Committee Reports > List of Committees > Joint > 1929 > Committee on the Courts of Justice Act 1924 and the Civil Jurisdiction of the Courts > Report - Courts of Justice Act 1924 and the civil jurisdiction of the Courts

MIONTUAIRISC NA FINNEACHTA

(Minutes of Evidence)

De hAoine, 20adh Mi na Nodlag, 1929.

(Friday, 20th December, 1929.)

The Joint Committee sat at 11 a.m.

DEPUTY MORRISSEY in the Chair.

Dr. Quirke, Solicitor, Dublin, called and examined.

210. Chairman.—I understand you bebelong to the firm of T. G. Quirke & Co., solicitors?—Yes.

211. You were admitted a solicitor in 1891?—Yes.

212. You were Professor of Real Property and Conveyancing to the Incorporated Law Society from the year 1907 to the year 1913?—Yes.

213. You have been on the Council of the Society since 1913?—I have been on the Council for the last sixteen years.

214. You were President of the Incorporated Law Society during the period 1925-6?—Yes.

215. Have you practised altogether in Dublin?—Yes, I have no country office, but my work is largely occupied with country solicitors.

216. You are the Town Agent of a number of country solicitors?—Yes, for a number of solicitors. In that way I have had a good deal of experience of work through the country, but not in actual practice in the Circuit Court. I have little or no practice in the Circuit Court myself. I can speak on the subject of appeals from the Circuit Court with some experience, but as to the actual practice of the Circuit Court I cannot speak with any experience, except on the question of jurisdiction, and whether that jurisdiction is too large or too small. Possibly you will think I speak more from High Court experience than from Circuit Court experience in that aspect of the case. Before I give any evidence, I should like to make my position perfectly clear. I do not come here altogether as a willing witness; I do not say I am an unwilling witness either, as I am quite happy to give any assistance I can to the Committee in the task that confronts them. But I do not come here with any general mandate from my Council to speak on the question of the extension or lowering or maintaining of the jurisdiction of the Circuit Court. We are, as you can understand, a divided body on that matter; there is a strong cleavage on the subject between us. Our Council is practically half and half city members and country members. I should say a large percentage of the country members are in favour of maintaining the jurisdiction as it stands at £300 in contract and in tort as set up by the Courts of Justice Act, 1924. I do not say all the country members. I know there is a very substantial body who do not agree with that view and who think it should be reduced. Probably I am right in saying that the majority of the town members think the jurisdiction is too high. I certainly do not take up the position of an advocate here, or of giving evidence on behalf of the town members or of the country members. I think I am well within the limits of saying what is fair when I say that I am not adverse in any sense to the country practitioners’ interests, because, as I have told you, my interests are largely bound up with theirs —I live by the prosperity of country solicitors. Therefore, I think you may take me as almost in a neutral position as regards the question of jurisdiction. My own view is this, for what it is worth: This question has not to be approached from the point of view of what is good for the lawyers one way or the other— either town or country lawyers. I approach it from the point of view of what is best in the interests of the country at large, and, above all, what is best in the interests of establishing the good credit and the public credit of the country. From that point of view, I think that the jurisdiction given to the Circuit Court of £300 is too large. I put it to you that the population of the Free State is a small one comparatively—something under 3,000,000. You travel from Dublin to Cork and you do not meet a town with much over 5,000 people—possibly Thurles and Mallow may have that population, but I do not know any others. I think the jurisdiction of £300 is too large for the Circuit Court. I have not got statistics to substantiate my statement, but I think it is true to say that 75 per cent. of the actions brought in this country are concerned with matters well under £300. I do not think that the system of establishing twenty-six High Courts is a good one, because that, in my view, is what it really means—the establishment of twenty-six High Courts through the country. I think the policy of the Act of 1924 is bad in attempting to decentralise the administration of justice in a small country such as ours. The big question of public credit, as I said, is what actuates me in coming to a conclusion on the question of jurisdiction. That brings us back to the question of what is likely to establish the good credit of the country. To my mind, you must have three essentials for the establishment of good credit in the country. For the carrying out of obligations in contract, or for the redress of wrongs or torts, you must have a remedy which will be reasonably speedy; secondly, it must be cheap, consistently with good workmanship; and, thirdly, the system must be efficient. Keeping these three tests before us as to what is good administration of justice, I think the jurisdiction of £300 is too large for the Circuit Court, for this reason: We cannot afford to shut ourselves off from all international trade. We have to consider the persons who are likely to do, and whom we would wish to see doing, business with the Free State and giving credit to the Free State. We wish to see that nothing will occur in the administration of justice that will hamper them in their desire to give credit to the Free State. I think there is undoubted evidence that the Circuit Court jurisdiction of £300 has injured the Free State in our relations with other countries, particularly England. English merchants have not been so willing to give credit to the Free State when they are forced to take their remedy in the Circuit Court. I know I shall be met with the objection that they are not obliged to sue for their debts in the Circuit Court. That is so, to a certain extent. They have the right to sue in the High Courts for their debts. But if they do, they find themselves not alone delayed in getting judgment but they find themselves penalised as to costs. Let me give you one illustration. This is within my own knowledge. It is an actual case that occurred. A creditor in England sued a debtor in this country for a debt of something between £35 and £40. He brought his action in the High Courts. The defendant entered an appearance to the originating summons. The case was set down before the Master and the plaintiff in the case put a short affidavit on the file that the goods were delivered and that the money was due. The defendant in reply to that put in a three-line affidavit that he had a good defence to the action on the merits. The matter was put into the judge’s list but the judge said he was not there to try the case, as the proper forum for this litigation was the local Circuit Court. He remitted the case to the Circuit Court and he went further. He ordered the plaintiff to pay the whole of the costs of the proceedings in the High Court down to the date of the order he had made. You can easily conceive what the result of that would be. The plaintiff had to pay £20 or so for looking for his debt in the High Courts. I do not know what the ultimate result was, whether the plaintiff went any further but I am perfectly persuaded that it did not encourage him to give further credit in this country. That is a typical case. An attempt has been made to prove that the Circuit Court provides machinery for getting speedy judgment in default cases but so far it has passed our wit to get any rules passed through Parliament. No rules have yet been passed that have made any such provision. I think it will be very difficult for them ever to make provision because it means delegating judicial work to the county registrar who will probably have to send the matter to the judge before he can give any judgment. On that ground, there is no speedy remedy for the creditor. Then look at it from another aspect. A creditor in England giving credit here is not likely to be encouraged to give credit for a sum of £30, £40 or £50 where he knows that if his debtor does not pay him he may have to go to the other end of the country and send his book-keeper and ledgers from Manchester, London, Leeds or some other place to, say, Skibbereen. Such a remedy is neither cheap nor speedy. The Circuit Court can sit, I think, only four times a year in the different towns.

Deputy Wolfe.—Substantially that is right. Not more than four.

Witness.—It is not an encouragement to outsiders to give public credit. I have had a number of letters on the matter. They did not send them to me. I have sought no evidence from these parties but a number of letters have been sent from parties interested in the matter, from different trade societies in England. I am not going to weary you with all of these but I shall first give you one from the Manchester Guardian Society for the Protection of Trade. It states:

“I agree that the chief mistake in the above Act lies in the penalising of a plaintiff who sues in the High Court for sums under £300. I agree that where a plaintiff resides outside the Irish Free State he should not suffer in this manner and I think the credit of your country will continue to be damaged until some change is made. This of course is all to the disadvantage of our members who number nearly 7,000.”

I have another letter of a similar type from the Liverpool Guardian Trade Protection Society:

“I have not a great deal to suggest, but you may take it that we here, representing (if you care to put the two Liverpool Societies together) nearly 6,000 traders in this part of the country, do find that it is more difficult to deal with cases in Ireland than in either England or Scotland. In the past where it has been possible to issue process in the High Court in Dublin for most of our debt cases, matters have been carried through more expeditiously and with less trouble and expense to our members on the whole. We in England can issue writs in the High Court for any amount over £20 but we are allowed to enter cases in the County Court for anything up to £100. We have also special courts, such as the Court of Passage in Liverpool, the Salford Court of Hundred, the City of London Court, etc., etc. where writs can be issued for small amounts. We do certainly think that a mistake was made in extending the jurisdiction of your Circuit Courts for such big figures, and if this can be remedied I am sure our members who do such a vast amount of trade in Ireland would benefit.”

217. Senator Brown.—What is the date of these letters?—The 18th December. That is from the Liverpool Guardian Trade Protection Society. I have also one from the Leicestershire County Boot Manufacturers’ Federation, which states:

“The above Society, which consists of 51 boot manufacturers in the county district of Leicester, and who do considerable business in Ireland, contend that the Courts of Justice Act, 1924, has acted harshly on them in cases where it has been necessary for them to seek the aid of the law in recovering money owing to them, and they are interested to learn that a Committee has been appointed by the Government to take evidence on the working of this Act, as it will be the means of bringing to the notice of the proper authorities the unfair treatment which the English houses dealing with Ireland feel they are suffering in such matters, and they sincerely trust such pressure will be brought to bear to remedy the position in this respect, and I can assure you that my Society will fully support you in the views you are putting forward in the interests of English clients.”

That is also dated 18th December. There is another letter here also from the Leicestershire Trade Protection Society, 4 New Street, Leicester. I do not want to burden you with all these letters, except in so far as they are typical of the complaints received:

“As you are aware, our County Court jurisdiction only extends to £100. In my opinion the present system adopted by your Courts of Justice Act, 1924, has resulted in penalising plaintiffs, and is a distinct hindrance to business with manufacturers and merchants in this country. I do not know whether you are quite aware of the extent of the membership of this Society, which now numbers 2,700 members.”

These are samples of several letters I have got. There will be evidence before you of more of these, because their views have been asked. I think I have said sufficient to show you that English traders feel a grievance in this matter, and that it is not to the advantage of this country. I know it has been stated, and perhaps I am infringing on political matters when I say this, that we ought not to encourage trade with English people at all. We ought to buy our goods at home. I think I saw it stated by one Deputy when the Courts of Justice Act, 1924, was going through the Dáil, that he did not consider that it was any business of the Irish Parliament to make legislation to make it easy for English traders to recover debts here. I think that is an appalling proposition. I think if by that he meant that if a man does not want to trade with a merchant in England, by all means let him stop at home and trade at home, but, as a lawyer who has some interest in honesty and the credit of the country I think if a man enters into an obligation whether it is in Shanghai or Manchester——

218. Senator Brown.—Or in Dublin? ——Or in Dublin, I think it should be the business of the Legislature to make it as easy as possible for the trader to compel that man to fulfil his obligation. When I was speaking a moment ago, I said that in any system you establish for the recovery of debts or for the redress of wrongs, there should be a remedy as cheap as is consistent with good workmanship. I have seen it stated that the reason that this jurisdiction of the County Courts was extended to £300 was to make law cheap and to make it the poor man’s court. I think it has had the very opposite tendency, for this reason: it is impossible in a case of any serious magnitude to have the case cheaply tried in the Circuit Court. Take the ordinary case with litigants who are prepared to pay reasonable costs. Take an action for slander or libel when the damages sought are £300. The plaintiff’s solicitor, for his own protection, no matter how able he may be—and I have never accepted the proposition that solicitors are of inferior ability to barristers; there are many solicitors in the country quite as competent, at all events as some barristers, and quite able to conduct their cases—but even these solicitors in cases of importance will take the responsibility off their own shoulders, if they are wise, by employing counsel. This country is not wealthy enough to have barristers established in groups even in, say, four districts. There would not be enough business if a man had to attach himself to one particular circuit. Take it even that there were only four circuits. I maintain that barristers would not get enough to live on. What is the result in the illustration I am putting forward? A man brings down counsel from Dublin, and the lowest fee that a senior barrister can come down for—you could not expect him to charge less—is 25 guineas. He has, by the rules of the Bar, to bring with him a junior counsel, who has to get two-thirds of his fee. That would be roughly 20 guineas. If the case goes on to a second day’s hearing, “refreshers” would have to be paid. Lawyers will understand what I mean by “refreshers.” These “refreshers” would be 10 or 12 guineas more at least. When trying a case between two persons for libel or slander, the fees alone on both sides will be 100 guineas, without much trouble. In the old days—and Senator Brown and Deputy Rice being lawyers will know what I mean by old days— the ordinary fee for senior counsel in a case of that sort would be 8 guineas, with perhaps consultation fee of 2 guineas. It might be 10 guineas, and the “refresher” would be one-third of the amount. I am well within the mark in saying that. It would be the same about witnesses’ expenses.

219. Chairman.—You spoke about that sort of case in the old days. What do you mean by the “old days?” Do you mean before the 1924 Act came into force?—Yes; before the extended jurisdiction. I am talking of a typical case, such as an action for slander in the country between two shopkeepers, both of whom are marks for costs, and who are fighting it out.

220. What would be the cost in Dublin now?—I would say eight or nine guineas on a brief of that kind, and ten guineas at the outside.

221. Senator Brown.—What I think the Chairman wants to know is this: Is there any real difference in the cost now and the cost in the old days of fees in Dublin?—I was talking of the fees for counsel. I will come to witnesses’ expenses afterwards, as conceivably you might save something on these if the witnesses were all local.

222. I think it would be better to confine your evidence to the present time?— I think counsel’s fees would certainly be half what they would be in the country. Actually, I do not believe they would be half. As regards witnesses’ expenses, I do not think the Circuit Courts are a saving in these days of cheap travel. I do not think there is anything saved between coming to Dublin and going to a Circuit Court in another part of a county, and taking witnesses 20 or 30 miles. That brings me to another aspect of the question. Bad law is not cheap at any price. I think if the Circuit Court jurisdiction is going to be continued at £300 for contract and tort, you will have bad law, and not even cheap law, because I will not admit that it is cheap. I think it is expensive, and I think that you are going to have bad law, because, as long as there are two branches of the profession—the Bar and the Solicitors—you cannot have a satisfactory Bar with the prevailing system of young barristers having to go round from circuit to circuit. The training ground for the Bar was the Law Library where, when a young fellow was admitted to his professsion as a barrister, and when he did not know a case, he had at his elbow the best intellects at the Bar to help him. What is happening with young barristers at the present time? They go to the country. They cannot bring a library and cannot bring anything with them. They could not even carry Halsbury’s Laws of England in their kit bags. They have no books and they have to go down without having the advantage of a library. I do not know a town in Ireland where even a copy of the Reports is kept.

