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

MIONTUAIRISC NA FINNEACHTA

(Minutes of Evidence)

Dé Máirt, 28adh Eanar, 1930.

Tuesday, 28th January, 1930.

The Joint Committee sat at 11.30 a.m.

DEPUTY MORRISSEY in the Chair.

Mr. Michael Dorgan, President, Chamber of Commerce, Cork, called and examined.

2205. Chairman.—Mr. Dorgan, I understand that you represent the Association of Chambers of Commerce in the Irish Free State?—Yes. I am President of the Cork Chamber of Commerce, and as such I am giving evidence, of course in association with representatives of other Chambers.

2206. You are one of the representatives of the Association, but you immediately represent the Cork Chamber?—Yes.

2207. The Association represents the views of the Chambers of Commerce in Dublin, Cork, Limerick, Waterford, Galway, Sligo, Clonmel, Drogheda, Dundalk and Tralee?—Yes.

2208. Have you anything to say as to the functioning of the District Courts?— Generally, as far as we are concerned they function all right.

2209. You find them satisfactory?—Yes. The only thing I would say on that is that sometimes on these examination orders the commercial community think that the Justice refuses to make an order when he might do so; that is, when you lodge a decree and get no return on it and you bring up the man for examination, sometimes the commercial community think that the Justice should grant orders where he now refuses them. That is examination orders to a man’s means and ability to pay.

2210. Have you anything to say with regard to the jurisdiction of the District Courts? Do you think the present jurisdiction should remain or that it should be increased or reduced?—I think that generally the commercial community are satisfied as to the working of the District Courts and as to the present jurisdiction.

2211. Do you prefer having your cases heard in the Circuit Court rather than in the District Court—that is, where they are within the jurisdiction of both? Have you any preference?—The trouble at the moment is the absence of rules. There have been cases in the Circuit Court which were really within the jurisdiction of the District Court, but in the absence of rules the Circuit Court Judge could not very well refuse to hear them. The business community feel that the absence of rules is operating very much against the conduct of business.

2212. Where a case is within the jurisdiction of the District Court, do you consider there is any advantage in taking it to the Circuit Court?—There is, sometimes. I do not know whether you know Cork or not, but supposing a man owes you money down in Bandon it would mean that you would have to send a solicitor down to Bandon, if you were a Cork trader, in order to have your case proved, but if you bring it in the Circuit Court you save yourself expense. Of course, that is only because of the absence of rules. This is one of the things that may be provided for afterwards.

2213. Senator Dowdall.—Is it a matter of convenience, then, to bring it in the Circuit Court?—A matter of convenience and a saving of expense, especially a saving of expense. The commercial community at the moment feel that there has been too much expense associated with the collection of debts. They feel very keenly on that.

2214. Senator Brown.—When you say expense, do you mean costs?—Well, the business community look upon everything as costs. I mean to say that if a man brings a case to recover any money, everything he is charged, whether it is witnesses’ expenses, costs or Court fees, he looks on it as having to pay so much money, and it does not matter to him under what heads it comes.

2215. We have had a good deal of evidence that it is largely a matter of costs being lower in the Circuit Court than in the District Court for small amounts?— In the case I cited for you it is less expensive. If you go down to Bandon you will only get your train fare, whereas your witness will have lost his day’s work, and that is a loss to any man.

2216. Chairman.—Leaving aside for the moment the question of appeals from the Circuit Court, do the present Courts give you a cheap and simple system of law?—They do; we are very well satisfied with them. Speaking as a Corkman, I have no fault to find with the way justice is administered in both the District and the Circuit Court in Cork.

2217. And they are efficient in giving people their remedies?—Yes.

2218. I understand that the Executive Council of your Association passed a resolution in October, 1928, protesting against any proposal for a reduction of the jurisdiction of the Circuit Court from £300?—Yes.

2219. I take it that that resolution still stands?—Absolutely. As far as the commercial community in Cork are concerned they are absolutely unanimous on that.

2220. But you exclude Dublin from the area of that resolution?—Dublin would be a possible exception. That is rather an open way to make an exception. It does not mean that it is an exception; it means that when the resolution was being passed there was even a possibility of Dublin agreeing with us.

