Vol. 14 No. 36
I move:
"That Seanad Eireann hereby approves the Circuit Court Rules which were laid on the Table of the Seanad on the 12th day of March, 1930, and resolves that it is expedient that the said Rules shall come into operation on the 1st day of January, 1932."
I second the motion for the purpose of pointing out to the Minister that these rules contain a scale of costs which were criticised by two members of the legal profession whose views on many matters are very diverse — Deputy Wolfe and Deputy Ruttledge. They condemned the scale of costs as excessive for the country at least. I want to ask the Minister whether, when these rules have been in operation for some time and there is an opportunity of seeing how they work, there is any probability that an opportunity will be given to revise the scale of costs?
I rise for the purpose of asking the House not to pass this motion. The question of the Circuit Court Rules has been engaging the attention of the Oireachtas for a long number of years. The history of them is far from satisfactory. In 1926 the late Minister for Justice submitted to both Houses rules dealing with the different courts. When the rules came before the Seanad, the House, on the advice of the then Chairman, Lord Glenavy, refused to pass the necessary motion of approval. The rules were then referred to a committee of the House, of which I think you, Sir, were a member. The committee went carefully through the rules and made certain recommendations. A report was submitted to the House, but nothing definite was done. We were told by the then Minister for Justice that we had either to accept the rules in their entirety or to reject them; that we could not amend one single rule. The result is that no rules have been in operation. I now come to the important fact which has led me to disagree with the motion before the House.
In the original Rules for the Circuit Court provision was made so that poor people would get legal assistance in the courts. That matter was dealt with under Rules 72, 73 and 74. In the case of poor people, whether plaintiffs or defendants, and who had not sufficient means to enable them to employ legal assistance, the Rules I have referred to provided that they should be entitled to get legal assistance. The Committee set up by this House in 1926 approved of that provision.
In the year 1928 the present Minister for Justice submitted a further draft of rules for the Circuit Court. These rules were not accepted by the House. It was then decided by both Houses to set up a joint committee to consider these rules. The committee met and submitted a report. It recommended that rules 72, 73 and 74 be approved of with the addition that the property limit would be increased from £10 to £25. That meant that a poor person who was not possessed of means other than the tools he used at his trade or a machine in the case of a poor woman who earned her livelihood by sewing, would be entitled to get legal assistance. Originally it was laid down that a person who had not property beyond the value of £10 would get legal assistance. The joint committee amended that by recommending that the £10 should be increased to £25. The committee was composed mostly of lawyers and made that unanimous recommendation.
An extraordinary thing has now happened. In the latest set of rules which we are now asked to pass on the motion of Senator Milroy there is no provision whatever for legal assistance for poor persons. At least that has been the result of the very thorough search I have made of the rules. I was a member of the committees that considered the rules. The late Lord Glenavy and other legal gentlemen with whom I was associated on those committees are my authority for saying that in Great Britain, America and other countries provision is made in the court rules of these countries whereby poor people are entitled in certain circumstances to have free legal assistance and advice. I ask the House not to take such a retrograde step as to pass the Circuit Court Rules before us now in view of the fact that the provision enabling poor persons to get legal assistance is omitted from them. In a previous set of rules approved of by two Ministers for Justice, by a committee of this House and by a Joint Committee of both Houses that provision was unanimously approved of. In view of the fact that such a provision is omitted from these rules I ask the House not to pass this motion, and I think in view of what I have stated that I have made a strong case in support of my proposal.
I understand from information I have received that the legal people have certain objection to this, that the legal people say that a judge has no right to say to a solicitor: "I ask you to defend this poor person or plead for him." But we must not forget this important fact, that the solicitor is an officer of the court, that the State provides at its own expense costly buildings for these people to practise their profession in, that the State makes an annual grant of a few hundred pounds in aid of their society, that it provides them with refreshment rooms, robing rooms, and other paraphernalia of the court. I am not saying that we should not do it, but I say if the State is prepared to go as far as it can to assist these legal gentlemen in the carrying on of their profession that at least the poor man or woman who is unable, through force of circumstances, to pay for legal assistance, ought not to be debarred in a Christian country from getting it. In all other great countries I understand there is this provision, and why provision has been deliberately cut out of the present Rules I cannot understand. It may be in the Rules. If it is, nobody will be more pleased than I am, but I have spent nights looking for it, and I could not find it. For that reason I ask this House not to pass these Rules until such time as provision is made in this respect in the Rules.