223. Deputy Wolfe.—In Cork?—Possibly there. I heard of one Northern town where a copy is kept, but I do not know of any town in the Free State where there is a law library, or where they keep a copy of the Reports. If this system is to go on, you cannot have a Bar very long, because I cannot think of young barristers going around with caravans from place to place, and they cannot learn their business. The solicitors will quickly discover that they are no use, and the only time they will bring barristers down to do any work in the Circuit Court, is on a case such as I spoke of, where they want to take the responsibility off their own shoulders. If a case goes against a client, he naturally says: “Why did you not bring down a barrister when I was willing to pay him?” With this extended jurisdiction of £300 in the Circuit Courts, you are going, in a sure and certain way, to sound the death-knell of the Irish Bar.

That raises a question that is as old as my apprenticeship days. It was a favourite one for discussion, and I do not think it has been solved yet; whether the two professions should not be united? It was a favourite subject of debate for the solicitors’ apprentices, and even with the Council. Many years ago our Council went to the trouble of getting the experiences of the different courts. We got information about their system from the different courts in Europe and America. The Council brought in a neutral report in the end and there was nothing done towards amalgamation. In passing, I might say that whether you divide or amalgamate the professions, you will find that in every country where they are amalgamated, one member of the firm does the work of the solicitor and another member of the firm does the advocate’s work. On the whole, I do not think it is suited to the genius of this country and certainly has not been a success where tried.

On the question of cheapness I do not think there is anything in cheap jurisdiction. As to efficiency, without making any reflection on the Circuit Court Judges, who, I think, are doing their work excellently, if I may offer an humble opinion, I think you are overloading these men with work. You are giving them work that is beyond their powers to do Under the Act of 1924, it was originally intended that there should be eight Circuit Court Judges. That was extended to ten, and I am told that in some circuits, even with 10 Judges, they are not able to reach the work. If these Rules that we have made three or four attempts to get through the Houses are decided upon, I do not know how a Circuit Court Judge will get time to read the morning newspaper. He will occupy all his spare time considering his work outside the courts. By that I mean the business that he will have to do outside. I think I have said enough on that question to show you that at all events the jurisdiction of £300 is too large.

The Committee is entitled to say that destructive criticism of that sort is very easy, very cheap and leads nowhere, and is entitled to ask me what I suggest. I suggest that you give jurisdiction to the Circuit Court without limit, by consent of the parties, just as it is in Section 48, Par (i). If the parties are willing, I do not think there is anything wrong in giving jurisdiction to the Circuit Court Judges. They are able to try cases as well as any of the High Court Judges. I do not see, when the parties consent, why there should not be unlimited jurisdiction. In the cases that may be quoted, showing the successful administration of justice in the Circuit Courts when large amounts were at stake, you will find that the local forum was the proper tribunal for purely local cases. Take a title case; a dispute about a boundary. Is not the local forum the proper place for that to be tried, so as to get as near as you can to the ditch that the dispute is about? Is not the proper place to try such a case where the Judge and jury can go and look at the ditch? In the same way, if two people in the same county are at law their witnesses are there, and if they consent to have the case tried, there is no reason why it should not be tried in the Circuit Court. As regards Section 48 of the Courts of Justice Act of 1924, my suggestion is that Par. (i) should be let stand as it is. But when you come to Par. (ii), cases of contract and tort, where the claim does not exceed £300, my suggestion is that the amount should be reduced in contract and tort cases to £100. In England, the jurisdiction of the County Court is £100. Even with the depreciated value of money since the war, the legislature in England has refused to extend the jurisdiction of the County Courts. Where you have great commercial centres like Birmingham, Manchester and Liverpool, where you have a Bar ready at hand, and where £100 is considered to be large enough jurisdiction, surely that ought to be ample jurisdiction in a country such as ours, where you cannot have these local Bars established, and where you have to go to the expense of bringing barristers from Dublin.

As regards Paragraph (iii) I would leave it as it is. In title cases, I would leave the Section as it stands, where the question of jurisdiction does not exceed £60, because most of the witnesses and the adjoining owners between whom the fight is, live in the county. There is no reason why the venue should not be even more extended than £60 in some cases. You have a first-class Circuit Court Judge quite capable of trying these cases, and there is no reason why the amount should not be extended beyond £60, if you so will. In probate and administration cases (Par. iv) I would leave the Section as it is. I would also leave it as it is in equity cases (Par. v). I am told by Mr. Ryan, who will be giving evidence before you, that there is a little ambiguity about the question of jurisdiction in the Circuit Court, but as I do not know what it is, I leave it at that. I would take out altogether the winding-up of companies. It says here “jurisdiction in winding-up cases where the issued capital of the company does not exceed £10,000.” There is no machinery in the Circuit Courts for winding-up companies, nor can there be. If you were to establish such machinery, it would involve enormous cost. If you were to set up the machinery how many cases of the kind would you have? Perhaps one in three years, and for that one case of a winding-up are you going to keep a staff and machinery there? It is preposterous to my mind to have that there at all. As regards Paragraph (vi) of Section 48, that was intended to extend bankruptcy jurisdiction to the Circuit Court. I do not think that is wanted at all. I do not think there would be any economy in it, because the same difficulty would arise there as in the case I have just referred to. You would have to keep an official assignee and a staff competent to deal with such cases, unless you are going to load it on to the unfortunate county registrar, who is already burdened with all sorts of work. He has to make up his orders and decrees and has to execute them himself. As regards Par. (vii), that is in reference to proceedings at the suit of a Minister of the State or a Government Department for any sum not exceeding £300, I would reduce that to £100.

224. Senator Brown.—Are these Revenue cases?—Yes, and I think they would probably prefer to sue in the High Court. I think that if I owed them anything, they would prefer to sue me and bring me into the High Court at once. These are my suggestions as regards Section 48. My main question is: why would I reduce jurisdiction in tort and contract to £100? Mainly on the ground that you will be putting the public credit of the State on a better basis, and that you will be encouraging other people to deal more freely with us. You would be giving them, as they had in the old days, the remedy of a speedy judgment and you would thereby be establishing the public credit. I am not trespassing on politics when I say that even as lawyers we must recognise that the first duty of the State is to establish its good credit. If we do not take steps to put our credit on a good basis, we shall not have much for lawyers or anybody else. Another suggestion I have to make is: I would give the plaintiff the right to institute an action for any sum in the High Court with a proper limitation as to the costs to be awarded to him. I would not give the defendant the right to have such an action transferred as a matter of course. I would put him under the same obligation that he is put under in the Courts of Justice Act, 1924, namely, that he would have to satisfy the Master of the High Court that he has some case to be tried before it should be remitted to the Circuit Court.

225. Senator Brown.—Does this apply to cases of contract only?—That is all I am thinking of at the moment. Questions of tort do not affect the credit of a country so much at all. We are not involved very much in actions for tort with outsiders at all. I am thinking more of keeping the credit of the country on a good basis. I am in favour of giving the plaintiff the right to bring his action in the High Court for any sum over £20 with a proper limitation as to the costs. I do not say that you should give him the full scale of costs.

226. Deputy Rice.—Arising out of your last remark about the limitation of £20, does it not equally affect the credit of the country if, in the case of a man who has a debt of £15 or £10 to collect, you insist on his going down the country to have it tried? Why put a limit of £20? Would it not be better to have no such minimum limit as that, with a safeguard always that he would be limited as to the costs that he could recover?—I would not be against that.

227. We had that system in the old days?—I know. When I was preparing my notes last night I put in £20 because I was afraid that otherwise I might be looked upon as trying to keep everything in the High Courts. I do not want to keep anything in the High Court. I can live as well if they are kept in the Circuit Court.

227a. My point is that a man with a small debt like that would prefer to be able to get a speedy remedy instead of having to go down the country?—Under the old system, where you recovered less than £20, you only got a very trivial sum as costs. Creditors are better pleased to have a speedy remedy. If they have to go to the country to sue for the recovery of a debt, it may mean that they have to go to some very distant part. That would mean sending a man down with the books and papers to prove the debt. The mere issuing of a summons will not get a man his money. Not to speak at all of places like Liverpool and Manchester, if a Dublin shopkeeper is suing in the country for a debt, he has to send a man down to prove the debt. I do not think it is right that a creditor should be debarred from a speedy remedy if he is willing to take a risk himself as to the cost. Let the creditor sue for his debt— say that it is £15—in the High Court and do not give the defendant the right, merely by filing a three-line affidavit that he has a good defence to the action on the merits, of sending the whole thing down to the Circuit Court, and perhaps delaying the action for three months before he gets anything.

228. Senator Hooper.—Would not the defendant have to send up his witnesses to Dublin?—Yes, if the action were tried in Dublin. It would not be tried in Dublin at all in the view that I take if he has a real defence. I am thinking of the case where there is no defence at all.

229. Senator Brown.—Of a case where he cannot satisfy the Master?—He should satisfy the Master that he has even a fair defence.

230. Deputy Wolfe.—Assuming that he had a perfect defence and that the plaintiff was a doubtful mark—that the plaintiff lived in England—would it not be wiser to pay the money whether he owed it or not rather than defend it on your system?—No, because if the plaintiff lived in England the defendant could apply for security for costs.

231. Where?—To the Master. I think there is machinery under the Rules for that. I would not give the defendant the right merely by filing an affidavit that he had a good defence to the action to hold up the plaintiff for three or six months, and then send him off to the other end of the country to recover his debt. I would give the plaintiff the right to sue for any debt. I put the figure at £20. Deputy Rice suggests a lower figure, but I would have no objection to that if the Committee were of that opinion. There is another suggestion I have to make. It is that I would extend the jurisdiction of the Master to hear all motions to remit, as well as for final judgment where an appearance was entered and the amount did not exceed £100. I do not know exactly what the position of the Master is, and I am not sure that he knows exactly himself.

232. Senator Brown.—That is a matter that can be put right by future legislation, and I think we had better not go into it now?—At all events, I would extend the jurisdiction of the Master to the hearing of all motions to remit and for final judgment where an appearance has been entered and the amount sued for did not exceed £100, with the right of appeal to the judge. There is another suggestion I have to make, and, though my doing so may hurt the feelings of the Bar, I make it with a view to the saving of costs. I would allow such applications to be moved by a solicitor where the amount did not exceed £50.

233. Deputy Rice.—You may take it that the Bar would be quite satisfied with that?—I do not think that we ought to poach on the rights of the Bar where a substantial action say, for £100 is concerned, but I think that where the amount does not exceed £50 solicitors ought to have the right of audience before the Master on motions to remit or motions for final judgment. I think that the stamps on the initiation of High Court proceedings should be reduced. At present you pay 7/6 on an originating summons. Of course, this is a Revenue matter.

234. Chairman.—I am afraid that is a matter that is outside our terms of reference?—It was done under a rule made by the rule-making authorities with the consent of the Minister for Finance.

235. Chairman.—It is outside our terms of reference?—Then I will say no more about it.

Deputy Little.—On a point of order, as we are examining all these Acts, would not any rule made under them come within our purview?

Chairman.—Not necessarily.

Deputy Little.—I mean within the purview of our getting information on them.

Chairman.—I do not think that is so.

Deputy Little.—I think in dealing with an Act we are entitled to deal with the Rules made under it.

Chairman.—In any case, this is not the time to deal with it. We are now more or less confining ourselves to Circuit Court appeals and jurisdiction.

Witness.—It is only a small point. I think that could be dealt with by the Rule-making authority. I propose to deal with only one other question, because I do not practise in the Circuit Courts. On the question of appeals, I can afford to be short, for whatever difference of opinion there is among the profession as to whether jurisdiction in the Circuit Court should be reduced, I think there is very little difference of opinion that the present system of appeals from the Circuit Court is most unsatisfactory. I think I might almost go the length of saying that our Council having considered the matter day after day have come to the conclusion that the only satisfactory system of hearing Circuit Court appeals is the old system of re-hearing before two judges. The suggestion has been made that the two judges should go out at certain periods of the year, say, twice a year to, say, four of the large towns, taking four centres as well as you can, for instance, Limerick, Cork, Galway, and, in the Midlands, Longford or Mullingar. That is a matter of detail to be worked out afterwards, but it is suggested that there should be a re-hearing. The present system of appeal on stenographers’ notes is most unsatisfactory. The position is that a shorthand writer, who is generally a newspaper man engaged on a local newspaper, goes into Court at 10 o’clock in the morning and has to stay until 5 o’clock in the afternoon, or even later, taking a note of every trumpery case that has to be tried, recording all the rubbish in every two-penny half-penny case. He cannot select the case he has to take a note of. He has to take a note of every one of them, and it is physically impossible, as any shorthand writer will tell you, for a man to take a note from 10 in the morning until 5 o’clock in the afternoon and take an accurate note of the evidence. I once knew a chief reporter of the London “Times” who told me he had a staff of eight or ten always in the House of Commons, and they were engaged in taking notes for twenty minutes at a time and then they had a rest. In that case, the speeches were revised by the members themselves for the Hansard Debates. These periods for taking notes were arranged to give the opportunity for an accurate note being taken. What then, I ask, is the possibility of taking an accurate note from 10 in the morning until 5? The notes must be unsatisfactory in such a case, no matter how good the man. Secondly, assuming for the moment that the notes are perfectly accurate as regards everything said, when they come before the judge in the hearing on appeal he finds that “A” swears a certain thing, and “B” swears the direct opposite. How is the judge to decide which of these men is telling the truth? Is it not the chief factor for any intelligent judge in deciding who is telling the truth to see the man who talks and to put a few questions himself to him so that he can judge of his character by his general statements, and not by what is put down on paper? It has come to this: that appeals from the Circuit Court are perfectly valueless—any solicitor will tell you that—except on a pure question of law. On a question of fact, they are perfectly worthless. There has been an attempt to remedy that by enabling supplementary affidavits to be filed. That is making matters worse. That is what they call heel-tapping. A party will stretch himself very often to bolster up a case by an affidavit, and it is really making the thing worse. There are these points: First, the stenographers’ notes are not likely to be of use, although they may be good and accurate notes, and I think that is impossible in most cases. Secondly, if perfectly accurate, they are not of much value. I come to the third point and that is the expense of appeals. It will be hardly credited when I say that the expense, to my certain knowledge, of an ordinary appeal is from £25 to £30, and in a case appealed to Dublin it may run to £50 or £60.

236. Senator Brown.—Total cost?

Witness.—For one side. I have a bill in my office for £40, and the whole matter in dispute is £25 or £30. Why? Because the stenographers’ notes have to be paid for, and we all know that a witness gets a great deal of latitude in the country. The notes have to be copied and paid for, and briefed to counsel. In fairness to my own profession, I do not want you to think that the Circuit Court practitioners are making money by these appeals. Nothing of the kind. If the appeal costs £40, you will find that the solicitor’s fees are five or six guineas. He has to pay counsel, pay for the stenographer’s notes and pay the court fees. Compare that cost of £40 for appeal with the old system. Appeals were tried satisfactorily by the judges going on Assize, and seven, eight or more appeals might be heard in a day. I think I am entitled to ask the Committee to consider whether cheap law is good law. Do the clients consider they get value for their money? They do not, because these appeals are so put on the list that the unfortunate client knows nothing about his case until his solicitor writes to him telling him “Your appeal was heard yesterday, and I am sorry to say it was dismissed with costs.” There is immense dissatisfaction all over the country with the system of appeal. Often you have £40 and £50 thrown away. That is on one side of the appeal. I will assume the other man has an equal bill of about £40. That brings it to about £80. If people can afford appeals of that sort, they should pay a substantial fee to the State for hearing appeals, and that would form a fund for hearing appeals. If a man wishes to have an appeal, I think the stamp duty for ordinary appeal should be increased from £2 to £3.

