The Minister has suggested, as a matter of convenience, in view of what has transpired with regard to the Circuit Court Rules, that the District Court Rules be taken up now. I do not object to that if I have any sort of assurance that the debate on them is not likely to be protracted. If it is, I would rather adhere to the Order Paper, because I have a statement to make which I regard with considerable importance with respect to the position the House is in as to these Circuit Court Rules. I do not want to make that statement in a perfunctory way, because I will be compelled to deal with the matter at some length. The matter is a very important one to me as affecting the position of this House in reference to these Circuit Court Rules. If Senators think that the District Court Rules are not likely to lead to a protracted discussion, we should convenience the Minister and dispose of them now. I can make no promise, of course, with regard to that. Perhaps it is only fair that I should say that the Committee, so far as they had time or opportunity, which was of the briefest kind, to consider these District Court Rules, were of opinion that, on the whole, they were excellently drafted, and that, with the exception of the rules to which they take exception, they were unobjectionable, and were admirably adapted to all the purposes for which they were intended. That being the opinion of the Committee, I think it is only fair that I should state it.
DISTRICT COURT RULES.
CATHAOIRLEACH
I move:—
"That the Report of the Special Committee appointed to consider and report on the Rules of Court, in so far as it recommends that Rules 20, 24, 36, 93, 95, 151, 171 and 180 of the District Court Rules be not approved, be received and that these rules accordingly be not approved."
I take it that the objections I wish to raise are covered by this motion as it now reads.
CATHAOIRLEACH
Yes. That is why I am changing the word "adopted" to "received" so as not to prejudice any Senator who wishes to object to any one of these rules.
I propose to go very briefly through the rules to which the Committee objected, and to state very shortly the reasons for their objection. The first of the District Court Rules objected to was Rule 20. It is objected to more or less because it was not quite understood. The rule must be taken in connection with Rule 77. Each of these rules prescribes certain fees which are payable for the service of a document in connection with this court. Rule 20 apparently is limited to service by a summons-server appointed under these rules. Rule 77 states that the fee payable "to any summons-server in respect of the service of any document in connection with civil proceedings in the District Court shall be 1/6." Now, the fees prescribed by Rule 20 for the summons-server, who is to serve a summons which apparently is a document and may be connected with civil proceedings, vary according to the distance that he has to go. He gets 1/6 if the distance does not exceed two miles, 2/- for a distance under three miles, and so on up to 5s. which he gets if the distance exceeds five miles. What struck the Committee was the variance between the amount payable for the service of these documents. I thought, perhaps, Rule 20 only applied to the service by the summons-server of a summons in a criminal matter, but apparently that is not so, because if you look at Rule 14: "In cases of offences prosecuted by the Gárda Síochána or by a Minister or by any Department of State or by the Attorney-General of Saorstát Eireann, the summons shall be served by a member of the Gárda Síochána or other person authorised by statute, but in all other cases it shall be served by an appropriate summons-server save when the Justice issuing same shall otherwise so direct." What the Committee felt was that there was an apparent inconsistency between the scale of service, and they would very much like to have that explained. I do not know whether it would be better to take these rules separately.
CATHAOIRLEACH
We will have to take them separately. I might mention, as Chairman of this Committee, that the contrast between Rule 20 and Rule 77 that troubled us so much was this: that while service for every document under Rule 77 is to be paid for at a uniform fee of 1/6, there is a graduated scale under Rule 20 which runs from 1/6 to 5/-. I find it impossible to understand that.
If Rule 77 had read as follows it would have been quite easy to understand it:—"Any summons-server in respect of the service of any document other than a summons." That probably was what was intended.
We took it, as Senator Brown has explained, that the objection was based on the fact that under Rule 20 a scale of fees is prescribed for the service of summonses in cases of summary jurisdiction, while under Rule 77 a flat rate of 1/6 is prescribed.
There is nothing about summary jurisdiction in Rule 20.
It is in Part I. of the Rules which deals only with cases of summary jurisdiction.
CATHAOIRLEACH
Even so, that does not get rid of the obscurity. If you intended that to be confined to a particular thing, then you should have said in Rule 77: "Save as provided by Rule 20."
The rules are divided into different parts. Part I. deals only with cases of summary jurisdiction and preliminary investigations into cases of indictable offences. Rule 77 follows under a distinct portion of the rules.
CATHAOIRLEACH
In the case of civil proceedings.
Rule 77 prescribes a flat rate of 1/6 as the service fee in the case of civil proceedings. Under the Petty Sessions Clerks and Fines Act of 1878 a scale of fees was prescribed for summons servers in respect of the service of summonses in the case of summary jurisdiction. That scale depended, as the scale under Rule 20 does, on the distance travelled by the summons-server. When the District Court was constituted we found it difficult—impossible in fact—to secure people who would serve the summonses of the court. Accordingly, the former scale of fees for service was substantially increased. As the costs in summary cases are at the discretion of the justice, it was thought that this scale of fees for service could, with advantage, be continued. People serving the summonses of the Court have become accustomed to receiving a fee which depends on the distance they have to travel. It was thought that if the scale was discontinued it might again become difficult to obtain summons servers. Under Rule 77 a flat rate for service fees was struck because a settled amount for costs, including outlay, is prescribed in respect of civil proceedings, and it was not considered desirable to have the amount of costs varying by reason of the distance which the summons server had to travel in any case.
CATHAOIRLEACH
Will not the same official be serving in both cases?
Whether on the criminal side or on the civil side, he will be the same person.
He might be.
CATHAOIRLEACH
Why should he get 5/- for serving one document and 1/6 for serving another?
Would the Civic Guard get fees?
CATHAOIRLEACH
They get nothing.
Police formerly got fees for serving. I thought a Guard was a summons-server.
I think in one case you take account of the costs within the jurisdiction of the justice, that is, in the summary case.
CATHAOIRLEACH
This is not within the discretion of the justice. He must order this under Rule 20.
You have a fixed scale of costs provided for the civil cases and the totals.
CATHAOIRLEACH
They are all summary cases.
Under Rule 20, yes.
CATHAOIRLEACH
And under Rule 77. It is summary jurisdiction in both cases, in one case dealing with the criminal side, and in the other with the civil side. What we could not understand, and fail to see yet, is why a man should get 1/6 for serving a summons on the civil side, and 5/- if he serves the summons on the criminal side.
There are two jurisdictions. There is the summary jurisdiction given by way of transfer from the former Petty Sessions Court of the Justice of the Peace, and the civil jurisdiction, which is something akin to the civil jurisdiction of the county court judge. Rule 20 deals with that inherited jurisdiction from the Justice of the Peace, and Rule 77 deals with the civil jurisdiction transferred from the county court of the past.
One of the things that puzzled the Committee was that in the larger jurisdiction, which is provided for under Rule 77, the summons-server gets the smaller fee.
CATHAOIRLEACH
And he cannot get more.
Under the old regime were the fees fixed as to distance the same as regards the criminal and the civil side?
CATHAOIRLEACH
I cannot tell you that, but I am sure there was not this curious discrepancy that exists here. There does not seem to be any logic in it, and I cannot follow it.
There is more danger in serving a summons on the criminal side.
CATHAOIRLEACH
I think it better the rule should not be approved of. It could be amended.
Is there anything laid down as to where the summons-server should live? I can see an ingenious summons-server living on the fringe of his district so as to get the benefit of the fee for the five miles' journey. The residence of the summons-server should be central.