2221. With regard to the questions of appeals in the Circuit Court, are you opposed to the existing system of appeals on the stenographer’s notes?—We are. What we say is that appeal under the present system, while bringing out the evidence accurately, has not the advantage of the personal touch. The Judges only read so many words reported; they do not see the men who have given utterance to these words at all, and the commercial community say that the appeal should be by way of re-hearing.

2222. Then I take it that your opposition to the present system is not based on the question of delay only in the hearing of appeals?—Oh, no. Of course, that is a very big grievance, because there have been some very hard cases in connection with delay; there have been traders who found that they were being held up, sometimes for a year and a half, by bogus appeals.

2223. On the question of expense, do you think that the present system of appeal entails greater expense than would be entailed in a re-hearing—that is, apart from the delay?—That is a point that I do not think that the Chamber considered. But the delay overshadows the whole thing. At present you have to brief counsel in Dublin; their fees possibly would not exceed what you would have to pay if you had appeals by way of the old Assize appeals. I do not know that the expense would be very much more, but the consequential loss to the trader is, of course, infinitely more, having regard to the fact that he has to wait for his remedy for perhaps a year and a half, and has to submit to the still greater risk of the man having got rid of his assets when the judgment becomes effective.

2224. You mentioned the question of bogus appeals. Do you consider that there has been a number of bogus appeals owing to the present system?—I may say that I am fairly sure of it.

2225. And if appeals were heard more promptly you think that bogus appeals would very largely disappear?—I think you should go further than that; on the question of appeals I think there should be some guarantee that the trader will not be victimised. What the commercial people would suggest would be that there should be some rule whereby when judgment had been given the amount of the judgment would be lodged in Court, that the Judge, in pronouncing the decree, should announce that, or that the lodging of the appeal should not be in itself a stay of execution—in other words, that the plaintiff might then proceed at his own risk. If the appeal was a bogus one the plaintiff would win; if the other man had a good case the plaintiff would seize his goods at his own risk. We wish to prevent traders being held up where there is no question as to their rights to recover money.

2226. You think that if the present system of appeal were abolished a less complicated set of rules would be required for the Circuit Court?—I would say so.

2227. And you would favour the adoption in the Circuit Court of the old County Court rules?—Generally they were very effective. Of course, I would not be prepared to give evidence in detail with regard to them, but generally they were very effective from the traders’ point of view.

2228. You would substitute for the present system of appeal a re-hearing by High Court Judges?—Yes.

2229. Would you say how many High Court Judges there should be?—I think from the point of view of safety you would want two. Two heads are better than one. We suggest that two Judges should be appointed, that they should go round periodically so many times a year and that they should take in the whole of the Free State, starting from Dublin, going down to Wicklow and Wexford, and then on to Waterford, Cork, Tralee and Limerick.

2230. Would you say how often they should go out?—You have an abnormal state of affairs now because you have congestion in the appeal lists, but if it once became normal I think a couple of times in the year would be sufficient for them to go out. It would be a great saving of expense because, if you have a re-hearing, people will have the advantage of being there, and they would not have the expense.

2231. How many times do you suggest that they should go?—The old Assize Judges used to go four times a year, I think.

2232. Senator Brown.—No, twice—in March and July?—But there used to be Winter Sessions.

2233. They did not do civil work?—Of course, people did not draw the distinction between criminal and civil work.

2234. They would not hear appeals?— No. A lot would depend on clearing up the present congestion, as once that was done the appeals would not necessitate the Judges coming more than twice a year. At present it is impossible to arrive at an unbiassed opinion in the matter as there is such congestion.

2235. Chairman.—You suggest that power should be given to the County Registrar to mark judgment in default?— Yes.

2236. You say that the absence of these powers means that undefended civil bills must remain over in some cases for six months before judgment can be obtained? —We do not find that so much in Cork, but I understand it is so in other centres. Our work is efficiently done in Cork. The trouble is that when a Judge operates in more than one county the decrees have to be sent after him. If alternative power was given to the County Registrar to sign decrees of this kind it would obviate delay.

