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)

De Céadaoin, 15adh Eanar, 1930.

Wednesday, 15th January, 1930.

The Joint Committee sat at 11 a.m.

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

His Honour Circuit Court Judge St. L. Devitt, called and examined.

1182. Chairman.—Judge Devitt, you are now circuit Court Judge of what, I think, is known as the Eastern Circuit? —That is so.

1183. At the inception of the Circuit Courts, you were a Circuit Judge on the Northern Circuit?—Yes, for four years practically to the day.

1184. Therefore you have had continuous experience of the working of the Circuit Court system since its commencement?—Yes; I have sat continuously as a Circuit Court Judge.

1185. And we know that you were an active, practising barrister before that? —I was. I was twenty-two years at the Bar.

1186. Have you any views that you would like to put before the Committee on the subject of the District Courts? We have been hearing that the District Court has been a very great success?—I can vouch for that. It has worked very well. My own feeling is that perhaps the jurisdiction in tort in the District Court might be raised to the same level as the jurisdiction in contract.

1187. That is, £25?—Yes. That is only my own personal view. I know that several of my brother Judges do not take the same view. They think that the present jurisdiction is sufficient. My experience is that a great number of running-down cases come into the District Courts, and that £10 is hardly adequate if a man’s bicycle is smashed and his clothes destroyed. The man may think that he ought to get £12, £15, or £16, but he has to reduce the claim to £10 so as to get the case heard in the District Court. I think that if the jurisdiction in tort in the District Court was raised to the same level as in contract, it might work very well. Undoubtedly, the District Courts in the two Circuits that I have had the honour to preside over have worked very well and very satisfactorily.

1188. Of course, you have had very considerable experience as regards appeals from the Districts Courts. In your experience have there been many appeals from the District Courts?—No, not many. They would vary from seven to ten at each sitting, and at least half of those would be settled and I would not have to deal with them at all. I have always made it a rule, and I think other Circuit Court Judges have done the same to hear appeals from the District Court at each sitting even if that means leaving over other business. I think it is only right that these appeals should be heard at once.

1189. Has the appeal system from the District Court worked well in your experience?—Yes, it has worked well.

1190. Coming to the Circuit Court with which you are more immediately concerned, do you consider that the Circuit Court has been a success?—I think the Circuit Court has been a very great success. That has been my experience on the two Circuits over which I have had the honour to preside. The Circuit Court seems to have gained the confidence of the people. They are all coming into it, and as far as I can see the work, if anything, is increasing. The people are making good use of it. From what the practitioners tell me, the Circuit Court has been a great boon to the people. I can speak more confidently of the northern Circuit than of the eastern Circuit which is nearer to Dublin. I remember that in Donegal the Clerk of the Peace there— Mr. Wilson, a man of great experience who served, I think, for forty years under the old system—told me that it was undoubtedly a very great blessing for people like those in Donegal. He told me that in the old days out of every ten writs issued, nine would never come on, not that there was not good cause but that the people could not face the expense of coming up to Dublin if there was going to be a fight. As a result, they settled for small sums, discontinued the writ or abandoned a certain amount of the claim and went into the County Court. Now they can come into the Circuit Court and have their case tried without any feeling that any injustice is being worked.

1191. I take it that owing to the condition of the people in Donegal the cases there are not what would be called big cases?—I am talking of large cases—cases that would not come under the old County Court jurisdiction.

1192. During the four years that you were on the Northern Circuit, had you many of what would be called large cases —that is, for sums over £200 or over £150?—There would be a certain proportion at every sitting. I have not the figures, but I should say that at least half a dozen at each sitting on the Northern Circuit would be for claims for over £200. I do not say that all of them would be fought out. Some of them would be settled.

1193. Do you consider that the jurisdiction of the Court is satisfactory?—I do. I think that the present jurisdiction meets a want which was long felt. The people now know that they can not only— if they are plaintiffs—prosecute their claim, but that they can have it heard more or less in their own neighbourhood, that there is no difficulty about bringing up witnesses, and, above all, that they are not faced with the great expense of bringing up witnesses to Dublin and of being burdened with very great costs. The same applies in the case of defendants. I think that the Circuit Court has been a very great boon to the people, and that the present jurisdiction is satisfactory.

1194. Are there any special objections to lowering the jurisdiction, so far as litigants are concerned, that you would like to bring before the Committee?—I think there would be very great objection to that, and for this reason, that £300 was more or less the old common jury jurisdiction that we used to be familiar with in the High Court, and that sum covers the class of case that people in the country would be concerned in. That is the highest figure that their claims would amount to. If they have to come in on a lower jurisdiction, they will, if they have a claim, have to abandon part of it, as they used to do in Donegal. Having been accustomed to the present system of £300 jurisdiction, it would create a certain amount of feeling that they were not being rightly treated if they had to abandon the excess of their claim in order to come within the lower jurisdiction, or else go to the High Court.

1195. That would apply only to cases of contract and not so much to unliquidated damages?—It would apply to unliquidated damages, too. Take one of these negligence cases which are getting very common now. Take the case of a man who meets with an accident in a motor car. If he puts his claim at £300, he feels that he is going to get bare justice, but if he has to put it at £150 he will feel that he has lost a chance of getting what perhaps is his due. I have never heard any complaints about the present jurisdiction. It has worked well.

1196. Have you had on your former Circuit anything like a regular Bar of barristers attending the Courts?—I had, in every one of them. I always had a good Bar in Castleblayney. It would not be so good in Monaghan. A great number of barristers always attended at Cavan, particularly on equity days. The equity business in Cavan sometimes occupied three days. In Manorhamilton, barristers from the Western Circuit attended. Barristers always attended the Courts in Donegal. When the Circuit Court system was set up, I was still at the Bar. I was then afraid that the Circuit Court was going to do away with the Bar, but the conclusion that I have come to, after my five years’ experience as a Circuit Judge, is that we are training up a new Bar in the Circuit Courts. A great number of young barristers who would not have got a chance under the old system are coming now to the Circuit Courts and getting a great chance.

1197. What standing are those barristers? Are they young barristers just starting out and taking their chance?— Some of the older ones attend, too. The barristers attending range down as they did in the old days. Of course, the young men going around now are getting a great chance that they would not get long ago.

1198. And how are they doing?—They are doing well. I can see an improvement in them at every sitting.

1199. You are, therefore, of opinion that the amount of the jurisdiction should remain as it is?—I am decidedly of that opinion.

1200. Would you give us your views as to whether there ought to be an alternative jurisdiction—that the plaintiff might go, at least in cases over a certain amount, to the High Court without being penalised?—That presupposes that when the claim was over £300 the plaintiff would prefer the High Court to the Circuit Court.

1201. Chairman.—Yes, or even if the sum was smaller?—I see no objection to that, but you should give a discretion to the High Court.

1202. That is in a case that ought not remain in the High Court there ought to be power to remit?—Of course, there is power in the Circuit Court to say a case should be tried in the High Courts on the application of the parties, and I think there is power in the judge to transfer it. Judge Kenny told me of a case that came before him, and he thought that it should be transferred to the High Court, and it was transferred with, I think, the agreement of the parties.

1203. You see no objection subject to that power to remit?—No, I see no objection to that. I hear complaints made here in Dublin by solicitors in cases where English traders want to bring a claim against defendants. The question of transfer, in such cases, seems to be very rigorous, whereas if such cases were tried in the High Court they would get far more speedy justice, because in many instances there might be no defence at all put in. When these cases are transferred to the Circuit Court it means delay.

1204. On that question of quick judgment, there is in the Circuit Court no practice like that of the old motion for final judgment?—No, but there is power in the Act to enable us to give final judgment.

1205. But not on affidavit?—That would be according to the rules that were drafted. I do not think it is a practice that will spring up in the Circuit Court because the delay would be too much We were all of opinion that it would never work in the Circuit Court.

1206. Would it be advisable to have a motion for final judgment before the county registrar in unopposed cases or cases in which there was no real defence as before the Master in the High Courts? —I think that jurisdiction has been given to the county registrar. That case was put before the late Mr. Kevin O’Higgins that we were really limited inasmuch as there was no power given to the county registrar and he had a section put in the Court Officers Act to give them power; they are entitled to mark judgment in default cases if there is no defence. We have the rules for that. In other words if no defence and no appearance is put in in the case of a Civil Bill the county registrar can give judgment to the plaintiff on affidavit of debt. That power is given to the registrar by the Oireachtas. We were in a stronger position, drafting our rules, than the High Courts were, as regards matters of that kind.

1207. Have you much experience of interlocutory applications being made in the new Circuit Court?—Yes. They sometimes come up to me to Dublin to make an application for an injunction or an application perhaps, to serve somebody out of the jurisdiction.

1208. Or to garnishee?—Yes, informally at present, because we have no binding rules. What they do is, they issue a notice of motion. They know where I am and they send it on to a local solicitor and he moves it before me.

1209. To a local solicitor?—Yes. The solicitors are very friendly to each other. Some local solicitor moves it before me. I read the affidavit and if I think it proper I make an order and direct my registrar to take a note that I have issued the order and he sends it to the county registrar; it works well.

1210. Do you consider the present state of affairs as far as it goes, very satisfactory?—Yes.

1211. It does not require any amendment?—I do not think so. The rules will provide for the regular transfer and the solicitors will be quick to take it up.

1212. The judgments of your Circuit Courts are registered in your Court office? —Yes.

1213. They are not registered automatically in a central office in Dublin?— No.

1214. Have you any suggestions to make upon that subject? Do you think it would be wise to have them registered in a central office when they were over £20?—Of course there is power under the Act to register any judgment. As a matter of fact, Circuit Court judgments are filed. Power is given under the Statute to do it.

1215. Would it be advisable to have an automatic register of your judgments over £20?—I think it would.

1216. There would then be only need for one search here in Dublin?—Yes.

1217. And that would not be difficult or entail much expense?—I do not think it would. We thrashed all that out when first engaged in the drafting of the rules. Mr. Lupton helped, and he was full of the idea that our judgments should be registered in Dublin, for the reason that it would be very difficult for a man who wanted to advance money to somebody to find out what that person’s condition was if he had to search through the records of all the Circuit Courts, whereas if there was a central office in Dublin he would only have to make one search. These rules were not passed. I think there was some doubt whether it would not lead to a certain amount of expense, but I think it would pay by the ease with which you could come to the central office and find out what a man’s position was.

1218. Now, with reference to the mode in which cases are brought before your court—I mean the documents on which they are brought—you have no rules at present as to pleadings. You have only the original document setting out the general nature of the case?—All we have at present is the civil bill.

1219. What are your views as to the necessity for something more?—I have always been of the opinion that it is necessary to have some form of pleading. Curiously enough, the other evening I was looking over the “Law Times” for December, and there was a case there, not in the reports but in the general body of the “Law Times”—which came before Mr. Justice Meredith and Mr. Justice Johnston. It was heard on appeal from the judgment of a Circuit Court Judge, and it was about the warranty of a motor car. Both the Judges said that that was a case in which there should have been pleadings both by the plaintiff and by the defendant. The reason I say that is because although we are a new court we are constituted more on the lines of the High Court than any court I know, and it was always recognised that the plaintiff should, at least, inform the court and his antagonist of what it was that he complained, and that the defendant should inform the court as to what was his defence, whether it was a denial of what the plaintiff said or, if it was true, whether or not he had a defence to it. I do not think there is any hardship in making the parties to litigation make up their minds as to what the case is that they want to present. It would greatly shorten the proceedings if the judge knew what the issue was and so confine the parties to it. I could give instances that have occurred. A plaintiff comes up to prove a will, and I cannot be told until the defendant stands up to make his defence what the defence is to be. I may ask, and I am asked in reply: “Am I really bound to make my defence until the time comes?” and I have to allow the defendant to cross-examine the plaintiff’s witnesses, and I do not know but perhaps he is simply cross-examining the plaintiff’s witnesses in order to find out what kind of a case he ought to make.

Senator Dowdall.—Taking a kind of sporting chance?