CATHAOIRLEACH
If the residence of the summons-server is a five miles away from one litigant it is five miles nearer to another.
No. Surely it would be much more economical if he lived in the centre of a district.
That is dealt with in Rule 13. There are several court areas in each district.
CATHAOIRLEACH
We had no trouble over that. The difficulty is in regard to the unexplained disparity in fees.
I can only explain the disparity by pointing to the fact that we are dealing with two jurisdictions which came by a different process, one from the Justice of Peace of the past, and the other, which is really a transferred jurisdiction, from the County Court. The costs are different in each case. Under the summary jurisdiction the costs are within the discretion of the District Justice.
CATHAOIRLEACH
Pardon me, that is not accurate. The District Justice must award the scale in Rule 20, and he has no option in the matter at all.
You have asked me to deal with two rules, Rule 20 and Rule 77. In the case of the civil jurisdiction there is a fixed scale of costs prescribed with a total fixed, and in the difference in the costs between each jurisdiction—the costs in the summary jurisdiction and the costs in the civil jurisdiction—lies the explanation of the disparity between Rule 20 and Rule 77.
CATHAOIRLEACH
Under Rule 77, no matter what the case is or its magnitude, he cannot give the summons-server more than 1/6. The District Justice has no discretion in the matter, whereas in the smallest case on the criminal side, if a summons-server travels five miles, you have to give him 5/- for serving a document.
I have explained how the scale of fees grew up in the District Courts because of the impossibility of securing summons-servers when the court was first established.
CATHAOIRLEACH
We were not in a position to question the propriety of Rule 20 or the scale allowed, except in the light of the fact that the same Committee should prescribe for the same service 1/6 as a maximum.
If the Committee of the Seanad had seen fit, as was suggested, to give a right of attendance, if not a right of audience, to officials of my Department, considerations which were before the Committee which made these rules—the Rule-making Committee in the first instance—could have been put to the Committee of the Seanad.
CATHAOIRLEACH
All I say is, there would be no difficulty whatever in any official of your Department attending if he wanted to do it, and to speak for you.
The fact is that an application was made and refused.
CATHAOIRLEACH
That was by some clerk in your office. We would gladly welcome the Attorney-General.
It was the secretary of my Department.
CATHAOIRLEACH
I got no application from him. Surely if he had been there he could not give us any better explanation than you have given, and I cannot follow it.
Could the House be informed as to the present scale on the civil side?
CATHAOIRLEACH
I do not think there is any scale. I am not speaking by the book, but as far as I know this is a new scale, and I think it quite right that there should be a scale. We do not object to that at all. Nor have we any reason to quarrel with the amount here, save in the light that is thrown upon it by the other rule, Rule 77, because if he can get the summons-server to serve, no matter how far he has got to go, the whole length of a district, if necessary, a civil document for eighteen pence, why is he for a less distance to get half-a-crown or three shillings because the document happens to be a criminal document?
There is no scale at present. It is in the discretion of the justice. If it has been the practice to have a uniform system, why should there be discrimination here?
CATHAOIRLEACH
That is what I have asked an explanation of, but I cannot get it.
You have to look at the antecedents of the District Court and to advert to the fact that it had at the beginning the jurisdiction which was only a jurisdiction inherited from the Justices of the Peace in the Petty Sessions Court. Then under the Courts of Justice Act wider jurisdiction was extended to it in recognition of the fact that the men adjudicating in the District Court were professional men, barristers and solicitors, and not the honorary magistrates of the past. There was always a difference in the Petty Sessions Court for distance as to the amount paid to the summons-server, and in the County Court there was a fixed scale. We found it necessary to increase, when the District Court was established, the scale paid for distance to summons-servers. But it is not proposed, in connection with the jurisdiction that it transferred or shifted from the County Court of the past, to have any departure from the fixed fee of 1/6. We will have to regard for certain purposes these two jurisdictions as distinct. For instance, in every court area the justice will administer his summary jurisdiction in every place where he holds a court, but not in every court area will the civil jurisdiction be exercised. We will have, and we may under the rules, to set aside certain places where the extended jurisdiction transferred from the County Court will be exercised by the justice.
CATHAOIRLEACH
Does not that make it all the more necessary to have a higher scale on the civil side than on the criminal side? If you are going to widen the district for civil cases, will not the summons-server necessarily require a higher scale?
It is really a question of adhering in respect of each jurisdiction to the practice in the past, and in the Petty Sessions Court there was always an allowance for distance, whereas in the other court you had a fixed fee.
Rule 63 states:—
The jurisdiction of a justice in civil proceedings shall be exercised by him within his district as follows, namely—in the court area for civil proceedings wherein the defendant or one of the defendants ordinarily resides.
CATHAOIRLEACH
I think this has to be cleared up. It will not hang up the District Courts at all. They can easily amend this or bring in a fresh rule.
I would suggest a shilling a mile all around.
CATHAOIRLEACH
Or two shillings. I do not want to cripple the summons-server at all. I think they ought to be well paid. I only want to see that you will not have them saying: "We will not serve civil summonses because we will only get eighteen pence. We will do the criminal summonses because we will get five shillings."
This matter was threshed out by the Committee with a representative of the Incorporated Law Society, and was considered satisfactory. There is something in the point that they will get far more civil processes to serve than summonses under summary jurisdiction.
CATHAOIRLEACH
Can they not take both of them in the same bag? A man will not go out five miles to serve one summons. If he has half a dozen civil summonses as well he will take them with him. At any rate it cannot possibly delay or hurt the District Court to have this thing hung up.
I am differently advised. I am advised that the rejection of a rule renders the coming into operation of the remainder of the rules impossible.
CATHAOIRLEACH
Do you mean to tell me you are advised that if the Dáil or the Seanad disapproves of one rule out of 500 all the rules are held up?
I am advised, sir, that the rules stand as a whole.
CATHAOIRLEACH
And that this House cannot reject one unless it rejects them all?
This House can refuse to pass a resolution of approval for reasons stated. These reasons can be based on an objection to particular rules, but as I am advised, it is a question of passing or not passing a resolution approving of the rules, as made by me.
CATHAOIRLEACH
Surely, then, you should have objected to the amendment moved by Senator Mrs. Costello.
I did object.
CATHAOIRLEACH
Not on that ground.
I understood that my point of view was known and was not accepted. But it is my point of view, and the advice I have received from the Attorney-General.
CATHAOIRLEACH
I must rule to the best of my judgment.
Certainly, sir.
CATHAOIRLEACH
And I have advised the House. I have considered it most carefully and am satisfied that under the section of the Courts of Justice Act this House is entitled to approve 499 of the rules and to reject Rule 500.
You must not take me as questioning your ruling.
CATHAOIRLEACH
I understand that.
I am simply saying that I am differently advised. I am advised that the rejection of one rule is fatal to the rules as a whole.
CATHAOIRLEACH
We cannot help that. If that follows from our rejection of one rule when we do not approve of that rule we must still reject it.
Yes, sir; but my conception of the reaction of that is different from yours.
Might I ask, for the information of the House, on what foundation that decision is based? There must be some foundation. It seems to the ordinary lay mind to be so utterly inconsistent with the kind of principle that has been applied to any other class of legislation.
CATHAOIRLEACH
I cannot have any discussion about this, because I am quite clear about it, and I have given my ruling.
We want to be clear about it.
