Committee Reports > List of Committees > Seanad > 1926 > Special Committee on Rules of Court > Report - Rules of Court

SEANAD EIREANN.

TUARASGABHAIL ÓN gCOISTE SPESIALTA A CEAPADH CHUN NA RIALACHA CUIRTE DO BHREITHNIU AGUS TUARASGABHAIL DO THABHAIRT INA dTAOBH.

1. Do ceapadh an Coiste do réir Rúin a rith an Seanad Dé hAoine, 9° Iúl, sna téarmaí seo leanas:—

“That the Rules of Court for the High Court and Supreme Court, the Circuit Court and the District Court be referred to a Special Committee for consideration and report, such report to be presented to the Seanad and circulated to Senators not later than Monday, 19th instant, and that a meeting of the Seanad be convened for Thursday, 22nd instant for the consideration of the Committee’s report and for the approval or otherwise of the Rules.”

Do ceapadh Tomás Beinéid, Somhairle Brún, Séamas Dubhglas, Tomás O Fearáin agus an Tiarna Lannaibhidh, Seanadóirí, chun fónamh ar an gCoiste.

2. Do chruinnigh an Coiste ar 12 meán lae Dé Luain, 11° Iúl.

Do bhí i láthair:—Tomás Beinéid, Somhairle Brún, Séamas Dubhglas, Tomás O Fearáin agus an Tiarna Lannaibhidh.

Do cuireadh an Tiarna Lannaibhidh i gCeannas.

Do cuireadh an Coiste ar ath-ló ar 2.30 p.m. go dtí 11.30 a.m. Dé Céadaoin, 14° Iúl.

Do chruinnigh an Coiste ar 11.30 a.m. Dé Céadaoin, 14° Iúl.

Do bhí i láthair:—An Tiarna Lannaibhidh (i gCeannas) agus Tomás Beinéid, Somhairle Brún, Séamas Dubhglas agus Tomás O Fearáin.

Do cuireadh deire leis an gcruinniú ar 1.15 p.m.

3. Dineann an Coiste, tar éis dóibh teacht le chéile agus tar éis dóibh do réir na dtéarmaí tagartha breithniú do dhéanamh ar na Rialacha Cúirte don Ard-Chúirt agus don Chúirt Uachtarach, don Chúirt Chuarda agus don Chúirt Dúithche a thíolaic an tAire Dlí agus Cirt don tSeanad chun go gceadófí iad, a thuairisciú mar leanas:—

RULES OF THE HIGH COURT AND SUPREME COURT.

The Committee recommend that each and all of these Rules be approved.

RULES OF THE CIRCUIT COURT.

The Committee recommend that these Rules be approved save as to the following, which they recommend should be disapproved:—

(1) Rule 10 prescribes ‘My Lord’ as the English form by which the Judges are to be addressed. This is the same form as that prescribed by the Rules of the Supreme Court and High Court for their Judges but the Committee recommend that the long-established practice by which this form of address was confined to the Judges of the High Court should be retained as an indication of the distinction in status. It will be observed that by the same Rule this distinction is preserved by the form of address in Irish.

(2) Rules 72 and 74. These rules regulate the procedure in the case of persons suing or being sued in forma pauperis. Rule 72 contains no provision requiring the person applying for leave so to sue or defend to verify by affidavit the facts upon which he bases his claim or defence.

Rule 74 disentitles any Counsel or Solicitor to any costs or fees from the person so admitted to sue or defend but goes on to provide that if he succeeds and costs are awarded against his opponent, his Counsel and Solicitor shall be entitled to receive all the usual costs and fees when taxed by the proper officer. The Committee is of opinion, first that this Rule is unfair to the opposite party in the litigation, who ex hypothesi cannot recover any costs if he succeeds but would in the event of defeat be compelled to pay not only his own costs but also costs and fees which have not been incurred or paid by the other party: and secondly the rule sanctions the vicious principle of payment by results for professional services.

(3) Rule 107. The words “has no substantial interest in the cause of action” are certain to cause difficulty in their application, as they plainly might be construed as covering and including an interest that is something greater than nominal.