237. Senator Brown.—Amusement tax?

Witness.—If you like to put it that way. In any case, say, a luxury tax. though the people concerned may not regard it as a luxury. I can assure the Committee that it is the opinion of the profession, whatever it may be on the question of jurisdiction, that the appeal system is bad and should go by the board. The Committee ought devise some remedy for that. On the jurisdiction question, I am quite sure that those who follow me will bring forward a mass of testimony to prove that certain courts are functioning in a most satisfactory manner, and that where there are disputes between local people the local court is the proper tribunal. You will also find there are certain vested interests who will think it is a good thing to have a High Court in all these local towns, and that it adds a certain amount of eclat and glamour to the place. The question for the Committee to consider is what is best for the State and not what is best for the lawyers, or particular towns.

238. Senator Brown.—You suggested that the Master’s jurisdiction should extend to the motion for final judgment?— Yes, for an amount not exceeding £100.

239. Senator Brown.—For £20 and upwards?—Yes.

240. You suggest in case the defendant satisfies the Master there is really a bona fide defence of the action, or some part of it, it should then automatically go down to the Circuit Court and not any longer be kept up here?—I think that is so, with the right of appeal from the Master’s decision.

241. Assuming it is decided the defendant ought to be allowed to contest the case, that is when he shows there is a bona fide question which gives a defence or partial defence, in practice it is desirable it should then go to the Circuit Court?—Yes. He would hear the plaintiff on his motion for final judgment, and he would hear the defendant on his motion to transfer, but if he came to the conclusion the defendant had a fair defence he would let the case go to the Circuit Court.

242. Senator Brown.—My recollection of what happened when I was a junior counsel was that all the defendant had to do was to swear an affidavit that he had a bona fide defence or something like that?—Yes.

243. That he has some ground for it? —In later years, at all events, there was always a cross-motion when a plaintiff moved for final judgment, and the judge heard the two motions together.

244. And that involved the cost of two motions, whereas if it went automatically to the Circuit Court it would not? —There could be no objection to that.

245. You are against any company jurisdiction in the Circuit Court?—I am totally against it.

246. There is no liquidator? Do you know whether there has been any company winding-up case in the Circuit Court?—I have not heard of any myself.

247. Deputy Wolfe.—A substantial case?—I have no experience of any.

248. Senator Brown.—You suggest that the appeal should be on oral evidence, before two judges, and that they should go out twice a year to four selected centres?—Yes.

249. Do you think twice a year would be sufficient? That would mean that a defendant who really had not a defence and against whom there was a decree could hold it up for six months, even if there were no arrears of work?—That is so, but under the old system the judges of Assize did not go out more than twice a year. I think there was a provision by which he had to give security when he lodged an appeal, but whether that was put in force or not I do not know.

Deputy Wolfe.—In the old days that was so, but it was only used where the man was not a mark.

Witness.—Probably the profession as a whole would prefer them to go out oftener than twice a year.

250. Senator Brown.—I am thinking of what the litigants would prefer?—I have been trying to keep that aspect of it in mind all the time.

251. And you would limit the location of the appeals to four centres?—Four centres ought to be enough. You could not ask them to go to every county.

Senator Brown.—The judges of Assize used to have to go to each county twice a year.

Deputy Wolfe.—It makes very little difference.

252. Deputy Little.—You suggest a limit of £100 for the jurisdiction of the Circuit Court. Have you any first-hand evidence to show that 75 per cent. of the cases at present dealt with by the Circuit Court are not over £100?—No, I have no statistics. I should think that that would be very well within the mark, for the reason that I have had very few cases of up to £300 except by Banks.

253. Deputy Little.—I am speaking of over £100.

Chairman.—We have not got that information.

Senator Brown.—There were on an average 191 cases over three years of over £100 and under £300.

254. Deputy Little.—Have you had any direct experience of local dissatisfaction as to the working of the Circuit Courts?—No, I have not. As regards the working of the Circuit Courts in such cases as come before them, I think all the evidence I could give would be the other way. I have received evidence to show that they are very satisfactorily tried.

255. I mean, there is no general outcry in the Circuit Courts over the change in jurisdiction?—There is by some of the practitioners. They are not unanimous by any means.

256. I think you said that the majority were rather in favour of leaving it as it is?—Mr. Ryan will probably be able to tell you. He has statistics. I should say that a substantial majority of the country practitioners would be in favour of keeping the jurisdiction at £300.

257. You have said that the Society consulted these traders’ protection bodies in England?—Our Society did not. Those letters did not come to our secretary at all but to another gentleman who gave them to me.

258. Did anyone consult the Irish traders as to whether they were satisfied with the present jurisdiction?—I have not got any letters with regard to that, but probably they were consulted. Our secretary did not consult anybody about it. We did not even consult the Chamber of Commerce.

259. As to the legal equipment in various parts of the country, would you suggest that solicitors have not a pretty ample library in most of the important centres? I never heard of them having any library at all.

Senator Brown. — They have got Thom’s Directory.

Witness.—The question that Deputy Little has asked me is whether there is any library worth talking about in any country town. I do not think there is.

Deputy Wolfe.—There is one in Cork.

Witness.—Mr. Wolfe may have a private library but there are no public libraries.

260. Deputy Little.—I did not ask you about public libraries.

Dr. Quirke.—You mean a Bar library?

261. Deputy Little. — No; I mean whether solicitors would not have books like Halsbury or some of the statutes— books of reference?—I doubt very much whether they have any library that would be of very much use to them.

262. Deputy Wolfe.—You are satisfied it is the wish of the profession that as regards bankruptcy and companies the jurisdiction should go by the board?—I am perfectly satisfied as to that.

263. That from the public standpoint the retention of that jurisdiction would be of no use?—Absolutely useless.

264. You know the present system of marking judgment in the case of liquidated demand in default of appearance in the High Court?—Yes.

265. Could that be improved?—It certainly could. I do not think that the judgment ought to held up, as it is at present, by the papers being formally sent in to the Master.

266. Would you suggest that it would be well to go back to the old practice?— Certainly. There is no reason in the world why it should not. The Master, himself, I think would tell you that.

267. You have drawn some distinction between the grievances of English merchants as to their treatment in this country, and I agree that these things should be looked to and that so far as possible our credit should be maintained. But let us see how far they have a real grievance. Have you had experience in bringing actions for Irish merchants in England?—Very little. I am sorry to say that trade does not flow that way at all

268. Let me take advantage of that little. When your Irish clients are compelled to sue in England, how does it compare with England merchants suing in this country?—I do not think there is any difficulty at all.

269. In suing in England?—I do not think so. I have not had very many cases.

270. Do we not give their merchants far more facilities than they give us?—I am not able to answer that.

271. I do not mean that that point answers their objection at all, because I do not think it should be the line that we should adopt?—I cannot answer that because I have no experience.

272. If they come to the District Court at present they cannot be compelled to give security for costs? There is no statutory right to security for costs in the District Court?—No.

273. And as regards the Circuit Court, in the case of the added jurisdiction, which is what your evidence mainly deals with, do you know that an Englishman cannot be compelled to give security for costs in this country?—Where he sues up to £300?

274. Up to £50 there is a statutory provision compelling him to give security for costs, but in the case of the jurisdiction added by the Courts of Justice Act I would suggest that at present we are facilitating the English merchant, wrongly I think, to the extent that he need not give security for costs?—You are taking the case of an English merchant suing for £250, say?

275. Suing a West Cork trader for £55? —There is no provision compelling him to give security for costs that I am aware of.

276. I am afraid that there is not?— There never was.

277. There was in the case of the old County Courts; there was a statutory provision compelling him to give security for costs. Do you not think that the English merchant, if he comes to take advantage of our Courts, should give security for costs in the same way as the Irish merchant has to give it in England? —Certainly. I do not see why he should not. I do not see why he should get any preferential treatment.

278. As regards your suggestion of the increased jurisdiction of the Master, I assume that it is that in actions up to £100 in contract the defendant should have liberty to apply to the Master to transfer the action?—That is right.

279. And that thereupon the Master should grant that motion if he thinks there is a question to be tried, and in the alternative, give liberty to mark final judgment?—Yes.

280. Would you agree with Senator Brown’s suggestion that one motion should do duty for what we had in the old days—the motion and the crossmotion, with counsel?—Certainly.

281. And that would be a very substantial economy. You know from your own experience that the judges used to treat them as one motion when they were dealing with the costs, because they always said: “We will give judgment for the plaintiff, the two to be treated as one motion.” You were not entitled to saddle the defendant with two sets of fees, but counsel always looked upon it as two motions, so that the man who succeeded had the privilege of paying for the second out of his own pocket?—I am not here as advocatus diaboli!

282. You have suggested that the path of the appellant should not be made quite so easy in future if the system of rehearing were returned to, and you suggest that he should pay a duty. You must not take it that I am opposed to that, but may I take it that the duty should be an ad valorem duty?—I think that that would be the fairer way to do it.

283. Your suggestion is that not only would the Revenue be served but that bogus appeals would be stopped?—It would serve a double purpose. My principal object was to meet the objection of the State that this system of sending out judges would mean greatly added expense. I say that the expense should be provided for by the litigants themselves, who, as Senator Brown put it, wanted a luxury or wanted to amuse themselves. If a case were a bona fide one, they would recover the costs from the other side.

284. You have taken the case of a substantial action in tort between two wealthy merchants being tried in the Circuit Court and you make the suggestion that the difference in costs between the High Court and the Circuit Court might not be so much owing to special counsel being employed?—They are more under the present system. I think they would not be so much if it was tried in Dublin.

285. What do you think the plaintiff’s costs in an action for slander would be where you have a substantial person suing another substantial person?—That is an exceedingly difficult question to answer off-hand. They would often have two senior counsel.

286. Would you put £200 as a fair minimum?—I have known many substantial actions for slander where the plaintiff’s costs would not be £100.

287. Would you be surprised to know that in the only case I know of since 1924 that would fit that description, the costs of the successful defendant in the Circuit Court did not come to £10, although there were two counsel for the plaintiff?—The case was not well done. I think that is a case you were in yourself. If I were the solicitor, I would have to incur more expense than that.

Deputy Wolfe.—The costs of both sides would not come to £30.

Senator Brown.—That case was tried in their own town?

288. Deputy Wolfe. — About twenty miles from it. The point is that no matter how you try it there is still a very substantial gap between the costs of the Circuit Court and the costs of the High Court. Would you not differentiate between tort and contract?—I do not know. I expect what is running in your head is the number of motor accidents. I think the policy of the old law was a good one, not to encourage trumpery actions for slander and libel.

289. As against that, do you not think that his character is very dear to a poor man, and that he should be allowed to have an action for slander?—I have seen a good many actions for slander that never should have been brought. Very often they make a cheap form of blackmail.

290. You drew a picture of an English litigant being compelled to sue a country creditor for a sum under £20 in the Circuit Court or the District Court, and you suggested that it would be fairer to allow him to sue in the High Court?—Yes.

291. Would you look at it from the standpoint of the trader in West Cork who is sued for £15 by an English creditor and disputes the amount?— What is the difficulty? If he has a defence, under the procedure I have mentioned he has only to incur the expense of entering an appearance, which will cost a few shillings, and he puts it down before the Master to transfer it. The solicitor is heard and his fee is ten shillings or fifteen shillings on the motion to transfer. The Master transfers it to the Circuit Court.

292. Take the cost of entering an appearance, of the motion for transfer, taking out the Order and lodging it— would it not be better to change the shillings into pounds?—If he is on the right side he is going to get all the cost from the other side.

293. If he is on the doubtful side—if he is in doubt about the result, he will pay the amount rather than incur the expense?—He is only in the same position as the whole of us. If he fights a doubtful case, n to take his risks.

294. It would be rather hard on a poor man to take risks of that sort?—I do not think so.

295. Leaving out the English merchant, do you not think that the poor peasant sued for £15 must be looked to?—I do not think there is any hardship on him. He can apply to the Master very economically to transfer the case.

296. The effect of the rules of the High Court is that if you bring an action in tort to recover less than £300, in the absence of a special order, you will not get costs?—The rule is that no costs shall be allowed to a plaintiff in any action commenced in the High Court which could have been commenced in the Circuit Court or the District Court, save such costs as would have been recoverable by the plaintiff in the Circuit Court or the District Court, as the case may be.

297. Assume that the Committee came to the conclusion that they could not recommend the reduction of the jurisdiction of the Circuit Court in tort, having regard to the duty put on them to every section of the community, big and small, at home and abroad, would you still say that rule is a little unfair on the litigant who elects to go to the High Court?—I say it is extremely unfair. A man very often does not bring an action altogether for pecuniary motives. Take a wealthy man who wants to clear his character and sues a poor man. He does not want money. He brings an action and the jury, seeing that there is no use in giving a verdict for £5,000 against the defendant, give a verdict for £50, which he will be able to meet. The idea in the jury’s mind is that they are serving the plaintiff better in that way rather than by giving a ridiculous verdict for £5,000, to which the plaintiff would be legitimately entitled. You are hitting him under the rule for costs, and I think that is wrong.

298. Would you suggest that the plaintiff should have a statutory right to costs if he recovered, in tort, say, £100? —I would, and even for a less amount. A verdict of £100 in a slander action used to be considered a very substantial verdict. It vindicated the purpose for which the action was brought—namely, the man’s character—which was what he was looking for.

299. Senator Hooper.—You suggested that this jurisdiction in tort and contract in the Circuit Court should be £100, and I think one of the reasons you advanced for it was the depreciation of the value of money?—The old jurisdiction in the County Court was £50, and that has been increased in the Circuit Court to £300. I suggested that it should be £100. I used the phrase that, notwithstanding the depreciation in the value of money, it had not been increased in England beyond £100. My point was that what was good enough for the English courts ought to be good enough for us here.

300. Would one of your reasons for fixing £100 be that money has depreciated since before the war?—That did not come into it, one way or the other. I said it was £100 in England and that the Circuit Court jurisdiction ought to be made £100

301. That point has been made and I should like your opinion on it—should the depreciation in the value of money be a factor in the matter?—I suppose it is a factor. It has been a factor in the fixing of lawyers’ and doctors’ fees and the fees of everybody else. Our fees were slightly increased owing to the depreciation in the value of money.

