Deputy Finlay has talked to this Bill as if we were discussing an expenditure of £9,000. We are in fact discussing the cost to litigants. The increased cost to litigants is going to be much more than what is represented by this £9,000. The figure now being cast around this House is the emoluments of two Judges and the travelling expenses of the Criers. We are starting off with bigger expenses, because the Court fees are going to be raised. I have asked by how much, and I will not be told. Until we know that figure we do not know what is the extra cost to litigants. They are going to pare something off that, they hope, by reducing the legal charges otherwise. It is certainly not an amount of £9,000 or £10,000 that is under consideration. The Attorney General has spoken in reply to me as if the system we were going back to were the system he would uphold on principle. I wonder is it? I would agree with the remarks made by Deputy Burke, and which will be made no doubt by other people, that if you are going to have a fact question tried you cannot have that tried on the note. You must see the witness who is swearing to the fact. Therefore, you may say that if you are going to have an appeal on fact you must have a rehearing. So you must. But why have it? What country, other than this, has it? Why, in this country alone in the whole world, do we think it is necessary to give your witness two bites at the legal cherry? We are unique in that. This is the only place, I think, in the whole world where in regard to these small cases, you are going to have a second run of the witnesses. I do not think the system can be upheld in principle.
There is very good evidence on that point given by the present Registrar for County Monaghan, Mr. Murphy, who was a very distinguished solicitor before he took up that position. He countered that argument, and the other argument which I am going on to later, on the amount of education which juniors got from watching the seniors sweep down to the circuit and take the briefs which they might have got if the seniors were not there. Mr. Murphy uses the very apt phrase, that it was noteworthy that England, who inaugurated the system here, never tried it herself. She tried it on the dog here, but had sufficient wisdom, after seeing how it worked here, not to adopt it herself. In England the system is that for cases under £100— the figure has been raised; it used to be a smaller sum—where there is a compulsory resort to the County Court system, there is no appeal except what is in fact by way of a case stated on point of law. You finish once and for all. That is a good system. If you are going to have any other system I agree that you cannot have a matter of fact heard on the note. You must see the witness, and the man who is going to find out most from the witnesses is the man who sees them on the first occasion or on the second occasion. I do not think he will get the truth on the second hearing. He will get not merely a rehearing but a readjustment of the facts. You must make up your minds on the principle of this matter. You will either have a trial of fact finished in the Circuit Court, without appeal only on a point of law, or else you will adopt this system—for no reason yet stated that I can ascertain—of having a second lunge at your facts. In that connection it is worth while seeing what the Committee—on whose report the Attorney-General is prepared to stand when it suits his purpose, and probably will throw down otherwise— recommended. One member of that Committee fought definitely against the prevalence of the idea that perjury was rife in the country and had been increased by the rehearing. Although he fought strenuously against that, the Committee in fact accepted that point of view. Their decision was this: have a rehearing, but have the stenographer's notes; in other words, their idea was to keep a record of what the man said on the first occasion, and that then you had some check on perjury. Are the Government carrying out that recommendation? By no means. We are going to have a rehearing unfettered by the notes.
As between principles, I do not know where we are. You can either say: "We will give you good judges. They are good judges of fact, and, when they have judged it on fact, there the matter stops in regard to those small cases"; or you can say: "For some reason, which may be disclosed soon, we are going to have a second go at the facts, and we are going to do it without the protection which the Courts of Justice Committee recommends—the guardianship of the notes to prevent too blatant perjury, or too much evasion of what was sworn to on a previous occasion." I do not know whether that was a scheme which the Committee put up because they were impressed with the delay in the hearing of the appeals, and the number of the appeals outstanding. The phrase which I used about where the system developed has been challenged here. The Chief Justice gave evidence before this Committee. It is reported at page 317 of the Joint Committee report, question 4636. He said:—
"First of all, the `old system' as regards cases over £50 jurisdiction, was the same system that now prevails.
There never was a rehearing of that kind of case. The `old system' as regards cases under £50, that is the old County Court appeal, had an historical basis which no longer exists. From inquiries that I have made it does not exist in any other country. I cannot find that it was ever thought of anywhere save here. It has a curious explanation here. There is an actual historical explanation for it. Before the setting up of the County Court you had a system of hearing cases by members of the Bar, what was known to the older generation as the system of the assistant barrister, who went over the country and heard cases. He was not a judge. The right, however, was given to appeal to a judge who heard the case over again. That is the real explanation of the thing which is absolutely unique—simply that a man who was not a judge heard a case and the people were given the right of appeal to a proper judge. That no longer exists. Cases are now heard in first instance by judges. Therefore that justification for it has gone."
The President of the High Court, when giving evidence on this matter, referred to the other point which I spoke of—the hurried way in which cases were dealt with. It is reported at page 355, in the answer to question 5151.
He said: "My second comment is this," and then he talks about his experience of the circuits, and went on to say: "My view of the hearing of appeals that went on under the old system is certainly not such as would make me recommend that system for the hearing of appeals, to any tribunal, at present. If I may say so, there is a certain amount of halo cast about the old system of appeal. My own experience was nearly always a sense of dissatisfaction with the hearing of appeals on circuit. I think there was a tendency in all towns, except the last town of the circuit, where the judge had unlimited time, to rush through cases, and cases were rushed through in all the towns except the last town of the circuit. I am also of opinion—perhaps this is a different branch of the case that you have put to me—that the work on circuit was not adequately prepared or adequately done by counsel." He was asked then by the Chairman: "So that the greater speed with which we have been told appeals were disposed of before was due, in part, to the lower jurisdiction as compared with the present Circuit Court jurisdiction, and also to some extent to the fact that, owing to circumstances, things were hurried?" and the President of the High Court replied: "That is my view." Other witnesses said the same thing. There is no doubt about it. Anybody who gets in touch with some of the older generation, who had experience, will find that there was that tendency to rush. There was definitely the view prevailing that they had got their chance before and had missed their mark, and there was not so much thought for them on the appeal.
