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Seanad Éireann díospóireacht -
Wednesday, 27 Oct 1971

Vol. 71 No. 8

Courts Bill, 1971: Committee Stage.

Before we take up consideration of the Committee Stage of this Bill, I should like to indicate that I have ruled amendment No. 6, in the names of Senator Robinson, Senator Horgan and Senator Owens, out of order as not being relevant to the subject matter of the Bill as read a Second Time.

Section 1 agreed to.
SECTION 2.

Amendments Nos. 1, 2, 3 and 4 are cognate and amendments Nos. 1 to 4 should, therefore, be taken together.

Government amendment No. 1:—
In page 2, subsection 1 (a) line 20, to delete "the third column" and to substitute "column (3)".

These are merely drafting amendments. The identification of the column in the Third Schedule as column (3) is considered more appropriate than the use of the words "third column" since the column is, in fact, headed (3). The same applies to all four amendments.

I do not want to delay the House on what the Minister rightly calls a mere drafting amendment, but there has been a good deal of criticism of the way in which the Schedule to the 1961 Act has been amended in this very indirect fashion. It would be better if in future the Schedule could be re-enacted in this Bill rather than amending back to the 1961 Act.

I think the following amendment No. 5 will make that clear because the Fifth Schedule to the 1961 Act was so amended that there was only one reference left in it and that is now made clear by inserting a reference to the Attorneys and Solicitors Act, 1870. That is all that is left; the rest has been repealed since 1961.

I agree with the point made by Senator Robinson. It would be much more convenient, not merely for lawyers but for the general public, if instead of having to consult this Bill and then go back to consult the 1961 Bill, to look at the Schedule and see how it has been amended. If the Schedule, as amended, were made part of this Bill, it would make things easier all round.

It will have this effect because the reference to it here, which will come in under the next amendment, will be the only entry in the Schedule of the 1961 Act.

Amendment agreed to.
Government amendment No. 2:—
In page 2, subsection (1) (b), line 22, to delete "third column" and to substitute "column (3)".
Amendment agreed to.
Government amendment No. 3:—
In page 2, subsection (1) (c), lines 23 and 24, to delete "third column" and to substitute "column (3)".
Amendment agreed to.
Government amendment No. 4:—
In pages 2, subsection (1) (d), line 26, to delete "third column" and to substitute "column (3)".
Amendment agreed to.
Government amendment No. 5:—
In page 2, subsection (2), line 29, to delete "each place where it occurs in the third column" and to substitute "column (3) opposite the mention of the Attorneys' and Solicitors' Act, 1870, in column (2).".

As I said in reply to Senators Robinson and O'Higgins, this is a drafting amendment arising from the fact that the Attorneys' and Solicitors' Act, 1870, is now the only statute mentioned in the Fifth Schedule to the Act of 1961 in respect of which it is necessary to adapt a jurisdiction expressed in monetary terms. The other statutes or enactments of this nature which were contained in the Fifth Schedule have been repealed since 1961. They are: section 47 of the County Officers and Courts (Ireland) Act, 1877, the whole of the Labourers (Ireland) Act, 1911, the whole of the Public Roads (Ireland) Act, 1911 and section 25 of the Housing (Ireland) Act, 1919.

Amendment agreed to.
Section 2, as amended, agreed to.
Section 3 to 5, inclusive, agreed to.
SECTION 6.

Amendment No. 6 has been ruled out of order.

Question proposed: "That section 6 stand part of the Bill."

I accept your ruling, Sir, that the attempt to amend the Juries Act, 1927, and abolish the sex discrimination which prevents women from automatically being on juries does not fit within the terms of this Bill. Since the purpose of section 6 is to change the position of the juries in relation to the Circuit Court, so that there would no longer be juries in such courts, I thought this would be an opportunity to insert the amendment. It is a very important matter which should be changed at the first available opportunity. I should like to ask the Minister for some assurance, if he is prepared to give it, that this matter will be considered. It is no longer tolerable. It is not a minor matter. It is a very important matter that our criminal system and our civil system should be entirely reviewed by male juries.

The Senator should appreciate that the section deals with cases in which a jury may or may not be employed in court proceedings. It does not relate to the constitution of the jury. It is a separate point.

I appreciate that. I am not disputing the ruling.

Therefore, it does not arise under the section.

I should be grateful for the Minister's assurance that he will change the law in that respect and bring it into line with other countries where there is no sex discrimination in relation to juries.

The Committee on Court Practice and Procedure have made recommendations with regard to juries generally and have made, by a majority decision, certain recommendations with regard to the service of women on juries. At the moment a Bill is in preparation in my Department, but it is only in the very early stages of preparation. This Bill will deal generally with the recommendations of the committee and modernise the law relating to juries.

Thank you, Minister. This point is more important than we think in relation to our legal system. There is a male bias at the moment which is bad for both criminal and civil litigation.

Would the Minister consider approaching this problem by putting men in the same position as women in relation to jury service? I am glad the Minister has indicated that the other Bill, which is not in final form yet, dealing with matters which have been recommended by the Committee on Court Practice and Procedure, will be introduced into the Dáil soon.

The Bill relating to juries?

The Minister has ordered today one Bill which arises out of recommendations made by the committee. I understand he indicated this was being done because these matters are regarded as urgent, but that there are other recommendations made by the committee in the last report which will be dealt with in a Bill the Minister is going to introduce into the Dáil.

The Senator may be confusing the Commission on Landlord and Tenant with the Committee on Court Practice and Procedure. These are two separate bodies. The Committee on Court Practice and Procedure have made a number of recommendations. Many of these have been implemented in one form or another because the implementation did not depend on legislation. I could implement recommendations by Statutory Instrument and the relevant rules committees could act by appropriate Rules of Court. What I endeavoured to convey to Senator Robinson was that we had what I would call a general jurors' Bill in preparation but it is in the very early stages.

I want to oppose this section for reasons which I explained briefly when speaking on the Second Stage. They are reasons which are probably similar to those entertained by the other Senators who have indicated opposition. It seemed to me then—and nothing which the Minister said in his reply persuaded me that I was wrong in my guess—that the reason for the introduction of this section was to provide a thin end of the wedge, the fat end of which would be ultimately a frontal assault on the jury system in civil cases even in the High Court. It is perfectly true, as the Minister said when he spoke on the Second Stage, that this section as it stands, if it were enforced today independently of the rest of this Bill, would have almost no practical effect on litigation in the Circuit Court at all, because the number of litigants in the Circuit Court today who look for a jury trial of a civil issue is tiny; and it is possible to spend a year, two years or perhaps three years in practice in the Circuit Court and never see a civil issue tried before a jury.

If the measure represented by section 6 were being passed into law by itself, people would ask: "What is the sense of doing this?" The number of litigants that it is going to affect is absolutely marginal, and it is not worth the trouble of putting a provision of this kind through both Houses of the Oireachtas to facilitate them. But, of course, this section is not going through by itself. This section is going through as part of a Bill which proposes—and I hope my party has made it clear that we do not dissent from this proposal—to increase very substantially the civil jurisdiction of the Circuit Court. In my view this puts an entirely different complexion on this new section.

It is important that Senators should understand this. Up to now the ceiling, broadly speaking, in civil claims of contract and tort in the Circuit Court has been £600. Very few litigants have been unwilling to have a claim of up to £600 adjudicated by a circuit judge sitting by himself. That is perfectly true. But from the passage of section 2 onwards, that jurisdiction is going to go up to £2,000, and in equity and probate matters up to £5,000. In other words, it is going to emcompass, and rightly, a large number of claims which in recent years have always had to be brought in the High Court. When brought to court and pressed to a hearing they have been tried by a jury.

What makes me uneasy, apart from the idea that section 6 may be the thin end of the wedge directed against the jury system in civil cases generally, is that the civil litigant in the Circuit Court as from the passage of this Bill is going to have to take the adjudication of a judge sitting by himself in a fairly serious kind of case. Practising lawyers—a category to which I no longer belong—do have a rough tariff in their minds of what various kinds of injury, for example in negligence cases, are worth. A £2,000 injury is a fairly serious one. It certainly would not be as serious as total blindness or the loss of a limb but a fairly bad accident, leaving somebody laid up for several weeks with some residual disability, and perhaps mild disfiguration, might be the kind of thing which a barrister or solicitor advising a client would put a figure of £2,000 on. I am speaking from memory. Possibly my own tariff is out of date. There are practising lawyers here who will correct me if I am wrong about that, but a £2,000 claim is a fairly serious claim and it is evidently a different kind of claim from one to which a ceiling of £600 is attached. The effect of the passage of this section is that litigants who today are entitled to have a claim of this kind tried by a jury are going to be without that right as from the passage of this Bill.

I know the objections which are made generally to a jury trial are that it encourages waste of time, that it obliges advocates and a judge to take up time in putting things into layman's language so that the jury can understand it, and so forth. I recognise the strength of all these objections. Nevertheless, people have a feeling that 12 citizens are likely to take a more sympathetic and realistic view of their injuries, of their damages, of their claim, than a judge sitting by himself. That is a fairly widely held view and I think I am not mistaken in saying that it is the consensus in the legal profession as well. That consensus, subject to correction, was transmitted to the Minister's Department when they, quite rightly, asked for the opinions of the profession and of the academic law schools in 1964 or 1965.

Judges sitting by themselves are notoriously less generous than juries, though that is probably more evident in England than here; in England, judges are positively mean and where they seem to have a tariff of values in their minds formed when they were very young, 30 or 40 years before, and which they never bring up to date. Juries are not in that position. Juries are realistic in their approach to the award of personal damages. I know it is very annoying for insurance companies that that should be so, because the real defendant in most of these cases is, of course, an insurance company. I am concerned with the difficulties of a plaintiff who now has the right to have his claim for personal injuries caused by negligence or something of that kind determined by a jury and the High Court if it is a claim of a kind for which an award of £2,000 might be made, but who will no longer have that right as from the passage of this Bill. Possibly the Minister has got a full answer for this argument. Unless it is very persuasive indeed we will feel obliged to oppose the passage of this section.

I should like to think Senator Kelly is right in thinking that this is the thin end of the wedge, but unfortunately I do not believe there is any truth in that belief. I should like to think that juries are going to be abolished in the High Court for this kind of case as well as in the Circuit Court. I dealt with this on the Second Reading because I believe that, on balance, juries are not justified in dealing with this kind of case. I believe that they are extremely erratic, which is only to be expected because it is very hard to bring in a man in the street and ask him what damages should you award a plaintiff for a broken hip. How do you assess in pounds and pence the exact amount of damages for a broken hip or whatever injury one may like to think of?

By and large it is my belief that a judge is much better qualified and will gradually build up a scale of values of what is a fair figure for general damages. It is easy enough for the jury to assess special damages, loss of wages, hospital expenses and that kind of thing, but for general damages dealing with pain and suffering it is very difficult to ask a juryman who has not much experience of these cases to put a figure on damages. Consequently, as I said on the Second Stage, I do not believe, on balance, that juries are justified in the High Court. For that reason and for the reason that their verdicts are extremely erratic, which means that sometimes they give too much, sometimes too little, that leads to appeals and that means a new trial and generally a very unsatisfactory position in dealing with these cases.

Secondly, in the course of all these appeals and so on, and even where a case is not appealed, it means that the costs are very much higher than they need be. For that reason also where there is a slight balance in favour or against, depending on your point of view, I feel that the extra costs are not justified. I would be glad to think that the Minister is considering abolishing juries in the High Court but I have no reason at all to believe that is so.

Even from the point of view of a person who does not share my conviction about this, I think that all that is being done in this section is to bring the position back to not much different than it was when the £600 jurisdiction was first introduced. The new jurisdiction compared to that time does not exceed by very much the value of £600 at that time and certainly this amendment would probably last for some years to come, and I am sorry to say that the £2,000 jurisdiction will represent no more than did £600 when the £600 figure was first introduced.

That being so, it cannot be seriously criticised because, not only at the present time but even when the £600 jurisdiction was first introduced, practically nobody asked for a jury in the Circuit Court. Not merely at the present time but from the very beginning of the extended jurisdiction, juries were not requested in the Circuit Court. I see no reason, consequently, to make any serious complaint about the fact that jurisdiction is now increased to £2,000. So that, whether you agree in principle with the position of juries to deal with civil cases, or even if you do not agree, one way or the other I cannot see that there is any serious complaint to be made about raising the jurisdiction to £2,000 and eliminating juries up to that figure.

On the Second Reading I was critical of this section and mentioned that I had no strong views with regard to this question of trial by jury and that I wanted to consider the matter. Having considered it, I have come to the conclusion that we would be entirely wrong to enact section 6 to do away with the right of trial by jury in civil cases in the Circuit Court. I can understand the point of view of Senator Eoin Ryan. I know that is a point of view which is held by a number of people. I do not think it is held by very many lawyers but I should imagine it is a point that is held by a small number of lawyers in both branches of the profession.

I can appreciate the arguments in favour of that point of view—the arguments which Senator Eoin Ryan advanced here today and on the Second Reading, but we should think a lot more deeply on this. What are we doing here? As Senator Kelly pointed out, by virtue of this section we are taking away a right which litigants have at the moment. What is the justification being advanced for this exercise in confiscation of an existing right? The only justification that has been advanced by the Minister, so far as I know, appears at column 976 of the Official Report Seanad Debates of 7th July when the Minister said:

I shall refer only briefly to the other provisions of the Bill. The proposed abolition in section 6 of juries in civil actions in the Circuit Court is a recognition of the fact that in practice the right to civil juries in this court is very rarely exercised. In any event, there is an appeal by way of a full re-hearing to a judge sitting alone from the findings of fact of a Circuit Court civil jury. The proposal is supported by a recommendation made by the Committee on Court Practice and Procedure.

Essentially what does that amount to? Surely it amounts to saying that this existing right of litigants is not one which they exercise very often and because most litigants choose not to exercise that right, we are now to take that right away from all litigants.

