Committee Reports > List of Committees > Joint > 1930 > 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)

Dé Máirt, 4adh Feabhra, 1930.

Tuesday, 4th February, 1930.

The Joint Committee sat at 11.15 a.m.

DEPUTY MORRISSEY in the Chair.

Mr. Louis J. Walsh, District Justice, No. 1 District, North Donegal, called and examined.

3647. Chairman.—I understand you, Mr. Walsh, are District Justice for North Donegal?—Yes, District No. 1.

3648. You were admitted a solicitor in 1905?—Yes.

3649. And you practised in the Counties of Derry and Antrim?—Yes.

3650. I understand that you were appointed in 1922, the first District Justice appointed?—Yes, to District No. 1.

3651. The greater part of your district, I understand, is in the Donegal Gaeltacht?—It is.

3652. And owing to the lack of communication in that district, and the scattered population, the District Court is of particular advantage to the people there?—That is so; it is a most popular institution.

3653. And brings the law to the doors? —Possibly too much so.

3654. The main thing is that they can get efficient and cheap justice?—Yes.

3655. You think the people would favour an increase in the jurisdiction of the District Court?—They would.

3656. Do you mean in contract or in tort?—There is not any real necessity for an increase in contract cases, as the holdings are small. The jurisdiction up to £25 is really as much as we want there. There are demands that tort jurisdiction should be increased to the same amount as contract jurisdiction.

3657. Increased from £10 to £25?—Yes. It leads to difficulty in practice; the fact of having two separate jurisdictions. For instance, in an action for warranty for £15, although the plaintiff might fail in the claim for breach of warranty, he might succeed in a claim for misrepresentation, but you could not amend the civil bill.

3658. Do you say that an increase in tort jurisdiction to £25 would lead to congestion in your court?—No. Our court is convenient and accessible, and claims are often reduced in order to bring them within the jurisdiction. I do not think it would lead to undue congestion. It might to some extent, but I think we could grapple with it.

3659. Have you any idea as to how an increase in tort jurisdiction would affect the District Court in other parts of the country?—I can only speak for Donegal. A solicitor pointed out the other day that even assuming that £10 was all that was going to be got on the claim, the practice was to issue the civil bill for something more, the tendency of the Court being to cut down the claim to some extent.

3660. You say in your précis that it seems impossible for a County Council to sue by civil bill now?—For rates.

3661. You suggest that there is a necessity for some alteration or some amendment of the law to enable them to do so? —They should have the same powers as Ministers or Departments of State. They can sue for Land Commission annuities, assessments, and for insurance contributions due to the State. There is no reason why local bodies should not have the same jurisdiction. I think that was intended, and that it was an oversight it was not included in the Act.

3662. So that it would be necessary to amend Section 77?—Yes, by giving the local bodies the same power as Government Departments.

3663. You suggest that statutory powers to counterclaim and to set-off are urgently needed?—Yes, especially in the Border counties where a number of the plaintiffs are from across the Border. In the border county of Donegal, our natural centre is Derry city, and the bulk of the plaintiffs, who are traders, come from there. A defendant in Donegal may have an answer to a Derry merchant’s claim, but there is no power to counterclaim in our Courts at present. The result is that the Derry merchant would obtain a decree in full, and the defendant would have to go to another State in order to get at him.

3664. You also suggest that statutory power to insist on security for costs should be given?—Yes, where the plaintiff is outside the jurisdiction, because a man of straw might issue a civil bill and there might be no means, if the case were dismissed, of getting costs. Even if the plaintiff were not a man of straw, there is no machinery for executing a decree across the Border.

3665. That would be peculiar to your district?—To the Border counties.

3666. You think the definition of a “new licence” in the Act of 1874 should be adopted, and power given the District Court to grant a new licence at sittings other than the annual licensing court?— Yes. In a case, for instance, where a solicitor omitted to serve notices in time, and was absolutely debarred, we have to deal with the transfer at the annual licensing sittings, when it is clearly an ordinary transfer. It is a pure informality that it was not brought before the proper Court.

3667. You have something to say as regards the jurisdiction on the summary side in connection with what is called “demand of trespass”?—The Judiciary Committee recommended that the requirements of Section 20 of the Summary Jurisdiction Act of 1852 should be amended in that respect. What happens is this: if a person issues a summons for trespass of animals, he cannot recover damages on the summary side, unless he has pointed out the animals in the act of trespass to the owner, or has driven them to the owner’s house. In modern times that is a requirement that, I think, should not be insisted upon. The owners very often live some distance away, and it would be quite impossible to do any of the two things required. There is no reason in the world why the plaintiff should not be entitled to damages for trespass if he proves that the animals were actually trespassing. The requirements of the section deal with an age in which conditions were different from what they are to-day.

Senator Brown.—That is a very useful suggestion.

3668. Chairman.—Have you anything to say regarding the working of the Circuit Courts, and on the question whether the present system of an appeal on notes is satisfactory?—I think the present system of appeal has broken down, and has proved entirely illusive.

3669. I suppose you are satisfied with the system of appeal from your Court to another Court?—Yes.

3670. You think the present system of appeal on notes from the Circuit Court has not proved satisfactory?—It has not; it has worked out the other way. In most cases there is no such thing as an appeal at all. First of all, it is too expensive to get the notes.

3671. Have you any suggestion to make as to an alternative to the present system?—Yes. There is no reason why a High Court Judge should not sit in each county once yearly for the purpose of hearing appeals.

3672. Would he not require to sit more than once a year?—I do not think so. I think if he had only to hear appeals, and if he sat for a week, he would dispose of most of the cases. I am only speaking of a county like Donegal, where the cases are small. The bulk of the litigation really comes before the District Court there. I am in favour of the Judge sitting once yearly, say, in County Donegal, and disposing of the cases on the Circuit side.

3673. If the appeal Judge were only to sit once a year, would not the parties have a long time to wait for a decision? —Yes, but they have a long time to wait at present. There is no reason why the Judge should not sit twice a year—it is purely a question of finance.

3674. If there were to be an appeal by way of re-hearing, would you favour one or two Judges?—I think one would be sufficient.

3675. One High Court Judge?—Yes.

3676. Have you anything to say as to whether the jurisdiction of the Circuit Court should be reduced or left as it is? —I am strongly of opinion that it should not be reduced. It has proved exceedingly satisfactory and is very popular. Certainly in Donegal the people regard it as a great convenience.

3677. Have you any other points that you should like to make in connection with the District Court?—I had a letter from a solicitor doing a big practice in Donegal and he is strongly of opinion that the title jurisdiction for valuations under £10 should be made absolute. I can see the reason for a public demand for that, but personally I think it would tend to swamp our Court with title cases that we are not in a position to deal with, because we have to work on time. A large number of title cases do come into the District Court because it is so convenient, but the fact that our judgment is not an absolute one can often be used as a means of dissuading people from coming to the District Court.

3678. Senator Brown.—It is not an estoppel?—No.

3679. Chairman.—You have jurisdiction in contract up to £25 and in tort up to £10?—Yes.

3680. Do you find that many people take cases which are within the jurisdiction of the District Court into the Circuit Court?—No, very few at present.

3681. Would you favour compelling people to bring cases in the District Court which come within the jurisdiction of that Court?—No, I would not. I do not see any reason why a person should not have access to the Circuit Court if he thinks his case is sufficiently important to go there, always giving the Circuit Court Judge discretion to refuse costs if he thinks the case has been improperly brought there.

3682. Do you mean to give discretion to the Judge to refuse Circuit Court costs?—Yes.

3683. I take it the costs, in cases such as we are discussing, would be in or about the same in the District Court and in the Circuit Court?—They would. It might be a grave inconvenience to the defendant to bring him to the Circuit Court. For instance, take the case of Donegal. If a Derry merchant were suing a man in the Gaeltacht or in a distant part of Donegal, such as Falcarragh, it would be much more convenient for the Derry merchant to go to the sitting of the Circuit Court in Lifford, but it might be a great hardship on an unfortunate man living a long distance away from Lifford in the heart of the mountains. Accordingly, in my opinion, the Circuit Court Judge should have discretion, if he thinks the plaintiff should have gone to the District Court, to refuse costs.

3684. That is not to give any costs at all?—Yes, leave it to his discretion not to give any costs at all.

3685. With regard to the pensions of District Justices, are you familiar with the general lines of Mr. Cussen’s evidence on the point?—No.

3686. Would you give your own views on the matter?—Under the Courts of Justice Act we are only getting civil service pensions. Civil service pensions are quite satisfactory to the ordinary civil servant who joins in his teens or in the early twenties. I understand that, with the retiring allowance, the pension works out at about two-thirds of the salary. Obviously, in the case of a man who becomes a District Justice in middle age, as I did, his pension, if it is a mere Civil Service pension, will be entirely inadequate. For instance, I would retire on a pension of £348; Mr. Cussen on a pension of £260; and Mr. Little on a pension of £310. The Judiciary Committee recommended that we should be entitled to Civil Service pensions with added years, but that suggestion was not included in the Act. Obviously, during our professional years we were learning our business. As the matter works out at present, no person with a good practice will accept a District Justiceship. We had accepted the position before we knew where we were, because we were appointed in 1922 on a temporary basis. We were given to understand that satisfactory terms would be given to us. We were asked to give up private practice, so that in 1924 our boats were burned. A person joining now, however, would know exactly what he was in for, and in my opinion no solicitor or barrister with a good practice would take the risk of retiring at 65 years of age on the inadequate pension provided under the Courts of Justice Act.

3687. You think that in justice to the men appointed in 1922 that should be changed?—Yes, and in the interests of the prestige of the Court. It is a very important Court at present. It affects more intimately the liberty of the citizen than possibly any other Court we have, dealing especially, as it does, with poor and defenceless people. Therefore, it is necessary that we should attract to the Bench men of sufficient standing who have learned in the practice of the law all the qualities that make a Judge.

3688. You are satisfied that in the absence of a good pension scheme the better type of men—men of good standing—will not be attracted to the District Court?—I am. Apart from that, of course, there is the danger that if a man is going to retire on a bad pension he will have to look forward to resuming his practice when he retires at 65 years of age. There is, therefore, the terrible temptation that he may not be as independent as he might be. For instance, a solicitor about to retire from the position of District Justice might deem it wise to put himself on good terms with the powers that be in the hope of getting a State solicitorship, or, if he intends to practise in the district in which he has been acting, there is the temptation to play up to the public. I am satisfied that it will interfere with the independence of the District Court.

3689. Senator Brown.—On the question of pension, your suggestion is that the situation might be met by added years? —Yes, if the added years are sufficient.

3690. Have you any views as to the number of years that ought to be added? —I have not.

3691. The theory of added years is that a man must learn his job, his profession, before he is qualified to be a Judge?— Yes.

3692. It is a matter of seven or ten years generally. Of course, it is no longer a practice to give added years, but that is one suggestion?—Yes.

3693. You have to retire at 65?—Yes.

3694. Is there any real reason why the age for retirement of a District Justice should be earlier than that of a Circuit Judge?—I do not see any reason at all.

3695. It was suggested when the Act was going through that you had very much harder lives, going through the country in all sorts of weather, that you were obliged to put up at hotels in various districts and that in all the circumstances you were likely to wear out sooner?—I have had much better health as a District Justice than I had as a solicitor. I am exposed to wind and rain every day of my life but still I am quite healthy. The old dispensary doctors who used to go round on horse cars often lived to be 80 or 90. Honestly, I think we live a healthier life than the Judges who are obliged to sit in stuffy courthouses.

3696. Do you think the grievance—and it is more than a grievance because it is probably a mistake—would be met by making the age 70 without added years? Of course it would ease the situation enormously. There is always the chance of being comfortably dead at 70; but we live such a healthy life that possibly some of us might reach 80 or 90.

3697. You say the people in your district are anxious to have tort jurisdiction increased to £25?—Yes.

3698. Are there many cases of tort brought in your Courts?—There are as many as possible.

3699. It is a pretty litigious district. Are there title cases?—Trespass, assaults, motor accidents, and accidents of all sorts.

3700. You think there would be a considerable improvement in the facilities for litigation if that jurisdiction were increased up to £25?—I think it would be a great convenience.

3701. You have the power to issue a subpoena?—We have.

3702. Have you any way of enforcing it?—We have.

3703. What is it, exactly?—You get a Bench warrant to prove that the subpoena has been properly served. You issue a Bench warrant.

3704. Is this on the civil side?—No, on the summary side.

3705. We are not at the moment dealing with criminal matters. What is the position on the civil side?—There is no machinery as far as I know.

3706. You issue what corresponds to a subpœna to the witness, and he does not attend, and there is no way of enforcing it?—There is not.

3707. Do you think that ought to be remedied?—It would be very desirable.

3708. How would you do it? Would you give the power of committal or of a definite fine that would not have to be proceeded for?—It very rarely has to be enforced, because most people respond to a subpœna. In the rare cases where people stay away I would be inclined to adopt the procedure on the summary side. There is no great hardship, and it only means bringing a man before the Court to give evidence.

3709. You have told us there ought to be a procedure in the nature of defence and counterclaim in your Court. We have had evidence from other districts, not necessarily a district like Donegal, about that matter. Of course, it is particularly useful in the Border counties How would you work it? Would you let a man set up his defence and counter-claim without anything in the nature of a document of any kind?—No; I would adopt the old County Court procedure. Under the draft Rules we are considering at present, we have the procedures set out, but my difficulty is that you require legislation in order to give jurisdiction over persons residing outside the jurisdiction.

3710. Would procedure in the nature of a garnishee be of any use?—I do not think so. The Circuit Court is always open for proceedings of that sort.

3711. Is there any default procedure on the civil side in your Court?—There is.

3712. How is it worked?—Just the same as in the old County Courts. You lodge an affidavit with the Clerk of the Court and issue a Civil Bill.

3713. By whom is the order signed?—It is signed by the Justice. It becomes an ordinary decree.

3714. Would you be in favour of giving power to the Registrar of the Court?— There is no machinery for that.

3715. It is really a semi-judicial function?—It is.

3716. And I suppose the District Court is always reasonably available?—It is.

3717. Are there many judgment decrees in your Court over £20?—There are.

3718. There is no way of registering these anywhere, but in your own Court. You have a book in your own Court where you could see all about a decree?—Yes.

3719. Would you be in favour of an automatic registration in a central office of all judgments over £20?—Yes.

3720. That work being done as a Government matter?—Yes.

3721. You think that would be useful? —Yes. You had that power in the old County Courts wherever it was thought desirable to use it.

3722. But it had to be brought up then on a motion?—Yes.

3723. I suggest to you that there ought to be an automatic registration of every judgment above £20 so that one could search in the central office and discover all the particulars about a judgment of that kind?—It would be a very useful thing.

3724. Deputy Little.—You were a member of the Rule-making Authority?— Yes.

3725. Have you come across many instances where your Committee considered there should be legislation to supplement the Rules?—No. I do not recall any except in the matter of the counter-claim and the set-off.

3726. Senator Dowdall.—With regard to setting up a defence by counter-claim we have had evidence here that some District Justices permit a defence by counter-claim. If a man in your Court sues me for £10, and if I have a defence as to £7, you do not allow that counter-claim defence to be entered in your court?—If the parties reside in the area inside my jurisdiction, I would not have any great difficulty about it; but the real difficulty is in the case of a person living outside my area of jurisdiction. I think then I have no jurisdiction to permit a counter-claim.

3727. Have you any jurisdiction in Workmen’s Compensation Claims?—No, we have not.

3728. Do you think it is desirable that there should be?—I do not. The Circuit Court is available for cases of that sort.

3729. Senator Hooper.—In cases for the recovery of debt, would you be in favour of giving the plaintiff the option of relying merely on an affidavit if he preferred to do that, instead of going to the expense of bringing witnesses? I mean now cases where a man is not likely to have a sound defence?—I would have a lawyer’s prejudice against that.

3730. It cuts out the solicitor to some extent?—No, but the parties are not there for the purpose of a cross-examination. It seems to be a very daring innovation.

3731. It has been suggested that it would be a great facility and a great benefit to plaintiffs in cases where the defendants have really no defence. They complain that if that facility is denied to them they will continue to be put to a great deal of expense bringing witnesses to prove cases?—I do not see any great objection on those grounds, because it is always open to the Court to make up its mind as to what reliance it can place upon an affidavit. Of course, if a person were entering a defence for the purpose of delay, that is another aspect.

3732. There would be no great harm in having that particular facility?—I do not see any great harm.

3733. Senator Wilson.—Are not rates contracts?—I do not think so.

3734. In what category would you put them?—Statutory charges.

3734a. They would not be contracts at all?—No.

3735. That is the reason why the County Councils could not sue up to £25? —No.

3736. In connection with trespass, is it not possible for a farmer whose land is trespassed on to go to your Court to get a judgment?—He can by Civil Bill.

3737. That is an expensive way?—It is an expensive way, but the ordinary smallholder with a valuation of £1 or 30s., where solicitors are not available, is in the habit of going to the District Court Clerk and issuing a summons. Unless he has demanded trespass formally, he cannot issue a summons. He can issue a Civil Bill, but it means more expense.

