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 Céadaoin, 5adh Feabhra, 1930.

Wednesday, 5th February, 1930.

The Joint Committee sat at 11 o’clock.

DEPUTY MORRISSEY in the Chair.

Mr. F. W. Price, K.C., Bar Council, Law Library, Dublin, called and examined.

4235. Chairman.—Mr. Price, you are a member of the senior Bar?—Yes.

4236. In what year were you called to the Bar?—In 1895.

4237. And you took silk in?—1918.

4238. I understand you represent the Bar Council, the Law Library, Dublin?— I am one of the sub-committee of four who were selected to prepare our evidence, and in that sense I have been also asked to attend here.

4239. The evidence you give before the Committee is given on behalf of the Bar Council?—Yes.

4240. I understand your evidence will deal chiefly with the Circuit Court?—Yes.

4241. Your Council recommends that the jurisdiction of the Circuit Court should be limited in contract and tort cases to £100? —Yes.

4242. Will you explain to the Committee why your Council considers that the present jurisdiction in contract and tort should be reduced?—In the first place we consider that cases of over £100 in contract and tort are cases of a fairly substantial nature, and we do not think that a plaintiff who has a case of that kind, which may involve a great deal of difficulties in law, should be deprived of the right of resort to the High Court and should be compelled to resort to what necessarily must be not quite so efficient a Court. That is one of the reasons. Another reason is that we think that these, being very substantial cases, are an unnecessary interference with the normal business of the Circuit Court, which clearly was intended to be a poor man’s Court or the Court of a man of moderate means and also a local Court. Thirdly, we think that the cost of litigating a case of this substantial nature would be very little different if litigated before a Judge without a jury or even before a Judge and a jury, than if brought, under the present system, through the preliminary hearing at which special counsel are brought down at much greater expense than that at which they would be employed in Dublin at their normal places. I may add that we do not think that this is such a very great blot on the system. The only real blot is the deprivation of resort to the High Court. If proper provision were made so as to ensure the right of a plaintiff to have his action retained in the High Court, I do not think that the Bar would be very strongly of opinion that the jurisdiction should be reduced.

4243. You say that people are deprived of their right to go to the High Court. Are they in fact deprived?—They are and I will tell you why. It might be supposed on reading the Act that if a plaintiff starts in the High Court and there is a motion to transfer to the Circuit Court, the Court would consider whether that whole case was of such a substantial and important nature that it should be retained in the High Court, and it was so decided by Mr. Justice Meredith. On an appeal, however, it has been decided by the Supreme Court that practically the Circuit Court is a Court of exclusive jurisdiction in these cases, and once it is proved to the satisfaction of the Court that the case could be litigated, no matter how important it may be, in the Circuit Court, it must refuse to give the plaintiff the right to go on in the High Court.

4244. Do you consider that the Circuit Courts have not worked well with their present jurisdiction?—I, as senior counsel, have not got so much experience of their every-day working. I only go down on large cases, and I must rely on what has been told me. I think on the whole, they have done very well, having regard to the means at their disposal, but I think in questions of law, involving difficult matters where you have to resort to libraries and to the assistance of long experienced counsel, they have not worked very well.

4245. Has your Council any information which would go to show that the people are dissatisfied with the present jurisdiction and that they would like to see it reduced?—We have not collected statistics. I daresay you would have statistics, but we would not. We can only gather opinions from our clients, and frequently I have heard complaints from clients, principally on the subject of the very long delay.

4246. A long delay in hearing?—Not so much in hearing, but the substantial cases are very often appealed. At all events you have an appeal lodged. Therefore, clients find when they start an action in the Circuit Court that it is two or three years before they get a final remedy. I shall give you an example. I only got it casually in conversation from counsel who was engaged in the case. I got his brief and got all the dates. This happened in a smallish case, a case about a right of way.

4247. Senator Brown.—In what Circuit was it?—It was in Dublin, and I think the Dublin Circuit Court has worked much more satisfactorily than the Circuit Courts in the country, for the reason that they have available libraries to which counsel and the Judges can go and they have experienced counsel at a very small figure, but even in Dublin this case occurred. It was a case in which a man purchased a house and he conceived. whether rightly or wrongly, that he had a right of way over his neighbour’s ground into the back of his premises—not a very large case. The summons was taken in the High Court on the 4th April, 1927. It was remitted to the Circuit Court on the 3rd May, 1927.

4248. It was taken in the High Court? —Yes, and there was an application to remit. It was remitted to the Circuit Court on the 3rd May, 1927. It was heard on the 24th November, 1927. I understand it was a one-day hearing, and I do not think it occupied the whole day. There is no complaint about that. Judgment, having been reserved, was given on the 20th December. From that an appeal was taken. The appeal came on for hearing in November, 1928, on the 2nd, 8th, and 30th November. May I add, incidentally, that the Judges in the High Court find it very hard to sit on consecutive days to hear these appeals. They have very often to part-hear a case, then go back to the normal business and come back at a later date and part-hear the appeal again. This appeal was heard on the 2nd, 8th and 30th November. A further appeal was taken, having regard to the important questions of law in the case, to the Court of Appeal and was heard in the Supreme Court on the 26th, 27th and 28th February, 1929, and judgment has not yet been given. In that case the costs will be enormous. If the defendant succeeds and has to get his costs against the plaintiff, the unfortunate plaintiff, who bought his house for £400 with this little right of way which he thought was attached, will probably have to sell his house for the luxury of litigating his case. That is not an abnormal case. It is a typical case. I happened to get the dates casually in conversation with counsel.

4249. Chairman.—The suggestion is that the delay would not have been so great were it not that the case was remitted to the Circuit Court?—Yes, but even if it had its origin in the Circuit Court the delay would be outrageously long. In the normal course of events if it were retained in the High Court it would have been heard within a month or two and in case of an appeal, the appeal would have reached the Court of Appeal within two months or so after the start.

4250. Would not the delay in that case have been due more to the system or mode of appeal from the Circuit Court rather than to the jurisdiction?—I think so. I think it is much more due to the mode of appeal. If it had been a re-hearing the appeal would have been probably heard in one day and within six or seven months from the start.

4251. Can you explain what is the cause of this very great delay in deciding a case in the High Court and also explain why the case when it was taken could not have been heard on consecutive days?— As regards the delay in the High Court, in these right-of-way cases, if you have a number of witnesses and every word these witnesses utter is taken down verbatim and every word of the cross-examination is taken down and then if you bring that before Judges who have not seen any of the witnesses, they will have to parse every word and every letter. Not only will it be read in opening but as I have frequently found in argument, you have to go back on the answers of witnesses and you have to repeat the evidence and construe it in such a way that a case that would have taken two or three hours in hearing, if the witnesses were heard orally, will take two to three days under the present system. I shall give you an example of a case which occurred the other day in Court. It was a small case, a charge of fraud. The evidence was not long. It took, I think, less than a day before Judge McElligott. It certainly did not take more than a day before him, but it took two long days, from morning to night, before two Judges of the High Court. They have reserved judgment in that case and I fear the result may be that they will have to send it back to be tried by the Judge over again. I mentioned in Court, and I mention it now, that it would have taken no more than two hours or at most three hours before a Judge or Judges hearing it on oral evidence. You asked also why it did not come on on two consecutive days. The reason is simply that under the present system High Court Judges have a great deal of urgent High Court work to do which they cannot omit or neglect. Judge Johnson is sitting in bankruptcy on Fridays, and some of the other Judges have to hear important cases which used to be heard by a Judge on the Chancery side of the jurisdiction. With two Judges hearing an appeal one cannot tell how long the hearing of an appeal will last. They might start it, say, on a Thursday, and might not finish it on Thursday night. Then there is an adjournment. I have been on Circuit appeals which lasted into another term before being finished. If Judges went down ad hoc and listened to those cases they could hear them, straight through.

4252. I take it that so far as jurisdiction in contract and tort is concerned, the Bar Council are in favour of reducing it to £100?—We think that a £300 case is too substantial a case in a comparatively poor country to relegate to the local Courts.

4253. I understand that the Bar also would be more or less satisfied if the litigants were not deprived, as you put it, of going to the High Court, even if the jurisdiction is left as at present?—I could not say that would satisfy the whole Bar, but from discussions I have had with members of the Bar, I think that would, to a large extent, be a remedy.

4254. Your Council, I understand, consider that the jurisdiction in equity and probate matters as regards land, the valuation should be restricted to £40?— Yes.

4255. And as regards pure personalty to £1,000?—Yes. As to the £40, one cannot help comparing things with what happened in the past. The old £30 valuation has remained, although land has, by reason of the decrease of the value of money, increased enormously in value. A farm of £30 valuation is worth now £1,000 or more. Certainly, a man with a farm of £60 valuation is apt to be regarded as an enviable gentleman on account of his wealth. Take Dublin houses. Few of us can afford to live in houses of more than £45 valuation, and a house with a valuation at £60 represents wealth. We think that litigation involving land of that value is eminently a matter for the High Court. If a person chooses the High Court and he is protected against unreasonable remitting, that may be a remedy to a large extent. The machinery of the Circuit Court is not and cannot be as effective as the machinery of the High Court in dealing with matters of equity. A farm with a valuation of £60 would be worth £2,000, and that would be a good deal of money to administer. The Clerks of the Circuit Courts are not experienced in the various matters that crop up in Chambers.

4256. The evidence we have got hitherto went to show that so far as these classes of cases were concerned they were generally very satisfactorily dealt with in the Circuit Court?—I have only the experience of some appeals from them. I have seen orders that were made in the Circuit Court which could not possibly be made if any experienced counsel had been before a Judge experienced in equity, orders which were hopelessly wrong.

4257. I understand your Council are of opinion that Circuit Courts should have no jurisdiction in winding-up cases?— Yes. That is a special line. Winding-up cases are not very common. A Circuit Court staff would probably not have a winding-up case to deal with once in ten years. There is no desire to have them done in the Circuit Courts, and there would be no advantage in it.

4258. You consider that, say, in Cork, they would not be competent to deal with winding up cases?—We state, I think, in our report that, as regards Cork and Dublin, the remarks on jurisdiction do not apply with the same force. Cork has a good law library and a good local Bar and a staff to deal with these matters. Certainly Dublin has all these. As regards the extent of jurisdiction we have found Dublin very satisfactory.

4259. Coming to the question of appeals from the Circuit Court, I understand that your Council favour an appeal by way of re-hearing before High Court Judges?— Yes.

4260. How many Judges do you suggest?—That was discussed very fully and there were very divided views on that subject. Two Judges of course are better than one, but of course two Judges will cost the State more than one. On the whole we have come to the conclusion that a re-hearing even by one Judge who would have the witnesses before him would be infinitely superior to the present system, and far cheaper to the litigants.

4261. Apart from the question of cost to the State, your Council would favour two?—Yes, as two are better than one. Occasionally some Judges are not as good as others. I was thinking over this only last night. Of all the Judges I have known on the Bench there were five or six who probably were not good Judges for trying cases on re-hearing. The majority of the Judges were splendid. With two Judges you would obviate a hurried or impatient hearing of a case, and then there has to be considered the mutual help and assistance one Judge would give another from his knowledge and experience.

4262. Senator Brown.—One Judge of appeal at Assizes was trying the small cases?—He was. I think they were models in the way they tried them.

4263. It would be a reason for having only one Judge where the jurisdiction was limited to £50. Do you think it might be limited to £300?—I do not know if a system could be suggested, by which two Judges would go to a certain town, such as Galway, and the smaller cases might be tried separately, and on special days they might be required to sit together for larger cases.

4264. Senator Dowdall.—Or by giving an option in the small cases, involving an important point, to sit together?—I think in our judicial system there is not enough elasticity as there might be, and as there is in business. I do not see any reason why small cases involving £10 or £15 should not be tried on re-hearing, where probably at the trial below they had omitted or ignored the real point of law, and where they want the witnesses. It would be a cheap way. In important cases, the Judges might arrange to sit together.

4265. Chairman.—If appeals were by way of re-hearing before one or two Judges, and the stenographer’s notes were retained?—I have thought over that, and I do not think so, on the whole. I will tell you why. I think the taking of the stenographer’s notes, and briefing them for counsel, is very expensive, almost prohibitive. I think it would cost £10 or £12 on every appeal. I have experience of the Circuit Court, of the old County Court, and of the Assizes, and I think the occasions on which you want to refer to the witnesses’ evidence on appeal are very rare. As a matter of fact, you can refer just as effectively to the notes on the brief.

4266. The notes need not be taken out unless they are required, and you might require only a portion of them?—That is so. But if they were required at all by either party, no solicitor who knew his business could avoid briefing them to counsel. They might be required suddenly by reason of a witness’s unexpected change of line, and the Court would have to be adjourned until next day, so as to get the stenographer to write out his notes. It would be a great advantage, but some advantages are too costly. I might suggest that it might be right to have the stenographer there in rare cases in which the Judge might specially require a note. Perhaps the fact that the note was there might be a check, to a certain extent, on a witness. It should be in the option of the Judge entirely.

4267. Deputy Little.—And for the Judge’s benefit?—I will give an example. Supposing a witness completely altered his evidence, and if it was suggested on cross-examination that he had done so, if he denied it, the Judge might say: “I will require the stenographer’s note of this particular witness’s evidence.”

4268. Senator Brown.—Have the stenographer there—not necessarily his note—and if that occurred the stenographer as an officer of the Court could be asked to produce the note and read it?— Yes.

4269. It is a case of retaining the stenographer more than the stenographer’s notes?—That would be possible. It should not be incumbent on the party to have to procure the note beforehand.

4270. That is not suggested?—It would be a remedy against rare cases of perjury.

4271. Deputy Little.—Might I mention that there might be a physical difficulty, as the stenographer, being an official of a lower Court, the latter might be sitting at the same time as the upper Court. He is a whole-time officer?—I believe that would happen on very rare occasions, but if by chance the Court were sitting at Galway during appeals, the cases could be postponed, and the stenographer directed to attend with his notes on a future day.

4272. Senator Brown.—And the sittings for appeals ought to be fixed for a time when the other Courts are not sitting. The ordinary Circuit Judges sit about eight months in the year?—I think they sit a little more, but that would be a matter of arrangement.

4273. Chairman.—On the question of Judges going on circuit to hear appeals how often do you suggest the Judges should go out?—Twice yearly would be quite sufficient. That would ensure a hearing at latest within six months of the original trial.

4274. You also suggest that, if it were found necessary, some Judges of the Supreme Court should go out?—I will tell you why. Of course we do not interfere in any way by suggestion or otherwise in the question as to the number of Judges, but if it were alleged that re-hearing would involve more work than the present Judges could do or if any Judge were ill, I can see no earthly reason, even in the Supreme Court of three, why one of them should not act as a substitute or some such arrangement. If the Supreme Court were increased to five, there is no reason why three could not hear unimportant cases while the circuits were out. and the other two go on circuit. It used to be done in the old days and it worked well.

4275. Do you consider that High Court Judges hearing appeals should have power to state a case?—Certainly; it would be most useful.

4276. Senator Dowdall.—Do you mean that a Judge or Judges going out on Assizes should have power to state a case?—Yes. Those cases stated very often arise from small cases, in which there might be very important questions of general law involved.

4277. Deputy Little.—They have that power at present apart from appeals?— There is not that power, but in the ordinary High Court there is an appeal on a matter of fact.

4278. Could a High Court Judge at present state a case from one he is trying in the first instance?—No. There is a full appeal.

4279. It would be a good thing to have that for all purposes?—I do not think it would, except in special cases.

4280. You would not give it in ordinary cases?—Not in the High Court. There is generally an appeal in High Court cases to the Court of Appeal. That is for the expedition of such cases.

4281. Chairman.—In your précis you state that actions started in the High Court should not be transferred to the Circuit Court unless either of two conditions is fulfilled. You set out these conditions. Will you state them so that we may get them on record?—It is obvious that the parties interested might consent to extension of jurisdiction. That is quite right, and I think no matter what the jurisdiction, if the parties consent, it should be transferred. The second is that if it shall appear to the Court, on the application of any party, that the action might have been commenced in the Circuit Court, and having regard to all the circumstances, it would not be reasonable to retain the case in the High Court. At present, once you show that the case is within the Circuit Court jurisdiction, there is practically nothing else to consider. A case might be brought in which a speedy trial is necessary. It is very urgent, and a delay of two years might ruin a plaintiff. Secondly, a case might be brought between rich and substantial people to try an unimportant question, in which the amount involved might be only £20. Take a railway company or a big business firm, where there might be an action for demurrage. They ought to be able to bring it and should not be limited by the question of jurisdiction. The Judge, at the hearing of the preliminary application would see that it was a substantial and important case, involving very important rights, not only of the litigant but of the public in general, and that it was fitting and proper that it should be tried in the High Court. It is only in cases where it is not reasonable to retain them in the High Court that they should be transferred. Might I make a suggestion which has occurred to me? It was not debated by the Bar, but I think it will be within their view. I said that there ought not to be in the Circuit Court extensive jurisdiction in High Court cases, if they are cases in which the plaintiff might reasonably expect to recover, say, £100 in a contract, or in slander expect to recover substantial damages. There ought to be the right to retain such cases. The reason I mentioned slander is that there the damages are what are called “vindictive.” No one can measure the damage caused by a slur on a person’s character. One jury might think, having regard to the vindication of the man’s character, that £20 or £30 was quite sufficient damages, while another might think £500 would be little enough. When counsel are advising in cases like that, they see that it is a pure gamble to bring it in the High Court, where the jury might give £80, but the Judge might deprive the plaintiff of the costs. I think these actions should not be remitted unless the Judge has determined that they are trivial and unfit for the High Court.

4282. I presume that would apply also to the question of the transfer to the District Court. Do you hold the same views on that?—I do not think so. I do not think the District Court and the Circuit Court have the same relation to the High Court. I think the High Court under the Constitution is the High Court to which prima facie every citizen has a right to go. As between the District Court and the Circuit Court, they are two Courts which are specially for the poorer people, and not for general jurisdiction in all cases. I do not think it applies so strongly as between the Circuit Court and the District Court. However, it is a matter, on which I as senior counsel have not much personal experience.

4283. You say that the High Court Judge sitting locally to hear appeals from the Circuit Court should also have power to hear High Court records without juries. Will you explain that?—I think that is very important in the interests of the public. Sometimes there is a case just over the jurisdiction. It depends on the jurisdiction you fix. If you fix £300 as at present, and if there was a building contract case of about £400, the Judge who was possibly sitting in the local venue might arrange to go and see the place. The parties and witnesses might come from the locality and much prefer to have it heard locally as the Judge would be there.

4284. Senator Brown.—What about a jury?—I am suggesting a Judge without a jury. I think it is important that they should have jurisdiction—it may not be exercised in many cases—to try a small record locally where the Judge and the witnesses would be there. It would, I think, be advantageous to the public.

4285. Chairman.—You suggest that the present restriction on the right of any party to a jury in contract cases should be removed?—Yes. The Bar gather their opinion from clients, and it is felt it is rather hard in cases which turn on contract that even though credibility, business custom, and character are often involved, a man who wishes to submit these questions to a jury should be deprived of that right. There is a sort of idea somehow that juries are worse than Judges and it is a sort of sop to the public to allow them to have cases tried at all by juries. I think I might usefully quote the opinion of Lord Justice Holmes on the subject. He was the embodiment, I suppose, of all common sense. He was more like a juror probably than any other Judge that sat on the Bench. He also was a very great lawyer and had very great experience. I will read what he says about juries from a reported case: “My experience is that the juries of this country are in the main as honest and intelligent as those of other countries, that although like all other human tribunals they make mistakes, such mistakes are comparatively few and in civil actions are generally capable of rectification, and that miscarriage in trials by jury can be paralleled, both in number and magnitude, by miscarriages in trials by a Judge or Judges.” I might supplement that by saying that I remember in conversation the same Judge telling me that he was of opinion that the common jurors of Dublin were even a beter tribunal than the special jurors.

Senator Brown.—That is my experience.

Witness.—I think that, say, in a breach of promise case, a contract case, or in a case about business customs, where you have businessmen doing business every day, they are a far better tribunal than a Judge, who probably knows nothing about a breach of promise, or other things like that.

4286. Senator Brown.—What is the present rule in the High Court as to the right to a jury?—In cases of contract, they have no right unless a preliminary application is made to a Judge, and he is pleased to give the right. They are very slow to do that—in fact, it is very hard to get it at all.

4287. Senator Dowdall.—Mr. Carrigan has been keeping the jurors busy in another Court?—I asked a juror how often he had to serve, and he said once in three years. They do not like serving, but it is only about once in three years that a juror is called, both in civil and criminal cases.

4288. Deputy Little.—There is a mixed panel of jurors now?—Yes, the county and city are mixed.

4289. Chairman.—You suggest that in all cases in the High Court where, by law, costs follow the event, the successful party should be entitled to High Court costs without restriction?—Yes. I might explain that. There are a number of Acts, called the Common Law Procedure Acts, which regulate, and rightly regulate, automatically what the costs shall be in certain events. For example, if it was under £20 in contract, and was within the jurisdiction of the local Court, they got no costs. It was £5 in certain other cases. A statute of that kind is all right, and the statute might be extended, having regard to the lesser value of money now, and you might say £40 or £50 in contract. What we at the Bar object to, is this: The Courts of Justice Act says that in every case tried by a jury the costs shall follow the event, but by the Rules of Court—I was a member of the Rules Committee, and did my best against it being adopted—if you do not recover over £300, you must get a certificate from the Judge as to whether you will get High Court or Circuit Court costs. You do not know beforehand, and you cannot tell what a jury might do about damages, and the Judge is given power to prevent the full costs following the event in that case.

4290. Senator Wilson.—Is it £100 or £300?—£300.

4291. Senator Brown.—It seems to have repealed the Act?

Witness.—They have put in, in order to avoid repeal, that subject to the Act that is so. I have asked eminent senior counsel to raise the point, and I think he is going to raise it, as to whether it is ultra vires. I have heard of an action of slander where more than £100 and less than £300 was recovered, where the Judge deprived the successful plaintiff of the fruits of victory by giving only Circuit Court costs.

