Committee Reports > List of Committees > Joint > 1930 > Committee on the Courts of Justice Act 1924 and the Civil Jurisdiction of the Courts > Report - Courts of Justice Act 1924 and the civil jurisdiction of the Courts

MIONTUAIRISC NA FINNEACHTA

(Minutes of Evidence)

Dé Céadaoin, 9adh Abrán, 1930.

Wednesday, 9th April, 1930.

The Committee sat at 11.30 a.m.

DEPUTY MORRISSEY in the chair.

Mr. S. A. Roche, Assistant Secretary, Department of Justice, further examined.

5969. Senator Brown.—I had not the advantage of hearing your evidence but I have had the advantage of reading the transcript of it, and there are one or two matters about which I would like to ask you a few questions. One of them is the question of the pensions of the District Justices, which seem to be on an entirely different basis from the pensions of other Judges?—That is so.

5970. I gathered from your evidence that it is at present fixed from the point of view of the Civil Servant?—That is so.

5971. It occurred to me that that was not really a sound or a logical basis. It is the existing basis, but it does not seem to me to be either sound or logical. The other Judges are treated differently?— That is so.

5972. And the reason why a Judge is not treated like a Civil Servant is, I think, that he is not a Civil Servant. He is nobody’s servant; he is not even the servant of the State; he is absolutely independent, and it is for that reason, I think, that the Judge’s pension could not, either logically or otherwise, be put on the same basis as the pension of a Civil Servant?

Witness.—It is difficult to find any logical basis. I do not know that there is any logical necessity to give a Judge special pension rights in order to secure his independence whilst in office. The fact is as you say, that for pension purposes the District Justices are treated as if they were civil servants. But the question of pensions is not the only difference between them and the Judges of the higher Courts. Take the question of their removal from office. You cannot remove a High Court Judge from office except by a vote of both Houses; but if I remember rightly, the Executive Council or the Governor-General, on their advice, can remove a District Justice from office, with the concurrence of the Chief Justice and the Attorney-General. Section 73 of the Courts of Justice Act says: “No Justice of the District Court shall be removable from office save for incapacity or physical or mental infirmity or misbehaviour in office or misconduct, which shall be certified under the hands of the Attorney-General and the Chief Justice.”

5973. Senator Brown.—The section continues: “It shall be the duty of the Attorney-General and the Chief Justice to give such certificate in case they are satisfied that such incapacity or infirmity exists or that any such misbehaviour or misconduct has taken place. No such certificate shall be questioned or made the subject of proceedings in any Court.” I am very glad that you called my attention to that section, because I think it is a very serious thing that the position of a District Justice should be made in any way different from the position of the High Court Judge or the Circuit Judge. You want independence there at least as much as, if not more than, in the case of anybody else on the bench?—Yes, but you will also remember that there was a reluctance to call them Judges at all, and they are not so called in the English version of the Courts of Justice Act. If you go to the Constitution, you will find safeguards against the removal of Judges, but only Judges of the Supreme Courts and High Court. That amounts to a hint in the Constitution that Judges of the lower Courts may be removed in a more summary manner.

5974. That is the inference, and that is probably what is at the bottom of Section 73?—The point I am making is that the District Justices have never been considered as being in the same position as Judges of the High Court for any purpose except for this one purpose, that their judicial independence is not interfered with. But for pension purposes, for removal from office and in their very name they are distinct from the Judges of the Circuit Court and the High Court.

5975. It occurs to me that it is not a wise thing to have the pension of a District Justice on a different basis from the pension of any other Judge—that his independence should be equally protected?— The point is whether independence and pension are necessarily connected. With regard to the point made by, I think, Senator Comyn, that they ought at least to get credit for the six years’ professional service which they are statutorily required to have, if that were once conceded, the State might find itself forced to concede the same thing to County Registrars, who must be solicitors of eight years’ standing.

5976. Senator Brown.—If I may say so, with great respect, I do not think that the argument with regard to the six years for the pension of a District Justice is a sound one, but I think he ought to be put on the same basis as any other Judge. I gathered also from your evidence that there is an anxiety to appoint, under the present system of pensions, Justices as young as possible—say at the age of thirty?—Yes. It is hard for me to say anything as to the Departmental view, because the Departmental view is a vague sort of thing, but my own view is that, irrespective of the pensions difficulty altogether, it is a good thing to get District Justices fairly young.

5977. This does not affect your Department as much as it affects the Department of Finance?—The question of pensions is largely a matter for the Department of Finance. You may take it that the view of the Department of Finance is this: that they want pensions for public servants to be on the basis of their actual years of service, and the fewer exceptions the better. High Court Judges and Circuit Court Judges are exceptions.

5978. What occurred to me as the reason you were trying to appoint them at thirty years of age was that they would get their full pensions when they had served thirty years, but then you would not get the kind of men that are wanted. As a rule, you will not get a man who has a good knowledge of practice at the end of six years. You want a man who is making £500 or £600 a year by his own work at the Bar and who has acquired a knowledge of the administration of justice. You will not get that type if you appoint men of thirty years of age, especially now that the course has been turned into a five years’ course, when they will be coming to the Bar rather later?—As against that we had about half a dozen Justices who came in well under the age of thirty and are as good as their elder colleagues.

5979. That is probably right, but I think it was a bit of good luck?—That may be so. On the other hand, I should be a little afraid of the man who has been in practice as a lawyer for twenty years and who then says that he will take a District Justiceship unless, of course, he was a man who was recognised as an able lawyer. Otherwise, the inference might be unfavourable. A young man of real ability might very readily choose a District Justiceship in preference to the struggle outside, but when an older man does it looks suspicious unless there are some obvious personal reasons.

5980. On the question of the number of Judges in the High Court, the evidence before the Committee was, I think, to the effect that on Circuit Court appeals it would take two Judges of the High Court, sitting five days of the week for four months of the year, to keep down the Circuit Court appeals, making them a first charge on their time, so that the appeals could never get into arrears?—Yes, I should say that that is about right.