That is logically the position that the Minister is trying to argue and I do not think it is a very logical step to take. If the Minister or myself or any other Senator has a right, regardless of what it may be, which we chose not to exercise, that is our own business as long as we are given the freedom of choice. Is it just for the Government to step in and say: "Because you do not exercise that right we are confiscating it, we are taking it away. It is not to be a right any longer"?

As I see it, that is the argument that is being advanced here in favour of this step. The more I think of this step the more drastic I think it is. I said on Second Reading, and I should like to repeat it, that I am conscious of the fact that in dealing with section 6 of this Bill we are dealing only with the question of the right of a litigant to a jury in a civil action in the Circuit Court. We are not dealing with the question of the right of trial by jury in criminal actions. We are not dealing with the question of the right of trial by jury in the High Court.

But regardless of what the Minister's present intentions may be, once this section is allowed to go through, once this right which litigants have is confiscated by means of this section, it will be very easy for the Minister, or any other Minister for Justice in a few years time, to argue on the grounds that have been prepared by this Bill— that because we have done away with the right of trial by jury in civil actions in the Circuit Court, it is a logical step from that to do away with the right of trial by jury in civil actions in the High Court.

I accept that it is not in the Minister's mind at the moment but in that way there is danger that this action would be the thin end of the wedge to do away with the entire framework of the jury system and jury service in this country. I realise that there are arguments in favour of that and until I got down to considering the matter more fully I did not feel very strongly about it. But the more I think of it the more I see that in a democratic country, particularly a young democratic country, it is important that we should retain our framework of jury service. It is important that the ordinary people of this country should be enabled to play their part in the administration of justice in this country. It is important that litigants should be put in a position where they are able if they want to, even in civil actions, to obtain a verdict from their own peers. That in essence is what the jury system means here.

I know that while I am saying that there probably are many people who from time to time have been required to serve on juries who would far prefer if what they regarded at the time as a burden did not fall on their shoulders. That is far more true in relation to criminal trials than it is in relation to civil actions whether they be in the Circuit Court or in the High Court, but by and large anyone who really considers what the jury system means, what the essence of the jury system is, will feel that it is a system which should be retained as part of our general system of administration of justice.

Senator Eoin Ryan, and the Minister in his remarks which I have quoted from his speech on Second Reading, are quite right when they say that there is an anomaly here as regard juries in civil actions in the Circuit Court. There is the anomaly that an appeal from the Circuit Court is to a judge sitting alone in the High Court. Even though the first hearing in the Circuit Court was before a jury, if there is an appeal it goes to a judge sitting alone in the High Court. To that extent I concede that there is an anomaly.

Why go any further? Certainly, to my mind it does not justify abolishing this right if an anomaly exists. It would seem to me that possibly the way to deal with that—and I know this will not recommend itself to Senator Ryan—would be to alter the law so as to provide that an appeal from a decision made in the Circuit Court on a jury trial would have to be by jury trial in the High Court unless the parties agreed otherwise. I think that would be a more logical way of dealing with the anomaly than by using this method of confiscation.

Senator Kelly also made the point —and I agree completely with him in this—that we are dealing under this Bill with a different set of circumstances. The Minister argued on the Second Reading that this was a right which was very seldom exercised in the Circuit Court. When he said that he was right, but he was right in relation to the Circuit Court jurisdiction which exists at present and which will exist up to the time of passing of this Bill. He is not right, because he has no way in which to test it, if he were to say that for the future that position is to remain the same, even when the jurisdiction is extended.

I do not know whether it will remain the same. Certainly there would be far more justification for litigants seeking to have their civil actions in the Circuit Court tried before a jury once this Bill goes through than there is now. The value of the cases which will be tried in the Circuit Court will be approximately four times greater than they are at the moment. I think that is a fair measure of the importance of the cases—they will be roughly four times as important as they are now. Certainly in terms of money value they will be nearly four times as much as they are now.

It is not possible to argue, merely because this right has not been exercised before, that it will not be exercised to any degree once this Bill is passed. Whether it is exercised to a greater extent than now is really to some extent irrelevant to the central issue here—that you have an existing right which you are seeking to confiscate merely on the ground that the majority of people do not use it.

I should like to support Senators Kelly and O'Higgins on this matter. My name is down to oppose the section and I join with them for the reasons they have given. Elaborating even further on it, I have inquired a good deal in the Law Library as to the extent to which juries are used in the Circuit Court and the general view is that they are not used very much. I certainly agree with this. The type of case in which they are used— and I mentioned this on Second Reading—are defamation actions and the provisions under the Succession Act. I think that these are peculiarly appropriate to trial by jury and I also think —and I feel that the lawyers present will agree with me—that there will be a very rare defamation case which would not be within the jurisdiction of the Circuit Court from now on, that is within the jurisdiction of £2,000.

In other words, the effect of the section might be to deprive people protecting their reputations of the right of trial by jury. I do not think the citizens of Ireland are quite aware of the fact that from now on in most cases of defamation they will not have a right to trial by jury because they will be advised that, although there was a very serious libel on their names, it would be very unlikely that they would be out of the jurisdiction of the Circuit Court and that the damages would be more than £2,000. This is a very significant step. It is something that has not been made known to the public. I do not think there is any consent among the general population to being deprived of trial by jury. Certainly, I know that in the West of Ireland there would be very strong feeling that a person's reputation depends on what his neighbours feel about it. It is not a matter for trial by a judge. It is a matter for a jury. If the libel is so serious that it would run into more than £2,000 there should be a determination by a jury as to this. It is a very important matter in that area.

I would also agree with Senator Kelly that the jurisdiction of the Circuit Court will now extend to quite serious accidents and that here again the appropriate assessor is a jury rather than a judge. In looking at the frequency with which juries are empanelled at the moment, it is not appropriate to look at the present Circuit Court. It is appropriate to look at the High Court where the damages awarded would be less than £2,000. In that type of action you very frequently get a request for a jury.

We are now about to abolish it. I think this is a very serious step. Given these very strong arguments both in principle and from the practice of the courts at the moment, it would take a very well argued reason for change if it were felt that the administrative costs of this system or some other argument made it imperative that we abolish the jury system in the Circuit Court. Then there might be at least some grounds for considering it. However, there is not any such administrative burden because juries must exist on circuit anyway for criminal cases: there must be circuit juries, there must be the system under the 1957 Act as—hopefully—amended by the Minister's promise of a new Juries Act. There is no extra burden placed on the community by having civil juries in Circuit Courts. Therefore there is no administrative reason to abolish them.

From listening to the Minister and having gone over his reply on Second Reading. I do not think he has given any substantial reason for abolishing juries in the Circuit Court which goes any way to meet very substantial objections for doing so which have come from this side. I would hope that he will reconsider the matter, which I think is a very important one. It is not one that is well known. I think it will be a surprise to the average citizen to realise that he would not have a right to trial by jury any more in a matter where he would be advised that the damages might be less than £2,000. It would be quite substantial and this would, in my view, include most actions for defamation, so that we would be cutting out the right to trial by jury where you were defending your reputation. I think this is very significant.

If the Minister would like to speak now I will give way, but I should like to add one or two things in the light of what other speakers have said.

Senator Robinson mentioned a category of people peculiarly likely to be affected by this and I think that is a very good point. Quite apart from defamation actions for libel and slander which are common enough, there is the occasional action which has perhaps political overtones in which a civil issue is used in order to drive home some kind of political point. I have in mind a case—I think it was tried by a jury in the Circuit Court, and, even if I am wrong about that, it certainly would have been appropriate to that kind of trial—when police dogs under the control of a police officer attacked a demonstrator outside the American Embassy here under the reign of one of the Minister's predecessors. A person injured on that occasion sued in the Circuit Court the police officer in charge of the dogs unsuccessfully in my recollection. It only came into my mind a few moments ago and I had not an opportunity to look it up, but my recollection is that the award of damages was very small.

In that case perhaps the plaintiff was disappointed but I can visualise an instance in which a person might wish to bring home to an authority, such as a police authority or the political authority in charge of the police, that they were not entitled to treat people in such a way and bring it home to them via a civil action. I do not believe that public confidence in that kind of litigation would be as great if a civil action in the Circuit Court were tried by a judge alone as it would be if it were tried by 12 ordinary citizens adjudicating on the matter.

I do not want to overstate my case or Senator O'Higgins's case on this. We both have used words which perhaps need to be qualified. We have said that the people are being deprived of their right to a jury. I do not know if the Minister has in mind to reply to us by pointing out that of course a plaintiff is still entitled to a jury but he will have to go to the High Court for it. That is true. You cannot take away a man's right to a jury trial in the High Court even under this Bill when passed, but it will mean that in order to exercise the right which up to now could be cheaply exercised in the Circuit Court, he will have to go to the High Court and incur a higher scale of costs, even if he is successful. For that reason I do not think it is anything more than a slight rhetorical exaggeration in speaking as Senator O'Higgins and I have done about the man's right which he has today to a jury trial and which will be taken away from him tomorrow.

My final point arises from something which Senator Ryan said when he spoke of the erratic quality of assessments of damages by juries. Senator Ryan's experience in that regard is far greater than mine and I hope he will not take my remarks as an unfair personal reflection on him—I do not intend it that way—when I say that probably his experience leads him to look at it somewhat from the defendant's point of view. It is news to me that jury awards are so erratic as to make it impossible to estimate the probable amount of such awards beforehand. A great deal of advising work undertaken in the Law Library by counsel both for plaintiffs and defendants is based on trying to guess what the jury are likely to do, and very often experienced counsel are able to guess the amount of such awards to within a few pounds, which is the basis on which lodgments are made.

Laymen's assessments are not all that erratic. I do not believe they are as erratic as Senator Ryan would like us to believe. In any case, even if they were erratic, I cannot see the basis for supposing that a layman's assessment of how much money is a proper compensation for a broken leg or the loss of an eye is likely to be less valuable than a judge's assessment. A judge is by nature conservative; he is somebody whose ideas are perhaps formed and hardened early in life and he lives the rest of his life in a close professional nutshell. It is equally arguable that the layman's estimate of how much money will compensate a person —and really you cannot compensate somebody for the loss of an eye or a leg—is much more likely in my view to be fairer and more accurate than the judge's estimate. Therefore, I cannot see the force in Senator Ryan's objection.

I should like to say in reply to Senator Kelly that his argument about the man-in-the-street being just as good a judge might be sustainable were it not that there is a court of appeal—the Supreme Court—which lays down what is a reasonable assessment of damages and, consequently, when the layman, rightly or wrongly, assesses damages which are too low or too high by the standards of the Supreme Court the Supreme Court steps in and establishes whether they are too high or too low by standards which they have set over the years. You cannot say that jurymen are entitled to assess any amount they like and that their view is as good as anybody else's because the legal system steps in and says that in such a case they gave a ridiculous award and were wrong in doing so. If Senator Kelly wants to follow his argument through he should be advocating that there should be no appeal against the damages awarded by a jury.

Senator Ryan knows better than I that the standard on which the Supreme Court reforms jury awards is not simply the mechanism of substituting its own view for what a reasonable award would have been for the jury's view. I hope Senator Ryan does not mean to tell the House such a thing because if so he is misleading the House. The Supreme Court does not substitute its view of what a reasonable award is for the jury's view. The Supreme Court interferes with a jury's award only where the jury in the Supreme Court's opinion have done something which no reasonable jury ought to have done.

That is quite a different matter. As Senator Ryan graphically put it, if the jury's award is ridiculous then it certainly would interfere with it, but that leaves wide margins within which juries are free to do as they like. I am sure Senator Ryan will admit that the proportion of jury awards in the High Court which are reformed or changed by the Supreme Court, measured against the total number of jury awards, is very small indeed.

It seems to me that the real kernel of the decision to include section 6 in this Bill has not been touched on in the debate on the section, because the most relevant and most basic point affecting civil jury trial in the Circuit Court, in my opinion and in the opinion of the Committee on Court Practice and Procedure, is that there is an appeal to a judge sitting alone by way of full rehearing and not the kind of appeal that you have from a High Court jury to the Supreme Court, which is on a stenographer's note or a judge's note and is not an appeal on the facts in the sense that if the Supreme Court does not agree with the jury's finding—unless, as Senator Kelly has said, they find it outrageous or unsustainable—they will not interfere with it.

The real reason why the right to a civil jury in the Circuit Court has not been used over the years is because it is only a very limited right and is really an illusory right, because if either party does not wish to have it heard by a jury and if he loses the case it is open to him to appeal to a judge and the whole matter begins again from scratch.

To some extent, if you are appealing from a High Court jury award the fact that the jury have made a finding is in favour of the respondent and is against the appellant. In other words, the respondent starts with a built-in advantage but that built-in advantage does not exist in an appeal to the High Court on circuit from a jury finding in a Circuit Court civil action because the judge there disregards entirely the result in the Circuit Court and starts again from scratch as if he were hearing the case for the first time or in the first instance. That to my mind is the kernel of the whole matter and that is the reason why litigants in the Circuit Court have so very rarely availed themselves of the limited but somewhat illusory right to a civil jury in that court. Unfortunately, that point has been scarcely referred to in this debate on the section.

I have just referred to it at some length.

It is the cornerstone of the whole problem. I was also somewhat disappointed that the views of the Committee who reached this recommendation by a fairly sizeable majority were not referred to. I quote paragraph 34 on page 21 of the Report:

While we are satisfied that civil jury trial in the types of action we have indicated is more satisfactory than trial by judge alone, nevertheless, we feel it would be impracticable to endeavour to apply it over the whole field of litigation in these fields. For that reason we are satisfied that this mode of trial should be reserved for what may be regarded as the most serious types of actions in these fields, and we feel that from the practical point of view the best way of giving effect to this recommendation is to confine the right to trial by jury to actions in the High Court. Actions of this kind taken in the District Court are not of a serious nature and the ones taken in the Circuit Court are of a less serious nature than those taken in the High Court. This, coupled with the fact that the mode of appeal at present available from both these courts is by way of rehearing in a higher court, justifies confining civil jury trial to the High Court. For these reasons and for those already given in the first part of this Report as to why the right to trial by jury in the Circuit Court is rarely availed of, we think it could now be abolished without creating any hardship or injustice.