CATHAOIRLEACH
I may say, in addition—I was not aware of this—but the Clerk has corresponded on the subject with the Clerk of the House of Commons. There is a letter from him here, and his view is quite distinct on the matter. It would be an extraordinary condition, where we have cast upon us the duty of approving of these rules, that if we disapprove of one rule out of five hundred all the rules must go. That could not be, in my opinion, and it would make the whole thing a farce.
The next is Rule 24; this deals with the expenses of witnesses: "In all cases of summary jurisdiction the justice by whom any order for payment of money, not being in the nature of a penalty for an offence, shall be made, may order the party at whose instance any witness shall have been summoned to pay to such witness such sum, not exceeding one guinea as to such justice shall seem fit, for his expenses or loss of time for each day of attending to give evidence, and in default of payment thereof at such time as such justice shall appoint, he may issue a warrant to levy the amount thereof by distress of the goods of such party."
I think it is quite right that a witness who is summoned to the District Court and loses his day's work or has to go to considerable expense in getting there, should be paid his witness's expense, and that they should be limited in the District Court, which is a small court, to a guinea. But why it should only apply to cases where there is an order for the payment of money I do not know. If a case is dismissed why should not the poor witness get his money for expenses just as well as if the case was won? This can only apply to a small class of cases where the jurisdiction was transferred from the old Justices of the Peace to this court.
It does apply.
I cannot see why, if a man loses his case, he is not to pay people who came there to give evidence as well as if he won his case.
I cannot see it either, but I suggest that is not the effect of the rule as it stands. It is suggested that the rule does not cover the case of a civil nature in which a dismiss is pronounced by the justice.
CATHAOIRLEACH
It plainly does not. Why waste time over that, because it says: "In all cases of summary jurisdiction the justice by whom any order for payment of money shall be made"? That only applies to a case in which the justice has made an order for the payment of money. If he dismisses a case and makes no order for the payment of money, why should not a witness get his expenses in that case the same as in the other?
Assuming the justice dismisses the case and orders the plaintiff to pay the costs of the dismiss his order would be for the payment of money not being in the nature of a penalty for an offence, and, accordingly, the other provision of Rule 24 shall apply. I put it to the Seanad that the order for costs is clearly an order for payment of money, and accordingly the rule would apply to cases of dismissal.
It is very badly worded.
CATHAOIRLEACH
It is as plam as daylight that that was not the intention of the framer, because he would have said in cases of summary jurisdiction "the justice by whom an order, either by way of damages or costs," and it would have been perfectly plain.
The rule says: "In all cases of summary jurisdiction the justice by whom any order for payment of money, not being in the nature of a penalty for an offence." The order to pay costs on a dismiss would be an order for the payment of money not being in the nature of a penalty for an offence.
CATHAOIRLEACH
Supposing the justice dismisses without costs. Is the unfortunate witness, brought there by one of the parties, not to be paid his fee, whereas he would have to get it if the justice made an order for the payment of costs? A man perhaps brings a bogus case and brings his neighbours there. His case is dismissed and he says to them: "You may go look for your expenses," although he brought his witnesses there and sub-poenaed them.
The rule is practically copied from the Petty Sessions Act of 1851, which reads:
Section 13, sub-section (7),
"In all cases of summary jurisdiction it shall be lawful for the justices by whom any order for payment of money, not being in the nature of a penalty for an offence, shall be made, to order the party at whose instance any witness shall have been summoned to pay to such witness such sum, not exceeding two shillings and sixpence, as to such justices shall seem fit, for his expenses or loss of time for each day of attending to give evidence, and, in default of payment thereof at such time as such justice shall appoint, then to issue a warrant to levy the amount thereof by distress of the goods of such party."
CATHAOIRLEACH
That does not make it any better. If that rule was defective 70 years ago it is defective to-day. I want to know what the answer is to the objection raised to the rule.
We are not satisfied that it is defective to-day.
CATHAOIRLEACH
What is the answer to the position in the case in which the justice dismisses a summons? In that case this rule does not apply, although on the very same principle of equity the witness would be entitled to be paid. Why should not that be put right?
If he dismissed the case with costs?
CATHAOIRLEACH
No; very often he is entitled to dismiss the case without costs. If he dismisses without costs then under this rule witnesses brought there by one of the parties, whether the successful party or not, cannot recover expenses from the man who brought them there. The object of this rule is to entitle the witness to recover, but you have not dealt with the instance where the case was dismissed.
The original contention was that the rule did not cover cases of dismiss at all with or without costs.
CATHAOIRLEACH
I do not think it does. It certainly does cover cases where there is a dismiss without costs.
In cases of dismiss without costs it is only presumed that the man will get his expenses from the party who brought him there.
CATHAOIRLEACH
In every case under this rule he is to get it from the party who brought him there. You do not appreciate the rules. The object is independent of whether costs are given at all; to entitle a witness to his expenses from the party who brought him there. That is the object of the rule. All I ask is why is a witness not to be entitled to get his expenses from the party who brought him there, wholly independent of what order the justice makes about the costs?
The section of the old Petty Sessions Act was there introduced.
CATHAOIRLEACH
At any rate it is seventy years old, and it is time it was amended. We have to deal, not with the Petty Sessions Act, but with these rules. Then, again, there is not the slightest pressure or hurry. That can be amended. I respectfully say to the Minister that if there is no better answer than what he has given to this objection of ours we ought not to approve of these rules. We had a very thankless job and we had very little time to do it, but we did our best, and certainly as regards this rule our objection is not answered.
The next rule objected to is Rule 36, and here it is purely a verbal objection. Rule 36 applies to criminal cases in which the jurisdiction is conferred upon justices by paragraph (b) of Section 77 of the Courts of Justice Act of 1924. It is a higher jurisdiction, for more serious crime. "The justice, if he be satisfied at any time during the hearing that the evidence establishes a minor offence, fit to be tried summarily, shall say to the accused: ‘Do you object to being tried summarily or do you wish to be tried by a judge and jury?' Upon signifying that he has no objection to being tried summarily the justice may hear and determine the case." The Committee thought the alternative was not given to him expressly and that it should be given to him in this way: "Do you wish to be tried summarily or do you wish to be tried by a judge and jury?" It should be put to him as an alternative in that express way. He should not be asked if he objects to one form of trial, but he should be given the alternative.
CATHAOIRLEACH
Of course in many cases the man in the dock would be illiterate. The Act gives them a right to refuse, in cases not within summary jurisdiction, to be tried summarily and to claim to be sent forward for trial. The object of this rule is to let them know that they have that right, but the alternative is put in the wrong way. The wording is: "Do you object to being tried summarily or do you wish to be tried by judge and jury?" They put the two as if they were alternatives, whereas they are the same thing. No prisoner in the dock will understand it.
The language is clearly faulty and would be improved by the deletion of the words "or do you?" and the substitution of the word "and." Section 77 of the Courts of Justice Act imposes an obligation on the justices to ask the prisoner, "Do you object to being tried summarily?"
CATHAOIRLEACH
That does not prevent him from saying: "because if you do you will be entitled to be tried by judge and jury."
The person who did not know would probably ask what the alternative was.
CATHAOIRLEACH
You do no harm to anyone by leaving this out, because the Act remains and the justice has to comply with the Act, so that the rule is really unnecessary and you do not want it at all. If you make a rule make a proper one.
I admit in the abstract that there is nothing lost by the deletion of that rule, but that brings us back to our difference of view as to what should be a proper rule in any case.
