Jurisdiction of Courts and Enforcement of Judgments (European Communities) (No. 2) Bill, 1987 [Seanad]: Second Stage

Minister for Justice (Mr. Collins)

I move: "That the Bill be now read a Second Time."

The purpose of this Bill is to enable Ireland to ratify the 1968 EC Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, ratification of which was a condition of our membership of the EC. The Convention is long and complex and its subject matter could be regarded as rather esoteric. Indeed the equivalent English legislation to give effect to the Convention was described in Parliament as a "mind-boggling myriad of legal complexity." What I propose to do here is to explain the general principles involved in a straightforward manner and leave the detail to the later Stages.

The Bill itself is relatively short and its main purpose is set out in section 3 which provides that the various Conventions involved, that is, the 1968 Convention, the 1971 Protocol on its interpretation, the 1978 Accession Convention for Denmark, Ireland and the United Kingdom and the 1982 Accession Convention for Greece shall have the force of law in the State.

The 1978 Accession Convention made necessary adjustments for the purpose of adapting the 1968 Convention and 1971 Protocol to the legal institutions and systems of Denmark, Ireland and the UK. It also made some amendments to rectify defects which had appeared since the Convention entered into force among the original six members. The 1982 Accession Convention to cater for the accession of Greece contained technical adjustments only. The consolidated version of the 1968 Convention and of the 1971 Protocol as amended by the two Accession Conventions is contained in the First and Second Schedules to the Bill.

The 1968 Convention had its origins in Article 220 of the Treaty of Rome by virtue of which the member states agreed to enter into negotiations with each other with a view to securing for the benefit of their nationals the simplification of formalities governing the reciprocol recognition and enforcement of judgments.

Deputies will note — even from the title of the Convention — that it deals with jurisdictional matters as well as with the recognition and enforcement of judgments. For reasons that will become apparent during the course of my speech, those who were given the task of drawing up the Convention felt that to be effective the Convention should include provisions to determine which country's courts would have jurisduction to hear cases covered by the Convention in addition to providing, as they were obliged to provide by Article 220, for the recognition and enforcement of judgments.

Enforcing the judgment of a foreign court is not, of course, a new concept. However, the present regime under which foreign judgments are enforced in Ireland is quite restrictive and the situation is similar as respects the enforcement of Irish judgments abroad. To enable Deputies to better understand the implications of the Convention I will refer to the existing legal position as I explain the general principles behind the Convention.

The scope of the Convention is set out in Article 1. It is concerned with civil or commercial matters. This phrase automatically excludes criminal matters and that area of the law known as public law, although the term is not generally in use here. An example of public law would be an action brought by a public authority in exercise of their statutory powers. What remains within the Convention is the broad band of civil litigation involving private individuals, companies etc. However, Article 1 lists a number of further exceptions, including matters related to status, legal capacity, matrimonial property and succession. I would like to emphasise that while matters of status, such as divorce, are excluded, judgments relating to the maintenance of spouses and children fall within the scope of the Convention.

The basic principle behind the Convention is that civil judgments from one member state should be recognised and enforced throughout the Community on a basis that would be practically automatic. The Convention sets out the procedure to be followed in order to achieve this, but includes certain safeguards so as to ensure that the principles of natural justice and fair procedures are adhered to. The Convention, in effect, extends the concept of the Common Market to legal matters by eliminating barriers to the free movement of judgments with the Community. A further example of legal co-operation sponsored by the Community is the Convention drawn up in 1980 to provide uniform rules relating to the law to be applied in contractual relations. I hope in due course to bring further legislation before the House to enable that Convention to be ratified.

The workings of the Convention are best illustrated by showing, first, what will happen when an Irish plaintiff sues a domiciliary of another contracting state in an Irish court with the intention of having the judgment enforced in that other contracting state — or indeed in any contracting state where there are assets to satisfy the judgment — and, secondly, the procedure when a judgment from another EC state comes to Ireland for enforcement.

Before a court can hear a case it must first be satisfied that it has jurisdiction to do so. This matter is directly regulated by the Convention. Under present law unless the defendant voluntarily submits, an Irish court will only have jurisdiction if the defendant has been duly served with the appropriate summons. If the defendant is within the country the summons may be served without leave of the court. If the defendant is outside the country the permission of the court is required before service on him can be validly effected and jurisdiction established. Order 11 of the Rules of the Superior Courts lists the circumstances where service out of the jurisdiction may be permitted in a High Court action. The circumstances relate generally to situations where there is an Irish interest in the matter. For example, the dispute may relate to land situated in Ireland. The rule requires the court to decide whether in the particular circumstances of the case it, rather than some foreign court, would be the most convenient forum to hear the case.

In contrast, under the Convention, the question of service will not be the key issue in establishing jurisdiction. The Irish courts will instead apply the jurisdictional rules set out in the Convention. The general rule of the Convention, contained in Article 2, is that a person should be sued in the state where he is "domiciled". Domicile is used here in its continental sense which approximates to ordinary or habitual residence and is different from its technical common law meaning. As the common law concept was clearly not suitable for the purposes of the Convention, the United Kingdom and Ireland undertook to define domicile for the purposes of the Convention in a way what would correspond to its continental meaning. Section 13 and the Fifth Schedule of the Bill contain the relevant provisions.

The Convention, in Article 5, applies special rules of jurisdiction in matters involving contract, tort, maintenance, etc. and, although there are differences, these special rules coincide broadly with the existing Irish rules for establishing jurisdiction in such cases. The following are examples of how some of these special jurisdictional rules will apply. Let us say that a German tourist is responsible for a car accident here and causes injury to an Irish person. He may be sued in Ireland, i.e. the place where the harmful event occurred, under the special rule in tort cases contained in Article 5 of the Convention, or in Germany, the place of his domicile. If he sues here the judgment will be recognised and enforced in Germany or, indeed, in any other contracting state. If the Irish person was at fault he could only be sued in Ireland as this is the place of his domicile and also the place where the harmful event occurred.

In the case of a claim for maintenance, the maintenance creditor has the choice of sueing the maintenance debtor either in his or her place of domicile or habitual residence or in the place of domicile of the debtor. On the other hand, if the debtor wishes to sue for variation he may only do so in the creditor's domicile. This particular provision reflects the Convention's concern for the maintenance creditor as the weaker party.

There are also special provisions in the Convention, in Articles 7 to 15, in respect of consumer and insurance contracts which recognise the fact that in such contracts the consumer and, generally, the insured are the weaker parties. They may be sued only in their place of domicile, but they have a choice of where to sue, either in their own courts or where the defendant is domiciled. Otherwise the Convention is generally pro-defendant in accordance with generally accepted principles.

The Convention in Article 16 also lays down that in certain cases, the courts of one state will have exclusive jurisdiction. For example, in disputes in relation to land, the courts of the state where the land is situated will have exclusive jurisdiction.

The rules of jurisdiction in the Convention must be applied. Therefore, an Irish court will no longer have discretion, as it has at present, to refuse jurisdiction merely because the defendant is not present in the State or the case might more conveniently be heard in another state. In addition, an Irish court will no longer be able to assume jurisdiction over an EC resident merely because he was served with a summons while temporarily present in Ireland. These present rules will continue to apply, however, regarding persons domiciled in non-contracting states.

Before we leave the question of jurisdiction I might point out that although the Convention sets out a series of rules regarding jurisdiction there is provision to allow parties to a dispute to enter into an agreement to give jurisdiction to a court of their choice. The Convention also provides that a person may submit voluntarily to the jurisdiction of a court other than the court which would normally have jurisdiction under the Convention. These provisions do not apply, however, to cases where a court is given exclusive jurisdiction by the Convention.

Once an Irish court has assumed jurisdiction and given its judgment the judgment will, subject to Articles 27 and 28 of the Convention which I will deal with later, be antomatically enforceable in any one of the other contracting states. At present it is not possible to enforce Irish judgments in some of these states. In others there are very restrictive recognition rules. The Convention effectively removes all the existing barriers against the enforcement of Irish judgments in the other contracting states and, of course, against the enforcement in Ireland of judgments from those states.

I might point out also that other contracting states will generally be obliged to enforce Irish judgments against persons domiciled outside the EC, whether or not the Irish court established jurisdiction under the normal rules of the Convention.

As respects the enforcement in Ireland of judgments from other contracting states the present position is as follows. Judgments of a foreign court are enforceable in Ireland if they have been handed down by a court of competent jurisdiction, are final and and conclusive and are for a fixed sum of money. The only exception to this has come about as a result of the 1974 agreement between Ireland and the United Kingdom on the reciprocal recognition and enforcement of maintenance orders. Foreign maintenance orders for periodic payments, other than United Kingdom orders, are not normally enforceable in Ireland as they are not regarded as being final and conclusive. The agreement with the United Kingdom was based on relevant provisions of the Brussels Convention and was drawn up in anticipation of our accession to that Convention.

As I have said, for a foreign judgment to be enforceable here at present our courts must be satisfied that it was given by a court competent to do so. Under Irish law a foreign court is considered to have competency only if the defendant was present in the foreign country at the time the action commenced or if he voluntarily submitted to the jurisdiction of the foreign court. As a result of the Convention, however, apart from a number of special cases expressly mentioned in Article 28, our courts will not be able to question the jurisdiction of the foreign court. This is because all countries in ratifying the Convention have accepted common rules of jurisdiction in relation to cases coming within the scope of the Convention and have thus ensured the effectiveness of the Convention in the area of recognition and enforcement. In addition, judgments for periodic payments and non-monetary judgments will also be enforceable. The Convention does not, of course, affect the enforcement in Ireland of foreign judgments from countries which are not parties to the Convention. In those cases the existing common law rules will apply.

The Convention, in Article 32, provides that applications for recognition and enforcement in Ireland shall be made to the High Court. In fact, section 5 of the Bill provides that applications for the enforcement of judgments will be made to the Master of the High Court. The Master already has responsibility for dealing with applications for the enforcement of United Kingdom maintenance orders under the Maintenance Orders Acts, 1974, and for the enforcement of Community judgments under the European Communities (Enforcement of Community Judgments) Regulations, 1972. It is, therefore, appropriate that the initial application for recognition and enforcement, which will be made ex parte, should be dealt with by him also. Provided the application is in order, recognition and enforcement of the foreign judgment is practically automatic. Articles 27 and 28 list the only circumstances in which recognition can be refused. The two grounds for refusal most likely to arise will be either that recognition is contrary to Irish public policy — one example would be where the judgment in question was obtained by fraud — or that the defendant was not served with notice of the institution of the original proceedings in sufficient time to enable him to arrange for his defence.

Section 6 of the Bill provides that when an enforcement order is made the foreign judgment, except where it is a maintenance order for periodic payments, will become enforceable here as if it were a judgment of the High Court. Special provision is made in Section 7 of the Bill for the enforcement of foreign maintenance orders for periodic payments. These follow, with some minor changes, the enforcement procedures in the Maintenance Orders Act, 1974, in respect of the enforcement of United Kingdom maintenance orders.

Since the initial application will be made ex parte the defendant will not be aware of the application unless and until an enforcement order has been made. The reason is to deny a defendant, alerted to the possibility of an enforcement order being made against him, the opportunity to move his assets out of the country so as to frustrate the enforcement of the judgment. However, as a safeguard against any injustice, Article 39 of the Convention provides that the foreign judgment which has been declared enforceable will not be enforced until the defendant is allowed an opportunity to appeal against the enforcement order. During the period allowed for an appeal, the plaintiff is entitled to obtain temporary protective measures from the court in order to safeguard his interests. The same simplified enforcement procedures, which I have described in their application to Ireland, will apply to applications for enforcement of Irish judgments in other contracting states.

The original signatories to the Convention considered it of crucial importance that the courts of each contracting state interpret the Convention in a uniform manner. Different interpretations by national courts would have seriously undermined the whole basis of the Convention. Accordingly, a protocol on uniform interpretation — the 1971 Protocol — was drawn up conferring jurisdiction on the court of Justice of the European Communities to interpret the Conventions. Questions of interpretation may be referred to it by appellate courts and rulings of the court made as a result of such references will be binding on the courts of the contracting states. In addition, references by national authorities may be made in the interests of law in the event of a conflict of interpretation arising from different judgments in different states without, however, affecting those judgments.