There is really no necessity for passing these Rules at the moment or sanctioning this scale of costs, which, I wish to repeat, is excessive. It is a scale of costs which was arranged during a period of inflation, and I do repeat that in my opinion that scale of costs is too high. Seeing that we passed a measure intended to be a temporary measure, legalising a practice which has been followed since 1924 in relation to the cost of the Circuit Courts, I do not think that there is now an urgent necessity for altering the practice which has obtained up to the present, and substituting a new practice and a new scale of costs. To that extent I agree with my friend Senator Farren. I also agree with him in reference to the costs to poor litigants, but that is a matter which is more difficult than it appears on a casual glance. In the first place, it is not desirable to stir up litigation. The thing to be desired is to have as little quarrelling and as little litigation as possible. There may be a poor person with a bad case and a very sanguine disposition, and that poor person would make the lives of judges and lawyers miserable. So that you see if you have free legal assistance you must have some sort of tribunal to determine beforehand whether the poor person ought to get the legal assistance or not.
We do not object to that.
The tribunal may say that the poor person has no case or no reason to worry a wealthier person who would be the defendant in the poor person's action. The tribunal might say, though the sanguine poor person might not believe it, and the sanguine poor person might get a lot of other people who would not believe it either, that it was not a case for assistance, and the function of that tribunal would not be an enviable one. I say that is naturally a difficulty which is in the way, and it is a matter to be considered. I have known many cases in which poor people, if they happened to be rich, would perhaps be enabled to pursue their rights, or their supposed rights, to success or to failure. They would either gain something by pursuing their case still further, or they might lose considerably. There are cases in which poor people are at a disadvantage, but I have known very few cases in my experience, which is rather extended now, in which a poor person, having a good case, was obliged to abandon that case for want of legal assistance. The solicitors' profession, and the profession to which I belong, are not perhaps exactly deserving of the censures that are sometimes passed upon them. They are more altruistic, and in some respects more generous, than other people would be inclined to imagine, and I hope the House will take it from me that I have not seen any great miscarriages of justice. Perhaps there have been miscarriages of justice that have not come to my notice. I have not seen any great wrong ever inflicted by reason of the fact that a poor person had no money to bring a case, provided it was perfectly obvious that that poor person had a good case.
There was an observation which was made by Senator Farren with which I venture to disagree. He seems to think that courts of justice and dining-rooms are made for the lawyers. It reminds me of the lines in Burns,
"Courts for cowards were erected, Churches built to please the priest."
Courts are not made for lawyers, robing rooms are not made for lawyers and the dining-rooms in the courts are not made for lawyers. They are made for the convenience of the public. It is in the interests of the public or the litigants that the robing rooms and the dining-rooms have been made. It the courts were not built the public would not have the assistance of legal men. Lawyers do acknowledge that we do receive considerable consideration from the public and from the State in all countries, but what we say is that we are fully deserving of every consideration.
I am in a rather doubtful position with respect to this motion. It is quite clear that something will have to be done about these Circuit Rules because the thing cannot go on as it is going on now without Rules, and it would take a very considerable time to frame a new set of Rules which would give satisfaction to everybody. I agree that there are certain things in these Rules that ought to be amended. I think the scale of costs is too high, and I have formed that opinion, not from my own personal experience, for I have not had much experience of that kind of costs, but I formed it from the opinion of two members of the Joint Committee on the Courts of Justice Act who are very well known solicitors, and in very large practice in poor districts. They assured me that these costs are too high, but, on the other hand, I do not see how we can help approving of these Rules for the present, because it is not right that these Courts should go on without any Rules and without any possible way of fixing costs on a proper scale. I am therefore going to vote for the approval of these Rules, although I do not myself approve of all the Rules.