4292. Senator Dowdall.—You cannot complain of any inelasticity in that case? —I cannot, but I object to the rule. The rule is there, and I suppose judges are following the rule by doing so. I think it is wrong. There is a reason of principle why it is wrong. Once you give the right to a jury, the jury are the persons to say whether the plaintiff or the defendant is in the right and not the Judge. It is not fair that the Judge should water down the effect of their finding by hitting the successful plaintiff because he may think he ought not to have succeeded at all. It is contrary to the principle of the liberty of the citizen who appeals to a jury. There ought to be no interference with the legal result of the verdict of a jury. It may be right or it may be wrong, but they are the people to say who is right and who is wrong.

4293. Chairman.—You also favour that in all cases, where there is a right of appeal to the High Court by way of case stated, there should be a right of further appeal to the Supreme Court?—That applies to a rather special class of cases. There are cases dealing with, say, the right to a licence, and certain revenue cases which go in the first instance before the District Justice. He states a case for the High Court on a most important question, probably vital to the existence of a licence, and there is no appeal from that to the Supreme Court, although it may decide the entire law throughout the country.

4294. You think it would be desirable that that power should be there?—I think it should be there—whether you restrict it by leave or not is another matter. There should be power, either a restricted power or a general power, to go to the Supreme Court.

4295. Chairman.—Have you any recommendation to make regarding the constitution or work of the Supreme Court? —We did not, as a Bar Council, formulate any, but I know the opinion of the Bar on the subject and I know my own opinion and can give it for what it is worth. It is this: The Supreme Court is right enough for trying matters of, say, practice and matters of importance perhaps to litigants themselves, but not matters of very general and universal importance in the Free State. It is too small a court when you come to a big question of constitutional importance or very big important actions. It is too small a court as a Supreme Court of the country and we think that there should be some power taken either to increase its number permanently, or to enable the Chief Justice to assemble a larger court to hear the more important cases. For instance, if there were the President of the High Court, if it were possible to bring him in in addition to the three Judges and some other selected Judge. I do not mean a Judge selected by statute, but the Chief Justice could find out some other High Court Judge who is not involved in the particular case; he might bring him in also so as to constitute a Court of at least five or six Judges. That would mean having five Judges of the Supreme Court, three of them sitting regularly and the other two being available for other work—something of that kind. I think in the important cases there ought to be a larger court, however you may arrive at it. The Supreme Court being the Supreme Court of Appeal in this country it sometimes happens that a previous decision of theirs, perhaps ten years ago, on more careful review of the statutes is not right; they come to the conclusion that they were wrong. They ought to have the power of reconsidering that decision, there being no further appeal from them. In the old days what was done was this: the Supreme Court or the corresponding court consisted of three Judges. They could bring in as many as six or seven Justices, the Chief Justice, the Chief Baron, the Master of the Rolls and sometimes they had the ex-Lord Chancellor, making the total up to about seven. They sat as a kind of Appeal Court on their previous decisions which they revised in order to prevent the statutes being wrongly construed. There is no such thing now; they are absolutely bound by their decision no matter how wrong it is.

4296. You think it is all the more necessary because the Supreme Court is the final Court in this country now? —I do think so. When it comes to that, I might think no court is good unless you have an appeal from it, but of course you cannot have that because cases might be going on for ever. It is extraordinary the effect of a right of appeal on any court. I think when you go to the Supreme Court it should be such a powerful court and should command so much respect that nobody would want to appeal from it.

4297. Have you thought out how many extra Judges would be required if you were to have a system of appeal by way of re-hearing—Judges going on circuit?— We have considered that. We think the present staff, in any event, whether the present or new system is in operation, is wholly inadequate. With a system of re-hearing we believe you would not require any more Judges than you have at present unless, of course, the appeals multiplied enormously. The present appeals must be heard by two Judges on notes and very often there is a two days’ hearing of a case. If those same two Judges heard the present appeals under a system of re-hearing, they would hear about three or four times as many cases in any given time. In the case of one Judge his average was five or six cases per day, taking the rough with the smooth. Of course he was a very efficient Judge and I think he was a very quick-minded man. You might take the general average at three cases per day. That would be fair for two Judges, whereas the average under the present system of appeals is not anything like that. Very often cases go on for two or three days.

4298. You are of the opinion, whether the system of appeals is changed or not, that there will be a necessity for some extra Judges?—I think under the present system the Judges are too few. Mr. Moloney, the next witness, will tell you instances of cases having to wait for a year because the parties could not get a court.

4299. Senator Brown.—On the question of the number of Judges in the High Court, assuming appeals on notes were as numerous as they are now, on the figures that we have got it looks as if it would take two Judges sitting five days a week four months in the year?—Yes, on the present system.

4300. That is apparently what the figures would show. In order to prevent delay you would have to make these appeals a first charge on the two Judges? —Yes, and have fixed times for hearing the appeals.

4302. In your opinion two additional Judges would be required under the present system?—Yes.

4303. They could not sit five days a week unless you had two extra Judges? Quite so.

4304. In your opinion it would not require any greater addition?—Certainly not. Two Judges working five days a week would probably dispose of three times the number of appeals.

4305. Certainly twice?—Yes. Of course I do recognise there will be more appeals because there is a great deal of dissatisfaction with the present system. It is not looked upon as a real appeal at all.

4306. On that question is it the opinion of the Bar—and if you cannot answer for them is it your own opinion—that an effective appeal on fact ought to be allowed in this country?—Certainly. An appeal on pure law is one of the things spoken of more by laymen than by lawyers because you cannot get pure law unless you get the facts properly ascertained on legal evidence and the legal evidence is largely composed of questions of law. You may get a jumble of facts and then you might say, “I would like to ask the witness some questions.”

4307. That is, an appeal on fact is necessary in order to have a proper appeal on law?—You cannot have a proper appeal except you have an appeal on fact and law. An appeal to the Supreme Court is an appeal on fact and on law; all the facts are before them. There is no such thing as an appeal on law to the Supreme Court; it is on fact and on law because they must have all the facts before them.

4308. Chairman.—How do they get the facts?—By the stenographer’s note and the Judge’s note. As a rule they have the stenographer there, but the parties pay for it. At the moment I am dealing with an appeal and the notes I am reading contain three thousand questions.

4309. Is not that the same system as between the Circuit Court and the High Court?—It is, but the parties in this case have £30,000 apiece to play with and the parties in the Circuit Court have not.

4310. Senator Brown.—The necessary facts for a proper decision are much more likely to be in the stenographer’s notes in a case in the High Courts than in the Circuit Courts?—Yes, because Counsel on both sides are engaged all the time and they know exactly the points at issue and they keep the case as much to the point as possible.

4311. You gave as the opinion of the Bar that the jurisdiction of the Circuit Court should be definitely diminished, definitely decreased to £100 or £150?—Yes.

4312. You also suggested as an alternative that if a concurrent jurisdiction were given to the two courts, which is not given now, the successful litigant was not to be deprived of his costs in the High Court; that is High Court costs. Unless the Judge was of opinion that it was not reasonable to bring the case in the High Courut, he should not be deprived of his costs?—My opinion is this, that the defendant ought to have power to apply to remit and show the Judge there and then that it was unreasonable to retain the case in the High Court. If he does not choose to do so and allows the case to go on in the High Court and chances his arm, then the Judge ought not have any discretion in the matter of depriving of costs because he might think that the whole verdict of the jury was unreasonable. He would try the question on whether it was reasonable to retain it, and if it was not, then he should remit it.

4313. What is the reference of the Supreme Court case which decided that there is not concurrent jurisdiction?—I can find it and I will send it to the Committee.*

4314. You suggested that if the mode of appeal were altered Supreme Court Judges might go on circuit?—Yes, some of them.

4315. And try appeals?—Yes.

4316. That would be better than letting the High Court Judges go out and making the Supreme Court Judges do the absent Judges’ work in the High Court? —The idea is that the High Court should break up and spread over the country and the Bar would follow. There should be very little High Court work done in Dublin during that time. Under a system by which the High Court should break up and go out to the country you can get a good strong Bar. They will follow the Judges. Experienced men will appear for two or three guineas whereas if you want the same man in the Circuit Court at the moment you will have to give him twenty-five guineas because he cannot come away from Dublin under a smaller fee. I have found myself ashamed of taking a case for twenty-five guineas when under the old system I would have done it for three, because then I would be on the spot and would have three or four cases in the day.

4317. You would have more than one circuit?—I would have two or three, but that would be a matter of detail. For that very reason you would have to break up the High Court for a period. I would suggest a period of about three weeks. You could take centres like Cork, Limerick, Galway and Sligo and a few other centres. I would not have them sitting in every small town simply because it happened to be a county town, because very often it would be far better if you chose a central town connected by railway and motor roads.

4318. The appeals ought to be geo graphically arranged?—Yes. For instance, if you take Galway you might have some Clare people. Now, take Roscommon in the old days. The railway station in Carrick-on-Shannon happens to be in the County Roscommon. If the stationmaster or somebody else had litigation they would see the Judges coming into Carrick-on-Shannon but they would have to travel over a large area to have their cases tried in Roscommon. Now that is absurd and the districts could be better arranged. There might be six, eight or ten centres.

4319. You have referred to an appeal from the District Court on a case stated? —Yes.

4320. Of course the District Court has the power to state a case up to £25?— Yes.

4321. It occurred to me that it might be better to confine the right of appeal to the Supreme Court to cases where leave was given by the High Court or where leave was given by the Supreme Court itself. What is your opinion on that?— Yes, it ought to be possible for the High Court to refuse leave to go to the Supreme Court with an appeal. I was thinking of licensing cases. I know that they have jurisdiction in licensing matters. Jurisdiction of £25 is not important but there is some statutory jurisdiction with regard to revenue. But most important and vital matters are stopped short in the High Court.

4322. What was occurring to me was that it would be well to put a stop to appeals in small cases?—Yes, there ought to be some controlling power in the High Court or in the Supreme Court and they ought to have the right to refuse leave to appeal.

4323. There is only one other matter that I want to ask you about. We have had a good deal of evidence that jurisdiction in equity in the Circuit Court has worked satisfactorily, particularly in the matter of time?—Yes.

4324. We have had evidence that it does not take long to wind up an equity suit in the Circuit Court—it does not take as long as it would in the High Court?—That is so.

4325. However, that is not, after all, the only advantage?—No. There are others.

4326. You said that the jurisdiction should be reduced practically to what it was before?—Well, to £1,000 having regard to the change.

4327. And the value of money?—Yes, I think they are not very good in the bigger cases.

4328. That is, the machinery is not as well constructed?—Nor the knowledge of equitable principles too.

4329. In the High Court, you have got the advantage of having a Judge who is accustomed to trying cases of that kind and who consequently has become an expert?—Yes.

4330. That is one of the things on which we have had rather favourable evidence?—Yes.

4331. Deputy Little.—You have had experience of the old County Court Judges?—Yes.

4332. And you found that they varied in policy and in their methods?—Yes, they varied very much.

4333. Without offering any criticism of the present Circuit Judges, do you not think that it is a disadvantage to continue any one of them in one particular district—do you think that in order to get a common high standard it would be well to move about the Circuit Court Judges?—Well, somebody mentioned that matter to me for my own consideration. That was not put up by the Bar Council. They had no decided opinion on it. Personally, I think if we were to have a re-hearing of appeals it would not be necessary. But I think there is grave danger when you get this appeal on notes that the Judge, if that were to continue, would get into a groove. Knowing the people well, as he does, his decision on the notes is very hard to reverse. The Circuit Court Judge would, consequently, drift into a groove and it would be well to move him about. Of course, with a re-hearing on appeal I do not think there would be any danger of what you point out.

4334. But in that case you gave us do you not think there is too much power given to litigants in the matter of appealing cases to ruin themselves?—£400 costs was mentioned and in that particular case he succeeded in establishing a right of way to the ruin of his neighbour’s avenue. I think personally that the decision on appeal was quite wrong. I think if you had only a Court of first instance in that case it would be wrong.

4335. Would you limit the appeals to one Court above the Court of first instance?—What we recommended originally was an appeal to one Court above the Court of first instance. It is only in very rare cases where there is a point of law raised that there was an appeal by way of case stated.

4336. So that you would allow only one appeal and a further appeal on a case stated?—Certainly.

4337. Would you consider it a satisfactory thing if you had one High Court Judge and one Circuit Court Judge to hear viva voce appeals?—I think from a practical point of view, that would be difficult. If the Court went out in March you would take the Circuit Court Judge away from his own work and it is an invidious thing to ask one Circuit Court Judge to take part in appeals from another Circuit Court Judge. Besides, you get High Court Judges who are accustomed to dealing for nine or ten months of the year with intricate questions of law. You allow the citizen to resort to the High Court, and if you give him an appeal from one Circuit Judge to another Circuit Judge, you are keeping him out of the High Court altogether. In that case he never sees the High Court Judge at all.

4338. If your suggestion is adopted you would have the High Court Judges spread out over the country for a short period?—Yes, for a short period. If you had six Judges going out—three sets of two each—I think you would find that they would cover the work in three weeks. I think that would be adequate.

4339. But then you mentioned that they would sit twice a year?—Yes.

4340. That would be three weeks twice a year for the High Court Judges?— Yes.

4341. Would that cut across the High Court work very much?—If it were known beforehand that during those three weeks the Judges would be away on circuit I do not think it would. Everybody would go down to the country —the Bar and the Judges—and do their work there. I do not think it would do as much harm as the present system.

4342. Senator Brown.—Those six Judges would come back to their work in the High Courts in Dublin afterwards?

Deputy Little.—Let us hope they would all come back.

Witness.—Probably it would be necessary to send out four sets of two Judges.

4343. Deputy Wolfe.—You stated, Mr. Price, that there was very little difference in the matter of costs at present between non-jury cases in the High Court and cases in the Circuit Court?—Yes.

4344. Where did you get that?—I previously got it from solicitors who told me that Circuit Court costs amount sometimes to £100 and sometimes up to £150 in cases where there is an appeal.

4345. I am not talking of appeals?— Well in the Circuit Court alone there are very high expenses in the way in which I have already told you. You have a very important case in the Circuit Court and sometimes people are fools enough to want Counsel down from Dublin and if they do get them they pay 25 guineas.

4346. Out of their own pocket?—Yes, out of their own pocket. If these cases were going on before a Judge without a jury the same Counsel would take six guineas.

4347. Take ordinary non-jury cases in the High Court and take cases in a circuit like Cork. Do you not think there is still a wide difference—where Counsel are on the spot? Would not the cost be half a dozen times as great in the High Court? —There is a great difference but it would not be half a dozen times. I do not tax costs but I do not think it would be anything like that. The State makes a profit out of that. There is the stamp duty.

4348. Prior to the passing of the Courts of Justice Act, plaintiffs in this country had a statutory right to costs subject to certain statutory exceptions?—Yes.

4349. In fact, the law has repealed that statutory right to a large extent?—It has.

4350. The position now is that the plaintiff in the High Court cannot get costs in an action unless he recovers a sum in excess of the Circuit Court jurisdiction or unless by Order of the Court?— I do not know what the exact amount is. I have been discussing the amount pretty often, so often, that I am not now certain of the exact figure. The Advisory Committee that sat before the Act was passed mentioned £100 but under the Rules it is put at £300.

4351. Do you agree that, without a statutory enactment, under the common law a claimant was entitled to recover damages in tort for £5 or even £2?—I think so. We were going to put in a recommendation on that point but that would be going into outside matters.

4352. This is still on the statute book? —Yes.

4353. Do you think that that statute might be usefully repealed?—Well, it might be repealed and you would have to pass another.

4354. You suggest that having repealed it it would be necessary to re-enact fresh legislation and give back to the plaintiff the statutory right to costs?—Certainly.

4355. Your suggestion is that the plaintiff who seeks a remedy in the High Court should have a statutory right to costs where he recovers a fairly substantial amount?—Yes, in jury cases.

4356. For instance, in tort, if he recovers £100?—Yes.

4357—Without any order from the Judge?—Yes, certainly.

4358. Generally speaking, both in the County Court and in the High Court did not the taking of the discretion as to costs from the Judges work well?—I think so.

4359. As a general rule it was found in practice that giving a man a statutory right as to costs, apart from any special order made by the Judge, worked well?— Yes. I might mention the reason for that. It was this: The origin of that was that the Irish members did not like the discretion being given to the Judges. That has been continued deliberately by the Oireachtas.

4360. It has worked well but repealed in practice by the rules?—Yes, I protesting.

4361. Now there is only just one question about the stenographer’s notes. You speak of the expense at present of the stenographer’s notes. Do you agree that the stenographers will have to remain in the Circuit Court?—I think it would be useful.

4362. Having regard to the criminal jurisdiction of the Circuit Court?—The stenographer would have to be retained for the criminal jurisdiction.

4363. So that keeping them there would only add to the present cost of the criminal court the civil costs?—That is so.

4364. From that would have to be taken, again, the revenue got from the copies of the notes which he issues?— Yes.

4365. So that the net cost, you would find, would not be as much as you might at first think. As regards the cost of the briefing, which I think you had in mind, assuming you reverted to something like the old system, would it not follow almost inevitably that there would be no such thing as taxation of costs— that costs would follow a scale as they did in the old Assize Courts?—I think it would be right that they should, but I do not say that they would follow inevitably.

4366. In practice, would not taxation be very cumbersome, slow and costly?— I would much prefer the scale.

4367. Would it not be almost essential to get rid of taxation?—In the higher cases, cases over £100, if you kept the jurisdiction at £300, I would have taxation of costs. In that class of case, there might be very special expenses in the way of briefing and preparing evidence which your scale would not meet.

4368. Do you know how much it costs at present, on the average, to get a copy of the stenographer’s notes?—I do not.

4369. Something like 30/-. That does not look very excessive?—No.

4370. If you had taxation by scale, as you would have in most cases, 30/- would be the cost for the entire note to the litigant?—No, because you have to brief that.

4371. If you have a scale of costs, the briefing would cost the litigant nothing? —Somebody has to pay for the briefing.

4372. The solicitor has to take his chance as regards the brief. If there is a scale of costs he gets paid for the large brief as well as for the small one? —Somebody has to pay for it, whether the successful or the unsuccessful party. Somebody must pay the solicitor.

4373. In the old days it was the solicitor who had to pay for it?—If solicitors are of such a benevolent turn of mind that they like to pay for such things, it is all right.

4374. Do you think it is unfair?—I think it is.

4375. As regards the winding-up of companies, you are in favour of repealing that provision?—I do not see that it serves any useful purpose.

4376. I understand that that would require special machinery and a judge who had some experience of the winding-up of companies?—Yes; it is a very technical thing.

4377. You would want a county registrar who would have some experience of the winding-up of companies?—Yes. A man cannot obtain that experience if he has only one case in ten years.

4378. You might even find a barrister who had no experience of winding-up companies?—You have one here who has very little experience of that class of work.

4379. If you had a Judge who knew very little about the winding-up of companies, a county registrar who knew less, a barrister who knew less and a solicitor who was absolutely ignorant of it, the winding-up might lead to chaos?—The company would be wound-up in a curious way.

4380. Senator Dowdall.—You favour an appeal to one or two High Court Judges and a re-hearing?—An oral re-hearing.

4381. I understood from you that you do not favour the retention of the stenographer’s notes on account of the expense?—You mean in combination with the oral re-hearing?

4382. Yes?—I do not see anything objectionable in having the stenographer’s notes available to the Judge if he requires them. But if they are to be read out by the parties at the hearing of the appeal, I entirely object.

4383. I quite appreciate that objection but we have had evidence here that in the old days, at the Assize re-hearing, the case was altered and a different case presented from that which was presented in the County Court. The evidence was not the same as that brought forward in the court of first instance?—I have had experience of both County Court and Assize Court for twenty-five years. I have appeared in a great many county courts and before a great many Judges on appeal. The number of cases in which the evidence was altered, in the sense that the appeal was contrary to the evidence given in the court below, was not many.

4384. I may say from my experience that I agree with you?—In the rare cases where a man attempted to alter his evidence, it was found out. Under the present system, the man who has made a false case below has it printed beautifully on the notes and no human being can check him or find out whether he has made a false case or not. The other system was a most admirable system. In the re-hearing, you had a check on false evidence. You were able to check a man who had absolutely falsified his case by sending for another witness and blowing his case sky high.

4385. You know that the Circuit Courts have been proceeding without rules or pleadings?—Yes.

4386. And, accordingly, counsel appearing in the Circuit Courts, lest a point should be made which would be valuable on appeal, ask many more questions than would be necessary if the issues were narrowed by a simple pleading?—Pleadings would help of course, but pleadings do not narrow the issues very much. A man pleads everything and the other man pleads everything on the other side. The issues are narrowed more by discovery and particulars and matters of that kind than by pleadings.

4387. If the rules provided for these matters and the issues were narrowed, the number of questions would be considerably smaller?—Yes.

4388. And the shorthand notes would be restricted?—Yes.

4389. The expense would be less?—The expense of all the other preliminary proceedings would be considerable. The expense of getting pleadings and direction of proofs and preliminary matters of that kind is not negligible.

4390. If those matters were arranged by scale on a reasonable basis, would it not meet the difficulty?—The instructions you will get will bear a certain proportion to the scale fee. If you want to get directions from counsel and if you desire to have discovery and all these other things, you will have to pay the requisite amount. Under the old system the first hearing served for all these things. You knew what your opponent’s case was. He had to disclose his hand. You knew the documents he had and you knew the issues. You got £4 costs in the first instance. If you depart from that system you must have all these other things, and they will cost you more. They will be expensive.

