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

MIONTUAIRISC NA FINNEACHTA

(Minutes of Evidence)

Déardaoin, 16adh Eanar, 1930.

Thursday, 16th January, 1930.

The Committee sat at 11.30 a.m.

Mr. Séamus O’Connor, County Registrar, Dublin County and County Borough, called and examined.

1548. Chairman.—You are County Registrar for Dublin?—Yes.

1549. Which includes County Dublin?— Yes.

1550. How long have you held that position?—Since February, 1925.

1551. That is practically from the very commencement of the jurisdiction?— Shortly after the Act came into force.

1552. As a practising solicitor before that time, you had a large experience?— I had.

1553. In the City of Dublin, at any rate?—Yes, in the city and county.

1554. Have you had any experience at all of the District Court, as a Court?— No, I have not.

1555. Because we generally take the evidence in regard to the District Courts Court first from every witness. You have not had any experience?—No, it was not sufficiently long in existence.

1556. Except on the question of appeal from the District Court?—Yes; we have to deal with that.

1557. Dealing with the Circuit Court, what are your views generally as to the jurisdiction of the Circuit Court in contract and tort?—My views are that the present jurisdiction, that is the limit of £300, should be continued. Of course, I am now dealing only with my own experience in the City and County of Dublin, but it seems to me that on general principles it is a very good thing to decentralise the Courts in the manner in which it has been done by the Act. I consider it is in the best interests of the community that the limit of jurisdiction up to £300, as fixed by the Act in contract and tort, should be continued in the Circuit Court. My reasons are that it is convenient and cheaper for litigants than if the amount were reduced and if the litigants, in a great many cases in which they can now come before the Circuit Court, were compelled to go to the High Court. To take the question of costs alone, assuming that a man institutes an action for a sum of, say, £300 in the High Court, he has to come to the City of Dublin, bring his witnesses and brief counsel. If he wins the action, of course the costs will follow the damages and the defendant will have to pay. The defendant is thus saddled with damages, the costs of the successful plaintiff and, of course, his own solicitor’s costs. You undoubtedly have had evidence from people more competent to inform you of the probable amount of such costs, but I assume that an unsuccessful litigant would have to pay anything from £150 to £250 costs in the High Court, whereas the same action in the Circuit Court would only involve the payment by an unsuccessful litigant of a sum of £80 at the outside.

1558. Are you now referring to a substantial action?—A substantial action up to £300. That is to say the unsuccessful party would have to pay the successful party’s costs and his own costs and the contrast between the amount he would have to pay in the High Court and the amount he would have to pay in the Circuit Court is very marked.

1559. As a matter of fact, do you tax the costs in the Circuit Court?—I do, under what I might call an ad hoc system, in the absence of Rules, using a very wide discretion. Of course, it is only fair to say that in different Circuit Courts there are different systems as regards costs but they all agree in this important particular, that none of them has any sanction.

1560. As a matter of curiosity, can you tell us on what principle you do, without Rules, measure these costs? Is there any rough and ready way of doing it?—In an action which would have been brought in the old County Court before the change, I follow the old County Court procedure as regards the costs, and the amount follows the old scale. As regards what I call the new jurisdiction, that is to say, jurisdiction over £50, formerly within the jurisdiction of the old High Court, I rigidly follow the practice with regard to serving costs, lodging them in the office and issuing a summons to tax. The costs come before me in the same manner as they would have come before the Taxing Master of the old High Court. I fix them and, in fixing them, I try to hit the happy medium between the old County Court and the old High Court, reserving to myself a very wide, shall I say, discretion having regard to the amount involved, the legal questions involved, the number of witnesses, etc. So far, I think that this ad hoc system has worked.

1561. It is from your own experience in taxing costs in that manner that you have arrived at the conclusion you have given to us, that about £80 would be the costs of an unsuccessful action in the Circuit Court—a substantial action?— Quite; that would be the average. Compared with the High Court, it is very much smaller.

1562. How has your Circuit Court in Dublin worked, having regard to the calls on it in the way of litigation?—When I was appointed in 1925, we had only one Judge, the late Judge Dromgoole. He had not alone to do civil work but also criminal work, which at that time was very heavy. The list was considerably in arrear at that time.

1563. That was when it started?—I may go back, I assume, though strictly speaking I am not entitled to give evidence on it. Before my time, when the Act came into force, there were considerable arrears, naturally. When I took office in February, 1925, there were considerable arrears. There was only one Judge, Judge Dromgoole, and he had to do the civil and criminal work of the city. Naturally, these arrears kept piling up. Poor Judge Pigott was appointed as a temporary Judge. He was a rather delicate man, but still he was of great assistance. Yet, the arrears kept growing. Then Judge Dromgoole died, and the present Judge, Judge Cahir Davitt, was appointed, Judge Pigott still continuing in office as a temporary Circuit Court Judge. Judge Pigott then died, so we had quite a chapter of misfortunes. Later, we got Judge Roche, and subsequently Judge Shannon, and at intervals, Judge Gleeson helped us out. The arrears, as I said before, when I took office, were very considerable, but notwithstanding the mishaps to the Judges in the way of death and illness, with the assistance of the other Judges who were appointed from time to time, we have now reduced the arrears to this condition: that it is my considered opinion that with two Judges sitting in Dublin as permanent Circuit Court Judges, we will be able to handle all the Dublin work, criminal and civil, under the present jurisdiction.

1564. You have furnished us with a table* giving the number of days on which the Circuit Judges sat during the three Court years ending July, 1929?—Yes, that is at (h).

1565. That shows that for civil work Judge Davitt sat in the year ending July, 1927, 149 days?—Yes.

1566. And for criminal work he sat 25? —Yes.

1567. That year Judge Pigot sat only for civil work—he never sat for anything else—thirteen days?—Yes.

1568. Then Judge Roche sat during that year 104 days for civil work, and 27 days for criminal work?—Yes.

1569. So that your Court sat for 266 days for civil work, and 52 days for criminal work?—Yes.

1570. The next year Judge Davitt sat the same number of days, curiously enough, 149 for civil work and 29 days for criminal work. Judge Roche sat 67 days for civil work, when he took ill, and 26 days for criminal work, making a total of 216 for civil work and 55 for criminal work?—Yes.

1571. Which was a little less than the previous year, probably owing to Judge Roche’s illness?—Yes.

1572. The next year Judge Davitt sat 119 days for civil work and 60 days for criminal work, which seems to have increased. Judge Roche sat only eight days owing to illness, and Judge Shannon, appointed under the recent Act, 130 days for civil work. Judge Gleeson, also appointed under the recent Act, sat 83 days for civil work and 11 for criminal work, making a total of 340 days for civil work and 71 for criminal work?—Yes.

1573. You have also furnished us with a table of the arrears in each of these years?—Yes, that is at (h h).

1574. This goes back to 1926—four years. In 1926, you had only two Judges sitting. They sat for 268 days and there were 198 cases awaiting hearing at the end of the year?—Yes. By the end of the Court year.

1575. In 1927 you had three Judges?— Yes.

1576. They sat altogether 266 days, and you had arrears at the end of July of that year of 261?—That is so.

1577. In 1928 you had only two Judges, Judge Roche being ill. They sat 216 days, and the arrears had piled up to 732 cases. That was due to illness?—Quite so.

1578. This year, down to last July, four Judges were sitting. They sat 340 days, and they reduced the arrears to 452?— Yes.

1579. Could you tell us, roughly, what the arrears are now?—At the moment the arrears are about 280.

1580. So that they have been considerably reduced?—They have been pulled down gradually.

1581. And with your experience of the Court working fully-manned, do you think that the arrears will be cleared off at the end of a year?—I do.

1582. And that the Court will be able to keep abreast of its work?—Yes, granted no untoward happenings. Of course, a very important thing and a point we must remember in connection with the Circuit Court in Dublin is that we had very heavy criminal sittings, and as may be within the memory of some of you, gentlemen, we had a double court sitting; we had Judge Roche and Judge Davitt sitting together to break the back of those arrears on the criminal side. We succeeded, and the last sitting of the Circuit Court for criminal trials lasted only a fortnight and cleared the arrears. So that, assuming that nothing abnormal occurs in public affairs, the criminal work will be normal, and that being so, we will have more time to devote to civil work.

1583. You have been specially treated, if I may say so, in the supply of extra Judges in Dublin?—We have.

1584. There were two Judges appointed under the recent Act* who were intended to go wherever they were wanted most, and you have had an unfair share of them?—I fear I must plead guilty to having exercised undue pressure on the Minister.

1585. Assuming that your Judges were working full time, how many Judges would you require permanently to keep the work down in the Dublin Circuit Court?—Two Judges.

1586. Senator Dowdall.—The city and county?—The city and county.

1587. How many sittings have you in the county?—They are all combined now.

1588. Chairman.—At Kilmainham?— No. Green Street for the purpose of the Act is in the county. Sir Thomas O’Shaughnessy in some extraordinary manner arranged all that, for which I must say I am very grateful.

1589. It is much more convenient?—It is.

1590. Do the statistics that you have given us which I have read for the Committee include the county work?—They do.

1591. The work would take two permanent Judges all their time?—Yes.

1592. Is the ordinary work of the Circuit Court in contract and in tort increasing?—I could not answer that right away.

1593. It is not diminishing?—It is not diminishing. I believe, in fact, that it is slightly increasing.

1594. You have given us your views generally against any alteration in the jurisdiction in tort and contract in the Circuit Court. Have you any observation to make with reference to the other jurisdictions which the Circuit Court exercises—equity, bankruptcy and company work?—As far as I am concerned, there is no bankruptcy, so that I am not in a position to offer any opinion as regards that. If you look at the table† at (c), you will find the number of equity suits entered for hearing during the years 1928 and 1929. In 1928, the number of suits entered was 33, where the jurisdiction did not exceed £500.

1595. That is the old jurisdiction?— Yes, and the number under the new jurisdiction was only four. In 1929 the numbers were 50 and 9 respectively.

1596. That is 50 that would have been heard in the old County Court?—Yes, and 9 that would have been heard in the old High Court. Thirteen cases in two years is of such little importance that I do not think it would be worth while changing. The additional jurisdiction has not meant anything. As regards company winding-up, the same thing applies. We had one or two rather difficult cases, but the number that came in up to the present is only five in two years. It would not be worth while changing.

1597. Apart from your own experience of Dublin, where you have an opportunity of getting a skilled liquidator, your experience would not be of much help with regard to what would happen in the country, where they have not that?—I fear not, but I do suggest that the number of cases would be very small.

1598. What about the probate cases?— The probate cases are at (d).

1599. These are increased jurisdiction cases?—Yes. There were only seven in two years—two in 1928 and five in 1929. They really caused us little additional work, and we hardly knew they were in the office, so that in these cases also I would respectfully suggest that it would not be worth while making any change; in fact, I was surprised in getting out these statistics to find out how little additional work there was.

1600. From that increased jurisdiction? —I was amazed, though somehow or other the office seems to be busy.

1601. A litigant has a right to a jury in your Court?—Yes.

1602. Has that right been availed of to any great extent?—Not to any great extent. Three in the year would be about the average. There were seven in two years.

1603. Deputy Rice.—That shows great satisfaction with the Judges you have?— I am speaking for our own Judges; I am not speaking for any other Judges, nor am I making any invidious comparisons, but our Judges are excellent.

1604.—Senator Comyn.—They are well trained?—They are.

1605. Chairman.—I take it that you do not object to juries?—I do not object to juries. They are a bit of a nuisance. The word “jury” is rather a bugbear to me, personally.

1606. Would you be in favour of retaining the right, even though it is very sparsely used, to a jury in the Circuit Court?—I have no definite views one way or the other, but I think in the main if a man wants a jury, he should have it, if the Judge thinks so. You see, the Judge has a say in it, too.

1607. It is a question of taste?—Yes. The Judge has a say also; he can refuse a jury.

1608. At present, the Circuit Judge has the right to state a case for the High Court?—He has.

1609. Has that jurisdiction been much used?—Not very much.

1610. Of course, you have an easy supply of counsel in the Dublin City and County Circuit Court?—Yes, we have all the conveniences of the city.

1611. All the conveniences of the High Court?—Undoubtedly.

1612. The Library?—Yes, and in that way we are different from the country, of course.

1613. Have you any suggestion to make as to any increased powers of interlocutory orders in the Circuit Court—I mean injunctions, garnishees, and that kind of thing? Those are possible at present, and in your case, of course, you have not to follow the Judge, because he is in Dublin?—That is so. Speaking for myself, strictly as a Dublin man, I have no suggestions to make in that connection; everything runs very smoothly as far as I am concerned. I have not to follow the Judge around and I have not to undergo the inconveniences and the hardships of registrars in the country. Everything is at my hand, so to speak.

1614. The judgments of your Court are registered in your own office, I think, when a defendant has been decreed, say, in a sum of £25 or £30?—The decree appears in our books to that amount.

1615. Is there an opportunity of search there?—There is, and that opportunity is availed of very widely.

1616. But these judgments are not registered in the Central Office of the High Court?—I sign a certificate when a person wishes to register a judgment or register it as a mortgage.

1617. But it is not automatic?—No; we are in statu quo ante as regards that.

1618. In your opinion, would it be a useful thing to have judgments of, say, over £20 in the Circuit Court automatically registered in the Central Office of the High Court? It does not apply so much to Dublin, but if they are only searchable in the County Registrars’ offices throughout the country, you would have to make a very large number of searches?—Yes. I would approve of such a change.

1619. Probably confining it to cases of over £20?—Say £25, as £20 is within the jurisdiction of the District Court.

Chairman.—I think there is a £20 limit for a judgment mortgage, so that I suppose you would have to make it £20.

1620. Senator Dowdall.—You are in favour of the registration of all decrees of the Circuit Court over £20?—Yes.

1621. Chairman.—Here again Dublin probably differs from the rest of the country. Would you be in favour of an alternative jurisdiction, that is, that the plaintiff should be entitled to go, in cases over a certain limit, say £50, either in the High Court or in the Circuit Court without any penalty if it was a proper case to be heard in the Court?—I would in cases of slander and libel. These are cases in which I suggest that such a right should be vested in the plaintiff.

1622. Is that because a verdict of £50 damages in a case of that kind is a very substantial sum to get?—Yes.

1623. But at the same time you would not have many cases, even in the High Court where there would be larger damages than that. Would you exclude or only give an alternative?—I would give an alternative in these cases only. These are the only ones in which I would suggest that that right be given.

1624. Suggestions have been made by a number of witnesses that the alternative jurisdiction might be given without a penalty where the case was one that would not be remitted; that there should be that right without being penalised?—I would not favour the alternative jurisdiction, as I fear it would be abused. Without having given the matter serious thought, the only cases in which I suggest there should be the alternative right would be cases of slander and libel.

1625. How does the system of appeal from the District Court work. Has it been satisfactory?—Yes. I have heard no complaints.

1626. You have furnished a table* showing appeals from the District Court for two years, from July, 1928 to July, 1929?—Yes.

1627. In 1928 there were 130 appeals?— Yes.

1628. And in 1929, 115?—Yes.

1629. These were appeals by way of rehearing?—The Circuit Judge heard them de novo as it were.

1630. Have you many cases in the Circuit Court in Dublin that might have been brought in the District Court?—Indeed we have. You will find a return at (b) of the Table. If you look at the statement, you will find that in 1928 there were 398 cases of civil action, defended and undefended, within the jurisdiction of the District Court entered for hearing in the Circuit Court. In 1929, there were 397; practically the same number.

1631. They were practically all cases of contract?—The vast majority of them. In 390 out of 398 they were cases of contract; debts due by people.

1632. Can you tell us why such a large number of cases went to the Circuit Court and were not brought in the other court? Have you any idea of the reason?—I have not, but very often solicitors entering a number of cases in the Circuit Court would find it convenient to have them all together. It would be convenient in a great many cases for litigants to attend the Circuit Court.

1633. You think it is only a matter of convenience?—At the moment I know of no real reason, except for the convenience of the solicitors and the litigants. I rather resent these cases coming in.

Chairman.—They are not your legitimate job.

Senator Comyn.—You cannot deprive them of costs.

Deputy Rice.—It does not cost any more to the unsuccessful party.

Deputy Little.—Would it be better to exclude them?

1634. Chairman.—Would you be in favour of putting an absolute bar against £25 cases coming in?—If it was a question of conveniencing my Judges, my court, and myself, naturally I would.

1635. That is the only reason?—Yes. When you add 390 cases every year to those legitimately coming into our court it is a considerable number.

1636. I take it that the costs do not differ?—No.

1637. It is just as cheap to go with these cases to your court?—Yes, and they have the added dignity of coming to the Circuit Court.

1638. You furnished an extra return* this morning which is very useful, giving the number of civil actions defended and undefended in the two years 1928-29 where the amount sued for did not exceed £50?—Yes.

1639. We had from you already tables† showing the number where the amount was under £100 and over £50?—Yes.

1640. We have the number where the amount sued for did not exceed the old County Court jurisdiction?—It is very interesting to see the number.

1641. In 1928 there were 1,074 actions entered in the Circuit Court where the claim did not exceed £50*?—Yes.

1642. Of those decrees were granted which did not exceed £25 in 435 cases?— That is so.

1643. Decrees were granted exceeding £25, but not exceeding £50 in 238 cases? —Yes.

1644. There were 18 cases dismissed where the claim was under £25, and 24 cases dismissed where the amount claimed did not exceed £50?—That is so.

1645. In the next year there were 1,165 cases entered in your court where the amount claimed was under £50. Decrees were granted in 433 cases where the amount did not exceed £25, and in 253 cases they exceeded £25, but did not exceed £50?—That is so.

1646. There were fifteen dismissals where the claim did not exceed £25, and 25 dismissals where it exceeded £25. That is a very interesting and useful table?— It is very interesting, showing that the bulk of our Circuit Court business is really the old County Court work.