2237. Have you anything to say in regard to the High Court or Supreme Court as to how they affect business people?— My Chamber more or less confined themselves to the work of the Circuit Court and protested against a curtailment of jurisdiction. While they have concentrated on that, they have considered other matters, especially sheriff’s fees, about which they feel keenly.

2238. I do not think we can discuss that, as it does not come within our terms of reference?—At all events, I felt it my duty to mention it here, as it is a matter about which we feel keenly.

2239. Senator Brown.—You are entirely satisfied with the work of the District Court?—Yes.

2240. I suppose, as a member of the Chamber of Commerce, you are not supposed to have very much personal knowledge of the District Court?—No.

2241. But you have knowledge in another capacity?—Yes, but I am here representing the Cork Chamber of Commerce.

2242. I would not ask you the question except I think it affects the interests of the commercial community in collecting small debts. I understand that at present that you cannot have a plea of set-off in the District Court?—Yes, but I kept that back, because if I spoke on that people might say, “Oh, he is a solicitor.” I say that we should have the right of set-off.

2243. At present there is no way of having what we used to call a counter-claim? —No. I tried it once in order to please a client, but I was ruled out.

2244. And with great respect, quite properly. Do you not think it would be a good amendment of the practice in that Court to have a set-off and counter-claim provided for?—Yes. It would be to the advantage of the business community to have it. At present you have to bring a separate Civil Bill, which means extra expense.

2245. As regards the Circuit Court you are speaking for the Chamber of Commerce, and you are against any reduction of jurisdiction either in tort or in contract?—Yes.

2246. What businessmen are most interested in is the recovery of debts?—Yes.

2247. Can you tell us of your own knowledge whether there is any substantial number of cases brought in the Circuit Court for the recovery of debts over £200?—Yes, I am aware of several cases in contract for £300, and I brought two cases myself for torts for £1,000 on consent.

2248. Judging from the figures which we have got, there is not a large number of processes brought to recover debts of over £200?—In Cork there are a good many. The Judge is kept engaged a good while in tort cases, and in such cases most of the Civil Bills are for £300, the extent of the jurisdiction.

2249. You were asked by the Chairman about the possibility of obtaining judgment by default in the Circuit Court?— Yes.

2250. How often does the Circuit Court sit?—Four times a year, but the Judge sits several times in Cork for Bandon and other places.

2251. He does not sit more than four times in any one place?—No.

2252. Therefore you may have to wait three months to get a judgment in an undefended case?—Yes, that is a great hardship, as in the meantime the debtor may have got rid of his assets.

2253. The service of a document upon him is, of course, really an invitation to him to do that?—Yes, we feel that the High Court system in connection with writs and the marking of judgment on affidavits should be adopted in the Circuit Court.

2254. Could these be dealt with by the Registrar or would it be a good thing to have them dealt with by the Registrar rather than by the Judge; at present, the Judge signs the order?—Yes, that brings us back to the point about giving the Registrar an alternative right to sign in the absence of the Judge. If you have affidavits, including an affidavit of service by the Civil Bill Officer, it seems to me that the law would be carried out fairly if the decrees were signed by the County Registrar. It would not do any harm to anybody.

2255. The trouble about that is a constitutional one. It is a question that has not been settled and it is pending in the Courts. It would be a great convenience if that could be done?—Yes, it would help the business community to recover their debts whereas at present they feel that every facility is given to dishonest traders to avoid paying their debts.

2256. That would probably account for the number of cases taken in the High Courts, where they can get judgment by default, final judgment?—Yes.

2257. You told us that your Chamber is in favour of appeals by re-hearing in the presence of two Judges?—Yes.

2258. Apart from the present delay owing to congestion of appeals, does not the present mode of appeal give satisfaction to litigants?—Yes, but they feel that Judges who try appeals on the shorthand notes have not the advantage which the Circuit Court Judge has of seeing the person who gives evidence.

2259. Under the old system of re-hearing, the litigant was present; the Judge went to the country and the litigant was present and heard his case being tried?— Yes.

2260. Do you think that it gives more satisfaction now to have the appeal decided on notes when he does not hear the case and where he has no opportunity of knowing what is being done?—The feeling generally is that the appeal should be by way of re-hearing rather than by appeal on notes.