The statement made by Senator Brown is certainly a very significant and important one. It bears out what has been stated by much less informed people very generally in regard to the new scales of costs. Senator Comyn indicated to us on the last day we met that he intended to show various cases in which the costs were too high. We were waiting for that revelation, and instead of that he proceeded to defend——
On a point of order, I never said that I intended to show a number of cases, and I do not defend the scale of costs.
He certainly did say that in some cases the costs fixed were too high. I thought he would give us the benefit of his information on it. I think the general impression was, in the Oireachtas at all events, that the reorganisation of the courts would have the effect of reducing legal expenses which were already considered to be exorbitant. The ultimate result is, in the opinion of those who are in a position to know, that the scale of costs is now higher than it was before the courts were reorganised, and that law is becoming a more expensive commodity than ever before. We are now asked to stereotype and endorse that.
The question of giving relief to poor persons, either as plaintiffs or defendants, is, of course, a debatable one. It can be argued, where people are inclined to be very much disposed to go to law, that they should not get undue encouragement in that respect. At all events, in Great Britain there is a provision for such assistance, and, I understand, in America also. I do not know that the law courts have been abused in England in cases of that kind. It is significant that in this Report which was presented to both Houses on the 26th June, 1928, from a Committee presided over by an ex-Lord Chancellor, there should be this paragraph:
"Rules 71 to 73, both inclusive, which deal with ‘proceedings by and against poor people,' should, in our opinion, be amended by increasing the property limit from £10 to £25."
Whatever the principle, whether it was good or bad, a Joint Committee of both Houses, on which there were three or four lawyers at least, not only approved of the original Rules in this respect as drafted, but actually improved it from the point of view of the poor person. The only people who took exception to it were the lawyers who drew up the Rules which are now before the House.
I think the Oireachtas should not be placed in the position of approving of Rules which very definitely turn down a provision approved of and amended by a Joint Committee of the Oireachtas. If the Oireachtas is to have any control as regards the protection of litigants in the court, it should insist on this particular item which was given special consideration and which a Joint Committee went to the extent of actually amending. This provision was in all previous sets of rules submitted to the House. It was approved of in an amended form, but it is turned down by the Rule-making Authority. I think that action of the Rule-making Authority in itself should be sufficient to justify the House in refusing to pass these Rules until at least that provision is reinserted and until such time as the matter to which Senator Brown has drawn attention is considered. If we pass these Rules now there will be a general inclination to let them lie. No fresh account will be taken of them for years. Meantime scores of poor litigants will have to face these exorbitant costs, as well as the delays that are taking place and the adjournments from month to month. It will make it impossible for anybody to get justice except at an exorbitant cost. It is not the litigants who drag out the cases at all. It is the lawyers. It is an absolute study of a most fascinating character to see the manner in which lawyers can drag out cases unnecessarily. One has only to look at the proceedings in the courts recently in regard to a very interesting case. There you have one of the most amazing examples of ca' canny that has ever been exhibited in any country. If a bricklayer, a carpenter or anybody else practised anything of that kind, he would be sacked before he would be half through the job. But because there is a pool from which funds can be drawn, the elastic consciences of the lawyers make them think that they are quite justified in drawing to the very last dregs out of that pool. It would not matter so much if they confined their dragging-out tendencies to a pool of that kind. But they are little less conscientious when it comes to a person of moderate means. They are never in a hurry to finish the trial on a particular day. They want to cross-examine at length. They cannot go beyond half-past four, and they have got to get refreshers every day. If an ordinary tradesman did that——
There would be a Constitution (Amendment) Bill to deal with him.
We are the only people who can protect the rights of the public in regard to the courts, and I think we should exercise that authority. We are told that we should sink everything in order to protect the life, the property, and the freedom of the individual. Here we are called upon to protect the rights and the property of tens of thousands of our fellow-citizens. We have been told by Senator Brown, a lawyer, that the charges are excessive. In face of that statement are we going to pass these Rules? I suggest that if we do so we shall be failing in our duty and that we will be incurring the very sincere censure of everybody who will have cause to appeal to the courts for justice while these Rules are in operation.