I move that Rule 93 be not agreed to. Rule 93 deals with witnesses' expenses. It gives the justices an unlimited power to grant witnesses' expenses. In the County Court and the High Court there is a scale of witnesses' expenses for certain classes of witnesses. The Committee suggest that there ought to be a scale of witnesses' expenses in addition to a scale of costs.
CATHAOIRLEACH
Under this the District Justice has power to award witnesses' expenses up to any amount. That is a power no other judge has. The Circuit Judge or the High Court Judge has not got it. They are limited by a scale according to the man's position in life, his occupation, and so on. There is no reason, that we could see, why that should not apply here.
In the County Court there was a limit of £5. Only £5 could be allowed to any one witness. I think it was found that £5 was, in fact, utterly inadequate. Take the case of a witness having to be brought from anywhere in England to give evidence in a case. It does not cover his expenses, and it was considered it might well be left within the discretion of the justice to fix an amount in respect of the witness. I simply put it to Senators that the justice can be trusted to fix an amount which is fair and reasonable and which will recoup witnesses for any out-of-pocket expenses they have to incur by having to attend at court. It is pointed out that these expenses have been regulated by scale. If it can be shown that the scale was found much too tight a fit and not sufficient, that this is intended to meet the cases of witnesses attending from long distances, and so on, then I think the scale goes, and the case for the discretion of the presiding justice might be considered to be met.
CATHAOIRLEACH
That is done away with by the Circuit Court Rules. In the High Court the scale provides for a man coming from London or Scotland, and in the District Court the same could be done. In my knowledge and experience, the most extravagant demands were often put forward for witnesses' expenses. They practically swamped the whole benefit of the decree, so that I think it is a mistake to give the justices absolutely unlimited discretion. I cannot see why there should not be a graduated scale as in the High Courts. It would be a tremendous advantage to a justice to have a scale, because, if extravagant demands were made, he could say: "They are outside the scale and I can only award you so much." It is not a matter of very great importance and, if the Minister wishes, I would not ask the Seanad to press it. It seems to us that it might possibly lead to grave abuse.
In the absence of this rule, the justice would not have power to give any witnesses' expenses.
There should be a rule giving power to award witnesses' expenses. If the Minister is of opinion that this might safely be left to the discretion of the justices, I am agreeable.
CATHAOIRLEACH
If the Minister satisfies himself on that, I would not ask the Seanad to press the amendment. This was found to be a great abuse in the County Court, as an unfortunate litigant who got a decree found, by the time he had paid the witnesses' expenses awarded, he had nothing left.
Am I not to proceed with this amendment?
I think that a scale would be much better. I understand there is a scale in the other courts.
CATHAOIRLEACH
When the Rule-making Authority did not trust the High Court and the Circuit Court Judges by withholding absolute discretion, why should it be given to the District Justices?
These matters will have to go back to the Rule-making Authority, and surely it is much better that they should go back with the views of the Seanad rather than be withdrawn.
The deletion of Rule 93 removes any power to grant costs.
"A justice in hearing and determining any civil process shall have jurisdiction to grant to the successful party such witnesses' expenses as to him may seem reasonable, and shall grant such costs as shall be in accordance with the scale set forth in the Second Schedule hereto."
CATHAOIRLEACH
I do not think you are right in that interpretation. If there is a schedule of costs and if it is approved—we are not raising any objection to it—the judge has jurisdiction under the Act to award costs. All Rule 93 says is that if costs are awarded, they are to be awarded in accordance with the scale.
I wish to allude to Rule 94.
CATHAOIRLEACH
Are you asking that it should not be approved of?
Yes. It provides that a person may be summoned from any part of the Saorstát, and if he does not attend he is liable to great penalties. Surely if a poor man was summoned from Donegal to Kerry, it is reasonable that he should get his railway fare. If that man has no money to attend, he commits an offence.
If a witness is summoned he must get, with the summons, what is known as a viaticum.
Where is that stated?
The person who brings a witness would give the expenses.
CATHAOIRLEACH
That is assuming the witness gets a viaticum. Where is the provision that he is to get it?
I do not think there is any provision under the High Court Rules.
An offence is committed for non-attendance on the summons, and the person may be arrested and imprisoned.
CATHAOIRLEACH
I am not in a position to say whether the viaticum is a matter of practice or statute.
I think it is practice.
CATHAOIRLEACH
I could not say, for there appears to be no provision for it in the rules.
"Unless any such person so served, without sufficient cause shall not attend."
CATHAOIRLEACH
I think that would entitle him not to attend. He would have to prove that he got no viaticum.
He may be arrested before he proves it.
CATHAOIRLEACH
If he does not go and prove it, an order is issued for his arrest.
I made a note about Rule 94 as to why expenses were not provided. Senator Brown says that if a viaticum were not given it is sufficient explanation.
I am quite certain a person would not be committed if he did not get a viaticum.
CATHAOIRLEACH
If he proved it. I am inclined to think that there is some answer to this and that we might leave it as it is. If experience proves that it is unjust or unfair, I am quite sure that the justices will be the first to amend it.
"He shall be guilty of contempt of court, and a justice, upon the complaint of the party at whose instance such person has been summoned as witness, may issue a summons." I suggest that before he issues a summons the justice would ascertain whether the witness had been paid.
CATHAOIRLEACH
I think that is right. I think, in ordinary practice, that no justice would commit a man unless he was satisfied that the plaintiff had paid him a viaticum.
Rule 94 allowed to stand.
The objection of the Committee to Rule 95 was that it is not clear whether there is an appeal from a mere adjournment by a justice.
CATHAOIRLEACH
In other words, what is required, apparently, under this rule is to make an order to adjourn the case.
Under the old County Court procedure, there was very great abuse of the power of judges in adjourning cases from session to session. The sessions were only held every three months, and the consequences were grave. There was no appeal from a mere order of the judge granting an adjournment. There was an appeal only from a decree or a dismiss.
CATHAOIRLEACH
That was subsequently amended.
The one question under this rule is whether the word "adjourn" means adjourned by order. "A justice may in any case make orders for granting time to the plaintiff or defendant to proceed in the prosecution or defence of any civil process and also may from time to time adjourn the hearing or the further hearing of any civil process with such costs of the day and witnesses' expenses as to the said justice may seem fit." Does the word "adjourn" there mean adjourned by order? That should be made clear.
CATHAOIRLEACH
The context would rather imply the opposite. It began by referring to cases in which he is to make orders. He has also power to adjourn the case.
The section of the statute gives the right of appeal.
Once a judge adjourns the case, is not the adjournment itself an order which may be appealed against?
CATHAOIRLEACH
It ought to be.
The Attorney-General assured me that he appeared in a successful appeal against an order for the adjournment of a case.
That is quite right in County Court cases.
And there was an appeal.
CATHAOIRLEACH
In that case there was an order, and Findlater's Act, which amended the right of appeal in the County Court, expressly provided that an adjournment was an order capable of being appealed from. There was express legislation for that.
Is not the mere statement, "I adjourn this case," an order?
CATHAOIRLEACH
Unfortunately not, because under this rule he is not bound to adjourn it for any definite time. He can adjourn it for a year, or two or three or four years. There is no limit of time. He has power to adjourn it.
Except that it was not considered that a justice without any good reason would adjourn a case for an absurd or unreasonable period.
CATHAOIRLEACH
They must be very different then from what they were in my old days, because the County Court judges in those days, when they wanted to get away to another town, adjourned cases without rhyme or reason. The thing became such an abuse that Parliament had to interfere.