Furthermore, as an aid to the interpretation of the Conventions, three explanatory reports, one on the 1968 Convention and the 1971 Protocol, and the other two on the Accession Conventions of 1978 and 1982, respectively, were prepared. Section 4 of the Bill provides that a court may consider the reports on the 1968 Convention and 1971 Protocol and on the 1978 Convention when interpreting the Conventions. The report dealing with the 1982 Convention on the accession of Greece has only recently become available and I will be moving an amendment to section 4 on Committee Stage to provide for its inclusion.

While ratification of the Convention is, as I have said, one of the obligations of our membership of the European Communities, it is also a very significant development in our private international law. This will be the first occasion when Ireland has entered into a multilateral international agreement to accept common rules of international jurisdiction and to recognise and enforce foreign judgments. The 1968 Convention will eventually apply in all 12 member states of the Communities and Deputies may be interested to learn that negotiations involving the Twelve and a number of EFTA states with a view to concluding a parallel convention to the 1968 Convention are in progress at the moment.

Tá na coinbhisiúin curtha ar fáil in ocht dteanga oifigiúil, an Ghaeilge ina measc, agus tá comh-údarás ag gach ceann acu. Mar sin, má theastaíonn ó dhuine ar bith cás faoi na coinbhinsiúin a thabhairt os comhair cúirte in Éirinn trí Ghaeilge beidh téacs údarásach Gaeilge ar fáil chun cabhrú leis é sin a dhéanamh. Dar ndóigh, sa chás gur gá réamhrialú a iarraidh ar Chúirt Bhreithiúnais na gComhphobal Eorpach faoin Phrótocol tá an Ghaeilge ar cheann de na teangacha a d'fhéadfaí a úsáid in imeachtaí na cúirte sin.

Molaim an Bille don Teach.

Mr. Shatter

I welcome the fact that this legislation is before the House today. It is in the same form as a Bill presented by the previous Government in December 1986 which we did not have the opportunity to pass through both Houses of the Oireachtas before the Dáil was dissolved in January 1987. The Bill has now been passed through the Seanad.

The Minister is correct in saying that this is a technical Bill. It is the sort of measure which gives rise to many learned articles by academic lawyers. It is not the type of Bill which is perceived by the media generally or by people outside this House as being of great relevance to day-to-day life. Curiously, although it is a technical measure and it has taken many years for legislation of this nature to come before the House, the Bill does have a very particular relevance to the lives of people in this State and will have an increasing relevance as there is greater mobility of people and greater commercial interaction between this State and other member states of the EC.

Until the past two or three years we have had a somewhat myopic view of our legal relationships. We tend to assume that if there is an international element in our legal relationships it normally arises between us and the United Kingdom and that there is no great necessity to formalise our laws with the laws in existence in other states, beyond the formalisation imposed on us by directives emanating from Brussels.

The importance of this Bill cannot be overstated. Although its passage through the Seanad and this House will attract very little publicity it has very significant procedural and substantive implications for Irish civil and commercial law. It will be relevant to Irish companies doing business in Europe who run into legal difficulties and find the need to bring legal proceedings either outside the State or in our own courts and seek to enforce judgments granted by our courts in other member states. It will confer very basic rights on individuals who might, for example, suffer injury as a result of a road accident or other civil wrong. For example, the purchase of some consumer product in Europe might lead to an individual suffering damage on return to this country and court proceedings might be necessary to seek compensation for personal injuries resulting.

The Bill covers and formalises a vast area of Irish law which to date has not been dealt with by any legislative measures passed by this House and which has not been governed by any conventions. In the entire area of private international law this House has since 1922 abdicated its role and has left it to the Judiciary and the courts to develop legal principles based on the common law on a case-by-case basis. Generally our courts have followed English common law where appropriate and sometimes at a time when English common law has long since been changed in England by the Westminster Parliament enacting its own domestic statutory provisions to give effect to international conventions in circumstances where we have not done so.

It is curious to note, as the Minister correctly says, that this is the first Bill relating to the private international law area that seeks to implement a multilateral Convention. It is noteworthy that the first substantive legal measure relating to private international law which passed through this House was the Domicile and Recognition of Foreign Divorces Act, 1986. There are occasional sections peppered through our legislation relating to individual areas of private international law such as contained in the Legitimacy Act but, generally speaking, we have not enacted law in this area and have abdicated our role to the Judiciary.

This Bill is particularly welcome because of the European element contained in it. I welcome the Minister's comment in regard to EFTA. It appears there is a possibility of providing an extension of the application of this measure to states with whom we have commercial relationships outside the EC but in respect of whom the provision of this type of legal system is welcome and necessary. It will become increasingly necessary as the type of trade in which we engage becomes more and more sophisticated in the areas of computer technology and pharmaceuticals. The lacuna in our law in this area needs to be filled. I see little point in repeating what the Minister said in his speech. He has set out ably the history of what has given rise to the production of this Bill and in as comprehensible a form as possible the implications of the Bill.

I want to deal with matters which arise out of the Bill, one or two of which may require consideration on Committee Stage and with one or two related matters in the context of the way we deal with private international law. I regard one aspect of the Bill as curious, and it is not the Minister's fault that it is in the Bill. It is part of the Convention that we are part of, and if further amendments are to be made to the Convention, we should look at it again. The provisions of the Convention in Article 2 as referred to in the Second Schedule to the Bill deal with the references being made by courts of the countries which are parties to the Convention — our courts and courts of other countries — to the European Court of Justice where it is necessary to get a preliminary ruling on questions of interpretation of the Convention to ensure uniformity of approach on the part of member states of the EC who are parties to the Convention.

In the context of other Treaty obligations the High Court currently has powers on other EC matters to refer a matter to the European Court for a preliminary ruling, and in other areas of European law the High Court has made such references. The Minister might explain the reasoning behind this. It is not his fault. I do not know why we can find a reference to a preliminary ruling on questions of interpretation to the Supreme Court. It would seem logical that such a reference should be capable of being made by either the High Court or the Supreme Court. In so far as major commercial or civil law cases may arise as a result of the provisions contained in the Convention many of these will arise initially for trial in the High Court and the High Court judge could justifiably take the view that it makes logical sense to refer a matter of interpretation to the Court of Justice as was done, for example, by the President of the High Court, Mr. Justice Hamilton, in a recent case involving social welfare. Yet if the High Court judge forms that view, as this Convention stands currently he cannot make such reference. He will have to deliver his decision possibly when he is unsure of what the legal interpretation should be of particular provisions. He will make his decision and he can then go to the Supreme Court and a preliminary ruling can be sought by it. If I am wrong in my interpretation of this I would be happy if the Minister would clarify it. If I am not wrong, the Minister cannot amend it on Committee Stage, but in the context of discussions that are going on at European level and any further protocols that might be completed we should ourselves consider, as a matter of practical action in the implementation of this measure, changing this Article to extend the power of reference from simply the Supreme Court to the High Court also. Perhaps the Minister will deal with that in his response.

The Minister says, correctly, that there is a wide variety of other areas of law that the Convention does not deal with. That is worth dwelling on for a couple of moments. This is the first multilateral treaty that is being implemented in this State with regard to the enforcement, for example, of judgments delivered by our courts in other countries. It is the first time that we can be, in a sense, assured of the exact nature of the law that will be applicable in other countries, in this instance in the member states of the EC that are part of the Convention. It is the first time we can be certain as to how the courts of those countries will deal with judgments granted by our courts. It is the first time that our courts will have set before them the guidelines by which they are to enforce judgments delivered in the courts of member states of the EC.

There is a need, as there is an increased mobility on the part of Irish people, to implement a large number of other Conventions that currently exist in the area of private international law. A vast number cover a multiplicity of areas which if implemented would formalise our legal relationships with many other countries in the world in a whole series of areas that to date we have ignored. This State has been party to many of the discussions and negotiations in the context of the formulation of many of the Hague Conventions on private international law, yet not a single one of those Conventions have we yet implemented within our domestic law by enactment of domestic legislation.

The Minister said that this Convention does not include matters relating to status, to legal capacity which would include capacity to marry, matrimonial property and succession. This legislation does not cover a vast number of areas such as one I mentioned in this House some weeks ago in the debate on the Status of Children Bill in relation to foreign adoption orders. A vast area of legislation is required here to provide a legal framework and foundation for determining how our courts should deal with recognising actions taken by foreign courts that affect Irish nationals. I have mentioned in this House previously something I hope the Minister can respond to. It is becoming increasingly urgent that we provide legislation which sets out the circumstances in which we will recognise adoption orders made by other States, be they states within the EC or countries outside the EC such as some of the South American states like Peru and Chile or India or the Philippines. There has been a drastic reduction in the number of children available for adoption by Irish couples within this State. Many adoption societies have closed their doors to putting new couples on their books because of the absence of children available for adoption. An increasing number of couples living in Ireland, resident and domiciled here are looking to other countries outside Europe in order to adopt children. An increasing number of couples are adopting children in South America and India and I am aware that children will be adopted in the Philippines. Other countries have confronted this by legislation many years ago. For example, in the UK and Adoption Act is enforced under which the relevant Minister can designate those countries whose adoption orders would be automatically recognised as valid within the UK as a result of which if a couple resident in the UK adopt in those countries they know their legal position, they know the status of their child and that that child adopted by them in, for example, Peru or Chile, is recognised as being adopted under the domestic law of the UK. The reason for having a designating system is to ensure that the highest standards are enforced in those foreign countries with regard to the adoption of children to ensure that standards similar to those employed in this country are applied and that where they are applied the adoptions will be recognised.

Of course, this measure before us does not deal with the issue of adoption. It does not provide for the recognition of adoption orders made within Europe, never mind outside Europe. It was not designed to deal with that area. What I am saying should not be regarded as a criticism either of the Minister or of the previous Government. It is not intended as such but what I am trying to do is to draw the attention of the Minister to the fact that there is a vast area of human relationships which are now being affected in the sense of Irish people going abroad, even temporarily or engaging in transactions other than those referred to in this measure, that requires legal regulation here. We are going to have an increasing number of children adopted outside Ireland who will be in a type of legal limbo; their parents will not know whether their adoptions are recognised in Ireland or not. We have no legal mechanisms for stipulating the circumstance in which such adoption orders are recognised and this is a matter that the House, as in other areas, is leaving to our courts to work at as best they can.

In welcoming the Bill, I must express the view that I hope it is the first of a number of pieces of legislation dealing with the broad spectrum of private international law, dealing with the whole area of the circumstances in which our laws recognise legal actions taken in other countries that affect Irish citizens. The Law Reform Commission produced a very comprehensive report on the legislation required in the area of private international law to deal with the whole area of matrimonial relations. That report has been in existence for a couple of years. That requires legislation and it extends into broad areas not just dealing with an issue which the House has dealt with, the recognition of foreign divorces. It deals with the capacity to marry, the recognition by us of decrees of annulment granted by courts outside this State. If we look at one of The Hague Conventions, and become parties to it, we could set up a system of cross-recognition that would be applicable between this country and other countries who are parties to those Conventions.

I urge the Minister to use this Bill as the first of many pieces of legislation to finally set down a body of Irish law with regard to private international law and not to leave our courts in the position of in a sense having to invent law where none exists or, as in many instances, having to copy outdated English common law which has long since been left aside by the English courts in favour of new statutory measures enacted there.

There is one aspect of the Bill that the Minister will need to look at with a view to preparing an amendment. In the Fifth Schedule the Minister provides a new definition of domicile for the purpose of giving effect to our Convention commitments and to the discussions that took place preceding our becoming partners to the Convention. We are trying to provide a uniform system of application throughout Europe but what we are really doing is giving the name domicile to what is referred to as residents for ordinary residents within the legal systems of the continental European countries. We are providing here a definition of domicile which is quite different from the common law concept of domicile which our courts currently apply and which it is assumed continues to apply by virtue of the provisions of the Domicile and Recognition of Foreign Divorces Act, 1986.

