Seanad Éireann díospóireacht -
Thursday, 7 Feb 1924

Vol. 2 No. 17

THE COURTS OF JUSTICE BILL, 1923—(COMMITTEE STAGE RESUMED).

SECTION 46.

Mr. S.L. BROWN

As Senator Jameson is not here, perhaps the Seanad will allow me to move the amendment standing in his name:—

Section 46, line 57. To delete the figures "£300" and to substitute therefor the figures "£100."

This is a very important amendment, and I am very sorry that Senator Jameson is not here for the purpose of moving it, because I know that the arguments which he intended to use in support of the amendment were arguments which he is much better able to use than I am, because they were the arguments from the business point of view. Perhaps it would be better for me not to enter upon that portion of the case which we are making against the Section as it stands, and to leave it to Senator Jameson when he arrives, and to others, who will probably deal with the amendment from that point of view. The first amendment of a number of amendments to Section 46 is one that seeks to delete the figure "£300" from line 57 and substitute therefor "£100." All the other amendments down to and including No. 19 are amendments of the same kind.

The object of the Section is to give a jurisdiction to the Circuit Court in ordinary cases of contract and tort up to the limit of £300. That is a very high limit, and I am quite satisfied from my experience of the Bar that it will mean that fully one-half of the cases which are now dealt with by the High Court will in future be dealt with by the Circuit Court, if this jurisdiction is left at this figure of £300. I would wish to deal with this from the point of view of its effect on my own profession, and, through my own profession, its effect on the country. If this Bill, with this Section, giving this increased jurisdiction up to £300 is passed and takes effect, it will, as I have said, take away at least one-half of the cases which are now heard in the High Court. It will, therefore, for practical purposes, decentralise the High Court to that extent. What is still more important, it will decentralise the Bar, and instead of having one great central body here in the capital of the country, you will have seven or eight Bars. You will have the Bar split up into at least seven small Bars in the country and one somewhat larger Bar in Dublin. The effect of that on my profession, and through my profession on the country, will, I am satisfied, be most disastrous, and I will tell you why.

No one who has not lived and worked in the Four Courts Library or in our present Bar Library at the Castle can have any idea of the value of that library to the country, as a school of law. It was, and is, quite unique in its way. The junior barrister when he joins the Bar and begins to get on in his profession, has learned, probably, a good deal from books, but he has learned very little of the practical knowledge of his profession. When he joins the library he lives in an atmosphere of law. He sits beside men of experience who are doing their work. He follows them from Court to Court and sees how their work is done, and by the old tradition of the place the youngest man there, when he gets a case of his own, has a right, which is recognised by all, to the assistance of the oldest and most learned of his brethren. Under the system which will be introduced by this Section, if it takes effect, and if this £300 limit is put there, there would be an end to all that. The Bar will be split up, and instead of having a learned Bar, which we have had, learned not only in special subjects, as most of the English Bar are, but an all-round learned Bar, you will have a Bar which will not be learned at all.

The junior will naturally go to the Circuit Court to begin his professional life. He will be there living in a country town away from books, away from anybody more learned than himself. The result will be that in one generation you will have no learned Bar, and if you have no learned Bar, you will have no learned Bench, and if you have no learned Bench, you will have no real protection for the poor and weak in this country.

Therefore I urge upon the Seanad, for the sake of my own profession, and the effect on the country through my profession, to consider whether this Bill cannot be improved and made workable, and if all the good that was expected of it cannot be got by reducing this limit of £300 to £100. When a Committee was formed of barristers, of which I was chairman, to consider the Report they should send to the Judiciary Committee their recommendation was that the limit of what was then spoken of as the County Courts should be £100. That was that the old County Court system should be kept going with an increased jurisdiction of £100 or possibly £150 and a similar increase of jurisdiction on the equity side which is measured by valuation. That was rejected by the Committee, which fixed this figure of £300, and I must say that there was a good deal of support for the Committee in the view they took. When this idea of increasing the jurisdiction of the County Court, or rather of starting new courts with increased jurisdiction up to £300, was first mooted it was acclaimed and acclaimed, too, by those whom one might call experts in the matter. The solicitors' profession in this country, represented by the Council of the Incorporated Law Society, sent in a recommendation to the effect that the jurisdiction of Circuit Courts in ordinary cases of contract and tort should be £300. As I say the Judiciary Committee had a good deal of reason and evidence in support of what they did. I would ask the Government to pause in this matter, as I am satisfied that the opinion of the country, particularly of the experts, is changing. I have in my hand a letter from the Incorporated Law Society, dated January 17, in which they say—

"The Council of the Incorporated Law Society of Ireland hope that you will see your way to move the enclosed amendments to the Courts of Justice Bill, if they meet with your approval."

The first of these amendments is the one standing in the name of Senator Jameson, reducing the figure of £300 to the figure of £100.

"The Council and the Provincial Solicitors' Association of the Free State (which represents the solicitors throughout the country) sent to the Judiciary Committee a joint memorandum of suggestions. In this memorandum it was suggested that the jurisdiction of the Circuit Courts should be limited in tort to £100 and in contract to £300.

"The Council, having considered the Bill, are now of opinion that £100 should be the maximum limit of jurisdiction both in tort and contract, and while the Provincial Solicitors' Association have not reconsidered the matter, the Council have received representations from country solicitors against so great an increase as £300 both in tort and contract. The Bill does not prevent proceedings being brought in the High Court in cases under £300: but it leaves it open to rules being made depriving plaintiffs of costs where they do bring their cases in the High Court. The Council are of opinion that the limited number of Circuit Court Judges will have quite enough to keep their time occupied with cases up to £100. The joint memorandum above referred to suggested that no civil jurisdiction either in contract or tort should be conferred on the District Courts."

Since that letter was written on January 17th the Provincial Solicitors' Association have also had a meeting and passed unanimously a resolution to this effect:—

"That having had an opportunity of reconsidering the proposed extension of jurisdiction in civil cases of the Circuit Court to £300, we cannot recommend the extension beyond the sum of £100 in such cases. That the ordinary litigant in the Circuit Court would be unable to pay the fees of counsel of the requisite experience and ability to attend at the Circuit Courts and deal with cases involving such large amounts."

That is very remarkable evidence. It is the evidence of people who have changed their minds, and the evidence of people who have changed their minds after consideration and after weighing all the circumstances of the case, is the most valuable evidence you can have in a matter of this kind. I understand that Senator Jameson will be able to speak on this question more forcibly than I can, and tell you that the business people of the country have also changed their minds. Some of them who were in favour of having this increased jurisdiction in the Circuit Courts have now seen, from the business point of view, it will probably be very injurious to their interests. Senator Jameson will deal with that portion of the subject. I have tried to put before the Seanad the arguments from my point of view as a lawyer, of the effect of this alteration in the jurisdiction on my own profession and through them on the country. I have tried to put before you what I consider are very serious reasons why the Government should reconsider this question and reduce this jurisdiction to something like £100, or at most £150.

Mr. JAMESON

The Seanad will remember that on the Second Reading of the Bill this point was raised. Attention was drawn to the fact at the time that the increase from £50, which was the figure fixed for the old County Courts, to £300, meant an enormous change in the number of cases which would have to go to the country to be tried. It occurred to me at once that unless the proceedings in the country could be carried on as cheaply, as easily, and as well as they were under the old system of the High Courts, the effect would be that in all cases up to £300, the givers of credit —the wholesale houses and wholesale merchants who gave credit to the country shopkeepers and farmers—would find the recovery of debts so costly, they would stop giving credit. Instead of giving up to £300 of credit, as they used to in the old days—knowing the whole system connected with the High Court and what it would cost for the recovery of debts—they would decide that they could not afford to give more credit than £100. If that were carried out on a large scale the effect of it would be very disastrous indeed in the Free State.

I have been making enquiries in one branch of trade. In that branch alone the amount of goods sold in the year runs from one to two million pounds, and the credit given, if you take three months as a standard, would be something like £600,000 or £700,000. You might easily say there would be half a million given in credit in that one trade alone, and if it is decided that the traders should reduce the amount of credit, that will affect Irish shopkeepers very seriously. We know quite well that shopkeepers in all the country districts have to give credit to the farmers, and that would react on the farmers, and nobody would be a penny the better for it. I was enquiring in the drapery trade how a great many of the shopkeepers in the country managed, and I was told that there was a limit to the credit which each of the wholesale houses would give, and a country shopkeeper, in order to get the credit necessary to carry on his trade, would have to deal with four drapery houses—one in the Free State, a wholesale house in Northern Ireland, a wholesale house in Great Britain, and the fourth somewhere else. There were four distinct credits necessary in order to enable him to carry on business. A queer thing happened. You remember the time when there was a boycott of goods from the North, and the ordinary shopkeeper in the Free State could not import his goods from a Northern trader. The Free State trader would not extend his credit to the country shopkeeper; he dare not risk any more, so the shopkeeper was obliged to find some other house in Great Britain or in the Free State to give him the credit which he absolutely required to carry on his business.