2261. You suggested that in order to prevent bogus appeals, leave might have to be given to appeal by the Judge?— Yes.

2262. Or that the appellant could only get leave to appeal in case he lodged a certain amount of money, or perhaps the whole of the money, as security?—The business people think that he should be asked to lodge the amount of the judgment, or a substantial portion, with his costs to prove his bona fides.

2263. That would be a hardship on a person who would not be in a position to do that and who had a good case?—Well, then you could adopt the other thing— the mere lodgment of the appeal not operating as a stay of execution.

2264. At present it does not operate as a stay of execution, but the respondent does not go on because he is afraid to take the risk?—He is afraid to take the risk. The business view is that the question of bogus appeals is a pressing one. There should be a remedy, either that an appellant should enter into some sort of recognisance or that he should lodge the amount of the judgment, or a substantial portion thereof, to prove the bona fides of the appeal. At present cases are held up for a year and a half although there might be no merits at all on the defendants’ side. That applies especially in cases of possession of buildings. In these cases great hardship is occurring. A man may have no right to remain in a place and a decree is given against him. He thereupon lodges an appeal and sit in all his glory for a year and a half and defies the world.

2265. The evil would be minimised if the appeals were heard quickly?—It would be minimised, but still there is a temptation to the defendant in that an appeal will cause some delay in his favour, and that is to the detriment of business people.

2266. You suggested a re-hearing twice a year and that the Court which is rehearing the appeals from the Circuit Court should sit in the district twice a year, like the old Assize Court?—That would be better than at present, as the appeal would be heard within six months. With the congestion at the present time, it is very hard to know how it would work out or how many appeals you would have. The business people, while they want to facilitate the hearing of appeals, do not want to be piling expense on the country. It means a little bit extra expense the whole time.

2267. It has been suggested to the Committee that it would be better to have the Circuit Appeals Court sit three times a year?—I would agree with that.

2268. Say in October, in February, and in July. If that were done, you would not have substantially more than three months’ delay?—That is so; that would meet the thing.

2269. Deputy Little.—You said that there is a difficulty about getting your order, on bringing up a defendant to examine him as to means. Do you find that the Enforcement of Courts Order Act works well?—Generally, except in cases where sometimes there is a feeling that orders are refused where they should be granted; in other words, that very often the onus is thrown upon the trader to show that the other man can pay.

Chairman.—All that, I think, is in the discretion of the Judge?

2270. Deputy Little.—The Judge has not much discretion to exercise under the Enforcement of the Courts Order Act?—Complaints have been made to Chambers of Commerce that orders have not always been made against people brought up. It is a matter, as the Chairman says, for the discretion of the Judge.

2271. Do you not think that what has been operating in the mind of the Judge in these cases is that the Act is very severe and that he has not, in consequence, given the order for which has been asked?—Yes, it is a very penal Act. Of course, speaking generally, the thing is working very well.

2272. You mentioned a case of having to go down to Bandon to follow a defendant in order to collect your debt. Would it not be pretty hard to have to bring the defendant to Cork for a small debt? —I thought you would ask me that. I represent the business community at the moment. Their business is to try to get in any debts due to them and they feel, as I said before, that there are too many facilities given to debtors to evade payment of these debts.

2273. In other words, your answer is that your terms of reference do not allow you to give the answer which you might otherwise give?—That is right.

Senator Dowdall.—Do not let that cramp your style. We are not too critical in Cork of one another.

Witness.—I am trying to confine myself to the business point of view. Senator Brown would have drawn me out on other aspects, but I want to give my evidence from the business point of view and not from a personal point of view.

2274. Deputy Little.—Our difficulty is that we have to try to arrive at conclusions that are best not merely from the point of view of the plaintiff, but also from the point of view of the defendant. There is a real difficulty as to bringing a defendant of rather small means from Bandon to Cork to defend a matter which is within the jurisdiction of the District Court?—The case I have in mind would not be a case that would be defended. It would be an undefended case. The cases I am speaking of are only defended from the point of view of time. That is the only defence that would be entered, what we call a defence for time.

