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)

Déardaoin, 6adh Feabhra, 1930.

Thursday, 6th February, 1930.

The Joint Committee sat at 11 o’clock.

DEPUTY MORRISSEY in the Chair.

His Honor Circuit Court Judge Cahir Davitt, called and examined.

4778. Chairman.—Judge Davitt, you are Circuit Court Judge in Dublin and you were formerly at the Bar?—Yes.

4779. When were you called to the Bar? —January, 1916.

4780. When were you appointed Circuit Court Judge?—I was appointed Assistant Circuit Court Judge in November, 1926, and was appointed Circuit Court Judge on the death of Judge Dromgoole a few months later, in January or February, 1927.

4781. Have you any experience of the working of the District Court?—None, except in so far as I have experience of hearing appeals from the District Court.

4782. So far as you know, are the District Courts working in a satisfactory manner?—I should say yes.

4783. Do you get many appeals from the District Court?—In 1928, 130; in 1929, 115.

4784. Do many cases come into your Court which would be within the jurisdiction of the District Court?—Quite a number. In the year 1928, eight cases in tort, and 390 in contract, making a total of 398, which would be within the jurisdiction of the District Court; and in 1929, 6 cases in tort and 391 in contract, making a total of 397. These are figures given from materials supplied by the Circuit Court office,* and they are probably already before you in the evidence of Mr. Seamus O’Connor.

4785. Can you give any explanation as to why these cases should be taken in your Court rather than in the District Court?—I really could not give an explanation covering the bulk of them, but in some cases, for instance, cases which would be normally tried, not in the metropolitan District Court, but in the County, it is cheaper to come to the Circuit Court. The costs are less in certain cases in the Circuit Court than in the District Court.

4786. Do you consider that people should be allowed to bring cases to the Circuit Court which come within the jurisdiction of the District Court?—I think so. If the question of costs was adjusted, you could penalise a case which you did not think should have been properly brought in the Circuit Court by only awarding District Court costs. You cannot do it under present circumstances.

4787. Would you extend that principle to the other Courts? Would you agree that cases coming within the jurisdiction of the Circuit Court might be originated in the High Court?—I think that is already guarded against by the rules as to costs in the High Court.

4788. Would you agree that if a person brings a case in the High Court which was within the Circuit Court jurisdiction he should be penalised as regards costs?— In a proper case, I think so.

4789. You mean if the Judge is satisfied that the case should have been properly brought in the Circuit Court?—If he had discretion in the matter, to be exercised in a proper case, I think it would be proper to secure, as far as possible, that each case which should be properly brought in the Circuit Court in the first instance should be brought in the Circuit Court.

4790. Have you anything to say as regards the working of the present appeal system from the District Court to the Circuit Court; do you think it has worked well?—I think so.

4791. Having regard to the fact that you have been working without rules, do you think the Circuit Court has been a success?—I would say so, offhand. I think we have really managed very well, considering we have not had any rules. Really, the absence of rules has not made itself felt as an inconvenience to such extent as might have been expected.

4792. Regarding the present system of appeals from the Circuit Court to the High Court, what have you to say?—With regard to that, it must be remembered that I have practically no experience of the appeal end of it. I had very little experience, while at the Bar, of appeals from the Circuit Court to the High Court and, of course, since then I have none at all. As far as I can see, so far as it affects the Court of first instance, it seems to be advantageous, in this respect at least, that it makes the Court of first instance try the cases out carefully, as everything that takes place in the Court of first instance must be given on the records, and it also makes for a deliberate and full hearing.

4793. Do you think that the appeal on notes is satisfactory; does it give you an appeal on fact?—I can only state my belief. In practice, I believe, not to any great extent. I think it is the tendency more or less to limit it in practice to a question of law, although the Appellate Court has power to treat it as an appeal on fact. It necessarily involves, when you are considering a finding of fact, that the Appellate Court is not in a position to exercise a discretion as to whether a witness is to be believed or not, as in the Court of first instance.

4794. With regard to the jurisdiction of the Circuit Court, do you think it ought to be left as it is, or that it should be diminished or increased?—I think it should be left as it is. My experience in the Circuit Court is that very few cases are brought which come within the limits, on the common law side, of, say, between £200 and £300. The bulk of the cases are under the £200 mark in the Dublin Circuit Court and, as far as I can say from general knowledge, it is much the same in the country.

4795. Are you thinking of contract and tort only, or of other jurisdiction?—The remark I made last applies only to ordinary civil bills in contract and in tort.

4796. With regard to the other jurisdiction, do you think there should be any change made?—I do not think so. I think the remark might go generally. With regard to ejectments I should say, of course, that they are not classified in my list in the same way. There is a considerable increase in the number of cases coming in the Circuit Court as a result of the increased jurisdiction in ejectments over the County Court—they are practically doubled. These figures, of course, are only a rough calculation. In 1927, the ejectments entered for hearing in the Dublin Circuit Court numbered 627; of these only 346 were within the County Court jurisdiction. The figures for 1928 were, 589 as against 344; and in 1929, 552 as against 346.

4797. You consider that the jurisdiction generally should be left as it is?—That is my general belief.

4798. Would you approve of concurrent jurisdiction in cases for large amounts, but not above £300, in the Circuit Court and in the High Court; that a person should have the option without being penalised as to costs?—If there was proper discretion left in the High Court. If, on transfer, or on a person going on in the High Court in a case in which he recovered something which was within the Circuit Court jurisdiction, I think there should be a discretion in the Judge as to whether he should be penalised or not, having regard to the nature of the case.

4799. Senator Brown.—You have an advantage in presiding over a Dublin Court which no other Judge, except the Dublin Judge and the Cork Judge, has got; you have the whole Bar beside you and the Library close to you, so that you have a better chance of having cases properly put before the Court than you would have in the country, for whatever that is worth; of course, it is worth a good deal, because you get quite experienced counsel in your Court?—I can.

4800. And you do?—It is rather an invidious position to be put in. I think the fact of being close to Dublin could be exaggerated in that respect.

4801. Do you mean that the advantage in Dublin might be exaggerated or the disadvantage in the country?—I mean that the advantage I might be supposed to gain from my proximity to the Library and counsel might easily be exaggerated.

4802. That is, they do not come to you?—I do not say that. They do in certain cases. In my case, of course, senior counsel will come in, and in that respect I am better off than those in the country. It is easier to get senior counsel here, and it is considerably cheaper.

4803. You also get a very good class of junior counsel; experienced juniors go to your Court who could not afford to go to the ordinary Circuit Court?—The ordinary run of cases are more or less concentrated in counsel who practise almost entirely in the District Court and the Circuit Court in Dublin.

4804. Senior counsel would only come in in cases over £150 or so?—A case which would, by its weight, one way or the other, justify it.

4805. You were asked by the Chairman if you would approve of what has been referred to as “concurrent jurisdiction” without penalty? It has been suggested that if a litigant were at liberty to bring a case, say, over £50, in the High Court, that on a remitting motion or on a motion to transfer it to the Circuit Court, the test ought to be whether the Judge was of opinion that the case was one that ought not to have been brought in the High Court?—Yes.

4806. If that test were applied on the remitting motion at that early stage, no hardship could really be caused the defendant, because he would then have a chance of getting it sent to the Circuit Court, if it was in an improper case. You think that might be carried out?— I think it might. It is sometimes very hard to say at the start whether a case is a fit one or not.

4807. Without any discretion in the Judge as to costs?—I prefer discretion in the Judge as to costs. It would be rather difficult to say when it would be exercised. I would like to have discretion, so as not to have a party absolutely penalised, if it should turn out that the case was a fit one to be tried in the High Court.

4808. The suggestion was that a test ought to be applied on the motion to remit, and if it is kept in the High Court, the Judge would have no discretion as to High Court costs?—In my opinion there ought to be discretion.

4809. In the Judge who hears the original motion to remit, as to whether it ought to be remitted or not?—Yes.

4810. And still there ought to be discretion in the Judge who hears it, in whichever Court it is?—Yes.

4811. You are not in favour of an alteration in the present mode of appeal? —I am not, but I have very little experience of the actual working of appeals.

4812. Do you think the Act of 1924 clearly gives an appeal on fact?—Yes.

4813. On an issue of fact as distinct from inference?—I think so. That would be my reading of the statute

4814. I think any lawyer would say that. Have you any opinion as to whether it is advisable that there should be an appeal on an issue of fact? At present an appeal practically takes the form of a new trial motion, on the decision that the Court has come to. It is only an application to have the case heard over again on certain grounds. You think there ought to be an appeal on an issue of fact. In the circumstances of the country, do you think it would satisfy the people not to have an appeal?—I do not think they would be satisfied. I think people have to be educated to the position that they should be satisfied with the trial in the first instance.

4815. Would it not be a case of educating them by starving them?—There is no use going over the old ground about the civil bill appeals. It was open to a lot of abuses, I think.

4816. Open to objections?—Yes.

4817.—What were they? There were certain objections that could be made of a personal nature, because sometimes the Judges were in a hurry?—I was thinking of that. I think every practitioner knows that an appeal before the County Court Judge was looked upon by the litigants sometimes as a trial run. They would even conceal material facts from their own solicitor. He would only get a knowledge of what could be urged for the defence, after the trial before a County Court Judge. I think that was a matter on which the people might be educated.

4818. Under the old system, with that probable defect, in the end the case was properly tried and all the facts were brought out?—Yes; tried twice.

4819. Are you satisfied that the equity jurisdiction is not too great? Of course you have experience only of Dublin?—My experience in equity is small. There are very few cases over the £500 limit.

4820. Senator Dowdall.—Have you had any experience of the old form of appeal at Assizes?—Only going around on circuit and holding occasional briefs. I have now appellate jurisdiction as well from the District Court.

4821. We had evidence that the present form of appeal is two to three times more costly than the old form of appeal by way of re-hearing before a Judge of Assize. Would that alter your view as to the preference you give to the present form of appeal?—Generally speaking, I think the cheaper that law is for litigants the better. I would not accept it absolutely that it is that much dearer on the average.

4822. We had figures* given in a very fair manner by one Taxing Master. He took ten cases at the beginning of one term and ten cases at the close of another term—twenty cases taken indiscriminately —and that was the result?—I have no direct knowledge of that. All I am going on is what my own taxing master and county registrar told me, and I think their opinion was that it was not much more expensive, taken on the average. Of course, that is as regards Dublin.

4823. If the evidence of the Taxing Master be correct, would it alter your view?—I should say that it is preferable to have law cheaper for the litigants.

4824. What does a remitting motion cost?—I would prefer not to be taken over the question of costs. I have very little knowledge of costs.

4825. As an ignorant layman, sometimes driven by the tyranny of circumstances into Court, I prefer an appeal on fact, I think, in common with the majority of the people. Do you think that a system should be set up which the people want, or a system which the experts and the lawyers think would be more ideal?—I think something in between, because if you give the people everything it might not be for their good.

4826. You know that Section 61 of the Act of 1924 says that an appeal shall be on law or fact or on either?—Yes

4827. In effect at the present time, that is not so?—I would not go as far as that.

4828. In the majority of cases it is not so?—I have absolutely no direct knowledge of the system. I do not hear appeals from the Circuit Court and I really know nothing about cases once they leave my Court. I do not know what happens to them.

4829. Senator Hooper.—A suggestion has been made that in contract the jurisdiction of the District Court should be increased to £50. I would like to get your views on that?—All I can say is that the Dublin solicitors and Dublin litigants do not seem to be taking full advantage of the existing District Court jurisdiction. In contract a vast number of cases within the jurisdiction of the District Court come to me. There must be some reason for that. I cannot give the reason, except in so far as I have indicated, where these cases arise in county Dublin, in places like Balbriggan and outlying towns, and it is cheaper to go to the Circuit Court. That would not apply to any great extent. A number of cases in contract that could be brought before the other jurisdiction come to me. Why I cannot say, except that there must be some preference in the matter.

4830. You do not see any necessity for it?—I do not.

4831. Would you be in favour of having the District Court decrees over £20 registered in the High Court and treated as judgment mortgages? That is another suggestion that was made?—I do not think there would be any objection to that. That was the old law with regard to County Court decrees.

4832. Senator Brown.—Under the old system, where you got a decree over £20 in the County Court, you had to move it up to the High Court to have it made a judgment. You could then register it in the Registry of Deeds as a mortgage. We have had evidence that that ought to be applied to the District Court when there is a decree for £20, and that automatically it ought to go up without any expense to the litigant and be registered in the central office, so that you could search in Dublin for decrees over £20 in any of the Courts?—I think I would agree with that

4833. Senator Hooper.—Do you find any inconvenience owing to the absence of pleadings in your Court?—In some cases, yes. In cases of libel and slander certainly.

4834. You would be in favour of some system of pleadings?—Yes. I had to adjourn cases sometimes to compel particulars to be given in libel and slander. That would not be necessary if there were pleadings.

4835. You have no power to state a case?—No.

4836. Would you be in favour of that? —Personally, I dislike very much stating a case. I think there are certain cases where the District Justice has, in the first instance, power to state a case, but if an appeal is taken to me I cannot state a case. I think that should be provided for

4837. Would you limit it?—Yes, I think to cases arising out of the District Court jurisdiction. Otherwise, I think you could raise every question on appeal.

4837a. I mean on the old appeal that one took from a Civil Bill?—I am clearly of opinion there ought to be not alone power in such cases, but I think the Judge should be compelled to state a case if required.

4838. Have you any idea of what the cost of a remitting motion is?—I have not.

Senator Wilson.—Senator Brown stated that there was a procedure by which the public were to be starved in connection with re-hearings.

Senator Brown.—I do not think I said that.

Senator Wilson.—You suggested that by starving them you would educate them.

Senator Brown.—I said that you would be educating the people by starving them; you would give them no food at all.

4839. Senator Wilson.—Is it not a fact that there is a re-hearing in your Court up to £25 in contract?—Yes.

4840. And under the old system there was no re-hearing in cases over £50?— Yes.

4841. So that the starving arises in the jurisdiction between £25 and £50?— Yes.

4842. Are you of opinion, if you had pleadings in your Court, that the stenographer’s notes would be very much reduced?—I think it would tend to narrow the inquiry.

4843. You would not allow witnesses to ramble?—We try to prevent that as much as possible, but I think pleadings would help us.

4844. It has been stated to us that people are deprived of the rights of the High Court to which they are entitled. Can you say in what way they are deprived of that right under present conditions?—I am afraid I cannot say that; I do not see that they are deprived of any right.

4845. They are deprived of the right because of the loss of costs?—Do you mean that the appeal is too costly?

4846. The High Court is supposed to be a Court for everybody, and Senior Counsel said yesterday that people were deprived of their right on account of this system of full costs not being allowed in the High Courts.

4847. Chairman.—I think there was also this point, which was added: He said they were deprived of the right because the Judge of the High Court almost invariably remitted.

Senator Brown.—He had no discretion.

Senator Wilson.—The High Court Judge has a discretion at present.

Senator Brown.—Practically every case that falls below £300 jurisdiction goes to the Circuit Court as a matter of course.

4848. Senator Wilson.—Is there anything in the statement that people are deprived of their rights in the High Court?—Generally speaking, I cannot see that they are deprived of any right whatever. If they suggest, as regards the High Court Judge, who hears the motion for transfer, that he exercised his discretion, it would be right.

4849. Is that the position to-day?— Practically no.

4850. I understand if the Judge had discretion as to costs vested in him there would be no deprivation as regards the High Court?—I think that would go a long way to meet the matter.

4851. Deputy Wolfe.—I understood you to say that the present system of appeal, from the District Court to your Court, has worked well?—As far as I can see, yes.

4852. And in the result the litigants appear to be satisfied to take advantage of the Courts open to them?—Yes. There seems to be a large number of appeals, but of course there are a great number of cases tried by the metropolitan magistrates and I do not know what proportion of these cases come before me on appeal.

4853. You get a substantial number of appeals?—Yes.

4854. I understood you to say that your experience of the old system of appeals was slight. I suggest to you that your experience of the old system of appeal is very large?—I had two ways of getting experience; one was when I was going Circuit and the other as Circuit Court Judge.

4855. You are carrying on the old system of appeals very successfully?—I hope so.

4856. Senator Farren.—You made a remark with regard to cases being tried twice. In your opinion, does a case that is heard in your Court get as good a hearing as the old appeals from the County Court to the Assize Court formerly?—I should say a better hearing. There is no pressure of time in the hearing of these appeals.

4857. Is your answer that you believe the case gets a better hearing now than under the old system of appeal?—Yes, but on the ground only that there is no hurry.

4858. Was there an appeal from the Assize Court where there was an appeal from the County Court to the Assize?— Not except on a case stated.

4859. I had the idea that that was so; so that litigants are now in a better position than formerly?—They have a further right of appeal really. I do not think it is much of an added right. There is an appeal from the Circuit Courts to the High Court and a further appeal, but only by leave.

4860. The case is made that people are anxious for a re-hearing of appeals from the Circuit Court to the High Court, and I want to be satisfied that they are in no worse position now than under the old system?—The witnesses have not got a second chance of giving their evidence.

4861. Did they get a run at all under the old County Court?—Yes, certainly.

4862. In your remarks in the earlier stages, you said that the people engaged in the case did not tell their solicitors what the case really was?—I was not then talking from the point of view of the Court, where the case got an excellent hearing. That was the experience of some solicitors, that the people kept something back in the earlier stages.

Senator Farren.—It was looked upon as a preliminary canter.

4863. Deputy Little.—We are in a difficulty here. On the one hand we are told that this is the only country in the world where there is an appeal by way of re-hearing. On the other hand we are told that the people in the country will not have anything else but a re-hearing. They are dissatisfied with the present position. Will you tell us how far you find you have to vary the original judgment on questions of fact?—I could not give any indication. Appeals from the District Court are tried like civil bills. Very often I do not know what the decision below is. It is only material when I come to direct the Registrar whether it is a “confirm” or a “reverse.”

4864. We want to try and distinguish whether it is simply duplicating the work to have an appeal?—I would say, as regards appeal from the present District Justices, in the vast majority of cases it is my opinion of the facts against theirs.

4865. It is on fact really and not on questions of inference from fact?—It is an exceptional case where a question of law would come up in the ordinary civil bill. The average appeal from the District Court is a question of my taking a different view of the facts before me from that which the District Justice took on the facts that were before him.

