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MIONTUAIRISC NA FINNEACHTA(Minutes of Evidence)Dé Máirt, 4adh Márta, 1930.Tuesday, 4th March, 1930.
DEPUTY JASPER WOLFE in the Chair. Mr. P. O’Connor, Solicitor, Swinford, called and examined.5294. Chairman.—I understand, Mr. O’Connor, that you are a solicitor practising in Swinford?—Yes, I have been practising since November, 1900. I practise both in the District Court and in the Circuit Court. 5295. And you have come here representing the Mayo Sessional Bar Association?—Yes, an Association which comprises about 24 solicitors. 5296. I take it that your Association has considered this matter and that you have come here to give the Committee the result of the members’ deliberations?— That is so. 5297. Taking first the District Court, are you in favour of increasing its jurisdiction?—We are strongly in favour of increasing the jurisdiction of the District Court, both in contract and in tort. We recommend that its jurisdiction, in both, should be £50. We made that recommendation a couple of years ago. Copies of the resolution which we passed dealing with the matter were sent to the local Deputies and to the Department of Justice. 5298. In your area, are the District Courts held at places very far apart?—I live in Swinford which is in East Mayo. I suppose it is the most congested area in the entire of Mayo; that you would not have twenty farms there of over £30 valuation. 5299. The point that I am on is this: what would be the greatest distance that the District Justice would have to travel to a Court?—His headquarters are in Ballina. Swinford is seventeen miles from Ballina and Kilkelly twenty-four miles. That is twenty-four miles on one side, and then it is forty miles on another side to Belmullet from Ballina. 5300. Take the Court that is situate forty miles from the headquarters of the District Justice. Do you think it would be practicable to increase the jurisdiction of the District Court both in contract and in tort to £50, having regard to the fact that the District Justice can only sit there for one day at a time?—I think it would. 5301. But suppose the hearing of one case at that Court occupied the entire day, what would happen to the remaining cases?—If such a thing happened, the District Justice would have to adjourn them to the next Court on that day month. 5302. Did your Association consider that? We have had that question before us in regard to other areas. Has your Association considered, in the event of the jurisdiction being increased, the danger of the Courts getting congested and the inconvenience that would be caused to the public by reason of the fact that cases had to be adjourned at a Court held only monthly?—No. That has never arisen under the present jurisdiction. 5303. But do you not see that it must arise if the suggested alteration in the jurisdiction were made?—I really do not think it would arise at all. The District Courts are held monthly. In the Swinford area, we have civil business five times a year and there has never been an occasion upon which cases had to be adjourned. 5304. Take the case of Swinford, which you have just mentioned: Would the alteration, if it were made, not be likely to give rise to congestion in the Courts as well as in inconvenience to the public?—I do not think it would. If such a thing did arise, the cases could be adjourned to the next Court. What I mean is that the District Justice could hold a Court for civil business on the next Court day even though civil business had not been ordinarily fixed for that day. 5305. But does he do that?—Such a situation has never arisen. He has always been able to finish the civil business at the sittings fixed for civil business. 5306. Has it ever come under your notice in your area where a Court has had to be adjourned by reason of the fact that the District Justice was unable to finish his work on a particular day?—No. 5307. Do you find many cases within the jurisdiction of the District Court coming into the Circuit Court?—Do you mean coming, in the first instance, to the Circuit Court? 5308. Yes?—No. My experience has been that litigants avail of the District Court as being close at hand and as being a more expeditious way of righting their grievances. 5309. A certain amount of evidence has been given before the Committee suggesting that, in many areas, cases within the District Court jurisdiction are brought within the Circuit Court jurisdiction?— That has not been our experience in Mayo. 5310. And if it were your experience in Mayo, would you still be in favour of increasing the District Court jurisdiction? —I would. 5311. Would you consider the District Court a suitable Court in which to try title cases?—That was not considered by our Association, but personally I would not. On that, I am not speaking for the Association. 5312. Would you consider it a suitable Court to try difficult cases of tort?—I would. The District Justices are all trained lawyers. 5313. Have you not often come across, in the Circuit Court, cases in tort which occupied a day?—Yes, and even contract cases, too. 5314. In that event, do you not see that the difficulties, which I suggest to you, would arise if you were to transfer those cases to the District Court?—I do not think so. Take the old County Court, which had jurisdiction up to £50 in contract and in tort as well as title jurisdiction. It was very rarely that a case occupied a whole day in the County Court. 5315. But have you not seen cases in the County Court occupy the entire day? —I have, but such a thing is very unusual. 5316. If you were to transfer one of these cases to the District Court, would you not dislocate the sitting of the District Court on that day?—Yes, if such a thing happened. 5317. The whole business of the District Court would be dislocated?—Yes, but even at present you sometimes have, on the summary side of the District Court, a prosecution at the instance of the Guards which occupies a whole day, sometimes more than a day, with the result that the other cases have to be adjourned. 5318. And does not that give rise to difficulty at the present time?—It does, but it is very unusual for such a thing to occur. 5319. Do you not think that the additional jurisdiction would possibly require a more experienced staff in the District Court?—Not for the matters I mention—contract and tort. We are also strongly of opinion that the District Court should have jurisdiction as regards torts committed within its area, no matter where the defendant resides. 5320. Your suggestion is that if a Dublin man beats a Ballina man in Ballina, the Ballina man should be able to bring him to Ballina?—Yes. I would say, in a case such as you have mentioned, that the Civil Bill should be served a month before the case is heard so as to give the Dublin man a full opportunity of preparing his case. I have come across cases myself where, say, a Dublin lorry or a Dublin motor car knocked down and killed a calf belonging to a man down the country. It is very hard lines on a small farmer in the West of Ireland if in order to get proper redress for the loss he has sustained he has to come to Dublin to sue the party responsible for killing the animal. It usually turns out that it is an insurance company that is concerned, and the man has to accept an ex gratia payment. 5321. Do you not think that the opposite—that is, bringing the Dublin man down to Ballina—might also cause hardship?