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MIONTUAIRISC NA FINNEACHTA(Minutes of Evidence)Déardaoin, 27adh Márta, 1930.Thursday, 27th March, 1930.The Committee sat at 11 a.m.
DEPUTY MORRISSEY in the Chair. Mr. Gerald Horan, K.C., Master of the High Court. called and examined.5526. Chairman.—You are Master of the High Court?—Yes. 5527. You have occupied that position since the coming into operation of the 1924 Act?—Yes. 5528. In what year did you take silk?— I was called to the Bar in 1901 and I took silk in 1914. I was Secretary to various Lord Chancellors from 1914 to 1921 and I was Secretary to the Rule-Making Committee during those years. 5529. You refer to the High Court Rule-Making Committee?—Yes. 5530. Would you briefly indicate to the Committee your actual and intended functions, as Master, under the Act of 1924?—The Judiciary Report of 1924 recommended that the Master be given certain judicial powers, some of which were carried out by the Rules made under the Courts of Justice Act of 1924. I do not think that, at the time the Judiciary Committee made that report or at the time the Rules were made by the Rule-Making Committee, there was present to the minds of the members the effect of the Constitution on those recommendations and Rules, because the Constitution says that Judges, and Judges alone, of the High Court shall exercise judicial power. The report of the Judiciary Committee in 1924, followed by the Rules of Court made under the Act of 1924, gave me judicial powers. At present, for instance, there is a rule that I could make an order to attach a person for non-payment of income tax. In my opinion, if I made such an order, I would be liable to an action for damages. I think some of those rules are entirely ultra vires. 5531. The question of your judicial functions has not yet been settled?—No and never shall be, unless there is an Act of Parliament. 5532. The net result of that is that litigants are put to extra expense where it was intended there should be economy?— That is so. Perhaps you would look at Form 3 of the summonses in the Rules of Court. It requires the defendant or the respondent, when he is served with the summons, to attend before the Master and it says: “If you do not attend, such an order will be made as the Master may think just and expedient.” He has no power to make any order. 5533. You say that by amending Section 17 of the Act of 1924 the difficulty in regard to the Constitution could be got over. Will you please explain what you mean by that?—I think, speaking impersonally now, that unless the Master is made a Judge—a District Justice is a Judge—you should leave him to do administrative work only. 5534. What amendment of Section 17 do you think is necessary to get over the difficulty of the constitutional position?—The idea of setting up a Master in the High Court was this: there are in England Chancery Masters and Common Law Masters, probably five or seven on each side. They do judicial work—the easy portion of the work—before the action comes to trial. They do not try criminal cases and they do not try actions but they get everything ready and decide all the preliminary points of procedure before the action comes into Court. That was the intention here, to make the power of the Master similar to the power of the Master in England. The Master in England has power to do the work that is done by a Judge at Chambers. That term “Judge at Chambers” is somewhat technical. It refers to a Judge sitting by himself and not in Court, although physically he may be in Court. In England, the Master has the power of a Judge at Chambers except such powers as are taken from him by Rules and Regulations made by Judges of the High Court. The only way, in my opinion, to make the system work here is to give power to the Master to conduct the business formerly done by a Judge at Chambers, always subject to the President of the High Court, who is head of the High Court, adding to or taking away from those duties. The thing is a farce at present. It is expensive to litigants and an Act of the Oireachtas had to be passed to cover about 2,000 or 3,000 orders wrongly made by me. At the time that Rule was passed by the Rule-making Authority, we, the officials, pointed out to them where they were going. They assured us verbally that things were all right but they were all wrong. The officials are not to blame in this matter. 5535. You are satisfied that if Section 17 of the Act of 1924 were amended the present difficulty would be got over?— Yes. Some people say that the Master’s jurisdiction is sub judice. But everything is sub judice. We are all sub judice. There is a case in which the Assistant Land Commissioners, who are not Judges, made a certain order. At some future date, that case will come before the Supreme Court. That Court will decide whether or not the order made by these Assistant Commissioners was an exercise of judicial power. But it will not affect the Master’s jurisdiction. There are about 200 orders that I could possibly make. No Court will decide, in principle, what judicial power is. They will take each case as it comes and decide whether or not, in the particular case, I had power to make the order. It would be a perfect farce to have 200 cases dragged up before the Supreme Court. I have sufficient to do without this jurisdiction being given to me but if the system is not to be a farce some Act of Parliament will have to be passed to effect a change. 5536. You are of opinion that Section 48 of the Act of 1924 needs to be more explicit?—That deals with the Circuit Court jurisdiction. For some time, we had a decision of the High Court on which we worked. That decision has been recently upset by a decision of the Supreme Court, and what I have said about Section 48 must be altered accordingly. The Supreme Court decided in 1929, in the case of the Sligo Corporation v. Gilbride,* that, under Section 48, general jurisdiction devolves on the Circuit Court, to be exercised in civil cases, subject only to the limits imposed by that section and to the express exclusions contained in Section 56. Section 56 provides that the Circuit Court is to have no jurisdiction in mandamus, habeas corpus and matters of that kind. The Supreme Court decided that under Section 48 the only limitations upon the jurisdiction of the Circuit Court were those expressed or implied in the provisions of the Courts of Justice Act and that, subject to those limitations, the Circuit Court within its locality has all the jurisdiction of the High Court. That decision has clarified Section 48. I suggest that that decision is so important that it would be well substantively to enact it and say that the Circuit Court shall have and exercise in civil cases, within the limits of the amount of the subject matter —that is, £1,000 or £60 valuation— 5537. Senator Wilson.