3738. You consider it should not be necessary for him to make a formal demand for trespass?—I do. I know cases where the parties live a very great distance from each other.

3739. Deputy Wolfe.—As regards the default affidavit, I take it that Senator Hooper’s suggestion was that a statutory provision should be made giving the plaintiff permission to use as evidence default affidavits if there were notice given. The amount of value to be placed on the evidence would be a matter for the Justice. Do you approve of that?—I do not see any great objection, because if the defendant has a good defence there will be very little attention paid to the affidavit.

3740. It will get rid of that class of defence brought by a semi-insolvent defendant against a trader living miles away? —It will get rid of it to that extent.

3741. You remember in the old County Courts that was occasionally met with?— I have seen it done even in my own Court.

3742. Have you found as regards the swearing of default affidavits that there is inconvenience in getting a man in a rural district to go before a Commissioner of Oaths?—Yes.

3743. He has a Peace Commissioner next door who can do it for him?—Yes.

3744. He has only to go to him to get it done?—Yes.

3745. Do you think it would be wise to get a statutory provision the same as in the old Courts giving the right to swear affidavits before a Peace Commissioner?— Yes, and rightly or wrongly I have held that a Peace Commissioner has already the right to swear those affidavits. In our new Rules we permit an affidavit to be sworn before a Peace Commissioner. Some law advisers in the Department of Justice on one occasion advised that a Peace Commissioner had no such power. For that reason it would be necessary to make it clear that they had the power by giving it to them by statute.

3746. Would you do that in every district?—Yes, and as a matter of fact, Peace Commissioners’ affidavits are accepted in Northern Ireland. They are accepted in the Land Registry in Belfast, and if Northern Ireland accepts affidavits sworn before a Peace Commissioner, it seems absurd that the District Courts in our own area will not accept them.

3747. Senator Hooper.—Do you mean a Peace Commissioner in the Free State? —Oh, yes. I am aware that affidavits sworn before a Peace Commissioner in the Free State are accepted in the Land Registry in Belfast.

3748. Deputy Wolfe.—If a man conforms to the statutory provisions he can issue an ordinary summons before you?— Yes.

3749. And he can do his own case in practice before you?—Yes.

3750. If he does not carry out the statutory requirements it is still open to him to present an ordinary Civil Bill?—Yes.

3751. And in that case, if he recovers damages you must give him something like £2 costs?—Yes.

3752. And you think that that should be done away with, and that a man who does not carry out the statutory provisions should not be given power to make his opponent pay £2 for his neglect?— Yes.

3753. In some parts of the country there is the habit of issuing Civil Bills for very small sums?—Yes, I know there is.

3754. Perhaps the costs which follow the issuing of a Civil Bill are some inducement—I am not saying that they are. You referred to the question of new licences under the Act?—Well, if a licence is in existence during the previous six months, then it is not a new licence.

3755. Was not the difficulty in connection with that matter in existence before the Act of 1924?—Yes. But there was not a great difficulty there then, because the licensing authority at that time was the same. The trouble now is that the Circuit Courts have jurisdiction with regard to the new licences, and not with regard to the old licences.

3756. Is your suggestion that that should be put right by statute?—Yes, I think so.

3757. Now, as regards the question of title jurisdiction, in title Civil Bills, do I take it that you have before you the objection that a title Civil Bill would very often take a day to hear?—That is my objection.

3758. And the result would be to tie up your jurisdiction in a district where you can only sit one day in the month?—Yes.

3759. That is the real difficulty?—Yes.

3760. And to some extent may not that same difficulty have to be considered as regards the enlargement of the District Courts’ jurisdiction?—I do not think so, to the same extent.

3761. To the same extent?—To some extent at any rate. The number of tort cases will not be so very many, and your tort cases will not hold you up to the same extent as title cases.

3762. But must not the question be considered as to how far the enlargement of the jurisdiction would entail the length of the sitting of the District Court?—I quite agree.

3763. You think that the jurisdiction in torts could be increased to £25 without appreciably interfering with the sittings of your Court?—I think we could manage it.

3764. It would be, of course, in country districts a very great facility?—It would.

3765. And at present, the country litigant likes the right of appeal?—He does.

3766. And he has that at present?—He has the right of a very cheap appeal in his own county.

3767. You suggested as regards the costs being discretionary—that the Circuit Judge should have discretion as to costs where the relief obtained could have been obtained in the District Court?—I do.

3768. That would be somewhat analogous to a decision in the County Court giving the County Court Judge jurisdiction as to costs where the relief claimed could have been obtained at Petty Sessions?—Yes. Now, in regard to the question of title, I would like to say that at present if a title case is brought before us our decree is not regarded as an estoppel. If the Circuit Judge reverses or confirms the decision of the District Court, it would be well to consider if the appeal decision is an estoppel. It may be necessary to legislate with regard to that point.

3769. You suggested that a Court of Appeal sitting by way of re-hearing would be sufficient if it sat once a year?—Yes.

3770. Senator Brown.—In Donegal?

3771. Deputy Wolfe.—Oh, yes. But do you not think that the objection to that would be that it would increase the appeals for a time?—Perhaps it would. There is that very great objection undoubtedly.

3772. That was always an objection in the old days?—It was.

3773. Am I right in suggesting that the number of appeals from the Michaelmas Sessions which were held in October, were larger than from any other Sessions in the year?—Yes.

3774. It gave time until March?—Yes. I remember a solicitor making an appeal for time. The plaintiff was reluctant to give it, and the solicitor said: “I can have time until March for 3/6.”

3775. And he took it?—He took it, of course.

3776. Now, Mr. Walsh, as regards the serious question of the appointment of District Justices, am I right in saying that at present half the District Justices are solicitors and the other half barristers?—They are.

3777. Dealing first with the Act, is it not essential that the District Justice must have experience?—Yes, absolutely essential.

3778. And must he not also have judgment, which he can only get from experience?—That is right.

3779. Therefore, in practice it would be impossible to make a suitable appointment of a solicitor or barrister who had not real actual experience?—It would be impossible.

3780. And, consequently, it would be impossible to find a District Justice well equipped for the position who is a very young man?—I think so.

3781. Because if he is a young man under thirty-five or forty years of age he necessarily has not the experience and judgment that he otherwise would have? —Yes, that is so.

3782. Under Section 69 it is suggested that the solicitor or barrister must be at least of six years’ standing. What do you say to the suggestion that that should be increased to ten years?—I think it should.

3783. You think it really would not be possible at present to find a practising solicitor or barrister of six years’ experience who would be at all a suitable candidate as District Justice?—I do not think it would be possible to find a man fully qualified after six years. Many boys are qualified as solicitors at twenty-two years of age, and know, as we are aware, absolutely nothing.

3784. I have seen solicitors qualified at twenty-one years of age?—Then in that case, under the present legislation, he would be qualified at twenty-seven. A Government keen on economy would appoint such a man in preference to an older man.

3785. Now, as regards your views as to the limit of age on retirement, do you think that at 70 the District Justice should retire?—I think 70 years is a reasonable age for retirement.

3786. You would not extend it beyond 70?—I do not think so. After all, when a man reaches 70, if he is a travelling Justice, he has reached his limit.

3787. Do you think that the six years’ experience which a solicitor or barrister must have at present before appointment, and which you think should be extended to ten years, should be added to his years of service for the purpose of calculating his pension?—Yes, but I would like to see the District Justices’ pensions being on a fixed basis. If they are discharging the duties which the District Justices discharge, having unlimited jurisdiction under, for example, the Enforcement of Court Orders Act, I think they should be treated in the same way as the Judges of the other Courts and given two-thirds of their salary on retirement.

3788. Do you not think, leaving out for the moment the present financial position of the District Justice, that it would be essential from the public standpoint to maintain a very high standard amongst the District Justices, if the popularity of the Court is to remain, and if the confidence which the public should have in it is to continue?—I do, because the District Justice is working under peculiar conditions. He is not so much under observation as the Judges in the other Courts, nor is he so much subject to appeal, because most of the people who go to his Court are the poor and defenceless, and you really require greater confidence, judgment and discretion in a District Justice than you do in the Judges of the other Courts.

3789. He is, in fact, to a very large extent, the poor man’s advocate?—He is.

3790. He must see that the poor man’s interests are looked after, that is, the poor man who is not professionally represented?—Yes.

3791. He cannot do that if he does not know his job?—That is so.

3792. Senator Farren.—Your Court deals with a good deal of Land Commission Annuity claims?—We do.

3793. Do you think that all these claims for Land Commission Annuities should be brought into Court? Would you be in favour of giving power to the Land Commission, in the same way as rate collectors and urban authorities have at present of enforcing a decree for rates without going into Court?—No; it would work tremendous hardship in the country. In the case of small holdings such as those with which I am dealing, my experience is that the Land Commission claims require to be most carefully investigated. In the early days I discovered a tremendous number of mistakes in book-keeping and so forth in Land Commission cases. The Receivable Orders were not sent out in time. I have seen an unfortunate poor woman walking into Court six miles, without her breakfast even, to defend a claim from the Land Commission, and then to discover that the Land Commission was really in fault.

3794. I am in sympathy with you in regard to these poor people, and the reason I am making the suggestion is to try to avoid heaping up costs of Court and adding to the amount claimed. I am anxious to save this additional expense to these poor people caused by their being brought to Court. I take it that in ninety-nine or perhaps ninety-seven per cent. of these Land Commission Annuity claims the only question has been the inability to pay?—Yes, very often.

3795. Then if you add the Court costs to the burden of these poor people it makes the matter worse. My point is that if it is found that there is a mistake on the part of the Land Commission in the matter of book-keeping or anything like that, that that mistake could be settled by the Land Commission themselves?—I do not see how it could. Applications for time can always be granted. The parties that are being sued by the Land Commission come before the Court and ask for time, and if we see that it is a case for giving time we give them time.

3796. Should not that be done by the sheriff? We had evidence from one of the County Registrars who was also sheriff, and he suggested that we might save costs to some of these poor people. He said that these claims were not paid in many cases because of inability, and that the question was really one of time. His idea was that if decrees were enforceable as for rates, and were lodged with the sheriff, he could make arrangements with these poor people to take payment by instalments and thereby save Court costs?

3797. Chairman.—The suggestion Senator Farren refers to was that the certificate of the Land Commission should have the force of a decree, but if the person from whom the annuity was being demanded thought he had a defence, he could come to the Clerk of the District Court and say he wished to have the case brought before that tribunal. In that case, the suggestion was that the person concerned should have the right to enter a defence in Court. I think it will be admitted, as Senator Farren has said, that 95 to 99 per cent. of these cases arise because of inability to pay, or perhaps unwillingness?—I would say inability.

3798. Therefore, costs are put on those 95 to 99 per cent. of people which might not be put upon them if the Land Commission certificate had the force of a decree. You would safeguard the people concerned by giving them the right to enter a defence in the District Court?—The trouble about that arrangement is that these people are very ignorant and defenceless. The only proceeding they understand is a Court proceeding. If you give to a certificate of the Land Commission the force of a decree, these people in many cases will not understand the procedure. It is all very well to make rules and regulations, but the unfortunate man living at the back of Muckish or Errigal knows nothing about your rules or regulations. I am convinced that in 99 cases out of 100 these decrees would be executed before these people would know anything about them. They would not write, because they would not know to whom they should write. They are exceedingly helpless. Once a case is to go to Court, the parties know where they have to go, and they come and make their case. I think the Court proceeding is a safeguard. You might of course limit the costs. I would be inclined to limit the costs in cases under £2.

3799. Senator Hooper.—Does not the same difficulty to which you refer arise in the case of rates?—That is so.

3800. Are they as ignorant as regards rates as you suggest they would be in regard to Land Commission Annuities?— The rate collector very rarely executes on his warrant without coming to Court, because he is liable to make mistakes in his execution. He learns the wisdom of trying to get a decree.

3801. Senator Hooper.—Are not the two cases generally analogous?

3802. Senator Brown.—Does not the rate collector put the decree in the hands of the sheriff?—Yes, if he gets a decree in Court.

3803. He has no risk; it is the sheriff who has the risk. What Senator Hooper is referring to is the power of the rate collector to execute on his own warrant without going to Court. That does not go to the sheriff?—No.

Deputy Wolfe.—He has power himself to distrain under an old Act.

3804. Chairman.—In some cases at present, the sheriff is not paid fees. That will be so in all cases in future. The sheriff will be paid a salary as County Registrar. In that case, he will not have the same incentive to seize in order to get his fees?—The sheriff has to act through agents and, unfortunately, all his agents are not saints. The ordinary sheriff’s officer through the country is not a saint. The job does not attract the decent type of man as a rule. I am afraid that will be always so. It is an unpleasant sort of job.

3805. Senator Farren.—Do you not think that some scheme could be devised by lodging the Land Commission’s certificate with the sheriff which would save these poor people the court fees? You and I have the same object in view—to save those poor people the additional cost. I was struck by the evidence of the Country Registrar, who said that these people would be saved the additional costs if the Land Commission certificates were lodged with the sheriff, who could make arrangements to take payment of the amount due by instalments. As I understand, they do at present make it as easy as possible for these people to meet the decrees?—It might be possible to devise such a scheme, but I do not know how it would work out.

3806. Chairman.—I take it that the conditions in your district are different from the conditions in the greater part of the country?—Yes.

3807. Senator Farren.—They are worse in your district?—Yes.

3808. The people are poorer there?— Yes. Of course, Land Commission work has eased off considerably at present. The number of decrees being taken out at present is much smaller than formerly. The Land Commission book-keeping is being done in a much better way and there are not as many mistakes as formerly. Again, the people have got into the habit of paying regularly on the gale days. In the old days, if they had not the rent on the gale day, they went into the agent and asked for time. It took some time to get accustomed to the new system. Most of them had an accumulation of arrears from the time when the Courts were not functioning. That situation has eased very considerably.

3809. Deputy Little.—You would be strongly in favour of keeping the power of the District Justices over these decrees in any event?—Yes. I think it is desirable to have these matters investigated by an impartial tribunal.

3810. Probably if the Court officer were paid on a fixed basis instead of by results it would get rid to a considerable extent of the Court fees?—It would, to some extent.

3811. So that any cheapening of the process, even from the point of view of the defendant, should not be at the cost of the discretion of the Justice?—No.

3812. Senator Brown.—Are there many Land Commission annuities under £5 in your district?—Yes, a tremendous number.

3813. I should think there would be, judging from the size of the holdings?— There are annuities of 2/6, 5/- and 7/6.

3814. Those actually come into Court? —Yes.

3815. That shows the force of what Senator Farren was saying?—I certainly think there should be some limit to the cost. The work is being done by the State solicitors.

3816. No matter how you limit the costs, they will be out of proportion to these small demands?—Yes.

3817. Might there not be some way of informing the annuitant, when the demand is made on him by the Land Commission, that if there is any question as to the amount or otherwise he ought to enter a defence in Court so as to be able to make his point?—Yes. It would be advisable to devise such procedure.

3818. Senator Farren.—I do not suggest that we should take away the right of the defendant to defend the case in Court, but we do know that in the great bulk of these cases there is no defence. It is merely a question of asking for time. In a case in which there would be a mistake in book-keeping or in which any other question arose, the case could be entered in Court by the annuitant. In the majority of cases in which there would be no defence, we could save the defendants the additional charges for costs by arranging that the sheriff would take payment by instalments at his own risk?—I quite agree with you.

3819. Senator Brown.—Could it be worked in this way: These certificates of the Land Commission would be lodged with the sheriff for execution if this system were adopted. Suppose there were some rule that once they are lodged, he should give notice to the annuitants of the fact and inform them that if there is any question as to liability or amount they should come into the sheriff’s office and acquaint him of the fact; the cases would then go automatically into Court?—I think that that would meet the difficulty, and it would certainly be a great saving to these unfortunate people.

3820. There is one other matter I want to ask you about. We know that we are going to get a certain kind of evidence from business interests—non-professional people. They say that inconvenience is frequently caused in your District Courts by reason of the illness of the District Justice. In cases where the Court is held only once a month, they say that if the District Justice happens to fall ill, there is a great deal of inconvenience caused. That would be a weakness in the system. You know that, under Section 70, the Minister for Justice has the right to appoint a deputy for the District Justice. The Act says he “may” appoint a deputy. I notice that he has also the right to consider whether he will charge the unfortunate District Justice who happens to be ill with the salary of the deputy. I will ask your opinion on that in a moment. Have you any suggestion to make to the Committee as to any way in which that inconvenience could be shortened or lessened? It is not compulsory on the Minister to make the appointment. As a matter of practice, how does that work out? Suppose you were unfortunate enough to take ill, what would happen in your district?—I have never been ill and I never missed a Court except one.

3821. There are, of course, cases in which the District Justice falls ill?—If I fell ill, I would immediately intimate to the Department of Justice that I was laid up. In any case I have ever known, the Department of Justice sent down a deputy—that is, if the illness was for any period. There might be a difficulty in the case of casual illness of a few days. Possibly, in that case, no appointment would be made and the public might be inconvenienced to that extent.