1647. The bulk of your Circuit Court work is the same as that in the old County Court?—Yes.

1648. Senator Comyn.—Have you any cases exceeding £50?—We have given returns of the actions entered showing 382 where the claim exceeded £50, as compared with the old jurisdiction.

1649. Have you the results of these cases?—They are set out in the tabular statement.*

1650. Chairman.—This is a return† of the civil actions defended and undefended during 1928-29, where the amounts sued for exceeded £50. In 1928 the number of these cases entered came to 382. Of these, 105 exceeded £50 and did not exceed £100?—Decrees were granted in these cases.

1651. These are all cases of entries. We are only dealing with decrees now. There were 105 decrees for amounts over £50 and up to £100; 23 decrees in cases over £100 and up to £150; 16 decrees over £150 and up to £200; 3 decrees over £200 and under £250; 4 decrees over £250 and up to £300. To turn to the dismissals, there were 32 in cases over £50 and up to £100; 16 over £100 and up to £150; 4 over £150 and up to £200; 1 over £200 and up to £250; 24 over £250 and up to £300.

Senator Hooper.—Have we any figures showing how the 382 cases are made up? I would like to find out how many of the 382 cases entered were between £50 and £100, and between £150 and £200?

Chairman.—We have not a record of the ones that did not go on.

1652. Senator Hooper.—You have given the figure 382, as being the number of cases entered in your court over £50?— Yes.

1653. I would like to get the number of these between £50 and £100, between £100 and £150 and so on, as you have done in the cases that were actually disposed of?—Very well.

Chairman.—A number of cases did not go on, and were struck out.

1654. Senator Dowdall.—I make the total number of decrees and dismissals 227. What became of the difference? Senator Hooper wants to know how many claims were made in these two years?—I fear I cannot answer him. I will procure and forward the information,† or bring it to the Committee. I think I understand what Senator Hooper wants. For example, a man might claim £100 and only get £25, or he might claim £150 and only get £60. His point is that the decree does not necessarily show how much was claimed.

Senator Hooper.—That is right.

1655. Chairman.—Would we be right in thinking that the amount of the decree would be a fair measure of the nature and size of the case?—You would.

1656. Senator Comyn.—A person may claim whatever he wishes?—That is so. He would only get a certain figure. I will procure and forward a tabular statement showing that.

1657. Chairman.—Now we come to 1929. The actions entered in the Court in 1929 over £50 numbered 411. The decrees over £50 and up to £100 were 77; over £100 and up to £150, 37; over £150 and up to £200, 12; over £200 and up to £250, 6; over £250 and up to £300, 3. The dismisses in cases heard where the claim was over £50 up to £100 were 69; over £100 up to £150, 20; over £150 up to £200, 2; over £200 up to £250, 1; over £250 up to £300, 32.

1658. Senator Comyn.—Does the last figure mean that there was a number of bogus actions?—As regards the numbers 24 and 32 there, I should like to point out that in these cases the claim was simply for damages without specifying any amount. We put them under this heading because we had to assume that the limit was asked for. Lawyers will understand that they just ask for damages and do not specify any amount. We had to put down the limit—we could not put down the minimum.

1659. Chairman.—Arising out of that— this does not really matter for us because it is a matter for a Rule—but would you be in favour of any system of pleadings in your Court?—That has given me a lot of worry. I will answer you in this way: I think we should not have anything so terribly rigid in the Circuit Court as pleadings.

1660. That is, that it might be set aside on technical grounds?—Yes, or that any omission from it might defeat justice. I would prefer to compromise and I was just wondering how a Rules Committee or any body of lawyers could do it. If we could compromise between no pleading and pleadings of some sort with a general statement of particulars, which would be somewhat elastic and would not be so rigid as the pleadings in the High Court, where, as you know, very often on a technicality justice is defeated. I am against being too rigid in connection with any Rules of Court or any procedure.

1661. I take it you will be in favour of such pleadings as would reasonably show the issues?—Quite so, without being so rigid as the pleadings we knew in the old days.

1662. Subject to amendment in Court? —Quite so. They should not be such that justice would be defeated by some rigid Rule of pleadings or of Court, my conception of the Circuit Court being that it is the people’s court.

1663. Deputy Rice.—Without putting the litigant to the expense of formal pleadings such as we have?—Quite so. I want to make it as elastic and pliable as possible.

1664. Chairman.—It will be difficult to frame a Rule of that kind?—It will.

1665. But it ought to be attempted?— Yes. A lot of things in the practice of the Circuit Court will have to come up by a sort of tradition or growth, I think.

1666. Is there any other observation you should like to make to the Committee on the question of the jurisdiction of the Circuit Court?—No. I think you have brought me in a very excellent manner completely over it.

1667. We come now to the question of appeals in the Circuit Court. What are your views on that?—I am afraid I cannot pose as an authority on that, nor can I take up the attitude that I have very definite views upon it. I appreciate that under the present system there are two very grave defects. The first one is the possibility of the stenographer’s notes or transcription of the notes being incorrect.

1668. Will you explain what you mean? —Very often an answer is not taken down correctly—an important sentence or a word may be omitted in the typing of such manuscript or typographical errors may occur. I have heard of cases—though I have not known them myself—in which the stenographer sort of gave the general tenor of the witness’s evidence.

1669. A paraphrase?—Yes, paraphrased the evidence as if he were doing a newspaper report.

1670. I suggest that it is not always the fault of the stenographer, as in Court very often the two sides are speaking at the same moment, and sometimes even the Judge puts a word in?—Quite so.

1671. They are all speaking together. I have known the registrar of the court even to join in the conversation?—It has been found to happen. I have great sympathy for stenographers.

1672. So have I?—They have a very difficult job to perform in any court, particularly when a witness is talking and there are objections from the other side, and the Judge joins, and perhaps, as you suggest, the county registrar takes a par in it. There is that objection, and the other objection about errors in transcribing and so forth, which are only human Another objection that may be urged against stenographers’ notes is this: Assume you are sitting on the bench as a Judge trying an appeal and you see the word “no.” The word “no” may convey to you one thing when you see it in writing or in print or in typescript, but when you are watching the demeanour of a witness and his whole attitude, you get the whole atmosphere of the court in which that word “no” has been pronounced, and you would form an altogether different opinion. These are the two points that I see against the present system, and I realise that they are very important. As against that, there is nothing, as far as I can see from Section 61, and the amending Act of 1928,* to prevent High Court Judges on the hearing of appeals hearing additional evidence or re-hearing witnesses.

1673. That is so, but it has been very slightly availed of, and there are very great difficulties in the way. That is the evidence we have heard here?—I cannot give evidence as to that. I am only giving an opinion. There is also this to be said: Deputy Rice and Senator Comyn, who have greater experience of these matters than I have, will know whether I am speaking correctly or not, but I do suggest that there is a danger of an unsuccessful litigant in the court below changing his ground where there is a new hearing—an actual re-hearing of the witnesses and perhaps new witnesses—that he may change his ground and may give different evidence from what he gave in the court below.

1674. In view of that possibility, in case it were decided to alter the form of appeal to re-hearing, would you be in favour of retaining the stenographer?—I was going to suggest that, as a check on the evidence given at the new hearing.

1675. Then either party could obtain from the stenographer a certified copy of as much of his notes as he wanted?—That would get over a difficulty that I foresaw when thinking that out. If a stenographer has to be in Court daily, and there are appeals, and he is called upon for a transcript of all the evidence, it is going to be extremely difficult. The excellent suggestion you make, that if there be a change, only the relevant portion of the evidence should be asked for, would get over that difficulty.

1676. You know that under the recent practice established following a decision some time ago in the High Court the Judges in the High Court have held that they cannot interfere with the findings of the Circuit Court Judge on a question of fact as distinguished from a question of inferences from fact?—I understand.

1677. In your opinion ought there to be in this country an appeal on fact as distinguished from inferences; ought a litigant to be able to appeal on a bare question of fact; you know the wording of the section is very distinct; it gives an appeal on a question of law or fact or either, so that you might appeal under the section on a mere question of fact?— I would not be in favour of an appeal on fact.

1678. You think that the section ought to be amended?—I do.

1679. To deprive the litigant of an appeal on a question of fact?—I do, on general principles.

Senator Wilson.—The practice is against that.

1680. Chairman.—The practice has deprived the litigant of it, and Mr. O’Connor said that he would be in favour of that?—Yes, of no appeal on fact.

1681. Therefore, you would be against an appeal by way of re-hearing?—I would.

1682. You have told us, I think, that your own court as a court of appeal from the District Court is very satisfactory in the re-hearing of cases?—Yes. I admit you could have me there on that point.

1683. We are anxious to get as much experienced opinion as we can. As regards the question of costs, under the old County Court system, the County Court Judge had no discretion as to costs?—He had not.

1684. Costs had to follow the event on a scale?—Yes, except in equity—to a limited degree in equity. In the ordinary course, the costs follow the event.

1685. Would you be in favour of continuing that system in the case of the present high jurisdiction up to £300 or would you be prepared to give discretion to the Judge?—I would be in favour of a scale and of giving power to the Judge in certain instances on application to increase the scale but not to exceed so much.

1686. Would you allow him to diminish the scale or deprive the litigant?—No. I take it the costs are drawn in accordance with the underlying principles of the Circuit Court and that they would not be exorbitant.

1687. When I was at the Bar the Judge could give costs on a higher scale. Would you be in favour of the existence of a higher scale?—Yes, either to be drawn up or regulated by rule, or else allow a discretion to the Judge in certain cases to give a fee not exceeding so much. The nearer we can go to tabulating these things and to have them there so that we will not be obliged to go through the taxation of costs and all that it entails, the better for everyone concerned. I would ask you to look at (e) of the first returns* that I furnished. In 1919 I actually taxed 177 bills of costs in the Dublin circuit alone.

1688. Where the claim was over £50? —Yes. In cases below the £50 the old scale worked. That took up a lot of time and heart-burning.

1689. At (f) you have instanced a remarkably small number of appeals from your Circuit Court to the High Court?— Yes, 62 in 1928.

1690. In the year 1928 there were only 62 from your court?—That is all.

1691. And only 68 in 1929?—That is so.

1692. Were you affected to any extent by the arrears in the appeals in the High Court?—No, they did not affect us. We had people coming in rowing about it, but once we receive notice of appeal and send in the documents, we are done.

1693. It then went on to the big list?— Yes, and we were finished. You will have to get evidence about that from some official in the High Court. It is really a great tribute to our Judges, I think, that we have such a small number of appeals.

1694. Senator Farren.—Could you give us any idea as to why the costs of appeals from the Circuit Court are so heavy, considering the appeals are heard on the stenographer’s notes? Yesterday Master Denning submitted† the total cost of appeals and the costs of the appellants and respondents. It seemed to me that the costs appeared to be high considering that the appeals were heard largely on the stenographer’s notes?—I cannot give any idea why the cost of appeals on the stenographer’s notes should be higher than on a re-hearing. Not having a bill of costs before me I cannot comment upon the matter. When I was preparing for the Committee I took a dozen or so of stamped requisitions for stenographer’s notes. I added them up and averaged the cost of the notes and I was amazed to find that the cost ran between £1 and 30/-.

1695. Chairman.—Is that at 2d. a folio?—Yes. A case goes before the High Court, but I am afraid I cannot answer the Senator’s question on the point of costs. I do not know why that system should be more expensive than the other.

1696. Senator Farren.—With regard to the suggestion about the mode of appeal, would it not be more costly to have the stenographer’s notes and practically another hearing—you would still have the cost of the stenographer’s notes?—If the system of appeal under the 1924 Act be expensive, then the old system of a re-hearing with the addition of excerpts from the notes by way of a check on witnesses would undoubtedly increase the cost. The question is how much dearer is the present system than the old system.

1697. If you combined the two, would it not make the appeal more costly?—It would make it slightly more costly, because there is a vast difference between getting an entire transcript of the notes and merely a transcript of what the witness said in answer to a certain question.

1698. But in order to get the full statement, would not the stenographer have to give a full transcript of the evidence? —It all depends on what he is asked for. He may be asked to give the transcript of a certain question and he may be asked for the entire evidence of a particular witness. I take it that if there be a change the Rules of Court will be drawn up to cover the cost of that and who is to bear it.

1699. Master Denning said yesterday that in some of the bills of costs taxed in his department the transcript of some of the evidence was in the form of manuscript. Would the solicitors get a sufficient supply of the stenographer’s notes at 2d. a folio in your office? Are they limited as to the number of copies that they can purchase?—A solicitor can bespeak a copy of the stenographer’s notes, pay the fees, and there is nothing to prevent him making as many copies of that as he likes in his own office afterwards.

1700. If he requires half a dozen copies he can get them from you at 2d. a folio? —Certainly, but if that became a general practice we would have a great deal to do.

1701. Master Denning told us in evidence yesterday that in connection with some of the bills that solicitors had sent in for taxing the briefed transcript of shorthand notes was in manuscript, and that, to my mind, must have been very expensive. I want to know could a solicitor procure from your department sufficient copies of the notes at 2d. a folio, and so save all this trouble of a clerk writing the matter in manuscript?—I assume that you are dealing with an appeal?

1702. Yes. Could that be done?—If you are one of the parties to the appeal you can get a copy of the stenographer’s notes at 2d. a folio. If you want additional copies there is no law to prevent my furnishing you with the additional copies at the same rate. The charge would be higher if there were not an appeal and if you merely wanted to get it to keep.

1703. Deputy Wolfe.—You suggested that while you are in favour of the present system of appeals there is the danger that on a rehearing an unsuccessful appellant may change his case?—I suggested that, but I do not say that I have ever known it to happen.

1704. You have had considerable experience of appeals as at present carried on, and under the old system?—Yes, but truthfully I have never known it to happen. Of course, it might happen. I was not listening to the evidence before the District Justice.

1705. Suppose a successful plaintiff in a Circuit Court has got, by means of false testimony, a wrongful decree, is there any chance of upsetting it under the present system, the question being purely one of fact? Suppose he got away with his perjury in the first instance, is there any chance of rectifying it?—Not unless the judges require new evidence or a reexamination of a witness and avail fully of the powers given to them by the Acts of 1924 and 1928.

1706. So that for all practical purposes one of the faults of the present system is that if a decree is got by way of perjury a man gets away with it for all time?— That is a comment, and I cannot answer it.

1707. Do I understand you to suggest that a large case in a Circuit Court would cost up to £80?—That is for both sides.

1708. Do you tax costs?—Let me say that in the matter of taxation I throw a good deal of onus upon the Judge. I will not give consultations, and I cannot give withnesses’ expenses without an order from the Judge.

1709. I wish we had you down in Cork? —I gather from that that the Circuit Court there is even cheaper than I said.

1710. It is little less than half, I am sorry to say?—I am not in favour of giving exorbitant costs to solicitors, but I think fair costs should be allowed.

1711. You said the High Court costs in unsuccessful cases come to £100 or £120? —Yes. That would be in Dublin, but assume you had a case in Cork, and that the jurisdiction is changed, and that the claim is for £300 and the case comes to Dublin—

1712. It would run both sides to £200? —I doubt it very much. I have not seen it done. I am putting it as low as I can.

1713. Take a case from the extreme south?—Or the extreme west?

1714. I know more about the other area. Do you know that in practice in most cases witnesses’ expenses in a High Court action tried in Dublin exceed the costs allowed to the solicitors?—I agree. I put it at the minimum.

1715. You suggested that in questions of bankruptcy and winding-up jurisdiction, your opinion would not have much weight, and I venture to disagree with you, for I know the opposite. Take the question of bankruptcy and winding-up of companies, and leave out Dublin for a moment and the knowledge you had got before you were appointed Registrar, do you not think that in other portions of the Free State you would find Circuit Courts where the judge knew little or nothing about bankruptcy or winding-up law, the County Registrar knew less, and the solicitors knew nothing?—I accept that.

1716. Personally, I know no man to whom I yield in my ignorance of the winding-up of companies?—Bankruptcy and company winding-up are specialised things.

1717. Is there not machinery for doing that in Dublin?—We have machinery, or we have access to it.

1718. Outside Dublin is it not dangerous to have either of these two jurisdictions? —I would say “yes.”

1719. How do you manage as to the security for costs at present in the case of a litigant coming from another county? Do you order him to give security for costs in cases exceeding the old County Court jurisdiction?—We never had a case since I came.

1720. You have not considered the question as to whether there is any authority as regards such security?—No. We have had no occasion to consider it.

1721. It has been suggested here, and, as I know, accurately suggested, that appeals are sometimes brought to gain time. Does a person who appeals in your Court get a stay of execution?—An appeal to two Judges?

1722, Yes?—No, he does not.

1723. Then it is open to a respondent to execute his decree?—Yes, at his own risk.

1724. If there is a successful pauper, he can execute his decree after lodging an appeal. Do you not think the granting a stay of execution pending an appeal would be necessary?—It should not follow as a matter of right the Judge’s order.

1725. Is there jurisdiction to give an order?—We have had cases where an appellant has lodged money in court.

1726. Now does that help him out?—If he succeeds in his appeal.

1727. If he is a defendant as against a pauper plaintiff, and if the sheriff walks in next morning and levies the amount and he wins the appeal, where is he?—If by Judge’s order the defendant lodged the amount of the decree with costs in court there is no danger of the sheriff going to him.

1728. Where does the Judge get jurisdiction to deal with the appeal?—There are certain matters in the Circuit Court under the present system, or lack of system, which I find it expedient not to inquire into.

1729. Do you not think that is a matter the Committee might reasonably inquire into?—Yes, but I think it expedient not to inquire too deeply into the authority for certain things we are doing.

1730. What is the practice in your court as regards the granting of new licences by a Circuit Judge, say in the month of April? Does it require to be confirmed?—It has to be confirmed.

1731. When?—At the October sessions.

1732. Do you hold any licensing sessions, and if so, by what authority?—I have not gone into that. The sessions are held in October.