Domicile is a common law concept and this is the first occasion, in my view, in legislation in which we provide any definition of domicile. In the Domicile and Recognition of Foreign Divorces Act, we removed the concept of a wife's dependent domicile. We allowed a wife to have independent domicile but that Act, as far as I can recollect, does not contain a definition of what domicile is. To date we have adopted a common law definition which regards domicile as one of two concepts. We either have a domicile of origin, which is the domicile a person acquires at the date of birth, or if a person wishes to acquire a new domicile that person has a domicile of choice. To acquire a domicile of choice a person must not merely leave his or her domicile of origin but must live in another country with the intention of remaining there permantently or, at least, indefinitely. In other words, to acquire a domicile of choice a person must be at least emigrating rather than moving temporarily to another jurisdiction or simply setting up residence in another jurisdiction.

In the context of the common law rules of domicile an infant has a domicile dependent on his parents. There is the other problem where if a person has acquired a domicile of choice, if they move out of the country of their domicile of choice but are not sure where they wish to set up residence thereafter, be it ordinary residence or permanent residence, they can re-acquire a domicile of origin. All of that sounds very difficult and technical but what I am coming to is the Minister's definition of domicile under Part I.

We are left, by way of the Fifth Schedule, by way of our legislation, to define what we mean by domicile within the context of the Bill. It is clear from what has been stated to date that we have to provide what I would describe as a less artificial and a less exacting concept of domicile than the concept of domicile as it exists under the common law. In the context of raising with the Minister the possible necessity to provide an amendment to this measure I should like to draw two things to his attention. The first is that Part I of the Fifth Schedule refers to an individual who is domiciled in the State, or in a state other than a contracting state if, but only if, he is ordinarily resident in the State or in that other state. Effectively, to use non-legal jargon, if a person is ordinarily resident in the State as an individual that is where they are domiciled for the purpose of this legislation.

We do not define what we mean by an individual. We define what we do not mean; we do not mean a corporation because a corporation is something else, but what is the position under the legislation of an individual infant? What is the position of the ten year old or the 13 year old who, for example, can bring civil proceedings as a result of a tort? Often the proceedings will have to be brought in the name of the parent but the beneficiary of court judgements and the litigant is the infant on whose behalf the parents sue. Under this Part, we do not deal with the issue that arises normally with regard to domicile. There is no specific provision which says an infant's domicile is dependent on that of the parent. Is an infant an individual for the purposes of this? Does an infant still have a domicile dependent on that of the parent? If he does, we would need to add something to Part I to refer to the fact that where an individual is under 18 years of age he will be taken to be ordinarily resident where the parent or parents are ordinarily resident. One could adapt provisions in existence in the Domicile and Recognition of Foreign Divorces Act to deal with that issue.

It seems to me that we do not deal with the issue of an infant expressly. In the absence of doing so it seems to me that there is one of two dangers. Without dealing with it expressly the courts might take the view that an individual is an infant or somebody who is an adult or the courts could automatically apply the common law rule and give an infant a domicile dependent on a parent, be it father or mother. The courts probably would have to apply the rules as they exist under the Domicile and Recognition of Foreign Divorces Act, 1986. There may be a need to spell out the position of infants under the Fifth Schedule. It is not a major amendment but the Minister should consider it between now and Committee Stage.

What happens if an individual who is ordinarily resident in a state leaves that state and goes off to live in a number of other states, is moving about and there is no state that one can identify he is ordinarily resident in and yet proceedings are being brought? There are two ways of dealing with that. In the context of common law that individual's domicile of origin would be revised but that is an extremely artificial notion, one which I believe should be changed in the context of general domicile law. It seems to me that there may be a need to say that where an individual cannot be described as ordinarily resident in a particular state at the time a matter has to be determined, he shall be regarded as so resident in the state in which he was last ordinarily resident. That sounds like legal gobbledegook, nevertheless the problem is that in the context of today's world, particularly in the context of commercial relationships, an individual could be moving from state to state within Europe and is not ordinarily resident in any of them. There may be a need to look at this part of the Schedule to deal with that issue.

In the context of domicile on a broader note, at the time when the Domicile and Recognition of Foreign Divorces Act came into the House, I proposed a number of amendments to provide a less artificial concept of domicile in our general law than that which applied in the context of common law. The amendments I tabled were ruled out of order by the Ceann Comhairle on the basis that the Bill had a narrow intent which was to place women in a position of equality and to deal with recognition of foreign divorces. I will not take issue with the ruling at this stage. There is a very detailed report from the Law Reform Commission on the need to reform the law of domicile generally and the proposal is that we adopt a concept of habitual residence instead of the concept of domicile.

Following the passage of this Bill, we will have two different concepts of domicile within our own domestic law, the concept that applies in the context of our legal relationship in a civil and commercial area with member states of the EC and an entirely different concept of domicile applicable to the conduct of our legal relationships in the civil and commercial area with all other states outside the EC. In the context of our relationships with other states and the EC states, in the general family law matrimonial property area there will be a concept of domicile which is different from this context of domicile. It would make a awful lot of sense to enact reforming legislation to provide a general concept of domicile which accords with a uniform approach being adopted by our courts in all areas. I do not take issue with the concept of domicile here, possibly it should be "habitual residence" rather than "ordinary residence" so that there is greater certainty as to what we are talking about, on the lines of the Law Reform Commission's recommendations. Perhaps the Minister will indicate if he will bring forward legislation to implement that aspect of the reforms proposed by the Law Reform Commission. I do not agree with all the recommendations made by the Law Reform Commission with regard to the general issues of domicile — I agree with most of them — but the difficulty in changing domicile from "domicile of origin" to "domicile of choice" is unnecessarily artificial. The idea of the revival of a domicile of origin is also somewhat nonsensical. Most of these issues should be dealt with and the passage of this legislation makes it even more urgent to confront them.

In order to implement this legislation, new rules will have to be provided and I assume that the rules committee will provide them. It should be emphasised that this legislation not only facilitates the enforcement of civil and commercial judgments in the area of civil damages and commercial contracts and decisions by the courts, it also has a very important implication in the family law area and brings about an important reform that will improve the position of women considerably, particularly the position of deserted wives. That is why when this Bill was published by the previous Government last December I welcomed it. Not only does it improve our legal system in the enforcement of civil and commercial judgments, it seeks to ensure that where a husband deserts a wife and goes off to live in one of the member states of the EC maintenance and support orders made by the Irish courts can be enforced in the courts of other European countries. This will provide an additional protection for deserted and unsupported wives which is very welcome.

It is important that the message goes out from this House that this is a new facility which will be made available for the support of wives and for the enforcement of maintenance orders made by our courts in circumstances in which husbands have sought to evade making payments by moving to a country other than the United Kingdom, the only other country with which we currently have a treaty in regard to the enforcement of maintenance orders. This aspect of legislation is of particular importance.

When there are different Bills before the House in tandem it is often easy to miss the fact that the enactment of one Bill requires changes to be made in another Bill before the House. In the area of enforcement of orders, including maintenance orders, this legislation deals with the Illegitimate Children (Affiliation Orders) Act, 1930. The Status of Children Bill is before the House at present, it has almost completed its passage, we only have to debate Report Stage. That Bill will repeal the Illegitimate Children (Affiliation Orders) Act, 1930, to all intents and purposes and provides for the making of maintenance orders under the Family Law (Maintenance of Spouses and Children) Act, 1976, for the support of children born outside marriage. As this legislation refers to maintenance orders made, it may not be necessary to amend it for the purpose of accommodating the Status of Children Bill. Nevertheless, having regard to the fact that that measure has particular provisions with regard to making payments relating to children born outside marriage, if we are to have a measure that truly ensures the enforcement of all judgments in these areas with regard to maintenance payments, it may be necessary on Committee Stage to incorporate a reference to the Status of Children Bill. As matters go through the parliamentary process, we will probably have to complete the passage of the Status of Children Bill before such reference can be included in this measure. As we are about to debate Report Stage of the Status of Children Bill I assume that it would not be difficult to complete the passage of that measure and on Committee and Report Stages of this Bill, where there are references to the Illigitimate Children (Affiliation Orders) Act, to delete them by amendment and to refer to the Status of Children Bill. That is a logical amendment that should be made to ensure that all aspects of the relevant legislation are dealt with in this measure.

I welcome the Bill. I have no doubt that most people outside the House do not regard it as a significant measure but in years to come many people who seek to enforce their legal rights and who seek protection from our courts and those in other European countries will welcome the fact that this measure has been passed to ensure a uniformity of application of laws in the civil, commercial and family law areas in regard to maintenance orders throughtout the European Community.

Mr. McDowell

This measure is the final chapter, I hope, of what has been a somewhat disgraceful record of neglect by this House in the period since the Convention was signed in October 1978. Almost ten years later, this House is implementing it into Irish law. Comparatively speaking we have no excuse to offer because we are getting around to the Committee Stage of a debate on a measure which the Parliament at Westminster managed to have enacted completely in 1982 even though, after that, they took time to implement it on a ministerial basis. It shows a weakness in this House that it does not take seriously its international obligations. We merrily sign Conventions and then allow eight or ten years to elapse before we do anything about them.

That is a fraud on the people with whom we agree to sign these Conventions. They are entitled to expect that when Ireland, through its ambassador or Minister puts its signature to any Convention we intend doing something about it with reasonable haste. In relation to this matter, which is of fundamental importance, the Irish State has, ten years after the substance of the agreement was arrived at, only now put its legislative mind to giving effect to what it undertook to do. That is a disgrace.

I do not want to score party political points. It is all very well for people to welcome this measure, but why did it take the Coalition Government until its death throes were upon it in December 1986 to publish this measure? What was so complex about it that it could not have been published beforehand? Was it that the drafting process was slow; and, if it is that slow, why is it that it is so unbelievably slow compared to that of Westminster? Why is it that in this country second best will always do? Why do we accept a slovenly mess in terms of the legislative process and why do we have to be dragged screaming to confront our responsibilities to our fellow members of the Convention?

It is not as if we have just floated along merrily without adverse effects. A number of significant things have happened in the period during which we have been doing nothing. Forty decisions have been handed down by the European courts as to the interpretation that should be put on this Convention. Those decisions affect Irish law and this Convention is to become part of Irish law. The interpretative forum for that Convention is the European Court of Justice. It is an irony that ten years after the law began to be amended and interpreted we are still getting around to implementing it. Is it not ridiculous that those 40 decisions, which will effectively change the substance of the law of this land if we adopt this measure, have been made without any real attention being paid to them by the Irish Legislature.

Another thing is that when this Bill comes into effect it will change dramatically certain of our rules and procedure in the courts. It is sad that it was so delayed. The rules of the superior courts were extensively revised and amended recently and were republished when this measure was outstanding. We will waste a lot of public money now when we have to go back and again revise the rules of the superior courts and amend them again, and presumably republish them, because there was slovenliness on the part of the legislative machine. I know that political masters are sometimes derelict in their responsibility; but it strikes me that those in the Department of Justice who had the carriage of the drafting of this measure, and the duty to supervise it during the early stages, should have got on with the job far more quickly and should have beseeched Ministers to get on with the business so that now when other codes have been revised and other moneys spent they will not have to be changed again in order to accommodate this measure.

In the Irish Law Times for February 1987 there is reference to a number of decisions in the Irish courts which could have been decided differently had this Convention been brought into operation after a reasonable interval following our signature of the Convention. We had internationally agreed on the law but we decided to ignore our obligations and this has had practical effects on litigants before the Irish courts. It is not good enough to say ten years later that it is welcome. It is welcome and it is better late than never, I suppose; but this is a very tawdry approach to our responsibility.