5981. It is apparently quite right, because we have got a three years’ average, and it was calculated on the speed at which the Commissioners and the High Court Judges had already done the work. The legal year is roughly eight months, so that you would have two of the High Court Judges constantly employed at Circuit Court appeals and doing nothing else if they are to continue to be heard under the present system. That would leave only three Judges of the High Court, because you cannot include Mr. Justice Wylie, who does Land Commission work and who is not bound to do any other kind of work, except that he does it when he is requested. That would leave the entire work of the High Court for four months of the year to three Judges, and that would mean, for practical purposes, that the work of the High Court must get into heavy arrears. We had evidence on that from the President of the Court, and I think that the Committee will probably be satisfied that that is so. Whether the necessary number would be affected by altering the system of appeals is another question. As to the Supreme Court, which is now going to be, for practical purposes, the final Court of Appeal, it has been suggested that that ought to be increased to five Judges. I do not know whether your Department has any views on that, or whether it would be fair to ask you?—I think that a case can be made for an increase in the number of the Supreme Court Judges, particularly as long as the Court of Criminal Appeal is tied up with that Court.

5982. Practically in all the other Dominions the Supreme Court of Appeal consists of five Judges—

Deputy Wolfe.—Five is the minimum. I think seven and nine were the figures we got from the Chief Justice.

Senator Brown.—Some were as high as nine.

Deputy Wolfe.—Some as high as nine, the average seven, and none less than five.

Senator Brown.—You must have a majority of all the Judges of both the High Court and the Supreme Court in favour of the final decision, which is the important thing. At present, you may have a minority of all the Judges in favour of the final decision.

5983. Senator Hooper.—On the question of the District Justices’ pensions, as I understand the position, if a man is appointed at 45, serves for nine years, and then falls ill, he has no legal rights to anything?—He has a right to a comparatively small lump sum.

5984. Senator Hooper.—Do you think it is right to put a man occupying the position of Judge in that situation?—I would rather not answer that question directly. All these arguments have been put before the Department of Finance several times. They have heard every argument that could be set up in favour of making a discrimination in favour of District Justices, as against civil servants, and they have always refused.

5985. You are the only representative we are likely to have from the Department of Justice, and I would like to hear your views?—I can only say that we thought it our duty Departmentally to put the case to the Department of Finance as fairly as we could, and the answer was always “No.”

5986. I want to put it this way: A civil servant joins the service at 18, and when he has ten years’ service, if he is retiring for any reason, he is entitled to a pension?—Yes, if he retires owing to ill-health.

5987. So that if a man of 28 years of age falls out, he is entitled to one-eighth of his salary for that period. I think you will agree that it is hardly fair to put a man twice the age on the same footing. A man of 28 has a chance of finding some other occupation, whereas a man of 56 has not?—Quite.

5988. Senator Hooper.—I take it that the same arguments that have been used apply also to County Registrars?—Except so far as they are expressly based on judicial status. A District Justice may ask for special terms on the ground simply that he is not a civil servant, but a Judge. That argument does not apply to County Registrars.

5989. I think you told us on the last day that the view was that when a man took a position of this kind, he knew exactly what the salary was, and that it was up to him to take it or not?—Quite.

5990. I put it to you that that may not be the correct way to look at the matter. If one were to pursue that to a logical conclusion one would really put these appointments to auction. It looks as if the State were trying to get men at the cheapest rate, irrespective of qualification?—I am afraid the State is very largely obliged to get men at the cheapest rate.

5991. I said something beyond that: “irrespective of qualification?”—I would not agree to that. I think we are bound to look at the fact that we have got good District Justices on the present terms. I doubt if we could have got better ones if they got better pension rights.

5992. You doubt if better than the present men could have been got?—I think that if any District Justice is weak he is weak for some other reason than pension terms.

5993. Chairman.—Could not some special case be made for the existing District Justices, who took up duty under very peculiar circumstances, and at a time when, perhaps, younger men would not take it for a special reason, and when, perhaps, some of these men, at least, were not thinking altogether of the salary, but of their duty to the country?—On the other hand, take the case of men who accepted the office at the age of over 50, which has occurred. Supposing they had not accepted, where would they be at 65? What pensions would they have? None at all. They probably have a bigger income inside than they would have outside, and even a small pension is better than no pension.

5994. Senator Hooper.—I suppose you are aware that some of those gentlemen whom we have had before us have been suffering from a grievance, believing that they had been “let down,” as some of them said?—On the point of pension?

5995. On the point of pension in the case of the District Justices, and on the point of salaries in the case of County Registrars the expression “let-down” was used by a District Justice. Does it not seem undesirable that men occupying such a position should have it as a grievance that promises that were made to them were not kept?—I cannot be taken as agreeing with that. I do not know of any promises that were made that were not kept. There was a certain amount of confusion in some minds as to the meaning of the Courts of Justice Act, 1924, as regards pensions. Some Justices said that on reading it they came to the conclusion they were entitled to special pensions. If they did so, they were wrong. As regards the point about the County Registrars. I do not think there is anything in that. The fact is, I think, that persons accepted the position of County Registrars without enquiring very carefully what the salary was.

5996. As regards the District Justices, I think Mr. Cussen told us that when the 1924 Act was passed he was not aware of the Superannuation Act of 1919, which took away the added years. The added years had been taken away in 1914, were restored in 1915, and taken away again in 1919. He was not aware that they were taken away, and consequently he believed he was in a position when he was appointed which in fact he was not in?— I don’t quite follow the reference to 1919. So far as I am aware the position is that the Treasury’s power to add “professional years” to actual service for pension purposes was taken away by an Act of 1914 but that in the following year it was restored by another Act, so far as concerned, inter alias, the old Dublin Metropolitan Justices. Our District Justices have this argument: “Even if you refuse to treat us as Judges in the full sense of High Court Judges, we should at least get what the English police magistrates get, and what our immediate predecessors in Dublin got, that is, added years.” All that is a matter which, in my opinion, might be discussed between the Committee and a representative of the Department of Finance rather than with me.

5997. There were some figures given by you on the last day as to the cost of stenographers. Roughly it was stated that the cost was about £4,000?—Yes.

5998. Part being the stipend paid to the stenographer, part subsistence expenses and part for travelling?—Quite.

5999. You told us afterwards that if the present system of appeals in civil cases were abolished it would mean a saving of three-quarters of the cost of stenographers. I take it that the existing cost of stenographers for civil appeals is about £3,000?—Or perhaps I would put it in this way: These men are working at a rough estimate three-quarters of the time on civil cases, and one-quarter of the time on criminal cases.