1220. Chairman.—Of course, in the High Courts you have power to get particulars in addition to formal pleadings. Would your suggestion be that there should be a certain form of pleadings that would give particulars before the issues are knit?—Yes, that the plaintiff would say: “My case is that I was injured by the driving of a motor car through the gross negligence of the defendant, consisting as follows…” Then the defendant can say: “I was not negligent, or, if I was, you were negligent in doing so and so.” It can be very simple, as you know, in the High Court. If you try to be too elaborate or waste too much verbiage you can be punished for it in the way of costs. We were trying to make the plaintiff set out particulars of his claim as simply as he could, and the defendant to make out particulars of his defence as simply as he could. Then either side could call automatically on the other to give up documents. The plaintiff could say: “You referred to such and such documents. Give them to me.”

1221. Would you have any limit of amount in the case in which you ought to have pleadings, or would you have it in the whole jurisdiction?—I think it ought to be either all or none. I do not think there ought to be any limitation. Sometimes the amount in dispute is very small. You may remember a Scottish case that went to the House of Lords about a penny. A conductor put a person off a ’bus because he said he tendered a bad penny. The whole case was: Was that assault?

1222. I had a case in the House of Lords, where the amount was £22 odd, in demurrage, and we got our full costs in the Lords?—Demurrage is a case where you might have a very difficult question of law though the amount would be very small.

1223. You have given us your views on the common law jurisdiction of the Circuit Court. Have you any remark to make on the subject of the other jurisdiction, say, equity?—My views are that if any change is made in equity jurisdiction it should be to increase it.

1224. The present jurisdiction is £1,000 personalty and a valuation of £60?—I know that some people have said that the valuation should not have been altered. I never met anyone in the country who agreed with that. With regard to the £1,000, I would not touch that at any rate. If anything, I would increase it. My solicitors have said to me that they can go through their Chancery cases much better in the country. In both my Circuits, the County Registrars are on the best of terms with the solicitors. The solicitors are able to go into them and ask for assistance in a much more informal manner than here in Dublin. Consequently, they say, when dealing with the reports and inquiries always incidental to these cases, that they have their own hands in them. They say they cannot go to Dublin in connection with all these cases. They have to leave them to the town agent, and though they do not make any charge against the town agent, still they and their clients prefer to have personal supervision over the cases. They are all in favour of keeping, as far as they can, their Chancery suits in the Circuit Courts. I have had several cases in every county where the amount was over £1,000.

1225. The Chamber proceedings in your Circuit Court in equity are satisfactory? —They are. The County Registrars do their work excellently.

1226. Would you be in favour of depriving the Circuit Court of any bankruptcy jurisdiction?—I have not got that.

1227. Would it be any use?—I do not know that it would be a great deal of use in any of the Circuits I have been on. It would be of most use in the Circuits which have big towns, such as Cork or Limerick.

1228. The probate jurisdiction?—That works all right.

1229. You do not suggest any alteration of any kind in that?—No.

1230. The winding-up of companies?—I have very little of that either. What I have is practically negligible.

1231. Have you many cases in the Circuit Court that were within the jurisdiction of the District Court?—A good number.

1232. What kind of cases are those? It seems to be the case in nearly all the Circuits that a large number of cases which are within the jurisdiction of the District Court come into the Circuit Court?—They sometimes bring their tort cases in the Circuit Court, and when you try them out you find that though technically they have brought these within the Circuit Court, by no stretch could you give more than £10.

1233. In cases of contract, have you any number of cases under the £25?—Yes, especially Land Commission cases. A great number of those are brought in the Circuit Court, and they could have been brought in the District Court. I have never made any complaint about it, because at present, owing to the absence of rules in the Circuit Court, the costs of undefended cases like that are a little less in the Circuit Court than in the District Court. When that was pointed out to me I ceased grumbling. They are nearly all undefended. There are a certain number of cases in contract, £15, £18 or £20. They bring them all along. I have never liked to interfere with them, because, after all, the Circuit Courts have the jurisdiction.

1234. Is it within your present power to remit a case to the District Court?— No.

1235. Do you think that it would be a wise thing to have jurisdiction of that kind?—I would like to emphasise that this is only a personal view. We have discussed this amongst ourselves—my brother Judges. I am of opinion that, after all, the Circuit Court is for the people, and if they want to come in why should we not let them do so? There are some cases where it is a hardship, and others where it is fair.

1236. You have told us that there were a large number of Land Annuity cases. Is there any hardship in cases of that kind being brought in with regard to costs?—If anything, it is an ease in the costs.

1237. Senator Dowdall.—That is the only reason I have heard for having no rules yet?—The difference in costs is very small but even if it were only a penny less it would stop me.

1238. Chairman.—There is another hardship in bringing the defendant a very long distance?—Yes, as a rule the District Court is at his door. In theory, that is an objection, but in practice it is rarely that he comes in. Where the amount was disputed, I have gone into the point and found that the defendants were right. They are not represented by solicitors and I have to give them liberal expenses.

1239. Distance is not such a drawback as it used to be?—No, and I think they prefer to come in before the Circuit Judge.

1240. You do not think there would be any necessity for power to transfer?— The only reason is I would like to have it in reserve. I would not say it is very urgent. Several of my brother Judges think if they want to come into the Circuit Court they should be allowed to do so.

1241. Is there any other observation you would like to make to the Committee on the question of the jurisdiction of your Circuit Court?—No, the Circuit Court has worked well with its present jurisdiction. I have not heard any complaints about it. In the outlying parts of many of the circuits it has been a decided boon. With regard to jurisdiction, the Circuit Court has functioned well and I suggest that you leave it alone until it is shown to do otherwise.

1242. In cases in which a complicated question of law arises, is there any difficulty in having it argued in your Circuit Court, away from books and libraries?— That is the drawback. We have no library in any of the counties. Sometimes, when I find Counsel are not prepared to argue I adjourn the case to a certain day. Most of the Counsel in my circuit have motor cars and bring down books from Dublin.

1243. That is, if they know before Rule-making hand?—Yes, and I cannot say that I remember at any time being embarrassed by not having a case argued.

1244. You have power to state a case? —No power to state a case.

1245. Ought you to have that power? —It would be much more satisfactory in a case in which there is merely law concerned where the facts are either actually or practically agreed on?—I would be very glad to have that power.

1246. That is to do it on your own initiative or on the application of either side?—Yes.

1247. That is all you wish to say on the jurisdiction of the Court. Now we come to the question of appeal. What is your general view as to the present system of appeal?—My view is—and I think it is the view of most of my brother Judges— that the present system of appeal is really as good as you are ever likely to get. You have at present a stenographer. In my Circuit, both my stenographers are very good men. They take down the evidence in the form of question and answer verbatim—not a paraphrase—and they also take down verbatim the judgments. Then, when there is an appeal to the High Court, that verbatim report of the evidence together with the verbatim note of the judgment of the Judge, goes up to the High Court, also all the documents admitted in evidence. They have the office copy of the Order that was made and they have the reasons for the decision.

1248. Counsel’s argument is not taken on the notes?—No, but perhaps it might be as well if that were done as sometimes I think the argument of counsel would be helpful to the Appeal Court

1249. Especially where the question is one of law?—Yes. That gives you all the materials for the Appeal Court. The only objection which I heard to that is the objection that it should not be an appeal but a re-hearing which are two distinct things. No Appeal Court interferes with findings on facts, but it would interfere with the inference from facts. If you allow people to come into Court, put their case, be examined and cross-examined and a decision is given and then if time elapses and the parties come together again and go over the same thing, you will have all the evils of the old system.

1250. This is a very important part of our inquiry, because I think I am right in saying that the majority of witnesses whom we have heard up to the present have taken a different view to the one which you are putting forward. Therefore we want, if possible, to get the other side of the question put as clearly and perfectly as possible. The case which the other witnesses put before us was that the Act of 1924 gives an express right of appeal on the facts. They are of opinion that it was intended that that should be an effective appeal on the facts, but that the present appeal is not effective on the facts as it does not enable the appellate tribunal to come to a decision on the facts as distinct from an inference from the facts. That is the case put up by what I might call the other side, that there was this intention to have a real appeal on the facts, but that there is not a real appeal on the facts now?—I think that that comes from a confusion of ideas. An appeal is a well-understood thing. We had appeals under the old system and you have them still in England. You had appeals not only in cases tried by a jury, but also in cases tried by a Judge without a jury, as most of the Circuit cases are tried now. There was always an appeal in such cases. Owing to the limitation of the human intellect, all Judges recognise that they cannot try questions of fact on appeal as such questions are absolutely for the court of first instance. You have not only to take the words as they fall from the mouth of a witness, but you have to take into consideration his appearance, the tone of his voice, how he conducts himself in the box, and also the general atmosphere of the Court at the time. I have seen witnesses and I disbelieved every word they uttered owing to the way they conducted themselves, taking several seconds to answer simple questions, being highly nervous and twisting and turning. If the Appeal Court had an opportunity of seeing them, they might alter their conclusion. It will not, however, solve the problem to say that all witnesses must be brought before the Court of Appeal. Under the County Court system, in which the jurisdiction was limited to £50, there was an appeal, but it proved not to be an appeal but a re-hearing. Anyone who was dissatisfied with the decision of the County Court gave notice of appeal to the Judge of Assize. That was recognised at the time as being a bad system and as breeding a good deal of evil, especially a tremendous amount of perjury. That is a strong word which I am not fond of using but undoubtedly that was one of the evils which the old system bred. A plaintiff went into the County Court and made his case, the defendant made his case, and then the Judge gave a decision on that evidence. Both parties then knew fairly well the strength of the case of the other, and when such case was presented to the Judge of Assize, it could hardly be recognised by the Judge who originally heard it. The parties either changed their case or changed their witnesses. When I was a young barrister, it was the custom to dine with the Judge and it was thought to be a great honour for a young barrister to sit at dinner with the Judge. I remember hearing two High Court Judges discussing the question of perjury in different counties and arguing as to which county produced the best perjurers. That made a great impression on my mind and I have never forgotten it.

1251. Is your main objection to re-hearing that it is productive of perjury? —Yes. It is not fair, when a man has produced his witnesses and got a judgment, to put him to the expense of having the same thing heard all over again. It is not done in any other country in the world. They have never tried it in England. Appeal is only taken on the certificate of the Judge, and only on questions of law—not on questions of fact. The Act gives an appeal on the facts, but I think that it must be read in the light of human limitations, as a man cannot hear a witness on his written note. You must see the witnesses yourself.

1252. Your view, I take it, is that the right of appeal given by Section 61 would not include a re-hearing—would not imply re-hearing?—No, I am quite clear upon that, if I may respectfully say so, because Section 61 of the Courts of Justice Act says that the appeal shall be on the stenographer’s note.

1253. Yes. Now we go back a stage behind that. In your opinion, ought there to be an appeal on facts in such a way as to enable the appellate tribunal to differ on questions of fact as distinct from an inference on facts?—I do not. I think that that would lead to injustice. We are all human, liable to err, and when experience has shown that a certain way is the proper way for appeals to be conducted, I do not think that at this late stage you can get a better way. I think that it would be a retrograde step to put the parties to such expense, and I do not think that it should go forth that the only way in which an Irishman’s case can be tried is to give him two trials. It would put a great deal of expense on the litigants themselves. I have had cases in which for some reason or other there had to be an adjournment, and when the case came on finally I was told that in the interval one of the witnesses had gone to America. Similarly, a man may get a case tried, and if there is to be a re-hearing he may find himself in the position that one of his most important witnesses has left the country.

1254. Have you any personal knowledge of the cost of appeal under the present system?—I have no experience of that. I can only say that I was told by Mr. Ward, my County Registrar in Donegal, that the rule requiring the lodgment of £5 for the stenographer’s notes was a hardship, because the expense of the stenographer’s notes never came to that amount.

Chairman.—That is a matter for rule.

Senator Dowdall.—It is well to have it on record.

