I wish to thank all Members who contributed to this debate and to thank in particular the party opposite who, through Deputy Andrews, expressed their acceptance of the principle of the Bill, that is, the appointment of an extra High Court judge in an effort to do something about the arrears in the High Court.
The debate has been wide-ranging. Deputy Blaney attempted to drag in the Offences Against the State (Amendment) Act while Deputy O'Malley questioned the adversary system and Deputy Esmonde spoke of the judge who knew so little about mechanically propelled vehicles. I do not propose to reply in detail to every point made because many similar points were made by several speakers.
Specifically, the Bill is an effort to deal with the arrears position in the High Court. The position in the Circuit Court was referred to also. It is serious there, too. In introducing this Second Stage I indicated that the Government intend to recommend the appointment of an extra Circuit Court judge so as to bring the complement to 12. It is our intention also, but this will require legislation, to increase to four the number assigned permanently to Dublin. At the moment this number is two and this is inadequate for the amount of business to be done in the Dublin Circuit Court. These changes were recommended by the Committee on Court Practice and Procedure. The other matters recommended in that report require further consideration.
Deputy Andrews suggested that the districts of Dún Laoghaire and Bray are now populous enough—indeed, they always were—to require Circuit Courts. The committee which examined the re-organisation of the Circuit Court did not recommend this specifically but I have no doubt they were conscious of the problem in respect of those areas because they gave much attention to them in respect of the District Court position. I wonder whether it would suit to have a separate Circuit Court sitting in Dún Laoghaire and Bray, bearing in mind that the people who would have to man those courts would be lawyers practising from the Bar Library and solicitors practising, by and large, from the city. The inconvenience involved in that respect might be such as to make it impracticable for the courts to be manned. However, that is an issue that is not strictly relevant to the main purpose of the Bill.
I concede readily, that, as Deputy O'Malley says, to appoint an extra judge is possibly the easy way out, but it is one way out that must be taken. Unless we have enough judges, the arrears will not be cleared regardless of how speedy the system is. It is possibly the easiest step that can be taken from my point of view and I make no apologies for taking what is an easy step. It can be taken quickly and that is why it is being taken now. As I said when I was introducing this Stage the problem is urgent and anything that can be done urgently should be done. It does not permit of an instant solution. It is too complex to permit that but it does require an urgent solution.
The appointment of an extra judge is a very practical and important step and it recognises the urgency of the situation. I agree with Deputy O'Malley that the whole procedural system in the High Court requires to be looked at. Indeed, it has been looked at by the Committee on Court Practice and Procedure. This committee has made some very valuable recommendations, particularly the recommendations contained in the sixteenth interim report concerning the jurisdiction of the Master of the High Court. These recommendations were made primarily to try to speed up the pre-trial procedures of which Deputy O'Malley rightly complained. This report was furnished in January, 1972. I am pleased to say that at the moment I am having legislation drafted to implement the recommendations of that report.
Some of the recommendations in that report regarding the Master and his place in the pre-trial procedures were made as far back as 1965 in the third interim report which dealt with jury trial in civil actions. I am hopeful that this legislation revising the role of the Master in the High Court when it is enacted will have substantial effect in diminishing considerably the pre-trial delays. I am not satisfied that it will reduce the preliminary pleadings to the level that Deputy O'Malley would seem to suggest is a desirable level.
In this regard it is necessary to compare the three courts and the three procedures. In the District Court which now has jurisdiction up to £250 all that is necessary for a case to come before a district justice is for the plaintiff to issue a short and informal statement of the nature of his claim. This claim merely states that he claims £X for damages for negligence and possibly alleges that the negligence was for the driving of a motor car on such a date at such a place. There is no formal defence required to that in the sense that the defendant does not have to set out his grounds for defence in a reply to that document. On that document the parties join issue before a justice and satisfactory trial takes place.
In the Circuit Court where there is now jurisdiction of £2,000 the procedure gets somewhat more complicated. We have a civil bill in which the claim is set out in more detail and in more the type of language to which the Parliamentary Secretary, Deputy M.P. Murphy, took exception and, possibly so with a lot of merit. The statement of claim in the civil bill in the Circuit Court is a more detailed legalistic document. The Circuit Court procedure requires that it be answered by a defence which is also a detailed legalistic document. In between those two documents there may be a notice for particulars and replies which can be comprehensive and have the effect of slowing up procedures. Nevertheless, it is a fairly simple procedure and one which does not cause much delay.
Next we move to the High Court. Deputy O'Malley has already graphically described the paper jungle that has to be fought through by litigants and practitioners in order to reach the court. It does seem an odd situation that what is permissible for one court should not, by and large, be the norm in all the courts. The theory behind the more intricate pleadings in the High Court is that these pleadings define and isolate the issues in advance of the hearing. In effect, they should make the hearing quicker and simpler and should obviate the need for witnesses to have to prove a lot of things which have been admitted previously in the documents. This may be the theory but in practice it has not worked out like that and these complicated pleadings have, regrettably, only had the effect of slowing up procedure.