That is the report of the majority of the Committee. A number of members dissented, but some of those who did so did not dissent on that point. They dissented in the opposite direction—on Senator Eoin Ryan's point—that they thought that it was ridiculous to have any jury trials in any court.

I do not go along with Senator Ryan when he suggests that this section should perhaps go beyond the Circuit Court and should include the High Court also. I am on record in the Second Stage debate on this Bill, at column 1038, that I have no intention of abolishing juries in the High Court. I had not then; I have not now. The Committee do not recommend it and I think that it would be very undesirable. I have no intention of doing it. As far as I am concerned I should like to say to the Seanad that I will not at any stage abolish the right to civil jury in the High Court.

For that reason it is not really fair to suggest that the formal abolition of something that in practice is never used is really only the thin end of the wedge. It is quite specific here that this is confined to the Circuit Court and that it has no bearing, one way or other, on the High Court. I honestly cannot see that it is the thin end of the wedge. I do not think that the problem will ever arise with myself, because I will not propose the abolition of juries in the High Court at any time. Even looking at it from the point of view of any successor of mine, I do not see that the passage of this section makes it any easier for him to suggest that at that time.

Would the Minister say, if the thing is not being used, what harm does it do to let it stay?

That is the source of the suspicion.

It avoids having an entire system that is never used— having to have civil juries available, having these special panels drawn up, putting unnecessary work on county registrars and on their staffs.

Senator Kelly said at column 1008 on the Second Stage that, during the three to four years when he was practising, he saw only one action of this type heard by a jury. I practised for seven years and in that seven years I, too, saw only one civil action tried in the Circuit Court. I do not think that it was the same one—we were in different parts of the country. However, it is indicative of the lack of use of it.

With regard to the Succession Act, to which Senator Robinson referred, so far as my Department can ascertain — I cannot be 100 per cent certain about this, because these sort of returns would not normally be included in the usual statistics—and I believe it to be accurate, nobody has ever asked for a jury in the Circuit Court under the Succession Act, probably for the same reasons. At a rough guess, I would say that the number of juries in all the Circuit Courts in civil actions in the past ten years is perhaps not more than half a dozen. It would be very misleading if the public were to get the impression that this section proposes to abolish juries or anything of the like.

Fortunately, my experience of statements being made about things leads me to believe that it is quite conceivable that I would read a letter written to the papers that would declare in a week's time that the Government are abolishing juries.

They are doing it.

That is precisely what they are not doing. They are taking away a limited right that would appear to have been exercised about six times in the past ten years.

And increasing jurisdiction radically.

It has absolutely no effect whatever on the rights of litigants or potential litigants. That is clearly recognised, fully argued and gone into from every aspect by the Committee. A considerable majority of the Committee made this recommendation. Some of those who dissented from it, did so not because it goes too far but because it does not go far enough.

Except in defamation.

No. Some of the dissenters said that they felt all civil juries should be abolished.

I have said enough about it to convince people that what is proposed in this section is in no way radical. It is not doing away with anything that is used; it is simply recognising not alone the present practice but the practice for very many years in the past in this country. As far as I know, there was never any real use made of this. The point is made now that because the jurisdiction is being increased therefore we would have had greater use made of the right to civil jury in the Circuit Court. My reply to that is to ask Senators to go back to the last increase in the jurisdiction, which was a fairly radical one too.

From £300 to £600.

Yes, it was 100 per cent increase, which in terms of money at that time was pretty considerable. There is no evidence at all to show that that radical increase at that time led to any increase whatever in the use of civil juries. In fact, the drop in the use, which seemed to have been going on for a long time, continued just as rapidly in that post-1953 period. The pretty substantial increase in jurisdiction at that stage made no difference whatever. I have, therefore, no reason to believe—and I do not think that Senators generally could have reason to believe—that widespread use would be made of this at the moment.

From the practical point of view of those who may not perhaps be aware of what a civil jury action entails it is no harm to point out that the hearing of a civil case by a judge and jury, either in the Circuit Court or in the High Court, takes about three times as long to hear as a case where the judge is sitting on his own, because the various addresses have to be made to the jury, the judge himself has to sum up the evidence for them as far as the facts are concerned, and he has to give them lengthy directions on the law as to what they may or may not do. This is particularly true in the Circuit Court, because the judges and jurors are less used to the procedure. In practice it works out at about three times longer than if he were sitting on his own. That is another reason why people do not bother to avail of it in the Circuit Court, but the principal reason is that the present right, if it is a right at all, is an illusory one or only a half right, inasmuch as either party has right to appeal to a judge sitting on his own. In the last resort all these cases, whether they were heard in the first instance by a jury or not, are finally heard and determined by a judge sitting on his own.

I listened to the Minister and I accept that I was wrong in alleging that he intended the thin end of the wedge in introducing this section. But he has not persuaded me, nor probably anyone on this side, that there is any necessity for this section. He seems to be saying that merely because the right of trial by jury in the Circuit Court is seldom exercised it is of no value. It should be a matter for litigants to make up their own minds whether they want a jury or not. They should decide whether the right is illusory or not. I cannot see the necessity of taking it away, unless there is some special validity in the Minister's argument, which I listened to with great interest and which I had not thought about before, that the right is in some way made ridiculous because even when it is exercised, an appeal from a jury award in the Circuit Court would lie to a judge sitting alone, not on the basis on which appeals are heard in the Supreme Court, but by way of rehearing of the whole case from start to finish.

The Minister's point of view on this is logical. It is an anomaly, and I cannot understand why it should ever have been in one of our Courts of Justice Acts, that a jury award, solemnly made after a hearing in the circuit court, should leave the litigants in the position where an appeal will be conducted, not on the Supreme Court criteria, but by way of rehearing by a judge sitting alone. I do not dissent from the Minister describing that as an anomaly, but, if it is an anomaly, he should remove that anomaly, instead of removing this right of trial by jury in the Circuit Court. I propose, therefore, not only to oppose this section but to put down an amendment, if I can draft one satisfactorily, on Report Stage which will have the effect of substituting some other form of appeal, possibly an appeal to the Supreme Court on the ordinary criteria, for the appeal by way of rehearing from a jury award in the Circuit Court.

Litigants can be divided into two classes. There are reasonable litigants, that is people who are prepared to pay money they owe, who when they look for money, want only what is due to them. Every practising lawyer has a vast experience of what we call unreasonable litigants. These are the type of people who, because they are no mark, feel it will be more economical to the other side to pay up money they do not owe than to fight against it. The cost of litigation is no small thing in anybody's budget for the unfortunate person who has to go to court.

From that point of view, if justice is to be done—except in special types of civil cases such as where juries would have a special type broad knowledge, as they would have in criminal cases such as defamation—it would, in the view of many practising lawyers, be to the advantage of justice if juries were abolished in all courts. The usual reason why a person requires a jury in the High Court is because the jury's decision is final and conclusive. A jury are not actuated by strict principles of justice. They are apt to be actuated more by emotive principles. "We must give the poor fellow something. I wonder what have the other side lodged in court. We will try to beat that so he will get his costs." It will be found that in 99 cases out of 100 even in the High Court it is the plaintiff who looks for a jury because he knows the jury will be actuated by emotive principles and not by a strict search for justice. One is then faced with a situation, even in the High Court, where certainly two-thirds of the cases are settled on the morning of court. The reason for this is that many people find that going before a jury they are apt not to get what we would call strict justice.

This leads to an immense amount of trouble in the world of litigation. It leads to a lack of certainly. If there is one thing a lawyer or a client should know before going into court it is what is apt to be the result of his case if the facts are admitted to be such and such. When one goes before a jury it is like drawing a sweep ticket out of a hat. This leads to a vastly greater income for the lawyers, but that income is paid for by the general public. If a jury arrives at a decision, no matter how unreasonable it may be, it is for all practical purposes final and conclusive. If there is one iota of evidence on one side, no matter how improbable it may be or no matter what evidence there may be to the contrary, the jury, actuated by sympathy, can decide in favour of one party or the other.

This is one of the reasons why juries are not used in the Circuit Court. They can give as unreasonable a decree as they wish, but one appeals from that decree to the High Court and the High Court judge sitting on his own can fix the damages. You can estimate well in advance within a margin of 5 per cent what is apt to be the decree of a judge without a jury. From the point of view of any honest litigant, it would be most unfortunate if juries were allowed in the Circuit Court. It would be most advantageous for the person who indulges in legal speculation, the person who indulges in what might be called legal blackmail or legalised blackmail, as we in the profession describe it when we are referring to these type of cases. Is it for the public good that legalised blackmail should take the place of justice?

From the point of view of the general public it would be utterly absurd to have juries in the Circuit Court. Take the instance of a Circuit Court held in Donegal, or Tipperary or anywhere else and take this type of litigant, who is the person least deserving of consideration. If he asks for a jury it means that people from all over the county for a radius of 25 miles of the Circuit Court town have to come to the court and lose a day or two from their work. If you wish to pick a jury of 12 you must summon at least 60 or 70 jurors. Those 70 have to leave their businesses, to travel 20, 25 or maybe 30 miles to attend the court, to wait until the jury are called, to wait while objections are raised to the jury and, if there are two jury cases, to wait until the first jury case finishes and the next one is called. It would mean that the general public, as well as the honest litigant, would be completely held up to ransom. The cost to the general public of litigation would be phenomenal as would the cost to litigants themselves.

Why does the Senator say "would be"?

If they are going to have juries in the Circuit Court——

You have them.

You have, I know, but they are not used.

They are used in criminal courts.

Therefore, the Senator is saying that all litigants in the Circuit Court are honest and any litigant who goes for a jury in the High Court is not.

No, I do not. In the present instance with your limit of £600, what happens? I have known only one jury civil case in the Circuit Court in County Tipperary in my experience and that is a pretty long time. Just one. In that particular case the judge made it very clear that if a plantiff wished to get away with emotion rather than justice he was not going to do it and he charged the jury accordingly. That disposed of further jury cases and I commend him for doing this. The cost to the dishonest party is nothing because he is simply speculating. The costs to the honest party will be increased out of all proportion for the simple reason that a case that could be dealt with in half a day in the Circuit Court will take two or three days. You will have the summoning of the jury, the objections to them; then they are empanelled. You will have a long emotive speech from the plaintiff's counsel most of which is poppycock, most of which they could by changing the names give time and time again. I could nearly give them off by heart.

This is the sort of thing you will have and this is what the public will be paying for. The lawyers are sitting there in court with their refreshers and their briefs for the barristers, with additional fees to the solicitors. The whole purpose of litigation, the whole seeking for justice will become a laughing stock. That will be the end result. It is right and proper that at this stage it should be written into this Bill that juries will not be in the Circuit Court. By not doing this you do a very bad turn to the principle of justice; you do a very bad turn to any honest litigant; you do a very bad turn to the general public. Sixty or 70 honest people, scattered all over the country, will have to turn up at every Circuit Court and wait for an entire week four times a year. For those reasons I feel that it is very important that this should be incorporated in this Bill.

I want to say a few brief words in reply to Senator Nash. I think, with respect, that Senator Nash has got hold of the wrong end of the stick. No one on this side of the House is suggesting that all Circuit Court civil actions should be tried by a jury, but Senator Nash's speech gave me the impression that he thought we were suggesting that. No one here would suggest that for a second. All we are saying is that the existing right to a jury in civil cases, rarely exercised as it is, should not be taken away. That is all we are saying. We are not saying anything more than that, and the picture which Senator Nash is building up of Fine Gael summoning people from the highways and byways for 65 days a year away from their proper employment is absolutely nonsensical. Senator Nash, and I say this without the slightest trace of irony, has a reputation for being a very fine and conscientious solicitor in his private practice, who fights very hard for his own clients.

If I may interrupt the Senator for a moment. I think it is better that references, even complimentary ones, should not be made to the private affairs of Senators.

I will withdraw it then, but he, with his long experience, must know that there is no such thing as assuming that in every piece of litigation there will be an honest and a dishonest party. It is perfectly possible for both parties to be honest or dishonest. It is perfectly possible for both parties to be in collision in good faith. That is what law is all about. Senator Nash knows that his colleagues are no more anxious to subsidise and encourage bogus litigation than he is himself. Most cases represent the collision of two parties each of which genuinely believes himself to be in the right. Of course human cupidity and greed will mean that some people will be looking for more than they should be getting. That is obvious. But the idea that there is an identifiable class of dishonest litigant, a member of which class can be found in every pair of litigants before every court in the country, is absolutely wrong.

That is one point in Senator Nash's address that I felt I had to knock on the head, so far as I could, before it got out and abroad. The other one is this. Not a single one of the arguments which he advanced against the jury system would not be equally applicable against the jury system in criminal cases. Senator Nash spoke about the juries being notorious for exercising humanity and sympathy rather than strict justice. If they do so, that, in my view, is a very good reason for them to be there. That is the reason why we have had a jury for hundreds of years in criminal cases, why it is regarded as a protection for an accused person that a jury should be there, that there should be 12 ordinary people there who in some way put themselves perhaps in the defendant's position and protect him if they feel he needs protection.

I do not wish to be politically contentious, but let Senators think of a conspicuous criminal trial held in this city only a little over a year ago. Would those defendants have been content to be tried by a judge sitting alone? Would they have been content if the jury had been sent home as being more likely to give——

Is this Bill suggesting it, Senator. That is the point now. This Bill will be painted as abolishing the right to criminal juries.

A Senator

It is more of the poppycock we have to listen to.

It is most unfair of the Senator to make an emotive statement of this kind when he knows as well as I do that there is not one thing in the Bill to that effect.