That is the system to which we are to get back. It is going to involve expense and, I hold, certain disadvantages to the community. The Committee, although one member strenuously opposed the idea that perjury was either in the country or likely to increase by reason of this, was so impressed that they did bring in, and it is pointed out as a necessary safeguard, a recommendation that on the appeal by way of rehearing, the notes should accompany it. That is a safeguard against the door thrown open to perjury at the rehearing. We are going away from that and going to have an appeal by way of re-hearing, with witnesses paraded a second time, and nothing to check up on them with.
I understand that this system in England sprang up in a way similar to what sprang up here, only it took another course and a better one. There is a Commission sitting at present on the dispatch of business at common law in England, and evidence has been given that the County Courts Act of 1846 established a system of having debts of under £20 recoverable in a certain way, taking the place of certain ancient local courts. They did consolidate that into a system in which a judge went round—of always keeping to the system of a judge going round. Knowing that a judge has gone round, that finishes it. It can go further, but only or mainly on a point of law.
I do not think that on the ground of any particular principle this change can be defended. I do not think that anybody would put it up. Nobody would think of reintroducing it if it had not been for the trouble about the delay, in the hearing of Circuit Court appeals under the new system, and the fact that there was a big accumulation of arrears. I place against that the facts that the Attorney-General has completely ignored in his reply. There were accumulations. You have got to the point when these accumulations were being eaten in on. There are still about 200 outstanding, and that 200 represents a year's work. It seems bad that cases, should stand over for rehearing on appeal for twelve months. That number is being lessened. Why is it being lessened? For two reasons. There are fewer cases coming on appeal because there are fewer cases coming into the Circuit Court. There are fewer cases originating in the High Courts, and therefore there is more time for the judges to hear appeals. Occasionally some very big case will occupy the court for a long time and throw them out of gear, but, generally speaking, the figures bear out what I say, that you have work originating in the High Courts dropping from something over 7,000 cases to something in the region of 4,800. Clearly there cannot be the same call on the time of the High Court judges as there was. Then you have Circuit Court cases going down by one-third. There is proportionately a fewer number of cases on appeal, and there is clearly fewer going to come up than before. You have again, apart from the matter of principle, the argument on fact. There is a fewer number of cases in the courts, fewer appeals, and more time to hear appeals.
I point again to the recommendation of the Committee. The Committee mainly founded themselves on the observation: "Objections have been urged to the older system, but it worked admirably and gave satisfaction to litigants and the public." They recommend that the rehearing should be to two judges. It must be either to one or two. The witnesses were of opinion that the rehearing should be by two judges, and the Committee agreed with that opinion. Finally, they recommend that the official stenographers should be retained and that their notes, at any rate, should be available for the judges. They also say that they should be available for cross-examination by counsel of witnesses whose evidence differed from that which they gave in the Circuit Court.
When that Committee was established and reported, members of the Party who now form the Government objected to any increase in the costs until such time as either the increased prosperity of the country warranted it or the volume of business in the Superior Courts urgently required it. So far from the prosperity of the country warranting it now, there is less prosperity than there was. So far from the business in the Superior Court urgently requiring it, there is less business than before. Despite that, the Government, formed from the Party whose members signed the report with that objection, saying that whatever might be the arguments in favour of an increase, they could not agree to any increase until the prosperity of the country warranted it and the urgency of business in the Superior Courts demanded it, in circumstances where there is less urgency in business and less prosperity, propose to spend this money and to increase the cost of litigation, at any rate in the first instance, by the court fees to litigants.
I think the only point the Attorney-General leant on was what I consider personally—I do not say it is a view universally held—an absurd view with regard to the benefit that the young man gets in the Circuit Court because the leaders of the Bar go down there. If the leaders of the Bar do not go down the young man gets more work. I think that being actually occupied in one ease, the facts of which he has to make up, where he is exposed to whatever can be done against him by counsel on the other side, is worth far more in the way of practical experience than sitting listening to a dozen eminent men arguing cases about which he knows nothing, in which he has not seen the pleadings and does not know what use is being made of the facts or arguments. In addition to that, if there is anything to be gained from sitting in court listening to eminent men arguing, the junior, for whom I am pleading, the man who is only starting, who has got some work under the old system where it is better spread, has many days of leisure and idleness in which he can sit in the High Court in Dublin and get all the education he can get in that way. The new situation will mean, instead of the work being spread over the younger men, instead of getting an education through practical experience in cases, that there is going to be a new influx of the senior men of both ranks to remove from him his chance of getting these cases. At any rate, it is going to delay the time at which the young man going out, the apprentice to the profession, will earn his expenses, and that, I think, is bad.
There is a further point in this as to whether the standard of legal practice is going to go down. Where can it go down? Again, I would refer anybody who thinks there is anything in that to what the County Registrar for Monaghan said, and his experience. One would imagine, to hear the Attorney-General speak, that a junior sent out on circuit was in the wilds of Ethiopia for months after leaving Dublin and as if he had no contact with the Library on the days on which he would return. He speaks of him going out under the present system as being completely detached and that the only guidance that he could get would be from those who accompany him on circuit. That was answered very effectively when it was pointed out that they could easily get back constantly. In that respect, I do not regard the educational facilities under the system we are going to adopt as being worth anything, and the experience of those who gave evidence who held that— with notable exceptions who held the other thing—certainly on these figures would seem to indicate it was a matter of experience. I think the change is impossible to justify either on the ground of experience or anything else.