6000. And in future the cost would be only £1,000 for criminal appeals?—Yes. Take a single case. There is a man doing all Judge Davitt’s work. He works about 200 days in the year. If he did criminal work only he would not work 50 days, and would be paid accordingly.

6001. You would have no whole-time man then?—No.

6002. By retaining the stenographer’s notes you would be retaining an expenditure of £3,000?—I do not follow you. Do you mean if we abolish the stenographer’s notes in civil cases?

Senator Brown.—No, if you changed the form of appeal.

6003. Senator Hooper.—It does not matter what form of appeal you have as long as the notes are taken. I apportion the present cost of the notes as £1,000 for criminal cases, and £3,000 in civil cases, so that if the present system of notes was abolished, and if you went back to appeal by re-hearing, you would save £3,000?—Yes, that is about right.

6004. Deputy Wolfe.—How much?

6005. Chairman.—£3.000 out of the £4,000?—The Senator’s idea is that we are paying £4,000 at present for the notes and that if we get criminal cases reported only, the cost will be £1,000. I should say, speaking roughly, that is about right.

6006. Senator Hooper.—There are certain other contra items—fees received for copies of the notes?—They are small and amount to about £450 yearly.

6007. So that the saving would be £2,500. If the retention of the notes were regarded as an important element in securing a satisfactory system of appeals, you would not regard it as a big item?—I am afraid the Department of Finance would regard it as a big item.

6008. Apparently you do not disagree that it might be worth while if it would secure a satisfactory system?—I think £2,500 would be well worth while if the retention of the notes provided a check on re-hearing.

6009. Did you make any calculation as to what the cost would be of a reversion to the old system of appeal by way of rehearing? What would be the cost in the way of Judges and expenditure on staff? —The first question we have to consider in that connection is whether we shall have to increase the High Court Judges, if we are going to go back to the system of re-hearing. Supposing we do not increase the number of Judges the only additional expense would be the cost of sending a Judge around the country with a crier.

6010. Senator Hooper.—Would that be the only official?

6011. Chairman.—And the Registrar? —I do not think we would have a Registrar as we would have the County Registrar there. I do not see how a Judge travelling around the country could cost £1,000 for travelling and other expenses.

6012. Senator Hooper.—There are other expenses connected with what is sometimes called the panoply of the law?—I do not think that there would be any great expense. The real danger I see is that if you revert to the old system, appeals will be much more numerous. If you revert to the old system and if there is just the same number of appeals as at present, it would not take much time to hear them. At present there are only 200 or 300 appeals a year. We know that an Appeal Judge in the old days would hear from ten to twenty cases a day.

6013. Senator Brown.—He would deal, anyway, with eight to ten cases?—At least eight. That would mean that an Appeal Judge would hear all the appeals in Saorstát Eireann within a month or so.

6014. Possibly within six weeks?— Yes. If you go back to the old system, and there is no increase in the number of appeals, the result will be that instead of two Judges spending four months a year hearing appeals, one Judge will spend only six weeks.

6015. Senator Hooper.—You do not think the question of expense is a big item in this matter?—It is not. I mean that if the number of appeals does not increase the old system is much cheaper.

6016. Assuming the number of appeals does increase and the stenographer’s note is retained, there will be increased receipts from fees in respect of the notes, which will go as a set-off against the general expenditure?—That is so.

6017. Senator Brown.—That will be small, because you want the stenographer’s note only in a few cases?—It will be small.

6018. Senator Hooper.—I take it that the second Judge would not be a matter of great importance in respect of expenditure?—The most serious feature is one that we cannot calculate. It is: What will be the increase in appeals? If there were no increase the cost of even a second Judge would be, so to speak, a mere bagatelle; he would be only six weeks away. The danger is that the increased appeals will be out of all proportion.

6019. It is very hard for anyone to estimate that?—I think Deputy Wolfe could perhaps give us a rough estimate of how many appeals are not made at the present moment because of the existing system.

Deputy Wolfe.—At present they are rapidly dying out because people are getting to realise the fact that you really have no appeal. The appeals are dying a lingering death. If you get back to the old system the appeals will be four times as numerous.

6020. Senator Hooper.—At present when a Circuit Court Judge falls out through illness or any other cause, how is he replaced?—We have power to appoint a deputy for any Circuit Court Judge who is unable to do his work owing to illness or through being engaged on other work. We have eight Judges on regular circuits and, in addition, we have two permanent movable Judges, Judge Shannon and Judge Roche. If a Judge in the country fell ill we would not normally appoint a deputy; we would send either Judge Shannon or Judge Roche to do the work.

6021. I heard complaints yesterday that Judges are being withdrawn from Dublin, where they are badly wanted, in order, for instance, to replace Judge Wakely?— That is so.

6022. Senator Brown.—What power exists for appointing temporary Judges? —Under a recent Act, passed some four months ago.

6023. We have been fighting against the temporary Judges?—There is a difficulty about that. If a Judge falls ill, what is your proposal if you do not appoint a temporary Judge?

6024. It was believed—wrongly, I see now—that the two extra movable Circuit Court Judges would be able to cope with any casualty of that kind. Apparently that is not so and apparently the work in Dublin is becoming so onerous that you will need at least two permanent men here?—Yes. And if the number of permanent Judges is big enough to cope with cases of illness, then that number is too big to cope with cases of no illness. That is the dilemma.

6025. Senator Hooper.—Is Judge Gleeson a temporary Judge?—He is. He is a deputy appointed owing to Judge Davitt’s inability to attend to his work because of his engagements on other public business. As soon as Judge Davitt resumes, Judge Gleeson goes.

6026. Then, Dublin is not properly staffed?—Dublin requires two Judges working full time and working hard. As it is, you have Judge Shannon and Judge Roche, but Judge Roche, owing to recent serious illness, is not quite able to do a full day’s work.