4866. It would not be so much on fact as on inference from fact?—No, actually on fact.

4867. Chairman.—Are you in favour of having official stenographers in every Court?—I think so. I think if you went back to the old system of appeal on re-hearing it would be no harm to have a stenographer. It might save a lot of time as to what a witness said, instead of having Counsel telling the Judge a witness said this and the other side saying he said the other.

4868. You think there should be an official stenographer, not merely having a man brought in any day or for a couple of days?—That would be a very admirable way where the question of appeals comes in.

4869. From your experience of appeals, would it be necessary to have a stenographer in the District Courts?—No. I think it would be impossible—certainly in the Metropolitan District Courts.

4870. Senator Wilson.—Is the stenographer in your Court a civil servant?— She is. I think she was seconded from the Civil Service. I think she was a stenographer-typist and a whole-time servant.

4871. Chairman.—Would you favour having official stenographers?—Stenographers trained in newspaper reporting do not make the best Court stenographers because they sometimes have a habit of paraphrasing.

4872. Senator Hooper.—Has not a newspaper stenographer a great deal of experience in the hurly-burly, as it is called, of the Court, which a stenographer taken out of an office would not have?— What it comes to is: the Press-trained stenographer will hardly ever admit himself defeated; he will always try and get it down, as best he can, whereas the other will show signs of distress in difficulties and you can accommodate yourself to him. The man stenographer I have is a Pressman, and I could not pass any criticism upon him at all.

4873. Is he a newspaper-trained man?— Yes, and it must be remembered that he works without relief sometimes from 11 o’clock in the morning until 10.30 at night. There is no question of relief every fifteen minutes. There is one thing I should like to add. There was a question as to whether certain cases were originally within the Circuit Court jurisdiction. Take an equity suit which has originated apparently within the Circuit Court jurisdiction but in the course of enquiry it transpires that it is outside the Circuit Court jurisdiction. I think that case is not provided for under the present Act.

4874. Senator Brown.—We had a suggestion of that kind yesterday. It has not been provided for, and you think it ought?—I think it ought. Once it goes outside my jurisdiction I can do nothing with it.

4875. There is another way in which the present state of affairs is not satisfactory. If a case is transferred from the High Court to your Circuit Court you cannot, except the parties agree, give more than £300, though it turns out in the hearing in the Circuit Court that there ought to be a larger sum. When the old County Court was working, there was an Act of 1887 that made it possible for the Judge in the County Court to give more than £50, which was the sum of his jurisdiction, and you think that that ought to apply to the Circuit Courts?—Independent of the agreement of the parties, do you mean?

Senator Brown.—Yes.

Witness.—I can imagine cases in which it would be advisable.

Senator Brown.—They have occurred.

4876. Senator Hooper.—You spoke of cases where you say that the stenographer in the Criminal Court has worked sometimes from 11 o’clock in the morning to 10.30 at night?—Yes, and the only thing he has not to take down is counsel’s speeches.

4877. I mean, he is there practically engaged the whole time?—He is there the whole time.

4878. Do you think that any of these non-newspaper trained stenographers could do that? Would the lady that you spoke of be able to do it?—No, I would not suggest that.

4879. Chairman.—Do you think that it would be physically possible for any stenographer to do it?—The stenographer in Green Street has to do it.

4880. Do you not think it is physically impossible for a stenographer to sit in Court for nine, ten, or eleven hours, and take a verbatim note of all that occurs? —It is very unfair, I think. I try to avoid late sittings in Green Street, but they are inevitable sometimes, and I may be charging a jury at 10.30 at night. The stenographer must be very careful to get down accurately what I say, and, of course, it is very hard for him to do that after a long day in the Court.

(The witness withdrew).

Mr. M. Binchy Barrister-at-Law, Bar Council, Law Library, Dublin, called and examined.

4881. Chairman.—Mr. Binchy, you are a member of the Junior Bar?—Yes.

4882. And you were called to the Bar in what year?—On 1st November, 1916.

4883. You represent the Junior Bar Council, I understand?—Yes, with Mr. Conor Maguire.

4884. Have you any experience of the working of the District Courts?—Very little—practically none. Of course, I have appeared in the District Court occasionally, but I have practically no first-hand experience of it.

4885. You have no opinion to offer on the working of the District Court?—I have formed a very definite opinion that it works well. I cannot help knowing a good deal about it.

4886. With regard to the working of the Circuit Court what is your opinion? Let us take the present system of appeal?—I do not think that the present system of appeal is working at all; in other words, I do not think that the litigant gets what he regards and what I regard as an effective appeal.

4887. On fact?—I say not only on fact but on law too, because they are inextricably interwoven. Law divorced from fact is meaningless.

4888. And it is your opinion that an appeal on notes is not an effective appeal? —Yes.

4889. What do you suggest should be substituted for the present mode of appeal? I take it that you are in favour of appeals being decided by way of rehearing?—Yes.

4890. By a High Court Judge or Judges?—By a High Court Judge going out on circuit.

4891. Would you say whether there should be one or two Judges?—I should say, one, in the great majority of cases. These appeals ought to be heard by High Court Judges in centres in each county, and I think it would be impossible, unless the number of the High Court Bench was increased enormously, to have appeals heard by two Judges. I mean that the first function of the High Court is to sit in Dublin and try High Court cases, and it would never do, in my opinion, to have the High Court Judges out through the country most of the year hearing appeals.

4892. It was suggested to us yesterday that if the High Court were closed down for a period of, say, three weeks twice a year, and if all the High Court Judges went out into the country and sat in centres in twos that they could dispose of the appeals in that period?—I think they could, provided in each centre appeals were heard before both Judges sitting separately. But if the Judges were to sit together I do not think three weeks twice a year would be enough, and without some reduction in the present jurisdiction of the Circuit Court I do not think that three weeks twice a year would be sufficient to enable the Judges to have an effective and an unhurried re-hearing of all the cases.

4893. Do you consider that it would satisfy the people to have an appeal from the Circuit Judge to one High Court Judge?—I do, as a result of my experience.

4894. I mean, having regard to the fact that in the eyes of the people a Circuit Court Judge and a High Court Judge are of much the same standing?—I do not agree. I have had constant practice in the County Court and attending Assizes and six years’ experience of Civil Bill appeals before the High Court Judges, and I have no doubt that the people of the country, at least the part of the country that I have had experience of—Munster—regarded the High Court Judge as a satisfactory appeal tribunal, and they looked up to High Court Judges as people who belonged to, what I might perhaps call, the University of law in Dublin.

4895. Senator Brown.—The hierarchy? —The hierarchy. That is better.

4896. Chairman.—Would not that have been because of the tradition, the pomp, and so on?—That may have been. By the way, I think that that was a good tradition, a tradition that I as a member of the Bar regret the passing of. But there was more than that in it; the very fact of the Judges being centralised here in Dublin and having the Senior Bar here— the Bar in general centralised here—enabled the Assize Courts to reach a higher standard themselves and enabled the Bar that practised before them to reach a higher standard. I do not think I need elaborate that. We had our books and our traditions, and we were rubbing shoulders with each other, which is the most important thing of all. All that is impossible if you scatter the Judges throughout the country.

4897. On that point again, would the people not consider that one Judge was as good a Judge of credibility, if I might put it that way, as another?—Yes, I think so, but they liked the appeal and they found the appeal satisfactory and effective. I think I can best explain it by dealing with the suggestion that the trial before the County Court Judge was a sort of trial run and, that then you mended your hand before the appeal Judge. That is contrary to my experience. If I am a litigant and I sue my opponent before the County Court Judge for a sum of money, there are no pleadings, and he comes along and swears false evidence. It takes me by surprise. If I had known about it I might have been able to refute it. At the Assizes I know about it and I bring a witness who could refute it. I have seen that happen. You cannot make two false cases; you cannot mend your hand again, and the country people knew that and appreciated it thoroughly.

4898. If we reverted to the system of appeal by way of re-hearing would you be of opinion that the stenographer’s notes should be retained?—My view about that is that a stenographer should be available if the Judge thought it advisable to make use of his services. That applies to all Courts except the District Court. But I would not leave it open as a right to the parties to call for a stenographer in all cases in the Circuit Court. I would have him available for the Judge.

4899. With regard to the jurisdiction of the Circuit Court, are you of opinion that the present jurisdiction should be diminished?—Yes, I am.

4900. To what amount would you suggest?—I suggest that £100 would be quite sufficient in ordinary common law cases— contract and tort.

4901. I was thinking of contract and tort for the moment. Would you give us your reasons for that suggestion?—The first reason is that I am absolutely convinced that no appeal will be satisfactory or welcome to the people except an appeal by re-hearing, and I do not think that such an appeal before High Court Judges going to the country in the way I have suggested is possible or practicable unless the circuit jurisdiction is reduced.

4902. Why?—Because there would be too many cases. That is one reason.

4903. You mean, having regard to the present number of High Court Judges?— Yes.

4904. But what I would like you to tell the Committee is whether, in your opinion, the Circuit Courts have failed in working their present jurisdiction or in meeting the requirements of the people?—In the country parts of Ireland, as far as I know —I am country-bred myself—any sum over £100 is a very large sum of money, and a case involving anything over that sum appears to me to be a very serious case for the parties. I do not think that cases involving serious questions of law and fact and involving large sums of money can be satisfactorily tried in the Circuit Courts. It seems to me impracticable to have any system of pleadings. The local Bar is not, shall I say, as competent to deal with these matters as the Bar one finds in Dublin, and it cannot be. The local Judge cannot get the same assistance, either from the Bar or from books and all these other things as a Judge in Dublin can; and I do not think that the expense of coming to Dublin is in many cases so very much greater than the expense of going to these Circuit Court centres. In modern times the tendency is to make it easier and cheaper to get to Dublin.

4905. Do you not think that there is a very decided difference in the costs so far as the majority of cases are concerned?— I am sure there is, but, on the other hand, I think a number of the cases are not as satisfactorily tried from the point of view of the litigants as they would be were they tried in Dublin.

4906. If you felt that the people generally throughout the country were satisfied with the present jurisdiction, would you then agree that it should be left so? Yes, the people are to be considered first, but, at the same time, I think that the opinions of the Bar in these matters are worth considering, because we of the Bar consider our welfare not inconsistent with the welfare of the people, and we regard ourselves as a necessary element in the community.

4907. Senator Dowdall.—Not a necessary evil?—Necessary at any rate, and as little evil as possible.

Senator Dowdall.—I agree.

4908. Chairman.—We have evidence from representative bodies, bodies as representative of the general public as we could get, that they are satisfied with the present position as regards jurisdiction. On the other hand, we have had a good deal of evidence that the present jurisdiction is not satisfactory, and what the Committee would like to get is some specific information as to where it has failed or where the interests of the people have not been met and safeguarded by the present system?—As regards the representatives of public bodies, I should imagine the weight to be attached to them would depend largely on the personal experience of the members as litigants. I do not know what that experience is. It may be great or it may be small. My first-hand experience of the conduct of cases in the Circuit Court is very small indeed. I ceased to attend what we used to call Sessions when the new Courts came into being. Since then I have been practising almost exclusively in Dublin, with visits on special occasions to the country and occasional appearances in the Dublin Circuit Court. On the other hand, I have a very large experience of appeals. I have seen a great many of these shorthand notes, which are accounts of what took place in the Courts below. It appears to me that very often the essentials of the case to be tried were not grasped at all by the advocates on either side. This part of my evidence may strike one as being invidious but I do not think it is. We concern ourselves with the welfare of the Bar. In this respect, as far as the Bar is concerned, the advocates on either side really are men whose practice is entirely local. The result is very often the essential issues of law and even of fact are ignored. In other words, the level of advocacy is lower, and the parties suffer as a result. High Court Judges on appeals have commented on that: that the true issues were not being tried. I can only give you a lawyer’s point of view.

4909. You think the position you have stated would be met if you had a system of pleadings?—That I suppose would be the ideal system, if you could have good pleadings, carefully done. But that might encumber the business of the poor man’s Court too much. If the present jurisdiction is allowed to remain as it is—I hope it will not be—I certainly would not like to have pleadings in small cases.

4910. Chairman.—I am thinking of simple pleadings?—No pleading in one sense is simple. It is a very technical business. Above all things it is a business requiring experience, not only knowledge of law, but I think experience of fact, and I think of the world even. That also would apply to advising proofs as well as pleadings.

4911. As regards re-hearing by Judges on circuit, would you favour Judges of the Supreme Court going out to hear some of these appeals if necessary?—Certainly.

4912. And would you be in favour of Judges hearing such appeals having power to state a case?—I would.

4913. You think the Circuit Judge ought to have power to state a case?—Yes, on the request of both parties only. In other words, I would not give a Circuit Court Judge power to state a case which might result in depriving a defeated litigant of his right to appeal. That would be very important but I would give him power— in fact I would make it obligatory on him —to state a case at the request of both parties.

4914. Senator Brown.—You have told the Committee that in your opinion the absence of an effective appeal on fact, which we know there is not now, affects the efficacy of the appeal on law?—It must.

4915. That is if the facts are not properly ascertained in the Court below, you have not got the proper material to work the law on?—That is so. You will know that arguing law on hypothesis is most unsatisfactory and expensive.

4916. That is the issue of law depends on the issue of fact?—Of course it does.

4917. You are in favour of a re-hearing before one High Court Judge, in the country, in a selected district?—Yes. I think I might have added that if the pair of Judges in a particular area thought a particular case could be better tried by their sitting together they should have power to hear together on a special occasion. I would not be adverse to that.

4918. I gather that although two Judges would go out to hear appeals your principal reason for only one Judge hearing is that there would not be enough time?—That is the principal reason.

4919. That they would be too long absent from Dublin?—Yes.

4920. The appeals on the stenographer’s notes go very slowly. We have had evidence from the Commissioners that that is so. You may take it on the figures we have got that they did not quite average three a day?—That accords with my own experience.

4921. If the present form of appeal were retained, and the appeals were as numerous as they are now, it would work out this way that it would require two High Court Judges if they were to sit together under the present system to sit four months of the year and five days of the week to hear the number of appeals that come from the Circuit Court now. That would mean practically that half the time of two of the Judges of the High Court would be take up exclusively, and as a first charge, on their work with Circuit Court appeals?—That would be most undesirable.

4922. If you are going to keep appeals down and not have arrears and if you send two Judges, as you suggest, and they sit together as you do not suggest, for three weeks you would have three Courts if there were six Judges to go. There are six Judges—we know that one of them does not function as a High Court Judge except in very rare cases. If there were six Judges you could have three Courts out in the country, two Judges sitting together, and if they sat for three weeks at a time three Courts sitting for six weeks would be the same as one Court of two Judges sitting for eighteen weeks. They would be able to get rid of the appeals by sitting in the country twice a year for three weeks.

Witness.—Sitting together.

4923. Senator Brown.—Yes. You say sitting singly. I am saying even if they sat together they would be able to do it. One of the grounds that would seem to make that correct is that the re-hearing is much quicker than the hearing on the notes?—I should think it would be quicker.

4924. Twice as quick? What I wanted to come to is that if the objection of time is to go you would be in favour of two Judges as against one?—I would I think. In that connection I think it highly probable that you will have a larger number of appeals if the Judges sit in the country. Of course that is theorising. You evidently have made out statistics of the work. Any opinions I give as to what would happen in the event of the Judges going out is theory. But I should think there would be an increase in the number of appeals.

4925. I am sure there would. The great majority of the cases that are heard in the Circuit Court are under £150 and there would, undoubtedly, be an increase if there were appeals on fact in the smaller cases?—There would.

4926. Even so, there would be a margin on which to work?—In some cases I would prefer two Judges to one.

4927. You have given us your opinion that a number of cases were not properly tried in the Circuit Court because the proper facts were not brought out. The nature of the case was not really known when they went into Court, and the issues were not known. If all the care that is taken with High Court cases, where you have full instructions given to the solicitor, where you have pleadings which define the issues properly, and, above all, where you have a case for proofs, would the difference in expense in the Circuit Court—if all that were done and properly paid for—be very great as compared with the High Court?—I should say it would be imperceptible.

4928. With all that care and procedure in the Circuit Court—of course there is the simple case that tries itself—taking the ordinary case where the claim is over £100, do you think it could be properly tried in the Circuit Court?—In my opinion it could not. I am very strongly of opinion that it could not.

4929. At present, the High Court, which everyone is entitled to go to under the Constitution, has been made an impossible Court owing to the procedure which the Judges adopt in transferring actions?—That is so.

4930. It has been suggested that there might be what is called “concurrent jurisdiction.” In theory, we have that at present?—Yes.

4931. The suggestion is that there should be really operative concurrent jurisdiction, under which the defendant would have the right to apply to have the action transferred, that on that application the test whether it should be kept in the High Court or not should be whether in the opinion of the Judge who was hearing the application the case was one which it was not reasonable to bring in the High Court?—I understand.

4932. If the case were retained in the High Court on that application, would you be in favour of giving the Judge who heard it any discretion as regards costs? —No. When all that preliminary procedure had been gone through, or was available if it was not gone through, I would not give a discretion.

4933. That procedure is available to the defendant, and it is his own fault if he does not take it?—Yes. After that I would make the costs follow the event.

4934. In cases other than jury cases?— I do not see why it should not apply to jury cases. I think the verdict of a jury ought to be honoured as much as the verdict of a Judge.

4935. It is conceivable that it might not be fair that the Judge should have no discretion as to costs, in a case retained in the High Court, owing perhaps during the trial to the conduct of the plaintiff or to specila reasons of that kind?—Let me put it this way: In any case where a jury give damages in the real sense of the word—even though the sum be not more than £20—I think the costs should follow the event. But there might be rules, such as we are familiar with at present, in cases where the jury gives a contemptuous or very small verdict that the successful party should only get Circuit Court costs or be deprived of costs altogether. I think that would meet the case. The jury might take a different view of the merits from the view taken by the Judge who tried the remitting motion.