The Progressive Democrats, like Fine Gael, Finna Fáil and most of the parties in this House, will support the purpose of this Bill. It is an obligation which we undertook when we agreed to join the European Community. Article 3 of our Act of Accession put an obligation on us to become party to this Convention. That has one practical consequence in that, at least in relation to this Convention, it cannot be argued on the basis of the Crotty decision that it is somehow repugnant to the Constitution in that it seeks to take away from the Irish courts their jurisdiction or to interfere with our sovereignty on the judicial front. It is quite clear that this is a necessary obligation for the purposes of the Constitution and therefore it is immune from constitutional challenge on that ground.

There are a number of other points in relation to the substance of the Bill about which I am deeply unhappy. I know that the Minister has been called away on urgent business, but I would ask the junior Minister to convey my reservations and my intention to move amendments on Committee Stage. This Bill gives life to a Convention and the Convention is one which allows this State to apply its own law of domicile in determining who is and who is not amenable to the domestic courts on the basis of domicile. Our law on domicile is about to become, if this Bill goes through as it stands, an even more idiotic and more irrational patchwork than it is now.

We have a very strange law of domicile. We have, as Deputy Shatter pointed out, made a small amendment in the Domicile and Recognition of Foreign Divorces Act, 1986, which was at least to get rid of the notion of dependent domicile for spouses. Deputy Shatter wondered whether that Act substituted any new definition of domicile. It did not; it just left the question of domicile to be decided in accordance with Common Law rules. If the Minister succeeds in getting this Bill through as it stands we will have a two-tier system of domicile. When we are dealing with a Convention country one is domiciled in Ireland if one is ordinarily resident here; but if we are dealing with the enforcement of, for instance, an American judgment, Common Law rules will apply. That is simply unacceptable.

It is crazy that a Legislature would seriously sit down and say we will have one set of domicile rules for Europe and another for the rest of the world. That is absured. There must be, even in the most hard-hearted bureaucratic person, a nagging suspicion that to provide a two-tiered domicile system is fundamentally wrong and that this country should not seek to alter its concept of domicile on a unilateral basis to deal only with the Convention countries and maintain its existing irrational law of domicile in relation to other matters.

The Law Reform Commission, as Deputy Shatter said, has come forward with a proposal to reform radically and codify our law of domicile. Whether or not we agree with all the details of their proposals, it is simply wrong to say we will put that out of our minds for the moment and introduce a notion of ordinary residence which will satisfy our obligations under this Convention.

Deputy Shatter apparently experienced difficulties in the context of the Domicile and Recognition of Foreign Divorces Act, 1986, when he sought to widen the purpose of the Bill to codify the law of domicile. Apparently the Ceann Comhairle told him that he was straying outside the narrow confines of a narrow piece of legislation. This Bill is to ratify a Convention and it obliges us to state, for the purposes of our adherence to the Convention, our law of domicile. In the Fifth Schedule to the Bill we propose to set out special rules of domicile which will apply in relation to this Convention. Section 13 of the Bill does not give a general scope of application.

In the context of this Bill it is now time to state what the law of this land is in relation to domicile in general. The Fifth Schedule should not be confined, as it is by the proposed text of section 13, to stating what the law of domicile will be in relation to the application of the Convention. It should state clearly once and for all what the law of domicile of this State is in respect of everybody who comes to an Irish court. An American businessman should be able to get the same answer from an Irish judge as a French businessman if he tries to enforce an American judgment against an Irishman vis-á-vis what a French man can do.

It is absolutely clear that that is what rationality requires of us. If the procedures of this House have any rationality about them, then this is the occasion on which we should state the law of domicile clearly for everyone. Section 13 of this Bill should not be permitted to become the law. It will make us a laughing stock. Imagine what a foreigner would think if he came to this country and discovered that an American would get one answer and a Frenchman would get a different answer. How could that be explained to a student of law in a university? How could it be explained to a foreign lawyer who might ask why his kind were being discriminated against? One would have to say that on the day this Bill came before the Dáil the Minister was unwilling to introduce a uniform law of domicile and dream up a special law of domicile for a particular Convention. We should decide here in this Chamber that that will not happen on this occasion, that we are going to do a good job on this Bill and get a good law as a result and not an irrational stupid patchwork kind of law which is what the Bill at present aims to bring about.

The question of how this Convention is to operate leaves me with one or two queries and I ask the Minister, when he deals with the points I have raised, to deal with these queries as well. If, to use the example the Minister gave in his speech, a German domiciliary — someone who ordinarily lives in Germany — comes to Ireland and is involved in a crash here, he can be sued either in Ireland or in Germany. As I understand it, if he is sued in Ireland, Irish laws of liability will apply. If he is sued in Germany, German laws of liability will apply and Irish law will not be the deciding factor as to whether he is liable for the road accident in question. Irish law of negligence will apply if he is sued in Ireland and German law or whatever is the equivalent of negligence under the German civil code will apply to him there. Irish standards of care will apply to the Irish litigation to be decided by an Irish judge and German legal duties and obligations will apply to a resolution in Germany.

Therefore, for the first time a plaintiff in Ireland is going to have something he did not have before. He is going to be able to choose, based on the liability issue and by weighing up in his own mind, which forum would suit him better in terms of pinning down his defendant and maximising presumably the damages he seeks to recover. The same will not apply in relation to contracts because I presume the proper law of the contract will be applied whether the case is heard in Ireland or Germany. As I undersand it, it will apply in civil liability cases other than contract law and if a person is sued in Germany the domestic law of the German tribunal will apply. I have reservations about this. I wonder if we should have another protocol to this Convention to deal with that issue because we are giving potential litigants a choice which in some respects may be undesirable.

I have some misgivings about the provision in the agreement in relation to courts where there are concurrent proceedings in relation to the same matter. It seems that the court which is first seized of the issue gets a form of precedence and any other court in which the same matter arises is obliged to decline jurisdiction, or if the case has got underway, to stay its proceedings in relation to the same issue. If I know I can be sued in one of many jurisdictions and I decide that tactically I will commence proceedings on the issue in question in the slowest of those jurisdictions and I will have carriage of the proceedings as plaintiff in them and I will dictate the speed at which they are heard and use time-delaying tactics, which is not unknown to lawyers, what will happen if I can exclude another jurisdiction which could deal with the case much more speedily and rapidly and would do so by the tactical device of getting in the first writ or document to initiate the proceedings in one jurisdiction rather than another? There does not seem to be any provision in the Convention as it now stands which would permit a domestic court to say to the plaintiff: "This is not a bona fide action you have commenced in the other court". In my view it would require the person who was aggrieved by this state of affairs to go to the foreign jurisdiction to try to put the matter right. He might find that procedurally he was up against it or that the cost of doing so was very substantial.

In the context of a protocol or an amendment to the Convention, is it not desirable that we should think in terms of some form of residual discretion to the domestic tribunal to ignore foreign proceedings in cases where it is believed in fairness to one of the parties that justice requires that they should take jurisdiction from the other court? That is an issue of some consequence and it should be taken on board by the Minister.

There is another issue I want to raise and I would appreciate the Minister's view on this. We are now putting into place, according to the Fifth Schedule to the Bill, a test for domicile which is based on ordinary residence. The European Court of Justice in the case of Klomps v. Michele, Case 166, 1980, defined the idea of domicile as on the basis of habitual residence. Why should we not write into our law, with the benefit of that judgment, a definition of domicile which is consistent with the interpretation of the European Court of Justice of the domicile provision? We should do so on the basis of habitual residence which would be, as Deputy Shatter pointed out earlier, more consistent with the notions laid down by the Law Reform Commission for reform. The Minister should take that on board and come back to us on it.

The last thing I want to say in relation to the substance of this Bill is that I am worried about its retrospective effect. How many judgments will become enforceable in Ireland by virtue of the passage of this Bill and how old can those judgments be? It may be that somewhere lost in the minutiae of this Bill there is some provision in relation to that but I have not found it if there is one. It strikes me that there should be some explicit limitation procedure that judgments should have a limited lifespan or that the retrospective effect of this Bill should be capable of being decided in its extent at least. Is the Minister satisfied that the Convention obliges us to recognise all judgments retrospectively or is the effect of this Bill to deal only with judgments obtained after its passage? I am subject to correction but I do not think it is. This House would be well advised to address its mind to this issue.

I want to refer to procedures of this House. The Committee Stage of this Bill is very complex. I can see no reason why this House on plenary session should spend its time debating this Bill line by line and debating the amendments on Committee Stage. The Minister used the phrase to describe the English equivalent of this Bill as "mind boggling myriad of legal complexity". It is absured for three or four people who have points to make on Committee Stage to take up the time of this House which already has a backlog of legislation. While the Committee Stage is very complex and will have certain ramifications it will be of limited interest and will have a low participation rate. I appeal to the Minister to entrust the Committee Stage of this Bill to a committee of the House, whose members could reflect the relative strength of the parties. The Bill could be discussed in a more rational way in an informal and more constructive atmospher than can be done in this House. Less time would be wasted. Other Deputies who have serious preoccupations could use that time to discuss the Second Stage of other Bills in this House. It is quite absured that a complex and technical matter such as this should go on and on when the House has other important matters to discuss.

I have spoken long enough. We will have a lot of amendments to put down to the Bill. However, I ask the Minister to take on board the points I have raised.

Mr. Abbott

I congratulate the Minister on bringing forward this Bill. Deputy McDowell has expressed his disgust at the delay in bringing forward the Bill which he says, proposes mind boggling changes in the legislation. Much work has been done on the Bill not only by the Minister and the civil servants but also by persons outside Government. I understand that a number of people advised on the very complex matters in the drafting of the Bill, and how it would affect, and merge with, other areas of legislation and common law. While one must regret some element of delay, one was culpable, and it should go on the record of the House that we are all the better for the delay, because we have seen the development of a corpus of decisions on the legislation in Europe and, indeed, since 1982 in Britain. This should be helpful to us on Second Stage and on Committee Stage when the detailed provisions come to be debated in full. I compliment the Minister on the very clear manner in which he elucidated the provisions of the Bill which are expressed in common sense terms. The Minister has done a service not only to this House but to the legal practitioners and law students who require an introduction to the legislation without going through an enormous body of legal tomes which are often couched in the most academic language which assumes a knowledge of conflict law on the part of the reader.

This Bill seeks to establish the free movement of the European Communities court judgments, reflecting the increased mobility of goods and services within the Communities. I believe the measures are fundamental to the practical harmonisation of Community trading and will effectively open up European markets to nationals of each member state. The fact that the legislation should have come about many years ago is perhaps a factor to be taken into account when reflecting on lost opportunities but it should also indicate the possible effects of the legislation in the future. The difficulties presented by the harmonisation of two quite different systems of law merging into the one European system have obviously delayed the implementation of the law both here and in Britain. We should remember that it took the British four years after the ratification of the final Convention to bring in their legislation. I refer to the harmonisation of the civil law system of mainland Europe and the common law system which prevails both here and in Britain. Much of the legislation, especially the provisions relating to domicile arise out of the necessity to harmonise these two great systems of law so as to ensure some business like working of the legislation.

I trust that the delay has been well worth while. The work on the Bill will ensure that the legislation will be put to practical use when it comes into force of law. The erudite, detailed and at times esoteric debate which this measure evokes sometimes tends to contradict the basic aims of the legislation. I think the fact that so much of the debate comes from academic lawyers detracts from the necessary public attention which the legislation requires. The fact that the legislation does not get the level of press attention it deserves is very often the result of detailed and academic discussion. I feel that one should try to ensure in debating this measure that the effectiveness of the legislation would be increased by ensuring that when enacted it would not be subject to any technical flaws, procedural delays, or complications which leave it little better than the existing hit or miss system of recognising foreign judgements and the existing equally hit or miss system of proceedings in Irish courts where plaintiffs claim to seek a remedy against foreign defendants or defendants of a mixed forign and domestic combination.