1255. Chairman.—In your two circuit districts, are you of opinion that the people are satisfied with the present system of appeals from the Circuit Court?— I never heard any objection to the method of appeal, but I have heard solicitors who, after all, are the mouthpieces of their clients, complain of delay. There is delay. That is not because of the system, but owing to the fact that the High Court is shorthanded. In this respect, I would suggest that there ought to be two High Court Judges appointed to hear Circuit Court appeals. Let that be their primary function and make it a whole time job to hear appeals. It is only when the present Judges have finished their ordinary duties that they can take up these appeals. I may be giving the matter undue importance, as it affects myself, but I think that Circuit Court appeals are of sufficient importance to have a specially constituted branch of the High Court definitely set aside to deal with them. I think that you would want two or three fresh Judges to do that.

1256. I think that that is a subject which is within our reference?—It may, perhaps, be rather outside my province to advocate that. That has been borne in on me for a long time. I am of the opinion that there should be two or three Judges appointed to do appeals, and after that to be at liberty to do other High Court work. I think that the High Court, as at present constituted, is shorthanded. A strong objection to the present system of appeal is that a litigant who gets judgment may have to wait for eight months.

Chairman.—Sometimes it is eighteen months.

Deputy Rice.—The appeals which are at present at hearing are eighteen months old.

1257. Chairman.—Have you heard any complaints on behalf of litigants or by litigants that the appeal is tried behind their backs, that they do not know what is happening, and that they only hear months afterwards that judgment has been reversed?—I heard that at the beginning, before they decided definitely in regard to appeals. Some of the original appeals were appeals on fact, and people complained that they were heard behind their back. Appeals should be heard in the same way as in other countries, on the ground that the judge went wrong on his inference from facts, but finding on the facts is a matter for the primary court.

1258. Is there any other observation you think you could usefully make on the Circuit Court, either on its jurisdiction or on the mode of appeal before the other members of the committee proceed to ask you questions?—No, I do not think there is anything.

1259. Senator Farren.—With regard to the jurisdiction of the Circuit Court, it has been stated by some witnesses that 75 per cent. of the business of the Courts comes within the jurisdiction of the Circuit Court, that is, that 75 per cent. of the business of the Courts irrespective of the District Court, would be transacted under the present jurisdiction in the Circuit Court?

1260. Chairman.—That is the business of the whole country, deducting from it what is tried in the District Court?—I would not be surprised if these figures are right. It is a great boon to the people, it does the ordinary work of the ordinary man.

1261. You have had experience of two circuits, the north-eastern and the eastern?—Yes, of nine counties.

1262. Your Court is practically the Court of the merchant, the trader and the general public in regard to the ordinary law?—Yes.

1263. Is it your opinion that the people who use the Courts, and for whose benefits the Courts were set up, are satisfied with the jurisdiction of the Court?—I have no doubt at all about it. They are absolutely satisfied.

1264. You are satisfied that the community at large, for whose benefit these courts were set up, are satisfied with the present jurisdiction of the court?—Absolutely. I have never heard anyone complain, as I have said already. There has been nothing about the lowering of the jurisdiction but I have heard suggestions made that it was a pity it was not increased even more, even up to £500.

1265. There is permission in that way. With the consent of both parties you have unlimited jurisdiction?—Certainly.

1266. Has that been availed of?—As far as I am concerned, only in one case on the common law side, but frequently it is used on the chancery side.

1267. With regard to the question of costs, would you be in a position to give us any evidence with regard to the relative costs of cases that come before your Court, say claims for sums round about £300—cases at present tried in the Circuit Court—and cases of a similar nature tried in the High Court?—I could not give you any figures, but I can say this absolutely, that there is no comparison at all. It is a cheap procedure now in the Circuit Court. I have never heard any complaint, and I have given directions to the County Registrars, pending rules, that in cases over £100 they are to give two-thirds of the High Court costs. Even with that figure, I have never heard any complaint about costs. In the Circuit Court, it is the County Registrar who fixes the cost, and the County Registrar is not going to let any solicitor run away with costs.

1268. Is it your opinion that the costs in the Circuit Court are much less than if the cases were brought to the High Court?—Yes.

1269. And that if the jurisdiction were reduced it would mean increasing the costs for the litigants?—Yes, increased costs and expenses.

1270. With regard to the question of appeal, you have suggested that a special Appeal Court should be set up for the purpose of hearing appeals in the Circuit Court?—I would not call it a special Appeal Court. It is rather a suggestion that the number of Judges in the High Court should be increased by two or three. There is no doubt that an increase is required in the number of Judges, and of these I think two should be allocated, as their first duty, to hear Circuit Court appeals. In that way, there would be a special tribunal, but when these Judges would have finished hearing the last of the Circuit Court appeals they would be free to do other work.

1271. Something on the lines of the temporary Judges who were appointed, except that they would be permanent Judges and hear Circuit Court appeals, as the Commissioners did?—Yes. At every sitting that would be their first duty.

1272. And if they had no work in the way of hearing appeals from the Circuit Court they could be transferred to the High Court business?—Yes. That would get rid of the complaints about delays.

1273. A good deal of complaint has been made with regard to the delay in the hearing of appeals from the Circuit Court. A very large number of cases are still lying over, eighteen months in arrear. Is it your opinion that some of the litigants who have been defeated in the Circuit Court have appealed because they know there is a possibility of delay? —I am afraid that is only human nature. They appeal because they know it gives them a long time.

1274. The percentage of cases brought to trial in the Appeal Court proves that it is mostly with a view to delay the appeal is brought?—You may take it that that is so.

1275. Do you think that if some effort were made to make it more expensive to appeal from the Circuit Court, it might stop a large number of appeals that would otherwise be lodged? Do you think that that would be a suitable remedy for preventing bogus appeals?— If you put a penalty on, it would not only hit such appeals, it might hit honest appeals. After all, the Act gives the right of appeal, and I think it is only right that the appeal should be there.

1276. You will excuse me asking the question. I am only a layman who does not know much about the Courts?—It was laymen who set up the Courts of Justice Act when all the lawyers were afraid of it. You have justified yourselves as regards the Act. I would not like any penalty in that way to be put on it. I think if you speed up the hearing of appeals, the costs of an unsuccessful appeal would be a sufficient deterrent. I would not like to put any barriers in the way of an appeal. You should give a chance of appeal.

1277. Deputy Wolfe.—On the question of appeals, you said that a re-hearing would mean a great deal of expense to the appellant?—Yes.

1278. Do you not think, on reflection, that you are wrong in that? You may take it, to put you right about the present costs, that they are at least four times as great as under the old system. Do you still say that a re-hearing would be more expensive when we have it in evidence that the cost of the present system is at least four times as great?— I have never gone into the question of costs at all, but if you set up a system of two Judges going round the country, except they go down into each county, that would be another matter. I think the idea was to fix a central venue for the whole circuit.

1279. I think you may take it that the costs, including expenses of appeal, at present are at least four times as great as on the old Civil Bill appeal. Do you not think that that would alter your view when you suggest that a re-hearing would mean a great deal of additional expense? —If these figures are right they would alter it.

1280. I think you may take it that that is so. You were asked by Senator Brown whether you had ever heard any objections to the present system of appeal, and I think you said you did not?—Except at the beginning.

1281. Did you ever hear anyone to say a good word for the present system of appeal?—I do not exactly follow. There is not very much talk about it. As I say, at the start——

1282. Did you ever hear anyone say a good word for the present system of appeal?—I did, some people in my circuit.

1283. You have had a greater advantage than other people have had. Is there, in practice, an appeal on the question of fact?—If you mean that, on appeal, the findings of the Circuit Court should be interfered with, there is not.

1284. The section you were looking for shows that there is not in practice an appeal on a question of fact at present?— On the question of fact, there is an appeal the same as there is in any other country, but the appeal on the question of fact is, are the inferences from facts right? The finding on the question of fact must always be left to the court of first instance.

1285. You think there is an appeal on a question of fact?—In so far as there can be in any country.

1286. “A judge’s exercise of his discretion, if properly applied, is never interfered with by an Appeal Court, even though that Court is satisfied it would have exercised such discretion differently.” You are of opinion that there is no appeal on the question of fact, that if the Court of Appeal held that the judge below was entirely wrong, it should not allow the appeal?—No, not if it thought he was entirely wrong, but if it thinks that there were grounds for a different finding on the evidence, it will not interfere with it. The only way in which you can judge a question of fact is to see the witness.

1287. Does it not all come to this, that at present for all practical purposes there is no appeal on a question of fact?—If you say that you cannot disturb a question of fact as found by the court of first instance, that is right.

1288. I take it that one of your main objections to a change in the present system of appeal is this very serious suggestion that it would increase perjury?— Yes.

1289. You will agree that that would be a very serious question if it were so?— Yes.

1290. You found your opinion on the opinion of the Chief Justice?—No but I have referred to it. The Chief Justice’s testimony would be far better than mine.

1291. You adopt his view as expressed in the course of his judgment in Bohane v. Driscoll?*—Yes. He calls it there an invitation to perjury.

1292. Do you not think that really it is rather more a question of experience than of a legal dictum, as to the fact of the old system producing perjury? If you were to seek information on it, do you not think you would rather look for assistance to people who had long experience of the old system of County Court appeals than to the dictum of any Judge, no matter how high or eminent?—That is a different matter altogether.

1293. It is altogether a matter of experience?—Well, I could not answer that. I was on the Leinster Circuit. I had been on the Connaught Circuit and I changed.

1294. Do you know if the Chief Justice had any experience at all of County Courts and civil bills?—I always thought he had.

1295. He might have had. Do you think that perjury is often successful in this country?—Yes. If you mean that a great number of cases are won by perjured evidence, I am afraid I must say “yes.”

1296. Would you think that perjury is often successful? Assuming that it is there, does it often succeed?—It does, undoubtedly.

1297. Taking it for the moment that it does succeed—and your opinion may differ from many other opinions before the Committee—if it has succeeded before the Circuit Court, as you say it very often does succeed, would it not be very lamentable if a system existed by which you could not reverse a decision brought about by perjured testimony?—How are you to do it?

1298. Is it not very lamentable, if the position is so, that you cannot get any redress against a decision brought about by perjured testimony?—Well, if you can get any system to get over that it would be very desirable.

1299. Is it not lamentable that it should be so?—Certainly.

1300. Would there not be under the old system a chance of meeting that perjury with a re-hearing, with fresh witnesses who could be examined against the perjurer?—There might be some chance of truth being given in the County Court, but the chance of perjury on a re-hearing was almost a certainty.

1301. Am I to understand from you that the perjurer was a gentleman who told the truth in the County Court and committed perjury on the appeal?—I did not say that.

1302. Is not that underlying the decision of the Chief Justice in Bohane v. Driscoll,* and underlying what you have said—that a man would tell the truth in the County Court and would become a perjurer in the Appeal Court? Do you not think that he would be a perjurer right through?—I have seen perjury in an Assize Court, of course.

1303. Have you ever heard under the old appeal system a case of a man who swore what was the truth in the Court below, and committed perjury on the appeal?—That is what perjury is. A man went into the Court below and found that his case failed, and then he strengthened his hand.

1304. Do you not think that the perjurer was a man who would swear what was false in the County Court and would swear the same in the Appeal Court?— No; he might tell the truth in the County Court, and then on appeal he would stop up the weak points.

1305. Now if he goes into your court, commits perjury and succeeds, he will hold his decree?—That has always been so from the beginning of the world. You cannot eliminate the perjurer.

1306. Before we come to the end of the world let us see if we cannot do something. You want to catch the perjurer?— I want to get cases fairly heard, with honest witnesses.

1307. Would you give a man any weapon against a perjurer?—I would give him any weapon you like.

1308. Do you not see that the present system of appeal gives an honest man no redress against the perjurer who has succeeded against him in the Circuit Court?—How can you do it?