6027. And instead of doing current work they are falling into arrears?—Yes.

6028. Senator Farren.—The great difficulty would appear to be the congestion in the Courts. Apart from appointing additional Judges, would it be possible to introduce some system such as has been introduced into every industry—what is known as the “division of labour?” I know that some people will be horrified at that suggestion, but it would appear to me, judging by the evidence of the Master of the High Court, that we could avoid taking up the time of Judges over certain matters which could easily be done by any person in the office of the Master of the High Court. Article 64 of the Constitution refers to the exercise of judicial powers, and that appears to be the stumbling-block in the matter of relieving congestion in the Courts. The Master of the High Court said he was performing certain duties, and he believed that if his findings were challenged it would be found that he was acting ultra vires and that he really had no power to do the things he was doing. He made the suggestion that the Master should be given judicial powers by appointing him a Judge. He could then exercise judicial powers.

Deputy Wolfe.—I think he suggested that he should get such judicial functions as would enable him to carry out the duties it was intended he should carry out under the existing Court Rules.

Senator Brown.—And the duties might be defined by the President of the High Court.

Deputy Wolfe.—Quite so.

6029. Senator Farren.—Would the Department consider it advisable to give him judicial powers in order that he could perform the ordinary work now performed by other Judges in Court?—I would put it in another way. The Article of the Constitution says that the judicial powers shall be exercised by the Judges. In England they are not hampered by any written Constitution, and if they like to give a Court Clerk any power they can do it. Here we are haunted all our lives by the “judicial power” bugbear. In general, as far as the Courts are concerned, I think we ought to go back to the more flexible British system. Under that system the powers may be exercised by the Judges or officials of the Court, according to the law and the Court Rules. If a law says that the Master can do certain things, then nobody can step in and say: “This is against the Constitution; this is judicial power.” In other words, I would amend the Constitution by saying that the judicial powers shall be exercised by the Judges and also by Court officials, so far as such power may be delegated to the latter by law or by the Rules of Court.

6030. Senator Brown.—Would “by law” mean by legislation?—Yes, by legislation.

6031. Senator Hooper.—That would mean an amendment of the Constitution? —It would.

6032. Senator Farren.—Do you think if Article 64 were amended on these lines it would help to relieve a good deal of the Court congestion?—In the Circuit Court, at least, it would do one very important thing. One of the most striking points about the Circuit Court is that everybody says there must be a quick remedy for the bona fide creditor. People say that in the old days a man who had a debt which was not seriously questioned issued a writ in the High Court and recovered his debt very soon. People object to that and ask: “Why can he not go to the Circuit Court?” The creditor’s answer is that if he goes to the Circuit Court he will have to wait until the Judge is sitting and that may be four months. It is quite clear that everybody wants a system under which the County Registrar can mark judgment in the Circuit Court in cases which are not defended at all or in which the defence is obviously inadequate and is entered for delay only. But marking judgment may be held to be a judicial act and it would be risky to leave it to the County Registrar. That is one instance of where we are held up and where we have Article 64 hanging over us—judicial power must be exercised by the Judges alone.

6033. Do you think County Registrars could get powers defined by law following an amendment of Article 64?—You would have to amend the Article first.

6034. And that would tend to decrease the Judge’s work?—It would tend to speed up things rather than to decrease the Judge’s work.

6035. I heard witnesses complaining of delay in delivering judgment in cases here. That gets at the point of the independence of the judiciary. Is there any provision whereby Parliament or the Department could insist that a Judge must at some time deliver judgment? As it is, he might unreasonably delay giving judgment?—He might.

6036. Is that a proper state of things? —It is a choice of two evils. It is a bad thing that a Judge should deliver judgment only after an unreasonable interval, but it would also be a bad thing if you could have the Department of Justice worrying Judges to deliver judgment. It is not a responsibility that I, as an official, would like to take.

6037. I do not suggest they should be worried, but there might be some provision obliging persons to perform duties for which they are paid. It is all very well to talk about the independence of the judiciary; but the State pay them for doing their work and there should be some way of securing that they perform their work in a satisfactory way?—There is a lot in that.

6038. Now there is one other point which arises. Reference was made by the Master to the question of Court fees, and it appears to me he made a very good case —indeed, in my opinion, he made an unanswerable case—for some steps being taken to secure that the people who are using the Courts, the maintenance of which is so costly to the country, should be made to contribute to the cost of the hearing of their cases?—Yes, I agree.

6039. What would you say to the suggestion that there should be a lay representative or lay representatives on the Rule-making Committee to ensure provision for adequate Court fees?—I would go further. When the Act was being passed, our Departmental proposal was that the Court fees should be fixed by the Minister for Justice, with the concurrence of the Minister for Finance. That was objected to, and after some time it was agreed to give the Rule-making Committee—that is, the Judges and lawyers—a veto in the matter. The fees in the Circuit Court are entirely inadequate. They are the same now as they were fifty years ago in the County Courts.

6040. Deputy Wolfe.—The solicitors’ costs are also the same?—I think not

6041. Senator Farren.—Would the case be met if this Committee recommended that the fees should be fixed by the Minister for Justice?—Yes, with the concurrence of the Minister for Finance.

6042. The Master mentioned a case that occupied the High Court for a whole week, and the costs in that case were £3,000, and the State got in fees from that case the sum of £3?

6043. Senator Brown.—They were £3 15s. 0d.?—Yes, that was a libel action.

Senator Farren.—There were paid in fees in that case £3 15s. 0d., while the costs were £3,000.

Deputy Wolfe.—Is the Senator becoming an anti-Trade Unionist?

6044. Senator Farren.—There are no Trade Union principles in that. Now, Mr. Roche, your suggestion is that the court fees should be fixed by the Minister for Justice, with the concurrence of the Minister for Finance?—Yes, I approve of that.

6045. On the question of appeals, we had evidence here from a witness that a number of these were bogus—that they were lodged merely for the purpose of gaining time. Ought there not be some step taken to prevent an abuse of the Courts like that? Would you approve of some form of fee to be charged to the litigant who appeals, such fee to be remitted or refunded by the Court if the appellant succeeds or if the Judge thinks that there were proper grounds for an appeal?—Yes, I made that point on the last day. I would be reluctant however to be taken as saying positively that any great percentage of the appeals at present are bogus. I do not know and I would not state that definitely.