—Or £300??—Yes. in tort and contract. It could be provided that within the limits of the amount of the subject matter and locality prescribed by Sections 48 and 57 respectively, the Circuit Court shall exercise in civil cases all the jurisdiction of the High Court. I mention Section 57 because that is the Section which says they are to have ancillary powers—the power of granting injunctions, of garnishee and of appointing a receiver. There is no necessity for that section now. You can strike out Section 57 and substantively enact the decision of the Supreme Court. 5538. Chairman.—You are of opinion that it is necessary to define “jurisdiction by consent”?—I waive all those points about Section 48 which appear in my minute because the decision of the Supreme Court has changed matters considerably. I only suggest that there should be such an enactment as I have mentioned. 5539. Deputy Wolfe.—Is the case of Sligo Corporation v. Gilbride reported?— It is reported in 1929 Irish Reports.* That decision upset Judge Johnston’s decision on which we had been working for a couple of years. 5540. Chairman.—Would you like to make any point on the question of “jurisdiction by consent” and the definition of the words “before the hearing”? Would those terms require to be more accurately defined?—It is a small point but there is something in it. Take an administration action. Jurisdiction is given if all the parties concerned “before the hearing” consent. It is sometimes impossible to get all the parties who are interested in an administration action to consent before the hearing. I would rather have substituted the words which were in the old County Court Act of 1877 —“during the progress of the suit.” 5541. Are you of opinion that the phrase “in equity cases” requires to be more accurately defined?—It is a new phrase but that has been dealt with in the decision of the Sligo Corporation v. Gilbride. 5542. You suggest that judgments of the Circuit Court should be registered in the Central Office, Dublin?—I do. At the present time, a Circuit Court judgment is in a better position than a High Court judgment. Under the Bankruptcy Act of 1857, if you get a judgment in the High Court you must register it within twenty-one days. If you fail to do that and if the debtor becomes bankrupt, the assignees in bankruptcy can obtain the money due under the judgment. That is under the Act of 1857, which says “a judgment of a superior Court.” But if a man gets a judgment for £50 in the Circuit Court the Bankruptcy Act Section as to registration does not apply at all, and I would suggest an amendment of that Section 336 of the Bankruptcy Act bringing in a Circuit Court judgment. What is happening today? Some Circuit Court judgments are being registered here in Dublin in our Court—there is power under the Enforcement of Court Orders Act of 1926—but that is not being done to show commercial men—— 5543. Senator Dowdall.—The red light? —The red light—that is being done to blister the farm in the country. They get their judgment mortgage and they register it on the defendant’s folio. I think that that is wrong, especially for the amount. Under an old Act one could register it, if one got a judgment debt for £20, as a mortgage and you could either sell out the man’s lands or register it on his folio. I think that £20 is too small a sum to be registered against a man’s lands. You should give him credit apart from his lands. What happens sometimes is that a man gets a Circuit Court judgment for £30. He registers that in the High Court as a High Court judgment. He files an affidavit making it a judgment mortgage. He starts an equity or a Chancery suit to raise the amount of the judgment mortgage and to sell the lands, and the costs are three times the amount of the debt. I think that at least that figure of £20 should be doubled, or should be made £50. 5544. Senator Wilson.—Or £100?—I certainly recommend that it should be put to £50. 5545. Chairman.—Would that necessitate an amendment of Section 59?—Yes, and an amendment of the Bankruptcy Act, which refers only to a judgment of a superior Court. I am quite in favour of having all judgments, even those of the District Court, brought up and registered in the High Court—judgments of the District Court, judgments of the Circuit Court and our own judgments. 5546. That they should be automatically registered?—Yes, so that we would have an index, enabling any man—a creditor or a business man—coming along to make a search and see where he was about to give credit. 5547. You say that you would apply by Order in Council the Administration of Justice Act, 1920, Part II. This is the Act that deals with the enforcement in the United Kingdom of judgments obtained in the superior Courts of the other Dominions? 5547a. Would you explain that?—If we got here a judgment against a man who lived in England, formerly we could enforce that judgment under, I think, the Extension of Judgments Act of 1868. That procedure is not in force now as that Act does not apply. The plaintiff now would be compelled to institute new proceedings in England against that man on foot of the judgment—a new action entirely. 5548. A second action?—A second action. But by the Administration of Justice Act, 1920—an English Act—they say that between the Dominions and England, by an Order in Council “if you adopt it in your country we will adopt it here.” Perhaps it is not a matter for this Committee, but I only suggest that it would be well if some arrangement could be come to by which the judgments of our Courts would be made productive much more easily and quickly than at present, as was done before 1924. 5549. If what you suggest were done, the judgments of a superior Court here would be extended to England without a second action?—Yes. Of course, there has been a decision in England saying that we cannot do it at present. Judge Meredith has decided that we can, and we take their judgments and we extend them without an action but they do not extend our judgments unless we bring a separate action. 5550. Senator Dowdall.—Yes, and I think the Lord Chief Justice in England will have a lot to say before he will assent to our judgments being operative over there?—Yes. 5551. Chairman.—You say that you would also apply the Colonial Probates Act, 1892, between the Free State and England, Scotland and Northern Ireland? —If a person dies at present and has property here, in England and in Scotland there is a different grant in each place, a different solicitor in each place, different duties in each place, and different law in each place. 