1733. In practice you do confirm them? —Yes.

1734. Dealing with the question of delay, or arrears, in the Circuit Court, which everybody deplores, leaving out Dublin, which I think you have satisfactorily accounted for, if there is an area in which there are fourteen sittings as against an area in which there are nine or ten sittings, each area dealing with the same number of cases, would not the Judge having to deal with the area in which there are fourteen sittings have to take more time in dealing with his lists than a Judge in an area where there are a lesser number of sittings?—He would. That seems to call for some re-adjustment of the Circuit or for an additional Judge. I suggest in such case the County Registrar should make representations to the Department.

1735. As regards the table* which you have submitted of civil actions, defended and undefended, during the years 1928 and 1929, where the amounts sued for did not exceed £50, in the first portion of that you have given the returns of the cases where the amount recovered does not exceed £25?—That is so.

1736. Those would be cases in which it might be suggested to the members of the Committee who are familiar with the practice that they were within the District Court jurisdiction?—That is so.

1737. What I want to point out is that they might claim an amount within the jurisdiction of the District Court. Those might appear in the third column as having got a decree not exceeding £25. The claim may have been for £50 or £100?— Senator Hooper asked me to furnish a statement, and I intend doing so,† but in these cases there is less latitude for misconception. Of the total actions, 1,074 entered in 1928 and the total of 1,165 entered in 1929, where the amount sued for did not exceed £50, these were clearly within the old jurisdiction.

1738. Senator Wilson.—You are in favour of having decrees in your court registered at a central office?—Yes, for £20. I think it would be desirable.

1739. Would not that be very expensive for the eight circuits?—You mean expensive to the State? Would there not be a certain revenue recoverable from the people who registered decrees?

1740. I did not know that you charged fees?—We do not register decrees.

1741. But there is a registry of decrees?—Yes, in the Central Office, and they charge a fee.

1742. If a decree is granted in your court, it would be necessary to search some register in your office, and do you not charge a fee for that?—We do. We charge for a search docket. If you come to my office and want a certificate that a decree has been granted in the case, say, of Brown v. White, you pay a fee on the search docket and we search for you. That fee goes to the State.

1743. You think that revenue might help?—Yes, in addition to the fees to the Central Office for the purpose of registering a decree. The State would not make much money out of that, but it would not lose.

1744. Do you think it is necessary in the interests of foreign credit to have decrees registered?—I think it is in the interests of everybody that in a small State like the Free State there should be access to places where the records are. It would be a very necessary thing to have records available from which a businessman could find out all he wanted to know about an individual.

1745. Deputy Rice.—You gave it as your view, although you had not considered the matter, as you said, very much, that you would not allow alternative or concurrent jurisdiction in the High Court except in the case of defamation?—Yes.

1746. To allow that jurisdiction in other cases might lead to abuse, in your opinion?—Yes.

1747. Would you not have an effective check on that if you had a provision that the trial Judge could certify that the case was not one which should have been brought in the High Court?—If you had a discretion vested in the Judge in that way, I would agree.

1748. Would you agree that in those circumstances there should be concurrent jurisdiction?—If there is such a provision, I would suggest that the check which you mentioned should be inserted in the rules.

1749. You told us you would not allow an appeal on questions of fact?—Yes.

1750. So that no matter how wrong a Judge of first instance might go in the order he made, you would give no remedy to the aggrieved party?—If you put it that way, I would not. To be logical, I must say that.

1751. I assume that from the great experience you had as a solicitor, you know a good deal about the working of the old appeal system by way of re-hearing?— Yes.

1752. You are aware that in a considerable number of cases the Judge of first instance was reversed on questions of fact?—That is so.

1753. That was when you had great Judges like the Chief Baron, Lord Justice Walker, Mr. Justice Fitzgibbon, and Mr. Justice Holmes who went out on circuit. In a large number of cases, they reversed the findings of fact of the court below?— Yes.

1754. We may assume therefore that Judges of first instance may often go wrong on questions of fact?—You may, but my experience of appeals from the Circuit Court to the High Court teaches me that the fewer the appeals we have from the Circuit Court to the High Court the better. That is my personal opinion. I think there should be some approach to finality in those cases which come before the Circuit Court.

1755. That would leave the Judge and officers of the High Court very little to do. If you deprive litigants of the right of appeal when they are satisfied, or their advocates are satisfied, that the Judge has gone wrong on questions of fact, you would leave very little work for the Judges and staffs of the High Court?— That would be so in the High Court.

1756. That might cause considerable discontent to the parties aggrieved?—It might, but I think, with great respect, that there would be more unhappiness caused amongst the people who resort to the Circuit Court if you were to have very wide facilities extended to them for appeals to the High Court.

1757. There would be very considerable unhappiness caused to the litigants against whom orders were made that should never have been made?—That is so, but I am merely stating my view. I am prepared to say that I may be wrong.

1758. You were asked a question, which arose out of evidence that was given yesterday, by Senator Farren about costs. You were asked about furnishing a number of copies of the transcript of the shorthand notes at 2d. a folio. Is the furnishing of copies of the transcript at 2d. per folio a losing transaction to the State?—It is.

1759. If you did furnish four copies at 2d., instead of the one you ordinarily furnish, that would be a source of loss to the State?—Yes—four times the loss on one.

1760. We were told yesterday by the Taxing Master that the solicitor who types out this transcript is allowed on taxation 6d. per folio for the first copy he makes and 3d. a folio for any copy after that?—Yes.

1761. Am I right in assuming that the remuneration of 6d. per folio for the first copy forms a substantial part of the remuneration the solicitor gets?—That is part of his costs.

1762. The difference between what it costs him to make the copy and the 6d. which he receives is part of his profit costs?—Yes.

1763. If you take that away from him he must be remunerated in some other way for his work?—He will seek to be.

1764. In practice and in fact, is not the lodging of notice of appeal a stay of execution?—Not legally, but, in fact, very few people will incur the risk of executing a decree if they know an appeal is pending. He would be a very courageous solicitor who would allow his client to execute a decree in those circumstances. It would be very exceptional.

1765. Would you not say he would be a very rash solicitor who would allow that?—I would say it would be a rash thing to do.

1766. Deputy Little.—Have you had experience of cases being stated to your court from the lower court by way of appeal?—I do not remember any.

1767. They have the power to state a case in the District Court to the Circuit Court?—I think I have never known such a case.

1768. I was hoping to be able to get from you an opinion based on your experience?—I have had no experience in that respect.

1769. You know that in England the system is to have a case stated by way of appeal from the County Court to the High Court?—I understood that the question you asked me was whether we had had cases stated from the District Court to the Circuit Court.

1770. Chairman.—The District Court has no power to state a case?—I must confess that I have never had such a case.

Deputy Little.—I think the District Court has power to state a case.

Senator Comyn.—They have power to state a case to the High Court but not to the Circuit Court.

1771. Deputy Little.—Having regard to your view that the number of appeals from the Circuit Court to the High Court should be restricted, do you think it would be better to confine appeals to questions of law?—That is what I am striving for.

1772. The best way to do that would be to have cases stated?—Something like that. I want to prevent an orgy of appeals and the bitterness and loss which will occur as a result. No matter who wins these appeals, there is loss and bitterness.

1773. That system would be very much better than the system of a re-hearing on stenographer’s notes?—It might have the defects that are at present being urged against the prevailing system of appeal— that the appeal Judge will not get the atmosphere of the court, and will not be able to judge by the demeanour of the witness.

1774. But he would not be dealing with evidence on a case stated?—That is quite right; he would be dealing with the law only.

1775. I suppose you have seen the new Rules?—No. I have not seen a copy of the last edition of the new Rules.

1776. I was hoping that in the new Rules there would be some provision to relieve your court of the 390 cases which should have been heard in the District Court?—Personally, I would welcome that very much. If there are cases in which the amount sued for in contract or tort is £25 or under, it is a nuisance that they should go the Circuit Court if the District Court is available.

1777. Do you think there would be any injustice done if the jurisdiction of the District Court were increased, say, to the sum of £50?—There would not be any injustice done to the public, but it might not be exactly a scientific system. I think the conception of the District Court is that it is a court where small matters up to £25 could be tried cheaply and expeditiously. Cases over £25 are generally heavier, and I think they should be sent to a court with a regular Judge, where more time would be devoted to the hearing of them.

1778. I see by the statistics* we received that in Dublin city and county the number of days upon which the court worked was 1,000 in three years?—Did we furnish that?

1779. Chairman.—It came through the Department of Justice, and it must have been obtained through you?—It probably was.

1780. Deputy Little.—The number of days on which the court sat for three years was 1,000?—That is right.

1781. The days upon which the ordinary Judge sat numbered 531?—Yes.

1782. And 469 represented the number upon which the assistant Judge sat?— Yes.

1783. I should like to have your opinion upon what you think would be the maximum number of days in a year that a Judge could sit and work efficiently, without pressing him too hard? —It would take some little calculation to find out the number of days that a Judge could work. If he were a man of robust constitution and willing to work every day open to him, he might be able to sit very regularly. In 1929, I think, Judge Davitt sat for the full number of days— 179.

1784. You consider that that would be the maximum number?—About 170 would be the number that a Judge could sit and be efficient.

1785. That is not pressing him too hard?—It is rather a difficult question to answer.

1786. The public will, of course, suffer if you get sweated labour?—I am against sweated labour and cheap labour.

1787. You think 170 days would be fair?—I think 170 days would be fair for a man in ordinary health. It might be on the high side. If you deduct the number of Saturdays, Sundays and holidays, you will get the number of possible working days. I calculated recently that Judge Davitt sat the entire period that he could sit. He is, of course, a hard worker, very energetic, and a young man.

1788. Senator Dowdall.—You told us that in two years you had only five winding-up cases?—Yes.

1789. That jurisdiction exists in all the Circuit Courts of the country?—Yes, under the Act.

1790. Did I understand you to be in favour of its retention, notwithstanding that your business is rather small in that way?—My attitude towards the matter is somewhat negative. As regards Dublin, I have, if not in my own office, at least available to me, all the machinery I need for the purpose of doing this work; however, as we have had only five cases in two years, it is not, in my opinion, worth bothering about the question whether you should leave those cases in the present Circuit Court or re-transfer them to the High Court. That is my attitude as regards Dublin. I do admit, following upon the questions that Deputy Wolfe put to me arising out of these returns, that it might be a matter of great difficulty for the Judge and County Registrar in the country to do this work.

1791. I rather disagree with that, but perhaps we had better wait for the discussion of that question?—I am only giving an opinion as far as I am concerned in Dublin. It does not concern me whether you leave them with me or take them from me.

1792. I take it that the Circuit Court Judge now has the right to state a case?—No.

Senator Comyn.—He has not the right except in special cases—those dealing with income tax.

1793. Senator Dowdall.—In your view, Mr. O’Connor, there should be alternative jurisdiction in matters dealing with defamation?—Yes.

1794. And actions for smaller amounts than £300 in these matters should be taken to the High Court?—What I meant to convey was this: that if there is the suggestion of alternative jurisdiction I personally think it should be given only in cases of slander or libel. If there was any extension of that I fear it might lead to an abuse of the privilege, except, as Deputy Rice suggested, restrictive powers were given to the Judge.

1795. Suppose it is confined to cases of defamation, what is your opinion on the question whether the costs given should be on the Circuit Court or High Court scale?—That is a matter which, I suggest, should lie within the power of the High Court. If the High Court was of opinion that on the facts before it the case was one that ought to have been left in the Circuit Court, then it should have the power to decide which scale of costs should apply.

1796. With regard to the number of cases that go into your court and which might have been brought in the District Court, do you think that traders have an objection to going into what they still regard as the Police Courts?—No, I think it is more a matter of convenience for the solicitors and perhaps the clients. I do not think there is any underlying big principle involved. It is merely a question of convenience.

1797. Speaking for myself, I should say that I would prefer to go into the Circuit Court?—The District Court in Dublin, from all I can hear about it, is functioning very satisfactorily.

1798. With regard to the arrears of work, notwithstanding the number of additional Judges appointed, due no doubt to some extent to the casualties amongst the permanent Judges, the position is that arrears still exist?—Yes.

1799. There has been a great deal of congestion in the Circuit Court in Dublin?—The Circuit Court in Dublin never really got a fair chance. We never had any rules, and from the beginning we had not an adequate number of Judges. If we had rules at the beginning and two Judges, my opinion is that we would be up-to-date now.

1800. I take it that also necessitated very heavy work in your office?—Undoubtedly.

1801. Have any of the arrears or delays been due to overwork in your Department?—No. No matter what happened in our Department the Judge’s list was always kept well supplied. We made that a first charge on our time. Suppose a solicitor lodged nine or ten cases with us to be entered for hearing by the Judge, no matter how we might be overworked in Green Street these cases went into the list at the first opportunity. No matter how shorthanded we were, and we were very shorthanded at the beginning, as Deputy Little and Senator Comyn know, we always kept the Judge’s list well supplied.

1802. Senator Hooper.—Could you give the Committee any figure representing the average difference in cost between a case that is tried in the Circuit Court and a case tried in the High Court for the same amount. We got some figures on this from a witness who appeared before us. He put the difference at over £100. I asked him if he regarded that as an average figure, and he said “yes”?—I would accept that. I am thinking now of the limited jurisdiction in, say, a £300 case. Of course, it would be hard to make a comparison, with, say, a £60 case, because such a case very rarely goes to the High Court. But in the Circuit Court, where the limit is £300, I would say that the party to an action who is sued there for £300 and is decreed for that amount, or a figure near it, would be saved £100 by not being brought into the High Court.

1803. Senator Comyn.—But you are not able to tell how much he loses by not getting a proper decision?—No. If there is not a proper decision, of course that is another matter.

1804. You say that there is alternative jurisdiction in the District Court at the present time?—That is what it amounts to.

1805. That is in civil claims up to £20 or £25?—Up to £25.

1806. Are you in favour of that system?—No. I think where there is a Court established for the hearing of claims up to £25 that the litigant should go to the proper Court.

1807. Deputy Little asked you a question as to whether you were in favour of increasing the jurisdiction of that Court? —No, I am not. If you increase the jurisdiction of the District Court to £50, and if, so to speak, you shave off some of the jurisdiction from the other side, you practically abolish the Circuit Court.

1808. You said, and of course everyone will agree with you, that the District Justices are all very able men?—The District Justices of Dublin.

1809. Exceptionally able men?—Yes.

1810. And quite competent to hear £50 cases?—I am not reflecting on the ability of District Justices to hear any case.

1811. Precisely. But you would deprive them of jurisdiction to hear cases involving sums between £25 and £50?— I think that you could overload your District Justices. I think that at present they are overloaded. They have a great deal of work to do. If you are going to hand over to them the trying of cases beyond £25, you are going to cast on them a very great responsibility and a great deal more work which, I think, they should not be asked to do.

1812. And I take it your reason is that it is desirable that where you have a court in which small transactions are investigated it is proper to confine the operations of that court to these small transactions?—Quite so.

1813. And that a court which is in the habit of trying £20 cases is really not the proper tribunal for trying the bigger cases?—If I were to express an opinion on that it might be taken as a reflection by me on the gentlemen who constitute the bench of justices in Dublin.

1814. No. because you have already said that they are all very able men?— I say that the present District Justices have their hands pretty full on the civil side. In Dublin, which I know best, they are very hard pushed to keep abreast of their work, which they are doing excellently and to the satisfaction of everyone. If they were to deal with cases over £25, it would involve them in a great deal of additional work.

1815. But their number could be increased?—I still think that their jurisdiction is ample.

1816. But the reason that you give for that does not apply when I tell you that their number could be increased?—It does, for the reason that I think that anything over £25 should more properly be left for the consideration of a Judge, as it would involve more consideration than a smaller claim.

1817. The reason you give, therefore, is that a tribunal which tries small cases should not be called upon suddenly to adjudicate on more difficult cases?—That is so.

1818. Following out that principle, would you also suggest that the Circuit Court, dealing with comparatively small cases of from £25 to £300, or from £25 to £100, is really not the proper tribunal to dispose of more substantial cases?—Do you mean that the jurisdiction of the present Circuit Court should be diminished?

1819. That it should be diminished?—I do not think that the jurisdiction of the present Circuit Court should be decreased either by taking away from it amounts up to £50 on the one side or amounts below £300 on the other. I think that the Court is a good one. In practice, the number of cases within the increased jurisdiction that comes on is so small that it is just as well to leave them where they are. I am speaking of Dublin, of course.

1820. If the number is so small, do you not think that they should go to the High Court?—No, for the reason that I have already given. It would be more costly to go to the High Court, and, taking the country generally, it would be more inconvenient for the people.

1821. But in an action for defamation in which £50 damages is given, you think that the proper court to try that is the High Court?—What I said was that if there is to be alternative jurisdiction, I think that is one of the cases in which it should apply.

1822. What would you say to a case of assault involving ignominy in which £50 damages was given?—That is an action in tort.

1823. You say that defamation is a proper action for the High Court. What about an action for assault. One man of position assaulting another?—I would leave it to the discretion of the Judge.

1824. You would not let that go to the High Court?—No, unless the thing would resolve itself into defamation.

1825. Supposing there is an action contracted between two timber merchants or two flour merchants involving, say, the customs of the trade—the amount involved might be only a couple of hundred pounds, but the principle involved might be very considerable. Would you let that go to the High Courts?—If it was a question of law.

1826. A question of the custom of the trade?—What you are asking is, would you allow an appeal?

1827. No. What I am asking is in regard to an action, say, for £150 between one timber merchant and another, involving, say, the custom of the trade; would you say that that was a proper case for the High Court?—No. I would say a Circuit Court Judge would be competent to deal with it.

1828. We do not deny that. A District Justice might be competent to deal with it, but what about the jurisdiction? —The jurisdiction is the proper one.

1829. But would not the High Court be the proper tribunal?—In the case of the custom of a trade it might be important—

1830. You would add that to your others for the High Court?—No, I would not.

1831. So that the case of £150 claim between two substantial merchants involving the custom of a trade is not a case for the High Courts?—If it was within the jurisdiction of the Circuit Courts, it should be kept within the Circuit Courts. I pointed out that the number of cases in which the custom of a trade would be involved would be very small, compared with those in which the question of defamation of character would arise.