3822. That matter could not be taken out of the hands of the Minister for Justice?—I do not see how it could.

3823. Deputy Wolfe.—Do you know if there has been a recent change in the system of appointing District Justices— arranging an interchange between the Justices of two neighbouring districts— and are you aware that that has led to inconvenience?—I am not aware of that.

Deputy Wolfe.—It has caused very grave inconvenience. I have gone to a Court where there was something like 175 cases to be heard—three or four days’ work—as a result of this system.

3825. Senator Brown.—Do you think it is fair that your salary should be docked to pay the salary of a deputy. Personally, I do not think it is fair?—I do not think the Department has ever done that.

3826. The trouble about this is that the deputy has to be appointed by the Minister for Justice on the recommendation of the Attorney-General “on such terms as to payment of the deputy out of the salary of the justice or otherwise as may be provided by the rules to be made under this Part of this Act.” It does not seem fair to take the payment of the deputy out of the salary of the Justice. I would like to know if your committee have made any rules on the subject?—I think we have a rule dealing with vacation periods.

3827. That is a different matter. Assistants have been appointed to do duty during the absence of Justices on vacation but their salaries are not taken out of the salary of the District Justice. There is no question of deducting their salaries from the salary of the District Justice?— These assistant District Justices act when the District Justices are on vacation. If available, they are sent down to act in a district during the absence through illness of a District Justice. There are only two of them, and of course they could not relieve all the District Justices in the State in twelve months.

3828. Senator Wilson.—When you get holidays who relieves you?—Last year I closed down my Court during the month of July. Solicitors and other people concerned were on holidays at the time. The neighbouring District Justice stood by to deal with any emergency that might arise during my absence. He closed down his Court during the month of August, and I stood by for him.

3829. Senator Brown.—Does that mean that during the month of July there was no District Justice in the County Donegal?—There was in the other end of the county. In case any emergency arose he was available.

3830. Does not procedure of that kind create a good deal of inconvenience?—I do not think so. On the civil side, solicitors are not anxious to have the Courts sitting during the month of July. I think no one wants the Courts sitting during the months of July or August. If an indictable offence had to be disposed of, the neighbouring Justice would be available.

3831. Has the neighbouring Justice jurisdiction to deal with these cases?— No, he has to be assigned by the Minister.

3832. Would you be in favour, with the consent of both parties, of allowing the District Justice to hear a case where the defendant did not reside in his jurisdiction?—No. I do not see what could be achieved by that. What I would be in favour of is this, giving the District Justices jurisdiction over the whole country so that they would have power to deal with cases of emergency. If, supposing, I happened to take suddenly ill and that my colleague in the other end of Donegal had not very important business to dispose of at his Court, he could attend during my absence if the District Justices had jurisdiction over the whole State on a day when, for instance, there was a large amount of business on the civil side to be disposed of. In the case of sudden illness, and when it is impossible to communicate with solicitors and litigants, an arrangement of that sort would save a lot of disappointment. If, on a day or two before I was due to sit in a Court, I found that I would be unable to attend, I could arrange with the neighbouring Justice to come along and take the Court for me, particularly on a day when there was a good deal of business on the civil side to be disposed of. We have been urging that or the Department for a long time. In 1922, when we were appointed, our commission was for the whole of the twenty-six counties, but under the Courts of Justice Act, 1924, our jurisdiction was limited to the district to which we were assigned. The difficulty at the present time is that you have to get an assignment from the Minister for the neighbouring Justice to act for you.

3833. Deputy Little.—At the same time I suppose you agree that you should notify the Minister that you had got the neighbouring Justice to act for you?—Yes.

3834. Senator Wilson.—Is it by telegram that the Minister gives authority at the present time to one District Justice to act for another?—He usually sends down a form, but if necessary it can be done by telegram.

3835. Chairman.—Is there any reason why the writ of the District Justice should not run through the whole State?—I do not see any reason. At the beginning our jurisdiction extended over the whole State.

3836. Deputy Little.—But surely the Justice’s writ does run through the whole State?—Not now. A Justice must get an assignment under the Act to act in a district other than his own.

3837. But, in respect of a judgment made in Donegal, surely you can recover in the County Mayo?—Yes.

3838. Chairman.—The point that I meant to make was that the Justices should have jurisdiction over the whole State?—At the beginning we had that. On the day that we were appointed we had an interview with the Minister. I raised this very question and pointed out how desirable it was, on the grounds of convenience, that we should have jurisdiction over the Twenty-six Counties. The legal adviser to the Minister, who was present, said that was not necessary: that we were Justices of the District Court and that we had the power. I was holding a Court in the neighbouring district the following day, the permanent Justice being on holidays. In reading the Act, I discovered that we had no such power, and I had to wire from Portadown for an assignment to give me jurisdiction in the district.

3839. Deputy Little.—What is the full extent of the holidays given to District Justices?—We get six weeks altogether.

3840. There is a great contrast between the holidays District Justices get and the holidays of other Judges?—I think six weeks’ holidays are enough for anyone.

3841. Do you take your six weeks’ holidays all at the one time?—We have to break them up. We usually take a month in the summer, and a week at Christmas and Easter.

3842. Do you think that six weeks would be enough for a Circuit Court Judge?—I would prefer not to express any opinion on that.

3843. State solicitors, I understand, are paid a salary?—Yes.

3845. When they have to travel long distances have their costs to be paid?— In addition to their salary they get Land Commission costs.

3846. In any other kind of action do you know whether they get costs?—I imagine that in civil actions where, for instance, the Department of Industry and Commerce sues for arrears of insurance, they would get costs.

3847. Is there any other case in which they get costs?—Not that I know of. Of course they do not get costs in ordinary criminal proceedings.

3848. Considering the volume of business that State solicitors have to do, would you say, from your experience, that the salary they receive ought to be sufficient without granting them costs in Land Annuity cases?—No. In Donegal, for instance, the State solicitor has a great deal of travelling to do. At present his salary as State solicitor is, I think, £600 a year. He has to keep a staff to deal with State business. He seems to be on the road constantly, and as far as I can see the position would be really worth nothing to him if he did not get his costs in these Land Commission cases.

3849. Senator Dowdall.—Is the State solicitor permitted to do private practice?—Yes.

(The witness withdrew.)

Mr. William H. M. Cobbe, County Councils’ General Council, called and examined.

3850. Chairman.—You are a member of the Executive Committee of the County Councils’ General Council?— Yes.

3851. And you have been associated with that body for a considerable time? —Yes.

3852. You are a member of a county council yourself?—Yes. I am a member of the Leix County Council for about six years, and I represent the County Councils’ General Council in the evidence which I propose to give before this Committee.

3853. I understand that all the county councils are affiliated to that body?— Yes, all, I think, but two.

3854. I understand from the précis of your evidence that you are satisfied with the present jurisdiction of the District Courts?—Yes. The unanimous opinion of the different councils is that it might be advisable to give the District Courts a little larger jurisdiction than they have, say, to increase their jurisdiction up to £30.

3855. Do you mean in cases of contract only and not of tort?—Both in contract and in tort. There is a fairly large jurisdiction in the Circuit Court. We think the District Justices who are professional men, barristers and solicitors, are quite capable of dealing with claims up to £30, and if they had it would relieve some of the congestion in the higher Court.

3856. Are you aware that many cases within the jurisdiction of the District Courts are taken to the Circuit Court?— I have a sort of general knowledge that there are some such cases, but I cannot say definitely.

3857. Would you be in favour of compelling people to take their cases to the District Court if they were within the jurisdiction of that Court?—I would, because it would mean a considerable saving of expense.

3858. Are you satisfied with the system of appeal from the District to the Circuit Court?—I think practically all the County Councils are satisfied on that. There never has been any objection that we know of; at any rate there has been nothing of any account. So far the District Courts have been satisfactory except with regard to a few small points.

3859. You suggest, that in order to save expense and time, minor cases might be tried before a Peace Commissioner. You are thinking chiefly of criminal cases?— Criminal cases would, of course, be one class of cases but there are a lot of other minor cases.

3860. I put that matter to you because I take it you understand we are confined to civil jurisdiction?—Of course minor cases of drunkenness and cases where there are half-crown fines and things of that kind might come before a Peace Commissioner. As things stand now, such a man is brought before a Peace Commissioner and he is remanded in custody, or on bail, to come before the District Court, whereas the case could be dealt with by the Peace Commissioner altogether.

3861. That would be practically criminal work. Can you suggest any type of civil case that might be tried by the Peace Commissioner?—No, I cannot at the moment. I would in fact have to give a lot of thought to that before committing myself.

3862. Are there any civil functions which you would confer upon a Peace Commissioner except what he is entrusted with at the moment?—There is the question that causes considerable inconvenience at the moment, and that is the swearing of affidavits before a District Justice. I do not see why a Peace Commissioner should not have that power. I understand in the North of Ireland they accept Peace Commissioners as witnesses to affidavits whereas in our own Courts they will not. It is undoubtedly a nuisance to have to go round searching for a District Justice to swear an affidavit when it could be quite easily done before a Peace Commissioner.

3863. Could it not be done before a Commissioner for Oaths?—Oh, yes, but a person would have to pay the Commissioner half a crown or something like that.

3864. You think it would be an advantage to the people if they could swear an affidavit before a Peace Commissioner? —Undoubtedly I think it would be a great advantage. Sometimes a District Justice may be twenty miles away. As regards my own county, the District Justice lives in Portarlington, thirty miles away from the other end of the county. Of course if you do not find a District Justice you have then to come before a Commissioner for Oaths, and although 2/6 does not seem a lot, as a fee for him, still a lot of people do not like it.

3865. You suggest, also, that when a District Justice is unable to attend Court, he should provide a deputy. Are you aware of the present system? What I am aware of is that all trict Courts throughout the Saorstát are held on stated days in different districts, and I am aware that on some occasions no District Justice turns up and no notice is given to anybody beforehand. People bring their solicitors, witnesses and others without any result. The county councils are unanimously of opinion that that ought to be remedied. There are a couple of ways in which that might be done. One is the adoption of the same system as was adopted by the old Resident Magistrates. If a Resident Magistrate found he could not attend, he got a brother R.M. to take his place. The District Justice could do the same, or there might be a panel of deputies in each county who would act. For instance, there are many professional men, and a panel of these might meet the case.

3866. Would not that be open to serious objection?—Yes. A local man might be interested in a particular case that might come before him.

3867. Do you not think it would be objectionable to have a man practising as a solicitor to-day and acting as a Judge to-morrow, and especially in his own district?—I quite appreciate that. I suggest that the District Justice should get another District Justice to take his place if he cannot attend himself. That was possible in the old times, and I do not think that District Justices reside any further away from one another than did the old R.M.s.

3868. Your suggestion is that if a District Justice found he was taken suddenly ill——?—Or from any other cause; there may be other causes. We have had a lot of cases.

3869. ——that he should have the power to ask his nearest colleague to take his Court?—Yes. That is one suggestion. I leave it to the Committee to provide another. What I am seriously interested in is that such a situation should not be allowed to arise. It is from that point that we are most interested. I am only throwing out suggestions, but I would press that some arrangement should be made that such things cannot happen in the future.

3870. There is a considerable lot of hardship and expense involved?—Yes. I have had personal experience where my time was valuable. I had to go to Court. There was no Court, and I lost my day. That has happened on several occasions with other people, and I think it should not be allowed to occur.

3871. Your suggestion might go a long way towards meeting this problem, but it is conceivable that a man might be taken suddenly ill and that there would not be any attempt to make arrangements?—I think in the case of sudden illness that no one would press the point. They would be quite reasonable in a case like that. I know personally I should be sorry to kick up any row about it. I touched on the venue. That might relieve some of it. In some places where the District Court jurisdiction extends, probably there is another District Court 70 per cent. nearer. We suggest in a case like that that the District Justice, although not residing in the particular district, should be allowed to adjudicate outside his own immediate jurisdiction.

3872. Is that likely to occur in many cases?—There are lots of towns on the border of District Court areas. Take Portarlington as in instance; it is my own town. Part of Portarlington is in Offaly. The major portion is in Leix. The District Justice resides in Portarlington for the Leix district, and it is quite possible that his district might only extend to part of Portarlington. The boundary might be such that a Court of the District Justice might be 25 miles from it.

3873. You suggest that that could be done only with the consent of both parties?—Yes.

3874. Is your organisation in favour of the continuance of the present jurisdiction of the Circuit Court?—Undoubtedly, unanimously.

3875. You would be against any change? —I am absolutely opposed to any curtailment. I got reports from practically the Twenty-six Counties on that matter. I have been talking to a lot of business people, a lot of professional people, solicitors, doctors and others interested in those cases. They are all absolutely unanimous that it should not be curtailed. It seems to be working very satisfactorily as it is and it is saving litigants quite a large sum in expenses alone.

3876. Your body is of opinion that there should be no reduction?—We are unanimous about that.

3877. Have you any views as to whether it should be increased or left as it is?— We are satisfied that it should not be lowered. Although I have not put that query to the council, I am quite sure if it were increased there would be no objection to it.

3878. You are unanimous that it should not be reduced?—We are unanimous about that. You might notice a suggestion has been made that in contract cases where the action is for a liquidated sum the plaintiff might be allowed a choice of commencing proceedings in the High Court. That is a tentative suggestion to the Committee sitting here. If there were a case that was within the jurisdiction and the plaintiff liked to go before the High Court he should not get any higher scale of fees than he would get before the Circuit Court. That is a suggestion we make and the county councils are not inclined to press it if the Committee see any difficulty about it.

3879. Can you tell us what is the reason for that suggestion?—The reasons have not been given for that suggestion. I cannot see much reason for it myself personally.

3880. Are you aware that county councils cannot sue in the District Court for rates save by Civil Bill?—No, is that so? I do not think that is right.

Deputy Jasper Wolfe.—They can sue summarily.

3881. Chairman.—They cannot sue by Civil Bill?—I do not know. I thought rate collectors did sue for rates.

Senator Comyn.—They cannot bring a process.

3882. Chairman.—They cannot sue in in the District Court by Civil Bill?— That ought to be remedied.

3883. Do you think they ought to be entitled to sue by Civil Bill?—Yes, but only on one ground alone, that is the question of expense and time. The Circuit Court sits quarterly, the District Court sits monthly.

3884. We have got evidence that it was impossible for the County Council to sue by Civil Bill as they could in the old County Court. You think they ought to be given that power?—I do, undoubtedly. We suggest also that the Circuit Court should sit in a couple of towns in each county instead of in one. That would be for the saving of expense and for the convenience of people.

3885. Do they not sit in more towns than one now?—Apparently not.

Senator Comyn.—Not always.

Witness.—In some counties, I believe they do, but in others they do not.

3886. Senator Dowdall.—In your county where do they sit?—In Maryboro’. The old Judge sat in Maryboro’, Mountmellick and Abbeyleix.’ I think he sat in four towns in the county.

3887. Chairman.—But, of course, the District Court now takes a good deal of the work which formerly went to the County Court Judge?—Undoubtedly, but still there is a big amount of work for the Circuit Courts to do, and there is a tremendous lot of travelling in some counties, a matter of travelling thirty or thirty-five miles in some cases to Maryboro’ in our county, whereas that distance could be cut in half and it would greatly convenience the people by the Judge sitting in more than one centre in the County.

3888. Before we go into that further, what are the views of your body on the present system of appeal from the Circuit Court on notes?—We are unanimously opposed to it.

3889. You think that it has not proved satisfactory?—We think that very often it causes a grave miscarriage of justice. On the shorthand notes you sum up the legal arguments one way or the other, but you have no indication as to what sort of witness gave the evidence. A Judge listening to a man viva voce generally sums up the kind he is and decides whether he can depend on his evidence or not. But we say that in cases where both the plaintiff and the defendant agree to abide by the shorthand notes that the case could then be usefully decided on the notes.

3890. What alternative do you suggest?—A re-hearing.

3891. By one or two Judges?—Well, there is no unanimity about that. We would leave it to the discretion of the Committee to decide whether there should be one or two Judges. We suggest that these Judges should go out on Circuit as the Assize Judges used to do. We are very strong on that point. We think that they should sit twice a year in the counties, for convenience in the first place, and on account of the enormous saving of expense in the second place. What very often happens now is that appeals from the Circuit Court may be hung up for twelve months or perhaps longer; when the appeal comes on, it is listed for a certain day and a man brings up his witnesses and his counsel. Two or three days may be lost, or it may be decided in fifteen minutes, but he has to be there, and he may be stuck there with his witnesses and with all the expense for three or four days. That very often happens.

3892. Do you think that the system of re-hearing would be not only much more efficacious, but would be cheaper?—It would entail more work, but you can generally forecast the amount of time a case will take.

3893. With a re-hearing, would you favour having the shorthand note available if it were required?—I think so. I think that the Judge ought to have the shorthand note. For the purpose of doing justice that would be essential.

3894. To come back to the question of the Circuit Judge sitting in two or more towns in each county. Has that matter ever been taken up by your body with the proper authorities? I mean has the County Councils’ General Council ever made any representations to the proper authorities about having sittings in more than one town in a county?—Speaking from memory, I do not think it has been officially taken up. The system has been working only for a comparatively short period.