4936. I am not drawing a distinction between jury and non-jury cases for the moment. Take a case heard by a Judge without a jury. It turns out in the course of the hearing of the case, which was originally in the Circuit Court jurisdiction, that, for some reason peculiar to the case, the plaintiff ought not to get costs even though he won, would you be in favour of giving a discretion to the Judge to break the rule as regards costs following the event, and to disallow costs, certifying, in case he does so, his reason for so doing?—If you made him certify, his reason and gave an appeal from him, I might yield. My reason for being so adamant about this matter is this: The Judges have this discretion at present, and I am aware of two cases which came before Judges whom I would not venture to criticise in any way, Judges I would be very happy to have a case tried before. In one of these cases a man had got substantial damages for assault—£40 or £50. The facts were serious; it was a case of assault and wounding. The Judge deprived him of High Court costs, and thereby practically punished him instead of punishing the aggressor. In the other case, a married woman got damages for slander of the worst kind. The damages were small, because the jury apparently took the view that they did not wish her to make money out of it. They gave her a verdict, however, which made it perfectly clear that they thought her character should be rehabilitated. Yet she only got Circuit Court costs, the Judge exercising his discretion. These two instances were sufficient for me to form the opinion that Judges ought not to be given this discretion. I was not in either of these cases myself, so I have no personal feeling in the matter.

4937. Senator Wilson.—The present system of appeal from the High Court to tht Supreme Court is on notes?—It is on Judge’s notes.

4938. We intend to give them a stenographer?—I quite agree about that.

Chairman.—But we have not the giving of the stenographer.

4939. Senator Wilson.—If we had the stenographer—and we think there ought to be a stenographer—in the High Court, the appeal to the Supreme Court would be on his notes?

Senator Brown.—No, with great respect.

Witness.—I do not think that necessarily follows.

Senator Brown.—The appeal would still be on the Judge’s note and would take the form of a new trial motion.

4940. Senator Wilson.—I asked a Judge that particular question and he said that, in that event, the Judge’s note would not be required?—I respectfully disagree with the learned Judge, whoever he was. The appeal would be on the Judge’s note.

4941. The present system is on the Judge’s note?—Yes.

4942. And there is no re-hearing it?— There is no re-hearing on fact. There is no appeal on fact.

4943. If this system is successful in the Supreme Court, why should not the same procedure be successful in the case of appeals from the Circuit Court to the High Court?—Because in the case of a trial at first instance in the High Court by a Judge and jury, the case has been very carefully prepared, with the assistance of skilled lawyers. There have been pleadings, the issues have been very carefully settled, there has been discovery of documents, if necessary, on both sides, interrogatories have been administered, proofs have been very carefully advised and everything done to make the hearing at first instance a real trial of the issue. Everything has been done to eliminate anything which was not really in issue between the parties. All that having been done, it was considered—I think experience has justified it—that giving an appeal on fact would be unsatisfactory.

4944. The Circuit Court has had no rules up to the present?—No.

4945. If they had rules, all those things that you say make a difference in the High Court would be similarly carried on in the Circuit Court?—They would be similarly carried on in theory but, from the practical point of view, I do not think they would be properly carried out.

4946. Take the case of England. There is no appeal on fact in England from the County Court to the High Court?—No.

4947. And the jurisdiction of the County Court in England is only £100?—Yes.

4948. Why should it be effective there and not effective here?—I cannot tell you how the English people regard this system of appeal. I can only tell you that this illogical system of appeal by re-hearing has been, as far as I know, satisfactory to the people in Ireland. The re-hearing is something which is racy of the soil of Ireland, and it has been, in fact, successful.

4949. You know how it arose. You know it was imposed on the country when an assistant barrister was sent out instead of a Judge?—I do not know that. I think that was the origin of the Civil Bill itself.

4950. And the re-hearing?—I do not know that that is the case.

4951. There was a gentleman called an assistant barrister?—Yes, and that was how the County Court originated.

4952. That was how the re-hearing came about. The people appealed from the assistant barrister, who was not a Judge, to a Judge. The same system is not in operation in any other part of the world. That system was imposed and, therefore, it is not racy of the soil?—I draw the opposite conclusion. I think it grew up here in the ordinary way.

4953. That is how it grew up. You have an appeal from the District Court to the Circuit Court by re-hearing?— Yes.

4954. And the jurisdiction in contract in the District Court is £25?—I think it was increased to £26 the other day.

4955. With the exception of the cases between £25 and £50, litigants are in the same position now as they were in the good old times which we have been speaking about. They have a re-hearing before the Judge?—They are not in the same position. In the larger area—between £50 and £300—they are in a different position.

4956. But you never had a re-hearing in cases over £50?—No.

4957. The County Court jurisdiction stopped at £50?—Yes, but you had a very satisfactory hearing at first instance, with all the machinery of the High Court to assist you.

4958. Senator Wilson.—What is your opinion of the character of the County Court Judges, as compared with the character of the Circuit Court Judges?

Chairman.—I do not think the witness ought to answer that question.

Senator Wilson.—It was mentioned here that Judges in the County Court were not looked upon in the same way as Judges of the Circuit Court.

Senator Brown.—I deny that.

Chairman.—I did not hear that brought out here. If I had, I would not have allowed it.

Senator Brown.—It is not true in fact, and I had forty years’ experience of the County Court.

Witness.—From my experience of the County Court Judges, I can bear testimony to the way in which they did their work.

4959. Senator Wilson.—You said the people were not satisfied with the Judge?—No matter how good Judges are, one likes to have an appeal from them if necessary.

4960. You think it is a good thing to facilitate appeals?—Certainly, I do.

4961. In a country like this?—Yes.

4962. You think that, if there were a re-hearing, you would have a larger number of appeals and that that would be a good thing?—I think that there might possibly be a larger number of appeals and that that would be a good thing if the people desired to appeal. They would be satisfied that justice was being done them.

4963. Did you ever hear of people ruining themselves by appealing?—I have known of cases where people ruined themselves by litigation of one kind or another.

4964. You state that the Circuit Court Judge should have power to state a case by consent of both parties?—Yes.

4965. Do you think that any man who won in the Circuit Court would consent to have a case stated?—He might.

4966. Suppose he got his verdict, would he?—A case stated is always for the opinion of a higher Court on a question of law. There are many cases in which both parties are satisfied with the findings of fact, but one party says: “On these facts, I ought to get judgment in law,” and the other party makes the same claim. In such an event, the successful litigant, I should think, would be quite willing to have a case stated rather than go through a re-hearing.

4967. He has won now?—I am accepting that. He has won; the Judge has decided in his favour.

4968. What better position would he be in by the statement of a case?—You have put it to me that a successful litigant in the Circuit Court would never consent to a case stated. I think he would. May I put it this way? There would be cases where he would not. If it were tried to impose a case stated upon him, I do not think he would. It is for that reason I say that the Judge should only be allowed to state a case where both parties consent. I assure you there would be cases. It would save expense to both parties.

4969. Chairman.—The litigant who had won might agree to have a case stated as an alternative to a costly appeal?— Exactly, that is the whole point.

4970. Senator Brown.—He only wants one point decided instead of having the whole case gone into?—Yes. It often happens in the case of big companies or people who would be likely to have similar litigation again. They would like to have a test case decided on settled issues.

4971. Senator Dowdall.—On this question of jurisdiction. In case both parties agree, would you permit them to go to the Circuit Court on any amount?—Unlimited jurisdiction. I do not think, however that the jurisdiction in the winding-up of companies ought to be left in the Circuit Court at all, but dealing with ordinary matters of contract, tort and equity, if the parties agree, I would give unlimited jurisdiction.

4972. You are not in favour of pleadings in the Circuit Court?—I do not think they would work out satisfactorily in practice.

4973. You know, of course, that in workmen’s compensation cases you had pleadings?—You had to fill up a form. It is very different from settling issues. It was a form of pleading.

4974. In these cases the jurisdiction was in excess of £100?—Yes.

4975. You mentioned the winding-up of companies?—That is a matter in which I have very little experience. I will give you my reasons for saying that it ought to be confined to the High Court.

4976. Take the winding-up of a small co-operative society or creamery situated in County Cork or County Limerick. I put it to you that a chartered accountant, with his local knowledge of the debtors to that estate, would get a better return for the creditors and the estate than if the company were wound up from Dublin?—I entirely agree, but I think the company might be wound up in Dublin and yet have as a receiver or liquidator a chartered accountant in Cork, Limerick or Tralee or such places.

4977. I put it to you that a qualified accountant knows very much more about the winding up of companies and of company law than counsel as a rule?—I am sure he does, about the practice of winding up a company.

4978. It seems to me from the answers which you have given that there is an advantage in the winding up of companies locally?—I think your mind is focussed at the moment on places like Cork and Limerick where it might be possible to have a larger jurisdiction than in other places. But where you have a Court sitting in places like Tralee, for example, from time to time, and the Judge goes away to other places, I do not think that is a suitable tribunal to do that kind of work where applications have frequently to be made on behalf of the receiver and other parties. I personally have very little experience in the matter.

4979. In the portions of the country where you practised when you were more junior than you are now, did you find the people intelligent and acute?—I did.

4980. They knew the form of appeal to the County Courts and a great deal about the procedure?—Yes. I have sometimes learned from speaking to country people.

4981. Being intelligent, and knowing the form of appeal, should they not be entitled to have the form of appeal they desire and understand?—I think so.

4982. Is it within your knowledge that they do desire that form of appeal?—It is, so far as I have been able to form an opinion. I believe most firmly that they desire an appeal by a re-hearing.

4983. You are in favour of reverting to the form of appeal by re-hearing, something akin to the old Assizes, either by one or two Judges?—Yes.

4984. You have told us that if jurisdiction in excess of £100 or £150 were retained in the Circuit Court, the volume of work would be so much that that form of appeal would break down, because it would take so much of the time of the High Court Judges?—That is my opinion. That is a matter I cannot speak of from experience.

4985. Would this change your view on that? I have a return* here of a Circuit which shows that of the cases entered during 1928 and 1929, 1,672, or an average of 836 for each year, were below £100, and the number above £100, 140. You had 836 cases in a year up to £100, and from £100 to £300, you had only 140. Roughly speaking, those between £100 and £300 were one-sixth of the number below £100. We have the evidence of the Judge of that Circuit, who says:† “At my last sitting, I decided 600 of 700 cases. The number of appeals were eight, of which approximately half were withdrawn.” In view of these figures, do you still adhere to your opinion that the retention of the jurisdiction in excess of £100 would so take up the time of the High Court Judges as to break down that system of appeal?—I am very impressed by the figures, but probably the Judge of that particular Circuit is a very satisfactory Judge. I do not know who he is, but having regard to the number of appeals, and the number withdrawn, I think he is a Judge whose decisions met with very general approval. I always found that from some Judges there were a greater number of appeals than from others, and, particularly, that in the case of some Judges, while the number of appeals might be the same, a greater number of them were withdrawn than in the case of the other County Court Judges. The same applies to Circuit Court Judges. What you say as regards numbers might not apply to other Circuits.

4986. I put it to you that while the number of appeals might be larger in some Circuits than in others, the proportion of cases from £100 to £300 would be fairly comparable?—It would be relatively small in comparison with the appeals in cases of lower amounts. On the other hand, the re-hearing in these cases would have to be done much more carefully and at greater length.

4987. If the stenographer’s notes were retained, do you think it would restrict the area that counsel would have to explore in cross-examination?—I do not know. With regard to my experience of stenographers’ notes, I do not quite agree with that. I can only say that if a stenographer were available in a case and were required by the Judge to take the evidence, I think that would be desirable. It might help to restrict the area of cross-examination, the area of inquiry, and the production of witnesses perhaps.

4988. Pleadings in the Circuit Court would restrict the number of questions that counsel would have to ask, and, accordingly, restrict the stenographer’s notes?—Yes, if you had satisfactory pleadings.

4989. Coming back to the question of appeals, I have a return* before me dealing with all the Circuits. The number of appeals entered in 1924 up to a pretty late date in 1928 was 2,232 for the Free State. Of these, 776 were withdrawn or struck out, leaving approximately 1,500 to be heard. With 75 working days for a year, that would leave something like four appeals per day, or 300 per annum?

4990. With 75 working days, that would be four appeals per day?—Yes.

4991. And including all cases up to £300 jurisdiction. Taking 18 weeks, and that a Judge went on Circuit, working five days weekly, that would be 90 days, disposing of four cases a day. That is a fairly high average but I think a reasonable one?—A Judge ought to do more than that.

4992. I will take four per day making 360 appeals, including cases up to £300. From the experience gained since 1924 it would not break down by reason of the extra pressure on the High Court. I think you will have difficulty in getting away from these figures?—You mean that the present system of appeal is not occupying too much of the time of the High Court.

4993. What I say is that in the event of reverting to the system of re-hearing on appeal, and Judges going on Circuit for three weeks twice yearly—two Judges hearing each appeal and working five days weekly—they would dispose of 360 appeals. The experience since 1924 is that there are only 300 effective appeals in the High Court?—They would of course. They used to do more than four appeals a day on an average. Of course, there will be some big cases. The Judges used to sit on Saturday, making it a six-day week.

Senator Brown.—They would have travelling days so that you would not have more than five days.

Senator Dowdall.—And they travel more quickly now by motor car.

4994. Senator Hooper.—I would like to clear up a matter as to your attitude on the question of the stenographer’s note in the Circuit Court. I understood you to be in favour of giving the Judge discretion as to whether or not a note should be taken?—I think so.

4995. When do you propose to exercise that discretion? Would you say at the beginning “We do not want a note” or otherwise?—I think it would be usually exercised at the beginning, on the suggestion of one or of both parties. I would not give one party the right to require it, or to impose it on the other party. I think an application might be made to the Judge to avail of the stenographer’s note and the Judge would then exercise his discretion.

4996. As against the objection of the other party?—I think so.

4997. In cases that are appealed, where he had given his decision against taking a note, there would be no record to go before the Appeal Court?—No, but that would not seem to matter so much if there was a rehearing.

4998. It has been suggested to us that the stenographer’s note should be retained and should be available on rehearing for the purpose of checking perjury; that it would be an advantage to the Judge to be able, if necessary, to call for the record of some particular witness’s evidence. Would you think that would be an advantage?—I think it might be. I have been so little in the Circuit Court since this system started that it is hard to form a personal opinion about it.

4999. Generally, you think the Judge should have discretion at the beginning of a case to have the note either for himself or on the application of one of the parties?—I think a competent shorthand writer should be available.

5000. Attached to the Court?—Yes, attached to the Court.

5001. And that he should be a whole-time officer?—He would be, I suppose. I do not know about the working of the details, but I think he should be available.

5002. On the question of the hearing of appeals, I understood you to say that in the great majority of cases one Judge would suffice?—I think so.

5003. While a pair of Judges might go out, in the majority of cases they should sit separately?—I think so. That would give an effective appeal. It sounds illogical, but it has been successful.

5004. How would you divide cases into different categories, as between one Judge and two Judge cases?—I would leave that to the Judges themselves. The parties might suggest that theirs was a case that they would like to have tried by two Judges. These things work out pretty well in practice. Senator Dowdall said that the people of this country were highly intelligent, and one must not underrate the intelligence of ordinary people.

5005. I suppose a list could be drawn up and they could decide the cases to be heard separately and the cases to be heard together?—I know that in the workmen’s compensation cases in Limerick, where I practice, there was no difficulty in deciding whether a doctor ought to sit as assessor with the Judge. There are certain legal rules, and there was never the slightest difficulty in arranging the matter. At the beginning of each workmen’s compensation sessions the Judge said: “Tell me the cases in which the doctor will be required.” I have no recollection of any friction about it. In some cases the doctors sat, and in other cases they did not.

5006. In the memorandum that was sent in on behalf of the Bar Council, there is a suggestion about a High Court Judge going out to hear certain appeals, and also larger cases, within the jurisdiction of the High Court, without juries. Will you explain that?—I think it is desirable that that power should be there. If people wanted a local venue before a High Court Judge, I would give it to them.

5007. Another suggestion was made, that if the old system of appeals were reverted to, and the High Court Judges went out, that the present jurisdiction of the Circuit Court might be divided, and that the High Court Judge might hear cases, say, of over £150, which would then be withdrawn from the jurisdiction of the Circuit Court?—If you mean on the sitting of the Judge of first instance in the country, I would be against that. I think it would occupy too much of the time of the High Court Judge. You would have to provide an appeal from him then. I am strongly of opinion, no matter how good or how exalted your Judge of first instance may be, that there ought to be an appeal of some kind from him. The ordinary litigant wants it, and my experience as a barrister makes me agree with the ordinary litigant, without any reflection on the tribunal.

5008. On the question of costs, we have evidence that the costs in the Circuit Court in a case of, say, £200 or £250 are on an average at least £100 less than the costs of the same case would be in the High Court?—Honestly I cannot answer that. Like most barristers, I know very little about costs.

5009. You suggest that the difference would be decreased if there was a system of pleading and proofs in the Circuit Court?—I am sure it would be decreased. When you are considering the discrepancy in costs, one has to consider the discrepancy in the manner in which the case is tried. What you want is an efficacious and satisfactory trial.

5010. Would you suggest that the extra costs involved by pleadings and proofs would come to anything like £100?—I do not think it would come to £100. I cannot imagine a case where the preliminaries would come to so much. I know very little about costs. I have been amazed when I have been told what the costs of discovery have been, even after they have been carefully taxed.

5011. You would not dissent from the opinion that, even with the pleadings, the Circuit Court costs are very much below the High Court costs?—I suppose they are. I should think the Circuit Court costs on an average must be, perhaps, considerably below the High Court costs.

5012. We got an average of £100?—I would be prepared to admit that, but it does not alter my opinion.

5013. Do you think it is asking a good deal to change a system in which there is so much difference?—It depends on whether the system that is cheap is good. Quality is the main point.

5014. I thought you said a while ago that the chief consideration is to satisfy the public?—That is the only consideration.

5015. Deputy Little.—Do you not think, if Judges went out for six weeks in the year, that would hold up the High Courts a good deal?—I do not think so. I think provision should be made for leaving at least one Judge in Dublin to deal with urgent matters.

5016. At present how long do the Judges sit?—The Long Vacation has been cut somewhat. They sit about 40 weeks in the year.

5017. So that would leave 34 weeks available for sitting in Dublin?—Yes.

5018. You do not think that would hold up business?—No, provided all the Judges went out at the same time, so as to enable the Bar to go with them.

