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

MIONTUAIRISC NA FINNEACHTA

(Minutes of Evidence)

Dé Máirt, 14adh Eanar, 1930.

Tuesday, 14th January, 1930.

The Joint Committee sat at 11 a.m.

SENATOR BROWN (in the absence of the Chairman), in the Chair.

Messrs. Seán O h-Uadhaigh and J. Vincent Brady (representing the Dublin District and Circuit Courts Bar Association), called and examined.

539. Chairman.—Mr. O hUadhaigh, you are a solicitor practising in Dublin?— I am.

540. Are you practising alone or in a firm?—I am in a firm, with Mr. Patrick J. Little, who, I think, is a member of this Committee, and Mr. Ernest W. Proud.

541. How long have you been practising? Since 1915 or 1916.

542. I take it that your practice has been a Dublin practice?—Almost altogether.

543. And has included all the courts in Dublin?—Everything from the Supreme Court down to the District Court, with some Land Commission work, and also very extensively in the Dáil Courts when they were in existence.

544. Have you and your colleague been selected by your Association to represent their views here?—We have.

545. And are we to take it that these are practically the unanimous views of your Association?—The memorandum we sent in was settled at a Committee meeting of the Association and represents the views of the Association as a whole. I believe that there are about 70 members in the Association.

546. That is, solicitor members?—Solicitor members.

547. Dealing with the District Court firstly, is it your experience that the functioning of the District Courts in Dublin has been satisfactory on the whole?— Yes. Of course, there are things that we would like to see modified, but on the whole we consider them thoroughly satisfactory.

548. On the question of the jurisdiction of the District Court, its present jurisdiction in tort is £10?—Yes.

549. Have you any observations to make on that point?—We are inclined to leave it as it is, not because we think that the District Court would not be capable of trying larger cases in tort, but because we think that cases of tort generally involve more complexity—the examination of more witnesses—and they take more time. Therefore, they would be an excessive burden on the machinery of the District Court.

550. Does that apply particularly to Dublin?—Well, of course, we are not qualified to speak for the country. A number of our members practise not only in the city but in the County of Dublin; some of us make excursions into Wicklow, perhaps as far as Bray; but outside of that area we do not profess to speak for the country. We do think, from what we know of conditions generally, that the present jurisdiction in tort ought to be left as it is.

551. And your reason, apparently, is in order not to block the business of the District Court?—That is so.

552. In contract the present jurisdiction of the District Court is £25. Have you any observations to make on that?—We suggest raising it to £50 because, first of all, it would relieve the Circuit Court of a great deal of debt-recovery business which at present goes into it. If you take the case of Dublin, there is a District Court civil sessions in Dublin every Tuesday. In the Circuit Court, as at present constituted—without any rules—undefended debt cases can only be taken on the opening day of a session, the same as in the District Court.

553. When you say a session, what is the session of the Circuit Court?—It means that the Circuit Judge sits on a certain predetermined date, and the whole list of civil bills that have been entered for that date is called over. Those cases which are not defended are disposed of there and then by a witness going into the box, proving the amount claimed, and a decree is pronounced. Everyone feels that it is rather an anachronism that there should not be the possibility of obtaining judgment in the office without a hearing in court where there is no defence. In the Dublin Circuit Court, a session is held about every six weeks on the average. As against that, in the District Court, you have a session every week.

554. In Dublin?—In Dublin. So that so far as the metropolitan district is concerned, our suggestion is that if the undefended contract debt-recovery cases up to £50 were given to the District Court, it would not overload the District Court, and it would relieve the Circuit Court to a degree out of all proportion to the extra burden that would be placed upon the District Court, on account of the difference in the number of sessions. The actual extra time involved in hearing a debt case of £50 as distinct from a debt of £12 or £15 is practically negligible. The proofs are practically the same in either case.

555. Would it mean in Dublin a very large increase in the business of the District Court?—I do not think so. In one sense it would, of course, but in another sense it would not. We discussed it amongst ourselves and our conclusion was that there might be a 10 per cent. or a 15 per cent. increase in the number of processes at any given session of the District Court if the jurisdiction went up to £50. Of course, if all the cases from £25 to £50 were transferred from the Circuit Court to the District Court it would mean a considerable increase—it is very hard to say what the increase would be—in the total volume of business; but I am looking at it rather from the point of view of congestion at any particular session, and that would be almost negligible. Of course the same members of our Association are practising in the two Courts; it would only mean that we would go to a different courthouse. But if the change were made, it would involve certain consequential amendments, one of which is this: If you are going to increase the jurisdiction in the District Court up to the old County Court limit, which would involve dealing with debts, say from £20 upwards, and if you are going to encourage people to go to that Court, rather than to continue to resort either to the Circuit Court or the High Court, you will have to give the District Court decree the same amount of efficacy as the Circuit Court decree has at present; in other words, you must allow it to be registered as a judgment-mortgage.

556. That is, a decree of over £20?— Yes, irrespective of costs—I mean a £20 debt—and you must also provide some machinery for equitable execution— garnishee, equitable receivership, and so on.

557. Then you would have to give the District Court the same procedure for carrying out its decrees that the Circuit Court has at present?—Well, we do not suggest that, because we see all sorts of difficulties in the way. We believe that we have discovered a way. We believe that that jurisdiction should be given to the District Court in the interests of the commercial community, and that in order to carry that out, the District Court decree should be made enforceable by a judgment mortgage or by equitable execution where the amount is over £20, so as not to put the creditor in a worse position that he is in at present. But we would make it a condition that any decree which is to be executed in any of these ways must first be registered in the Central Office of the High Court so as to secure publicity, and that, having been registered in the Central Office of the High Court, it may be turned into a judgment mortgage in the ordinary way, or if equitable execution is required, that that could be obtained in the court which has the machinery to grant it—the Circuit Court; that if you want that special form of execution you should go to the Circuit Court.

558. You should go to the Circuit Court with the District Court decree, the certificate that it was registered in the Central Office of the High Court, or whatever other documents are required, on an application for an equitable receivership or a garnishee?—Yes.

559. In a case of equitable execution would you be certain of getting into the Circuit Court quickly?—There again, we can only speak for Dublin. We know that in Dublin, and also in Cork, there is always a judge available.

560. That applies to all the evidence you are giving which is local evidence?—Very largely. I know that there is a desire for uniformity, but one has to compromise between uniformity and efficiency.

561. As regards the jurisdiction of the District Court in ejectment what is your opinion?—The District Court has no jurisdiction in ejectment on the title, and we do not suggest that it should have, but in the two types of jurisdiction which it has—overholding and non-payment of rent—the present jurisdiction is £27.

562. Is it not £26?—An amending Act was passed raising it to £27 to provide for the 10/- a week holding, which was a shade over £26. Our suggestion is that that should be doubled. Rents are going up, and if the limit were changed from £27 to £54, it would not mean that a very large number of extra premises would be brought in—certainly not in proportion—because as premises come out of control the rents tend to increase, and it would mean that, practically speaking, the same tribunal would continue to deal with these premises. The District Court is a cheap court; it is intended to be a cheap court, and most of the people, whether they are plaintiffs or defendants, who are concerned with ejectments nowadays, are people who have every right to quick and cheap justice. Our feeling is that the District Court is the proper court to deal with these cases.

563. Up to £54?—That is practically £1 a week. The tenement holding in Dublin that is rented at £1 a week now was probably rented at 10/- or 12/6 a few years ago.

564. Would that increase the business of the District Court very materially?— The number of ejectments in the Circuit Court in Dublin is not very great.

565. About 600 a year?*—I do not know, but I will take the figure from you.

566. Ejectments and rent cases were 1,881, that is, about an average of 600 a year in the Circuit Court?—Well, I am quite sure that a very large number of them were within the present District Court jurisdiction. I should think that the number of those ejectments between 10/- a week and £1 a week would be a small proportion of the total.

567. Do they taken any considerable time?—The average ejectment for overholding, I should think, takes about half-an-hour if it is defended.

568. Would that tend to block the District Court in Dublin?—I do not think so.

569. Although it only sits once a week for civil cases?—It sits once weekly but we suggest that ejectments ought to be taken on a day by themselves. What happens at present is that there are civil sessions on Tuesday. Perhaps I should not go into these questions, but I would like to clear up the matter. The Court has its civil sessions on Tuesday. It begins with undefended civil processes. It then takes undefended ejectments, goes on to defended civil processes and ultimately defended ejectments. In theory, all these are supposed to be done on Tuesdays. In actual practice, the Court gets some distance with defended civil processes and adjourns the others to an overflow sessions, which is held one or two afternoons later in the week. One result is that the landlords, tenants and witnesses in ejectment cases, generally spend Tuesdays in Court, and generally have to come back on, at least, one other afternoon before they are heard. Our suggestion is that ejectments should be taken on a special day, just the same as civil processes; to let ejectments start off with a clear field on one particular morning.

570. That applies only to Dublin?— Yes. In Kilmainham, where Mr. Reddin sits and deals with the greater part of County Dublin cases, he can get through all the business on one day a month— ejectments, civil processes and all the other civil business. We have about 120 of these civil cases every week in Dublin.

571. In the metropolitan courts?—Yes.

572. Have you any other observations to make on the question of the District Courts?—Except as regards procedure, where we have some recommendations about special default civil processes being extended.

573. We think that is a question of rules, and that we are not concerned with it at present?—It is a matter for the Rule-Making Authorities.

574. Will you come to the Circuit Court now?—We are unanimously against reducing the jurisdiction of the Circuit Court. We have had opportunities of discussing that.

575. In either contract or tort?—Our feeling is that the Circuit Court has never been tried out on account of the absence of rules. If the Circuit Court had got its rules when the District Court got a code of rules, we do not believe the arrears that now exist would exist, and we do not believe that there would be any cause for dissatisfaction in the working of the Circuit Court.

576. Will you explain that?—Take the contract debt—recovery side. The present position is that if a man enters a defence, and gets a debt case, in which he has no defence whatever, put into the defended list, he can tie up the creditor for quite a long time. I would not like to say exactly how long.

577. Until the case is heard?—Under present conditions that is quite a long time, and having been decreed, if he likes, he can cause an amount of further delay by means of appeal. If there had been rules in the Circuit Court—as under any conceivable system there should be— there would be a method of disposing of claims for liquidated debts in a summary manner, and the present position would not arise at all. Those cases would be heard, cleared off, and the court would have nothing to do with anything from the judicial end except bona fide contested cases.

578. That is, they would go to the undefended list, and be dealt with the first day of the sitting?—My suggestion is that anyone who has to draft Circuit Court rules would surely have to provide that in such cases of debt——

579. There would be a motion for final judgment?—A claim, as in a specially endorsed writ, for final judgment. If there was no defence, it would be dealt with in the office, and if there was a defence it would be dealt with on a final judgment motion. In the absence of rules, the Circuit Court has been simply a means of delay, so far as the ordinary debt case is concerned. That has caused a great deal of dissatisfaction, but the dissatisfaction should not be directed to the Circuit Court as an institution. It should be directed to the absence of rules. These are our feelings about that. I think I can speak for the whole Association in that matter.

580. As a matter of fact, are there arrears in the Circuit Court in Dublin?— They are not as serious now as they were some time ago.

581. Of course, one Judge was absent for a considerable time?—Yes.

582. Was another Judge appointed?— When Judge Roche was away Judge Gleeson was there.

583. In Dublin, you have the advantage of extra Circuit Judges?—Nearly all the time we have two Judges sitting, and occasionally three. We are not very much behind at present.

584. Do you think the provisions of proper rules would ease that?—Immensely. We have further suggested the diversion of small debt cases to the District Court, which would still further ease the position. On the tort side, if there were some simple form of pleadings, as there would be probably if the rules were in operation, from say £50 upwards, the Circuit Court would show up to greater advantage than it does, because people would go there, knowing what case their opponents were going to make, and would make up their minds to have their proofs ready beforehand. The temptation to look on the trial in the Circuit Court as a preliminary to appeal, whether on notes of evidence or any other form of appeal, would be largely removed. There is some justification for the view, in a court where there are no pleadings, that the hearing in court in the first instance is a trial in which you are going to find out what case the other man is really making. That should not be the case where substantial issues are involved. If Circuit Court rules were in operation, they would no doubt provide some machinery for getting at the other man’s case, and finding out what case he is making.

585. It may not be a question for us, as to what the rules should provide as to pleadings. Would you put a minimum limit to cases in which there ought to be pleadings?—Yes. We think in cases where heretofore there have not been pleadings—what you might call the lighter cases up to £50—there is no necessity for pleadings. I do not know whether the amount should be £50 or £100, but I think £50 sufficient.

586. Of course you are particularly favoured in Dublin in the matter of arrears, and that is largely due to the fact that you have deputy Judges?—Yes.

587. That would not apply in the country?—I do not know what the arrears are in the country; I have no means of ascertaining. I go to the country occasionally and appear in Circuit Courts, but whenever I do it is in a case specially fixed. I do not know very much about the sufferings of my brethren in the country, except what I hear at lunch.

588. I only want to emphasise that we are only dealing with the Dublin Association now?—Yes, and we profess only to throw what light we can on Dublin conditions. I do not know whether the present draft rules are a subject for any observations.

589. Only for very general observations?—We have seen them.

590. I do not think the Committee has? —I do not suppose we should have seen them either. We did, and we think the scale of costs in cases over £50 in the Circuit Court amounting to £9 or £9 10s. and his outlay, for a solicitor for fighting a record in which anything up to £300— or by consent an unlimited amount—may be involved, absolutely outrageous.

591. That is the scale?—As at present suggested, that is the scale.

592. With reference to the Circuit Court, would it be a wise thing to give the plaintiff the option in contract cases of selecting his tribunal; that is, the High Court or the Circuit Court?—We have no objection to that, within limits. What I mean is, we think it is unfair if a plaintiff brings a very small case in the High Court. We do not think he should be allowed to do it, and if he does he should be penalised in some way for doing so.

593. What limit do you suggest? You said you would not object provided there was some limit?—It is very hard to say what the limit should be. Supposing the District Court had jurisdiction up to £50 as we suggest, and special default procedure which enabled judgment to be obtained in the office, there is no reason why a creditor within those limits should want to go to the High Court. The only reason at present for a creditor up to £25 wanting to go to the High Court, rather than to the District Court, in the city of Dublin would be that the High Court judgment can be enforced in several ways that do not apply to the District Court decree. But so far as speed is concerned he can get his judgment more quickly in the District Court.

594. That is a limit of £50, increased as you suggested from £25?—Yes.

595. So much for the jurisdiction of the Circuit Court. On the question of appeals from the Circuit Court, what are the views of your Association?—On the vexed question of the appeal from the Circuit Court, our Association is unanimously of opinion that the present system is most unsatisfactory and needlessly expensive. The Circuit Judge should have power to state a case on his own initiative or at the request of either party (including appeals from the District Court), and, as regards re-hearing, the parties should be entitled to present an agreed statement of facts and call witnesses only on matters in dispute. It would be unfair to expect a Circuit Judge to take anything like a full note of the evidence, and we suggest the retention of the official stenographer, who will take down the evidence, but will only transcribe such portions thereof as he may afterwards be ordered by the judge or the Appeal Court to transcribe, or which the parties or either of them may require and pay for, or which may be required for a prosecution for perjury.

Order XXIV. of the High Court Rules and the relevant sections of the Courts of Justice Acts should be amended accordingly.