4391. With regard to the winding-up of companies, will you take, for example, the winding-up of a creamery in County Cork. You will have a chartered accountant who knows what is necessary in winding-up cases. He will have local knowledge and will know the debtors and creditors of the estate. Do you not think that he would get more for that estate than if it were wound up here in Dublin?—I do not think that my observations apply so much to Cork as to smaller and less highly advanced centres. I am sure companies would be wound up in Cork better than anywhere else. I do not see the same objection to Cork as to other centres, because Cork is a great business centre with a fine staff of accountants. It is a little capital, really.

4392. In this matter, I speak from knowledge both in this country and in England. I have seen many estates, of which I was an unfortunate creditor, wound up, and I do not think they realised at all what they would have realised if wound up by a person with local knowledge. There are qualified accountants—incorporated accountants and others—in Limerick, Waterford and Kilkenny as well as Cork?—I should like my friend, Mr. Moloney, the next witness, to answer on that point, because he has more experience of the winding up of companies than I have. He has more experience of the south, too. I knew the west extremely well, and I do not think the work could be done very well there.

4393. I agree with your evidence with regard to an oral re-hearing. Could you suggest anything to remedy the abuse of a judge scamping a case in order to catch his train?—You must have human beings as judges. I think that abuse does not occur very often.

4394. It happened to me?—It has happened I know, but on the other hand I have known Judges to keep me up to 12 o’clock at night with a case that ought to have been decided in half an hour. The remedy for what you suggest is in the Seanad and the Dáil. If a Judge will not do his duty, the only remedy is in the Seanad and Dáil and public opinion. No system will make a Judge do his duty if he is not willing to do it.

4395. Senator Farren.—In view of the fact that there have been no pleadings and no rules, do you think that the Circuit Court, as at present constituted, has got a fair trial?—I do, because I think the objections to it are matters of principle which no rules can cure. There are rules as regards appeals, because they are made by the High Court, and these appeals are the great blot.

4396. On the question of the jurisdiction of the Circuit Court, I understood you to say that the Bar Council were in favour of the reduction of the jurisdiction to £100?—Yes.

4397. The people who use these courts— the commercial community—have given evidence through their representatives, the Chambers of Commerce and the Associated Chambers of Commerce that these courts have been an unqualified success and they desire that the jurisdiction should remain as it is?—I am glad to hear it stated that they are an unqualified success without rules, beacuse I do not see how it can be stated then that they have not got a fair trial. I could understand its being stated that they are not successful because of the absence of rules, but would be successful if rules were available. The evidence, however, appears to be that without rules they are an unqualified success. The other question, then, as to getting a fair trial does not arise.

4398. The evidence is that they are successful from the point of view of the commercial community inasmuch as they have got cheap and efficient law?—I think it is neither cheap nor efficient. The “commercial community” may be a man suing for a shop debt to which there was no defence so that he got judgment quickly. But I have heard members of the commercial community complain that they had debts of from £20 to £40 and that it took three or four years to collect them. If a defendant does not want to pay his debt of £20, he appeals and he has three years’ use of the money.

4399. Has it come to your knowledge that there are many poor people in this country who are sued in the High Court for small debts and who allow the case to go by default rather than incur the expense of entering an appearance?—In my experience I never came across a case of the kind.

4400. We have had evidence that such cases do occur?—I have had tremendous experience of trials and litigants and I never met a man who did not owe money and who let the case go by default. Certainly, the poor man would not let the case go by default, whatever the rich man might do.

4401. Senator Brown.—They were small cases?—In small cases, of course, you could be sued locally. I never knew a man who got a writ in a small case who did not defend if he knew that he did not owe the money.

4402. Deputy Wolfe.—I think what the Senator is referring to is the practice that had grown up, principally amongst English trade protection societies, of issuing from Dublin by Dublin solicitors writs for small amounts varying, say, from £3 to £6. The Senator is suggesting to you that in practice a trader living in West Cork, while thinking that he had a good defence but not being absolutely sure, would, rather than face the cost of a remitting motion and of entering an appearance in the High Court, pay the amount?—That might occur under any system.

Deputy Wolfe.—It cannot be done now.

4403. Senator Farren.—If the mode of hearing appeals from the Circuit Court was altered so as to have an oral hearing, would that alter the view of the Bar Council with regard to the jurisdiction of the Circuit Court?—I think that the alteration of the mode of appeal is the essential and important matter. The mode of hearing the appeals would, I think, to a great extent remedy a great many of the evils, but I think that the complete remedy is to give the alternative and concurrent right of going to the High Court.

4404. I take it that the Bar Council would not object to the present jurisdiction of the Circuit Court remaining, provided the mode of appeal from the Circuit Court was altered so as to have an oral hearing?—They would, unless you also gave concurrent jurisdiction. You must not deprive the citizen, in any substantial case, of the right of recourse to the High Court.

4405. Would the giving of the right of concurrent jurisdiction meet the point of view of the Bar Council if discretion was left to the High Court Judge to decide what costs should follow?—No, it would not, because a judge, using his own discretion, might prevent costs following the event. The judge may not like the event, and therefore deprive the successful party of his costs. If a defendant objects to having his case tried in the High Court he can go in and show that it is not reasonable to keep him in the High Court.

4406. But does not all that mean expense?—Not so much. The hearing of the motion will not take very long. The defendant gets the advantage of making the plaintiff put in an affidavit in his case.

4407. Would it not be a hardship on a poor man, living in a remote part of the country, to be put to the expense of having his case tried in the High Court in Dublin, taking it that it was a small contract case for £120 or £130?— I do not look upon £120 as a small case. The poor man has to get credit. He will not get very much credit if he cannot be brought to the High Court.

4408. In view of the alteration in the value of money, stock to the value of £120 would not be much for a business man to carry?—I do not think you will find many small poor men getting credit for £120. He is generally a substantial man who gets credit for that amount. A Dublin merchant would hardly be likely to give credit to a man to the extent of £120 if he did not regard him as a fairly substantial man. A man of that kind will find it hard to get credit if there is too much delay and too much sending down of cases.

4409. You said something, I think, about appointing some extra judges to the Supreme Court. I understand that the Supreme Court at present is constituted of three judges, and I think you said that you considered the number too small?—For ordinary routine cases I think the present number is all right, but for cases involving big commercial or constitutional issues, affecting the whole community, I think it is too small. It is the final court for the whole of the Free State, and on some big constitutional question two judges may think one way and another judge another way. It is not fair, I think, to put the responsibility on one judge of deciding finally how the law should be on some very important constitutional question.

4410. It is the opinion of two judges against one?—It is two to one with a mere majority of one. “A” takes one view and “C” takes another, and it is what “B” thinks will ultimately decide the matter.

4411. But would not the position be the same if you had a court of five Judges?—I do not think it would be quite the same.

4412. At any rate you must have a majority if there is a difference of opinion amongst the Judges?—You must have a majority, but I think three is too small a number for the Supreme Court.

4413. The members of the Supreme Court will be all trained lawyers. Therefore, do you not think that three members are quite sufficient for that court?—The law is a very difficult matter. You will find an enormous difference between Judges. It is almost like theology.

4414. In the course of your evidence, I think, you remarked that this was a very poor country?—I do not think it is poor.

4415. In your opinion an action for £100 is a substantial one?—I think the average wealth of the inhabitants is not very great, but I think that £100 is a substantial amount to be litigated for.

4416. Have you ascertained how we stand, taking population as the basis for comparison, in regard to the number of Judges that we have and the number they have in England?—I have not ascertained the exact number, but I think we have a larger number in proportion to our population. But it has to be remembered that an agricultural community, such as ours, will have a great many more difficult law disputes than a commercial community. A big city will not have very much litigation compared with a country where questions relating to ownership of land so frequently arise. I think the economic features of the country ought to be taken into account. You have an enormous amount of litigation in this country about bogs, rights-of way and matters of that kind which are of vital importance to poor people. In a city you never have litigation dealing with these matters at all.

4417. And as regards one of the types of case you mention, it is probable that you will have two poor men ruining themselves over a right-of-way?—It is the system that would ruin them.

4418. Do you think it is right that we should have any system that would allow two comparatively poor men to ruin themselves by going to law over a right-of-way? Do you not think that there ought to be some method of speedy justice to solve a dispute like that?—A great many people may think that all litigation should be abolished, that in the case of disputes you should get an arbitrator and toss up. My idea is that would be a serious slur on our country. I think we are more advanced in civilisation than that, and that our wish is to have justice between all parties well and efficiently administered. Recollect, that of the one case that is litigated there are 99 cases in which people by taking their solicitor’s advice, ascertain what the law is and obey it. It is not as if everyone had to go to law before he gets his rights. It is only in cases where a man’s rights are denied or disputed that he goes to law to assert his rights and to get the remedy the law provides.

4419. My idea is that we should not do anything to encourage comparatively poor people to ruin themselves by going to law, but that we ought to provide some method of speedy justice for them?—You have the District Courts which give them speedy justice. Where I disagree with you is when you say that a fight about an important right-of-way or an action for a sum of £120 is a small case.

4420. Senator Wilson.—Your conception of the Circuit Court is that it is merely the old County Court?—No.

4421. Would you like to have the Circuit Court in the position that the old County Court was in?—I do not think so. It has got extended jurisdiction in a great many cases and, I think, rightly so.

4422. If its jurisdiction was reduced to £100, would it not be in the same position as the old County Court?—The jurisdiction of the old County Court was £50.

4423. But in view of the alteration in the value of money, if its jurisdiction were reduced to £100, would its position not be the same as that of the old County Court?—I think it discharges largely the functions which were intended to be discharged by the old County Court—that it was to be a local Court and cheaper than the High Court for the smaller cases.

4424. You are aware, of course, that the contention of other people is that the Circuit Court should be a sort of miniature High Court in the country with power to decide finally all cases that come before it?—Yes.

4425. Are you aware that representatives of the commercial community have urged that the Circuit Court, instead of being restricted in its jurisdiction, should have almost unlimited jurisdiction. I think some of the witnesses compared it to the Sheriff’s Court in Scotland?—I think whoever compared the Circuit Court here to the Sheriff’s Court in Scotland did not know very much about the functions of the Sheriff’s Court in Scotland. As I understand it the Sheriff’s Court in Scotland has power to try judge and jury cases, cases which eventually go to the highest Court of the land in Scotland.

4426. Do you think it would be possible to have appeals from the Circuit Court to the highest Court of the land here?— Not an effectual appeal. If the first hearing is not properly conducted, if big questions of law are involved, a large proportion of the appeals will be useless, the reason being that you are appealing on a wrong set of facts.

4427. You mean in the absence of rules for the Circuit Court?—In the absence of very expensive litigation, of getting experienced counsel to go to the Circuit Court, of getting the judge to sit in a place where not only he but those appearing before him will have recourse to a law library, you cannot have these questions tried properly.

4428. What do you think is the effect of the present system on the Bar itself? —You may say it is theory when I tell you that in my opinion it has a gradually deteriorating effect on the learning and morale of the profession. It means that a young man called to the Bar of necessity starts in some small town. I am only thinking of small towns at the moment, and not of Cork or other large centres. He spends most of his early years in the profession in some small town with another young man, who has perhaps one year’s more experience than himself. There is no law library available there, and he does not learn his work. How different his training is to that of the young man starting out in the old times who had twenty men around him on circuit, men with thirty, forty and more years’ experience to guide him and help him. As I see it, the consequences of the present system will be that in five or ten years’ time, when the older men have died or retired, you will find that the average knowledge of law and the idea of responsibility among counsel will have deteriorated very much. I think it will ultimately result in this that there will be no learned Bar with a high prestige from which to select your judges. You will have to fall back on a system something like what they have in America. There they select their judges from among local solicitors who are advocates in the courts as well, but who are not necessarily highly trained legal experts.

4429. In the old days was there not a local Bar in Belfast?—Yes.

4430. Is it not a fact that the training of a local Bar in Belfast resulted in the cream of that Bar coming to Dublin. Did not the Bar in Dublin recruit better men that it otherwise would have been able to do owing to the fact that they had got a local training in Belfast?—My experience was that a local man in Belfast who wanted to become a success at the Bar had to come fairly soon to Dublin to get a really high legal training. I should add that he also had the advantage of a circuit training in Belfast. The Dublin circuit went to Belfast.

4431. Have you not the same thing in Cork to-day?—I do not think so. I do not think that you have in Cork senior —junior members of the Bar in any large numbers. You may have four or five men there.

4432. I think we have had it in evidence that they have a local Bar there of fifteen men?—To some extent, of course, you have the training provided there which they had in the old days, but you have not the great leaders of the Bar attending twice a year as they used to on circuit. On circuit, too, the knowledge of the old traditions, of proper conduct between one barrister and another which young men got was very effective. If a young man had any difficulty with regard to a case he went to a senior man and consulted him. The senior man probably took him for a walk, talked the case over with him and told him what the law was. The young fellow in that way got every assistance.

4433. With regard to the £40 valuation in equity suits you want it reduced from £60 to £40?—If you want our opinion on it, we think it ought to be reduced.

4434. You made a comparison and said you were living in a £45 house. You said that a farmer with a valuation of £60 would be in a much better position than you. Might I point out that the valuation of his house might be only £3, the remainder being on his farm?—I think to a man like that on a question, say of right-of-way, in connection with his farm which is a vital matter to him it is very important that he should have the right of alternative jurisdiction and a concurrent right to go to the High Court.

4435. About the concurrent jurisdiction, is it only a question of costs that is at stake?—No, but I do not think that a man who wants a more regular and precise determination of his case, with counsel and with a law library available, and all that, should be driven down to the extreme west or south of Ireland to have his case litigated, and then be prevented from the right of appeal. If he wants the High Court he has the right to have it.

4436. It is only a question of whether the Judge should have discretionary powers to refuse costs?—The Judge should not refuse High Court once the defendant thinks that he has a case, and wants to recover more than £300 in a matter vital to him.

4437. You bring in the question of speed there?—Yes, the question of speed and the importance of the matter to the parties.

4438. How are we to achieve that?— We have suggested a course in our precis. We say that actions started in the High Court should not be transferred to the Circuit Court unless the parties interested shall so consent, or that it shall appear to the Court, on the application of any party, that the action might have been commenced in the Circuit Court, and that having regard to all the circumstances, it would not be reasonable to retain the case in the High Court. The Judge in each case reviews the circumstances, and sees whether the case is of such importance to the party, or whether it is so difficult that it ought to be tried in the High Courts, or whether it is so wholly unreasonable and unimportant that it ought to be sent down.

4439. That represents the concurrent jurisdiction you require?—Yes, and with the further provision that where a man recovers over £50 in an assault or libel case, or over £100 in damages in a contract case in the High Court, he should not be deprived of High Court costs.

4440. Senator Brown.—The Judge should not have discretion?—The Judge should not have discretion, I hold, in that way.

4441. Senator Dowdall.—Arising out of one of your answers, do you think the educational standards for admission to the Bar are now too low?—No. The Benchers have been considering that, and they have adopted a very extensive course which is going to be put into force at once, in fact it is in force.

4442. Senator Brown.—Since last October?—Yes, but I do not think any cultural course or textbook course could ever guarantee for the Bar the same amount of knowledge that a practising barrister will gain by his experience watching the older hands doing their work, seeing the code of honour that exists, hearing the law discussed, and watching the older hands examining witnesses. He will never gain that knowledge from any books.

4443. Senator Dowdall.—What I had before my mind was education of a cultural kind, preliminary to embarking on the study of the law?—That is provided. A man must have a certain degree or show by preliminary examination that he has general knowledge and culture equivalent to a degree, and part of the new course provides for study in political economy and things like that, more akin to the legal study, but not precisely legal study.

4444. Senator Hooper.—Assuming that your view with regard to concurrent jurisdiction for the High Court and the Circuit Court was carried out, would you still think the limit of jurisdiction of the Circuit Court was unreasonable?— I would not say unreasonable, but I have an idea, and I am still expressing it, that when you get a case of £300 and you bring into the poor man’s court such a big case as that, you very often keep back the trial of very important if less substantial cases. I am not pressing that very strongly. I am only giving it as my opinion.

4445. You think that if the present concurrent jurisdiction which I think you complain of now was made more effective you would not have any great grievance then?—No. I think the important thing is that the present system deprives a man of the High Court. If that is not the result of any system you adopt I have no objection.

4446. I understand you to suggest that the question whether the case is primarily High Court or Circuit Court should be decided on the motion for remittal?—Yes.

4447. And the question of costs being on the higher or lower scale should not be allowed to remain until it comes to final decision?—I would not allow it to the Judge on the trial. The preliminary as to whether it is reasonable to keep it in the High Court or not, once decided, the Judge should not have any power to deprive a litigant of his costs.

4448. The question has been raised as to the cost of the motion for remittal. Would it be possible, with a view of reducing the costs, to have that motion decided not by the Judge himself but by the Master?—That is rather a difficult question. I do not think it would. I think it is a difficult question to settle. I do not think it would be fair to put the Master into that position unless he is a judge. I think it should be done by Judges trying similar cases.

4449. This would be a case entered in the High Court?—Yes. But the Judge that was deciding whether it was fit for the High Court or not ought to be a Judge of experience in trying cases.

4450. You do not think that the cost of remittal would be a big factor?—No. Five or six pounds.

4451. Senator Brown.—It used to be measured in three or four guineas?—It used to be a matter of an affidavit and another answering and two junior counsel.

4452. Senator Hooper.—You think that power could be given to a High Court Judge sitting locally to hear High Court records without a jury?—Yes.

4453. Another suggestion was made somewhat analogous to that and it was this: In the event of the old system of appeals being reverted to, and the High Court Judge going down the country to hear appeals locally, that the Circuit Court jurisdiction might then be reduced perhaps to £150 and that cases over £150 might be tried by the High Court locally? —I think that would be a very good suggestion.

4454. Senator Brown.—Circuit Records?—I think it is a very good suggestion.

4455. Senator Hooper.—Do you see any objection to it?—If there were a certain number of cases brought before the Circuit Judge and he heard them there would be only about one in ten which would come to appeal. It is the exception to appeal. These Judges would be out for a long time trying these cases and if there were a hundred of such cases tried in a Circuit Court not more than ten would ever reach the High Courts on appeal. Very few out of a hundred such cases tried would ever reach the High Court.

4456. Chairman.—There would be a possible appeal from this High Court Judge?—Yes, to the Court of Appeal. I think it would be very much better if cases involving £300 or £400 went direct as a High Court record and not go to the High Court as a court of appeal later. The other would work out by giving the High Court Judge, going the rounds, too many cases.

4457. Senator Hooper.—There is no question of cost of bringing witnesses and solicitors and all that to Dublin? A hearing of that kind locally would be much less expensive?—Yes, certainly. I agree with what we call the local record. A man might bring his case to the High Courts if he thought it of sufficient importance and the Court might say “we will not send it down.” They might change the venue. Of course it is not a venue, in the strict sense, as there is no jury but they might make the Judge sit in Galway or Limerick instead of Dublin.

4458. On the whole would you be for or against that?—For or against the alternative jurisdiction do you mean?

4459. For or against bringing cases of over £150 claim to be tried by a High Court Judge sitting locally?—On the whole I would be in favour of it. I think it is a good idea to have it tried by bringing a High Court record and asking a Judge to come down and try it locally.

4460. Senator Brown.—You are against the Master hearing remitting motions?— Yes.

4461. And if I may so, I think quite properly. Would you be in favour of allowing the Master if he got jurisdiction by legislation to hear motions for final judgment under the old system of motions?—I would. We all think the present Master is a very competent man as was also his predecessor, and we all think that the Master if he had a judicial position should have the jurisdiction of the High Court Judge for that class of case.

4462. If the real defence was disclosed before him the case might automatically go to the Circuit Court in an ordinary case of debt?—Yes.

4463. On that question of the amount of the jurisdiction you would not put any limit upon the amount necessary for the concurrent jurisdiction. You would not limit it to cases of £150?—No. The safeguarding of the motion to remit and concurrent jurisdiction might arise on a case for £5 in which a question of demurrage of the very highest importance might arise.

4464. Do you think there ought to be an efficient stenographer in every Court where witnesses are examined?—That is a very difficult question to ask me. There again it is a question of expense.

4465. Apart from the question of expense?—Apart from the expenses, I think there is great difficulty.

4466. Would that include the District Court?—Don’t ask me. I have never been in a District Court either as a defendant or counsel.

4467. With regard to the stenographer in the High Courts in any case where witnesses would be examined you would be in favour of it theoretically?—Yes.

4468. Deputy Little.—Do you think there would be any considerable difficulty on the part of a Judge having to make up his mind to remit a case from the High Court to the Circuit Court? Would it be easy for him, with two juniors, to decide whether the question was one of substance and involved something big?— There would be always the line ball case, but in 99 out of 100 cases, he would not have any doubt, and counsel himself would say, “I am moving to remit.” There would be no difficulty in most cases.

4469. Just a point or two as to your statement about junior barristers practising now and getting attached to the local circuit. It is found that solicitors practising in the country have got to know more than the solicitors in town. They have not got the library, and they develop a habit which is better than that of the solicitors in the city?—Some of the finest advocates I have ever met have been solicitors in the west of Ireland. But their knowledge of law is limited by the fact that they are not always handling these books.

4470. This new system may work out this way. A young man gets a certain training in advocacy in dealing with concrete issues and when he comes to a point he would find himself in the High Court and getting the High Court training in Dublin later on?—I always though the training a man got for the first five or six years when he has very little to do was the most valuable training got in his profession. You will remember these things all your life, seeing other men dealing with cases. When you had nothing to do. you went in and heard the best counsel doing their cases.

4471. Chairman.—Really serving their apprenticeship?—It was like the hospital to the doctor.

4472. Senator Forren.—Why not have a system of apprenticeship?—You have what is called a “devil” who is attached to a barrister at a fee of £50.

Senator Dowdall.—Senator Farren should tell you that apprentices are now paid.

Mr. H. J. Moloney, K.C., Bar Council, Law Library, Dublin, called and examined.