5552. Deputy Wolfe.—Do you forget. Northern Ireland?—And Northern Ireland also. We have in the Courts small cases, as where a man dies with £100 and leaves a widow. The widow comes down herself, and we do not need a solicitor. There may be £10 War Loan in London, and she has to take out a grant in London to get out that. Formerly the one grant taken out in one country was re-sealed without a new grant and without the additional expense. I think that is a difficult matter because the question of revenue duty comes into it, and perhaps it is not a matter that I should have put down in my memorandum. 5553. I think it is quite useful to have your views on that. Coming to the Rules, Section 36 of the 1924 Act provides for the making or altering of the Rules of Court and the fixing of fees?—Yes. 5554. The High Court Rules made under that Act go back to 1926?—Yes. 5555. And you are of opinion that they should be revised?—I think that they badly need revision and in fact codification. We have the old 1905 Rules—a big body of Rules—and we have our own little Rules which we made under the 1924 Act, and we have to try to work these little Rules into the bigger Rules. Some of them are entirely inconsistent. One never knows whether it was intended to make complete provision in the new Rules for what was formerly done under the old Rules. Of course it is an expensive business to codify Rules; it would require two very capable barristers and it would mean eight months’ work. 5556. But you are of opinion that the revision and codification should be done by a competent legal draftsman?—I think so. I think the Minister for Justice must feel it when, on being asked for copies of our Free State Rules, he has to produce a scrappy little document and to say that the others are to be found in the old 1905 Rules. I think it is a pity that there has not been some proper codification. 5557. You are also of opinion that the operation of a Section like Section 70 of the Judicature Act of 1877 would provide for the Rules being kept up-to-date?— Section 70 of the Judicature Act, I think, is still in force. The Judges met every year in December for the express purpose of suggesting to the Government what amendments or alterations it would, in their judgment, be expedient to make, and the Judges always met and made any necessary suggestions to the Government as to amendments or alterations. In addition to that, it was my business to summon the Judges to meet once or twice every term for the purpose of revising the Rules. The present Judges have not met once in the past two years. There seems to be no link, no secretary, to the Rule-making Authority. Whether the Minister for Justice should do it or whether the Chief Justice or the President of the High Court I do not know, but it seems to be nobody’s business, it is not being done, and solicitors and litigants are suffering. 5558. Have you any views on the constitution of Rule-making Authorities?—I think that that Section 36, which is really framed on Section 61 of the Judicature Act of 1867, is a very good Section if you appoint a secretary. It was my business as secretary of the Rule-making Committee for ten years to follow current legislation, to summon the Judges and put before them suggestions for new Rules. I recommend that somebody, who should be an officer of the High Court, should be appointed secretary of the Rule-making Committee, and I say that the Rule-making Committee should be presided over by the Chief Justice or by the President of the High Court. Let it be somebody’s business to summon the Rule-making Committee. 5559. Have you any further suggestions as to the High Court or the Supreme Court which you would like to put to the Committee?—I think Section 25, which is the transfer section of the Courts of Justice Acts, requires amendment. The Supreme Court decided that the effect of that section is, that if an action could have been commenced in the Circuit Court, and if nothing is shown to make it more proper to keep it in the High Court, then it should go down to the Circuit Court. 5560. Is that in Hosie v. Lawless*?— Judge Meredith held the other way, but the Supreme Court decided that was the whole intention of the Act, that once an action comes within the locality and the subject matter of the Circuit Courts, it drops off the High Court trail. I think if that is the effect of Section 25 it would be well to alter the section. Section 25 says that you cannot transfer an action to the Circuit Court except on the application of either party. Take the case of a man who brings an action for £30, and the solicitor for the defendant does nothing; there is no application by either party, so the action must go on in the High Court. One often meets a small case such as that of a mortgagee selling out another man. The mortgage is for £100 but there is property worth £300. The action is brought in the High Court to realise the mortgage and the house or land is sold. The plaintiff does not apply to the Circuit Court and the defendant may not be in a position to do so, or may let things go to the dogs. Consequently, there is no application and the Judge has no power under Section 25. I would suggest that if an action is pending in the High Court, which could have been commended in the Circuit Court, any party to any such action may apply to have it remitted, and the Judge may, on such application, or without any such application, remit, if he shall see fit, or in case he considers the action sufficiently serious or substantial to be prosecuted in the High Court, retain it there. I suggest that words like these should be included in Section 25 instead of the words at present there: “In case the Judge considers that an action is sufficiently serious and substantial to be prosecuted in the High Court, he may retain such action therein, or if he considers the action more fit to be prosecuted in the Circuit Court or the District Court he may send it to the Circuit Court or the District Court,” upon such terms, of course, as to costs as may appear just. 5561. Senator Dowdall.—Does not the second paragraph of the Section practically provide for that?—It does, partly. My alteration is concerned with the circumstances under which the Judge, without any such application, has power. The test would be, not as in Section 25 at present; he would retain such action in case he considered it sufficiently serious or substantial to be prosecuted in the High Court. That is different from Hosie v. Lawless.