2275. The risk in that case would be that a defendant who had a good case to make for time might not be able to come up to Cork. Then if you take the system which you suggest of being able to mark judgment in the Circuit Court, judgment will be marked behind his back and he would have no opportunity of defending himself?—He would. If you provide for judgment in default of a defence, you can also provide for a defence to be entered which would be a stay on the marking of judgment just as in the High Court. If you enter a defence in the High Court, you cannot mark judgment until the matter is decided by the Court. In the same way, if you had machinery in the Circuit Court for judgment in default of a defence, that would be held up by the man entering a defence. The whole trouble arises at the moment from the absence of Rules in the Circuit Court. That is responsible for nearly all the dissatisfaction at the moment. We are waiting for those for some years.

2276. I believe they are prepared. You mentioned that in the case of appeals, you preferred to have a re-hearing to having the present system. Would you suggest that the stenographer’s notes should be added as well to the re-hearing? —We did not consider that, but, personally speaking, I think they might be available for the Judge. It would certainly pin down the defendant to the truth. There is a lot of “mending your hand” in such cases. That could not be done if the Judge had the assistance of the notes. However, the business community would come in there again on the question of costs and say: “That will cost us more.” I have to bring that out.

2277. There is a difficulty. If you are going to have a re-hearing as well as the stenographer’s notes, the matter is going to work out very expensively. On the question of solicitors’ costs on these stenographers’ notes, there has been considerable complaint, and it has come before the Committee that sometimes the costs, owing to the length of the stenographer’s notes, would be equal to or more than the substance of the action, because of the fact that a great many witnesses had been examined?—I shall asnwer that if you like, but my Chamber did not consider it.

2278. I shall put it this way. At present the stenographer’s notes are involved in the actual remuneration of the solicitor. Would it be better to separate them and keep the costs of the solicitor apart altogether from the stenographer’s notes?—Yes, that could be done. The stenographer’s notes are regarded as an outlay now, and the solicitor has to pay for them.

2279. Supposing it was regarded only as an outlay. At present it is part of the costs?—With all respect, I do not think so.

2280. Deputy Little.—You are able to charge 6d. for a folio?

Chairman.—That is for a copy.

Deputy Little.—It is merely a copy for his brief. Apart from what is paid to the solicitor, there is a charge for the stenographer’s notes. In other words, they are part of the profit costs?—I do not quite follow. If you have an appeal you brief the stenographer’s notes, for which you get 6d. per folio, just the same as you get for any copy you put on your brief.

Deputy Little.—A considerable amount of that 6d. is profit?

Chairman.—I am afraid we are forgetting the fact that Mr. Dorgan is giving evidence on behalf of the Chamber of Commerce. Deputy Little’s question can be answered by some member of the Southern Bar Association.

Senator Dowdall.—We will have two solicitors from Cork to-morrow.

2281. Deputy Little.—I am quite satisfied to pass from that, but I thought it better that we should get Mr. Dorgan’s view, both from the business point of view and the legal point of view.

Witness.—I happen to be a member of the legal profession, but we will have two members to give evidence from that Association, and while I would like to help in any way, at the same time I would like to confine my evidence to the business point of view.

2282. Deputy Little.—You mentioned the matter of bogus appeals, and you suggested the lodgment of the amount in Court as a remedy, and also possibly that there should be no stay on execution. “No stay of execution” would be very risky if it were taken advantage of?—It would be risky for the plaintiff, because if he went to put the sheriff in on the defendant, and it turned out afterwards that the defendant was right, he would be liable for an action. As Senator Brown very wisely said, it is more or less a bar, because very few people would take the risk. If you can provide for proper sureties in the recognisance, it would be an effective remedy. Business people think that, as a general rule, the recognisances are bogus.

2283. Senator Brown.—Bogus?—They are mostly bogus. You find that, especially in appeals like that. That is the experience. It has been tried several times.

2284. Deputy Little.—At present do you find the system of following the Judge in the area of jurisdiction, by means of another solicitor, satisfactory? When you get judgment in an undefended case, is it not easy to get another solicitor to act where the Judge is then sitting?— Every solicitor has an agent in every town. They work for one another. If we get a debt to collect, say, in Clonmel, we send it to a man there. Generally, clients deal only with one solicitor, and instruct him to take the necessary steps. The client simply wants to get his money. That point is of particular interest to the business community.