302. The suggestion made here was that £50 before the war was represented by about £100 now?—I think that is excessive. That is depreciating it 100 percent.

303. Can you tell whether before the war the trading community was satisfied with the limit of £50?—I did not hear very many complaints. I think what was at the back of this extended jurisdiction was that there was great necessity for speeding up trials in Dublin. Undoubtedly, the system was unsatisfactory. For many years before 1924 what happened was that a person never knew when his case would actually come into the list. The result was that he had to bring witnesses to Dublin and they were kept here for three or four days before they were wanted. That was one of the reasons, at all events, for the clamour for the extended jurisdiction of the Circuit Court. I shall give an illustration. The Courts never took any action for trial on a Saturday. Saturday in those days was a dies non. There was no judicial work done at the Four Courts on Saturday in those days. Witnesses, say, came up from West Cork on Thursday for a trial, including perhaps two or three doctors in a Probate case. On Friday the case might be second or third on the list, or perhaps was not put into the list at all. These witnesses had the alternative of going back to West Cork on the Friday evening and reaching home in the early hours of Saturday morning of they had to stay in Dublin until Monday. I have known cases like that where witnesses came up on a Thursday and were not wanted until the following Tuesday. Then it was found that a case had been specially fixed for Tuesday and they were told their case would not be taken for another week. That gave rise to a great deal of trouble that should have been easily avoidable. I do not think there was any justification for it—that it was bad management. There should have been some arrangement by which the judges would say that a case would be taken at 11 o’clock on Monday or Tuesday and that the witnesses should be there for that particular day. That would save an immense amount of expense.

304. You do not think there is any danger of reverting to that position?—I think, with any sort of safe machinery, that could be easily arranged.

305. I understood from you that you did not think there was any real demand from the public for an enlargement of the jurisdiction?—I do not think there was. The demand came from a large part of the solicitors’ profession originally. I think the demand was to establish 26 High Courts. I think they must be largely disillusioned by this. I never heard of any demand from the public.

306. You think that £50 before the war was a fair amount?—Quite fair. It worked very well. I never heard any complaints from the solicitors, anyhow.

307. When was the £50 limit introduced?—The original jurisdiction was under the Act of 1851, 14 and 15 Vic., c. 57. That was, I think, £40, and then by the County Court Officers Act of 1877 it was extended to £50. That was passed the same time as our Judicature Act of 1877.

308. Can you tell me the reason why it was extended?—I could not.

309. It was not that money was going down in value?—No, I do not think so.

Senator Brown.—It was going up in value then.

Senator Hooper.—No, it was going down?—I do not know that that was the reason. The County Court Officers Act was passed in the same year as the Judicature Act. They were two consecutive Acts, one being, I think, 40 Vic., c. 56, and the other 40 Vic., c. 57.

310. Senator Hooper.—You told us of substantial actions tried in the Circuit Courts in which counsel were brought down from Dublin, and you mentioned that the fees were 25 guineas for senior counsel, and 20 guineas for junior counsel?—I think that is right.

311. Would you refer to that as a typical case?—I would.

312. Does it happen often?—It does not happen often because the parties cannot afford to pay it.

313. It seems to me that you could hardly describe it as typical?—It is typical in this sense, that if one solicitor says he is going to bring down counsel, the other solicitor must, in self-defence, also bring down counsel.

314. I agree, but it is not a frequent occurrence?—It could not be a frequent occurrence, because when a solicitor says to his client, “I will have to bring down senior and junior counsel and that will cost you 45 guineas,” the client says, “I think we will try to get on as well as we can without them.” Is that fair to the litigant all the time? In substantial cases they should have the right to have the assistance of good lawyers, and I do not think it is fair to stop them by making fees prohibitive.

315. I am not disputing that. I merely want to get at the facts of the real situation. You said that you would be prepared to have the jurisdiction unlimited so long as the parties consented because in that case you thought the local Court was a suitable Court?—Yes, so long as the parties agreed.

316. How does the consent of the parties affect the suitability of the tribunal? Surely if it is suitable for parties who consent to have it tried there, it is equally suitable for parties who disagree?—You are losing sight of the question I am on. In one case, the litigants agree that the tribunal is the fairest, the speediest and the most efficacious for their purpose. In the other case, the parties are not satisfied. You are forcing them to go before a tribunal to which they do not agree.

317. If you say that the Court is suitable as being nearest to the location of the cause of action, does not that apply in both cases?—It does not apply to a man from Dublin who has to go down to West Cork. He is not in the neighbourhood.

318. Surely it is as suitable when he agrees to it is when he disagrees?—You mean as regards the fitness of the judge to try the case?

319. Not only the fitness of the judge, but the nearness of the witnesses, and the proximity to the place out of which the action might arise? You spoke about the shorthand writers’ notes and you said that they must be unsatisfactory. I would like if you would give me an instance of a concrete case where they were unsatisfactory to your knowledge?— Well, it may not have been due to the stenographer, but I have heard judges express the opinion that they could not understand them; that they were not intelligible. That may have been the fault of the witness for all I know. Do not take me as making any general reflection on stenographers. What I was trying to emphasise is that you are putting on them a very difficult task, an impossible task, sitting there from 10 o’clock in the morning to 5 o’clock in the afternoon.

320. Undoubtedly, a very difficult and hard task, but you do not know of any case where they were unsatisfactory?—I do not.

321. You spoke of the cost of the notes? —The cost was very large.

322. We have some particulars* before us showing that the average cost was £2? —I have heard of some cases where they were over £10. It depends on the length of the case.

323. The average is £2. The statement that they are very heavy is hardly justified according to that figure?—I do not know where the rest of the cost comes in, but the average cost of an appeal, any practitioner will tell you, is about £40.

324. Senator Brown.—That is only the initial cost. The notes have to be copied? —They have to be copied for counsel and for the Court.*

325. Deputy Rice.—You limited your evidence in this way at the beginning, that you were speaking in a rather neutral fashion, not for the profession generally. I think that limitation applied only to the question of jurisdiction, and you are speaking for the profession at large on the other subject?—I think I am on safer ground, and that I will not be contradicted substantially. I think there would be a division of opinion on the question of jurisdiction, but on the other question I think every practitioner knows that the appeals are unsatisfactory. They possibly may not all agree in the view I put forward about the two judges. I have no authority from the Council to speak about that.

326. You mentioned, in the course of your evidence, that it might be desirable not to limit litigants to actions of a minimum of £20 to the High Court. What I have in mind is that there are a great many of these debt actions for smaller sums, and in 90 per cent. of the cases there is no defence. The plaintiff in that case should be allowed to proceed and get a speedy decision if he is willing to take his risk to lose part of his costs? —That is right, and I would give him very little costs. I would not give him more than he would get in the District Court, but I would not allow the defendant to hold up the action by filing an affidavit that he has a good defence on the merits. I think you will find that that would make for good relations between the Free State and the other side.

327. I think you agree with Senator Brown’s suggestion, that, instead of a defendant being entitled to hold up an action by swearing an affidavit to the effect that he had a good defence on the merits, he should be obliged to state his defence so that the Master would be in a position to say whether the case should be allowed to proceed?—Yes.

328. Deputy Wolfe drew attention to the cheapness of the Circuit Court, and he told you about an action which, no doubt he has conducted himself, where the costs were £10. Of course, an essential part of the Circuit Court system is the appeal. It is an essential part of the machinery?—Yes.

329. You mentioned a case in your own experience where the costs ran to £40 or £50. Have you heard of a case of this kind? It is an actual case of an action tried in the Mayo Circuit Court. It was brought by the plaintiff for the maintenance of the defendant’s wife, and there was a decree given for £25. There was an appeal taken from that decree, and it was at hearing from the 26th to the 28th of December, 1928. The costs were fixed at £84 14s. 6d. It was for maintenance of the man’s wife, and the decree was for £25?—I have seen most extraordinary costs in these appeals. We talk about the poor man’s court, but it is all rubbish. The only alternative to this wretched appeal system that you have at present is to make a Circuit Court Judge final, except on points of law. I think that would be very bad from two points of view. It would be bad for the judge and it would be bad for the litigants. It would be bad for the judge because the judge often decides a case with a good deal of doubt, and he would rather welcome an appeal. It would not tend to good work on the Bench to have no right of appeal on a question of fact, but it would be better at once to do away with these nonsensical appeals you have at present, and say that the judges in the Circuit Court shall be absolutely final on all questions of fact, and that there shall be only an appeal on a question of law, than to have this ridiculous system of appeal that is perfectly valueless.

330. It was suggested to you that the cost of the shorthand notes was small. Is it not a fact that the cost is 4d. a folio, and that after that cost is incurred, you are only beginning, because you have to make two copies for the Court* and copies for counsel as well?—That is right. I do not know whether you have to pay the stenographer before you start.

331. Senator Brown.—When the Bill of 1924 was in the Seanad, they tried to differentiate between the maximum jurisdiction of the Circuit Court in this way, that in cases where the parties both live in the same county the jurisdiction should be £300, but that where they did not live in the same county it should be reduced to £100 or £150. That would get rid of the objection as to the expense of coming to Dublin where they both live in the same county?—I am strongly of the view that the open forum is best, at all events where the parties consent. As to the idea of unlimited jurisdiction, there might be a good deal in what you say, and when both parties reside in the same county you might give extended jurisdiction up to £300. It would not cause the same amount of hardship.

Chairman.—Thanks, Dr. Quirke.

(The Witness withdrew.)

Mr. L. J. Ryan, Solicitor, Thurles, called and examined.

332. Chairman.—I understand you are a member of the firm of Messrs. L. J. Ryan & Son, Thurles?—I am.

333. You were admitted to practice in 1894?—Yes.

334. You are on the Council of the Incorporated Law Society of Ireland for the last six years?—Yes.

335. You were Vice-President in 1925-26?—That is so.

336. And you are President of the Tipperary Bar Association?—Yes.

337. That Association comprises about 45 members?—43 or 44.

338. Your practice I take it is largely a country practice?—Yes; for the past thirty-five years I have been a country practitioner.

339. Are you speaking for the Council of the Incorporated Law Society?—Yes, I was sent here with Dr. Quirke to represent the Incorporated Law Society.

340. Can we take it that the evidence you give would be also on behalf of the Tipperary Bar Association?—Yes, chiefly I might answer as to how the provinces would look on this question, as distinct from the city view.

340a. Will you tell us what exactly are your views on the matter?—On the question of jurisdiction I think we are apt to lose sight of the large volume of jurisdiction exercised in the Circuit Courts, apart altogether from this debated subject of contract. It is really only a comparatively small part of our Circuit Court work at present. The small cases of debt that are dealt with in the country are now disposed of in our District Courts. We have, over and above this jurisdiction in contract, a very considerable volume of business, and I am glad to say that there is unanimity in the profession that there should be the extended jurisdiction conferred by the Courts of Justice Act. We have first the question of jurisdiction on consent. I have not heard any voice against jurisdiction without limitation, on consent. That seems to me to meet with the approval of everyone. The extended jurisdiction in equity we find most satisfactory, with this qualification, that the definition of “equity matters” in the Courts of Justice Act is most unsatisfactory. It is regulated by Section 48, Par. (v). “In equity cases (including winding-up of companies)—jurisdiction within the same limits as in the preceding paragraph (iv).” The whole of our equitable jurisdiction is involved in these lines. It refers back to the previous paragraph, but when you go back you find it refers to jurisdiction in probate matters and in administration suits. There is no analogy whatever between an equity suit and a probate suit. That is exemplified if you look at the jurisdiction regulating probate matters which refers to personalty not exceeding £1,000. In many of our equity suits there is nothing analogous to personalty. For instance in a mortgagee suit to recover £1,000 on freehold property we are all at sea to know what personalty refers to in such a suit. What the Council of the Incorporated Law Society, and the profession as a whole, beg respectfully to suggest to the Committee is that they should recommend the re-enactment of Section 33 of the County Officers and Courts Act of 1877, which categorically under ten headings sets out the various items of jurisdiction — administration suits, trusts, mortagee suits, specific performance, partnership, partition, waste and minors, of course with the amendment of £500 to £1,000, and £30 Poor Law Valuation to £60. Section 33 of the old Act of 1877 with that amendment, instead of what I might term the crude definition of equity cases in the Courts of Justice Act, would meet the views of everyone who has to deal with these matters, practically every day. Another matter in which we all are united is the extended jurisdiction in probate matters. There is one thing that Dr. Quirke did not refer to, and which the Council of the Law Society wish to have amended, The Counties of Dublin, Meath and Kildare never had probate jurisdiction. Strange though it may appear these three counties, possibly by reason of their nearness to Dublin, always had to have small probate suits tried in the High Court. I understand that the practitioners in these counties are anxious to be put on the same basis as any other county in Ireland.

341. Senator Brown.—Has the Circuit Court in Dublin not got probate jurisdiction?—No, nor has Kildare or Meath.

342. I know that they have not a Registry?—They were excluded by the Probate Act. The next jurisdiction on which I think we are of one opinion is a very common jurisdiction which we exercise in the Circuit Court, namely, title jurisdiction, dealing with rights-of-way and cases of that kind, up to £60. It is very useful. We have to handle such cases very day. The next thing to which I would like to draw the attention of the Committee is the matter of ejectments. Strange though it may appear, there is no jurisdiction whatever that I can find in the Circuit Court for ejectment. If you look at Section 48 you will find it is entirely silent. An ejectment is a statutory right created by the Deasy’s Act of 1860 for non-payment of rent. I do not see any reference to ejectment in the Courts of Justice Act at all.

343. Deputy Wolfe.—Section 51? That is an omnibus section. That would transfer generally all jurisdiction.

344. Of the old County Courts?—Yes.

345. That is the only Section dealing with ejectments as far as I know?—If that is considered to transfer all the provisions of Deasy’s Act with others, I suppose it would carry them, but I know that some Circuit Court Judges have a doubt about it. I leave it at that. To come to the doubtful or debated jurisdiction, and to deal first with tort there is an almost unanimous feeling in the profession that tort jurisdiction should remain. Personally I am strongly in favour of the extended jurisdiction. In this age of motor cars, such cases are very frequent, and they are dealt with practically in every one of our Circuit Couts with efficiency and expedition, and where you have local witnesses—I dealt with five at the last Circuit Court—they were dealt with to the satisfaction of everyone concerned. The highest verdict was £150, ranging down, I think, to £70. These five cases were disposed of in two days to the satisfaction of everyone. If they were tried in the city of Dublin they would cost £150 a side, with a big Bar, and solicitors and witnesses would have to come up from the country. For that reason I would respectfully submit that this jurisdiction in tort should be allowed to remain.