Subject to the foregoing, the appeal should be a re-hearing on oral evidence before one High Court Judge, with a further appeal where the claim exceeds £50 to the Supreme Court by leave of the Appeal Judge or the Supreme Court. We suggest that the High Court Judges hearing Circuit Court Appeals should sit in only one, or at most two, towns in each Circuit, Dublin to be the venue for the Eastern Circuit as well as the Dublin Circuit. The particular towns in other Circuits would be determined by transit facilities, and we do not care to make any recommendation for any Circuit other than the Dublin and Eastern Circuits.

I should say that we had a good deal of discussion about the matter, but neither my colleague, Mr. Brady, nor myself is quite satisfied as to the result of the discussion. The views that were put forward are set out, roughly speaking a complete re-hearing on oral evidence before one High Court Judge.

596. By one Judge?—Yes, but I should say that both of us, and probably the Association, think the matter should be further discussed. We received the invitation to give evidence only a couple of days before Christmas and had not the opportunity for discussing it as we would like. There was unanimity about everything else, which was very satisfactory. On this particular subject, I think we would like to have further discussion.

597. Can you say you are speaking for the majority in the views you are going to put before us?—I would not like to say so, because I have not really had an opportunity of discussing it with them.

598. We will take it as your personal view—I do not know what your colleagues’ view is?—He agrees with me— we discussed it at great length.

599. We shall take it then as the personal view of you two gentlemen and of an uncertain number of others?—Yes, of our colleagues. Our feeling is rather that the re-hearing of the larger cases say from £50 up, should not be allowed and that it is not called for. We would be inclined to recommend that in those larger cases there should be only two possibilities of reforming the judgment of the Circuit Court; one, an appeal on law, and we suggest several methods of bringing that appeal before the High Court: case stated, an agreed settlement of facts and so on, and the other, a new trial motion. We suggest that there is no hardship in that, because under the old system every case in which over £50 was involved had to be brought in the High Court, and the only possibility of an appeal from the High Court was an appeal either on the law or by way of a new trial motion. The old County Court system of appeal by re-hearing, which we still have from the District Courts to the Circuit Courts, is a form of appeal which can only be justified in small cases from courts of—well, let me say, less dignity, at all events, and weight than the Circuit Court now is.

600. Is your view and the views of those for whom you speak in any way influenced by the fact that you have a peculiar position in Dublin in having the Bar beside you—that you can get counsel here in any case; one of the sittings is in Green Street, and the other in the Castle?—Very often one in Green Street and one in the Castle and sometimes both in the Castle.

601. Will they all be in the Four Courts when they are rebuilt?—I believe the civil court of the District Court will be in the Four Courts. I have no doubt the Circuit Court will be there and of course the High Court.

602. So that practically you will have any counsel there with the Library close by?—In the Circuit Courts in Dublin in actual practice counsel are brought into a large proportion of the cases, but not by any means into all of them.

603. Into the substantial ones involving legal argument?—Most of them. A good deal depends on the financial condition of the parties to the action in that connection. Some very substantial cases have been argued in the Circuit Court in Dublin without counsel. If you want counsel, you can get counsel without any difficulty.

604. Under the existing law, under the Courts of Justice Act, 1924, there is an express appeal on fact?—There is.

605. Do you think there ought to be an appeal on fact in every case or ought it to be confined to cases under £50?—It is rather hard to justify giving an appeal on fact from the same tribunal in the small case and refusing it in the large case. I do not think any logical grounds could be found for that. But there is no appeal on fact in the County Court in England, which does not profess to be anything like as important as our Circuit Court.

606. There is no appeal on fact in the English Court—there is no appeal too without leave on a question of law up to £25?—Yes.

607. Beyond that the judge must state a case if necessary on law; do you think that would satisfy the Dublin litigant?— The Dublin litigant on the whole is a rather reasonable type of litigant.

608. More reasonable than the country one?—Plaintiffs on the whole, I think, are. I am talking now more of the commercial end of the work—on the whole I think they are. The defeated litigant is never a very reasonable person either in the country or the city.

609. If your suggestion was carried out would there, in your opinion, be an effective appeal on fact in any case over the £50?—After all, the nearest thing that is required to an appeal on fact is a new trial motion. If the judge goes wrong in the conduct of the trial, let the case be tried again.

610. Or if a jury go wrong?—Yes, or if a jury go wrong.

611. You know the existing rule of practice as to that, that in order to get a new trial the verdict must be against the weight of evidence, or, in the case of a trial without a jury, that the judge must have drawn wrong inferences from the facts?—Yes. We are inclined to think that is quite sufficient.

612. Do you think it is an effective appeal on the question of fact in the case?—Should there be an appeal now? That is our feeling. Should there be an appeal from a judge of the attainments of a Circuit Court Judge on fact? The issues will be properly knit when you get the rules, because you will have some form of pleadings and some effective form of discovery, and the people will come into court knowing what they have to meet.

613. On the question of whether there should be an effective appeal on fact in cases above £50?—Not above £50. I find it a bit difficult to see how you can have it below and not above. You may justify it on the grounds of the different procedure. But the re-hearing involves a great deal that ought to be avoided, if it can be avoided. It involves putting all the people in the box again and the possibility of attempting to improve on the evidence given in the Court below. It involves bringing people, if not to Dublin, which I think is out of the question, at all events, to one or two central points in the circuit, which means expense and delay, and the advantages to be gained by it are problematical. I do not know how far the analogy of what is done in other countries would be considered, but I do not think there is any other country in which there is an appeal by way of re-hearing on oral evidence. Off-hand I cannot think of any that I have ever come across in the course of rather limited reading on the subject. I was talking to a distinguished member of the District Court Bench within the last few days who has made something of a study of comparative jurisprudence and he said there has never anywhere been anything like our system—that is a rehearing on oral evidence.

614. Have you any opinion of your own on whether that appeal by way of re-hearing on oral evidence was satisfactory in the country here?—It gave satisfaction I am told.

615. Did it satisfy the litigants?—Yes, I was going to say that. I believe it does satisfy a lot of litigants. I suppose, in so far as they look on a good day’s argument and litigation in Court as an entertainment, that two days of entertainment is better than one, but of course there is another end to that—the financial end.

616. I take it you would be in favour of the Circuit Court having power to state a case?—Decidedly.

617. Apart from appeal altogether?— Yes, apart from appeal altogether.

618. You also said that a case might be sent forward, not on the initiative of the Judge, but on the initiative of the parties, if they agree on the facts?—Yes.

619. That is like the old special case which you are not old enough to remember?—I have heard of it. In a rent case in the Circuit Court I was very disappointed, and so was my opponent, when we found we could not do that. Then there is the question of notes. We do not suggest doing away with the official stenographer. We feel that the official stenographer can be a great help to the judge and a great safeguard to the interests of justice. What we do object to is the appeal on the stenographer’s notes. We think it is quite a good thing that the evidence should be taken down and be available, if the judge, or the parties at their own expense, or the Attorney-General, in the event of a prosecution for perjury later on, requires the record of what the witness actually said in the box. What we do object to—as I think everyone does—is the present system of hearing an appeal on a question of fact grounded upon the shorthand notes which are usually, I think, a fairly full record of the evidence taken, but give no idea as to how the witness gave it.

620. Your Association is unanimous in that?—I can say definitely that they are. The only thing that we give on our own authority, as distinguished from the Association, is the view as to the methods of appeal which is rather modified as compared with what is in the memorandum.

621. Have you got any views on the question of a further appeal beyond the appeal to the High Court?—We suggest that in the larger cases over £50 there should be a further appeal to the Supreme Court by leave of the Appeal Judge, or by leave of the Supreme Court.

622. In addition to his power of stating a case?—Stating a case would be by the Circuit Court Judge.

623. Has not the High Court Judge the right to state a case now?—He has. I have not looked into how far he is compelled to state a case.

624. You could not compel him to state a case?—That is just it. The alternative appeal by leave of the Supreme Court would want to stand.

625. That is, you would first apply to the Judge on appeal from the Circuit Court for leave to appeal to the Supreme Court?—Yes.

626. If he refuses, you could go to the Supreme Court?—Yes. A lot of substantial questions of law are apt to come, and probably will come, in future from the Circuit Court and the way to the Supreme Court ought to be open, within limits.

627. You put the limit at £50?—Decidedly. I think in the cases under £50 there ought to be a final decision.

628. I think I have dealt with the main points of your evidence. Perhaps members of the committee might like to put some questions to you?—I would like to say one thing in addition. We suggest a system of simplified pleadings in the Circuit Court. That is a unanimous recommendation from our Association. It has reference to cases over £50 and the originating process of the court. We suggest it should contain as full particulars as are given in a High Court summary originating summons which, after all, is a pleading, and that a defence, which should be delivered within ten days after service of the originating process, should state specifically and informally the nature of the defence relied upon. We want to get away from the strict rules of pleading and give reasonable notice.

629. That is, whatever document originates the case in the Circuit Court should have sufficient indication of the issues?—Yes. The point is that you should not simply find that £300 damages are claimed for negligence; we should know what the negligence was, where it occurred, and out of what particular duty it arose.

630. Those are the particulars you used to have to call for under the old system? —Exactly. Then there should be some analogous provision for the defence.

The amalgamation of County Registrar and Sheriff is a thing that we also dealt with. We have had no experience yet, fortunately, in Dublin; it has not arisen. We are as unanimously opposed to that as we can be. Of course it is in the Court Officers Act, but we strongly object to it. The amalgamation of Court messenger and summons server—this we suggest should be carried out.

631. Chairman.—That is a matter of Court procedure and it is outside our scope altogether. Perhaps your colleague might like to add something?

Mr. Brady.—There is nothing I would like to add.

632. Deputy Wolfe.—Do I understand Mr. O hUadhaigh, that the views of your Association as regards appeal are properly or accurately expressed in the précis which reads:— “. . . . the Appeal should be a re-hearing on oral evidence before one High Court Judge with a further Appeal where the claim exceeds £50 to the Supreme Court by leave of the Appeal Judge or the Supreme Court”?

Mr. O hUadhaigh.—That is the memorandum which was actually adopted by the Association and which, I believe, if they had more opportunity for discussing the matter, would not stand in that form.

633. Is that their view as expressed by their resolution?—That is so.

634. Do you not think that they are rather unfortunate that their two witnesses should hold personal views in antagonism to the resolution which they were sent here to support?—I tried to make it clear that we were only speaking for ourselves in putting forward that view. We believe that if they had further opportunity for discussing the matter they would have modified their view.

635. In other words, your Association of 70 members had not their minds properly made up when they passed the resolution?—They appointed a committee.

636. Speaking for the other 68 members, do you not think that some of them have the subject sufficiently in hands to be able to express their opinion?—I do not pretend that the two members sent here to put forward the views of the Association are entitled to put forward their own views as anything but their own views.

637. You have suggested the English procedure as one that we might look at. Do you think appeals in the English County Court have been a success or have you enquired?—I have had no means of knowing.

638. Have you ever had experience of an appeal in an English County Court?— I have never had.

639. If you had, I do not think you would have touched on that matter?—It seems to have stood for a very long time in a very wealthy country where there is an enormous amount of litigation.

640. I am sure you would be surprised to hear English Judges expressing their disapproval and regret that they could not reverse by reason of the statute?— That may be so.

641. In an English County Court I had two appeals and I heard the Judges expressing their regret that they could not reverse. As regards your own individual views and your colleague’s views on the question of appeals, you suggest a new trial motion?—Yes.

642. Who is going to re-try the case?— In some circuits——

643. Take my own area now—the Cork area. Who is going to re-try the case?— Probably the same Judge. He would have the advantage of reading the evidence and considering the points put forward by those who considered the judgment unsatisfactory.

644. Do you not think on reflection that that suggestion of yours is not quite sufficient?—It would be much easier to work it in an area like Dublin where you would always probably have two Judges.

645. An alternative Judge?—Yes.

646. It would not work anywhere else. Perhaps it may have dawned on some of your Committee that it was obviously absurd. It was pointed out to the Committee that the present system of appeals was too expensive on the ordinary litigant. Am I not right in saying that your remedy would not get rid of the question of costs but would leave them at least as high as at present?—I do not know that the costs of a long argument, for instance, are necessarily as high as the costs of reading the present stenographer’s notes at tremendous length, commenting on the fact as well as the law, and paying for the notes. The notes have to be paid for.

647. On the new trial motion it is customary to read the notes of the evidence in the court below?—It is.

648. Then that portion of the expense would still be maintained?—At any rate the Judge’s note in the court below, which is commonly read, is very much shorter than the stenographer’s note.

649. Is it not clear that the system you suggest would leave the costs where they are, at least, if they are not increased?— I do not think it could possibly increase them. Even if it left them where they are and gave a better system of appeal there is a lot to be said for it.

650. Certainly it will leave the costs where they are?—I do not admit that.

651. Will you suggest to the Committee how it would reduce them?—First of all, you do away with the expense of the notes. I paid as much as £15 for notes in a case.

652. How would the new trial motion get rid of the notes?—Suppose it were the Judge’s notes as it usually has been in the past, in ordinary new trial motions they do not cost anything like that.

653. Have you considered the extra time a Judge’s note would entail and the additional Circuit Court Judges who would require to be appointed? If a note were taken by a Circuit Judge as by the old High Court Judge the trial would necessarily be much slower than at present?—We have suggested a way out of that. We have suggested in our memorandum that in dealing with the official stenographers it would be unfair to expect the Circuit Judge to take anything like a full note of the evidence. We suggest the retention of the official stenographer who will take down the evidence but will transcribe only such portions as may be ordered by the Judge. In this case the Judge would ask the stenographer only for the portions of the evidence he would require. He would have the stenographer beside him with his shorthand notebooks and he would be able to get from him the particular portions of a witness’s evidence he might require.

654. In the court then they would only have such portions of the evidence as the Judge might think necessary?—The apellant would have power to call for the whole transcript.

655. Do you not see that an appeal on such lines would be a farce?—They could call for a full transcript of the notes.

656. It would mean an additional hearing and additional costs?—Not necessarily. If the parties found that the Judge’s notes were not sufficient they could call for a full transcript.

657. You suggest that in cases up to £50 inclusive there should be no pleadings?—Yes.

658. That is the general opinion of the profession?—Yes.

659. Both branches of the profession? —I think so.

660. As regards the particulars of claim you suggest more particulars should be provided for by statute. Is not that rather a matter for rules?—Where do you get statute in this recommendation? We suggest the originating process of the court should contain full particulars and so on, but we do not suggest how that is to be provided for.

661. Have you not in practice found that the old County Court rule of serving notice requiring particulars gave you all the particulars you wanted and cost nothing?—That is quite true, but sometimes you find people are not ready to comply. If you get the thing in the originating process right at the beginning of the proceedings you know where you are straight away.

662. Where is the Circuit Court Judge then? If he finds a plaintiff who has not complied with a notice requiring particulars, do you not think he would make the plaintiff dance?—He probably would, but in the meantime you have arrived at the trial.

663. Up to the present time has there been any serious inconvenience found in the Circuit Court by reason of the absence of pleadings?—I think the tendency produced by the absence of pleadings has been a tendency in favour of having the case tried over again with the idea, if necessary, of bringing more evidence on the appeal.

664. Under the old County Court statutes, if I remember correctly, there was a statutory provision as to the swearing of all affidavits required for the County Court before a Justice of the Peace?—Yes.

665. The Rules for the District Court have taken that away and provided that the affidavit must be taken before a Commissioner for Affidavits?—That is so.