1832. Suppose there was a case of £50 or £60 or £100 involving the title to an estate, indirectly, would you say that that was a proper case for the High Court?— Not if within the jurisdiction of the Circuit Court. I made my position clear.

1833. You say that the appeal at present from the District to the Circuit Court is an oral appeal?—It is the old style of appeal and involves re-hearing.

1834. Do you think that that is satisfactory?—I do not know the facts. I cannot personally give any evidence that I heard the case in the District Courts, and that I was present in the Circuit Court when the Judge was re-hearing the same case.

1835. You are not present at the hearing of appeals?—Very seldom. I know, as far as my office is concerned, that they go through, but I cannot testify as to the evidence of the parties concerned.

1835a. Senator Comyn.—You say there are very few appeals from the Circuit Court to the High Court?

Chairman.—We have got the figures.*

1836. Senator Comyn.—Might I suggest the reason for that? I am suggesting it now to a solicitor of very wide experience as a solicitor, as well as an official: is it that the cases heard in the country are of much greater variety of character than the cases heard here in the city?—I do not know. But I do suggest that we have a very wide variety of cases in Dublin, and you must remember that under the recent law contracts made in Dublin, although the parties may not live here, are tried here.

1837. But country cases are not confined to mere contracts for the sale of goods or things like that. Is there not a great variety in the cases that come before the Circuit Court Judges in the country?—Do you mean that there is a greater variety in cases that come before the Judges in the country than here in the city?

1838. In the types of cases?—I do not think so. I think all kinds of cases come before us.

1839. The average, you say, of the cost of the stenographer’s fees to individuals in Dublin is £1 to £1 10s.?—That is a rough calculation.

1840. It seems to be somewhat higher in the country in the rural areas?—It may be.

1841. Does not that point to what I suggest, that the class of cases in the country are different?—I do not think so.

1842. Chairman.—The witness may be wrong, but he has given his opinion?—I can only give evidence of what I observe in Dublin.

1843. Senator Comyn.—Coming to the point about the registration of judgments, is there not always the fee or stamp for registration?—Yes.

1844. Coming to Senator Farren’s point about the written notes, a fee has to be paid for the copies you supply?— Yes, at the rate of 2d. per folio.

1845. And the solicitor can reproduce that?—Yes, he can make as many copies as he likes.

1846. Whether in typescript or in manuscript?—Yes.

1847. You said the Circuit Court is the people’s court—the poor man’s court?— Yes.

1848. Might I take it from you that the exclusion of the High Court jurisdiction from it would be a great wrong to the people? Take a case of negligence. Supposing a widow came along, and was of the opinion that she was entitled to £400 compensation for damages and only got £250; she goes to a solicitor, but under the existing system can she possibly get a solicitor to take her case to the High Court?—She might get one and she might not.

1849. But if she gets less than £300 the solicitor gets no costs.

Chairman.—He gets some costs.

1850. Senator Comyn.—But not in the High Court cases. Would not that be against the affected person?—If the solicitor were out mainly for costs, yes.

1851. You give a list* here in cases of between £50 and £100 in 1929 in which there were 77 decrees and 69 dismisses?— Yes.

1852. Does not that point to a lot of bogus actions?—No, not necessarily. Compare it with the previous year, and you will find that there were only 32 dismisses and 105 decrees.

1853. I am taking the year 1929?—You cannot argue from the particular to the general.

1854. Between sums of £200 and £250, there were 6 decrees and one dismissed. That would seem to point to genuine cases?—That is merely comment. This report shows that 411 actions were entered; there were 77 decrees for considerably more than £50, and there were 91 dismisses. That is out of 411 actions entered.

1855. In these heavy cases—I call them heavy cases where the amounts and the decrees were over £100, that is between £100 and £300—do you not think that the question at issue between the parties should be stated?

Chairman.—He has already said so.

Witness.—You mean by some kind of pleadings. I have already given my views upon that. What I said was that I am not very keen on the rigid character of pleadings for the reasons I have already given and that I hoped when the Rules were finally shaped there would be some provision made——

1856. Senator Comyn.—In your answer to the Chairman, you gave the answer which is an exact definition of what the old pleadings ought to be?—I am interested to hear that.

1857. In addition to these pleadings, there ought to be interlocutory orders? —If the nature of the case demanded them.

1858. Would you say that in a big case involving documents there ought to be a discovery of documents?—Discovery in the Circuit Court do you mean?

1859. In the Circuit Court?—I will not say that there should be discovery of documents in the sense of the old High Court Rule, but there should be something in the nature of discovery whereby each party would know what the other is depending on and there should be provision for inspection, but I do not want to overload the Circuit Court Rules with questions of interlocutory motions and discovery of documents.

1860. There should be a verified statement of the documents on each side?— That is a matter for the Rules.

1861. Do you not think it would be desirable?—I answer in a general way. You are now touching on the Rules and on a matter which must appear in the Rules.

Chairman.—It can only be done by the Rules.

1862. Mr. Comyn.—That is not the object of my question. Do you not think it would be desirable to have it done?—I think it would be desirable in the case you outlined that some system should be available whereby information would be given by one party to the other party of the documents which were relevant to the suit.

1863. Would not that machinery for interlocutory orders for pleadings such as you mention and for discovery involve the provision of a staff of clerks in the Circuit Court?—Not more, say, than the present absence of Rules involves.

1864. Would you not require a skilled person in the office to look after the pleadings?—If there are big pleadings, yes, but it does not follow that I would require personally an additional skilled person.

Chairman.—I do not know what the Senator means by “looking after pleadings.” Does he mean file? They could not exercise any jurisdiction over their quality.

1865. Senator Comyn.—To file and to keep. Does not the same apply to interlocutory applications and orders?—I say in a general way, every County Registrar must have a competent staff and additions to this staff depend upon the extra work that is to be thrown upon it.

1866. In the High Court in Dublin, that staff is at present available. You would not be in favour of duplication of officers and staffs?—No.

1867. You are in favour of one system of courts for each kind of litigation?—I think there should be no difference in the Circuit Court in Dublin and the Circuit Court in Cork.

1868. The District Court should be kept separate from the Circuit Court and the Circuit Court should be kept separate from the District Court?—Undoubtedly.

1869. Seventy-five per cent. of the substantial actions that come before Courts are between £100 and £300?—I do not know about that.

1870. So far as result in decrees are concerned?—Yes.

1871. Would you leave the High Court anything to do at all?—I am not the Oireachtas of Saorstát Eireann.

May I claim your indulgence to mention something which may not be within the terms of reference? I refer to the staffs of the Circuit Court.

1872. Chairman.—I am afraid it is not within our terms of reference.

May I mention that, speaking for my own staff, I personally, as Clerk of the Peace and County Registrar, could never have carried on without my staff. They gave me willing and able assistance. I think I am speaking for every County Registrar when I say that the loyalty and the willingness of the staffs of the County Registrars deserve recognition by the Government, and I regret to have to state that although the Courts of Justice Act came into being some time in 1924 nothing has been done towards establishing those clerks. I think it is a great pity and I would urge upon you, gentlemen, who have been very considerate and courteous, to do what you can for the staffs of the County Registrars in the Saorstát. There is another question which is not within your terms of reference. It is a vexed question—the question of the offices of County Registrars and Sheriffs.

Chairman.—I am afraid that is the Court Officers Act.

Mr. Henry Murphy, County Registrar, Monaghan, called and examined.

1873. Chairman.—You are the County Registrar for Monaghan?—Yes.

1874. When were you appointed?—At the beginning of the system—on 31st August, 1926.

1875. Then you have had experience of the working of the Act since the beginning?—Yes.

1876. Before that, you had, as I know, large experience as a practising solicitor in Monaghan and the surrounding counties?—Yes.

1877. On the subject of the District Court, which we take first in the order of evidence, have you any evidence which you wish to give about the working of the District Court; could you say whether it is satisfactory in your county?—Yes; I am in a position to say that it is giving great satisfaction, both as a criminal court and a debt-collecting court, a civil court.

1878. Is it used for purposes other than that of debt-collecting?—I have said that it has given satisfaction as a criminal court. We all know the purpose of that. Outside debt-collecting, it is not much availed of in tort, though I saw from the local papers in my county an interesting case in regard to a motor accident which was tried some time ago. As a general rule, the average tort that is worth bringing in is likely to involve damages of more than £10.

1879. That goes to the Circuit Court?— Yes.

1880. In your experience, have many cases that could have been tried in the District Court been taken to the Circuit Court?—For about a year after I was appointed, solicitors and clients did not realise the advantage of the District Court. Before 1924 there was no Court open to a solicitor or trader in any rural district, except the County Court, for the collection of a debt exceeding £2 and under. By force of habit, they came into what they considered was the successor of the County Court, and they did not realise that they had a convenient Court with a jurisdiction up to £25 at their own door-step, so to speak. They have, however, fully realised that in later years. They avail of it, and it is very rarely that a claim in regard to a simple contract for a sum of £25 is brought into the Circuit Court now.

1881. Would you be in favour of increasing the money jurisdiction of the District Court in regard to contract?—I would not, for two reasons. First, because I think that the District Justice earns his money quite hard at present, and is working, in my opinion, very nearly up to his full capacity. You have got to draw the line somewhere. I have no logical reason to give why the line should be drawn at £25, and if I admit £25, I cannot give a logical reason for not admitting £30 or £40. The District Court is for one stratum of the population; the Circuit Court for another, and the High Court for the highest stratum of all, economically.

1882. Coming to the question of the Circuit Court, with which you have had complete experience, has it worked satisfactorily in your district?—I think it has. In one way, the Court does not, and will not, give satisfaction until one matter is amended by Rule or Statute. I refer to the fact that judgment for a debt, undoubtedly due, for which, and in respect of which, the defendant has entered no defence, cannot be obtained very often for four months. There is no procedure for judgment in default of appearance.

1883. What would you suggest as the most effectual remedy; how could it be worked?—By having a rule that if a man intends to enter a defence he must give notice of his intention. He should know that he must serve a notice stating that he intends to defend the claim. There should be a simple preliminary, so simple that the man at the plough would know what he has got to do. A notice to that effect should be printed in plain terms on the Civil Bill. It might run something to this effect: “If you do not serve notice through the post on the County Registrar at such-and-such address within ten days of the service of this document, a decree will be issued.”

1884. “By your default”?—Yes.

1885. That used to be so in the High Court writ?—Yes.

1886. When you were served with the writ, you were told that if you did not within ten or fourteen days—I forget the number now—enter an appearance judgment would be given against you?—Yes.

1887. There might be a difficulty about having his defence in, but if he served a notice that he would enter an appearance of some sort, that would be enough?— Yes.

1888. And if that were not done, you would mark judgment yourself?—Yes, and hand out the decree.

1889. The defendant could personally communicate by post or through his solicitor?—Yes. One of the simplest ways would be to make it compulsory on the plaintiff to attach a formal notice to the Civil Bill, so that the most ignorant countryman served with a Civil Bill would have absolutely no trouble, especially as there is a modicum of education spread amongst the people nowadays.

1890. That would be absolutely necessary. Coming to the jurisdiction of the Circuit Court, what is your opinion as to the jurisdiction of the Circuit Court. Should it be left as it is, or should it be altered in any way?—I am of opinion that it should be left as it is.

1891. Chairman.—Would you give us shortly what your reason for that is?— Before the Circuit Court was introduced, the peasant farmer or village shopkeeper whose entire property was not worth say £500, if he wanted to recover either damages or a debt of, say, £250, £299 or £300, was compelled—I speak from my own personal knowledge—to employ one solicitor and two senior counsel. Of course, I will be met at once with the statement that one senior counsel would do. I have no hesitation in saying that I never went to Dublin with the virtuous intention, when I was a solicitor, of doing a case on the cheap with one senior and one junior counsel, but that the senior whom I briefed, immediately after he got his brief told me, “Oh, I have three or four courts to attend to on the day fixed for this case. I cannot give it sole personal attention and you must have another K.C.” It was almost unheard of in a common law action, during the years I practised, to employ only one senior counsel. It was the invariable practice to have two seniors even on cases as low as £100 or £150. Judging from the newspapers, that is not the case over the water. Over the water, I see quite big actions fought with juniors. However, I do not want to introduce that practice into Ireland and never did, but certainly employing two seniors is not so usual in England in the same class of cases as it is here in Ireland.

1892. Yes, but their fees are on a different scale. Your objection is on the ground of expense?—Yes. The effect of that was that the man who lost a case had to pay two solicitors, four senior counsel and two junior barristers. I think that was a monstrous system in cases of the value I speak of, where the amount in dispute was small. I hope I shall not shock you but I do not think it is fair odds that a man going for £250 should have to risk £250.

1893. The costs of a High Court action such as you describe on both sides would be £250?—On a conservative estimate. In many cases they very much exceeded that.

1894. That is where the claim exceeded £300?—Of course, there was the initial expense of bringing witnesses to Dublin and the fact that very often you did not get your case heard on the day named, although you had your witnesses up. There were always two or three jury cases in the list, more than could be heard. That is necessary; it is not an abuse because nobody knows better than you, Mr. Chairman, how often the list collapsed.

1895. Your objection is on the grounds of the undue expense of the High Court in this class of case up to £300?—Yes.

1896. Have you any other reason for objecting to the reduction of the jurisdiction? Take a case from your own experience in your own district. Do you think that one of these larger cases is likely to be as well tried, I do not mean by the Judge, but as well tried in the Circuit Court as it would be in Dublin?— Practically. If you ask me absolutely, of course, I say no, because there is talent at one’s command in Dublin that is not, perhaps, procurable elsewhere. At least, it would be so costly to bring it to the local venue that it would be out of the question. But I say that the difference is, if I may put it so, only fractional. If you have a competent Judge and a competent advocate, though not a super-brilliant advocate, I believe that every material fact will be elucidated, and that justice will be done, even though some further facts might be brought out by some abler man. But then that would apply in the city too. If you have cases being tried in the different courts, one in one Court and one in another, one of them may be very much superior to the other, and a case in one Court may be much better presented than a case in the other.

1897. That is a question of fact, and dealing more or less with the personal equation of particular counsel of the same standing. Perhaps I had better put it this way: have you counsel in your district regularly?—We have junior counsel, so to speak, on the hazard.

1898. Is there some kind of a travelling Bar?—Very often, and they are very competent. It is quite pleasing to see the amount of talent there is in the Junior Bar at the present time.

1899. What amount of experience have they? Of how many years’ standing are they?—In addition, we have seniors down.

1900. In special cases?—Yes, in special cases. Of the juniors I had in mind—I shall not name them—one has nearly ten years’ experience.

1901. And comes regularly?—Comes regularly and makes a good income, I am glad to say.

1902. That class of counsel, of course, would be very satisfactory, but when they grow old and cease to practice in the Circuit Court, are the counsel who are likely to succeed counsel of that kind—are they men who know their jobs, are they men of standing, of experience and of learning?—They are coming on. What happens is that the difficult cases go to the riper junior and the easier cases, or a certain percentage of them, go to the young men with talent, but not having as long experience as the men I first mentioned. The cases are conducted most efficiently and, so far as I know, just as well as the cases in the High Court. Otherwise, the young men could not live at all.

1903. The difference in the case of the High Court, it has been pointed out to us, is that the juniors are in the atmosphere of the Library and have all the assistance of the books and of seniors, not seniors engaged in the case, but seniors to whom they can go for advice and help. They get an education both in the Library and by being able to follow the work in the High Court. While it is a good thing that they should go to the Circuit Court—that is very often the only way in which they can get a practice—are they not likely to lose a good deal of their best education there?—The answer to that is that the Circuit Court is not a monastery and no barrister who enters there remains there in seclusion all his life. On the contrary, none of the juniors of whom I have been speaking here, attends from day to day. What happens is that by reason of coming into contact with solicitors at the local venue, they get, from the solicitors, High Court work as well. They are rushing up to Dublin and doing High Court as well. I have one barrister in mind who is in a very large percentage of the substantial cases in my Circuit and at the same time I see his name repeatedly mentioned in motions of all kinds in the High Court. I can sometimes infer from the names of the solicitors that they are solicitors whom he met and who tested him out in the Circuit Courts.

1904. There may be that advantage in the Circuit Court in getting a junior barrister work?—Yes, and High Court work.

1905. Have you any idea of how long these particular junior members of the Bar are out on the hazard in the year?— In the case of those men I speak of as having High Court experience, one of them would be about ten years, and the other about seven in practice.

1906. Of the junior Bar attending your courts, how long do you think are they out from Dublin during the year?—I do not know; I could not give you an idea. My experience is that they worry the life out of me, because they are in Dublin about every second day of my Sessions, and I am constantly engaged in fixing cases to suit them. That does not interfere with the public in any way, because I have the lists made out a few days beforehand, and generally arrange them so that the public will not be disappointed. I generally include one more case than can be done in the day, so that if a case collapses nobody will be disappointed. I have arranged these lists to suit the public and the junior Bar, and I think every Registrar does the same throughout Ireland. The junior Bar are constantly coming to Castleblayney. These barristers are in both the High Court and the Circuit Court; they are doing their work admirably, so far as I can see, and nobody is suffering. They are flying about after court hours all over Ireland in their motor-cars, and then they are back in the Library and ready for work.

1907. It has been put to us very strongly that the very junior barrister himself suffers, in the first five or six years of his professional career, by being in the country, away from books, away from the Library, and from all that kind of education that he would otherwise get?—As far as I can see, judging the habits of these young men, they are never absent from the Library for more than two or three days a week.

1908. We have had it put at something like seven or eight months of the year?— It would be a good thing for them if they were permanently engaged for seven or eight months of the year.

