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REPORT.The Joint Committee appointed to consider and report on the Rules of the Circuit Court, made by the Minister for Justice under Section 66 of the Courts of Justice Act, 1924, and presented to both Houses of the Oireachtas on the 25th day of April, 1928, beg to report as follows. 1. These Rules have not been considered in detail by the Committee as, in their opinion, they involve the determination in the first instance of the question whether, when considered as a whole, they are suitable and appropriate for the Circuit Courts, having regard to the limited jurisdiction of these Courts, the conditions to which they were intended to apply, and the interest's to be served by them. In substance and effect the Rules in question supply the Circuit Courts with the practice and procedure of the High Court, and for this purpose cover with some few exceptions the ground already occupied by the Rules of the High Court, though with considerable alterations in phraseology. 2. The Rules themselves have been manifestly drafted as the result of careful consideration, but the Committee has failed to find anything in them which would justify their substitution for the existing Rules of the High Court, which have stood the test of the experience of half a century, and if the purpose for which they are intended is to be given effect to, it would be better accomplished by the simple method of adopting these High Court Rules, with such adaptations as the circumstances might be considered to require. The Committee is however unable to recommend this course, believing that it would materially tend to defeat the main purpose for which these Circuit Courts were constituted, namely the provision of Courts in which litigants in humble circumstances might have their cases disposed of with convenience of access, comparative cheapness, simplicity and expedition. It is true that these Courts have had conferred upon them a jurisdiction which, even with due allowance for the alteration in money values, is more extensive than that previously exercised by the Civil Bill Courts, whose place they have taken, but the Committee cannot find in this fact alone a justification for the radical revolution inevitably involved in the sudden application to these Courts of the practice and procedure of the High Court. Any careful analysis of the Rules proposed must demonstrate that they will add materially to the cost, complication and delay of litigation. 3. They introduce for the first time into these local and subordinate courts the elaborate system of pleadings, discovery of documents, particulars, admissions, etc., involving the possibility of constant applications to the Court of an interlocutory nature at every stage between the initiation and conclusion of every action, no matter how trivial, and enable a litigious and insolvent Defendant to deprive his plaintiff of any redress until after months of harassing litigation, of which the cost must ultimately fall upon the latter. To take one illustration, we refer to the Rules which deal with the “Parties” to any action. They number thirty-two, whereas twenty-one have been found sufficient for the High Court, while the position under the existing County Court Rules of 1877 has been met by nine. The jurisdiction of the High Court is unlimited and involves, especially in commercial and probate cases, as well as in actions for personal injuries, the investigation of claims running into many hundreds of pounds, for which this elabroate procedure is often useful, if not essential. Further, it is a stationary Court, with its seat in Dublin and with daily sittings, for which judges and officers are available. The Circuit Court, on the other hand, is migratory and in the majority of cases includes several counties, so that its Judge is necessarily absent for long intervals from any particular county. It is very difficult to see how, under such conditions, he can be available for the hearing of the innumerable applications which under this new procedure may arise at every stage of litigation, however insignificant in form or amount, of which the majority must be disposed of by him within a prescribed and limited period. If these applications are to be heard in the county in which the litigation has originated, the Judge will of necessity have to abandon his work in another county, while if he hears them in the county in which he happens to be at the moment, his work in that county must suffer and the solicitors concerned for the parties interested in the applications will often be compelled to travel long distances for the purpose, at great personal inconvenience and with resulting expense and delay to their clients. 4. The Committee is satisfied that if these Rules are approved they will so materially increase the duties of the Judge, the County Registrar and the official staff as to make a substantial increase in their number inevitable, while the added complication, expense and delay will be practically prohibitive for poorer litigants. Cases may occur, under the present extended jurisdiction of the Circuit Courts, in the commercial centres of the Counties of Dublin and Cork of sufficient importance or complication to justify the application of the new procedure, but the percentage of such cases would be small, while in the agricultural counties of the West and South they would be the exception, so that in neither case would this casual advantage compensate for the expense, inconvenience and delay they would impose upon the great majority of litigants. It is further to be remembered that there is in existence and available for the Circuit Courts a code of Rules which since 1877 have regulated the practice and procedure of the Country Courts. They are about two hundred in number, and can be utilised by litigants or practitioners without the cost or delay of a preliminary application to the Court. Throughout the period mentioned they have proved sufficient and adequate without material alteration or addition for all purposes of the County Courts, and no demand ever was made by litigants, the legal profession, the County Court Judges or the Judges of Assize for the additional procedure to be found in these new Rules. These County Courts had exclusive jurisdiction in all cases under the Workmen’s Compensation Acts which often involve not merely an award of damages running into hundreds of pounds, but also the decision of complicated facts and difficult law; but here again no call has come from the men or the employers for any such elaborate procedure as is to be found in these Rules. 