1309. Could you not give him a rehearing and an opportunity of producing additional witnesses to meet the case put forward by the perjurer?—That is the whole evil of the system—the production of additional witnesses. Let him produce all his witnesses at the first hearing. That was another evil of the old system; some solicitors would deliberately refrain from showing their full hand because they intended to appeal. You should make your Circuit Court and trust it. That is the only remedy that I can see.

1310. As regards the Rules which were reported on by Lord Glenavy’s Committee—the rules prepared by Mr. Lupton— you say that they were rejected?—Yes, twice.

1311. And then you say they were again rejected. Who rejected them the second time?—I could not tell you.

1312. Nor can I, and I want to know from you?—I do not know whether you would like to hear me on this, because I have been a member of the Rule-making Authority from the very start. We were called together first under the chairmanship of the late Judge Dromgoole, in October of 1924, I think, immediately after we were set up as Circuit Court Judges. We prepared the first draft of Rules; they were laid on the Table of each House, and undoubtedly they were rejected. The late Mr. Kevin O’Higgins called us together again and told us that there were great objections about pleadings, and he told us that we must remedy the pleadings. We redrafted these Rules and we made the limit of pleadings £50 and upwards. That was in deference to what Mr. O’Higgins put up to us as the basis on which they were rejected. Then they were rejected a second time.

1313. Do you know that there was only one set of Rules laid before the Dáil and Seanad?—There was a first and second draft, and there was a third draft prepared under my chairmanship last September.

1314. Chairman.—They never got a second time through either House.

1315. Deputy Wolfe.—Mr. O’Higgins was dead before the Rules were presented to the House.

1316. Senator Dowdall.—The first draft was never submitted to the House, the second went to a committee* and they were rejected, and we have not seen the third lot yet.

1317. Witness.—There were two drafts that were prepared by the Rule-making Authority, and we were told in the first case that they were rejected. We were told to amend the Rules so that there might be no pleadings in small cases, and we did that. The second time there was a Committee set up; Lord Glenavy’s Report* went to it, and we were told that the Rules were rejected. Then we prepared a third draft, but I do not know what has become of that. We were told to have it ready for the 15th October, when the Oireachtas would be sitting, and we had it ready.

1318. Deputy Wolfe.—Did you read Lord Glenavy’s Report?—I did. If I might be excused for saying so, when no step was taken at that time to alter the constitution of the Circuit Court, I, with a couple of other members of the Rule-making Authority, saw Mr. Fitzgerald-Kenney and asked him if he would recognise the Rules, and I read a paragraph from Lord Glenavy’s Report, in which it was said that the problem could only be solved by the approval of the proposed Rules or by a change in the jurisdiction of the Circuit Courts. I said: “You have not made a change,” and he said that his view was that a new draft should be prepared.

1319. Your view was that the draft Rules formed a perfect code?—That was my own view as a lawyer.

1320. That was the view of the ten members of the Committee? I will read from the Report: *“Any careful analysis of the Rules proposed must demonstrate that they will add materially to the cost, complication and delay of litigation.” You will agree that between the members of the Committee and you there is a slight variance of opinion?—What Committee are you talking of?

1321. Lord Glenavy’s Report, which says that it will add materially to the cost?—Will you read the first three lines of the Report, in which they stated that they did not consider the Rules at all carefully?

1322. “Any careful analysis of the Rules proposed must demonstrate that they will add materially to the cost, complication and delay of litigation”?— Would you read the opening words of the Report?

1323. “These Rules have not been considered in detail by the Committee as, in their opinion, they involve the determination in the first instance of the question whether, when considered as a whole, they are suitable and appropriate for the Circuit Courts.” It goes on in the next paragraph to say: “Any careful analysis of the Rules proposed must demonstrate that they will add materially to the cost, complication and delay of litigation”?—All that I can say about that is that at that time Judge Dromgoole was the Chairman——

1324. You disagree with that?—We came to the conclusion that these Rules were requisite for the Circuit Court.

1325. You have been speaking of the necessity of getting the confidence of the people in the new Courts and you have been good enough to point out, and I agree, that the Circuit Court has got the confidence of the people. Is it not essential that the man in the street must be able to get litigation at moderate cost?— Yes.

1326. Do you not think that the set of Rules which you described as a perfect code would add to the cost, complications and delay of litigation?—I do not. I do not want to be controversial about it, but my own opinion, and the opinion of the Rule-making Authority was that they were very simple rules. They look elaborate because we had to prepare for every case in the Circuit Court; we had to provide for everything.

1327. I think you will agree that the man in the street would not agree with you on that?—I do not think so at all. The man in the street has had no chance of trying these Rules.

1328. Having your view as to the desirability of retaining the present system of appeal, and putting before the Committee your suggestion that a rehearing would add to the danger of perjury, do you not think that it is rather inconsistent in another portion of your evidence to advocate an increase of those facilities for committing perjury? Do you not see you have done so?—No.

1329. Do you not see that you have actually advocated an increase in the District Court jurisdiction, which would mean an increase of these rehearing appeals, with a consequent increase in the temptation to commit perjury?—I can quite see the point, but can you show me any way out of it?

1330. In your attempt, which I entirely and respectfully endorse, to put down perjury, you find yourself driven to the position of actually advocating the very system which you say will increase it?— There is no doubt that that is a good point, but the only answer I can give is: What way out is there? If you want to give an appeal you will have to give it on the Circuit Court system, and that would mean stenographers and expense. Undoubtedly stenographers would be the best way.

1331. As to what you do in another Court, would you not suggest that some alteration might be made in your Court? —No, the stenographer is in the Circuit Court. You have a good way in the Circuit Court. There is a system, and everyone is accustomed to the work, so that it is far more advantageous.

1332. The District Court would stand the old method of appeal, but the morals of the Circuit Court would not?—I do not think that is the right way to put it.

1332a. Can you give me any other way? —The right way would be to have a stenographer in the District Court, and to have an appeal in the same way, or by case stated. You could not do it otherwise.

1333. Senator Wilson.—The witnesses who have been endeavouring to have the jurisdiction of the Circuit Court reduced gave two main reasons, one being that the present system is against the giving of credit to merchants here by firms in Britain on account of the difficulty of getting judgment in that Court, and the other was the effect the present system has on the Bar. They stated that the present system is reducing the culture and the efficiency in law of young barristers. As a layman, these are the two reasons that I believe were advanced against the present jurisdiction of the Circuit Court. Does the present system injure credit?—Not that I know. I have never heard that complaint. I heard complaints that if English merchants bring a writ, say, against a trader in Mayo for £60 or £70, it can be transferred at once to Mayo, and that that means delay.

1334. And expense?—Witnesses have to be sent to Mayo.

1335. And, therefore, they will not give credit? In connection with decrees in your Court, you say that a particular merchant would have to search eight circuit registers?—That is, if he wants to give credit. Supposing that some man writes to a merchant for credit, the merchant wants to see if he will give it. In most cases he would only search the area where the man lives, but if he wants to be absolutely secure he searches the others.

1336. It would not be necessary to search the eight circuits?—You could not tell.

1337. He would be a very careful merchant if he did so?—At present, under the Courts of Justice Act, a man can bring an action against a debtor wherever the contract was made. A man living in Mayo might have a judgment against him in Donegal.

1338. You think it would be necessary to have a register in the Circuit Court? Would not that be expensive?—That is why it was dropped. We dropped it because we thought the Minister for Finance would think it too expensive. I do not see why the Committee should not recommend it, as the Minister for Finance might then see his way to do it.

1339. It is really a question affecting credit?—It would be an important amendment.

1340. As to the culture of the Bar, I am told that the present system means that young barristers are for nine months away from Dublin, during which they are not able to get in touch with the leaders of the Bar in the Law Library. As a result, they lose contact with the leaders. Strong evidence was given yesterday by men of experience, and they considered that that was one reason why the Circuit Court is destroying the Bar?—A great number of years ago the present system of barristers living together in the libraries sprang up. That lasted all through what I might call “the old regime.”

1341. With beneficial results?—Certainly. All the barristers met there, and I think Senator Brown will agree that they were really a band of brothers. I do not think there is any community so closely knit as the Bar.

1342. Senator Farren.—We all agree on that?—On my old Circuit in Leinster we used to be called the “Forty Thieves.” I think we were proud of the designation. Really, there was a great bond and there is still.

1343. Senator Wilson.—And the result was beneficial?—There is no doubt about that. There is no greater advantage for any country than to have a body of barristers such as we have in this country. They were a great element of strength. When I say that, it may be thought that I am grinding my own axe, but I think that is the fact.

1344. What will happen under the present system?—Undoubtedly it will be changed, but I think some people are giving in too soon by saying that it will be for the worse. I do not think so. I am glad to say that in my experience the change is not going to be anything like as severe as I thought at first. I know a great deal of Mayo. I do not know Galway. Take my own case in Donegal, which is as far away from Dublin as any other part. All the barristers who come to me in Donegal, come from Dublin and go back to Dublin. They would be with me during each sitting—say three weeks in Donegal. I could never give as long to Donegal as I wish. I think Co. Donegal would take five or six weeks, as the work is increasing there. When barristers come, they go back for the week-end, every Friday or Saturday. They are better off than the Judge. I put down cases for Saturday that solicitors can deal with. The members of the Bar come back on Monday or on Tuesday. I am glad to say that my own experience is that I think the Circuit Court is training the Bar.

1345. But you have no facilities for law and no library?—What better training is there for a young barrister than to be in Court fighting his case?

1346. A very good training?—The very best. I was at first despondent, as I was very fond of the old life. I do not see very much change in the young barristers. They come before me and are able to fight their cases, construe the law, and get assistance in the Library as well. There is, I understand, still the same system by which a man known to be the best in this or that line can be called on for assistance, just as we used to go to John Donaldson or Edward Cumming.

1347. Is there congestion in your Court? Have you too much business?— On the Eastern Circuit there are practically no arrears, I am glad to say. For the first time, I had arrears in Drogheda, because the work is increasing there, and they put two civil juries on in addition to the criminal one. Civil juries take a long time. In the Northern Circuit I had arrears, but that Circuit is too big.

1348. There were two ways suggested here to deal with that: to reduce the jurisdiction of the Circuit Court and to increase the jurisdiction of the District Court. You are against a reduction of the jurisdiction of the Circuit Court?— Yes. As regards the Circuit Courts, they are able to do their work.

1349. If the Rules were in operation?— Yes.

1350. Deputy Rice.—You say that at present the Bar are being trained in their business in the Circuit Court?—On my Circuit.

1351. I do not think you limited it to your Circuit?—To my personal knowledge.

1352. Yesterday we had solicitors of very great experience—the most experienced in Ireland, in fact—taking the same view, but their view is that the Bar has not an opportunity of learning its business under the present system. Would that affect your opinion?—Not the slightest.

1353. We were told by one of these gentlemen that he cannot give briefs to the youngsters going out now, because they have not learned their business, and are not in a way of learning it?—That man speaks for himself. My experience is that solicitors on my Circuit are giving out more briefs than they did at first. It stands to reason that if a man has to fight his case himself he is far better at his profession than by reading books. Whether they read the law or not, is a matter for themselves. If they want to read law they will do so.

1354. It was not suggested by me that the way barristers learned their business was by reading books?—I did not intend to say so.

1355. You said that they learned their business by doing cases themselves rather than by reading books. I suggest that young gentlemen who do cases without seeing how cases are done by leaders of the profession are never likely to get very far. You and I were in the Library together, and I think you will agree that the way we learned our business mainly was by watching cases being done by leaders of the Bar?—I can bear that out.

1356. Where is the opportunity for the young barrister to learn his business in that way now?—Has he not the same opportunities now as in the old days? We did not spend all day in Court. One young barrister who comes on my Circuit does not come every day, and is not in Court all day. He comes to-day, tomorrow and the next day, and then knows that I am going to deal with appeals from the District Courts, and appeals from magistrates for the next two or three days, so that there is nothing going to get briefs on.