We all hope they are different now. It all turns on this: whether a statement of the intention to adjourn is not itself an order that may be appealed against, and I do not know whether it is or not. I am advised that the bare pronouncement in open court by a judge that he is adjourning a case is an order for adjournment and that an adjournment, if unsound or unreasonable, can be appealed from.
CATHAOIRLEACH
Suppose the justice said: "I am going to my lunch now and I adjourn this case"—I think you will find that that is not an order. It draws a distinction itself. It begins by reciting cases in which he must make orders and then it says, "He may adjourn," but it does not limit his power to adjourn to the next session. It gives unlimited power for a year or two or three, and it does not require him to make an order.
Not expressly, not in so many words, but his adjournment itself is an order.
CATHAOIRLEACH
I am afraid not in this case, because, you see, a distinction is apparently drawn between the two. At any rate, this is not an order that there is any pressure about. It would do no harm to hold this up, because at present every judge can adjourn his court for good reasons, provided he makes an order.
Section 84 of the Courts of Justice Act says: "An appeal shall lie in all cases other than criminal cases from any decision of a Justice of the District Court to the Judge of the Circuit Court within whose Circuit the district or any part of the district of the justice lies, and the decision of the Judge of the Circuit Court on any such appeal shall be final and conclusive and not appealable."
CATHAOIRLEACH
Exactly.
Well, if the adjournment is not an order, is there any method by which it is a decision?
CATHAOIRLEACH
It is clearly not a decision.
Then it is something very indeterminate, indeed, if it is neither one nor the other.
CATHAOIRLEACH
The rejection of this rule cannot do the slightest harm. It is the inherent right of every judge to adjourn his court, provided he makes an order in the appropriate way, and he does not require this rule at all. As it at present stands, it is indefinite and unintelligible.
Rule 151 is the next. This is a rule which applies to the licensing jurisdiction which has been transferred to the District Court. Rule 149 provides for what is known as an interim transfer enabling a person after the death of somebody who has been the licensed person, to carry on, or in the case where a public-house has been sold and where the conveyance has not been yet executed. It enables the person who represents the deceased person or the person who has got the right to the conveyance of the public-house to go into the Courts of Justice and get what is called a temporary transfer of the licence without having the necessary documents. A person dies who has made a will and it takes some time to prove that will. There may be a dispute over it. In a case where no will has been made, administration has to be taken out, and in such cases it is important that the business should be carried on, and that the person interested should have some protection from the court to carry it on. Rule 151 has this, "Upon such application being made, a justice in the event of the applicant being unable to produce the original probate, grant of administration, conveyance or transfer, as the case may be, upon which he relies, may grant such application subject to the subsequent production of such probate, grant of administration, conveyance or transfer, as the case may be." Now, the objection which the Committee saw to that rule was this: it did not prescribe any time limit for the production of the documents. It would be quite possible if this application for a temporary transfer or a temporary licence was made in the month of October that the business might be carried on for a full twelve months without the document being produced, and the man carrying it on might not have any real right to do so. The annual licensing Sessions come on in October, and the temporary transfer that you get under Rule 149 carries you on to the annual licensing Sessions. It seemed to the Committee to be a wrong and dangerous thing to give this unlimited right to the court to give this temporary licence without the production of this administration of conveyance, or probate, or whatever it was, without some reasonable limit of time within which it should be done.
The intention of the rule, I think, is to meet the case that in many districts the court is only a monthly court. The justice sits once a month. The rule was intended to cover the case where although the applicant could not produce his document or title at a particular sitting of the court he might be able to produce it in a few days or weeks. And on the production of the document to the clerk he could then obtain the written transfer which the justice had made. Otherwise he would have to wait and keep his premises closed for a month until the next sitting of the justice in that particular court. What the rule enables the justice to do is formally to grant the order in open court and to attach a condition that the probate or other document of title should be produced subsequently. Now take it the justice is present, and will not be present again for a month. This rule would enable him to grant the order and attach a condition subsequently, on compliance with which he would receive from the clerk the written transfer which the judge had made in court. I do not think there is the danger which the Senator suggests of a man being enabled to go on for a year or to go very far at all beyond the next court day carrying on a trade or business that he was not legally entitled to carry on. I think this is simply in recognition of the infrequent sittings in certain areas, and the justice should have power to grant a transfer conditional on the proof being produced to the clerk that the transfer will be given to him.
CATHAOIRLEACH
Then why did they not say "at the next sitting of the court"? The rule sets out "subject to the subsequent production." That might go over a whole year.
The "next sitting of the court" might put the man out of trade for a month.
CATHAOIRLEACH
He would be granted his transfer subject to producing the document at the next sitting of the court. No matter what the time is here, short or long, he is entitled to carry on business without the document.
That is the whole value of the rule—that he is entitled to open his shop.
CATHAOIRLEACH
He is entitled to open his shop, and he need not produce the document, and all the time he is carrying on the trade.
That is the whole value of it; that is his protection.
CATHAOIRLEACH
The old practice used to be subject to the production of the document before the clerk of the Petty Sessions or whoever was named in the order. Here it is left at large. At the same time I would advise the House not to press their objection because I think the ventilation of this matter will induce the justices to put on a limit of time during which they will allow the man to trade before producing the document giving him title or administration. I suggest to Senator Brown that perhaps the ventilation of this matter will be sufficient. If we do not strike out this rule, if it is not gone as a result of our deliberations, I think the ventilation of the matter will be quite sufficient.
I ask leave, in the circumstances, to withdraw the proposal not to approve of Rule 151.
The next rule is Rule 171. This is with reference to the power of the justice to state a case. The justice has power to state a case under one of the sections of the Courts of Justice Act. I think under the Courts of Justice Act his refusal to state a case, if he made an order, would give a right of appeal. Rule 171 is taken verbatim from Section 4 of the Act of 1857, which gives power to justices to state a case, but by the next section, Section 5 of that Act, if a justice refused to state a case there was an appeal to the High Court. I do not see why, if they put in Section 4, they should not have put in Section 5.
Would they be entitled to do it? Would it be for the Rule-making Committee connected with the District Court to arrange how a mandamus could be asked for to compel the District Justice to do something?
CATHAOIRLEACH
Rule 171 is simply an abstract from an existing Act of Parliament. That Act of Parliament in the next section goes on to provide for an appeal or an application to the High Court. What looks so strange is that they should have gone out of their way unnecessarily to insert what is already the law and make a rule of it and not put in a supplement, namely, the right to apply to the High Court where there is a refusal.
Would it be their duty to put in a supplement?
CATHAOIRLEACH
I do not think they should have put in either, but when they put in one they should put in both. It is already an Act of Parliament.
Then it is not so much the omission as the commission? This is superfluous?
CATHAOIRLEACH
It may be contended later on that because it is not in the rules the right of appeal is gone. They have gone out of their way to turn into a rule what is already a section in an Act of Parliament; they have incorporated it in their rules.
I think they are practically directed by the Courts of Justice Act to make provision with reference to a case stated. Section 91 sets out:—
"Such Rule-making Authority may at any time and from time to time after the passing and before or after the commencement of this Act make rules to be styled ‘District Court Rules' for carrying into effect this part of this Act (except the hearing by the Circuit Court of appeals from the District Court and the hearing by the High Court of cases stated by the District Court), and may annul or alter such rules and make new rules. In particular rules may be made for all or any of the following matters, viz.: for regulating the sittings and the vacations and the districts of the justices and the places where proceedings are to be brought and the forms of process, summons, case stated, appeal or otherwise, and the conditions which a party who requires a case stated or an appellant must comply with in civil cases or in criminal cases or in licensing cases...."