I am giving that as an illustration of how any measure we can pass, which influences the amount of credit which our country shopkeepers would get, may have an enormously far-reaching effect, which none of us here know anything about. Therefore, we ought to be extremely careful whether, in raising the figure to £300, the authors of the Bill are not making a mistake, and are not doing a great deal of damage to the Free State. I have been trying to ascertain the opinions of different traders since we discussed the measure before, and they are of the opinion that the old method of procedure, which meant going to the High Court here for the recovery of a debt due in the country, was quite simple. They knew what it would cost. They knew all about the production of books and the proving of debts, and they were able to calculate what exactly it would cost them to go through the courts. Every man in business, if he is anxious to push ahead, is aware that he must leave a certain fringe for bad debts. All energetic business men have their own bad debts to deal with. They must calculate as between the doubtful customers and the good customers, and they must also calculate what it would cost them to recover sums due.

That is a very serious item in their accounts. Their method of dealing with a situation in which they would find that the cost of recovering debts is largely increased, is to lessen the amount of credit. The margin of credit in that case is brought down, and we come again to the old argument that the credit given to the country traders will be greatly diminished. Looking into the matter, I cannot see how that conclusion can be avoided, because, as I read the Bill, on the application of the defendant, who generally lives in the country, the goods having been supplied from Dublin or some other city, the case, unless there is some very strong evidence to the contrary, will be sent to the Circuit Court. The limit of fifty pounds has been raised, we are told, in order to give business to the Circuit Courts and increase their importance. Undoubtedly, as far as one has been able to study the matter, the vast number of those cases which go as far as £300 will be sent down to be tried in the country, and then the trader, instead of producing his bookkeeper and his books in Dublin, and proving the debt, will have to go to the country to prove the case there, and will be obliged to go to the expense of sending members of his staff down there to prove it. If there are any delays, or if the eight judges who are to be appointed find their business is a great deal heavier than they can manage, the result will be very serious, and within a very short period wholesale traders will find it so expensive to have to send down the country to prove cases, that they will reduce the amount of credit given to shopkeepers. That is the opinion of members of the business community, as far as I have ascertained it; they cannot see any compensating factors.

The Mercantile Association had a discussion with the Attorney-General on the subject. The Attorney-General, I am informed, assured them that the intention of the Government was that machinery of Circuit and District Courts would be centralised in Dublin so as to enable them to function with the same rapidity and effectiveness as the present High Courts. If that were done the whole of our objections end; but I cannot find, from the very beginning to the end of the Bill, how that is to be effected. If the Government, when replying on these points, can show that the District and Circuit Courts will be so centralised in Dublin as to function as cheaply, as well and as rapidly as under the old system, I am completely answered; but I cannot find it in the Bill, and if it is not there and if what I have been foreshadowing is to result, then I would warn the Seanad that they ought to be very careful before they allow this limit to be increased to £300.

Mr. O'FARRELL

I think we should approach the consideration of this amendment on the grounds as to whether the law is to be made to suit the needs and requirements of the people as a whole, or whether it is to exist for the edification or profit of a particular profession. I take it the law is made to meet the necessities and requirements of the great bulk of the people, and that the legal profession— whether solicitors or members of the Bar—will in the natural order of things be expected to conform to these requirements. The arguments of Senator Brown have been entirely a plea for the legal profession.

Mr. BROWN

No, for the country.

Mr. O'FARRELL

I may be very dense, but the Senator has failed to convince me, at all events, that the decentralisation of the Bar is going detrimentally to affect the country as a whole. I believe that decentralisation will tend towards the development— and the very considerable development from the point of view of the man in the street—of the local Bars which, in course of time, will in the main be no less illustrious than the present centralised Bar in Dublin. The argument in favour of reducing the jurisdiction of the court from £300 to £100 seems to take no cognisance of the fact that the new District Courts are taking over a large part of the work done by the old County Courts. In these circumstances if we reduce the jurisdiction of the County Court to £100, one wonders what the new Circuit Judges will have to do. The arguments of Senator Jameson are that the Bill, as it stands, will tend towards the restriction of credit. A good many people think that would not be an undesirable development at all. There is too great a tendency to give credit here, and the result has been the growth of parasites in the form of middlemen—petty shopkeepers who can always count upon getting unlimited credit in certain things—thereby tending to drive up the cost of living, which is already appreciably higher than in Great Britain. The large number of middlemen, the number of small huxtering shopkeepers living mainly on credit, is one of the greatest curses we have to deal with at the present time. I cannot see the force of the argument of Senator Jameson regarding the collection of debts under the Bill as it stands.

Everybody knows that nine-tenths of these cases for debt-recovery are undefended. There is scarcely ever a question as to the accuracy of the amount. It almost always is a case of alleged inability on the part of the debtor to pay. The cost, therefore, of bringing a whole host of witnesses from Dublin to the country does not arise. If these expenses are incurred, then the creditor always gets a decree for his expenses and, making allowance for the extra expense of the Superior Court, the total amount of expenses involved will not be greater under this Bill than at present, while in many cases it will be considerably less. Where there is a genuine case why should the dice be loaded against a man of small means? Why should he be frightened out of court by those enormous expenses incurred in bringing up the whole of his witnesses to the High Court in Dublin? One knows, too, that much the greater part of litigation takes place as between people living in the same district, and under the amendment any case involving more than £100 will mean that the principal and his witnesses on both sides may have to travel from a distant part of the country to Dublin, simply for the convenience of the legal profession. Senator Jameson talks about the rapidity of the procedure in the High Court. It is the first time I ever heard their proceedings being referred to as rapid, because they take the most roundabout and mysterious circuits to reach a given object. I suppose it is part of the trade, but it is an art that has never been understood by the layman or ordinary civilian.

A number of motions for discovery of one thing or another, each involving a separate application and separate expenses, have to come on before the Court. That very circuitous route has to be paved with gold the whole way. That may be necessary or may not, but we believe a great part of it can very well be got rid of under this Bill, which is calculated to give us cheap and efficient law. I do not think that the interests of the community should be submerged for the interests of a few wholesalers, a few bankers, and, incidentally, the legal profession. If we are going to be afraid of disturbing vested interests in that way and if we are to cling on to all that is bad in the old regime, we are not going to lay the foundation of the new State, but on the contrary we will be only trying to build on the rotten foundations of the old. In these circumstances, and because I believe the object of the amendment is put forward merely or primarily in the interests of an interested party and because it tends to make the law no more efficient while making it considerably dearer than it would be in the Bill as it stands, I have to vote against the amendment.

Mr. O'DEA

This Section of the Bill is about the only Section that really concerns men like me. In the procedure that has obtained up to now, the recovery of debts has been more or less simple. For a debt of £20 if you cannot get payment within a reasonable time— Senator Jameson put it down at three months, but from my experience amongst smaller traders than Senator Jameson speaks of, I would say the ordinary credit would be six months—if you find the man obdurate and that you cannot get any satisfaction from him, the procedure is to issue a writ in the High Court. The writ was served, and the defendant within ten days had to pay or to lodge a defence. Now any machinery that I know of could not be simpler or less costly than that. If we had to pursue customers down to such places as Skibbereen or Dingle, if we have to pursue small struggling men into those Circuit Courts it means—and there must be no mistake about it—that we are limiting our credit and that we will not give credit to a man except he is of good standing. I know from long experience that those men earn their livings honestly and industriously and without capital. Their capital is the credit they get from the manufacturer and the wholesale merchants. If you do anything that prejudices that credit it means that those men must automatically go into bankruptcy and get out of business because they could not exist except their credit is good and sound. At the present moment I am afraid the credit of this sort of man is not too good, and if you prejudice it further I am afraid it will disappear altogether. Senator Jameson stated that some assurance was given by the Attorney-General that the same procedure as I have related will obtain in the Central Circuit Court in Dublin. If the President assures us that it will be so, my argument does not mean anything and comes to an end. I am not very much struck by the reduction of the jurisdiction from £300 to £100. I do not think it will give very much relief, for the reason that the great bulk of traders' debts in the country would average about £50 to £75. These are the cases and these are the men that we want to protect. I have thirty years' experience as a special juror in Dublin. I unfortunately had to give a lot of my time to it. It is a very unprofitable job to listen to a lot of the most frivolous cases brought up here by litigants from all parts of the country—ridiculous and absurd cases.