5019. Looking at it from the point of view of, say, the Dublin machinery of law in general, it would mean a sort of second vacation. You know what happens?—No. In vacation, the Judges, barristers and solicitors cease going to Court, but when the Judges go on Circuit the Bar goes with them. The work of the country is carried on.

5020. I suggest that you would probably want one or two Judges in Dublin? —I think it would be highly desirable to have two Judges in Dublin, so as not to allow the work in the Chancery Court, which is very important, to fall into arrears. At least one Judge should be there. I think two would be necessary.

5021. Coming to the question of concurrent or alternative jurisdiction, which has been described by Senator Brown, do you not think there would be a certain tendency operating if solicitors and counsel—possibly for the defendant—wished to have cases remitted and were not very quick?—I do not like to look at the thing from that point of view.

5022. We want to look at it from every point of view?—Yes, but it is contrary to my experience, as I think solicitors are very keen on getting their opponents’ cases remitted. No one has a greater opportunity of seeing that than junior barristers practising in Dublin. The first question that occurs to one when an action is started is: “Can we remit this?” That is the first thing that occurs to any junior barrister or solicitor, and he tries to do it as far as he can.

5023. Do you think it would be advisable, instead of the defendant having to get power to remit, if the plaintiff were obliged to apply to the Court to have the case retained in the High Court? Instead of having a system where the defendant applies to have a case remitted, the plaintiff would have to make a case as to why he brought the action in the High Court when it should have been brought in the lower Court?—No, I think it should be the other way. Under the Constitution, everyone has a right, and ought to have a right, I think, to seek justice in the High Courts, just as in England there is the right to seek justice in the King’s Courts there. I think it is for the person who wishes to change the venue to show why it should be changed.

5024. We have had cases mentioned here of persons going to the High Court to recover small sums like £3 and £5, and the defendants paying the claims rather than going to the expense of defending the cases?—I should think that if a plaintiff brought an action in the High Court for so small an amount it would certainly be remitted with costs against him, and I do not see how the defendant would suffer. The plaintiff would suffer by a foolish procedure of that kind, especially now when he has the District Court open to him to get quick decrees for small amounts, quick examinations of debtors, a quick execution, and all that sort of thing.

5025. Coming now to the question of jurisdiction, do you not think it would be inadvisable to make sudden changes without first trying out the Circuit Court system with proper rules and simple pleadings, and if these are not found effective, to make a change afterwards?—Well, the Circuit Court system has been in operation for nearly six years and it has been found exceedingly difficult to form a suitable code of rules. Rule-making is very difficult, as I know. The difficulties that crop up in making the rules to coincide with the statutes are almost impossible to understand, not merely for the layman but for the lawyer who is not trying to make the rules.

5026. Are you on the Rule-making authority?—I have been on the High Court Rules committee for a little over a year.

5027. Do you not think that when that difficulty has been got over and we have a set of rules for the Circuit Court it would be better to try them out?—No, I am convinced that the present system has caused great dissatisfaction among the people and that it ought not to be prolonged with the addition of rules.

5028. I am personally with you that so far as the question of appeals is concerned there is great dissatisfaction, but the evidence given by people who have been in touch generally with the country has been that there is a strong feeling in favour of retaining the jurisdiction as it is, apart from the question of appeals?—All I can say is that, if you are satisfied that the majority of people who have recourse to the Courts prefer the large jurisdiction you will give effect to the people’s wishes. My own opinion is that this system is a bad system, that the jurisdiction is too high, and that no rule-making will make it better.

5029. Chairman.—Have you any views to offer in regard to either the High or the Supreme Court?—As regards both I think that the present number of Judges is insufficient. Whether the present system be kept on in its entirety or whether any changes take place, the number of Judges is not sufficient at all.

5030. Senator Brown.—In the High Court?—In the High Court. I think that there ought to be more Judges. There seems to be a strong opinion amongst members of the Bar that additional Judges in the Supreme Court would be desirable so that in important cases a larger Court might be available—a Court of five Judges. If two additional Judges were appointed to the Supreme Court I think that they should be available to sit in the High Court as well. That might involve a change in the Constitution.

5031. Senator Dowdall.—They might possibly be called on to hear appeals on their own cases?—That would not be allowed. The average Court of Appeal would consist of three Judges, and that could easily be arranged. There might sometimes be appeals from the Chief Justice in lunacy and other matters. Such cases are heard by the Supreme Court.

5032. How many extra Judges would you say would be required in the High Court?—At least two.

5033. And you think it desirable that the number in the Supreme Court should be increased to five?—That five should be available if required, not five for every case at all.

5034. You think that there should be two extra High Court Judges who would be available if required in the Supreme Court? That would be a net increase of two?—Yes.

5035. But it is not possible that one of these Judges would hear a very important case in the High Court which might afterwards be appealed to the Supreme Court, and the case might be of such importance as to require to be heard by the full Supreme Court?—Yes, but to solve that difficulty you could bring in the President of the High Court.

Senator Brown.—Any Judge can be brought in, but the President of the High Court is ex officio a member of the Court of Appeal. An ordinary Judge can also be brought in.

5036. Chairman.—What you want is two extra High Court Judges. It comes down to that?—Yes, that is my personal view. I think two would be sufficient.

5037. Senator Brown.—The Supreme Court in this country for practical purposes is absolutely the final Court? Theoretically it is not for the moment, but for practical purposes we may look on it as the final Court?—Yes.

5038. In no other Dominion is there a final Court of Appeal as small as ours. The Canadian Supreme Court of Appeal and the South African Court are both larger. In Canada they have the Chief Justice and, I think, five ordinary members of the Court, and in South Africa they have the Chief Justice and three, that is, four altogether. In view of the fact that the Supreme Court here is practically the final Court, do you not think that there ought to be at least four permanent members of the Court, and that it should always sit with at least four members? You may have an appeal from two Judges, and you may have a majority of the Judges against the ultimate decision?—I think what you suggest would be much better.

5039. The only argument is the argument of cost?—Leaving that out, I would be in favour of more Judges.

5040. And in a matter of such importance the cost should not be an obstacle? —Personally I think that the question of the cost of extra Judges is exaggerated in newspaper articles.

Deputy Little.—The country does not look at it in that way.

Senator Dowdall.—A ridiculous exaggeration.

5041. Senator Hooper.—The suggestion was made yesterday that inconvenience arises to parties sometimes from the fact that there is only one motion day in the week?—Yes, great inconvenience.

5042. Do you think that that ought to be changed?—If we had a couple more Judges that would arrange itself.

5043. Would it be possible to arrange it with the present Judges?—I do not want to say it in a patronising way, but I think the present Judges are doing their best.

5044. But these motions do not take long?—They do. Each particular motion does not necessarily take long, but when you have them all crushed into one day they take a long time during that day. If you had a Judge sitting for an hour every morning he would get through most of them. But I do not like to suggest that the Judges should be compelled to adopt any particular domestic arrangements; I think if the Judges were sufficient in number you might leave it to them to sit often enough. That is my own view.

5045. That they might take it in rotation?—They would, I think.

5046. Senator Brown.—Is not the reason for there being only one day for motions per week that there are not enough Judges?—I think so.

5047. You have two Judges sitting for appeals or for jury cases, and then you have one day a week when one of the other Judges sits for probate or bankruptcy?— All that is now crushed into Friday— bankruptcy, probate, and all the motions. It is very trying on junior counsel.

5048. Deputy Little.—Under the old County Court system there was considerable variety amongst the Judges, and I have been asking questions to find out how we could get rid of variety amongst the Circuit Judges—I am not necessarily speaking about the present Judges, but in general?—You would have to appeal to a very high jurisdiction.

5048. Ten or twenty years hence Circuit Judges who had been sitting in the country districts might have got into a groove. Have you any suggestion to make as to alternating them—moving them about, or stipulating a certain period after which they must move to another Circuit, arranging the moves themselves?—In some cases I suppose it would relieve the situation.

5049. You have not formed any view on that?—I have not. That is just human nature, and it would be almost impossible to legislate for it.

5050. Senator Brown.—They clearly ought not be removable from one Circuit to another?—Oh, no

5051. Deputy Little.—This is another matter that is, I think, a grievance to some people, that is, that when a Judge proves to be very able both as a Judge and as a chairman of commissions, the Court may be deprived of his work?— From the point of view of the Courts and of the administration of Justice, I think that is very regrettable, especially with the small number of judges we have at present. I think that the Courts ought to come first for a Judge.

5052. And that some other provision should be made for other work?—Yes. At the same time, of course, if a particular man is a most desirable man to sit as chairman of a commission, it seems a pity that his services should not be available.

5053. But if it is dislocating work?—I do not think that it is fair to litigants.

5054. Senator Dowdall.—Putting aside the question of expense for the moment, do you think it a desirable thing that the Supreme Court Judges should be detached and have no association with the work of the other Courts?—Not altogether sir. I think it would improve any Supreme Court Judges if they were occasionally to try cases of first instance and go to the country.

There was one recommendation which we made and which I would like to put before you very strongly; that is, that parties ought not to be deprived of the right of a jury in contract cases. At present a party has no right to a jury in a contract case. Under the Courts of Justice Act, 1924, he had a right to set down his case for a jury, but he could be deprived of it on the application of the other party. Under a later Act—I think the Act of 1927—he was deprived even of that right, and he has now no right to a jury in contract cases unless he goes to the Court and says: “Please may I have a jury?”—I think that is wrong.

5055. You think the old right ought to be restored?—I do very strongly.

Mr. Conor Maguire, Barrister-at-Law, Bar Council, Law Library, Dublin, called and examined.

5056. Chairman.—You are also a member of the junior Bar?—Yes. I was a solicitor for five years. I qualified in 1914 and I practised until 1920. I then became a Judge of the Dáil Eireann Courts, during 1920 and 1921, and I had something to do with the drawing up of the Rules of the Judiciary under which we acted in those Courts. I was called to the Bar in October 1922.

5057. You represent, with Mr. Binchy, the Junior Bar in the evidence you are giving?—Yes.

5058. You heard Mr. Binchy’s evidence and do you agree with the evidence he has given?—Generally speaking, I agree with every word he said.

5059. Are there any points, not covered by Mr. Binchy, which you would like to put before the Committee. Take the question of appeals from the Circuit Court firstly?—I agree with what Mr. Binchy said, and he said practically everything I could say. I would like to add to what he stressed so much, his experience as a junior counsel going circuit, my experience as a solicitor. I have always thought it was a wholly wrong impression that our people were dissatisfied with the old Assize Court. I was one of those who in the days of Sinn Fein actually engaged in attacking the British Courts. I was one of the first who appeared in a Sinn Féin Court. I was one of those who advocated the boy-cotting of the British Courts, and Mayo was the first place where that was done. But that was purely an attack on the Courts as part of the British administration. Speaking of my own experience of five years as a solicitor, I say the Irish people were quite satisfied with the old form of appeal from the County Court to the Assize Court. I do not want to go over what Mr. Binchy has said, because I corroborate him in every word in the reasons he gave. It was urged against the old appeal that it was possible to make a false case on appeal. The very reverse was the case, as Mr. Binchy pointed out. May I give my reasons as to the popularity of the old Assize Court? It was because the Assize was a High Court on circuit. It was a High Court in the view of the people as well, consisting, not so much of a Judge, as of advocates. I can say of my own experience, that frequently after a difficult case was heard in the County Court, the client who intended to appeal, or anticipated that he would be the respondent in an appeal, asked me to engage such-and-such a senior counsel. He knew that at the coming Assize there would be available the highest and the most skilled advocates on the circuit. That was a benefit to the public of which it would be impossible to assess the value. If I may elaborate that; my own view as a solicitor, and afterwards as a Circuit Judge in the Sinn Féin Courts, going through the country, is that the tendency towards decentralisation of the Courts is quite wrong and should be used most sparingly. Although people say it is more convenient to try cases in local centres, and that consideration of expenses, and so on, should induce the legislature to spread the Courts all over the country, I think the people who urged that view do not realise how much they are injuring the administration of justice by doing that. Somebody said the present system has not yet got a trial. I felt that that was so, at one time, because I was in favour of decentralisation for some time. I now feel if this system is tried much longer it will inevitably tend to the general lowering of the standard of the administration of justice generally. Advocates will not be as skilled as they were, and, inevitably, the Judges will not be as skilled as they were. To any person who considers it, it is obvious that the administration of justice and the functions of advocates and Judges require highly-skilled and experienced minds and any shaping or construction of the Courts which leads away from that ought to be carefully guarded against.

5060. Chairman.—I think that covers that part of the matter quite clearly. Now, with regard to jurisdiction, would you deal with that?—It follows from what I have said that the jurisdiction of the local Court should not be extended except under absolute economic pressure. I am strongly of opinion that there should be concurrent jurisdiction, at least. When I said people do not appreciate the present state of things I am afraid, in this matter, the ordinary man is unable to estimate the importance of skilled and trained advocates. Of course, I am a barrister and may be thought to be biassed in my view. But the preparation of a case in law, the advising of proofs, the deciding on the line of evidence to be given, the shaping of the evidence to allow one to apply the principle of law to the facts—all that requires a trained, skilled, and experienced mind. It is a matter of extreme difficulty, and the ordinary man seeing his case lost in the Circuit Court does not appreciate, and cannot appreciate, because he is not in the position to do so, that if that case were tried in another tribunal, in the hands of a skilled and trained advocate, he might easily have won where he has lost. It is easy to exaggerate the value of what is called cheap law. Mr. Binchy suggested that a barrister’s business is learnt really by apprenticeship and that goes on all his lifetime. You cannot say, at any stage, that a man knows law or that a Judge knows law, and when you send a Judge to the country it seems to the people that because he is considered fit to occupy the position of a Circuit Judge he knows the law upon all subjects. It is one of the disabilities of a Circuit Court Judge that he must deal with every type of case. It is wholly wrong to think he knows all law. If you go to the High Court and hear, and watch cases, you will find that the function of the Judge is to listen to an advocate showing him what are the principles of law, producing cases before him, explaining the difficulties that arise and seeking to discover what are the proper principles to apply to a certain set of facts, and that the Judge, unless helped by experienced and skilled advocates, is not in a position to try the case properly. If you place a High Court Judge in the position of a Judge in the Circuit Court and deprive him of skilled advocates, you will find that he will be a far and away different Judge to those sitting in the High Courts who are able to avail of skilled advocacy and so on.

5061. Are there any points additional that you would like to put before us?— There are one or two rather practical points that I should like to deal with. Stenographer’s notes as part of the scheme have been mentioned. I would suggest that if the stenographer’s notes are retained they ought to be available only to the Judge. If you have stenographer’s notes available to both sides it will inevitably mean that in every case briefs will be compiled with the stenographer’s notes, which will add considerably to the expense. I think things would be much more rapidly gone through if the stenographer’s notes were only required on particular points, and it would lessen the expense. The value of the notes is that if a witness tells a story in the Appeal Court different from what he did in the Circuit Court he can be challenged. The reference may only be required in regard to a particular witness. If the Judge is in a position to see that an advocate requires it, he will have the notes of this man’s evidence produced, which would, I think, meet the difficulty.

5062. Senator Brown.—The suggestion was made yesterday that the stenographer, rather than the stenographer’s notes, should be retained, that is, that he should have his notes, that he should be there on the hearing of the appeal, and, if necessary, called on to produce his notes of what was sworn by the witness? —That would produce the same result as I suggest. There is one other thing. Senator Dowdall went into figures with Mr. Binchy about appeals. I am only hazarding this: If all the figures are examined, it will be found that in the early years a far larger number of appeals were lodged, and that the withdrawals, in these years, were greater than they have been since. I think you will find that that was so. When it was discovered, as a result of the Lewin case, that an appeal on fact was of so little value, the number of appeals diminished. If you have appeals on a re-hearing you will have a great increase in the number of appeals from the Circuit Courts.

5063. Senator Hooper.—On this question of the notes your suggestion would involve that the notes should be available in every appeal?—I think the stenographer should be available. I am rather inclined to think that a note might be taken on every case, but it could be met by providing that a note be taken only on the application of any party.

5064. Your suggestion is that the Judge should have a copy of the notes to which he could refer?—What I meant was that he could call for a copy if it became necessary. What Senator Brown suggests meets the situation.

5065. Have you got experience of a stenographer being asked in Court to read his notes?—Not in civil cases; in criminal cases I have had some.

5066. Do not you find that it takes a long time for the stenographer to find the portion of his notes that refers to the particular matter in question?—On the contrary, I was always amazed at the facility with which a stenographer looked up his notes.

5067. Senator Hooper.—I certainly have known of instances in which it has taken a considerable time for the note-taker to go through a particular portion of his notes, particularly when they have been taken a long time previously, and take out the particular passage needed? —Of course, it all depends on the number of witnesses examined and the efficiency of the Court stenographer.

5068. And the time when the case was originally heard?—I thought you referred to cases which are at hearing in Courts.

5069. I am talking of appeals?—I have never had a case in which a stenographer was called on to go over the notes.

5070. I understood that you were in favour of the Appeal Judge having the record before him?—No.

5071. That it should be available?— That the Judge could call for it.

5072. We are dealing now with appeals?—Yes.

5073. Your suggestion is that the stenographer in the Circuit Court should be in the appeal Court and, when necessary, that he should read the particular portion of his notes that is in dispute?— I accepted that from Senator Brown. I do not profess to have considered any technical difficulties about it. I can quite see that it would be very much simpler to have the transcript available for the Judge, but I was looking at it from the point of view of expense.

5074. Senator Brown.—That involves the cost of transcript in every case in which there is an appeal?—If the State would be prepared to bear that.

5075. The cost to the country?—If it did not fall on the parties.

5076. Senator Hooper.—That would involve also the presence in Court of the stenographer, who might be required in the Circuit Court sitting elsewhere?—A trial of the system would find out which was the more effective.

5077. Chairman.—Your main point is that you consider there should be an official stenographer in the Court?—I do.

5078. Deputy Little.—You have had experience of the Republican Courts?— Yes.

5079. Would you consider that the present system is a sort of interpretation of the theories on which those Courts were based—bringing the Courts closer to the people?—I do not know whether I can say “yes” or “no.” In some ways “yes” and in some ways “no.”