While the changes coming as a result of the report of the Committee on Court Practice and Procedure on the jurisdiction of the Master will I hope ease that position, I am doubtful, and I share Deputy O'Malley's concern in this, as to whether they will go far enough. The time has come when we will have to look at the present pleadings in detail to see if they can be considerably curtailed. I do not see that the justice of the matter or the efficiency of the court going to deal with the case demands that the intricate, technical and legalistic pleadings which presently obtain need to be continued. This is a subject on which there are conflicting views and these views will have to be heard and a decision arrived at.
Mention was made by Deputy O'Malley of the question of maintaining juries in the High Court in civil actions. As Deputy O'Malley has pointed out, they have been abolished in the Circuit Court and judges are now giving judgement in cases involving amounts which up to a short time ago were reserved for the High Court where they would have had to be given by juries. If you like, as a matter of logic that argument seems to defeat the argument that a judge is necessary in order that justice be done where the amounts are large.
This question of the right to trial by jury in civil matters produces heated arguments. People have very fixed views on it and underlying the opposition to the abolition of juries in these circumstances is a very proper fear that this may be the thin end of the wedge towards affecting the jury principle in criminal matters. This possibly explains a lot of the opposition to any proposed changes. It is significant that the Committee on Court Practice and Procedure, in its third interim report on jury trial in civil actions, stated:
Unless it can clearly be shown that the cause of justice would best be served by either abolishing or severely curtailing the present right to trial by jury in civil actions in the High Court there is, in our view, no case for doing so.
That committee, with its wealth of experience, decided that jury actions in civil cases in the High Court should be maintained unless it could be shown that the cause of justice would best be served by abolishing this right or severely curtailing it. There is no doubt that if the existence of this right contributes substantially to the delays in the High Court the cause of justice is not being served by maintaining it. From that point of view there is possibly an argument at this stage that, having regard to the arrears which now obtain and which did not obtain in 1965, if that knowledge was available to that committee they might have altered their opinion. Again, this is a matter where there is room for a lot of debate because there are very contrary opinions on the subject.
I believe that if the pre-trial procedures can be streamlined, and I have indicated my anxiety to do this, or changed or both and there is a sufficiency of judges they should go a long way towards eliminating the backlog without any need to look at the right to trial by jury.
I share Deputy Esmonde's point of view that if a layman's point of view is wanted in legal matters—and Deputy M.P. Murphy very properly intervened in this debate to give a layman's point of view—in assessing the amount of loss, the jury is the proper vehicle through which that point of view should be expressed. This is an argument in favour of the retention of juries in serious civil cases.
Deputy O'Malley raised the fundamental point that we maintain here following our independence the adversary system of litigation which seems to go with the common law system which we took over when we formed our own administration. I do not know that we can ever abolish this. There will always have to be some form of adversary system involving two lawyers arguing the merits of respective cases before an independent tribunal which will adjudicate on them. However, what might be more fundamental would be to have a look at the doctrine in negligence cases. Most of our civil litigation in the courts arises out of road traffic cases which are decided on the principle of fault, that is, that damages only follow if one of the parties has been negligent.
One wonders in this day and age when the motor car is the sine qua non of modern society and when people are permitted to drive potentially dangerous vehicles freely around the roads if society is being unfair in asking the people injured by this freedom to base their claim for compensation on their ability to show fault on the part of the driver, especially when this ability to show fault might be clouded in some way by technical difficulties of pleadings and the standard of advocacy available to the parties and when the technical rules of evidence can possibly cloud the real element of justice.
Perhaps the time has come when we must begin to decide whether this idea of fault should be removed from our legal system and that there should be an absolute right to compensation for injuries sustained by a citizen in the course of his ordinary daily activities in this society. How it is to be paid for, the rights to it, all these things would have to be matters for debate. However, it is a basic matter and I suppose it is brought into focus now by the injustice of the present system heightened by delays in getting that system to work, unjust and imperfect as it may be.
I welcome Deputy Andrew's praise for the presidents of the High and Circuit Courts for the jobs they have to do in very difficult circumstances. I would like to endorse his appreciation of their work, because in addition to performing the normal judicial functions of a judge they have vast administrative burdens and these are undertaken and carried out without complaint of any kind whatever.