We have not time for them. I went to the Four Courts probably three months in the year, at a quarter to eleven in the morning. The Judge was supposed to open the court at eleven o'clock, but it was often twelve o'clock before he appeared, and men with valuable business interests had to wait for his lordship's arrival. At three o'clock the Judge got restless, looked at the clock, and having consulted senior counsel, said that the court would now adjourn. The special jurors went away, and the barristers also went away, but they got their refreshers next morning. Neither I nor anybody else got anything. I remember some years ago in the Bankruptcy Court there was an illustrious Judge named Boyd, and we had at that time in Dublin a large trader who made up his mind that he would not pay his debts, amounting to about £30,000. The creditors held a meeting and decided to hand the case over to Mr. Pim, the present Mr. Justice Pim. His instructions were to turn the case into bankruptcy, as the creditors believed that out of the £30,000 of debts filed by this man, £20,000 were bogus. They were all accommodation bills. The case came before the court, and we were all there to see the farce, which was very enjoyable. Mr. Pim made a strong case, and applied that the matter should be turned into bankruptcy to give an opportunity of investigating the accounts, and seeing whether they were genuine. Mr. Justice Boyd shrugged his shoulders and said that he could not do that, and on being asked why, stated that it would spoil the business of the court.

AN CATHAOIRLEACH

I do not like to interrupt Senator O'Dea, but may I remind him that there is a very old familiar maxim: De mortuis nil nisi bonum. In addition to that, I do not think that it is consistent with our position that Senators should be criticising the action of judges who have passed away. The Senator has told his tale, and I have not stopped him, but I suggest to him that it is not a precedent deserving of imitation.

Mr. O'DEA

Thank you; I will not pursue the matter. At all events, what we business men want is swift and cheap law, but it will probably be a miracle if we ever get it. In this respect I think the best thing would be to have a commercial court established to deal with commercial business.

Mr. BENNETT

I would not have the temerity to intervene in questions concerning contract and tort, but to my mind the matter has developed into a simpler form. From the development of the argument it transpires that credit will be diminished if the Bill, as it stands, passes. From my point of view, I think there could be nothing more desirable than to have credit diminished. The giving of credit by small traders in country districts has been the bane of this unfortunate country. We have heard from time to time of the gombeen man who tied up an unfortunate man, week after week, month after month, and year after year, and prevented him not only from buying elsewhere, but from selling elsewhere. The gombeen man bought his commodities, and sold his own commodities back to him.

Here we have expert recommendations that if you pass the Bill as it stands that state of affairs is likely to be discontinued. What could we ask better than that state of affairs, which has brought havoc and ruin to Ireland, should be at least ameliorated, if not altogether put to one side? I think from the very able argument of Senator Jameson that is very likely to occur, and for that reason I am determined to support the Bill as it stands. Apart from that, looking at the question in its larger aspect, and not touching the argument so ably developed by Senator O'Farrell, we have had the criticism of Mr. O'Dea, who is thoroughly capable of giving an opinion on this matter, that the administration in the Dublin Courts was not all that was to be desired. We have had the Government aided by a Judicial Commission on this matter, and they have come to the decision that this is the correct thing to do. They feel that litigation would be made cheaper to the poor man, and if that is so, I think that is sufficient reason why we should support the Bill. If further reasons for our rejecting this amendment were necessary, I feel that we need only consider the fact that many frivolous cases have been brought in the Superior Courts, and that these cases have involved the bringing of witnesses to Dublin and the expenditure of vast sums of money. We have strong reasons why we should reject the amendment proposed by Senator Brown in the name of Senator Jameson. We have, first, the reason that credit it likely to be diminished, and that is a most important issue. Secondly, we have the reason that the Government believes that this Bill will facilitate both traders and purchasers, because it will expedite and cheapen litigation; and, thirdly, there is the reason that it will prevent the evaporation of money by bringing frivolous cases to the courts in Dublin.

Mr. LINEHAN

The objections to this Section might be divided into two parts—first, the reason given by Senator Brown as to the possible interference with the educational facilities that could be availed of by young barristers in their training and education in the courts. From that point of view a good deal might be said in favour of not decentralising the courts. I should be inclined to give a good deal of attention to considering that point of view, but it is not sufficient to induce me to vote against the clause as it stands. From the business point of view which was put forward by Senator Jameson, I do not think that he has convinced the Seanad—at any rate, he has not convinced me—that it is a greater hardship on accountants of Dublin firms to go to the country to prove their cases, than it would be for country witnesses to come here and prove theirs. It appears to be forgotten that there are other large centres in Ireland where there are big firms engaged in the distributing trade, such as Cork, Waterford, Tralee, Limerick, and other places, and the effect of this clause, as it stands in the Bill, will be that those people can bring their cases in the local courts without having to travel great distances, and have the cases disposed of conveniently and as cheaply as possible, both as regards themselves and the people whom they are proceeding against.

I think that that is a great improvement on the former system of recovering debts, that it will work well, and I should be sorry to see it interfered with in any way. It has been said by others that if you take away the jurisdiction of Circuit Courts from debts over £100, you will take away the bulk of their work, in my opinion, and there will be no necessity for them at all. The District Justice will have a certain amount, and the barristers will have the rest. I, therefore, suggest to the Government to retain the clause in the Bill, and I think it will meet with the wishes of the people in the country districts.

The EARL of KERRY

I would be glad if the President in his reply would deal with some of the points dealt with, and thus make it easy for people like myself who are ignorant on those matters. I came here with an open mind, and I was very much impressed by Senator Brown's arguments about the possible deterioration in the Bar that might ensue from this, and still more by Senator Jameson's argument that it might restrict credit. Others pointed out that this restriction of credit in this particular case would be an excellent thing, because it would help to eliminate the gombeen men. I understood them to say that that case was entirely true. I should like to know, if it is the view of the Government, that that is the probable effect of restricting credit. If so, I should support the amendment. In my humble judgment, the credit argument was a most important one in favour of the amendment, and if it could be shown that that argument had no validity, it would influence my vote on the amendment.

The PRESIDENT

The amount which would be within the jurisdiction of the Circuit Court was under consideration for a lengthy period in the Dáil. There is a considerable section of business people in the Dáil. Two prominent citizens of Dublin—one, Mr. Hewat—were members of the Committee. Mr. Hewat is a business man of great capacity, and was of great use to the Committee. I am satisfied from what transpired in the Dáil with regard to this particular sum of £300, as against £100 or £200, that the weight of opinion of business people is entirely with the clause as it stands and with leaving it at £300. The Earl of Kerry asks if it is the view of the Government that credit will be restricted. For some years I have been out of business. I do not know if there is any member of the Government who has been in business for the last two years, and I do not think it is a question which the Government would be qualified to answer. They bank on the fact that that is the opinion of the business representative, I think, a nominee of the Chamber of Commerce. That opinion was agreed to without a division in the Dáil, and on that we have taken our stand.

Coming to examine the case that has been made for reducing the amount to £100, we must first realise that, without showing any disrespect to the old County Courts, a number of which were presided over by very distinguished judges, the fact is that Circuit Courts are different from what the old County Courts were. In trying to draw a parallel for one in arranging the business of the other, we are departing from what was in the minds of those who put forward this report. The names of the Judiciary Committee are sufficient indication of the type of people who have expressed very sensible views on matters of this kind. We are not taking away from the High Court anything that it has got at the present moment. It is still open to a person to bring an action to the High Court. I anticipate he will suffer in the rulings to be made so far as costs are concerned. I do not anticipate that after a fair trial of the new system has been made there would be any reason to say we must go to the High Courts in order to get those debts collected and so on. I do not agree at all with people who change their minds rapidly upon subjects such as those. I had to deal with that already in the Dáil. Sensible people like the Incorporated Law Society ought not to give judgments like that, or give judgments upon which they are going to change their minds. With great respect to that noble profession, it is not any great assurance to people who are asking their opinions to know that they are going to change their minds in a short time. There is one feature of Circuit Courts which has not been referred to here, and that is this: We are a conservative people in Ireland. If you reduce the amount involved here to £100 you will not have any action of £100 going into the Circuit Courts. If you leave it at £300 it is possible that they will baulk at £270 or £280, and they will say, "We shall try the High Court." That immediately reduces the status of the Circuit Courts in the minds of the people, and we believe that those will be the Courts most used and most popular. It is not the opinion of the Government, and I think that is shared by the members of the Committee itself, that there should be any reduction in status, which would come about if it were to be reduced from £300 to £100.

In the Dáil, when this matter was under consideration, two members of the legal profession took up the line that the amount ought to be reduced to £200, and I think in one case to £100. I do not know that the suggestion got support from any section other than that engaged in the profession. It is a big change, but it is a change which people generally approve of, that there ought to be local Bars in these places, and that Dublin ought not to be the only place in Ireland, and that consequently opportunities ought to be given to young barristers of making their name and doing business so that the whole business of the courts would not be centralised in two or three people. There may be a disadvantage in not having a law library in every one of these places. I recollect I told the Dáil when the point was put up against the proposal to decentralise that I had been Minister for Local Government under the old Dáil. Some Senators here may not know exactly what that means, but the old Dáil first came into existence in the year 1919, and I was made Minister for Local Government in April, 1919. Somewhere in the year 1920 a break took place between all the local authorities throughout the country and the Local Government Board which functioned at that time at the Custom House. From that period, and for very long before it, I came into contact with members of local authorities from all over the country, and I was amazed to find that every single case affecting Local Government had attracted their attention. From local newspapers, and from the newspapers circulating from the metropolis here, they seemed to know every single thing that could be known about Local Government which had found its way into the Press, and even about some things which had not found their way into the Press. They were well aware of them and able to discuss them. If that be the case with an order of people in this country who have got no pretentions towards the ability or the learning, so to speak, of the legal profession, what is there in connection with the law that an enterprising, industrious young barrister would not be able to make up in order to keep himself abreast of the times and to know his business? I think from the facts of the case that it would be very undesirable, indeed, to reduce in any way, or by any sum whatever, this amount of £300.