I have never made a deliberate misrepresentation in this House yet and I am not starting to do so now. I have gone out of my way, to the point of being obsequious, to make it clear that I am not making any such allegation. I have accepted expressly that the Minister does not intend to do away with juries in the High Court. He has never mentioned anything about juries in criminal cases and I am not making that allegation. What I am saying is that Senator Nash's arguments here a moment ago about the jury system, in so far as he appears not to like juries, would be equally applicable to our administration of criminal justice. The humanity which he dislikes in juries, and their inclination to exercise sympathy rather than justice, would be an equal objection to them, presumably, in criminal cases as in civil cases.

I have probably strayed too far from the subject in mentioning this and I have given the Minister an opportunity of implying that I am trying to misrepresent him, but in fact all the elements which Senator Nash mentions — the tendency of juries to be humane and sympathetic rather than to be strictly just and the notorious tendency whereby jury service is burdensome and time-wasting for a large number of people—are objections equally applicable to the operation of the jury in a criminal context, which I presume no one even on that side of the House would wish to do away with.

There is just one point I want to make in relation to Senator Nash's remarks. I should like to have Senator Nash and the Minister get together and reconcile their arguments in this matter. I do not know whether Senator Nash was here when the Minister was speaking, but as I understand it the Minister's case is a simple one, perhaps too simple. It is merely that the right of trial by jury in civil cases in the Circuit Court is not used and, therefore, should be abolished. I advanced the argument, as did Senator Kelly, in relation to this amendment that when the jurisdiction is changed under this Bill there might be a situation where there would be more extensive use of the jury system in the Circuit Court. As I understood the Minister's position he was disregarding that as a serious argument. I feel, if the Minister, being a fair minded man, felt that was a serious argument it would alter his view with regard to the abolition of the right to jury in the Circuit Court. But because he does not regard it as serious, because the right of trial by jury in a civil case in the Circuit Court is not exercised and in the view of the Minister is not going to be exercised— I do not think that is being unfair to him—he thinks section 6 of this Bill should go through and the right should be taken away.

Senator Nash argues against the jury system in civil cases generally. Why does he argue against it in the Circuit Court? He concedes, as he must of course, because it is there at the moment, that it is all right to have it there at the moment because it will not be used. But he makes the case that once this Bill goes through then litigants are going to feel in civil cases in the Circuit Court that they should fall back on the right to trial by jury. Which of them is right? The Minister thinks that will not happen and because it will not happen the right to a trial should be taken away. Senator Nash thinks as I think, as Senator Kelly thinks, that once this Bill goes through it may very well be that litigants in civil cases in the Circuit Court will ask to have their cases tried before a jury. If we are right in that, if Senator Nash is right in that, then the Minister is entirely wrong and the reasons the Minister advances in support of section 6 of this Bill are entirely wrong. I would like to see that settled. Although Senator Nash argues for the abolition of civil juries he in fact is agreeing with the reasoning of Senator Kelly and myself in relation to this amendment.

Certainly if Senator Nash is right on that point, and, consequently, if Senator Kelly and myself are right on that point, then this whole thing assumes a far greater degree of importance than has been attached to it by the Minister. If we are right and if as a consequence of the increase in jurisdiction which is proposed under this Bill the right to jury trial in civil cases in the Circuit Court becomes an important right again, then the Minister must logically agree that what he is doing here is abolishing an important legal right.

Arising out of what Senator Kelly said regarding the time which is taken up in criminal cases and that therefore the same objection would apply with regard to the time of jurors, that is not so. In the civil courts there are approximately 300 civil cases to one criminal case; therefore having juries in civil cases is very different from having them in criminal cases. Furthermore, the Senator says that in a criminal case people want juries because they are more sympathetic. I agree that is so. I agree further that it is better to have 99 guilty men acquitted than to have one innocent man convicted. In other words, when a jury finds a man not guilty, all they find is that he is not proven guilty; he may be and very frequently is guilty. We all know that as a fact. I am sure Senator Kelly will agree with me that of every four people acquitted approximately three are guilty.

I do not agree with any such thing. I have no right to agree with such a thing when the jury have acquitted him.

They are simply acquitted because there is not sufficient evidence to convict them, but in dealing with civil cases you are dealing with a completely different type. In the criminal case what you want to do is make sure that a man is not convicted unless there is absolutely no reasonable doubt whatsoever about his guilt. It is a very different thing in a civil case. What you want to do is get at the actual justice of the thing and hold the scales equally between the parties. However, there is no parallel whatsoever between the criminal cases and the civil cases.

Senator O'Higgins argued that if the jury right existed until now there is no right to take it away now. There is, because now the jurisdiction of the Circuit Court has gone up. Let us assume that somebody has an action against a Senator tomorrow, maybe arising out of a motor accident and somebody sues him, or if somebody trips going into his office and sues him for negligence. At the moment with the jurisdiction as it is the temptation is not great. The higher you make the jurisdiction the greater you increase the temptation. The person who trips in the office can get justice now by appealing the finding of the jury in the Circuit Court to the High Court, who will rehear the entire facts. But this is additional expense. This is going to put on any litigant at least another £400 or £500 expense. It increases his costs out of all proportion. Most people who are faced with litigation, especially if they are not insured against claims, have not a lot of money to spend. The ordinary individual has not £1,000 or £1,500 to throw away. It will mean that he has to be unfair to himself and even if he wins he loses because he will not be refunded his costs. He has to pay out money which otherwise he would not. Therefore if we are really searching for justice in the Circuit Court and if we are trying to ensure that people will not profit by speculative litigation in the Circuit Court it is important that such litigation be abolished.

Question put.
The Committee divided: Tá, 27; Níl, 17.

  • Ahern, Liam.
  • Brennan, John J.
  • Brugha, Ruairí.
  • Cranitch, Mícheál C.
  • Crinion, Brendan.
  • Doyle, John.
  • Eachthéirn, Cáit Uí.
  • Farrell, Joseph.
  • Fitzsimons, Patrick.
  • Flanagan, Thomas P.
  • Gallanagh, Michael.
  • Hanafin, Desmond.
  • Keegan, Seán.
  • Keery, Neville.
  • Killilea, Mark.
  • McElgunn, Farrell.
  • McGlinchey, Bernard.
  • Nash, John J.
  • Norton, Patrick.
  • O'Callaghan, Cornelius K.
  • Ó Maoláin, Tomás.
  • O'Sullivan, Terry.
  • Ryan, Eoin.
  • Ryan, Patrick W.
  • Ryan, William.
  • Sheldon, W. A. W.
  • Walsh, Seán.

Níl

  • Boland, John.
  • Butler, Pierce.
  • Desmond, Eileen.
  • Dooge, James C. I.
  • Kennedy, Fintan.
  • Lyons, Michael D.
  • Mannion, John M.
  • O'Brien, Andy.
  • O'Brien, William.
  • Farrelly, Denis.
  • FitzGerald, Alexis.
  • FitzGerald, Jack.
  • Kelly, John.
  • O'Higgins, Michael J.
  • Owens, Evelyn P.
  • Reynolds, Patrick J.
  • Robinson, Mary T. W.
Tellers:— Tá: Senators Brennan and J. Farrell; Níl: Senators Butler and W. O'Brien.
Question declared carried.
SECTION 7.
Question proposed: "That section 7 stand part of the Bill."

I had intended to draft a similar amendment to the next amendment to be taken on section 8. It is that the figure for the jurisdiction of the District Court which has been raised from £50 to £250 should be £100. Would it be possible to discuss this amendment to section 8 as though it also applied to section 7?

An Leas-Chathaoirleach

If the matter was mentioned on section 7 it would be possible to mention it in passing on section 8 and if necessary to put down an amendment to section 7 on Report Stage.

I am trying to facilitate the House. The argument that I want to make, which should not take very long, relates more to section 7 than to section 8. I must not have sent in the amendment to section 7. The reason I wanted to consider the jurisdiction is that it is not necessary for me to feel that I have any right to substitute £100 for £250. I have spoken to a number of practising circuit lawyers about this and I think that the District Court at the moment would not be able to handle cases where the jurisdiction was up to——

An Leas-Chathaoirleach

The Chair would wish to point out that Senators are holding conversations within the normal area for debate. This practice is to be very strongly deprecated.

I think that the figure of £250 as the jurisdiction of the Circuit Court in contract and tort and detinue which is under section 8, is too high a figure for the District Court, in its present composition, to cope with. I do not think there are staff facilities nor can cases where the jurisdiction is £250 be coped with, as they usually take a half day to be heard unless the position in the District Courts is substantially improved.

One of the things which must be taken into account is the status of the clerks of the District Court. If they are to assume responsibility and if they are to have the additional burdens which this will impose on them they ought to be registrars of the District Court. This is in line with section 12 of the Bill which proclaims that the District Court should be a court of records, as the Minister has already explained on the Second Reading.

The reason I have put in the amendment is to draw the attention of the House to the fact that the District Court is not in a position to cope with the jurisdiction which we would purport to give it because of the present staffing facilities and the present status of the clerks in the District Court. A jurisdiction of a maximum of £100 would in the present terms be more realistic. Only if the situation is improved in the District Court offices will it be possible to cope equitably with a jurisdiction of £250.

I have three small drafting points to make in connection with section 7, which I hope the Minister will be patient with if I have got it wrong. The section itself did not seem to be controversial and I frankly admit that I did not do homework on the wording of these paragraphs. It is only now, on looking at them more closely, that three points occur to me which the Minister might like to take a look at.

First of all, in clause 2 of the new paragraph (a) which will be inserted, would it not be better to be more explicit as to what is meant by "might amount to £315 per annum"? I presume that what is meant by it is a rent which is denominated in weekly or in monthly terms in which the annual sum would be arrived at by multiplying by 52 or by 12. If this is what the Minister intended I think it should have been put more clearly.

Secondly, this is something which I am not sure about not having done research on it, but if any point arises subsequently I shall look it up between now and Report Stage. I should like the Minister to tell the House if a Government Department, as distinct from a Minister, is a legal person. I may be wrong in suspecting that it is not but I should like the Minister to tell the House if a Government Department is a legal person for litigious purposes and can sue in the name of the Department as distinct from the Minister.

Thirdly, also in clause 3, I see that the sum mentioned is "any sum not exceeding £250 due to or recoverable by or on behalf of the State". If the litigation envisaged by this clause is a litigation in which the State or a Minister or a Department will be a plaintiff I think it would be better, in order to avoid the doubt which is raised by the words "on behalf of", if the clause was drafted in such a way as to make it clear that the money due or recoverable may be due to or recoverable by the Minister. There are cases in which a Minister looks for money in his own name as Minister. These are simply three drafting points. There may be no substance in any of them but I should be glad if the Minister would think about them.

If I could answer Senator Kelly first, the wording in section 7 (1) (a) is, mutatis mutandis, the same wording as in the corresponding section 77 of the Courts of Justice Act, 1924. While I note what the Senator said I do not think it has given rise to any problems since 1924 because, with the necessary change in the amount and so on, the wording is the same. I think the reference to a Government Department which appears in the corresponding 1924 Act is possibly a reference to the Revenue Commissioners, the Board of Works or the Land Commission which have a corporate existence separately from the existence of the Minister as a corporation sole.

But are they legally identifiable under the collective description of "department"? In other words, is there legal authority for describing them collectively in that way? If there is no legal authority for describing the Land Commission in the phrase "Government Department", then the Land Commission will not benefit from this clause.

I cannot say offhand because I have no notice of the point. However, I would think that there must have been that authority in 1924 and it has not given rise to any problems since. As regards the point Senator Kelly has made about "amounts or might amount" in section 7 (1) (a) (ii) it strikes me—again not having notice of it I cannot be precise about it—that the explanation he offered as a possibility is one explanation and that in a weekly or monthly tenancy the expression "might amount" is used to express what the rent would be in annual terms. The other alternative would be where you have as you sometimes have a rent variable on certain contingencies. I think the jurisdiction would be limited by the higher rent under the alternative contingency. With regard to Senator Robinson's point, assuming we are discussing in general the amendment in her name with this——

An Leas-Chathaoirleach

We are not discussing amendment No. 7. We are discussing the point that Senator Robinson made which she indicated was analogous to amendment No. 7.

The difficulty may have arisen from the fact that Senator Robinson confined her amendment to cases of detinue only. Of course detinue is a rather obscure thing and she probably intended it to apply to the more general matters that are set out in section 7. I am satisfied that the figure of £250 that I have proposed in the Bill—taking everything into account—is the best figure. The committee were not unanimous on the figure because this is a matter on which every individual would have his own opinion and one may find that the opinions vary so much that it would be very hard to get any kind of consensus on it. For the record, the committee divided as follows: five for £100; five for £200 and two for £500. However, I would ask the Seanad to bear in mind that these recommendations were made about three and a half years ago.

Five years ago.

I am grateful to Senator Nash. In fact, it was in April, 1966, which would now be five and a half years ago. In deciding on a figure the Government had to take account of inflation rate movements since the recommendation was made. Assuming that the middlemen—those who recommended £200 five years ago—want their recommendation carried into effect in the same real terms as when they recommended it, we felt that a figure of £250 would be an appropriate figure. Senator Robinson's figure of £100 would hardly even have the effect of putting the District Court back in the position that it was in in 1953 because it has been found, in practice, that the number of civil actions of up to £50 in the District Court is negligible. Apart from actions for the recovery of small debts which are almost invariably uncontested, the number of civil actions, in the sense of an action for negligence, in the District Court at present is practically nil.

When one bears in mind that even the most trivial car accident nowadays could cause damage in excess of £100 it would not really be much advantage to anybody to increase the jurisdiction to £100. You also have the factor that most use is made of the District Court, as far as civil matters are concerned, in the sphere of debt collection. The procedure in the District Court is very much simpler than it is anywhere else and, of course, it is very much cheaper. It has a double advantage that higher debts should be recoverable in the District Court because it suits the debtor not to have so much additional costs added to his debt. He already has enough difficulty, presumably, in paying the debt itself without having these additional costs added, and from the creditor's point of view it has the added advantage that he can get judgment more expeditiously and more simply. I am satisfied, taking all factors into account, that £250 is the best figure that could be arrived at in the present circumstances.