4473. Chairman.—You are also a member of the Senior Bar?—Yes.

4474. When were you called to the Bar? —1909.

4475.—When did you take silk?—In 1928.

4476. You have heard the evidence given by Mr. Price.—Yes.

4477. Do you agree with the evidence he has given?—Yes, in all material respects. Perhaps in some minor details, we are not in entire agreement.

4478. Are there any points not covered which you would like to put before the Committee?—I would like to put one or two points with regard to the jurisdiction of the Circuit Court, in contract and in tort. Under the existing system, I think persons who have substantial claims in tort are being prejudiced by the procedure in this way. After the Courts of Justice Act, 1924, came into force, actions for damages where the plaintiff might possibly have obtained a sum in excess of £300 were instituted freely in the High Court, but when judgments were only obtained for £230 or £250, and they got no certificate for High Court costs, solicitors grew wary and accordingly when they had another action of that character they said, “If I bring this case in the High Court I may lose the costs. I may have to pay and accordingly I will institute this action in the Circuit Court.” By doing that, he was limiting his client’s damages to £300. Now, I do think that by giving the concurrent jurisdiction that evil will be avoided.

There is another aspect of this question of jurisdiction. It is sometimes difficult to say what is a £300 action. Once you are suing for a simple contract debt, it is quite easy. You know what you are suing for. But when you are suing for damages for breach of contract or any claim in tort, it is a matter for estimation entirely what is a £300 action. You must estimate what damages may be given by the Judge in the action for contract, or what damages will be given by a jury in the action for tort, and accordingly, unless there is concurrent jurisdiction, evils will flow from fixing a definite figure and a definite amount in cases of actions for damages.

With regard to the amount of claim and retaining the jurisdiction up to £300 in contract cases, I am in agreement with Mr. Price, but I do not think that a plaintiff who has a claim for such a substantial sum as £300 should be deprived of his right to proceed in the High Court if he so wishes. You see it is not because a claim is limited to £300 that it may not involve very complicated and difficult matters. The £300 may be merely the balance of a claim involving thousands. It may be the balance of a sum due on foot of a building contract. In the old days, when I was in the County Court practising in the south of Ireland, the plaintiff issued a civil bill. That contained a statement of the nature of the relief which he sought and why he sought it. We had no pleadings, so until he went into court, and for the first time, when he went into court, he heard what the defendant had to say. It is unreasonable to expect such simplicity of procedure could be adopted in a matter like a building contract, where the other side might have numerous documents which it is essential that the plaintiff should see, and which his counsel should see and advise him about. These documents must be copied and furnished by one solicitor to the other, inspected and examined, and then all the facts, documents and correspondence in the case must be sent to some counsel who is competent to appreciate the legal points involved and advise the nature of the evidence to be tendered, and say: “You must call the following witnesses, and you should have the following documents or copies of them in order that this case should be tried properly.” Unless some such course is adopted, it will be almost inevitable at the trial that the evidence will not be directed to the real issues and the facts in dispute between the parties, and will involve appeals and dissatisfaction with the judgment. That class of case, I think, will give you an example of what I would like to impress on you, and that is, that cheapness in a system of administration of justice will necessarily involve a certain amount of inefficiency or a departure from efficiency. That is on what I might call the common law and the tort side.

4479. You think if there was a right to concurrent jurisdiction, that would be got over?—I think it would. Then on the equity side, I think you are in great difficulties. I quite agree with Mr. Price when he says that the valuation would be £40 at the outside when you look at it in this way. One of the most important jurisdictions in the Court of Equity is to deal with actions for specific performance of contracts. Take a house with £60 valuation here in Dublin, the purchase price of which would probably run to £3,000. When you are going to limit the jurisdiction of the Circuit Court in an action for the sale of goods to £300 are you going to give the Circuit Court jurisdiction in a much more important equity action up to £3,000 in relation to the sale of property because that is in substance what will be done? I do not think that if any of the parties want to have such cases litigated in the High Court, that they should be deprived of the right. You see the valuation in Ireland is perhaps not on the same basis as the statute originally intended in relation to land. The valuation was intended to be based on the rent which would be payable out of the property, but as a matter of fact there is a great variation in the valuation in different parts of the country, both with regard to houses and land, and very often you find houses valued at one-third of the rent they are actually producing, and land in the same way.

4480. Senator Brown.—There has been no valuation outside the city for close on eighty years?—That matter should be taken into consideration and while in some parts of the country lands of £60 valuation might not fetch £1,000, in other parts they might fetch £3,000.

With regard to appeals, I do not think I have anything to add to what Mr. Price has said. With regard to the Supreme Court and the additional Judges, I quite agree with what Mr. Price has said. There is in certain cases under the constitution a right of appeal to the Privy Council and I just call the attention of the Committee, if I may, to this, that in the Privy Council you see, as a rule, five Judges if not more. It is a matter for consideration at all events why it is the practice in England in the Privy Council to have five Judges.

Another point which occurred to me as Mr. Price was giving his evidence was this, that when you go to the Supreme Court you may be going with a decision of a Judge below in your favour on appeal from a case in the Circuit Court. You may go before two Judges of the High Court, all of whom may agree in affirming the decision of the Court below, but you may get leave to appeal to the Supreme Court, and one of the Judges in the Supreme Court may agree with the two in the High Court; that is, you would then have four Judges in your favour, but the two of a majority in the Supreme Court could over-rule that. I only mention that as an illustration of what might very well happen.

4481. Senator Wilson.—That is unusual?—It has happened, not in a number of cases, but in a case that I can recall. I remember it happening in the old Court of Appeal.

4482. Senator Brown.—It might quite frequently happen at present in an appeal from a decision of two High Court Judges. You go to the Supreme Court and get two to one there, and you have a minority of the five Judges deciding the case in the end?—That is quite so. I can remember a case in which I was engaged where that happened.

Chairman.—As a matter of fact, a very important workman’s compensation case was heard last year in which that happened.

Witness.—As to the number of judges in the High Court, I do think that the High Court is understaffed and is in arrear not merely with Circuit Court appeals, but with all classes of cases which requires two or three Judges, that is, mandamus, certiorari quo warranto, revenue cases, and cases stated from magistrates.

4483. Does that delay arise in the hearing of appeals from the Circuit Court?— Well, to lay it down to any particular cause would be difficult. It is due to an inadequate number of Judges. The Judges have not got time to dispose of the business.

4484. Do you think that if the present mode of appeal from the Circuit Court to the High Court were done away with, it would relieve the congestion?—Well, I think it would shorten the hearing of appeals considerably.

4485. But you are of opinion that even if the present mode of appeal from the Circuit Court were changed you would still require an extra Judge or Judges?— I do. I do not think that when they were allotting the number of Judges it was borne in mind that a good deal of work would be thrown on the High Court by reason of the hearing of criminal appeals, for instance. All the work is held up while you have two or three Judges of the High Court hearing criminal appeals.

4486. Senator Brown.—And that is intensified by the fact that the Chief Justice is a member of the Lower Court of Criminal Appeal. It stops the Supreme Court?—Yes.

4487. Deputy Little.—Are there many of that kind of case?—I think it takes a couple of weeks of the Judges’ time in the year.

4488. Senator Brown.—And they last so long?—I do not think I should risk an estimate, but I will say two or three weeks. That is a very conservative estimate of the time that the Supreme Court and the High Court is held up by reason of that. I can give you an example of how that difficulty of the delay works in a case which is actually at hearing this moment with reference to the High Court. I am at present appearing in a quo warranto application which is challenging the validity of the election of certain fishery conservators. I cannot say when I got the brief, but I am sure I got it before my fee. I looked up my fee-book before coming here, and I saw that it came in almost twelve months ago. The case did not come on for hearing until early in the present year. The election which was in dispute took place, I think, on about the 5th October, 1928. The proceedings were instituted shortly afterwards, affidavits were sworn, and I eventually got my brief. When it did come on, the case was heard for a day and a half before three of the High Court Judges, and at the end of that time they came to the conclusion that it was necessary to get further evidence, or to get a further affidavit filed. In the meantime that Court is split up. The case was adjourned, the Court is split up, the Judges are hearing jury cases and non-jury cases, and we have no idea when the Court will eventually reassemble and have time available to deal with this particular case, because when they reassemble they may take up the hearing of Circuit Court appeals or something else.

4489. Senator Dowdall.—That is on the point of the necessity of more High Court Judges?—Yes. Under these circumstances, by the time we get judgment, and if there is by any chance an appeal to the Supreme Court, the conservators are only in office for three years, and the whole period of their office will be gone before the matter is settled.

4490. Deputy Little.—What was the time of hearing?—Some time early in January.

4491. Senator Dowdall.—That is a matter that has been a fruitful source of litigation in the past, I know?—There is a very interesting question of law involved in it, and it is almost certain to be the subject of an appeal whatever way it is decided. Consequently the whole period of office will probably have expired before it is disposed of. Another difficulty arises in the same way, because when you have the Court inadequately staffed with Judges, if any Judge falls ill your chaos is complete. We had a workmen’s compensation appeal at hearing before Judges Johnson and Meredith about a week ago. It was adjourned for the purpose of clearing up an ambiguity in the medical referee’s report. It should have been heard yesterday and completed but unfortunately Judge Meredith is ill, and now it may be a considerable time before that case will be resumed, before he and Judge Johnson will be able to sit together again, before they can so arrange their lists that they can sit together, because that is the great difficulty of a Judge doing his normal work and trying to fit it in for the purpose of hearing cases where he has to sit with another Judge. In the old days you had sitting practically all the time two or three Judges for hearing the class of cases which require two or three Judges.

With reference to the question put by Senator Dowdall to Mr. Price of liquidators and the winding-up of companies, there is no reason whatever why, even though the winding-up may take place in Dublin, a local liquidator should not be appointed, and in fact at the present moment two Cork companies are being wound-up in the High Court in Dublin and a local liquidator is acting. In one of them I think there is a Cork liquidator acting. In any event the selection of the liquidator is entirely in the hands of the petitioning creditors; they can always select a person to administer the estate who is efficient and competent. That is really not a matter for the Court at all but for the creditors themselves. Apart from that, I think that the procedure in relation to the winding-up of companies is so much off the beaten track that it requires a specialist in the office of the Court and in the officials of the Court, as well as a Judge, if it is to be carried out properly in accordance with law.

There is one other point that I might mention, and it is the costs of a motion to remit. I do not think that when that is examined, it affords such a great difficulty. Supposing an action is instituted against a man for a sum that is within the jurisdiction of the Circuit Court and he wants to remit it. I have always found in practice where the solicitor for the defendant writes a letter to the solicitor to the plaintiff offering to remit, pointing out that he has a defence, and asking for a consent to remit, if the solicitor for the plaintiff refuses his consent, and the defendant then files an affidavit exhibiting that letter, pointing out the offer he had made, and saying that the case was a proper case for remitting to the Circuit Court, it almost invariably happens that the Judge orders the plaintiff to pay the costs of that unnecessary application, and in that way a defendant who is being harassed by a High Court action is protected by the action of the Judge, so that I do not think that that is a likely abuse. I think there is also another provision. In the case of a small action there is a provision in the Common Law Procedure Act, which limits the costs in the High Court in the case of actions where judgment is recovered below a certain amount. It limits the costs of the solicitor and it also limits the costs of counsel. There is an old Rule, Order 55, Rule 41, I think—which provides that you can only get the costs of one counsel, and that the solicitor will get no costs of instructions for brief where the judgment is within the amount of the County Court jurisdiction, unless the Judge certifies that it is a proper case. I think with these points I have dealt with most of the matters which I would like to add to what Mr. Price has said.

4492. Senator Hooper.—A suggestion has been made here by important business representatives that there ought to be a separate commercial Court sitting all the time.

Senator Brown.—When wanted.

Chairman.—A Judge.

Senator Hooper.—A special commercial Court, available all the time?—What is the idea as regards the jurisdiction, and what is the class of case intended to be dealt with by the special Court?

4493. This was put forward by representatives of the Dublin Chamber of Commerce. It was pointed out that in England there are commercial Courts of this kind, and that these cases were heard by a Judge who was hearing this class of case all the time, and was consequently a specialist.

Senator Brown.—And without pleadings, practically.

Witness.—We have that at the present moment for all practical purposes, though we have not a special Judge. Supposing you have a dispute about a debt or a claim for a liquidated demand, that was one of the matters we dealt with in the Rules, and although we did not put it in expressly in that way, the Rules provide for that system. If you have a claim for £500 or £600 and the dispute can be narrowed down to a very short point and you have endorsed your writ for an amount of £500 due on contract, or something like that, you apply to the Court for judgment, and the defendant puts in an affidavit showing his reasons for defending the action or why he should have a defence. The Court can decide that matter then and there on the affidavit, or it can adjourn it for trial without pleadings to a date to be fixed by the High Court. That is in the existing procedure of the High Court at present, and I have had several cases where that procedure was adopted. For some time there was a misapprehension on the part of the Judges of the High Court as to the practice, but the mistake was corrected by a decision of the Supreme Court which pointed out to them that they had been acting incorrectly and that in every case what were called final judgment motions have been abolished, and that the Court could try cases on affidavit if necessary, or adjourn them for early hearing without pleadings.

4494. Senator Hooper.—The suggestion is that the Judges transact such a varied class of business that some of them are not as well able to dispose of these cases as one of them would be if he were confined to that class of business?—Of course a specialist in any work will necessarily be more efficient than a man who performs such work only occasionally. I wonder, however, whether we have sufficient Judges to select one and say that he should deal with commercial cases only. I suppose the commercial community would have to pay for that luxury though it is they who would benefit eventually. We would have no objection on behalf of the Bar. I think it is highly desirable that we should have a specialist in a particular branch of law to deal with questions of law of that character. I have been dealing with the question of company law. That is another aspect of the same thing.

4495. Deputy Little.—The difficulty might be solved by reserving a Judge for commercial cases and he would deal with other business when these had been disposed of?—That is the practice in Chancery work, in equity cases and in bankruptcy, One Judge sits all the time in bankruptcy, the same Judge practically.

(The Witness withdrew.)

Mr. Peter Seales, President, the Incorporated Lau Society of Ireland, called and examined.

4496. Chairman.—Mr. Seales, when were you admitted to practise as a solicitor?—I was admitted in January, 1901.

4497. You are, I understand, President of the Incorporated Law Society?—Yes, for the present year.

4498. You have a big practice in Dublin?—A fair amount.

4499. Of course, you are speaking for the Incorporated Law Society?—I am speaking on behalf of the Incorporated Law Society, but I might mention that there are a number of members of the Society who have formed one view, and there are other members who have formed another view. You can quite understand that, where we have a number of Dublin solicitors and a number of country solicitors. You have had some of them before you already.

4500. I understand that you want to give evidence principally with regard to High Court practice?—And jurisdiction. I should be very pleased if I can be of any assistance to give any information within my knowledge as regards practice. I have had a good deal of practice for the last thirty years in Dublin.

4501. Your first suggestion is that Article 64 of the Constitution should be amended so that the Master of the High Court may be enabled to exercise judicial functions?—Yes. We are particularly anxious that the Master should have that power, to deal with various matters, such as, I think, have already been mentioned by Senator Brown, final judgment motions and cases of that description. At the present moment the Master’s jurisdiction is practically nil. He can do very little. For instance, applications to make consents a Rule of Court, which are brought before the Court for the Court’s approval or otherwise, must be made in Court. When an originating summons is issued at the present moment for whatever amount the plaintiff wishes, the defendant enters an appearance, and the plaintiff must make the next move. The defendant does not apply to transfer, so then he allows the plaintiff to enter the case in the Master’s list, merely upon an affidavit of some description, where he defines the cause of action. If the defendant does not appear, or does not file any affidavit in answer to that—a motion is made for final judgment as it was originally called, and the Master makes an order for judgment. But if there is an affidavit filed on behalf of the defendant, then the matter is placed in the Judge’s list. It is transferred from the Master’s to the Judge’s list, and the Judge disposes of the motion. I would like to suggest that the Master should have jurisdiction to hear motions, even contested motions, and that the defendant in certain actions should have the right of transfer, provided he satisfies the Court or the Master that he has a bona fide defence, not merely a three-line affidavit saying: “I have a good defence on the merits, and I apply that the action be transferred.” There should be something more than that, so that the Court would be able to judge whether there is anything in his defence or not.

4502. You suggest, Mr. Seales, that Section 25 of the 1924 Act, dealing with remittals or transfer motions should be amended so as to apply to tort actions only?—As I read Section 25, it is compulsory on the Court to transfer, even whether the defendant has a defence or not.

4503. Senator Brown.—You apparently do not think that Section 25 applies to tort?—Section 25 applies to tort, but we do not suggest any amendment as regards tort.

4504. You suggest that it should be amended and should apply to tort only?— Yes, that it should not apply to every case in contract. We do not quarrel with the Section as regards tort.

4505. You would leave Section 25 for tort and have a new section for contract? Yes. As regards the question of jurisdiction, I do not suggest for a moment that small actions under £10 should be brought in the High Court, but on the question of concurrent jurisdiction I suggest that in actions from £10 upwards the plaintiff should have the right of selection provided that he will not ask for any more costs up to £50 than would be awarded to him either in the Circuit Court or the District Court. In other words, if a man brings an action for, say, £15, he should be allowed costs upon the District Court scale only, as against the defendant. The plaintiff is anxious to get a speedy trial of his action and he will pay for it. He wants a speedy hearing and he wants to get an order for judgment as soon as he possibly can. Even assuming that an appearance is entered, I consider that the Master should have that jurisdiction with the right of appeal to the Judge.

4506. Up to £50?—Yes. I say as regards actions from £25 to £50, that the High Court should have concurrent jurisdiction and that the plaintiff should get costs according to the Circuit Court scale against the defendant. As regards actions over £50, I consider that he should have the right to retain his case in the High Court and get the full costs of the High Court. I do not see that the defendant is damnified very much by having to apply to remit the case. If he has a bona fide defence and succeeds in his defence he gets his full costs against the plaintiff. The plaintiff only gets his costs according to the District Court or the Circuit Court scale, as the case may be, up to £50. That is as clear as I can put it with reference to the question of jurisdiction.

4507. Senator Hooper.—Is that the view of the Council?—That is the view of the Council. Of course, as I said before, there are members of the profession who may form a different opinion. I do not see that any harm is done to anybody by allowing the plaintiff to proceed, if he wants to proceed, in the High Court. He has to pay the full costs himself, and, up to £50, he only asks the costs that would be awarded in the Circuit Court or the District Court.

4508. Senator Brown.—Once you give the jurisdiction what you suggest could be provided for by Rule?—Yes. At the present moment, the Master has practically no jurisdiction. He merely looks after the office and the clerks. For the simplest application, consents, garnishee orders, receiver orders, or things of that description, you must always go to the Court. At the present time, we have to wait nearly a week. Judges of the High Court sit only once a week for these classes of motions, and you have to wait from Friday to Friday before you can get the case disposed of. As regards expenses, where the plaintiff is satisfied to take the responsibility on himself to pay any additional cost, I think he should have the right to bring his action in the High Court. These are the only matters dealt with in the memorandum sent in, but if there are any other matters on which I could be of any assistance to the Committee I would be glad to give any help I could.

4509. Deputy Wolfe.—Assuming for a moment that you were a solicitor practising in the country, and that a client brought you in a writ to recover £15, that he admitted liability for £9 but that he repudiated and had a good defence as regards the remaining £6, what advice would you give him in his own interests?—I would advise him to apply for a transfer.

4510. From the financial standpoint only, leaving out any question of principle, would it not be more satisfactory if you advised him: “Go and pay the £15”?— I have a good deal of experience and I have very seldom met any defendant who pays anything that he does not owe.

4511. We have been told something about the cost of a motion to remit. In an action for £15, I suggest that the costs, the appearances and the cost of the motion to remit, comes to about £12?— They may not. Assuming they did, surely if the defendant had any defence to the action he should enter an appearance.

4512. If he had any defence,—assumming he has?—Assuming he has and I successful in his defence he gets his costs against the plaintiff. How does he suffer?

4513. I take it you agree that a small writ may become very oppressive?—I do not know. If an action is brought for a sum of £10, and the defendant has no defence to that action, why should he not get a speedy judgment?

4514. The answer I suggest would be that he would get it in the District Court? —He may get an order in the District Court which is appealed from, and so be kept out of his money. By the time he gets a decree the other person may have gone off to Timbuctoo.

(The Witness withdrew.)

The Hon. Aodh O Cinnéidigh, Chief Justice, called and examined.

4515. Chairman.—You are the Chief Justice?—Yes.

4516. You have occupied that position since the system was instituted?—Yes, since the 4th June, 1924.

4517. We would like to get your views about the working of the Courts of Justice Act generally. I do not know, however, whether you would care to express an opinion on the District Court?—That is the Court of which I know least, and perhaps we all know least, because apparently it has been working very well. Perhaps you might like to hear about my own Court first. The Courts which I have more or less immediately under me are the Supreme Court, which is, of course, the Court of Appeal and the Court of Criminal Appeal in which I preside with two Judges of the High Court. I preside personally or nominate a Judge from the Supreme Court. Personally I am, in fact, an additional Judge of the High Court. I have jurisdiction in lunacy and minor matters and I have also miscellaneous jurisdiction, such as that over solicitors and the appointment of Commissioners for Oaths. The first of these Courts is the Supreme Court. Before coming here I got the number of appeals which we had in the last three years. In 1927 we heard 103 appeals, in 1928 we heard 86, and in 1929 the number was 101. The Registrar who acts in that Court was also Registrar in the old Court of Appeal and he tells me that there has been a great increase in the number of bona fide appeals in our Court as compared with the number in the former Court of Appeal, notwithstanding the fact that we have lost the Northern appeals and that the small ex-parte appeals have disappeared. Senator Brown will remember the old ex-parte motions in King’s Bench, but these have gone now owing to the new system under the Master. The whole body of work in the Supreme Court, according to officials who are familiar with the two, is greater than it was in the old Court of Appeal. If I am at liberty to make recommendations, the principal one that occurred to me is as regards the number of members of the Supreme Court. It consists of myself and two ordinary Judges. The President of the High Court is ex-officio an additional Judge and may be called on in case of necessity. One does not do it except in a case of extreme urgency. I have always felt that we ought to have a larger number of members because under the Constitution we were to be the final Court of Appeal. I do not think that three is sufficient to constitute a final Court of Appeal. At the time when the Judiciary Committee was sitting I was overruled on that point entirely on the grounds of economy. I recommended five as the number of members but it was thought that at that stage, from an economic point of view, the country would not stand five members and the committee agreed to make it three.