AN CATHAOIRLEACH

Before Senator Brown or any other Senator replies to what has been said by the President, perhaps I might be allowed to make a suggestion to the President. The suggestion I make is one that does not run counter to anything that has been said here to-day by any member of the House, and one that does not in any way affect the principle involved. It leaves the £300 unaffected, but there is undoubtedly, I think, a great deal to be said from the point of view of what I may call the business and professional classes. I have been inundated with letters from professional men—doctors and engineers as well as business men— suggesting that if this Section remains in its present form they will be compelled to refuse to give the credit that they have previously given. Take the case of a doctor. A very eminent doctor wrote to me to say that at present patients are sent up to them from the country. The doctor states that the patients have to be sent into nursing homes, and in the condition in which they arrive in the city the doctors cannot begin to worry them about fees or as to when or how they are to get paid their fees. They are obliged to give the patients credit and to trust to their honour, and in that way they have to allow them to run very substantial bills, indeed, in the nursing homes. Engineers and architects have also written telling me the same story, and I have had similar complaints from business men. I do not think that we can overlook these facts, and anything that I am saying in the course of this Bill in Committee is solely said in the desire to make the Bill as good as possible, and as popular as possible with all classes. I say there is a great deal of reason in these complaints that have been made to me, and I think the remedy I suggest is a very simple one, and one that could be accomplished without in any way touching the principle of this Section. Under the Bill as it stands, if you look at Section 50, you will find that the test of the jurisdiction of the Circuit Courts is: Does the defendant reside in the Circuit Court area? That is quite in accordance with precedent.

Under the old County Courts Acts and under the Supreme Courts Act, the general test of jurisdiction was, where the defendant resided. For the life of me I have never been able to understand why that was so, or why in the case of an ordinary debt a creditor should be compelled to go to the place where the debtor lives. The debtor, presumably, owes me £100, and why should I have to go down to Wicklow or Waterford to seek to recover it? Why should I be prevented from making a claim for recovery in Dublin, where I live? I would suggest to the consideration only of the President and his colleagues whether the situation could not be easily met by a provision, that in all cases of simple contract debt, the plaintiff may sue in the Circuit Court in which he resides. That would get rid of all the objections that I have heard urged against the Section by business men and by professional men. As Senator O'Farrell pointed out, the majority of these cases are very often not defended at all. Why, then, should the plaintiff who lives in Dublin be compelled to go down to Wicklow or Wexford in an undefended case, and to bring all his books and an accountant with him to prove the debt there, when he could equally well prove it in the Circuit Court of Dublin, in which he resides? I think if the President would consider that point with his colleagues —of course it would be quite unfair to ask him to give a definite opinion on it now—and if there is a clause inserted in this Bill providing, in the case of simple contract debts, that a plaintiff to whom money is owed would be entitled to sue in his own Circuit Court, I think it would meet all the objections that have been raised and would leave the principle of the Bill absolutely intact.

The EARL of MAYO

May I ask for some information? I would like to know what is the legal definition of simple contract debts.

AN CATHAOIRLEACH

I wish you owed me £100, and then I could make it quite plain to you.

The EARL of MAYO

I am asking for information.

AN CATHAOIRLEACH

A simple contract debt is a debt due on either an expressed or implied promise to pay a sum of money in consideration of services rendered, or a loan of money, or work done under contract by a builder. All debts of that kind which are provided for by an expressed agreement between the parties, either in writing or by word of mouth. No lawyer has any difficulty in understanding what a simple contract debt is, and neither has any business man, I think.

The EARL of MAYO

May I ask you another question? You mentioned the medical profession. Supposing I was very ill and unable to talk to my doctor, or to ask him what he was going to charge for cutting me open, would you consider in that case, supposing the doctor charged me an enormous fee, which he had every right to do, that it would be a case of a simple contract debt?

AN CATHAOIRLEACH

The answer is as simple as the question, and the answer is that it would not be if there was any dispute and if there was no bargain. If it was an enormous fee it would not come under this Bill at all, because the jurisdiction of the Circuit Court is confined to £300. The point I am on is—why should not the doctor be entitled to sue you in the Circuit Court of Dublin instead of being compelled to go down to Naas or Kildare to find you at home?

The EARL of MAYO

Because it is in the Bill.

AN CATHAOIRLEACH

I have no answer to that.

Colonel MOORE

I want to say that I really think this would be going back on the whole affair. It would amount almost to a reversal of the whole scheme proposed by the Government.

AN CATHAOIRLEACH

Not at all, if that is the Senator's view I have not made myself understood, and I ought to make myself clear.

Colonel MOORE

If the debtor has to come to Dublin to sue for his claim that would be a reversal of the whole thing.

AN CATHAOIRLEACH

That is not inherent in the Bill. The Government scheme we are discussing is whether the Circuit Courts are to have jurisdiction up to £300, and the suggestion that I throw out does not touch that directly or indirectly. It only provides that where the debt is only a simple contract debt the creditor may sue in the Circuit Court in the district in which he lives. That is in the suggestion I made.

Mr. BROWN

I may say that the suggestion that An Cathaoirleach has made, with reference to the power of suing in the plaintiffs' venue, and not only in the debtor's venue, in the Circuit Court, is one that would carry out almost completely what the Chamber of Commerce wants, because one of the things they wanted to be sure of in the Bill was that the plaintiff should have power to determine the venue and this suggestion is exactly the one you made It is eminently a practical suggestion and one that would not interfere with the jurisdiction at all. There is an other reason. If the defendant has no defence why should not the plaintiff have the right to sue in his own venue? If there is a defence and if sued in the venue of the plaintiff he will get his costs if he has a good defence and he will not be put to any extra expense. That would get rid of one of the practical objections that business men have in this matter, but it does not remove another very serious objection—serious to my mind and to the minds of most business men—that is with regard to the question of credit. The credit that will be destroyed is not the credit that the small shopkeeper gives to the poor man in the country which my friend near me thinks it would be very well to get rid of.

It might be well to get rid of it if it meant getting rid of the gombeen man, but that is not so. The credit affected here is the credit given by the wholesale dealer to the shopkeeper for the goods supplied to him; that is what will be affected, and that really is the capital of the country shopkeeper. Can you get on without the country shopkeeper? He may be very foolish to give credit, and I think he is, and I think it would be a great deal better if he did not. But if he decides to give credit he can pursue the debtor in his own Circuit Court, and that credit will not be touched at all. It is the credit of the wholesale man that will be affected. He will not be able to pursue the debtor in his own District Court. Most of these cases, as has been said, are undefended cases. It is a very common experience, in those cases where there is no defence, for a writ to be issued in the High Courts in the plaintiff's belief that there is no defence for a sum less than £300, but the debtor, if he has any defence, will come to the High Court to remit the action, and under this section the High Court is bound to remit to the Circuit Court if the amount is below a certain figure, because it is provided that such actions should not be brought in the Superior Court. It is entirely different from our present system under which the defendant would have to show by affidavits that he has a good defence. Under this Bill he will not have to show he has a good defence, and all he will have to do is to move to remit the trial of the action as being an action for a sum less than £300, and on these grounds it will have to be remitted. He will get five or six weeks delay and the unfortunate plaintiff will have to pursue him and bring his witnesses to the Circuit Court, and will be only able to recover his judgment after a great deal of delay and expense, and that is the kind of credit that will be injured in the country and not the gombeen man, or the countryman who is debtor to his own country shopkeeper and will be sued by him in his own district.

Now, my friend Senator O'Farrell considered that I was arguing solely in the financial interests of the Bar in moving for this change of the jurisdiction of the Circuit Court. I assure him that that is not so, so far as the financial interests of the Bar are concerned this Bill, as it stands, is all in their favour. There will be a great deal more for junior barristers under it than there has been in the past. There will be cases that never came up before, and the junior barristers will make fortunes. There will, undoubtedly, be more money spent in fees for junior barristers than ever before, so it is not the financial interests of the Bar that actuated me, but it is the efficiency of the Bar. I am satisfied you will never have under this system what you have now, that is a really learned Bar. With reference to what the President said, I am sorry that he was not able to deal with the assurance that the Attorney-General gave to the mercantile community in Dublin with reference to centralising the machinery of the Circuit Courts here in some way. It is a matter that we could not expect him to deal with at once, but I hope when the Attorney-General comes here on Report Stage he will be able to satisfy Senator Jameson, and the mercantile community on that point, because that would take away a great deal of the serious objection to the increase of jurisdiction.