It struck me very forcibly that section 5 provides that an application for enforcement of a judgement shall be made to the Master of the High Court. It is provided further that the application shall be determined by the Master of the High Court in accordance with the 1968 Convention, as amended. Article 32 of the Convention provides that the application should be made to the High Court, without specifying or defining the High Court any further. Having regard to the fact that the High Court in the Constitution of Ireland is comprised of judges and that in the decision of the High Court in the Mellowhide Products Ltd. v. Barry Agencies, 1983 Irish Law Reports monthly, page 152, it was held that the word “judge” did not include the Master of the High Court, it can be argued that in view of this decision there is a danger that section 5 of the Bill and any other sections placing jurisdiction of the High Court on the Master of the High Court is ultra vires the Convention and the Irish courts will allow a defence that the Master has no jurisdiction in any of the applications. I hope that my worries are unwarranted. The fact that an appeal is provided for in the Convention from the High Court in the High Court could possibly be interpreted as meaning that the High Court in the first instance of an ex parte application for recognition could in fact be the Master of the High Court. The position is not helped when the Convention in nearly all cases except Ireland and Britain provides for a full-scale appeal in another court. For instance, in the case of Germany an application may be made ex parte for recognition in the first instance to the Landgericht and, if refused, the appeal may be brought to the Oberlandesgericht, which is another court and indeed a higher court. The current position in Britain is that the application may be brought in the first instance to the Master of the Queen's Bench, which is in many ways the equivalent of the Master of the High Court. One cannot draw too many parallels with the British system in view of the definition in the Irish Constitution of the High Court and in view of the Mellowhide decision.

Another aspect of the jurisdiction of the High Court is unusual if not mystifying. It concerns the right to apply to the High Court proper for recognition of authentic instruments and court settlements. The explanatory memorandum with the Bill states that these documents are unknown to the Irish legal system and that it is intended that an application for their enforcement would be made ex parte not to the Master of the High Court but to a judge of the High Court. Thus, the distinction suggested to the Mellowhide case is brought seriously into play. However, a possibly more substantial concern arises from the fact that Article 40 of the 1968 Convention provides that if an applicant is refused recognition or an enforcement order of an authentic instrument the applicant may appeal to the High Court in Ireland. This to my mind is not the usual practice. When a person applies to the High Court in the usual way on an ex parte application for, say, an interim injunction or a conditional order for certiorari, or as it is now called, for judicial review and one is refused, one then goes on to appeal to the Supreme Court. In some instances one finds that the inexperienced or perhaps the lawyer of great initiative and ingenuity will go back to another judge of the High Court and omit to inform the judge that a previous applications was refused. In such instances the court takes a very serious view of the matter in so far as the applicant did not reveal to the judge to whom the second application is being made that a first application had been refused by a colleague.

I would like this matter of an appeal from the High Court to the High Court to be clarified, especially in view of the fact that the Constitution defines the High Court as a type of corporate entity of jurisdication which cannot have an appellant function in relation to its own decisions. It seems the Constitution does not compel an appeal from the High Court to the Supreme Court. Other courts may intervene between the High Court and the Supreme Court. Under the Constitution there may be scope for a court of appeal, and this has been mentioned also. The proposals in the Bill may be an absurdity regardless of the fact that the Bill and the Convention may be constitutional and that the thrust of the Bill and the Convention may be constitutional. Nevertheless, in relation to definitional matters and the practical working out of the Bill, going to courts and getting effective orders, there will be difficulties. I trust that the Minister can clarify these matters and, if they remain in the Bill, that the ingenuity of the courts can deal with them. Certainly, they are of grave concern to me.

It is difficult to find reference in the Bill to the source of jurisdiction of the High Court in relation to the enforcement of authentic instruments. Section 5 confers jurisdiction on the Master of the High Court in relation to enforcement of ordinary judgments. One would expect that, together with that section, one would find a clear statement that in relation to authentic instruments the Master did not have any jurisdiction and that it was given to a judge of the High Court proper. Instead, one has to look to the definition section, section 2, where an enforcement order is defined; and an enforcement order in the case of an authentic instrument is defined as that which can be got from an application to a judge of the High Court. There is a further hint in section 6 of the Bill in relation to the special meaning of a judgment which includes, for the purposes of section 6 only, an authentic instrument. There is a further reference in section 11 to the jurisdiction of the court in relation to authentic instruments for the purpose of taking protective measures and getting orders for protective measures. Were it not for the fact that the Explanatory Memorandum states clearly that the High Court proper is to have jurisdiction in relation to these matters it would be quite a feat indeed to glean from a fairly detailed reading of the Bill that the jurisdiction rested there. In relation to the presentation and drafting of measures such as this, they are mind boggling enough without adopting a spot-the-ball type of draftsmanship on the matter. Even legal practitioners should not be expected to spend enormous amounts of time piecing the bits together so as to eventually interpret the Bill by stealth and sheer crosswordlike skill.

The Minister and the rules committee of the superior courts will have a very important job to provide rules of court to give full effect to the legislation so that the proofs for an application for enforcement or recognition of a judgment can be as simple as possible. There is a necessity to minimise the use of affidavits of foreign law by foreign lawyers to explain the effect of judgments and so as to simplify the authentification procedure in relation to documents and translations.

Section 10 is a helpful section which relates to proof and admissibility in relation to judgments.

With reference to the Minister's undertaking to bring forward legislation ratifying the 1980 Convention on the choice of law in relation to contractual and other matters, there is in place, to the best of my knowledge, a further Convention emananating from the Conference on Conflict of Laws in The Hague on the admissibility of evidence and the presentation of evidence throughout the Convention areas in cases involving foreign elements. It has been said by speakers from the Opposition that it is all very well to sign and to ratify Conventions but that it is another matter to do something about it and I concur with that view. The House should not merely confine itself to the technical passing of this Bill and the satisfaction that the Bill is a consistent body of law when it is enacted. The House should be concerned about delivering the effect of this Bill to the consumer through the courts of this land. To do that one would need to look at the laws of evidence to ensure that the very often intricate formalities in relation to the proof of happenings abroad, the proof of foreign law and foreign instruments, and the securing of the attendance of foreign witnesses in many cases, are all sorted out so that the smooth running of these cases can be guaranteed.

It is all very well to have the remedies on the Statute Book but it is another matter altogether to go to court and find that the remedies can be applied in a practical manner. This applies to all Conventions, whether of a civil or family law or even a criminal kind. This House can very often get carried away on the principles but can be very short in relation to the working out in practice of the remedy. It would be a bad thing for this House and this country to pass legislation and to subscribe to Conventions so that our partners in Europe would have the expectation we could deliver the goods in the courts of this country and yet when foreigners and nationals of contracting states in the EC come here to get legal redress they find they are caught on very many procedural obstacles arising from our inability and unwillingness to subscribe to whatever bodies of common rules exist under Conventions on the procedural end.

The straight forward rules of court in relation to the reciprocal enforcement of maintenance orders between Ireland and Britain are a pointer to what may be required in the rules which will emanate from the rules committee of the superior courts when this legislation is enacted. However, the ultimate rules which will emerge can be expected to be more complex. If we can have in place rules of court which will give practical effect to the legislation upon its enactment then it may be desirable to have a look at the rules and procedures governing the implementation of the Convention in other jurisdictions so as to ensure that there will be no procedural barriers defeating the overall application of the convention in practice right across the European Community.

In relation to the jurisdiction of the Irish courts as affected by the Bill, there are big changes arising there and I echo the sentiments expressed by Deputy McDowell in this respect. There will be big changes in the Irish courts as a result of the change from the so-called exorbitant juridiction of the Irish courts in which they deal with claims with a foreign element by giving leave to serve a writ outside the jurisdiction, very often in respect of the accident which occurred in Germany as instanced by the Minister and Deputy McDowell and where the jurisdiction of the court depends on the voluntary submission to that jurisdiction by the German defendant. No longer will the Irish plaintiff have the option of taking that course in the Irish courts in many instances. Of course, in the case of a car accident he will because there are special provisions in the Bill and in the Convention in relation to that but one will find that Irish plaintiffs will, more and more be forced out into other jurisdictions to assert their rights and not only will an Irish plaintiff face different choices of law possibly by going into court in Germany, as distinct from Ireland, but also the Irish plaintiff will be affected by encormous differences in the level of damages for pain and suffering existing between the two countries.

We can expect this difference as between Ireland and the mainland countries to continue for some time notwithstanding any changes that may occur in the jury system. It seems we have a tradition here of high damages and the continental countries, and Britain to a lesser extent, have a tradition of lower damages. In fact, the phenomenon of low damages in Germany in particular has to be experienced to be believed and it will shock many Irish litigants to find that they are now in that positions. This is possibly one of the disadvantages of this Bill but I believe that Irish people will have to learn to live with the consequences of the Bill because its overall beneficial effects are vastly greater its than any of these difficulties on an individual basis. Nevertheless, we should be conscious that these dangers are there.

People have said that the lawyers should acquaint themselves with the contents of the Bill. I would go further and say that business people especially should acquaint themselves with the procedures and the consequences of the Bill because many business decisions will be affected from the outset by the fact that disputes in relation to contracts could end up in a different jurisdiction.

The occurrence of such divergences in relation to the choice of law applicable to the same case in two different jurisdictions and the actual practice and psychology of the two different courts in two different countries gives rise to the need to press for further harmonisation in that area. Already we have seen the onset of the European code of absolute liability in respect of products manufactured in the Community on the consumer side of legislation. I respectfully suggest that the area of commercial contracts, or at least of some aspects of commercial contracts, is eminently suitable for further harmonisation. I think the convention which the Minister has in mind, that of 1980, would deal with the choice of law aspects in relation to civil and commercial contracts and other civil matters. There is a further aspect of harmonisation and that relates to the law itself which may be applicable to contracts. It is a dangerous area in which to advocate too much harmonisation.

So far in the Common Market we have had harmonisation of legislation, much of it in relation to standards — standards of milk, standards of beef, standards of pollution of the atmosphere. The harmonisation largely relates to the "do nots" of the law in the various areas but do not relate to the mechanism by which disputes can be resolved and I would instance the contrast between, let us say, the German system and the Irish system in relation to time limits in contracts. In the Irish system we generally regard time limits with a grain of salt. The courts will not apply a strict time limit in most cases and will decide whether time was of the essence of the contract. In most cases the courts will say that time was not of the essence of the contract in spite of the fact that a strict time limit was laid down. They will say it is up to the party making a claim in the contract to have made time of the essence by writing a stern letter and generally banging the table to have the contract completed on time within a reasonable time after the time limit. In some cases our courts in Ireland, and indeed the courts in Britain, have said that even where persons purported to make time of the essence the courts would not allow them to make time of the essence unless it was reasonable for them to do so.

The law in Germany contrasts absolutely with this position. Generally they strictly apply a time limit as stated in the contract and I suppose this goes a long way to reflect the German methods of business and may, in fact, influence German methods of business. The harmonisation of the treatment by courts of these aspects of contracts would go a long way towards leaving the Irish businessman in the same position as the German businessman, able to anticipate how the German courts would deal with the contract and generally in a position to predict how their commercial transactions would go ahead in the countries they were dealing with. Nevertheless in studying European comparative law one finds that many aspects of the concepts of contract law end up with the same results in the end and one should be quite prepared to look into this aspect of harmonisation with a view to having more developments and with a view to ensuring that the business community in Ireland, and indeed the citizens of Ireland, can deal with this jurisdiction with a greater sense of awareness of the results that might ensure in other jurisdictions.

As regards the further pursuit of the harmonisation of provisions in relation to conflict of law, the Irish Government could take a leading part and the benefits to a further extension of Irish trade as a result are obvious. Provisions of Article 27 of the 1968 Convention which disentitled the applicant to recognition of the judgment may pose a threat to the smooth working of the system. These are the provisions which allow a defendant to object to the enforcement of judgment on the grounds that enforcement would be contrary to public policy. One wonders if the grounds of public policy may be more numerous in the defence of nationals of some member states than of others. The statement of the position experienced in English courts in 1967 is described in Dicey & Morris "Conflict of Laws, eleventh edition". This feeling of insecurity in relation to how Irish nationals might be treated in the foreign courts spring to mind when the editor of that edition refers to the use of the summary procedure used in English courts on page 968, as follows:

The speed and simplicity of this procedure, coupled with the tendency of English judges narrowly to circumscribe the defences that may be pleaded to an action on a foreign judgment, mean that foreign judgments are in practice enforceable at common law much more easily than they are in many Continental countries, where enforcement is easy in theory but difficult in practice because of the tendency of the Courts to enlarge the scope of the defence that enforcement would be contrary to order public or public policy.