There are several points of view in the suggestion that the number is not sufficient. The old Court of Appeal consisted of three and, for a while, four; that is to say, wherever there was an ex-Lord Chancellor available he, if he wished, could sit as an extra Lord Justice of Appeal. When I first came to the Bar ex-Lord Chancellor Walker sat as a Lord Justice of Appeal. The number was three, but it was not a final Court. There was an appeal as of right in every case from the old Court of Appeal to the House of Lords. That is very different from the position of the Supreme Court which under the Constitution is stated to be final, subject to Article 66, whatever that may mean. The first reason I suggest that the number should be increased is because of the fact that it purports to be a final Court of Appeal. I think that public opinion is behind it as a final Court of Appeal. I have enquired as regards the numbers comprising other Courts of Appeal. In Canada the Dominion Supreme Court consists of the Chief Justice and five puisne Judges, or six members. In the provinces of Canada there are also Courts of Appeal. In Ontario, with a population of 2,966,000 according to the last census, they have a Chief Justice and eight Justices of Appeal. In Manitoba, with a population of 639,000, there is a Chief Justice and four Justices, a Court of five. The number is the same in British Columbia, where there is a population of over half a million, in Alberta and in Saskatchewan. In Australia, the Dominion Federal High Court, as they call their Appeal Court, consists of the Chief Justice and five Judges, that is six. I looked up the States in which there are Appeal Courts, but I found that I did not understand the system sufficiently to make a statement that would be of any real value. In the Union of South Africa, which is supposed to resemble this country as a Dominion more closely than others, the Dominion Court of Appeal consists of the Chief Justice and three Justices. In the United States of America in their Supreme Court they have a Chief Justice and eight Associate Justices, or nine in all. In their States they have Courts of Appeal, also a Supreme Court of each State. There is no actual fixed number of Judges, but in Washington, where I made the acquaintance of the Justices, the Supreme Court consists of nine members. The population of the State of Washington is less than that of the Free State. It was as you know, the last of the States added to the United States about forty years ago. They have a curious system in States where there are nine Judges. They sit in two divisions. While one division sits, say, this week the other division is considering judgments. The appeals are very largely heard on paper and they limit counsel orally, in a way to which I do not think we, with our traditions, would agree, to a fixed limit of time. I took these figures for the purpose of comparison and to show that the idea of a Court of Appeal of prestige and carrying weight is one of a rather larger number than three. If one judges by what one hears some people think that we ought to have five and others that we ought to have four. There is a point in favour of four as against five. With our present number there is one disadvantage, apart from the question of weight of authority or prestige, and it is this: if there is a difference of opinion in a Court consisting of three members and if two of the three are in favour of reversing the judgment appealed from—if the judgment appealed from was delivered by a Court of two—then you would really have a minority reversing a majority.

4518. Have you had any instances of that in the Supreme Court here?—We have had some, but not many.

4519. Senator Brown.—An appeal from one Judge?—That is the difference. There, if you have two Judges for reversing, you have two and two.

4520. Four would be enough if the appeal was from one Judge, and five if it were from two?—Yes, but there is a possibility that if you have a Court of four, instead of providing for a majority decision, you can say, if there are two and two, that the decision appealed from shall stand. If you make that provision you will never have a minority result. Apart from the question of a final Court, there is now a real possibility of having an ultimate minority decision prevailing, and, of course, the Judges of the High Court are men of high standing, and it is not altogether desirable that that should be. In addition to that, with the number we have at present, three, there is no margin for sickness or for personnel engaged in other work. I am thinking of the Court of Criminal Appeal and the Supreme Court, which must close down if anyone happens to fall ill or to meet with an accident. It is possible to get a Judge from the High Court, which, as constituted, is in much the same position and has not any margin.

4521. Is it possible to call in a Judge of the High Court or the President?— Any Judge, in case of illness or where one of the others cannot sit. That is unlikely, but in the beginning, where a case came on appeal, a Judge who took part in an earlier stage could not sit on the appeal. I had one or two cases myself, and had to make way for a Judge from the High Court. There is a special section in the Act of 1924 enabling me to summon a Judge of the High Court to sit.

4522. You are of opinion that it is desirable that the number should be increased in the Supreme Court, whether it should be four or five?—Yes, I think it should be one or the other. I think if you have five it would be well to make provision that four would be a quorum to constitute the Court.

4523. That is all the more desirable, because the theory has been that it was the final Court, and that is most likely to be the practice?—Yes, if we work in the atmosphere that we have.

4524. I think that is to be hoped?— Perhaps this is hardly a Courts of Justice Act point, but it affects our working. I suggest that there ought to be always an official shorthand writer attached to the Court.

4525. Attached to the Supreme Court? —Yes, and that he should take down and transcribe every judgment; possibly the arguments but certainly every judgment. Every decision in other countries in the Courts of Appeal is reported. You see it is of the greatest importance, from the point of view of the public and of the litigants, barristers and everyone, that when a thing has been decided there should be a record of it somewhere. At present we have to depend on the Council of Law Reporting for Ireland, and recently there has been an appreciable number of important cases that have not been reported, as probably the reporters have gone off with the material and there is no more about it. We feel that there ought to be a record of judgments available. If that is not done, if the same point arises again public time and money are spent, and the whole thing re-argued.

4526. Senator Brown.—Under the old system that difficulty was met in the Court of Appeal, and was got over in a peculiar way, because the registrar there was a barrister, and had an extraordinary facility for taking notes in shorthand accurately, and reporting every judgment given, and we were able to see his book because it was in the law reports?—We always had recourse to it. At present the Registrar is a very able man, and he makes an endeavour to follow the practice that was set up, and to keep a note, but of course that is always subject to limitations, especially if he does not happen to be there.

4527. You recommend the appointment of an official stenographer?—Yes. I think he ought to take down the judgments and arguments. That is done at the other side, in the House of Lords and before the Privy Council.

4528. Senator Comyn.—There are full reports there?—Yes.

4529. Senator Brown.—Would you not have to make his note in some way evidence? To use it as a law report would you require a section?—I think there ought to be some system by which he would submit his transcript for revision by the Judges, and that should be accessible to the public.

4530. It should become a public document?—At present if the reporter of the Law Reporting Society takes down a judgment the copyright of his shorthand notes is the property of the Society, and unless he is willing to give it, no one can get it. It is not public property. I made one alteration in regard to judgments—written judgments. I refused to allow the Society to appropriate them, because I believe such judgments are public property. I think they ought to be deposited in the office of the Registrar, where they are open to the public, or to anyone interested. That is all that occurs to me as regards the Supreme Court.

4531. Chairman.—I want to ask you whether you find any congestion in your Court. Have there been any arrears?— Not much arrears. We have had some, but, on the whole, no volume of arrears. We have had occasionally cases necessitating research, but nothing beyond that.

4532. There has not been any long delay?—I think one or two cases have been held up, generally on questions involving matters of public interest, where we had to investigate and make researches. There was no great number of these cases.

4533. Senator Brown.—I think what the Chairman is anxious to know is: are you able to keep up with your work? —Yes.

4534. There is never too much?—We have never an idle day. I adjourned the Court to come here to-day. Our ordinary week’s work is: We sit on Monday, Tuesday, Wednesday and Thursday. I sit on Friday to deal with lunacy cases, and my colleagues work at the cases standing on that day. On Saturdays we have a conference of all the members of the Court to consider judgments.

4535. Chairman.—You have a full week?—Yes; no idle day.

4536. Senator Comyn.—In reference to the official shorthand notes of cases, would you have it printed?—No. I think the shorthand writer should transcribe his note and deposit it in the Registrar’s office.

4537. Deputy Little.—Do you not think it would be better to have the notes printed as a record in preference to the transcript?—Of course it would be better still to have it printed, but that is a matter for the Department of Finance. I think it might well be printed.

4538. It would be better for reference through the country?—I think the reports should be supplied officially. In a number of cases no great principle is at stake, but we seem to be getting a long run of heavy legal cases recently, and undoubtedly the decisions ought to be available for public use.

4539. Senator Dowdall.—You said that when the Act was being framed you strove to secure a larger number of Judges in the Supreme Court?—Yes.

4540. And on the grounds of public economy that was turned down?—Yes.

4541. Senator Dowdall.—Is it your view that a good deal of the complaint has been caused by the insufficient number of Judges in the High Court, and in some cases in the Circuit Courts, due to reason of economy?—

Chairman.—Better keep to the Supreme Court for the present, I think it would be more convenient to take them court by court.

4542. Senator Hooper.—You gave some figures showing the size of the Supreme Courts in the Dominions and in the provinces of the Dominions. Some of the figures are rather striking. You mentioned that in one of the Canadian provinces, in Ontario, they had nine Appeal Court Judges?—Yes; I was surprised at that.

4543. In cases like that do you know were there any members of that Court available for other Courts?—There are other Courts and other personnel. You will find them in Whittaker. I am not able to answer at the moment. I did not know the Court was so large when I was there. I did not know there was so many or I would have inquired when I was there how they occupied the time of so many Judges. On the other hand Ontario is a tremendously active place, and there is an enormous amount of commercial work there.

4544. In reference to the others you mentioned five Judges in one place. Do you think the members of the Supreme Court are confined to the Supreme Court or do they go to the other Courts?—In Manitoba I think there are five confined to the Supreme Court. They have spent an enormous amount of money there, both in the fitting up of the Courts and on the personnel. I think the same applies to British Columbia. I am quite confident that in British Columbia where the population is half a million the five Judges are confined to the Supreme Court. Curiously enough, the Supreme Court is across the water in Victoria and the other Court is in Vancouver. I think that in Alberta they do other work besides Appeal Court work.

4545. You think if the Supreme Court were enlarged to four or five it would be unreasonable to expect some members of that Court to help in other work?—My view is that the Court of Appeal ought to be kept separate and distinct. In the old days we had the experience—as Senator Brown can tell the Committee—and it was never satisfactory. You have great difficulty if a Judge in the Court of Appeal has to try an ordinary case in which there is an appeal from himself. You will then have to borrow another Judge so that it leads to great confusion. I am strongly of opinion that the Court of Appeal should be something separate and distinct.

4546. You mentioned that there is now a larger number of appeals going to the Supreme Court than went to the Court of Appeal under the old system?— Yes.

4547. Can you suggest any explanation of that?—One is owing to the points of constitutional law that have arisen.

4548. New law?—Yes. We have a lot of new law.

Senator Comyn.—And more confidence in the Courts, perhaps.

4549. Senator Hooper.—I have heard the suggestion made that it would be a good idea if the judgments in the Supreme Court were always written. You suggest now that a note should be taken of judgments. I would like to hear you on the suggestion that the judgments might be written?—That would occupy a lot of time. The way we deal with judgments is to state the relevant facts of the case, then the grounds argued, and then the decision and the grounds of it. To write that is a very laborious business. It might be that there is no point of any importance involved in the case, and that it is sufficient to have the record. Otherwise the result might be that it would lead to unnecessary labour. I think the origin of the suggestion about written judgments was that in some States in America that is the rule. I have heard many complaints. But the reason is this: Take, for instance, the State of Washington. There the appellant lodges a printed book with his appeal, stating his arguments, in accordance with the facts, and the other side state their arguments in writing. These are studied privately by the members of the Court in their own chambers. Then they come out and they hear counsel for a comparatively short time—I think only an hour at the most, unless they make special application. Then having heard counsel probably on some special points put to them, but limited to an hour for each side, they retire and write the judgments, which they “hand down.” With us the case is all threshed out in Court, and you may be in a position at the close of the argument to deliver judgment immediately. If you have to write it out, it means that you have a pile of them accumulating. If it were a case that you could dispose of immediately, it is obviously a case in which you ought not to spend days writing out a judgment.

4550. Senator Brown.—The question of the number of Judges of the Supreme Court is an extremely important one?— Yes.

4551. It is a question apparently between the number of four and the number of five, if they are to be increased. What struck me in looking at the figures you have given as to the other Dominions is that the Courts that are most like our Supreme Court in being absolutely final for practical purposes are the Supreme Court of Appeal in Canada and the Supreme Court of Appeal, or whatever it is called, in South Africa. These are practically final. In Canada you have the Chief Justice and five others, making six, and in the other you have the Chief Justice and three, making four?—I think four should be the minimum.

4552. Would it be fair to ask which of them you personally favour?—I would be inclined to split it and say five.

4553. But as between four and five?— The reason I would say five is that you allow a margin. I think the Court should always consist of four, and if you have five, and one is ill, you can still constitute the Court.

4554. Five would be better than four if the appeal were from two Judges, as you must have a majority in favour of the ultimate decision?—Yes.

4555. Chairman.—That disposes of that part of the evidence. Now we come to the High Court?—I want to say something on the Court of Criminal Appeal. I do not know if it is within your terms of reference.

Chairman.—We are confined to civil jurisdiction.

4556. Senator Brown.—Would it in any way affect the working of the Courts?— It has one bearing which I can mention. All the Circuit Court appeals in criminal matters come to the Court of Criminal Appeal. I wanted to mention that these appeals are entirely on stenographers’ notes.

4557. Does it interfere in any way in the matter of time, in the working of the High Court or of the Supreme Court? —No, but it is rather interesting, if it is in order, to state what has occurred as regards the number of appeals. This was a matter that we regarded with the greatest fear, because we thought the Court of Criminal Appeal would probably bring an avalanche of cases which would paralyse the work of the Supreme Court. In point of fact, it has been quite remarkable. I have the figures for the last three years, and they are practically stationary figures. The number of appeals in 1927 was 31; in 1928, 31; and in 1929, 32; that notwithstanding that they come from both the Central Criminal Court and from all Circuit Courts.

4558. Chairman.—Does the hearing of these appeals interfere with the hearing of civil cases?—Practically not at all. The way we deal with them is: we collect a number of them and perhaps sit for about two days in the term—no more. Of course there have been exceptions. A very big murder case, argued out fully by counsel, might take longer—it might be a very important case. But the Court of Criminal Appeal has been of great importance, because they have had a Court of Criminal Appeal in England for a long time. Our criminal law was backward altogether and it urgently needed being revised and brought up to date, we considered, in many respects. In some of the cases we have given a little extra consideration, because we wanted to review the state of the criminal law. But a great many of these cases are argued by prisoners in person. The way we have of dealing with them is this. In these cases, of course, where prisoners argue in person, they are not able to keep their end up very long. In order that nothing may happen to them, I personally, and the other members of the Court too, read over the transcript of the shorthand note, both of the evidence and of the charge to the jury, before the case comes on in court and try if possible to see whether there is any case the man could make for himself, if he were capable of making it.

4559. Senator Wilson.—Before you leave the question of the Supreme Court— can you suggest any work to employ the extra Judges; could they be put on Circuit work if we had a Circuit?—I think they will be occupied. They will be occupied just as we are now. They will sit with us. The only thing is that they may direct different minds on the result.

There is an additional point—I do not know whether it is in order to mention it. The scrivenery work in connection with the Court of Criminal Appeal is done in the general scrivenery office of the central office of the Courts. We are very much out of touch and we cannot make suggestions in these matters, but, if I might, I should like to air this particular point. I feel very much that the scrivenery office ought to have some male scriveners. I have been protesting against having cases of the most objectionable character handed to young girls of the typist and copyist class, who are the least educated and the least quaulified to deal with that kind of thing. If this Committee can do anything to relieve me of my difficulty in that matter I should be very glad. It is a common scrivenery office and these things go there to these typists and copyists. The point is that there should be a male scrivener or scriveners.

The next matter I wish to deal with is that of Minors and Lunatics. I have got figures from my officials dealing with these cases. I need hardly tell the Committee that I am only concerned with Minors and Lunatics who have property. The function of the Court in relation to them is to administer their property for their benefit. Consequently, people with no property are not within my sphere at all. The lunacy cases now pending are divided into classes. There are what we call the Section 68 cases. These are the people whose property is under £2,000 in capital value, or under £100 per year income. Of that class, there are at present pending in Court 735 cases. Then, of the Sections 12 and 15 cases—these are people whose property and income are above these figures—we have pending 295 cases. Then we have what are known as general order cases. These are very small cases where the capital value of the property of a person who comes into jurisdiction is under £200, or the income under £20. These are mostly cases we discover in mental institutions. Of these cases we have 430. Then we have another class of case known as the Section 103 cases. These are the temporary cases, where we only make a temporary order for six months, with liberty to renew once. Of these there are only six cases. That makes a total of 1,466 pending cases. In addition to that, there are 150, which are what you might call in limine; that is to say, the initial steps have been taken, and though they are not yet actually within the jurisdiction, they are on the threshold of the Court. Then we have the cases that are, so to speak, on the way out; that is where persons have died and the estates are being wound up. We have 100 of these. That makes the total number of cases at present under my jurisdiction in lunacy 1,716. The minor cases actually pending number 289. As you know, however, a case may involve one or more minors, and the actual number of minor persons who are in wardship of the Court at present is 490.

4560. Chairman.—Friday is a very busy day with you then?—I seldom get away before six or seven on a Friday evening.

4561. Deputy Little—You do not find that you are overcrowded—there is no delay?—Of course there is a good deal of work done in the office. There you have first-class officials. Though I sign every order finally before it goes out, the ordinary business is largely done through them. But, as the Chairman says, Friday is a very busy day.

4562. There is no actual hold up of business?—None. Everything is absolutely up to date there. I did hear, I think, some suggestion about the right of appeal —in fact I think it was an article in some paper recently—that it was not a logical arrangement owing to my being a member of the Supreme Court. The position as regards appeal is this. Formerly there was no appeal in lunacy cases at all, save to the King in Council—that is to the Privy Council. Of course they were almost unknown. In minors matters there was the ordinary appeal formerly to the Court of Appeal. Under the Courts of Justice Act, 1924, there is an appeal in all cases, minors and lunacy cases, to the Supreme Court.

4563. Senator Hooper.—From your decision?—Yes. In point of fact, there never has been an appeal in lunacy cases. There have been only two appeals in minors cases. The jurisdiction in lunacy formerly was exercised by the Lord Chancellor under a direct letter from the King. After the Government of Ireland Act, 1920, that was transferred to the Chief Justice and it was from him transferred by our own Statute to the Chief Justice of the Free State. In minors matters, the jurisdiction was formerly practically a Chancery jurisdiction. At one time it was regarded in the position that the Crown was parens patriae and had jurisdiction over minors in that way, though in practice it was always exercised by the Lord Chancellor. One thing that has been accomplished which I think was good was that we amalgamated these two Departments, both being, so to speak. wardship cases of their nature. We have a separate staff working both Departments in a single office. I do not know whether any changes are contemplated by the Committee with reference to this particular jurisdiction, but there are some points which I would like to mention. In the 1928 Act there was a very good improvement made. I was authorised to abolish the use of the term “lunacy.” It has always been a very trying thing in documents and correspondence. In a great many of these cases cures are effected and it is regarded as a great smirch upon a family, and it affects members of a family who are utterly untouched by the disease to have documents suggesting lunacy in the family. For that purpose, I was given leave to alter the term and there will be a rule soon. It will be laid upon the Table when the Dáil meets again and its effect will be to change the title. The title will be simply “wards.” If a change were contemplated, this particular branch of work should be a one-man job. What I mean is that one man should be always attached to this particular work. There is a very human element about it. A great deal of the work is done, not in court, but in Chambers. There are a great number of conferences with relatives and so on, and in a great many of the cases one requires more or less to be personally in touch. Again, one often requires to be available in urgent cases.

4564. Senator Brown.—Do you mean that there should be a special Registrar? —No, but a Judge. I suggest that if there is a change made only one Judge should be attached to the position, and he should be made responsible for it. It has occurred to me that the suggestion about an alteration may possibly arise from this idea—the throwing of the staff of the Lunacy Office into the central office. I want to register my protest against that, because the staff of the Lunacy Office must be separate and independent. The business of that office must not circulate. Absolute secrecy is essential to the working of the office. So much is that regarded as necessary that on the death of a patient all the medical reports and other things of that sort are destroyed. Similarly, when people are cured the medical records are destroyed. I think it will be generally agreed that that is desirable. If you have this work thrown on an interchangeable staff, you could not entertain that secrecy. I do urge that there should be one judge with a separate staff. The registrar and the assistant registrar in lunacy are required by law to carry out visits. This is what I regard as the most important portion of the whole of the lunacy administration—visiting. A great many patients are in private care and it almost passes belief what might happen in the case of persons in private care were it not for visitors. I have had some experience in this matter, and my experience impressed this thing very much upon my mind. I also think that a similar system of visiting should be introduced for minors. I think that those particular classes should be dealt with separately and a convenient title would be “Court of Wards.”

4565. Senator Hooper.—When was that abolished—the visiting of minors?—So far as I know, there never has been any power to visit minors.

4566. Senator Brown.—There was a separate office and the Chancellor had exclusive jurisdiction?—Yes. After 1924 the two were amalgamated into a single office, there was so much in common. In lunacy there is, under Statute, special power to appoint people whose job is visiting. You send these people on surprise visits both into private and public asylums and to people under private care. It is very necessary.

4567. Deputy Little.—What is the difference between a public and a private asylum? I have in mind some large institutions the names of which I do not wish to mention. Would large institutions be necessarily public?—I am speaking of places that are supported out of public rates and taxes. An institution like St. Patrick’s is subject to public inspection. An inspector of asylums has to visit and report regularly, but it is a charitable trust founded under the will of Dean Swift.