1909. Does it happen that they follow the Judge round from one Circuit Court to another?—That is not so, on my circuit. They motor down from Dublin in the morning, though I am ninety miles from Dublin, and they motor back. I have seen a barrister apply to the Judge to have a case taken after lunch, and to move a motion in the High Court in the morning, and be in the Circuit Court again at two o’clock in the day for the case.

1910. Is there any other matter that you would like to bring before the Committee on the question of the jurisdiction of the Circuit Court?—I feel very strongly about it. Let us imagine for one moment that you develop a very much higher type of barrister—which I do not admit at all— by reverting to the old practice, I think it would be too big a burden to put on our unfortunate people to produce that very high type by the excessive cost it would necessitate in a very poor country. You yourself are an exception to it, but it is almost impossible in a small country to produce a very great jurist, a very great artist or a very great engineer. It is very difficult, and somebody has got to pay for it in expense.

1911. Your point is that the country can pay too dearly for good law?—No, but for super-lawyers, which is a very different thing.

1912. Would you be in favour of what we have been calling an alternative jurisdiction in the High Court and the Circuit Court?—I would not.

1913. You know what I mean?—I do, that from £150 or so up a man could go to either Court.

1914. Or £100, or some figure?—I would strongly object to it, because human nature is human nature. I was a solicitor myself, and if I had an alternative there would be a temptation to try the higher Court, which is much more attractive for solicitors.

1915. Would there be that temptation if the Judge—whose power to remit is there already—had discretion at the end of the case, having heard the facts, to say: “This is not a case that should be brought into this Court, and I will only give you Circuit Court costs?”—I do not think that that would be fair either, because even the present system is hardly fair in a way. If I was a solicitor again —and sometimes I wish I were—and if a man came into me with a case, I could not tell whether he was likely to get £500 or £250. In your long experience, I am sure, Mr. Chairman, you acted in many cases, and when you were going into Court you had not an idea whether you were going to get £300 damages or £800 damages; certainly, you could not tell between £300 and £500, with all your experience, and how is an ordinary country solicitor to tell? I do think that there should be a discretion; I think there is a discretion in a High Court Judge, even now under the existing jurisdiction, to certify for costs on a £250 verdict if he thought that the plaintiff had reasonable grounds for thinking that he might have got a larger sum.

Deputy Rice.—That is so.

Witness.—If my approval of that is worth anything, I approve of it.

1916. Chairman.—What is the practice in your Circuit Court as to the giving of costs? Does the Judge exercise a discretion at present, there being no Rules? —I cannot call to mind a case in which the Judge refused costs to a successful party. I have known cases where he has suggested to the successful party that he should waive his costs.

1917. That is another matter?—That is another matter altogether. I cannot call to mind a case where the Judge refused costs in a tort or contract action.

1918. I am talking of common law. Do you think that in common law costs the Judge ought to have a discretion, or that the costs should automatically follow the result in the Circuit Court?—I think the Judge is entrusted with a great deal more powers than those about costs, and I certainly think that he could be very well trusted to exercise his discretion as to costs.

1919. Of course, in a jury case there is no discretion; it must follow the event in a jury case in the High Court?—Yes. I would like to see full discretion in the Judge.

1920. Senator Dowdall.—Even in a jury case?—I am not going to be uncompromising. I do not know. In the High Court, the Judge has a discretion, I understand, in every case except a jury case. I suppose that we should be uniform in policy and say that the Circuit Court Judge should have a discretion in every case except a jury case, but I have no reason for saying that.

1921. Have you any substantial number of jury cases in your Court?—No. I had one on Tuesday which kept me all day. We have very few of them in civil cases. Lately, we have had about one in each sitting, which would be about five, because we have six Courts in the whole year, three in Castleblayney and three in Monaghan, and we have one jury case nearly always at Castleblayney, where they are a little bit more litigious, and occasionally one at Monaghan.

1922. The jury cases are practically negligible?—Yes.

1923. Would you leave the jurisdiction other than common law—that is, equity, bankruptcy, and all that—as it is, or have you any suggestion to make with regard to that?—We have no bankruptcy business.

1924. But you have equity jurisdiction very much larger than what the County Court had?—Yes, and I would be very sorry to see it taken away, because it is easily worked and advantageous to the people.

1925. Have you had many cases in equity over £500 or over a valuation of £30?—The Department sent me forms which I filled, but I am afraid that they did not ask that question.

1926. Could you tell us roughly, from your own recollection?—We have had a fair percentage. As a guess, I would say that about one-fifth of the cases are over £500.

1927. Cases that would have had to be brought in the High Court before?—Yes. About 266 new equity cases were commenced in the three years about which I was asked for the returns by the Department—that is, the three years ended on 31st August, 1929. I have no statistics, but I would estimate that one-fifth of these involved estates over £500.

1928. Or over £30 valuation?—Yes. A propos of that, might I say that in my Court the parties voluntarily brought in about five suits, although they exceeded £1,000.

1929. That is, equity cases?—Yes. I have in my mind one suit, in which over £5,000 was allocated, brought by a Bank on a mortgage.

1930. From your experience as a solicitor, and now as County Registrar, could you say if there is any difference in the speed in the hearing of the ordinary administration suits in one Court or the other?—There is a most amazing difference in the speed. These administration and mortgage suits are wound up in my Equity Court—and I do not think mine is a bit better than the neighbouring counties of Louth and Cavan—and we easily get through all the suits in twelve months. I have never succeeded in getting an administration suit or a mortgage suit in twelve months from start to finish through the High Court—I mean the final allocation and everything.

Chairman.—It may perhaps shock the laymen who are on the Committee to hear that you cannot get an equity suit through inside twelve months, but it ought to be explained that there are necessary delays of a certain number of months.

Senator Comyn.—Three months for a redemption and three months for advertisements.

1931. Chairman.—As to the probate jurisdiction, do you think that there ought to be any alteration made in it?— I do not see the slightest necessity. I forgot to mention that about one-half of our jury cases are probate cases. Juries are considered sympathetic by people who are cut out of a will and are nearly related.

1932. Nearly related to the jury panel? —No, nearly related to the testator.

1933. There are certain interlocutory applications in the Circuit Court. Is there any way in which they can be improved? I mean appointing an equitable receiver, or garnishee, or any of these interlocutory matters?—I do not think so. You can get a Judge quite easily. As County Registrar, I saw a solicitor from Donegal moving through a Monaghan solicitor at the sitting of the Court. It is quite common, and I see no difficulty at all about that.

1934. It has been suggested by someone that the procedure in the Circuit Court is slow, if I may put it that way, by the necessity of the stenographer’s notes?— I do not think so at all. We have a man in our Court and nobody ever thinks about him at all. He is the last person we look at or see in Court. Everyone carries on as if he were not there. His notes have been quite accurate, as far as my experience goes, and he does not delay the Court.

1935. I am not thinking of the stenographer, but where there is an appeal, as there is at present on the stenographer’s notes, of having to go into a large number of matters that you would not go into, unless you were afraid you would want the appeal, and of bringing out a lot of evidence which might be necessary?—I am quite sure that you as an advocate appreciate the necessity of doing that more than I do. Only that you mentioned it and called my attention to it, I would not say that. I quite see that you want to get things down in writing that you know, and that the Judge knows all about, but that you are afraid that the Judges of Appeal might not know all about.

1936. Senator Comyn.—That is it?— That is quite true.

1937. Chairman.—It prevents both the advocate, who would be quite willing sometimes to cut the case short, and the Judge from cutting it short?—Yes. But I do not think it is a wise thing to abolish the note of the stenographer. I am not prepared to say what percentage of time it saves. In my opinion, it is an almost negligible percentage of time.

1938. Will you give us your general views on the question of appeal from the Circuit Court? Do you think that ought to remain on the stenographer’s notes, or be altered in any way, and if so in what way?—I do not think it ought to be altered.

1939. Chairman.—We have had only a couple of witnesses taking this point of view. It is most important that we should get both sides. We are trying to do so, and I hope we will succeed in keeping a perfectly open mind. We want to hear everything that could be urged on the side you seem to take?—I admit, if you like, that there is some advantage in a Judge looking at the witness, but it seems to me such a strange thing that a number of people are anxious—cost what it will to peasant or small shopkeeper—to enjoy the great privilege of having two Judges of Appeal looking at them face to face, instead of the present method. If that be a good thing, and if it be necessary to have Judges of Appeal, why is it then that the large merchants and people of high standing who are litigants in the High Court, are not also given the same privilege? Never so far as I know, in the history of the High Courts in either England or Ireland, have these people been favoured with an appeal by way of rehearing. Their only appeal in the biggest cases tried in England or Ireland has been an appeal on notes, and these notes were the Judge’s notes. I will not be committed for saying that I knew Judges of a type who had such strong views in cases that their notes hardly represented everything that had happened in the Court below; unconsciously, the things that did not affect their minds were disregarded, and did not go on the notes. I do not think that is so nowadays or that it has been the case for a great many years. When I was an apprentice, there were one or two Judges whose notes were supposed to be somewhat crabbed and one-sided occasionally—absolutely unconsciously—yet no one ever demanded that the High Court appeal should be re-heard, except in special circumstances where a new trial was directed. The Court of Appeal never got witnesses up before them.

1940. Very seldom?—Under the present system you have the shorthand writer’s notes. I think these notes, at least in my county, are substantially accurate notes. It is quite easy, I think, for the Judge of Appeal to tell whether the notes are accurate or not, because if counsel and those in the Court below take some notes of the proceedings, if they fix on a manifest inaccuracy in the shorthand writer’s notes, it is very likely they will fix on one, two or three other things in the notes that are inaccurate, and if that is so in one particular, they will be inaccurate repeatedly during the case. I should say that if counsel satisfied the Judges that the note was inaccurate it would be cast aside.

1941. I am afraid not. There is the statute?—But a note may, on the face of it, be inaccurate. In a really bad note, I would say that the Judges would say it was inaccurate. I have never come across bad notes. They certainly have not come from the county in which I am, or from the stenographer who has been working in it all the time. That note is better than a Judge’s notes in many ways.

1942. We have had a good deal of evidence on that subject, from amongst others the Commissioners who tried appeals, and without at all suggesting that the stenographers’ were at fault, they told us that often the stenographers’ notes did not give a satisfactory account of the cases, largely because a number of people were talking in court at the same time, maps were handed up to the bench, and that when two engineers went up beside the Judge and pointed out things on plans, their evidence would not be reported at all. There are cases in which the stenographers’ notes, without any fault on their part, could not be satisfactory?—There may be cases, but I think they are very rare. Let us take a case where the Judges say that the stenographer’s notes are wrong, and that they could not get an intelligible grasp of the case from the notes. I submit that the Judges should, under the Act of 1928, send back that case for a re-hearing.

1943. That has been done in a very small number of cases. It is an expensive performance?—I respectfully submit, if I may use a County Monaghan phrase, that we are “polluted” with appeals all over Ireland. I was very much struck, if I may say so, by Mr. O’Connor’s evidence on that very question, where he said that they have so few appeals in Dublin. In my opinion, the reason for having few appeals in Dublin is that the bulk of the litigants are intelligent and fairly educated people. The reason you have a great many appeals in the country is, not because of anything that happened in court, or for any real necessity for appeal, but because you have a people badly educated, with uncontrollable tempers, old family feuds, and things of that sort. These appeals should not be facilitated. If a man wants to appeal, I am not going to deny him, but I say to you, “Do not make it too easy for him to appeal.”

1944. I take it that you are conscious of the fact that the present appeal is, in effect, an appeal on the inference of fact, as distinguished from the question of fact?—I am aware that the Judges apparently overruled the statute.

1945. Chairman.—Not apparently?

1946. Senator Dowdall.—Flagrantly— They overruled the statute.

1947. Chairman.—There is another important point on which I would like your opinion. Ought there be from the Circuit Court a definite appeal on a question of fact?—In my opinion, there should be as free an appeal on the question of fact as, and no freer than, there is in the High Court on the question of fact from the verdict of a jury, or say, the judgment of a Judge of the first instance in the High Court sitting without a jury.

1948. Does not that mean that, in your opinion, there ought not to be an appeal on the question of fact?—No one is more competent to interpret it than you.

1949. Arising out of that, do you approve of the abolition of the right of appeal on the question of fact? In other words, are the people satisfied with the present form?—I should say that many litigants, if you put it to the vote of habitual litigants—

1950. There are several in Monaghan?—If you put it to the vote of habitual litigants, I have no earthly doubt that they would scrap the present system of appeal, and vote for the Assizes and redrobed Judges to come round for the re-hearing.

1951. I am thinking of the ordinary man who has only one case in the year, and to whom that one case is of very great importance. He is dissatisfied with the decision in the Court below. Do you think he is satisfied when he hears that the appeal has gone on in Dublin, and that he only knows the result?—I think the man who has only one lawsuit knows he has had a fair hearing, and I assume him to be a perfectly peaceful, respectable citizen. I do not believe he wants to appeal, and therefore he is not troubled with what takes place in Dublin. He does not want to appeal at all if he has got a full hearing. One reason why you had so many appeals from the old County Court Judge was— and some of them were very great personal friends of mine, and men of very great ability—that they certainly chivied solicitors and litigants a lot. There was of lot of hurrying up, and there was not as full and patient a hearing as is given by a Judge who is not superior in virtue to his predecessor, but who is probably out the whole year round, and has no particular reason for hurrying. The slow and patient hearing is a guarantee against any desire to appeal by the most dissatisfied plaintiff or defendant.

1952. I am thinking of County Kerry, that in some ways is very like Monaghan, where the people are what you would probably describe as litigious, though very decent people, and they have had an extraordinary series of patient Judges?—I certainly knew one who was a most charming man with a very high sense of duty.

1953. It is no harm to mention names. There was Judge Shaw who was there for years and they wept when he left the county; Judge Dromgoole and Judge Dan Brown. You could not have had more patient men and yet Kerry was full of appeals under the old system?—I said that the decent, quiet, peaceful citizen was satisfied if he got a full, patient hearing, but the litigious person is not satisfied with any hearing so long as he can get on again. As I said in my précis of evidence, in Kerry and in Monaghan the County Court was merely a trial gallop, a morning canter before the real race, and the real race was at the Assizes. That is the way the people looked at it. So long as you give them an easy appeal by way of re-hearing at their own doors, no matter how good a Judge you give them in the Circuit Court, the people will appeal to that tribunal.

1954. It all really comes back in the end to the important thing that you do not think it is wise to give a real appeal on fact?—I think cheap appeals are as bad as cheap drink.

1955. Is there anything else you would like to suggest to the Committee?—No, except that I believe you have ruled out the terrible question of putting sheriff’s duties upon county registrars. Just fancy Mr. O’Connor—it would fall upon him because all the criminal cases in Ireland are tried here now—having to leave his duties in chamber to hang a man! What position would he be in for his work for two or three days afterwards? I might be sent out to seize cows and pigs.

1956. Senator O’Rourke.—What would be the difference in cost between a High Court case and a case in the Circuit Court in which the amount involved would be £120 or £130?—I have taxed such cases repeatedly to about £30 a side.

1957. That would be £60 in the Circuit Court?—Yes.

1958. What would it be in the High Court?—Whether it was for £120 or £200 would not really matter very much. It would roughly cost about £125 a side, including witnesses’ expenses.

1959. That would be £60 against £250? —Yes.

1960. You are satisfied that the present system of appeals is the best?—I think so, because while I quite admit what the Chairman said, that in practice it only comes to an appeal on the question of law, I think that ought to be quite sufficient to satisfy people.

1961. You are satisfied with the system of hearing appeals in Dublin before two Judges and the plaintiff and defendant not knowing anything about it; that is quite satisfactory?—In my opinion, it is quite satisfactory to the class of appellants that should be catered for.

1962. You mentioned a case in the old days where you had to employ two senior counsel and that you give a brief to one counsel and he coolly keeps the money and tells you he cannot act?—You must have some experience of that yourself. That was the practice. You were always told by your client to get one of half-a-dozen leaders. I daresay you might get a K.C., a moderately good man, who would have leisure to attend to your case and you could, no doubt, do it with him, but if anything happened you would be severely blamed, especially when your client saw the other side had two seniors and a junior.

1963. What I object to is a man pocketing the money without doing any work?— I dare say the senior who refused to act without a second would have given me back his brief.

1964. You have no system for default cases at present?—No. We have to wait until the Judge comes round. I suggest that I ought to be at least capable of certifying that the man has not given in any defence and that I should be able to issue an order as a clerk does in the High Court still—a civil servant.

1965. And the judgment would be registered in the county?—Yes. Everything could be done that could be done with a decree signed by a Judge.

1966. Would you suggest that there should be central registration in Dublin? —I think it a very good idea even to make a rule that the county registrars should automatically send them up. I quite approve of that, although it would add to my duties.

1967. Senator Comyn.—In regard to marking judgment in the Circuit Court in default of defence, would you require proof of service of the civil bill?—Yes. I think the Rules would provide for that. I think the old draft Rules, which I did see, and the new draft Rules, which I did not see, provide that there must be an affidavit by the process server—or a statutory declaration on the back of the civil bill, which is the new system.

1968. Would you also require an affidavit of debt; would you require in the Circuit Court that somebody should swear that the debt was due?—I quite agree with you—I think it would be a reasonable requirement.

1969. This could only apply to contract cases?—Yes—no judgment by default in tort. There is no hurry about tort, but the other strikes at the root of commerce and credit—the absence of powers of giving judgment in default in simple contract cases. Tort is never in a hurry —it can always wait until the Judge is around.

1970. In regard to appeals from the Circuit Court, do I understand you to say that the present appeal ought to satisfy the ordinary law-abiding citizen?—In my opinion, it should.

1971. Is it your opinion that it does, in fact, satisfy the litigants in Monaghan? —In my opinion, there is a considerable percentage of litigants whom it does not satisfy. I consider these are people, as I say, that should not be catered for and should be saved from themselves.

1972. Are they not a considerable majority?—No, by no means a considerable majority of the population; they are a considerable majority of the litigants, I believe.

1973. They are a considerable majority of the people who seek the assistance of Courts?—I would be willing to admit that.