I do not propose to deal with the point Senator Robinson made about the clerks because I think that comes up on a subsequent section and I shall deal with it then.

I am sure the Minister will realise that in substituting the £100—and I would agree with him that this would not make a significant difference—I was looking at the problem from the point of view of the position at present in the District Court. With its facilities and general composition, the District Court would not in my view in many cases be able to cope with the civil workload where the jurisdiction was raised to £250, unless plans are made beforehand to increase the staffing facilities. It was with a view to having this discussed and with having an assurance from the Minister that a substantial improvement in the District Court procedure will be effected before March, which is the date on the Bill, that I introduced this figure.

I shall deal with that aspect of it more fully on the other section.

Question put and agreed to.
SECTION 8.

I move amendment No. 7:

In line 49 to delete "250" and substitute "100".

Amendment, by leave, withdrawn.
Section 8 agreed to.
SECTION 9.
Government amendment No. 8:
In page 3, line 50, after "Purchase" to insert "(Amendment)".

This is merely a drafting amendment. The Hire Purchase Act was wrongly described and the word "Amendent" was left out. The 1960 was an amending Act; it was not an originating Act.

Amendment agreed to.
Section 9, as amended, agreed to.
Sections 10 and 11 agreed to.
NEW SECTION.
Government amendment No. 9:
In page 4, before section 12, to insert the following new section:
Section 10 of the Hotel Proprietors Act, 1963, is hereby amended—
(a) by the substitution of "£2,000" for "£1,000" in subsection (1), and
(b) the substitution of "£250" for "£100" in subsection (2).

This is to insert a new section. The reason why the amendment is necessary is that when the list of the particular jurisdictions, or specifically granted jurisdictions, was being complied for insertion in the Bill, the specific jurisdiction under the Hotel Proprietors Act, 1963, was overlooked. It was overlooked that Act gave a special jurisdiction on the lines of the jurisdiction given in the Hire-Purchase Acts and other similar Acts. This section is proposed simply to rectify that.

Amendment agreed to.
Section 12 agreed to.
SECTION 13.
Government amendment No. 10:
In page 4, lines 14 and 15, to delete "entry or other".

This is another drafting amendment. The expression "record" is an all-embracing word. Therefore, the words "entry or other" are superfluous.

Amendment agreed to.
Government amendment No. 11:
In page 4, lines 15 and 16, to delete "of the justice drawn up and signed by him in accordance with rules of court" and to substitute "which, when an order is required, shall be drawn up by the District Court clerk and signed by a justice".

The purposes of this amendment are twofold. First, it will ensure that orders of the district justice will be drawn up and signed only when required. The present wording of the section, as it stands, could possibly be interpreted as requiring an order to be drawn up and signed in respect of every decision of the justice. Of course, it would be ridiculous to have that done because the order is needed in respect of 1 per cent only, or less, of such decisions.

Secondly, the amendment provides that the order be drawn up by the District Court clerk. This will give statutory effect to what is, in fact, the present practice.

I am glad to hear that the Minister recognises that the existing practice whereby the orders of the District Court are, in fact, drawn up by the District Court clerk will now be officially recognised. As I understand the position up to now, the obligation has been on the justice himself to draw up the orders. However, until now the work has been done for him by the District Court clerk and the justice merely signed the order as presented to him by the clerk.

The significance of this goes beyond the main purpose of this Bill. It is significant because it appears to me to confer on the District Court clerk a status and a responsibility which is not very different from that enjoyed by the registrars of the Circuit Court. I wonder if the Minister would tell the House whether he proposes to afford concrete recognition, as well as merely formal recognition, to the status of and the work being done by the District Court clerks by changing their title to District Court registar, and possibly providing them with some material advantages which would be appropriate to that change in right and title.

There are just two small remarks that I want to make in relation to this. First of all, I have no objection to the amendment. However, I am a little bit puzzled as to what the position is likely to be if the amendment goes through as it stands, as regards its reference to when an order is required. I think that I know what the Minister has in mind and, if I do, I agree with it. I can think of a great number of cases where it would be unreasonable to require that a formal order should be drawn up and signed by the district justice.

There should be some way or some system whereby there will be a definition of some sort that everyone practising in the District Court will be aware of, as to when an order is required. For example, if an application is made to the district justice grants an adjournment, is that an occasion where an order is to be drawn up and signed by the district justice? Some people will say "yes" to that; others will say "no", and that it is sufficient to make an entry in the record book. A number of cases of that sort about which there will be some doubt will probably arise, and I am wondering where do we turn for a guideline as to when an order is required, and when simply an entry is going to be sufficient?

That is the first query I want to raise. The second query is in relation to the drawing up of orders by the District Court clerks. Here again I certainly have no objection to legal recognition being given to what I think has been the practice generally down through the years. I simply want to raise this query. Who is going to be regarded as the person having responsibility in relation to the orders? I think I am correct in saying that heretofore the position was that, in practice, the orders were drawn up by the District Court clerks, but that the responsibility remained with the district justice. I am wondering if that situation is being altered here.

There would be very great justification for the plea made by Senator Kelly if there is an alteration being made and if the responsibility in relation to the orders in the future is now to be carried by the District Court clerks as distinct from the district justice himself. If the position is to remain that the ultimate responsibility, so to speak, will be that of the district justice, then I would raise the further query as to whether or not it is being made sufficiently clear under the Minister's amendment that that is going to be the position in the future.

I shall take Senator O'Higgin's first point, which I understood to be a question of an interpretation of the words "when an order is required" and a clarification of what that means. I can only suggest to him that the words are really self-explanatory and that "when an order is required" means when it is required for some purpose in connection with some further proceedings. That would seem to be borne out by the opening words of the section as amended which are:

In any legal proceedings regard shall not be had to any record (other than ...

and so on. The normal case where it would be necessary would be on an appeal to the Circuit Court or on an application to the High Court for a writ of certiorari or mandamus or such similar writ. In a civil case I suppose that it would be on a decree that the defendant did not pay up and the claimant was forced to seek a formal decree for the purpose of lodging it with the sheriff for execution. So far as the responsibility for the order is concerned, I do not think it matters very much who is responsible for it. One assumes that those who draw it and those who sign it will, so far as it lies within their power, make it accurate. One could say that in the last resort the person who signs a document assumes responsibility for it. I do not think it is necessary to draw any formal distinction as to who has precise responsibility. I presume that the district justice, as the presiding person in the District Court, would be named in any proceedings to set aside an order.

Regarding the title given to clerks Senator Kelly suggested that they be called registrars. I am not a great believer in the significance of titles. I believe in the job being done irrespective of whatever name the person who does it goes under.

A rose by any other name.

Yes. Senator Kelly went on to suggest that if a more grandiose title were conferred on the clerks they would, no doubt, get material reward as a consequence. That would be a matter for the conciliation and arbitration machinery of the Civil Service. It is not a matter in which I, as Minister, would be involved.

The Minister was probably right in what he said about when an order is required. He gave us an illustration in civil cases—the drawing up of a decree, for example. I should like to make this clear. It is a long time since I have engaged to any great extent in District Court practice but when I did my recollection was that it was the solicitor who actually drew the decree and that it was in a printed form. Is the Minister quite sure that this is not going to alter the position?

The Senator is quite right. It has always been a cause for complaint by solicitors that they had to go to the bother of drawing it up and this has got to be done in the Circuit Court also. It is very troublesome. In the Circuit Court the county registrar amends it and sends it back to the solicitor for endorsement before it comes back for formal signing. In the Circuit Court the solicitor draws the decree and sends it to be signed by the justice. The clerks do not do that work on the civil side.

Will they be required under this?

No. The wording is: "relating to a decision of a justice of the District Court in any case of summary jurisdiction" and civil business is not summary jurisdiction. Summary relates to criminal or quasi-criminal affairs.

What about a rates decree?

Is it not a summary decree?

It is drawn by the solicitor.

I do not think so.

In civil proceedings will the district justice still have to sign every decree? If he has, it would be much more convenient if there was a seal for the District Court, as there is for the Circuit Court. The seal of the court is impressed and it is signed by the District Court clerk. The reason for this is as follows. The decrees are prepared by the solicitor and signed by him. They are sent to the District Court clerk. The District Court clerk reads them and verifies in his book that they are all right and the district justice comes along and he signs a whole lot of things about which he knows nothing whatsoever. It would be a great convenience to everybody. Decrees could be got back more rapidly for instalment orders or for lodgment with the sheriff. As distinct from the Circuit Court or the High Court your decree is really your authority. If the District Court clerk, having verified that it is correct, impresses a seal on it and signs his name, that is your decree. This would facilitate the running of the court and people would obtain their decrees more quickly, especially when they require them for appeals.

In reply to what the Minister said when commenting on my intervention on this section, I am not a great believer in grandiose titles either, and I am not encouraging the Minister to inflate something which ought not to be inflated. I am simply drawing his attention to something which anybody who ever engaged in industrial relations will understand. The question of a name or title is something which does have a bearing on the status of a person in the particular employment. That is not mine or the Minister's fault; it is just a fact of life. I do not think the Minister would be happy if he, doing exactly the same kind of work in the Department of Justice as his colleagues do in the Departments of Education and Finance, were described by some title other than Minister. My understanding is that the District Court Clerk's Association are anxious that this change should be made not in order to inflate their own ego but because they feel it unjust that statutory recognition is not being given to the fact that they have all along been doing work of a similar kind as that of the registrars of the Circuit Court, if not at quite the same level of importance, and that that reality should be reflected in a changed title. To me that is not an unreasonable suggestion and I advance it—I will not say on their behalf, as I do not represent them—but I am willing to adopt that suggestion as being a fair and just one.

I should like to support this point. I raised it on an earlier amendment. This would give statutory recognition to the role of the District Court clerk and would give him a function very similar to that of a registrar in the Circuit Court or in the High Court. As the Minister has stated, the increase of his jurisdiction to £250 will mean more responsibility to the District Court clerk. I agree with Senator Kelly that there is a desire on the part of the association representing District Court clerks that they be given recognition in terms of being recognised to be registrars of a court, as they are carrying out functions which in other courts are carried out by the registrars. This is a very legitimate desire and they ought to be given this recognition.

In other courts a registrar has very many other things to do besides drawing up orders and signing them. He has to tax costs, he has to hold inquiries and many other things. The fact that the District Court clerk has to draw up the orders to be signed by the district justice in summary cases or to post to the district justice the decrees prepared by solicitors in civil cases does not warrant this. I do not think anybody thinks less of the District Court clerk. We all know what he is. They are fine, able, decent, competent men.

I do not think it will make the least difference in so far as he is concerned or in so far as the high respect in which we all hold him is concerned whether you call him District Court clerk or District Court registrar. But there is a very great difference in the work that has to be done by a court clerk and that which has to be done by a registrar because the registrar has to hold inquiries in equity cases. He has to hold inquiries in a vast number of cases. He has to exercise semi-judicial authority when his order simply comes in for approval before the court. If you object to his order you have the right of appeal in certain circumstances to the court. If you were to make a change you could call the district justices judges rather than make the change the other way round and call the District Court clerks registrars. This would be even more appropriate if there was to be a change. I do not think there should be any change. If the District Court clerks have more work to do the real recognition which they will require would be a monetary recognition which would be dealt with by an independent tribunal who would consider it objectively.

The difference between the District Court clerks and the registrars is already reflected in a very wide difference in remuneration. Senator Nash is perfectly right that Circuit Court registrars do a great deal more important work, some of it of a quasi-judicial kind which District Court clerks are not required to do. That difference is already reflected in a fairly large gap in remuneration. Many members of the Senator's own profession anxiously vie with one another for appointment as county registrars when such a post falls vacant. It is a post which, as is well known, has been one regarded as so important and so desirable that political patronage of a heavy calibre has been brought to bear on it by all parties since this State was set up. That is not the situation with the District Court clerk. The differences between his situation materially and that of the Circuit Court registrar speak for themselves. But if he is doing this work which is central to the conception of somebody assisting a judge in perfecting the formalities of his orders then he is doing work of a kind which is similar even if not to so wide an extent as the county registrar. Although I do not in any sense represent this association I think their claim is a just one and I hope that the Minister and his Department will consider it favourably.

Amendment agreed to.
Section 13, as amended, agreed to.
SECTION 14.

An Leas-Chathaoirleach

Amendment No. 14 is consequential on amendment No. 12 and therefore the two may be discussed together.

I move amendment No. 12:

In subsection (1) to delete all words after "effect" in line 22 to the end of the subsection and substitute ", in relation to summary offences of any kind standing so specified in an order under this section, if and so soon as each House of the Oireachtas shall have approved of the draft order under subsection (†) of this section".

†This is the subsection proposed to be inserted by amendment No. 14.

The purpose of these two amendments is to introduce some form of check on the power which the Minister now asks the House to give him. It is a power which he explained briefly in his Second Stage speech and I will read, in order to refresh the House's mind if I may, what he said on that occasion:

The object of section 14 is to overcome difficulties that have arisen in regard to the prosecution of certain offences in the District Court. In the case of certain offences, such as those relating to the prevention of the spread of foot and mouth disease, it is essential that the offence be prosecuted with the minimum of delay. Due to the infrequency of District Court sittings in rural areas and the fact that a justice under existing provisions does not have power to hold special sittings to deal with urgent summary cases delays can occur in bringing these cases to trial. Section 14 is designed to eliminate these delays by allowing a justice to hold special sittings and by reducing the period within which the hearing may take place.

So far so good, but the Minister pro poses in this section that the ordinary period for the hearing of a summons shall be reduced to 48 hours.