5080. But you are in a position to give us a little history of this?—The present system of having a local Court does accord with the spirit of the Sinn Féin Court system, but it differs from it in one important particular, that is that the Circuit Judge who, according to the Rules, was to preside at a circuit sitting of the District Court was to come from Dublin. The idea was that the Judges should be a High Court on circuit. That was the idea behind the Sinn Fein Court system.

5081. There was a Court of laymen in the first instance?—Yes. I have the Rules here.

5082. In order to throw light now on what suggestions we might make in perfecting the system I would like to get a very short description of that system and then of how the people who framed the Act of 1924 developed that.

Chairman.—Does the Deputy mean that he wants to get a history of the Sinn Féin Courts?

Deputy Little.—I think it is essential that we should have information on that point if we are to be in a position to make recommendations for the future framing of legislation on the matter.

Chairman.—I do not see how it is going to be of very much assistance to us.

Witness.—I can hand in this, with reluctance, as it is the original judiciary hand-book used in the Sinn Féin Courts. You can get it here in black and white, but I think you will find that what I have said summarises the position. The idea was to bring the High Court to the people rather than have the people go to the High Court, so that in so far as the present system provides—Circuit Judges in fixed areas—it differs absolutely from the spirit of our scheme.

5083. Deputy Little.—Was there any limit of jurisdiction in the Court in that case?—Yes, £100 for the District Court.

5084. That was a Court of laymen which would correspond to the present District Court?—The parish Court was the District Court. It had only jurisdiction up to £10. The District Court corresponded more closely to the present Circuit Court, a District Court at which a Circuit Judge sat.

5085. How were cases above £100 dealt with?—In the High Court or the Supreme Court as it was called.

5086. In Dublin?—In Dublin. We had a Supreme Court, the District Court and the parish Court.

5087. Would you be prepared to say that the present system has been a sort of growth out of the experience of that Court system to some extent, and the increased jurisdiction was an attempt to bring the law closer to the people?—I cannot speak for the makers of the Act.

5088. Looking at it from outside?—In order to make my view of it clear I think the idea of the Sinn Féin Court system was to bring the High Court through the country. The idea of the present system is the reverse.

5089. Chairman.—And your suggestion that the High Court should go out now on circuit is more or less reverting to what you then had in mind?—That is so. As a member of the Bar, I say I do not view with any great pleasure the re-establishing of Circuit Judges going out, but I realise that you have to have local hearings to meet the needs of this country and at the same time to preserve the efficiency of the Courts.

5090. Deputy Little.—In dealing with the efficiency of the local Bar, I am sure you have often heard the comment made that the country solicitor very often develops greater skill than the city solicitor, for the simple reason that he has not the Bar at his elbow and is thrown upon his own resources?—The difficulty about it is, what is skill? Very often solicitors trained in the Circuit Court are extremely skilled within certain limits. They are skilled examiners or cross-examiners, and in presenting a case to a jury, but where they lack—and they cannot help lacking— is in being able to find out the principles on which a case should run and to lay the case on the right lines. That is a disability under which they suffer for the reason that they have not got the training and they have not the Library at their elbow. They have not the opportunity which we juniors have of learning from seniors and so on. No matter how skilled a solicitor may be, he cannot possibly do real justice to a difficult case.

5091. Suppose you leave the solicitor alone and come to the barrister who is practising portion of the year in the country and portion in the city, do you not think that in his case you have two qualities combined, the experience he has gained from practice in the country and from being thrown on his own resources, as well as the experience he gains from spending a certain time in the Law Library in Dublin where he has the advantages of apprenticeship?—Theoretically it was thought that that would be the result of the present system. In practice it has turned out to be the very reverse. What has happened is that the young barrister without going through any form of apprenticeship goes to the Circuit Court with men who are not very much more senior than he is. They cannot learn from each other, none of them having had very great experience. It seems to be impossible to have a junior Bar which will keep in touch, as you have suggested, with the Library and with the Circuit Courts.

5092. With regard to the local Bar, we have evidence that some of the very best men at the Bar were men who had been trained first at the local Bar and then came up to the city, the cream coming to the top. They became the most skilled men. Would your criticism apply not so much to local Bars like Cork and centres of that sort, but rather to scattered districts?—To all the districts I know. I do not know Cork. I have never been in the Courts there. I know the Midlands, and I know Mayo and Galway. I have gone as far north as Sligo and Longford. I have been a good deal in the Circuit Courts since they came into being.

5093. Do you think that if you had a system of Judges going out and re-hearing, and with alternative jurisdiction, that it would largely meet the criticisms which you have made?—I do. I strongly support what Mr. Binchy said about concurrent jurisdiction. I think persons should not be penalised in costs if they bring actions in the High Court.

5094. At the same time do you think it would be better to try out the system first before actually making such a radical change—to try these remedies first before reducing the jurisdiction of the Circuit Court?—What I say only applies if the jurisdiction is not reduced.

5095. Senator Wilson.—Would you say that the advocacy of the Scottish barristers is high?—From what I know, it is.

5096. They have a Sheriff’s Court which is somewhat akin to our Circuit Court, only it has unlimited jurisdiction in its operations in the North of Scotland, which is a country more or less like ours. How do you account for that fact? —I would like to know exactly what the conditions are?

5097. That is the position?—I should like to know how it works.

5098. You say that the advocates in Scotland are first-class?—I cannot understand how it would be possible for any advocate to develop the necessary skill and experience to deal with law as we know it in a Court so far removed from the legal centre.

5099. It is possible over there?—It may be that they are satisfied with a low standard of skill.

5100. Senator Wilson.—You say that the standard of skill in Scotland is very high and the Courts have been working a long time?

Senator Brown.—The junior advocate in Scotland spends much more than half his time in Edinburgh.

Witness.—I am sure Senator Brown will agree with me that, from his experience, one could not possibly train an advocate under such circumstances.

(The Witness withdrew.)

The Hon. Timothy Sullivan, President of the High Court of Justice, was called and examined.

5101. Chairman.—You are President of the High Court?—Yes.

5102. You have occupied that position since the institution of the High Court? Yes.

5103. We will be glad to have any observations which you have to make regarding the work of the High Court itself or the Supreme Court, whichever you care to start with?—I would prefer to deal with the High Court, because my knowledge of the Supreme Court is very limited. I think I have gone only twice to the Supreme Court, in the absence of the Chief Justice.

5104. Senator Brown.—You would perhaps be able to give us your view of whether it would be desirable to increase the number of permanent Judges in the Supreme Court, in view of the fact that it is for all practical purposes the only final Court. We have had that question already before us here and the suggestion is that the number ought to be increased either to five or four, because it is important to have the majority of Judges in favour of the ultimate decision, which might not be the case if there was an appeal from three Judges to two. What would be your views on that matter?— If the Supreme Court is to be a final Court, there is a great deal to be said for making it as strong as possible. Speaking for myself and for my colleagues of the High Court, I do not think that there is at present any feeling of dissatisfaction with the Supreme Court as constituted.

5105. There has been no suggestion of that?—I can quite appreciate that the final Court of appeal for the Free State ought to be a very strong one.

5106. Chairman.—Would you suggest four or five Judges at present?—Well, I do not know that I have given very much consideration to the question of the number.

5107. Senator Brown.—Would it help you if we gave you this assistance as to the number of Judges in other Dominions. The Supreme Court and the Court of Appeal in Canada has the Chief Justice and five other Judges, that is six Judges. In South Africa the Supreme Court has three Judges. Those are the only precedents we have had?—My own personal view—and it is only my own view, because I have not considered this matter, and I have not discussed it at all with any of my colleagues—would be rather in favour of a Supreme Court of five than four Judges. Five would be more satisfactory than four. I am aware that some of the Judges are of opinion that the advantage of four was that if the Judges were equally divided, two and two, that then the decision of the Judges below would stand. I do not think that that is a satisfactory way. I think the decision come to by the Supreme Court in deciding a point at issue should be the decision of the majority of Judges in that Court. That would be my own view.

5108. Would it be your view that if the number of Judges in the Supreme Court were increased to five, they should be confined to the Supreme Court—that is, that the two extra Judges should be confined to the work of the Supreme Court and not be available for work in the High Court?—I am very anxious that the number of Judges in the High Court should be increased. I would prefer that the Judges in the Supreme Court were confined to the work of the Supreme Court. I do not think having Judges in the Supreme Court who were also Judges in the High Court would be very satisfactory.

5109. Chairman.—It would be quite possible that one of the Supreme Court Judges sitting in the High Court might hear a case of very great importance in the High Court from which there might be an appeal to the Supreme Court, and then that Judge could not sit in the Supreme Court in the hearing of that case?—Yes.

5110. That would be one reason?—That would be one reason, and there is possibly another reason. I do not think it satisfactory that one Judge who is acting as a Judge in the High Court should sit in another Court on an appeal from his colleagues, who would be sitting the following day or the following week with him again. Human nature finds that inconvenient. Again, I wish to say I am speaking only for myself.

5111. With regard to the working of the High Court, of which you are President, will you give us your views?—With regard to the High Court, my view from the very start, and not only my own view but the view of my colleagues in the High Court, is that it has been under-staffed. When the matter was before the Judiciary Committee before the Courts of Justice Bill of 1924 was introduced, I personally proposed that the wording of the Act should be “Not less than six Judges.” At that time there was an uncertainty as to the amount of work there would be for the High Court Judges, and I thought myself that probably six Judges would not suffice. The Judiciary Committee, as a body, advised the other way. They thought that six Judges would do. I always thought that the Court would be under-staffed with that number, and experience has shown that I was right. If I were asked what was the real flaw in the working of the High Court, the answer would be that it was under-staffed. It was not fully staffed to deal with the work before it. That occasionally led to delay, and that delay has given rise to a certain amount of dissatisfaction, which is natural enough. I think that nearly all the objections that have been urged against the present administration of the High Court in dealing with appeals and other matters is due to the fact that in the first instance we are not able to keep up with the work, and that there are large arrears; there is, therefore, dissatisfaction. My view is that if we had been adequately staffed to deal with the High Court work, there would have been practically no complaint about the High Court.

5112. Chairman.—And while in theory you have six Judges to do the work of the High Court, in practice you have only five?—Yes, because after the appointment of the Judges I had an interview with my colleague, Mr. Justice Wylie, and he told me—and I accepted it—that he had an understanding, if he were to remain on, and did not retire on pension, as he was entitled to do, that his work would be confined to the Land Commission. I accepted that position. He told me that if he were called upon to do the ordinary work of the High Court he would not continue in office. At the same time, he said that as a matter of personal courtesy, if ever crisis arose, or if I were in any difficulty, he would do anything he could. Accordingly, once or twice when a difficulty arose, and when there was a matter that could not be dealt with without another Judge, I called on him and he came in and sat with us, but he told me that that could not be regarded as a precedent and that he would prefer to retire rather than do the work of the ordinary Judge in the High Court.

5113. On the question of the number of Judges, would you suggest how many extra judges you would require for the proper discharge of the business of the High Court?—As the matter stands at present, if the present system were not altered in any way as regards appeals, I would certainly want one additional Judge. I think myself that it would be an effort, even with one additional Judge, to prevent arrears from accumulating. With one additional Judge, I might be able to keep pace with the work, but if I had two additional Judges there would be no question of arrears; that is my opinion.

5114. Before you leave that point, assuming that the present mode of appeal were changed to, say, a re-hearing, that is a re-hearing by the High Court Judges going on Circuit and sitting locally, you would still require additional Judges?—I would, in my opinion, want more than one additional judge. Of course, I am very largely in the dark as to the amount of work that change would lead to. I am only trying to assume what it would lead to. I think in these circumstances—that is, the Judges going to the country on Circuit—I would want at least two more. I am not sure that I might not require more, but I am certainly positive that I could not do with less than two more. It might be that I would want more.

5115. Can you tell us whether there has been very much delay in dealing with cases in the High Court, and, if so, what has been the cause of the delay?—I do not think there has been any complaint as regards arrears of work in any branch of the High Court work except the Circuit appeals. We manage to keep pace with the other work. I am not aware of arrears of any kind in the other work we do, but there is a substantial and growing amount of arrears of Circuit appeals. I try every term to give a certain amount of time to the hearing of the Circuit appeals. Of course, in fixing the amount of time to be given to them, I must have regard to the other work too, and I do not feel at liberty to ask Judges of the High Court to neglect that work—to swing off entirely to the hearing of Circuit appeals. We deal with the Nisi Prius work and the State work, and with the motion lists, Bankruptcy, Chancery actions and summonses. We are then liable to be called upon to go into the Court of Criminal Appeal. That may or may not take a very serious length of time: it depends on the nature of the case. Then one Judge has to go practically each term to the Central Criminal Court. When we began in 1924-25 the sittings of the Central Criminal Court were very heavy. I have been there myself for four weeks at a stretch, and, with a short interval of about a fortnight, I have been there again for another two weeks. At present the work in the Central Criminal Court is very much less, but then a Judge has to go there every term. I have to provide for that, and also to provide a certain length of time for Circuit appeals. The amount of time for them depends on the length of the term. In a fairly long term like this we might be able to devote a month to that work as well as taking them at intervals whenever possible. Except for the Circuit appeals, I do not think there are any arrears.

5116. Senator Brown.—There are two Judges hearing Chancery actions?—We have two Judges doing Chancery work. We then have three Judges, as a rule, doing the Nisi Prius work. There are two doing jury cases at the same time and one doing non-jury cases. We try to work out the term evenly and divide it as evenly as we can. There are no arrears except in Circuit appeals.

5117. Chairman.—You look upon it as a first charge on the time of your Court to try cases proper to the High Court?— You mean as distinct from appeals?

5118. Yes, as distinct from appeals?— I do not think I have ever really considered it very much on that line. I did to this extent: I do not like High Court actions being held up, and in that way they are a first charge on our time. In other words, at the beginning of every term we try to clear off any Nisi Prius work ready for hearing and any Chancery actions; but we do not give unlimited time during the term for hearing these actions. If they are ripe for hearing at the beginning of the term or a week or fortnight afterwards, we take them. Then we devote as much time as possible to the hearing of Circuit appeals.

5119. A suggestion has been made by one witness who gave evidence here and I would like to have your view upon it. Assuming you had a sufficient number of judges in the High Court, would you favour what you might call an appeal section of the High Court, a Judge or Judges whose first charge would be to deal with appeals and dispose of them— that is, assuming a continuance of the present system?—Do you mean that every term there should necessarily be two Judges assigned for appeals?

5120. That was the suggestion—that the work should be a first charge on their time?—I would see no objection to that if the High Court were sufficiently manned to do the other work also.

5121. I qualified my question by saying “assuming there was a sufficient number of Judges”?—Certainly. If we had a sufficient number of Judges my idea is that every term there should be two Judges hearing Circuit appeals, and they would keep pace with them quite well They would not necessarily be the same Judges. I would be in the position of having two Judges during the term hearing Circuit appeals.

5122. There was a further suggestion in connection with the High Court on which I would like to have your opinion. It was a suggestion made by a representative of the commercial community to the effect that there should be a Judge whose first charge would be the hearing of commercial cases. I understand the witness was talking about something similar to what they have in England where they have a Commercial Court?—For myself, I do not think the volume of what would be strictly called commercial cases in this country would necessitate that.

5123. Such as they are, large or small, do you think there would be any advantage in having all commercial cases sent to one judge?—I do not see any advantage in it.

5124. Do you not think that after some time people would get to have a special knowledge qualifying them to deal with commercial work?—That is quite possible. It is possible that a Judge doing commercial cases would, at the end of a certain time, have a certain experience of commercial matters that would not be common to his colleagues. I take it that that would mean the same Judge term after term.

5125. That was the suggestion made here?—It might certainly have an advantage from that point of view. I have not considered the matter from that aspect. I do not think there is really very much weight in it.

5126. Senator Brown.—It was suggested that the short pleadings they have in the English Commercial Court enable a case to come on very quickly. They do not have very elaborate pleadings?— I do not know how that would work. I rather think the pleadings here are not a source of complication in any case. I do not know what they are in England. I think you would have to have discoveries and interrogatories even more frequently in commercial cases than in ordinary cases.

5127. Chairman.—Apart from the delay occasioned by appeals from the Circuit Court, has there been very much delay in the High Court as a result of a shortage of Judges?—I do not think there has been a real delay in any other branch of the Court work. As far as I know, the High Court work, apart from appeals, is up-to-date.

5128. I take it your case is that if the present system of appeals from the Circuit Court were to continue you would require at least one extra Judge?—At least one.

5129. And probably two?—Probably two. I might be able to do with one.

5130. If there were a change in the mode of appeal to, say, one of re-hearing by High Court Judges on circuit, you would require at least two?—That is my view; I would require at least two.

5131. Senator Brown.—I take it you are not likely to get much assistance from the sixth Judge who may be a successor to the present Mr. Justice Wylie, if one of your Judges has to take up Land Commission work. It will not help very much if one Judge has to be assigned for that kind of work. One of your High Court Judges will have to discharge the Land Commission work, partly administrative and partly judicial? —If one of my High Court Judges has to do that work, then I will not get much assistance from the appointment of one Judge. When I mentioned the appointment of one Judge I was thinking of Mr. Justice Wylie doing the work as he does it now and the rest of us doing the work as we do it. If we had one extra Judge with Mr. Justice Wylie doing his work I might be able to keep pace with the work.

5132. You consider two extra Judges necessary if the Circuit Court appeal system were changed to a re-hearing and I take it that you are working on the grounds that that would likely increase the number of appeals?—Not only on that ground. I do not know whether it would increase the number of appeals or not.

5133. We have had a good deal of opinion to that effect?—It quite possibly would, but in any event, the Judges having to go through the country for considerable periods during each term to deal with work there, it would necessitate at least two more Judges if we are to carry on at all, unless the Courts here are practically to shut up.

5134. The suggestion was that the Courts here would practically shut up for three weeks twice a year—that three Courts should go out twice a year through the country. Do you think that would work satisfactorily?—I have never contemplated the High Court shutting down like that and I would be against it. I do not think that would be at all desirable. There must necessarily be an amount of High Court work going on here that ought to go on during the term.