6046. It was stated here that litigants in order to stave off the evil day lodged such appeals?—The figures* show that out of 2,232 appeals in a certain number of years, 776, or almost one-third, were withdrawn or struck out. A great many of those may have been quite honest appeals which the parties afterwards settled.

6047. Yes, but do you think that any great hardship would be inflicted on a person who had a genuine appeal by asking him to lodge a fee with the Registrar, the Judge afterwards, if he found there were good grounds for the appeal, to be empowered to refund the amount lodged? —I am strongly in favour of it. We do this, I may say, under the Film Censorship Act. If renters disagree with the decision of the Censor they have to lodge £5 on appealing the case and if they succeed in the appeal they get their £5 back.

6048. With regard to the question of pensions for District Justices, it appears to me that the whole question has arisen over the case of one individual?—Not entirely.

6049. Senator Farren.—But there is only one District Justice who will not be entitled to a pension of some kind?— There is, in fact, no such District Justice. There was one but there is a special provision which enables the Chief Justice to extend this Justice’s term of office so that he may earn a pension and that has been done.

6050. On the last occasion here Senator Comyn asked some questions about added years being taken into account. He suggested that the period spent in gaining professional experience should be added to the years of service. You cited the case of professional men in the Civil Service, such as engineers and doctors. Of course, they have gained their experience in the same way as the District Justices, with the further handicap that in most cases they have had to sit for competitive examinations?—Yes.

6051. Do you think it is just that a man who spends the best years of his life in another occupation should come into the State service and that he should get the benefit of these years in his pension?— That is precisely the question on which the complainants think one way and the Department of Finance the other way.

6052. I think the Department of Finance is perfectly right. It is not right that a man who has spent the best part of his life in another occupation should come into the State service and be entitled to full pension. Have you considered the question of court stenographers?—Court stenographers will not get any pensions under the present arrangement.

6053. There we have the strict line of demarcation again?—They are deemed not to be whole-time civil servants.

6054. If they are kept on even for twenty or thirty years, will they get added years for the period they have spent?— No.

6055. Then this is only a special plea on behalf of a special class?—They have this strong case, that the Judges of the High Court and the Judges of the Circuit Court get special pension arrangements by statute and the District Justices say “We are Judges under the Constitution; we are not civil servants; civil servants may be treated badly; that is not to the point. The point is that we are Judges and we want pensions as Judges.”

6056. If those people did not take positions as District Justices but continued on in their ordinary occupations, where would they get their pensions from?—Of course, that applies equally to the Judges in the High Courts and in the Circuit Courts.

6057. Deputy Wolfe.—I want to take the question of appeals and the suggestion of the Senator that the appellant should lodge money with the appeal. Do you know that that was the law down to 1877? —I think what was in the Senator’s mind was that something should be paid so as to show the bona fides of the appellant.

6058. I think there was some suggestion of lodging £10 on appeal?—My suggestion —I think that it is the Senator’s also—is that a man should pay a fairly heavy court fee when taking an appeal from the Circuit Court to the High Court, such fee to be refunded to him if he wins his case or, in cases where the appeal is dismissed, if the Judge recommends a refund on the grounds that there was a good case for appeal.

Senator Farren.—My point was that the appellant should be compelled to lodge some amount so as to show his bona fides.

6059. Deputy Wolfe.—Yes, and that a provision that was found fifty-three years ago to be unfair to the working man should now be restored?—I cannot say as to that.

Deputy Wolfe.—That was the law up to 1877.

Senator Farren.—I think the amount of time of a Court occupied by working men in appeals and in actions is not worth bothering about. They cannot afford it.

6060. Deputy Wolfe.—If that were done, a great many people would be deprived of the right of appeal?—I do not think they would.

6061. Take a poor man who has a decree against him for £4. Would you ask him to lodge £10 for his appeal to the High Court?—He would not be in the Circuit Court; he would be in the District Court.

6062. But if he had a case in the Circuit Court?—Well, I don’t think that the additional risk of losing £10 or £5 is going to stop him if he has a good case.

6063. You may take it that in 1877 the position that you now suggest to be restored had become a hardship to a great many litigants and was got rid of. Do you not think it would be a tall order in 1930 to restore what was found to be a great hardship on poor litigants in 1877? —That argument does not convince me. Circumstances have changed so much that it may well be that a course that was abandoned fifty years ago should be resorted to now.

6064. As regards this question of the appointment of District Justices, you said something about thirty years being the appropriate age?—Yes.

6065. Do you think thirty is an appropriate age at which to appoint a District Justice?—I do.

6066. And you think that at thirty years, with the experience he would have got between the age of twenty-four or twenty-five, which would be the average age of his call to the Bar or his admission as a solicitor, he would have developed so, and his judgment would be such that you could transform him into a suitable Judge?—Yes.

6067. Has that been the experience in the case of the Judges you have appointed?—Yes; on the whole, the young men have done at least as well as the older men.

6068. Has not that been the exception and not the rule?—No, it has been the rule.

6069. I would rather suggest that thirty might very well be made forty and that in order to get a good District Justice you would want to get a man with experience between the age of twenty-four and forty, as otherwise his judgment would not be sufficiently matured to make a suitable Judge?—That is a question on which every man will form his own judgment. Some will vote primarily for youth and vigour and others for years and discretion. Some think that a lawyer who takes an appointment as District Justice in middle age has been a failure in his profession, as otherwise he would not take it.

6070. If it requires mature judgment to qualify for a judicial function, is there not some case to be made for counting the years spent in acquiring that judgment? —The same case has been made for engineers and doctors in the Civil Service but, rightly or wrongly, they have been turned down and do not get added years.

6071. You have reduced the cost of stenographers and other costs to £2,500, allowing the cost of civil administration as £3,000?—I think we said that the gross cost was £4,000.

6072. If you multiply the existing number of appeals by four, would it not reduce the cost of the stenographers to £500?—If you increase the number of appeals by four, the number of stenographers must go up.

Senator Brown.—It is the cases, and not the appeals that count.

6073. Deputy Wolfe.—The cases will remain as they are, but the appeals will be multiplied by four?—You must remember that it takes a stenographer about six times the time spent in taking notes to make the transcript. Every appeal is a serious addition to the stenographer’s work.