346. Chairman.—What would be the cost in the country?—The cost in the cases that I refer to, exclusive of witnesses’ expenses, which, of course, vary a good deal, would not exceed £12. In one of these cases where an accident happened outside the town of Tipperary, I had to bring two doctors from Tipperary to Thurles, where the case was tried, and that necessarily increased expenses.

347. Deputy Rice.—In that £150 do you include or exclude witnesses’ expenses?—Include.

348. You have not then included them in the £12?—No, the £12 would not include witnesses’ expenses. Of course, jury trials in Dublin vary enormously. You may be lucky enough to get your case taken in the morning, or you may be unlucky enough to be kept here for a week, or, as in the case referred to by Dr. Quirke, you may be told on a Thursday to send your witnesses home for the week-end. If you have six, eight or ten witnesses here, that will increase the expenses enormously. Coming to the question of contract about which I find there is no unanimity, I caused recently a vote to be taken of solicitors in the County Tipperary, and if it is any guide to the Committee, I think the result can be taken as about typical of the Southern counties. The vote was 32 for the full jurisdiction of £300, and 12 for the reduced amount, varying from £100 to £150. Two arguments have been advanced to me in various quarters about this jurisdiction, and I should say there are only two. Of the two that I have heard, one was that on which Dr. Quirke largely dealt with—namely, the credit question, especially in reference to English merchants. The second was that which appertains to the future of the Bar in this country. These are the two principal arguments. As regards the first, I think it has been much exaggerated. I do not think that there has been anything like this great falling-off in the credit of the country that is put up by persons who are anxious to reduce the jurisdiction. I did not find it, and I have not heard any specific complaints from any quarter. But assuming for a moment that there is some foundation for it, I think it could be met by what I might describe as a kind of concurrent jurisdiction if the Committee would be pleased to recommend it. What I mean by that is that the plaintiff should have the option of proceeding either in the Circuit Court or in the High Court, the latter only where his claim exceeds, say, £50. I deprecate the issue of writs for small amounts. I think it was greatly abused here in the city. I have seen writs for 70/- and 75/- and £5 issued against traders in the country. I think that should be stopped. I think that a writ in the High Court should not be resorted to for any amount under £50. Let the creditor issue his writ for a liquidated demand over £50 Then let us go back to the old, tried procedure which stood the test of time— namely, an application for final judgment. First, if no appearance is put in, there is a very useful procedure. Formerly the solicitor for the plaintiff went into the Office on the expiration of of the 10 days with his writ, his affidavit of debt and affidavit of service, and the officer there, having examined these and found them in order, granted him judgment and handed him the fi fa across the counter. If an appearance was entered, the old procedure was that a motion could be instituted for final judgment, and if the court was of opinion that there was nothing to try and nothing to litigate, and that the defendant had no defence, judgment was thereupon granted. On the other hand, if the court came to the conclusion that there was something to litigate, then it should be sent to the appropriate Circuit Court to be dealt with, and instead of being a misfortune to the English trader, I think it was the greatest blessing that could befall him— to have his case cheaply disposed of in Thurles or Nenagh in the one day. I should say that is a remedy that has been recommended by the Law Society as an alternative jurisdiction which would meet this objection about extended credit. As to the second argument, that which affects the future of the Bar in Ireland, I think there is something to be said about it. It goes back to the old question about the amalgamation of the professions, which is a very large question. There is a strong view held that if the Circuit Courts maintain this extended jurisdiction in contract, young men will not be able to earn a living at the Bar, that after leaving the Universities they will not go to the Bar, but will go in for some other profession, go in for the Civil Service or leave the country and that in a short time, in eight or ten years, you will have no Bar, no Bar library and no profession from which to select your judges. That, of course, is a very big matter and is very debatable. From inquiries I have made, I understand that in America the matter has resolved itself virtually into having a man in the office, who is the advocate, and another partner who does the office work. In the strict sense of the word, you have not two professions there. I understand from a New York solicitor to whom I spoke on the subject about two years ago, that that is virtually what has happened in the city of New York. It is a big question on which I cannot give any assistance to the Committee. I mention it because it has been advanced to me by members of my own profession, and also by members of the Bar. There are a few other matters that I would like to mention. To my mind the following classes of cases should be reserved for Dublin:—Bankruptcy, the winding-up of companies, matrimonial and actions in crim. con. I think that on the question of jurisdiction it would be most desirable that the Master should have jurisdiction in interlocutory motions for judgment, transfer of actions, discovery, garnishee, and such like. Generally speaking, I should like to say that in the opinion of the profession and the public the Circuit Courts have been an unqualified success. There are no arrears, and the cost is comparatively small. I live in a midland centre. The County Tipperary has a large area and the Circuit Court work was disposed of in three days, last session, having dealt very effectively with all the cases. On the question of appeal, I think that the profession and the public at large are all agreed that this present system of appeals has been a failure. The expense is enormous. In nine case out of ten, the expense is out of proportion to the amount involved in cases that are brought up to Dublin. The notes in some cases are very expensive, but in most cases the cost of them is not prohibitive. A couple of pounds or 50/- will not stop any litigant, but then are these notes satisfactory? I can tell the Committee that they are most unsatisfactory. I can give a concrete case that happened at the last Circuit Court we had. If I give this instance to the Committee, it will explain to the members what happens in a great many of these cases. This was a case of right of way. The plaintiff sued the defendant for trespass. The defendant set up a right of way and justified his entry upon the lands by reason of the fact that he had a right of way on foot. The plaintiff countered that by saying, “yes, you have a right of way to this village or church but it is not the way you are going. It is another way, through my land, which I will allow you to continue, but not the way you were going.” The case was opened by counsel saying that he regretted his surveyor who had prepared the map had got suddenly unwell and was not able to attend. Counsel had not the map, but he got the back of his brief, went up on the Bench and drew a map of the place. He explained to the judge “from here to here” and from “there to there” and so on. When he had proceeded some little distance the judge asked “Has the defendant a mapper”? The defendant’s mapsman came forward with his map and went up on the bench on the other side of the judge. There was then a kind of putting heads together. I noticed that the stenographer put her pencil down and did not take a word of it. When the judge had satisfied himself of the locus in quo, counsel proceeded to examine his witness, but there was not a single word of what took place with the judge on the bench on the notes. As was mentioned, I think, by Dr. Quirke, sometimes witnesses and solicitors know the locus so intimately, like neighbours talking about a boundary fence, that the notes are worthless and valueless. Strictly speaking, all these maps should be marked A, B, C and D and so on, so that the evidence could be like this: “from A to B the stream flows” and “from D to F there is a good gradient” and so on. In practice, that is not done at all, and from that point of view these notes are largely most unsatisfactory. I believe they are written up largely from the memory of the stenographer because one could not possibly take down the notes of everything said where you have two solicitors in court talking together with, very likely, the judge examining a witness and then somebody pops up and says something. I am not saying a word against the stenographer, but I defy anyone, even the most expert Parliamentary Reporter of the House of Commons——

349. Deputy Rice.—Dáil?—Or Dáil stenographers, to take a verbatim report of all that is said. I have read the notes of cases that I was in myself and I hardly recognised them. The whole procedure is most unsatisfactory, apart altogether from the expense. In the hearing of appeals in Dublin, there is usually a big Bar and cases are long drawn out owing to the reading of notes. Mr. Rice mentioned the expense of hearing a case amounting to £70 or £80.

Deputy Rice.—In the instance I gave, the costs came to £84.

Witness.—I had cases where the costs came to £40. The alternative I suggest would be the old procedure, which was well tried. It was not perfect, but no system I suppose is. It was in the hearts of the people. You went off to your county town twice a year and you got a very satisfactory hearing before a judge. If a litigant was beaten, he was satisfied, at all events, that he saw the judge and heard his judgment. I have had a case from a lady, and she will not believe me that her appeal was dismissed the other day. She came up to me when coming out from Mass, and she said: “There must be some mistake. You told me nothing about it going on in Dublin. Why was not Dr. —— there?” The following morning she consulted another solicitor, and I suppose she considered her case was “sold.” The whole thing is ludicrous from the country point of view. The Incorporated Law Society suggested two judges. When you come to consider questions of fact, and drawing inferences from questions of fact, there may be a great many pros and cons as to the virtue of two judges as distinct from one. I have formed no conclusive judgment upon that. The Law Society, on the whole, favour two, even on the judging of facts or drawing of inferences from facts. A second judicial mind is a great “steadier” to the other. Of course, it will increase the expense. You must not lose sight of the fact, when you are talking about stenographers, that you must retain them in so far as criminal jurisdiction is concerned. As long as you report criminal appeals, you must have some one like an official stenographer to take notes.

Chairman.—We are not concerned with the criminal side of it.

Witness.—Yes; but in view of the suggestion that a stenographer should be retained to take a note in every case, with a view to cross-examining witnesses when a case goes to the higher courts, it has not to be lost sight of that great expense will not be involved if you must have an official stenographer in court. If you go back to the old system of Assize, I think the want of books of reference has been greatly exaggerated. There are libraries throughout the country. I have a set of reports, English and Irish, and most of the ordinary text books can be found in my office. In Nenagh, there is a complete set of official reports and all the text books. I never could understand why solicitors in this country cannot be as efficient as in England. In any office outside of London, you will find in the solicitors’ offices the reports and the statutes. Probably we were spoiled by the great institution of the Bar library. In my young days, if you wanted a Civil Bill you wrote out a back sheet of paper, put in a guinea and sent it up to the Bar. That, I think, has largely disappeared. In the old circuit days there was an understood practice which was most useful. Where an important law point turned up, or a difficulty that required argument, the judges invariably adjourned to Dublin and fixed a date for it and heard counsel in Dublin. I think it was Senator Brown who referred to the right to state a case, which, strange to say, the County Court judge never had. I think the Circuit Judge should have the right to state a case. At present he has not. I think where you have a substantial point you cannot dispose of it more expeditiously or more cheaply than in the form of a case stated.

Senator Brown.—You can only have a case stated where both parties agree to the facts.

Witness.—The County Court Judge never had power to state a case.

Senator Brown.—But the judge of Assize had when there was an agreed statement of facts.

Witness.—Yes; it was a most useful procedure. A stated case, if my recollection serves me, cost only £5 or £6.

Deputy Wolfe.—It came to a little more than that sometimes.

Witness.—It was, comparatively, a trifle.

Senator Brown.—It was satisfactory in getting a good decision on a point, which you could not have got below.

Witness.—With regard to the sittings of Circuit Courts, we have to attend the District Courts and the Circuit Courts, and there is a feeling that it would be sufficient if the Circuit Court sat three times in the year. The old circuits were rather badly planned. They sat in March and July. I think if the Circuit Courts sat in January and July it would meet the circumstances of the case.

350. Deputy Rice.—I think you mentioned that the difficulty with regard to the absence of a library is exaggerated I think there are 48 members in your association?—44.

351. Obviously from what you told us, you have an adequate library. Have any other members of the association got a library like yourself?—I think there is another.

352. That would be two out of 44?— Yes.

353. I take it, although you are good-natured, you do not allow the other advocates to use your library?—Yes, including the Bar.

354. Deputy Rice.—That is excellent. There is another matter on which we had two points of view and I would like to know which you favour. One is that there should be a shorthand note made in full as at present and be available on appeal. The other is that you might limit the shorthand note in civil cases to such evidence as the advocate on either side should request. What do you think of that?—Personally I am against the stenographer. From my experience of four or five years, I think the expenditure on stenographers is useless.

355. Then you would not even have it in a case where an advocate might think a certain witness might possibly not adhere to the first story?—No, I would not.

356. There is another matter upon which I should have asked a question of Dr. Quirke, that is with regard to the number of circuit centres. Do you not think, having regard to the greater mobility—the greater facilities the public now have for travelling—you ought to have a larger number of centres?—I would favour the old county centres.

357. It was not my circuit, but I think there were nine towns in your circuit?— There were two in my county, Nenagh and Clonmel. I would suggest they ought to come to Thurles, as it is the most central town. It is on the main line, and is only two hours’ journey from Dublin. Perhaps the Chairman would favour Nenagh.

Chairman.—The Chairman dare not say. Thurles is in his constituency as well as Nenagh.

Witness.—The lists of cases before an Assize Court in the old days roughly averaged 30. It went down as far as three or four and up to 40, but taking one Assize with another, you might say the average was 30. Half of these went out, being either settled or withdrawn, and the balance, 14 or 15, were disposed of in two days. I think in all my time I hardly remember an Assize going into the third day.

358. Deputy Rice.—Do you sugest that that is typical of the circuit generally?— I do.

359. My experience has been the other way?—I have no experience of Cork or Limerick, or large centres of that kind. I am speaking of Tipperary. I am sure it would apply equally to Wexford and Carlow, and counties of that kind.

360. Deputy Little.—You mentioned the sum of £60 as the limit of jurisdiction in cases of title, and you suggest increasing that?—Yes, but I am afraid mv yiew on that matter might not possibly be in unison with that of others. I am entirely in favour of an increased local jurisdiction in the Circuit Court. I do not say that view is universal.

361. And in the case of ejectments for non-payment of rent?—If I might digress for a moment, I would go as far as to say that if you leave out of consideration the view of the Bar in Ireland, I would increase the local courts very considerably, but it would affect the Bar in this way, that you would have no Bar in half-a-dozen years. If you eliminate that from consideration, I think it would be to the advantage of this small country, with a population of 2¾ millions, and I think that the business could be very efficiently done locally in 95 per cent. of the cases.

362. Do you think that possibly the Bar might follow the business, in the sense that it would become decentralised, that barristers would live locally and practise within a given area?—I do not think that is practicable. I have seen the Bar in my own town and in adjoining towns, and I know and appreciate that there is not a living in it.

363. Then the only alternative would be amalgamation of the professions?—Yes, and that is the big question that will have to come up to be considered seriously some day.

364. Do you feel that the general public would like a reversion to the old system of the lower jurisdiction for the Circuit Court?—I would say not.

365. The people would feel it was a mistake?—You have such cases as these motor accident cases cropping up every day, where you claim £300 and know you are not going to get anything more than in the neighbourhood of £100; it is very advantageous to have these thrashed out locally. You have the local doctor there and other witnesses and they are done very efficiently. Sometimes a case of that kind will be done before luncheon.

366. Do you think in the case of Section 51 that you referred to —the omnibus section—it would be more satisfactory to make the matter clear in legislation?— Clarity in legislation is very essential.

367. Senator Hooper.—There was an objection made yesterday to the extended jurisdiction of the Circuit Court in respect of registration of judgments. Do you think that is an important point?—I do, sir. I think it is highly desirable that all judgments over £20 should be registered in the Central Office.