5135. Senator Wilson.—Would you be better served if you had a stenographer in your Court?—Well, the chief use of a stenographer would be when we are hearing Nisi Prius cases, cases with juries. It would be an advantage from two points of view. In the first place you would have a fuller and more accurate note of the evidence than any Judge could take. The drawback to a stenographer’s note is that the transcript is rarely ready in time for the Judge when he comes to charge the jury; that is, as far as jury cases are concerned. The transcript may be available, and is, for the parties to appeal or for checking the Judge’s note or recollection, but as a rule in jury cases, where the stenographer is taking a note with the consent of the parties, the transcript has never been available for me when I came to charge the jury. I have always had to go on my own note.

5136. Could you not proceed more quickly with the case if you were not obliged to take notes?—I could to a certain extent. I do not like to boast of my handwriting, but I find that after a while I can very nearly keep pace with the witness talking on all material points. It would save some time certainly to have a stenographer; there is no doubt it would, but that would only be a workable plan if the notes were ready for the Judge practically at the end of the day when he comes to charge a jury. It sometimes happens that I have to charge a jury at half-past three and unless the stenographer can have his notes ready for me at that time, I would still have to take a note myself so that I could charge the jury. In the same way, if the case went over to the following day I would want the transcript of the note at four o’clock to take home with me so that I could look over it before resuming next day. That is the only trouble that I know of as regards working from the stenographer’s notes.

5137. You do not think that the stenographer would be able to give you the transcript as promptly as you would require it?—I do not think so. I never had the advantage of it even at the Central Criminal Court where the statute requires it. I think you would want more than one stenographer to have the transcript ready in time.

5138. It was suggested that if such a provision were made it would obviate the necessity of an appeal to the Supreme Court?—I am not thinking of appeals at the moment. I am speaking now of doing my own work with a jury. Unless the stenographer could have the transcript ready for me at the time that I started to charge the jury it would be of no use to me. If he could have the transcript in time for me when I wanted it, of course it would spare a lot of trouble and speed up things. But stenographers are human about that. You would hardly get that done unless you had a relay of stenographers. Before Committees in England they have, I think, three stenographers who take turn about for ten minutes at a time.

5139. Deputy Wolfe.—On this question of a commercial Judge it has been suggested that if you were to add a commercial Judge to your Court that he would necessarily become an expert— rather more of an expert than he is at present?—That is very graciously put.

5140. My suggestion is that if that were so it would necessarily mean that all our other Judges, who are at present experts, would become less expert?—I think it would possibly mean training one man at the expense of his colleagues.

5141. Not necessarily at the expense of his colleagues?—I think it would, because when Judges take a turn in trying these cases we all, I hope, profit to a certain extent by what we hear in the different cases. That adds to our reserve of information for future cases.

5142. May I not put the question this way. Is not our country too small for a commercial Judge?—My view is that there is really no necessity for a commercial Judge in this country.

5143. There is another matter on which the Committee would like to have your opinion. Someone before the Committee mentioned what I may call the Commissioner system, that is appointing Commissioners to get rid of arrears of judicial work. Is not that a matter to be avoided where at all possible?—I am entirely against it. I do not think it is desirable, except of course when you have no other resource to fall back upon. My view is that no one should do a Judge’s work but a Judge.

5144. While not suggesting for a moment that Commissioners, when appointed, have not been a success, may I put the matter this way: that they lack the public confidence. The man in the street wants a Judge when he pays to get his case heard?—I am inclined to agree. I think that a litigant would look on the decision of a Commissioner, appointed for a limited time, in a different way to the way he would look on the decision of a permanent Judge.

5145. Senator Farren.—I understood you to say that if the present mode of appeal from the Circuit Court were changed to a re-hearing in your Court it would mean that instead of requiring one additional Judge you would require two?—Yes.

5146. Am I to infer from that that the re-hearing would take up more of the Judge’s time than the present system of hearing appeals on the note?—I think that the re-hearing—this is only an estimate—would take at least as long as the hearing on the note, and I am inclined to think a little longer. I am counting on the fact that all the rehearings will not be in Dublin and that you will be sending out Judges down the country. While they are down the country I shall want some Judges in Dublin to go on with the ordinary High Court work.

5147. If the present system of hearing appeals from the Circuit Court is continued you think that one additional Judge will suffice?—Subject, as I have said, to this, that I would try to do it. I may be able to do it with one, but I could certainly do it with two. The trouble is that if I had only one more Judge it allows nothing for eventualities that might occur. As a body of Judges, we are not very old in years, and yet during several terms since the system started I have been short of one colleague for one reason or another.

5148. Senator Brown.—Due to temporary illness?—Yes. I was short of one colleague over one entire term; I was short of another colleague for a considerable portion of a second term, and at different intervals since I have been short of colleagues for periods say of ten days and a week owing to natural causes —illness and accidents. With only one more Judge I would have no margin of safety to meet eventualities of that kind.

5149. Senator Hooper.—We had the suggestion from one witness that it would greatly facilitate parties going to Court if there was more than one motion day in the week. The Committee have been told that at present there is only one motion day in the week, and that it means considerable inconvenience, that very often parties have to wait from Friday to Friday. Do you agree that there is inconvenience at present?—I never heard of it until now. I never heard that there was any grievance of that sort. With the Courts as at present staffed it would be extremely awkward to arrange more than one motion day per week. In fact, I do not think we could do it except by sacrificing some other part of our work. If I had been aware that there was a grievance about this I would have tried to arrange more than one motion day per week. But, as I have said, I was unaware of it until now.

5150. The suggestion was made before the Committee by two representative witnesses, one called on behalf of the Solicitors profession and the other a member of the Bar. The member of the Bar was more emphatic on the matter than the solicitor?—I am not in a position to contradict it, but I have never had my attention directed to it.

5151. On the question of appeals, the evidence we had before us rather indicated that, under the present system, appeals were heard at the rate of something under three per day. Witnesses who appeared before us told us that under the old system appeals were disposed of far more rapidly than that?—I think it is most fallacious to make any comparison between the present and the old system of appeals. Appeals under the old system were, as the members of the Committee know, limited to cases in which the County Court had a jurisdiction, on the common law side, in claims up to £50. Now we are engaged in hearing appeals in cases from a Court which has a jurisdiction up to £300. The cases that we deal with on the present appeals are far more serious in nature than were the cases that were dealt with from the old County Court. That is my first point. My second comment is this. Although I did not go circuit during all the time that I was a junior I went circuit for a considerable portion of the time. I went the Munster circuit to Cork and Kerry. As a senior, I went to Clare, Limerick, Cork and Kerry. My view of the hearing of appeals that went on under the old system is certainly not such as would make me recommend that system for the hearing of appeals, to any tribunal, at present. If I may say so, there is a certain amount of halo cast about the old system of appeals. My own experience was nearly always a sense of dissatisfaction with the hearing of appeals on circuit. I think there was a tendency in all towns, except the last town of the Circuit, where the Judge had unlimited time, to rush through cases, and cases were rushed through in all the towns except the last town of the circuit. I am also of opinion—perhaps this is a different branch of the case that you have put to me—that the work on circuit was not adequately prepared or adequately done by Counsel.

5152. So that the greater speed with which we have been told appeals were disposed of before was due, in part, to the lower jurisdiction as compared with the present Circuit Court jurisdiction, and also to some extent to the fact that, owing to circumstances, things were hurried?—That is my view.

5153. You think that if the old system of a re-hearing were re-introduced the appeals would take at least as long as they do under the present system?—I think so.

5154. Deputy Little.—There are Judges who are sometimes taken from their ordinary judicial work for Commissions. Do you think that it is a satisfactory system?—Well, I do not know that it is open to any objection except to the objection that you are taking a Judge away, and therefore letting the legal business to that extent fall into arrear. I could not very well express an opinion on it except merely from my own point of view as a Judge. The objection to it is that you shorten the staff of available Judges for their work. It may be open to some objection on public grounds, but I am not aware of it. I do not think it often happens in the case of High Court Judges that they are called away in that way.

5155. You had considerable experience of the old County Court Judges?—I had some, but not as much as some of my colleagues.

5156. I suppose you found that they varied a good deal and got into a groove from the fact that they were away from the centre of law. That, of course, was due to the type of cases they had to deal with. In order to avoid defects of that kind arising under the present system, would you advocate provision being made for the moving about of Circuit Court Judges, not in the sense of being removables but rather that they would themselves be able to arrange for a change from time to time?—I never heard any objection to any of the old County Court Judges on any really serious ground. I heard it suggested that if a County Court Judge lived in his county it was hard for him to avoid associating with certain people and certain classes in the county, while not associating with others, and that possibly an unlettered litigant might think that the Judge would be favourable to persons of the class he associated with who came before him. Personally I never had any reason to think that a suggestion of that kind was well founded. I have heard it said: “the County Court Judge lives in this county; he meets ‘A’ and ‘B.’ He is on visiting terms with them. When that case went before him what else could you expect ...” I have heard comments of that kind, but I never had any reason to think they were well founded.

5157. Would you consider it advisable if the Circuit Court Judges could be moved about?—It might be desirable that there should be some power to shift, if necessary, but I see no reason for thinking that a Judge ought to be changed for fear of something of that sort happening. Suppose something did arise in the case of a Judge in a particular district or county, it might be better for the administration if he were somewhere else, and perhaps power might be reserved to the Executive Council to do that.

5158. What do you think of the present method of appeal as compared with the suggested method of re-hearing?

Chairman.—I must confine the Deputy to the High Court for the moment.

5159. Senator Brown.—It was suggested to us by a witness yesterday that it would be advisable to have the judgments of the High Court taken down— to have a stenographer. I think the recommendation might apply also to the High Court where a law point is involved —that the judgment ought to be taken down by stenographers and practically recorded. He says there are decisions now given which are not reported and which often would be very valuable. Would that be an advisable or a feasible thing? It is done in America, I believe?—I do not think that it is a matter of any great moment. If a case is of any considerable importance, as a rule judgment is reserved and a written judgment given. If a judgment is given offhand, as a rule there is a representative of the Council of Law Reporting there who takes it down and submits his draft to the Judge.

5160. Chairman.—The objection to that was that the report became the copyright of the Council?—That had not occurred to me. I do not think that there is any necessity for a stenographer’s note of every judgment given.

5161. Senator Brown.—From the point of view of the ordinary public?—I do not think there is any substance in that.

5162. The Committee is very anxious to get some evidence on the administrative department of the High Court. You are not prepared to deal with that?—No. If I had been aware that the Committee required me to answer on it, I would have gone into the matter before I appeared but I leave those matters in the hands of the Master, subject to any report he makes to me. He will, I understand, appear before you.

5163. It is doubtful at present whether the Master can discharge some of the functions cast upon him. There is a constitutional objection?—I am aware of that.

5164. Even if it were necessary to legislate and to go as far as to make it possible under the Constitution that he should have semi-judicial functions, could you give us any opinion as to whether that would be a desirable thing—as to whether he should hear motions for final judgment or small motions really judicial in their nature?—Assuming that the Constitution speaks of “judicial power,” it means power discharged by a Judge, in the juristic sense of the term. I think it is very difficult to have anyone in a sort of semi-judicial capacity. I think you must have a person a Judge or not a Judge.

5165. Senator Hooper.—Has he any judicial power at present under the Constitution?—I think not. The trouble is that the Constitution says that the judicial power of the Free State should be vested in the Judges appointed in a certain manner. He is not appointed as a Judge, and he is not entitled to discharge judicial powers. The whole trouble is what is meant by “judicial power” in the Constitution. That is at present sub judice.

5166. Every motion to remit must go into Court?—Yes.

5167. Deputy Little.—Is the net issue purely a matter of defining what is “judicial power”?—That is the chief trouble, in deciding exactly what the Master can do. He cannot do anything which is an exercise of what the Constitution describes as “judicial power.”

5168. Senator Brown.—You have got to construe the Constitution?—Yes, to define what the limit of the Master’s power is.

5169. Senator Hooper.—That question has not been settled?—It is at present sub judice in the Supreme Court.

5170. Deputy Little.—Do you think it is sufficient simply to define what is “judicial powers”? It may be that we might not have to change the Constitution but merely by way of a further definition to provide a means?

Chairman.—I do not think the Deputy ought to go into this question at all.

Deputy Little.—I am not questioning what is the law or what is not the law.

Chairman.—Does the Deputy think it is desirable to go into the question in any way whatsoever? We do not know how wide a question it may become when it comes to be decided, and I suggest to the Deputy that we can gain nothing from discussing it here now.

5171. Now we have finished with the High Court. With regard to the working of the Circuit Court let us take, first, the present mode of appeal. Do you consider that the present mode is satisfactory?—I consider that the present system of hearing an appeal is more satisfactory than the old system.

5172. Have you any information as to how the costs of the present system of appeal compare with the old system?—I have not any information on that point but I think that there is a risk in making the comparison. Under the old system, you were dealing with cases in which the limit of the claim was £50. It may very well be that an appeal in a case brought in the old County Court claiming less than £50 might be more cheaply heard by the system that existed in those times. But that is only one end of the scale. The costs of the present Circuit Court appeal apply not only to cases of £50 but to cases in which £300 are involved, and to make any adequate or fair deduction you would have to compare that with the costs of bringing an action of £300 formerly and the costs of appealing. I do not think I ever saw that sufficiently stressed. I think it is entire fallacious to make the comparison. You have to compare it and the appeal with actions claiming from £50 to £300 in the old days. Witnesses were brought up to Dublin. There was a new trial motion to the King’s Bench and a new notice of motion in the Court of Appeal. I think if you had all the information about the cost of this you would see that the costs are just as reasonable now as they ever were.

5173. It has been suggested to the Committee by many witnesses, and I think we got evidence from the Taxing Master, that the present system of appeal was at least twice as costly as the old system. I do not know whether in giving that evidence all the facts you have advanced were taken into consideration but that is the evidence we have got?—It is quite impossible that they could have been taken into consideration. I think you will find that he was comparing the costs of an appeal on the old civil bill with the cost of an appeal in a similar case now, and was not taking into account that if you have increased the cost slightly at one end of the scale you will have enormously reduced it at the other end, namely in actions ranging from £100 to £300.

5174. I understand that the costs were, in any case, based on a different principle. I think in the old days there was a scale of costs?—There was a fixed scale. At present we are in a very unsatisfactory position because no Circuit Court Rules have ever been brought into force and therefore with regard to the cost of appeal from the Circuit Court it is hard to know what the principle is. I think the Taxing Master works on a certain compromise. He does not give the High Court scale but tries to do what is fair between the two.

5175. It is on the length of the notes to a considerable extent?—It must.

5176. Another reason put forward for the abolition of the present system was the very long delay. We have evidence of cases which took 18 months and even two years before they were disposed of. It was suggested to us that that was very unsatisfactory and that it could not possibly occur if appeals were decided by way of a re-hearing?—Of course I dispute that. If I could have had sufficient Judges to keep pace with Circuit Court appeals as they came in at the start, I do not believe that there would be any grievance about the system. I think that that was what started the delay, but I could not deal with them. I made that representation at the time the Commissioners were appointed to deal with Circuit Court appeals. I had an interview with the Attorney-General on the matter and he told me that that was the intention of the Government in appointing them, to wipe out arrears. My answer was, “You may wipe out the arrears, and let the Executive Council try it by all means, but the arrears will continue to accumulate as the High Court staff cannot keep pace with the work.”

5177. You are satisfied that if you had a sufficient number of High Court Judges the complaint against the present system, so far as delay is concerned, would be removed?—I absolutely believe that.

5178. A further objection to the present system was advanced, namely, that although under the Act of 1924 there is supposed to be an appeal on fact as well as on law, there is no effective appeal on fact under the present system?—I quite agree. As regards an appeal on fact, if there is going to be a re-hearing the Judge will have all the witnesses before him, and it will be a re-trial of the action, but if you have an appeal on fact simply on the stenographer’s notes, the appeal undoubtedly will be of quite a different character. In an appeal on fact, where you are dealing with the transcript of evidence, the Judges of the Appeal Court must take into account the fact that the Judge who originally heard the case had an opportunity of seeing and hearing the witnesses and that he is the best judge of their credibility. In the case of an appeal on fact on the stenographer’s note, if there is no evidence to support the findings of the Court below, that decision ought not to stand. Even where there is evidence to support the findings, if you are satisfied that on the facts as stated a wrong inference has been drawn by the Judge originally, the Appellate Court ought to draw their own inference. If an action is tried before me without a jury, and if the litigant against whom I decide is dissatisfied, he can appeal from my decision to the Supreme Court, but it will never be suggested that he should have an oral re-hearing of all his witnesses. He will have to take the transcript of evidence, go into the Supreme Court, and will have to show either that there is no evidence to support the decision or that I have gone wrong in law or in fact.

5179. It has been suggested that there is a great difference in appealing from the Circuit Court to the High Court and in appealing from the High Court to the Supreme Court. First the suggestion was that a case in the first instance in the High Court is prepared much more carefully. There are pleadings, discovery of documents, direction of proofs, and you have more eminent counsel so that the case is more carefully prepared than it could possibly be in the Circuit Court at present. The suggestion was that all the facts and relevant issues, and only the relevant issues, are put before the High Court, and that it is not on the stenographer’s note, but on the Judge’s note, that the case is eventually decided if it comes into the Supreme Court, whereas in the Circuit Court you have very few of these factors present, that the case is appealed on the stenographer’s note, and that there is no effective appeal at all on fact. It was suggested by at least one witness that it is very hard to have a good appeal on law without some reference to fact?— From what you say, I think I know what was in the mind of the witness who suggested that. That is so to a great extent, but I do not think that it is the fault of the system. I think that with proper Circuit Court Rules, providing proper remuneration for solicitors and counsel, there is no reason, so far as the facts are concerned, why they should not be adequately presented to the Circuit Court. I think that a large number of people got into the habit of regarding the hearing before the old County Court as a sort of preliminary canter. They brought their witnesses without adequate preparation, and, if their evidence was not sufficient to win their case, they appealed. In the meantime they prepared their case more carefully and presented their facts more fully to the Appeal Judge than they did in the first instance. I see no reason why anybody should get more than one chance of putting his case before the Court. The old system led to gross abuses in many cases. Practically every member of the Bar had experience of cases being heel-tapped before the appellate tribunal. If a Judge dismissed a case because a man did not prove so and so, that gap was filled up on appeal. There may be some reason for not having comparatively small cases up to £50 properly prepared, but why in the case of a serious action up to £300 a man cannot put his case properly before the Circuit Court Judge, I fail to see. I am entirely against giving him an opportunity of presenting his facts orally a second time. The old system was departed from on the recommendations of the Judiciary Committee, and I would be sorry if it were revived.