* There would also be a proviso which is not in Section 25, that if the action is sent to the Circuit Court the Circuit Judge shall have power, in the event of justice so requiring, to give more damages than are within his ordinary jurisdiction. Take an accident case which comes before the High Court on a transfer motion. The man may not have been badly injured in the doctor’s opinion. The Judge says: “This man will not get more than £300, so I will send the case to the Circuit Court.” After the case goes to the Circuit Court, the man is found to be paralysed, but, as the law stands, the Circuit Judge cannot give more than £300 damages. There should be a proviso to deal with that. I think the winding-up of companies, dealt with under Section 48, should be excluded from the jurisdiction of the Circuit Courts. We have trained officials in the High Court—lawyers with 30 years’ experience—men who know that it is their duty to be the servants of the public. They know their work. The Rules of the Companies Act make a big volume and these men know the Act from cover to cover. I think it would not be satisfactory that that class of work should be done in County Registrars’ offices. Of course, a local accountant or a local auditor can be appointed but let the Rules under which these companies are being wound up be administered by an official in the High Court. These are difficult and technical matters. The auditing and accounting work can be done in the country towns but let the other work be done in the High Court. 5562. Chairman.—We have had evidence that the Chancery procedure is unduly slow and that the costs are very high. Do you agree with that?—Chancery procedure was badly in arrears up to last month. We are now fully abreast with all our Chancery work. It was 18 months in arrear. We have as good a set of officials doing Chancery work as could be got. They do not depend on the Bar; they do not depend upon the Judges; they depend on themselves. I think laymen do not understand the position when a Judge says in an equity case. “Be it so,” or “Take your order.” The Judge may see nothing of that case for three years until it comes back to him finished, and in applepie order. Accounts have been taken and inquiries made by these trained officials in the office without any reference to the Judge until it comes back to him. Often the delay is not with the officials but with the solicitors. I think country solicitors are greatly to blame. That is my experience. 5563. Do you agree with the evidence we had regarding the very high cost of Chancery and mortgagee suits?—The cost is high. 5564. Could you make any suggestion which would lead to a reduction in the cost?—Expedition leads to reduction. 5565. Senator Farren.—What remedy is there if the official you talk of is not willing to expedite matters? Must the parties not go to court?—The officials will always expedite matters. They are always there, always able, and always experienced. In the past, there may have been some delay on the part of some officials but in 99 cases out of 100 it is not the fault of the officials. 5566. Chairman.—What are your views as to the feasibility of a system of motion for final judgment in cases of liquidated money demands exceeding £25 or £50, to be heard before the Master, with power to grant judgment, with a fixed sum or scale of costs, unless the defendant satisfied him that he had a real defence or a valid counterclaim?—That is dealing with a liquidated claim which is usually brought on by what we call summary summons. Take the case of a summary summons for £40 for goods sold and delivered. What happens when the defendant does not appear within eight days? The plaintiff is entitled to get judgment for the amount but his solicitor has to come before me to get it. Solicitors object strongly to have to appear before me in every undefended case. The present rule under which they have to do that is nonsensical. Formerly, judgment in default of appearance could be marked in the office. That is done in England, in South Africa, Australia, Canada, Germany, France, in fact, all over the world. Only amongst some primitive tribe in India would such a rule exist where they are so savage that they do not know how to read and write. Solicitors ask: “Why have we to come before you in these cases?” I say to them: “It is not my fault.” If I am not there, no judgment can be marked. The thing is a farce. That is as regards undefended cases without appearance. Taking the case where the defendant enters an appearance, the Rules say that the notice must be served by the plaintiff setting down the case before me. That is the notice of setting down. Plaintiff and defendant appear then before me. If I do anything on that hearing, it is an exercise of judicial powers, and I have to play with the parties, and I often play with them successfully. An order is made, but I am skating on thin ice the whole time. In England these matters come before the Master up to any amount and he decides whether there is a fighting case. If there is he sends the case down for trial. If it is a bogus case, he gives judgment. 5567. Deputy Little.—The delay in the Chancery Court was largely due to the change over from one system to the other, necessitating the training of certain young officials into the work?—That was partly the reason of the delay. When the Court Officers Act of 1926 came into operation some of the Court officials left or were asked to retire. They were some of the good old officials. It takes a long time to train a man and make him a good man in the class of work that is done in the Examiner’s office. 5568. You think the system is now working well and does not require a radical change?—My staff is as good a staff as you could get in any place. 5569. Would they be assisted by legislation?—No. Only give us the same class of men as we have at present. Some officials think that a man without any legal training or qualification can do this class of work. He could not do it. You would want to get a good educated man to do this work, a man who would put his heart and soul into it. A great many of the officials bring home work to do at night, and they do that because they love the work. 5570. Senator Hooper.—When you refer to an “educated man” you mean legally educated?—Yes. 5571. Deputy Little.—With regard to getting a separate grant of administration in each of the three countries, you said duty had to be paid in each country, but there is no double duty?—The difficulty of dealing with the matter is how much is each country to get of the duty which is split up. 5572. Does it not work simply in actual practice?