1974. Therefore you would not cater for the great majority of the people who apply to your Courts?—No, because I believe that I appeal from the uneducated people of to-day to the people whom I hope will be educated ten years hence.

1975. You think the people in Kerry and Monaghan will be satisfied with that?—If they reach the standard the people have reached in certain other counties in Ireland.

1976. Until they have reached that standard, do you not think it desirable that Courts of Justice ought to satisfy the wishes of the litigants?—No. I think that the State should provide justice for the people once and once only, except in exceptional cases.

1977. How many towns in Monaghan does the Circuit Court Judge visit?— Only two—Castleblayney and Monaghan.

1978. Is there not a big town called Clones?—It was a big town, but it is a thing of the past largely.

1979. What towns did the old County Court Judge go to?—He went to Castleblayney and Monaghan for all purposes at every Sessions—that was four times in the year. He went to Clones for one day, merely to hear cases of shopkeepers’ debts. He only sat one day, and if there were any cases not heard he sent them on to Monaghan. He sat in Carrickmacross one day for the same purpose.

1980. Twice a year?—He sat twice a year in Carrickmacross and twice a year in Clones.

1981. What other counties has your Judge now?—My Judge has now Cavan and Leitrim. Donegal, though it remains technically on the Circuit, is not, I think, going to be done by him in future. I think it will be always done by an assistant Judge, but it remains part of the Circuit.

1982. Can you tell us how many towns in Donegal the present Judge visits?—I could not say. Donegal is a very complicated county. He does Lifford and Letterkenny, I think.

1983. Am I right in saying that Circuit Court Judges do not visit half the towns formerly visited by the County Court Judges?—They do not visit anything like as many.

1984. Do you think that is an advantage?—It is a great deal easier for the litigant to reach the present Circuit Court than it was for him to reach the County Court twenty years ago. On account of the extraordinary development of the buses everywhere, people can now get many miles for 1/-, 1/6, or 2/-.

1985. Senator Hooper.—With regard to a decree by default, you propose that the defendant should send by post a communication to you saying he was going to defend?—Yes.

1986. And that in that event the case be kept in your list?—Yes.

1987. How would that help you in achieving your object of preventing delay; surely the mere fact of a man sending a letter costing a twopenny stamp to enter an appearance, which he might withdraw later on, would not greatly help in achieving your object?—It is extraordinary the number of writs in the High Court that are let go undefended.

Chairman.—I do not think you understood what Mr. Murphy said. If that notice was not sent, the judgment was marked automatically against him.

Senator Hooper.—I understood that if the notice was sent, the case would remain in the list for four months.

Senator Comyn.—If it is not sent, judgment would be marked on an affidavit of service.

Chairman.—Mr. Murphy suggests that the original process that he is served with should give him notice, and if he does not intimate that he is going to enter a defence, judgment will be marked against him by default at once.

Senator Hooper.—Supposing the man on receipt of the notice sends in a letter saying he is going to defend?

Chairman.—Then the case comes into the list and the delay is the same.

1988. Senator Hooper.—So that really a man by spending twopence on a stamp will achieve the delay?—He will.

1988a. Senator Hooper.—It will affect him in no other way?

Senator Comyn.—It might add to his costs. If a default process is served on him and if he sends intimation of his intention to defend, then he becomes liable for extra costs.

1989. Senator Hooper.—Would there be any monetary penalty on him in case he did send notice of that kind and did not appear?—There should be. There are no Rules at present in existence, but there is an analogy in the High Court.

1990. What do you think of the suggestion that the existing Appeal Court, instead of sitting in Dublin all the time, should travel around to the Circuit Court areas and hear appeals there?— Hear the witnesses?

1991. Hear the appeals there under the present system?—I could conceive no benefit, because they would be away from the library; the men who would be arguing the cases would be away from the library and could not quote authorities.

1992. Would it not have this advantage; that it would get rid of the dissatisfaction that appears to exist in the minds of litigants that they do not have the appeal heard in their presence?—It would be a foolish leaning to the sentiment and the curiosity of the litigant. He is not going to gain anything by it. His solicitor ordinarily would go to Dublin for the hearing of the appeal. I think a man is far better at home. It is only an appeal on a question of law at the present time.

1993. You do not think it would give him extra satisfaction to have the case heard next door?—I do not think so, and besides there is the inconvenience to the Judges. There would be the very danger that did exist, or was said by wicked people to exist, long ago. The statement was made that when the Judges of Assize went round they were always in a hurry out of the town; there was want of accommodation and they were anxious to get back to the City. I am not saying that the Judges of the present day are of that type. There were very good men in the past and they were foully slandered by the people who suggested that.

Senator Dowdall.—I do not think they were slandered at all; it was a fact.

Chairman.—Some of them were slandered.

1994. Senator Hooper.—Assuming steps were taken to give effect to the existing statute and to get rid of the decision of the High Court, which practically means there can be no appeal on fact; assuming that was so, and that there was an effective appeal on fact, would not the presence of the Appeal Court in the Circuit town enable Judges to get fresh evidence to an extent that they do not ask for now?—It would make it easier for them, but what I think would be the wisest thing is that they should use the powers they have and direct a careful re-hearing in the rare case in which they consider a re-hearing necessary. It did not matter really who held the re-hearing, because a shorthand note would be taken of the additional evidence, and it would come up again before the Appeal Judges. Perhaps I did not make myself quite clear. Though a democrat, I cannot see why a poor man should have a bigger appeal than a rich man.

1995. We have had evidence that the present appeal system is more costly than the old?—As to that, I cannot explain it. I was absolutely astounded at the cost of some of those appeals. I was amazed at them. I have seen appeals costing £50.

1996. We had evidence yesterday of one costing £90?—I do not say that it is an abuse. I am not anxious for cheap appeals, but I think the cost is monstrous in some cases. I think the evil could be done away with easily by establishing what did exist in the old days—a flat rate. In the Courts of Assize there were scales for appeals. The Judge’s Registrar filled them in, the solicitor gave half-a-crown to the crier; there was no taxation, but you got the fixed costs; whether the case was long or short it did not matter, and everybody was pleased. The payment was on a scale.

1997. Would not the travelling Court help to cheapen justice for the people in that respect? Would not that appeal to you as a democrat?—I do not think so. Do not take me as objecting on anything except sentimental grounds against a Judge going around. - There would be no harm in his so going around, but there would be no good either. They would be still trying the appeal on the notes. You will be giving them a good deal of discomfort and probably inconveniencing barristers, all for the sake of the loser knowing the worst a few hours earlier than if the case were tried in Dublin.

1998. On the question of the Circuit Court Bar, I would like to clear my mind. Let us take the old County Court. Both solicitors and barristers had audience there. I suppose in the majority of cases solicitors appeared?—In the majority of cases they did, but the cases were not cases that necessitated great skill or legal learning.

1999. It was only in the minority of cases the counsel appeared?—Only in the minority of cases, and that is still the fact. In cases under £50 in my county, barristers are hardly ever employed.

2000. Senior counsel rarely appeared in the old County Courts?—Never, because the limit was £50. I do not remember ever seeing a senior counsel in the old County Courts.

2001. You have now the same class of counsel who used to go to the County Court going to the Circuit Court?—You have far more counsel going on account of the extended jurisdiction—much more. Even a junior was a very rare thing in the Monaghan County Court. I was almost forgetting that on Equity Day there were always counsel, and I would be quite wrong in leaving out that. They were there on Equity Day; there were always briefs going; that is, Chancery work.

2002. Junior counsel?—Yes. Hardly ever was there a common law brief.

2003. Your experience is that you have in numbers a stronger Bar in the Circuit Court than in the old County Courts?— Yes.

2004. As regards the qualifications of the men, is there any difference?—We have a greater number of well-qualified men than before. We might have had an odd man of high quality before, but he left us at the earliest opportunity.

2005. You have a stronger Bar in quality and number?—In quality and quantity I think we can claim that.

2006. In the olden days it was only at the Assize Courts the senior counsel appeared?—Yes.

2007. It was there the junior men had an opportunity of learning the business from their seniors so far as the country practice was concerned?—It was.

2008. If there were travelling Courts, whether under the existing system of appeals or under the old system—a revival of the old system of re-hearing—there would still be the advantage accessible to the junior barristers of learning their business from seniors at the Assizes?— There would, certainly. From the point of view of the Bar the restoration not merely of the going around of Judges but of the old method of appeal by re-hearing would be advantageous. The old system was a magnificent school for training.

2009. If that were revived they would again have that advantage?—I do not deny that for a moment. I admit that the academic and the practical training of the Bar was certainly ensured under the old system much better than under the new system, but I do not think that the new system is as bad as opponents make out.

2010. The advantage of the old system existed in the re-hearing before the Assize Judge?—Yes, especially there. That was a magnificent field for them.

2011. There is no disadvantage as between the old County Courts and the Circuit Courts?—None. The Circuit Courts give them a better chance.

2012. When we are told here that the Circuit Court leads to the deterioration of the Bar as compared with the old County Court system you would not agree?—I would not agree, and I would be quite positive about that.

2013. The real point is the destruction of the old Assize system?—That is lost as the training ground for the Bar.

2014. Deputy Little.—You have described the appeal as it is in the High Court, and you suggest that a similar appeal would be proper in the Circuit Court?—Yes.

2015. Comparing the stenographer’s notes with the Judge’s notes, do you consider the Judge’s notes would have certain advantages?—Not for the losing side.

2016. The effect on the mind of the Judge of the appearance of witnesses would show itself in the Judge’s notes, whereas it does not show itself in the stenographer’s notes?—Would it be heresy to say: Do you mean that one side or the other might lose the benefit of the evidence of an extremely pretty girl?

2017. Not quite that, but that, too?— These things do count, always unconsciously.

2018. We have had evidence here from various witnesses that the tone of voice, the manner in which an answer is given, the hesitation, and various things like that have impressed the Court in a certain way, and they would attach quite a different meaning to the words than if they merely saw them in cold print?—There is no doubt that is true of a particular word or a particular expression. I do not think it weighs when you come to take the entire body of the evidence or the statement of one witness, and compare it with the statements of numbers 2, 3, 4, 5, or 6. It is possible to see how all these fit in. Very often in the cold light of the Court of Appeal’s analysis of the stenographer’s notes a fraud would appear more clearly than in the mere face to face inspection and examination of the witness.

2019. The statute gives power to appeal on a question of fact?—Yes.

2020. But the practice is not to appeal on fact, and the appeal rather lies on inference from fact as apart from the law only?—Yes.

2021. Where the stenographer’s notes are concerned, possibly an inference of fact would be involved in the giving of evidence by a witness?—I do not think so. Abroad there is no such thing as an appeal by way of re-hearing from courts of the standing of the Circuit Court. In France and Germany, where you have two rather different systems of law, there is no appeal by way of re-hearing. In England, there is no appeal by way of re-hearing from the County Court, and why inflict it on us here? It is a very tempting bait, I admit. If I were Minister to-morrow I would go to the country with a Bill for appeals if I wanted to be sure of having a cry that would carry in some counties.

2022. In view of the present condition of poverty, do you think it would be popular?—I imagine it would be popular in some cases, but I do not like it. There would be any amount of perjury, as there would be a tempting bait for perjury. A lot of our people are not as bad as they are painted, but it is a terrible temptation to hang this before a man. He goes home from the Court of first instance a beaten man and he sees the victor lighting a bonfire, and that eats into him and he thinks that he will have another run for his money by way of a re-hearing. The poor fellow would spend his last pound on it, even though his case is hopeless and his solicitor advises him and begs him not to go on with the appeal. He probably will not appeal when there is an appeal in Dublin in which the whole thing is only on law.

2023. Do you think that the stenographer’s notes alone are not sufficient and that you want some other form of statement? If it is objected that the Judge’s notes are biased because he has given judgment what about an agreed statement by the parties?—I am afraid you would never get it.

Chairman.—You would get a case stated if you got that.

Deputy Little.—You could get an agreed statement on fact and then present the issues on law.

Chairman.—That is practically a case stated.

2024. Deputy Little.—Would you consider that a satisfactory addition to the stenographer’s notes—an agreed statement of facts and then present the issues on law?—An appeal on statement of facts by the parties or an appeal on fact or on law?

2025. Not on fact but on inference from fact and on law?—If they came to an agreed statement on fact they are not fit for the law courts. They are fit for Heaven. I do not think it would be possible in my county to get the parties absolutely to agree on a statement of facts.

2026. Monaghan is one of the very litigious counties?—It is fairly litigious. It is more litigious than is good for it, but at the same time it is a great deal better than it used to be in that respect. I am not against litigation. There is a tremendous increase in equity litigation. As trade and commerce increase, you will always have a good many genuine cases. That would be no reflection on the people. What I object to are those cases, such as pass and bog and water right cases, being the subject of appeal.

2027. On the question of the Junior Bar, it has been represented to us here that the Junior Bar which now goes to the Circuit Court is very raw and not expert in its business?—If that is said, it is an absolute slander. I have watched the Bar for thirty-five years, and I have never seen a more promising Junior Bar than I see at present. That is the opinion of an ex-solicitor. It may not be right, but it is my opinion.

2028. Deputy Rice.—You are speaking, of course, for your own area?—Yes. I was born in Dublin, but I have not lived in it since 1890.

2029. What I mean is you do not apply that remark about the Junior Bar to areas other than your own?—No, I have no means of knowing the conditions in other areas.

2030. You do not know the conditions that prevail in areas less accessible than Monaghan?—No.

2031. You have very competent juniors who go down to your Courts and come back on the same day?—Yes.

2032. And that raises the standard of your Junior Bar?—Yes.

2033. You referred to hearings in the old County Courts as a preliminary canter?—Yes.

2034. I take it you did not intend to suggest that the great bulk of the County Court that was done there was not final?—No, the great bulk of title cases and breaches of warranty were not finally done there, and nobody entered the Court with the idea that that would be the final determination, but it was the final Court that dealt with shop debts and things of that sort.

2035. Would I be right in suggesting that there would be no appeal in 80 per cent. of the County Court cases?—These cases do not belong to the contentious class that get the blood of the litigants up. Even country people will fight a certain class of case without any very bad blood. That would apply to a case, say, where a man was processed for £7 10s., and he thinks he owes £4 18s., and he is fool enough to go to law about it instead of settling the matter.

2036. You are in favour of limiting the people’s rights to litigate about their grievances?—No, but limiting people’s rights to challenging unnecessarily and vexatiously decisions of courts that are authorative.

2037. Litigation, I suppose, is the substitute that civilisation has found for personal combat?—Exactly.

2038. What do you say as regards the position of a litigant who goes into court with a perfectly honest case and who is advised afterwards by his solicitor or counsel that the Judge has gone wrong in his findings on facts? What would you do for him?—If I had an appeal by way of re-hearing I would take advantage of it, or I would take advantage of an appeal on notes, but I would not consider it a hardship if no appeal lay, or no greater appeal lay than lies from the High Court to the Supreme Court at present. I have had actions tried by a Judge alone in first instance in the High Court in which I felt my client had not got fair play. I was advised he did not get fair play, but there was no use going further with it.

2039. There are many cases in which the litigants are advised that the Judge in the first instance had gone wrong on questions of fact. I am speaking of the old County Court and of the Circuit Court of to-day. What are you going to do for a client supposing you are a practising solicitor and the Judge has gone wrong on a question of fact? Will you tell him go home and not to worry himself?—I think that is the only advice to give him.

2040. Is not that a drawback in the system?—I think if the State exercised due care in the appointment of Judges and appointed them without fear, favour or affection the danger of that class of case is very slight. It is these exceptional cases that make bad legislation. I say that to legislate for such an exceptional case might cause more evil than by leaving it uncured.

2041. Then you would leave the people in that position to suffer with their grievances?—I would. In every country in Europe, except here, I think, there is very little cure for a mistake in fact by a Judge unless it is of such an obvious nature that the Supreme Court can deal with it.

2042. The Act of 1924 provides for an appeal on fact?—I am not going to criticise my betters.

2043. The Section providing for it says that the appeal shall be on law or fact. We have had evidence from Commissioners who heard a great many appeals that there is no effective appeal on fact at present, and that it is not practicable to open a case for further evidence?—I can only give my own opinion, and it is not worth much beside the opinion of Commissioners, but I am of the obstinate disposition that I am still of the same opinion. I think that in grievous cases there is the power of re-hearing and that the mischief could be cured in obvious cases. I have no desire for a cure in cases where it is not obvious.

2044. Would the Committee be right in assuming that the solicitors of Ireland as a body fairly and accurately represent the views of their clients as regards the facilities they have for having their cases tried?—I quite admit that there is hardly a solicitor in Ireland who agrees with my views, or ever did agree with them. Yet my greatest personal friends are solicitors, especially those of my own town.

2045. Deputy Rice.—I was going to put it to you that the present system of appeal had been condemned almost unanimously by the general body of solicitors? —Why should I be asked to answer for them? I was converted in time. I have ceased to be a solicitor.

2046. I put it to you that if the solicitors of Ireland thought this was a satisfactory mode f appeal, they would not be up in arms against it as a body?—They are Irishmen, too. When I was a solicitor, it cut my heart more than my client’s to lose a case, and I would be prepared to go anywhere for him. It is because the solicitors are such a decent body that they take so strong a stand.

2047. In every case, there is one solicitor who wins and another who loses, and yet those who win and those who lose are at one in telling us that his form of appeal is bad?—There is no solicitor who wins all the time. When he loses, he suffers mental anguish. They all say, “If you are to have an appeal, have a different form of appeal.” I admit they say that.

2048. They do not say you should not have an appeal?—They do not, but that is the question the legislature has got to consider very carefully—whether or not there should be an appeal.

2049. Not only have you had great experience of the old system, and the amount of costs obtained under the old system, but you have your present experience of the costs under the new system. Is it not a fact that under the present system a solicitor will get more profit out of an appeal than he would under the old system?—Immensely more profit. In my opinion, the costs that are allowed in these appeals are a scandal. I do not see why they should be allowed.