Amendment put and declared lost.

Mr. JAMESON

I have been asked by Senator Jackson to move amendment No. 17 standing in his name, to delete the figure, "£60," and substitute therefor the figure "£40."

Having regard to the decision the Seanad has come to on the last amendment, I do not think it worth while to delay now in asking for a discussion on this amendment. I ask leave, therefore, to withdraw it.

Amendment, by leave, withdrawn.

Mr. GUINNESS

I move:—In Section 46, line 5, page 12, to delete the words "including winding-up of Companies." I am advised that the object is that the business of winding-up Companies and also winding-up in cases where the issued capital does not exceed £10,000 are matters which would be of an extremely complicated nature which would be very much better dealt with by the High Court in Dublin than by the Circuit Courts. The arguments in favour of this are of a very technical and legal kind, and I am afraid I am not in a position to submit them to the House, but possibly some gentleman who is more accustomed to this kind of business might be able to do so.

Mr. JAMESON

In these winding-up cases all the officials—there are only a rather small number of them—are centralised in Dublin, and to get officials in the country who could wind up a company of £10,000 capital would be almost impossible and would cause immense delay. A tremendous amount of machinery would have to be established to make this effective, without doing a great deal of injury in the meanwhile. Whether or not the Government intends to establish Receivers and other officials in the country as well as in Dublin, or wherever the centre is made, remains to be seen, but at any rate there is no evidence of it in the Bill, and from what we have been told so frequently, that all extra cost is to be avoided, and that it is to be done as cheaply as possible, I think that without a very positive assurance that machinery will be established in the country to carry this out, it would be far better to leave this to be managed as at present.

Mr. BROWN

I am entirely in favour of this amendment. The winding-up of a company, as we lawyers know, is a matter of very great technicality. It is done under a code of law of its own and a Liquidator, who is a kind of trustee for everybody, must be a man of very great experience at his job. He has to know the provisions of the Companies' Acts, which are very complicated, and he has to know all the very complicated duties of a Liquidator in winding up a Company. The winding up of a Company is not a case which will require witnesses; not once in a blue moon is any question raised in connection with witnesses. It is all tried on affidavit, and questions are very often raised which are never tried at all, but are decided by the Liquidator on affidavits. Therefore it is not a question of increasing expenses. The result of the amendment would be that the winding up of these small companies would be done more efficiently and more cheaply than in the country in a Circuit Court.

The PRESIDENT

I do not think that it has been made clear—at least I am not clear on it—as to what the objection is to exclude from the jurisdiction of these courts a company valued for £10,000. Ten thousand pounds is a small sum, relatively a small sum, for a company. Such a business would be a very small one, nothing more than a one-man business, as I understand it from my experience of business, and it is not a question that, as Senator Brown says, affects the judge as much as the other machinery which is involved in it. I am not satisfied, from the little experience I had in Dublin, that Dublin is the very high-water mark of efficiency with regard to liquidations. I would be just as easy in my mind if I were concerned in the winding up of a company in the Circuit Court in Cork, as I would be if they were to be wound up in the City of Dublin, with the advantages we have here. After all, what is it that has to be discovered in connection with the winding up of companies? I presume if there is to be no charge against the directors for having neglected their duties, that it would really be a question of finding out what the concern is worth and how it is to be disposed of. It is the efficiency of the machinery, rather than the machinery itself, which is the matter to be considered by anybody who is interested in its winding up. I take it that the amendment, if passed, would mean ——

AN CATHAOIRLEACH

The effect of the amendment would be to exclude from the Circuit Court jurisdiction the particular matter of the winding up of companies.

The PRESIDENT

And that would mean something like 60 per cent. of the companies we have, which are under £10,000, would all have to come to Dublin to be wound up. If efficiency is what we aim at I do not see how they are to be more efficiently wound up here than locally, where one must get full value for whatever there is. In the case of a company valued for £10,000 in County Kerry, I am quite sure that the best auditor we have in Dublin would not be in as good a position to know exactly how much he is to get for a concern as would a man in Tralee or Killarney, who knows the local circumstances, and would be well able to judge what he could get for a concern.

Amendment put, and declared lost on a show of hands.

Mr. GUINNESS

The second amendment: To delete all from the words, "(iv.) and," to the end of the Section, is practically the same. With the leave of the House I will withdraw it.

Amendment, by leave, withdrawn.

Mr. BROWN

I move: To add at the end of the Section the words "and an appeal shall lie from the exercise of the discretion of the Circuit Judge in making or refusing to make such an order."

AN CATHAOIRLEACH

The object of the amendment is to give an appeal from the decision of the Circuit Judge as to changing the venue from one county to another.

Mr. BROWN

In the section as it stands, the Circuit Judge can change the venue. "Provided also that a Circuit Judge may, on the application of any party or without any such application, if he thinks fit, change the venue for the trial of any action pending before him from any one place of hearing to any other place within his Circuit." What I want to provide for by this amendment is that there should certainly be an appeal from that. The Section as it stands gives the Circuit Judge power on his own initiative to change the venue. He may do that for his own convenience, because if the convenience of either side would be best served by a change of venue that side would apply for the change. Therefore, when he does that it is on his own initiative. It is almost certain to be done for his own convenience, and I want to make it certain that if that is done there would be the right of appeal from his order.

Section 59 gives an appeal from all orders of the Circuit Court, and it is obvious from the framing of the Section that it might not hit an Order of this kind, for it really applies to the kind of new trial motions and appeals of that kind, which will come from the Circuit Courts to the High Court in Dublin. I want to make certain that there is an appeal when an order like this is made, that is that an Order under this proviso in Section 46 will be an Order within Section 59 from which either side can appeal. Perhaps if I waited for the Attorney-General it would be better, because it is a very technical matter.

AN CATHAOIRLEACH

Of course the President has heard what you said and he would be in a position to communicate, if it is necessary, with the Attorney-General on the matter.

The PRESIDENT

I think I would be prepared to accept the amendment.

AN CATHAOIRLEACH

I would suggest to Senator Brown, if he would pardon me, that I do not think the amendment is complete. I think he should say "an appeal shall lie under Section 59."

Mr. BROWN

I accept that.

AN CATHAOIRLEACH

Otherwise you do not specify how the appeal is to be made.

Amendment, as amended, agreed to

Question:—"That Section 46, as amended, stand part of the Bill"—put and agreed to.

Agreed that Sections 47 to 55, inclusive, stand part of the Bill.

Mr. JAMESON

I move:—

Before Section 56 to insert a new Section 56 as follows:—

"56.—A Circuit Judge shall have the same powers for procuring the attendance of witnesses in the Circuit Courts as a Judge of the High Court of Justice in Ireland formerly exercised for procuring the attendance of witnesses in the High Court. That part of Section 52 of 27 & 28 Victoria, Chapter 99, from an including the words ‘not to exceed' to the end of the Section are hereby repealed."

This is really of a very technical nature, and I have asked Senator Brown to explain it to the House.

Mr. BROWN

This is a very technical matter. So far as the first portion of the amendment is concerned its object is to give a Circuit Judge the same powers for procuring the attendance of witnesses in the Circuit Court that a High Court Judge has at present. The High Court Judge has this power of compelling the attendance of witnesses. The High Court issues a subpoena, which is an order to a witness to attend for examination and give evidence in the case. If he disobeys that the remedy against him is an attachment, that is you can have him committed for contempt of court in not obeying the order to attend as a witness. That is founded on the old common law right of the High Court to attach a witness who does not obey its order. When the County Courts were started their jurisdiction was entirely statutory, and, therefore, provisions had to be made in the old County Court Act for the procuring of the attendance of witnesses in the County Court.

They were not given that power of attachment which resulted in gentlemen who did not obey the order being liable to arrest. What happened in the County Court was this: A summons was served on a witness to attend on a particular day, and in a particular case, and if he did not attend he was fined. I think there was a limit, and that it was £10. That fine was not levied on him; it had to be sued for by the plaintiff or the defendant, or the person at whose request he was summoned. They could only recover as much of the fine as they showed they had lost by the non-attendance of the witness in the case. It was a rather cumbersome mode of procuring the attendance of witnesses. I never saw it put into operation but once, and then not with success. However, the Circuit Court will be a statutory Court, and it is, therefore, necessary to give these Courts power to procure the attendance of witnesses. The amendment would give them the right of committal for contempt. The latter portion of the amendment refers to a section of the old County Courts Act, which limited the amount of witnesses' expenses a County Court Judge could give. In the case of a single witness he could not give more than £5. I do not think this is a very good place to insert this proviso, and I will ask the leave of the Seanad to withdraw that portion of the amendment, and confine it to the first portion. This also is very technical, and I would be quite prepared to wait for the Attorney-General if the President so desires.

The PRESIDENT

I would prefer to ask the Attorney-General to look into that.