6074. You do not think that if the number of appeals were multiplied by four the existing number of stenographers would be able to do the work? —They would not.

6075. Assuming they did, the continuance of stenographers would only cost the State something like £500?—Yes.

6076. And not £2,500?—Yes.

6077. I think you gave some evidence about Land Commission decrees being issued from the office?—I made a suggestion that it was not really necessary, perhaps, to take any court proceedings in regard to Land Commission debts.

6078. That would necessarily mean an increase in the number of civil servants and increased expense to the State?—I doubt it.

6079. In order to carry it out, you would want a new staff in Merrion Street?—I do not think so.

6080. Who would do the work?—The people who at present have the work of reporting cases for prosecution. It is as easy to issue a final notice to a defendant as to prepare a case for prosecution.

6081. Your suggestion is that so far as trouble is concerned there would be no increase?—Yes.

6082. At present, if the change were brought about, it would throw out of employment a number of people. My suggestion is that it would create a number of new civil servants?—I do not think so. I had some experience of prosecuting people for State debts, and I think that it was cheaper and easier to notify a defendant direct from the office to pay up than to furnish the State Solicitor with all the necessary details in order that he may prosecute.

6083. You would have to communicate first with the defendant?—Yes.

6084. You would have to get from him his consent before taking away his constitutional right to be tried in court?— That is not my proposal.

6085. You would have to get his consent waiving his right to be tried in court, and you would have to communicate with him again?—That is not what I suggest.

6086. You would have to communicate with the Sheriff?—Undoubtedly, if the final notice was ignored.

6087. Would not that mean a largely increased staff?—No; even at present you have to communicate with the Under-Sheriff.

6088. The State Solicitor does that now. My suggestion is that you would be adding largely increased duties to the Land Commission staff, which would mean an increase in the number of civil servants paid for by the State, whereas at present these duties are paid for by defaulting annuitants?—In my opinion, there would be no increased expense, and there would be considerable saving to the annuitants.

6089. The civil servants would do the increased duties out of love and affection? —I do not believe that there would be increased duties. It is at least as easy to get a printed form and to write in a few figures as it is to furnish the necessary details for a prosecution.

Chairman.—We will have an official of the Land Commission before us, and he will give us evidence in regard to that.

6090. Deputy Wolfe.—The moment the State Solicitor gets a decree the clerical work really commences?—Under my system, there would be no decree.

6091. At present the State Solicitor gets the decree?—Yes.

6092. He proceeds to levy, and you would have to do the same under your system. The clerical work that comes after the getting of the decree constitutes the greater portion of the job?—Possibly.

6093. Would not the greater portion of that work be transferred from the State Solicitor to the Land Commission?—No. At present, after certain legal proceedings the State Solicitor gets the decree, and proceeds to execute after a certain amount of additional labour and cost. Under my system, instead of getting a decree, he gets a certificate. From the point where he gets the decree or certificate, there is no change. Under the old system, he gets the decree, and it costs a certain amount to execute. Under the certificate system, it costs the same. Up to the point where the certificate issues, the costs are much less under my system.

6094. Assuming that a certificate or decree is got, we agree that that would amount to the same?—The cost of executing either would amount to the same.

6095. At present, the State Solicitor gets nothing for the trouble which he has once the decree is granted?—He gets nothing for collection?—If you say so, I assume that it is so. You will understand that the present system is not run from my office, and I am not familiar with all the details.

6096. Do you know that the heavier portion of the work which he has to do, arises after he gets the decree—in collecting the amount, in arranging for time if the defendant is a poor man, in correspondence with the Sheriff and other matters?—That may be so, but I would not have thought it.

6097. If that were so, do you not see that all that work which at present costs the State nothing would have to be performed by civil servants?—I suggest that you are hardly correct in saying that it costs the State nothing. It costs the State part of the salary of the State Solicitor.

6098. No portion of the salary of the State Solicitor is in respect of Land Commission work?—Is it your suggestion that the State Solicitor does this work for nothing?

6099. My suggestion is that once a solicitor gets a decree in the Circuit Court he does all the work of collection, all the work subsequently in connection with the collection of the decrees, for nothing. That is the main portion of his work in collecting the amount in undefended actions especially?—That is not my experience.

6100. Do you seriously suggest that if you transfer that, which is the greater portion of their work at present to the Land Commission, you will get that work done for nothing by the under-paid, overworked civil servants?—I think it would be cheaper. I feel that there are expenses under the present system which are unnecessary and which could be cut out. I do not see the sense, for example, of paying a summons-server a fee to serve a process upon a man who knows perfectly well that the money is due, but who cannot or will not pay it.

6101. As you are on the question of Court messengers’ fees do you not see that you will put an increased burden on the State if you take this work from these men? The State has to supplement the Court messengers’ fees at present, has to give them a small salary?—That is true.

6102. You will take away a great portion of the revenue from Court messengers and it is very difficult to get Court messengers at present. You will have to pay more to Court messengers?—That is true.

Chairman.—You have taken it away from them already I understand.

6103. Senator Hooper.—On the question of the functions of the Master of the High Court we were told by the Chief Justice that there was some doubt whether he was entitled to exercise the functions which he was intended by the Act of 1924 to exercise. Do you agree with that?—Yes.

6104. I understand the position was that one or two cases were brought into the Court and the decision was that he did not possess these powers. In neither of these cases, however, was any appeal taken to the Supreme Court, so that the possibility still exists that if any of these cases were taken to the Supreme Court, the decision might be that the Master has the powers that were intended to be conferred on him by the Act of 1924?—As I understand it there are two different things involved. There is (a) the question whether, on the wording of the Rules themselves, the Master is given certain powers by the Rules of Court and (b) the question whether those Rules of Court were or were not ultra vires the Constitution. The Master did a certain thing and he said: “I am authorised by the Rules to do that.” The Court held that he was not authorised by the Rules to do that. The question did not arise whether these are judicial powers or not. The answer was that the Rules did not purport to empower him to do that and that the Master had read the Rules wrongly. That was what was decided.