—I do not think so. I think that the man who wants to get legal redress should be able to obtain it. In the case that I mentioned, a small farmer in the West of Ireland, I think it is almost impossible for him to get redress if he has to come to Dublin. 5322. As regards the Circuit Court, does your Association favour the maintenance of the present jurisdiction?—We do. We favour the present jurisdiction as given by the Courts of Justice Act. 5323. In the same way, you would amend Section 52, sub-section (5) by including, if the plaintiff so elects, claims for tort, where the tort is committed within the Circuit, even if defendant does not reside within the Circuit?—I do not understand why the Circuit Court has jurisdiction as regards contract if the contract is made within its area and has not jurisdiction as regards tort where the tort is committed within its area. I cannot say whether provision for giving that jurisdiction in such cases was omitted from the Act deliberately or by oversight. 5324. Would you care to say anything else on the question of the jurisdiction of the Circuit Court?—No; we are anxious that it should be retained as at present. 5325. Does your Association hold that the present system of hearing appeals from the Circuit Court should be repealed as being dilatory, expensive and a very unsatisfactory method of ascertaining the facts of a case?—We certainly do. I think any litigant who has had experience of appeals based on the Circuit Court system would be of the same opinion. I was in a case where the plaintiff got a decree in the Circuit Court for £60, with £7 14s. costs and £3 witnesses’ expenses. The defendant appealed, and his costs of appeal as taxed against the plaintiff came to the sum of £106 10s. 1d. That did not cover the entire cost of the appeal. As claimed in the bill of costs the costs were £136 odd, and these were taxed down to £106 10s. 1d. I was in two other cases which were heard as one case. In one, the plaintiff got a decree for £10 damages for assault. The witnesses’ expenses came to £12 10s. and the costs to £1 odd. In the other case, the same plaintiff claiming against another defendant got a decree for £5 with £12 10s. witnesses’ expenses, and costs £1 odd. The defendants appealed and the decrees were affirmed by the appellate tribunal. The cases were heard as one. The bill for respondent’s costs as against the appellants came to over £100 altogether. These are cases I was in myself. 5326. Deputy Little.—When you say over £100, do you mean to both sides?— No, the respondent’s costs. There were two cases heard as one. 5327. Chairman.—Has it been your experience that actually there is no appeal on a question of fact?—That is so. A more unsatisfactory method of ascertaining the real facts of the case could scarcely be devised than the present system. 5328. How would you say that appeals should be dealt with?—I would say according to the old system, by having them tried on oral evidence in the chief town of each county. 5329. By one or two Judges?—Two would be more satisfactory, but certainly there should be a re-hearing on oral evidence. 5330. Have you considered whether the services of the stenographer should be retained?—We would prefer that they should be. 5331. Do you not think it would be a great barrier against any danger of perjury on appeal to have stenographers’ notes?—It would. 5332. Of course, you see that up to the present time there was practically no re-hearing in cases of over £50?—I do not follow. 5333. In cases outside the old County Court jurisdiction, there was no re-hearing on appeal?—That was so, but cases over £50 were generally heard before a jury. 5334. As regards the question of delay in connection with appeals, has that led to bogus appeals?—Undoubtedly, it is very unusual for an appeal to be heard before twelve months have expired under the present system. A colleague of mine mentioned the case of an equity suit heard in February, 1927, by the Circuit Court. The Order of the Circuit Court given in February, 1927, was appealed against and the appeal was heard, partly, in April, 1929, when the appellate tribunal adjourned the appeal with a view to a settlement. My colleague tells me there were three parties concerned, and he estimates the costs of the three parties as amounting to between £300 and £400 as regards appeal costs. 5335. As regards the question of delay in hearing appeals, do you recognise that that might be got rid of by increasing the number of judges in the High Court tribunal?—Certainly. 5336. And still have a re-hearing on the notes?—I do not think so. I have been present at the hearing of appeals. and on account of the appeal being taken on the notes I think the cases took twice as long as would have been the case in the ordinary way of re-hearing on oral testimony. I also believe it means much harder work for the barristers in making up the evidence from stenographers’ notes than by having an examination of witnesses viva voce. 5337. And the appeals are unsatisfactory to the litigants?—Very much so. The litigants think they have not had a re-hearing as was intended. 5338. Do you think anything will satisfy litigants but a re-hearing by viva voce evidence?—No. 5339. What do you think of pleadings in the Circuit Court?—We are of opinion that there should be no pleadings in ordinary common law cases unless the amount exceeds £100. 5340. Of course, you recognise that you have at present, or that you had in the County Court to a limited extent, pleadings. You had to give notice of your defence?—Yes. 5341. Do you think that questions of pleadings might be got rid of by increasing the number of cases in which you would have to give notice of special de fence?—I never found that there was any inconvenience up to the present on account of there being no pleadings. The usual thing that happens when a litigant has a cause for action is that he goes to a solicitor. The solicitor writes to the party against whom redress is claimed. That party consults another solicitor who writes a letter in reply. These letters amount to pleadings. 5342. Under the old County Court system, assuming you were defending a Civil Bill for a promissory note and disputed the consideration, would you not have to give notice to that effect?—It was the practice to give notice. 5343. Was it not the rule?—I cannot say as to its being a rule, but it was the practice to give notice. 5344. Under the old County Court system, if you were defending a title action for trespass and claimed an easement, was it not necessary you should give notice?—There was a rule to that effect but I think it was never complied with. Senator Comyn.—I do not think there was such a rule except in West Cork. Chairman.—It was observed strictly in West Cork. Witness.—But not in Mayo. Senator Comyn.—And not in any County Court in which I practised. 5345. Chairman.—I am speaking of a model County Court. Those notices, you will agree, were, in fact, pleadings?— They amounted to it, but nowadays it is the practice to have some correspondence beforehand. 5346. You think if the old practice was in force in Mayo it would be sufficient?— I think so. 5347. Will you agree that there might be a case in which a plaintiff would be seriously embarrassed by not hearing until the last moment the nature of the defence?—Of course, that would be so but I think the defendant by not showing his hand until the actual day would put the tribunal against him a bit. 5348. Have you not sometimes seen that difficulty met with by an adjournment?