4568. Senator Brown.—A suggestion was made by a witness some days ago. He was one of the County Registrars and he suggested that lunacy jurisdiction should be conferred on the Circuit Court? —As a matter of fact, they have it but I am sorry to say that from my experience of it, it has not been well administered. I do not suggest that it should be removed. The unfortunate part of it is this: one of the most important parts of our lunacy machinery is the matter of visitation. We have three classes of visitors, the registrar and his assistant registrar who take it in turns, medical visitors and lay visitors. The medical visitor does not, because he cannot, as a professional man, plunge into the place unannounced. The lay visitor has better opportunities. He has to examine the wardrobe of the patient and see that the meals are properly attended to. Some cases were brought under my notice by the American Bureau which looks after the disabled men who served in the American Army during the European War. The American Government gives a very large grant in respect of these men who have become incapacitated through service. It is quite surprising the extent of it, compared with what we see done by another Government. The Americans send their own medical men to view the patients. Some of the latter, I am sorry to say, were in a deplorable condition. They asked my Department to take them over and that is because there is no machinery so far set up in the Circuit Courts. Those men have no visitors and apparently the County Registrar does not visit them.

4569. Senator Comyn.—Seeing that the medical and lay visitors of the central staff are so experienced, would it not be desirable that all the jurisdiction should be concentrated there?—I think probably it would.

4570. Is it not your experience as a Chief Justice that some very small cases have been dealt with and dealt with very cheaply in the central office?—That has been one of the surprises to me. In lunacy it is extremely cheap. We had a lunacy case transferred from the Circuit Court at the request of the American Bureau. It was transferred to my Department and we were amazed at the bill of costs in the Circuit Court; we could not understand it at all.

4571. Senator Brown.—Perhaps it would be better to withdraw the jurisdiction from the Circuit Court in view of the fact that they have not the personal advantages there?—Unless you provide the machinery which I believe to be absolutely necessary, it would be, because it would be in the interests of the patient.

4572. Senator Comyn.—Your visitors have to visit all parts of the country?— Yes, and not only that but England and Scotland as well. We have a lot of small cases which come to us in this way. All the mental hospitals are bound by law to report every case where the patient is supposed to have property. Immediately my office gets into motion and that is where the General Order comes in. We find perhaps that there may be a small farm and, when further inquiries are made, we may find that there are pretty substantial deposit receipts. These deposit receipts have to be carefully watched because they are in the habit of disappearing. Unless the same machinery, worked on the same principle, though it may not be of the same size, can be supplied by the Circuit Court, then the only alternative is to centralise it.

4573. Chairman.—Do you not think it would be difficult to provide proper machinery in the Circuit Court areas?— I think it would, but of course a County Registrar could easily visit within these areas.

4574. Chairman.—But the fact that the County Registrar is now also the sheriff makes a difference?

4575. Senator Wilson.—Is there not an advantage from the public point of view to have them in the Circuit Court?—I do not know that there is. There may be a disadvantage in this country where people do not like their affairs known or talked about.

4576. Senator Hooper.—Are your charges fixed—or are they on a percentage basis on the property?—We have two methods. We have a percentage on the income graduated. In the general order of cases £200 properties and under £20 of an income are free from all percentage and fees. These are the cases of poor people. There is no charge for these at all. On the other hand, in the case of large estates we have the graduated scale and they pay on a larger basis. For what they pay they get the administration, land agents, receivers and all that sort of thing. This is the only office in the whole Court that not only pays for itself—pays its own way— but produces a profit.

4577. Senator Wilson.—It pays for the cost of visitors and all that?—Some of the visitors are paid out of the estates but in the case of poor people they are paid out of the percentage, which is now a Government fund.

4578. Chairman.—That is a very good reason for retaining this as it is?—Yes, and arising out of what Senator Hooper said I suggest that in the case of minors there should also be a percentage charge made for the administration of the estate, with the charge graduated in the same way. I think in the case of some minors there is no reason why they should not pay a percentage.

4579. Senator Comyn.—In the same way, as in lunacy cases?—Yes.

4580. Deputy Little.—Is that dealt with under legislation?—The power to charge a percentage under the Lunacy Regulations Act and the percentage itself is fixed by Order made under the Courts Officers Act of 1926 and the Order was made by the Minister for Finance.

4581. You want power to do the same thing in the case of wards?—Yes

4582. Senator Wilson.—In the case of wards is not the management vested in trustees generally?—It may be in the case of a settled estate. Where you have trustees they, of course, will manage it. You might charge a percentage on the income because, first of all, you keep an eye on the trustees for the wards. This system of making a larger charge upon a larger estate helps the poorer cases and helps to keep the whole thing going.

4583. Chairman.—You are satisfied that except for the amendment you have suggested that the office is working well and that it should be retained?—There should be some qualification, namely, if the office were established. But I am here now five-and-a-half years and I have my officers battling around me saying that they have been very badly treated. When the Courts Officers Act was passed the Registrar and the two Assistant Registrars with the Chief Clerk had their positions fixed, but the whole of the rest of the staff have been left there without their salaries or pensions being fixed. They blame me. They do not realise that the Courts Officers Act was an Act with which I had nothing to do. They are complaining that their positions are not fixed and they do not know where they are. I have written again and again but though I think the Department of Justice is trying to get the thing right nothing has been done.

4584. Were these officials paid out of the lunacy fund?—Under the Act of 1926 Parliament took over the fund. Before that, their salaries would have been paid out of the lunacy fund. That fund was taken over and transferred to public funds. These officers have never been graded as Civil Servants. They were appointed formerly under the old judicial patronage system. They do not know where they stand now and I am always receiving complaints from them.

4585. Deputy Little.—Is that a matter for legislation?

Chairman: No, administration.

Witness.—This is the only opportunity I have had of eliciting support for these officers. I can do nothing for them myself although they think I can.

4586. Chairman.—There is, of course, a feeling of insecurity amongst them?— They are discontented. I must say they do their work well.

4587. Of course, you do not get the best return out of men who are discontented?—You cannot expect it.

4588. Senator Wilson.—Are they the same officials who look after the minors? —There is practically only one man in charge of the minors—that is the Assistant Registrar. He was an established officer of the Courts before the change, but he has practically no assistant.

4589. Deputy Little.—You mentioned about that fund. Was it made up of odds and ends?—I forget what it was. It was made up of percentages.

4590. The whole thing was taken over?—Yes. May I say before we pass away from this matter that I think there ought be a Committee set up to enquire into amendments of the Lunacy law. One of the great difficulties is the question of jurisdiction as between the Free State, England, and Northern Ireland. We have cases arising every day here which call for the appointment of such a Committee. For instance, if we have a patient here and the entire of his property is in Northern Ireland, you have very grave difficulty in administering his estate. Similarly, if there is a patient in Northern Ireland and his property is here, a difficulty arises. Before Sir Denis Henry died we had practically worked out the lines of a solution of the situation, but unfortunately the death of Sir Denis Henry, the Chief Justice of Northern Ireland, prevented the solution being reached. That is a very urgent matter. For instance, supposing that a patient in my area has investments in England and I make an Order to transfer them to the Free State, the situation is that some of the English companies will not recognise the Order made by me and some of them will recognise my Order. The others take the line that until reciprocal legislation is passed dealing with the matter they will not act.

4591. That would require legislation in both countries?—It requires a convention to start with. Of course, other things arise in connection with lunatics placed in that position. Having property in both places, the question of revenue arises. Supposing a patient was living in Northern Ireland and had property in the Free State, the question arises what happens the revenue which should be derived by the Free State from this property. There are a number of matters in connection with lunacy law that to my mind require examination. There ought to be a committee of some kind set up to go into that question.

4592. Chairman.—Now, as regards the High Court, would you give us some information with regard to it?—On that matter I have not very much to say except this—that there is no margin in the High Court at present. I believe this, that if the full complement of Judges had been appointed originally they could have dealt with the Circuit appeals and the other business generally, but unfortunately when the six Judges of the High Court were appointed one of them was, I understand, appointed on some special terms that relieved him from doing any of the general work of the Court. The result is that the High Court has to carry on with five Judges. That has prevented it from keeping pace with the appeals and this has been appreciably the cause of any arrears that there are. There may be some misunderstanding but there have been only five Judges in the High Court instead of six.

4593. Senator Brown.—Yes, five Judges doing ordinary High Court work?—Yes, the other Judge is not available now if I want a Judge for the Court of Criminal Appeal and he is not available for any of the High Court work. The trouble and complaints that have arisen are attributable to that.

4594. The Chairman.—That is the Land Judge?

4595. Senator Comyn.—Chief Justice, you made a reference in one case to a contempt of Court matter?—There was just one such case. If that were to continue there is no doubt that additional Judges would be required. Six Judges, the number selected originally, is believed to be the number of Judges required by the High Court.

4596. Chairman.—That is for all their work, including the hearing of appeals?— Yes.

4597. Are you of opinion that if the six High Court Judges were doing the ordinary Court work of the High Court they would be sufficient to keep the work of the Court clear, including the hearing of appeals, and to keep the work up-to-date?—I think so. Indeed, I have no doubt about it. There is one thing I should mention in this connection. In the old days a great deal of the work of the High Court was done by the Judges sitting in Court and it was not work that needed to be done by Judges at all. We started out with the idea of devolving a lot of that work on to the Master. Subsequently, the question has arisen as to whether the giving of this work to the Masters was entrenching upon the judicial power of the Judges under the Constitution.

4598. Chairman.—Under Article 64?— Well, as regards that I cannot say anything, and for this reason that that is still an open question. It has not yet been finally decided. If it were to be decided that that work should be done by the Judges in Court it might be that that would throw more work on the Judges and then they might want another man. If on the other hand, the scheme originally conceived works out with the Master doing his own part of the business as he is doing now, there is no doubt at all that six Judges can do the work.

4599. Chairman.—Are you aware that there has been a great deal of delay in the High Court, particularly in the hearing of appeals from the Circuit Court— and that in some cases this delay has reached one and a half to two years?— Yes. There was a great volume when they started, but I have not got the figures.

4600. Senator Brown.—We have got the figures?*—I do not know how they stand for the last year or two or whether there is any grievance in that respect or not.

4601. Roughly, at the beginning of this year, there were 200 appeals unheard?— Did they go back over a period?

4602. Senator Brown.—They went back about twelve months. I think you may take it that there are about 200 a year and that they have got a year behind. It looks as if that were the situation?

4603. Senator Comyn.—It is difficult sometimes to constitute a court for certain cases?—I have not heard any complaint of that kind.

4604. Senator Brown.—The figures will interest you, Chief Justice. On the 1st April, 1927, there were 527 appeals waiting. That was before the Commissioners were appointed. On the 1st January, 1928, after the Commissioners had done their work, there were only 96 waiting. On the 1st January, 1929, there were 164 and on the 1st January of this year, there were 226?—I do not act in that court and I do not like to say anything more than this: that I believe if they had the full working number of Judges, there would not be any difficulty.

4605. The evidence we have about the speed of these appeals would go to show that three a day is as much as two Judges can get through. It looks as if the work would take two Judges working five days a week about three months in the year. The nature of these appeals, of course, varies very much?—Yes.

4606. Could you give us any idea whether there is any reasonable chance of the particular work of the sixth Judge, who is there now but who is not effective as regards the other work, coming to an end? Is his Land Commission work going to continue in saecula?—It is going to continue for quite a while. They have a tremendous amount of work. I think I remember it being stated in 1923, when the Act was going through, that all the estates would be vested in a few months.

4607. The great bulk of the Land Judge’s work is done in his own office and not in court and that must continue until the last estate is sold?—I do not know that he does so much work in his office now. I think a great deal of the work is done by the two Commissioners. At one time, he did perhaps more administrative work than he does now, so far as I understand.

4608. Senator Hooper.—Was all that work taken into consideration when the number of Judges was fixed at six?—It was, but it was assumed that there would be six working Judges.

4609. Senator Brown.—It was not thought that the Circuit appeal work would be anything like what it turned out to be?—We could not form an estimate of what it would be. I do not think it is yet possible to say what it will work out at. As everybody knows, there is a great deal of “chancing the arm” until it is seen how the Courts are turning out and what they are likely to do with the appeals. It is possible that appeals will not remain in the same volume.

4610. Senator Comyn.—Even though it has been decided now that there is no appeal on a question of fact?—Where was it decided?

4611. Senator Brown.—There is no effective appeal, but we will come to that later on.

4612. Deputy Little.—You, Chief Justice, have under your control Commissioners for Oaths?—Yes.

4613. Evidence has been given here that there is a demand in the country to have affidavits sworn before Peace Commissioners. Would you care to express your view on that?—I am strongly against it. My first reason is that the Commissioners for Oaths are officers of the Court. They are under the control of the Judiciary and they have to comply with the Rules of Court. Peace Commissioners are appointed by the Executive Government. I suggest it would not be right to impose upon the Courts the necessity of accepting the work done by people appointed in that way. As a matter of fact, we have some difficulty with that type of person. When they are given a commission for oaths, as sometimes they are, there is always a difficulty about the fees. They immediately embark on charging fees for Peace Commissioners’ work which they should not charge. My own view is that if you could induce solicitors to act as Commissioners for Oaths, nobody else should be appointed.

Chairman.—I do not see how this question comes within our terms of reference at all.

Senator Comyn.—It was asked yesterday.

Deputy Little.—It arose in evidence yesterday.

Chairman.—If it was relevant at any time, it is not relevant at this particular moment.

Deputy Little.—The reason I referred to it was that, in starting out, the Chief Justice gave us a complete list of the matters over which he had control. I took this matter up in the order in which he had placed it.

Senator Brown.—Deputy Little has now got the Chief Justice’s valuable opinion, whether it is relevant to our inquiry or not.

4614. Senator Comyn.—May I take it that the taking of an affidavit is a serious matter?—In my view, it is.

4615. Deputy Wilson.—The position is that the Courts in Northern Ireland recognise the certificate of the Peace Commissioner of the Free State but the Courts in the Free State will not recognise it?—The Courts of Northern Ireland are the Courts of a province.

4616. Chairman.—On the question of appeals from the High Court and the Supreme Court, do you think there should be an official stenographer attached to the High Court?—I am confident there should.

4617. Would you agree that there should be an official stenographer in every court?—I think so. It is a curious thing that that was omitted from the Act of 1924. For years and years at the Bar there was an outcry for official stenographers for trials. We had them in the Chancery Courts.

4618. Senator Brown.—And in the Probate Court?—Yes, and in matrimonial cases. In fact, it was essential in matrimonial cases. There had to be an official stenographer in bankruptcy, but not in trials unless the parties paid a man in court to act as stenographer. The appeal was on the Judge’s note and the facility of Judges in taking notes varies with age and physique and other things. There was a constant outcry that the Judges omitted from their note what they were not able to take down or what they did not hear, and the Bar were always insisting that we should have stenographers. When the stenographer system was introduced for the Circuit Court it was intended—I think I am right in saying this—to have it introduced also for the High Court. That was really an omission.

4619. You think it would be desirable to have official stenographers attached to all the courts?—I do. Now, they nearly always have shorthand writers who are employed by the parties at great expense because, when you employ a private shorthand writer and get the notes transcribed, it is very costly. In practically every case where that is not done and where we have to proceed on the Judge’s notes, we have complaints that something is omitted. We must, of course, accept the Judge’s note as final.

4620. I suppose an official stenographer would hardly be required in the District Court?—I do not think he would.

4621. But in all the other courts, he would?—Yes. As a matter of fact, I wanted to say something about that in connection with the Circuit Court, because it is a matter on which I feel strongly. Some time ago, in a Circuit Court criminal appeal, I found there was delay in getting the transcript of the evidence. I directed an inquiry as to why the appeal could not be gone on with and my registrar wrote and found that the stenographer was an auctioneer and in his spare time acted as stenographer to the Court. The reason I felt strongly about that was that when I was in charge of this 1924 Bill, when going through the Oireachtas, I gave a very definite undertaking in the Seanad that no casual labour would be employed on this stenographic work but that there would be regular official stenographers who would be officials of the County Registrar’s office doing other work when not reporting. It was pointed out then how undesirable it was that a person outside with no responsibility to anybody, should take a note of a case and transcribe it. He might have an interest in a party in the case and, of course, the practice is open to very serious complaint. This man was not even a newspaper reporter; he was an auctioneer.

4622. Senator Brown.—I am afraid that we have been assuming that the stenographer in the Circuit Court was a full-time official, paid by salary, and doing nothing else?—That was one of the things I was anxious to mention to this Committee, because the expense that is complained of in connection with these appeals is largely attributable to this practice. If you have an official stenographer, you have court rates. You can grade them according to the case, but you have an official fixed charge. I have seen exorbitant demands made before they would part with the transcript by those people who are brought in to report cases. I consider that a very grave abuse. Of course, it exaggerates the cost enormously also.

4622a. Senator Wilson.—Our information* is that the Registrar supplies copies of the notes at 2d. per folio and that the money is otherwise found by the Minister for Finance?—In all cases?

4623. In all civil cases?—The case of which I spoke as having arisen the other day was a criminal case. If you employ some irresponsible outsider on the staff of the courts he may possibly have some interest in a case.

4624. Senator Brown.—We are glad that you have called attention to this, because we have been going on the assumption that the official stenographer was a whole-time officer, that he was paid by salary and did nothing else?—I do not know whether they have them anywhere paid as whole-time officers.

4625. We will be able to get information on that from the Department of Justice?†—I do urge that the pledge that I gave was, I think, founded upon a sound principle. That they should all be official stenographers ought, I think, to be insisted upon.

4626. Senator Hooper.—Did I understand you to say that the case in which you came across those excessive costs was a criminal case?—I am not speaking from the point of view of excessive costs. As a matter of fact I have come across criminal cases in which an outside person was employed and made a very big charge.

4627. I thought that in all criminal cases only official stenographers were engaged?—I think they all are not so. I am speaking at the moment of Circuit appeals in criminal cases.

4628. Senator Brown.—In the case of the Circuit Court, it must be the same man who acts as official stenographer for the criminal and the civil business?—In the case of an appeal that came before the Central Criminal Court from the Circuit Court I had, within the last two months, to threaten to commit the stenographer for contempt of court for not producing the transcript of the notes on appeal.

4629. Senator Hooper.—That is not quite the point I want to get at?—I think that the employment of casual labour of that kind increases the expense, because I have seen large figures charged for transcripts.

4630. In ordinary actions I think that is very likely where parties go into the High Court in a big case and ask to have a special note taken. The cost in that case might be very high, but where you are dealing with the system of appeals from the Circuit Court I think it will be found that the cost is according to a regular scale. I think the excessive costs that the Chief Justice speaks of relate entirely to ordinary High Court actions?—I have come in contact with the costs side of it more in connection with criminal appeals than anything else.

4631. Senator Wilson.—If the request for a stenographer in the High Court were granted, would that do away with the necessity for the Judge’s notes?— Yes, save for his own purposes.

4632. The stenographer’s notes would then be the record?—What happens now in the Circuit Court in civil cases is that the Judge certifies that that is the note taken by the officer. The same could be done in the High Court.

4633. Would not that hasten the work of the High Court?—The Judge now has to take down all the evidence, and if called on for a copy of his notes he has to transcribe the whole thing himself from his own book. That is because probably his notes are written in a hand that no one else could copy.

4634. Chairman.— The Committee would like to have your views on the present mode of appeal from the Circuit Court to the High Court. We have got evidence that it is very unsatisfactory. It is said that for all practical purposes there is no appeal on fact, that the notes are generally unsatisfactory, that it leads to very long delays, and that it is at least twice as costly as the old system, and that, generally speaking, the people are not at all satisfied. They have the feeling, we are told, that when their cases are appealed the thing will drag on for six months or twelve months, that then some day they will get a letter informing them that their case has been heard, that the appeal has been decided against them, and that the costs are so-and-so. Some of these people come to the opinion that there is a sort of conspiracy between the legal men in the Court. That is roughly the trend of the evidence which we have already got?—You have spoken of the “old system.” Will you allow me to take you up on that?

4635. What is meant by that is the old system by way of re-hearing before Judges on circuit. The suggestion put before the Committee is that the present system of appeal should be abolished and that there should be a local re-hearing by one or two High Court Judges going on circuit?—Of all the witnesses.

4636. Yes?—First of all, the “old system” as regards cases over £50 jurisdiction was the same system that now prevails. There never was a re-hearing of that kind of case. The “old system” as regards cases under £50, that is the old county court appeal, had an historical basis which no longer exists. From inquiries that I have made it does not exist in any other country. I cannot find that it was ever thought of anywhere save here. It has a curious explanation here. There is an actual historical explanation for it. Before the setting up of the County Court you had a system of hearing cases by members of the Bar, what was known to the older generation as the system of the assistant barrister, who went over the country and heard cases. He was not a Judge. The right, however, was given to appeal to a Judge who heard the case over again. That is the real explanation of the thing, which is absolutely unique—simply that a man who was not a Judge heard a case and the people were given the right of appeal to a proper Judge. That no longer exists. Cases are now heard in first instance by judges. Therefore, that justification for it has gone.

4637. It was, so to say, a peculiarly Irish custom. If you were satisfied that the people of the country generally preferred the system of appeals by way of re-hearing, of having a second run for their money, would you think that the system of a re-hearing should be re-established?—If I thought that there was a well-informed public opinion demanding that I would of course yield to it, but I suggest there is not. I am afraid that the demand is very largely not founded upon very sound opinion. It is founded on a number of considerations. First of all, I think people like a trial run. I believe myself that it was an invitation to perjury. We all know that these cases on being re-heard at assizes were hardly recognisable.

4638. Senator Brown.—Sometimes, but not often. I say that after 25 years’ experience?—Then I think these cases got a very poor hearing at the assizes. A great number of cases had to be swept off the list. The time was short, trains were waiting and had to be caught, and so on.