I would like to deal with one point that Senator Brown has made, and that I expect will be reinforced by the Minister. Senator Brown dealt with the necessity for passing the Rules at once because of the need that a schedule of costs should be available. The Minister knows now, if he did not know it before, how to get things done quickly. He can get the Rules amended in the way the House would desire, and he can bring them here next week or the week after. He can follow the example of the Customs Duties (Provisional Imposition) Bill and of the Constitution (Amendment) Bill. He can get the thing rushed through, and there need be no undue delay at all. The job can be done and the amendments can be made in accordance with the desires of the House, and the fears of Senator Brown need not cause any anxiety.
I think Senator Johnson is a little bit hasty. The Minister might introduce the clauses which Senator Farren says have been taken out, but a scale of fees cannot be rushed through in a week. It is perfectly impossible. Where costs of that sort have taken so long to fix, it would be impossible for the Minister to get them revised down to a scale to meet the wishes apparently of the Seanad in the time indicated. I think we ought to take it for granted that Senator Brown was right when he said that if we do not deal with this matter now we are going to create a very difficult situation. We ought not to let that view of the case go out of our minds. Everybody who has spoken here to-day has put up some objection to the costs of the Circuit Court as given in this motion, but nobody except Senator Brown has dealt with the question of reviewing them. I wonder would it not be possible for us to add something at the end of the motion that would bring these costs into operation, say, for a year? It would relieve the difficulties of the courts, and at the end of twelve months a revised scale of costs would come before the House. I think that that would be a reasonable thing. I do not know whether it could be done or not. It is for the Minister for Justice to say. But it would seem to meet the needs of the case. It would allow the costs to be certified during the next year, and it would seem to meet the wishes of the House that the scale should be revised and reduced, if possible, and the clauses to which Senator Farren has referred could be put in. I do not know whether it is possible to introduce such an amendment, but it would seem to be the only way to meet the interests concerned.
I think that Senator Johnson has shown, considering the history of the matter, a most astonishingly bad memory. Senator Johnson knows perfectly, or did know, because it was on his motion that these Rules came before the Dáil and the Seanad at all, that it is not this House that makes these Rules. It is not I who draft the Rules. It is not I who have got the slightest responsibility for the Rules. The Rules are made by the Rule-making Authority and I merely promulgate them. I have no power to alter in the slightest the costs, and if you reject these Rules you are not rejecting my Rules. You are rejecting the Rules which have been made by the Rule-making Authority. Senator O'Farrell, always humorous, where it is cheap to be humorous said that these Rules are made by lawyers for their own advantage, and that the litigant is not considered at all. Has he got the slightest idea as to who made the Rules? Has he got the remotest idea of the constitution of the Committee who drew up these Rules? I venture to think he has not. He said that these were drawn up by lawyers for their own advantage. The report will speak for itself. As far as the question of costs is concerned, these Rules were drawn up by the Rule-making Authority, and the question of costs was gone into with the very greatest care possible. For instance there were five Circuit Judges, two barristers and two solicitors. They gave up week after week of their spare time and they have done so for many years. They spent hour after hour and week after week in consultation, and produced the very best Rules that they could. You do not want even to be sufficiently courteous to them to give their Rules a trial. According to Senator O'Farrell, we should not even see them working for a year. You should judge, as I certainly would suggest you should judge, Rules and everything else—and this is what I have always put before this House and before the Dáil—in the operation. See them working. If they are working out unfairly you can alter them. Do not, because you happen to have a prejudice against lawyers, do wrong to the litigants of this country by depriving the Circuit Court, one of the most important courts in the country, of these Rules. That is precisely what you have been asked to do.