2050. Even at the sacrifice of their personal interests, the solicitors’ profession in this State as a body recommend a change in the system of appeal?—They do. There are numbers of people who do not agree with me.

2051. You referred to what is done in England. You know that in England the County Court has only jurisdiction in cases of £100 and under?—I am aware of that.

Chairman.—It used to be only £50.

2052. Deputy Rice.—You have been comparing what happens in other countries with what happens here?—Yes.

2053. Have you any reason for saying there is any dissatisfaction in England with the limited jurisdiction of the County Court?—Not the slightest. I know nothing about it.

2054. Senator Farren.—In opening your evidence with regard to the Circuit Courts, you said these courts had given satisfaction. When you say they have given satisfaction, do you mean that the people who frequent the Courts—the litigants—have been satisfied with the manner in which their business has been discharged?—I do—the majority of them and all whose opinion would be entitled to consideration on account of their general decency in life.

2055. It is your opinion that the people who use these Courts, and who formerly had to go to the High Court in Dublin for the class of case that is now dealt with in the Circuit Court, are better satisfied to have their cases disposed of at their doors—that they get cheaper law and that they get good law?—They are better satisfied to my own knowledge. I have heard merchants say so.

2056. That is what you mean when you say that the Courts have given satisfaction?—That is so.

2057. Did I understand you to say that in the old days when a merchant brought an action on contract in the High Court, when the jurisdiction of the County Court was £50, he had to have junior counsel when he employed senior counsel? —That is, I think, the rule still. It is really common to a number of trades. If you employ a mason, you must have a man to attend him.

2058. But if you employ a mason, and he is not able to do the job, you do not employ another man and pay him too?— No.

2059. You had to do that in the case of a senior counsel?—In practice, you had, and you may still have to do it, though I am not quite sure. If, in an action in the High Court, you select a senior counsel from the front rank, you will have to have another senior counsel. You might possibly get a counsel who would be able to give all his time to the case, but generally speaking, senior counsel are briefed for two or three Courts. I am merely pointing out what is done. As the Chairman has indicated, you will be able to secure in England very often an eminent man, but you will have to give him a big fee, and for that fee he will refuse all other briefs, and attend to your case all the time.

2060. Chairman.—It is known as an “exclusive attention” fee?—There is no exclusive attention fee in Ireland.

2061. Senator Farren.—The précis of your evidence on this question of appeals has impressed me very much. You stated, in reply to a question by a member of the Committee, that you were in favour of limiting the facilities of people who want to be eternally at law?—I am. I think it is a disease in this country.

2062. For that reason, you think it is not desirable that those people who like to be badgering one another should get facilities for going a second time into court and having a re-hearing?—I think it is not right.

2063. You do not think it is in the interests of the general community?—I do not.

2064. You think the present mode of appeal is better than a re-hearing?—I do. They could not resist the temptation of a re-hearing.

2065. You are in favour of that position because you want to raise the moral tone of the people in the country?—I do. I am very proud of our people and if they get a chance they are all right.

2066. Senator Farren.—With regard to the question of appeal on fact, a member of the Committee examined you on the question of appeal on fact and asked would you give no remedy in a case where a Judge had gone wrong on fact. You said, to prevent a greater evil you would not?—I did.

2067. You have a long experience as solicitor in dealing with these particular cases in court and you have experience as registrar in your own court since it was established. How many times, in your opinion, has the Judge gone wrong on fact?—That might be a very delicate question but luckily I am able to give a candid answer. I never saw any of the Judges go clearly wrong on a question of fact. I never remember an occasion when a man could say, on a question of fact, “Clearly the Judge has gone wrong.”

2068. I, as a layman, understood that for these responsible judicial positions the best lawyers available were selected? —All that I have come across have been thoroughly proper appointments.

2069. It would be very rarely that one of these eminent Judges would go wrong on fact?—Yes. I think he is much more likely to keep an average level of accuracy in his findings than twelve amateurs who are called into a box and who, perhaps, never tried a case in their lives. That is especially so in the rural districts.

2070. Senator Comyn.—The £150 action as a rule goes to actual trial?—I really could not say as to that. I would think that if the defendant had a bad chance and had a good solicitor he would settle.

2071. Unless it is settled, it goes to trial?—Yes.

2072. Do more than one quarter of the actions commenced by writ in the High Court go to actual trial?—I cannot give you figures, but owing to the tremendous costs in the High Courts, many a man with a fairly good case has been afraid to go on.

2073. Would I be right in saying that the figure is about one quarter?—I would not venture to assess the proportion but I would say that a very considerable number of men in poor circumstances with good honest claims have had to abandon their actions in the High Court owing to the expense.

(The witness withdrew.)

Mr. H. O’Brien Moran, County Registrar, Limerick, called and examined.

2074. Chairman.—You are County Registrar for Limerick?—Yes.

2075. Have you two jurisdictions in Limerick? Have you a borough jurisdiction as well as a county jurisdiction?— Limerick includes city and county.

2076. How long have you held the office of Registrar?—Since the 1st September, 1926.

2077. Prior to that, you were practising as a solicitor?—I was State Solicitor before that.

2078. In Limerick?—Yes, since 1st January, 1923.

2079. When were you admitted?—On the 2nd June, 1910.

2080. You have, therefore, experience of the old system as well as of the new?— Yes.

2081. As regards the District Court, have you any suggestion to make to the Committee?—We would like to know if you are satisfied that its jurisdiction should remain as it is in contract and in tort?—I think there is no objection to the extent of the jurisdiction of the District Court. However, I know very little about the District Court, because the only work that comes to us from the District Court is the appeal business. I have heard a complaint that the number of areas for the hearing of Civil Bills in the District Court is too many.

2082. We had that complaint from Mr. Gaffney?—I have heard solicitors in Limerick complain about that. Plaintiffs who reside in Limerick and who give a good deal of credit to people living in the County Clare, have often to travel very long distances—to Ennis and Killaloe. They cannot always get a convenient bus service, and they have to hire a motor car. The solicitor has also to travel out, and the amount of cost is out of proportion to the amount of the claim.

2083. Are there a large number of appeals from the District Court to your Circuit Court?—No, there are very few.

2084. What are your views generally on the jurisdiction of the Circuit Court in contract and tort?—I think that the jurisdiction is right having regard to what I might call the financial position of the people of the country.

2085. Would you briefly state your reasons for that? I take it that one would be the question of expense?—I think that if the jurisdiction were reduced the only alternative would be a transfer of cases from the Circuit Court to the High Court. The costs of the High Court, would, in my opinion, be prohibitive in these transferred cases. There would be not merely the question of expense but the question of convenience to be considered. Cases can be heard far more expeditiously in the Circuit Court than in the High Court. The Judges sitting in the Circuit Court are fully competent, and litigants going there have all the facilities except one, that they would have in the High Court.

2086. What is the exception?—It is this: that the Bar coming down to Limerick do not seem to bring any books with them. There was one barrister who used to come and he always brought a regular library with him, but he has ceased to attend at Limerick. This matter that I refer to should not present any difficulties, because it should be easy to establish a central library without much expense. I do not think that the Bar suffer in any way.

2087. But do the litigants suffer by the absence of counsel who have access to books and have also got an initial training in the Courts in Dublin as well as in the library in Dublin?—No, I do not think they suffer in any way. When I started as Circuit Court Registrar in 1924, you had with each Circuit, comprising about three counties, barristers who formerly confined themselves to one county going from one Circuit town to the other. At Limerick, at one or two sessions, I counted sixteen barristers. I think I am correct in saying that at every sittings now in Limerick we have generally about twelve barristers.

2088. What would their average standing at the Bar be in years?—In the Circuit Court, you have now got the same type of beginner that you had in the days of the old County Court, but I am glad to say that you have also got what one may call junior-senior barristers, some of them men of very high standing.

2089. Do not the younger men who have not been called to the Bar for any great length of time stay down at these Circuit Courts for a very considerable period each year?—In Limerick we have four barristers who reside either in the city or county. They do not come to Dublin at all as a rule. They might come once in a while. The position with regard to the younger barristers is that as a result of the setting up of the Circuit Courts they now get work which they would not have got if the old system had continued. In other words, they are getting an earlier opportunity of developing as barristers than they would have got under the old County Court system.

2090. But they may also have a worse opportunity of becoming learned barristers?—No, I do not think so. To my knowledge the barristers who come down from Dublin only do so for the purpose of attending the Circuit. Some of them confine themselves to one Circuit and more of them to two. In fact, the more prominent counsel just attend two Circuits, and then, I understand, they return to Dublin.

2091. The Committee have had evidence to the effect that the time they spend in Dublin compared to the time they spend on Circuit is very small indeed?—If I may say so with respect, I do not agree with that. In Kerry the Circuit does not last longer than two weeks. In Limerick, which is the biggest section of the Circuit, it lasts, allowing full time, three weeks, and in Clare it generally lasts from a week to ten days.

2092. You have to multiply these figures by how many sittings?—The sittings are only three, except that there is a summer-time sitting for about a week. I have sent in a copy of my Circuit Court list to the Committee which may be of use. In the ordinary course that Circuit list would not be extended as it has been this time. Owing to the amount of business that was done last year, I allowed three weeks, though I think it is too much as a matter of fact.

2093. You say that you have three sittings. Therefore you would have to multiply the five or six weeks by three?— Yes. I would put the period myself at about four months. Two or three days of the circuit are devoted to criminal business. Some counsel only come down for the criminal business, and others for civil business.

2094. I suppose I may take it that some of them go on the adjoining circuits for a month or two?—No. Each circuit is now more or less self-contained.

2095. Senator Comyn.—I take it that barristers going the south-west circuit do not go on any other circuit?—They do not.

2096. But barristers going to Limerick would go to other counties?—They go to Limerick and Clare, or Limerick and Kerry.

2097. Chairman.—These are the main reasons why you think the jurisdiction of the Circuit Court ought not, in these ordinary common-law cases, to be altered?—Yes, and I have given my reasons in extenso in the memorandum I sent in.

2098. Apart from the ordinary common-law jurisdiction, is there any alteration in the other jurisdiction of the Circuit Court which you would suggest? Is the equity jurisdiction satisfactory?—It is. On that, I was surprised to hear the last witness, Mr. Murphy, state that about twelve months is the average time for the disposal of equity cases. I think that these cases are disposed of as expeditiously in Limerick as any place else, and I should say that it is only a rare case that is disposed of in twelve months. First of all, you have the three months allowed to the defendant before the order for sale becomes effective. In addition, the plaintiffs in most of these cases are the Banks, and the Banks will allow a case to drag on in the hope that it may be settled. In that way, it takes more than twelve months before a case is disposed of.

2099. You suggest that there should be lunacy jurisdiction in the Circuit Court?— Yes.

2100. There is not now?—That is really a question I cannot decide. So far as I know, no one has raised the question as to whether lunacy jurisdiction was transferred under the new system. We took it for granted that it was. I think that under the Act it was intended that the jurisdiction in lunacy should be £1,000, but the jurisdiction has not, I think, been covered by the Courts of Justice Act.

2101. Is it doubtful then if there is any jurisdiction?—Yes.

2102. And you are of opinion that there ought to be lunacy jurisdiction in the Circuit Court?—Yes. We, at any rate, have been carrying on all the time as if there were jurisdiction. I imagine that at the time the Act was going through it was thought that lunacy jurisdiction was comprised in the equity jurisdiction.

2103. Have you found the other jurisdictions working satisfactorily—probate and so on?—The probate cases are not very many and with regard to company cases we have not had any. On the question of the jurisdiction of the equity court being £1,000, I think that is a small jurisdiction. I am not asking to have it increased in any way, but I ask the Committee to bear in mind that if you have a farm, say, of about 20 Irish acres of good land, the chances are that if that land is sold it will possibly sell for something between £600 and £700.

2104. But would not that come within the £60 valuation jurisdiction?—I forget whether it says that the amount must be under £1,000 and the valuation under £60.

2105. Sub-section (iv) of Section 48 of the 1924 Act says: “In probate matters and actions, and suits for administration of estates—jurisdiction when the value of the personalty does not exceed £1,000 and the Poor Law Valuation of the land does not exceed £60.” That would mean that if the land were under the £60 valuation there would be jurisdiction?—Yes. The £1,000 jurisdiction is not really as big as it looks.

Senator Comyn.—You might have a £3,000 estate under that jurisdiction?

2106. Chairman.—You might have a case where the total value of the estate was £3,000 if the farm sold for anything like £2,000?—We have had only one case in which the sale price was over £2,000.

2107. On the question of appeal from the Circuit Court, what are your views? —In my memorandum, having first of all examined the question as thoroughly as I could, I could not satisfy myself that there was any justification for reducing the jurisdiction. Assuming this tribunal considers that the jurisdiction of the Circuit Court, as existing at present, should be reduced, but having in view the prohibitive cost that would be incurred, they have some hesitation about recommending a reduction, I have taken it upon myself to deal with both the question of the reduction of jurisdiction and the hearing of appeals under one head. I had the idea that in order to meet all parties in the matter, if the jurisdiction of the Circuit Court in tort and contract were limited to £150, and if there was a new Court established which would probably approximate to the old Assize Court, to be called the High Court Circuit, I would have that a local Court, and in cases of over a £150, and limited to £300, I would have all appeals heard at that High Court Circuit.

2108. That would be a complete re-hearing of the Circuit Court?—It would, but in order to reconcile all parties it would be the best way to do it. I had the idea that in the event of the creation of such a Court the costs should be two-thirds that of the High Court, with only one senior and one junior counsel, and it would also avoid the expenses of witnesses being brought up to Dublin in High Court actions.

2109. Assuming, for the moment, that the jurisdiction of the Circuit Court will remain, how does the common law jurisdiction up to £300, and so on, stand, and what is your opinion about the present system of appeal? Ought it to remain or ought it to be altered in any way?—I recommend that the appeals should be heard locally, and heard either on the stenographer’s notes or the stenographer’s notes plus re-hearing. In a great many appeals, where you have a conscientious counsel and solicitor advising that there is a good case for appeal, it may be that both parties may say, “It is a question of law, and we are satisfied the shorthand notes state the case sufficiently before the Judge; we have nothing to put in in the way of additional evidence, and we agree to have the case heard just upon the notes.” But I also suggest that one of the parties may say, “We think the Judge went wrong, or that he took a hasty view, or we were taken short with regard to our witnesses, and did not get a chance of bringing out such-and-such points; we were non-suited in that case, and we suggest a re-hearing.”

2110. Would you go so far as to say that where there was dissatisfaction at the decision of the Circuit Court on the question of fact as distinguished from inference, if the two parties desired, there should be a re-hearing?—Yes. Under the existing system of appeal, that was achieved. If a case came before the Court of Appeal, and they found that the Judge was wrong in fact, that his conclusion was unreasonable as a conclusion of fact, on one of those points that the evidence did not warrant the decision, they generally reversed the verdict.

2111. Since a decision we know of, this has not been the practice, of course. There is practically no really effective appeal on fact?—I think there should be an appeal on questions of fact and law. A case comes into Court. A witness may be, unfortunately for himself, a person with a bad face; he may be the best man in the world, but the Judge says: “This is a bad lot and I’ll decide against him.” Another Judge may take a different view, and so on.

2112. Once it is agreed there should be an appeal on fact there should be a re-hearing?—Yes, and further with regard to the procedure on appeal I am very strongly of the opinion that the stenographer’s notes of the Circuit Court hearing should be retained as evidence and should become incorporated with the appeal file. I do not altogether agree with the statement that the parties regard the hearing before the County Court Judge as the first round. There may be cases of that kind but in the majority of cases that I know of the solicitor says: “The case should be appealed against, the Judge took a wrong decision,” and the appeal would go through. I do not regard the Circuit Court as a preliminary gallop towards the second round.

2113. Do you mean by that you would lay it down that the whole of the stenographer’s notes should be made part of the file?—I do and it ensures the whole value of the file.

2114. It has been suggested that the use of it in appeal would be to correct, or to do away with the possibility of altering one’s case, but would it not be sufficient to get only portion of the stenographer’s notes?—No, and for this reason, there may be different parts of the case——

2115. But the solicitor would know what parts are material?—Yes, but this Committee may be under a misapprehension as regards that. There is no objection to getting the whole notes. The fact is that the average cost of notes on appeal is ten or fifteen shillings. There you have the entire notes of the hearing before the Circuit Court Judge. In some cases, they went up to £3 and in some instances £5, but the average would be ten shillings for the cost of the notes. On that point and on the question of transferring certain cases to the High Courts, I have known cases in the High Courts where the costs of the shorthand writer’s notes were up to £91.

2116. Would that be solicitors’ costs? —No, the stenographer’s costs.

2117. Chairman.—That was not an ordinary official stenographer. It was a private stenographer?—Yes, but it is the system that is wrong. The stenographer is standing by. The Judge says “you will have a stenographer in this case and he is called in.” I saw the plaintiff in one case and he told me that the stenographer cost £33. I went to the solicitor for the defendant and he told me that the stenographer cost his client £58, so there you have £58 and £33 making £91 in all.

Senator Hooper.—That was not a court stenographer.

2118. Chairman.—He was employed in one of the courts—the Probate Court— but he was a private stenographer when not specially engaged on the work of the Court?—Here is what happened. The practice is common in every case in which there is a prospect of an appeal, where in the ordinary course the Judge’s notes would be accepted. Counsel and solicitors favour stenographers’ notes in preference to the Judge’s. In consequence of that, the Judge may say to the parties: “Will you have a stenographer?” and they say “yes.” Otherwise they would have to leave the taking of the notes to the Judge and the parties might have some doubt whether the Judge would be exactly fair.

2119. It is not a question of fairness? —I quite agree but the Judge would have to take the notes and it would be a question of fulness and accuracy. The result is that the parties agree to pay a stenographer to do the work. Of course, the amount is not always £91.