6105. There was no appeal from that to the Supreme Court?—I cannot undertake to say definitely at the moment. It is not a point of great interest. The point was merely whether he had acted under the Rules and the Court said he had not, that he had misread the Rules. A different and far bigger point is what powers can he be given by Rules, having regard to the Constitution. That question has never been settled and in the nature of things it can never be settled, because every particular power must obviously be examined on its own merits to see whether it is a judicial power. No Court could define, once for all, what is a judicial power and what is not in so clear and comprehensive a way as to remove all doubt for the future.

6106. You do not think that if an appeal were taken in any of the cases which came before the High Court that it would settle that point?—No. So long as the Constitution remains thus, that no one except a Judge can exercise judicial powers, so long, in my opinion, you will have uncertainty.

6107. Complaint was made here that there was no co-ordination between the Rule-making Committees. Is it not somebody’s business to see that there should be co-ordination?—There is co-ordination in a very real sense. The man who acts as secretary to the District Court Rule-making Committee is the same man who acts as secretary to the Circuit Court Rule-making Committee. We should also be prepared to let him act as secretary to the High Court Rule-making Committee if that body were willing to take him.

6108. I think it was the Chief Justice who made mention of it?—Of course from his point of view there is not co-ordination, in the sense that he is not consulted by the District Court Committee or the Circuit Court Committee. From our point of view, we know what is proposed to be done by the District Court Committee, the Circuit Court Committee and the High Court Committee, and we are the co-ordinating element.

6109. Does that apply to the High Court Rules?—Yes. All Rules of Court are in strictness made by the Minister for Justice, so that obviously there must be co-ordination.

6110. Do you think that is quite sufficient?—Well, it would no doubt be a good thing if all the Rule-making Committees would meet together and discuss things, but the fact is that it is difficult enough to get any one Rule-making Committee together and in agreement without contemplating the task of getting all three together simultaneously.

6111. Do you think that is advisable?— I think the present position is not unsatisfactory. The Minister for Justice is responsible for all the Rules.

6112. I think it was the Master who drew attention to the fact that although there was some provision in the old law—

Senator Brown.—It was really a practice.

Senator Hooper.—There was a practice that the Rules of the High Court should come under periodic revision. There is no such practice or regulation now?—That is so. To my mind the whole business of Rule-making for the Courts is so complicated that there is a strong and natural tendency to do nothing at all. In the case of the Circuit Court Committee you have to get together five Circuit Court Judges, two barristers and two solicitors.

6113. Is that the quorum?—No. That is the entire body. The statute does not, I think, lay down any quorum. It is very hard to get five Circuit Court Judges, all very busy men, some of them from Cork and some of them from Donegal, to come together in Dublin. All the members of the Committee, Judges and lawyers alike, are busy men and when they get a day or so off from their own work it is hard to expect them to devote it to Rule-making work.

6114. Could not a less unwieldy body be devised?—I think it could. The Minister for Justice might make the Rules for all the Courts with the assistance of one small Committee.

6115. Senator Farren.—On the point as to the necessity for having a lay person on the Rule-making Committee, is it not within your knowledge that in the draft of the Rules which was rejected there was a provision whereby a poor person could get legal assistance under certain conditions?—Yes.

6116. And the Joint Committee of the two Houses which was set up to consider these Rules amended that Rule by increasing the amount of means below which a person would be entitled to get legal assistance. Are you aware that in the new draft of Circuit Court Rules that provision has been entirely eliminated?—I believe that is so.

6117. Do you think that is just?—Quite frankly I am not inclined to attach very much real importance to that Rule. It may seem rather hard to have no special provision for poor people, but in practice I do not think it leads to any extraordinary amount of injustice. I do think that most people who have a really good case can get it brought forward irrespective of their means.

6118. But do they?—I think so.

6119. How is it that in every civilised country there is such a provision—in England and France, for instance. Is there any reason why we cannot have that provision?—My information is that in England it was found unsatisfactory, and it was replaced by a kind of working agreement amongst members of the legal profession.

Senator Brown.—I was going to call attention to that. What the Senator seeks to have done should not be made a matter for a Court Rule. It is carried out by agreement between members of the profession in England, and it is working extraordinarily well there. The report of their work for the last twelve months makes extraordinarily interesting reading.

6120. Senator Farren.—I had an experience of a case in which people who had quite a legitimate case to bring to Court approached lawyers to plead their case, and they had to make a deposit of money before the case would be taken up. That is not fair or just?

Senator Brown.—You cannot remedy that by Rule.

Senator Farren.—If there was a Rule these people would have a better chance.

Senator Brown.—You cannot do it by Rule. You cannot say the solicitor should work for nothing. That can be only done by agreement.

Deputy Wolfe.—I know a man who has a considerable practice at the English Bar, and he goes there every week and spends hours working for poor people.

Senator Brown.—You cannot accomplish it by Rule of Court.

6121. Senator Farren.—It appears to me that had there been a layman in the Committee he would not have allowed the Rule making this provision in the first draft to be eliminated in the second draft?—I do not think it was done in the spirit you suggest. It was agreed that the Rules had to be reduced in bulk, and the Committee, not considering this Rule to be of any great practical importance, let it go.

6122. I think there were many Rules that could have been removed without touching that one?—I can only say that I do not think it was cut out with any intention of penalising poor litigants.

You may take it from me that I will oppose the Circuit Rules on that account.

Senator Brown.—I am afraid the Senator will have to bring in legislation because you cannot compel lawyers to work for nothing and the reason that Rule was struck out was, I have no doubt, because it was ultra vires.

Deputy Wolfe.—When it came before the Joint Committee they found that there was an innovation in the Rules. The innovation would entitle the Solicitor and Counsel who took up the poor man’s case to get paid.

Senator Farren.—I have a distinct recollection that one of the greatest supporters of the Rule was Lord Glenavy.

Deputy Wolfe.—He was against the principle that a Solicitor or Counsel should be paid by results.

Senator Farren.—That does not alter the fact that Lord Glenavy was one of the greatest supporters of the retention and extension of that Rule.

6123. Senator Brown.—You say that some official should act as the Secretary for the two Rule-making Committees. Is it part of his duty to follow the working of the Rules and to discover, if it so happens, that there are some Rules not working and some which are wanted?— Yes.

6124. Are defects regularly reported?— Yes. From time to time somebody, say a District Justice, a solicitor or a Court clerk, writes and points out such and such a defect.

