I move: "That the Bill be now read a Second Time."
The Bill provides that actions in the High Court for damages for personal injuries will be tried in future by a judge sitting alone, rather than by a judge and jury as at present. Juries will remain available, however, in cases involving false imprisonment, or intentional trespass to the person, that is assault and battery, even if the damages claimed include damages for personal injuries. Juries will also continue in actions for defamation, malicious prosecution and for certain probate and matrimonial matters. I will have a little more to say about these exclusions later, but at this stage I will just mention that they account for a small fraction of jury cases, and that the cases affected by the Bill, primarily negligence actions for personal injuries as a result of road accidents or accidents at work, account for the vast bulk of jury actions coming before the High Court. I need hardly say that the Bill will not affect juries in criminal cases. There is, of course, a constitutional right to trial by jury on a serious criminal charge which is subject only to the exceptions set out in Article 38 but the Constitution does not contain any reference to trial by jury in civil cases.
Before dealing with the questions of policy that are involved, it might be useful to say something about the history of civil jury trials, and about important developments that have affected their availability in the courts. For a long period after jury trial had achieved its present form by the 15th century — trial by one's peers envisaged in Magna Carta was an essentially different process — trial by jury was the only form available in the common law courts. In the Court of Chancery a jury's findings on issues of fact could be obtained by sending that issue to a common law court but that was rarely availed of and for all practical purposes chancery cases were decided by a judge sitting alone. There has been, for well over 100 years now, a gradual erosion of the right to jury trial in civil matters.
The Common Law Procedure (Ireland) Act, 1854, provided that the parties might, on consent, and with the approval of the court, allow issues of fact to be tried by a judge alone. The same Act provided that where an issue consisted wholly or mainly of matters of account it might, on the application of either party, be determined in a summary manner by a judge, or might be referred by him to an arbitrator — the outcome in either event to have the same effect as the finding of a jury. Rules made under the Judicature (Ireland) Act, 1877, obliged a party requiring a jury trial to state this when setting down his action for trial.
The Chancery (Ireland) Amendment Act, 1858, provided that the right to a jury in chancery actions should be in the discretion of the judge. The Courts of Justice Act, 1924, provided that no party to an action for a liquidated sum, or for damages for breach of contract, or for the recovery of land, should be entitled to a jury unless the court considered that a jury was necessary or desirable. The result of these developments is that jury trial in the High Court, which as I have indicated was once the only form of trial in the common law courts, now occurs, for all practical purposes and with limited exceptions, only in personal injury cases.
I should perhaps mention previous consideration given to the question of civil juries in recent times. In their Third Interim Report in 1965 the Committee on Court Practice and Procedure, by the narrowest of majorities — six to five — recommended that the right to civil jury trial should continue in the High Court. They also recommended that the right to civil jury trial in the Circuit Court should be abolished and this was effected by a provision in the Courts Act, 1971. The committee returned to the issue in their 20th Interim Report in 1978. Although they considered the matter only incidentally, they reaffirmed their earlier view that no change should be made in the High Court jury system.
In 1972 the "O'Connor Committee", who were established to inquire into the insurance industry, concluded that juries should be retained to decide liability in negligence cases, but that the responsibility for deciding the quantum of damages should rest with the judge assisted by assessors. More recently the Prices Advisory Committee on Motor Insurance — the "McLiam Committee"— concluded in their report in 1982 that, while in their view the jury system should remain, certain changes were needed to deal with problems of inconsistency and unfairness that arose from the operation of the system in deciding motor insurance cases.
I have dwelt at some length on these aspects to show that historically the trend has been to reduce the use of juries in deciding civil cases, and to show that the question of the abolition of civil juries has been a matter of debate for some time.
It is clear from the court committee's report that strong arguments arise on both sides of the issue, and that there are strongly divided views on the matter. This is true even of the judges. Professor Bryan McMahon in his article Jury Trial for Personal Injury cases in Ireland published in May 1985 in The Irish Times found that High Court judges who responded to a questionnaire from him were evenly split on the central issue and views given to my predecessor by some of the superior court judges also revealed strongly divided opinions on the part of the judges.
It was against this general review of the present operation of the civil jury system and in the context of the renewed debate on the issue in relation to insurance matters, that the Government decided in principle last year to change the present system and asked my predecessor to examine alternative arrangements for deciding these cases. The Bill which is before the House is the end product of that exercise. During his examination of the question of alternatives, my predecessor considered the various possible options for reform of the jury system.
These include:
—first, retaining the present jury system for determining liability and damages in personal injury cases, but empowering the trial judge to indicate the going rate for general damages in comparable cases to the jury, who would be free to depart from such range in the particular case;
—second, retaining juries to determine liability but not damages;
—third, replacing juries by a judge sitting with assessors to advise or make recommendations on damages;
—fourth, introducing a statutory tariff for general damages for personal injury cases;
—fifth, introducing a statutory maximum for general damages;
—sixth, replacing juries by a judge sitting alone to decide on liability and damages in all cases;
—seventh, allowing juries to decide on liability and damages in exceptional cases, with all other cases being decided by a judge sitting alone.