CATHAOIRLEACH
That is not obligatory at all. That sets out "may." It is only the form for carrying out that part of the Act. It does not mean the statute itself. I do not see what we want with Rule 171 at all.
I think it would be quite safe under the Courts of Justice Act, which gives a right to state a case, and the right of appeal from any of the justices.
CATHAOIRLEACH
I think the rule is only calculated to confuse and mislead. It deals with all the machinery for a case stated and then suddenly leaves out the power conferred on a person, who is refused by the justice, to apply for a mandamus.
Section 5 of the Summary Jurisdiction Act is law, and under that section a party is enabled to apply to the High Court for a writ compelling a justice to state a case.
CATHAOIRLEACH
Rule 171 is already in an Act of Parliament.
Rule 171 was matter that clearly pertained to the District Court. The Committee took Section 91 of the Courts of Justice Act as their guidance in the matters that they were to make rules about. It did not seem to them that the making of provision for a person to enable a man-damus to be issued to compel a justice to state a case was belonging to their Committee; that it was rather a matter for the Committee of the High Court to make arrangements for.
CATHAOIRLEACH
We do not suggest they should have made arrangements or any rules about it. What we do say is that when they make any arrangements about a case, and they simply repeal the statute, they are calculated to mislead the public by leaving out the other part of the statute. There is nothing about procedure in Rule 171. That is simply quoting a statute.
It sets out the effect of the statute in so far as it pertains to their court, but to go beyond that and set out Section 5 would be really dealing with matter that is not strictly District Court matter but rather matter for the High Court Committee.
CATHAOIRLEACH
I think there is a real danger of litigants being misled. In Rule 171 the Committee go out of their way to say that they cannot refuse the application where it is made under the direction of the Minister of State. It would convey the impression, I think, that they have an absolute discretion as to whether they should grant or refuse a case stated, and that discretion was only limited by the power conferred on the Minister of State. I think the rules are better without it. Unless you are advised there is some real object to be gained by keeping it in, I would recommend the House to reject it.
As regards Rule 180 there is also a verbal alteration required. It says: "No action or proceeding in the District Courts shall be treated or considerd as invalid on account of any verbal or technical error in same, and a justice may decide and determine what is a verbal or technical error or mistake in any action or proceeding, but all errors or mistakes which have not a tendency to mislead the opposite party shall in all cases be deemed merely verbal or technical." The objection which the Committee had to that rule was that the concluding words confer by implication on the justice the power to amend errors or mistakes of a verbal or technical nature, even though they have a tendency to mislead the opposite party. The rule would be all right if the concluding words were omitted.
CATHAOIRLEACH
It gives the justice power in every case to determine what is a verbal or technical error, and then it goes on to say: "every error or mistake which is not calculated to mislead the opposite party shall be deemed to be merely verbal or technical." Therefore the justice has power to decide that it is not material, although it is proved to be calculated to mislead the opposite party. We do not think that the District Justice should have any power to amend an error if he were satisfied that it was calculated to mislead the opposite party.
Surely he has not under the rules?
CATHAOIRLEACH
Yes. If the error or mistake has not a tendency to mislead he must rule it out. Therefore, the discretion given to him must cover something more than that. He must have discretion in cases which have a tendency to mislead. It is laid down broadly that every error or mistake which is not calculated to mislead must be deemed to be verbal or technical. If there is jurisdiction over and above that it must be in cases in which the error is calculated to mislead the opposite party. We do not think that he ought to have any power to amend in cases where he is satisfied that it is calculated to mislead.
I will convey that view to the Committee.
CATHAOIRLEACH
I would like to have your own view.
I would prefer to act merely as a channel in this matter.
CATHAOIRLEACH
The next objections are those in the name of Senator Sir John Keane.
My objections come from an experienced source, but I do not know what the legal view will be of them. As regards Rule 7, which I propose should not be adopted, it excludes the public from the taking of depositions in indictable offences. This appears to be an innovation. Surely, a court in which depositions are taken on indictable offences should be open.
CATHAOIRLEACH
The object, I take it, was that very often the ends of justice would be frustrated if, on preliminary investigation by a justice, to ascertain whether he should send the case forward or not, he had not the power to hold it on certain conditions in camera.
It might, for instance, be necessary to go into a sick man's room to take a deposition.
Is the old practice being continued?
CATHAOIRLEACH
I think that this is new.
Has the old arrangement proved undesirable?
The procedure is the same as it was. A justice, under the rule, is enabled to close his court. Discretion is given. In fact and in practice, that discretion is only exercised in sexual cases of a revolting nature where it is not considered in the public interest that there should be publicity. Of course, if there was any tendency to use it otherwise than in eminently proper cases, it would be a case for alteration. You have either to define strictly the cases in which the court may be closed or leave a general discretion, in full confidence that it will be exercised properly by the justice.
Then I will not pursue the matter further. My next point is in regard to Rule 11. There is a proviso in paragraph (a) by which a Peace Commissioner, in making a remand, shall remand to the next District Court of the court area in which he is then sitting. Take the case of a man who is remanded, say, the day after the court has sat and there remained a month before the next court. That means that he would be confined, say, in the county gaol on remand for three or four weeks, and he would have no remedy except to apply to the Supreme Court for bail. A case lately came to my notice in which a farmer was arrested for abusive language and the most trivial assault. He was incarcerated in Cork for three weeks, although on trial he was only fined £3, a conviction which was quashed on appeal.
The Peace Commissioner has only power to remand in custody in indictable cases and not simply in summary cases, as the Senator indicated.
The case I mentioned would not be an indictable offence—abusive language and assault.
CATHAOIRLEACH
The whole rule is covered by the opening words: "in all cases of indictable crimes and offences." I think that that means "indictable crimes and indictable offences." If that is so the Senator's case does not come within it.
That is my opinion also.
I must have been misled, and I withdraw the objection. In Rule 15, it is set out that the service of the summons must be at least seven days before the trial. My first point is that it is not necessary to allow seven days for the service of a summons. Four would be sufficient. My second point is in connection with the provisions directing that the summons must be served upon the person to whom it is directed or by leaving a copy for him with the husband, wife, child, father, mother, brother, sister or any other relation, not being under 16 years of age. Judges have held that the provision, "not being under 16 years of age," applies to a man's wife, and unless the summons server sets out that a wife with whom he has served a summons is over 16 years of age, the service may be held to be bad. There was one case where a judge would not give a decree because the summons server did not set out that the wife was over 16 years of age.
CATHAOIRLEACH
What country was that in?
In the Free State.
This is a modification of the practice under the Petty Sessions Act of 1851, providing that the summons be served seven days before the court at which the case is to be heard, and that it shall be entered with the clerk three days before the hearing. The time was indefinite in the old provision. What was required previously was that it should be served in a reasonable time before the hearing, and it was considered better to prescribe a definite number of days before the hearing.
Four days will be enough.
That is a matter of opinion. The Committee apparently did not think so.
CATHAOIRLEACH
I think this refers to criminal procedure all through?
It does, practically, or to very small debt cases.