—With four grants—in Northern Ireland, Scotland, England and the Free State—it is very expensive. 5573. You have to have some form of re-sealing. Re-sealing before was simple, because you had one revenue jurisdiction but now you have at least two revenue jurisdictions. Scotland is the same as England, I think, and Northern Ireland. There may be three jurisdictions, but certainly there are two and that is where the complication arises. No change could get rid of that?—No. 5574. You would always have a little difficulty about that?—I think it is a great pity that in these personal application cases, small cases where people come to us, if there is a bit of property in the North or in England, they have to take out a separate grant. 5575. Senator Dowdall.—You were Secretary of the Rule-making Committee for the High Court?—Yes, from 1914 to 1924. 5576. But you had nothing to do with the Rules of the County Court?—I came in touch with the Rules of the County Court inasmuch as they came under the Lord Chancellor. 5577. I suppose you have seen the new Rules of the Circuit Court?—Yes. 5578. You are in no way responsible for them?—No. 5579. With regard to your own judicial functions, and regarding which some doubt seems to have arisen, in any modification or change which you say would require legislation would you give the Master the functions of the High Court Judge in urgency matters?—If you mean urgency matters of grants in interim injunctions yes, but I would leave it to the President of the High Court to say what class of case he should do. I do not think anything is to be gained by laying down a list of matters in which he should have jurisdiction. Give him the jurisdiction formerly exercised by a Judge, or by Masters in England, and let that be cut down by the President of the High Court. 5580. Your successor, and I hope it will be a long time before the necessity for his appointment arises, may not be as competent as you are. It seems to me it would be invidious on the part of the President of the High Court to take away from your successor some of the jurisdiction you exercise. In the public interest it might be advisable that it should be taken from him, but still it would seem invidious on the part of the President to exercise his discretion?—The qualification for a Master of the High Court under the Court Officers Act was that he should be a barrister of ten or twelve years’ standing. I think that a barrister of that standing, if he had the proper experience, should be able to make proper orders in these cases. You can get good men and bad men. 5581. I was going to suggest that some Masters are better than others. In regard to the repeal of Section 57, which you say the decision in Sligo Corporation v. Gilbride* makes advisable, is there any danger if it were repealed that it might be said such powers as were given under a previous Section were taken away?—I think the effect of the decision was to render nugatory Section 57. 5582. In reference to the winding up of Companies, and on that I hold a view that I think is held by a very small minority here, you say that a local auditor or accountant may be appointed? —Yes. If, for instance, a company in Limerick wants to be wound up I would appoint a local auditor or chartered accountant to do the winding up under the supervision of the Court. Though it is under a Judge, it is the well-trained official who conducts it. 5583. I have some experience of that class of business, and I think a better realisation of assets is made by a fully qualified man who has local knowledge. Would you favour the appointment of a local auditor or accountant?—I would always appoint a local man if I got a good man. 5584. You told us that up to a month or two ago work in the Chancery division was 18 months in arrears?—Yes, in some cases, but I added that in some cases it was due to delay on the part of solicitors. 5585. I happen to know of a Chancery matter, and the solicitor in connection with it is not a country solicitor. A man has been in occupation of a shop for a number of years. The upper part of the house is empty. The man who owns the shop is compelled to live six or seven miles out of town in a very unsatisfactory house and he complained to me of the delay. The minors are without a right to the upper portion of the shop, which he has been anxious to get all the time, and he is still in the same position? —If a receiver was appointed for the property his job was to see that it was properly let and looked after. If anyone is aggrieved he has only to walk into one of the officials in the Examiner’s office and say he wanted the case listed. 5586. It struck me, having regard to what you said, that the responsible official dealing with the property of minors would not allow such a state of things as that to happen?—Never, if it were brought to his notice. 5587. It seems to me from the case I have mentioned that there is something faulty in the system?—I would be glad to get particulars. I am satisfied there is an explanation. I receive six letters a day making complaints, and I think in only one in a hundred is there any substance. 5588. Deputy Wolfe.—So far as the question of your jurisdiction is concerned I take it your recommendation is that Section 17 of the Act of 1924 should be amended so as to give you the necessary judicial functions to implement the High Court Rules of 1926, or any Rules made amending those Rules?—Yes. 5589. As regards ex parte cases am I right in saying these applications are frequently urgent?—Yes, very. 5590. At present, instead of hearing every day are they heard only on every Friday?—Yes, unless you can capture a Judge. Sometimes, it is very inconvenient for a Judge to take these cases on any day except Friday. 5591. But Friday is set apart for ex parte applications?—Yes. 5592. Am I right in saying that as a result members of the legal profession are complaining that inconvenience and delay are caused?—Solicitors are. 5593. The delay in hearing ex parte applications is not caused by country solicitors?—No. 5594. Coming to the Supreme Court— speaking of it of course with the necessary reverence—solicitors are complaining that it takes up to six months sometimes to get Judges of the Supreme Court to make up their minds, and that there are appeals pending in the Supreme Court in which judgment has been reserved for months?—I would not like to make any comment on that. 5595. But the fact remains that it is so?—There are some judgments greatly in arrear. 5596. Let me give some dates: July 30th, 1929, no judgment yet; October 15, 1929; no judgment yet; November 12th, 1929, no judgment yet; November 20th, 1929, no judgment yet. Country solicitors are not responsible for that delay?