuit Court to a High Court. If your Manchester merchant over whose woes we are to wail finds it more convenient for his witnesses and his books or for other reasons not to have the case determined in one of these local courts, then he need not choose that venue.
But why are we to introduce a special clause to overload the District Court for the City or County of Dublin merely to facilitate trade outside? There is another question besides this question of our credit. I do plead guilty, even though I have also to confess to the other crime of being a University representative, to the view that I would like to see Irish products bought and sold in Irish shops by Irishmen. That is another reason why, I think, this kind of proposal is not altogether desirable. Furthermore, I know of at least one debt-collecting agency which makes huge sums of money—as I mentioned yesterday and I repeat it to-day, advisedly—by this practice of slipping in a writ, as it is called, on behalf of one of those Cross-Channel firms that are creditors, and again and again men pay up, and pay the heavy costs incurred by the transaction. That is not quite a reasonable thing to advocate. I suggest that when Deputy Major Cooper comes to read the official report of what I said yesterday, he will discover that he spoke in haste, to use a Biblical expression, and he knows the rest of the context.
Deputy Magennis has suggested that one or two of us did not read the Bill. I am afraid that he has not read the amendment paper, because he will see that this amendment of mine is consequential on the amendment immediately before it, and it was necessary to make some provision for cases where a plaintiff resided outside the jurisdiction of the Saorstát. I agree with Deputy Magennis that I would like Irishmen to deal with Irish firms for Irish bread and butter, but you must recollect that there are things you cannot buy in Ireland and you have to go to England for them. In any case, if a man chooses to go to Manchester he ought to pay his debts there.
As regards equality, I agree that people should be treated with equality. It is just as troublesome for a man to come from Belfast or Liverpool to Dublin, as for a Dublin man to go to Mullingar and have his case tried. I do not propose to press the amendment, and I am perfectly willing to withdraw it, having made clear that it is possible to have a case tried in the High Courts.
With regard to amendment 17 yesterday which was down in the names of Deputy Redmond and myself, it was a remitting amendment, allowing any action to be remitted. I drew attention to the fact that the Government amendment tabled on page 6 covered that, and provided for a variety of things. Therefore, I gave evidence yesterday of having read the amendments, and if someone misconceives my position to-day that does not alter the fact.
What Deputy Magennis has said more or less covers what I intended to say on this matter, and it was this:—That the plaintiff who resides outside the jurisdiction can orignate his proceedings in the High Court, and the High Court then has full power to deal with the matter from the point of view of fixing a suitable venue, having regard to the convenience of all parties. For that reason I do not think that Deputy Cooper is losing anything by withdrawing.
Then I desire to withdraw the amendment.
Amendment, by leave, withdrawn.
Sections 52, 53, 54, and 55 put and agreed to.
SECTION 56.
The following matters shall be excluded from the jurisdiction of the Circuit Court:—
Habeas Corpus, Certiorari, Quo Warranto, Prohibition, Information and Mandamus.
I move:
In line 13, to add at the end of the Section the words "and all cases exceeding in jurisdiction the jurisdiction given to the Circuit Court by Sections 48 and 49 of this Act."
This amendment is merely lest some ingenious person should regard this as the only exclusion from the jurisdiction of the Circuit Court. In earlier sections it is positively laid down that the jurisdiction of the Circuit Court shall be so and so, and then this declares that there are excluded from such jurisdiction these matters, and it is merely to make absolutely water-tight and unattackable the position that these words are put in. Some may consider that they are superfluous.
I suggest to Deputy Magennis that the amendment is unnecessary, and, apart from that, it would deprive the Circuit Courts of the jurisdiction that is given to them by consent in another clause.
That is so. I withdraw my amendment.
Amendment, by leave, withdrawn.
Section 56 put and agreed to.
Sections 57 and 58 put and agreed to.
SECTION 59.