1357. It may be different on your Circuit, but, from things we know, young barristers who now go out are away from Dublin eight or nine months of the year. They never see, except on rare occasions when senior counsel is there, cases done by persons of experience. They cannot go to Dublin to follow appeals as they have to keep with the Circuit. As a result, they never see the work properly done?— That does not apply in my circuit—the north and the east.

1358. I do not like to mention names, but you mentioned the names of four barristers as types of excellence who appear in your Circuit?—It was in answer to a question. I would not mention names. I was asked if I had knowledge of young barristers and I mentioned these, which were the first that came into my head. They are men of some eminence in their profession now, as junior barristers.

1359. I think you wished to convey to the Committee that they were types of excellence in the doing of their work?— No, they were the first names that came to my mind. I was asked if only very young barristers came, and I said no, that I had men of varying stages. I mentioned three or four that came to my mind, as being, as I might say, “old hands.”

1360. What I would like to point out is that those with experience of the work, and as types of excellence, were all barristers trained under the old system?— Certainly. I quite agree.

1361. You spoke of one of the evils being that there were no pleadings, and that a defendant could go into Court and refuse to state his defence unless he knew the plaintiff’s case. Is there not an obvious remedy in the hands of the Judge for dealing with that, at the moment?— I do not know any remedy.

1362. Is it not open to the Court, and may I say with great respect, is it not the duty of the Judge, to say to the defendant before he cross-examines the plaintiff: “I will not allow you to ask any questions until you tell me what is your defence, because otherwise I cannot judge whether your questions are relevant or not”?—At present we have no Rules. If we had Rules we could do that. At present I am acting on the analogy of the County Court.

1363. I suggest that no rules are required for that purpose, as it is part of the exalted jurisdiction of the Judge to say: “I will not allow a defendant to see the plaintiff’s case without hearing his own. He must let me see that the questions and cross-examination are relevant, by telling what his defence is”?—What is the Judge to do who is faced with a statute?

1364. He can refuse them a hearing?— If the statute says I must?

1365. No Court of Appeal would tolerate a defendant taking up the attitude that he will not allow a Judge of first instance to know at all stages of the case what his defence is?—The statute is as binding on the Court of Appeal as it is on the Judge of first instance. If they made the Rules, and I put an end to that, I would be acting under the Courts of Justice Act.

1366. I suggest that it is part of your inherent jurisdiction?—There is no inherent jurisdiction to overrule statutes.

1367. I suggest that there is inherent jurisdiction to conduct the case properly and to see that each litigant gets a fair chance?—The statute states that no defendant shall be called upon for his defence until his time comes. How can I overrule that?

1368. I suggest that is a different thing. He may not indicate all the lines he is going upon?—The statute says he need not. I thoroughly agree with you, if I could do it. I have sometimes threatened that I would adjourn the case, but I knew that that was an empty threat. In Dublin you can adjourn a case as the Courts are always sitting, but if I adjourn a case in Donegal I may not be in Donegal again for three months, and I am penalising the plaintiff.

1369. You do not suggest the statute ever intended, and that the meaning of it is, that a man can keep his case up his sleeve until he knows what the other side’s case is?—That was the every-day experience in the County Court, and they are trying to keep it on in the Circuit Court as long as they are let. I have had a slander case where they have refused to tell me whether they were justifying the slander or not. Everyone in the Court says that is the old practice. I cannot go against the dead level of the opinion of the practitioners in my Court. They would be all horrified if they thought that I was overruling a statute.

1370. If you did it once, I think it would put an end to that?—I would be very much surprised if the Court of Appeal would overrule a statute.

1371. You said you heard no complaints of the present jurisdiction?—Yes.

1372. Could solicitors be trusted to express honestly the views of their clients? —Certainly.

1373. Is not Louth one of your counties?—It is.

1374. We were told yesterday by a witness that the Louth solicitors have unanimously passed a resolution requesting a reduction of the jurisdiction of the Circuit Court?—All I can say is, that it is news to me, and I was talking to the County Registrar yesterday.

1375. That evidence was given yesterday?—No solicitor in Louth ever expressed any opinion to me about it.

1376. We had no direct evidence from Louth, but that evidence was given yesterday by a solicitor who was keeping in touch with the matter?—It is news to me. I have dined with the Louth Bar and they never made any complaint to me. I see solicitors every day in Court and I was talking to the County Registrar yesterday, and he never gave me any intimation to that effect.

1377. We were also told yesterday by a solicitor who spoke for Longford, Westmeath, Leitrim and Roscommon, that their view was that there should be a reduction. Would it affect your very definite views on the subject if you knew that there was a considerable body of opinion the other way?—No.

1378. Senator Farren.—It is only fair to the witness to say that that was only a statement by one individual. He brought forward that instance.

Deputy Rice.—It is only fair to me to say that I have not suggested that it was anything more than the statement of an individual.

Chairman.—The Judge is only giving his individual view.

Judge Devitt.—I thought what the Committee wanted was the view of myself as a Judge, not my comments on what I think solicitors have done. It comes as a complete surprise to me if Louth solicitors have passed any such resolution. They have never given me any intimation of it.

1379. Deputy Rice.—Our information may be inaccurate, but that is our information?—I can assure the Committee that it comes as a complete surprise to me. I have never during the past five or six years heard any complaints about the jurisdiction being too high. It has been suggested that in compensation cases it would be a good thing if the jurisdiction were increased. My own view is that the jurisdiction is just right. It has worked out very well. It has enabled everybody in the country to come in, and a great deal of business is now done in the Circuit Court. Undoubtedly, the great bulk of the legal work of the country is done in the Circuit Court.

1380. On the question as to appeal on fact, do you agree that there is no appeal on fact under the present system?—I do not. There is an appeal on fact. I think the only way in which there could be an appeal on fact is in an appeal from the findings of fact. There is an appeal it there is wrong inference from the fact.

1381. That is a different matter. Supposing the Circuit Court Judge goes wrong on fact—do not mind the inferences —is there any appeal from him?—There is no way of deciding that a judge of first instance has gone wrong on a finding of fact. There is no way of doing it. Another Judge may hear the same witnesses, or different evidence—he may hear the same witnesses and he may come to a different opinion. He is as likely to be wrong on the finding of fact as the first Judge. There is no way of testing a finding of fact the way you can make a chemical test. All the judgments of judges are only opinions. You hear a man give his testimony, you hear another man give his testimony, and you believe his testimony is more accurate. Another Judge may have a different view. That is only my view.

1382. Your view is that a question of fact is entirely one for the Judge of first instance?—Certainly.

1383. Judges think they never go wrong on a question of fact?—Lord Birkenhead said that no judge can be infallible.

1384. Not even himself?—He said that. That is why there should be appeals. We would be superhuman if we were always right. I hope we are nearly always right on findings of fact.

1385. You would allow no remedy in a case where a judge of first instance goes wrong in his findings of fact?—I think this country should adopt every other country’s view—it is not perhaps absolutely accurate, but it is necessary for the administration of justice that there should be an end to litigation. You can only do that by saying that the findings of fact by a Judge are not to be looked into, but considered right, just as the decisions of the House of Lords are always considered to be absolutely right, though some of us may have a contrary opinion. It is necessary that there must be finality, and a House of Lords decision is taken as final.

1386. That means that there must be finality somewhere, but some of us would like to put it a little higher than that?— If you do that, you are shaking the administration of justice.

1387. Would you consider an appeal to two Judges on a question of fact would be a good system?—I do not think there should be any interference with the findings of fact in the court of first instance.

1388. You told us that re-hearing was bad as it bred a tremendous amount of perjury?—Yes.

1389. I think it would be deplorable if we were to draw the inference from your evidence that the people of the country are looking for opportunities of committing perjury where their interests are concerned?—I did not say anything of the kind. I say it is not right to go and put an opportunity before men, when they have a case tried, by saying: “Try your chance before another Judge.” You should not tempt human nature.

1390. They have a better opportunity of doing it under the present system than under the old?—That may be your opinion.

1391. Under the present system, the litigant coming into Court does not know what his opponent is going to swear; therefore he has not an opportunity of having witnesses there to contradict the false case—is not that so?—I do not follow you.

1392. There are no pleadings in the Circuit Court?—No, only the Civil Bill of the plaintiff.

1393. You do not know what your opponent’s case is?—No.

1394. So that if a man is prepared to commit perjury in the Circuit Court, I submit he has a much better chance of getting away with it than he had under the old system when the appeal was by way of re-hearing?—I do not follow that. At present no one knows what witnesses a defendant is going to put forward or what case he will make. You know what case he will put forward on paper, but how he will put it forward no one knows.

1395. If a man makes a false case in the Circuit Court, there is no opportunity then of bringing forward witnesses to contradict the false case which has been sprung by surprise. That goes to the Judges of Appeal under the present system on the notes, and in practice it has not been found feasible to call further evidence on these appeals?— There is power now.

1396. I know that there is power, but in practice it has not been done because of the difficulties. So that a witness who commits perjury in the Circuit Court has a much better chance of getting away with it than a witness who committed perjury in the County Court. I think you will admit that Lord Glenavy in his day was a barrister of almost unrivalled experience of the old system?—Yes, one of the finest advocates we ever had on the common law side.

1397. He was also a judge of considerable experience?—Yes; he was Lord Chancellor.

1398. Would it affect your view if I say that he has expressed the opinion that this talk about perjury under the old system is grossly exaggerated and that he knew very few instances of it in his own experience?—I can only give my experience.

1399. Chairman.—After all the Judge can only speak from his own experience.

Judge Devitt.—I am twenty-two years at the Bar and most of that time, until the last five or six years, I was going to County Courts and Assizes the same as every other barrister.

1400. Perhaps your views are erroneous on the subject, and the only way I can put it is to give you instances of people who have seen witnesses all over the country and have come to the conclusion that no such evil did exist?—When I was a young barrister about 1901 or 1902 I was horrified to hear two Judges of Assize contrasting the perjury in the different counties. One county on the western circuit was given the palm for having the most complete and most artistic perjurers in Ireland. That was under the old system.

1401. I suggest that you did not use your sense of humour at that conversation?—It was not said to me; they were talking to one another about it.

1402. Conversations at dinner are very often humorous?—They thought perjury humorous—I was young and I did not.

1403. Personally, I knew only one case in my experience of many years on circuit where perjury was committed on the appeal by way of making a new case?— You were very fortunate.

1404. Do you not think that a great deal of this talk about perjury on the hearing of appeals arises from the fact that very often in the court of first instance the wrong case is presented—I do not mean a false case, but the wrong point of view, and that a different point of view was presented on the appeal?—Is that right? Should that be encouraged?

1405. I am putting it to you that perhaps an advocate did not know what legal considerations he ought to put forward or what evidence he ought to give and he did not give the relevant evidence and there was a mis-trial? I suppose a very important element in considering the form of appeal should always be the cost to the litigant?—Yes.

1406. You have told us that you have not had a great deal of experience of that?—I never have had the costs of appeals before me. They are always ruled by the High Court.

1407. We had evidence yesterday that the costs of the present system of appeal are roughly four times the costs under the old system?—I have not had experience of that at all. Do you mean the old system before the War?

1408. Yes, the County Court and other Courts?—Of course, the whole scale of costs and everything else are different. You would have to check these figures very carefully. I am afraid I am not competent to deal with that matter. I have never had the High Court scale of costs before me.

1409. I mentioned a case to this Committee on a previous occasion which is certainly an instance of many of its kind under the present system. Do you think a system is good under which this can occur? This was an action in the Circuit Court in Mayo, Bryce v. Fleming. It was an action over goods supplied to the defendant’s wife for maintenance, and a decree was given for £25. The taxed costs of the appeal came to £84 14s. 11d. Do you not think that the system under which that can occur is fundamentally unsound?—I do not think that the system is fundamentally unsound. I have heard instances of high costs in the Circuit Court. In one case I was horrified and I can give you the name of the solicitor; he is a very well-known solicitor in Dublin. The costs in one case were brought in at £120 and they were taxed to £85. There is no County Registrar in my area who would think of allowing that scale.