—No. 5597. You will agree, I take it, that as far as that delay could be avoided, it should be avoided?—It should. 5598. You are not, of course, to take it from me that there may not be very necessary and serious reasons for the delay which has occurred. You told us in a very decided way that you are against the new system of marking judgments by default?—Strongly so. 5599. To come back to the question of jurisdiction. You do not want any increased title. I take it all you want is an increase of the necessary judicial functions to enable you to carry out your job?—Yes, because as it is I am skating on thin ice the whole time. 5600. As regards the winding-up of companies, you are in favour of local jurisdiction so far as the employment of a local auditor is concerned?—Yes. 5601. Your suggestion is that the machinery for the winding-up of companies and the expert knowledge of officials is to be found in Dublin while it will not be found in the country?—It would be impossible to expect it in a county registrar’s office. 5602. Unless in very exceptional circumstances?—Yes. 5603. There is another department of your Court which, I suggest, has been run with very great success. I am referring now to lunacy and minor matters. That work is done at present in Dublin? —Yes. Of course, I do not personally come into touch with lunacy matters. They are under the Chief Justice. 5604. But you have a general knowledge of them. Is it not a fact that everyone who has had to do with them speaks in praise of both departments?—They are very well carried on. 5605. And the work is very economically done?—They do not charge the usual fees. On the question of fees, take a certain case that came before the Courts. The costs in that case amounted to something like £3,000. The stenographer’s notes cost £300 or £500. What did the State get? All that the State got in fees out of that case was £3 15s. 0d. We housed them, lighted and heated them, gave them all the documents, and yet all that the State got in fees was £3 15s. 0d. 5606. Do you not think that there is a serious question as regards jurisdiction in lunacy and minor matters as to how far they are in the same boat as the winding-up of companies?—Yes. but there is a great distinction to be made between the winding-up of companies and lunacy and minor matters. 5607. Is it not becoming a very serious question as to whether they could not be done better in Dublin? In saying that, it is not to be taken that I am now saying anything against country attorneys? —With regard to lunacy and minor matters. I often heard that discussed. I think that all these matters might well be done in Dublin. 5608. I am inclined to agree. With regard to the question of the registration of Circuit Court judgments, did I understand you to say that every judgment over £50 and every judgment over £20 should be registered?—I think that every judgment of the District Court, the Circuit Court and the High Court should be filed in the Central Office and kept there, but as regards registering them in the sense of a judgment mortgage, I think that should not be allowed except in cases where the sum involved is over £50. 5609. On the question of jurisdiction, do you know that formerly there was an appeal under the Labourers Acts and the Working Classes Acts to the old County Court?—Yes. 5610. The decision of the old County Court was, I think, final?—Yes. 5611. The appeal from the Commissioners under the Local Government Board to the County Court was final. Do you know that it has been held that, owing to the wording of a section in the Act of 1924, there is now a second appeal from the Circuit Judge to the two Judges sitting in Dublin?—I think one appeal is quite sufficient. 5612. You will agree, I think, that it was never intended that an application under the Labourers Acts should be delayed for three or four years?—Never. 5613. As regards the question of the right of transfer without an application, which you advocate, is there not some danger of that running in conflict with the Constitution?—The High Court is open to everyone. 5614. Is the High Court open to everyone?—Some day last week, I think, a solicitor came to me to mark judgment for £3 5s. 5615. But reprehensible though that may have been, was not the litigant entitled to go to the High Court to recover £3 5s.?—Our working rule was that decisions for £2 in common law, and £10 equity were an abuse of the processes of the Court. 5616. But under the Constitution, was not the litigant entitled to go in and sue for the £3 5s.?—I did not refuse him but I did not give it to him. I am in the happy position of being able to say that I will place such a case in the Judge’s list. He has not gone to the Judge. 5617. I am sorry that you had not increased jurisdiction to penalise him in costs for a form of blackmail because that is what a writ for £3 5s. means?—I have no power to do that. He probably had issued twenty writs for small amounts and this was the only one that was defended. 5618. I am sorry that you had not jurisdiction to make him pay the necessary costs of a defendant coming in to defend, with the alternative of getting no costs even if he succeeded?—Personally, I would have liked that. 5619. You do not suggest that country solicitors are the chief offenders in that form of blackmail?—No. 5620. You must go to the city solicitors to find the delinquents?—I think so. 5621. We have been asking questions as regards delay in Chancery suits. It has been pointed out that in the case of the administration of a deceased intestate —a farmer—the deceased having died a number of years ago and the family having lived on in the farm, very great delay, expense and inconvenience is sometimes caused by taking an account of the rents and profits. That unquestionably is slow. It was suggested that it would be necessary to get a statutory remedy for that. Do you not think that the Chancery Judge at present has jurisdiction to say “I will order no such account”?—I think so. I think it is he that directs the necessary accounts and enquiries. He can limit them or enlarge them according as he sees fit. 5622. And if that remedy is desirable, is it not open to the Judge in the first instance to say: “I will not direct an account against the unfortunate family as to the number of rashers each of them consumed during the last twelve years.” Do you not think that that should be got rid of?—In the old times Judge Ross got rid of a great many of these estates in the Land Judge’s Court by putting them on his list to explain delay. I think it would be a good practice, to put administration suits that had been hanging over for a long number of years, on the list to explain delay. 