666. Have you considered the Rule in question? It is in direct conflict with the old County Court statute?—The alternative suggested is to swear an affidavit before a Peace Commissioner.

667. Would you approve of that?—Apparently there is no power for a Peace Commissioner to swear an affidavit.

668. A statute can give him that power?—It can.

669. Do you not think it would be advisable in justice to a poor man who has to go, say, 25 miles to look for a Commissioner for Affidavits?—I think a Commissioner for Affidavits should be within reasonable reach. I would suggest he should not be more than five miles distant. I think if a man has to go further for a Commissioner for Oaths there should be provision for making an affidavit before somebody else. Delays are caused owing to journeys of ten miles or fifteen miles being necessitated.

670. Do you know there are portions of Saorstát Eireann in which people have to go twenty-five miles or thirty miles to find a Commissioner for Affidavits, and do you not think that is unfair?—It is a gross hardship.

671. Do you not think it should be put right, even if it took a few shillings out of the pockets of a Commissioner for Affidavits?—It could be put right by increasing the number of Commissioners for Affidavits. That could be done by a selection of Peace Commissioners for Commissionerships of Affidavits in remote places.

672. That opens up a wide question to which there could be objections. A Commissioner for Affidavits charges a fee for the affidavits.

Do you not think that there is at present a very serious difficulty in bringing proceedings in the District Court where the remedy may lie alternatively in contract or in tort? Do you not think, going back on your recommendations, that if it were possible to bring in an amending section providing that where the remedy might lie alternatively in tort or in contract, it should be increased to £25?—I am sure our Association on that point, if it were put to them, would take the view suggested. I have had it myself in small motor cases.

673. As to the question of jurisdiction I assume your Association is unanimous as to Circuit Court jurisdiction?—Yes, it is absolutely unanimous.

674. So it is, too, in the southern law circuit. But apart from that, take the case of a plaintiff who brings an action in tort and recovers, say, £100 damages, would you give him High Court costs, or say it was an action that ought not to be tried in the High Court? Have you considered that?—I have not considered it sufficiently to be able to answer.

675. You suggest that the absence of Rules causes delays in the Circuit Court? —Yes.

676. Did you read the Rules that Lord Glenavy’s Committee considered?—I read two or three sets of Rules that have been drafted.

677. The original ones?—Yes. That was a very long printed set of Rules.

678. If these Rules had been sanctioned, do you think they would have increased or reduced the delay in the Courts?— There would have been very little difference between the Circuit Courts and the High Court as regards procedure. You would have had to appoint a Judge for the Circuits for the dozens of interlocutory applications.

679. The inevitable effect of these Rules, if passed, would have been to increase the delay in the Circuit Court?— I think so.

680. There is no doubt the effect of the Rules, if passed, would be to increase the cost threefold?—Probably. But the absence of Rules does not necessarily mean the absence of that particular set of Rules.

681. The Committee has to consider this apart from the views of our profession. Do you not think that the rejection of these Rules was a step in favour of the community?—It was. I do not think you will find anyone who read them taking a different view.

682. They were impossible?—They were.

683. You suggest that jurisdiction in ejectment for overholding and non-payment of rent in the District Court ought to be amended so as to bring in all tenements up to the yearly rent of £54. You remember that under the Courts of Justice Act, 1924, it was held that there was jurisdiction granted as regards a weekly tenant for one week’s rent payable in advance?—There was a case to that effect mentioned, but I do not know whether or not it was decided.

684. It was decided by Circuit Judges? —We have had it held in Dublin that you had to have a yearly tenancy. According to the contract section in Deasy’s Act, non-payment of rent did not apply except to yearly tenancies and leaseholds. That has been uniformly held in Dublin.

685. The opposite has been held more than once. However, that has been provided for by statute now. You would not restore ejectment for non-payment of rent to weekly tenancies?—No. My only suggestion in that respect is, where you had a right to go in for ejectment for non-payment of rent, that up to the particular limit of £54 you should be entitled to go into the District Court, and not that you ought to extend ejectment for non-payment of rent to any tenancy to which it does not now apply.

686. Deputy Wilson.—With regard to Commissioners for Oaths, is it not a fact that every District Court Clerk is a Commissioner for Oaths?—I do not think so.

687. If you were to make the District Court Clerks Commissioners for Oaths, would not that meet the difficulty?—That would tend in the right direction.

688. Would it not be a solution?—I do not know that it would be a complete solution. Some District Court Clerks have big areas to cover and they have to travel around. Affidavits cannot always wait for the arrival of District Court Clerks.

689. After all a county is not such a big place?—No, and, as I have said, what you have suggested would be a step in the right direction.

690. Senator Hooper.—There is one point which I would like you to elucidate further. In speaking of cases common to the jurisdiction of the Circuit Court and the District Court, you advocate giving the plaintiff the option of selecting his tribunal without prejudice to him as regard costs?—Except, as suggested in the Memorandum, where they both reside in the District Court area.

691. Will you explain that further?— The idea is that a lot of business people feel that in the Circuit Court the jurisdiction is more favourable to a creditor than it is in the District Court. Let me give you an instance. A man owes, say, £20 to his shopkeeper in County Mayo and he owes £20 to a merchant in Dublin. If the creditor goes into the District Court, it is in the court in Mayo he must bring his process. If it is in the Circuit Court and he can show the contract for the sale of the goods was made in Dublin, he has the choice of the Dublin Circuit Court. It is for the preservation of that right in the case of shop debts and trading debts that we suggest the option of the Circuit Court or the District Court. It is not the idea that a man should have the choice of the Circuit Court or the District Court each sitting in the same town.

692. Would you give him the Circuit Court costs?—Yes.

693. Would you apply that in cases common to the jurisdiction of the Circuit Court and the High Court?—If you mean in cases under £50 or £25 I do not think I would.

694. Take the present jurisdiction of the Circuit Court?—It is £300 at present. I would be inclined on the whole to say that from £25 up I would give the choice as between the Circuit Court and the High Court, although there are not as strong reasons for it as there are in the other case, viz., as between the Circuit Court and the District Court. If the defendant feels that the case should not be tried in the High Court he can ask the High Court at his own risk to transfer it.

695. Chairman.—If he shows a defence?—Yes.

696. Deputy Little.—You say that you are fundamentally opposed to the amalgamation of the offices of County Registrar and Sheriff?—Yes.

697. Will you give the reasons for that, as the memorandum may not go on the records?—Our feelings about that in Dublin can be summarised in this way: That the County Registrar is the registrar of the Circuit Judge. He is his constant companion, and in certain respects his adviser and secretary. The relations between them are of a very close and confidential nature, and we feel that a man who is likely to be impleaded for not executing our decrees ought to be someone not on such quite intimate terms with the judge before whom he has to be impleaded. That is one side of it. The other side is from the County Registrar’s point of view. The County Registrar has a great many duties cast upon him. They are duties which are, to our mind, incompatible with watching what court messengers are doing all over his bailiwick in the execution of decrees. It would be almost impossible for him to exercise proper vigilance over the court messengers, and, at the same time, do the work of County Registrar in the Circuit Court office. The duties of sheriff are, to our mind, sufficiently onerous and important to call for a separate official.

698. Chairman.—That would require an alteration not in the Courts of Justice Act but in the Court Officers Act?—Yes.

699. You said that you would limit the alternative jurisdiction of the High Court and the Circuit Court to cases not exceeding £25. If your idea about increasing the jurisdiction of the District Court were given effect, you would put that figure at £50?—Yes. I would make it £50 in those circumstances.

(The witnesses withdrew.)

Mr. J. S. Gaffney, Solicitor, Limerick, called, and examined.

700. Chairman.—You are a solicitor practising in Limerick?—Yes.

701. You are practising under the firmname of P. S. Connolly and Co.?—Yes.

702. How long have you been in practice?—Since 1890.

703. You are President of the Limerick City and County Sessional Bar Association?—Yes.

704. May we take it that you represent their views here?—Yes.

705. What membership have you in your society?—Thirty-seven for city and county.

706. Solicitors?—Yes.

707. You have had a very considerable practice in all the local courts in Limerick, in addition to your practice in the High Court?—Yes.

708. You had the old County Court practice as well as having practice in our own Courts?—Yes.

709. You also represent the Incorporated Law Society?—I have been a member of the Council for a great number of years and for the last seventeen years or so I, alone, have represented Munster on the Council of the Law Society.

710. What is your experience of the working of the District Court?—Most satisfactory in every aspect.

711. Have you any special view that you wish to put before the Committee on this subject of the District Court?— None, except what I expressed in my précis of evidence, and I think I merely expressed approval. We are quite satisfied with the existing conditions. The only thing I would like to mention is—it is a detail and may not be part of your work—that we would prefer if in a large county like Limerick the District Courts for the hearing of debt cases were more concentrated.

712. Locally concentrated?—Yes; in the county. At present there is a considerable number of places where there are courts held, and we would like to have them reduced to about five.

713. Would that inconvenience the public in any way?—Quite the contrary, I think. Imagine having to go out a considerable distance to a place like Drumcollogher, where there is no means of conveyance except a man has a private car. Then there is the cost of bringing out witnesses from the city of Limerick—a distance of about forty miles.

714. Is there any other observation you would care to make about the District Court? Although we have the précis of evidence before us, that will not be published. It is only the evidence which you give before the Committee that will be published?—That is all I wish to say. We are anxious, however, to have the new Rules of the District Court put into operation. They have been passed for some time. I was on that Committee myself. They are waiting almost since last June.

715. Have they received the approval of the House?—I am not able to say definitely, but I think not.

Deputy Wolfe.—They have not been laid before the Dáil yet.

716. Chairman.—Coming to the Circuit Court, what are your views on the jurisdiction of the Circuit Court?—I should not alter the present jurisdiction at all except in the case of contract. Where the sum is a liquidated sum of debt, I would be in favour of concurrent jurisdiction in the High Court, viz., for sums not beyond the jurisdiction of the District Court—£25; but not if a solicitor acting for the plaintiff is to be penalised in costs. There is a graduated scale which used to obtain under the old regime by which the costs toned off as the amount decreased. There is no reason, so far as I see, why a similar practice should not obtain if this suggestion of mine is adopted. We all feel in Limerick that concurrent jurisdiction in the High Court for the purpose of recovering liquidated demands on debt is desirable because sometimes the Circuit Court may not be available, or the Judge may be travelling. Our Judge has to travel through three counties and sit in seven or eight towns.

717. Would you confine that to cases such as were formerly the subject of motion for final judgment in the High Court?—Yes.

718. That is what you mean by a liquidated demand?—Yes. The jurisdiction in tort has given the utmost satisfaction. Not alone have I had cases within the limit of £300 but, by consent, I have had several cases in excess of that amount. These cases have been tried cheaply, quickly and satisfactorily. The results have pleased everybody.

719. Were those cases which involved issues of fact or cases which involved issues of law?—Both fact and law. We had one very important case. It was an action by a man who had premises adjoining—premises occupied as a garage by Messrs. Siemens-Schuckert, the German firm. Through some accident, a lamp was knocked down in the premises of Siemens-Schuckert and set fire to the premises adjoining belonging to the man of whom I have spoken. That action was bristling with law points as to liability and so on and the facts were also complicated. Of course, we had counsel engaged. Some of the counsel who come down to us are tip-top and give the utmost satisfaction. We have nothing to complain of in that way at all. The hearing of that case did not even occupy a day. The Judge reserved his decision and delivered it in about three or four days. That case was brought to the Court of Appeal and it was decided as the Circuit Judge had decided it. He gave a decision in that case over the limit of jurisdiction by consent of all the parties.

720. Have you anything in the nature of a barristers’ local Bar?—Yes, and a very good one. Some excellent juniors come down and they obviously take the greatest trouble with their cases. We have a system in Limerick—I do not know if it obtains elsewhere—by which the registrar and the Circuit Court Judge prepare an agenda for each circuit. Special days are assigned to special cases. A long list is made out so that we know the day our cases are to be heard and we can bring in witnesses. Counsel is written to beforehand generally by the solicitor who wants to employ him. He says: “I shall require your services in this number of cases.” He is enabled by that means to read up in the Bar library the points bearing on these particular Civil Bills. The system is very satisfactory. Some of the solicitors have excellent libraries and they are always available to members of the Bar. We have a local library but it is not a very good one.

721. It is not kept up to date?—No.

722. Is that all you wish to say on the question of the jurisdiction of the Circuit Court?—Yes.

723. We come now to the question of appeal from the Circuit Court?—We are unanimously against the present system of appeal and have been against it from the beginning.

724. For what reasons?—Delay and the impossibility, in my opinion, of properly re-hearing a case. Every appeal, I think, should be a re-hearing not merely on stenographer’s notes.

725. I omitted to ask you one question a moment ago. There is at present an absolute right of appeal on fact under the Courts of Justice Act. Do you consider that an appeal on a pure issue of fact is necessary?—I would have an appeal on both fact and law.

726. You think the appeal on fact should be maintained?—Certainly.

727. You have told us that you think the present system of hearing appeals is not satisfactory. Have you any other reasons to offer than those you have already given?—Where there is an appeal, I am in favour of having it a full appeal, de novo, with the entire evidence given viva voce.

728. Before what kind of Court?—If possible, I should like to have a Court similar to the old Court of Assize.

729. With a single Judge?—I would rather have a single Judge than no Judge.

730. But you would prefer two Judges? —Yes.

731. Is that because the jurisdiction of the Circuit Court from which these appeals would be taken, is now much larger?—Yes.

732. And the issues are more serious? —Yes.

733. Do you think that an appeal such as they have in England or in Scotland on a case stated by the Judge would satisfy the litigant in this country?— That is practically on a question of law?

734. Yes?—I would not be satisfied merely with that but I would like that the Judge should have the power of stating a case.

735. You would not be in favour of appeal being only by way of case stated? —No.

736. Would that satisfy the ordinary litigant in this country?—No.

737. Does the present system satisfy the litigant?—No—far from it. Litigants do not like it at all.

738. On the question of the cost of appeal, how would the cost under the present system of appeal on shorthand writers’ notes compare with the cost if your idea were carried out and appeals were heard locally before two Judges?— Under the old system, except there was something exceptional about the case, the cost of appeal would not come to more than £10.

739. That was in the old County Court?—An appeal to the Assizes.

740. Would that include witnesses’ expenses?—I give £10 as a round figure to cover the ordinary cost. Exceptional expenses, like the expenses of engineers and doctors, would have to be added to that.

741. Have you a rough idea of what the cost under the present system would be? —I have my own experience but that is not the same as the experience of some others. I have heard statements that the costs were very high—sometimes £40 or £50. We have never had an appeal which cost more than about £15.

742. You have a very happy experience in that?—Yes, I have.

743. You are giving the opinion that you have the very best mode of appeal quite apart from the question of cost?— Yes. I cannot complain that the costs in any appeal I was ever in were too high. I have heard people state figures that were high, but I have never had anything like those figures. My particular cases did not involve such expenses as those that were mentioned, but perhaps the notes were not very elaborate.

744. Have you had any congestion in your Circuit Courts?—None whatever. I have seen it alluded to in correspondence in the “Irish Statesman,” but we have never had any such congestion.

745. But you have had serious delay in the hearing of appeals?—Yes, but that is a different matter.

746. They are very badly in arrears at the present time?—Yes, there are cases of my own that are 18 months waiting to be heard.