5. We are, therefore, of opinion that, with any necessary additions to meet the new jurisdiction, such as the power to garnishee debts, and with a reasonable extension of the cases in which, under the existing County Court Rules, a defendant is required to give notice of certain special defences, these Rules should prove adequate for all purposes of the Circuit Courts. In this connection it seems strange that the only restriction upon the use of these new Rules is to be found in the case of pleadings in claims for damages not exceeding £50 in amount, while all the rest of this new procedure and practice is to apply wholly regardless of the issues or amount involved. This particular restriction does not commend itself to the Committee, as an action in which such damages, or even less, are claimed, may and often does involve greater complication both in the facts and in law than a similar action for a much larger amount, and if some discrimination of the kind is necessary, as the Rules plainly contemplate it to be, it should, in our opinion, have regard to the nature and character of the cause of action itself as distinguished from the amount of the claim. 6. The position of the County Registrar under these new Rules calls for further consideration and revision. Owing to the migratory nature of the Circuit Courts he must necessarily be frequently absent, at a distance from his central office, and during these periods, as also when absent on vacation or through illness, his multifarious duties must be entrusted to some one else. These duties involve the control and distribution of large sums of money in connection with the administration of the estates of deceased persons and of minors, and the payment of claims in proceedings relating to trusts, bankruptcy, partnerships and companies, and, in view of the unlimited and unrestricted power to delegate all or any of his duties, save those which under Rule 170 he is required to discharge in person, not merely to a qualified deputy, but to anyone he may select, careful provision is obviously necessary to secure that every such person should not only be fully qualified, but should also furnish ample security. Rule 170 prescribes thirty different heads under which jurisdiction is conferred upon the County Registrar which by the terms of the Rule he can only. exercise in person. As to some of these matters he would appear to act in a judicial capacity, but, apart from this consideration, the difficulty already pointed out in the case of the Circuit Judge, in dealing with applications from one County while presiding in another, would seem equally to apply to the County Registrar, especially in the matters of which he has to dispose in person. If, on the other hand, this Rule is invalid, as we think it plainly is, as regards many of the matters as to which jurisdiction is sought, to be conferred upon him, the duties thereby imposed involving applications under so many different heads will have to be discharged by the Circuit Judge, and must materially add to his labours. 7. Rules 71 to 73, both inclusive, which deal with “proceedings by and against poor people,” should, in our opinion, be amended by increasing the property limit from £10 to £25, and by the deletion of the very objectionable clause which would enable the counsel and solicitor for the poor person to receive fees and costs in any case in which the client has been awarded them against his opponent. This clause introduces for the first time in the history of the legal profession of this country the principle of payment by results, thereby providing a direct incentive to speculative litigation. It can only have been introduced in the supposed interests of the profession, but it is, in. our opinion, degrading to it in both its branches, and your Committee is not surprised to learn that it has been emphatically repudiated by the Council of the Bar of the Irish Free State. The clause is also manifestly unjust in its application to the poor man’s opponent in the litigation, who can in no case in which he succeeds, whether as plaintiff or defendant, recover a farthing of his costs from the poor person, while under this clause he would if defeated be liable to the poor person for fees and costs, in respect of which the latter has incurred no liability. 8. An unlimited power of attachment in several contingencies is conferred by these Rules on the Circuit Court against persons and parties who are neither citizens of the Irish Free State nor resident within it, and it is difficult to see how any such orders,, even if valid, could be enforced. There are other Rules which provoke criticism, but we have abstained from offering it in view of our objection in principle to the Rules as a whole. 9. The difficulty has been suggested that if these Rules be rejected no Schedule of Costs will exist, embracing all the procedure of the Circuit Court. We cannot, however, recommend the approval of the Schedule affixed to the Rules as many of the items relate to the new procedure but suggest that the position could be met for the present if the existing practice, which we understand prevails in most of the Circuit Courts, of applying the County Court scale and when this scale is not applicable or requires revision, of utilising the High Court scale less a substantial percentage reduction, was universally adopted. Should this suggestion be found to require legislation we would recommend that a short emergency Act be passed, giving legal effect to the practice referred to. 10. Finally the view has been pressed on the Committee by the Minister for Justice that, having regard to the altered procedure by which the appeal from the Circuit Court to the High Court is no longer a “re-hearing” in the technical sense, but is heard and decided upon the evidence given in the Court below, the new Rules are essential to an exhaustive disclosure of the facts and documents in the case, so that they may be on record for the use of the Court on appeal. The Committee, while satisfied that in the great majority of cases tried in the Circuit Courts the existing procedure and practice, if supplemented in the particulars already mentioned, would provide every reasonable facility for the fullest presentation of the case in the Circuit Court, have given careful consideration to this argument, which suggests that the change in the “appeal” system justifies the introduction of these or similar Rules. The Committee have found it impossible to deal with this argument save as one aspect of a more general question, namely, the expense, congestion and delay which, from the many representations made by different interests, we are satisfied already prevail not alone in the work of the Circuit Courts but also in connection with the hearing of appeals. No fault in this respect can, in our opinion, be found with the tribunals or their officials for a position in which they found