5180. When there is an appeal from the High Court to the Supreme Court it is on the Judge’s notes that it is decided?—Yes. I rather thought that the stenographer’s note was thought to be an advantage to the litigant compared with the Judge’s note. I do not think that it is any handicap to an appellant from the Circuit Court that there is a stenographer’s note, as it is, if anything, fuller and more complete than the Judge’s note.

5181. Are you of opinion that there should be an effective appeal on fact from the Circuit Court to the High Court?— No.

5182. Senator Brown.—As distinct from inference?—No. I do not think that there should be an effective appeal on fact.

5183. Chairman.—You are aware that the stenographer may have to sit in the Circuit Court for a long number of hours taking a verbatim note of all the evidence?—Yes.

5184. And that he must take that note in every case, if I may say so, in every trifling case which comes before the Court?—Yes.

5185. I do not know whether you are aware that in most cases they are not official stenographers?—I think it was originally contemplated that they should be.

5186. We understand that that is so; they are usually local men. They may be very good men or they may not be. I want to put this to you. I do not know whether you have any experience in regard to the matter but I would like to know whether you think it is physically possible for even a competent shorthand reporter to sit in Court all day in a country town, with the usual hurly-burly which is often associated with a country Court, to take an accurate verbatim report of what transpires in that Court?—I should imagine that it would be very difficult to take an absolutely full and complete note.

5187. Which he is supposed to take?— It would be very difficult for one man to do that.

5188. Of course the transcript must be certified by the Judge?—The Judge only certifies that the report is the report of the stenographer.

5189. Are you of opinion, when a case comes to appeal before the High Court and when the whole case must be decided on the transcript of notes, that it may happen that in fact it is the notetaker who is the Judge?—I think I know the objection that is pressing on your mind. I rather think that in that case, if there is anything vital to the decision of the case which through accident does not appear in the transcript, counsel or solicitor will make representations to the Appellate Court to have it rectified by allowing additional evidence, either oral or on affidavit.

5190. That is under Section 11 of the 1928 Act?*—Yes. We have had cases in which it was represented to us that there was some miscarriage in regard to a particular part of the evidence. If the parties do not agree that such evidence was given and was omitted from the transcript, further evidence is allowed. That does not often arise. The same objection might be urged in regard to the Judge’s note on appeal. I sit sometimes in Court from 11 o’clock until 4.30 trying to take down everything that the witnesses say, but it may happen that something is said which I omit to put down. I hope that rarely happens, but the parties have my notes at their disposal and if they go to the Supreme Court and say “there is an omission here” the Supreme Court will communicate with me and ask me if I agree that there was an accidental omission, and if so I put it right.

5191. The reason I am putting these points to you is that we had evidence of a case where the answer which had been given in the Court below was “no” and it came out in the stenographer’s notes on appeal, as “yes,” or it may have been the other way about. In any case, that was the effect, and we were informed that the case was decided in a way other than it would have been decided if there had been a correct note?—I quite appreciate that it might be a very vital thing to have it actually correct but I think there is an element of error in all human transactions. If you will pardon me giving you another illustration: I tried a case two days ago, a type of case with which I am very familiar, a collision between two motor cars at a cross-roads. I took a note of the evidence as well as I could and I thought that one of the witnesses said that she knew she was crossing a side road. After concluding my charge to the jury, counsel called my attention to this statement and said that the witness did not know she was crossing a side road. I had it distinctly on my notes that she said that she did. We all may make a slip now and again, but I still believe I was right. Apart from that, there is, as you stated, the point that the stenographers may have too long hours.

5192. Without wishing for a moment to cast any reflection upon the present stenographers, so long as the stenographers are not official stenographers, and particularly when they are local men reporting local cases, is there not always a danger? And is not the system, so long as you have temporary local stenographers, always open to abuse by the stenographer? I do not say it does happen but it might happen that the stenographer might not do his work honestly as a stenographer? —There is just that danger as long as they are not official stenographers.

5193. Senator Brown.—You have told us that the original intention was that they should be whole-time officials, officers of the court?—Yes.

5194. On the question of appeal you told us quite definitely that in your opinion it is advisable to have an appeal on the issue of facts as distinct from an appeal on inferences from facts?—I would not have an appeal on fact.

5195. What is called an appeal on fact, in the section of the 1924 Act?—I think the appeal on fact is limited in practice in the way I have suggested. I do not know whether I might say that I think it would possibly be more satisfactory if the appeal had been given from the Circuit Court in the same class of case as that in which you may appeal now in cases heard by a Judge with a jury, namely, where there was no evidence to support the findings of the Circuit Court or the Circuit Court Judge had mis-directed himself.

5196. It looks on reading the section of the Act of 1924 as if it was intended that there should be an effective appeal on fact as distinct from a motion for a new trial which is not an appeal?—I think that they may have intended that you should have the same appeal on fact as you have from a Chancery Judge or a Judge trying a case without a jury, but you should not have liberty to alter your facts and come up with a new set of facts. I am entirely against that.

5197. But you have not got power to have the correct facts ascertained if they have been incorrectly ascertained in the Court below?—I do not entirely agree.

5198. I do not know whether you have a very wide personal knowledge of the people in the country?—I went as junior counsel to Kerry and Cork and, as senior. I went to Limerick and Clare also, but I did not know Limerick and Clare in the way I knew Kerry and Cork.

5199. On the question as to whether it is a better Court of Appeal, are you of opinion that the present form of appeal satisfied the ordinary litigant in the country, because we have had a great deal of evidence on that?—May I say that up to the establishment of the Free State people had grown accustomed to this preliminary hearing before the County Court Judge, and then, if they did not like the decision, of having another shot at it before the Judge of Appeal. I do say that is no test as to which is the better system.

5200. It has been suggested by one witness that they should be educated up to the present form?—I would not like to put it that way, but I do think that if the present system were adhered to the people would accept it and be quite satisfied with it in the course of time. It is a fact that litigants were accustomed to go up before two Judges in succession. You brought your case before one Judge, produced your ten or twelve witnesses, and, if you did not like his decision, you produced them at a later stage before another Judge. That was entirely absurd.

5201. Deputy Ruttledge.—In regard to the costs of these actions, you are drawing a distinction between a £300 action as compared with the small County Court jurisdiction in the old days. Take the ordinary title action. In a case of that sort, if the costs under the present system come to over £100 on appeal, that would not seem reasonable?—What I was pointing out was simply that, as comparisons were being made and as we were told that the present system was much more costly, I rather thought that people who were stating that and giving us the costs of trials of actions between £1 and £50, and the costs of appeals between £1 and £50—when you are now dealing with the costs of an action between £1 and £300—should go to the other end of the scale also. When they state that in the old days a £50 action could be disposed of for £5, they should, in all fairness to the system, go to the other end of the scale and tell us what it would cost in the old days to dispose of a £300 or £200 action and of the appeal in that action.

5202. There is another question. We have experienced cases where there has been fraud or false evidence, and the parties get away with that in the Court of first instance. Does it not seem unfair that there should not be an opportunity for the other side to rebut that dishonest evidence on appeal, particularly where it could not have been foreseen by the unsuccessful party in the first instance? —I cannot say that I ever had experience of it. I can imagine that such a case might arise, but it might arise in the High Court too.

5203. But you are making the Judge in the first instance final on questions of fact?—I put him in the same position as a jury. As long as there was evidence on which he could reasonably find as he did, I would not reverse it.

5204. On that basis, the present Circuit Court business hardly provides sufficient work for the regular attendance of senior counsel at Circuit Court centres. Take a civil action which may not involve a very large amount but still may be important for poor people. Are you aware that to bring down senior counsel on a case of that kind is very expensive?—I am not aware what the scale of fees is.

5205. Where there is a limited number of these cases, the cost incurred by bringing down senior counsel places a bigger burden upon poor people than in the old days when there was a re-hearing at Assizes and when senior counsel would be on circuit there?—I quite appreciate that objection to the system.

5206. What I mean to convey is that in these isolated cases, there is a limited number of them, it is only where litigants want to have the best advice and assistance that they have to bring down senior counsel. It entails considerable expense although the amount involved may appear rather small?—If it is necessary to have senior counsel in order to have the case adequately presented in the Circuit Court, and senior counsel charges a fee such as you suggested it does seem a hardship, but personally my own view would be that the vast majority of Circuit Court cases, in fact, I may say all of the Circuit Court cases, could be adequately presented by members of the Junior Bar and to employ senior counsel in these cases seems to me to be in the nature of a luxury.

5207. It has also been suggested that counsel who are engaged in these cases are more or less handicapped because they have not a library to resort to?—I have considered that and I do think it is also a matter of detail. I think it should not be beyond the power of the Bar on the various circuits to have something in the nature of a small portable library as we had in the old days at Assizes, which was brought from town to town and was available for members of the Bar everywhere. I do not mean a large library but such a library as carried us through our work at Assizes in the old days. I think that is only a matter of detail that could be arranged, and would be arranged if this system was, what you call, solidified and they knew they had to work it, just as I think solicitors and counsel and everybody else would approach this system differently if they realised that it was a permanent system and that once and for all they must go before the Judge and make their case. If he went wrong in law they could put him right, but they would not have two Judges.

5208. At present there is an appeal on fact. Would it not be an advantage if the Appeal Court had the witnesses and the parties before it?—I think you have always to consider what it is reasonable to do. I suppose that the really perfect thing would be that the witnesses should be examined in one Court and then that they should go up to the Court of Appeal and give their evidence there. Then, to take an illustration from across the water, if there was an appeal to the House of Lords, all the witnesses should go to the House of Lords. My objection to it is that I do not think it is reasonable. You have to have some Court that will be final on fact, whether it be a jury case tried before me, or a Circuit Court case tried before the Circuit Court Judge. I see no reason for allowing a re-hearing on a question of fact.

5209. If there were to be a re-hearing, would you say that it should be before one Judge or two?—If you have a re-hearing before two Judges, what will happen if they differ? That is my trouble. From the point of view of getting absolute certainty in right or wrong, I suppose the more minds you have to bear on it the better. I suppose two Judges would be better than one, and three better than two, but I see a difficulty about what will happen with two, in case they differ. I also see a difficulty about the expense of two Judges. Personally, I would prefer to sit with a colleague on the hearing of an appeal, if there was to be a full re-hearing.

5210. If there is a difference of opinion between two Judges in an appeal case, the appeal fails?—Yes, the previous decision stands.

5211. Senator Wilson.—As to the hypothetical case put up, that if wrong evidence is given in defence of an action in the Circuit Court the plaintiff cannot have an opportunity of meeting that fraudulent case, is it not a fact that on appeal to the High Court under the Act of 1928 you can bring up a witness and have him examined?—Not only bring up a witness, but you can bring up all the witnesses. If a case is made to us on affidavit, or even on the statement of counsel, that would lead us to believe there was anything in the nature of fraud, I think I can answer for every one of my colleagues when I say that the case would be heard de novo or sent back to the Circuit Court to be re-heard.

5212. It would be the duty of counsel and of solicitors to see that you got that information?—I imagine so—I would hope so. We have sent cases back, where there was reason for it, to the Circuit Court Judge and had them re-heard. I do not say that happens very often, but it has been done.

5213. Deputy Little.—Do you think that some of the difficulty with reference to the present system of appeal would be removed if there was a proper system of pleading in the Circuit Court?—There may be some difficulty occasioned by the absence of Rules in the Circuit Court, and I think that touches on the question of pleadings. I think the Rules might provide for something in the nature of short pleadings—not detailed pleadings like in the High Court—something that would give the opposite party notice of the principal matters to be raised.

5214. We had evidence here that the drafting of pleadings is really a matter of great skill, which would not be at the disposal of the Circuit Court?—I do not think there would be any difficulty in drafting the pleadings in the Circuit Court. In an important case, I take it, they would have to be drafted by counsel. He would not have to draft them on the spur of the moment. He would have certain notice and time, just as he has in High Court pleadings. Without considering it in detail, I would not imagine that there would be much difficulty in it.

5215. Senator Comyn.—Pleadings are not part of the solicitor’s trade?—As a rule, pleadings are not.

5216. I suppose of the cases that come before a Circuit Court Judge not one in fifteen would be appealed; in the County Court formerly only one in ten or fifteen would be appealed?—I could not form an opinion as to that. I could not give an idea as to the proportion of cases heard before the old County Court that were appealed, or before the Circuit Court that are appealed. I am sure the Committee could have information on all these points.

5217. Do you think that it would probably be a waste of energy, skill and expense having pleadings in fifteen cases merely because there might be an appeal in one?—There might be. I do not think the pleadings in the Circuit Court need necessarily be very elaborate.

5218. As regards the appeal on fact, is there not a chance that a Circuit Court Judge who is hearing a great number of cases will be likely to go wrong in some cases on fact?—I think there is no more risk of a Circuit Court Judge going wrong on a question of fact than there is of a High Court Judge or of a jury going wrong.

5219. I mean by reason of the fact that he has so many cases?—We are all human, and make mistakes. We only hope they are not all found out.

5220. Has any case come before the Courts in which it was suggested that the stenographer had deliberately misrepresented the evidence?—Absolutely none, to my knowledge—I never heard of it. It was a possibility that was put to me, but I have never heard of such a suggestion, that the note has been consciously wrong or inaccurate. I heard the suggestion in a very few cases that some item was omitted or that there was some mistake by the stenographer. I do not suppose I have heard that in five per cent. of the cases that I heard.

5221. Senator Brown.—I think it was put as a possibility where the stenographer was a casual and that therefore he ought to be permanent?—It was limited to a possibility, and as such I answered it.

5222. Senator Comyn.—The County Court Judges were called Assistant Barristers in the old days. Were they not always barristers of at least ten years’ standing?—I would prefer that you would not cross-examine me on these legal qualifications. I assume it was ten years, if you say so. I think the system of oral re-hearing arose from the fact that the person who first heard the case was not a Judge at all but an Assistant Barrister. The idea was that you had not had your case heard by a full-blown Judge yet.

5223. The Chief Justice said that?—If you tell me the Chief Justice said that, I at once accept it. I formed my own view to that effect before I heard the suggestion came from the Chief Justice. I was trying to think of how this principle had grown up in this country and, rightly or wrongly, I thought that might be it. I was trying to reason out how it was that a case heard already was allowed to be heard over again. If the Chief Justice came to the same view, that strengthens me.

5224. I want to know whether you recollect the qualification of the Assistant Barristers?—If you say that is it, I accept it.

5225. We heard a lot about perjury, and of course you have great experience?—I will not say that I have great experience of perjury.

5226. You have had great experience of cases in Kerry and Cork and other places; do you think there is so much deliberate perjury as has been stated?— My experience as a Judge, of course, is confined to cases in Dublin. I do not think I have heard two civil cases in the year in which I thought some party was deliberately perjuring himself—in which I was satisfied that one party or another must be deliberately telling an untruth. I have had such experience of people giving most contradictory accounts of occurrences, all given honestly and yet irreconcilable, that I always think in the vast majority of cases what is called perjury is inaccurate notice and recollection.

5227. Senator Brown.—It is not only inaccurate recollection but inaccurate observation?—Yes.

5228. It is a question of the eye really?—Yes.

5229. Senator Dowdall.—You favour the present form of appeal?—I do.

5230. As against the old re-hearing?— Yes.

5231. We have had evidence here which is to the effect that the present form of appeal is very much more costly than the old form. I have a paper* before me which gives details of the costs of appeals from the Circuit Court, compiled from the twenty most recent bills taxed. I will give you shortly what appears on the list. In the first case, the total cost was £19 3s. 5d.; judgment was given for £21. In the second case, the total cost was £41 13s. 0d. That case was sent back for re-trial. In the third case, the total cost was £19 7s. 6d. There was no appearance there, and it was struck out. In the fourth case, the total cost was £17 5s. 7d. The decree was increased from £5 5s. 0d. to £15. In the fifth case, the total cost was £19 19s. 7d., and judgment was given for £5. In the sixth case, the total cost was £21 17s. 8d. The case was dismissed against one plaintiff, the decision was reversed, and judgment given for £5. The seventh case is a workman’s compensation case. I put it to you that that is very much more costly on the litigants than the old form of appeal?— Rightly or wrongly, I have endeavoured to point out what I think is the fallacy in that.

Senator Brown.—Senator Dowdall was not here at that particular moment.

Witness.—You are comparing the present system, under which there can be an appeal in cases involving from £1 up to £300, with the old system in which the limit of jurisdiction was £50. If you take similar actions the cost of appeal under the present system is cheaper. I think that is one of the things the Committee must consider. I want somebody to give this Committee figures showing what an action for £300 would have cost to bring to appeal in the old days and what the cost of bringing it to appeal would be now. I also want you to get the cost of an original hearing of an action for £300 in the old days, and what it is now with the Circuit Judges at the people’s doors. Judge the system as a whole. Do not consider the small cases to the exclusion of others.

5232. Senator Dowdall.—I would point out that in no case I mentioned did the decree reach the figure of £25?—Yes, you are taking the small cases at one end of the scale.

5233. These are the costs of appeal in the Circuit Court compiled from twenty of the most recent bills taxed?—I agree. I do not want to make myself an advocate at all in this matter. I can only give my views and the Committee will decide what is right. Before that would impress me, I would want evidence of what an action for £300 cost in the old days, and what it came to ultimately on appeal, compared to what it comes to now on appeal. I think the costs of appeal would be infinitely less now than in the old days.

5234. These are High Court actions?— They may be. I understood it was a comparison to show that the present system as a system was wrong because it was so much more costly than the old system. It may be more costly in certain classes of litigation, but it is less costly in others.

5235. We had some figures,* and they are rather interesting in view of the figures I gave you, which were taken from the Circuit Court. We had a record of all the cases entered during 1928 and 1929. I find that of the total number for the two years 1,672 cases were below £100. That gives 836 cases for each year. Above £100 the number was 280—that is 140 for each year, in the Cork Circuit. Looking at the figures as to costs, and the amounts awarded, it certainly seems to me that it is a costly system of appeal. I think the costs are more than in the old Assize Courts?—I can only put the views I hold on that. I am not trying to avoid any question, but I do not think I can put it any further.