(4) Rule 176 (b) and (c) confers upon either litigant in every case to be tried by a jury the right to have it tried by a special jury. The Committee is of opinion that this unlimited right is liable to abuse and should be a matter to be determined, on application, by the Judge in the case of claims under a prescribed amount or of a trivial character. Further, no discretion appears to be left to the Judge at the trial to disallow to the party claiming the special jury the extra costs thereby occasioned.

(5) Rule 241. This Rule is in the opinion of the Committee ultra vires in so far as it extends the statutory jurisdiction of the Circuit Court by conferring validity upon all orders of the Court in any case in which the excess of jurisdiction only appears in the progress of the suit provided such orders were made before the fact of excess appeared. We are also of opinion that the proviso limiting the application of this Rule to cases in which the Court shall be of opinion that the action or matter was not brought from an improper motive are too vague and difficult in application.

(6) Rules 263 to 273. These Rules apparently contemplate that the Court may upon an ex parte application make an order for attachment and even make an absolute order on the occasion. So far they seem to be in direct conflict with Rule 305 and the Committee are of opinion that this Rule should prevail.

(7) Rule 449. This Rule apparently covers and includes the costs in cases tried with a jury as well as those tried by a Judge without a jury, and in so far as it deals with cases tried with a jury it fails to give full effect to section 94 of the Courts of Justice Act, 1924, while, in cases tried by a Judge without a jury, he should, in the opinion of the Committee, be required in any case in which he deprives the successful party of his costs to state in his order the grounds of his decision.

(8) Rule 450. The Committee consider the scale of costs to be excessive.

(9) Rule 468. The Committee would not have objected to this Rule had it been confined to the correction of any obvious error, whether in a judgment or process, in spelling or in figures or in date, but strongly disapprove of its extension to “patent errors” in a judgment.

DISTRICT COURT RULES.

The Committee recommend that these Rules be approved save as to the following, which they recommend should be disapproved:—

(1) Rule 20.The Committee direct attention to the disparity between the fees to be paid under this Rule and that payable under Rule 77. The former Rule appears to apply to criminal proceedings and the latter to civil, but this fact alone does not seem to account for the disparity referred to.

(2) Rule 24. This Rule seems defective in so far as it applies only to cases in which an order is made for payment of money. It should extend to all cases of a civil nature regardless of whether the result is a decree for payment or a dismiss.

(3) Rule 36. The words by which it is proposed that the alternatives should be offered to the accused are defective and calculated to mislead. Should the accused “object” to being tried summarily it follows automatically that his case must be sent forward to be tried by a Judge with a jury. The appropriate form should make plain the alternatives of a summary trial or a trial by a Judge and jury.

(4) Rule 93. This Rule confers upon the Justice an unlimited discretion in the grant of witnesses’ expenses. Hitherto such expenses have been regulated by scale.

(5) Rule 95. The power conferred by this Rule is much too wide. It apparently enables the Justice to adjourn any case as often as he thinks fit and for an indefinite period without requiring him to make an order for the purpose.

(6) Rule 151. This Rule is defective in prescribing no time limit within which the applicant’s document of title must be produced. As it stands it would enable a person to carry on business as a licensed publican for any period short of a year in premises to which he may prove to have had no title.

(7) Rule 171. This Rule is merely a reproduction of a section in the Summary Jurisdiction Act, 1857 without the addition of a further section in the same Act entitling the party whose application for a case stated has been refused to apply to the High Court for an order compelling the Justice to state a case. The reproduction by a Rule of the one section only is calculated to mislead.

(8) Rule 180. The concluding words of this Rule confer by implication on the Justice the power to amend errors or mistakes of a verbal or technical nature even though they have a tendency to mislead the opposite party.

It will be observed that the Committee offer no suggestions as to the form of amendment of any of the Rules which they recommend should not be approved. In the first place they consider that the Seanad is not authorised to amend the Rules and is confined to approval or disapproval, while they are also of opinion that the Seanad has neither the time nor the materials at its disposal to enable it to determine the nature and terms of any such amendment.

(Signed) GLENAVY,

Cathaoirleach an Choiste.

15th July, 1926.