Also paragraph 4 of Article 27 of the 1968 Convention relating to the defence of lack of capacity on a recognition application could be a minefield of difficulty for the unwary litigant. Obviously, when the Convention and this legislation are in place on the Statute Book, the Irish Government should press to ensure that the categories of defences available in other European countries under this heading do not get out of hand, relative to the few that can be availed of in Ireland.

The Bill gives implicit recognition to the Mareva Injunction. This is the injunction which enables Irish litigants to ensure that assets can be preserved in this country in the event of a defendant threatening to remove them out of the jurisdiction of this country and removing the security which a plaintiff might have. These injunctions have been developed in Britain and they have been given with a great, and possibly an increasing, degree of frequency in the Irish courts in the last number of years. The injunction has been the scourge of many a fly-by-night who had wished in recent years to avoid his debts in this country by taking his assets away. The Bill allows Mareva Injunctions to be obtained even where Irish courts will have no jurisdiction under the legislation. Irish judges may not now be as willing to grant Marevas as heretofore in the event of this legislation being passed. The sheer availability of recognition of foreign judgments right across the European Community might, in the court's view in certain cases, diminish the urgency and need for such orders in the future. Only time and the practice of the courts here in Ireland will tell how the law and the development of the decisions in our courts will react to the new situation as presented by the enactment of this legislation.

The provisions of the Convention allowing consumers to sue in the jurisdiction of the plaintiff regardless of the domicle of the defendant in consumer contract situations would be a great boon to Irish consumers faced with defendants as far away as Greece and Sicily. However, the consequences for small manufacturers faced with consumer claims in Greece or Sicily might not be so happy. As I stated before, the new jurisdiction incurred by the courts right across Europe in relation to Irish defendants can remove litigation right away from this country and could remove it, as I said, as far away as Greece and Sicily, to the great disadvantage of Irish litigants. When one considers the practical consequences of being a defendant in either or any of the Common Market countries, one finds that perhaps in cases where a contract is made by an Irish defendant with a German plaintiff the German plaintiff will have the option of suing the Irish defendant in Ireland or of availing of a stricter German system to sue in Germany, especially where the contract was to be substantially performed in Germany and where that fact of performance gives jurisdiction to the German court.

An Irish defendant in that type of litigation will have very substantialy expenses imposed on him or her in relation to getting withnesses across to the German court, in relation to getting German law-years to represent him or her, in relation to dealing with the situation where Irish witnesses cannot be summoned to the German court, in relation to the possibility that the German court would require evidence to be taken in Ireland on commission where the witnesses will not travel from Ireland to the German court. Such expense would be threatened against an Irish defendant in such situations, and I would say that the same would apply to a German defendant if the German defendant were to be sued out of his own stoping ground or out of his own country.

It could well be that actions would be compromised, not by reason of the threat of any demerits against the defendant but by reason of the threat of an enormous amount of costs having to be laid out by the defendant in order even to appear in the action. I would be somewhat concerned that enterprising lawyers might tend, in their over-enthusiasm to act in the interests of their client, to being actions on this alternative jurisdiction away from a defendant so that the action and the running of it could be made as difficult as possible for a defendant in order to put extra pressure — and extra legal pressure — on a defendant to compromise. This would be a danger, especially in vexatious types of actions, actions where a plaintiff might use for the purpose of getting a nuisance settlement, a settlement which would be geared, not in relation to the merits of the action but in relation to the possible costs on the side of the defendant with regard to mounting an appearance and a successful defence.

I wonder if the Irish courts and the European courts can develop a policy of ensuring that this type of "one-upmanship" in relation to running actions can be controlled so that litigants are not unduly penalised by a sort of swinging across the Continent of actions merely to increase the nuisance value of such actions. The Irish courts at the present time would view such activity in certain situations as an abuse of the process of court and I am sure that that type of plea might well be available in the European context. It might well be accepted as a good ground of public policy for upsetting any application for recognition of a judgment. There is a very hazy area between the absolute abuse of process and the type of "one-upmanship" which I have in mind. There is a vast amount of legitimate activity which could be oppressive to litigants and we will have to watch this litigation to see how in practice it develops. As I said, the abuse of the new procedures would not be confined to foreign lawyers. They could also be abused by Irish lawyers in proceedings against nationals of other EC countries. It would not be in the interests of this country or the EC if that type of slick activity developed or was condoned by the courts.

The enactment of this Bill and the Conventions it adopts would help greatly our trade and relationship with the EC. It would abolish many of the barriers which EC based firms see militating against them if they were to decide to establish in this country. It would boost significantly our chances of attracting many European based firms to establish in the planned financial services sector. The attractiveness of the planned financial services centre in Dublin would be helped greatly by a very enthusiastic and energetic commitment from the Minister and from this House to have in place as many of the Conventions as are necessary to ensure the absolute mobility of judgments within the Community, the maximum ease for people based in other EC countries to sue defendants resident in this country and the lack of procedural or evidential constraints in our courts.

It is important for the financial services centre to be in a position to ensure that mainland based firms can sue firms based in the financial services sector with the same ease as they might sue them if they were based in any other country. If a contracting party which is based in a different country finds it difficult to sue a firm which establishes in the financial services centre that will be as much of a disadvantage to the financial services centre as a bad telephone line or worse. While we should be concerned to ensure the smooth working of the physical infrastructure of the financial services centre we should be just as much concerned about ensuring that the legislative, administrative and procedural aspects of resolving disputes between the companies which will hopefully establish in the financial services centre and those on the mainland countries of Europe can be effected in an absolutely efficient manner.

The importance of this legislation is further underlined when we consider the position of a firm from a country outside the EC setting up in the financial services centre. Firms from countries such as Japan, Korea, Hong Kong and the Arab states would benefit greatly from setting up subsidiaries in the EC and EC countries would benefit from the fact that they could have trust in the legal system in which those firms would operate. One of the main factors blocking trade between Ireland and other EC countries and firms in the Arab states and many Third World countries is the fact that the legal position in relation to any disputes which may arise is anything but clear. If these firms were to establish in Ireland they would lose that disadvantage because of the system which will be put in place as a result of this legislation. The advantages from their setting up in Ireland are clear. It is important for Ireland to attract as many foreign firms as possible.

Deputy Shatter expressed concern about the referral of disputes to the European Court as was set out in Article 2 of the Protocol of the 1971 Convention. I must say that I was also concerned about this matter on examination of the Convention and the Bill. I ask the Minister to have regard to the fact that while section 2 of that Article provides for a request to the Court of Justice to give a preliminary ruling on the question of interpretation, this may also be made by the courts of the contracting states when they are sitting in an appellate capacity and this would include the High Court sitting in an appellate capacity.

I share also the concerns expressed by Deputy McDowell in relation to the absence of limitation periods on the effectiveness of judgments. The limitation periods on judgments obtained in the Irish courts are not often referred to. There are limitation periods in respect of execution. Applications must be made to the court after a comparatively short time to extend the period for execution of a judgment against a defendant. As Deputy McDowell said, unless the provisions relating to the duration of judgments is contained in the dungeons of the Bill and of the Conventions, some attention would need to be given to this matter otherwise disputes between citizens of the EC and citizens of this country would continue and never reach an end. It is important in all litigation proceedings that a conclusion is reached either through a resolution of the dispute or through the passage of time. I trust that that matter will be resolved.

The question which was raised in relation to dual domicile is an important one. A report on domicile was published in Britain in September of this year. The high powered committee of inquiry who drew up that report accepted the separate definition of domicile for the purposes of these Conventions and the 1982 equivalent legislation in Britain. That was accepted because the contracting parties to these Conventions accepted that that definition of domicile is the one that should be applied in both Ireland and Britain.

Notwithstanding the fact that the appearance of two types of domicile would lead to confusion, the Minister should consider that domicile has never been in our jurisdiction to date a very great factor in determining contractual and civil matters. Very often the jurisdiction and the choice of law would be based not on domicile but on the place of contract or the lex loci contractus. Similarly, in the area of tort, the choice of law and, indeed, the jurisdiction were founded on the area and location in which the tort was committed. Therefore, the existing situation has a certain duality in that the issue of domicile remains one which substantially relates to the status of persons, family law matters and matrimonial type litigation.

The legislation should go ahead, not only on the basis that this country has made a commitment to the other contracting states and that the other contracting states have been operating this legislation for a considerable time but also on the basis that it would not prejudice any examination of domicile by this House, by the Law Reform Commission or by the Government in relation to other areas of domicile not affected by the Bill. I hope the Bill will continue at fast pace through this House and will be enacted and that ultimately this country will benefit greatly therefrom.

Mr. McCartan

The Workers Party welcome the Bill that is currently before the House but do so in what must be regarded as a limited way. Our qualified welcome of it reflects the fact that the Bill itself is the reflection of the order of things within the EC. It reflects the fact that that organisation was developes as an institution of capital to assist its development and concentration in the hands of the rich and to enable the increased exploitation of labour and workers throughout Europe. For that reason the Bill is remarkably narrow in its conception, and the Convention of 1968 is remarkably narrow. It has an inbuilt class bias and will develop and reflect in our law that class bias.

The scope of the Convention and, for that matter the Bill, is remarkably narrow. It is excluded specifically from dealing with matters of revenue, customs or administration and is extended specifically not to include matters such as social security, arbitration and bankruptcy. Here are a Bill and a Convention designed to assist in the development of civil and business matters in the Community, but for some unexplained reason the parties to the Convention of 1968 excluded bankruptcy and proceedings relating to the winding up of insolvent companies and other legal persons, judicial arrangements, compositions and analagous proceedings. Therefore, while we are legislating for the better order of the development of company law and litigation, we are not prepared to extend the legislation or the Convention to pursue across Europe in the various contracting countries those persons whose companies fold up for whatever reason.

Experience has shown in recent months in this country that greed is a great motivator in these matters. Let me stress that, while this Bill seems to cover all aspects of company and commercial law, it has been excluded from dealing with that. The message goes out quite clearly from the captains of the EC that the bank rupts and other miscreant company managers and directors will continue to enjoy the same privileges and protections as Irish law has in the past provided for them.

Some of the previous speakers have talked about the incredible complexity of the drafting of the document. I have to make a very strong reservation on the way in which the draftsmen have gone on trying in effect to bring into Irish law the provisions of the 1968 Convention by a very simple and, I have to say to some degree lazy procedure of using a large definition clause simply referring each item to the Convention and its provisions, with the result that we, as legislators in this House who are now being given the opportunity of drawing into our law the provisions of the 1968 Convention, have little or no scope or function. We cannot put down amendments to the Convention as is incorporated as an appendix to the Bill. For example, we cannot say we are unhappy with the restrictions of the provisions or with definitions with regard to domicile. Domicile is definded within the provisions of the Treaty and if we are asked to try to slip in amendments in the sections in the definition part or otherwise that will increase the slipshodness of this legislation.

The Convention is explicit. It is a document that was concluded in 1968 and it is not open to this House or to any Deputy here to seek to alter its provisions. At the time the legislator of the day, being made aware by the Minister or Ministers concerned, should have pushed the government of the day to ensure that forms of derogation or reservation or declarations of that sort would be loged with our letters of ratification. I do not believe that anything like that has been done. For that reason we have the Convention lock, stock and barrel simply introduced into a law by the vehicle of the 1987 Bill. It is going to be exceptionally difficult for any of us to sit down now and make a more up-to-date, relevant meaning of the provisions as intended.