3895. Did you consider whether or not it would be feasible without increasing the number of Circuit Judges?—Certainly, it would be. There is no reason why the Circuit Judge could not do so. It would only mean taking the Court from one place to another, and that would mean only an hour’s travelling, or twenty or twenty-five minutes’ travelling. In all the towns where a Judge would sit if that were done, there is ample accommodation—at least, in every town that I know of. It is on the grounds of public convenience that we suggest that.

3896. Chairman.—I think that is a matter that should have been taken up with the proper authorities; I think it is not a matter for legislation. However, it is no harm to have it mentioned here.

Witness.—It is a question as to whether you have power to deal with it or the Minister for Justice.

3897. You have some suggestions to make as to the extension of the time for serving notices of appeal in cases of appeal by county councils?—Yes, that is a matter which often causes a good deal of loss of time and great inconvenience. Before a solicitor for a county council can appeal he must have authority from the council. His time for appeal—it is defined in the Act—is limited. It occurs more often than not that the county council does not sit in time to give that order, and the only way in which it can be done is by summoning a special meeting of the county council for that purpose, which seems to me to be an unnecessary waste of the time of the councillors and of expense. We do not see any reason why the time for appealing should not be extended. I am not sure what the statutory period at present is, but it is fixed by statute that the appeal must be lodged within a certain time.

3898. Is that fixed by statute or by rule?—I do not know whether it is in the statute or fixed by rule.

Senator Brown.—It is a rule.

Deputy Wolfe.—It is a rule, I think.

Witness.—It may be a rule. We suggest that the time, whatever it is, should be extended considerably. My suggestion is, that the time that a county council would have for giving notice of appeal should be as long as possible, provided they were in time to give due notice to the Court that would hear it. I think they should be given up to a week or ten days before the case would come on.

3899. You have some further suggestions to make with regard to Section 52 of the Act of 1924 in reference to excessive weight and traffic on roads.

3900. Senator Brown.—How does that come into Section 52?

Senator Comyn.—You have to follow the defendant, on the construction of the Act.

Witness.—Section 1, sub-section (5) of the Public Roads Act, 1911, reads: “Proceedings in the County Court under this section may be taken in the County Court within the jurisdiction of which the damage is done, or within the jurisdiction of which the defendants, or any of them, reside or carry on business, etc.”

3901. Chairman.—You say in your précis: “Section 52, which impliedly repeals Section 1 (5) of the Public Roads Act, 1911, should be altered so as to provide that cases relating to excessive weight and traffic on roads should be tried in the county where the road lies.”

3902. Senator Brown.—Because this obliges you to go where the defendant resides?

Witness.—Section 52 seems to repeal the sub-section which gives the county council leave to issue in their own county. Assuming that the defendant resides in another county, under that section they must sue in the other county, and we think it would be a grave injustice to a county to put it to the expense of bringing witnesses to another county. It might be a case of having to go from Cork to Donegal.

3903. Chairman.—You have some suggestions to make about the preliminary notice under the Malicious Injury Code? —Yes, that is a suggestion put forward on behalf of one particular county—I think it is Wicklow—that the applicants should be obliged to state in the preliminary notice the ground upon which he relies; that he should be precluded from giving evidence on any ground of malice other than that contained in the preliminary notice.

Senator Comyn.—It was statutory in former times; the applicant was obliged to do this. He was obliged to swear the information within three days, and when he had sworn his information he was entitled to make the best case he could in the Court.

3904. Senator Brown.—Certainly, he might subsequently get undiscovered evidence?

Witness.—That suggestion came from one particular county; the rest of the country did not subscribe to it, nor, personally, do I, but I thought that as a representative of the counties I should at least voice what they said. We do not think it would be at all fair that where a man, in a hurry very often, has served notice of claim within the statutory period, he should be bound by that evidence only, whereas he might have afterwards discovered a lot of further evidence that would be valid and very pertinent to the case, which he would be precluded from putting forward. It might cause a grave miscarriage of justice. Under the Malicious Injury Code, what we are unanimous about is that any award for compensation for injury to buildings should be conditional on the expenditure of the award in reconstruction. If a man has a house burnt down and gets compensation for it, we suggest that he ought to spend that compensation in rebuilding the house.

3905. Chairman.—That he ought to be compelled by law to do that?—Yes.

3906. Senator Dowdall.—On the same site, would you say?—No; but that he should spend the money on rebuilding. We would be satisfied as long as he spent it on constructive work. If he gets an award of £200 for damage to his house, if he spends that £200 on an alternative building we would be quite satisfied.

3907. Not necessarily on a dwelling-house?—No. The Council would lose a little bit on the question of rates, but it would be so infinitesimal that we would not press for the rebuilding of the house.

3908. Deputy Little.—Would you limit that to within the rateable area, that is to say, that a man who had his house burned in Dublin should not be able to build it in the country?—I think I would confine it to the county in which the destruction occurred.

3909. Senator Dowdall.—In the event of a creamery being maliciously destroyed, say on the borders of County Meath, where there were already sufficient creameries, even allowing for the destroyed one, would you permit reconstruction to be carried on in the neighbouring county of Westmeath where a creamery was wanted?—I would leave that to the discretion of the Judge after hearing the evidence.

3910. In reference to the matter of appeals by a county council, would it not be sufficient if the county council clerk would be permitted to lodge the appeal and, if the council at its next meeting did not sanction it, it could be withdrawn?— That would probably meet the case if it did not entail expense on the county.

3911. I assume that the summoning of a meeting of the county council would be still more expensive; you pay travelling expenses to council councillors?—These expenses are negligible.

3912. Do they get any allowance?—A penny a mile for a one-way journey.

3913. Do they get any subsistence allowance?—No.

3914. Senator Brown.—How often do the county councils meet?—There are four statutory stated quarterly meetings, several special meetings, and a finance meeting every fortnight.

3915. Would the fortnightly finance meeting not be competent to deal with the question of appeals—I suppose its members are the pick of the council?—That would do all right in Leix as at present constituted where all members are members of the Finance Committee. Until this year ten out of sixty members were members of the Finance Committee.

3916. It is a matter that should be dealt with by rule and not by legislation? —Yes, I think so.

3917. You suggest that a Peace Commissioner ought to be allowed to take affidavits?—Yes.

3918. Because such Commissioner is really the only person outside the District Justice who does it for nothing?—Yes, and for convenience.

3919. Would you confine that suggestion to affidavits in any particular Court?—No.

3920. You call attention to the inconvenience sometimes caused by the illness of the District Justice?—Not by illness, but by the non-attendance of the District Justice in Court.

3921. That is generally caused by illness as, if it is otherwise caused, there is generally notice given. In the case of sudden illness of a District Justice, it has been suggested that if you assign the neighbouring District Justices to his district, it would solve the difficulty?—It probably would.

3922. Are you aware that at present there are two Assistant District Justices? —I understand there are, and I understand that it is proposed to appoint Temporary Justices.

3923. Not temporary. They are permanent Assistant Justices, and the Minister for Justice has the right to appoint four, but he has actually appointed only three. They are intended to supply the places of District Justices who are on holidays or who are ill. They are available for the purposes you suggest. Would you be willing to have power given so that the neighbouring District Justices could sit if necessary?—Yes. On the ground of economy of administration you do not want more than two Deputy Justices appointed. If my suggestion were carried, namely, that District Justices could act for one another in cases I have mentioned, there would be no necessity to appoint more than two Deputy Justices.

3924. Could you tell us how many days in a month does the District Justice in your district sit?—I do not know definitely, but I think he sits about four days a week.

3925. He would not have many vacant days in a month if he has to travel?—No. There are two District Justices in my county. The Justice who attends at Maryborough has to come from Templemore and the man in Portarlington, nine miles away, has to go in the other direction.

3926. You made a suggestion about what you call the venue in cases of injuries to roads?—Yes.

3927. It is quite probable that the people whom you represent are right in thinking that Section 52 (6) of the Act of 1924 does repel the former Act under which you had to go to the County Court in the county in which the road was situate?—Yes.

3928. So that you are right in thinking that they would have to go to the county in which the man who did the injury resided?—I think so.

3929. He might be a contractor from Northern Ireland?—Yes, or from Cork and if we had to go to Cork to proceed against him the expense would be very great.

3930. That amendment would require legislation?—I suppose so.

3931. Your people are of opinion that that would be a useful amendment?— Yes. Our interpretation is that this section, impliedly at least, repeals the other one.

3932. It looks as if you were right?— We think that it ought to be settled definitely and the jurisdiction confined to the county in which the damage occurred.

3933. You suggested, or rather it was suggested to you by some of the county solicitors, that a plaintiff ought to be allowed to proceed in the High Court in contract cases under £300 and that he should not get more than Circuit Court costs unless the Judge certified that it was a proper case to bring in the High Court? —Yes.

3934. Why is that suggestion confined to cases of contract and not include cases of tort?—I see no reason why it should not. Personally I am not in favour of that. There is no unamimity about that. It is a suggestion from one county and I mentioned it because I was asked to express the views of different county councils. I have explained where we are unanimous. and where we are not.

3935. Senator Comyn.—In reference to damage to road, in a case where damage is done by a company you have to sue where the company is registered?—Apparently so. Up to a short time ago, where we sued, the case was tried in our own county or in the county where the damage occurred, but now if a man who caused the damage lived in Donegal we would have to go to Donegal to make good the damage.

3936. If it is done by motor companies, you have come to Dublin?—Wherever their registered offices are.

3937. Damage to roads has been done by people who do not reside in the Saorstát?—Yes.

3938. The late Act authorised you to proceed in the county where the damage was done, no matter where the defendant resided?—Yes.

3939. I want to ask you about criminal injuries, but you might first tell me can the solicitor or the secretary to the county council serve notice of appeal without the authority of his council?—I do not think so.

3940. Senator Comyn.—They do not do it in practice?

Deputy Wolfe.—They do.

Senator Wilson.—They do it on the off-chance.

3941. Senator Comyn.—They might find themselves liable for costs if they had to withdraw the appeal. Would this satisfy you, that the time within which the county council could lodge an appeal should be extended to three or four days after the next meeting of the county council?—Yes, or two days. I should say two days after the stated quarterly meeting of the county council. A special meeting can only deal with what it is summoned for.

3942. You want the county council to meet before the time limit for the appeal expires, and you think that two or three days after that would be quite sufficient? —Yes.

3943. You made another point. You said that a person alleging that his premises had been maliciously burned should state the grounds of malice upon which he relies in his notice. Did it ever occur, in your experience, that a man’s house may have been maliciously burnt and that he might attribute it to one malicious cause, whereas it would be subsequently discovered that the house was burnt from a wholly different malicious cause?—Quite so.

3944. That would happen?—It has happened over and over again.

3945. Would it not be very unfair in the case of a man whose house was maliciously destroyed, if he were not at the hearing of his case entitled to bring before the Court the true grounds of malice which may not have been known to him previously?—Absolutely. It might result in a grave miscarriage of justice. I do not subscribe to that. I explained that that particular note about preliminary notice is made by one county and one county only.

3946. You know that there was a case where a boycotted man in Limerick had a house burnt and he attributed it to the malice of his neighbour, whereas the police came along and proved it was done by a servant who wanted the police about the place. Judge Adams described it “as the insane vanity of the police.” I want to ask another question about that. A man’s house is burnt. A month afterwards, when he is thinking the matter over, he may make an application for compensation and may make a false case in order to get money if he has time to think it out. Would you be in favour of requiring a person making a claim for compensation for malicious injury to make it within a stated short period of the actual injury?—I think that that is provided for. He must make a claim within a certain number of days.

3947. In the old days he had to make the information within three days, but I think that has been varied. You think it a good provision?—I think three days too short. I would say seven days.

3948. You spoke about the Circuit Court sitting in a few towns. The old County Court sat in a great number of towns?—Yes.

3949. Was that convenient for the public?—Very convenient. I know that some of the Judges objected to the accommodation they got in some of these towns to which they called.

3950. Everybody had to put up with it. You think it was most satisfactory to have hearings of these small civil cases in the various towns in which the County Court was held formerly?—Undoubtedly, both from the point of view of public convenience and the saving of expense.

3951. In regard to the District Courts, you said that you would be in favour of increasing the jurisdiction to £30?—Yes.

3952. Would you allow the plaintiff or claimant to bring his £30 process in any town where the District Court usually sat?—In his own county? I do not see any objection to it. Whether it would be any advantage or not is another question.

3953. The suggestion has been made that in these civil cases the proceedings should be centralised in various towns by the District Justice. For instance, the District Justice in Limerick could hear civil cases coming within his jurisdiction in the towns that were the old venue for the County Courts. Suppose it is competent for a plaintiff to bring a £30 process in any out-of-the-way District Court town, would there not be great expense in bringing out solicitors and people like that to conduct such a case when there might be only one case in the sitting?— I see the point. I think there is a good deal in it.

3954. Would you be inclined to modify your opinion in view of that?—I have not expressed any opinion except in a general way. I see the point you raise, and I can see no objection to it. I think it would probably be wise to restrict these cases to certain towns.

3955. To confine the civil business to certain towns?—Yes.

3956. You said that Peace Commissioners might be given jurisdiction in certain cases and you were not able at the moment to specify the particular cases. Might I suggest to you that they could hear small disputes, say, between a workman and a farmer or between two farmers, or cases of small assaults at a fair? Is that the kind of thing you had in mind?—I do not know that I would go so far as that. I can see certain objections to that. A man may like to go before a Peace Commissioner who may be a particular friend of his. A Peace Commissioner may be inclined to favour a man like that. I do not say that he will, but it is possible.

3957. From your wide experience of the country, does it not occur to you that the opinion of a respectable middle-aged layman would be perhaps more just than the law ladled out by a professional man in these small cases?—It is generally, but there is a probability that there would be a difficulty in some cases. Taken as a whole, the Peace Commissioners are a very respectable body of men, but I know there are some people Peace Commissioners before whom I would not like to go.

3958. Chairman.—Arising out of that question, do you consider that if people were allowed to bring certain types of cases before Peace Commissioners, 99 per cent. of these cases would be appealed to the District Court?—I presume they would.

3959. Senator Comyn.—Suppose the Peace Commissioners sat with the District Justice when the District Justice was available?—I think that an admirable suggestion. I think it would be a great acquisition to the District Justice in many cases if he had local opinion to help him and I do not doubt that these Commissioners would help him.

3960. Do you think it desirable from the public point of view that respectable men of mature years of every class should in some way or another be associated with the judical system of the country?—I do undoubtedly. When you entrust certain power or certain authority to the public you are doing in my opinion a good thing from the national point of view. That is. you are giving them a sense of responsibility in which the country at present is unfortunately lacking. That sense of responsibility if it could be fostered in the country would undoubtedly be a great asset to the nation.

3961. In regard to the jurisdiction your Council are unanimously of opinion that the present limits of jurisdiction should be retained?—Yes. They should not be reduced.

3962. You would not of course deprive the High Court of jurisdiction?—Oh, no.

3963. No matter how big the case and no matter how small the case?—No.

3964. You would say although perhaps you are not a lawyer that that would be unconstitutional?—I would.

3965. In regard to the cases which are within the Circuit Court jurisdiction you say that the plaintiff might be at liberty to bring such cases to the High Court?— That is a suggestion. It is not mine.

3966. You have however said that in such cases the costs should be arbitrarily limited to the amount of the Circuit Court?—To the same scale as the Circuit Court except where the judge certified that it is properly brought in the High Court.

3967. I put this to you: a case involving very serious rights, for instance a fishery on the Shannon which is a big thing, might arise in an action in which £300 would not be claimed. Suppose a case involving such a very serious right occurred and that the amount of the claim upon which that right was to be decided was less than £300, would you not think that that would be a proper case for the High Court?—As a layman I look at it in this way: your Circuit Court Judge is a man who is supposed to know all the technical points of law. He is a very able lawyer and I have no reason to think that the Circuit Court Judge is not able to give as equitable a decision as any judge of the High Court. If cases of importance like that were brought in the Circuit Court, an appeal always lies to the High Court.

3968. You would have a second hearing? —I would have a second hearing.

3969. You know that Circuit Court Judges may be very able men but is it not a fact that when a man is rusticated for a certain number of years he forgets things?—I could hardly say that about Circuit Court Judges.

3970. Suppose a man in contract cases, one merchant suing another, involving say, the custom of the trade or something like that, gets £100 damages. Do you not think he should get full costs?—I look at it in this way: if you can get £100 damages in the Circuit Court why saddle the defendant with the extra costs of the High Court?

3971. I shall put another case to you, a case such as came within my own experience. Suppose a woman’s husband, a carpenter is going along the road and is run over and his widow goes to a solicitor. The solicitor says “You might get £500 damages and you might only get £250. I will not bring that action in the High Court.” In that case would she not be compelled to bring her action in the Circuit Court where her amount was limited to £300 though she was entitled to £500?—If she was entitled to £500 she could bring her action in the High Court, and if she gets only £250 she can get her High Court costs.

Senator Comyn.—She gets her Circuit Court costs and no more.