747. Is there any other matter that you would like to bring before the Committee on the question of the Circuit Courts?— No, except to impress upon you that the public are most anxious for the maintenance of the existing state of affairs. So far as jurisdiction is concerned, there is hardly a public body in Limerick city and county that has not passed resolutions in favour of the present state of affairs, and resenting any attempt to reduce the jurisdiction. The same applies to Cork, Galway, Wicklow, Tipperary, and so on. Carlow is the only county that, to some extent, is in favour of limiting the amount of the present jurisdiction.

748. How does the present system prevailing in the Circuit Court affect you if you require a sort of interlocutory motion from the Judge who may not be in town? —It is a bit awkward, but we seldom have interlocutory motions.

749. Have you any suggestions to make on that? You might at some time want to get a garnishee order or an equitable receiver?—We could get that done under the existing state of affairs. Our Judge resides in Limerick and he comes back there after sitting in outside districts.

750. You are favoured in the same way as we are in Dublin. The Judge lives there, but if your Judge did not live in Limerick you would have to follow him round and that would be a great inconvenience?—I do not think that garnishee orders with us are very numerous and you cannot strike a rule because of a very few cases.

751. Is a garnishee, as a matter of fact, possible in the Circuit Court at present?— I cannot answer that. I have never garnisheed for debt or applied for an equitable receiver.

752. Have you anything to say as to the system of registering judgments?— Yes, we are anxious some system should be devised to register them in the Circuit Court.

753. Would you go as far as the District Court?—No. They are too small. The District Courts are rapid in their action and the Sheriffs are good and, in addition, there is the law by which we can get a person imprisoned if he does not pay up—the Enforcement of Law Act.

754. There is no necessity for the central registration of District Court decrees?—No.

755. But there ought to be for the Circuit Court?—There ought.

756. You seem to have a system for fixing cases for hearing in your Circuit Court?—Yes. Before the Court commences, the Registrar and the Judge make out a list or agenda for each day, and with very few exceptions, the work put down for a particular day is done on that particular day.

757. Do they fix it with reference to the size of cases? Would you have a small and a big case fixed for the same day?—You might, and if the work of that day is not done in the day, it is carried over to the next day and finished before the cases fixed for that day are touched.

758. And of course there may be cases involving questions of law that would take considerable time and so put the list out of gear?—I do not think that often occurs.

759. You do not know whether that system of fixing cases applies elsewhere? —I have heard of it but I don’t know. I know it is very useful to us and especially to barristers who want to get back to Dublin.

760. Have you any views on what I might call alternative jurisdiction in the High Court and Circuit Court?—I do not quite follow.

761. Would you allow a plaintiff to come to the High Court with a case within the jurisdiction of the Circuit Court without penalising him?—No, I would not allow that in tort.

762. You would allow no procedure in the High Court for a case under £300? —In tort, no! The existing state of affairs is satisfactory.

763. In your précis you state, under the heading of “Practice in the Circuit Court,” “We are in favour here of the jurisdiction in contract being maintained at £300 but not so as to exclude the jurisdiction of the High Court in Dublin”?—That is as regards liquidated debts.

764. You confine it to them?—Yes.

765. That is you confine it practically to the motion for final judgment?—Yes.

766. Deputy Wolfe.—You referred to the fact that the old appeal system, which you support, would get rid of the necessity for an official stenographer?— Yes, that is only my own opinion. I do not see the necessity for a stenographer if you are to have a viva voce examination.

767. Have you at all considered the fact that the retention of the official stenographer would be very useful? You would have to keep him for criminal cases?—I think he would be very useful in criminal cases.

768. Would he not be also useful in civil cases?—I think he could be dispensed with.

769. Do you not think that copies of his notes would be useful in appeals, and would go largely towards defraying his expenses to the State?—I am thinking of the public, and I think they would object to the costs.

770. Chairman.—How are the shorthand writers paid at present?

Deputy Rice.—I think they get a retaining fee of £300 a year.

771. Deputy Wolfe.—It costs the State at present £3,600 gross and a net £2,500 or £1,500 a year. However, to find out the actual cost, you would have to take into account the figures, so far as they relate to the criminal jurisdiction, and you would have to take the increased revenue which the increased appeals would bring in, because if the new system of appeals is adopted, and something like the re-hearing suggested takes place, it would mean a large increase in appeals, and the net cost to the State of the stenographer would be very small?—There are very few criminal appeals. I do not know of any from the city of Limerick since the Courts were established. There may have been appeals from the County Limerick.

772. Senator Wilson.—On the question of appeals, you are in favour of the evidence being given over again?—Yes.

773. Was there not an objection to that system on the grounds that it increased perjury, that the evidence was trimmed for the second occasion?—I never heard that suggestion. There are some counties more addicted to perjury than others. Perjury, as we understand it, is very rare in either the county or city of Limerick. It is different across the border.

774. Chairman.—You are very fortunate. I suppose perjury occurs in the Circuit Courts as well as anywhere else? —Yes, but the amount is greatly exaggerated.

775. Deputy Rice.—You said you were in favour of appeal on questions of fact. You are aware that that was provided for in the Act of 1924?—Yes.

776. But that provision, for all practical purposes, has been a dead letter since the decision in the case of Lewin v. The Minister for Finance?*—Yes.

777. The High Court has taken that view?—Yes.

778. You seem to be particularly lucky in Limerick and you seem to be in a similar situation to that of Dublin?—Yes, in a sense.

779. You referred to a case that I know something about; I read the report of it. Are you right in saying that there was any question of law involved in that case? —I think so.

780. Was it a case where a man had a light in a garage and where the owner had refused to give the tenants electric light?—Yes.

781. Were Siemens-Schuckert the tenants?—No. They were the tenants or the owners of the premises that caught fire, and the fire spread from them to the adjoining premises of my client.

782. My recollection is that that case turned on a question of law and fact, namely, the admission of the man taking petrol for his engine; and that he was grossly negligent in putting a lighted lamp on the ground beside the petrol barrel from which he had taken the bung?—Yes.

783. Was it not then decided on a question of fact?—There was law in it, too.

784. Can you say if your recollection is right when you state that the case went to the Court of Appeal?—I think so.

785. I think not. I think that an appeal was lodged but that it was withdrawn?—That may be.

786. You state that you would not allow concurrent jurisdiction in the High Court with regard to sums under £300?—No.

787. Chairman.—Except in liquidated demands?—Yes.

788. Deputy Rice.—You would not even allow concurrent jurisdiction or a discretion to the Judge as to whether he should allow High Court costs or not?— For instance?

789. Take the case of a man who desires to vindicate his character in the most public manner, would you allow him to bring an action in the High Court where, let us say, the damages might amount to £50 or £100?—If he claims, say, £1,000——

790. The test is not what a man claims, but what he gets?—What he puts in his writ.

791. Suppose that a man’s personal character or the future of his business is at stake, would you prevent him from going to the High Court if he desires to vindicate his position there?—If he claims anything over £300, he would, of course, be entitled to go to the High Court.

792. A man’s position in the end does not depend on what he claims, but on what he gets?—But if he gets something less than £300?

793. Suppose a person has a claim for unliquidated damages he can bring it in the High Court at the present time. He can claim, £5,000, but what I am putting to you is that his position in the end depends on what he gets?—The defendant can apply to remit the case, but the plaintiff can say: “If I get damages in this case I am entitled to £1,000.”

794. Would you prevent a person from bringing an action in the High Court if the action is within the jurisdiction of the Circuit Court?—I would.

795. You are aware that at the present time an action of that kind can be brought in the High Court, and that the High Court Judge has a discretion as to costs: as to whether he will give High Court costs or not?—The defendant can apply to remit.

796. That is not the point. The trial Judge can say, “I will allow High Court costs in this case,” or he can say, “Having regard to the character of the action tried, I will refuse to give High Court costs.” Would you deprive the Court of that power?—No.

797. Then you are not definite and absolute in your statement that you would not allow concurrent jurisdiction? —In the case you mention, I would not.

798. Would you not think it reasonable that, whatever the jurisdiction of the Circuit Court may be, a litigant should always have the right to go to the High Court, with an absolute discretion to the High Court Judge to say whether the litigant should get High Court costs or not?—No.

799. You would not trust the discretion of the judges?—I would limit it as much as possible. If I had my way, I would not give a Judge of the High Court any jurisdiction as regards depriving a winner of his costs; of limiting them in any way or increasing them in any way. I would do the same in the case of the Circuit Courts. As a matter of fact, a Circuit Judge occasionally says, “I will give a decree for this amount, but no costs.” The Circuit Court Judge has no power to do that, but he does it.

800. You are aware that the limitation on the jurisdiction of judges as to costs formerly applied almost entirely to cases where the trial was by jury?—No, I am not aware of that.

801. You must be familiar with the rule that costs followed the event. Would you not allow the Judge the same discretion still in cases where the trial takes place without a jury?—No. At the present time we never have cases tried by jury in the Circuit Court.

802. You mentioned that the members of your local Bar are unanimously in favour of keeping the present jurisdiction?—Yes.

803. You are aware, of course, that that is not so in other places?—I am not aware of it, but I have heard it.

804. Are you aware that the first witness who gave evidence before the Committee on behalf of the Incorporated Law Society—their principal witness—did give that evidence?—I do not know.

805. Are you aware that there is a difference of opinion in the profession on the question of the extent of the jurisdiction but that there is practical unanimity as to the form of appeal?—I am certain that you will find odd members who, for instance, will differ with my views.

806. I would not call them odd. We have had an even division of opinion up to the present in the cases of witnesses appearing on behalf of the solicitors’ profession and we may have the same position again to-day?

Deputy Little.—I would remind Deputy Rice that what Dr. Quirke said was that the view of the majority was in favour of retaining the jurisdiction.

807. Deputy Rice.—I have the witness’s evidence before me and I do not need any reminder of what he said. That was not his statement. On the question of the form of appeal, I take it that you are entirely in favour of an appeal on fact as well as on law?—Yes.

808. Am I right in saying that is a form of appeal that the people understand?—I do not know whether they understand it or not, but they want it.

809. Under the old system when you had the circuits going around there were, I think, a substantial number of cases in which the Judge of first instance was reversed on questions of fact?—I am sure there were.

810. Would you think that if there were such a system of appeal now, that is to say an appeal by way of viva voce hearing, it would be an advantage to have two judges hearing the appeal instead of one?—Yes.

811. Do you think that the fact of the appeals being heard by two judges would give a certain amount of satisfaction to litigants?—They like to have the cases heard in open court, so that there can be cross-examination of witnesses.

812. On the question of the District Courts, you mentioned the inconvenience of going out to a place like Drumcollogher, which is forty miles from Limerick. But if you centralise the system and have fewer courts, will not the inconvenience work on the other side? If the court is held in a central place, the litigants and witnesses will have to travel forty miles in the other direction?—My suggestion on that would apply only to Civil Bills for recovery of debts. I am not so much concerned about the defendant who owes a debt.

813. But he might not owe anything?— The odds are ninety-nine to one against.

814. Senator Hooper.—You spoke of the local Bar. I think you conveyed to us that it was composed largely of men who go down regularly from Dublin?— Yes.

815. And you said it was a very efficient Bar?—Quite.

816. Does it include any senior counsel? —No.

817. Do senior counsel appear in Limerick as a matter of fact, now?—Senior counsel came down to do a case that I had about eighteen months ago. That is the only case I can remember.

818. Then I may take it the appearance of senior counsel is a very rare occurrence in Limerick?—Yes.

819. Do you think that is quite a satisfactory situation in regard to Limerick? —For the class of case that we have to dispose of in Limerick, it is adequate. If there was a big case coming on, then undoubtedly the solicitors would bring down some senior counsel.

820. But, as a matter of fact, they do not?—Well, I think Senator Comyn has been down.

821. You only mentioned the case that you had yourself about eighteen months ago?—Yes. That was my own case.

822. The argument has been advanced here that the present system would lead to a deterioration of the Irish Bar owing to the fact that young counsel going around to Circuit Courts, without the advantage of consultation with seniors and of seeing seniors at work would grow less efficient than their predecessors have been, and that eventually that would have an effect on the quality of the Irish Bar, and in time would lead to a deterioration of the judicial bench. The Committee would like to have your views on that?—I would agree with that. Sometimes nowadays it is really deplorable to see the raw and unfinished condition in which young members of the Bar come down from Dublin, compared to those who used to come in former years. My recollection is, that formerly when a young barrister got qualified he attached himself to and devilled for some years for a senior counsel or a junior counsel with a large practice. Having acquired some knowledge about heifers, springers, rights-of-way, fences and country matters of that kind that he was absolutely ignorant of before, he came down on Circuit and practised. But nowadays they come down, and it is really distressing to see how ignorant they are of the most common affairs of rural life.

823. But still you say that the Limerick Bar is an efficient Bar?—Yes, because the majority of them belong to what I may call the old regime.

824. But apparently you fear that in future there will be some deterioration?— Yes, unless they take more pains to inform themselves on matters such as I have referred to.

825. At any rate, the present system has a drawback as compared with the old system in at least that respect?—Yes.

826. And that is an argument against it?—I do not know how the public feel about that.

827. I think you also told us that a number of bodies in Limerick had expressed their satisfaction with the present jurisdiction?—Yes.

828. Would you give the Committee some details as to these bodies?—The Limerick County Council unanimously passed a resolution protesting against any alteration in the limit of jurisdiction for Circuit Courts as fixed by the Courts of Justice Act, 1924. Resolutions were also passed by the Limerick Corporation, the Limerick Ratepayers’ Association, the Limerick Chamber of Commerce, the Limerick Harbour Board, etc.

829. Could you tell the Committee what was the feeling in Limerick before the new Circuit Court system was established? Was there any demand then from the trading community, and, if so, what was the nature of it?—There was a demand, which had its origin in Dublin, by the Mercantile Association, to the effect that the County Courts were too slow, that there should be more frequent sittings, and that the method provided for the recovery of debts was not effective.

830. In respect to the jurisdiction?— In respect to the jurisdiction, there was a desire for increased jurisdiction in the County Court but it was not a very vigorous demand.

831. That seems to argue fairly well for the old jurisdiction?—Yes. I think the new jurisdiction was more an attempt to get rid of everything English as far as possible than anything else.

832. So that although there was not any substantial demand for the new jurisdiction, it has given tremendous satisfaction?—Undoubtedly so. They did not realise its advantages until they had experience of it.

833. There seems to be an extraordinary discrepancy between the cost of the Siemen’s case and what you say would be the cost in the High Court? In the Siemen’s case there were £25 costs and 8 guineas expenses, and in another £18 costs and £5 expenses.

833a. I think it would help if you could suggest in what way the like case brought in the High Court would bring the costs up to £150?—Possibly you would send a writ to counsel, a statement of claim to settle and then send the brief; the case might occupy two days and £150 would go nowhere.

834. Would you suggest that these are typical instances?—Yes, they are typical. We do not think that the solicitor’s costs are adequate, for whereas in an ordinary case the solicitor’s costs are much higher than counsel’s fees in a case where the costs would be taxed, in the taxing of these cases the difference between what the counsel and the solicitor receives is negligible.

835. Would you suggest the difference is an average one?—It is an average.

836. It would cost a man in a case of that kind at least more than £100 extra by going to the High Court?—Certainly.

837. That seems a very big figure?— Yes, and in addition, in all probability afterwards the plaintiff who wins a case will have to pay out of his winnings the solicitor who is up in Dublin five guineas a day and first-class travelling expenses from Limerick.