1410. I am talking about the costs of appeals taxed by the Taxing Masters here. We must assume that these gentlemen are very competent?—I quite agree there are no more competent men anywhere than in Dublin, but the case you referred to may have been a very exceptional case; it must have been an exceptional case.

1411. It lasted three days?—Well, that would put up the costs. I had a six-day hearing of a malicious injury claim for £120,000, and the costs were taxed at £120. There was no appeal.

1412. I am speaking of the taxed costs under the present system of appeal?— In the case of a three days’ hearing with counsel, a great deal of the £84 would be made up of counsel’s fees. You cannot have counsel, senior and junior, for three days for nothing.

1413. The Taxing Master would not allow more counsel than should have been allowed?—Certainly. If I had three counsel before me, and especially a senior and a junior counsel, it would be an exceptional case. Four to five guineas are the ordinary fees for junior counsel, and you can get a case fought by the junior counsel very well. If I had senior and junior counsel down in a case for three days, the costs would be greatly increased.

1414. You have never heard any objection to this method of appeal?—No, only to the delays. In the early days there were complaints. The litigants would have their case fought out before a Judge, and then the case goes away to Dublin. As they put it, the case goes to a back room in Dublin to a couple of Judges sitting there, and they reverse the findings of the Judge who saw all the witnesses. That defect has disappeared now.

1415. As regards these complaints, may I remind you that the two witnesses officially appointed by the Incorporated Law Society spoke of that as one of the serious and the evil features of the present system of appeals?—My experience of the country people in Ireland is that they want to have their cases heard in Dublin. They will take cases up under any system of appeals. If they have a hearing in the Circuit Court, and a hearing in the Appeal Court, I do not think you will have a whimper out of them. What they want is not to try to commit perjury, but to make their case before the Judge they have confidence in. If they think he is wrong in law, or that he has made a wrong inference from the facts, then their point is: let there be two Judges in Dublin. I think that will satisfy them.

1416. On the point that you have never heard of objections to the present system of appeals, are you aware that the witnesses appointed by the Incorporated Law Society informed this Committee that the solicitors’ profession unanimously, or as near to unanimity as you can say, condemned this system, and they advocate an appeal by way of re-hearing? Would you be influenced by the fact that the solicitors of this State unanimously condemn the system?—I would not. This question of re-hearing is a matter of principle. It is a matter on which the Oireachtas should be in front of public feeling. What is best for the country should be considered and done. and because the solicitors’ profession advocate another course, is that any reason why the Oireachtas should adopt it? I am only giving you my views, and I did not know until a couple of days ago that I was to be asked to give evidence here.

1417. Chairman.—You are giving us your own opinion?—Absolutely my own opinion. I have thought over this matter. We have a very good system at present, and I think there would be very great danger in departing from it.

1418. Deputy Rice.—You say there are a number of appeals brought for the purpose of delay?—It was one of the Senators who suggested that as a period of eighteen months might elapse before an appeal was heard, it might be that some appeals were based on that. I agree with him, human nature being such.

1419. Under this system, there are considerable numbers of appeals brought for the purpose of delay?—I think it is human nature.

1420. Do you not think the system is fundamentally wrong under which that can occur—that by lodging an appeal for the purpose of delay a defendant can put back the payment of his debt for eighteen months?—That is not indigenous to the system. Why blame the system?

1421. I am taking the system as it is working at present?—You are taking the system as it is not working—excuse me.

1422. That is merely playing with words?—It is not; it is absolutely vital. If I say there is to be an appeal from the Circuit Court and no Judges are available for the hearing of the appeal for eighteen months, why blame the system? The first thing the Oireachtas ought to do is to set up a Court whose duty it will be to hear the appeals, and then we will see whether the system does break down.

1423. Chairman.—It would be a first charge on their time?—They would devote all their time to it. There should be at least two Judges, and I think there might be three. In a matter like this, one should not be skimping the Judges and driving them at high pressure.

1424. Deputy Rice.—On the question of re-hearing I think you said that the system of appeals from the District to the Circuit Court works very well?—It is working all right.

1425. Have you found as a result of appeals on re-hearing that false cases are made on the re-hearing or that perjured evidence is given?—I find the same thing creeping in as in the case of the old County Court. A man will stand up with a newspaper in his hand and say, “Do you say that such-and-such a thing happened to so-and-so,” and the witness answers, “Yes.” Then the witness is asked, “But in the Court below you said the ‘exact opposite,”’ and the answer is “No.” Then he will look up at me and the suggestion is then made that the newspaper report cannot be accepted. It is trying to suggest a certain thing to the Judge, but it cannot be proved because there is no record in the Court. The suggestion is that the witness is not telling the same story as he told in the Court below. I must go according to the evidence.

1426. Do you not see that if there is an advocate, a barrister or a solicitor, who is worth his salt, it is impossible for a litigant to make a new or a perjured case on his appeal?—The Irish witness is not so easily got at as that. In the Circuit Court you have stenographers, but you have not stenographers in the District Court. The ideal thing would be to have stenographers from the very first Court upwards, so that no matter what evidence the witness gives, there is a written record of it always to challenge him. If you do advocate the system of rehearing, I hope you will keep the stenographers, so that they can report the evidence and that can be subsequently used as a check.

1427. Senator Dowdall.—There is no defence by way of a set-off or counter-claim allowed in the District Court?—I do not think there was ever a counter claim. I fancy there was a set-off. I am not sure of the District Court rules at all.

1428. Would you think it advisable that there should be?—There should be a set-off.

1429. What is the procedure?—The only way to do it at the present moment, if you have a counter-claim, is to issue a civil bill. We have no rules for counter claims.

1430. Deputy Wolfe.—How can you do that when the parties live in different areas?—The Circuit is not a county. I have five counties.

1431. In different district areas it could not be done?—That might be an objection. I am sorry I did not know there would be anything about the District Courts. But I see no reason why there should not be a set-off.

1432. Senator Dowdall.—Apart from the legal profession, have you heard any trader or litigant complain of the jurisdiction in the Circuit Court?—No.

1433. The man for whom the Court is there really has no complaint?—No. You can take it that as far as I know they are all satisfied with the Circuit Court.

1434. Both in the Northern area and in your present area you have had the assistance of barristers in cases?—Yes, from the beginning. That is nine counties, down to Leitrim. In Connaught, the Western barristers come in. They often overlap. I have barristers in the Eastern area who go into Judge Sealy’s area. I have had barristers in Monaghan coming from Northern Ireland too.

1435. Did you notice shortly after the new Courts of Justice Act was introduced and began working that solicitors brought more law-books than they had done before?—“Halsbury’s Laws of England” is a very familiar book about my Circuit. That is a great book, an encyclopædia of law, and they are all familiar with it.

1436. Was that so readily available before this new system was introduced?—I would not like to say as regards that. I was not familiar with that. On the question of pleadings, solicitors in my Circuit who knew I was one of the Rule-making Authorities were always at me about pleadings. I said: “You are raising imaginary troubles for yourselves. You know you are pleading all your life.” I also said: “When you get to know the pleadings you will wonder how you went on under the old system, groping in the dark instead of having light. I think you will have no difficulty with pleadings.”

1437. Do you find some young barristers and solicitors in your Courts who were trained under the old system bringing with them books and authorities to which reference might possibly be made in the cases in which they will have to appear?—Yes, where they have had the brief beforehand. I have often had the Reports brought down from the library and handed up to me. Of course they have text-books. They sometimes borrow my own text-books. They have no compunction about asking for a book if they know I have it.

1438. In fact cases do not suffer owing to want of text-books?—I do not think so. I would not say they suffer. I suppose it is a matter for the future, and when they get settled they will have a library set up in each county. I heard from Judge Davitt recently that in the Circuit Court in Dublin they have a very good library there, and Reports which are supplied by the Corporation. I hope the County Councils will provide such libraries. The Reports would cost only £3 or £4.

1439. Chairman.—But you would have to go back a long way?—I am thinking of only the Irish Reports, that is, Reports since the Irish Courts were set up.

1440. Senator Dowdall.—From your evidence it is clear that you favour pleadings?—I do.

1441. Do you think it would simplify procedure and keep the advocates right? —Certainly. It would not mean much additional expense.

1442. As a lay man, I am looking for knowledge in these matters. Should an amendment of the proceedings in Court be allowed in a case where the Judge thinks there was valid reason for it?— That would be allowed.

1443. It occurred to me from your evidence that the County Registrar has important duties and functions?—He certainly has.

1444. I was pleased you spoke so highly of these gentlemen?—I could not do otherwise. They came from the Clerks of Peace and they have been rocks of strength. I should say to the Committee, as I have said in Wexford, that we in the Circuit Court recognise that we are under a tremendous debt of gratitude to the registrars and solicitors. We could not have worked the Courts without the Rules were it not that the solicitors worked hand and glove with us. They have never raised any objection, and had they liked to be pernickety they could have worried the lives out of us.

1445. I have been very much impressed by what you said of the County Registrars. From your experience, are they overworked in your Circuit?—Some of them have to do a good deal of work. That is a matter they are fighting out with the Minister for Justice. They are tying to get more clerks.

Chairman.—We will have three representatives of the County Registrars here and they will give evidence on that.

1446. Senator Dowdall.—With regard to alleged perjury on appeal, would this be made impossible by the retention of the shorthand notes?—That would be a great check. If you have an appeal by rehearing, the Appeal Judges have to be constantly checking the evidence by the stenographer’s notes; but if you advocate a system of rehearing I would advocate keeping the stenographer’s notes, for that is the only check you have.

1447. I believe a little expense is worth incurring to get a good thing?—I am delighted to hear that.

1448. I have seen a lot of County Court work in the old days and I think perjury is rather exaggerated, but I pay a great deal of attention to what you say. Would the introduction of pleadings minimise the facilities for perjury?—I do not know that the pleadings would have any effect one way or another. They would bring both parties to the issues to be tried and would help the Judge in keeping them from wandering away from them.

1449. Supposing a case of Jones against White where the defendant puts in a perjured defence and takes the plaintiff by surprise, if there were pleadings that would not be possible?—That is quite right. From that point of view that is so, but there would be no springing of a surprise.

1450. You are in favour of the appointment of two or three Judges—you prefer three—a first call on whose duties would be the hearing of appeals from the Circuit Court?—Yes.

1451. In your view should these Judges sit together or separately?—Together. An appeal from the Circuit Court ought to be to two Judges, but if you had three Judges you might be able to form a second Court. I would be in favour of having two Judges earmarked for Circuit Court appeals. It is good in team work to have two Judges working together hearing appeals instead of chopping and changing every time.

1452. It has been put before the Committee that considerable expense is entailed on litigants, more particularly litigants from cross-Channel, who have to go to Donegal or Mayo or out of the way districts, because they cannot rely on what day their case will come on. You said in answer to a question on another matter that you put easy cases on your lists for Saturday?—That was on the northern Circuit. I only set down cases for Saturday in which there would be no counsel, though sometimes counsel preferred to have cases taken on Saturday.

1453. Evidence has been put before the Committee that the credit of the country was being injured across-Channel by reason of the uncertainty of plaintiffs from there going down to country districts and not being able to rely on the day on which their cases would come on. You said that you put easy cases into your lists for Saturday. Am I to infer from that that you can fix the day on which a case is to be heard?—Yes. Practically the first thing I do when the criminal work is over in the Courts is to go through the lists with the solicitors. I ask solicitors to tell me whether a case is going on or whether it is settled and generally I try to fix a case for whatever day they tell me suits them. If a witness has to come from England the case is peremptorily fixed for a particular date.

1454. A plaintiff from England can rely on his case being fixed and he need not be kept hanging about the Courts waiting for it to come on?—Yes. I think all Judges do that. As a rule in those cases there is no defence. They bring their witnesses and there is an end of it. That is the case Senator Brown put to me at the start with regard to alternative jurisdiction. Those are the kind of cases I had in mind. It would be a good thing to enable creditors to get swift judgment in cases where there is no defence.