Chairman.—I understood Mr. Cobbe to say that when a case is brought in the High Court which was within the jurisdiction of the Circuit Court—unless the Judge of the High Court was satisfied that it was a proper case to bring to the High Court he would award only Circuit Court costs. I think there seems to be a suggestion that the witness is stating that the Judge would have no option but to give High Court costs. I think the witness also stated he put forward the suggestion made though he did not agree with it himself.

Senator Brown.—And it is not fair to cross-examine him on it.

Senator Comyn.—I only wanted the matter cleared up. Take the case of the poor woman. A solicitor will not bring an action for her as she has no money, except she is sure of getting her costs.

Chairman.—Will the Senator say how we can affect that position?

Senator Comyn.—I am only putting that position to the test.

Senator Brown.—You are putting it to a witness who has not given evidence on the point on his own behalf. You said, Mr. Cobbe, that you did not agree with the suggestion made by the county councils, and I think that is enough.

Chairman.—I think that Senator Comyn is developing this to a point to which he ought not to pursue it.

Senator Comyn.—Then, If you think so, I will not press it.

3972. Deputy Little.—Do you think there is any ground now for continuing the malicious injuries legislation?—I do.

3973. It is quite an exceptional kind of legislation?—I would like to qualify what I have said. There is a difference of opinion in the county councils about it. Assuming you have everybody insured, then I should say you could discontinue these malicious injury claims.

3974. Is it fair to use the rates as a substitute for insurance?—Assuming a struggling farmer, or, say, a carpenter has a house worth a couple of hundred pounds and it is burned maliciously, is it fair because he has not insured the house that he should suffer the loss of its value when the house was destroyed through no fault of his own? I think that would be a hardship on him although, of course, I appreciate it would be a hardship on the ratepayers that they should have to pay.

3975. The views of the county councils on that point would be valuable?—The question has been discussed, but there is no unanimity of opinion about it.

3976. Deputy Wilson.—You are in favour of a re-hearing in the Appeal Court from the Circuit Court on the facts of the case?—Except where both sides agree to accept a decision on the shorthand notes.

3977. Is not a Judge of the Circuit Court quite as competent to get at the facts of the case as an appeal Judge in the High Court?—I should say so.

3978. Then why have an appeal on fact? —I am not saying on fact. The Circuit Court Judge is quite as capable as the High Court Judge or anybody else of getting at evidence, and he is probably as capable as a High Court Judge of diagnosing whether the evidence is true or not, but what we say is that on the appeal on the shorthand notes there is simply the bald writing. The Judge would have difficulty in deciding whether the evidence is true or not as he has no opportunity of judging from the demeanour of the witnesses. The county councils are of the unanimous opinion that there should be an appeal on re-hearing except where both parties agree to accept the shorthand notes always having in mind that the appeals would be by way of re-hearing without the expense of having to come to Dublin.

3979. The second Judge might not be more capable of finding on the facts than the first Judge?—That is quite possible, but the loser of a case would like to have another whack at it. He is not satisfied with having lost, and he takes the chance of getting a decision in his favour.

3980. Deputy Wolfe.—I am interested in what you say about the criminal injury code. I know a case where a man had a house burnt down. There were fires in three portions of the house, separated by yards, one from the other. He could not allege malice against anybody, and he did not know how the fires had been caused except that they had not been caused by accident. How is he going to file his notice? What I want to know is the grounds of malice which he has to allege? There were three fires started at the same time. That is prima facie evidence of the fact that the burning was malicious.

3981. My point is, you suggest he should be precluded giving evidence on any ground of malice other than that contained in the original notice?—I said that one county out of the twenty-six suggested that, and I have already said that I do not agree with it.

3982. I will not press you on it. You know there are a great many criminal applications in which grounds of malice are raised res ipsa loquitur—the matter speaks malice. You would not say of the applicant that the onus lay on him of alleging malice against any particular individual or party?—I will only say that in 1923 and 1924 in Leix and Kildare I had a good deal of experience of malicious injuries.

3983. You have been asked a question with regard to the decentralisation of Civil Court jurisdiction. Are you aware that is done?—I am not aware of the exact procedure.

3984. Do you know that the District Courts only take civil cases in certain cities and certain places?—I do not know personally of the practice.

3985. As regards the question of extra Circuit Court sittings would your Council be prepared to support that suggestion even if it meant the appointment and expense of additional Circuit Judges?—I do not know that we would because the councils do not seem to see any necessity for extra Judges for the Circuit Courts. I do not know as to the amount of work the Judges have to cope with, but apparently in all the counties the Judges get through their work sitting in two Courts.

3986. Do you suggest that Circuit Court Judges can hold three sittings in different towns, in the same time as one sitting in one town?—Yes, and probably they will get through their work quicker.

3987. Do you know that the Circuit Court Judge has to make out a list of cases in advance and fix his dates, allowing for each town the time that will cover any problematical litigation?—No. The practice has been that the Judge may allocate a day for cases in a smaller town and those that could not be decided that day would be adjourned to the county town. Take Offaly, for instance, where sittings are held in Birr, Tullamore, Philipstown and other places. Philipstown is ten miles from a railway station. If a Judge sitting there for one day could not get through all the cases he would adjourn them to Tullamore, and, if necessary, sit a day longer in Tullamore to hear those cases.

3988. What would he do on a day he went to Philipstown and found only a half an hour’s work?—I do not know what he would do.

3989. Do you not see that if the number of sittings is extended you must necessarily extend the expenditure and the time?—It is quite possible you might extend the work during a particular session, but I cannot see under any circumstances that it would be for more than a day.

3990. May I take it that you have not studied the matter?—I attend the Circuit Court, and formerly I attended the County Court, nearly every session.

3991. To come back to the old County Court, have you known times when the Judge would have two or three days doing his best to prepare his plans?—In my own county, the Judge sits from Tuesday to Friday, and sometimes until Saturday, during each session. A session may last ten days. Our judge is Judge Wakely.

3992. Chairman.—We were informed that Judge Wakely sits the six days of the week?—I know that he does a lot of work; he is a glutton for it.

3993. As a matter of fact, somebody said here that if he were allowed he would sit the seven days of the week?—I know Judge Wakely works all day and well into the night. I have known him to be working at his cases up to twelve o’clock at night.

3994. Notwithstanding that, are you aware that he is very much in arrears?— I do not know what way he is with his work.

3995. Senator Hooper.—He has a big circuit?—Six or seven counties.

Senator Brown.—Six.

3996. Deputy Wolfe.—He had fifteen sittings while the average is under ten?— I know that.

3997. Do you not see that if the suggestion of the General Council was carried out, that would need the appointment of an additional Circuit Judge? What I want to get out is, will your General Council advocate an increase in the number of Circuit Court Judges?—If necessary, for the purpose of sitting in the different Courts. I qualify that by the words “if necessary.” I am not sure whether that would be necessary or not.

3998. Coming to this question about county councils appeals at present, do you know what happens? I agree that it is wrong, but the solicitor for the county councils has to lodge an appeal whether it is going on or not. That is the practice?—I do not know whether he has any authority to do that. I did not know that he could lodge an appeal without authority from the council.

3999. In practice he does, and that means increased expenditure whether the appeal goes on or not. Would not that be met by giving the councils a month with which to appeal?—I think Senator Comyn asked me a question something similar, and suggested that if the council got two or three days after their meeting, that would be long enough.

4000. Deputy Wolfe.—If that was done, and if the council never held a meeting, where is the right of appeal?

Senator Comyn.—They could never appeal.

Deputy Wolfe.—That would keep the right of appeal open.

Senator Comyn.—The councils have to meet every three months by law.

4001. Deputy Wolfe.—I have heard of councils, which did not meet for months, and that agreed not to meet for a specific purpose. Would you not say that the case would be met if the councils got a specific time, say one month, to appeal?— I do not think I could agree to that, for this reason, that possibly the councils might not meet within the month.

4002. You told Senator Comyn that you would not deprive the High Court of jurisdiction in cases, no matter how small they were?—No. I may not grasp your meaning but I would not deprive the High Court of any powers.

4003. Would you allow traders or merchants in Dublin to sue traders in your area, for £2 or £3 debts due, in the High Court? That is the view of the General Council of County Councils?—I do not quite follow.

4004. It follows from the suggestion that you would allow Dublin merchants, or English merchants, to sue traders in your area for £2 or £3 through the High Court?—At present you do so through a writ in the High Court.

4005. To recover £3 for goods sold. Would you allow that?—I do not think so; I do not see why small sums like that should be sued for in the High Court. It seems ridiculous that a man owing £3 should be sued in the High Court. What we say is that the Circuit Court Judge has jurisdiction, and also the District Courts up to £25.

4006. Would you not deprive the High Court of jurisdiction in these small cases, whether it would be constitutional or unconstitutional to do so?—In those cases, I think I would. The answers that I am giving are my own opinions and are not considered opinions, as the questions are sprung on me.

4007. Senator Hooper.—You told us that some Circuit Court Judges objected to sit in buildings now provided for them? —That is happening.

4008. Do you think that objection is well founded?—In some cases, yes. I have in mind some buildings.

4009. Are they not in a disgraceful condition?—Absolutely disgraceful, with no sanitary arrangements, no heating and no lighting.

4010. Am I right in saying that the county councils are responsible for the upkeep of these buildings?—When you ask that, I have in mind the old courthouses. A lot of them were burnt down or destroyed. New buildings have been erected, so that to a great extent that position is remedied. Take my own town of Mountmellick, where the courthouse was burned, a new courthouse is now available for the sessions. Taking Philipstown, in Offaly, I do not for a moment suggest that the Circuit Court Judge should be asked to sit there when he can sit in other towns.

4011. Take those that were not burnt, are they not in a very bad condition?— The ones under the control of the county councils, as far as I am aware, are in fairly good order. I am talking more or less of the Midlands, as I do not know the conditions in the South and West.

4012. Are they not all under the control of the county councils?—As far as I am aware, all the county courthouses are under the control of the county councils.

4013. You agree, at any rate, that some of them are of a kind that you would not put pigs in?—I was referring to a period before the present Circuit Court came into existence. As far as I know, some of the courthouses then were in a bad condition and I heard complaints about them.

4014. So that you would agree that in these cases the county councils are not doing their duty?—Not necessarily.

4015. In what respect, would you say, they are doing their duty, while at the same time leaving the Courts in a deplorable condition?—Speaking from memory, in a number of cases the buildings are simply rented from somebody. I do not know what kind of a hold the county councils have on them. It is quite possible they might have to expend £200 or £300 in doing up courthouses on which they had no lien except a short-term lease.

4016. I am talking of the regular courthouses where the Circuit Court Judges sit. As a rule, are they not the property of the county council?—Yes, in Leix and Offaly, and also in Naas, County Kildare.

4017. So I would be correct in saying that they are not really doing their duty if they are supposed to keep the premises in a proper condition, and do not?—I would like to know the whole facts. If your question is right, I should say that they are not, but I would want to assume that the facts which you state are correct. Otherwise, the answer would be “No.”

4018. They are not doing their duty? —I would like to know the facts.

4019. You did say at the beginning, when I asked you, that a number of these courthouses are not suitable?—Yes, I thought you were referring to the old courthouses throughout each county.

4020. Not all the courthouses, as I do not know them all?—There are a number of courthouses where the District Justices sit to which the same thing applies. I hold that in the county towns the Circuit Courts are fair enough.

4021. Senator Comyn.—Is not the chief objection to the courthouses the want of heating?—The accommodation is bad in some of them.

4022. Senator Hooper.—Is there any machinery for making the county councils do their duty in that respect?—I am not aware of it.

4023. Would you think that there ought to be machinery of that kind?—I think representations to any county council would be quite sufficient.

4024. Do you suggest, although some of the courthouses are not in good condition, that no representations have been made? —I do not say that representations have not been made. In some cases the Judges have referred to the condition of the courthouses. I think where the matter has been brought before the county councils the defects have been remedied.

4025. Do you think is anything more necessary?—I cannot conceive any county council responsible for the upkeep and maintenance of a courthouse allowing it to get into bad order.

4026. On the question of costs in the High Court, in cases within the Circuit Court jurisdiction, I understand your suggestion is that Circuit Court costs should prevail, except where the Judge specifies that High Court costs should be given?—That is, in cases properly brought before the High Court.

4027. I think the present position is that the High Court costs obtain unless the Judge certifies that the case is one that should not be brought in the High Court?—I am not quite certain. If you take a case to the High Court, unless the Judge advises to the contrary, you will get High Court costs.

4028. So the real effect of your recommendation is to shift the balance and to make it a rule in future that only Circuit Court costs should obtain in these cases, instead of the present practice, as I understand it, of High Court costs obtaining, with the exceptions mentioned? —Yes.

4029. Deputy Little.—Do you think that courthouses should be under the direct control of the Department of Justice?—I would not like to answer that straight off. It probably would be the easiest way out of it. It is a question of finance. I presume it would be a matter of legislation to get authority to do it.

4030. I suppose it would require legislation, but it would be far better to have the whole thing under one control?—On the whole, I would say that the old Assize courthouses have very little wrong with them now.

(The witness withdrew.)

Mr. Wm. Carrigan, K.C., called and examined.

4031. Chairman.—You are a member of the Senior Bar and took silk in 1909?— Yes.

4032. Previous to that you were a solicitor, I understand?—Yes.

4033. You started practising in 1897?— Yes.

4034. When you were called to the Bar you went regularly on the Leinster Circuit?—Yes. I joined the Leinster Circuit at the time of my call, and continued to be a Circuiteer until the abolition of the Circuit.

4035. You were Acting-Recorder at Belfast in 1911?—Yes.

4036. For how long?—Between three and four months.

4037. Have you any views which you would like to give regarding the District Courts?—In my opinion, from what I have heard of them—I have never seen one, but I have seen the work of the District Courts—they discharge their business admirably. I think that the Courts of Justice Act has achieved a very beneficial result for the country in the establishment of the District Courts. I would make no change in the District Courts.

4038. Have you any views as to whether their jurisdiction should be increased or not?—On the civil side I think that they have precisely the jurisdiction that, having regard to the present state of affairs, they ought to have for the public convenience of those amongst whom they administer justice—£25 jurisdiction in contract and £10 in tort. I have read the Rules of Court and scale of fees, and observed the assiduity and patience with which the District Justices discharge their duties. I think the District Courts are an admirable institution and serve the country well.

4039. With regard to the Circuit Court? —The Circuit Court extends over the twenty-six counties of the Free State, and, according to the Courts of Justice Act, it was appointed with eight Judges to discharge the jurisdiction of the former Civil Bill Court, which was served by fifteen Judges throughout the twenty-six counties. The eight Judges appointed by the statute to discharge the County Court jurisdiction of fifteen County Court Judges had their jurisdiction increased six-fold on the side of contract and of tort and duplicated in respect of equity and probate. It is a jurisdiction that the facts have proved to be quite impossible to be discharged by eight Judges. The result has been that the eight Circuit Court Judges have been overwhelmed with work. They have been unable to discharge their work as Judges of first instance. The result has been that the accumulation of work has caused grave and serious delay, amounting to injustice in a great many cases to litigants, not through the fault of the Judges, not through the fault of any person individually, but owing to an enactment whereby these Courts were established with only eight Judges to serve them.

4040. You say that there is a great accumulation of work in the Circuit Court that they are not able to deal with? —A huge accumulation of work, for which it was necessary to appoint from time to time, as long as there was power under the Act of 1924, temporary Judges. Even these temporary Judges were unable to overtake the work. A period came in 1926 when no more temporary Judges could be appointed. Then the arrears further increased, and they exist to this day—not, of course, in all Courts. Speaking, as I presume you will wish me to speak, of the whole system, I say that there has never been since the initiation of the Land Court long ago, when even courthouse doors in some cases were torn down by the press of litigants seeking to gain admission to the Sub-Commission, such a mass of business flung into the Courts which the Courts have been unable to discharge.

4041. Does that obtain at present?—To a certain extent, yes. At the present time, if this Committee, having the power, would obtain a diary and a list of civil cases in the Circuit Court, they would find very grave arrears—very large arrears. Why, here in the City of Dublin, where we have not only Judge Davitt, representing the Recorder, but also, as frequently as we could, two additional Judges, last year the Circuit Court cases were in arrears over twelve months; that is, the Judge could not open his file, say, of the month of April until the April following. Now, through the constant operation of the Court in Green Street and two Courts in the Castle, these arrears have been steadily reduced, but they are not yet reduced, and they never will be reduced.

4042. Would you be surprised to know that in a return* supplied to the committee by the Department of Justice it is stated that, except in one particular circuit, the business is practically up-to-date everywhere; that is a return giving statistics of the different cases in the different circuits covering a period of three years?— My understanding of the old County Court was that every case entered for a particular Session was heard at that Session. That does not happen nowadays. I would be surprised to learn that even now in the Circuit Court it could be claimed that cases issued for the last Session occupied the time of that Session without any arrears remaining from the previous Session and were disposed of at the last Session. I am advised to the contrary.