I disagree with Deputy Andrews when he questions the propriety of a judge undertaking the inquiry into the security aspect of the State. I think a judge is a person well fitted to carry out such an inquiry. It is an inquiry of considerable importance and it requires in the persons of those who carry it out a reflection of that importance, and this is truly reflected by having a judge of the High Court as the person to lead that inquiry. I do not think it impinges in any way on judicial independence, on the constitutional propriety of the situation, by having a judge do a job for the Executive. To suggest that would be to cast doubt on the personal propriety of any individual member of the Judiciary, and I think, happily, none of us would seek to do that nor have we ever had any cause to do so.
Deputy Andrews mentioned my reference to legal aid in my speech opening the debate as a symptom that I might be inclined to put that subject on the long finger. He coupled this with what he described as the evasiveness of Deputy Fitzpatrick answering questions on my behalf when I was absent, not, as Deputy Andrews thought, out of the country but down in Templemore presenting medals for bravery to members of the Garda. There is no evasiveness in this area. It is my ambition to have a system of legal aid in civil cases. I intend to achieve that ambition and to achieve it in a realistically short time. There is no point in putting it on the long finger, because it is an urgent social necessity. I have the support in principle of the parties in the National Coalition for the introduction of this change, and I can assure Deputy Andrews that it is a change that will come. I mentioned it in my speech in the context that, having brought it in, it would be a terrible pity to find its effects nullified by the courts being clogged. It was in that context I mentioned it, not using the clogging of the courts as an excuse for postponing it but as another argument to show how urgent it was to clear the clogging of the courts.
Deputy Blaney's contribution was an odd one in the context of this Bill. He cried crocodile tears for the litigants who found themselves unable to get speedy justice because our judges were involved in the Special Criminal Court and another judge will be involved in the security inquiry. Deputy Blaney did not seem to realise that there is a public need to have the Special Criminal Court. His viewpoint on this is a bit narrow. The judges in that court are doing perhaps the most important judicial work that is being done in this country at the moment. He would be better employed using his undoubted influence among that section of the population who provide the defendants coming before that court to persuade them that their particular policy and actions are inimical to the interest of the public, whose wellbeing was being detrimentally affected by judges having to go into this court. He said it was a waste of time for judges to be in the Special Criminal Court. It may be but there is a regrettable necessity to have the Special Criminal Court. As Deputy Kelly pointed out, we must have it to remove any fear of intimidation of juries. We do not want the situation to arise here where jurymen would be not merely intimidated but, as happened in another part of the island, assassinated.
It is unfortunately necessary to have these courts to try people who are not prepared to observe the democratic rule, who are not prepared to observe the will of the majority. Deputy Blaney shamefully boasted here, on the occasion of a debate before Christmas, of his part in setting up or encouraging the organisation which provides all the people who proceed through these courts. He wanted the court abolished. He, perhaps more than anyone else in this House, could help in ending the Special Criminal Court, if he is prepared to urge these people who have been misled into certain activities contrary to the wellbeing of the State to desist from those activities and to realise that peace can only come by the acceptance of democratic rule and the will of the majority of the people. I suggest to Deputy Blaney that he has the responsibility and the opportunity of helping towards the ending of the need for this court.
He was inclined to minimise the need for an inquiry into our security situation in the context again of taking a judge away from providing speedy litigation for our citizens. He was inclined to regard the escape from Mountjoy Jail as something trivial. Of course, it was not trivial; it is serious, that people convicted of serious criminal offences against the State should be able to escape from jail. It is important to ensure that both the jails and every other aspect of security are critically examined and found to be fully effective and efficient. We know that there are people in this country whose declared aim it is to bring down this Parliament and to bring down the institutions of the State. It is essential that we who have the responsibility of maintaining and safeguarding these institutions be satisfied that that responsibility is carried out effectively. The episode in Mountjoy, which I regret very much, shows possibly a gap that highlights the need for this examination. Deputy Blaney might think it trivial. He might think, as apparently he said on the day it happened, that it was something to be regarded as meritorious. I am glad Deputy Kelly raised it at this stage, and I would like to endorse the condemnation of any attitude of satisfaction at such an escapade taking place. It is a matter for regret that people convicted of serious criminal offences should be able to escape from our jails. Their place is within those jails and the inquiry is very proper and necessary.
Deputy Andrews made reference, as did Deputy O'Malley, to the odd drafting of section 2. Deputies will recall that we had pre-1961 courts and post-1961 courts, and it was necessary to remove doubt as to the validity of appointments in relation to both courts. That is why that section had to be duplicated in apparently similar terms.
I think I have covered most of the points raised in the debate. I want to thank Deputies again for their contributions and to assure them that I share their appreciation of the injustice to which the arrears in our courts can give rise to. As I indicated in opening the debate, it is a matter I am having examined urgently. It does not permit of instant solution. If it did, I would have adopted an instant solution before now. The only quick action available to me was to increase the number of judges and that is what I am going to do. If there are any other matters of technical detail arising on the sections I shall deal with them on Comittee Stage.