—That is so. 5349. And by using the old method of special notice and by adjournment in extreme cases, we could still get along without any pleadings?—Certainly. 5350. You suggest, in the précis of your evidence, that peace commissioners should be declared entitled to take affidavits for use in the Circuit and District Courts?—Yes, we do. 5351. Alternatively, you suggest that there should be a less expensive procedure than at present for appointing commissioners for oaths?—Yes. 5352. Would the latter meet the difficulty?—It would, if you could get them appointed cheaply. I do not know whether you know Mayo or not, but take a place like Belmullet. That is forty miles from Ballina. In the extreme north west of the county you have Crossmolina, Belmullet, Ballycastle, Killala and Bangor. Then on the west you have Achill, Ballycroy and Mallaranny. There is no Commissioner for Oaths in any of these places. 5353. I suggest to you that the matter can only be met by the first portion of your suggestion—by giving power to peace commissioners? The alternative of appointing commissioners for oaths, even at a reduced cost, would hardly be feasible in an area such as you mention? —No. I think it was a Cork solicitor who sent me a writ of summons to get served in Belmullet. The summons server’s fee amounted to fifteen shillings, and his charges for swearing an affidavit of service amounted to £3 odd, because he had to make a journey to Ballina, which is forty miles away, to the nearest commissioner. 5354. Senator Wilson.—Is there no bus running there?—This was before the buses. But even so, Belmullet is forty miles from Ballina. 5355. Senator Comyn.—In regard to the District Courts, you say that the jurisdiction ought to be increased to £50? —We do. 5356. Would you be in favour of concentrating the hearing of civil business in some of the District Courts? You have a number of District Court venues in the county of Mayo, I suppose eight or nine, some in small towns and some in larger towns?—Yes. 5357. Would you be in favour of having civil business—summonses up to £50—reserved for some of the larger centres?—As a matter of fact, in Mayo we follow that in practice. 5358. What are the large centres in Mayo?—In east Mayo, you have Swinford. Swinford area comprises the entire of east Mayo, and the other District Courts of Foxford, Kilkelly, Kiltimagh and Charlestown are, for civil business, in with Swinford. You have Killala and Crossmolina in with Ballina for civil business. 5359. Therefore, so far as that part of Mayo is concerned you would have the £50 or £40 civil bills taken before the District Justice at Swinford or Ballina? —Yes. Then Belmullet is another area. 5360. Do you think that there would be any insuperable difficulty in arranging the sittings of the District Court so that the District Justice might be able to sit on successive days at Swinford and Ballina and these big places?—I do not think there would. 5361. It could be arranged?—It could be arranged, certainly. 5362. In regard to appeals from the Circuit Court, your opinion is that the present system is absolutely unsatisfactory? —Yes. 5363. And you gave an example of £100 costs?—Yes. The ordinary small title action costs on appeal £25 a side—the smallest. 5364. You may have experience of other cases. Have you had £100 cases originating in your Circuit Court in respect of which the cost was £300 or £400? Do you recollect any case about an American cheque?—I do. 5365. What were your costs in that case for the whole thing?—That was the case I mentioned where the original party got a decree for £60, with £7 14s. costs and £3 witnesses’ expenses. That was reversed by the appellate tribunal, with costs £106. The other side then took an action and the costs in that case came to £100 odd. There was a decree for £100. 5366. So that before the dispute was settled in respect of this £100, one side had incurred costs to the extent of more than £200?—That is so, and the other side practically corresponding costs. 5367. On the question of taking affidavits, your suggestion is that the peace commissioners should have this power?— Yes. 5368. Does it not occur to you that the taking of an affidavit is a serious matter? —Yes. 5369. That matters might be put into an affidavit which might be distinctly injurious to some person and which might be very wrong?—Yes. 5370. Does it not occur to you that the person authorised to take an affidavit of that description should be a responsible person, with some legal training?—It does, but in actual practice the party taking the affidavit never knows the contents and has no idea of the contents. 5371. But still would it not occur to you that the document might be used for very serious purposes, either in relation to property or to character?—Yes. 5372. Do you not think that the person before whom a document of that kind is sworn ought to be a person of considerable responsibility?—Yes, certainly. 5373. In regard to the cost of appointing a commissioner, I suppose there is in the Belmullet area a man quite suitable and responsible enough to be made a commissioner for taking oaths and affidavits? —What we have in mind is the clerk of the District Court. We try to encourage him to go on if we can, but we have not been able to get one to go on in that area. 5374. You say that the cost of appointing a commissioner to take oaths is serious?—It is. 5375. How much might it be?—It generally comes to about £20. 5376. He is appointed by the Chief Justice?—He is. 5377. Do you not think it could be met by some arrangement whereby a commissioner would be appointed at a cost of less than £20?—I believe the practice in Dublin is to appoint him without bringing the matter into open court. 5378. You said that the District Court would be quite competent to deal with cases of contract and tort up to £50?— Yes. 5379. In regard to questions of title you did not seem to be of the same opinion?—No. I would prefer the Circuit Court. 5380. Do not most of these title cases in Belmullet and places like that relate to fences, rights of way through bogs, and things of that kind? Would you not think that a man who was competent to deal with a £50 contract case would be competent to deal with a right of way through a bog?—It would seem to follow, but I am giving you my own experience. 5381. Deputy Little.—You are not in favour of the present system of hearing appeals?—No. 5382. Is it not a curious thing that this country is the only country where two trials are necessary to hear a case? That is what it amounts to when you ask for a re-hearing?—Is that so? 5383. Would it not be a curious thing that this should be the only country in which there was a re-hearing?—Excuse me for putting the question, but is there any country where there is an appeal similar to the appeal there is at present here from the Circuit Court on stenographers’ notes? Senator Comyn.—That is the question. 5384. Deputy Little.—That is another question. I am speaking from the evidence which has come before us already? —Well, the present system is, in a number of cases, a denial of justice. Deputy Little.—In England, apparently there is no appeal on a question of fact; there is an appeal on the question of inferences from fact and on a question of law, but not on fact itself. 5385. Chairman.—In this country there is a statutory right to an appeal on fact which has been taken away from you in practice?—That is what it amounts to. 5386. Deputy Little.—Do you have many jury cases before your Circuit Court?