He proposes, in other words, a kind of drumhead District Court for specified kinds of offences in which a 48-hour summons will be enough to enable the justice to hear the charge against the defendant. I do not dispute that the kind of case instanced by the Minister in his Second Stage speech, namely the preventing of the spread of foot and mouth disease, might be the kind of situation in which an abridged summons might be justified. I do not deny that. I do not mean to imply that the Minister has been disingenuous, but what I am afraid of is that this section, if passed as it stands, may hereafter be used in cases of a quite different sort, possibly cases of a political or quasi-political kind, in which what it would not be unfair to call drumhead justice is required. I am not against drumhead justice when everything else has failed but I think that Parliament ought to be allowed to retain for itself some check on the Minister's power to determine what class of offence is to be subjected to this drumhead justice and what is not.

The intention of my two amendments, therefore, is to oblige the Minister to lay orders of this kind which he proposes to make before both Houses of the Oireachtas and to require both Houses to pass affirming resolutions before these orders take effect. In other words, the Minister before he makes an offence the sort of offence which can be prosecuted by a two-day summons, will have to come to each House and say I want leave in this national emergency of foot and mouth disease to make it possible to summons people on a two-day summons. In a case like that I cannot imagine either this or the other House hesitating for five minutes to give him that leave. What I do not want to see is the Minister or some successor using section 12 in order to produce two-day summonses in cases of a political kind, perhaps of a very sensitive political kind not necessarily connected with the current wave of subversion or violence. In a case like that, or in any case other than one about which we would be unanimous, such as the foot and mouth instance which the Minister gave, this Parliament ought to be given some form of control and the Minister's section, as it stands, does not propose any such control.

Let me add that I do not apprehend in the normal case that any grave injustice would be done by requiring somebody to answer a charge in a summons at 48 hours notice. The normal person is within reach of legal assistance and advice and might be able to prepare his defence in 48 hours, but that might not necessarily be so. I can well imagine cases, perhaps because of physical remoteness, civic disturbance, the impossibility of securing evidence which the defendant considered necessary, where two days would not be enough.

I realise that a justice has an inherent jurisdiction to adjourn summonses and I anticipate that the Minister will tell us we have got to assume that justices will behave reasonably— that they will behave as they have always behaved in the past and will not allow a defendant to be taken short. Let me reply immediately so as not to waste time by saying something I have said often before in this House, that we were not entitled to make an act of faith in the good behaviour of people. We must make sure that we do not create an instrument which can be used in an oppressive way, even though I accept that the Minister does not intend it that way. If we make an instrument which can be used in an oppressive way it should be subjected to every reasonable check that we can devise, and the check which my amendments suggest is a reasonable one, one well familiar to this Parliament, whereby orders are laid before each House for affirmative resolution.

I should like very strongly to support this amendment to section 14. It is an important amendment because on the reading of the section as it stands the Minister is taking to himself the power to curtail drastically what could be called the due process of law, the right to have sufficient time to meet a case. This could be curtailed at the discretion of the Minister, and if the Minister is of opinion that an early trial would be desirable it could be curtailed to 24 hours in the case of specific offences which would be so designated by an order of the Minister.

Even if the argument can be made, as the Minister did on Second Reading, for second types of cases where this urgent procedure is appropriate, there is interference with the normal due process of law and it should only be permitted with very strict control. Senator Kelly in his amendment has devised a very appropriate control, the control of Members of this House and of the Dáil in the shape of an order specifying particular offences, to which this might apply, coming before the Houses for an affirmative resolution. This would draw the attention of Deputies and Senators to the areas in which this curtailed procedure would be used, where there would be, for other substantive reasons, an interference with due process of law in this country.

I agree with Senator Kelly that one can argue this and argue the validity of the amendment without implying in the slightest that the Minister or even his successors would abuse the process by extending the urgent procedure to a wide range of summary offences. But as Senators, in passing this section as it stands, we would be making that possible. I agree with the point made by Senator Kelly that we are legislating not for now but for many years to come and that we are at the moment. as the section stands, creating a device for severely curtailing the rights under due process of law, the fair trial rights of the citizen. We are leaving the determination of the offences to which that would relate purely to the discretion of the Minister where even if he did exercise reason—and I presume he would exercise reason—it is not a good principle. It is one where parliamentary control is a necessary control in the circumstances and where, if the order came before the House setting out the offences for which this urgent procedure could be used, there could be a debate in the House as to whether all of these offences were appropriate for it.

In other words, it would be a matter of public comment, a matter of public knowledge, and the determination would be with the consent of Parliament for the particular substantive reasons that an urgent procedure was necessary in these circumstances. The general fair trial rights of citizens should not be interfered with except for very good reasons. Therefore, I should like strongly to support this amendment because, although it concedes the Minister's reason for introducing the section, it gives appropriate control by Parliament. For that reason it ought to be acceptable.

I wish briefly to support Senator Kelly's amendment. Very often there is agreement with it but people shrug their shoulders and say: "Well you cannot put back the clock." Generally speaking legislation by order is bad. Usually when this point is made people will concede that in principle it is sound but that in modern days, with the speed of events and one thing or another, it is necessary to have power to legislate by order. In this section the Minister is proposing to add to the power of legislation by order and proposes to take power in particular cases to abridge the normal time which would be required for District Court summonses.

Senator Kelly has suggested in his amendment that, while accepting the principle enshrined in the section— that is that maybe from time to time cases of urgency would have to be dealt with as matters of urgency by means of an abridging of time—nevertheless that a degree of control should still continue to vest in Parliament and that any orders which the Minister proposes to make should be brought before the Houses of Parliament and should not become effective until they are passed by resolution. I anticipate that the Minister's reply to that will be that that will stultify the effect of the order because if he has to come before the House—the Seanad or the Dáil— with a draft resolution, he might as well come with a Bill each time rather than with a resolution. He may say: "I am not saving time, and if it is a case of a foot and mouth epidemic it may be out of control by the time I could get my resolution through each House of the Oireachtas." I can see that argument. Personally, on balance I would feel that it is far more important to preserve the rights which Senator Kelly is trying to preserve by means of his amendments.

At the same time I can appreciate the Minister's position and it occurred to me that if the Minister is not prepared to go as far as accepting these amendments at least he might be prepared to introduce an amendment which would have the effect that we have often seen in legislation of this sort of enabling the order to be invalidated by resolution of either House of the Oireachtas passed within 21 sitting days or whatever the period may be. I do not think that would be as good a method of dealing with it but at least it would to some extent preserve the kind of principle Senator Kelly's amendment is trying to preserve.

The purpose of these amendments is to provide that orders made by the Minister specifying offences to which the section is to apply must first be laid before both Houses and shall not be laid until a resolution approving of the draft has been passed by each House. I cannot see a justification, in the sort of circumstances this section is trying to deal with, for a provision such as that contained in these amendments. As Senator O'Higgins has acknowledged, the delay involved would of course defeat the whole purpose of the section. It should be noted that the Minister's powers under the section will be restricted to summary offences—indictable charges or charges that could potentially be indictable are not covered.

The Minister will not expect to be thanked for not making indictable offences triable at two days notice.

In addition, there is the power of the district justice to grant adjournments, and in certain instances one would go further than that and say the duty of a district justice to grant an adjournment should apply in appropriate cases where a defendant has not had sufficient notice to enable him to get proper representation. In that connection I should like to refer to Crotty. At page 86 he deals with the defendant's right to an adjournment to procure legal assistance and states:

A defendant has not an absolute right to an adjournment to procure legal assistance, even though he has not had an opportunity to do so. (R.v. Biggins, [1861] 5 L.T. 605) but the refusal of an application for adjournment made bona fide on that ground would be in disregard of the essentials of justice and would be a ground for quashing a conviction, even though the defendant had not given notice of his intention to apply for the adjournment. (R. [Harrington] v. Clare FF., [1918] 2.I.R. 116). If a Justice is satisfied that there has been reasonable time for the defendant to consult a solicitor and refuses an adjournment, the High Court will not interfere. (R.V. Cambridgeshire FF., [1880] 44 J.P. 168).

I think that makes it clear that the position is that it will be held by the High Court, and has been held, that it would be sufficient grounds to quash any conviction obtained in these circumstances if a reasonable opportunity were not given——

But not if the district justice has decided that the two days notice is sufficient.

That would depend on circumstances. Quite clearly it varies from place to place. If a defendant living in some central street in the city of Dublin is served with a two day summons on a Monday, a two day clear summons—that would mean it would be for hearing on the Thursday morning—it would be unreasonable for him to make the case that he could not consult a solicitor, but, on the other hand, if somebody living in a very remote place gets a summons in the same circumstances, obviously the situation would be very different.

Legal advice is only one aspect of it. He might want time to consider his position in all kinds of ways, collect evidence and——

It is all very well for Senators to argue somewhat in the abstract on the rights and wrongs of this. I agree that generally speaking it is highly undesirable that people should only get two days notice. This sort of provision is designed for real national emergencies and I am told—I was not the Minister at the time—that during the last foot and mouth epidemic, which did not actually come in here, though there was very grave danger of it coming in, extreme problems were encountered by the authorities in trying to counter it, in particular the Department of Agriculture, by their inability to prosecute people for as long as a month after the time the summonses were served on them.

If foot and mouth had come in here at that time it would have been a national disaster of the highest order. In providing a section like this to try to avoid such a situation in the future if a similar threat of some sort of national disaster were to come upon us, one has to accept that you cannot retain all the sort of principles that would normally form part and parcel of our law and our administration of justice.

I think it is really unrealistic for people to say when we are faced with a thing like that: "Oh, it is better that this country would lose £100 million by half the cattle in the country having to be destroyed rather than that a man should be asked to defend himself in the District Court on two days notice."

We did not say that.

No, but I am afraid the practical effect of what the Senator said is that. Foot and mouth is the disease or situation I have referred to because this is the one which we very nearly got caught with because of the absence of a provision of this kind. One can envisage it arising in relation to a good many other very serious animal diseases that we do not have in this country because, fortunately, we are remarkably free of animal disease here, of serious contagious animal disease.

One could possibly also see it arising in respect of certain types of human disease, and the provision is there to deal with a situation of grave national emergency. It is not to be used in the ordinary sort of cases and, above all, it certainly is not for use in cases of a political nature. I think that the amendment proposed by Senator Kelly to subsection (1), apart from the practical difficulties of it, does not, as drafted, make any sense anyway, because in effect it says that the provisions of subsections (2) and (3) will have effect on the passing of resolution of approval of the draft order by both Houses, that is, that subsections (2) and (3) would have effect before the order was made by the Minister, which is quite contradictory.

I think Senator O'Higgins realised the futility of the amendments that we are discussing in so far as an amendment of this kind would defeat the whole purpose of the section. He proposed as a sort of compromise that I might perhaps put down an amendment on the Report Stage to the effect that a resolution passed subsequent to the making of the order would disallow the order. Subject to certain reservations I would be prepared to accept that, one of the reservations being, of course, that it would have to be in the normal form, that such disallowance would be without prejudice to anything done in pursuance of the order. I would envisage that perhaps the best way of going about it —we could work it out by the Report Stage—would be that where the Minister makes an order he shall lay it before each House within three days or some specified period, or whatever would be the appropriate thing, and that if a resolution of either House disallowing be passed that the order shall become null and void without prejudice to anything done in pursuance of it.

Senators, I hope, will agree that that is as far as I could go in trying to meet the point they are making and at the same time retain some effectiveness in the section to deal with an emergency. Assuming that both Houses of the Oireachtas were to rise for the summer recess at the end of July or early in August and some emergency of this type took place about the middle of August when neither House was due to meet again until perhaps the middle of October, the whole country could be literally ruined.

I think that would meet it.

I have been persuaded by the Minister that my amendment would cause the difficulty which he has outlined and if he will, as Senator O'Higgins suggested, introduce on Report Stage a provision for a negative resolution I will withdraw both these amendments.

Amendment, by leave, withdrawn.

I move amendment No. 13:

Before subsection (4) to insert the following new subsection:

"( ) A justice of the District Court may adjourn any such summons to any later sitting of the District Court within his district subject to such conditions as he may think fit and shall adjourn same for such period not exceeding seven days as he may consider reasonable, if so requested by the person named in the summons on being satisfied that the purpose of the adjournment is to enable such person to obtain legal assistance."

Amendment No. 13 is rather different. It will not take a lot of time. I just want to put one point to the Minister. He has to some extent dealt with this in his remarks on the last amendment when he quoted Crotty. The point I want to make here is that whether an adjournment will be granted by a district justice is discretionary. I agree with the force of the argument made that, if a district justice refuses to grant an adjournment in cases where it is obviously necessary, it amounts to denial of natural justice and on that ground the conviction might be quashed. The quotation from Crotty which the Minister gave made it clear enough that if the district justice came to a decision in his own mind that 48 hours or two days, whatever it might be, is sufficient, then a High Court would not automatically quash the conviction because the High Court would approach it on the basis that the district justice had the discretion, he considered the matter, he came to a decision that this notice was sufficient and therefore there is no question of denial of justice.

I wish to make the case to the Minister that even in a place like the city of Dublin it may not be possible for a defendant charged under a summons issued under this section to get a solicitor of his own choice: his own solicitor may not be able to deal with it for him at the drop of a hat. Even if he were able to get his solicitor or any other solicitor, it might not be possible, if the case were one of sufficient importance to warrant retaining counsel, to get counsel within the space of a few hours or a couple of days.

As Senator Kelly pointed out, there may also be the complication that it may not be possible for lawyers or defendants to be able to produce evidence to rebut the charges within the time. This might be due to a variety of reasons. There is no need to try to guess at them. A witness might be abroad or something like that could arise.

What I am suggesting here is that this should be put beyond doubt. The beginning of this amendment re-states the position as to the right of the District Justice to grant adjournment but the remainder of it then would make it mandatory for a district justice to grant an adjournment for a period not exceeding seven days which I think is short enough under the circumstances. In a specific case where an application for adjournment is made and the application is made for the reason that the defendant wants to obtain legal assistance and where the district justice is satisfied that that is the purpose of the adjournment, where all those conditions are fulfilled an adjournment should be mandatory.