838. When replying to Deputy Rice on the question of concurrent jurisdiction for the High Court and the Circuit Court, there was a certain number of cases you were willing to exempt from your general rule that there should be no concurrent jurisdiction in the High Court?—That is in cases of damages for breach of contract.

839. Could you suggest any general principle that would guide us?—I think that the principle is sufficiently extended; namely, where the case is for a liquidated sum or a debt, you should have concurrent jurisdiction. In cases outside of that, they should go to the Circuit Court for trial.

840. Deputy Rice put some cases and you agreed they should have permission to go to the High Court?—Yes.

841. Could you give us any general principle which you think would guide us in this case?—Except in so far as I have given already, I could not.

842. Deputy Little.—With respect to the Junior Bar, is it your only criticism that they are not familiar with the everyday ways of rural life or that they do not know the technical things?—You can well understand that I do not like to criticise the Junior Bar, but some of them are not coming down as well-read, as well-cultured or as effective speakers in the ordinary manner of addressing court or pronouncing the English language as the old members of the Bar.

843. It is not merely a question of their being unfamiliar with the material of the cases?—If I might say so, the general tone is not what it used to be.

844. It came out in the evidence of Mr. Ryan that he thought the present system was such as would lead to an amalgamation of the professions. Have you considered the possibility of this development?—I have; I watch things as they go, and I am not in favour of amalgamation of the professions. I do not think that it would work.

845. Could you give some reason against it?—A solicitor, if he is a practising solicitor, will not have the time to devote to the proper study of a case of any magnitude. He will not have time to look up the authorities. He is not provided, as a rule, with an adequate library. A different mentality is required for a barrister than for a solicitor.

846. Does it not generally work out in America that you have partners, one of whom becomes an expert in law?—Yes. They practically call them counsel and solicitor.

847. You do not think that system would suit this country?—I do not think so.

848. You mentioned that the type of case before the Circuit Courts was of such a kind that the Junior Bar was quite adequate to deal with it. It was not necessary for senior counsel to come down. Under those circumstances, that would not seem an objection to amalgamation? —I am not in favour of it, and I do not know any of the practitioners are in favour of it.

849. You suggest that two judges would be satisfactory for an appeal?— Yes.

850. Would not that, having regard to the type of case, be an extravagance to the State? It would cost extra money?— I do not know; I suppose that it would.

851. Senator Comyn.—In relation to the District Courts, you stated that you would be in favour of a greater concentration of civil business in the various towns?—Yes.

852. Would you say in what towns in your county of Limerick the District Court sits?—Abbeyfeale, Drumcollogher, Glinn, Foynes, Rathkeale, Newcastle West, Kilfinnane, Ballyneaty, Hospital, Bruff, Kilmallock, Croom, and Adare. That is about all.

853. You say that if there was any concentration it would mean that the civil business transacted in two or three of these towns would be concentrated in one of them?—Yes.

854. That is to say that for the areas in West Limerick, you would say Rathkeale and Newcastle West?—Yes.

855. For East Limerick you would say Bruff?—Yes, and Limerick.

856. These are the four towns in which you would have a concentration of the civil business of the District Court?— Yes.

857. Are not these the actual towns in which the old County Court sat?—They are.

858. You referred to civil actions being tried at Drumcollogher. What type of action would that be? Would it be £15 to £20?—For debts under £25.

859. The average would be disputes between farmers, £15 to £20 cases?—Yes.

860. In the old County Court, what would be the cost of a decree in a case like that?—It would vary with regard to the amount.

861. I say £15 or £20?—I could not pin myself down—about £2 10s.

862. Suppose counsel was employed, it would be an additional guinea?—It would.

863. The outside limit would be £3 10s.? —Yes.

864. Of course, these sittings of the District Court at Drumcollogher occur, I suppose, once a fortnight or once in three weeks?—Or once a month.

865. There would not be many cases?— No.

866. I suppose one case of that description?—Three or four at the outside.

867. If a solicitor of eminence went out from Limerick to Drumcollogher to conduct that case, what would his fees to his client be?—Now.

868. Yes?—He cannot charge any greater fee than the fee in the schedule of costs.

869. Would a man of your eminence and standing go to Drumcollogher to conduct a case under five guineas?—If I took it up and defended it, I would have to go for the statutory fee. I would not ask any other fee.

870. Although you are a generous man, am I to understand that if a man from Drumcollogher came into you with a £15 case and wanted you to go out to the next District Court, that you would give up your business in the city of Limerick and go out for him at the scaled fee?— Certainly, if I took up the case.

871. Would you take up the case?—I probably would not take it at all.

872. Then a litigant having an action at Drumcollogher could not avail of your services?—Under these conditions, no.

873. But under the old system, not alone could he avail of your services, but of the services of a junior barrister for £3 10s. 0d.?—Yes.

874. In reference to the Circuit Courts, your evidence, as I understand it, is that in all contested cases both in contract and tort where the amount recovered is under £300, the Circuit Court should have exclusive jurisdiction?—As it exists now.

875. Would you then deprive the High Court of jurisdiction in all country cases where the amount recovered was under £300?—As the existing law is.

876. It is a practical prohibition if a successful litigant does not get his costs? —Of course it is.

877. It comes to this then that the practical operation of your suggestion would be that the jurisdiction of the High Court would be excluded in all cases both contract and tort where the amount recovered is under £300?—That is the law at present.

878. Is it your opinion that in a case where a merchant having a claim against another merchant, say, for the balance of money due on contract for the sale of flour, timber or something like that, where the custom of a trade would have to be considered or where the business reputation of either party would be involved or where the signature of a document would be in question, these gentlemen should be deprived of the right to have the question in dispute settled by a jury?—They can have it settled by a jury now.

879. Where?—In the Circuit Court.

880. You mean a local jury?—Yes.

881. I think you said that you never had a jury in Circuit cases?—I have not.

882. Is it your opinion that cases involving matters such as I have indicated should be tried by a jury where either party requires it?—Yes, under £300. You would get a perfectly good trial.

883. Is it your opinion that either party in cases like that should be entitled to the verdict of a jury?—My own private opinion is that I do not like to have a jury if it can be avoided.

884. I know that a solicitor does not like a jury but a client may. Is it your opinion in cases like that that a client, whether plaintiff or defendant, should have a right to a jury?—My own opinion is that juries are no good in such cases.

885. Therefore, you are against trial by jury. Also, I think you said that you would like a system of registration in the Circuit Court?—Yes.

886. And also some sort of arrangement whereby interlocutory orders could be made in substantial cases?—Yes.

887. And in fact all the equipment of the High Court?—Yes, to a limited extent.

888. You would like that in Limerick, but does it not occur to you that it might be unreasonable to have 26 fully equipped courts in 26 counties?—That was contemplated by the framers of the original Act.

889. Of course, what you would desire for Limerick you would not refuse to Kerry?—Certainly not.

890. Nor to County Clare?—No.

891. We have it in this return* that in the period during which these courts have been sitting, sixteen cases between £200 and £300 came before the Circuit Court in the three big counties of Munster?—I did not give that figure.

892. Sixteen cases of over £200 but under £300 came from Circuit No. 7 during the three years ending August, 1929?—Before the Circuit Court or the Court of Appeal?

893. The amount recovered is shown, but not the amount claimed?

Chairman.—It does not include cases where the claim was dismissed.

Senator Comyn.—This gives the summary of cases—defended actions in contract and tort—where the amount recovered was between £200 and £300.

Deputy Wolfe.—What is the use of quoting that return when it has to be amended?

894. Senator Comyn.—It does not deal with cases dismissed. In those three years there were only four actions in three counties, where more than £300 was recovered. That is a fairly small business?—Yes, if that is accurate, but I am very sceptical about it.

895. You think that this is probably inaccurate?—I think so.

896. You say that these actions between £200 and £300 were satisfactorily tried?—I do not know.

897. But you said that they were?—I said all cases tried before the Circuit Court.

898. Circuit No. 7?—I heard no dissatisfaction expressed.

899. Have you any knowledge of a case against an ex-policeman for an alleged assault on a girl, where damages to the amount of £225 were given—you know the case referred to?—Yes.

900. I believe that that man was tried in Limerick?

Chairman.—What is this leading up to?

901. Senator Comyn.—To the satisfactory method in which big cases are tried where small cases intervened. Do you think that that case was satisfactorily tried?—I know nothing about it. I simply heard about it.

902. Do you think that an action for libel or slander in which £100 is recovered is a substantial action, say an action between two merchants for libel?— I think it would depend on the libel.

903. Take a serious trade or professional libel action, do you think that where £100 is recovered, that is a substantial action?—It would all depend on the circumstances of the case.

904. Have you not had actions in which more than £50 was recovered in libels?— Not in the Circuit Court.

905. I mean in the High Court?— Under the old regime.

906. Did you regard them as substantial actions?—Every case that went to Dublin was regarded as substantial. Now I would be very glad to have such action tried in the Circuit Court.

907. Would you regard actions between two merchants or two doctors in which more than £50 was recovered—cases of libel—as substantial actions?—It all depends upon the position of the men and the character of the libel.

908. Take two doctors or solicitors?—I am satisfied from my experience of the Circuit Court that they would get a perfectly good trial.

909. You have not answered my question. Is that a substantial action?—I have already said that it all depends on the position of the men and the character of the libel.

910. Do you think that such actions should be excluded from the jurisdiction of the High Court?—In the present position they are.

911. Actions of contract sometimes involve very serious questions of right?— Yes.

912. Even where the sum recovered would be between £200 and £300?—Yes.

913. Would you in all cases such as those deprive the High Court of jurisdiction?—Where the jurisdiction is under a certain limit I would.

914. Now with regard to perjury is it not your experience that actual deliberate perjury is very rare?—Except in criminal cases.

915. In ordinary civil disputes it is very rare?—Yes.

916. And even in criminal cases?—No, it is pretty frequent in criminal cases.

917. You have had wide experience both in civil and criminal cases?—Yes.

918. You have said that the type of man at the Bar has deteriorated?—I think so.

919. You said that you still had some of the men who were trained under the old conditions?—All the men to whom I give business were trained in the old school.

920. Do you think that one of the most essential matters for a country is good laws?—Certainly.

921. And next to good laws is efficient administration of the law?—Yes.

922. Unless you have a man fairly well trained you cannot have efficient administration of the law?—No.

923. I just want to ask another question. Some people have jibbed at it. In regard to District Justices, do you think that they should be transferred after five or six years?

Chairman.—Like a Methodist minister.

924. Senator Comyn.—Mr. Gaffney is best qualified to answer this question?— What exactly is it you want me to answer?

925. Would you be in favour of District Justices being transferable after five years?—Compulsorily transferred?

Senator Wilson.—Removable.

Chairman.—Oh, no—interchangeable.

926. Senator Comyn.—Or interchangeable?—At their own request?

927. At their own request or otherwise. Would it be to the public advantage?—I feel so eminently satisfied with the present District Justices that I should not——

928. You are so eminently satisfied with the present one?—There are several, not one, but the present existing District Justices.

929. You will admit that is not a general answer?—I will admit it is not.

930. If I put the same question as regards the Circuit Court Judges, what would be your answer?—Probably the same.

931. There are a number of these District Justices and Circuit Court Judges who were recently appointed and whose ages are not on the young side. What do you say as to the age limit for retirements in the case of District Justices and Circuit Court Judges? Do you think that a Circuit Court Judge——

Chairman.—We are going to have evidence from the judges themselves on that point. They would be better judges than Mr. Gaffney.

Senator Comyn.—It is not often we have a witness like Mr. Gaffney, who can give his opinion.

932. Senator Comyn.—You would not like to answer that question?—What is it?

933. If a District Justice is in good health at seventy, what do you say the age of retirement should be?—District Court Justices require to be younger than Circuit Court Judges, because they have to do a lot of travelling in all sorts of weather.

934. Would you say seventy?—Yes, I think so.

935. Chairman.—At present, are costs in the Circuit Court in the discretion of the judge or do they follow the old County Court system?—I maintain, you will excuse me for saying “I maintain,” that it is not in his discretion, that the costs must follow the event, but undoubtedly in certain cases our Circuit Court Judge has said that he will give no costs.

936. That should be settled?—That should be settled definitely. I asked my counsel, just to settle the matter, to appeal, but they did not like to for one reason or another.

937. I forgot to ask you when bringing you through your evidence, if your Association was satisfied with the jurisdiction of the Circuit Court in matters other than contract and tort?—They are as far as equity, and the winding-up of companies, etc., are concerned.

938. Have you had any cases of winding-up companies?—I have had two, and they were most satisfactorily disposed of. The late Sir Francis Kearney was acting then as County Registrar in the interregnum. He did all the accounts and everything.

939. In Limerick, you would have an opportunity which they would not have in a real country town, of getting a liquidator who would be qualified?—Yes.

940. You would not have that in country towns?—No.

941. Would you be in favour of a system of ad valorem stamp duty or fee on appeals? The fee at present is fixed. It is a definite fee?—I would leave the system as it obtains at present.

942. Senator Comyn.—Suppose a man has an appeal which is successful and therefore, a just appeal, do you think that he should not be penalised by an ad valorem stamp duty?—I say, no. It would hit the poor man.

(The witness withdrew.)

Mr. Thomas W. Delaney, State Solicitor, Longford, called and examined.

943. Chairman.—Mr. Delaney, you were admitted a solicitor in the year ’91? —Yes, December, 1891.

944. And before the establishment of the present Courts in this country, you practised in the old County Courts?—Yes, and at Petty Sessions.

945. Since then you have practised in the Circuit Courts and the District Courts?—Yes.

946. So you have had a very considerable experience. I believe you are also a State Solicitor?—I am State Solicitor at present.

947. What are your views as to the District Court?—My view is that the District Court has functioned very satisfactorily. I attribute that largely to the fact that there is a very simple, cheap and rapid system of appeal.

948. There is a direct appeal?—There is a direct appeal to the Circuit Court Judge.

949. Where you get a re-hearing?— Where you get a full re-hearing, viva voce, and you can bring as much additional evidence as is necessary to enable the Judge to arrive at a conclusion. I attribute the great success of the District Court to the fact that we have lawyers as the presiding justices and to the fact that they always see that there is a ready and simple system of appeal.

950. Have you any suggestion to make as to a change?—I do not take the view that the contract jurisdiction should be left at £25. If there was any change at all I should favour a reduction so as to make it strictly a poor man’s Court. It may be that I come from a county of small transactions, but very rarely have we anything like a Civil Bill in the District Court for anything over £10 or £12. It arises frequently in cases for breach of warranty in the sale of a cow or something of that kind, but where a shopkeeper has an account of £20 or upwards, he invariably goes into the Circuit Court, because if he cannot realise his decree otherwise he is enabled to register it against a man’s land, if he has land, if he gets a decree for over £20. There is no means of registering a District Court decree for £25, nor is there, I am afraid, of making it available against him by suing on it in another Court.

951. Would it, in your opinion, be a wise thing to make a decree of the District Court for over £20 registrable?—I think it should be capable of being registered against land. I should prefer it, and I am sure many defendants would prefer it to the procedure of being brought into Court to have instalment orders made against them and possibly an order for their committal to jail.

952. That would involve the registration of the decree in a central office here in Dublin?—Yes, and where it would be against registered land, in the local Registry of Titles, which I dare say represents 90 per cent. of the land. Of course, it would not refer to houses. Then you would have to go to Dublin.