There are two ways of looking at costs. There is a certain scale of costs, that is the scale which is payable between solicitor and client. That is the scale which the individual pays to his own solicitor. There is the other scale. It is a scale between party and party, what the beaten side pays to the winning side. You have got two ways of looking at this question. One of them is that you take your party and party costs and have some relation to what in fact will be charged by the solicitor to his client. Remember this only deals with party and party costs and they must have some relation to the solicitor's and client's costs. In other words, if you win your action with costs you get a fair proportion of the costs that you have to pay, so that you will not, after a verdict has been given in your favour, discover when damages and taxed costs are paid that you are out of pocket. You must have a scale of costs in proportion to the costs which actually have been paid. If it turns out that these costs are too high that will be shown in the working, and in the working is the better way to look at it. To declare that the new scale of costs is higher than the old is entirely unfair. Take the case of over £100 which was always tried in the old High Court. The present scale is to be only two-thirds of the old scale of costs in every action over £100. To say that you are spending more is an argument that can only be put forward by somebody who is not cognisant with the facts.
I will deal with the last question, the Rules which dealt with free advice for poor litigants and which have been left out of these Rules. I would like in the first place to point out when these 1928 Rules were dropped there was no part of these Rules more bitterly criticised than those provisions, the very form in which the Rule was presented.
There was to be payment by result— the barristers or solicitors were to be paid if they won, and they were not to be paid if they lost. That is to say, a litigant fighting a poor person would have to pay the costs of the other side if he lost, but would not get anything at all if he won. That is conceived to be completely right and fair.
In my opinion it is a wrong principle to work upon—payment by results. It is very unsatisfactory indeed. I have considered this question of giving aid to poor litigants, and I am completely convinced that a Rule here saying that a litigant need not pay a solicitor in certain circumstances will not have the slightest beneficial effect, and will not help the poor litigant in the least. What the Senator wants is to have litigants, who have genuine bona fide cases, able to come to court and have their case fought out by a competent person. That is what the Senator wants, but will the Senator say what Rules included in these Rules would achieve that result?
Why did the Minister put them in in 1928?
I did not.
But the Minister approved of them.
I did, but I considered in 1928 that they would have fallen flat, that they would not have been of use to anybody. If this question of providing free advice for poor litigants is going to be seriously given effect to, it cannot be done in Rules of Court. It merely expresses pious wishes.
Then why take it out?
I have stated that payment by result is an entirely bad principle, and they were taken out on that account. They could not be put in except in the form of a pious wish, and there is no use served by encumbering these Rules with pious wishes. If this matter is to be considered seriously it would first have to be considered by the Incorporated Law Society, the members of the Bar Council and others concerned in order to see how far members of the two professions would be willing to be of help to poor litigants. You cannot compel any body of men to give help free of charge by expressing this particular wish in Rules of Court. You really might do more harm than good. As Senator Comyn pointed out, there is always the danger of speculative actions, possibly there are too many of them, in which bogus cases are brought forward and financed. That is another important matter to be looked into.
Do not cite me in support of your argument.
I do for once. I found for once that the Senator was arguing correctly.
I am astonished at the speech delivered by the Minister for Justice. He told us the Rule-making Authority consists of people who understand the Rules. That is a body composed of judges and the two branches of the profession. The legal gentlemen have had it all to themselves. The legal gentlemen who prepared Rules in 1926 did not think they were foolish Rules. They incorporated those Rules in the draft submitted to the Oireachtas, and these Rules were approved by the late Minister for Justice, Mr. Kevin O'Higgins. In 1928 the very same people, the judges and the two branches of the profession, sat down and considered the Rules again, and they prepared further Rules which are approved by James Fitzgerald-Kenney, Minister for Justice.
And you turned them down.
The Minister submits these Rules to both Houses and asks that they be passed. The judges and the lawyers are getting wise now. They were perfectly satisfied in 1926 that these were just provisions, and they were similarly satisfied in 1928. The then Minister for Justice approved of them, and, further than that, a joint committee of the Oireachtas—and it ought to be supreme both to the judges and lawyers—approved of the Rules, but the lawyers, who met at a later stage, disregarded what was done in 1926 and 1928, and disregarded the recommendation of the Joint Committee of the Oireachtas.
We also advised that there should be two honest men on the Rule-making Authority.
Yes, and, please God, when the time comes we will fight for that. I feel very keenly on this matter. I served on both Committees set up by this House. I consider that if this can be worked in America and Great Britain and other great countries, it can be worked in Ireland. I will divide the House on this matter.
You will not have it by defeating the Rules.