1455. Deputy Little.—Have District Justices got the power that you have not got to state a case?—Yes, they have.

1456. In your experience would a great many of the appeal cases that come before you come as cases stated?—I do not think so. They would be more on the criminal side of the Court. When I am hearing a case from the District Justice I am final on that case. I think it would be a wise thing to give a Circuit Court Judge power to state a case in cases like that. In the ordinary Circuit Court work I have I do not require a case stated, for there is an appeal straight away. There is an appeal from every decision of the District Court. In the case of appeals from the District Court it is a rehearing. There is no record kept of evidence in the District Court. It is just like the old County Court. If you want to go on with an appeal, you must be able to come forward with the evidence again.

1457. Deputy Little.—Would you be in favour of establishing the principle throughout all the Courts that one man is as good a judge of facts as another?

Senator Dowdall.—One Judge.

Deputy Little.—No. There is the question of the jury.

Judge Devitt.—The finding of the jury is absolutely final if there is evidence for the jury.

1458. Deputy Little.—That is on the principle that the judgment of facts is not a question of expert law. It is a question of an averagely able man, with the witnesses before him, deciding the facts— is not that so?—That is so provided he has got the evidence. Take an example. On a certain day a chimney-pot was blown down into the street. That it was blown down is a fact. If a Judge was to find that without anybody deposing to it in evidence, his finding would be upset. If the Judge gets evidence showing that just a moment before a high gust of wind sprang up the chimney-pot was in position, and if a witness deposes that two minutes after the other witness passed he saw the chimney-pot lying in the street, then the Judge draws the inference that it was the wind blew down the chimney-pot. If there was no other evidence, that inference would hold. But let us suppose that a body of rioters came along and attacked the house, and the issue put to him was that it was not the gust of wind but the body of rioters who did the damage. In that case it would be for the tribunal on appeal to decide, not the fact that the chimney-pot was in the street, which is not in dispute, but the inference of fact from the evidence as to whether it was caused by the gust of wind or by the body of rioters. That inference of fact would be in the hands of the Court of Appeal.

1459. In dealing with inferences of that sort, would not the conclusion largely depend on the manner of the witness giving evidence?—Not to such a large extent.

1460. Would it not be much more difficult to draw an inference merely on notes of evidence than it would be if you had the witness actually before you?—That is where you have to trust your Appeal Court. In all these things, owing to the fact that we are not absolutely perfect, you have to trust to the Courts and to the Judges. You have to trust the Court of Appeal not to differ from the inference of fact drawn by the Judge in the court of first instance unless they think the evidence justifies them.

1461. I have in mind the evidence given before us by the Commissioners who heard the recent appeals, and it left that impression on my mind—that merely working on notes left them in a great difficulty in coming to conclusions as to inferences from facts?—If I may say so, I was working on the Winding-Up Commission as Judge of first instance and also, assisted by two other Commissioners —one now Mr. Justice Meredith—in hearing appeals, and I never found much difficulty in making up my mind as to whether the Judges drew proper inferences from the facts or not. Some cases would be more difficult than others. But just as you must trust the court of first instance to find the facts, you must trust the Appeal Court not to draw inferences that are not permissible. In all cases where Judges on appeal are drawing inferences they are guided by the fact that the Judge of first instance has drawn certain inferences. They will not draw different inferences except the circumstances compel them to do so. This question is illustrated by a case which is reported, I think, in the current number of Appeal Cases. The House of Lords there reversed the Scotch Court of Appeal and restored the interlocutory of the Judge-Ordinary on a question as to whether adultery had been committed or not in a divorce case. It was a case where adultery was stated to have happened on a shooting excursion in Africa. The whole thing turned on what were the inferences to be drawn from the facts. The evidence was more or less uncontradicted. It was a most interesting case as showing how the higher Courts deal with this question. The Court of Appeal differed from the finding of the Judge who heard the case in the first instance. The House of Lords differed from the Court of Appeal and restored the judgment of the court of first instance. There was no dispute about the findings of fact in that case.

1462. In England, the practice, I think, is simply to go upon a case stated from one Court to another?—No; but the appeal from the County Court to the High Court is in the nature of our case stated. The Judge prepares the statement of facts and asks if his finding is in law right.

1463. Chairman.—There it is the Judge’s note instead of the stenographer’s note that is acted upon?—The Judge’s note, I think, is prepared by the parties to the action. It is something like our case stated, but the Judge has the deciding voice as to the case which goes up. In England, there is only an appeal on a question of law from the County Court.

1464. Would you not think that it would be better to adopt a system like that than work the present system here? —It would throw a great burden on the Circuit Judge if he had to prepare a note in every case. I think the stenographer system is better than the Judge’s system. I am sure the Chairman will agree with me that in the old days the Judge’s note was, in some cases of motions for new trials, briefer than he would like it to be. On the other hand, the stenographer’s note is like a photograph.

1465. There was evidence given as to defects in the stenographic system. There is only one stenographer in Court. The pressure is pretty severe, and his work is more difficult than taking down a speech, because you have cross-conversation. In that way the stenographer’s note is not quite accurate sometimes?—No system is perfect, but you can exaggerate a great deal as regards inaccuracies in the stenographer’s notes. I may have been singularly blessed; I had a very good stenographer on the northern circuit. He only dealt with three of the counties, but now the same stenographer is working in the whole four counties. I have now a very good stenographer for the whole of the five counties. The stenographers have been most willing, and sometimes I have worked them up to six, seven and eight o’clock. Occasionally they have been obliged to work up to one o’clock in the morning, but they have never complained. They have, of course, rests now and then during the proceedings. They have rests while evidence is being called, while documents are being read, during the speeches for the plaintiff and the defendant, and then there is an adjournment for lunch. During a normal day, their work would not be so heavy as I have represented. The occasions on which they work in Court up to eight o’clock or perhaps nine would be clearly abnormal. The normal day would end at 5 o’clock or 5.30 o’clock.

1466. You do not think that the pressure of work interferes with their efficiency?—So far, I think the stenographers have done their work well.

1467. Would it add considerably to the efficiency of the system if you had, as well as the notes, a case stated by the Judge or some exercise of judgment on his part? —I would not advise that at all. We had experience of that in the Winding-Up Commission. We had, as a rule, to go by the Judge’s notes. But in some of the more important cases we had stenographer’s notes. It nearly doubled our work, and we did not know where we were. We had to go from one to the other. In 99 cases out of 100, the stenographer’s note is quite sufficient for the Appeal Court. If they have doubt about any question, they have now the power given by the Oireachtas to call witnesses.

1468. Do you think it would be of advantage if you had power to state a case if it was not made a matter of practice? —I do not say it is in any way urgent, but I think it would be an advantage to the Circuit Court if the Judge had power to state a case. The necessity for a case stated would not often occur, but we are a subordinate Court, and when the occasion arises we should be entitled to state a case and get assistance and guidance from the High Court.

1469. With reference to the Junior Bar appearing before you now, do you find, on the whole, that they are more raw and more crude in their methods than persons of the same experience were ten or twenty years ago?—No. The same system is licking them into shape, but I think the Circuit Court is better than the County Court was.

1470. You stated that they were getting a better chance now?—Yes. Under the old system, you had the junior barristers in the Law Library, and they did not get a chance at all. Take my own case. In my first five or six years of practice I went around the County Courts and only got an odd brief.

1471. The young men get a better chance now?—Yes.

1472. A considerable number of cases for arrears of Land Commission Annuities come before you now?—Not so many as there used to be. In my Court we do not consider the undefended cases in making up our lists. They take a very short time.

1473. Do you have many Annuity cases defended?—No. Three or four years ago, when times were very bad and there were bad harvests, we had a great number of these cases coming in, especially in Leitrim and Donegal. But the request was merely for time. I have power to give them time to pay. Very often they mixed up the compounded arrears of interest with the arrears of annuity, and I would find that they had receipts for old compounded arrears, but not for the annuity for which they were being sued. When I explained that to them, they asked for a little time, and when they got it they were satisfied.

1474. Do many cases of that kind occur now?—Very few on the eastern Circuit.

1475. Do you think it would be advisable if in these cases judgment could be marked automatically in the Circuit Court?—Yes. When we get the new rules, I think you will find that provided for.

1476. Senator O’Rourke.—What is your opinion of amalgamating the offices of county registrar and sheriff?—I cannot say I have considered the matter very much. The sheriff, after all, was an official who had his own job and he took a pride in it and looked after it very well. The county registrar, as sheriff, cannot pretend to the same experience and cannot give the same time to the work that the sheriff did. But he keeps on the old sheriff’s office and takes all the responsibility. But he must look after the Circuit Court work first. I would be inclined to go back to the old system.

1477. Chairman.—That is a matter for a Court Officers Bill?—Any view I have would be merely an amateur view.

1478. Senator O’Rourke.—You are against the amalgamation?—I think the other system would be better. All the sheriffs I have on my Circuit I like very much. The view I have given is only an amateur’s view. I have not considered the matter very much from the standpoint as to whether the change is vital or not.

1479. Senator Hooper.—Would you consider it an improvement if, while retaining the present system of appeals, it was arranged that the Appeal Court instead of sitting constantly in Dublin should go around the country?—I think that would work itself out. If the Appeal Court found that in a bunch of cases, or perhaps two or three cases, from my Circuit they would like to hear two or three witnesses, they might decide to come down and hear the witnesses. Otherwise it would be much better for the litigants themselves to have the case tried in Dublin because senior counsel, whom they would be employing, would be there.

1480. Would not that get rid of the difficulty that has been referred to—that justice should be brought to the doors of the people so that they could be present and hear their cases decided?—You suggest that, say on the eastern Circuit, the Judges should attend and hear the appeals on that Circuit so that the people could be present at the hearing.

1481. Yes. Would you consider that an improvement on the present system?—I think “improvement” would be too strong a word. It might be more expedient, from the point of view of what the people would like.

1482. It might be more desirable?—It might be more desirable from that point of view, but the appeals would be heard just as well in Dublin as down there.

1483. Would it not have this advantage, that it would enable the Judges when they wanted fresh evidence to get it immediately?—Yes.

1484. Is not that one of the reasons that they do not ask for fresh evidence now—that there is such difficulty in getting it and that it adds to the expense of the parties in bringing witnesses to Dublin?—That is probably one of the motives that would operate with them. But we are all lawyers. We are all trained up from our legal childhood in the ways of the law and we like, once a case has been heard, it should be finished. Once a case has been heard and finished there should be no “heel-tapping” of it by bringing in fresh witnesses. As a rule, the Appeal Court will not allow fresh witnesses in unless it can be shown that witnesses were available but, by some fatality, were not brought in. It is only in circumstances of what you would call “dire pressure” that fresh evidence is brought in.

1485. You agree that when fresh evidence is required it would be well to have it immediately available for a Court circulating through the country?—Yes.

1486. Chairman.—I gathered, from an answer you made to one member of the Committee, that you exercised discretion as to costs in your own Court?—Yes, and I think all the Judges act in the same way.

1487. I think we had some evidence that one or two do not take exactly the same view. What I want to know is: Do you think that in future, whether by Rules or Statutes, Circuit Court Judges should have the discretion to say that the costs are to follow the event?—What the Oireachtas decided was that we were to follow the English precedent. In cases tried by a jury, the costs follow the event; in cases tried without a jury, they should be within the judicial discretion of the judge.

1488. Is it your opinion that that Rule should apply to the Circuit Court?—Yes; I think the discretion of the Judge seems to be preferred.

1489. Chairman.—We are extremely obliged to you, Judge Devitt, for the evidence you have given, and we think it most useful.

Judge Devitt.—It occurs to me to say, before I leave, that as regards Circuit Court Appeals to the High Court, at present there is no appeal from the High Court to the Supreme Court unless two Judges agree to the appeal. We think that perhaps in the future power should be given to either of the High Court Judges, if he thought that the case was sufficiently important, though the other did not, to allow it to go to the Appeal Court.