—No; we have had very few since it started. I do not believe that we have had half a dozen in civil cases in Co. Mayo. 5387. Can you account for that?—No, I cannot give any reason for it. 5388. Chairman.—Except by suggesting that litigants look upon the Circuit Judge as a more satisfactory tribunal?—That is what I would say. I would say that the practice all over Ireland is for a person with a good case to prefer to be tried by a Judge rather than by a jury. My Association has expressed no opinion as regards a litigant being entitled as of right to a jury in civil cases. My own opinion is, as the matter stands at present and as it is interpreted by the Judges, that it is open to a litigant, say in a claim for £5 damages for assault or for a breach of warranty, to insist on a jury. I think that lends itself to gross abuse. 5389. But where would the abuse arise?—Section 94 of the Courts of Justice Act sets out that any party who has an action for an unliquidated amount shall be entitled to a jury, where he was entitled to one as of old in the High Courts. Really, that means that he can have a jury whether the Judge wishes or not. Of course, it is a more expensive mode of trial, and a more dilatory one than before a Judge, but I would say that by claiming a jury a party could put the other side to more expense. In that way it would be more unsatisfactory. 5390. Chairman.—He could do more than that under certain circumstances?— Certainly. I have never yet come across a litigant who had a good case who would not prefer to have it tried by an independent Judge, as they term it. 5391. Deputy Little.—I was under the impression that a jury was particularly good for trying cases which turned upon questions of fact?—I would not say that for local juries, for trying questions of fact. Such juries might assist the Judge to assess damages. At the same time, I wish to point out that my Association expressed no views on that. My own personal opinion is very strongly against juries. I think it is a British system. It was a success in Britain and grew up there but has never been a success here. Deputy Beckett.—It does not suit our temperament. 5392. Senator Comyn.—Curiously enough, the system started in the city of Dublin, as far as we can find out?—I thought it was a British system. 5393. The oldest records we have show that the jury system started in this city? —Was it the Normans foisted it on us? In the Brehon system, they had a Breitheamh or Judge. Senator Comyn.—An hereditary Judge. 5394. Deputy Little.—You are not in favour of pleadings?—Certainly not, in cases up to £100 in common law. 5395. The evidence before us was to the effect that pleadings defined the issue very clearly, reduced the stenographers’ notes, and the amount of evidence?—I never saw any drawback under the present system for lack of pleadings. 5396. Have you any strong reasons against pleadings?—Except that they add to the expense and trouble. In the every day case, I never saw any necessity for pleadings in the Circuit Courts, or in the old County Courts. Of course, we have them on the equity side. 5397. Senator Comyn.—In cases above £100, would you have them?—Perhaps it would be advisable to have them then. 5398. Senator Farren.—You told us that you were in favour of increasing the jurisdiction of the District Courts in contract or tort to £50?—Yes. 5399. You have a good deal of experience of the District Courts?—29 years. 5400. Are you satisfied that the present District Courts are working well?—Yes, very well. 5401. If your suggestion for increased jurisdiction was adopted, it would mean that the jurisdiction of the District Courts would be something similar to that of the old County Courts?—As regards ordinary contract and tort cases. 5402. There is an appeal from the District Courts to the Circuit Courts?—Yes. 5403. On re-hearing?—Something corresponding to the old system of appeal to the Assizes. 5404. Assuming that your suggestion was adopted, that the jurisdiction of the District Courts was increased in contract and tort to £50, and that there was a re-hearing on the oral evidence, would that put litigants in the same position they were in under the old County Court system?—It would. 5405. Would there be any necessity for a re-hearing of appeals on oral evidence in the Circuit Courts?—I do not quite follow you. 5406. As I understand it, under the old County Courts there was jurisdiction up to £50?—Yes. 5407. There was a re-hearing on appeal before a Judge of Assize?—Yes. 5408. If your suggestion to increase the jurisdiction of the District Courts in contract and tort to £50 was adopted, litigants would be in the identical position they were in before. on the re-hearing before the Circuit Courts?—They would as regards contract and tort cases. 5409. And it would not be necessary to have a re-hearing on oral evidence in the Circuit Courts?—In cases over £50 and in title cases, if there is to be an appeal at all there should be a proper appeal. 5410. Was there any appeal in the old days? Was there a second hearing from the decision of the High Court Judge?— There was by way of case stated from the Assize Judge, but very rarely. 5411. There was no re-hearing on oral evidence?—Not from the Assize Judge. I think there was a mode of appeal in equity cases, direct to the High Court from the County Court. 5412. You have in your district a number of land annuity claims by the Land Commission against tenants?—Yes. 5413. These cases are dealt with in the District Courts and in the Circuit Courts?—Mainly in the District Courts in Mayo, because the amounts are small. 5414. One Circuit Court Registrar put forward a suggestion that appealed to me. He suggested that in these claims by the Land Commission against small tenant farmers, such as there are in Co. Mayo, it is a hardship to have to bring the tenants to court and that it only increases the costs. He stated that it was mostly inability to pay that was responsible for these people not meeting their liabilities to the Land Commission. The suggestion he made was that the Land Commission certificate should have the same effect as a decree, and that the amount owing should then be paid to the Sheriff?—It sometimes happens that the Land Commission are in the wrong. 5415. But in 97 per cent. of the cases it is merely a question of inability to pay on the part of the tenants. There may be mistakes in book-keeping in some cases. Where a man has no defence, other than inability to pay, would it not save expense if the Land Commission certificates were lodged with the Sheriff? Would you be in favour of that?—I have never considered the matter. I imagine the parties themselves would like to appear, even though it meant a little more expense. It would be safer to have an opportunity of being present in Court. 5416. Why?—For fear the Sheriff might operate without their being indebted for the amount. 5417. But on receiving the certificate of the Land Commission the Sheriff would write to the tenant saying that it was lodged with him, and asking him, if he had any defence, to write back informing him of the nature of it. If the tenant had a defence, he would appear in Court?— I never considered the matter. You might say that rate collectors have powers under their warrants, and so have the income tax people. 5418. The point that appealed to me was that the tenants are often very poor people?—Yes, but there is very little added by way of costs. The Sheriff’s own costs may mean more than the costs of the decree. 5419. Is that so?