953. Coming to the Circuit Court, what is your opinion as to its jurisdiction?— As to the common law jurisdiction, I have always taken the view that the present jurisdiction is excessive. From my experience, I do not put it any higher, I take it that of all genuine lawsuits with reference to genuine disputes in this country, at least 75 per cent., possibly a higher percentage, would be within the £300 jurisdiction.

954. That is speaking, I take it, from your own experience?—Yes, and I speak with a knowledge of the Counties Longford, Leitrim and Roscommon and with some knowledge of Westmeath and Cavan.

955. I should have asked you do you represent any body of solicitors as a witness to-day?—I am able to speak for the solicitors of Roscommon, Leitrim, Longford and Westmeath.

956. How many would there be?—Between the four counties there would be about 40.

957. Have you any sessional Bar Association there?—No formal Association, but we meet to determine any matters of dispute.

958. You can say now that you speak on behalf of them?—I am certainly speaking for the solicitors of Longford, Leitrim, Roscommon and Westmeath.

959. To return to the jurisdiction of the Circuit Court?—My first reason for saying that the £300 is excessive is that it represents at least 75 per cent. of the genuine litigation of the country. I have come to the conclusion that if the Circuit Court should remain with a jurisdiction of £300 it will mean that in ten or fifteen years there will be no school of law left in the country. That would be from the legal point of view, from the point of view of justice and the point of view of freedom, a great disaster. I have regarded the Library as a school of law. The public possibly may not appreciate it, but any barrister going into that Library would be trained up to his profession. He had always available in any difficulty that arose the help of the most eminent members of the Bar and it was readily given. He was living in an atmosphere of law, where case law was kept up-to-date, where every new decision was discussed and canvassed, and where he had brought home to him the necessity of maintaining his knowledge of the principles of law and of statute law. I have come to the conclusion that if the Circuit Court continues with the £300 jurisdiction the attenuated Library of the present day will be a myth within ten years, and I regard that as absolutely disastrous to the country, Lawyers will be ill-trained and untrained, and where you will get judges in the future I do not know. Such a condition I regard as a disaster. Consequently I am very strongly of the view that the jurisdiction of £300 should be removed and, say, £100 substituted. I am aware that many members of the Council of the Incorporated Law Society, where this matter was discussed, disagreed with me, but I do not think that the majority now disagree with me; I believe that we are at least equally divided on the subject, but those in favour of the £300 are more vocal than the others, and consequently there has been more said on that side. But, notwithstanding that so many think differently, I have come to the conclusion that I have expressed to you, and I would respectfully urge it upon this Committee.

960. Do barristers frequent your Circuit Courts?—Yes.

961. I mean, does a regular Bar go down there, on the hazard, as I might say?—Three or four come down on the hazard; they come down on the first day of the sitting of the Circuit Court, and stay on in the hope of getting business. They do not get very much. They are mostly young men, and they can only learn from what they get there. If they are away from the centre of legal learning over lengthened periods, as they must be to get their bread and butter, they cannot possibly, in my humble judgment, acquire that accomplished knowledge of the law and practice that they ought to possess if they are to maintain the traditions of the Bar. Whenever we have difficult cases we try to get a special day fixed, particularly a Saturday, so that some of the recognised juniors can be brought down. We very infrequently have seniors, because of the question of expense for one thing, and the fact that we cannot have a senior without also having a junior, so that unless a man is fairly wealthy he cannot afford to put such a team on to his case. I think another objection to the £300 jurisdiction is this: Some gentlemen arguing the matter urged that if that were reduced people could not afford to go to law unless they had good cases. I think that is a sound condition of things. If you are to leave the £300 you are simply offering a new form of gambling, which does not appear to be in need of supplementing in this country at present.

962. Before you pass from the common law jurisdiction of the Circuit Court: Would you be in favour of allowing anybody who wished by consent to go to the Circuit Court?—Certainly. I think the jurisdiction by consent is desirable in a great many ways. It will practically turn itself into a form of arbitration, and it will settle some debatable question of law as two solicitors may not be able to settle it.

963. What about the jurisdiction of the Circuit Courts in matters other than the ordinary common law cases—equity and company law?—I think that ought to remain. The only thing is that I think the section conferring that has not been felicitously expressed. There was a section which conferred the original equity and probate jurisdiction on the County Court Judge, I think the 33rd Section of the Act of 1877.

964. I think admittedly that is not a very well-worded section?—No, sir, because a great many conundrums arise on it. I think the Council of the Incorporated Law Society is unanimous in wishing for the re-enactment of the 33rd Section of the Act of 1877 with the figures of the Act of 1924 substituted for the other figures as they occur. There was a debate as to whether “and” or “or” should appear, but that is a matter that the Council will submit to your judgment. The only thing is that in the County Court there was no power to get relief by way of an injunction. The Circuit Court has that power, and it might be desirable to make that a little bit more clear if you were to make such an amending section, because that power is a very useful one in the Circuit Court in connection with matters about which people would now have to go to the High Court.

965. It was always felt to be a great want when I was young?—It was a terrific one, and there were hundreds of cases where criminal proceedings would have been avoided if that power was made clear.

966. What is your view as to the right of a litigant to a jury in the Circuit Courts?—My view is that, however you may regard juries, the jury system is an old institution that people regard as very useful at times. I should give every man the right to a jury. In the County Courts any man that was sued for a sum of over £20 had a right to get a jury, and I think that that should remain.

967. With a limit?—In any question over the jurisdiction of the District Courts, whatever that may be. I would give a right to a jury in tort or contract.

968. Without leave?—Without leave. At the moment it is very difficult to get leave. It means often three or four months’ delay, because you will have to apply to the Judge and he may refuse to grant it. If he does grant it there is no particular jury ready, and you will have to wait until the next sitting. I would give a right to a jury in every case of tort and contract over the jurisdiction of the District Court.

969. It is always the defendant who wants a jury?—Well, defendants have got to live and they have to have solicitors as well as anybody else, and nobody knows when he is going to be a defendant.

970. What is the practice in your circuit court as to the discretion of the Judge in a matter of costs?—In the Midland Circuit I have never known the Judge to deprive the plaintiff or the defendant who is successful of his costs.

971. They went according to the event? —Yes, they followed the old rule of the County Courts. I have had the unfortunate experience of having succeeded three times for a man with costs, and when I got my decrees they were without costs.

972. You would be in favour of depriving the Judge of any discretion, except in equity cases?—Except in equity cases. I think the old practice of the County Court ought to remain.

973. On the question of appeal, what are your views?—My view is that the present system of appeal is practically a denial of justice. I think in the conditions of this country there ought to be an appeal on fact and on law.

974. And at present there is no appeal on fact?—At present there is substantially no appeal on fact in consequence of a recent decision, with the result that a great many appeals that have been genuinely brought will fall through because the finding on fact is against them. The present system of appeal might be tested in this way:— I have got a return here from the year 1905 to the year 1921. In the County Longford there were 1,156 appeals. Of these 562 were affirmed, 239 were reversed; 184 were withdrawn; 75 were varied, and 44 were adjourned. On the equity side, which is included in the total, 31 were affirmed; 4 reversed; 2 varied; one settled, and in 14 there were no orders.

975. I take it that in the cases where the original decrees were reversed on appeal they were reversed on a question of law?—Occasionally on a question of law; more frequently on a question of fact.

Senator Comyn.—This was under the old system.

Chairman.—I misunderstood you.

Witness.—I was speaking of 1905 to 1921.

976. Can you give us any information as to the result of appeals now?—I should say that not 5 per cent. are reversed.

977. In your own experience?—In my experience I should say about 3 per cent.

978. And that would be on questions of law?—They were nearly all on questions of law.

979. The shorthand note does not include the arguments of counsel, I take it? —No, it includes merely the evidence and the judgment.

980. So that there is really nothing on the shorthand note to show what the points were that were argued by counsel? —No. I recall one case which was properly decided by the judge, but on a point that was not made by the winner there was an appeal, and it was, unfortunately, reversed, because it did not appear on the notes that the defence made by the defendant was a totally different one from the ground given by the judge, and the unfortunate defendant had to pay the costs of the reverse.

981. What would you substitute for the present form of appeal?—I would substitute for the present system of appeal a hearing before two judges, who would hear all the evidence viva voce.

982. Locally?—In local venues. I think that they ought to go round at least twice a year, and if necessary group two counties, sitting in each county alternately.

983. Do you think twice a year would be sufficient?—I think so. After all, some Circuit Courts only sit three times a year. Others sit four times. I think two would be quite ample. Then nobody would be out of his judgment for a longer period than six months.

984. But if you had three sittings you would have it very short?—That might lead to inconvenience and possibly to great expense. If you were to take judges from Dublin—assuming that these were the people who would hear appeals— you would paralyse matters in Dublin for a long period. I think that two circuits in the year would be ample.

985. I ought to have asked you whether litigants are satisfied with the present system?—The litigants are dissatisfied with the existing system of appeals from the Circuit Court.

986. Not merely on the question of delay?—That does not affect them. It is a question of dissatisfaction as to the result. They do not know when the case is coming on, or why it is decided. They cannot understand that it is not the fault of the solicitor, of counsel, or someone else. They are thoroughly dissatisfied with the existing arrangement. The appeal ought to be heard and decided in their presence. Of course, the costs are very excessive.

987. Does that limit appeal to persons of considerable means?—A person without a lot of means could not afford it. A poor man could not.

988. How is it that appeal is so expensive? We have got figures showing that it is very expensive?—There is the stamp duty which I think is 10/- on the notice of appeal. Then you have the cost of the notes.

989. What is the charge?—It depends on the length.

990. What is the charge* per folio?—I think it is 2d. You have to make two copies in a particular way to lodge with the Judge, and you have to make the brief. The whole thing runs into a lot of money. In my experience, the minimum cost is roughly four times what the maximum cost of appeal was before a Judge of Assize. I think the cost of appeal before a Judge of Assize in a £50 case was about £4 15s., while the average minimum cost now runs from £18 to £20.

991. It is not counsel’s fee that makes the difference?—Counsel’s fee on appeal is greater now than it was before the Judge of Assize. Except there was a special allowance by the Judge, my recollection is that the highest fee was three guineas.

992. That was under scale?—Yes. The average was two guineas. You might get two counsel allowed on present appeals and that will put up the cost.

993. That would not account for the whole difference?—No.

994. Would you give us your views on alternative jurisdiction, between the High Court and the Circuit Court?—I think a plaintiff ought be at liberty to proceed in the High Court within the jurisdiction of the Circuit Court, the costs to be at the discretion of the Judge.

995. Would your limit be £25?—No. I do not limit it to £25.

996. Would you put a limit on the alternative right?—No, I do not put any limit, because if a plaintiff sues in the High Court, it is open to the defendant to apply to remit. If he wishes to go on in the High Court, and if the plaintiff is satisfied to go on on the chance of not getting full costs, I do not see any reason why he should not do so.

997. Is the remedy of garnishee open to you in the Circuit Court?—It is at present. You have garnishee and equitable receivership. I got these orders myself.

998. Had you to follow the Judge in these cases to do so?—It happened that he was in Longford on both occasions. Otherwise I would have had to follow him. I had a case where an injunction was granted against a woman for interfering with some people. She disobeyed the injunction, and I had to apply to have her attached when the Judge was sitting in Maryborough—three counties away.

999. Would there be any way of avoiding that?—No way, unless you give power to the County Registrar, which is raising another question.

1000. That would be a very strong order?—I do not suggest that you should do so. Of course it is essential to get receivership by way of equitable execution, or other order, quickly, and unless you can plant a Judge in every county I do not think you can do better than give alternative right in such circumstances to go to the High Court.

1001. Of course you can always employ a local solicitor where the Judge happens to be?—That is what I happened to do, but you may not always get a local solicitor willing to act.

1002. Senator Farren.—I think from your evidence your objection to the retention of the present jurisdiction of the Circuit Court is mainly due to fear, for the future, of an adequate supply of properly-trained lawyers?—That is one of my principal objections. My other objection is that I think to establish a court which will provide for 75 per cent. of the genuine litigants of the country in every county is undesirable.

1003. In your summary of evidence, I think you said that you would be satisfied if a provision were retained so that with the consent of the parties the Circuit Court could exercise unlimited jurisdiction?—Certainly.

1004. It appears to me there is some difference between that view and your main argument against the jurisdiction of the Circuit Court?—I do not see any. If two parties wish to submit the dispute to any person, they are at liberty to do it.

1005. That is true, but if two people have a dispute about a very large sum, say £2,000, if there is agreement between them with regard to jurisdiction, and if they agree to go to the Circuit Court, where they can get good law, surely they can get it in a case for £300?—If they are content with the law they get there, they are entitled to put up with it, but I think they are entitled to ask for the best.

1006. Are the people who frequent this court entitled to say what the jurisdiction ought to be?—I think so.

1007. Has it come to your knowledge that most of the public bodies, and people who speak for the commercial community, are in favour of the retention of such cases in this court?—I have read resolutions to that effect, and I have good reason to think that they have all been written by the same gentleman.

1008. We had Mr. Gaffney giving evidence before you came, and I think he read out a list showing that the Chamber of Commerce, the Harbour Board, the County Borough Council and the County Council of Limerick favoured the retention of such cases in the Circuit Court. These bodies would be fairly representative of the views of the people?—Certainly.

1009. All these public bodies passed resolutions in favour of the retention of the Circuit Court jurisdiction?—I am sure they did. I have read resolutions in my time. I have been a member of the County Council, of an Asylum Board, and of several other boards, and I know how these resolutions are manufactured.

1010. Do I take it from you that there is one person running all these local bodies?—I have not the slightest doubt that one person wrote these resolutions, and that one per cent. of those who passed them did not know what they were talking about.

1011. You have a very poor opinion of the commercial community?—I have a high opinion of the commercial community, but I have an equally good knowledge that the commercial community, and every other body in this country, will do a good turn to oblige some friend.

1012. Do you for a moment suggest that the Chamber of Commerce in Limerick is not representative, and that the commercial community is so blind to its own interests, that it is going to accept a snowball resolution without giving it consideration?—They are accepting so many snowballs that I do not see any difference. I am speaking as one who was for twenty-one years a member of public boards.

1013. You also stated with regard to your own profession in the country that, in your opinion, the people in favour of the present jurisdiction of the Circuit Court were those who made their views felt?—I was at a meeting of the Council of the Law Society, and those who were most vocal were those in favour of £300. No vote was taken on the subject. From conversations I know that the views of the majority were the other way. I do not understand why the solicitors are in favour of the £300, in their own interests. The only thing that strikes me is that they think this jurisdiction is a new toy, and, like a great many people who are very strong in the political world, they adopted the slogan: “What we have, we hold.”

1014. I think you said you spoke for the solicitors of four counties?—Yes.

1015. Do you say that the solicitors of the four counties—I think about forty— are unanimously in favour of this suggestion?—That was their view.

1016. Did you take a vote?—A resolution was passed representing Roscommon, Westmeath, Longford and Leitrim.

1017. Did those in favour of the retention of the £300 jurisdiction remain at the meeting without saying anything?— They did not express any opinion.

1018. There may have been some members of the profession in these four counties in favour of the present jurisdiction but they said nothing?—If there were such, they kept it to themselves.

1019. We had one witness, Mr. Ryan, of Tipperary, and he told us the association there held a meeting, and that on a vote there was an overwhelming majority of the members in favour of the present jurisdiction. The voting showed 32 for the £300 jurisdiction and 12 against. That was a fairly substantial majority?— Certainly. As against that, there was a meeting of the County Louth Bar, and they were unanimously in favour of a reduction. At a meeting of the County Mayo Bar they favoured a reduction to £200.