CATHAOIRLEACH
In a simple question as to the length of time that ought to elapse before the hearing of the complaint I think we might wisely accept the view of the justices themselves. They have experience of how it works; we have not. I myself would not like to pronounce any opinion upon it, but I think unless there was some real transparent hardship in it, which I do not think the Senator has pointed out, it is better to leave the rule as it is.
I withdraw my objection to that rule. Rule 25 deals with the taking of depositions, but it does not state that the depositions shall be in the words of the deponent. That was a condition that Chief Baron Palles always insisted upon. He always required that the deposition should contain the words of the deponent, and not a summary of his evidence. I think there is sufficient justification for inserting such a provision in this rule.
CATHAOIRLEACH
Do I understand you to say that your opinion is that the law, as it at present exists, requires that to be done?
Yes. Furthermore, Chief Baron Palles always required magistrates to comply with that.
The existing form is provided for in the schedule.
CATHAOIRLEACH
What I imagine the Chief Baron must have said was, that so far as was reasonable, the deposition should be taken down in the words of the deponent. If you were to give the ipsissima verba of all witnesses the results would be very startling sometimes. I doubt if it ever went further than that.
You do not think there is anything in that?
CATHAOIRLEACH
Do not take me as saying that, because I really do not know whether there is any law on the subject.
I think there is no law. It is really a counsel of perfection. It would be no harm to provide in the rules that the deposition should be in the words of the witness, as far as possible.
There would be danger if it were only a summary.
CATHAOIRLEACH
I do not think any court would sanction a summary. When the depositions are written out they are read over to the witness, and if he does not like the way in which his sentiments have been expressed, he can take objection to it.
He may be too frightened.
CATHAOIRLEACH
I agree, but I think any well-regulated District Justice would see that, as far as conveniently right and proper, they were transcribed in the language of the witness himself. I think it is a very important matter for you to ventilate, because experience will develop, and necessarily develop, mistakes in all these rules, and the parties will have to come here and to the Dáil later on to get these rules amended. That is inevitable; the wit of man cannot prevent that. It is only experience that develops these blots. These discussions are useful because they draw the attention of the justice to these points, and he will be careful to see that they are strictly carried out.
Then I beg to withdraw my objection to that rule. Under Rule 48 it appears that a recognisance would take priority of a mortgage. That seems rather arbitrary, that a casual undertaking should take priority over a solemn contract.
CATHAOIRLEACH
In other words, it is giving priority to Crown debts.
The Senator can take it from me that this makes no change in the existing law.
If that is so, I am wrongly advised. I beg to withdraw my objection to the rule. In regard to Rule 182, I have an objection, on a more practical point—to allowing an hour for an adjournment if the justice does not turn up. I have heard complaints in more than one case where District Justices are rather inclined—I am not making general charges at all— to regard this as an hour of grace. Solicitors have been complaining about this. In one case I had complaints from solicitors that they were kept hanging about waiting for the District Justice to turn up. I gave the Minister particulars of that actual case. The complaints I received, however, were not confined to that one case. The District Justices in some cases arrive three-quarters of an hour late and after a very short time adjourn the court for lunch. The court resumes again at 3 o'clock, and in some cases drags on with the aid of candle light. I am not putting forward an exaggerated case, because this has actually occurred. I ask is it necessary to allow an hour as the standing practice for the adjournment. Could not the period be a half-hour? A solicitor who complained to me suggested that a quarter of an hour would be ample time to allow. I think that an hour is too long. Solicitors are very busy men and cannot afford to be kept hanging about for an hour waiting for the District Justice.
CATHAOIRLEACH
You are afraid that the hour will become the rule and not the exception.
That is what I am informed is likely to happen.
Would it not be as great a hardship on the witnesses to be kept waiting?
This rule is evidently meant to provide for such a thing as a break-down of the District Justice's motor car and for unavoidable delays of that kind. I imagine that if a District Justice got into the habit of being an hour late he would probably be hauled over the coals.
I think that Senator Brown has pointed out that the rule is simply inserted to meet the case of a justice who meets with a mishap on his way to the court, and who because of that might be late. If that occurred and that he did not arrive within an hour, then there is the direction for the clerk to adjourn the court. The only way that Senators can deal with abuses is to see that they reach the proper quarter when notice will be taken of them. I think this is a rule that can be justified by the circumstances of the time and the large areas which the District Justices have to cover.
CATHAOIRLEACH
I think it is not unreasonable. I think it would be a calamity if because the District Justice was late, say, for twenty minutes, that the court should be adjourned: that the whole day should be thrown away and that professional men, witnesses and others would be obliged to go home.
I think half an hour would be sufficient time to allow. If a District Justice is an hour late it upsets the whole day as far as professional men and others having business at court are concerned. As I have been accommodating in regard to other amendments I moved, I think this one might be re-considered.
I think an hour is not too long to allow for the arrival of the District Justice. If the court were to be adjourned within any shorter period it would, I suggest, be a great inconvenience to witnesses and others who might have travelled very long distances in connection with cases to come before the court.
This discussion reminds me of the story of the schoolmaster who, when he could not find the culprit, beat all the other pupils. Here it seems to be a case of punishing the witnesses.
It seems to me that this is a disciplinary matter of very great importance. I think there should be some regulation made in connection with it. I would like to know if there is any official record made in connection with the attendance of the District Justice.
The Registrar of the Court keeps a record.
Does the record show the hour at which the court was opened? I feel that there is some tightening up required in this matter.
As regards disciplinary action in the case of a District Justice, if he were, say, inconveniencing the public consistently, that might form the grounds for complaint on my part to the Attorney-General and the Chief Justice, whose joint certificates are necessary as a condition precedent to his removal.
That seems rather heavy metal to employ in a case like this. Who, I ask, is going to report this? The people who have knowledge of it are solicitors, and, obviously, they would not like to make a report.
Well, then, they cannot have it both ways. They must either complain or suffer.
Solicitors naturally like to keep in with the justice as much as they can, because, without being unjust to them, he could discriminate and be very annoying to them. Obviously they would not like to report, and there is no one else really to report. I feel that there is something in this point I am making, and that there ought to be some tightening up in the rules.
CATHAOIRLEACH
I agree that solicitors would be very slow to complain because they might think that the District Justice would take it out of them later on. I do not think that applies to the public. If witnesses were delayed for an hour they might have something to say about it. I think, however, if the District Justice developed that as a habit he would get a very bad reputation. I do not think such a thing as that could last very long. As between an hour and a half-hour, the difference, I think, is not of sufficient importance to ask the Seanad to hold up this rule.
There is one point I would like to make, and it is that after March next a discussion such as is taking place now would be in doubtful order because an amendment was inserted here in the Courts of Justice Act to the effect that after March, 1927, the salaries of these gentlemen shall be on the Central Fund, which is a way of emphasising their complete freedom from anything in the nature of Ministerial control.
That is all the more reason why this rule as it stands should not be approved of. When the salaries of the District Justices come on the Central Fund, of course it will require a resolution of both Houses to remove an unpunctual justice from office. That is too far-fetched for words. Of course if a man is fundamentally lazy no rule is going to improve him.
CATHAOIRLEACH
If you rule this out, then there will be no rule.
But you could make a substitute rule.
CATHAOIRLEACH
I think you would lose more than you would gain by the deletion of this rule. Under this rule if the District Justice is an hour late the court is to be adjourned, but if you wipe out the rule then there will be no limit as regards time on the District Justice. There is no other rule on the subject and we have not the power to compel the Rule-making Authority to make another rule.