—The costs of the decree are very little. 5420. If the Sheriff took the amount in instalments?—The Sheriff’s expenses for levying decrees are the main item. 5421. Chairman.—Do you not think, arising out of Senator Farren’s question, that it would be a very dangerous thing to tell the Sheriff to write to the tenants? —Yes. Senator Farren.—They cannot get rid of the land? 5422. Senator Comyn.—The Land Commission could write to a tenant in advance asking if he had any defence, and notifying him that otherwise at the expiration of ten days, they would certify the money was payable? Could that be done?—It could, but I would say that it should be proposed, if the costs were regarded as too heavy in Land Commission cases, to reduce them. 5423. Senator Farren.—You think it would be cheaper on these people?—The system would be a little cheaper but there is very little in the line of costs. The main thing is the Sheriff’s expenses which are generally pretty heavy. 5424. You said something about delay in appeals from the Circuit Court. Is it your experience that numbers of people appeal because they know there is a delay?—Yes. 5425. Could you make any suggestion to penalise people who appeal solely for the purpose of delay—because they are satisfied that their case will not come on for a considerable time?—The successful litigant at present, if he has got an order appealed against, has no stay of execution unless the appellant lodges the security for costs. 5426. Is there not a certain amount of risk?—Except in case the order of the Circuit Court was reversed he would have to pay back what he got. 5427. You are not the first witness who has told us that numbers of these appeals from the Circuit Court are bogus appeals and are merely for the purpose of delay because the parties know that they cannot be heard for a considerable time. Could you make any suggestion as to a method of penalising people who wish to abuse the privileges of the Courts?—I cannot, except not to have such appeals. Under the old system, you had appeals heard twice in the year. 5428. I am afraid we will have to wait a long time before we get rid of delays in Court?—You could not devise a better system for having delay than the present one. 5429. Are you satisfied that if you had a re-hearing by High Court Judges in the principal towns it would speed up matters?—Yes. 5430. It would be more satisfactory?— Yes. The hearing of an appeal on a stenographer’s notes is very lengthy and troublesome. Counsel who argue on such a case earn their fees. 5431. Do the people want this re-hearing?—They are not satisfied with the present system. 5432. Senator Wilson.—You say an appeal on notes takes twice as long as a re-hearing?—I would say much longer. 5433. Would that not arise from the fact that cases that are appealed on the stenographer’s notes are substantial cases up to £300?—Yes, to some extent. 5434. The cases that are appealed are generally substantial cases and you would not have as quick a re-hearing on oral evidence as you would have had in the past because the cases in the old times were only for £50?—I do not think it matters much. 5435. The weight of the case?—Yes. 5436. One of the Judges expressed the opinion that the cases are so substantial that the pace at which appeals are heard is slowed down?—I have been present at appeals and it struck me that the cases could be heard in half the time on oral evidence. 5437. Deputy Little.—Do you think the example of the income tax collector would lead one to hesitate giving the same powers to the Sheriff or the Land Commission?—I think very little saving of expense would be made. 5438. It might lead to abuse?—I think it would. The Senator pressed that it added very much to the expense. My experience is that the costs of the actual decree are very little. 5439. Do you think the pressure brought to bear by the income tax collector is more than it should be? Chairman.—Indeed it is. 5440. Senator Comyn.—Are not the costs of these Land Commission processes the same as any other processes?—Yes; they may be reduced, perhaps. 5441. Senator Wilson.—Did you ever see £3 costs in a £5 annuity?—I never did. Chairman.—Sheriff’s fees, you mean. Senator Wilson.—No. Deputy Little.—It was suggested that the Sheriff should not be paid on the basis of percentages but that the Court Messenger and the Sheriff should be paid at a fixed rate. 5442. Chairman.—That did not come before us. We have nothing to say to the Sheriff’s charges. It is outside our terms of reference?—As to the exact figures of the two civil bills I mentioned in one case there was a decree given for £10 with 19/6 costs in the Circuit Court and twelve guineas witnesses’ expenses. The defendant appealed and the respondent’s costs on appeal were £70 3s. 5d. There was a similar appeal heard at the same time; the damages in the second case were £5 with 18/6 costs and twelve guineas witnesses’ expenses. The respondent’s costs on appeal were £70 3s. 5d., that is £140 for the respondent alone for costs of appeal. 5443. Senator Comyn.—The case of the two ladies was worse?—One was £140 and the other was £106. The costs of this in the Circuit Court were 18/6 in one case and 19/6 in the other. The costs of appeal on the one side were £140. I was speaking to some District Justices as to whether they would have any personal objection to increasing the jurisdiction. They told me they would not if they could get a quid pro quo. They complain that they are not on the same basis as the Circuit Court Judges with regard to pensions. 5444. Senator Comyn.—The District Court wants to squeeze out the Circuit Court, and the Circuit Court the High Court?—Some of the District Justices have asked me to say that they should have power to impose a fine in lieu of or in addition to, imprisonment in cases of petty larceny. Chairman.—That is outside our terms of reference; we only deal with the civil jurisdiction. Mr. D. P. Forde, representing the Irish Farmers’ Union, called and examined.5445. Chairman.—You represent the Farmers’ Union?—Yes. 5445a. What is your position in the Farmers’ Union?—I am on the Executive Committee of the Irish Farmers’ Union and I am Chairman of Cork County Farmers’ Union. 5446. You carry on farming in the County Cork?—Yes. 5447. In addition to that, you are a practising member of the Bar?—Yes. 5448. You practise in the Circuit Courts throughout the city and county of Cork?—Yes. 5449. You suggest that those responsible for the Courts of Justice Act, 1924, promised that litigation would thereby be rendered efficient and inexpensive?—Yes. 5450. Dealing with the first point, do you think that the promise with regard to efficiency has been carried out?—I should say, as a whole, the Courts of Justice Act has been a success, but with regard to efficiency we, representing the farmers, say that the present system of appeal is wholly unsatisfactory. 5451. Is that the view of the Union generally?—Yes. 5452. What do you suggest should be given instead of it?—We would prefer to have a re-hearing locally before two Judges going on circuit. We also think that there is too much delay between the first hearing and the time in which the case is finally adjudicated on. We also think that the even-handed dispensing of justice is one of the most important functions of the State, and that those responsible for the administration of justice should see that the system is as nearly perfect as possible. Additional Judges for this purpose would be necessary in the interests of the general public. 