After careful consideration of all of these options the Government decided that the best arrangement was to replace civil juries with a single judge sitting alone to decide the issues of liability and damages in personal injuries cases.
The growth in personal injury cases coming before the High Court in recent years has focused greater attention on the awards being made by juries in those cases. The high level of some awards attracted much publicity and a growing belief in some quarters that the incidence of excessive awards in these cases had become unacceptable. The "McLiam Committee" found evidence that awards given by juries were sometimes remarkably unpredictable, varying widely between cases where the circumstances appeared to be similar. They emphasised the unfairness of such a situation on litigants, and the difficulties which this unpredictability created for the insurance industry. They concluded that it would be in the interest of justice, and conducive to the proper management of motor insurance, if a greater degree of consistency could be achieved in the assessment of damages, bearing in mind the over-riding requirement of doing justice between the parties.
The Supreme Court was also concerned about excessive jury awards, and in three important judgements delivered between 1983 and 1984, brought about substantial changes in the basis for assessing the quantum of damages in personal injury cases. In the last of these cases they indicated that a limit of £150,000 should apply generally to awards of general damages for pain and suffering and loss of the amenities of life in the most extreme cases of personal injuries unless there are particular circumstances which suggest otherwise. The then Chief Justice had remarked in that case that in attempting to compensate for very serious injury "all sense of reality may be lost", and he considered that "a yardstick of a reasonable nature must be applied if reality is to be retained in the assessment of such compensation".
The court decided also that in cases where sufficient damages had been awarded to cover all loss and bodily needs and to enable the plaintiff to live in comparative comfort, having regard to the disability, that fact should be reflected in the amount of damages for pain and suffering; that, where damages have been assessed under several headings, the total sum and the income it could generate should be considered by the jury in order to enable them to judge whether it is out of all proportion to the circumstances; that in assessing the amount for future loss of earnings actuarial figures are only a guideline and on making the assessment the jury should consider evidence relating to the risk of unemployment, redundancy, illness, accident or marriage prospects. The cases show a concern on the part of the Supreme Court at what it regarded as clearly excessive awards.
The high level of damages awarded in the courts in such cases have a major bearing on the amounts for which insurers will settle personal injuries claims outside the courts. Insurers say that such claims are settled under the shadow of a court hearing and that the proven unpredictability of jury awards has had a destabilising effect on the settlement process, reflected ultimately in the cost of insurance. One judge of the Supreme Court, in a recent case, observed that the proliferation of personal injuries claims, and the significantly high number of serious cases, appeared to have induced among lawyers and insurers alike a degree of what he called, "monetary punch drunkenness" that had tended to remove reality from such settlements. The levels of awards by juries for personal injuries are inevitably reflected in the amounts agreed in settlements which comprise about 95 per cent of personal injuries claims.
Of course it could be argued that the changes which the Supreme Court has been introducing recently in assessing damages might, of themselves, cure the problems associated with excessive jury awards. Again I have to stress that the issue has been looked at by the Government on its merits, in the light of the historical arguments for and against having civil juries to decide personal injuries cases, as well as recent judicial developments, and debate on the issue. The Government's conclusion was that the balance of advantage now clearly favours the abolition of juries for such cases.
I would now like to turn to some of the main points that have been raised in regard to trial of civil liability cases by a judge sitting alone. One of the most important arguments made in favour of juries is founded on the social, civil and educational values of juries. Jury service, it is said, gives a sense of community responsibility, is an educating force in the community and acquaints citizens with justice as it is in practice administered. It helps, it is claimed, to teach the members of juries that they have a share in the society in which they live and tends to make the law intelligible.
While there is undoubtedly force in that argument, it would constitute a far stronger argument if jury trials were used at present over the whole range of civil litigation. But that is not the case. As I have mentioned, for all practical purposes nowadays civil juries are used only in cases arising out of motor accidents and accidents at work. All other civil cases, with a few exceptions, have either always been decided by a judge sitting alone, or have been so decided for a very long time. There is also the plain fact that in modern circumstances most people regard jury service as a burden and many go to great lengths to avoid it. This is an inevitable conclusion from the most recent figures provided to me by the courts. They show that only about 30 per cent of those called for jury service in the High Court for civil actions actually attend. The others either claim exemptions to which they are entitled, seek and obtain exemptions at the discretion of the court, or simply do not turn up. I understand that it is very rare for the courts to receive a request to participate in jury service. This means that it is necessary to call over 10,000 people a year to service civil jury trials in the High Court in Dublin, so that much marshalling of resources and a significant amount of High Court time is involved. It is also worth noting, although perhaps not too much should be read into it, that the strong minority view expressed in the Committee of Court Practice and Procedure in 1965 in favour of abolition of civil juries was subscribed to by three or the four lay members of the committee.