368. There is no such procedure now?— No. You are now bound to register a judgment in the High Court of over £20, but it is not inoperative if you fail to do so. If you do not do so, you run the risk, if the defendant becomes bankrupt, of having to pay to the official assignee any sum recovered by virtue of that judgment. Very often I have not registered a judgment against a defendant because it would mean putting him into trade gazettes and things of that kind, and out of mercy to the defendant I did not do so. But I gambled on his never becoming a bankrupt. One of my men did, and I had to pay up £40 or £50 out of my own pocket.

369. Have you any suggestion to make as to how that difficulty could be overcome?—The Central Office.

370. Senator Brown.—With compulsory registration?—Yes. But there is a peculiar thing that I never could get answered by anybody, and that is what the effect of the registration of the judgment is.

371. Except in relation to bankruptcy? —But it does not affect lands. It is only for trade information. I never knew what the protection of searches was.

372. It was not really for the judgment you searched; it was mainly for the recognisances which were a charge?—Or bankruptcy. But it would be desirable from the traders’ point of view that a man in that way, or some other way, should know what a person’s past history was.

373. Senator Hooper.—And it would mean that the County Registrar would immediately communicate with the Central Office?—Yes, send up an abstract from the judgment. It would only mean filling up a form.

374. Deputy Little.—Could it not be done by the solicitor’s town agent?— Yes.

375. Senator Brown.—Does the County Registrar do it?—No. Of course these forms could be greatly simplified. All that would be necessary would be the plaintiff’s name, the defendant’s name, the amount of the judgment, the date and the place.

376. Senator Hooper.—You spoke of this extended jurisdiction having popular approval. Can you tell me if there was any demand for it before it was extended?—Oh, yes. In my time in the profession it was very much debated.

377. Would I be correct in saying that some of the Chambers of Commerce asked for this extended jurisdiction?—I think so.

Deputy Wolfe.—Yes.

378. Senator Hooper.—You spoke, too, about solicitors and litigants being brought to Dublin and having to go back again owing to the delay in hearing their cases, and Dr. Quirke suggested that there might be some arrangement by which that might be obviated. Do you think that any arrangement of that kind could be arrived at?—I do not think so. In the old days, you simply got blocked up because there was some case on trial, and you had to be put into the list because if that trial collapsed or was settled, as cases often were, another case would have to be ready, whereas instead of its being settled it might last three or four days.

379. Do you think that that difficulty is inherent?—Absolutely.

380. Do you agree with the suggestion that was made this morning that there should be an unlimited right to trial in the High Court for all amounts?

Deputy Rice.—Not a right to trial.

381. Senator Hooper.—That a man should be entitled to issue a writ in the High Court for any amount?—No. I deprecate strongly the issuing of writs, because I think that really developed into a great abuse. There is a firm of solicitors which acts largely for English traders. They issued a writ to my own knowledge for £3 17s. 0d. for a bag of corks, and served it on a client of mine in Tipperary.

382. And you suggest that the judge should remit an action of that kind?— That it should be automatically sent down.

383. Another suggestion was that the Master should remit. Have you any views on that?—I certainly favour the extended jurisdiction of the Master.

384. Senator Brown.—You would put the limit at £50?—I would.

385. That is, twice the limit of the District Court?—Yes.

386. Might it not be better to limit it to the jurisdiction of the District Court, £25?—I was considering that course. I had to put it somewhere. I was as high as £100, and I came down to £50 recently.

387. It would be no hardship at all to make a man with a claim of under £25 go to the District Court absolutely, not to allow him to do anything in the High Court?—I would be inclined to accept that. But it is the issuing of writs for these miserable amounts that should be stopped.

388. Senator Brown.—You are afraid that the Bar will disappear physically if the present system goes on?

Deputy Rice.—Intellectually.

389. Senator Brown.—That they will not be able to make a living?—I think so.

390. I am much more afraid of their not being an efficient Bar, even if they did live, and I think they will live. What occurs to me is this: the Circuit Court is now a very great temptation—perhaps I should not use the word “temptation” —to the young barrister to start in straight away after he is called—to go down and pick up guineas in the Circuit Court. Young barristers will get into business there, and then will stay there for five or six years or up to ten years. They will not learn their job. They are away from the legal atmosphere and from the Bar Library. They really are away from libraries, because although you have a very efficient library for your own purposes, you have not got it for the purpose of a particular argument where you want more than the Irish reports and text-books?—I agree that not alone physically, but from the efficiency point of view, the Bar will decline. I have not the slightest doubt about that.

391. And I am afraid if that occurs it will affect the efficiency of the whole Bar, and in the end of the Bench?—Undoubtedly. A great many people will ask you where are you going to get your judges in the next generation?

392. Senator Farren.—It appears to me, from the evidence of Dr. Quirke this morning, and from other evidence that has been given to the Committee, that the whole question with regard to the jurisdiction of the Circuit Courts arises in regard to cases of contract. In your experience, how many cases have occurred in the Circuit Courts of creditors suing on contracts exceeding £200 in case of merchants supplying goods? I mean what would be the percentage?—I doubt if I have had a case of over £200 since the Courts of Justice Act was passed. Just at the moment, I cannot recollect a single one. The only large things in the country at the moment for which you see writs issued are claims by Banks, where unfortunate clients in the rural areas are not able to pay. These are the big amounts that we see at the moment.

393. Largely cases of credit given by local banks?—Yes.

394. And these cases could be just as easily dealt with in the Circuit Courts as in the Dublin courts?—Much more easily. The debts I deal with in my part of the world would be ordinary farmers’ debts incurred in shops—£20 and £25. They might run up to £40 or £50 in the case of a substantial farmer, but the more substantial the farmer, the more likely he is to pay. I am sure Mr. Wolfe will agree, as far as his part of the country is concerned, that the run of the debts would be £25 and £30.

395. Is it your experience that these merchants in Manchester, Leeds, and other places across the water, advance credit up to £200 to local shopkeepers? —They never did in my part of the country.

396. I would be surprised if they did?— If they did, they only have done so in cases where they knew they had only to ask for a cheque.

397. And English merchants do not usually sue in the courts for amounts of over £200?—They never instructed me.

398. Deputy Beckett.—Is the point not rather that people of standing in the country, as well as people of standing in the city, do not appear in the courts, that as regards traders in Manchester, Liverpool, Leeds, or anywhere else, credit is judged and governed by the history of their experience?—Yes.

399. And if you have two cases in the court and you have thousands of cases that never appear in the courts, those two cases will not affect credit?—Not a bit.

400. I suggest to you that the question of credit as regards those cases that appear in the courts does not exist. It affects the credit of that one man or of two or three men, but it does not affect the general credit of the district?—Not a bit.

Deputy Beckett.—That is what I wanted to get at.

401. Deputy Wolfe.—Has your local Association considered the question of reducing or enlarging the jurisdiction of the District Courts?—They have.

402. What conclusion have they come to?—They would increase it to £50 in contract cases.

403. Leaving tort where it is?—Yes.

404. Has you Association been able to construe that portion of Section 77 which deals with the question of title—in other words, in your part of the country has a District Justice jurisdiction in title cases? —We have tried title cases.

405. Section 77 is construed in Tipperary as giving him jurisdiction in title cases where the Poor Law Valuation does not exceed £10?—Yes, there is no estoppel.

406. That is the law of Tipperary?— Yes, and it should be in Cork, too.

407. What portion of Section 77 gives him jurisdiction in title cases?—The Section itself.

408. Which portion of it?—It says that the jurisdiction shall not be ousted by reason of a question of title to land being brought into issue, where the jurisdiction does not exceed £10.

Senator Brown.—I am afraid you are using the word “title” in two different senses. One is thinking of one thing and the other of another.

409. Deputy Wolfe.—The latter portion of the Section says: “but in such case the decision of the Justice shall not operate as an estoppel in or bar to a suit in any court in relation to such land?”—Yes.

410. What use is it?—It is of use in this sense: that you can dispose of a very small case such as a right-of-way across a garden.

411. I have never in any of the District Courts in which I practise seen a suit being brought under that. I am glad to see you have succeeded in doing it. Have you any view as to enlarging the jurisdiction of the District Justice in the case of Land Commission annuities?—I have not considered that.

412. You know, of course, that in your Circuit Court your returns* are somewhat misleading, unless it is explained that the number of cases dealt with largely consist of undefended Land Commission cases?—In the Circuit Court in Tipperary the judge deals with all classes of Land Commission cases. He does not deprecate the bringing of processes in his court which are strictly within the jurisdiction of the District Court. In other Circuit Courts, for instance, in the neighbouring Circuit Court, the judge will not hear Land Commission cases if they are within the jurisdiction of the District Court.

413. Perhaps he has taken upon himself a jurisdiction which he has not—the right to refuse a jurisdiction which the section confers upon him. One judge I have in mind, for instance, holds that where the statute confers jurisdiction he is bound to exercise it, and I most respectfully agree with him. Apart from that, have you thought whether it would be advisable to give the District Justices power to hear Land Commission annuity cases, no matter what the amount sued for would be?—I would, because they are very formal matters. It is only a matter of issuing a decree—the amount is fixed.

414. In your county have they to go a long distance to the Circuit Court?—No.

415. I know counties where they have to travel 40 miles without a railway to the Circuit Court. Do you not think that is rather rough on the land annuitant?—I think the District Court should be competent to deal with such cases. A clerk in the office could deal with them, as it only means automatically granting decrees. They get an odd defended case, where the wrong man is served, or where a man is dead, or something of that kind, but that would be only one in a hundred.

416. And he has the right to appeal to the Circuit Court?—If you write to the Land Commission in these cases you will always get redress.

417. Dr. Quirke to-day made a suggestion which was new to me and I should like to have your views on it—that is the suggestion of putting an ad valorem duty on the appeals in the case of re-hearing —would you agree with that?—Yes, so long as it would not be too stiff.

418. In other words, if increased expense is brought about by the appointment of judges it would be reasonable to put on the appellant some portion of that increased cost?—Certainly.

419. On the other hand, it should be an ad valorem duty?—Yes.

420. So that it would not prevent the small man from appealing?—It would be a useful provision, because some of these appeals are merely put in to gain time, or something of that kind, and it would put a stop to them.

421. I think you referred to the service of writs for very small amounts?— Yes.

422. Before the Courts of Justice Act was that the subject of very great difficulty in the country—the issuing of writs by solicitors principally for English traders for very small amounts?—It was the subject of very great complaint and abuse.

423. In fact some solicitors issued writs for £2 and £3?—Yes, and it was commented upon by judges in the High Court frequently as an abuse of the processes of the Court.

424. Does it not mean in practice that a peasant or small trader who gets a writ for £3 or £4 has to pay, whether he owes it or not, if he has sense?—Of course it does.

425. This form of legitimate blackmail has been put a stop to by the Courts of Justice Act?—Yes.

426. You suggest a jurisdiction of £50? —I had to put in some figure. £100 was in my mind until last week, I might say, and then I thought that there is a good deal in a quick remedy by writ. It is inherent in our jurisdiction.

427. Do you not think it would be absolutely essential to keep away these small writs?—Undoubtedly.

428. They were a disgrace to the profession?—They are a disgrace and an abuse of the processes of the Court.

429. As regards the question of staying execution pending appeals, at present I understand there is no means of getting a stay of execution?—That is so, I think. It is not very clear. Notices of appeal have been accepted as a stay.

430. More or less by the consent of the profession?—Yes.

431. You had to do something to provide for the lack of rules?—Yes. It is a kind of tacit acceptance.

432. How do you manage in Tipperary as regards applying for new licences—the jurisdiction has been transferred to the Circuit Court, and in the rules, which are not yet operative, there is a procedure by which you get a new licence granted by the judge, and you are apparently supposed to get a confirmation by himself at some later Sessions?—Yes. It has to come up at a Sessions which does not exist.

433. To get the judge to confirm his own finding at a court that does not exist, to wit, the Annual Licensing Sessions?—Yes, they have ceased to exist.

434. Notwithstanding that, we have been doing that very successfully?—Yes.

435. Assuming that something must be done to put that right, would you suggest giving to the Circuit Court Judge the power to grant a licence, subject to confirmation by himself, say, in six months— in other words, give him power, if he thought fit, to put the licensee on probation; would that work?—It would. You could have something analogous to the old system.

436. And get rid of the farce of getting a man, of necessity, to confirm what he has already done, and the unnecessary expense?—Yes.

437. Senator Brown.—In the Circuit Court the judge has power to compel the attendance of a witness—he has power o commit a man who does not answer his sub pœna?—Yes, but not in the old County Court.

438. I know that in the old County Court you could only fine him and you had to sue for the fine, which was never successful?—Yes.

439. In the District Court there is no statutory power to compel the attendance of the witness?—I think that is so.

440. I do not know whether you have experience of the District Court working?—I have.

441. Would it not be useful, if not necessary, that they should have that power?—Undoubtedly.

Senator Brown.—I do not know why it was left out of the Act. It was put in, as far as the Circuit Court was concerned, in the Seanad on my motion. I do not know why I did not extend it to the District Court.

442. Deputy Beckett.—Why should it be necessary to compel a witness?—Very often we have cases where the witness will not come.

443. Why?—For various reasons. He does not want to interfere between two neighbours, or there is some relationship between them. In that way, the difficulty is extraordinary.

444. It is not principally because you expect him to come at his own expense? —You have to send a motor car now to his door—he would not come by a side-car. There is one matter I would like to mention. It would be desirable, in my view, that in workmen’s compensation cases the old procedure should be resorted to, namely, an appeal only on a question of law and to the Supreme Court.

445. Senator Brown.—Is not that so under the present Act, that there is no re-hearing except on a question of law?— Very shortly after the passing of the Courts of Justice Act an appeal was brought under the 1906 Workmen’s Compensation Act and the Supreme Court held that it was embraced in the ordinary section here of appeals, and now you must come up here to be re-heard on these wretched notes. I think that they should go back to the old procedure of appeal to the Supreme Court on any question of law that might arise, because there are essential cases where poor workmen are involved, and there are essential questions of fact, such as a man’s earning power or his physical capacity to carry on, or something of that kind, and nobody is more eminently suited to try such questions of fact than the man that sees the workman or his doctor. Then if a question of law arises let it be dealt with by the Supreme Court.

446. Senator Brown.—I think it was the recommendation of the Judiciary Committee that the appeal in workmen’s compensation cases should not be altered, but apparently it has been altered?—I cannot say, but it is altered. We should go back to the old system.

447. Deputy O’Higgins.—You heard Dr. Quirke expressing the opinion that to take a case to Dublin was actually cheaper than to have that case tried in the Circuit Court?—Yes.

448. Do you agree with that?—I totally disagree with it.

449. You consider that it is very much cheaper to take the cases in the Circuit Court?—Naturally.

450. So I would imagine. In addition to that, from a litigant’s point of view, there is more expeditious law through the medium of the Circuit Court?—There is no question about it.