1020. But in other places they decided in favour?—I agree.

1021. So that amongst the profession there is a difference of opinion?—Undoubtedly.

1022. Senator Comyn.—That is amongst the solicitors’ profession?—I should say that some two years ago there was a joint meeting of representatives of the Bar and the solicitors, appointed by the Council of the Incorporated Law Society. I think there were eight or nine aside. After discussing certain useful amendments to the Courts of Justice Act, we came to the unanimous conclusion that the jurisdiction ought to be reduced to £100, and that the appeal system ought to be changed. There were eight or nine members of the Incorporated Law Society in agreement on the subject.

1023. Senator Farren.—I think you expressed disappointment with the type of young barrister going on circuit now?—I say the young barristers are not trained as the men I used to know as young barristers.

1024. Would you agree with me if I said that the mode of examination for barristers might be largely responsible for that?—I do not think there is any change. On the contrary, I understand that the Bar are making the examination still more difficult.

1025. That is the point I am coming to?—They are making it more difficult, and as it becomes more difficult you ought to get more accomplished raw material.

1026. Would you agree that the system of examination now is too easy?—I do not know.

1027. Will you admit that large numbers of people who sit for the examination and become barristers never practice?— Quite so.

1028. It must be somewhat easy, if people who have spent the best years of their lives in other occupations can sit down and study law for eighteen months? —I could not answer that, as I never sat for the examination.

Deputy Rice.—Not eighteen months; it is five years now.

Chairman.—It was three years. It is five years now.

1029. Senator Farren.—Your argument as regards the jurisdiction has reference to the Bar—you say young barristers have not an opportunity of spending their time in the Library in the proper atmosphere?—Yes.

1030. Is it not a fact that these young barristers do spend the best portion of their time in the Library?—Not now— they used to.

1031. Where do they spend their time when they are not on Circuit?—I cannot tell you. In the old County Court days in Longford we had a system—I suppose it obtained in other counties—that any business we had for barristers was taken on a certain day of the week and went on until it was disposed of. They came down on that day, and they were there for the two or three days whilst they had business—they came down from the Library and went back to the Library.

1032. Do they not do that now?—No, because there are eight or nine Circuits which are practically sitting continuously for eight or nine months, and there is not the same ease about fixing cases as there was. They come down on chance because they have no business in Dublin. You do not like to be looking at a decent young fellow in his wig and gown doing nothing for a week, and if you can you will get him a brief. The difficulty of the solicitor is this: if there are three or four juniors in court and I have a case in which I can afford to give a brief to counsel, will I give that brief to a junior without experience when for the same money I can get a man of experience? Would I be just to my client in doing that? I do not think I would. Therefore, I give it to the man that I believe will give my client value for the money. The result is that juniors get no chance. I understand that the way barristers learn their business is that they go into the chambers of more experienced barristers and learn their business from the cases that come to these barristers by discussing them with their seniors. Then if they cannot get all they want there they can go to the Library or to experienced barristers. The most junior barrister when in a difficulty can go to a senior, who will tell him all they know on the subject. It is that atmosphere that is being destroyed, and that is bad from the legal point of view.

1033. Your main argument in favour of the reduction of the jurisdiction of the Circuit Courts is because of the Bar?— That is my principal argument.

1034. It is not that they are not functioning properly?—No. I see no difference between the functioning of the old County Courts and the Circuit Courts except this: that the system of appeals is so expensive and so unsatisfactory, and as we are all human, if we are sitting from week to week knowing there is no appeal from us, we may give judgments that may be in accordance with common sense, but not with common law, and those who are judges are paid to administer the law, not common sense.

1035. Deputy Wolfe.—I take it your evidence as regards jurisdiction would naturally and properly exclude Cork?—I understand that Cork always had a Sessional Bar, that it had a number of barristers living there permanently, and I would not object to exclude Cork under these circumstances, but I would not give them a jurisdiction up to £300. I should say it should be £200.

1036. Assume that the jurisdiction in Cork was reduced from £300 to £200, looking back on your own experience, how many actions which you brought for £300 would you have brought in the High Court?—I do not think I would have brought one.

1037. Your experience is the experience of others. In fact, the effect of the reduction of the £300 jurisdiction in Cork to £200 would simply mean that the plaintiff would sue for £200, where at present he sues for £300?—Precisely. Taking the ordinary tort, such as libel or slander or seduction, and that kind of thing, you rarely get a decree for £100.

1038. As to those cases—there have been some, not many—in which decrees have been granted for £200 and £250?— There may be some evidence of special damage—there may be some surrounding circumstances—the condition of the people or something like that.

1039. You heard Mr. Gaffney’s evidence as regards the centralisation of civil jurisdiction of District Courts, is it not a fact that that has already been brought about?—I know that in Longford it has been done and I take it it has been done in a great many counties, because in the list of District Courts issued they have two schedules, one relating to the criminal and the other to the civil, and the number of criminal courts are greater than the number of civil courts.

1040. In other words, the civil jurisdiction of the District Courts has already been centralised so far as it is possible?— Yes. It has been done as far as it could be, without inconveniencing those who come to them.

1041. This question about whether an unfortunate man should be sent to Drumcollogher may not arise at all?—I do not think it would arise in connection with the District Court. I am again looking at it from the point of view of the defendant. If there were a change in the sittings of the civil District Courts, I would make them sit less frequently than they do. Take the case of a poor man who owes small debts to a number of people. He is peppered at one court by one of them, and next month at another, until great hardship is done to men with families who are not fed. I think every second month is ample.

1042. You have heard the evidence as regards the stenographers. Would you be in favour of retaining the stenographers? —Certainly. In the changed system of appeal, I think it would be extremely useful as a check upon what has passed before, and also to everybody concerned in the case.

1043. About this suggestion of perjury as regards the old system—you have had a good deal of experience both of civil and criminal law?—Yes.

1044. Is it true that perjury is extremely rare?—You hear people talking about perjury, but on the whole it is extremely rare.

1045. Is it still rarer to find it successful?—It is occasionally successful, but not always.

1046. Under the present system of appeals, is it successful?—If it is successful before the Circuit Courts, it is successful all the time.

1047. If the system of appeals is changed, there is an opportunity of rebutting the perjured testimony?—It is almost certain to be found out.

1048. So that, as far as perjury is concerned, it is an argument in favour of the change?—Yes.

1049. If a judge or anyone else has stated the opposite, he is under a misapprehension?—As to the statements made by judges about the old system of appeal —finding fault with the old system of appeal—I think the fault of the old system lay with the judges themselves, who were always in a hurry and thought of their own convenience and not that of the public.

1050. Chairman.—Not always?—There were some striking exceptions.

1051. Senator Wilson.—Is there too much business in the Circuit Court in your area?—In Longford we are not able to get up to date.

1052. How would you view a suggestion that the District Court jurisdiction should be raised somewhat?—I do not think it should. There is an appeal from the District Court to the Circuit Court, and at every Circuit Court there are invariably five or six such appeals, which get preference to everything else and take up considerable time. They are very frequently the cause of slowing down the work in the Circuit Court, and if you were to increase the jurisdiction you would almost certainly be inviting an appeal in every one.

1053. In the case of debt recovery, would you increase the jurisdiction of the District Courts?—I think £25 is ample.

1054. There would not be an appeal in a case like that?—There certainly would be appeals. There is an appeal from every decision of the District Justice now except in criminal matters.

1055. Deputy Rice.—You were asked by Senator Farren as to the training of the Bar. In your experience, did the training of barristers commence after they had passed the examination?—That is my experience.

1056. From the very nature of the work, they can only be trained in the practical side afterwards?—A barrister can only learn in his studies the theoretical side of the business.

1057. If a young fellow comes down with a very good theoretical training, it is not very much use to you as a solicitor in the conduct of a case?—I think I would be able to do the case as well myself.

1058. I would say better. Under the old system, I think you made it clear that in the County Courts a young barrister who went to learn his business was only away from the Library three or four months a year?—Yes.

1059. At present he is away about nine months?—Yes. During those three months he was away formerly he was listening to other barristers and solicitors of experience pleading their cases.

1060. And the few months he has now in which he is not in the country coincide with the Long Vacation?—Yes, practically. If he has any business in the country he has not any time in Dublin to pick up.

1061. Are you aware that some of these young barristers are not able to follow up their appeals to Dublin—that they have to give them up and never have the chance of seeing cases done in Dublin?— That is so, because the hearing of the appeals nearly always coincides with the sitting of one of the courts that they are following.

1062. Deputy Little.—Do you find that the public generally are satisfied with the working of the Circuit Courts?—Speaking of my own county, they are satisfied with the working of the Circuit Courts, but those of them against whom a case is decided are utterly dissatisfied with the system of appeal.

1063. I am confining myself to the question of jurisdiction?—As a matter of fact, clients do not advert to the question of jurisdiction.

1064. Do not business people as a rule prefer to have the matter dealt with locally and in the cheapest manner possible?—Certainly.

1065. Would you not consider it very much more expensive to take a case over £100 to Dublin—that it would cost a great deal more?—That would depend on the nature of the case. Supposing it was a shop goods case, that ought to be done much more cheaply in Longford than in Dublin, but whether it would be done as efficiently and effectively is another matter. Cases of that kind are very frequently cases in which the plaintiff is very doubtful as to whether his case is a good one or not, and there is a certain amount of gambling in it.

1066. Is there not nearly always a certain amount of doubt in the mind of a solicitor when he is advising his client as to the way a case will go? He could never be quite a prophet?—He cannot be a prophet because he knows that a great many elements will enter into the case; the witnesses may not come up to the mark and the judges may have certain inclinations. They have been known to have.

1067. If you are dealing with poor people who could not afford to go to the High Court, do you not think that it would be hardship on them if they could not bring their case there?—If I met a poor man who had an honest case, I would go to the Court that I considered he would get most justice in.

1068. Did you ever have the experience of poor people coming to you and telling you that if they had had sufficient money at a certain time they would have been able to fight the case?—If people of the kind did not go to a solicitor in time, the question of money could not affect it.

1069. I have in mind cases where they had gone to a solicitor, but could not afford the expense?—Even in the High Court, the poorest man can always proceed in forma pauperis.

1070. Do you think that it would be satisfactory that ordinary clients should have to proceed in forma pauperis owing to the change of jurisdiction?—No. Paupers ought to proceed in that way, but any man with an honest case and a little money will always find a solicitor who will take his case to court.

1071. Do you not think it is a hardship on people to have to rely upon a solicitor in a case which, after all, may be a gamble?—I have never known a client who was not prepared to get a solicitor to act if he had an honest case, and the question of paying that solicitor never entered his mind.

1072. Do difficult points arise in the ordinary course in cases in the Circuit Court?—Very frequently.

1073. In a question of common sense and common law, as you put it, where there is a conflict, which would you prefer to see asserted?—If I were the person in whose favour the common sense was I would prefer that; and if I were the other, I would prefer the law.

1074. Suppose you were not an expert lawyer, as you are, and suppose you were one of the ordinary public, do you not think you would prefer the common sense every time?—Yes, if it were in my favour; but it is not necessarily always in your favour.

1075. Senator Hooper.—You suggested a moment ago that your barristers have not now the same opportunity as they had under the old County Court system of learning their business from seniors?—In their country practice, yes.

1076. That means the seniors do not travel as much now as before?—The senior-juniors, if I may so call them, are attracted to where the most remunerative business is.

1077. Was not that the case in the old days, too?—No, because the County Courts did not sit with the same frequency and there were more County Court judges and fewer Circuits. Now the young men are attaching themselves to particular judges.

1078. In the old days they would be away only three months from town?—Yes. They would be away, all told, about three months, and they would have at least six months to learn their business in Dublin.

1079. I was rather struck by some figures which you gave as to the number of reversals on appeal. I think you gave the figure at 3 per cent. and that represented the number of reversals on appeal? —Yes, under the new system.

1080. You must have a very unusual if not a very unique experience, because other figures* show that the percentage in other parts of the country is much larger than that?—I am speaking of my own personal experience in Longford.

1081. The other figures given to us indicated 27 per cent.?—That may have been so, up to the decision on the question of how they were to treat facts on appeal. Since that decision the number of reversals is very small.

1082. Would you be in favour of the suggested ad valorem stamp duty on appeals?—No. I do not think you ought in a poor country, and with a comparatively poor people, choke litigation by excesive duty.

1083. Supposing it were possible to make some arrangement by which a successful appellant would have the stamp duty remitted, would that make a difference?—The successful applicant could recover it as a part of his costs against the other side, so that it would not concern him.

1084. Would you be then in favour of it?—No. I think good courts of justice are so essential to the State that the State ought not to hesitate, in a small matter of money, in providing the best for the people.

1085. One of the reasons put forward was that it would choke off bogus appeals? —No; you will never choke off a bogus appeal.

1086. You made an exception in regard to Cork, and you thought there should be a higher jurisdiction there for Circuit Courts than in other parts of the country? —That is so.

1087. Would you make any other exception?—No. I make no exception in the case of Dublin. It would be intolerable to have two sets of courts functioning under the same roof. I see no reason why Dublin should be in a better position as regards jurisdiction than other parts of the country. Cork is in a different position. It is a big distance away, and it has always had the tradition of having a local barrister Bar. For that reason, I would not object to a jurisdiction of £200.

1088. In Dublin would not the question of costs arise?—I do not think it makes any great difference. The cases that would go to the High Court would go properly to the High Court.

1089. Would you be prepared to except Limerick?—No. I think Limerick is so holy and peaceful that it requires no exception.

1090. What about Waterford?—I know nothing about Waterford, but I read in a paper that they were passing a resolution there for the retention of the £300.

1091. Senator Comyn.—You say that you are in favour of giving unlimited jurisdiction to the Circuit Court where both parties agree?—Yes, where they consent.

1092. Of course, you are aware that the difficulty in a case does not depend on the amount of the claim?—Precisely.

1093. Nor does the ardour with which it is contested depend on its amount?— Quite so.

1094. There may be some cases for £500 or £600 in which the parties simply want a man to say “How much”?—Precisely. I think the case where you have litigants agreeing to a certain tribunal, even though the figure is over the jurisdiction, is a case in which you have two decent men both of whom want someone to say how much it can be settled for. It is really an arbitration by a lawyer who is to apply some of the methods of law to his decision.

1095. You have mentioned a sum of £100. Would you have that limit in all cases? You know that in a libel action, where a man gets more than two guineas, he can get High Court costs?—Yes.

1096. And where he gets more than £5 in an assault case, he can get High Court costs?—Yes.

1097. Would you be in favour of having the limit so high as £100 in cases of libel and assault?—I think in cases of libel and assault that a verdict for £50, unless there has been special damage, would be a very big verdict.

1098. You maintain that in cases of libel and assault you would give the person the substantial right to go to the High Court?—Certainly. I think I indicated that was not subject to the question of costs except in such cases as libel or slander.

1099. What limit would you put for libel or slander?—I think £50.

1100. And assault?—That would have to depend on the amount of damage done.

1101. Suppose a man gets £50?—I think £100 ought to be the smallest jurisdiction of the Court in the case of assault.

1102. You have wide experience of Judges and the idiosyncracies of Judges. Would you leave the awarding of costs to the discretion of a Judge? Should not costs follow the event?—I consider costs ought to follow the event. They always did in the County Court except in sums under £2.