There is an assumption in some quarters that the object of the Government's proposal to replace civil juries is to reduce awards in personal injuries cases generally. That is simply not correct. The purpose is to avoid excessive awards as far as possible and to bring consistency and predictability into awards given. It is necessary to be very cautious in speculating what effect the measure might have on the general level of damages awarded apart from the expected effect that it will obviate excessive awards. For one thing, it is quite possible that the impact of the recent Supreme Court decisions on the assessment of damages may be greater than any effect on the general level of damages that might follow from the replacement of juries by judges sitting alone, or at any rate that it may be impossible to distinguish between the two cases. Moreover, although the incidence of personal injuries cases heard in the High Court by a judge sitting alone with the consent of the parties has not been great, what indications there are show that a judge can be no less generous than a jury when it comes to assessing damages in serious cases. Furthermore, judges sitting alone have been deciding personal injuries cases in the Circuit Court since 1972, and there has been no public reaction as far as I am aware, against the level of damages awarded in the Circuit Court. Since the jurisdiction of that court to hear tort actions was increased to £15,000 in 1982, more serious cases are now being decided in the Circuit Court and I am not aware of any claim that Circuit Court judges are making inadequate awards, even in cases where minor injuries are involved.
Some of the concern about the possibility of unduly low awards from judges sitting alone arises from the fact that awards in England, where jury trials have disappeared for all practical purposes, have traditionally been much lower than awards made by Irish juries; but comparisons with the situation in England are not valid. Without wishing to go into the matter in too much detail, I must point out that there are crucial differences in the way in which damages for future pecuniary costs or losses are assessed in the two jurisdictions — one important difference is the reluctance of English courts to make use of actuarial evidence — and as to how account is taken of inflation.
The maximum general damages which British Courts are prepared to award in respect of pain and suffering and loss of amenities in connection with injuries of maximum severity have been considerably lower that the amount of £150,000, already referred to, which our Supreme Court judges have set as a general guideline. In fact, the level of awards for serious injuries in England has come under increasing criticism in recent years for being too low, and very recent awards there have borne out the general expectation that British awards will rise. For example, in two cases of very serious injury reported in England in December 1985, damages equivalent to £799,000 and £683,000 in Irish pounds were awarded. These were record awards by British courts.
Spokesmen for the insurance industry are not presuming that damages will fall when assessed by judges. In fact, they have expressed the view that it is unlikely that judges will reduce awards from the prevailing levels.
One can claim with confidence that a greater degree of consistency will prevail in relation to awards under the new system and that excessive awards will be largely avoided. This is likely to come about when all personal injuries cases are being decided continually by a body of experienced judges, compared with the "once off" shot by a jury who have no prior experience of the task. If, as no doubt will happen, variations arise between individual judges in the amount of damages they award, the Supreme Court will be available to correct awards that deviate from an acceptable norm, not only to reduce awards that are too high but also to increase such awards as are unacceptably low.
It is to be expected that the Supreme Court will be more ready to interfere with a reasoned decision of a judge and over the years an acceptable and more or less predictable pattern should emerge. This is of the greatest importance to litigants who need to know with some certainty what they may expect to receive if they incur the expense of going to court, not least so as to enable them to decide whether and for what amount they can settle their claim without going to actual trial. There is good reason to believe that the increased predictability of awards in personal injuries cases under the new arrangement proposed will enable insurers to settle claims more quickly.
Insurers say that the benefits of this will be passed on to the general insuring public, through, at the very least, a reduced need to increase insurance premiums and, depending on the overall outcome of the new arrangements, in possible reductions in premiums. I can assure the House that my colleague, the Minister for Industry and Commerce, who has responsibility for supervising the insurance industry, will be concerned to ensure that economies that arise for insurers from the changes that are proposed in this Bill will be passed on the insuring public.
Among the main objections that were put forward in 1965 when the Committee on Court Practice and Procedure were considering the question, was the fact that there were only four High Court judges available at that time to hear cases; that judges were inclined to be either plaintiffs' judges or defendants' judges and that the result of cases would be a foregone conclusion; and that judges, by reason of their occupation, would be isolated and out of touch with present day standards of conduct and value. It was urged on the committee that where only three or four judges were available, that tendency would be more marked. However, the position has changed since then and there are now 16 judges in the High Court, including the President. I am confident that the powers that will be invested in the High Court Judiciary by this Bill will be discharged in a fair and proper manner, and in a way that will have due regard for current values. I have already referred to the availability of the Supreme Court to correct awards made in the High Court which are either too high or too low.
There has never been much doubt that civil trials by judges alone are likely to take a considerably shorter time than jury trials. Some people who are close to the operation of the courts estimate that the saving in time could be of the order of one third or one half. This has obvious benefits for litigants. They can expect to have their cases dealt with more quickly and possibly at reduced cost as fewer cases may be expected to come before the courts and those that do would be dealt with more quickly. The need for the multiplicity of legal representatives who appear for both sides in these cases at present will be looked at critically in the context of the new arrangements.