Amendment, by consent, allowed to stand over to be dealt with on the Report Stage.

Question: "That Section 57 stand part of the Bill"—put and agreed to.

SECTION 58.

"The rules to be made under this Part of this Act shall provide for the service of all originating or other documents or notices both inside and outside the circuit of the judge before whom the matter is pending, and for the enforcement of any judgment or order of the Circuit Court by any process, appropriate to the particular case, against the person or property of any person amenable thereto in any part of Saorstát Eireann."

Mr. BROWN

I move, "To delete all after the words ‘matter is pending' to the end of the Section." The last four lines of the Section ought to be struck out, because they give power to the Rule-making Authority to legislate really in a matter of positive legislation; that is, it gives them power "for the enforcement of any judgment or order of the Circuit Court by any process, appropriate to the particular case, against the person or property of any person amenable thereto in any part of Saorstát Eireann." I know that the object of this Section is a very proper and laudable one. Under the old County Court Act you could not enforce a decree of the County Court Judge outside his own county. What they want by this Section is to provide for the power of a Circuit Court for rules to be made for the service of documents, notices, and that sort of thing, outside the particular circuit.

Then they go on—"and for the enforcement of any judgment or order of the Circuit Court" in any part of Saorstát Eireann. That is quite right. There should be power in the Circuit Courts to enforce their judgments outside their own districts. Therefore, I suggest to the President and to the consideration of the Attorney-General, if he wishes to wait for his consideration, that instead of the words which I have moved to strike out you should insert these words:—

"Any decree or order of the Circuit Court may be enforced in any part of Saorstát Eireann in any of the modes by which a decree or order of a Recorder or County Court Judge might heretofore have been enforced within the jurisdiction of such Recorder or County Court Judge."

That will give the Circuit Courts the power that is obviously intended to be given. That, too, is a very technical matter, and I am quite willing to allow it to remain until the Report Stage if the President desires.

AN CATHAOIRLEACH

If I might suggest to the President this is important because it makes this part of the statute itself and does not leave it to be made by rules. It is put into the Bill as a statutory enactment, and does not depend upon rules at all. The President, perhaps, would like to consult over it.

The PRESIDENT

Yes, I would like to be able to consult with the Attorney-General about that. We propose to bring in legislation in the near future, but until that legislation is brought in certain matters will have to be regulated by rules, and this is a sort of empowering authorisation, if you might say so, to get over the experimental stage.

AN CATHAOIRLEACH

I quite follow that, but I think it will be simpler if you had it part of the Bill itself as a statutory enactment. However, that is a matter for you to consider.

Amendment, by leave, allowed to stand over for the Report Stage.

Section put and agreed to.

SECTION 59.

Save as in this Act is otherwise expressly provided, an appeal shall lie from any judgment or order of the Circuit Court in civil cases to two judges of the High Court sitting in Dublin. If such two judges agree in their opinion, their decision shall be final unless they certify that their decision involves a question of law or fact of such importance as to be fit to be the subject of an appeal to the Supreme Court, in which case an appeal shall lie at the instance of any party from the decision of such two judges to the Supreme Court. If such two judges differ in their opinion, they shall affirm with costs the judgment or order appealed against, and an appeal shall lie at the instance of any party from such affirmance to the Supreme Court.

Mr. BROWN

I beg to move:—

Section 59, line 15. To insert after the word "appeal" the words "on law and fact."

This is only a drafting amendment. It is quite clear it was intended that there should be an appeal on the question of fact as well as on the question of law, but it has been, I think, accidentally omitted.

AN CATHAOIRLEACH

I think you would want to be a little careful about that, because as a matter of fact there are certain appeals now under statute which come from the County Court Judge, and can only be on the question of law, as for example under the Workmen's Compensation Act. If you put in words that an appeal has to lie in every case, both on law and fact, you would be repealing the provision in the Workmen's Compensation Act, and perhaps in other Acts, as I am quite certain there are other Acts which provide the same thing. You might put it in this way: "Save where otherwise provided." If you put it in a general way you will certainly be repealing, for one thing, the provision of the Workmen's Compensation Act.

The PRESIDENT

I think there are a number of other Acts and that the Minister for Finance would not cordially welcome this amendment—probably the Senator knows it—in view of the income tax.

Mr. BROWN

It would be very important to preserve the right of appeal on the question of fact. What else do you want your stenographers for? It is quite clear it is intended.

AN CATHAOIRLEACH

Do you not think you would be safe if you put in the words "save where otherwise provided"?

Mr. BROWN

I am quite willing to accept that. I had quite forgotten that under the Workmen's Compensation Act there was an appeal only on a question of fact.

AN CATHAOIRLEACH

If these words are put in I think the President will find that no harm will be done to anyone.

The PRESIDENT

The Attorney-General's note to me on the subject was that he did not think the amendment was necessary.

AN CATHAOIRLEACH

I myself hardly think it is.

The PRESIDENT

I would prefer in that case to leave it over.

Amendment, by leave, left over for the Report Stage.

Section put and agreed to.

SECTION 60.

"Such appeal shall be grounded on the report of an official stenographer, but the court which hears such appeal may if it think fit admit fresh evidence, either oral or on affidavit, and may refer any matter arising on the report of the official stenographer to the Circuit Judge for his observations thereon and may either order a new trial or enter such judgment, in the case, as to the Court shall seem fit."

Sir JOHN KEANE

I would like to ask the Government whether they have considered the suggestion made by Senator Sir Nugent Everard that it might be found practicable to use machines for recording conversations. In some countries they have been used with considerable effect and have proved to be efficient. Is it not advisable in the wording of the Bill to allow the rule-making authority, if it sees fit, to introduce mechanical appliances of that kind? As the Bill is at present, if I read it rightly, it would be precluded from employing anything but official stenographers to record the proceedings of the Court. It may be that some mechanical appliance would be more efficient and far cheaper than the official stenographer and it should not be necessary to have a special Statute if you wish to employ machinery of that kind.

AN CATHAOIRLEACH

There is a matter in connection with this that I would like to bring to the notice of the President. Something was said on a former Section as to the expense of these stenographers. I do not think there is anything more valuable in this Bill than the introduction of this shorthand note in cases tried by judges. Ever since I joined the Bar it has been the constant complaint of the Bar and of judges that judges were compelled themselves to take a note as the case went along. Very often the note was very imperfect. Very often, perhaps, through no fault of the judge whose attention might be directed to the witness or something else, a very material answer or question was either incorrectly taken down by the judge or omitted altogether. I remember distinctly one most important case in which a verdict for a very large sum was obtained by a client of mine and was afterwards lost in the Court of Appeal solely by reason of the omission by the judge to take down a particular answer given by a witness on cross-examination. It was that answer that induced the jury to give the verdict they did, but when the notes of the judge were produced at the new trial motion neither the question nor the answer appeared in the notes and my client lost his verdict. Therefore I think this matter of recording the proceedings by a stenographer is a most valuable part of this Bill.

I want just to say a word about the suggested possible expense of it, particularly in connection with the Circuit Courts.

If the machinery provided by the Bill is adopted and becomes law the second hearing of all appeals from the Circuit Courts will be on notes alone, and consequently the litigants will be saved the necessity of bringing up their witnesses for the second hearing—the appeal. There will be no witnesses present at the appeal, and that will mean a very large saving of expense to the litigants on both sides. Therefore, it will not be unreasonable to make them pay a substantial fee for a transcript of these notes, and I believe that when that fee is collected in every case of appeal, from both parties, it will practically provide sufficient funds to pay these stenographers.

There is just one little weakness, and I think the President will agree with me that it ought to be corrected, as I think it can be easily corrected. As the Section stands, the stenographer is required to take down in shorthand a full account of every case that is tried in the Circuit Courts. My experience is, and probably the experience of Senator Brown will be, that the number of cases from which appeals were taken hitherto in the County Courts would certainly not be more than 40 per cent. of the cases heard. I am quite certain that I am within the mark when I say that in at least 60 per cent. of the cases the parties are satisfied with the decision of the County Court Judge. That being so, if this Section stands as it is now, the stenographers would be taking down a full record, and in 60 per cent. of the cases the record would never be heard of or used. It would be mere waste of time and waste of money. What I would suggest to the President to consider before the Bill is finally passed is, whether it would not be desirable to put in a provision that where the parties, through themselves or their solicitors, consent, that no note be taken, and that the decision of the County Court Judge be treated as final. That would prevent the necessity of having a record of proceedings in about 60 per cent. of the cases heard and save a great deal of trouble, time and public money.

The PRESIDENT

I shall consider that. I think it is a very good suggestion. I think the case made for the official stenographers on the last day was a little over-stated. I have some experience of sworn inquiries held from time to time in connection with local authorities. When I attended these inquiries I always discovered that there was a good deal of consideration given to the reporter. In these cases the official stenographer has not to take down the whole of the proceedings, but only the questions and answers. The official stenographer will not be called upon to take down notes for three or four hours unless the examination and cross-examination would last all that time.