1490. But if neither Judge thought it should go to the Appeal Court, would you allow the application?—I think if two Judges of the High Court agreed, there is not the same necessity, but it is suggested that though the two Judges are agreed, if the parties aggrieved lodge the full amount, they might go to the Court of Appeal.

(The witness withdrew.)

Mr. James A. Denning, Senior Taxing Master, High Court of Justice, called and examined.

1491. You are Senior Taxing Master in the Courts in Dublin?—I am the oldest one, anyway.

1492. You are the Master who deals, or who has been dealing, with the costs of Circuit appeals?—Yes.

1493. You were asked by this Committee to let us have some information as to the actual taxed costs in cases of Circuit Court appeals to the High Court, and you have furnished us with that table?*—Yes.

1494. Did you adopt any particular principle in making it out?—I told our clerks to make out a list of the last ten cases that I taxed myself. I have it here on the first part of paper No. 5, and the second portion is the last ten cases that the late Master MacNamara taxed. That makes twenty cases. I did not pick them, but took them as they came, and they represent the last twenty cases that were taxed.

1495. And you would say they are typical of a lot of other cases?—I think so. I did not look to see whether they were typical or not, but I think they are. I thought I was bound to give you what we had to show.

1496. I notice that some of the cases you give are cases in which appeals were withdrawn?—Yes, that is a very curious thing.

1497. How does it come that costs of appeals withdrawn are so high? Take the first one under “Costs of Respondent.” It was withdrawn, but the costs amounted to £10 2s. 4d.?—Yes. If you look at the date, you will notice that from the time the decree is issued until the Court of Appeal gives a decree the period that elapses generally runs to about one year and six months. That is the average. The shortest period would be about six months, and the longest two years. Therefore, from the time you get your decree until you get the Court of Appeal decision a period of about a year and a half elapses. If notice of withdrawal is served any time after the copy of the notes is furnished to the solicitor, he is entitled to send out his brief, and there is no other method, except by going into Court, by which they can get the appeal dismissed. Therefore, we have to allow counsel’s fee. It seems an unnecessary method, but it is the practice.

1498. There are no Rules for the Circuit Court?—No.

1499. But that is a matter that could be made right by Rules?—I think so. The difficulty, of course, is that the brief has gone out. I think myself that the brief should not be given out until the notes are delivered. Then some little time after the notes are delivered should be allowed so that if notice of appeal is withdrawn they could go into the office and get judgment. There ought to be some fixed date. Otherwise the position will be this: Notice of appeal is served, nothing else is done, and costs amounting to between £13 and £14 are incurred.

1500. We will now take case No. 7. In this the appeal was withdrawn. The taxed costs came to £25 19s. 9d.—practically £26. That is a case where the decree was given in the Circuit Court in April, 1927. The appeal came on in the High Court, and the Order of the High Court was made on 16th May, 1929—more than two years later. The man who appealed did not go on with his appeal. and yet he had to pay £26.

Deputy Rice.—It may have paid him to do that.

1501. Chairman.—You had a large experience as a solicitor in the old County Courts?—Yes, I practised for twenty-five years. I would now direct the Committee’s attention to the fourth case on the first part of the statistics that I sent in. The costs in that case came to £17 5s. 7d. That is the appellant’s costs. The costs, with the same counsel’s fee, would have come, in the old County Court to £10 5s. 9d. The costs, without counsel’s fee, would have been £7 1s. 9d. There is another case that I have here, but I cannot give the figure of what the old costs would be. I cannot give you what the figure would be in all cases, because some exceeded the jurisdiction of the old County Court. I ask you to turn to the second case on the top of the first page. The total there is £41 13s. The costs, leaving out counsel’s fee, would have been, under the old system, £6 19s. Counsel’s fee was £15 15s. That apparently was a special fee.

1502. Counsel would not have been allowed £15 15s. on appeal at Assizes?— He would not have been allowed £5 5s. Now take the third case in the second part. The costs came to £23 17s. The costs in that case would have been £7 1s. 9d. Adding counsel’s fee of £5 5s., you get a total of £12 6s. 9d.

1503. Senator Dowdall.—That is about half again?—I am taking what the cost of the appeal would be at the Assizes.

1504. Chairman.—Counsel would not have got £5 5s. on an appeal at the Assizes?—I agree that I do not think he would be allowed anything like that. I think £3 3s. would be the most that would be allowed.

1505. Deputy Rice.—I think that £3 3s. was quite unusual on the hearing of appeals at the Assizes. I think that £2 2s. was about the usual?—Since then fees have gone up as far as I can gather.

Senator Farren.—It would be well, I think, if the Committee could have from the witness the dates that he fixed on when making a comparison between the fees paid now and the fees paid formerly.

1506. Chairman.—What the Senator wants to know is whether your Civil Bill appeal costs applied to pre-war times or after the bonus?—I added 50 per cent. to the old costs.

1507. They would be the costs that would be given now in a Civil Bill appeal? —I added 50 per cent. to the whole lot.

1508. Senator Hooper.—Apart from counsel’s fees?—Yes. There is another case, £17 5s. 7d.

1509. Chairman.—The Civil Bill costs in that would have been £10 5s. 9d. with the four guineas, and without the four guineas £6 1s. 9d.?—There is one at £21 17s. There is one at £19 3s. 5d. The costs in that case would be £11 3s. with counsel’s fees, and without counsel’s fees £6 19s.

1510. That was a decree for £21?—Yes. I could not trace what the others were. There is one item in Master MacNamara’s; list in which the costs came to £90.

1511. Senator Dowdall.—It was £91 1s. 11d.?—Counsel’s fees were £47 5s., and the briefing was £17.

1512. Chairman.—Was that owing to the length of the notes?—Yes. 6d. a folio for one brief, and 3d. a folio for the other.

1513. That is practically a fixed charge?—If there is one brief you get 6d a folio, and if there is a carbon you get it at 3d.

1514. That is considerably higher than the official charge?—The official charge* is 2d. a folio, but then the Government supply to the Judges two copies of those notes at their own expense.

1515. I did not know that. We had been going on the assumption that it had to be done by the solicitor to the appellant?—Not for the last two or three years. There would be a difference of £17 on these costs if that were so. The Government supply the two copies to the Judges at their own expense.

1516. Deputy Rice.—It is an extra charge, although it is paid by the State? —Yes.

1517. Senator Hooper.—Are they at 2d. a folio?—They charge 2d. a folio to the solicitor for the copy of the notes which they give him.

1518. What is the 6d. a folio for?—A legal charge for the solicitor for making the copy.

1519. Chairman.—You could not tell us why those costs amounted to this enormous sum?—The case occupied three days.

1520. There were probably two counsel? —I looked at a bill of costs. It is in a big book and I cannot bring it. I also went into the question of the briefing in each case. You may take £5 off those ordinary cases and the balance is briefing. It costs between 30/- and £2 to tax. The other part is £3. The rest is briefing and outlay.

1521. Is there any other case that would help us in comparing these costs with the former costs?—I do not think there is.

1522. You think these are fairly typical cases?—They are the last twenty cases we taxed. I was not going to pick them.

1523. Senator Dowdall.—That is a representative sample?—It is. Before the Government supplies the notes, you may add 50 per cent. to the cost.

Deputy Rice.—50 per cent. of the present costs are being paid by the tax-payer.

Senator Hooper.—What outlay is under “professional charges?”

1524. Chairman.—We understand what is meant by “other outlay” and “professional charges.” Other outlay is money other than counsel’s fees?—It is what you pay for the notes. You lodge 10/- with the appeal. Sometimes the respondent, who generally wins, has to pay it. There is a Court fee of 10/-.

Senator Brown.—The rest of it is what you pay the Government stenographer.

Chairman.—The professional charges are what a solicitor gets for his services.

1525. Senator Hooper.—So, roughly speaking, “other outlay” is official outlay?—Yes.

1526. And the professional charges are just the solicitor’s?—Yes.

1527. Chairman.—That is what the solicitor’s profit consists of?—That is what they call the “profit costs.”

1528. Deputy Little.—I think you said in this case that where the total costs were £91 the briefing was £17. That would be part of the professional charges?—Yes.

1529. That included the payment for the notes?—No, that is in the outlay.

1530. Senator Wilson.—Could the Master suggest any means by which we could cheapen these costs?—I think this copying a whole lot of stuff down the country is not wise and that the proper course is a rehearing before the Judge.

1531. Chairman.—That is the only way of diminishing the costs?—Yes.

1532. Senator Hooper.—You told Deputy Little that 6d. a folio is for stenographer’s notes?—It includes the copy which the solicitor makes of the stenographer’s notes.

1533. After that the cost of the stenographer’s notes for counsel run I think you said to £17?—Yes.

1534. Senator Farren.—Did I understand you to say in one of these bills of costs that 6d. per folio was charged for these shorthand notes?—The solicitor bespeaks from the office a copy and pays 2d. a folio for that. He makes copies of that for his counsel. The first copy is 6d. a folio and the second is 3d. a folio because it is carbon. If they do not duplicate we only allow half.

1535. Could he not get three copies from the Government at 2d. a folio?—I do not know.

1536. It appears to me he could purchase them from the Government office at 2d. a folio?—The Government are losing money on it.

1537. I am asking a question for my own guidance in the matter. I understood the Master to say that there was a charge of 6d. per folio for the shorthand notes. I wanted information to satisfy myself as to whether it would be possible for the solicitor who required these notes to get additional copies from the Government office at 2d. per folio?— You would have to ask the Government that. I think they are losing money on the 2d.

1538. The Government could make carbon copies at very little extra cost?—As far as I can see from the notes that come before me they are all manuscript and not in typescript at all. There is no reason why they should not get as many copies as they like.

1539. Deputy Little.—Part of that 6d. is remuneration for the solicitor, not payment for the typing?—The solicitor must read these notes. He gets no instructions except the brief.

Senator Farren.—That entirely satisfies me.

1540. Chairman.—Have you had any occasion to inspect these stenographer’s notes?—I have to look at them to see whether the fee is a right fee for counsel. They were hopeless things as far as I could come across them. I had one case where I could not find what the cause of action was.

1541. Did you make a reasonable effort at reading the notes for the purpose of finding out?—I wanted to know what the action was about, but I could not find out. The costs-drawer knew nothing about it, and we all were in the dark.

1542. Senator Hooper.—You would not suggest that that was the fault of the stenographer?—I do not know whose fault it was, but it was absolutely hopeless.

1543. Would not that depend on what was said in Court? If what was said in Court indicated what the cause of action was, and if the stenographer was competent, it would appear on the notes, but if it was not said in Court the stenographer, however competent, could not put it down?—I agree, but there should be some method by which a statement of the case should appear.

1544. Senator Dowdall.—The duds in that case were the Judge, counsel, and solicitors?—Apparently.

1545. Chairman.—It might have been that they were all talking together?—The notes have greatly improved. They were bad at first, but now they are very fair.

1546. Deputy Wolfe.—It frequently occurs that the solicitor takes up a map, hands it to the witness, and asks him whether it is correct. Then the witness proceeds to explain it, and it is all “Greek” to the stenographer?—I do not blame the stenographers at all.

1547. Senator Hooper.—Could you suggest any way by which the expenses could be reduced under the present system?—I do not think that they could be reduced under the present system. It is all a question of briefs. I went into that, and if you take £5 off the profit costs in every case, that is, the costs of taxation, the cost of attending and so forth, all the rest is practically brief. The stenographer’s notes are put into the outlay. That is what you pay the Government. All the rest are briefs and counsel’s fees. Roughly, if you take off £5, you see what their briefs come to. In right-of-way cases it is ridiculous to have everything written down. They sometimes go on for two days. All the ancient people in the district come up, and all they say is put down.

The Witness withdrew.

The Committee adjourned at 4.30 p.m. until to-morrow, at 11 a.m.

* 1929, I.R. 432.

* 1929, I.R. 432.

* Report of Joint Committee on Circuit Court Rules (10th July, 1928).

* Appendix 5.

* See Appendix 4 and Ques. 5844-5.