Any action in the Circuit Court may be registered as alis pendens and the judgment in any action for any sum exceeding £20 over and above costs may be registered in the Central Office of the High Court in like manner as actions and judgments of the High Court.
I beg to move amendment 54, which reads:—
In line 27, after the words "lis pendens” to insert the words “where similar action in the High Court could at present be so registered.”
This is merely to correct a phrase that would otherwise be too wide in its scope. The only action that can be registered as a lis pendens in the High Court is a case affecting land. It might be interpreted here without the qualification of the amendment that any case might be registered so that a man, for example, who wished to sell his land, might be held up by some one registering as a lis pendens, if there was a case of breach of promise against him, and heavy damages were looked forward to.
Deputy Magennis has stated the procedure quite accurately, and as far as the Government is concerned there is no objection.
Amendment agreed to.
Section 59, as amended, put and agreed to.
SECTION 60.
The rules to be made under this Part of this Act shall provide for the service of all originating documents or notices both inside and outside the Circuit of the Judge before whom the matter is pending, and for the enforcement of any judgment or order of the Circuit Court by any process, appropriate to the particular case, against the person or property of any person amenable thereto in any part of Saorstát Eireann.
I move the amendment in my name. It reads: "In line 32, to insert immediately after the word `originating' the words `or other.' "
The Section, as it stands, provides for the service of originating documents, but, in the ordinary course of practice, there will be other documents, the service of which will have to be provided for.
Amendment agreed to.
Section 60, as amended, put and agreed to.
SECTION 61.
Save as in this Act is expressly provided an appeal shall lie from any order of the Circuit Court in civil cases to two judges of the High Court sitting in Dublin. If such two judges differ in opinion the appeal shall be re-heard by such two judges with the addition of a judge of the Supreme Court.
I beg to move as an amendment:
"In line 29, to substitute ‘three' for ‘two,' and in line 40 to delete from the word ‘if' to the word ‘Court,' line 42, inclusive."
This amendment necessitates a further amendment which I move to the next Section; that is, to delete the whole Section. The object of this amendment is perfectly clear, and that is, instead of having two Judges in the Court of Appeal, in the first instance, with the possibility of calling in a third Judge, in case there is a disagreement, that there should be three Judges in the first instance, thereby obviating the possibility of anything in the nature of a disagreement. I do not think that any words of mine will be needed to recommend this proposed change to the Committee because the system as proposed in the Bill is only a matter of redundancy and duplication of hearing. It strikes me that it will be far simpler to have the original Court of Appeal consist of three Judges. I do not care very much whether they be two High Court Judges and one Judge of the Supreme Court, or whether they are three High Court Judges. But it seems far more sensible to have the original Court of Appeal consist of three Judges in the first instance than have it consist of two Judges with the possibility of there being disagreement, and then the necessity of calling in a third Judge and having another re-hearing on appeal. I beg to move my amendment.
I would like to support the amendment for fear that the next amendment for which I am responsible might meet the happy dispatch. What Deputy Redmond has pointed out is the cardinal defect in this arrangement. You can suppose a case argued at great length by eminent Counsel before the Circuit Judge. The case is then heard again on appeal and argued again before two Judges. These Judges disagree, and Counsel and the case will be re-heard again. Notice what happens: You will have two final Courts. Suppose the law is laid down on the decision on appeal then the Circuit Court Judge is bound by it, because the thing is final. But the very same point of law may arise, independently in a High Court case, and may then be brought to the Supreme Court of Appeal, and the Supreme Court, as a Court of Appeal, may decide quite otherwise, and then that is the law; but when the same point arises again with the unfortunate Circuit Judge he is bound by the decision in the Appeal taken from him on the previous occasion, notwithstanding the contrary decision of the Court of Appeal, so it does not seem as if the old idea expressed in rhyme which I remember well, by junior barristers, is to have effect, that, namely, "When the Court is made up of three you have a clear majoritee." It is easier to get a decision straight away by a majority of two against one, where there are three judges, and it saves all the trouble and involves the saving of other things as well, so I think it would be a very decided improvement to let the Appeal from the Circuit Court come before three Judges.