2285. Senator Dowdall.—On the question of the expense of appeals, as between what we call the old assize system and the new system of appeal on notes, have you made any comparison of the cost of the two?—I have not gone into that definitely. I think the feeling of the business people is that the appeal on sight would be more advantageous for them. If there is a big case before the Circuit Court, and if there is much evidence, the notes are the difficulty, as you have to pay for them. I know one case where we had to pay £16, but it was exceptional. That is a very big amount to have to pay. It would be obviated by the assize system of re-hearing.

2286. Would it surprise you to know that we had evidence from the Taxing Master showing that the present cost of appeal is twice as much as the former system?—Yes.

2287. You did not know that?—I did not know it actually, but I could well imagine it.

2288. Senator Dowdall.— Presuming that the old system was reverted to for appeals, two Judges going on Circuit, would you retain the notes?

Chairman.— I think the witness answered that question already.

Witness.—It would be an advantage to have them, but it would be an additional expense, for which the community would have to pay. It would certainly be an advantage if the two Judges re-hearing the case could see what a certain witness said in the Court below. They would have the evidence in black and white and could, perhaps, try to arrive at the truth. On the other hand, business men may say that the country is paying too much already, and that this would be extra expense.

2289. Senator Farren.—On the question of the jurisdiction of the Circuit Court, I have before me a resolution passed by the Executive of your Association—the Association of Chambers of Commerce. Would it be true to say that that resolution was engineered?—As far as my Chamber of Commerce is concerned, it certainly was not.

2290. I have a definite reason for asking the question, because a most responsible official made a statement here, to the effect that these resolutions were engineered, and that the people who passed them did not know what they were talking about. I want to know definitely, for the information of the Commission, whether the Association of Chambers of Commerce gave proper consideration to this important question before the resolution was passed?—I believe they did, and they had the advantage of the views of their constituent Chambers of Commerce. We sent a man up to each meeting to act as our representative and to get information. As far as we are concerned in Cork, there is no question whatever as to the feelings of the business people, that the jurisdiction should not be changed.

2291. And your resolution is a definite expression of the views of the commercial community in Cork?—Yes.

2292. Senator Wilson.—On the question of re-hearing, are you aware that the system we had never applied in England, as on appeal, only the notes of the Court below were dealt with. There was no question of re-hearing witnesses. It was only in this country the system that you want to revert to, applied?—I do not know.

2293. Would your reason for wanting a re-hearing be that you had the other system already, and not because you are not geting fair play under the present system?—We have experience of both systems now, and we find that the present system of appeal on notes is not satisfactory, from the business man’s point of view.

2294. Would it not obviate this complaint that you mention, of mending evidence, if the Court of first instance declared finally on fact?—That would deny a man the right of appeal, if he were bound down to the first decision.

Chairman.—Except on a question of law.

2295. Senator Wilson.—There is an appeal to the High Court on a question of fact, but in practice there is no appeal?—People who considered this matter had experience of both systems, and the resolution is the result of their experience, and an expression of their opinion.

2296. They thought it would be better to have a re-hearing and have the opportunity of mending the evidence given in the lower Court?—We all know that evidence is given which is incorrect.

2297. You admit that evidence is mended on re-hearing?—I did not say that. I say that on re-hearing on the note before two Judges they have the advantage of having the people before them, and they have a better opportunity of arriving at the true facts than under the present system.

2298. But the first Judge had the opportunity?—Every Judge is human, and it is quite possible for him to make a mistake.

2299. Senator Dowdall.—You have no pleadings in the Circuit Court now?— No.

2300. Accordingly, when you go into Court you do not know what case is going to be put up by the other side?—Quite right.

2301. Presuming that a case is tried in the Circuit Court, and that a false case is made against you, would an appeal by way of re-hearing give you an opportunity of countering and disposing of such a case?—Of course it would. That is the advantage.

2302. Senator Wilson.—That is not the answer Senator Dowdall expected.

Chairman.—That does not matter.