4639. Senator Dowdall.—We have heard all that?—So little was thought of decisions given in these cases that in point of fact the decision of a High Court Judge, as a Judge of Assize sitting hearing these appeals, is not a decision of authority in the courts. One apologises for citing it.

4640. Senator Brown.—May I put this question, that whether the present form of appeal should be altered or not, would appear to depend on whether there ought to be an effective appeal on fact or not. Would you tell us your view of an effective appeal on fact?—We have first of all to clear up the thing as regards “fact.”

4641. Fact as distinguished from inferences of fact?—Fact in that sense really means the credibility of the witnesses.

4642. It means the thing that the witness is talking about?—It means whether you believe him or not. As between two witnesses in conflict, the Judge decides that question of fact. It has always been held that inference of fact is within the competence of a court of appeal as well as within that of the original court. At present you have an appeal on inferences of fact.

4643. But not on the ascertainment of fact?—Not on the credibility of the witnesses. So far as I know, practically nowhere does an appeal on the credibility of witnesses exist. Take, for instance, the County Court in England, which has a jurisdiction of £100. There is no appeal on fact there. There is only an appeal on law.

4644. And that only by leave in most cases?—In cases tried here in the High Court by a Judge without a jury there is no appeal on fact. There is an appeal on inferences of fact, an appeal on the recorded evidence. Assuming that the Judge in the Court below believed “A.B.” and did not believe “C.D.” we try to determine whether he arrived at a right decision. In this country there never has been, in our time, at any rate, an appeal on fact.

4645. Until it was set up by the Act of 1924 in the District Court?—Yes. That was because it was felt that it should be done in that case. I would ask the Committee to remember this that all Circuit Court criminal appeals are tried in the same way as the other cases are at present—that is on the stenographer’s notes. There is, of course, power to order a re-trial if the Judge has gone wrong in his directions on fact.

4646. Senator Wilson.—In the case of appeals from the High Court to the Supreme Court do you call witnesses?— No.

4647. You rely on the Judge’s notes?— On the Judge’s decision on the credibility of the witnesses and on his findings as to who was telling the truth. We take these facts as found and review the inferences from them.

4648. Senator Hooper.—Does not the Act presume to give an appeal on fact? Evidence given before us has been to the effect that the Act does give an appeal on fact, but that the Courts, in effect, have limited that?—It gives an appeal on fact in one sense.

4649. Chairman.—You are dealing with the present system of appeals from the Circuit Court?—Yes. I was supporting the existing system. It is of course as I say an appeal on fact in a certain sense in that you can have a re-trial on matters such as we lawyers call a ground of law, and which the ordinary layman considers a ground of fact, such as the wrong admission of evidence, or that the decision was against the weight of evidence, or was perverse in face of the evidence. In Circuit appeals now you can do the same as we can in the case of a High Court trial.

4650. Senator Brown.—On a new trial motion?—Practically a new trial motion. If it appears that the decision of the jury is perverse or against the evidence and that it should not be allowed to stand, we can send the case back for a new trial.

4651. Chairman.—At the present time the appeal Judges have power under the 1928 Act to admit oral evidence or a re-hearing of the evidence of any witness if they think it necessary?—Yes, and that has brought it into line with our position of appeals from the High Court. We can call—it is not commonly done—but we can call witnesses.

4652. You think that if there was a change from the present system of appeal from the Circuit Courts that such appeals should be by way of re-hearing before a High Court Judge and that that should apply to criminal cases as well as others? —I pointed to the case of criminal appeals as against your reverting to the old County Court appeal system.

4653. Assuming we were to revert to the old system?—But of course now we can order a re-trial but if there was to be a re-hearing in all criminal cases it would be appalling.

4654. You mentioned some time ago that it was difficult to get enlightened public opinion. We have had evidence tendered here by the Bar Association, the Incorporated Law Society, by several of the County Bar Associations in the country, by the Dublin Chamber of Commerce, by the Associated Chambers of Commerce, by the General Council of the County Councils, and all of these I have mentioned have been in favour of scrapping the present system of appeals. These are what you might call representative bodies?—That amazes me and I think there is an amount of misapprehension and confusion owing to legal people describing as an appeal in law what to the layman is an appeal on fact.

4655. The reasons adduced were, first of all the question of delay—the length of time it takes for an appeal from the Circuit Court to the High Court to be disposed of; the amount of expense; that it is not considered that you can have a proper appeal on the shorthand notes; that the people themselves—the litigants —are not at all satisfied, and that they would much prefer to have the appeal disposed of by way of re-hearing before a High Court Judge. These were the main grounds adduced by the witnesses of the representative bodies I have mentioned against the present system of appeal?— It seems to me that if you are not going to stop at £300 why not have all cases re-heard. If the principle of re-hearing is sound, then, when one serves notice of appeal, the witnesses must be re-examined as if they were never heard before. I do not know where that is to stop. You would have to treble the number of Judges because there would be more evidence forthcoming on the second hearing from both sides than on the first.

4656. Senator Brown.—We have had evidence to a small extent the other way from six people altogether. Two of them were very skilled witnesses, one a Judge, and two were County Registrars, but in giving their evidence they were asked if they distinguished between an appeal on an issue of fact as distinguished from an appeal on an inference of fact, and they all agreed that there should not be an appeal on an issue of fact. That is perfectly logical. In your opinion ought there be an appeal on the issue of fact as distinct from the inference?—I do not think so and for this reason. Someone must determine who is telling the truth and the way to meet the situation is to have proper Circuit Court Judges in whose capacity to ascertain the truth and to find out whether a witness is telling the truth or not, you must place implicit confidence. It is a question of whether you will accept the Circuit Court Judge’s view of the credibility of the witness or whether you will have that question tried by a High Court Judge or a Supreme Court Judge.

4657. A good deal of the evidence was based on the fact that in the Circuit Court, partly owing to the fact that there were no pleadings, and partly owing to the fact that there is no very learned Bar and that they are away from books, the issues are not sufficiently known, and very often the real facts are not ascertained in the Court below, but of course we know there is power to send a case back?—That has been very largely at the root of this business. In the old days in the County Court those of us who went there got our instructions to follow on the blue civil bill pinned to a back sheet and another document. Then you were told these were your witnesses, and you saw them in the passage and you did your best. That was all very well in a small case, but when you come to a £300 action a different system must prevail. I think the great trouble that has arisen in the early stages of working this branch of the Act has been the attempt to conduct these actions without proper preparation. I speak now from my observations of the stenographer’s notes. A certain number of these appeals filter through to the Supreme Court, and my observation has been this: In a fully pleaded action the person responsible for conducting it must sit down before the case comes into Court, and he must determine in his own mind what are the issues he is to establish and what are those he has to fight and repel. He must direct proofs formally on paper or in his own mind, directly to those issues. He must get everything in order, the papers and the documents that he has to prove, and the persons who will have to prove them. As far as I can judge, in the early days of the Circuit Court the old civil bill practice was sought to be applied to the big cases, and it did not work. But I have observed, and my colleagues have observed also, that the profession have adapted themselves to the new condition of affairs and to much better preparation in what we call the proofs on the presentation of the case.

4658. Mr. Wolfe.—You said that the old system was rather an invitation to perjury?—Yes, that is the old appeal system.

4659. Would it not occur to you, on reflection, that that is rather an observation applicable to the present system? —I do not see how that is possible.

4660. Will you agree that successful perjury is rare?—Yes, probably.

4661. Is it not still more rare on a rehearing?—I would not say that.

4662. On the old re-hearing I would submit to you that you did not find as a rule the perjurer who swore one story in the Court below and another in the Court above was the one who told the same story twice?—There is a story which is a direct opposite to what you told before and there is also trimming a story. I think stories were trimmed.

4663. If the successful perjurer succeeds now, he succeeds for all time under the present system?—That applies to every case and of course it depends on this. First of all, if you had a jury, you must rely on the jury to find him out.

4664. Under the present system your observation might fairly apply to him. There is an invitation to perjury because if the successful perjurer gets away with it he gets away for all time whereas under the old system he is caught out in nine times out of ten?—I do not altogether accept that because I do not know whether the old Judge going down from Dublin was as capable of sizing up a country witness as the Circuit Court Judge who is in contact with the people and knows them. I have seen some Dublin Judges going down on Circuit and I have seen their attempts to interpret the country witness and I am sure you have, too. I suggest you must rely on having a type of Circuit Judge living among the people, knowing the people and their idiom and being capable of weighing up their evidence.

4665. Assuming you had an appellate tribunal consisting of two High Court Judges with the assistance where necessary of a copy of the stenographer’s notes of Circuit Court proceedings, could you possibly conceive a more complete weapon against the perjurer than the tribunal I have suggested?—If you have a stenographer’s note of what the man swore.

4666. If he has sworn falsely he can be met with additional testimony on the rehearing?—He may.

4667. If he has sworn falsely the first time he cannot go back?—Your suggestion is an amendment to the old system, that is the old system plus the stenographer’s notes.

4668. Yes, to kill perjury, I would suggest to you, for all time?—You would have a very effective weapon for cross-examining, but I do not know that you would have as good a tribunal for testing his words.

4669. Under the present system the perjurer, if he has proceeded in the Circuit Court, is quite safe. He can not be challenged on appeal?—That applies all along the line in every case.

4670. We would all wish to put an end to the perjurer?—I am going to make a suggestion on the subject later on about the swearing of witnesses.

4671. When you are thinking over it, I wish you would consider the suggestion I make to you as to the new tribunal?— I pin my faith on competent Judges living in the district and knowing their people, and a local jury knowing their people.

4672. Senator Dowdall.—Juries are very rarely used?—When they are.

4673. Deputy Wolfe.—Do you not think that local juries may raise a question of very great difficulty; they may know some people too well?—They may. I look at seeing all that improved. I believe in juries.

Senator Comyn.—We had one witness who did not believe in them at all.

4674. Deputy Wolfe.—Under Section 61 the appeal on fact was given. Is it not rather unfortunate while there is such a section in existence there is, in practice, in effect no appeal on fact? I am very anxious that you would amend in any event Section 61 by knocking out the right of appeal on fact?—In so far as it is a right, yes. I would not prevent what you have under the Act of 1928, because under that, you can make an application for re-examination. I would say Section 61 never was intended to apply to re-examination of witnesses, but what I suggest is, that under the Act of 1928 you can get that in a proper case by applying to the Court for it on appeal.

4675. Is the result of that being availed of to any appreciable extent?—I do not know of any cases in which it arose, but there is no reason why a case for it could not be made out.

4676. It might, in some cases I suggest, be an effective weapon against the man who was not telling what is true, but is it not rather incomplete?—I do not think so. At any rate, nothing can be perfect in this life. You have ultimately to rely on somebody’s decision.

Senator Brown.—I think the Commissioners who heard the appeal told us that there were only 12 cases in which they called up the witnesses or sent down a case to the Circuit Judge.

4677. Chairman.—That was for a period of three years?—If you have power to call a particular witness before the Appeal Court to reconsider his evidence, is not that sufficient for all purposes without insisting that every appeal must be heard?

4678. Deputy Wolfe.—In twelve cases since the passing of the Courts of Justice Act, 1928, fresh evidence was given either orally or on affidavit?—Yes.

4679. Chairman.—Mr. Patrick Lynch, K.C., in giving evidence before this Committee, when asked if he could give the number of cases in which witnesses were called, said: “So far as I recollect we had witnesses up in about ten or twelve cases”?—That may have been additional evidence that had turned up since the hearing. For instance, we have in criminal appeals called oral evidence in the Court of Criminal Appeal; either evidence that was not available at the time or had turned up subsequently. In one case, I think, it set aside a verdict. When you have the power to do that where a case is made here, then I suggest to impose it in every case of the hundreds of appeals is too much; it is only used in England in exceptional cases in the criminal or civil side. It does not crop up often on the criminal side, but the case may be made, and when it is, you have power to send for additional witnesses.

4680. Senator Dowdall.—I speak as a layman with no particular knowledge of these matters, but it seems to me that the Act goes out of its way to stress the fact that there is an appeal on fact. The appeal under the section shall be on law or fact, or upon either. No question of law arises on the notes. Then, it seems to me, it must be a question of fact?— And they cannot call witnesses.

4681. Deputy Little.—Do you think that if the Circuit Court had a system of pleadings that it would assist very materially when it came to a question of appeal on stenographer’s notes?—I am very strongly in favour of pleadings, and from experience. People talk about pleadings and think of the old days of pleadings, when you had an enormous amount of waste verbiage for fear that anything might be omitted. We have gone long past that. The whole idea of pleadings is to state as shortly as possible on the plaintiff’s side what he claims, and on the defendant’s side what he answers. It is worth any layman’s time on this Committee to look at a book of pleadings and see what they are. If you read them you would see the real value of pleadings. First of all they bring about a great economy in time and in money. If you have no pleadings you have people wandering round, not clear as to what exactly they are fighting about. The whole object of pleadings is to find out what is in issue between the parties and to confine the fight to the issue. If you have not got that, they are fighting one issue at one moment and another at another; the Court has no control over them, because in the absence of pleadings you cannot limit them to the issue. What I am just going to mention I have only on hearsay, but I think it is accurate: In England they started what they call a Commercial Court, and as for some reason commercial men hate doing legal things in a legal and regular manner, one of the first things they did was to abolish pleadings. They said that a man who brings an action will write a letter in which he will state what he wants, and the man on the other side will state what his answer is. It appeared that these letters developed into a most voluminous correspondence for fear any possible point might be missed, and they never succeeded in knitting the issue at ail. The pleadings that we have to-day, which are stripped of all unnecessary trimming, state in succinct language what one party claims and the answer to it. Judgment operates as an estoppel, and if you have a judgment it is very important to know to what extent people are estopped; if you have no exact record consisting of the pleadings and judgment, you do not know how far the parties are estopped from raising questions again that may have been decided, whereas if there are pleadings, the judgment prevents these questions from being fought again. That is very important.

4682. Senator Dowdall.—The evidence given before this Committee has converted at least some of the laymen to the value of pleadings.

Witness.—I have seen this frequently in my own experience, that people start an action and when the thing got knit on the pleadings, everybody knew where he stood, it was settled and the costs of the hearing were saved.

4683. Deputy Little.—Your suggestion would be, Chief Justice, that it would be better to try out the present system with pleadings and proper rules of Court, without making any radical change by way of re-hearing?—Yes, that is what I suggest.

4684. Deputy Little.—As you must have known in the old days, the County Court Judges varied very much in capacity and temperament. Even at the present time, taking the Circuit Court Judges as a whole, they do not go without a certain amount of criticism, and under the present system if a Judge is not quite satisfactory, it rather spoils the case right up to the appeal. The re-hearing has been suggested as a way of getting out of that?

Chairman.—I do not think the Deputy is quite correct in stating that the re-hearing has been suggested as a way of getting out of that.

Deputy Little.—I do not think it has been suggested, but it would be one of the ways.

Witness.—You are putting it to me that there should be a re-hearing if the Judge is not a satisfactory person?

4685. No. I think I am rather putting it in a way that makes it very difficult to answer. Perhaps I might put it this way: If there was some power for moving Judges about from one district to another, you might get rid of the necessity for having a re-hearing?—It might be necessary in some cases, but there is this great difficulty about it: We have experience in this country of what were known as “Removables,” and if the Executive is to have any power of shifting Judges, then good-bye to the liberty of the Judges. The only possible thing is that they might be allowed to change places with the consent, say, of the High Court Judges or of the Supreme Court Judges, or something of that kind; but I would never be a party to any proposal that the Executive could move a Judge from one place to another.

4686. Quite so; I quite agree, but perhaps there could be some system by which they might move themselves, as it were, from time to time?—Well, it ought to be possible. A man might prefer another place if it could be arranged, and there might be some way by which, with his own consent, but only with his own consent, and perhaps operating through, say, the President of the High Court or the Chief Justice, or something of that kind, it might be worked as a matter of arrangement among the Judges.

4687. You have considerable experience of appeals from the Circuit Court Judges, and you might be able to say whether there was not a considerable amount of difference between a Judge in one area and a Judge in another?—It is a very difficult matter. It brings me down to a kind of personal element that is extremely difficult for me to discuss. Of course, there is always room for difference between persons and, as I say, the only thing is that you must choose your men.

4688. Senator Comyn.—Might I put it this way to you, Chief Justice? We all know that some circuits are better than others—I mean more acceptable than others?—Quite so.

4689. Would it not be possible so to arrange circuits that a Judge, when he is appointed, would be sent to a circuit that probably would not be very desirable, and that after a period of five years or so, he would go to another circuit? Do you not think that that could be arranged?— Meaning by consent amongst themselves?

4690. Yes, or in any way?—If all the circuits are filled, you would have to push a man out of a desirable place to let in another under such an arrangement.

4691. Senator Brown.—It was done quite recently; when there was a vacancy, and a Judge who had a very hard circuit was promoted to an easier one.

Witness.—When there is a vacancy, it is easy enough, but when your panel is full, it becomes a matter of compulsion if you move a man unless by consent. My recollection is that there was some power with consent in the original Act.

Senator Dowdall.—Yes, that is so, but I think it should be arranged between the Judges themselves, or by arrangement through the Chief Justice or the President of the High Court.

4692. Senator Comyn.—You think it is desirable that the Circuit Judges should know too much about the people?

Chairman.—Will the Senator show me the relevancy of this?

Witness.—I think, Senator, you have answered your own question. You asked if it is desirable that they should know too much.

Senator Comyn.—Well, I will not pursue that.

4693. Senator Farren.—Chief Justice, on this burning question of appeals from the Circuit Court with regard to the question of re-hearing, from all the evidence I have heard with regard to the procedure in the old County Court, which has been held up and lauded, it appears to me that it was not the wonderful institution that some people pretend it was. But if we raised the jurisdiction of the District Court to £50 they could have in the District Court what was formerly the preliminary canter they had in the County Court, and they could then have their re-hearing on oral evidence in the Circuit Court. Would not that be just as good as the system they had of going to the Assizes from the County Court?— The difficulty about that is this: If you give such a jurisdiction in tort and in contract you would absolutely dislocate the District Court. Contract is one thing; in contract a great many appeals are brought for the purpose of getting time; people launch the proceedings in the hope that by the time they have to pay they will have the money or that they will escape in one way or another, and they do not go to a serious hearing, but in tort the great majority of the cases are fought out. That has been our experience; the tort cases are the cases where people are really blooded. If you are going to introduce that into the present District Court, which is a rapid Court for disposing of small business, you will put it out of action.

4694. Considering that there have been no pleadings in the Circuit Court and an absence of rules, do you think that the Circuit Courut has got a fair trial?—It has not had a fair trial. In my opinion it has done wonderfully well without getting that fair trial.

4695. And is it your opinion that with a proper system of pleadings, as you have suggested, and with proper rules, that Court would be competent to discharge its duties with the amount of jurisdiction it possesses at present?—I am sure of that.

4696. You would not advise any reduction in the jurisdiction?—As to that I may say this, that I advocated originally a larger jurisdiction; I advocated £500 on the common law side, and the figure that was ultimately reached was £300, a compromise figure, and I certainly would not be in favour of reducing that. The idea was that the ordinary run of countryman’s cases might be tried in his own vicinity.

4697. Chairman.—Before we go into the question of jurisdiction, there are one or two questions that I would like to ask with regard to the appeals from the Circuit Court. I wanted to ask you, Chief Justice, whether you think that the Judges who hear appeals from the Circuit Court should have power to state a case for the Supreme Court?—The Judges of the High Court on appeal?

4698. Yes?—That is to say, in lieu of the present appeal?

4699. No—whether the Judges hearing appeals from the Circuit Court should have power to state a case?—There is an appeal at present. I think it really covers it. It would be a very useful form of procedure, because you could state the net points and get a decision on law.

4700. I think they have not that power at present?—No. Of course, the need of that has not been felt because of the fact that there is an appeal. Virtually what happens is this, that in the sort of case in which they would state a case they now give leave to appeal under Section 61.

4701. Senator Brown.—Then you have the trouble of reading the notes and trying to find out what the point is?—Yes, I agree that a case stated is very useful.

4702. Chairman.—Would you agree that the Circuit Court Judge should have power to state a case?—I would, more so in his case. A case stated would often avoid the expense of a full appeal.

4703. Would you favour the setting up of a Court to hear appeals from the Circuit Court, the first duty of such Court being to hear appeals?—Do you mean a separate Court, a kind of Appeal Division of the High Court?

4704. Yes. We had evidence to-day from a member of the Senior Bar to the effect that there was a case taken on appeal which started, say, on the 2nd, was adjourned on the 8th, and again on the 15th, as the Judges had to go and take up other work. Would you favour, as you say, a sort of Appeal Division of the High Court, whose first duty would be to hear appeals?—As a matter of practical management it would be very good; that is to say, that at the beginning of each term the President of the High Court would set apart two Judges and say: “You are the Appeal Division of the High Court until you finish the appeals, and you are to sit for that purpose until you finish.”

4705. Do you think that if that were done it would be necessary to increase the number of Judges?—Always assuming that you have six working Judges; I think it could be worked with six.

4706. We have had evidence regarding the cost of appeals from the Circuit Court, and some of the witnesses expressed themselves in favour of a scale of costs. The suggestion was that a person who was appealing would know beforehand what his appeal was going to cost; what would you think of that suggestion?—It would be difficult in big cases. Solictiors tell me that the present method of arriving at costs is a bad one, but that they cannot devise a better one to replace it. The American system is a kind of fixed basic percentage, and a contingency percentage on success. That is one possible method. I suppose that sooner or later Deputy Wolfe will be able to tell us whether the solicitors’ profession will get down to that. The difficulty at present is that when a solicitor presents his bill it consists of a lot of small items which the client cannot understand and cannot forgive him for charging, but it is the only way in which the solicitor can get paid.