Very useful and good developments are enshrined in the Bill in its entirety. It is welcome that jurisdiction of litigation in future will be based on domicile and not on the previous narrow grounds of the opportunity to serve writs in or out of the jurisdiction. The fact that the matrimonial creditor is considered to be the weaker and given preference in proceedings or, more particularly, in the choice of jurisdictions for the institution of proceedings must be welcomed. The clarification of the location of jurisdiction in land matters based on the location of the land itself again is a clarification of the law in this regard and is welcome. The fact that our courts no longer have a discretion to refuse to entertain litigation in cases once they come within the precise, clear terms of the Bill is welcome but has implications for the administration of justice in this land that must be addressed by this Government if they are to give meaning to this Bill at all.

The availability of the ex parte side-bar application to the Master of the High Court helps in the speedy and more effective enforcement of the orders of our courts. It is a welcome development but if has major implications in regard to the workings of the single Master's Court of the High Court. Another Deputy raised some question about the constitutionality of some provisions of this Bill with regard to the Master's Court and the functions of the Master. The Government should consider the establishment of two or more Master's Courts to deal with the massive increase in workload.

I welcome the notion that a company incorporated in limited or other liability will be accountable on the basis of its seat rather than on the basis of its place of incorporation. Will regulations be introduced to require companies to indicate on their headed notepaper the place of their seat? Currently there are very neat references on headed notepaper, by reason of a ministerial requirement that all limited liability companies must state the fact of their incorporation and their incorporated number in the Companies Office.

We are again beginning to attack the outmoded common law notion of domicile which has bedevilled Irish law, particularly in the area of land and matrimonial matters. It is incredible that we as legislators have been so reluctant to deal with the problem of domicile. Part of the problem was addressed in the 1986 Act to which other speakers have referred. Now in a very small way we are beginning to throw out the tyranny of the common law in this regard. The great Irish American civil lawyer, Sampson, spoke at length on the tyranny of the common law. Domicile is one of the most indelible features of that tyranny and it is clearly reflected in our utter reluctance to begin to address it. It would make an ass of Irish domiciliary law if it is not the same for all sectors.

This is a significant first in the whole area of private international law in this country. The administration of Irish law and Irish law itself will be brought into very sharp relief in the European context. The whole emphasis of the Bill is concentrated around the High Court and the Supreme Court. The implications for those courts in terms of the increased workload must be addressed by the Minister. There seems to be an anomaly between sections 6 and 7 in so far as enforcement orders in regard to matrimonial matters can be taken under section 7 before the Master of the High Court but all other enforcement orders must be taken before the High Court proper. This distinction requires some explanation. The issue of the jurisdictional range of orders to be pursued in the High Court must be considered. The Bill provides that matrimonial orders can be pursued at the corresponding level in the District Court and the Circuit Court but no similar provision seems to exist with regard to other orders relating to contract or civil tort law.

Some concern has been expressed about the delay in introducing this Bill. I note that the Convention was not available for practical implementation until 1 November 1986 when the six original contracting parties ratified it. For that reason, I am not too concerned. There is also the fact that the earlier introduction of this legislation would have placed an enormously increased workload on our courts. The Chief Justice of the Supreme Court has been calling over a long period for the introduction of divisional courts of the Supreme Court. That issue must be seriously addressed in the light of the implications of this Bill. There is a very peculiar provision in Article 2 of the 1971 Protocol that the Supreme Court is the primary court of reference to the Court of Justice. The High Court has no original jurisdiction in this regard. It was an amazing oversight on the part of our Government not to have included the High Court in preference to the Supremen Court as the court of reference to the Court of Justice. We cannot address this matter because it is contained in the Convention, not in the Bill. We cannot seek to amend it. It casts on to the Supreme Court a very heavy onus in terms of work. This area of work would be very suitably dealt with at divisional level within the Supreme Court as opposed to the court proper. For too long the Supreme Court has been overworked in its listings. It takes a long time for matters to come up on appeal. Many of these matters, such as the whole issue of liability in tort matters and the quantum of damages, should properly be dealt with by divisional courts, leaving the Supreme Court proper to get on with the job of interpreting the law, statutory and otherwise, and developing our Constitution.

What intentions has the Minister with regard to increasing the facilities available in the High Court? I refer, for example, to the computerisation of the records of our courts. Our system will be thrown into sharp relief when litigants and lawyers from other jurisdictions have to stand in a queue at the Stamping Office to lick stamps on to court instruments and queue for the filling of documentation. It is an outmoded and unbelievably anachronistic administrative scheme. An attempts was made to address these questions but not in terms of computerisation and the development of facilities in the central office.

The second last paragraph of the Explanatory Memorandum, under the heading, Financial Implications, states:

Article 44 of the 1968 Convention provides that an applicant for the enforcement of a judgment, who has been granted legal aid in the state of origin, shall, in relation to the initial enforcement proceedings, provided for in Articles 32 to 35 (i.e. up to and including the decision authorising or refusing enforcement), be entitled to the most favourable legal aid available in the State addressed. Since the initial proceedings will be ex parte the cost to the Exchequer of providing legal aid for these purposes is likely to be insignificant.

The final and unbelievable line of that paragraph is: "The Bill has no staffing implications". The first thing that has been promised is that the litigant coming here who would in the normal course of events be entitled to legal aid in their home country will be entitled to the most favourable legal aid available in this State. However, the fact is that there is virtually no legal aid available in this State. In particular there is no legal aid available for persons who would litigate under the civil remedies of tort and otherwise. What is happening here is that many of the law centres in Dublin city, and around the country, are closed to new clients because they are so overworked and inundated with inquiries. When a client who is poor and unable to meet the requirements of the private profession gets inside the door of a law centre for interview and explains that his or her case relates to anything other than a matrimonial problem, he or she is invariably deflected out the door and down to sympathetic lawyers in private practice. The workload that those centres carry is monumental. To suggest that the are open to deal with the litigants of other contracting parties to this Convention coming here is to sell a great lie. To suggest that favourable or other legal aid provisions will be available to them is something we should not allow go unchallenged.

Clearly, the Minister has no intention of addressing the current problems let alone those that will arise when the provisions in the Bill come into force because he has said that there are no staffing implications involved. That is a very sad state of affairs. One of the great areas that the Bill addresses is that dealing with matrimonial orders enforcement. We will have the wives of separated, divorced or alienated husbands who have made their way to this jurisdiction to work, or for whatever reason, seeking through our legal aid system to pursue them for proper maintenance. The Minister suggests that those people can be accommodated comfortably within our existing scheme. There is the other side of that coin of the poor person who has to go to our law centres in an effort to go beyond our jurisdiction to pursue a defaulting spouse. How will our law centres be able to help such a litigant to make contact with those operating under legal aid schemes in other countries so as to coordinate correspondence and transmit legal documents? All those problems are passed off by the Minister in the final sentence of the Explanatory Memorandum to the effect that the Bill has no staffing implications. The legislation should be given teeth so that it can be implemented to the full, particularly in regard to those who cannot afford litigation, people for whom the Minister has a particular responsibility. The poorer sections of our community should be able to avail of its provisions and not just captains of high finance.

I should like to raise an interesting point in regard to deserted wives. When those people present themselves at the Department of Social Welfare they are facilitated if they can establish to the satisfaction of officials that a defaulting spouse is living in another country, is impossible to locate or impossible to pursue for the enforcement of a maintenance order. What will happen now if the spouse can be located or is living in any of the countries that are party to this Convention? Will legal aid be readily available to that person? Will the deserted wife be told that she has a duty to pursue her defaulting spouse in those countries? Will her entitlement to a deserted wife's allowance be curtailed in the same way that many unemployment benefits are taken from married women? The Minister should address that problem which concerns The Workers' Party. We are concerned about the class-orientated bias in the Bill.

Another feature I should like to question the Minister on is the question of retrospection. What is the position in regard to proceedings for contempt of court or for sequestration of assets? What are the implications for the Government in relation to them? I note that the Minister stated that judgment for periodic payments and non-monetary judgments will also be enforceable. I should like to know if in the definition of non-monetary judgments contempt of court is included for enforcement here. We are all aware that two members of Greenpeace were sentenced to prison for three months for contempt in relation to their efforts to protect our environment by blocking the pipe at Sellafield, Hans Guyt and Wilhellm Beekman. Those men had the presence of mind not to attend the court hearing and are now living in their respective countries. However, I understand that the warrant for their committal has been issued and I have no doubt that the British authorities will seek to enforce it. Had those men who took strong action on our behalf, informally I concede — it is worth nothing that they received a warm ovation from people passing to work on the Monday morning they returned to the Irish port where they were given safe haven from the British proceedings — decided to stay here would the Government, and our courts, be obliged to enforce the committal order? Will the Minister say if the warrant for committal for contempt or non-payment of a debt under contract or otherwise will be carried out and given effect in our penal system? Will we repatriate the defaulting offender, the person in contempt or creditor to the requesting jurisdiction? What are the implications for our prisons which are grossly overcrowded? I have not been able to find any answer to those questions in the Bill or the Explanatory Memorandum. It appears that such orders will be presented before Irish courts for enforcement against non-nationals found within our jurisdiction and that will have profound implications for us. If my reading of this is correct the Dáil does not have any power to amend or deal with such orders. It appears that if we introduce amendments we will be told that we are outside the scope, as was the experience in regard to other proceedings, of the agreement.

In regard to the sequestration of funds we all remember that in the wake of the great Thatcher campaign against the National Union of Miners in Britain a lot of the funds of that body were transferred to this jurisdiction, and elsewhere in Europe, to protect them from the courts in Britain. What will be the position of Irish courts in regard to such funds in future? Will they be asked to enforce the iron hand of Maggie Thatcher in this jurisdiction in her efforts to crush unions and other organisations who stand up against the inhuman policies of her Government? How do this Government propose to deal with those matters? Perhaps the Minister will refer to this in his reply to this Stage or, later on Committee Stage.

I wish to briefly raise two other matters and I hope the Minister will have something to say on them. I am concerned about the Family Home Protection Act, 1976, and I want to know, in the context of enforcement orders in regard to matrimonial proceedings being sought to be enforced in this jurisdiction, if the provisions of that Act will survive the passing into law of this Bill. Will, for example, the matrimonial home be protected as before against orders that might be transferred from another jurisdiction which would not have the same protections for the matrimonial home as we have? If, for example, an order is made in another jurisdiction for the enforced sale under the law of that jurisdiction of a matrimonial home, what is the position if it is sought to be enforced within our jurisdiction?

The purpose of this Bill is the function of our law and its administration and to bring us into uniformity with other countries in Europe with regard to the enforcement and pursuit of court orders. One of the matters that concerns me — I am interested to see that the original document was drafted in the Irish language — is that there is an obligation on the legal profession, the Law Society in particular for solicitors, to insist that all members of that profession must pass an Irish examination. He or she must have proficiency in Irish to enable him or her to carry on proceedings in our courts, under the Constitution, in that language. The development of the Irish legal system and profession, in terms of the European partners, is being hindered simply and solely because of this language requirement. We are not afforded the same reciprocal arrangements with the other European partners of the EC as we should be entitled to, simply because non-Irish persons seeking to join the legal profession here must be able to pass and be proficient in Irish, which is an impediment to their practising here. In the contest of trying to develop uniformity in the administration of justice, will the Minister advise us whether, in the Solicitors' Acts (Amendment) Bill which he proposes to introduce early in the new year, he will address this point so that we will have proper and full reciprocal arrangements and so that at least we will be brought into uniformity with the other arm of the legal profession here — the barristers — who do not have to contend with this restrictive requirement.

Those are the points I wish to raise in relation to the Bill, I welcome it in the guarded and limited way in which The Workers' Party must welcome most things which develop within the European Community. Nonetheless, it is a useful development in some regards and we hope it will have a speedy passage through the House.

Minister for Justice (Mr. Collins)

I thank the Deputies for their contributions to the debate on this technical but nevertheless important Bill. Before I respond to the specific points made by Deputies I would like to make some general comments on the legislation.