What I have already quoted from Crotty covers the point made by Senator O'Higgins. On rereading in full the Senator's amendment it is fair to say that it is a reasonable expression of the law as it is in the light of these decisions quoted by Crotty. For that reason I must come to the conclusion that the amendment is superfluous and unnecessary.

One aspect of it that worries me somewhat is that the amendment goes to some pains to show that the defendant must satisfy the justice that the adjournment that he wants is for the purpose of obtaining legal assistance. If this is put in specifically in this way, it implies clearly that the justice's power to adjourn for some other reason might be excluded.

If the Minister reads the beginning of the amendment he will see that the position has been made quite clear. It begins:

A justice of the District Court may adjourn any such summons to any later sitting of the District Court.

and "he shall adjourn" in this particular case which makes the clear distinction between the discretionary and the mandatory.

I am envisaging a situation where, for example, the defendant becomes seriously ill either before or after having the summons served on him. I would regard that as even stronger grounds for adjournment. Perhaps he might have suffered a family bereavement, which of course would not put him in a position to come.

I am not pressing this in view of the Minister's view that I have re-stated the law.

Amendment, by leave, withdrawn.
Amendment No. 14 not moved.
Section 14 agreed to.
Business suspended at 6 p.m. and resumed at 7.30 p.m.
Section 15 agreed to.
SECTION 16.

Amendment No. 16 is related to amendment No. 15 and they should be taken together.

In order to facilitate the House I would be happy to have amendments Nos. 15 to 18 taken together, if Senator O'Higgins is agreeable.

Is the House agreeable to taking amendments Nos. 15 to 18 together?

I move amendment No. 15:

In line 4, to delete "acting generally for" and substitute "retained by".

I put those amendments down because I think section 16 is an important section. It gives the right of audience to solicitors in all the courts including the High Court and the Supreme Court. I appreciate the Minister's reasons for wishing to give a right of audience to solicitors and I agree with him in this but I think in the way in which he has framed the section there may be certain drafting amendments and one amendment in principle. The first of the drafting amendments is designed so that the section would read:

A solicitor who is retained by a party in an action,

I think this is the normal language. There is a certain amount of woolliness in the words "acting generally for". It is not quite clear whether that solicitor is the solicitor briefed and retained by the client in the case.

I do not wish to interrupt the Senator but may I say that I propose to accept amendment No. 16 which I think substantially covers the points of Senator Robinson in the other amendments.

It certainly covers amendments Nos. 15, 16 and 17 but there is a point in amendment No. 18 which could give rise to difficulty as the section at present reads. As the section now reads the solicitor, "who is acting generally for a party in an action, suit, matter or criminal proceedings" is given right of audience in that court. The problem that this gives rise to is that it is quite possible to envisage a situation, in Court 4 in the Law Courts on a Monday morning, where a solicitor is acting for a client in a particular matter. As the section now reads, having done so, he then has a general right of audience in the court for that morning. I do not think this is the intention. I think the intention is to confine it, as my amendment attempts to do, to that "action, suit, matter or criminal proceedings". In other words, if a solicitor comes in, retained by a client in a particular proceedings, he is given the right of audience in relation to that action, matter or proceedings in the court. A perfectly legitimate reading of this section, as it stands, is that a solicitor is acting for a client in a particular case and once he has disposed of that case he is given a right of audience in general in that court and there might be other matters in which he might be retained either by that client or by somebody else in which he could then have a right of audience. It could give rise to problems of interpretation more than anything else. If the sense of it is to give the solicitor a right of audience in a particular action, suit, matter or criminal proceedings it could be improved by so stating.

There is just one point I would like to clarify. I hope Senator Robinson's amendment would not exclude a solicitor's Dublin agent. In very many of these cases at present it is a matter of consenting to an order. At present a solicitor must brief counsel to do so. In the ordinary course of events what he would do in such circumstances would be to instruct his Dublin agents who would be appearing for him in any event in the court and who would stand up and say: "Yes, I consent to the order," and thereby spare a considerable amount of expense to the parties involved.

I think that the amendment the Minister has actually accepted clarifies that point. A Dublin agent would not be acting generally for a client; he would be acting for him in that suit, matter or business. It is a problem, and I have been asked by a number of people what the meaning is. There is a general feeling that it could have a rather ambiguous effect. As the section now reads, if a solicitor in a busy court on a Monday morning has acted in a matter, he has a right of audience in that court. It is a matter of construction. What is intended, and what I certainly would support, is to give him a right of audience in a matter or action where he is retained by a party to that action.

If the section is passed, a solicitor has a right of audience in every court at all times. However, there is a presupposition naturally that he has a right of audience only in respect of a case in which he is instructing. The fact that he appears when some matter is mentioned in Court 4 on a Monday morning and that that matter is finished at 11.5 a.m. means that it does not affect his right, or his lack of right, to go into any other court and appear in anything else. He will, assuming the section is passed, have the right to appear in any part of the High Court he wants to. Naturally enough, he will only appear if he is instructed. For that reason, I do not think that the words suggested by Senator Robinson are necessary, or that they should be added. So far as Senator Nash's point is concerned, it is accepted that a town agent is an assistant, acting for a solicitor, and I think that he comes within the——

He would not be on record as the solicitor.

No, but he is the solicitor's agent or assistant at the moment, for example, for the purpose of a hearing before the Master. Therefore. I do not think that that problem could arise.

Provided that that is there, because otherwise, if the amendment is accepted, the solicitor on the record as the solicitor is the solicitor down the country, or as the case may be——

As Senator Robinson has pointed out, by accepting amendment No. 16 and dropping the word "generally" in the first line of the section, I think that the point would be covered.

To some extent, the Minister has helped to clarify my problem. If the intention was to give a general right of audience, I could not understand really why it was being framed in this way. I framed the amendment as a logical follow-up of that. I take it that the sense is that a general right of audience will be given to solicitors in courts and I think that this is obviously what is meant by it.

There is another problem in relation to the wording. I did not frame an amendment to this but I should like to comment on it. The assistant had to be qualified to practise, within the meaning of the Solicitors Act, 1954, but there is not any statement that the solicitor need be qualified to practise. It seems slightly illogical and I think that it is to meet the case of young solicitors who have not yet——

No. I think that it is to meet the case of an assistant who is qualified in the sense that he has passed the final examination of the Incorporated Law Society and has got a parchment, or whatever one gets, from the President and a pep talk, but who has not bothered to take out a practising certificate because the cost of a practising certificate is grossly exorbitant. It need only be taken out by solicitors who are principals of firms or who, as assistant solicitors in firms, actually go to court and speak in court. You can be a qualified solicitor but not be qualified to practise within the meaning of the Solicitors Act. That is why the distinction has to be drawn here. This is drafted in such a way as to cover the situation where a man is qualified but has not taken out a practising certificate, and that applies to a number of solicitors.

I am satisfied with the explanation and, with the permission of the House, I am prepared to withdraw the amendment.

I want to suggest to the Minister briefly that perhaps if there is at present in force a statute which implicitly restricts the right of audience of solicitors to the District Court and Circuit Court, the section would be improved by including an expressed repeal.

I shall have a look at that.

Amendment, by leave, withdrawn.

I move amendment No. 16:

In line 4 to delete "generally".

Amendment agreed to.
Amendments Nos. 17 and 18 not moved.
Question proposed: "That section 16, as amended, stand part of the Bill."

On the section, there is a matter that came up at the Second Reading. I think that it ought to be clarified because a lot of people mentioned it. That is the reference the Minister made to the fact that, because it is intended that we sign the Treaty of Rome and enter the Common Market, it is necessary to give solicitors a right of audience in all courts. I do not accept this contention that it is necessary. In Great Britain it is most unlikely that solicitors will have a general right of audience in the courts. It is not quite a red herring but it was raised. It is not necessary for the purposes of the European Court that solicitors have the right of audience in the court here.

Question put and agreed to.
NEW SECTION.

Amendment No. 20 is an alternative to Government amendment No. 19, so amendments Nos. 19 and 20 should be taken together.

Government amendment No. 19:
In page 5, before section 17 to insert the following new section:
"(1) The weekly sum payable under paragraph (1) of section 1 of the Married Women (Maintenance in case of Desertion) Act, 1886, by a husband to his wife shall be such sum for her support as the court may consider to be in accordance with his means and with any means the wife may have together with such sum for the support of any child of the husband and wife who is wholly or partly supported and maintained by the wife until that child attains the age of 16 years as the court may consider to be in accordance with the means of the husband and the means (if any) of the child and the degree of support and maintenance the child is receiving from the wife.
(2) The power to vary a weekly sum payable under the said section I shall include a power to vary the sum——
(a) upon proof that the means of a child for whose support part of the sum is payable have been altered in amount since the original order determining it or any subsequent order varying it was made, and
(b) without the proof of alteration in means referred to in the said section 1 if the sum is payable under an order made before the passing of this Act.
(3) Paragraph (2) of the said section 1 shall not have effect in relation to any part of a weekly sum under the said section 1 which is or would be payable for the support of a child.
(4) (a) Subject to subsection (5) of this section, the High Court shall, concurrently with the District Court, have jurisdiction to hear and determine proceedings under sections 1 and 2 of the said Married Women (Maintenance in case of Desertion) Act, 1886.
(b) Rules of court shall provide for the conduct of proceedings in the High Court under the said sections 1 and 2 in a summary manner.
(c) The costs of proceedings in the High Court under the said sections 1 and 2 shall be at the discretion of the court.
(5) (a) The District Court shall not have jurisdiction to make an order under the said section 1 or 2 for the payment of a weekly sum of which more than £15 is for the support of a wife or of which more than £5 is for the support of a child.
(b) Nothing in this section shall be construed as conferring on the District Court jurisdiction to make an order under the said section 1 or 2 in any matter in relation to which the High Court has made an order under either of these sections."

Under section 1 of the Married Women (Maintenance in Case of Desertion) Act, 1886, as amended by section 7 of the Enforcement of Courts Orders Act, 1940, the maximum amount which the District Court may order a husband who has deserted his wife to pay her for her support and the support of her family is £4 a week.

There has been continual public pressure for an increase in the present allowance. The section in the Bill as introduced proposed that the law should be amended to provide for: (a) an increase to £7 10s a week in the maximum rate of maintenance allowance which the District Court may award to a deserted wife; (b) the award of maintenance of up to £2 10s a week in such cases in respect of each child of the marriage who is under 16 years of age, until the child reaches that age.

However, in view of the criticism expressed in the Seanad on the Second Stage and having regard to the recent changes made in the law in England and in the North, where the limitations on the amounts that may be awarded have been removed altogether, the matter was reconsidered. The Attorney General advised, however, that constitutional difficulties would operate here against giving the District Court unlimited jurisdiction but that it would be appropriate to allow that court to operate within a limit of £15 a week in the case of a deserted wife, together with a limit of £5 a week in respect of a child of the marriage.

Accordingly, the new section 17 which I now propose in substitution of the section in the Bill as introduced in this House provides as follows: Subsection (1) provides that the weekly sum payable by the deserting husband for the support of his wife shall be such sum as the court considers to be in accordance with his means and any means the wife may have, together with such sum for the support of any child of the marriage who is wholly or partly supported and maintained by the wife, until the child reaches 16 years of age, as the court considers to be in accordance with the means of the husband and the means, if any, of the child.

Paragraph (a) of the subsection (2) will enable the court to vary an order, where the means of the child have altered. This is consequential on the extension of the court's power to order payment of a weekly sum in respect of the support of a child of the marriage.

Paragraph (b) will enable a deserted wife who already has an order to apply to have the order reviewed by the District Court under its extended jurisdiction without the necessity of proving that the husband's means have altered since the order was made. There will be cases where, although the husband's means have remained unchanged, the court would feel justified in ordering a higher payment under its extended jurisdiction.

Subsection (3) is also consequential on the extension of the court's power to order a weekly payment in respect of the support of a child. The position will be that where the wife is proved to have committed adultery the court may discharge the order for payment of a weekly sum in respect of the support of the wife—paragraph (2) of section 1 of the 1968 Act. This will not apply however in the case of an order in favour of a child.

Subsection (4), paragraph (a) of the subsection gives the High Court jurisdiction, concurrently with the District Court, to make orders under the 1886 Act but without limit as to amount. Paragraph (b) will ensure that proceedings in the High Court under the 1886 Act will be conducted in as simple a manner as possible, that is, summarily. Paragraph (c) provides that the costs of proceedings in the High Court under the 1886 Act will be at the discretion of the court. This is the position in the District Court.

Paragraph (a) of subsection (5) limits the jurisdiction of the District Court to make orders under the 1886 Act to sums not in excess of £15 a week in respect of the wife and £5 a week in respect of the support of a child. In regard to paragraph (b) it is desirable that the District Court, being an inferior court, should not have power to interfere with an order of the High Court. Provision is made accordingly.

We, in this party, welcome unreservedly the Minister's amendment. I hope the Minister will not take it badly if we do ourselves the justice of saying that we believe the amendment might not have been presented to the House were it not for the Private Members' Bill which we introduced here earlier this year and the substance of which is included in amendment No. 20. Having said that I will not make any further political capital out of the incident because I recognise that the Minister and his Department have been persuaded by the arguments we put up and I appreciate the fairly considerable lengths to which they have gone in meeting the basic point behind our action, which was that the old legislation and—even the new legislation as originally proposed—was unfairly inflexible, and the amounts proposed were unrealistic.

The Minister has gone even further than our proposal for a ceiling related in terms of proportion to the husband's earning, and the Minister's new proposal does not even contain this ceiling. I am not sure if this is altogether wise but I will not carp about it because I think the intention behind the Minister's amendment is the right one.