5453. You point out that the Statute at present purports to give an appeal on the question of fact. There is no appeal on fact?—No. The present system of appeal is just a re-hearing on the notes. It may be admitted by Statute, but in practice it is not admitted. We think the present system is altogether too mechanical. 5454. You suggest that the Statute has practically become inoperative?—Yes, and unsatisfactory with regard to Section 61. 5455. With regard to the method of re-hearing, what do you suggest?—Just a re-hearing viva voce. 5456. Before one or two judges?—Two judges. 5457. Would you be in favour of retaining the stenographer?—On that point, we have not any strong views. We have no objection to his retention. 5458. You suggest, at all events, that the retention of the stenographer would be a check on perjury?—Yes, that is so. 5459. And do you not think that that would be a very strong argument in favour of his retention?—Yes. 5460. As regards the expense of the stenographer, you are aware that whatever method of appeal is adopted the stenographer must, as the law stands at present, be retained for the purpose of criminal cases?—Yes. 5461. So that the only additional expense put on the public would be the difference between the stenographer taking notes in criminal cases only and taking notes in all cases?—Yes. 5462. Less whatever revenue the notes would provide for the State?—Yes, it would be very small in civil and criminal cases. The cost of the stenographer, in comparison with his value, would be almost negligible. 5463. As regards the jurisdiction of the Circuit Court, are you in favour of retaining it as it is at present?—Yes, and also that of the District Court. 5464. As regards land annuitants, have you considered that matter?—Yes, we think that the costs following a decree are too high, and that in those cases judgment could be marked either in the Land Commission Office or in that of the County Registrar. Notice should be given to the defaulting annuitant, and, in view of the Constitution, whenever an annuitant desires a hearing in open Court he should get it. It is, of course, always possible for mistakes to occur in accounting. 5465. You recognise that it would be a very serious step to get a decree against an annuitant without taking him into Court?—Yes. 5466. Having considered it, do you think that an alteration should be made? —I think that when a defaulting annuitant gets notice he should have much the same remedy as in the case of the Circuit Court. He could either put up a defence or ask for time. If he is not satisfied that he is getting justice he should have the right to be heard in open Court. It would be a serious change in the present administration of justice to have a decree given more or less behind one’s back. The greatest safeguard should be given to the general public. 5467. Assuming that notice was sent to the land annuitant giving him an opportunity of signing an assent to a decree in the presence of a Peace Commissioner, would he have any grievance if he did not comply and was sued in Court?—He would have no grievance. I think that that would be a very good way to meet it, but I would insist on notice being given in time. 5468. As regards the Sheriff’s charges, you suggest that they are a very serious burden?—Yes; in addition to the costs of the Court, the general public have very serious burdens to bear. 5469. As you state, of course, that is outside our terms of reference?—Except that the act of the Sheriff is consequent on a decree of the Court. 5470. Senator Comyn.—You are satisfied that in the case of land annuity cases the costs are excessive?—Yes. 5471. You would be in favour of some method of certifying judgment in the Land Commission Office or of some less expensive method unless it was an inroad on the administration of justice?—Yes. 5472. Having regard to the fact that we have an existing practice to the effect that a civil bill can be served, called a default civil bill, containing a notification that in case the defendant wishes to defend he should so notify within ten days, do you not think that in default of such notification a decree should go as a matter of course?—Yes, and costs would follow the decree. 5473. Having regard to that, and having before you the analogy of income tax matters, would it, in your opinion, be a serious inroad on the administration of justice that the Land Commission, after due notice had been given to an annuitant. and after he had an opportunity of questioning the matter, should be entitled to certify the amount as payable?—Yes; after giving due notice and removing all possible grievance, the Land Commission could proceed in that way. 5474. That would not be a serious inroad on the rights of the individual?—No, if notice were given to the defaulting annuitant that he still had a remedy and would be allowed to go to Court. 5475. Would you leave open to the annuitant the right to come in and set aside the judgment?—Yes, but I take it he would have no need to come in if he got notice. 5476. Yes, but there might be exceptional cases?—That is so. 5477. Do you think that there is any necessity for an annuitant to go before a Peace Commissioner at all; if he writes to say that he has no answer to the claim, would his letter not be sufficient without putting him to the trouble of going before a Peace Commissioner?—Quite sufficient. 5478. Deputy Little.—But if he has no answer he probably will not write?—I would not take that view. The people I know, ordinary tenants, would be glad to pay if they could and they would write to the Land Commission in order to save costs and to get time, perhaps six or twelve months’ time to pay. 5479. Does not that occur at present? Does not the Land Commission carry on correspondence of that sort, and if a tenant shows that he has a reasonable ground for not paying and that there is a prospect of his paying eventually, they will not proceed?—Yes, but that is part of the terms of settlement. 5480. Do they not do that before it goes to the solicitor for the Land Commission? —I have known cases where the tenant did not know anything about it until he got a civil bill. 5481. If you shorten the process further he might not know anything until a decree is given?—We say that he should get notice. 5482. But he is supposed, at present, to get notice?—I know, but mistakes often happen. 5483. And the only protection he has at present is that they have to bring him into Court?—Yes. 5484. If you take away that you may open the gates to greater abuses. You say that often the first thing a man knows about it is that he gets a civil bill?—Yes, but, as I have said, if a tenant gets ample notice and if he sees that the debt is lawfully due and that he is not wronged, he has still the remedy open that if he has been wronged he need not assent to judgment being marked and he can write to the Land Commission and ask for time to pay. 5485. Senator Comyn.—He puts into his letter an admission that the debt is due?—Yes. 5486. Mr. Little.—Is not the present practice better because at present the Land Commission tries to get an arrangement with the annuitant?—Through the Courts? 5487. No, by ordinary correspondence. Suppose a tenant writes to say that, owing to the loss of cattle or some other cause, he is not able to pay but he has a reasonable prospect of paying within a year, would he not have a better chance in that case of getting an arrangement with the Land Commission than if the Land Commission marked judgment against him under your scheme?