4043. Are you talking now of Dublin or of the country generally?—Of the whole system—of Dublin and the country.

4044. You suggest that delay exists practically all over the country?—I think you may take it that what you may call the legislative notice taken of it last year, when the Dáil took power to increase the number of supplementary Judges to the Circuit Court was a recognition of the fact that eight Judges could not compete with their work.

4045. Your suggestion is that that is mainly due to the increase in the jurisdiction?—Yes. I think it would be impossible for any eight Judges to discharge such a task.

4046. You mean the jurisdiction as regards contract and tort and the others?— My criticism for the purpose of suggesting amendment is confined to contract and tort, because I must say that my experience teaches me that it is to the advantage of the people of the districts served by the Circuit Court to have as much as possible of their equity and probate cases disposed of in the Circuit Court. Equity and probate cases are cases that naturally arise within the area, and, if they are within the jurisdiction, it is very much cheaper and very much quicker to have them heard and disposed of by the Circuit Court Judge, always provided that he has the time to act as an equity Judge in such cases, which he never has when he has to discharge this monstrous task of dealing with a contract and tort jurisdiction of £300.

4047. Do you consider that if the number of Judges were increased and the circuits were not so large, it would do?— That is not my suggestion. I would not increase the Judges unduly. It may be necessary to make a slight increase, but I think that all this confusion and dislocation of business has arisen because of the de-centralisation of the business of the High Court and the abolition in the High Court itself of the Divisions that existed for the discharge of business under the old system. The law is the same, and the procedure is the same. The procedure in the High Court is now what it was before the Courts of Justice Act. The new Rules of 1926 have done no more than alter the names of the writs and forms of summons that were used for the institution of proceedings. Rule 28 of the High Court provides that the previous practice and procedure should continue to exist. It is the fact that the rules of the High Court which are now in force embody the rules under which the previous High Court acted.

4048. Do you think the absence of rules in the Circuit Court has prevented the smooth and more expeditious working of these Courts?—It is a matter of general surprise that since 1924 the Courts, then for the first time created, have been able to be conducted without having any rails laid down on which they should run. But they managed to do it, and to do it very well for the reason that there is an omnibus section in the Courts of Justice Act which says that the practice of the County Court shall apply as far as possible to the new Courts. Under that system the Judges have carried on, though there is, I am aware, some slight unconformity between several Circuit Courts, but not to any great extent. There should certainly be a short set of Rules for the Circuit Court.

4049. You spoke of the decentralisation of the Courts?—Yes.

4050. Do you consider that that decentralisation has met with the approval of the public?—I do not think it has met with their approval at all.

4051. We have got very strong evidence from, I might say, all over the country— I am thinking now of the evidence given before the Committee by various witnesses—that the public favour the present system. What is your view?—My view of the present system is the view of one who has been in practice for a great number of years, one who was bred originally in the County Courts and on the circuits and who, therefore, without presumption may say that he has a thorough knowledge of the County Court system in all its branches and on appeal. In addition to that I have had an experience over 30 years as a citizen of the country. My opinion is that the withdrawal, the practical withdrawal as it was intended to be, from the High Court of all actions in contracts and in tort amounting to £300, or not exceeding £300, has done infinite harm to the trading credit of the country and has done sore injury to the status of our Courts. Viewing the Courts as a great institution intending to discharge justice promptly, efficiently and with reasonable moderation as to costs, I found as early as 1924, in practice, that immediately after the Act was passed the trade of this country began to suffer by reason of the action taken by trade associations in England. The wholesale firms in England trading with customers in this country were advised that it was no longer possible to sue for debts, ordinary trade debts, in the same manner as in England and in Scotland. In two cases in my practice I saw letters from firms declining, with much regret, further business with valued customers with whom they had been carrying on business in Dublin for a great many years. They, as members of an association, were obliged to say that they could not for the future supply goods on the usual trade terms unless a deposit on the price of the goods was paid in advance. That was in the beginning of 1924. Within the last two years or eighteen months I have come across by accident the case of a very reputable firm in London who had a most valuable connection in the drapery trade throughout this country. They regretted very much the loss of that trade. Without knowing precisely what had happened, they knew they could no longer correspond with their Dublin agents in the case of defaults as they would if they were communicating with their agents in London. They knew there were not the same facilities in the case of having judgment obtained and execution to follow in due course. I am speaking now of the international side of the High Court. But what about the people themselves? I have known traders in the country who have suffered by the loss of credit. What has happened is that a body of other traders has grown up in the country in their place. They are a small class but a new class of middlemen. I am alluding to the drapery trade. Firms in England who used to supply traders in this country have become very chary. We have, in the country, firms becoming, as it were, a new class of middle-wholesalers. The very reputable and prosperous retail businesses in the country, in default of being able to obtain their goods direct from the wholesale firms with which they dealt before, have now to get these goods through a large wholesaler whose value to the manufacturer is that his solvency is above question and the question of litigation does not arise.

4052. You spoke about the jurisdiction up to £300 having been withdrawn from the High Court. That is not correct?—In practice it is correct.

4053. Is there anything to prevent those people proceeding in the High Court if they desire to do so?—There is. The question of the payment of costs will immediately arise. We have a rule here and if it were abolished its abolition would restore much of the freedom and liberty that have been taken away.

4054. Is it one of the High Court rules?—Yes. It is Order 28, Rule 2. and it says “Subject as aforesaid, except by order of the Court, no costs shall be allowed to a plaintiff in any action or matter commenced in the High Court which could have been commenced in the Circuit Court or District Court save such costs as would have been recoverable by the plaintiff in the Circuit Court or District Court as the case may be.” That is an innovation that was never introduced in any body of rules with which the former High Court worked in co-operation. That means that anybody who brings a High Court action for less than £300 eventually, although he succeeds, can get no more costs than would be awarded in the Circuit Court without a special order of the Judge. It means that you are driven to the Circuit Court if you do not want to risk your costs of a High Court action.

4055. Have you had any experience of foreign traders initiating actions in the High Court against country traders here for very small amounts?—Yes. It is the only way in which foreign traders in this country can recover debts promptly, and for this reason: the District Court system and the Circuit Court system absolutely prevent judgment by default without the case coming before the Court in session. I am speaking now of commercial debts. In the ordinary commercial course of business a trader in London or Dublin is owed a debt of £250, £100, £50 or any sum below £300. He must go to the Circuit Court or what was formerly the County Court and get his decree there upon evidence. Why should that be? If he were to issue a writ for the amount the defendant would never appear because he owed the money and judgment would be marked in default in the Officie. The bulk of writs were such writs for debt to which there was no answer. Judgment in default would be marked and there would be a minimum sum for costs, not exceeding £6 for the largest debt.

4056. Had you any experience of cases even prior to 1924 for sums as small as £5 being initiated in the High Court?— Yes.

4057. Do you not consider that that was an abuse of the High Court?—I do not.

4058. Let us take the case of a small trader in the country. An action is initiated in the High Court against that trader for, say a sum of £5. The defendant may have a good defence for that action. Would it not be cheaper for him to pay £5 rather than go into the High Court even if he did not owe the money?—That I take it would be an unusual case, but such things have happened and I have known them happen. What usually happens when a man issues a writ for a sum under £20 in the High Court is this—he does not get High Court costs. If the action is fought out he gets at most half costs. The defendant if he intends to fight the action need not fight it in the High Court. He has only to go before the Master and ask to have the case remitted to the Circuit Court or the County Court if he has a prima facie defence.

4059. How much would that cost him? —The cost has not to be paid by the trader but by the man who issues the writ for the £5. The question of costs would be reserved. When the County Court Judge came to deal with the question of costs he awarded the costs to the plaintiff if the defence was not a justifiable defence; otherwise he awarded the costs of remitting the motion to the defendant. It has never paid a man to sue for an unjust claim in the High Court. The same thing is dealt with in England in this way. In England the jurisdiction is limited to £100 in the County Courts. That is in a country that is much more populous and richer than ours. It was only in 1903 that the jurisdiction was raised to £50. The rule as to costs in England is that if anybody sues in respect of contract in the High Court for a sum not exceeding £20 there shall be no costs. If he sues for such a claim between £20 and £100 in the High Court he gets County Court costs. If he sues and recovers in tort under £10 he gets no costs; between £10 and £20 he gets County Court costs.

4060. You stated that this increase of Circuit Court jurisdiction up to £300 had done an infinite harm to the credit of the country—that it had cost the credit of the country much?—Yes.

4061. Can you give us information in support of that statement?—What I meant was that from information, from cases in my own practice, I find that people in this country in business connection with firms in England who supplied them with goods lost that connection by reason of the fact that, if it happened that the trader or the class of trader to which he belonged were to default in payment of the debt, the firm at the other side was no longer willing to trade with persons here, that no matter whether the persons who supplied the goods came from England or Dublin or some other part of the Free State they were put to an expense that they had not before, an expense that did not exist before. Formerly they could come to the High Court and sue for their claim. I think that has a very serious effect upon the retail trade and credit of the country.

4062. I think I understood you to say that those firms which you mentioned as having ceased to trade with this country had done so, not because they desired to do so themselves, but because an association or organisation to which they were attached had decreed that they were not to continue to trade with people in this country?—You assume that the only object of the association was that they thought they must take notice of the change of legal procedure here. What I intended to convey was that the change meant that their clients, members of the association, if they continued to give credit in Ireland would in future in defended cases have to go to the country towns in Ireland with their books and witnesses instead of having their cases disposed of as they might in Dublin or in an office of the High Court there in cases where there was no defence. The trouble is that under our system there is no power here in the Circuit Court to mark judgment by default. Every case must go before the Judge.

4063. Do you think, Mr. Carrigan, that that has led to any reduction in the volume of business done between this country and England?—I am not speaking as an economist at all. I do not know. I am glad to see that on the cattle side our trade is up very much this year. What I am thinking of is a particular class of shop we had through the country. These shops, it was acknowledged freely by people on the other side of the Channel, were conducted better than similar shops on the other side. I was speaking of the drapery trade. It was acknowledged that the people who conducted these shops throughout the country showed a much more acute and keen knowledge of the business than the people corresponding to them in England. That was because the shopkeepers here stocked goods from one end of the scale to the other. The man conducting such a shop in England had only one class of the business and had not the same wide scale. I think our Irish traders in the drapery business stood on a superior footing compared with corresponding traders in England. I am sorry to think that these people have been greatly embarrassed in their trade and business because of the loss of a valuable connection with wholesale firms in England; they have lost dealing directly with wholesale houses for goods that were never made here. In order to carry on their business they have been obliged to deal with a new class of wholesaler who is no more than a middleman on less favourable terms.

4064. Do you think that any reputable firm in Great Britain doing a valuable business in this country, with customers of such a high standing as you have mentioned, will cease to trade with these customers because of this change?—I am not speaking of individual firms. I am saying that a body dealing with the two countries, a body dealing with a particular class of wholesalers in England, has put the screw upon people who were dealing with them in this country, and that is for the reason that if they want to recover debts they are put to considerable expense in the case of a trader who defaults. As a result these people now want to get their money before they deliver the goods. I know that happens in a great many cases.

4065. You speak of the great costs incurred by those people through having to go into the District and Circuit Court with their books to prove their claims. Now in a great many cases could not the commercial traveller representing the firm in this country prove the claim?—The commercial traveller costs money. The commercial traveller has a great deal of expenses, hotel and otherwise going through the country.

4066. But is he not usually on the road? —Oh, no, sir—it is not the traveller’s business to prove a debt at all. That is the business of an accountant from the the firm. The commercial traveller knows no more than that he got an order from X. or Y. to deliver the goods. The person to prove the debts is the accountant and perhaps the man who has delivered the goods if there is not already an acknowledgment from the defendant. You can never tell where the cost of evidence will end in a disputed case.

4067. Is it not the commercial traveller the person who makes the contract and if he were instructed by his firm could he not prove the debt?—I am afraid that his evidence would be rejected because he would only know by hearsay. At all events, I am sure you appreciate that it does entail a great deal more expense to send witnesses down to a country town to prove a debt than it did to issue a writ in Dublin to which there was generally no answer. In that case the Dublin solicitor walked into the office of the Court, filed his affidavit and got his judgment. That is what happens at present in Edinburgh and London.

4068. Senator Dowdall.—You said that the Dublin Circuit Court was twelve months in arrears?—Yes, last year.

4069. Of course you are aware that there were what I might call casualities in the Dublin Courts?—Well, the Court is supposed to be conducted by one Judge and he was not a casualty.

4070. But we know that it has not been conducted by one Judge and we have the fact that there was a Circuit Judge appointed, who was ill for a considerable time, and that would of course add to the arrears?—Yes.

4071. Are you aware that Cork has not any arrears?—I know that some of the Circuit Courts are not in arrears.

4072. I will take four counties, Cork, Limerick, Kerry and Clare—those counties are now administered as far as the Circuit Courts are concerned by two Judges, where previously you had five, and notwithstanding the increase in the jurisdiction, they have their work up to date?—I am talking of the Circuit Court system. I think it will be found that there has been very grave delay up to recently and even at present there is delay when you compare it with the system it replaced.

4073. In some circuits?—Yes, in some circuits.

4074. Have you any personal experience of the Circuit Court in actual working?— No.

4075. You never appeared there?—No.

4076. So that to some extent your evidence is hearsay?—Yes. It is generally derived from my reading of the debates in the Dáil. That is my principal information.

4077. General knowledge?—Yes, in the Dáil the case was made for the appointment of special commissioners and additional Judges.

4078. You said that, notwithstanding the fact that the Circuit Court had no rules, it had done very well; though it had to run without rails it had run very well?—Yes, but of course that is an emergency and that Court should not be always in a state of emergency.

4079. The increased jurisdiction, discretion and decentralisation have done infinite harm to the credit of the country, in your opinion?—Yes.

4080. If that were so, would you not expect the volume of trade to be restricted? —I used an ambiguous word there—the word “credit.” I was speaking both of the financial trading and of the reputation of the Courts of the country which have suffered by the change.

4081. You know that the volume of imports has not decreased?—Yes.

4082. I have the return here which appeared in yesterday’s papers?—I suppose the Shannon Scheme imports were enormous.

4083. The Shannon Scheme will decrease the volume of imports, inasmuch as it will do away with the necessity for a considerable quantity of imported coal?—That is as regards the future. I should be glad to think otherwise, but I think the increase in the return published yesterday was largely due to the Shannon Scheme.

4084. The increase in imports is £1,846,000 according to the returns which were issued yesterday, and I may tell you that drapery of one sort or another is included in that. Exports are up £1,605,000, so that the damage to the commercial credit of the country does not seem to have restricted the amount of business?— I do not think those figures prove the contrary. I spoke of the commercial credit of the country, not the credit of the country as a whole. I was speaking of the business of the towns—of the retailers and their wholesalers. My experience of the towns I know intimately is that retail business has declined very much in recent years and part of that is due to the cause I mention.

4085. I happen to be Chairman of a drapery concern which employs close on 100 people?—You speak of Cork.

4086. I want to point out what may be a revelation to you. This company has a reserve fund of £60,000. It has paid a dividend on its preference and ordinary shares for over twenty-five years. I put it to you that traders in England should have no hesitation in dealing on ordinary trade terms with a firm having that financial standing?—The success of that firm is only what I would expect from your association with it.

4087. It was successful before I became associated with it. Would it surprise you to know that a trade organisation in England, in conjunction with other wholesale organisations of that sort, which had previously dealt with that firm, in the process of rationalising business tried to cut out all retail drapery concerns from direct dealing with them?—Did they succeed?

4088. No, but they tried more than once, and I have no doubt they will resume their activities?—What I am thinking of is not a great firm like yours in the great city of Cork, but of the smaller houses in the small towns which I know—to which I have travelled for twenty-five years and in some of which I have lived. I think the business of these towns is declining. I have spoken to these people, and I know that in prosperous places in which, accidentally or otherwise, the destruction of premises occurred, the premises were found not to be worth reconstruction. That is the sort of trade I speak of.

4089. Would not that be due to the enormous increase in bus traffic?—No.

4090. The bus traffic would not affect it? —No. The case I have particularly in mind arose before the buses penetrated there.

4091. The form of trade activity by these wholesalers in England which I have tried to describe to you, while not succeeding in the case of the big firms in Dublin and in Cork may possibly be successful against reputable and sound traders in places like Thurles?—I think they have another reason for it. This word “rationalising” may be the explanation of it.

4092. I call these organisations “trusts”?—I think the beginning of the blight on these small traders through the country was that the wholesale suppliers would no longer give them credit and would not carry on business with them as smoothly as before, alleging—and rightly alleging, it must be admitted—that they no longer had the simple and easy remedies that previously existed for the recovery of debt.

4093. “Simple and easy,” but costly to the man who cannot very well pay his account?—But not more costly than before. The bulk of the cases I am speaking of are not cases in which there is a defence. These latter cases can always be remitted and fought out in the local venue.

4094. What would be the cost of moving to remit a case?—At present, I think it costs only a few shillings. It comes before the Master, but I am told that, since the Rules were printed, if the Master had a case for remittal before him, he puts it in the Judge’s list for consideration. That is no more and no less than the common practice of seven years ago when these cases came before the Judge, who sent them down as a matter of course to the County Court, if there was a defence shown to the action. The costs of the original proceedings were reserved by the Judge to be finally determined by the Judge who tried the case, who would not order a defendant to pay if it were shown that the case should originally have been brought in his Court.