451. It is also your opinion that the system is more popular with country litigants?—Yes.

452. Senator Hooper.—On the question of notes, is your objection to the system itself or is it that you think the system broke down because of the incapacity of the note-takers?—I would not like to say that. I think they do their best, having regard to the “hurly-burly” of the court, and there is in a country courthouse a certain amount of “hurly-burly.” The judge may be making a remark, the witness may be butting in, and the solicitors may be trying to get in a word. I am not a shorthand writer, but I have sufficient knowledge of it to say that it is absolutely impossible to take a note of that. You have four or five people talking together sometimes.

453. You do not think that if the standard for note-takers were raised it would improve the system?—I do not know.

454. The reason I mention that is that you said they had a girl note-taker down in your place, and this is a business which takes a life-training to make them really capable?—This girl worked over 20 years at it, and she is the best note-taker in the circuit, I think.

455. You do not think that by improving the standard the system would be improved?—I think that the real difficulty is in the unintelligible way in which the notes arrive in Dublin. You will understand, for instance, how difficult it is to take notes of evidence where there are references to a map with letters.

456. It is almost impossible?—You will not get a country witness to refer to letters.

457. A gramophone would not make it read?—No, the thing is unintelligible.

Senator Brown.—And there is the long day, six, seven or eight hours of constant work. Nothing but a gramophone could stand that.

458. Deputy Rice.—In regard to the part of your evidence in which you talk about the greater expedition in hearing cases in the Circuit Court, is it a fact that in some circuit areas notices are issued from the court that no cases will be fixed?—Yes. That is in my own area at the present moment.

459. That is the one I have in mind. You are under the same disadvantage as we used to be in Dublin, inasmuch as witnesses are brought to the circuit town without having their cases heard. They may be put off to a later date?— That is so. But the particular notice to which you refer has only come in within the past 12 months. We strenuously objected to it, but I understand that the judge is going to alter it, and go back to the alphabetical system.

460. I am not criticising the propriety of it. I am pointing to the fact that people do not get their cases heard on the day they expect in that Circuit Court?—Take the towns in Tipperary. The cases usually start on a Tuesday and go on through Wednesday and Thursday, and the local solicitors have a fair idea of what is going to happen for the week.

461. Yours is a very rapid judge?—He hears them with great expedition.

462. There is just one other question. You spoke of the circuit system as giving expeditious law?—I do not think I used the expression “expeditious law.”

Senator Brown.—An expeditious decision.

463. Deputy Rice.—I thought you had. You spoke of the Circuit Court as giving expeditious results, if you like?—Yes.

464. That, I take, is qualified by your criticism of the appeal system. If people cannot get their cases decided, if they have to wait for a decision on appeal for 18 months, they are not satisfied?—You may not have an appeal.

465. I am pointing out that your decision in the court is not much good if you have to wait 18 months to have it confirmed?—Yes, but you must have a primary judgment.

466. Is it not a fact that your decree is no use if you have to wait 18 months before you can give it effect?—I would regard the whole system of appeals as bad at present.

467. Deputy Beckett.—Take a case where you have to bring up witnesses for an appeal and keep them for two or three days in Dublin. Is it not within your competence to suggest a remedy for that?—We would not bring them to Dublin.

Deputy Rice.—They are not brought here on appeal.

Witness.—Take Limerick We can get to Limerick in an hour and 20 minutes, and the cost on the ’bus is only 2/6.

468. Senator Brown.—And the danger of being killed?—The methods of transport in the country are altogether revolutionised. I can get to Nenagh for 2/- or 1/6. Long ago I would have to go to Ballybrophy. It would take me the whole day to get back, and it would cost eight or nine shillings. There is a wonderful change in that respect.

(The Witness withdrew.)

Mr. J. M. FitzGerald, K.C., called and examined.

469. Chairman.—I understand, Mr. Fitzgerald, that you were called to the Bar in 1904?—Yes. I am just a generation at the Bar now.

470. And that you had ten years’ work in the County Courts?—Yes, in the same jurisdiction as Deputy Wolfe, in the adjacent riding, East Cork, and also in Kerry occasionally.

471. You took silk in 1924, I understand?—Yes, about the same time as the Courts of Justice Act was passed.

472. You were appointed as one of the four Commissioners to hear Circuit Court Appeals?—Yes.

473. I understand also that you were a member of the Committee of the Bar appointed by the Bar Council to advise that body as to the proposals about to be submitted to the Judiciary Committee appointed by the Executive Council on 27th January, 1923?—Yes. I was a member of that Committee.

474. In the précis of your evidence on the question of the jurisdiction of the Circuit Court you say that litigants should be entitled to the services of a jury. I would like, when you are giving evidence, if you would explain that more fully for the benefit of the Committee and myself. It is better, I think, that we should adhere to the practice we adopted yesterday of dealing in the first instance with the question of appeals, and we shall go on to the question of jurisdiction afterwards?—Any course you wish, Mr. Chairman.

475. Would you give the Committee your views in regard to the present system of appeals?—Of course, the Committee will understand that I regard this question of the new system of appeals as being very intimately bound up with the question of the increased jurisdiction that was given to the Circuit Court over and above the jurisdiction formerly residing in the County Court, because one of the difficulties in dealing with the new system of appeal is that some of the cases are enormously lengthy and enormously heavy. I have personally tried several cases which have taken days on appeal and which must have taken at least as long before the Circuit Court. In some of the cases, the questions and answers were numbered up to 800 and in some cases over 1,000. It occurred to me that the trial of such cases on this appeal was a most unsatisfactory proceeding and in that respect it is hard to deal with the question of appeal quite distinct from the question of excessive jurisdiction. It is in these heavy cases that the majority of the appeals arise, because the Committee will understand that when parties are engaged in serious litigation of that kind, the defeated party is almost certain to risk an appeal, more particularly having the advantage, in the event of his being again defeated, of having had not less than a year and probably 18 months’ delay before there could be execution against him. As I say, the majority of the appeals that have arisen from the new Circuit Court, are appeals in the heavier cases and a great part of the congestion in the Appeal Court and the consequent delay would have been obviated if the jurisdiction of the Circuit Court had been reduced to more reasonable dimensions. My principal objection to it, which I have tried to make clear in my précis of evidence, is that it affords no really satisfactory method of setting right errors, misconceptions, or possible mismanagement of the case in the court below. My experience as a Commissioner, and since then and before then as an advocate, is that if a case is mismanaged or mistried in the Circuit Court, the Appellate Tribunal is powerless, under the system of appeal on the transcript of the shorthand notes only, in the great majority of cases to do really satisfactory justice between the parties by setting right any defects that have occurred at the original hearing. That is my principal ground for objection to this system of appeal, apart altogether from any question of congestion, delay or expense. But there is an even more serious objection that I entertain to this system of appeal—that in effect it deprives litigants, as I conceive it, of their primary right to be present at the hearing on the final disposal of the dispute between them. Because, just as certain as it is the right of every subject to have his legal business disposed of in open court, so it is, in my judgment, the right of every subject to have a reasonable opportunity of being present himself when justice is being done in his case in its final form. I think that was present in the mind of the President of the Executive Council, Mr. Cosgrave, when he wrote the letter of invitation to serve as a member of the former Judiciary Committee. As I understand it, the idea of the accessibility of a court implies essentially its accessibility to the party entitled to have his case decided in his presence. By the adoption of the present system, litigants have been deprived, for all practical purposes, of the opportunity of being present at the disposal of their Circuit Court appeals. I am personally aware that that fact has given the profoundest dissatisfaction, not only to the litigants themselves, but to their solicitors, who are in an excellent position to understand the general requirements of their clients in that behalf. I do not know that there is anything that I wish to add to what is in my précis of evidence, and possibly for the purpose of saving time, it would be more satisfactory if members of the Committee would ask me questions with regard to any matter, which I might answer by way of addition to my observations.

476. Chairman.—Of course, the Court had the right at any time to re-hear the evidence of witnesses?—That was the course that the court took where the evidence in itself was either ambiguous, or so wanting in material particulars, that the court came to the conclusion that the case had really not been heard at all on its material point. That is a course that should never be resorted to by an appellate tribunal where the Circuit Judge had made findings on facts which were satisfactory to it, where there was evidence to support them, and where those findings were, in fact, relevant to the issue he was trying. In practice, I may say that it was only in some five or six cases that my colleague and I thought ourselves at liberty to seek further evidence, and I think in all but one case that further evidence was confined to the production of missing books or documents. I think that in only one case did my colleague and I permit further oral evidence to be given, and only then because a material issue, affecting not only the credibility, but the positive honesty of the parties had been put in issue, and ignored by the Circuit Judge.

477. You say that in only five or six cases had your colleague and yourself liberty to look for fresh evidence. Had you not the right, if you thought it necessary, to seek for fresh evidence and also to re-hear witnesses?—I think we were only entitled to take fresh evidence where we came to the conclusion that a material part of the relevant issues was not considered by the Circuit Judge. If he had purported to hear and decide on evidence the relevant issues, I do not think we were at liberty to hear further evidence, having regard to the form of the Section and our powers under it. It would simply have the effect of allowing the parties to make a fresh case.

478. Then, your opinion is that you had not the power?—We had not power under the Section. I thought we were confined to cases where the judge had obviously omitted to deal with some material issue before him.

479. As regards the stenographer’s notes, generally speaking, did you find them satisfactory or unsatisfactory?—I was surprised at the excellence of these notes, but I may add now that I always had an uncomfortable feeling that there were many passages in the notes which the judge possibly never caught as clearly or as accurately as the stenographer, and I often felt, from the observations of the judge, that evidence had been given which he in fact heard, but which did not appear in the stenographer’s notes, by reason of the fact, possibly, that like myself, several of the southern country witnesses speak very fast. I think it is the experience of my colleagues that on several occasions we were satisfied that the judge had decided on several pieces of evidence which did not come out in the note at all; some observations made in the course of his judgment we found profoundly unsatisfactory, so that we did not know all that happened below.

480. Senator Brown.—Did you and your colleagues, Mr. Overend, and Mr. Lynch, ever reverse a Circuit Court Judge on a finding on fact, as distinct from an inference from fact?—We did on more than one occasion, where the judge acted on what he regarded as a finding of credibility which we found to be irrelevant. We disregarded his finding of credibility altogether and dealt only with the other findings. Credibility we decided was part of the appeal, and we came to the conclusion that his finding on credibility was irrelevant, and, in that way, we disregarded his finding of fact. A man will often spoil a good case by telling lies.

481. Do you consider that appeal on question of fact is really a valuable one for this country?—I was convinced—with a large experience of the south of Ireland, and I only speak for that part—that they valued the system. I would like to say to the Committee—as I do not deal with it in my notes—that it is a matter for grave consideration whether the presence of a Judge of the High Court, doing justice in the presence of the people has not in itself a valuable influence on our national life, one which really cannot be over-estimated. I can only speak for myself of the work done on civil bill appeals by such judges as the late Lord Justice Walker, Lord Justice Fitzgibbon, Lord Justice Holmes, Chief Baron Palles, Mr. Justice Andrews, Mr. Justice Kenny and Sir John Ross. These judges in the discharge of civil bill business did more for the education of the people and more to create respect for justice and law than we can easily appreciate. As I said, it is the right of the subject to have his case disposed of in his presence. It must not be taken, even though it is an open court, to such a distance away that he is absolutely deprived of his right to be there. That is what the present system does. The people in the south of Ireland understand that. In the past, they appreciated the opportunity of hearing their cases disposed of before eminent judges, and the presence of eminent judges was a very valuable portion of the administration of justice in this country. I think the fact that no Judge of the High Court of this country has been sent outside Dublin in his judicial capacity since 1924 is highly deplorable. I think it is part of the judicial machinery of the country that judges should administer the law amongst the people in appropriate cases, and these I regard as appropriate cases.

482. You think that for the satisfaction of litigants, and also for the satisfaction of the people in the administration of justice, the appeal is a most important matter?—I do. I think that the appearances of justice are as important as the essentials of it.

483. The present form of appeal does not give that?—It absolutely vitiates it. It is a terrible system, and it deprives the advocates of an opportunity of doing their business properly, because the Committee will understand that if some advocates know their client cannot be there, and if they have other courts to attend, they are less likely to give loyal service than the advocate who knows his client will be there. I have seen appeals done in the most perfunctory manner, when it was very hard to get anyone to attend, neither the solicitor nor the litigant being there. I often had to adjourn the court for half an hour to enable some case to be taken out of a list of nine or ten.

484. Deputy Little.—You say appeals involved a question of larger costs?—Yes.

485. Would there not be very grave objections, from the point of view of costs, if those cases were taken in the High Court, and if the appeal had to go to the Court of Appeal?—I was contemplating that. I was convinced by my experience that when cases are tried in the High Courts, either by a judge with a jury or alone, these cases are so well tried, and so carefully done, that the proportion of appeals is far lower. I think it is our experience generally that the proportion of appeals from a judge sitting alone is very small in the High Courts. That is so, even to-day.

486. Senator Brown.—If the system of appeal is changed to re-hearing, would you give any further appeal, by way of case stated or otherwise, from the re-hearing in the country? The Assize Judge, in my recollection, had the right of stating a case?—I would be willing to retain that jurisdiction, but only absolutely at the discretion of the judge, where a really difficult question of law arose. I am sure that jurisdiction would be as carefully exercised as in the old times. They were very exceptional cases.

487. Deputy Rice.—The Committee would like to have your views, speaking from your own experience, of the cost of the present system of appeal on the note as compared with the cost of the old circuit appeal that you knew as a barrister?—It is a question that I have been trying to get information about. Personally, I have very little information about the cost of these appeals. The evidence that I have is only hearsay. I have it from an advocate who practises in the West of Ireland. Strangely enough, the advocates on the Connacht Circuit go more to sessions and do more active practice in that way than the advocates on other circuits. I am told that the cost of an appeal that was heard by Mr. Lynch and myself, occupying about two and a half days, amounted to £300. That would include the cost of the original hearing before the Circuit Judge in Galway.

488. Senator Brown.—Do you mean the cost of the two sides?—The cost which the defeated party had to pay. It was a very small will case. The assets, I suppose, did not amount to more than £800 or £900—a small publichouse and a small bit of land. If that case had been tried by a judge without a jury, it certainly would not have taken more than one and a half days, and the High Court costs would not have been more than £80 or £90. In my opinion, there could possibly have been no appeal if it had been heard in the High Court.

489. Deputy Beckett.—Then instead of reducing the cost the present system increases the cost enormously?—I want to say that in some cases where the note is well managed, where irrelevant questions are not asked and irrelevant witnesses are not called, I think the present system would be cheaper. But it has to be remembered that the Circuit Judge is in a hopeless position. For the purpose of this kind of appeal, the Circuit Judge has to hear every witness tendered. He cannot give a direction at the end of the plaintiff’s case, though he believes that he would give such a direction if he were not trying the case for the note. He has to leave the Court of Appeal to hear the whole case.