AN CATHAOIRLEACH

The cases in which appeals are taken in the County Court concern rights-of-way, claims to bogs, boundary questions and interference with water rights. In my experience there were never less in the County Court than ten witnesses on each side in these cases. If a stenographer has to take the evidence down in every case it will mean a very big business. In many of these cases the parties are determined to have one fight and one fight only, and as they respect the County Court Judge, they will be satisfied with his decision. I think you will have a great saving of time and money if you put in a proviso that if the parties consent to the Judge's decision a note can be dispensed with. That can only be done where both parties consent.

Section put and agreed to.

Sections 61 and 62 put and agreed to.

SECTION 63.

The rule-making authority for the Circuit Court shall be the Minister for Home Affairs with the concurrence of the Minister for Finance in respect of any matter affecting public revenue or expenditure and with the concurrence of a majority of a committee consisting of (a) five Circuit Judges selected by the Bench of Circuit Judges; (b) two practising barristers selected by the Council of the Bar of Ireland, and (c) two solicitors selected by the Council of the Incorporated Law Society of Ireland: Provided that at least two members of the committee shall be certified by the Minister for Home Affairs as possessing an adequate knowledge of the Irish language. Each member of the said committee shall hold office for five years and be eligible for re-election and casual vacancies shall be filled in accordance with the foregoing principle of selection. The Chairman of the committee shall be such one of the five Circuit Judges as the members of the committee shall elect.

Mr. BROWN

I move:—

Section 63 (a), line 42. To delete all from the words "Minister for Home Affairs" to the words "concurrence of" in line 44—

(b) line 45. After the words "consisting of (a)" to insert the words "the Chief Justice and."

(c) line 52. After the word "Committee" to insert the words "other than the Chief Justice."

The object of the amendment is to make the same change in the case of the Circuit Court as was intended to be made in the case of the High Court by the amendment which I moved to Section 35. I do not intend to weary the Seanad by repeating the arguments that I used when dealing with amendment 35. It is essential that the Seanad should clearly understand what these rule-making sections do. The Attorney-General stated quite frankly in the debate on the amendment to Section 35, or on Section 22, I think, that rule-making was legislation—administrative legislation, he called it. I did not quite agree with the adjective "administrative," because a great deal of it is positive legislation, including the liability to costs, which was one of the very things I wished to exclude, and which is clearly positive legislation. At any rate it is legislation. I think it would be better if I read for you what the Attorney-General said. It was on an amendment that I made to exclude from the jurisdiction of the rule-making committee the right to make any rule as to liability for costs. The Attorney-General said:—

"Of course the rules of court are in the nature of legislation. The rules that will be made by this rule-making authority will be laid on the table of the Seanad as well as on the table of the Dáil, and each House will have complete authority over them."

That would be more or less true, of course, if anyone looked at the papers that are left on the tables of the House.

"They become in the nature of what one might call administrative legislation."

It is perfectly clear from the words of the Attorney-General, and he stated it quite frankly, that what is done by these rules is legislation. Therefore, these rule-making sections mean that a matter which is legislation has been put within the jurisdiction of a Minister who is to have sole power of initiating that legislation and vetoing it.

It has been already pointed out that this interference with the independence of the judges is a violation of the Constitution, but I do not intend to repeat any of the arguments used on a former occasion in support of that. There is a direct infringement of the Constitution in another, and, for members of the Oireachtas, a much more serious way in these rules.

It deprives us of the most important right which the Constitution has given us. Article 12 of the Constitution reads:—

"A legislature is hereby created to be known as the Oireachtas. It shall consist of the King and two Houses, the Chamber of Deputies (otherwise called and herein referred to as ‘Dáil Eireann') and the Senate (otherwise called and herein generally referred to as ‘Seanad Eireann'). The sole and exclusive power of making laws for the peace, order and good Government of the Irish Free State (Saorstát Eireann) is vested in the Oireachtas."

The sole and exclusive power of making laws! These are very remarkable words. As if one of them was not sufficient we have "sole and exclusive." Now the Attorney-General has boldly claimed for the Minister for Home Affairs the right to make rules which he himself describes, and rightly describes, as legislation. They are laws for the good government of this country through its courts, and yet he claims by this rule-making section that the Minister is to have the right to make these laws. Could there be any more direct infringement of the Constitution than that? I ask every member of the Seanad to pause and consider before giving up this fundamental right. It is not a small thing. It goes to the very root of the inherent power of the two Houses. But there is another way in which these rule-making sections infringe the Constitution. Article 67 of the Constitution is as follows:—

"The number of Judges, the Constitution and organisation of, and the distribution of business and jurisdiction among, the said Courts and Judges, and all matters of procedure shall be as prescribed by the laws for the time being enforced, and the regulations made thereunder."

Now, the meaning of that is that matters of procedure in the Courts are to be prescribed by the laws and by the regulations made under the laws. The distinction between laws and regulations is perfectly clear. In so far as the procedure is a matter of legislation, it must be prescribed by the law—that is, by the Oireachtas. In so far as it is only a matter of regulations, it may be provided for and prescribed by the rules made under the laws. The Attorney-General admits that these rules are to a large extent legislation. Therefore they are to be prescribed by law, and the laws can only be made by the Oireachtas. Now, the amendment carries this out. It is not carried out if the rule-making provisions of the statute remain as they are, without any other protection or control on the part of the two Houses, except laying the papers on the table of the House. The amendment which I propose carries out the spirit, if not the letter, of the Constitution in this matter for I have asked to add to it. The proviso which I asked to add at the end of Section 35 was to provide that in the case of the Circuit Courts no rule made under this section shall come into force unless and until it has been sanctioned by resolution of both Houses of the Oireachtas. Now, that leaves the control in this matter of admitted legislation where it ought to be, and it complies with the Constitution and necessitates the substance of these rules being brought before the House, because they must be dealt with by special resolution of each House before they can come into force. I therefore very seriously ask the Seanad, notwithstanding the conclusion to which they came on the amendment to Section 35, to reconsider this. It is a more serious matter than it appeared to me when moving the amendment to Section 35. This is so clear an infringement of the inherent right of the House to legislate, that I ask the Seanad in all seriousness to say that this ought not be done.

Mr. JAMESON

Looked at from quite another point of view, the mere laying of these rules on the Table of the House, is, I think we all agree, of little or no use to us. Now, that arrangement in the Bill prescribes and gives the making of the rules to a member of the Executive Government. The body who should explain those rules, and who should watch those rules and get the consent of both Houses to them, if they think there is anything at all wrong with them, ought to be the Executive Government. As the Bill stands, the Seanad will be in the position that the rules will be drawn up by a member of the Executive Government. All that we will know about them is that they will be laid on the Table of the House. Who will explain about them? Who will make it his business to tell the Seanad what they mean? Of course, it should be a Minister. But the Minister will be, of course, the very individual who has drawn them up, and we will have no genuine criticism of them at all. If they were drawn up by a Judge in such a Committee as Senator Brown suggests, and if the Executive Government thought there was anything wrong in them, and they then brought the matter to the real authority, which must decide it finally—to the two Houses of the Oireachtas—then we would be properly advised about it, and we could give our opinion about it. But, as the Bill stands, these two Houses will know nothing about it, and any real power of acting legislatively in the matter will be really gone. As far as I can make out, the object of the Government is to be able to effect economy. They intend to draw Rules of Court on such lines that the staff that will administer them will be small and economical. They will get some criticism—and that from the Judges. They will get none from either House of the Oireachtas. I certainly agree with Senator Brown that the two Houses ought to hesitate a long time before passing this Bill as it stands. We place ourselves on this question of rules, under which our Law Courts will act, quite out of controversy altogether, and resign our rights of criticism and everything else into the hands of the Executive of the day, or when we receive back those rules, laid on the Table of the House, the people who are to explain them and be asked their opinion of them are those who have already made the rules. In my opinion, if those rules pass, one of the most vital questions connected with the authority of both these Houses will have been given up. As Senator Brown says, that is not a light matter. It is difficult for all of us to say whether this is right or wrong, but I do hold that some very definite proof ought be given that we are in the wrong in urging the Seanad to take care what they are at before the Seanad passes the Bill as it stands.

Sir JOHN KEANE

If what the Senators say is going to happen, all I would say is that the Constitution would be challenged, and it would be either a case of amending this Act or amending the Constitution. It is really a serious matter for the Government to consider whether that is a wise course to embark on. It is undoubtedly a plunge in the dark. The Attorney-General challenged me, but he was ably answered by Senator Brown, when he said that in essence this rule-making method was unprecedented. There may be some technical or purely formal question, but in essence this method is untried. It is bound to provoke a conflict between the Executive and the Judiciary, and it seems really that the Government should, before it is too late, consider whether it is worth it. There is one minor point that I would like to bring out in this Section, and that is the proviso regarding the two Irish-speaking members of the rule-making authority. As far as I can see, that proviso is unworkable. The Committee which is to concur with the rule-making authority is a composite Committee elected by three constituent elements, the Judges, the Bar and the Solicitors.