4095. Senator Dowdall.—Quite apart from all that, if a case were brought in the High Court twenty years ago, what would it cost to remit it?

Senator Brown.—It was measured at three guineas, or four guineas, according to whether the number of affidavits was one or two. Then it was sent down to the County Court, and the costs followed the event, in the discretion of the Judge. That was the usual practice.

Senator Comyn.—And the Judge in small cases made the plaintiff pay the costs.

4096. Senator Brown.—Frequently, or he only made defendant’s costs costs in the cause?—In the mass of cases, there was no defence and an honest man was seeking to recover his debt. Now, that man is obliged to go to the Circuit Court and to prove his debt viva voce.

Deputy Wolfe.—No.

Witness.—I thought there was no default process for debt in the Circuit Court.

4097. Deputy Wolfe.—It is very much alive. That idea is underlying all your evidence. The default procedure is alive in the Circuit Court and also in the District Court?—In the absence of Rules, I did not think it was.

Senator Comyn.—It must have been resuscitated without authority.

4098. Senator Dowdall.—To go back to the former question, whether the commercial credit of the country has been injured or not, the volume of trade last year and the year before has increased?— Does that meet the case I am presuming to suggest to the tribunal, that the abolition of the summary procedure for the recovery of non-disputed debts has caused a tightening or a refusal of credit to individual retailers in this country, to their loss? That, I submit respectfully, is not answered by saying that there has been an enormous additional export of stout or that the cattle industry or some other branch of industry has improved.

4099. I am referring to the imports. The imports have increased more than the exports?—I have nothing to offer in answer to figures except my own experience. I have had complaints, and I have mentioned two or three cases which came within my professional experience showing that the abolition of the summary process of recovering undisputed debts in the High Court has interfered very considerably with the small trader in the country.

4100. Are you aware that three years ago any woollen manufacturer in Yorkshire would supply a retailer in this country with cloth, assuming always he was satisfied he was financially sound. They usually take such precautions in trade. Are you aware that such was the practice? —I really know very little about trade.

4101. Will you take it from me that the Bradford or Yorkshire manufacturer would do so?—Certainly.

4102. He will not do so now?—If you say so, I accept it.

4103. The reason is that a combination of these mills, acting through an association, find it more economical, in the conduct of their business, to deal through wholesalers?—Which means the introduction of the middleman.

4104. Senator Dowdall.—It may mean the introduction of a middleman but it means that the book-keeping of the manufacturer is simplified and the freight on small consignments is less. It simply means that the wholesaler now gives the credit which the manufacturer previously had given.

4105. Senator Comyn.—What are the causes of that?

Witness.—If that became the general practice in the wholesale trade, there would be no longer any substantial loss caused by the absence of the summary procedure, but why it should not continue to exist for those who choose to employ it I confess I cannot see. I do not see why in this country, people should be fettered or crippled in a manner in which they are not in other places—as they are not, for instance, in Belfast or in Scotland or in England. Having had judicial experience for three or four months in Belfast, I can speak with knowledge of that centre. I dealt with between 1,000 and 2,000 cases and hundreds of those cases were for the ordinary trading debts. They were cases for less than £50 in which there was no dispute. They must come into the Judge’s Court List to be disposed of. All that the Judge and Clerk of the Peace had to do was to put their signature to the decrees and to see that the costs were correct. The costs in a £50 process were only £2 19s. 0d.

4106. Chairman.—That was not a High Court proceeding?—It was a County Court proceeding. I am speaking of the city of Belfast. I found that the bulk of the cases there were amongst the citizens themselves. Foreign plaintiffs used the High Court.

4107. But that same remedy is open to the traders in Dublin now?—I was glad to hear from you that the block in the Courts has ceased, but the traders in Dublin have been impeded up to the present year by not being able to get their cases tried because of the block in the Courts. The block in the Courts has been caused by the congestion of business in the Courts arising from the increased jurisdiction.

4108. And that could be got over by an increase in the number of Circuit Judges? —That would not be my remedy. My remedy would be to restore the status of the High Courts and keep them at their proper business by reducing this abnormal jurisdiction in the Circuit Courts to a sum not exceeding £100 in contract and in tort, leaving the equity jurisdiction and the probate jurisdiction at £1,000, but bringing back to the High Court what was, and is, in London, Edinburgh, and all the great centres of law, the proper business of that Court. We have very few cases in this country, or coming into it from outside countries, where the claims involved exceed £300.

4109. May I put a case to you? This was the case of two traders who in good faith had a dispute in the matter of a contract. The contract I have in mind was one in which I was interested myself. I may say that I was the loser. The value of the goods in dispute came to about £600. As the local Circuit Court was open to us, we both agreed that it was a fair tribunal to go before. Would you compel us to go to Dublin?—No. Anybody who consents to have his case tried in the Circuit Court, the statute says, may have it tried in the Circuit Court. I am thinking of the people who do not want to have their cases tried in the Circuit Court, of the man who comes from abroad, or the man living in one end of the country who wants to sue the defendant either in contract or in tort in the High Court. Why should he not have his case tried, as he would if he were living in any other country or in Northern Ireland, before the most experienced Judges with the assistance of eminent counsel and solicitors who practise in the High Court? Why should he not have his case tried in the High Court, and why should he be compelled to go to the Circuit Court? You misunderstood me if you thought that I would interfere with consent jurisdiction. I can well understand the advantages in Cork or on any Circuit for two litigants to agree to have their case tried at home. But I am taking the case in which people have no choice but to go to the Circuit Court except at peril of losing the fruit of their decree by having to pay the costs out of their own pockets. That is what is virtually done by Order 28, Rule 2, which gives no costs.

4110. You had been a solicitor before you were called to the Bar?—Yes.

4111. And you told us that for some years after being called to the Bar you practised in the old County Courts?—No. As a solicitor I practised in the old County Court, but after being called to the Bar I went circuit, attending the Assizes, at which appeals were then heard.

4112. Senator Brown.—You referred us to Order 28, Rule 2, of the High Court, which apparently gives no discretion to the Judge at all?—That is so.

4113. I was under the impression that that was not a hard-and-fast rule?—The grievance is that it is practically made a hard and fast rule. It provides that the giving of costs shall be in the discretion of the Master in cases coming within Order 17, Rule 2.

4114. May we take it, then, that at present there is not any discretion?— There is not.

4115. Therefore, a person cannot get more than the District Court or the Circuit Court costs, as the case may be, if he brings an action in the High Court?—He can do it at his peril. Compare the scale of costs under that Rule with the cost; under the old Rules. Before, under Order 65, Rule 4, if the parties lived in the same Civil Bill jurisdiction and the amount recovered did not exceed £20 in contract, there were no costs. If the amount recovered did not exceed £5 in tort, where the parties lived in the same Civil Bill jurisdiction, there were no costs. If the parties lived in different Civil Bill jurisdictions and recovered a sum under £20 in contract, there were half High Court costs, and if they recovered less than £5 in tort there were half High Court costs. That is to say, that the constitutional right to go to the High Court was open to everyone at no peril of the costs where a debt of more than £50 was recovered. All that has been upset, and the High Court has been in effect closed to creditors by the alteration that has been made. Is it irrelevant to say that in England, where money is cheaper than here, that £100 is the limit of jurisdiction there? Costs are allowed on the High Court scale where the sum in contract exceeds £100, and in tort the High Court costs are allowed where the sum exceeds £20. County Court costs are awarded in contract where the sum is between £20 and £100, and in tort where the sum is between £10 and £20, so that here we are forced to abandon all the advantages and rights that hitherto existed of having our cases prosecuted and conducted before the High Court with every attribute that it possesses, and obliged to go to the Circuit Court, whose Judges cannot possibly have the time to undertake all this business of being Common Law Judges. Equity Judges, Probate Judges and Appeal Judges.

4116. This suggestion has been put to several witnesses and we have their the Circuit Court as it is, that is up to £300 in contract and in tort, but have what has ben referred to as alternative opinion on it: to leave the jurisdiction of jurisdiction in the High Court worked out in this way—that if you brought an action in the High Court for a sum of £50 or over that you should be allowed to proceed in the High Court and get High Court costs as a matter of course unless the High Court Judge certified that it was an unreasonable case to bring into the High Court?—That is a rather complicated manœuvre to avoid deciding the issue, which seems to be whether this jurisdiction should be cut down to £100 or let stand at £300. It appears to me to be neither one nor the other.

4117. The system would give the plaintiff the opportunity of bringing his case to the High Court at the risk of having it held to be an unreasonable case to bring to the High Court?—No counsel or solicitor could advise a client where the risk would be so great as that and where you had nothing definite, not even the practice of the Court, to go on.

4118. We have had evidence on that and the Committee was anxious to have your opinion on it. You do not think it would work?—No, I do not think a solicitor or counsel could advise a client what to do in such a case.

4119. There is another suggestion on which the Committee would like to have your opinion. At present it is doubtful if the Master has any jurisdiction of a judicial nature at all. But supposing that he had judicial or semi-judicial jurisdiction, that you could move for final judgment in the High Court before him, and that if he were satisfied there was no defence he could give judgment, or if he were satisfied that there was a real matter of dispute that it would go automatically to the Circuit Court, do you think that such a system as that, which has been suggested, would be a workable one?—If this Rule were removed which makes the costs up to £300 on the scale of the Circuit Court costs, the system that you speak of, when you reflect on it, is re-establishing the other system. There can be no objection at all to it. Let the parties by consent go to the Circuit Court whatever be the amount in dispute, but, on the other hand, let the plaintiff have his right to sue up to £100 at the risk of the costs in the High Court as he may be advised. He cannot sue if the defendant is alert and complains: “You ought to have sued me in the Circuit Court.” The Master will decide whether it is a proper case to remit or to retain in the High Court. That was the old system. That will give back to the High Court its original jurisdiction. The High Court, of course, in its inherent right, as you and I know so well, is always very sensitive about what some of the members here are apprehensive may happen too often. Writs issued for insignificant amounts have been taken off the file, and the solicitors can be ordered to pay the costs of the writ.

Senator Comyn.—For an abuse of the processes of the Court.

4120. Senator Brown.—The Committee would be glad to hear your opinion on the present system of appeal from the Circuit Court on notes. Do you consider that a satisfactory method of appeal?— The way I would express myself about that is this: we had a system of appeal from the County Court which was a peculiarly Irish system. It was an appeal to the going Judge of Assize in which the litigants had an opportunity of having their cases re-heard. We know that they bettered their hands at both sides. Another open debate before a High Court Judge, with counsel, gave immense satisfaction, and the costs were insignificant. Having gone Circuit for twenty odd years, I would say that the average cost of an appeal was about £5.

4121. It was seldom more than £10?— It would be a very exceptional case in which the costs would be £10. Eminent counsel, according to the rules of the circuit, used to take briefs in these cases for juniors’ fees. I knew some of the most distinguished counsel in my time to take a two guinea fee at assizes when £10 10s. 0d. would be the fee paid him in Dublin. It was an admirable system, and put an end to the litigation between the parties. It was swift, because the Assizes came round twice a year. The only criticism I ever heard was that there was too great a span between July and March, when appeals from July and October sessions were heard at the following March Assizes. People complained, and rightly complained, that there was too long an interval between the County Court Judge’s decision and the decision of the Court of Appeal in the following March. The appeal was heard viva voce and cost little besides the expense of the witnesses that appeared before the Court, the case being conducted, as it would have been in Dublin, in the High Court.

4122. There was no taxation of costs?— No, the parties usually left Court satisfied. I have sometimes heard satisfaction expressed by my own clients after a long hearing of a case in which they were defeated.

4123. You would be in favour of a re-hearing as the method of appeal?—Yes, by viva voce. I think the system of shorthand notes is certainly a waste of time and money. The result of that system is a colourless unreal impression of anything that happened in Court. How are Judges that never saw these witnesses, and especially country witnesses, to decide what class of people they are that have given evidence.

4124. We know, from the practice which has been established, it does not give any appeal on fact?—No.

4125. Do you consider there should be an appeal on fact?—Yes, I am in favour of a re-hearing, as before in the nearest venue.

4126. Do you think the people of this country would be satisfied if there was an appeal on fact?—Few things puzzle people more than the disappearance of the custom of going to the Assizes and having their cases tried there. Eminent solicitors have gone into this present system of appeal. It is imagined there is some sort of conspiracy between the Circuit Court and the lawyers. People never hear of their case until some morning a letter comes through the post, twelve or eighteen months after the case was heard originally, announcing the result of the appeal.

4127. If it could be heard quickly, would that be sufficient in itself?—That would mean increasing the number of Judges.

4128. But would it give satisfaction?— I do not think so. It is a characteristic of our people that they like to have two kicks at the goal.

4129. You told us that as far as you have heard, the District Courts have done their work admirably?—Yes, I have had very large experience of the criminal side of the District Courts; their taking of depositions is admirable.

4130. That is the trend of all the evidence we have heard. Nobody has said anything but good of the work of the District Courts?—I did not know that.

4131. Might not that be due to the fact that the form of appeal is re-hearing in the Circuit Court?—It is re-hearing, and takes place after decision in the District Court.

4132. Deputy Wolfe.—You have drawn for us a picture of the Circuit Courts overwhelmed with work and accompanied with great delay?—Yes.

4133. If you found, in fact, that that picture was not so, would it alter your opinion somewhat?—You are asking me to presume something that I venture to say is not the fact.

4134. If you found that to-day, in fact, the average Circuit Court, though only in its infancy, as regards delay and arrears, compares very favourably with the old County Court, would it not, to some extent, alter your view?—It would; but I cannot conceive such a thing as a County Court discharging one branch of this business, namely, contract and tort, and then carefully administering equity, which is possibly a more important part of its business, and having time to dispose of its business properly from Sessions to Sessions up to date.

4135. Would you be astonished to know that in fact, leaving out Dublin, the Circuit Court to-day stands, as regards arrears and delay, far more favourably than the old County Court?—I would.

4136. I would imagine so. You are presuming what you think would arise? —No; I am taking the fact that additional Judges had to be appointed recently.

4137. Leaving out Dublin, I said?— Additional Judges are employed, one of them, at all events, to go round the country.

4138. Where?—To go through the country. I have known a couple of Judges—one is a temporary Judge, and they continued to be temporary Judges until a statute nipped the power of the Government to keep temporary Judges, and then there was great delay.

4139. You told us about the timidity of English traders in dealing in this country. Assuming that there was increased timidity—post-truce timidity— does it occur to you at all that that was due rather to the change of the Constitution than change in legislation?—I think English traders know no politics and care very little about them.

4140. I am not suggesting that they know anything about our politics, but do not you think that their timidity, if it exists, arises rather from the change in the Constitution?—No. Their associations brought to their attention that they would no longer have the same remedy for the recovery of debts that they previously enjoyed.

4141. You spoke of the increased expense. When you were referring to that, were you under the impression that the default system did not exist?—Yes, I was under the impression there was no default system, and unless the practice is changed, for some reason, personal service or some such, it was always difficult on technical grounds and was not adopted much under the old County Court system.

4142. Do you know all the English traders at present adopt it, and adopt it at a great saving of expense?—I was not aware of that.

4143. Take the position of the English trader, in 1914 and to-day, doing business with this country. Do you know it costs him a great deal less to-day that in 1914 when he went to the High Court with a £25 case and got judgment with £5 16s. in default?—What is the difference?

4144. The default judgment? To-day he goes to the Circuit Court and saves 50 per cent. in costs. Would you think he complains of increased expenses?—I should not think he would, but I think for the one person who has the knowledge that access to the Circuit Court is so cheap, the body of people consider the bolition of summary recourse to the High Courts is detrimental to the good credit of the country.

4145. Who are the body of the people? —The body of the traders.

4146. On this side or on the other?— On the other side. I think the people on this side should recollect that those upon the other side have been affected by it, and so it curtails credit here.

4147. Dealing with the people on this side, if you found the people on this side almost unanimously in favour of the present system would that, in any way, alter your views?—I am in favour of liberty and I am in favour of an alternative system. I think our Courts should be as facile as any other, and I do not see why they should be cribbed and narrowed in their jurisdiction by having summary remedies abolished in the High Court in cases under £300.

4148. Would you not at all give way to what the body of the people want?— How do the body of the people express their opinion?—Are there to be meetings and passing of resolutions in favour of the High Court?

4149. Assuming for the moment, that this Committee came to the conclusion, or were forced to the conclusion, that the body of the people wanted the present jurisdiction would you not give it to them? —I should be astonished if that were so.

4150. Assuming that they want it, would you give it to them?—

Senator Comyn.—People get what they want ultimately?

Senator Brown.—People get what they deserve.

4151. Deputy Wolfe.—You spoke of Order 28, Rule 2, and somebody suggested that gives no discretion to the Judge?—Yes.

4152. If I recover damages in the High Court for £100 for slander, is there no discretion to give me High Court costs? —Unless the Judge certifies.