5623. With the necessary little penalty of costs hanging over the door?—Or the transfer of carriage. 5624. It was suggested that in England there is power to administer the estate of a deceased insolvent in the Bankruptcy Court. It was suggested here that it would be well worthy of our consideration as to whether the administration of the estate of a deceased insolvent could not be better done in this country in the Bankruptcy Court than by the Court of Chancery, the latter having the advantage of the official assignee who, after all, is an expert?—Yes. 5625. Would it not be worthy of our consideration and the consideration of the two Houses of the Oireachtas whether the estate of a deceased insolvent might not be wound up in the Bankruptcy Court instead of in the Chancery Court?—I would not be inclined to be in favour of that. I would leave it where it is. 5626. You think it can be done as well where it is?—I do. 5627. Senator Farren.—With regard to the Rule-making Authority, I think you suggested that there should be a Secretary to it. At present I understand it is composed of Judges and barristers? —Two barristers and all the Judges, with one solicitor—the President of the Incorporated Law Society. 5628. Do you think it would be desirable to have on the Rule-making Authority a representative of the commercial community?—No; its work is purely technical. 5629. You referred a moment ago to a particular case the legal costs in which amounted to £3,000. You pointed out that the community represented by the State had to pay a considerable sum for the purpose of providing housing, lighting and heating facilities to enable that case to be heard, and that all the State got out of the case was the sum of £3 15s. If there was a representative of the commercial community on the Rule-making Authority, do you not think that he would insist that there should be certain fees charged to such people?—If you had a good Secretary he should do it and would do it. That would be his job. 5630. But the Secretary would be an official?—An official is not so bound down as the question might suggest. A good official represents the State. 5631. Some time ago I read the Circuit Court Rules prepared by the Rule-making Authority. I noticed that there was a great omission in these Rules, which was of great importance to a certain section of the community. That had been deliberately cut out by the legal profession. I refer to the question of giving aid to very poor people?—Yes. 5632. In the earlier Circuit Court Rules that were presented to the Oireachtas by the Minister for Justice there was a provision whereby poor people could get legal assistance under certain circumstances. The Joint Committee of the two Houses appointed to consider these Rules, which were rejected, recommended amplification of the provision that was made in the interests of the poor people. In the new Circuit Court Rules, I find that all reference to the Rule providing legal assistance for poor people has been deliberately cut out. Do you think that is right?—I do not. 5633. If there was a layman on the Rule-making Authority he would not have allowed that to happen. It was done purely by the legal gentlemen concerned —judges and lawyers?—Is there no general provision in those Rules making the High Court Rules apply where not so expressed? 5634. As far as I know there is not?— If there is such general provision, that would cover your point. 5635. There was a certain Rule distinctly laid down in the original draft?—I saw it. 5636. The Joint Committee of the two Houses—and I was a member of that Committee—considered these Rules, and we made a recommendation amplifying that particular Rule?—Yes. 5637. As far as I can see, the original provision that we proposed should be amplified has been cut out?—That should not be. 5638. It is missing from the new Rules?—Perhaps there is some general clause at the end. 5639. There was a specific Rule numbered in the original draft, and the Joint Committee recommended its amplification. I have read the new draft of the Circuit Court Rules, and that Rule has been omitted, and I say it is not right?— I agree. 5640. If there was a layman on the Rule-making authority, he would not have allowed it to take place?—When the Rules come before the House, the matter can be raised. 5641. You can depend upon it that it will be raised but it means additional expense to the State. This has been a costly document to print. When it comes before the House, I will certainly insist on the rejection of the Rules. I do not know to what extent I will be supported. If they are rejected, it means that they will have to be again printed. I think it comes very badly from the lawyers to do such a thing as that?—As I say, there will be an opportunity to raise the matter. 5642. Senator Hooper.—The Rules will not come up until after our report is presented. Taking it for granted, Master, that this provision in the Act of 1924 regarding your judicial powers is defective, it would require a change in the Constitution to put the matter right? —An express change in the Constitution? 5643. Yes; would it not?—If he were termed a Judge under a new Act or deemed to be a Judge, that might be sufficient. He could then exercise the power as laid down in the Constitution. 5644. You think an ordinary Act of the Oireachtas could put the matter right? —Yes. Of course, I have not come here to press that I should be made a Judge. 5645. Senator Dowdall.—We quite understand that. As it is, you have plenty of work to do?—I have plenty. 5646. Senator Hooper.—It is settled in your own mind that the Act of 1924 does not give you these powers?—That is so. 5647. The Chief Justice suggested that it was not finally settled?—It will never be settled. There is one case—the one referred to as sub judice—which may be decided some day. That will not decide the Master’s jurisdiction. If two Assistant Commissioners made a certain order in the Land Commission, not sitting in a Court of Justice, and under different circumstances to what we are considering, whether they were exercising judicial power or not will not decide whether the Master is exercising judicial power. You will have to take each case on its own facts and say whether it is an exercise of judicial power. The United States Law Reports are full of cases of what is judicial power and what is not, and of course always the tendency in those cases is the Judge does not like anybody else except a Judge to exercise judicial power. The tendency is to restrict that exercise as much as possible. 