490. Senator Hooper.—You told us that during portion of the period you acted as a Commissioner you were sitting with Mr. Overend?—For the first two months.

491. Were you present yesterday when he stated that in the majority of the appeals you reversed the decision of the lower court?—I thought that he put the figure too high.

492. We have got some figures* which do not bear that out. These figures show that of the appeals decided both by judges and the Commissioners, the original decision was affirmed in 789 cases, and that the original decision was reversed, varied or remitted in 455?—You can easily understand that these figures are mainly due to High Court decisions. In our case, the proportion of cases in which we reversed would, I think, be about forty per cent. I think, too, that in the early days, in 1923 and 1924, cases were not as well tried in the County Courts as they are now. The standard of Circuit Court decisions has risen considerably since that period.

493. How would that proportion of 789 to 455 compare with the proportion of the smaller number of cases of appeals from the High Court to the Supreme Court?— I suppose that in the whole year there would not be more than 40 appeals to the Supreme Court, and I should not think that more than one-third of them would be reversed.

494. Mr. Overend, in connection with his argument, suggested, I think, that that arose from what he described as the incapacity of the Circuit Court, and that incapacity arose largely from the lack of equipment?—I am sure that is so. I think that that more often happens in the case of the advocate than of the judge. In the majority of cases the real submission is not put to the judge. After all, the judge is entitled to say that it is no part of his business to advise either side how they are to present their case. His function is to do justice between them but he cannot very well assist either party as to the manner in which they are to present their case. I think that is the incapacity that Mr. Overend meant. He did not mean any incapacity in the judge.

495. Or on the part of the advocate either?—There may or there may not be.

496. At any rate you do not put the incapacity of the Court quite as high as Mr. Overend did—that is basing it on the proportion of reversals?—I do not think that the proportion was as high as 50 per cent.

497. Then the argument with regard to incapacity is not as great as I thought his evidence suggested?—I do not want to water down his evidence. Speaking for myself, I do not think the proportion was as high as 50 per cent.

498. The question of equipment in regard to the library was mentioned. In the old days the Bar carried a library with them. Did that only apply in the case of the Assize Courts?—Only in the case of the Assize Courts.

499. That was not done in the case of the old County Courts?—No.

500. Therefore, the Circuit Court is not any less equipped now in that respect than the old County Court was?— No, except in this way, that you have raised the jurisdiction which was £50 up to £300, and you put into the hands of an advocate, ill-equipped, a much more serious type of case. In the West of Ireland particularly, and also in the South of Ireland, advocates have to be brought from Dublin at great expense to do these heavy cases. No advocate of standing would go down to a country town and spend, perhaps, two nights out of Dublin for less than 20 guineas. The only sum that can be recouped to the litigant is five, six or seven guineas, leaving on his shoulders a dead weight of some ten or twelve guineas. In the old days, it was an unheard of thing to bring down advocates at 20 guineas a time to the County Court. Now it is necessary, and it is done every day in the West of Ireland.

501. You had a very high opinion of the old County Court?—I thought they afforded an excellent training ground for young men. On circuit, they met their colleagues in the profession, and saw how work should be properly done. At present, they are constantly attending the Circuit Courts and only get back to Dublin for short periods. They rarely have an opportunity of hearing a case done by anybody except by young men like themselves. They get no training, which, I think, is a very important matter in the etiquette of the profession, but are left absolutely to run loose.

502. There was only one judge then. What do you think of the suggestion that there should be two?—I am aware of the view held by other persons, but I hold the view myself that there is something illogical in allowing one judge, no matter how distinguished he may be, to sit in judgment on another. That does seem illogical. It has been done for many years in this country, but at the same time I recognise the illogicality of it. For that reason I strongly think that it is most desirable in the interests of justice to have two judges on appeal.

503. Deputy O’Higgins.—On the question of costs, if I understood you correctly, the result of taking these cases between £100 and £300 for hearing at the Circuit Courts is that the litigants are penalised by having to bring down a barrister from Dublin at a fee of £25?— I think I said that a man of standing at the Bar will probably not go for less than 20 guineas.

504. If that procedure were discontinued, would not the only alternative be to bring the solicitors and from six to a dozen witnesses to Dublin?—I agree that is a necessary consequence of having the action tried in the High Court, but my view is that the action would then be tried by a judge who is specially trained to try that sort of case. It would be conducted by advocates specially trained for that kind of work, and, as a result, I believe you would have an extremely small proportion of appeals from a tribunal of that kind.

505. I see that point, that possibly you would get better law in Dublin and a better decision in Dublin, but what I was on was that it would increase the cost?— There might be some initial expense, but I think that an appeal to a tribunal of that kind would be much better and cheaper than the present system of appeal.

506. I am thinking of cases in the initial stages?—I would not like to speak for certain on that, but my view is that even if it were slightly more expensive it would be very well repaid in the results obtained.

507. Chairman.—We would be glad to have your views on the question of jurisdiction?—I have set them out fully in the print I have sent in and I would not like to add anything to that.

508. One of the reasons I ask you to state your views is that we may have a record of them. The statement you sent in will not be printed?—My view, shortly, is that from my experience of the old County Court, I think that the £50 jurisdiction was ample for those times. Since then, of course, a great change has taken place in the value of money. Therefore, I think the limit of jurisdiction should be raised from £50 to £100. I think it is necessary to do that in order to make the present figure conformable to the figure which obtained at the time that the County Courts were in full operation. Of course, you would have to go back to the year 1914 to see the old County Courts in full action. My idea is that if £100 is allowed it would be a fair figure, because I could never see any legitimate reason for raising the jurisdiction of the court that was to take its place to the present figure. That was the opinion that was formed by a Committee of the Bar, of which I was a member, in the year 1923. All my experience since then has confirmed not only my own impression, but the impression of my colleagues, that £100 was the proper limit of jurisdiction.

509. We would like to have your views on the recommendation in the précis of your evidence with regard to the deletion of Section 61 from the Act?—That is the appeal section?

510. Yes?—I only put that in because I thought it might be required of me to indicate how far my amendments might go.

511. On the question of jurisdiction of the Circuit Court, you say that it is complicated by the fact that in heavy actions over £100 the litigant is, and always should be, entitled to claim the services of a jury. Will you explain that? —I am convinced, as I say in the concluding passage of my notes with regard to the High Court, that as long as the issue in an action is either one of liability in tort, or liability for unliquidated damages for breach of contract, as in breach of promise cases, an action against bankers, an action for damages for breach of a commercial contract, or an action against a professional man for negligence—in these cases damages should be assessed by a jury, and not by a judge sitting alone. These are cases which a judge should not be compelled to hear without the consent of both parties. A judge sitting alone as a lawyer, who is no doubt trained in his profession, is no more fitted to form an estimate of damages in a case of contract than any one of you, gentlemen. Why should he be compelled, or the litigants be compelled, to accept his estimates in cases of that kind? That does not appeal to me as being the true way of ascertaining damage. It should be decided by a jury of common-sense men. I had experience in the High Court of an unpleasant case, as to whether the fees of a doctor were reasonable, there being no agreement as to his fees. When a judge has to decide whether a doctor’s fees are reasonable or not, his experience as a lawyer does not assist him. Then a judge has not the equipment to enable him to decide a breach of promise case more satisfactorily than a jury of twelve, or what a firm may lose by a breach of contract. I think the people of this country are as much entitled to a jury as the people of any other country.

512. Senator Hooper.—You attach a great deal of importance to the fall in the price of money as justifying the increase from £50 to £100?—I thought that was logical.

513. Before the war, would I be right in saying there was a demand for an increase in any case?—Not that I know of. We were quite used in those days to small actions in the High Court, where the perpetual struggle was to get over £50.

514. Was not there some demand from the Chamber of Commerce that the Circuit Court jurisdiction should be increased?—I do not presume to say anything about that. In those days, I had very little experience of commercial matters. I do not think I ever had my attention called to that fact. I did not know that there was a demand for increased jurisdiction.

515. You may be right, but that is my recollection. This jurisdiction of £50 was introduced about 1877?—Yes. It was originally £40 and it was increased to £50.

516. Would not the real comparison as regards the value of money be not with the period at the beginning of the war but 1877 when the jurisdiction was introduced first?—That might bring it up to £150. I still think £100 is enough.

517. Why would you say that? Would not that seem to suggest that £50 was too high when first introduced?—I do not think it was considered too high. It was considered to be enough in the year 1914. I never heard of any complaint at the time.

518. But in 1877?—It was a bit on the liberal side possibly in 1877.

519. If it was right in 1877 do you think that £150 would not be too much now?—That could be worked out in ratio. I think it would come to £150.

520. You make mention in your précis of courts in country towns?—Yes. I think it is a great hardship on people who live in a big county to have courts sitting in only one town or two towns. To a person in West Cork, Bandon may be, say, twenty miles away, but the extra distance to Cork would be a hardship.

521. Should they return to the practice of sitting in the country towns?—I point that out in my notes. Even from the point of view of accessibility, the present system has not succeeded in bringing the law nearer to the homes of the people, as it was hoped it might do. I rather think the circuit areas in some cases are too large.

522. Do you think it possible to increase the number of towns in which they might sit?—It might be unfair to the judges. I would not like to impose a further strain on the judges, but I would like to have these towns visited.

523. With eight judges, would it be very serious?—It would be very hard.

524. Some mention was made here of the long wait due to adjournments, sometimes involving the return of the parties to their home towns, in the case of actions brought in the High Court, and which are of the kind now tried in the Circuit Courts. It was stated that solicitors and witnesses came up here expecting to have their cases tried, and perhaps had to go home for the week end or wait over for the following week. It was suggested that there should be some rearrangement to obviate that?—In the old days, people were more peremptory than they are now, and it was a common thing to put down jury actions for Fridays. That is never done now. On the old days, they put down actions for Mondays, which meant that country clients had to travel on Saturdays. That is not done now. It is easy for officers of the court so to arrange lists that parties will never be left in Dublin for the week-end. No action involving a jury is put on after Thursday.

525. It has been improved?—Out of recognition.

526. And it is capable of further improvement?—Certainly; the officials are most obliging in every way. No one will be kept in Dublin for the week-end except owing to something extraordinary.

527. Senator Brown.—Is there any necessity for the sitting of the courts in a larger number of small towns? Is not the necessity for that got rid of by the fact that the District Court has jurisdiction up to £25?—Yes. I should also have dealt with the mobility of the modern buses, which pass by the doors of the people. One may not care, for reasons of safety, to travel in a ’bus, but certainly it is very convenient.

528. Deputy Little.—Would you change the jurisdiction not only in cases of contract and tort, but in all cases?—Whenever it was suggested there should be a change in equity jurisdiction, I always thought £1,000 was not an excessive sum for the estate of a deceased, and matters of that kind. I think that making the valuation of land from £30 to £60, though possibly large, was not excessive. I do not think there is anything that calls for comment in respect of these increased jurisdictions. I do not think that work has resulted in any congestion of business.

529. What about the rest of the business?—I would leave that as it is. I do not think the rest of the jurisdiction is excessive.

530. It is in the cases of contract and tort?—Yes, which is the bulk of litigants’ business.

531. Even in view of the fact that the District Court receives business that was formerly done by the County Courts?— In practice, the District Courts get a small debt case, or a contract case. I do not think the District Courts ever dealt with complicated actions. The District Courts deal with cases where people get speedy remedies in simple contract cases. I think the District Justice would be unable to cope with the work if he had complicated cases.

532. On the question of the equipment of a local law library, if such exists—and the suggestion is that it does not exist— if the lawyers in the country towns had those authorities at their disposal, you would not suggest that they would not be capable of dealing with the matters?— We had in Cork, which is the second town in the Saorstát, a large library owned by the Solicitors’ Association in the city. With all the money at their disposal, it was not kept up-to-date. Books were borrowed and never returned, and it was in a state of confusion. The book you wanted was never there. I came to the conclusion that a library for barristers and solicitors in a country town is an impossible thing, as it will be abused or neglected.

533. You do not think it would be possible to have such libraries?—That is the only example I know. It was a complete failure for any purpose.

534. Senator Hooper.—It would not be possible to carry your own library?—One judge used to carry around a box filled with books.

535. Deputy Little.—Do you agree with Mr. Ryan’s evidence when he said the present system might lead to a grave diminution in the membership of the Bar, in fact to its extinction?—I would rather not tell the Committee what I think of the effect of the system on the Bar. I think it will prevent the junior members of the Bar from keeping straight. I regard the future of the Bar as extremely perilous, if its members, in their youth, are to be allowed to wander around the country without advice from their seniors, or even the society of their seniors. It would certainly fall to a very low level.

536. Chairman.—I think you mentioned in your notes dislocation of business in the High Courts, due to congestion of appeals from the Circuit Courts? —I regard that as one of the most serious matters. Anyone who knows the facts as I know them, any senior who knows Common Law business, knows that the Common Law business of the High Courts has been deliberately curtailed for years past to enable High Court Judges to deal with the task of keeping down the arrears of appeals. That is no secret to anybody who knows the facts. It has reduced the term for the trial of High Court actions on the Common Law side from what used to be a period of at least six weeks to a maximum period of three weeks, and the final result of that system was when, on the opening day of this term, a notice was published in the Legal Diary warning all solicitors for the first time that every action for trial must be set down for hearing before the 1st November. That was on the 11th of October, which meant that every country solicitor had to attempt the impossible task of getting his cases ready for trial and having his work completed within a period of twenty-one days, which meant, of course, that the Nisi Prius sittings for this term lasted, as I say, only three weeks, and dozens of actions of importance were left over to be tried the following term. That is, of course, not only a great injustice to litigants, but it is a terrible injustice to the Bar. It endangers their livelihood, and, undoubtedly, that will go on continually as long as these appeals are unheard and as long as pressure is brought by public opinion to get rid of them.

537. Senator Brown.—That might be met by the appointment of additional judges. On the other hand, if you had to employ additional judges you could employ them on the hearing of appeals in the country?—Quite so. And let me say that the appointment of temporary judges in the High Courts is highly objectionable.

538. Senator Brown.—I never suggested that it was not?—I know that, but having been in that position for several months, I regard it as very unfair to our colleagues to whom we have to return, and very unfair to the public, because the public never have any really satisfactory belief in the position of a temporary judge. Also, it is contrary to the Constitution; the spirit of the Constitution is that the judges shall not be temporary. That is a kind of trial run, and it is not contemplated in the case of judges that there should be a kind of preliminary canter.

(The Witness withdrew.)

* See Appendix 4 and Ques. 5844-5.

* See Appendix 2.

* Appendix 4.