I never assumed that by rejecting a rule that we could not have a substitute rule. The whole thing, I suggest, is rather chaotic.
CATHAOIRLEACH
I will now put your objection to the House, Senator. It is: "That the Seanad do not approve of Rule 182."
I wish to make one comment, and without prejudice as to the effect of knocking out any one rule, and it is that I particularly regret the dropping out of Rule 93, because, as I am advised, only from that rule do the justices derive, or will they derive, the power to give costs, and the whole position with regard to costs is affected by the deletion of that rule: "Shall grant such costs as shall be in accordance with the scale set forth in the Second schedule." I am told that the schedule remains in mid-air, and I am advised that the rule is necessary to establish it beyond question that there is power in the District Justices to grant costs.
CATHAOIRLEACH
Is there no provision in the Courts of Justice Act conferring on the District Justice the power to award costs?
Only by reference to rules. It says that rules may be made.
CATHAOIRLEACH
Rules may be made that he exercise the power, but the power itself is, I think, conferred by the Act.
I do not think that there is any section that could be held to confer the power. Section 91 sets out the different matters to be dealt with by rule, and amongst other things mentions the costs that the District Court Rules will carry into effect.
CATHAOIRLEACH
The procedure of the District Court generally, including the question of costs. What I say is that questions of costs cannot arise except the District Justices had power to impose costs. I have no doubt whatever they have in virtue of their jurisdiction power to impose costs. If they have not, it is not given by Section 91. That section of the Courts of Justice Act only says that the rules may include questions of costs. That could never by itself confer upon them the power to award costs.
If that does not give it I am advised that it is not given elsewhere.
CATHAOIRLEACH
I do not say that it does not give it, but it is a very extraordinary way of conferring power. That only gave the power of procedure as to question of costs. It is not a power to make rules giving the right to impose costs.
If the Seanad were prepared to alter their view on Rule 93 I would certainly undertake to inform the Committee that there was a very strong opinion held here in favour of a scale of witnesses' expenses such as exists in connection with the other court.
CATHAOIRLEACH
I am very anxious to assist you in every way, and I do not think that that is an unreasonable suggestion.
Rule 9 says that the District Justice may give costs, and Rule 93, which we are asked to leave out, says that he may award witnesses' expenses. One rule deals with costs and the other with witnesses' expenses.
CATHAOIRLEACH
All these rules were based on the assumption that the District Justice has jurisdiction to award costs. Where does he get that? It cannot be under Rule 93. In Rules 80 and 89 and others there are also references to costs.
Rule 93 is the only one which deals with witnesses' expenses.
CATHAOIRLEACH
Read the last two lines of it.
"And grant such costs as shall be in accordance with the scale."
We may take it, then, that witnesses' expenses are included in costs.
CATHAOIRLEACH
No, the Minister's point is that a distinction is made between them, that this rule does two things: it gives power to award witnesses' expenses and it gives a second power, namely, to award costs. The costs are to be in accordance with the scale, and the witnesses' expenses are not. That was the objection taken to them. The Minister apparently is under the impression that unless they have the power to award costs given by that rule they have not got it anywhere else, and the curious thing is that all the antecedent rules include the question of costs.
Would it not be a wise thing to act on the Minister's suggestion?
CATHAOIRLEACH
I think it would be better.
I have a more far-reaching suggestion to make. I am advised, whatever the result, to make a last-minute plea to the Seanad as to the resolution passed in regard to these rules. There is exception taken to eight rules. To about three of these I think the objection is not very strongly held, and in connection with five or six there is a definite and emphatic objection. I would undertake to adopt the Seanad's point of view and to use such influence as I can muster with the Committee to get them to annul these rules, and either to leave them out entirely or to bring up other rules based on the views that have been expressed here to-day, but if I can I would be very anxious to secure a general resolution of approval of the rules. When eminent legal authorities can differ on the point there does seem to be very real doubt as to whether the effect of the elimination or the disapproval of certain rules is not to invalidate the entire set of rules, whether it is not like the Ten Commandments where in offending in one you offend in all.
The Attorney-General, so far as he has been able to examine the question, is certainly of opinion these rules should be one body of rules, and I approached the Dáil and the Seanad, and I sought by resolution to obtain approval of these rules as a body. He feels if I fail in respect of certain rules that the rules fall as a whole. I always contemplated that the rules should be considered in the greatest detail, one by one, but my view of what must happen is that the resolution of approval would have to be rejected for reasons stated, these reasons being based quite definitely on an objection to certain of the rules. But I thought, and have been advised, that the rules stood or fell as a whole. Now, if there is even a substantial doubt about that, clearly the result of the deletion to-day of these six or seven rules would be that the District Court would be without rules, perhaps until January or February next. On the other hand, if the Seanad were willing to pass a general resolution of approval of the rules, I give the most definite and binding promise that I would approach the Committee, adopting fully the Seanad's point of view of these eight rules, and endeavour to secure either their complete annulment or their alteration to meet the opinions that are held here with regard to them.
I want a ruling on a point of order, because this is a question affecting privileges.
CATHAOIRLEACH
I do not see how we can possibly pass a resolution approving of these rules as they stand in view of the fact that we have already rejected eight of them. I am very anxious to facilitate and to help on the business of the Government in any way I can, but there is a limit, and I would much rather see the country put to the inconvenience— which is really not very great—of carrying on for another few months without these rules, than that we should surrender our constitutional rights and privileges in a matter of this kind. The Circuit Court Rules have to be hung up. I do not believe that the hanging up of them will cause inconvenience to anybody, and in view of the fact that the District Courts have been going on for two or three years without these rules surely no catastrophe will happen if they have to do so for another few months. I really cannot accept that proposition. If I entertained any doubt whatever as to the soundness of the ruling I have given on this matter on my responsibility as Chairman—and when I say this I desire to speak with all respect of the opinion of the Attorney-General, whose opinion I very highly value—it might be different, but I must say on this particular matter that I feel absolutely free from any doubt. One's common-sense is the best judge, and it would be a revolting proposition to common-sense to say that in the Circuit Court Rules, which number 500, if one, by a clerical error, by a misprint or by a slip on the part of the draftsman, expressed the contrary to what is intended and we reject it, as we would be bound to do, the whole 499 of these rules go with it. To my mind the thing is not really capable of being argued. I think I ought to read the statement made by Sir Lonsdale Webster, K.C.B., who has been Chief Clerk in the House of Commons for a good many years. The question he was asked was:—
Whether, in accordance with British practice a motion to approve the Rules of Court, pursuant to Section 101 of the Courts of Justice Act, 1924, would be open to amendment by way of leaving out a specified Rule or Rules, or whether it would be incumbent on the Seanad to approve such Rules in globo?
This is his answer:—
My answer to Mr. O'Sullivan's question would be that a motion to approve a set of rules would be open to amendment by way of leaving out a specified rule or rules. The effect of an amendment or amendments being agreed to would be that the final question would be for approval of the rules, other than those omitted by amendment or amendments.
I have only seen this for the first time to-day, but that is the course that commended itself to me and that a week ago I advised the Seanad to carry out. I cannot, therefore, ask the Seanad to pass a resolution approving of a set of rules some eight of which have already been rejected. If I am right, no harm is done by rejecting these eight rules, because they can avail of the remainder and they can go on with them at once.
I formally move:—
"That the Rules of the District Court, as presented, be approved, omitting those in reference to which the House has expressed its disapproval."