5236. Senator Comyn.—It would be cheaper in the big cases but more expensive in the small ones?—Cheaper at one end of the scale and dearer at the other. I understood the Senator to give us the cases above £100.

5237. Senator Dowdall.—The figure above £100 was almost one-sixth?—Remember you are comparing costs in cases in which the limit was £50 in the old days. You could not recover more than £50 in the old County Court.

5238. I agree that the costs in £100 case in the old days were very much in excess of what they are now, but I doubt if the cost of appeal was?—In the old days, you served a new trial motion and it came before the Court of King’s Bench where it was argued, and after you got judgment you served a new notice of motion in the Court of Appeal and it was argued there. You had two prolonged trials before you got the final decision. You have not got that now.

5239. You might have it by permission in the High Court?—I do not know the number, but I suppose 5 per cent. would be the percentage of cases in which permission was given to appeal.

5240. In your experience, when you went as a junior on circuit in Cork and Kerry, did you find the people and the litigants intelligent?—In Cork and Kerry.

5241. In Cork and Kerry?—I should rather think so.

5242. And they could understand the nature of the appeal?—Absolutely.

5243. Of course, they could learn a little from you at times?—I shall say nothing about the intelligence of Cork and Kerry!

5244. Having regard to that, I think you said that those accustomed to it still favour the old system?—I am sure that people who were accustomed to having two shots are very sorry that they can only have one shot now.

5245. And in view of the fact that they favour it, and that the costs of appeal now are heavy, I think there is something to be said for it?—Nobody realises more than I do that there is a considerable lot to be said for it. I am only giving you the conclusions that I have formed on the matter. I am sure there is plenty to be said for the other system.

5246. Senator Hooper.—As regards this table from which Senator Dowdall has read out some figures, including the amounts of the decrees, of course the size of a claim could not be measured by the amount of the decree?—No. That is a matter that I intended to mention to Senator Dowdall. There are some very important cases in which only a small sum is given.

5247. And these cases may involve claims for considerable amounts?—They may.

Chairman.—There is one matter which I would like to mention to you before you leave the question of appeals. It is only right to mention that we have had a certain amount of evidence in favour of the present system of appeal, and we have had a great volume of evidence from what might be called representative bodies against the present system. I think I ought to mention that some of the principal bodies that came here are absolutely against the present system. We had evidence given against it on behalf of the Senior Bar, the Junior Bar, the Dublin Chamber of Commerce, the Associated Chambers of Commerce, which represents most of the towns and cities outside Dublin; the General Council of County Councils, the Incorporated Law Society, the County Bar Association, the Southern Bar Association.

Senator Dowdall.—And the Cork Chamber of Commerce, especially.

5248. Chairman.—They are included in the Associated Chamber of Commerce in the counties. I am mentioning this in order to show you that the Committee have endeavoured to get, as far as they could, the views of the people through representative bodies, which I think you will admit is the only way to get them. We have endeavoured to get the views of the people of the country on the working of the present system, both as regards appeal, jurisdiction, and so on. Of course, we have had a number of learned Judges like yourself who have been very strongly in favour of the present system?

Witness.—The only comment I can make is that I think the main thing which started the unrest with the present system was the delay. I think, as regards the associated bodies, if you had the system working smoothly, with no undue delay in appeals, there would never have been a question raised. I may be wrong, but I attribute a great deal of the dissatisfaction with the appeal system generally to delay. I think as regards the evidence in favour of re-hearing that would never have developed if there had been no undue delay in hearing appeals.

5249. Chairman.—You are of opinion that if you had a sufficient number of High Court Judges, and proper rules for the Circuit Court, the system would work satisfactorily?—The system would work satisfactorily. I should mention that when I got the summons to attend I thought I might have a meeting with my colleagues. I summoned a meeting for Monday last, but only three of them were able to attend. Mr. Justice Meredith was not well, and I had only Mr. Justice Hanna, Mr. Justice Johnston and Mr. Justice O’Byrne with myself—four in all. We were all agreed that if the jurisdiction of the Circuit Court remained as at present there should not be an appeal by way of re-hearing. I think the Circuit Courts quite adequate to deal with their work and that they do that quite satisfactorily.

5250. Senator Farren.—And have given satisfaction?—As far as I know.

5251. Chairman.—We have had a good deal of evidence in regard to this question of jurisdiction, and at least one witness suggested that litigants were being deprived of their right—these are his exact words—to go to the High Court in cases within the Circuit Court jurisdiction. He said that when certain cases were brought to the High Court they were either remitted and sent down to the Circuit Court, or if they were heard in the High Court, then almost invariably the High Court Judge refused costs other than Circuit Court costs, and that in this way people were being deprived of their right to go to the High Court. Have you any observations to make on that?—I think the idea was, when the Courts of Justice Act, 1924, was passed, that the administration of justice should be decentralised and that cases should be heard generally in what is called the local venues, That principle has been acted upon, and actions, now within the Circuit Court jurisdiction, are practically invariably sent to the Circuit Court Judge. We believe that the particular Act was intended to establish that, and if that is called “depriving people of their right to the High Court” it is true. But if actions under the limit of the Circuit Court jurisdiction are to be retained in the High Court, you come round to the fact that we shall want more Judges. I was not taking that into account in estimating what Judges you would want. I was still taking the Circuit Court jurisdiction up to £300.

5252. Of course, the words I used were words used by a witness?—I follow.

5253. You think by the practice followed by the High Court you are not inflicting any hardship upon litigants?— No. I do not think we are inflicting any hardship upon litigants.

5254. There were reflections made upon that by more than one witness who thought that there should be, what is called, “concurrent jurisdiction,” that a person should have a right to take his case to the High Court, and if the Judge were satisfied it was a case which it was proper to bring in the High Court, that if the case were decided in the High Court the Judge should have no discretion with regard to costs?—The Rules were framed with the idea of carrying out what we believed to be at the back of the Act in sending cases down to local jurisdiction and, subject to correction, I think these Rules provided that the High Court costs should be given only on the certificate of the Judge, and that cases under £300 should go to the Circuit Court.

5255. Senator Brown.—You had to satisfy the Court that the case was more appropriate to be heard in the superior court?—In order to retain it there.

5256. And that is what is alleged as depriving a plaintiff of his constitutional right to go to the High Court?—I am not impressed by that view that we are depriving litigants of any right. If these actions were allowed to be retained in the High Court, there would have to be provision about adequate security for costs. One can well imagine a lot of poor litigants desiring to have their actions tried in the High Court. They will get some one to conduct them. The action may involve a couple of hundred pounds of costs and, in many cases, the defendant would pay something rather than fight the action.

5257. Senator Dowdall.—In case a plaintiff starts an action in the High Court, for an amount within the jurisdiction of the Circuit Court, and the Judge decides it is a proper case to be retained in the High Court, would the trial Judge have the option of allowing costs on the Circuit Court scale or on the High Court scale?—I think the trial Judge has the option.

5258. Do you suggest he should be allowed to retain it?—It is hard to answer that with a definite “yes” or “no.” The Judge in the High Court may decide, on the matter before him at some interlocutory stage that the action seems to be one that ought to be retained in the High Court, but later, when additional facts have been investigated, it is found not to be an action that should be retained and in these circumstances it is very hard to say whether there should be High Court costs or not. An application is made in the preliminary stage and it may be that at that stage the Judge thinks the action ought not to be sent down. Yet, with further investigation of the facts, it might be found from what was disclosed that it was an action that should be sent down.

5259. You are in favour of the Judge retaining the option?—Yes, I would leave it to the Judge at the trial. He has the opportunity of deciding all the facts after full investigation of the case.

5260. Senator Hooper.—If the case were of such a nature as to leave the Judge in the first instance free to conclude it was a case that might be properly tried in the High Court, would it be right to penalise the litigant who had formed the same opinion?—When you say “formed the same opinion,” you do not really know when the application started that you are getting what the opinion of the litigant is. You get the case put before the Court on an application to keep the case in the High Court. It may be a bona fide case or it may turn out to be an exaggeration when investigated and it may prove not to be bona fide and I think the trial Judge is the right person to deal with that.

5261. You could imagine a case where a litigant is advised that his case ought to go to the High Court and the High Court Judge who tries the remittal motion agrees with that. When he is fortified with the opinion of the Judge, it seems to me to be rather hard that the Judge who finally decides the case should penalise him as to costs?—Perhaps the answer in practice and, if I may say so, in good sense, to that objection would be that the trial Judge, taking all the circumstances into consideration, and although damages were given under the limit of the Circuit Court jurisdiction in a case retained in the High Court, would give High Court costs?

5262. Senator Brown.—Would there be sufficient protection for a plaintiff if the Judge who deprived him of High Court costs was only entitled to do that when he came to the conclusion that the action was not a reasonable one to have been brought in the High Court, having regard to the facts before him?— I think that would meet the case.

5263. That it was not a reasonable case to bring in the High Court?— Yes, and that he had before him the knowledge that a colleague retained it in the High Court. That would be of enormous weight.

5264. Cases go down in ordinary practice?—Cases go down now if under £300 unless there is reason to think that the High Court is the proper place to try it.

5265. You would be in favour of that change so far as it is a change?—I do not think that that would be very much of a change.

5266. Some of the witnesses suggested it would be a substantial change?—It may be, but I do not quite appreciate it.

5267. It would give the kind of protection that has been suggested as necessary to a plaintiff who is allowed to go on?—I have myself given High Court costs to litigants before me who recovered substantially less than £300, in several cases, because, although their claim did not reach the limit of the High Court it was properly brought there, and, working the matter as you suggest, I see no objection.

5268. Chairman.—We had evidence here that the practice had grown up, perhaps long before 1924, of solicitors, in Dublin particularly, initiating actions in the High Court for the recovery of very small sums under ten and twenty pounds, which were within the jurisdiction of the District Court, on behalf of cross-Channel trade associations or firms trading in this country. It was suggested to us, that that was an abuse of the process of the Court, and it was also suggested here that in actions for the recovery of small sums, £5, £6, £7, or £8, initiated in the High Court against small traders down the country, that although they had a defence they would think it cheaper to pay the money rather than fight the case or even move to have it remitted?— I quite see that.

5269. Have you any personal experience of cases of that kind coming into the High Courts?—I cannot recollect any. I have no doubt that there are cases in the High Courts for very small sums. I think the practice is needless, because the plaintiff would only get in costs what he probably would get if he proceeded in the Circuit Court but that does not meet your objection. It might frighten off the defendant but I am sceptical about frightening people off in that way. I think if a man believes he has a good defence he will fight to the last ditch.

5270. Deputy Ruttledge.—I think what the Chairman had in mind is where a a trader across the water issues a writ of summons in a debt for £7 where the costs would be considerably in excess. There is no defence put in; it does not pay them and would cost far more than the whole amount claimed?—I quite appreciate that. I do not think in the present practice they would get any more costs than if they proceeded in the District Court.

5271. But the people do not defend. A claim may be for £2 10s. or £3. They have a defence to the action as an action, but they cannot go to the expense of having it remitted or transferred, and they pay the amount instead?—If the amount is due, and if the trader here has to pay only the appropriate District Court costs, I would not think that there is any hardship. It may be that I do not quite appreciate what you are at.

5272. I mean that sometimes solicitors resort to the practice of getting people to pay costs when the actions do not come into court. Solicitors should not be entitled to bring an action by way of writ of summons when the sum is within the jurisdiction of the District Court?—That there ought to be an absolute prohibition?

5273. Yes?—Well, unless proceeding in the District Court would involve real delay that would prejudice the plaintiff in the case, I do not think that solicitors ought to proceed in the High Court, but whether it is possible to stop them by legislation I do not know. I quite agree that it would be a great hardship in the case you put.

5274. Chairman.—I was going to give you an example which we had here yesterday. Deputy Ruttledge was speaking of a case in which there was not a defence. In the case we had mentioned yesterday it was assumed that a country trader gets a writ for, say, £14 and he is prepared to admit that he owes £9 or £10 of that, but disputes the other £4 or £5, and that case is taken to the High Court. It was suggested that, apart from the question of principle, financially he would be better off if he paid the full amount rather than go to the extent of trying to defend it?—That might well be.

5275. Or even trying to get it remitted?—That might quite well arise. I cannot say that I can recall an experience of it, but it might happen.

5276. We have had evidence that that is so, and I take it that you would agree that it is very undesirable?—Very undesirable.

5277. Senator Dowdall.—An abuse of the Court?

5278. Chairman.—While we agree that it is desirable that traders and merchants should be able to recover as quickly as possible, we must see, in providing that facility, that other people are not victimised?—Yes.

5279. Senator Hooper.—Have you anything to suggest by which that abuse could be avoided?—Except that if an action is brought in the High Court which should have been brought in the District Court, the plaintiff should not be entitled to any costs whatsoever.

5280. Could that be done by Rules?—I am afraid you would have to legislate for that. I have not considered whether we could do it by Rules or not.

5281. Chairman.—Of course, under the Constitution everybody has the right to go to the High Court?

5282. Senator Comyn.—But would it not be possible to provide by way of Rules that if a man brought a £10 action in the High Court he should pay not only his own costs but the defendant’s costs if it was an abuse of the process of the Court? —I am not prepared to answer how far we could make a rule like that. I would not like to say that we have power to do it.

Senator Dowdall.—There are some of us who hope you will keep it in mind.

5283. Deputy Little.—There has been a considerable amount of evidence, Mr. President, purporting to show that the effect of the new jurisdiction has been to lower the standard of training for the Bar by the fact that the Junior Bar goes out and spends most of its time on circuit, out of touch with the Law Library, with the sources of authority, and with the example of the Senior Bar practising?— That is, I think, one of the difficulties that has to be faced in dealing with legislation in connection with the judicial system. If the paramount consideration is the interests of the Bar I could quite understand a different system being introduced than what would be introduced if the paramount consideration is the welfare of the country as a whole. I think that, to a certain extent, the Junior Bar, and the junior members of the Junior Bar, are having a better opportunity of getting practice in their profession under the present system than ever they had under the old system. I am convinced of that. I do think that it does lead to members of the Bar being away from the Library for a while, and that the Library, as the senior members and the heads of the profession are always there, is to a certain extent the school of the legal system in the country, but I do not think there is any real substance in that objection. I think, if I may say so without offence, that the real agitation to have all the substantial work focussed in Dublin is in the interests of the Senior Bar and of the senior members of the Junior Bar.

5284. Do you think that the present system will tell upon the training and the skill of junior barristers when they come to the stage of being made Judges? —I would not think so, for this reason: I think that after the junior barrister has learned his business in the Circuit Courts he will inevitably gravitate up to Dublin, where he will be confined more to the High Court, and I do not think that any man who practises in the Circuit Court is likely to be appointed from there to the Bench; I think he will have to put in his period in the High Court. I do not imagine that his training will be interfered with in any way.

5285. Do you think that the defects at present are due to the actual change, but that when the new practice settles down there may be a different view— that it may settle down all right?—I think if the practice is solidified that all these comparatively small matters, as I think they are, will adjust themselves.

5286. Senator Hooper.—Assuming for a moment that there is risk of some injury being done to the quality of the Bar by the new system, could that not be met in any way by improvements in the system of legal education?—Quite possibly it could. As a matter of fact, the system of legal education is being altered, and the Benchers have recently introduced a system by which the course of legal education will be longer than it was, and, we hope, more complete and satisfactory. I do not say that the quality of the Bar will be interfered with, even if the present system is continued and worked as such.

5287. We have been told that the education of the barrister really begins when he is called, and I was wondering whether it would be possible to have the extended period of preparation that is now provided to include any practical training, as is done in the case of solicitors?—I can only say that it might be As I do not appreciate the gravity of the objection very much, I cannot say very well what will answer it.

5288. Senator Comyn.—The way it was put, Mr. President, was this: Barristers have heavy expenses when attending Circuit Courts, and though they may earn a few guineas in fees, that the total amount that they earn in many cases goes to the hotel proprietors—that the expenses are so great that the actual profits of the barrister in the Circuit Court are very small on account of the cost of stopping in hotels, and other things like that. Do you think that it would be possible for a number of barristers to remain on circuit, having regard to those expenses?—Do I think it possible that there can be a Circuit Bar, having regard to the expenses?

5289. Hotel and other expenses?—If it is not possible to have a Circuit Bar, then the objection that was first pointed out does not exist, because I understood that the objection was based on the fact that barristers were so long away that they were kept away from the Library and the training there. If it is not possible for them to stay out on the circuits long enough to deprive them of the advantages of the Library I do not see that there is any difficulty at all.

5290. But they may be away and not on the Circuits; they may be at home, where it is cheaper to live?—A barrister beginning at any time in my recollection had always to face for the first years of his profession the fact that he would have to go to sessions in the country. He always did manage to pull out, either in hotels or in lodgings, and he followed the sessions round from town to town. We all did it in the past, and although we were not very wealthy we made ends meet.

5291. But do not even the successful men find it hard enough to make it pay? —You are not very affluent during your first couple of years at the Bar.

Senator Comyn.—It is well to let all our friends know that.

Witness.—The Committee has the advantage of having on it one gentleman who is under no delusions in any shape or form with regard to Bar life—Senator Brown.

5292. Senator Brown.—I think what is really at the bottom of this, that the pecuniary interests of the very Junior Bar are now against their interests as far as quality is concerned. They go down to towns and in many of them they stay too long. I mean that in places like Galway or Mayo there is no practical Bar, and they stay there at a time when they really ought to be in Dublin. If they could start a little later by some means, as Senator Hooper has suggested, you would not have that?—That may be. I always thought that the junior members of the Junior Bar have chances under the present system that they never had before.

5293. Pecuniary chances?—That they could get away to a region where their more fortunate colleagues could not follow them.

The Witness was thanked by the Chairman and withdrew.

The Committee adjourned at 5.35 p.m.

* Appendix 6.

* Appendix 5.

* See Appendix 7.

* † Ques. 2756.

* Appendix 4.

* No. 15 of 1928.

* Appendix 5.

* Appendix 7.