This provision is in accordance with the report of the Committee. The system of appeal to two Judges, I understand, works well in England and elsewhere. However, the matter is one we are disposed to consider further with a view to seeing if we could come to an arrangement that would meet with general acceptance. I would not like to accept the amendment as it stands, because I do not think we quite agree with it, but we might be able to make some change to meet the Deputy if the amendment were withdrawn now and time is given to consider the matter further.
(at this stage) resumed the Chair.
I am very much obliged to the Minister for Finance for what he has said. What I gather is that he is not now prepared to accept, nor to absolutely reject, the substance of my amendment. I would, therefore, like to impress upon him, and those responsible for the Bill, the necessity for considering the matter which he has so kindly promised to do, and I will, therefore, withdraw the amendment.
Amendment, by leave, withdrawn.
The result of that is that I also ask leave to withdraw my amendment, No. 27, which is: Line 41, after the word "opinion," to insert the words "the decision of the Court below shall be affirmed to either party on appeal to the Supreme Court against such a decision."
Amendments 26 and 27 are by leave withdrawn.
Question "That Section 61 stand part of the Bill," put and agreed to.
Section 62 ("Decision on Appeal final") put and agreed to.
SECTION 63.
Such appeal shall be grounded on the report of an official stenographer, but the Court which hears such appeal may if it think fit admit fresh evidence, either oral or on affidavit, and may refer any matter arising on the report of the official stenographer to the Circuit Judge for his observations thereon and may either order a new trial or enter such judgement, in the case, as to the Court shall seem fit.
I beg to move my amendment to delete this Section. The amendment is directed against this Section, which provides that appeals in the Circuit Court shall be taken on the report of an official stenographer. I gather that no evidence shall be taken in such an appeal except it be fresh evidence. There are precedents for this Section in the English Court of Appeal, but I do not think they are very satisfactory. Even in these cases I believe it is usual for the Judge's notes to be put in for consideration by the Court of Appeal. These notes are made by a trained lawyer and ought to give every aspect of the law. Take one specific instance. The notes taken by a County Court Judge in England in cases argued on appeal come before the House of Lords, and it not infrequently happens that the House of Lords sends these notes back for further explanation. In the event of an appeal going to the High Court I cannot help thinking that it is a mistake to do away with the bringing up of witnesses. I am sure the Government's desire was to save expense to the litigants, but it must be remembered that the litigants will have to pay for the transcript of the shorthand notes, which may cost anything from £5 to £10. That sum, in many instances, would pay the expense of bringing witnesses to Dublin for the hearing of the appeal, and I think that would be more satisfactory than to have the appeal decided solely on the official stenographer's report.
Then there is the question of accuracy. I do not know if the Government fully realises that as regards these shorthand notes which are solely to be relied on at the hearing of the appeal, it is a matter of vital importance to the parties concerned that they should be full and accurate. The Minister for Home Affairs was good enough to tell me some days ago that it was proposed to employ a staff of eight official stenographers. That is to say, there would be one for each Circuit Court. Everyone knows that if a stenographer has to sit in Court reporting a case that lasts for six hours, that his accuracy is bound to suffer. Further, when he has his notes taken down he has got to transcribe them, and that will occupy twice as long, at least, as the original notetaking. I am sure that more than eight stenographers would be needed for this work, and that of course would mean that the cost would be higher than the sum estimated. If the report furnished by the official stenographer is to be the only evidence considered in the Court of Appeal you must get highly expert men, and not merely highly expert men, but absolutely incorruptible men. You will have to pay them on such a scale that there will be no danger of corrupting these men. There is a story told of the late Lord Morris, who was a Lord Justice of Appeal. A neighbour of his in the Claddagh came to him and said, "My Lord, I have a law case, and what am I to do about it?" His lordship told him to go to a solicitor, who would charge him two guineas, and that the solicitor would brief a barrister for a fee of three guineas to plead the case in court. Sometime later Lord Morris met his neighbour and said to him, "Well, Tom, how did the case go?" The man replied that all the witnesses in the case were Irish speakers, and for that reason he did not brief a barrister, but, he said, "I briefed the interpreter and that only cost me £2, but I won my case."