—He has still that remedy that you suggest open to him. The system which I am advocating only applies when it becomes necessary for the Land Commission to take proceedings. 5488. I think that the Land Commission at that stage would not be disposed, having marked judgment, to make any settlement?—I do not think so. 5489. Senator Comyn.—Do you not think that it would make the Land Commission hold back and that they would be much more inclined to issue a civil bill than to send an order to the Sheriff to seize?—Yes, that is the last thing they do and they will only do it when they are satisfied that the tenant will not pay. 5490. Senator Hooper.—I am interested to know why you think that two Judges are necessary to hear appeals—the old appeals were heard by one Judge?—That is in the Act, two Judges sitting in Dublin. The Circuit Court is practically a branch of the High Court. 5491. Let us assume it is?—We think for the better dispensation of justice at would be a greater safeguard to have two Judges. 5492. Is that the view of your Union?— Yes. The memorandum which I submitted here has been approved of at the annual Congress of the Farmers’ Union. 5493. We may take it, then, that the Farmers’ Union, which is out for economy in general matters, would approve of two Judges in this matter?—They have so approved. 5494. Senator Farren.—On the question of land annuities, you are aware that in places in Cork as well as in Dublin, if a person does not pay rates, the rate collector has power to make a seizure without going into Court?—Yes. 5495. Is there much difference between the non-payment of rates and the non-payment of land annuities?—They are practically the same. 5496. I am interested in this from the point of view of trying to save the poorer tenants if possible from having to pay these additional expenses and costs. Supposing the certificate of the Land Commission was sent to the County Registrar, and that the County Registrar sent a notification to the annuitant stating that the judgment would be marked against him unless the annuitant decided to contest the case in Court—is that your point?—Not quite. The very fact that the Land Commission has to send a notification to the Registrar is more or less a duplication of work. 5497. But you must admit that the County Registrar is the Sheriff?—No. They are two distinct offices at the present time. 5498. They are held in many cases by the same person?—I am not aware of it. Chairman.—That is, where the District Sheriff ceases to hold office, the office automatically passes to the County Registrar. 5499. Senator Farren.—So that we may assume that the County Registrar will be the Sheriff in all cases at some time in the future. What I had in mind was this: the Land Commission would send the certificate to the County Registrar or the Sheriff, as the case may be, and the Sheriff would then notify the annuitant that judgment would be marked against him within a certain time. That would let him know that unless he had a defence or unless he sent a notice to the Sheriff or the County Registrar that he wanted the case to go to Court, judgment would be marked against him, but if he wanted the case to go to Court that it should automatically go to Court?—If he had a defence it should go to Court. 5500. That is what I say. He would get a notification that the certificate had been lodged and that unless he was prepared to settle or had a defence, judgment would be marked against him?—I see your point but just on the matter of procedure I would be anxious to leave the Court out of it for the time being and to deal first between the two parties concerned, the Land Commission and the tenant. I would prefer that the Land Commission would write to the tenant giving him the notification. Then the tenant would have an opportunity to make terms with the Land Commission, but if they could not come to terms it would be time to mark judgment. 5501. I am not familiar with the legal technicalities?—I would like to keep the Court out of it as long as I could. 5502. I do not want to worsen the position of poor men who may be honest and hard working?—They are the ones we want to protect. 5503. Would you be in favour of some legislation which would bring that system about apart from the technicalities?—Yes, I am here in the interests of the farmer tenants. 5504. Deputy Beckett.—I take it your point is that if the Land Commission communicated with the tenant by way of registered letter and if the tenant replied in the same way it would make the thing complete and it would not be necessary to go into Court?—Yes, once you get the parties together. 5505. Could not that be done by registered letter to the tenant, of which there would be a record, and a reply by the tenant by registered letter of which also there would be a record?—Yes. 5506. That is what you want to accomplish?—That suggestion would meet the case. 5507. Senator Wilson.—Is it not the practice of the Land Commission to give seven days’ notice?—They used to give six or seven days’ notice but there were times when there was no notice. 5508. But at the present time?—Yes, they give notice. I think they used to give six days’ notice some years ago. 5509. I understand that at the present time the Land Commission gives the annuitant a certain number of days’ notice that if he does not pay up within a certain time proceedings will be taken against him. In general, he gets notice from the Land Commission?—Yes. 5510. Then has he not power to settle without going to law?—What we want to protect the tenant against is this: Suppose he does not pay, a civil bill is issued against him and a decree obtained. That decree will carry costs. We want to eliminate or reduce costs. (Witness withdrew.) Sir James O’Connor, Solicitor, Dublin, called and examined.5512. Witness.—My contribution to the labours of the Committee is a very humble one. It is aimed at speeding up Chancery procedure in a certain class of case. In order that the Committee may appreciate the suggestion I have to make, I shall take a case which is a very ordinary one in the Chancery Court. A farmer dies without making a will and he leaves on the farm his widow and young children. Everything goes on all right until the children get on in life. Then, for one reason or another, a Chancery suit is instituted. The object of the Chancery suit is to have the entire estate administered, that is to say, to have it reduced to cash and the proceeds administered according to law, that is one-third to the widow and two-thirds to the children in equal shares. At the time the proceedings are started, the widow and children are in possession and have lived on there for perhaps seven or eight years. The steps in Chancery proceedings that are necessary to turn the assets into cash and distribute them are as follows: First, the matter comes before the Judge on an Administration Summons and he makes an order for administration of the estate. The order directs certain accounts and enquiries, including, in the example I have put, an account of the widow’s dealings with the assets. 5513. Senator Wilson.—Would the widow not be the administratrix of this estate?