The Chancellor’s Secretary had that duty, and every defect in the High Court Rules was reported to his office. Once every term the Rule-making Committee met, and these matters were brought before it.

6125. Chairman.—Is there a Secretary to the Rule-making Authority for the High Court?—No.

6126. Who follows the Rules there? Who summons the meetings?—The Department occasionally makes suggestions to the Chief Justice that such and such a Rule should be improved.

6127. With regard to the Rules of the High Court?—Yes. The Minister for Justice would write and say that he would be glad to have Rule—amended.

6128. Is there any person whose duty it is to call attention to a defective Rule?—We regard it as the duty of the Department to see that the Rules of the Court are kept in order.

6129. You have a Secretary for the Rule-making Authorities for the District and the Circuit Court?—Yes.

6130. It is some person’s duty to see that meetings are called if and when necessary. Do you think it is not necessary to have a man in a similar position as far as the High Court is concerned?— The man who acts as Secretary of the District and Circuit Courts is one of the Department’s officials. This particular work does not occupy very much of his time. There is no reason that I know of why he should not do it for the High Court.

6131. You mentioned, I think, that in the case of the High Court Rules the Department, if they thought it necessary, would get in touch with the Chief Justime. Is there any link between the Chief Justice and the Rule-making Committee?—The Chief Justice is on the Committee for the High Court and the Supreme Court. He has nothing to do with the Circuit Court or District Court.

6132. Would you not think that as Chief Justice he ought to be conversant with all the Rule-making Authorities?— I do not know that it is desirable or necessary. Of course, I see what you mean, viz., that the first Judge of the country should have some official connection with the working of the Rules in every Court, but in practice it would not be of very much value. You see, the theory was adopted in 1924 that the making of Court Rules was not a judicial but was an administrative function and it was given to the Minister for Justice. Then, by way of precaution the Act went on to provide that he should have in each Court a committee to assist him. But it is the Minister for Justice, not the Chief Justice, who is conceived by the 1924 Act as being at the centre of things.

6133. I think Senator Hooper put the point to you that there is no obligation at present on any Rule-making Committee to meet?—No.

6134. Do you not think that there should be some obligation, statutory or otherwise, that the Rule-making Committees should meet to consider suggestions for revision of the rules?—I think that might be useful.

6135. Senator Brown.—And to make that apply to all three Courts?—Yes.

6136. There should be an official in your Department to whom the fact that the Rules were not working well in the High Court should be made known. There is nothing to connect your Department with the High Court as far as the Rules are concerned and it does not seem anybody’s duty at present to do it. Would it not be well if the same official who acts for the other two Rule-making Committees would take the High Court into his care so that the Bar Council and other people could communicate with him?—In fact they do. If there is any complaint the Minister hears about it.

6137. It would be better to have somebody whose duty it would be to look after defects in the High Court Rules?—Well, the position is that the Minister for Justice makes Rules. It is his business to see that his Rules are right and proper. He is supposed to take precautions as to defects in the Rules. He does that. His ear is always open. He hears any complaints there are. I do not know that you would gain any advantage if you named by statute a particular official.

6138. I was thinking of its being done by your own Department, so that a man would know what was wanted and would bring it before the Rule-making Committee of the High Court once a year. At present it is in the air.

6139. Chairman.—There should be some channel of communication between the Minister and the High Court Rule-making Authority. At present, so far as we can see, the Minister only hears of it by accident. There is no person whose duty it is to acquaint the Minister?—It would be certainly the duty of the Master of the High Court to represent to the Minister for Justice any defect in the Rules.

6140. We had it from the Master of the High Court last week that it was not his duty.

6141. Senator Brown.—He used to do it under the old system?—We would consider it negligence on his part if he was aware that any particular Rule was not working satisfactorily and he did not report it.

6142. Senator Hooper.—During the last twelve months has anyone in the Court suggested to the Department that there are defective Rules?—There have been such cases, but I would not say within the last twelve months.

6143. Are the present Rules free from defect?—No. I regard the present condition of the High Court Rules as very unsatisfactory.

6144. Senator Brown.—The great difficulty about the High Court Rules is that the old Rules under the Judicature Act are still in force, and the Rules for the present High Court are supplementary. A number of new Rules have to be dovetailed into the others, with the result that there is considerable confusion and doubt. If you want to find out quickly what a Rule is you do not know where you are?—That is exactly the position.

6145. Chairman.—You mentioned that the person acting as Secretary to the Rule-making Authority was an official of your Department and that the work would not take up one-tenth of his time? —Yes.

6146. Is there any reason that an official could not also act as Secretary to the High Court Rule-making Authority and form a direct link between that Authority and the Department of Justice?—We actually offered him to the High Court Committee as secretary and draftsman, but the offer was not accepted.

6147. There is no doubt that those Rules, drafted in 1926, require revision? —There is no doubt about that.

6148. The Rules generally would require to be altered in rather a big way; they would require codification?—Yes.

6149. Notwithstanding that we are supposed to have a Rule-making Authority, nothing has been done for four years?— That is so.

6150. Do you not consider that a very unsatisfactory position?—We suggested to the High Court Rule-making Committee, through the Chief Justice, that it was time we got a new edition of High Court Rules, from beginning to end, because the old Rules are out of print.

6151. Senator Brown.—You would have to pay £5 for them?—If some foreign Court or Government asked us, in a friendly way, for a complete up-to-date version of our High Court Rules, we would have to reply that we had not got it.

6152. Chairman.—If the present Rule-making Authority for the High Court is unsatisfactory—as undoubtedly it is, from the evidence before us—steps should be taken immediately to remedy that position?—We did suggest to the Rule-making Committee that we wanted a complete new edition of the High Court Rules, and that we would lend an experienced official, who is a barrister and who is Secretary of the other Rule-making Committees, to do the work of revision under the guidance of the Rule-making Committee, but the offer was not accepted.

6153. Could you give us any idea as to how long ago it is since that message was conveyed?—About a year ago. Since then, we have had, not long ago, a message from the Committee agreeing that the issue of a revised edition of the Rules was desirable, but suggesting that a practising barrister should be engaged to do the work.

The Witness withdrew.

The Committee adjourned at 1.5 p.m.

* Appendix 4.