4707. Deputy Wolfe.—A scale would get rid of taxation?—Yes.

4708. And would also be very expeditious?—Yes.

4709. Appeals from the old County Courts were often heard by Judges who announced and signed their decrees there and then, and threw the whole thing down complete to the Registrar?—Yes; if solicitors approve I think it would be a very excellent thing. The danger in the American system lies in the contingency end of it.

4710. Of course, there is the apparent unfairness that if a solicitor prepares a brief of 200 pages and one of two pages he gets paid the same?—Yes, but in the case of ordinary sales of land you have the same thing. In a big case you have very little trouble, but you get a good deal of trouble in small cases, yet payment by a scale fee is approved.

4711. Senator Brown.—Several solicitors approve of a profit scale?—Yes, that is how sales are worked at present. I think there might be a fixed percentage basis without contingency or, if there is contingency, it should be controlled.

4712. Senator Hooper.—It was suggested by one Senior Counsel who appeared before us this morning that if the old system of hearing appeals locally were revived a High Court Judge would go down and hear High Court cases without juries. What do you think of that?—Of course, there are people who always believe that whatever was was best, but the younger generation are being tutored under the new system. Then there is the question as to whether it is desirable to send Judges compulsorily throughout the country.

4713. It was not suggested that they be sent compulsorily?—Unless in cases where a view jury was necessary, I would say “No.”

4714. One of the great points made against the present system of appeals is that the litigant has no chance of being present when his appeal is heard and that if it were heard locally he could go in and see that he was getting value for his money?—Yes, of course, people naturally desire to be present when their appeal is being heard.

4715. Is it essential that the present Court should always sit in Dublin; would it be possible for the Court to go to three or four places in the country and hear appeals?—It is possible but it is terribly inconvenient and you would have to give travelling allowances to the Judges on a high scale because they must travel through the country and you must send registrars, officers, court books and forms along with them.

4716. You do not think that it would be worth that?—I do not think so.

4717. You spoke about a commercial Court in England. A suggestion was made to us that a similar Court should be established here and that one of the Judges of the High Court should be set aside to hear commercial cases, to make himself a specialist, so to speak, so that commercial litigation would be more expeditiously and satisfactorily disposed of?—When under the Act of 1924 we did not make it compulsory to have juries in contract cases that was what we were aiming at. We thought that a Judge could try such cases without a jury unless he thought it necessary to have an issue of fact determined by a jury. I do not know whether you, Senator Hooper, had any experience of practising in the London Commercial Court but I do not think that it was a great success. I understand that that Court will probably be reconsidered.

Senator Brown.—It was a great success under the first Judge, a Justice Hamilton, now Lord Summer.

4718. Senator Hooper.—It was the representatives of the Chambers of Commerce who made that point. You also told us that the jurisdiction of the Master had not been decided?—Not finally decided.

4719. Does that mean that there is still an appeal pending from the decision of the High Court?—There may be. I do not regard it as finally decided until they take it as far as they can. It has never been taken to the Supreme Court for final decision of the constitutional question of principle.

4720. It seems to me to be an extraordinary thing that in a matter which so vitally concerns the Courts of Justice, there should not be some procedure to get that issue decided?

4721. Deputy Little.—I think that there is a special Act preventing them going further with that?—There were some Orders validated. That was done on a High Court decision but it has never been carried further. I understand that a question will be arising on that so I do not like to say much about it.

4722. Senator Hooper.—Is it not anybody’s business to see that a decision is taken in the highest Court?—You can do nothing if the litigants do not go on. An appeal can only be taken by a litigant.

4723. Deputy Little.—It is really a question of legislation in order to get it right with the Constitution?—If necessary. Perhaps I should say at this stage that I would like to know whether I may mention a matter which I consider very urgent in regard to the Circuit Court.

4724. Chairman.—Is it on appeals?— On Circuit Court jurisdiction.

4725. Before you go to that there is one matter about which I want to ask you. The suggestion was made here that if it was decided to have appeals from the Circuit Court by way of re-hearing, the High Court could close down twice a year for periods of three weeks, and that all the High Court Judges should go on circuit to hear these appeals. It was thought that three weeks twice a year would be sufficient for High Court Judges sitting in eight or ten centres in the country to dispose of the appeals, and it was suggested that if that were done there would be the advantage that the leaders of the Bar would be able to go with the Court, and that litigants would be able to have the best counsel at their disposal for the comparatively small fee of two or three guineas?—I am wondering about the amount of the fee.

4726. The fee was mentioned by a senior counsel, and it was suggested that a man who would now charge a fee of from twenty to twenty-five guineas would, if he had to go down to the country, be available in the Circuit Court for two or three guineas?—Not for two or three guineas.

4727. Senator Brown.—I think it went as far as five or six guineas.

4728. Chairman.—Do you think it would be possible to close the High Court altogether for three weeks twice a year to have the Judges go down the country to hear appeals from the Circuit Court?—It is possible to close the Courts, for the Judges to travel, and for them to hear appeals, but you would have an outcry against hearing appeals in that way, which would be even worse than the present complaint. You are sending Judges to try appeals in actions up to £300, sending them out for a limited time, a lot of restless men anxious to hurry back to Dublin, and they would never get out of that feeling. We all have had that experience. Because of the limitation of time, to say nothing of the enormous expense—the time does not arise; it is a question of feasibility— you cannot get that adequate hearing of the appeals that will satisfy people.

4729. Chairman.—Is there any other matter before we pass on to the question of jurisdiction? On the question of jurisdiction, Chief Justice, what is your opinion?—There is an amendment, no matter how you fix the jurisdiction, that is very necessary. It arose also in the County Courts in cases of remitted actions. In the case of a remitted action, under the Common Law Procedure Act 1870, the jurisdiction of the County Courts was £50. If you sent down an action, under the remittal section of the Common Law Procedure Act, the jurisdiction was still only £50. Although it might turn out at the hearing in the Courts that the party should get more, still you could not give him more. They then passed an Act in 1887—it is Section 52 of the County Courts Act of 1887—which provided that in the case of actions remitted, the Court to which it was remitted should have the same jurisdiction in the case of unliquidated damages as the court in which the action is brought. That did not enlarge the power of remitting but it prevented injustice when the action was remitted. We have felt that some amendment is necessary in that way on the transfer of actions from the High Court. Take the case of a person who is run down by a motor car. The injury at the time the action is brought in the High Court does not appear to be much and the evidence goes to show that the damages may not be more than £50. By the time the action is tried, however, you find that they may be more than £500 or £600, but the Court has no jurisdiction to give a decree for that amount. No matter what limit you put on the Court jurisdiction, that amendment is necessary in the case of a remitted action for unliquidated damages to the Circuit Court, whatever may be the jurisdiction of the Court in which the action is fought.

4730. Senator Brown.—That is to have a similar section as the one in the County Courts Act of 1887?—Exactly. It is a thing we think very necessary.

4731. Deputy Little.—We have evidence this morning from senior counsel suggesting that there should be concurrent jurisdiction, that in line ball cases like that, cases which are within the jurisdiction of the Circuit Court, the Judge should have power to retain them in the High Court?—There is power to retain in the High Court.

4731a. He quoted a case, a decision that had been given, which took away that power to retain a case in the High Court which was within the jurisdiction of the Circuit Court?—It was, perhaps, decided on the principle that cases within the jurisdiction of the Circuit Court should be brought there, but under the Constitution the High Court has jurisdiction in every case that arises. The Circuit Court is not a Court under the Constitution, strictly speaking. It is a local court upon which part of the High Court jurisdiction has been devolved, but the High Court remains with the same jurisdiction. It is felt, however, that the High Court should transfer actions which are within the jurisdiction of the Circuit Court, so that people will not be put to the cost of the High Court unnecessarily.

4732. What was in this witness’s mind was that that particular decision—he did not give the name of the case, but I think he said he would send it on later—has operated on the minds of solicitors, so that when they are advising a client as to the Court he should go to, where there is a line ball case, they feel they are under a grievance?—If it was really a line ball case, and if the Court thinks it is a line ball case, it probably will not transfer it, but it will retain power, if it turns out not to be a line ball case, to give Circuit Court costs.

4733. Do you think it would be advisable to legislate so as to make the law clear on that?—Is it not clear?

4734. That particular case seems to cast doubt on it?—Was this counsel?

4735. Deputy Wilson.—Yes, senior counsel, and he said they were deprived of the right to resort to the High Court?

Witness.—Was he defeated in the Circuit Court?

Senator Dowdall.—He gave his evidence very fairly, but he wanted to be sure to get High Court costs.

Deputy Wolfe.—He was referring to the Costs Order, not the question of jurisdiction at all.

Witness.—I remember one curious case under the contract section where there was a debt of £250 and interest due. While at the moment of applying for a transfer, it was within the Circuit Court jurisdiction, we worked out the interest, and we found that it would be £1 over the jurisdiction by the time it reached the Circuit Court. It was retained in the High Court. That was a real line ball case.

4736. Senator Wilson.—Is there any case within the Circuit Court jurisdiction which might be heard in the High Court? —Yes, a case that involves big issues.

4737. Suppose it is a question of getting speedy judgment?—We would assume that the Circuit Court is in a position to give speedy judgment. If not, it should be hurried up.

4738. Senator Brown.—I think the suggestion that was made to us went further than Deputy Little put it. I think the suggestion was that the plaintiff should be at liberty to bring any action in the High Court subject to the right of the defendant to transfer; but if the defendant did not move to transfer, that then he accepted the High Court jurisdiction, and there should be no limit as to costs, and it should not be in the discretion of the Judge. If the defendant did move to remit the case, it was suggested it should be only remitted if the Judge or Master, or whoever heard the remitting motion, was of opinion that it was a case which it was not reasonable to bring in the High Court, and that the costs should follow the event?—That runs counter to the scheme of the Act, which is that the ordinary run of legal cases should be tried locally. It is not reasonable for people to go to the High Court, possibly because they want to save themselves trouble, and perhaps to get more costs.

4739. Chairman.—Would you be in favour of compelling litigants to bring their cases in the appropriate Courts?— That is done indirectly at present. It cannot be done directly for the reason that the Constitution gives original jurisdiction to the High Court in all cases. You would be under a great difficulty if you were to take that right away, because while a case might be within the jurisdiction of the Circuit Court, it might raise such big issues that it should be retained in the High Court, with the right of appeal to the Supreme Court. One reason for keeping a case in the High Court may be that some big question, something like the construction of the Constitution, may arise. If you send it to the Circuit Court it can only come on appeal to the High Court, whereas if you retain it in the High Court there is an appeal to the Supreme Court. If the Court sees that there is a question of law that should go to the Supreme Court, they retain the trial in the High Court.

4740. Senator Brown.—There is another mode of procedure that it is suggested would be very useful. That is to allow a person who has a claim for a liquidated amount to bring his action in the High Court, and if there is an appearance entered that he should be allowed to move for judgment. If the Court decides that there is no defence, he should get his judgment. But if the Master or the Court came to the conclusion that there was a defence, that then the case should go automatically to the Circuit Court. In that way you would get a ready collection of commercial debts if there was no real defence?—There is nothing to prevent a man recovering his debts readily in the other Courts. I may say that I always contemplated that the procedure in the Circuit Courts would have been identical with the procedure in the High Courts, and that you could mark judgment in the same way.

4741. There are many cases where the Circuit Court will not be sitting for a considerable time in the District?—In the case of marking judgment in default, I fail to see why the County Registrar should not mark judgment.

4742. The default system in the Circuit Court may not be very workable?—I regret very much one thing in connection with the Rules put forward both in regard to the District Court and the Circuit Court. I think there should have been more contact between the Rule-making Committees. I had certainly in mind when this Act was going through the Dáil and the Seanad that we were going to simplify procedure and that we were going to get some kind of uniformity in procedure so that you could start your proceeding and get your judgment on the same document without any complications and any unnecessary difficulties. I think we have simplified the High Court procedure enormously. We have abolished all differences in time. We have reduced to practically two methods all applications to the Court. Every action now starts with an originating summons. There is no reason why the same thing should not obtain in the Circuit Court and the District Court. In every case there is a ready method of getting judgments. I do not see why the same thing should not apply to the Circuit Court.

4743. Senator Hooper.—Who is to secure that?—We have now in the High Court our little book of rules by which we are operating at present. There is a set of very elaborate rules for the Circuit Court and the District Court but I do think that a method might have been found to deal with the matter in sections as we have done. You would have a simple mode of procedure by which a layman even could work his own case. I have always believed that a layman should be able to work his own case and I think a layman could do it in the High Court now.

4744. You say there is a lack of uniformity. Is it not the responsibility of someone in the State to try to secure that uniformity?—I should have hoped so.

4745. Instead of people saying that there is nobody responsible for doing it?— I only know that there has been no contact between the Committees. My Committee, the Rule-making Committee of the Supreme Court and the High Court, never saw a copy of the Circuit Court Rules. I recently bought a copy myself. They were never sent to us for our observations.

4746. Senator Dowdall.—Is not the Minister for Justice the Rule-making Authority?—Only in theory.

4747. Senator Dowdall.—Could he not secure the kind of uniformity you suggest?—It should be done by somebody. There should be a link of some kind.

4748. Deputy Little.—Would it not be necessary to give powers to the ruling authority to make these arrangements?— Yes, or the Circuit Court might be directed to submit Rules to the High Court Committee in order to bring about uniformity and simplicity.

4749. Would it be advisable to have legislation in the matter?—It could be done under the section in the Act setting up the Rule-making Authorities.

4750. What would you say to the suggestion of each Rule-making Authority sending a representative to a conference to get the whole lot into uniformity?— Yes, that could be done.

4751. Chairman.—I wonder how long it would take to get the Rules fixed?— As regards fixing the Rules, I must say that is a difficult task. In the case of the Circuit and District Courts they had to face a procedure fixed by statutes. In that respect they differed from us. Our procedure was fixed by Rules of Court. The County Courts had the old procedure under the old Acts, and the District Courts had also the procedure under the old Acts that had to be amended and collated. I do not think they took any undue time to present the draft.

4752. Senator Brown.—They are in draft now. We have seen what purports to be a copy of them. There are one or two matters in connection with the jurisdiction of the Circuit Courts to which I would like to refer. It has been suggested to us by more than one witness that the jurisdiction in title cases, which is now £60 valuation, should be reduced to £40, on the grounds that valuation is not a good basis of jurisdiction owing to the fact that the valuation of land is so old that it does not represent anything like the capital value, that is, the annual valuation has no reference to the actual value. A farm may have a valuation of £60 and be worth £3,000, that is to say, you may be administering a larger amount of property than is represented by the valuation. Is there anything in that suggestion?—There is no doubt the valuations are now valueless. They do not tell you much.

4753. The only way of remedying that would be to have a re-valuation?—It is badly needed.

4754. Have you any observations to offer on the point that a farm being more valuable than it looks should not deter a person from moving in the Circuit Courts? —There must be responsible machinery. The County Registrars ought to be responsible men, solicitors in responsible practice. I had a good deal of experience in the County Courts, and I found that Clerks of the Peace varied a good deal. As long as you have competent solicitors who have practical experience in change of the offices there is no occasion to fear.

4755. Deputy Wolfe.—There is also the point that in some cases the valuation is over the value?—That is so. It is no test really.

4756. Deputy Little.—It would be a dangerous thing to go about shifting jurisdiction?—Yes. I am in favour of leaving a pretty wide jurisdiction in the Circuit Courts.

4757. Senator Brown.—It has been also suggested that, for reason of the inconvenience caused by not having, perhaps, the proper kind of persons to do the work, that the winding-up of companies should not be done by the Circuit Courts?—We discussed that. We left in, I think, £10,000.

4758. Nominal capital of £10,000?—The way we looked at it was that in the winding-up of companies you are largely dependent on competent auditors. We considered that in the principal centres——

4759. Dublin and Cork?—And Limerick, where you have excellent auditors. In these cities there are auditors, fully qualified accountants, and they do all the serious work of winding-up companies so far as figures are concerned.

4760. Then you would not be in favour of excluding company winding-up jurisdiction, or reducing it?—No, I do not think so.

4761. It has been suggested that the machinery in the Circuit Court for the winding-up of a company is not very competent when a serious question of company law, which is very involved, might arise?—In point of fact, I think all the company cases are done in Dublin.

Deputy Wolfe.—Some cases come before the Circuit Courts, but the bulk of the work is done in Dublin.

Senator Dowdall.—But it should not be done in Dublin.

4762. Senator Comyn.—If establishments were set up in various counties to deal with these things—pleadings and interrogatories—would it involve any new offices or posts and thus cause expense?— I do not think it would, because in my opinion the County Registrar should act in all respects. If we had this common understanding, he could act in the same capacity as the Master acts in Dublin. He should deal with all these things—discovery and general applications.

4763. Would they want extra clerks?— I would want to know the number of clerks they have at present. I am not sufficiently familiar with the various county staffs at the moment.

4764. Senator Hooper.—Would you care to express an opinion as to the effect of the present Court system on the future of the Bar? It has been suggested to us that the present system is going to injure seriously the standard of proficiency of the Bar, and that by taking young men away from the Library here and distributing them through the country they will not have the same opportunity of learning their business?— When this scheme was originally presented to the public that same point was raised. I think I myself pointed out what largely affected my mind in the matter. It was this. On my coming to the Bar, in my early years, I had often been impressed by the qualities of the north-east men. There was a local Bar in Belfast where young men started out in separate Chambers, and the cream of those came up to Dublin ultimately. We had local men in Cork, but they did not come to Dublin. As I have said, the cream of the north-east men always came here. My idea was that as a result of the circuit system we would have men trained in the country, that the cream would rise to the top, and that we would have a very strong central Bar of very high quality. I think something like that happens in Scotland. I understand the Scottish system is very like our Circuit Court system. The Sheriff’s Court in Scotland has big jurisdiction. The Bar attend there, and ultimately there is a strong and highly qualified Bar. The best training is given in the Circuit Courts, and those who were trained in the County Courts know it is the best way to begin.

4765. It was argued that in the old days very few barristers practised in the County Courts, and that the work was mostly done by solicitors. The barristers went to the Assizes, which lasted only for a short time, and that often those who did attend the County Courts were away from Dublin for not more than three or four months, whereas to-day the men who go around with the Circuit Courts are out eight or nine months, consequently out of touch with Dublin and the Library, and they have not the opportunity of consulting seniors and seeing seniors at work, and that is going to affect the standard of the Bar eventually?—Some of the best known men at the Bar spent all their time in Cork and Kerry, and some are Judges now, competent and officient men. When I started I used to go out for five or six weeks three or four times a year to Sessions and Assizes, and I thought that the best spent part of my youth.

4766. Senator Comyn.—It was suggested that at the Assizes they had a chance of seeing the cases perhaps better done?—I do not think so.

4767. Senator Hooper.—Do you think the fact that barristers have less opportunity now of learning their business in the Library and the Dublin Courts is going to affect them seriously?—I do not think so. As regards knowledge of law, we have at King’s Inns attempted to meet the situation in this way: that our men will in future probably be turned out better equipped. We have increased the period of study from three to five years, and we are arranging a much more exhaustive course of study. It has now become a whole-time job to go to the Bar, as it was not a few years ago.

4768. Senator Hooper.—Does that five-year period include any practical experience?—No. A man. seldom embarks on country work until he has “devilled” for six months or so with some barrister of experience. It is in the rough and tumble of country Court work that a young barrister really learns his business.

4769. It has been suggested that young barristers attending the Circuit Courts have not access to books, as there is no library, and that consequently their knowledge of law is not as good as that of the men who went before?—I am afraid there are not as many law books bought as there used to be.

4770. Senator Dowdall.—We have evidence to the contrary. A certain firm of publishers have been selling increased numbers of law books since the establishment of the Circuit Courts?—I know that a man went to see them some time ago to ascertain why it was that none of our cases was cited in the new editions of their books, and why they practically ignored our cases in the enormous digest that they publish. The answer was that we did not buy law books in Ireland.

4771. Senator Brown.—The evidence here, I think, was that solicitors have more books now than they used to have? —That relieves the barrister of the trouble of bringing them down to the Circuit Court.

4772. It was stated that solicitors were willing to allow barristers to consult these books?—In the old days we had a certain number of books that we always brought with us and we got to know them very intimately.

4773. And the different circuits had very fine libraries which they brought down?—Yes.

4774. Chrairman.—Is there any other point, Chief Justice, which you wish to make?—I should like to refer to the question of perjury. I have held the view for a long time that the witness oath should be abolished. It may seem a startling proposition. My view is that the practice of swearing witnesses ought to be brought to an end and that, instead, there should be some sort of solemn declaration administered to them which would bind them even in conscience to tell the truth. I think the same penalties that now attach to perjury should be made attach to false testimony. I would, at the same time, give the trial Judge the power to administer an oath on special application under special circumstances. The application might, perhaps, be made by cross-examining counsel. I think the oath has so far been debased that it has lost all meaning, and that having been debased and lost all meaning it is wrong to continue using it.

4775. Senator Comyn.—Would you say that there is much deliberate perjury?—I think there is nothing like what people say there is.

4776. Deputy Little.—You think it would shake a man who was giving false testimony if it were suggested to him, as he was going along, that he should be sworn?—Yes. On special application and for special reasons, there should be power to have him sworn. I make that suggestion for what it is worth. Ultimately, I hope effect will be given to it.

4777. Chairman.—Are we to take it, Chief Justice, that in the evidence you have given you have been speaking for yourself or on behalf of your colleagues in the Supreme Court?—I have been speaking for myself. I told them, of course, that I was coming here and discussed that fact with them. I felt, however, that as I was pilot of the Bill in 1924 and as I had given personal undertakings and held personal views, it would not be right that I should represent myself as speaking for anybody except myself.

The Chief Justice was thanked by the Chairman and withdrew.

The Joint Committee adjourned at 6.20 p.m. until to-morrow at 11 a.m.

* Hosie v. Lawless, 1927, I.R. 472.

* Appendix 4.

* Appendix 4.

† Ques. 5816 et seq.