4153. Unless the Judge exercises his discretion and gives them to me?—But there is the peril for you in your position as a solicitor, if I may presume to say so, advising your client, that you are at the discretion of the Judge.

4154. That is another question. What I want to clear up is the fact that it was suggested that there was no discretion to give costs?—That is incorrect.

4155. Is there, in fact, a discretion?— The rule implies there is. The words are “except by order of the Court.”

4156. It means that the Judge has discretion if he wishes?—Yes.

4157. You are not to take it I do not agree with you, but your suggestion is that the Judge might very well have that discretion taken away and be compelled, in a substantial case, to give costs?—Not be compelled, but that the old discretion that existed under the Rule should be substituted for the present discretion.

4158. What was the old discretion?— That costs followed the event in jury cases; the Judge had discretion in non-jury cases.

4159. In jury cases had the Judge any discretion?—Practically none.

4160. Do you suggest that at present he should not have discretion, but that costs should follow the event in substantial cases?—Yes.

4161. Leaving out the old common law procedure, and forgetting for the moment the £5 damages, and the £2 tort, what figures would you suggest to replace the old?—I would go back to the Rules as they existed before, where the amount exceeded in contract £20, and the parties did not live in the same Civil Bill jurisdiction, and in cases in tort where the amount exceeded £10 and the parties did not live in the same Civil Bill jurisdiction.

4162. In tort £10?—Yes.

4163. Where was that?—It was £5 in tort.

4164. Would you go back to that?—I would go back to that, but if you put it to me that money has depreciated—

4165. Is not that from the old Common Law Procedure Act of 1853?—Yes.

4166. A great deal of water has flowed through the Liffey since 1853?—Look at the English side of it where the jurisdiction is already limited to £100, the costs follow the event where in contract the amount recovered exceeds £20, and the costs follow the event in tort where the amount recovered exceeds £10. Why are we to be interfered with in the exercise of our discretion and why are litigants not to have the same rights and privileges as they had before?

4167. They were getting much assistance in following the English precedent. Are the circumstances different?—I do not see it except that you would imagine there should be a lesser jurisdiction in this country than in England where it is more easy to make money.

4168. In your notes you suggest that the present Circuit Court system is expensive in operation?—Yes, as compared with the County Courts. I am not going to say anything against Circuit Court costs tried in the Circuit Court. I do not say that the Circuit Court costs of first instance are excessive, but I think that the costs of Circuit Court appeals are most exhorbitant.

4169. Do you find them expensive as compared with other Courts?—In comparing the costs of the Circuit Court with the costs of the County Court.

4170. Circuit Court appeals are not part of the Circuit Court costs?—I am not going to complain about Circuit Court costs in cases proper to be tried in the Circuit Court.

4171. Does not the fact remain that, so far as the costs of any case tried in the Circuit Court at present are concerned, those costs are considerably less than they would be in any other Court?—I have never heard any complaint about Circuit Court costs as a Court of first instance.

4172. You complain of the Circuit Court costs of the appeals?—Yes, as exorbitant. I have heard of cases where the amount in issue was about £50 and the costs ultimately £200. On account of the delay that has taken place, of the 1,200 cases that came before the special Commissioners, one-third was moribund.

4173. You agree that at present the Courts of Justice Act, 1924, gives the appellant an appeal on fact which in effect he has not?—Judges of necessity can make nothing out of the notes unless it is a question of law and fact.

4174. What they have done is to take away the satutory right of appeal on fact. You disapprove of that?—Yes, on public grounds.

4175. You do not think that the old appeal system was as bad as some people paint it?—I think no better system was devised for this country, and it was devised by the people themselves.

4176. Suppose there were two Judges instead of one hearing the appeal, and that they had the benefit of the stenographer’s notes in the Circuit Court, do you think that would be an ideal form of appeal?—I would not. In trying those appeals, I think there should be two Judges on viva voce evidence without any notes. If these Judges differ, I think the case should stand by the original decision. Everything should be done to facilitate appeals to hasten their despatch and to leave them as they were before, comparatively inexpensive.

4177. Deputy Little.—Do you remember the old County Court system? Had you experience of it in several counties? —I would say, as a counsel in nine counties, that one would have a very accurate idea of the practice in each of these counties.

4178. Of the County Courts?—Yes.

4179. How many months in the year did the County Judge sit?—It depended on his Circuit. We all know that there was no more pleasant position that that of an Irish County Court Judge.

4180. It was a fairly easy time?—It was indeed. Apart from the Recorder ship of Dublin and the Recordership or Belfast.

4181. They sat for perhaps three months of the year?—About four.

4182. Is it a fair basis of comparison as compared with the Court where the State wanted to get the full value out of the judicial system? What I mean is that the County Court Judge was underworked?—He was.

4183. It is not a good basis of comparison. If you want to get the full working power out of a Judge, you would have to increase the jurisdiction both as to the amount and the area?—You have eight Judges instead of fifteen.

4184. There are ten?—There will be ten. With their jurisdiction increased to £100, having appeals from the District Court and, what I would like to emphasise, having these Circuit Court Judges who form a permanent Court sitting in a sense that County Court Judges did not, they would, each in his circuit, do what was the most important work to save expense and save the interests of the people locally in their Chancery suits, the suits they cannot avoid getting into. Where a father dies and the estate has to be divided the place to do it is on the spot where the people are living. These interminable delays would be greatly avoided if the Circuit Court Judges were given time to husband these cases themselves. What the Committee has been asking me about is cases of debtor and creditor. That is only one branch of the subject. I would say that you need have no fear in reducing the Circuit Court jurisdiction to £100, putting them on the level of English Judges, but that the Circuit Court Judges will have plenty of other useful work that commonly was not done in the County Courts and that needs badly to be done.

4185. Is your suggestion that you would in some way or another take away more of the equity business from the High Court?—No, I would leave the £1,000 jurisdiction stand.

4186. So far there has been no dissatisfaction with the Circuit Court Judges on the equity side?—No.

4187. There has been no demand that they should have more time to deal with these cases?—No demand. This Committee may afford them more time.

4188. There is no evidence to show that it would be necessary to reduce the other side of the jurisdiction in order to give them that time. The evidence we have had before us shows that in most of the courts there are now no arrears and that Judges in some of the Courts have only to sit for instance in one area during a period of two or three years for 105 days per year, in another for 142 days per year, in another for 151 days per year and yet there are no arrears?—Where are the areas in which additional Judges have to be appointed?

4189. The areas are in Dublin and in Donegal and in the midland district, where Judge Wakely sits?—However, all the time there was power to employ temporary Judges, they were kept constantly working and there was a grievance felt when that power expired in 1926, and as soon as possible the Oireachtas was invoked to empower the appointment of additional Judges.

4190. They added two more Judges?— The Circuit Court system was deficient in Judges.

4191. If there were a system of marking judgment in the Circuit Court, would that not meet a good many of your objections?—It would, but it is hardly possible for this reason, that you could only mark it where there is a central office established.

4192. The evidence is that they would be satisfied to take over such an office?— When you have the Clerk of the Peace, now County Registrar, who has taken over every power and is in future to be sheriff, who is also Chief Clerk in Chancery, who is Guardian of Minors and Lunatics, and who is the Registrar under the Registration of Title procedure, it is impossible to assign to any other official under him the power of marking judgment.

4193. Would not that be met by giving him a small increase in staff?—I think it would be most unsatisfactory; it would mean an expensive addition to the staff and the opening of a permanent office.

4194. Do you not think that, having changed the system once and having got the people accustomed to the new system, it would be injurious to change the system back?—My answer is that the people have not grown accustomed to it. They are bearing with it because they cannot remove it, but they are seeking this opportunity for an amendment.

4195. Did you hear the evidence given by Mr. Cobbe?—I heard some of it.

4196. His evidence on the question of jurisdiction was that it was unanimously the view of all the county councils that the jurisdiction should be maintained as it is?—What knowledge have the county councils of the private opinions of litigants?

4197. Would they not have a great deal more chance of getting the opinions of the people?—The county councils?

4198. Yes?—They only represent themselves. I do not think that the fact that a man is a county councillor warrants him to express an opinion on the matter at all except as an individual.

4199. Taking that together with the fact that the commercial bodies—the Chambers of Commerce and so on—also want the jurisdiction maintained, would you not take their evidence?—Of course, with the greatest respect.

4200. They take that view also?—I find it very hard to believe that the people who appear to be outraged by this system of appeal are prepared to hold public meetings to express their gratification with the extension of the jurisdiction in the Circuit Court. Of course, we all know how opinions can be organised before committees; it is part of the work of those interested to organise opinions before Parliamentary Committees such as this, and when an opinion takes the form of an expression from a county council we suspect that it is not natural.

Chairman.—Of course, it is only fair to say in that connection that Mr. Cobbe was speaking on behalf of the General Council of County Councils, representing all the councils.

4201. Senator Hooper.—Do I understand from you that you are against any kind of stenographic record in connection with the hearing of appeals?—On the hearing of appeals, yes, but I am strongly in favour of a stenographic record on the hearing of new trial motions.

4202. Could you tell us the difference? —If you have a viva voce appeal you do not want a stenographic record.

4203. It has been suggested to us that it might be a check upon perjury or upon people who wanted to mend their hands, and in that way that it would be of assistance to the Judge and to counsel that they should have these notes?—For the rare instances in which an exposure of perjury would be proved by the shorthand writer’s notes I do not think that the retention of a body of shorthand writers in the country at the cost of so maintaining them would be warranted. I think that you must leave it to the experienced Judge and the advocates before him to detect perjury on the spot. Of course, you can always rake up what a man has said. There would be a note of what he said. If he is an apt perjurer he would be sure to deny the evidence that is imputed to him in the notes.

4204. I understand that shorthand writers will be necessary in criminal cases?—Certainly. That is different.

4205. Assuming that they are kept for criminal appeals, it would not be, I suggest, a great expense to keep them for civil appeals?—I do not know that they are wanted. I do not know that there is much use in having shorthand writers’ notes. Somebody will have to pay for it, and I do not see why it should be put on the costs of civil bill litigants. They come up with their witnesses and are examined and cross-examined.

4206. So that even if the notes were available you would not favour having them?—If they were available and cost nothing they might be very useful, just as the notes of solicitor and counsel in a case might be useful, but I do not think it would be worth it to maintain a body of stenographers.

4207. But if they are maintained in any case?—It is necessary to maintain them on the criminal side.

4208. They would be available for the civil side, if necessary?—They would have to be paid for that work in addition.

4209. I take it that they have standing salaries. It has been advanced here as a rather weighty argument in favour of the reduction of the present jurisdiction of the Circuit Courts that the present system has a serious effect upon the Bar. I would like you to give us your view on that?— Well, beginning at the other end of the case, what I think has an effect on the Bar is this: it is the consequence of these changes on the High Court. Before these changes the High Court was a Court to which everybody, high and low, could resort without question, at the peril, of course, of being condemned in costs if they appeared in the High Court unwarrantably, and a case might be taken out of the High Court by being remitted. But the High Court exercised, and could not be deprived of its authority over all litigation in the country. The High Court was then divided into special branches. There was the Court of Appeal of three Judges, as now.

4210. Senator Brown.—Three permanent Judges and three others who could be brought in?—Yes, but I am speaking of the Lord Chancellor and the two Lords Justices. Then there were the Judges of the High Court. Just before the change they numbered eleven altogether, and seven of them were in the High Court. Some of these Judges had distinct duties. There were two Judges who dealt with Chancery business and nothing else, the Master of the Rolls and another Judge. The result was that they became and were specialists in Chancery matters. Cases before them were heard in the shortest possible time, because the Judge knew more about the law difficulties of the case than anybody else, hardly excepting counsel. There was a Judge specially appointed for the probate business, most important business, and he sat once in the week. That Judge was Mr. Justice Andrews, and Mr. Justice Kenny after him. Then there was a Judge who dealt with bankruptcy. These Judges, being assigned to special duties, left the other Judges free to hear jury cases and cases in the Divisional Court. What has been happening in the High Court now could never have happened then—that a Judge would be hearing common law cases today, Chancery cases to-morrow, and jury cases the next day, and before he had finished a jury case on Thursday, say, would have to rise and go on Friday to sit in some other Court. It has not infrequently happened that witnesses brought up from the country have been disbanded on Thursday night and had to return on the Monday to have the case finished. This causes great delay, dissatisfaction, and dislocation of the business of the High Court. That has been very largely caused by the High Court being converted into a Court of Appeal from the Circuit Court; the Judges’ time being spent hearing these appeals that are for ever pressing on the Court.

4211. Senator Hooper.—How does that affect the Bar?—These changes in the Court system have affected it adversely. The greater portion of the business of the High Court has been transferred to the Circuit Court and there carried out under what used to be County Court conditions. The counsel who practise in the Circuit Courts are deprived of the advantages for conducting these cases possessed by their predecessors who practised in the Four Courts and made up their cases for Court in their private studies and the Law Library. Again, the obliteration of the former divisions in the High Court has altered and confused our Law Reports and lost them the advantage of being indexed as part of the current Law Reports. The usefulness and authority of our Law Reports have diminished in consequence.

4212. You are certain that the present system will affect the Bar in the future?— I am sorry to say that it will and must, because promising young men who before spent their time in the Law Library, who had the encouragement and help of their seniors, and in due course came into practice themselves, are now attracted to the country as soon as they are called, and go from town to town like commercial travellers. They have no opportunity to make up their cases, and the serious study of law is disappearing. If it continues we will lose one of the great institutions which every country should possess, namely, a distinguished and able body of lawyers.

4213. Senator Hooper.—On the question of costs as between the High Court and Circuit Court, we have had evidence that in cases of £200 or £250 the costs would frequently be £100 higher in the High Court than in similar cases in the Circuit Court?—That might well be. It depends on the length of time which the case takes, the number of witnesses, and so forth. You can have as serious an issue involved in a case of £20 as in a case of £20,000. That is why, previous to the Courts of Justice Act here, and still in Great Britain and Northern Ireland, there is not this cleavage made as regards cases of £300 and over.

4214. We have had that from a number of witnesses. Do you think that it is quite fair to ask a client of that kind to spend that large amount?—He need not. A client can have his case tried in the Circuit Court if he likes.

4215. Are you not suggesting that the jurisdiction of the Circuit Court should be reduced to £100?—Yes, but I am leaving the power of remittal by consent everywhere.

4216. Senator Comyn.—In the High Court there was machinery whereby the defendant was allowed to lodge in Court a sufficient sum to meet the plaintiff’s claim?—Yes.

4217. Was not the result of that that a great number of cases brought in the High Court by writ never came to trial? —Yes, the money was drawn out.

4218. If you make an average, as between the costs in the Circuit Court and those in the High Court, would it not be fair to take that fact into account?—Yes.

4219. Where the money is taken out, the costs are small?—Yes.

4220. And the costs are high only where cases are tried?—Yes.

4221. Deputy Wolfe asked about the system of default civil bills being a great advantage, and you said that it broke down. Did it not break down because it was always open to the defendant to serve notice of his intention to defend, and therefore defeat the default?—Deputy Wolfe was pointing out the number of default processes in which the defendant did not give notice.

4222. Was the default process system largely resorted to?—No.

4223. It was always open to the defendant to defeat the object by serving notice to defend?—Yes.

4224. In regard to appeals, supposing the legislature came to the conclusion that, there should be an oral appeal would you think that appeals should be heard in the county towns?—Wherever it is found convenient to do so.

4225. Do you think the two Courts should sit at the same time to hear appeals just as they did under the old regime?—What would the second Court be doing?

4226. Hearing appeals?—No, I think one Court composed of two Judges would be sufficient.

4227. Supposing two Judges went round hearing appeals separately and consulted each other in regard to difficult cases, what would you think of that suggestion?—I think that that would be very unsatisfactory. Everything should be done in open Court.

4228. In regard to arrears I want to put this to you as a man of experience, no Judge likes to have arrears and if you find arrears suddenly wiped off would not that rather point to the somewhat hurried hearing of cases; is there not a tendency to have hurried hearings when there is a volume of arrears?—The Court is perhaps under pressure.

4229. That is what I mean, I do not suggest that there is anything wrong?— You cannot give justice if you do not give a patient hearing.

4230. If a Court is under pressure it cannot give a patient hearing?—I have known a Court to sit until midnight in an ordinary Civil Bill in order to give justice.

4231. Do you think it is bad to have arrears hanging over a Court?—I think that the goal to be attained is to have Circuit Court appeals disposed of before the next Court sits. I would have three sittings of the going Judges a year.

4232. Supposing small £2 or £3 cases are brought in the High Court, has not the High Court power to deal with cases of that kind?—In my experience of thirty years I never saw such a writ but I occasionally heard that a plaintiff was in Court before the Judges for an abuse of the process of the Court and I have known solicitors to be made to pay costs. The wholesale persecution of people in the country which has been suggested by the issue of such writs will never happen.

4233. The Courts have sufficient powers to deal with that already?—Yes.

4234. And, if necessary, further power can be given?—Yes and the plaintiff will suffer.

(The Witness withdrew.)

The Joint Committee adjourned at 5.30 p.m. until to-morrow at 11 o’clock.

* Appendix 2.