The Bill, while it deals with what are primarily legal matters, has economic implications which should not be overlooked. We are all aware of the importance of international trade to the Irish economy. In 1986 the combined value of our imports and exports amounted to approximately £18 billion, a sizeable sum. By definition, such trade involves transactions between Irish and foreign based firms. The sheer size of our international trade inevitably gives rise to quite a number of disputes and litigation.

The prospect of litigation involving an international element is, understandably, a daunting one. At present, however, there is an additional complication for an Irish firm which undertakes an action against a foreign company in an Irish court; that is, it may be a potentially fruitless exercise because it may not be able to have the resultant judgment enforced abroad. Any uncertainty in this area is obviously undesirable since it has the potential to affect the growth of our international trade. This Bill by enabling Ireland to ratify the 1968 Convention will remove this difficulty and will also introduce greater certainty into the general legal framework governing contractual relationships between Irish and other EC countries. Since around two thirds of our trade is with EC countries the importance of this development is obvious.

As regards the coming into effect of the Convention, the position is that once the Bill is enacted, the necessary arrangements will be made for the deposit of the instrument of ratification with the Secretary-General of the Council of the European Communities. The Convention will come into force between Ireland and the original six member states plus Denmark and the United Kingdom on the first day of the third month following the deposit of the instrument of ratification, in accordance with the provisions of Article 39 of the 1978 Accession Convention. The Convention has been in force between those eight countries since 1 January last. The Convention will not be extended to Greece until such time as the Federal Republic of Germany and Greece ratify the 1982 Accession Convention. Spain and Portugal are also obliged by their membership of the Community to accede to the Convention. This may take some time as negotiations to provide for their Accession have not yet commenced. I understand, however, that these will start early in 1988.

There are a number of other matters which will arise following our ratification of the 1968 Convention, notably the necessity to ratify a 1952 Maritime Convention on the Arrest of Seagoing Ships. Ratification of this Convention is required in order to protect our existing admiralty jurisdiction. Article 36 of the 1978 Accession Convention provides for special jurisdictional rules in admiralty matters, which are based on the 1952 Arrest Convention, and which will apply to Ireland for a period of three years to allow us time to ratify the Arrest Convention. Work on the preparation of a Bill to enable us to ratify this Convention has already commenced in my Department and I hope to be in a position to introduce the Bill during 1988.

Deputy Shatter, in referring to Article 2 of the 1971 Protocol on Interpretation, felt it was a pity that references for ruling and interpretation were confined to the Supreme Court. I refer him to paragraphs 2 and 3 of Article 2 of the Protocol. Paragraph 2 provides that in addition to the courts mentioned in paragraph 1, the courts of a country when they are sitting in an appellate capacity may request a preliminary ruling. Paragraph 3 provides that the courts mentioned in Article 37, in the case of Ireland, the High Court, may also request a preliminary ruling on the cases covered by that Article. The purpose of the provisions in Article 2 of the protocol was to reduce as far as possible the number of references to the Court of Justice so as to cut down on the work load of the court and to ensure that the domestic appeals system was used before going for a decision and an interpretation to the European Court.

Deputy Shatter and other Deputies raised the question of domicile in the case of infants and in the case where a person is not ordinarily resident here and cannot be said to be ordinarily resident in any other country. Schedule 5 should be read in conjunction with Article 52 of the Convention. The definition of domicile of an individual is, for the purposes of paragraph 1 of article 52, that if a person is not ordinarily resident in Ireland an Irish court will apply paragraph 2 of Article 52, and in order to determine whether the person is domiciled in any other contracting state, it will apply the law of that other State and not the law of this State as set out in this Bill. With respect to children the purpose of the definition of domicile in part 1 of the Fifth Schedule is to provide a definition of domicile for the purposes of all aspects of the Convention. Therefore, for the purposes of the words "national law" in paragraph 3 of Article 52 which deals with dependant domicile it is the definition of domicile of an individual in part 1 of the Fifth Schedule and not the common law definition of domicile that will apply.

Deputies Shatter, Abbot and McDowell referred to the definition of domicile in the Bill. The definition in the Bill is proposed for the purposes of this Convention only. It was accepted during our negotiations with the original six member states that the common law definition in Irish law and in English law which is geared towards issues of status was not suitable for the purposes of the Convention. Both countries undertook to provide a definition of domicile approximating to the Continential definition for purposes of the convention. This we have done as have the United Kingdom.

The question has been raised as to why we use "ordinary residence" and not, for example "habitual residence" as a definition for domicile for the purposes of the convention. First, "ordinary residence" is a concept already well known in our law. Of particular relevance is the fact that the ordinary residence of the defendant in the State is one of the grounds in order 11 of the rules of the superior courts to allow the service of a summons outside of the jurisdiction. It is also used in the venue provisions in our law courts. There is one very cogent reason for not using "habitual residence" as a definition of domicile for the purposes of the Convention. The Convention itself distinguishes between domicile and habitual residence. As the Deputies have mentioned the Law Reform Commission recommended that the concept of domicile in our general law should be replaced by habitual residence. The Commission have proposed a definition for "habitual residence" which would require a high degree of social integration between the person and the State. Such a definition would be completely unsuitable for the purposes of founding jurisdiction in the case of the Judgments Convention which deals mainly with commercial legal relationships. If the Government were to accept the Commission's proposals, if "habitual residence" had already been chosen as a connecting factor for the Judgments Convention, it would be necessary to have a variety of definitions for "habitual residence" to take account of the different circumstances in which it would be used as a connecting factor, such as in matters relating to personal status, and commerical transactions and this would lead to unnecessary complications.

Deputy McDowell said that Klomps v. Michele in the European Court interpreted domicile as being “habitual residence”. This appears in an English translation of the court's judgment. It is accepted as being a mistake in translation. The Convention itself distinguishes in Article 5.2 of the convention between “domicile” and “habitual residence”.

Deputy McDowell referred to the delay in the preparation of the Bill. Members know that the original convention was signed in 1968 but it did not come into effect until 1973. The Convention which dealt with the accession of Denmark, Ireland and the United Kingdom was signed in 1978. Work on the preparation of the Bill commenced shortly after the signing of the Convention but was subsequently postponed because it became clear that other states would be delayed in ratifying the Convention and that there would be other matters which required more urgent attention. The 1978 Convention could not come into force until the original Six and one new member state ratified the Convention. As it transpires the Convention did not come into effect until November 1986 because of delays in ratification by the original member states. A Bill was introduced by the previous Government in December 1986, which was, as soon as it could be done, to give effect to the Convention. That of course lapsed with the dissolution of the Seanad.

Deputy McDowell queries whether the Convention would have retrospective effect in respect of judgments already handed down. This question is dealt with in article 34 of the 1978 Convention of Accession. I would refer Deputies to the Third Schedule of the Bill which contains the relevant provisions. Deputy McDowell referring to the Irish Law Times said that decisions given before the coming into effect of the Convention might have been different if the legislation was in place. I presume he is referring to a particular court case, the Supreme Court decision in Grehan v. the Medical Incorporated and is comparing it with the European Court decision in Bier v. Mines de Potasse. The Supreme Court was aware of the decision and mentioned it in their decision in the Grehan case. While the decisions may conflict in their details, both favour a pragmatic approach and in general are in harmony.

Deputy Abbott mentioned the Mellowhide case which dealt with the interpretation of section 22 of the Courts Act 1981 which provides that where any court orders any payment by a person of a sum of money, the judge concerned may if he thinks fit also order the payment of interest on the whole or part of that sum. The High Court found in 1982 that this discretion was confined by section 22 of the 1981 Act to the trial judge and is not vested in the Master. However, the High Court judgment noted that there appeared to be no logical reason why the Master of the High Court should not exercise the discretion contained in the section. This Bill gives specific jurisdiction to the Master so the difficulty that arose in the context of the Courts Act will not arise in this case.

Deputy Abbott referred to the more general question of conferring jurisdiction on the Master to deal with the initial application for enforcement. The Master has already had conferred on him a similar jurisdiction in the case of maintenance orders from the United Kingdom and Community judgments made under the relevant regulations. It must be remembered that the application will be ex parte and this is in line with the general jurisdiction that is at present exercised by the Master of the High Court. The intention behind the Convention is that recognition will be more or less automatic and it seems eminently proper that the initial ex parte application be made to the Master. The only reason why authentic instruments are to go to a judge of the High Court rather than to the Master is because we have no previous experience of the type of instruments involved. Indeed, it is quite likely that applications in respect of such instruments will be very rare, if they ever arise. In the light of experience it is to be considered whether such applications may not also go to the Master. We will have a further chance to consider the operation of the Convention in Ireland when the legislation to give effect to the accession of Spain and Portugal comes before the House. Negotiations on their accession are due to commence shortly. In any event I do not see any major problem arising where there is an appeal against the enforcement of an authentic instrument. The initial action will be ex parte to a judge of the High Court. The appeal will be inter pares also to a judge of the High Court and the defendant will then have an opportunity to pursue his case fully. This type of situation already arises in cases of interim and interlocutory injunctions.

Deputy Abbott raised the problems that may arise under this Bill with respect to evidence. He referred to the ratification of the Hague Convention which is relevant to this matter. I will pay close attention to this matter once the Bill comes into being. Deputy Abbott also raised the question of limiting the duration to which a judgment is valid. This is a matter to be determined by national law. For example, if one seeks to enforce an Irish judgment in another EC country, the enforcing court will undoubtedly take into account any plea by the defendant that under Irish law the judgment is no longer enforcible in the judgment-granting state.

Deputy Abbott and Deputy McDowell raised the problem of applicable law, particularly in the area of tort. Some work has been undertaken within the EC to draw up a Convention on the law applicable to non-contractual obligations. A Convention has already been drawn up in relation to contractual obligations and we propose to bring in legislation in due course to ratify this Convention.

Deputy McCartan objected to the method of implementing the Convention. I want to make two points in this respect. First, as with any international convention, once the text of the convention has been agreed an individual state does not have any right to amend it unilaterally. It is not open to us, therefore, to amend the text of the Convention. We must accede to or reject the Convention in its entirety. Secondly, this method of implementation was favoured by our EC partners so as to ensure that the Convention is implemented uniformly throughout the EC and also to aid interpretation.

Deputy McCartan referred to the contempt of court and committal. These are quasi-criminal matters and are not covered by the Convention in so far as it relates to the enforcement of foreign law on contempt or committal. As I said in my opening address, non-monetary judgments relate mainly to orders such as injunctions. Deputy McCartan also referred to the family home, matrimonial property, etc. I believe that these matters are outside the scope of the Bill.

Deputy McCartan referred to the absence of bankruptcy matters from the Convention to which the Bill will give effect. The reason for this is that negotiations for the purpose of drawing up an EC bankruptcy Convention have been under way separately in the Community.

The same Deputy referred to the workload which the Convention may bring to our courts. Of course, this remains to be seen. However, because of other developments, for example, the abolition of juries in personal injury cases in the High Court, the future position with respect to the workload of the Supreme Court cannot be precisely determined at this time. Deputy McCartan spoke about the final paragraph of the Explanatory Memorandum which refers to Article 44 of the Convention. Article 44 relates to foreign maintenance creditors, in particular, who wish to have foreign maintenance orders enforced here. The Convention imposes an obligation on us to give legal aid to such parties at the ex parte stage. I commend the Bill to the House.

Question put and agreed to.

Acting Chairman (Mr. J. Leonard)

When is it proposed to take Committee Stage?

Mr. Collins

Do I have to give a specific date?

Acting Chairman

No.

Mr. Collins

Next Wednesday, with the agreement of the Whips.

Committee Stage ordered for Wednesday, 18 November 1987.

Dáil Éireann díospóireacht - Thursday, 12 Nov 1987

Jurisdiction of Courts and Enforcement of Judgments (European Communities) (No. 2) Bill, 1987 [Seanad]: Second Stage

Acting Chairman

Dáil Éireann díospóireacht -
Thursday, 12 Nov 1987