2120. We are not dealing with that here?—No, but I think it would save the reputation of the High Court, as regards the costs of these proceedings, if the stenographers were appointed by the Department of Justice and paid a definite salary and allowed to charge fourpence per folio. I go on to say in my memorandum that those familiar with appeals from the County Courts to the Assize know that the necessity for retaining the stenographer’s notes will be appreciated. If the notes are not retained, the tendency will be to present an entirely different case.

2121. On that point, you suggest that it would be necessary to have the whole notes?—Yes. The cost of the whole note is so little.

2122. You are in favour of an alteration of the present form and of re-hearing?— Yes.

2123. You think there should be an appeal on fact?—Yes.

2124. Can you give us any idea whether the litigant at present is satisfied with the present form of appeal?—Of course, no one can answer that “yes” or “no,” and for this reason: There are two parties that have to be satisfied with the notes. If the parties think the Judge took a different view from what he should have taken and are convinced, say, that they did not get out some point, or some matter of evidence that they would have liked to have brought out, they will like to have an appeal and a re-hearing, and I think their reasoning is perfectly sound. Of course it must be borne in mind that the procedure in the High Court is very different from that in the Circuit Court; that is why litigation is so costly in the High Court. In the High Court they have counsel and they have a very elaborate statement of claim and defence. Witnesses are brought up from the country and examined by counsel on points from “A to Z.” The present system of appeal is most unsatisfactory. Before I came up here I was looking at my Appeal Book, and I found that it generally takes an average of twelve months before an appeal is heard.

2125. I think that twelve months is rather under the average?—I have taken it up and down. I suggest that the appeals should be heard locally.

2126. By one Judge or by two?—One Judge. I think it is a great hardship on an appellant to have his case heard by two Judges. Frequently, in the High Court the Judges differ and the appeal has to be confirmed except the litigant is given an opportunity of further appealing.

2127. Where there are two Judges of appeal and they differ is not the practice that the appeal is decided because there are really two Judges to one?—In that case, the appellant can go further and bring his case to the Court of Appeal.

2128. In the Circuit Court, appeals before two Judges in Dublin are heard and if one of them differs the original decision stands?

2129. Senator Comyn.—But there is a further right of appeal?—Yes, they have a right of appeal but you put double costs on the parties.

2130. Chairman.—For that reason you think that one Judge would be sufficient? —Yes. I would be in favour of appeals being heard by a Judge going out not later than three months after the case is heard.

2131. How many times a year?—I would say three times a year. It enables the suit to be disposed of expeditiously.

2132. The appeal would take place within four or five months?—Yes. If there is an ejectment appeal, for instance, there is great hardship inflicted on one party or the other if there is a long delay. You asked me a question about counsel on circuit. I do not know whether my suggestion in this respect would be irregular but you can stop me if necessary. In the old days junior counsel spent two or three years longer than at present before they started to get into practice. That, however, is changed owing to the Circuit Courts. I recognise that the High Court is hit at the moment because the old system of appeal at Assizes has gone. Senior counsel used to go to Assizes but the extension of the Circuit Court jurisdiction has taken away that business from the High Court. I have an idea that senior counsel should go on circuit more than they do.

2133. To the Circuit Courts?—Yes. Under the new rules, there is ample provision made for the employment of senior counsel. The fees are fixed and the Circuit Court Judge would allow senior counsel to appear. Under these rules, it is contemplated that where a party gets a decree and where counsel appears in a case over £50 senior counsel is allowed. There is a provision, in any case under £50, by which the Judge can certify for the employment of senior counsel. In my opinion, they should come on circuit more often than they do.

2134. Is that because they would be useful as examples or because junior counsel are not sufficiently experienced? —It is a double-barrel reason. Litigants would have senior counsel if they wanted them and it would give more employment to such counsel. I think also on that point that the number of senior counsel could very well be restricted as too many of them are being admitted.

2135. I am afraid that we cannot deal with that as that is a matter for the Chief Justice?—In that case, I will not deal with it further.

(At this stage Senator Hooper took the Chair.)

Witness.—There are a number of matters referred to in my evidence, and if I might mention them to the Committee, it would enable members to question me on such points as they consider important.

2136. Senator Dowdall.—If you give us the heads we would know whether they are relevant?—The Chairman dealt with the question of lunacy jurisdiction. There is another section of the Act to which I would like to refer—namely, Section 77.

Chairman.—That is a criminal matter, and our terms of reference do not allow us to consider anything on the criminal side.

Senator Dowdall.—I think that the matter on which Senator Brown questioned the witness covered most of the ground with which we can deal.

2137. Chairman.—Yes, unless the witness has something outstanding to present to us?—There is Section 84. That is a matter dealing with appeals, and it is really a civil matter. It deals with an appeal from the District Justice to the Circuit Court. Under that section, as you are aware, an appeal may be brought to any Circuit Court, provided that the area or part of the district covered by the District Justice is within that area. The result is, that if a case is heard, say, in Newport, County Tipperary, an appeal can be brought from his decision to Waterford, Ennis, Limerick or Tralee. From that point of view the section would require to be amended. I think it is agreed generally amongst the profession that it should be amended in that way. There is one matter with which I think you cannot deal, but I think it ought to be considered by the Committee in private.

2138. We are confined to the civil side altogether?—Very well. With regard to the extent of the reduction of the jurisdiction, I agree with Mr. Murphy. He gave an estimate that the cost of a case in the High Court is £250. I think it is higher.

2139. Senator Dowdall.—He gave that as a reasonable minimum?—Yes. I think the figure is nearer £400. I have had actual experience of that. The costs in the Circuit Court of a similar case of £300 would only be £45 odd, the losing party paying the cost of both parties.

2140. Chairman.—That would include witnesses’ expenses?—I mentioned in my evidence that the total for witnesses’ expenses for both parties would rarely exceed £10. With regard to the question of expedition in the High Court as compared with the Circuit Court, my experience is that it takes at least twelve months before a case is disposed of from the moment the proceedings are started. In the Circuit Court it may be disposed of within six weeks. It never takes more than two months.

2141. We have had a good deal of evidence on that?—Very well. Then there is the question about juries. In Limerick we have had no jury case since 1st September, 1926, but we have one coming on at the next sittings. It is the first in three years.

2142. We understand that they are very few?—Yes. I would also suggest to the Committee to bear in mind that when the County Court jurisdiction of £50 was established 53 years ago, income tax was only 3d. in the £, and the value of money was far greater than it is now. In addition to that, most of the farmers who constitute the bulk of litigants, are in a very bad way. No farmer can stand the racket of an action in the High Court. If the jurisdiction is reduced, what will happen is that a series of Arbitration Courts, such as existed in 1921, will be established all over the country, and the result will be that the ultimate position of both solicitors and barristers will be worse than it is at present. Solicitors’ costs and counsels’ fees were increased—the solicitors’ fees by 50 per cent.—at a time when the cost of living was as high as it possibly could be. That position stands to-day, whereas the wealth of the farmers who used to get immense profits through selling cattle, is all gone. Half their folios in the country are inundated by judgments by Banks, and recently we have been having a lot of the Agricultural Credit Corporation loans being registered. The farmers are not fit to stand any more costs. In addition, the plaintiff if he gets a verdict in the Circuit Court has a reasonable chance of recovering it with regard to costs. If you bring the case to Dublin the plaintiff will come out a victor but a poorer man.

2143. Senator Comyn.—In the case of a £200 case at present tried in the Circuit Court where there is an appeal to the High Court are not the present costs as great as if the action had been originally tried in the High Court?—No, the costs in the Circuit Court are £45. I have no actual dealing with the costs of the appeal in the High Court but it only shows you that once a case leaves the Circuit Court and gets into the High Court it is very expensive.

2144. Will you be surprised to know that the costs of some of these appeals run to £70 a side?—I should not say what I am not certain about, but I think it is due to the people responsible for the costs in the High Court, whoever is responsible for them.

2145. Chairman.—We had a case of £91 yesterday?—That is all done in Dublin by the people who can work behind the scenes. That is not done by solicitors.

2146. Senator Comyn.—You think that is done indirectly?—I do.

2147. And corruptly?—Certainly not corruptly.

2148. Chairman.—When you speak of “behind the scenes” it is hardly consistent with being above board?—It is done perfectly above board, but there is no justification for the costs of an appeal being anything like that in Dublin.

2149. Senator Comyn.—The District Court has jurisdiction in civil matters up to £25?—Yes.

2150. Would you exclude all these cases from the Circuit Court?—I would.

2151. You would allow no alternative jurisdiction in that case?—No, I think there should be no alternative jurisdiction at all.

2152. I am talking of cases under £25 in contract?—No. District Justices seem to have a wonderful hold and influence in the districts in which they practise and they are looked upon as excellent Judges.

2153. In a case where the amount claimed is less than £25 the District Court has jurisdiction?—It has.

2154. Would you give jurisdiction of the same class to the Circuit Court?— Certainly not, because we have very few appeals from the District Justices.

2155. That might be so in your own county but it might be different in another. Would you allow oral appeal from the decision of the District Justice to the Circuit Court Judge? There is an appeal. Would you allow it?—I certainly would.

2156. That would be an oral appeal?— They enjoy it at present, and the cost is very small.

2157. At present, what are your Circuit towns?—Two in Limerick and Kilrush and Ennis, in Clare.

2158. One or two in Kerry?—They have got Killarney, Tralee and Listowel.

2159. Do you think it desirable that the Circuit Court Judge should go to other towns in these areas?—Certainly not. It was suggested when they were fixing the Courts that the Judge should go back to Newcastle West. The reason was that there was a courthouse here which was burned down and rebuilt. There are Town Commissioners in Newcastle West, and they thought it would raise the importance of Newcastle West if the Circuit Judge came. I found from my list that, for a Circuit, there might be two cases or one case for Newcastle West. There is a perfect ’bus system running from Newcastle West to Rathkeale, which is only nine miles distant. All the law business is done practically by Limerick solicitors, and there would be the utmost inconvenience to counsel, because they would have to spend their whole day for a twopenny-halfpenny case.

2160. Kilfinnan is about thirty-five miles from Limerick?—Twenty-six miles.

2161. Do you think it is fair to bring a man twenty-six miles to a Circuit Court?—Yes, the ’buses run at about 2/- from Kilfinnan to Limerick.

2162. Is it fair to bring a man from Cahirciveen into Killarney for a civil bill?—I do not know the Kerry district or anything about their work. It is outside my area. Rathkeale, where the Court is held, serves all the West of Limerick, and is convenient.

Deputy Little.—I think the question of the district is not a matter for the Courts of Justice Act at all. It does not concern us. These things can be changed by rule.

2163. Senator Comyn.—My point is: If the Circuit Court Judges have to go to a greater number of towns, that will necessarily mean more time occupied by these men, and will increase their business?—It would not increase it by a single case.

2164. Would it not increase the time occupied by them?—That is only a waste of time.

2165. The Judge’s time is saved by going down to that place?—It does not save the time of litigants.

Chairman.—I think we should confine ourselves to principles instead of going into individual cases.

2166. Senator Comyn.—You say that in the Circuit Court you have all facilities for the High Court actions?—Yes, so far as is necessary for the Circuit Court.

2167. You have not pleadings?—No, but you have got this: That it is open to a party to serve a notice on the other side. “Please furnish particulars of the alleged assault.” And the other party is bound to furnish them. If he does not, the case comes before the Judge and he may either adjourn the case or make the other party pay the costs.

2168. You have not machinery for interlocutory applications?—Yes, under the new rules.

2169. Do not mind the rules?—Under the new rules the same facilities that you have got in the City of Dublin are available in Limerick and Kerry.

2170. Have you facilities for getting discovery of documents?—Yes.

2171. You have facilities for getting discovery on oath of documents?—Yes, and in a recent libel action an Order was made to that effect.

2172. You think these facilities should exist?—Absolutely, and they should be given to the County Registrar.

2173. Do you think that the County Registrar would be able to discharge all these duties?—Perfectly. We are able to do a lot more work if we get it, so long as we have not to go out on the seizures. We get half the pay of our predecessors. We are very well paid and do about three times as much work. At present, I carry out the duties of Registration Officer, of Local Registrar of Titles, and I carry out all the duties previously discharged by my predecessor who had £1,800. I have £1,000. In addition, there was a regular Probate Registrar in Limerick. He was paid £700 a year. I am paid the sum of £50 for discharging the duties. I have £1,050 where my predecessors had £2,500. In addition to that, we have got to do the duties of sheriff except that a clerk is appointed at £4 a week.

2174. You have taken on a new lunacy jurisdiction?—No, we always had that. The Lunacy Act of 1870 extended to previous jurisdiction and made it up to £700 a year.

2175. Chairman.—I think we have dealt with lunacy before?—It was never taken away but it was not increased under the Courts of Justice Act.

2176. Senator Comyn.—You say you have jury trials since the 1st September, 1926?—Yes.

2177. Has the Judge any discretion as to refusal?—No. A party is absolutely entitled in an action for contract. The party has no right to a jury in an action for tort.

2178. They have not exercised that right in the last three years?—No.

2179. I believe under the former Judge they used sometimes to exercise that right?—The previous Judge was Judge Pigott.

2180. I refer to Judge Adams?—Judge Adams departed the year I arrived. I do not think the question of Judges made any difference whatever. If a jury brings in a perverse judgment, the court sets it aside on appeal.

2181. You think one Judge could rehear an oral appeal?—I do; I do not think there should be two Judges.

2182. Would it be desirable that two Judges should go around and consult in difficult cases?—No, it would be too much of a luxury.

2183. Suppose they were both hearing the appeals?—They both would have to be bringing their registrars and criers and there might be three appeals to hear during one sitting. There might be five. There would be no work but if the jurisdiction was reduced to the extent of £150 and the cases over £150 were tried on that circuit then there would be sufficient work.

2184. Chairman.—Would you agree to two then?—Yes, but not sitting together.

2185. Senator Comyn.—But sitting in the same town?—Certainly, they could arrange that according to the amount of work that would appear on the agenda.

2186. Senator Dowdall.—You have no jurisdiction in bankruptcy?—None whatever.

2187. Have you any powers with regard to winding-up companies?—We have under this new Act, but there are no Rules under the Courts of Justice Act.

2188. Let us take the winding-up of a co-operative society or a company such as that in Limerick. Do you think that that could be better done locally when through any machinery set up in Dublin?—I would leave that class of case in Dublin, because there would not be enough of them in the country.

2189. You have chartered accountants in Limerick?—We have quite a number.

2190. Do you not think that if one of these men were appointed liquidator with his local knowledge he would be able to get in debts due to the society with more advantage than anybody in Dublin?—Yes. He would have a great advantage because he would know everybody locally.

2191. Deputy Little.—You mentioned a suggestion of another court which you called the High Court Circuit?—Yes.

2192. Have you considered it from the point of view of public expense?—I have.

2193. Would it not add considerably to the expense of the Judiciary?—If I might make myself perfectly clear, I am not suggesting that yet, but if this Committee decided that the jurisdiction should be reduced, I am just putting that up to them as the only feasible alternative.

2194. In any case, it is going to cost the people in their present condition of poverty a considerable amount of money? —It automatically follows that because I am against the reduction of the jurisdiction, I do not advocate the creation of that Court.

2195. Chairman.—You advocate an appeal by re-hearing with stenographers’ notes?—I say, let all parties have the right of re-hearing if they like, or let this be done. Let—

2196. I think I understood that point, but you would like stenographers’ notes in addition to the re-hearing?—Yes, sir: you must have notes.

2197. That would add to the cost of the rehearing?—No, sir. Ten shillings would be about the actual cost of the notes.

2198. We had evidence yesterday that in one case on one side alone the stenographer’s notes cost £17?—I think that must have been one case out of a million.

2199. It was exceptional, but we have had a series of cases put before us where the cost of the notes ran up to £8 and £10?—As a matter of fact, I always read the Rule in this way, that under the Rule as regards the procedure for county registrars, when a party wishes to appeal the County Registrar requires the party to lodge a sum not exceeding £5. Although I may be wrong in my interpretation, I never had occasion to ask for more than £5, and in 99 cases out of 100, the notes never cost more than £1. On the average, they would cost only a few shillings. I had notes one time which cost only 1s. 10d.

2200. At any rate the cost of the notes would be added to the cost of the re-hearing?—Yes, but they would not cost very much, a few shillings.

2201. You said that your Judge exercised the right or at any rate insisted upon pleadings being put in?—I did not say that, sir. There is this to be said, that the Judge almost compels solicitors, in a friendly way, to have pleadings. I do think, with regard to the costs of the Circuit Court, that there is a tendency at the moment for Judges, not in Limerick, but elsewhere, to exclude solicitors from the right of audience in the courts. I heard the previous witness say that counsel do not appear except very rarely in Monaghan, but the practice has grown up, and I do not think it should be continued. A solicitor should have the right of audience in any case in the Circuit Court. He has the right of audience by statute, but there is a tendency to restrict that.

2202. Senator Comyn.—Was not the tendency on the Munster Circuit always to employ a junior barrister?—Yes.

2203. That was my experience?—It was always the custom at the Assizes, but not in the County Court. There was always a number of junior counsel who came round to the County Court, but there was never any question of saying to a solicitor, “You cannot conduct a case unless you have counsel.”

2204. Senator Dowdall.—Whatever the statutory rights were, I can say, speaking now with a recollection of over thirty years, that there was a growing tendency to employ junior counsel?—Yes, it was frequently done.

(The witness withdrew.)

The Committee adjourned at 6.10 p.m. until Tuesday, 28th January, 1930, at 11 a.m.

* Appendix 6.

* Courts of Justice Act, 1929 (No. 37 of 1929).

† Appendix 6.

* Appendix 6.

* Appendix 6a.

† Appendix 6.

* Appendix 6.

† Appendix 6b.

* Courts of Justice Act, 1928 (No. 15 of 1928).

* Appendix 6.

† Appendix 5.

* Appendix 6a.

† Appendix 6b.

* Appendix 1.

* Appendix 6.

* Appendix 6.