5648. Was there not a case arising out of your own jurisdiction decided by one of the Judges, and as a result of which the amending Act was introduced?—Yes. That affected two or three thousand orders made by me. It was never taken to the Supreme Court. The case did get to the Supreme Court, but they appeared to me to fight shy of the words “exercising judicial power.” 5649. Assuming that case had been taken to the Supreme Court and decided, would that have governed your general jurisdiction?—It would not. 5650. It would still be necessary to introduce a provision making your position quite clear?—Quite. 5651. No individual judgment by another Court would govern all cases?— All my general jurisdiction, that is so. 5652. You spoke of giving power to the Circuit Court Judge, in certain cases that were remitted from the High Court, to give higher damages than £300 in cases where he thought those higher damages should be given?—In reply to that, my general idea would be that if the parties lived in the same Circuit Court jurisdiction they must bring their action for £300 there, and if they go to the High Court they would have to be penalised and would have to pay. They should only get half costs. But if there is a man living in Donegal and he sues a man in Cork, I would not penalise that man and make him bring his action in the Circuit Court. I would let him bring it in Dublin, and if he got £100 as a result in contract or in tort I would give him full High Court costs. If, in an action for slander or libel, the plaintiff got £50 damages, I would give him High Court costs. 5653. You spoke of a man injured in an accident, and the point was that the High Court Judge thought it was not of sufficient importance for the High Court, and remitted it to the Circuit Court; but by the time the case came on the man had become paralysed, and it was obviously a case in which higher damages than £300 should be given. You proposed that the Circuit Court Judge should in such cases have power to give higher damages?— Yes. 5654. Would you give him any discretion as to the costs? Would you give him discretion to give High Court costs? —No further costs would have been incurred. Because he may get more damages it does not follow that more costs have been incurred. 5655. There are no circumstances in which it would be right to give him any discretion as to costs?—No. 5656. You do carry on a Court of a kind now, but it is rather a matter of an arrangement between the parties?—Yes, and it is very unsatisfactory. 5657. You do make orders?—I make some orders, and I have very grave doubt as to the validity of a great many of them. 5658. You say that in England the Masters make orders in rather big matters?—They have very extensive jurisdiction there. 5659. And the litigant has the right to go before a Judge?—Always. 5660. Would the same right exist here? —Let them appeal. One case in every ten would be appealed, perhaps. 5661. The suggestion was made here that in addition to marking judgment by default in your office you should have power to mark judgment in defended cases where the parties have come to an agreement. Do you agree to that?—Certainly. Two people come in with a consent signed by both, and I am asked to make it a rule of Court. I have no jurisdiction, because I know it could be set aside. Both parties ask me to make an order, and it is very hard to say “No,” but I know I am making an order and a fool of myself. 5662. Assuming the defect in the 1924 Act were remedied and you got judicial functions, would you think it right that you would have the power to say what action would be remitted? Is that a matter that would come within your jurisdiction?—That is a serious matter—the power of remitting. There might be some cases where the matter would involve very nice points. Of course there can always be an appeal. I would not like to express a view on it. 5663. It has been suggested that the Master should have that power?—I would leave it to the President of the High Court. I would not like to express my own view. 5664. Another matter is in respect of the concurrent jurisdiction of the High Court and Circuit Court. It has been suggested that if a case that is within the jurisdiction of the Circuit Court were brought in the High Court and there was a motion to remit and that the Judge in trying that remittal motion decided that the case should be held in the High Court, there should be no further jurisdiction as to costs in the trial Judge. The Judge having decided to retain the case in the High Court the High Court costs would follow?—Quite. If the Judge decided it should be held in the High Court, High Court costs would follow. 5665. Then the trial Judge should not have that discretion?—I quite agree he should not have that discretion. Once the Judge decided it was a case to be tried in the High Court the plaintiff should get High Court costs. The Judge trying the case might take a different view. 5666. At present it may obtain that the Judge trying the remittal motion says that it is a case that should go before the High Court, but the Judge when the case is tried may say that in his opinion it should not have come to the High Court and he refuses the High Court costs. In nearly all cases where that happens the High Court costs are refused?—Where there is a remittal motion refused I think the plaintiff should be entitled as a matter of right to High Court costs. 5667. Chairman.—Is there any other point you would like to put before the Committee?—Just arising out of the last point as to costs, I think that the plaintiff should be entitled to get summary judgment for a liquidated demand for a very small amount, for £20 and upwards, just as in England. I think the creditor should be entitled to take out a summons in the High Court for £20 and upwards, and if there was no appearance and no defence he should be entitled to get his judgment, with High Court costs, just as the rule is in England. 5668. Senator Dowdall.—Arising out of what you have just said, Master, let me take a small trader in Donegal and an action is brought against him in the High Court for £20. To defend that, he will have to go to Dublin and possibly to bring one of his shop assistants with him?—No. He has only to do one thing. He has to file an appearance in the office. Then it is set down before the Master. Immediately he enters an appearance, it is set down before the Master and the case goes back to Donegal for trial. 5669. My idea was that the man might incur more costs than the £20?—No. (The Witness then withdrew.) The Committee adjourned at 1.15 p.m. |
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