themselves overworked and inadequate in number for the task imposed upon them, a position which cannot be relieved but must be accentuated by the introduction and application of a new and complicated procedure. The existing system, which requires that a full shorthand note of the entire evidence given in every case must be taken in the Circuit Court and the manuscript of this evidence made available for the High Court on the hearing of appeals, has developed difficulties and objections which were not anticipated or foreseen in any quarter. It has materially lengthened the proceedings in the Circuit Court through the natural desire of the litigant to cover, by evidence the whole field of the facts of his claim or defence, in anticipation of a possible appeal by himself or his opponent. In practice, however, we believe that in at least seventy per cent. of the cases heard no appeal is taken, and consequently the cost and labour involved in the shorthand note are thrown away. When appeals are taken and prosecuted to a hearing, the High Court is confronted with a mass of evidence, often running into several thousands of questions and answers, the mere recital of which by counsel for either party, or both, may occupy one day or more. The members of the Committee who have actual experience in the matter have informed their colleagues that, under the existing procedure, these appeals, even when allowance is made for those which have been settled or withdrawn, have been disposed of at an average rate of not more than three in a day. It must, therefore, be obvious that, as one result of the introduction of these proposed Rules of procedure and practice, the volume of evidence given at the hearing will be substantially increased and the time occupied at the hearing and on appeal must as a consequence be materially enlarged. Experience also has established the fact that, in the great majority of cases, the decision on appeal ultimately rests on a question of law, to which a greater portion of the evidence was inapplicable and irrelevant. 11. The Committee, therefore, found itself confronted with a problem which could only be solved by the adoption of either of two alternatives. the approval of the proposed Rules or alterations in the jurisdiction of the Circuit Courts, coupled with a change in the system for the hearing of appeals. We cannot recommend the adoption of the first alternative, not only for the reasons already given, but also in the conviction that it would necessarily involve, in the substantial addition to the number of Circuit and High Court Judges that would be inevitable, an expenditure of money and time that would be out of all proportion to any resulting gain. Upon the other hand, the experience of the last three years has satisfied the Committee that the extension of the former jurisdiction of the County Courts in actions on contracts or for damages from a maximum of £50 to £300 has proved to be unduly excessive. In England the jurisdiction was limited to £50 until 1903, when it was raised to £100, at which it still remains. While the Committee is agreed in recommending a reduction we refrain from recommending the amount beyond expressing our opinion that it should not exceed £150, subject to any special considerations that may be thought to apply to the Circuit Courts of Dublin and Cork. We further recommend that the jurisdiction of the District Courts in similar eases should be increased to £30. 12. There remains for consideration the question of appeals as to which in our opinion only two alternatives to the present system are possible, either the adoption of the English system by which appeals are restricted to questions of law or a reversion to the previous system of a local re-hearing by High Court judges on circuit, not necessarily sitting in each county but in convenient local centres. The first of these proposals has many obvious advantages. It dispenses with a re-hearing of the facts, a note of the evidence bearing on the question of law being supplied to the Court on appeal, by the County Court Judge, thereby avoiding the expense and delay of the shorthand notes. In principle it can be reasonably held that the opinion of the Circuit Judge on questions of fact should command the same respect as those of the High Court, indeed from his local knowledge it might be fairly contended that his position in this respect is the superior of the two. Further such a system materially curtails the number of the appeals as also the time occupied by the hearing, while in effect it closely approaches to our existing system under which, as already stated, the decision generally depends upon a question of law. As against it, the Committee are impressed by their knowledge that the majority of litigants, at least in country districts, wish for a second run for their money and have a traditional respect for a local re-hearing by High Court Judges. In the past this system developed defects, not inherent in itself but in its administration and therefore capable of remedy, while like the English system it would dispense with the cost and delay of shorthand notes and materially lessen the duties of Judges both of Circuit and High Court by enabling the cases to be disposed of with greater expedition. Upon the whole we believe that if our suggested recommendations as to jurisdiction, the necessary adaptation of the existing Rules where required and the reversion to the system of re-hearing were adopted, the existing problem would for all material purposes find its solution without any material addition to the existing staff of either the High Court or Circuit Court and with a substantial reduction in the expense and delay of the existing system. 13. It became obvious to the Committee, at the outset of their deliberations, that upon any reasonable interpretation of the wide and indefinite terms of reference they would have to consider and report upon the probable effect of these Rules as an aid or deterrent to economy, simplicity and expedition in the administration of the new Circuit Court system. In the determination of this question a review of the system in the light of experience was inevitable and, being satisfied that the difficulties and defects which had already developed in its working would be materially aggravated by the adoption of these Rules, it was agreed that the report in this respect might fairly be criticised as incomplete and inconclusive were it not to contain recommendations for an alternative solution. 14. This Report has been approved and agreed to by all the members of the Committee save that Deputy Ruttledge is in favour of a reduction in jurisdiction to £200 only. (Signed) GLENAVY, Chairman. 26th June, 1928. |
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