—So she is. I should have mentioned that. Somebody must take out administration and I only just want to show how things could be shortened and cheapened for them. The Judge orders accounts and enquiries, including an account of the widow’s dealings with the assets. Next, a summons to proceed before the Examiner is taken out. The Examiner directs by whom the accounts and enquiries are to be brought in. Thirdly, they are brought in. Now I come to the point I wish to make. They generally take a very long time. The widow has never a scrap of record before her showing what her dealings with the property were after she had taken out administration. Accordingly, the account she brings in is more or less illusory. It cannot be otherwise. How can she bring in a real account when she has no materials wherefrom to frame it? However, accounts of some sort having been ultimately secured, the matter comes before the Judge for further consideration. He confirms the Examiner’s certificate and directs the farm to be sold. The farm is sold after the title has been referred to the Conveyancing Counsel of the Court. The proceeds are lodged in Court. The Examiner makes out an allocation schedule which comes ultimately before the Judge. I was in a solicitor’s office for ten years before my recent admission and I was Chancery Judge for three or four months. At one time, I had, as junior barrister, a certain amount of Chancery work and I speak with a knowledge of the subject when I say that in very many cases quite as simple in character as that I have mentioned—and that is about as simple a case as I could give—the whole procedure takes at least eighteen months. I have known many cases, cases in which there were no real complications, in which the whole business of these accounts took something like three years. I want to make a suggestion that may help to remove that. I have been nearly forty years in the profession and I have found that in most of these cases the people are honest people. In the case I have put, the widow is an honest woman doing her best for her children. Why should not the Judge have power to dispense with the taking of accounts for the seven or eight years she has been in possession? Why should he not take the assets as he finds them without any account, that is to say, in cases where no dishonesty is alleged? I would suggest that he should have the power, and even the duty, to accept the outstanding estate as representing the property of the deceased where no dishonesty is alleged or, at all events, where there is no ground for alleging it. I put myself in the position of a Chancery Judge with this power, coupled with powers I am going to suggest in a moment, and I say I would have the material facts found in the course of half an hour. For example, as to the next of kin; why have an affidavit and all this thing about going to Chambers to find that out, when the Judge by one question in Court could find it out himself? The other suggestion I make— either of them is of some value, but both together are of real value—is that there should be power in all cases to vest the entire property in some official like the Official Assignee in bankruptcy. The moment an order of adjudication is made in bankruptcy, every single bit of property vests in the Official Assignee. Something like a receiver should be appointed in Chancery so that the very day the order for administration is made a messenger could go down and see what the assets are, and, if it is desirable to have a speedy sale, a speedy sale can be had. I should imagine that if an official of that kind were to be appointed—I do not want to add to the cost of administration or suggest it if I could possibly avoid it— any estate of a simple character ought to be wound up in four or five months. Will you let me make one general observation about a matter on which I feel very deeply, that is, the delay in law. Delay in litigation is horrible, because you keep people with the dead-weight of suspense hanging over them, unable to do their ordinary work, particularly if you have a case where young people with a share in an estate are kept for over three years without knowing how much it is. These are all the observations I wish to make. If you think well of them, somebody like the Chairman could draft sections of an Act of Parliament. which I think will be necessary. There is no use leaving the matter to rule-making committees, in my opinion. 5514. Chairman.—Would you be in favour of giving the Bankruptcy Court in this country the power of administering the estate of a deceased insolvent?—Certainly. It would be much cheaper and better. 5515. That would have to be done by statute?—Certainly. 5516. You will understand that we are only concerned with the alteration of statutes, not with anything that can be dealt with by a rule?—Yes. It must be done by statute. 5517. You suggest giving the Judge power to dispense with accounts and inquiries; that will probably require a statute?—In my opinion, yes. 5518. Your suggestion is that in the administration of an estate, such as the instance you quoted, where the Judge is satisfied that there has not been an accumulation of profits by anyone he should be free to make an order dispensing with accounts or inquiries?—You have put it much better than I have. You have exactly got my point. 5519. There is this slight point against it, but it is necessarily so: the length of the trial before the Chancery Judge would possibly be longer than at present?—It would, but I think you want additional Judges. If it does involve an additional Judge, I respectfully suggest that you ought not to be too chary about it. The community is what has to be looked after, and the cost of a Judge is a comparatively trifling thing. 5520. Taking it through and through, and not making any reference to any particular Chancery Judge, are not Chancery Judges slow as a rule?—They are in general. 5521. I heard a County Court Judge disposing satisfactorily of a title case between 11 a.m. and 1.30 p.m.; he heard all the witnesses and gave a perfectly fair hearing to the case. The same case was brought before the Chancery Court, simply altering the plaintiff, with the same facts, the same witnesses and the same issue. The parties settled on the fourth day, having been practically smashed in the interval and the case being still unfinished?—The Chancery mind is sometimes incomprehensible. 5522. Senator Wilson.—In the case you quoted of the widow, would there not be a valuation of the assets at the time of the Probate?—Yes. 5523. Could not each child be given a proportion of the estate there and then? —Not there and then. 5524. It would not be realised, but it would be there?—You would have to realise it. If the widow as administratrix wanted to get a discharge from the children she would have to sell it up and could not buy it in herself; she would have to break up the whole home before the children could get it. 5525. Supposing the valuation was £2,000; one-third of that goes to the widow, and the remainder is divided between the children. Could not that be arrived at without selling up the place? —I am afraid that is impossible as the law stands. I often thought something might be done with regard to giving the Chancery Judge a discretion so as to keep the home together. That is what you are at and it has been in my mind. I have not, however, sufficiently thought it out for this tribunal. but my recollection is that when I did think of it I did not find it practicable, because, after all, the Judge will have to make an order vesting the farm, or whatever it is, in A, B, C, D, and E, and one would have as much right to it as the other. The only thing to do is to sell it. (The Witness withdrew.) The Committee adjourned at 5.10 p.m. |
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