1103. In the old High Court, where the trial was by jury, the costs followed the event?—Yes.

1104. Do you not think that it is a good system?—I think it is. I think the winner ought not to be penalised. If the winner has honestly won, he ought not to be penalised by a judge who may differ from the verdict.

1105. You think it is not desirable that his rights should depend on the idiosyncrasies of any particular individual?— I agree.

1106. As regards poor people it has been suggested here that the proposal made by you is against the interests of the poor man. I suggest that it is rather in the interests of the poor man?—That is what I thought.

1107. Suppose a poor man has been libelled, a working man, a carpenter, a tradesman or a clerk or a farmer—suppose he has been libelled to such a degree that the jury gives £50 damages, do you not think it would be a great hardship on him that he should not be allowed to bring his case to the High Court?—I think he should be. Anyone who gets £50 for libel or slander ought to be entitled to go to the High Court. I consider my suggestion is in favour of the poor man.

1108. You say that there is no doubt the final examination for the Bar now is more stringent than it used to be and that the number of years during which they are required to study for the Bar is increased from three years to five years?—Yes.

1109. Is it not your experience that the real practical training began when he was called?—Yes.

1110. And in addition to practical knowledge of law, do you not think that there are rules of conduct that are learned by barristers as well?—Certainly.

1111. The rules of conduct and the practical rules of law are the two things that went to constitute a barrister of the old times?—Yes, and one is quite as essential as the other.

1112. Deputy Little.—Mr. Delaney mentioned the Waterford resolution. I happen to have a copy of it here, and I would like, if I may, to let him see it in order to convince him that the copy he saw must be a misprint, and that there was no ignorance shown.

Mr. Delaney.—What I saw was a newspaper copy of it, and it put into the mouth of the Chairman, or the Mayor that he did not know what the meaning of it was.

1113. Deputy Little.—It was not the text of the resolution.

Mr. Delaney.—No. There is only one other matter to which I should like to call the attention of the Committee. In the Courts of Justice Act, as regards the places where cases are to be tried on contract, the plaintiff can sue where the contract is made, or the Circuit area in which the defendant resides. Practically in every case you can sue in the Circuit area in which the defendant resides. That is a departure from the area of the jurisdiction of the old County Court, which was the county. There is one Circuit which runs from Donegal to Leitrim and Cavan, and, I think, Monaghan. Suppose I wanted to get at a person in Leitrim, and that I had a good case, I could cite him to appear in North Donegal, or I might do an injustice to a person in Sligo by bringing him to Maryboro’. Likewise, in Dublin, moneylenders or persons of that kind could make contracts. Some years ago a number of local courts in England had queer jurisdiction. Moneylenders with shady transactions cited people to these courts from one part of England to another to which they could not travel, and yet judgment was granted. A bookmaker might have money owing to him by a person and he could cite him from a distance from which he could not travel and could get judgment. I agree it is an enabling thing to some people, and to myself personally as a solicitor. I refer the Committee to a paragraph of Section 52 of the Courts of Justice Act, 1924.

1114. Chairman (reading).—“In all other cases, by the judge for the time being assigned to the Circuit where the defendant or one of the defendants ordinarily resides or carries on any profession, business or occupation.”

1115. Mr. Delaney.—Judge Wakely has jurisdiction from Sligo to Queen’s County. A man in Sligo could be sued in Queen’s County.

1116. Chairman.—What you suggest is that he should be sued in the county?—I think it is unfair in these cases to bring people a long distance from home.

1117. Deputy Wolfe.—Is it your suggestion that a person should be sued in the area?—My suggestion is he should be sued in the county where he lives.

1118. That may be a hundred miles away?—A man in Sligo should be sued in Sligo and not in Queen’s County.

1119. Deputy Wolfe.—In the case of Cork that may mean a hundred miles away.

1120. Chairman.—Are there circuit areas in Cork?

1121. Deputy Wolfe.—There is the local area. There are different districts corresponding to the old areas.

1122. Chairman.—Are those defined by statute? It is quite clear that this is a blot on the present system and that, therefore, it ought to be remedied.

Mr. Delaney.—I merely call your attention to it.

Chairman.—We are much obliged, for the point has not been made before.

Senator Hooper.—Must you not consider the plaintiff in cases of that kind too?

Chairman.—The plaintiff has the alternative of taking the action where the contract was made.

Senator Hooper.—The suggestion is that the defendant should be sued in his own area.

Chairman.—If he is not sued where the contract is made.

1123. Mr. Delaney.—There is another matter to which I would like to refer. The law is that county registrars will become sheriffs. I think it is desirable that should be changed.

1124. Chairman.—That is not for us. You suggest that you would not give any discretion to a judge for costs, and you would make them follow the event in the Circuit Court?—Yes.

1125. Would you apply the same rigid rule to the costs of appeal from the Circuit Court where the appeal was to two Judges in the re-hearing of a case?— I think so. If a man has won his case he ought not to lose the fruits of his victory.

1126. Senator Comyn.—Suppose that appeal Judges were to be sent around again do you not think it would be desirable they ought to go to every county town?—It may mean too much expense, or there may not be sufficient work in a county. I would, if necessary, group two counties and I would let the judges go to each county alternatively. It depends on the amount of work.

1127. Deputy Little.—Is it not within our powers to deal with the Act which concerns sheriffs?

Chairman.—No.

Deputy Little.—All other Acts are in our terms of reference.

Chairman.—All other Acts amending the Courts of Justice Act. It is quite clear we cannot deal with any question of Court officers. We are to “consider and report what amendments, if any, are required in the Courts of Justice Act, 1924, the Acts amending same, and any other Statutes affecting the civil jurisdiction of the courts of Saorstát Eireann.” It would not affect jurisdiction.

Senator Comyn.—It might affect jurisdiction in that it might affect the execution of a decree.

Chairman.—That is not jurisdiction.

1128. Mr. Delaney.—My reason for it is: Taking it on the criminal side, the Registrar makes the jurors book, the panel, calls the jury, and he signs the order of the Court. I am afraid it will establish a bad taste for the correctness and rectitude of the law if the one man is to be Judge, jury and executioner. On the civil side, if the Registrar is to preside officially in Court where a decree is made, if he has to go out and execute that and stand the racket for wrongful seizure, the procedure is such that he is part of the tribunal trying that. I think that is contrary to the appearance of justice, and certainly it is not in accord with the dignity of an officer of the Court that he should be out scavenging the country for pots and pans and ducks and drakes.

Chairman.—There is a good deal in your suggestion, but it is outside the scope of our terms of reference.

(The witness withdrew.)

Mr. Hutchinson Davidson, Solicitor, Ballinasloe, called and examined.

1129. Chairman.—You practise in Ballinasloe?—Yes.

1130. You have practised there for a good many years?—Yes. Since 1887. I was admitted in February, 1885.

1131. I take it you practised under the old County Court system?—I did.

1132. And under the new system?—Yes, all the time since 1885.

1133. Do you represent any association or body of your own profession?—Yes, I was asked to come here by the Bar of our own county—the County Galway Solicitors’ Bar.

1134. You were deputed to give evidence?—Yes, they had a meeting in Galway the other day. I could not attend, and I was deputed to come here.

1135. We may take it then you represent the opinion of your brethren?—I do, of the county of Galway.

1136. In the matter of the District Court have you any observations to make?—No. With regard to what Mr. Delaney said, I think on account of the difficulty of executing decrees for £25, it might be desirable to have the amount changed to £20. Otherwise, I would not make any suggestion on account of garnisheeing or registering a mortgage.

1137. Unless you created some machinery for that purpose?—I think there would be a great difficulty in creating it in the District Court. It might be expensive. I think the District Courts are doing very good work and are most satisfactory.

1138. What is your view as to the present jurisdiction of the Circuit Court?— When the Bill which became the present Act was going through we asked for a jurisdiction of £300, and we are still of the same mind.

1139. Would you be in favour of an alternative jurisdiction, so that a plaintiff could choose the High Court or the Circuit Court without being penalised?—I agree there are cases that, perhaps, should be brought in the Superior Court without a man being penalised in the way of costs, because there can always be an application to remit, and the facts can be put before the Court. If a man sues in the Superior Court when he could have sued in the Circuit Court, the defendant has the right to apply to have the case transferred.

1140. So that if the case is kept in the Superior Court, it must be a case that is fit to be kept there?—Yes. I would not bind a man to sue in the Circuit Court for £200 or £300.

1141. That is with reference to the common law jurisdiction. Have you any observations to make with reference to the other jurisdiction?—Not the criminal jurisdiction.

1142. But there is equity and company jurisdiction?—I do not think we have had any company cases. I never had at any rate.

1143. They would be very rare?—Yes, but we have a large equity business and it is being done most satisfactorily and expeditiously. We get through cases and get them wound up in a very reasonable time.

1144. Have you had many equity cases which are over the jurisdiction of the old County Court—over £500 personalty or £30 valuation?—Not very many yet.

1145. I suppose they are nearly all cases which would have been brought in the County Court originally?—Most of them would have been. They increased the figure of £30 to £60, and that brought in a certain number of farms, where the parties are suing to recover mortgages, and intestates’ estates.

1146. You would be in favour of retaining the present jurisdiction in these cases? —I certainly would. I do not think it is too high.

1147. As to the costs in the Circuit Court, what is your opinion as to giving the judge discretion?—I am only speaking of Galway, although I practice in Roscommon as well. The Judge held that he had not jurisdiction to change the costs under £50. We still get the same costs on processes under £50 that we always got, and the costs follow the event.

1148. Over £50, what is the practice?— The judge considered he had some discretion over £50 and we held a meeting. I think I proposed that in cases of between £50 and £150 the plaintiff should get seven guineas costs or the defendant, if the case were dismissed, £7. The seven shillings were practially to cover the stamp duty and service on the Civil Bill.

1149. Was the Judge to have any discretion? Could he refuse costs?—I dare say he could but, as a matter of practice, he does not. Costs follow the event.

1150. Would you be in favour of depriving the Judge of any discretion?—I think the old system of costs following the event should remain.

1151. Up to the full amount?—Yes. That was only a temporary provision that I mentioned. In cases between £150 and £300, we were to get ten guineas for the plaintiff or £10 for defendant if the case were dismissed.

1152. What observations have you to make on the present system of appeals from the Circuit Court?—I am against the present system of appeal and I approve of everything that has been said against it here since I came into the room. In the first place, it is too expensive and, in the second place, there are some cases in which I would have advised an appeal but for the question of costs. I had to tell them that in a case involving £30 or £40 the costs against them might be £15 or £20, and they would have to pay me afterwards.

1153. Have you any other reason for being dissatisfied with the present form of appeal?—I thoroughly agree with Mr. Delaney. The parties are not satisfied. The evidence is taken down and the parties hear no more about the case except that it appears in the list. They would like to have it heard locally and, if necessary, to produce further witnesses. You may have a case in which falsehoods are sworn and there is no means on the appeal of giving evidence to contradict them. If you have an appeal heard in the ordinary way, you can get further evidence to rebut false evidence if the rehearing is in the same county. I would not object to what Mr. Delaney suggested, to have two counties joined and let the Galway man go to Roscommon one sitting and the Roscommon man go to Galway for the next sitting.

1154. That is really a question of convenience?—Yes.

1155. On the question of appeal, would you be in favour of giving the Judge-on-appeal any discretion as to the costs of the appeal?—I would apply the same rule as in the Circuit Court—costs to follow the event.

1156. At present, there is the right to a jury in the Circuit Court?—Yes, but it is very seldom exercised.

1157. I was just going to ask you if it is often exercised?—In civil cases, we have had only three juries inside the last three years in Galway. As a rule, we do not approve of the jury trial. The parties, as a rule, are better satisfied, and the profession is better satisfied, to have the Judge decide the case.

1158. In addition to the alteration in the mode of appeal, have you any observation to make regarding the power of the Circuit Judge to state a case?—No. I think it is a very good thing that he should have the power to state a case. It is very seldom it is applied for, but if the occasion should arise, it might be useful.

1159. That is where the only point in dispute is a question of law. If that arose, it would be cheaper and more satisfactory than a re-hearing in the country probably would be?—It would.

1160. You think that ought to be done? —Yes.

1161. Garnishee is already within the jurisdiction of the Circuit Court?—Yes.

1162. Would you retain the office of stenographer if the mode of appeal were changed?—If it is not too expensive, I would.

1163. It would be useful in some ways? —It would be useful, but the number of appeals you have from one Circuit Court is comparatively small. I do not know whether, for the sake of those appeals, it is worth while taking down 15 or 30 cases. There might be an appeal in only two or three cases.

1164. There would be, of course, the alternative of only applying a stenographer where the parties required it to be done?—Yes. But it would be very hard to know whether you are likely to appeal or not until the case was heard.

1165. Of course, he is required for the criminal business all the time. He has got to be there. You must have an official shorthand writer on the criminal side?— It was not necessary, I think.

1166. Deputy Rice.—You must have one now?—The criminal business is taken on a particular day—generally the first day of the Circuit Court. As a rule, one day finishes the criminal business. Of course, in some places, it might occupy two or three days, but once the criminal business is started it is finished before any other business is taken up.

1167. Senator Hooper.—Am I right in taking it that you are in favour of giving High Court costs in all cases tried in the High Courts, whether they might have been tried in the Circuit Courts or not?— No. I would give the party the option of going to the High Court, but I think the present right of the judge as regards costs, if he thinks it is a case that should have been brought in the Circuit Court, should remain.

1168. You would leave the discretion still with the judge?—Yes.

1169. Deputy Rice.—Is it not a fact that under the present system the hearing of these Circuit Court cases is often extremely expensive to the parties. In your area, to my personal knowledge, senior counsel are brought down frequently at a fee of 25 guineas or 30 guineas to the Circuit Court?—It very rarely happens that senior counsel are brought down to Galway or Roscommon.

1170. Is Mayo part of your area?—No.

1171. Is Judge Wyse Power the Judge for Galway only?—Judge Wakely is the Judge for Roscommon. Judge Power is the Judge for Galway.

1172. Would you not agree with me that frequently senior counsel have gone down before Judge Wyse Power—senior counsel on both sides?—They might have been down in one or two cases.

1173. In quite a number of cases?—I do not often see them down any time I am there.

1174. As regards juries, is there not frequently a difficulty about getting a jury, for this reason, that when application is made to the judge he has to point out that you cannot have a jury in that town, that you must go to some other town?—Our business in Galway is taken in the town of Galway, except two sittings in Connemara.

1175. Where are they?—Clifden.

1176. Is it not a fact that in some cases where application was made for a jury the Judge had to point out that they could not get a jury in that town, that they would have to go to some other town?—I am not aware of that.

1177. Is that not an effective stumbling block to people who want to have a jury?—The only case I knew of was a case of seizure by the sheriff. It was an interpleader, and the Judge refused to give a jury. He heard the case himself in Roscommon.

1178. You do not purport to speak with full knowledge of the two questions I have mentioned—the frequency with which senior counsel is brought down before your Judge and the difficulty of getting juries?—I have very seldom seen senior counsel down in Galway.

1179. You are only speaking from personal knowledge?—And hearing the Judge settling cases for the convenience of counsel.

1180. You came here to give evidence on behalf of the local Bar?—Yes.

1181. May I suggest that you are not fully briefed by them on local facts?—It is a fact that I got no instructions.

(The witness withdrew.)

The Committee adjourned at 5.10 p.m. until to-morrow at 11 a.m.

* Appendix 2.

* 1925. (2) I.R. 240.

* Appendix 3a.

* See Ques. 5844-5.

* See Appendix 4.