He referred to advice which he got from the Attorney General that it might be unwise to allow the District Court to make unlimited awards in a matter of this kind. I do not wish to take issue with the Attorney General on a matter such as this, but is this very clear? It is clear that the jurisdiction of the District Court in criminal matters is limited to minor offences and it is also true that the Constitution speaks of courts of lesser jurisdiction than that of the High Court, but I am not so clear where the Attorney General gets his idea that the District Court in a matter such as this, which is scarcely more than a judicialisation of a notion of social welfare, should be limited to a particular amount. I do not want the Minister to be on record without opposition as having introduced this amendment under pressure from the Attorney General. I would not accept the Attorney General's view on this without a good deal of thought, and my first reaction to it is that it is unfounded. However, I welcome the amendment and perhaps if I were to say any more about the circumstances in which the Minister produced it, I would be thought ungenerous.

There is a small matter which seems to be defective and it is a defect which equally appears in the amendment which I put forward and it only occurred to me later when I was reading these amendments. It is this. Subsection (1) of the Minister's proposed new section speaks of a sum for the support of any child of the husband and wife who is wholly or partly supported and maintained by the wife. My own amendment had the same qualification "a child under the age of 16 years of whom the husband is the father". On reflection I wonder would the House be wise to pass the Minister's section as it stands?

We will be leaving out of consideration a case in which a family break-up occurs after perhaps a long period where either of the parties is the parent of a child of a previous marriage. In other words, where there may be a step-child in the picture, perhaps a step-child of the deserting father, a child of the wife by a previous marriage, who is perhaps completely in contemplation of the deserting husband at the time he left his wife. There could be a case for amending this section, if I have not misread it, in such a way as to make it possible to take the support of that child into consideration. A deserting husband may have married a wife who already has come into marriage with a step-child or with an illegitimate child whom the husband has taken on himself to support after the marriage. If his desertion is going to leave his wife with the burden of supporting that child, perhaps we are wrong in restricting this new legislation in the way we are about to do. It might be better if this section were re-drawn in such a way as to make it possible to make an order in respect of a child, including a step-child and an illegitimate child, lawfully the responsibility of a parent to provide for, even though that child is not the child of the deserting husband.

And also an adopted child.

An adopted child is covered.

An adopted child would be regarded as a child of the husband and wife but there is substance in the point which Senator Kelly has made in relation to the child of a previous marriage. That child would not be a child of the husband and wife.

I will have a look at that and see if something can be done about it.

A child to whom the husband and wife are in loco parentis would probably cover it.

In common with other Senators I should like to welcome this amendment to the section. It is a great improvement on the section as it initially read and I should like to join in giving credit to the Minister for doing this. It is an imaginative idea to give the High Court jurisdiction of an unlimited nature. This would be more a reality if it were possible to have legal aid for the unmarried mother. This is a matter which ought to be considered in this context.

It does not seem to arise under this section.

It would arise in considering the amendment. Although the proceedings would be summary, they would be the cheapest possible in the High Court.

Would she not get costs against her husband?

She might.

Assuming she was married to him she must.

Amendment agreed to.
Amendment No. 20 not moved.

Section 17 has been deleted by the acceptance of amendment No. 19.

SECTION 18.

Government amendment No. 21:
In page 5, before section 18 to insert the following new section:
"(1) The Illegitimate Children (Affiliation Orders) Act, 1930, is hereby amended by—
(a) the substitution of ‘fifty pounds' for ‘five pounds' in section 3 (1) (a),
(b) the deletion of ‘not exceeding twenty shillings' in section 3 (1) (b), and
(c) the substitution of ‘fifty pounds' for ‘five pounds' in section 7.
(2) (a) Subject to subsection (3) of this section, the High Court shall, concurrently with the District Court, have jurisdiction to hear and determine proceedings under the said Illegitimate Children (Affiliation Orders) Act, 1930, and the said Act shall apply, with any necessary modifications and adaptations, in relation to any such proceedings in the High Court, or on appeal therefrom in the Supreme Court.
(b) Rules of court shall provide for the conduct of proceedings in the High Court under the said Act in a summary manner.
(3) (a) The District Court shall not have jurisdiction to make an order under the said Act for the payment of a weekly sum exceeding £5 for the maintenance and education of a child.
(b) Nothing in this section shall be construed as conferring on the District Court jurisdiction to make an order under the said Act in any matter in relation to which the High Court has made an order thereunder."

This amendment I could say, broadly speaking, achieves the same sort of changes in relation to affiliation orders as the amendment to the previous section did in relation to deserted wives and children. It makes the corresponding increases and confers the corresponding jurisdictions. If Senators wish I can go through it in more detail. It can be regarded as consequential on the other one in giving the same rights to illegitimate children as to deserted children.

Amendment agreed to.

Section 18 is deleted by the acceptance of amendment No. 21.

Section 19 agreed to.
SECTION 20.
Government amendment No. 22:
In page 6, before section 20, to insert the following new section:
"Section 22 of the Courts (Supplemental Provisions) Act, 1961, is hereby amended by the substitution for subsection (8) of the following subsection:
‘(8) (a) Any interested party may at any time apply to the judge of the Circuit Court before whom an action commenced in that court or an appeal from the District Court is pending to have the action or appeal forwarded to the High Court and thereupon, in case the action or appeal is one fit to be tried in the High Court and the High Court appears to be the more appropriate tribunal in the circumstances, the said judge may send forward the action or appeal to the High Court upon such terms and subject to such conditions as to costs or otherwise as may appear to him to be just, and an appeal shall lie under section 38 of the Act of 1936, as applied by section 48 of this Act, from the decision of the judge granting or refusing any such application.
(b) Any interested party may at any time apply to a justice of the District Court before whom an action commenced in that court is pending to have the action forwarded to the Circuit Court or the High Court and thereupon, in case the action is one fit to be tried in the Circuit Court or the High Court, as the case may be, and the Circuit Court or the High Court, as the case may be, appears to be the more appropriate tribunal in the circumstances, the said justice may send forward the action to the Circuit Court or the High Court, as the case may be upon such terms and subject to such conditions as to costs or otherwise as may appear to him to be just, and an appeal shall lie under section 84 of the Act of 1924, as applied by section 48 of this Act, from the decision of the justice granting or refusing any such application.'"

Under section 22, subsection (8) of the Courts (Supplemental Provisions) Act, 1961, the Circuit Court has power, on application to it by one of the parties to an action commenced in that court, to transfer the action to the High Court in cases where the action is more appropriate to be heard in the High Court. The decision of the circuit judge on that matter is appealable. It is proposed to replace this subsection in the 1961 Act by a new subsection providing that either the District Court or the Circuit Court could transfer any civil proceedings, including proceedings in the Circuit Court by way of appeal, to the appropriate higher tribunal.

The new section will allow the District Court or the Circuit Court to act on the application of any interested party and the decision of the district justice or the circuit judge, as the case may be, will be appealable. The need for extending the provision in section 22 of the 1961 Act, as proposed in the amendment, arises from the fact that in proceedings involving a number of wrongdoers the plaintiff may be suing for damages within the jurisdiction of the District Court whereas there may be a counter claim for considerably more than £250. For example, suppose that arising out of an accident involving two cars and a bicycle, P, the driver of the first car, sues D1, the driver of the second car, and D2, the cyclist, for damage to his, the plaintiff's car, and D2, the cyclist, sues P and D1 for personal injuries amounting to £5,000. The object of the Civil Liability Act is that the liability of all the parties P, D1 and D2 should be determined in the one action. Because of the amounts involved the District Court is——

Before we run out of letters of the alphabet.

I am using P and D as plaintif and defendant. The District Court is obviously not the appropriate court in such a type of case. The case that was made to me by some people was that a paraplegic could be bound by a decision in a claim for £100 damage for a car, which I agree would be undesirable, so the purpose of the amendment is to leave it open to the parties to avoid that situation.

My only comment on the section, which I do not object to in its purpose or general structure, is that unless I misunderstood it the effect of clause (b) might be to leave it within the discretion of the district court to refuse permission to a plaintiff to bring his complaint to the High Court and purportedly to deprive the High Court of jurisdiction. I only make the comment in case the Minister or his advisers would like to consider it. There is a strong trend of judicial opinion to the effect that the Constitution has conferred on the High Court a complete jurisdiction in all matters and questions, civil and criminal whether of law or of fact and that any legislation which purports to shut the High Court out——

Sorry. I do not wish to interrupt the Senator but this is a case where the plaintiff has himself started his proceedings in the district court. It would, of course, have been open to the plaintiff, had he so desired, to start in the High Court. He may have been well below the jurisdiction and he may have suffered penalty and costs as a result. If his claim is only for £100 he very properly starts in the district court. There is no question, therefore, of the plaintiff being shut out from the High Court. If the plaintiff started the action in the District Court it would clearly be one or other of the defendants in the example that I gave who would wish to see it remitted upwards, whatever the word for that is. It is also appealable.

But it is appealable only one step upwards.

I am just trying to think if it is appealable two steps up, because if the District Court turns you down and you appeal the substantive case to the Circuit Court you can apply to the Circuit Court judge because he will have jurisdiction under this amendment to consider an application where the case is before him by way of appeal only. If he refuses your application you can appeal his refusal to a judge of the High Court on the circuit. In practice you could get two runs at appealing it. You could get it to a High Court judge anyway if it was only by way of appeal.

Perhaps the Minister is right. I hope he is right about this. I only wanted to prevent us from going through the motions of doing something which could be represented afterwards in some kind of designation which we cannot foresee as conferring on a judge of one of the inferior courts the power to shut out litigation of any kind from the purview of the High Court. Perhaps, if the Minister is right in thinking that this is the effect of the section, I need not hold the House up.

Am I right in thinking that the phrase "any interested party" does not necessarily mean a party who is actually named as plaintiff or defendant in the proceedings?

Somebody who could get himself in as a third party.

I was thinking of interpleading procedure or something of that sort.

He apparently would have the right to go in and make the application.

Amendment agreed to.
Section 20, as amended, agreed to.
Section 21 agreed to.
SECTION 22.
Government amendment No. 23:
In page 6, line 50, to delete "and".

Amendments Nos. 23 and 24 may be taken together.

The purpose of the two amendments which are being taken together is to repeal section 60 of the Courts (Supplemental Provisions) Act, 1961, which is consequential on section 16 of this Bill which gives the right of audience in all the courts to solicitors. The repeal of section 65 of the Solicitors Act, 1964, which qualifies an assistant solicitor to the same right of audience as a principal is already being repealed in the section. Section 60 of the Courts (Supplemental Provisions) Act, 1961, was enacted to remove doubts expressed at that time as to whether the right of audience of solicitors in the then existing Circuit Court, which was the Circuit Court of justice, was being carried over effectively to the new Circuit Court established by the 1961 Act. It would be no longer necessary on the enactment of section 16. This meets the point as made on section 16 by Senator Kelly that the specific section should, for the sake of clarity, be repealed. I had overlooked the fact.

Amendment agreed to.
Government amendment No. 24:
In page 6, line 51, after "section 14 (2) " to insert "and section 60."
Amendment agreed to.
Section 22, as amended, agreed to.
SECTION 23.
Government amendment No. 25:
In page 7, line 5, to delete "11" and substitute "12".

Amendment No. 25 is consequential on the insertion of the new section 12 which extends the jurisdiction of the Hotel Proprietors Act, 1963, and which was inserted because of the acceptance by the House of amendment No. 9. The effect of the amendment will be that the extended jurisdiction will come into operation on the same date as the other two sections.

Amendment agreed to.
Government amendment No. 26:
In page 7, line 6, to delete "January" and substitute "March".

Subsection (4) of this section proposes the coming into operation of the various sections in the Bill extending jurisdiction of the Circuit and District Courts. As it stands it proposes that they come in on 1st January, 1972. This was considered desirable in order to give the various rules committees time to make new rules in relation to higher jurisdiction in so far as matters such as costs, etc., are concerned. But as the Bill is now unlikely to be enacted until some time well into November, it would be appropriate to put back the date of the coming into operation for two months to give more time for these rules to be made. That is why I am proposing the amendment.

It was I who made this point on Second Reading that the Minister by proposing to bring the Act into operation on 1st January was cutting it very close for the committees which he has just mentioned. I said then that the long vacation was intervening and October was not a good time to get barristers to do work like this because they were too busy catching up on the flood of work at the beginning of term and so on. The Minister obviously had things like this in mind when he suggested the amendment which he now proposes. I am wondering whether he is not again leaving himself with too little elbow room. I do not know how long these committees take to function, but I would not be too happy if I were Minister and found that I had to operate this Act as from 1st March, which is now only a little more than four months away, and had to set up a committee of ten or 12 busy judges, barristers, solicitors and officials. I wonder whether the Minister might not be happier if he were to make it 1st June. It is entirely a matter for himself. It would not be our fault if it does not work foolproof. Either that or give himself power to make an order for the coming into operation of the Act.

The committees concerned have had the Bill since last June. I requested them at that time to be bold enough to take for granted that the bones of the Bill would ultimately be enacted by the Oireachtas and to start working on that basis, but I understand that they are reluctant to do anything very definite until in fact it is enacted. They will have from three to three and a half months from the time it is enacted to prepare the necessary rules, and since the rules will relate mainly to costs, which might be and inducement to them to expedite it, I have every confidence in their ability to have it ready by 1st March.

I would feel happier if the Minister would have it come into effect and an order were made by him. He can then make his order for 1st March or otherwise.

If they have not got a date, Senator, they might be very slow. The Senator knows how conservative they are. I like to give them some date to aim at.

Amendment agreed to.
Government amendment No. 27:
In page 7, to add to the section the following new subsection:
"(5) Section 13 of this Act shall come into operation on the 1st day of March, 1972."

This is consequential. The reason that it could not be included in the previous one is that another section intervened which did not relate to jurisdiction and analogous matters, but it is the same as the previous amendment except that this relates to the section which proposes that in any proceedings relating to a decision in the District Court regard would be had only to the formal order signed by the justice.

Amendment agreed to.
Section 23, as amended, agreed to.
Title agreed to.
Bill reported with amendments.
Report Stage ordered for Wednesday, 3rd November, 1971.
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