There is nothing in the rules to show which of these constituent elements shall produce the Irish-speaking member. A committee will be elected, presumably without any regard to a knowledge of Irish. It is possible that none, or perhaps only one, member of the Committee would know Irish. What happens then? The Minister for Home Affairs would say: "I am sorry none of you gentlemen know Irish. You will have to produce two Irish speakers before this Committee is legal." Does he then proceed to apportion the Irish speakers within these three groups? Does he proceed to say that the Judges shall find one, and that he will draw lots as to whether the Bar or the Solicitors shall find the other, or does he leave it to agreement? I admit it is a comparatively minor point, but I would ask the Government to explain how, in practice, if that situation arises they will deal with it. It is quite possible the point will be met, but I suggest it should now be decided which of the constituent elements of the rule-making authority should be compelled to produce the Irish speakers.

Mr. YEATS

Senator Sir John Keane has stated that the Seanad may be challenged over this on the point whether this clause conflicts with the Constitution. May I ask what Tribunal does a challenge of that kind come before? Does it come by any chance before an Irish Court? Before whom is it to be decided whether or not a particular clause is against the Constitution, and if it is declared it is against the Constitution, what is the next step?

The PRESIDENT

I find it very difficult to understand the case that is made by Senator Brown out of Article 67. He says we are infringing the Constitution by this particular rule.

AN CATHAOIRLEACH

I think the proposal was—and I honestly and conscientiously say it is—well worth the consideration of you and the Attorney-General—that Clause 67 of the Constitution states that matters of procedure are to be prescribed by law, and Clause 12 of the Constitution says that all laws are to be passed by the Oireachtas. Senator Brown says that by giving the Minister the sole right to frame and initiate these rules, you are taking away from the Dáil and Seanad the power of originating legislation which is expressly conferred on them by the Constitution. I think that briefly was his contention.

Mr. BROWN

The "sole and exclusive" power, because it is admitted to be legislation.

The PRESIDENT

The originating power then, according to the Senator, is vested in a Committee from which he desires to exclude a Minister, although there is money involved, and the Senator salves his conscience by having a resolution passed by both Houses. I do not know whether it is intended that that resolution should be the law, or if the Senator holds that it is a law when passed as a resolution by both Houses. If it is, then it is not a law in accordance with the regulations that we have laid down for passing laws and if there be an infirmity in the case we have put up, the very same infirmity attaches itself to the amendment that has been proposed by the Senator. With regard to the question that has been raised by Senator Yeats, I understand it is the Supreme Court, which is not yet in existence, which has to decide whether or not we pass laws that go outside the Constitution.

AN CATHAOIRLEACH

That is not quite accurate. It is the High Court, as distinct from the Supreme Court, that so decides. You must go to the High Court first. The High Court has got the original jurisdiction in the matter, and then you go by appeal to the Supreme Court. You must, however, begin in the High Court. The point is a small one.

The PRESIDENT

Those Courts which are to decide that particular question are not established, and they will not be established until this particular Act brings them into being. We create those Courts by this Act, and when they are created they will then have an opportunity of deciding whether they were properly created or not. An important point is that there is a question of money involved here, and it is the first time in which the Minister for Finance is to be excluded from matters which concern the expenditure of money. That, I think, is a very serious attack upon our method of preserving another particular clause in the Constitution, which I regard as of some importance—I think it is Clause 2. There is no doubt the Minister for Finance is laid down there as the person responsible, and now it is proposed to exclude him. Why is he to be excluded? Why is the Minister for Finance to be excluded from this? Is it not his business? Is it not one of his duties, and why should he be relieved of it? Why should he be relieved of it in respect of this one service and not in respect of other services as important as this? The strangest thing of all is that the Lord Lieutenant made these rules before in the very same way as the Minister for Home Affairs will make them now. There will not be one iota of difference. During the thirty or forty years of my life I never heard any grave objection to the Lord Lieutenant making the rules.

AN CATHAOIRLEACH

That is not quite accurate either. Under the old practice the Judges framed the rules, and they sent them forward, with their recommendations, and the Lord Lieutenant formally sanctioned them. But the Judges framed them, whereas, in this particular case it is the Minister who is to frame them. There may be nothing in the difference, but there is that difference.

The PRESIDENT

I do not see anything very much in the difference, because I believe the procedure will be the very same; but it is not for me to say that. I do say that the Lord Lieutenant did not publish these rules, in the old days, until the Treasury had sanctioned them, and the Treasury had certainly a grip on these matters. It is now proposed in this new omnibus resolution which is put forward that we should pass laws by resolution, pass them in a way that I never heard of before, and the Treasury is to be excluded. I think that is a most serious invasion on the rights given us by the Constitution.

Mr. BROWN

Are you quite right in that? Would you say what part of the resolution says that?

The PRESIDENT

The Minister for Finance is included in our resolution and is excluded in Mr. Brown's amendment.

Mr. BROWN

I am quite willing to amend it. Under the English rules, in matters involving public expenditure, the Treasury were consulted, and the Minister for Finance would be a proper member of the Rule-making Committee, and his consent ought to be given in all matters involving public expenditure or the receipt of money. I am quite willing to put that in.

The PRESIDENT

It is a small concession, but in this case I am looking for more, and I cannot take less than what is down in the Bill.

Mr. BROWN

The President contends that my amendment has the same infirmity as the Section, inasmuch as No. 2 proposes that what is really the law should take place without the usual mode of a Bill going through both Houses. I admit that the President is right to that extent, but the amendment carries out the spirit of the Constitution, because it puts direct control in each House over those matters of legislation contained in those Bills. The Section, as it stands, does not do that. It is idle to say that the laying of the rules on the Table of the House is any practical control at all. I have stated that the Minister for Finance should be in this amendment. He, or rather the Treasury, was in the old rules under the English Judicature Act for the purpose of giving assent to any rule involving public expenditure and the receipt of public money. I am willing to alter the amendment by inserting the name of the Minister for Finance for those purposes. I propose to add this proviso before the portion of the amendment referring to the rules "in respect of any matter affecting public revenue or expenditure, no rule shall be made without the concurrence of the Minister for Finance." I am taking these words out of Section 35, where it was provided that the concurrence of the Minister for Finance should be provided.

AN CATHAOIRLEACH

What are the words at the end?

Mr. BROWN

"No rule made under this Section shall come into force unless and until it has been sanctioned by a resolution of both Houses of the Oireachtas."

The PRESIDENT

Does the Senator mean to amend or delete Section 97? I take it that the difference between the Senator and myself on this point is that in his estimation his rules are so important that they must be introduced by both Houses, while mine are so unimportant as not to merit the attention of even a single member of the Dáil or Seanad.

AN CATHAOIRLEACH

The Senator, I think, wanted to make plain that he was not interfering with Section 97, and that he was preserving that.

Mr. BROWN

That is so. The amendment is:—

"That the Section shall read as follows:—The rule-making authority for the Circuit Court shall be (a) The Chief Justice and five Circuit Judges selected by the Bench and Circuit Judges; (b) Two practising barristers selected by the Council of the Bar of Ireland; (c) Two solicitors selected by the Council of the Incorporated Law Society of Ireland: provided that at least two members of the Committee shall be certified by the Minister for Home Affairs as possessing an adequate knowledge of the Irish language. Each member of the said Committee other than the Chief Justice shall hold office for five years and be eligible for re-election, and casual vacancies shall be filled in accordance with the foregoing principle of selection. The Chairman of the Committee shall be such one of the five Circuit Judges as the members of the Committee shall elect. No rule shall be made under this Section in respect of any matter affecting public revenue or expenditure without the concurrence of the Minister for Finance. No rule made under this Section shall come into force unless and until it has been sanctioned by a resolution of each House of the Oireachtas."

Amendment put.

The Seanad divided: Tá, 12; Níl, 22.

Tá

• J. Bagwell.
• S. L. Brown.
• Countess of Desart.
• Sir Nugent Talbot Everard.
• J. P. Goodbody.
• Mrs. A.S. Green.
• H. S. Guinness.
• Right Hon. Andrew Jameson.
• Sir John Keane.
• Earl of Kerry.
• Earl of Wicklow.
• W. B. Yeats.

Níl

• T. W. Bennett.
• Mrs. E. Costello.
• J. C. Counihan.
• W. Cummins.
• P. de Loughry.
• M. Duffy.
• Sir Thomas Henry Grattan Esmonde.
• T. Farren.
• T. Foran.
• C. J. Irwin.
• P. W. Kenny.
• T. Linehan.
• E. MacEvoy.
• J. MacLoughlin.
• Earl of Mayo.
• W. J. Molloy.
• Colonel Maurice Moore.
• G. Nesbitt.
• M. O'Dea.
• J. T. O'Farrell.
• B. O'Rourke.
• Mrs. J. Wyse Power.

Amendment declared lost.