I am afraid that if this evidence be the only evidence in the Court of Appeal, we shall have to try to brief the stenographer. It will be very desirable to pay the stenographer very well. The estimate given by the Minister allowed about £500 per year each, but travelling expenses have to come out of that, and they will have to travel all over the circuit. The District Justice is allowed £200 yearly for his travelling expenses. The expenses of the stenographer will be just as much, and I do not think that a £300 a year man will be a man who will fairly exercise such a tremendous responsibility.
My second reason for wishing this provision deleted is that though I am not a barrister I have had, under the rather anomalous conditions that prevailed in the past, some experience in the administration of justice—at least I hope it was justice. I found that one learned far more from the demeanour of the witness, from the manner in which he answered the questions put to him in examination and cross-examination, from his slowness or from his glibness, as to what the real truth was than one would from reading his words, even though taken down with the utmost accuracy and correctness. I do not think that this Section 63 is part of the essential fabric of the Bill. Its deletion would not ruin the Bill irreparably, and I do beg the Government, although I know they attach importance to it, as the President mentioned it in his Second Reading speech, to take this very carefully into consideration, because it is my deep and earnest conviction that by maintaining it you may sometimes cause a serious miscarriage of justice.
On this matter I have to oppose the amendment. Deputy Major Cooper referred to the fact that in England the judge's notes have been found unsatisfactory on some occasions. I think the general impression on the part of the Committee was that they were very unreliable. At all events, the main central factor was that the County Court was, by reason of a re-hearing taking place on an appeal, turned into more or less of a farce. In other words, the evidence that would be given at the County Court was exploited for the purpose of an appeal. I think it is very important that in this Bill that system should not be perpetuated. The idea is that there will be at the Circuit Court a real genuine hearing and a real genuine decision.
In the absence of a re-hearing by the Court of Appeal, it is obviously desirable and important that the Appeal Court should have, as far as that can be got, a verbatim report of the proceedings. The only way to do that is by having the stenographer present to take down the actual verbatim evidence. Surely a judge with verbatim evidence before him of a case which comes on on appeal, will very easily be able to pick out the weakness and strength of the different sides, and in the light of the decision by the Circuit Court Judge, all he will have to examine really is, on the evidence, was the Circuit Court Judge right in his decision.
Deputy Major Cooper refers to the cost. Obviously it will amount to a considerable sum of money, but will it cost more than the almost uniform appeals taken from the County Court Judge? I venture to think not. I venture to think that you will have a regular system. When you go into the question of whether a stenographer is going to be entirely independent and honest in his reports, we must assume in the future, as we have no right to assume otherwise in the past, that people who are appointed in connection with the Courts of Justice and by the Government in every Department, will not have a lower standard of honesty than the people of the country as a whole. To assume that a stenographer is going to be got at by litigants is to assume that your whole judicial system is in such a weak state that any, or every, part of it is liable to pervert the cause of justice for particular ends. Well, I am not going to assume that. I may not have as high hopes of the future as others, but I certainly have before my mind in the new order of things we have entered upon the hope that we will march forward and not backward. I do not think the Deputy has any reason to think that the Government in its administration of the country is going for one moment to tolerate that justice shall be brought into such a state of disrepute that we cannot rely even on a stenographer to be above anything in the nature of bribery.
As it is getting close to 4 p.m., I move to report progress. There is no possible chance of finishing the discussion this evening, so it will have to be left over to the next sitting.
Agreed.