Senator Dowdall.—I am satisfied with the answer.

2303. Senator Hooper.—You seem quite satisfied with the jurisdiction of the Circuit Court?—Except as mentioned.

2304. Do you mean on the question of amount?—Yes.

2305. A suggestion has been made here that the present jurisdiction of the District Court in contract should be extended from £25 to £50. What would you say to that?—My Chamber did not consider that At present we are satisfied, generally.

2306. You would not care to express a personal opinion?—I think if it was extended it would throw a lot of extra work on the District Justices, and in some places they have a lot to do..

2307. You think that Court would be competent to try cases of the kind?— Quite competent. Speaking from my own experience, the District Justice we have is quite competent to try the extended cases you mention. The question is: would it throw a lot more work on him?

2308. Assuming that difficulty was got rid of, do you think a change of that kind would be a convenience to the business people?—I suppose it would. If you had the marking of judgment in Chambers extended the same necessity would not arise. The majority of the cases coming before the Court from the business community are undefended. They are cases of ordinary debt, in which there is no question except inability or unwillingness to pay.

2309. That being so, it would not throw such a big burden on the District Justices?—It would not, if other machinery was available.

2310. Coming to the question of the cost of appeal, Senator Dowdall told you that we had evidence that the present system means that the costs are about twice what they were under the old system of appeal. Assuming that the old system of appeal were reverted to, plus the shorthand writer’s notes, in your opinion would the costs then be less than they are now?— Under the old system there were measured costs in these cases of appeal.

2311. The effect of the evidence is that the costs now are twice what they were before?—That is the general opinion.

2312. So that even if the notes were still retained the costs would be less than they are at present?—I would be inclined to think so. But that comes back to the point that the business people might not want to have the cost of the notes if there was to be a re-hearing.

2313. At any rate, it would be a cheaper system than the present one?—Cheaper and more convenient. Convenience is the great point.

2314. Even getting the notes in it would still leave it cheaper?—I am inclined to think it would.

2315. Senator O’Rourke.—At present a plaintiff has the right to go to the District Court in cases under £25. Do you think that should be changed?—I do not think so. I think each Court should exercise its jurisdiction. If you had proper rules they would provide for all these things, and each Court would take cases within its own jurisdiction.

2316. What machinery would you suggest for dealing with additional cases?— I think there should be some system of marking judgment in Chambers.

2317. In the District Court?—In any Court.

2318. Senator Brown.—I want to have it made clear about the use of the stenographer’s notes on appeal, that if there was a re-hearing they should be part of the record—part of the material on which the Court would go. There is another use of the stenographer’s notes. They could be used for cross-examining witnesses, and therefore you need not have them, if that is the real use, as part of the record. You would only have them, in case you went on, in the part you want. Therefore, they need not add to the expense of a case where they were not required, or where only a small portion of them was required.

Witness.—Your suggestion is that you would extract portion of the stenographer’s notes, pay for that copy, and use only that portion?

Senator Brown.—Yes. The solicitor who conducted the case in the Circuit Court knows perfectly well if there is perjury. He wants to correct that in the other Court, and the only use of the stenographer’s notes in that case would be to enable him to do so. Therefore, he would only take that witness’s evidence. It need not add to the cost. There ought not to be a re-hearing, plus the stenographer’s notes.

Senator Hooper.—In effect, would it not mean that both parties would always get the stenographer’s notes?

Senator Brown.—No. In nine cases out of ten neither party would have to get them.

Chairman.—Thank you very much Mr. Dorgan, for your evidence.

(The Witness withdrew.)

Mr. Charles Ebrill, Chamber of Commerce, Limerick, called and examined.

2319. Chairman.—You are also one of the representatives of the Association of Chambers of Commerce of the Irish Free State?—Yes.

2320. You particularly represent Limerick Chamber of Commerce?—Yes.

2321. You have heard Mr. Dorgan’s evidence. Do you agree with the evidence given by him?—Yes, generally, but I should like just to emphasise two or three points. My Chamber particularly took note of the extra expense of the appeals. The expense and the delay were the two points they asked me to underline. The expense is very much more than it was at the old Assizes, particularly in small ejectment cases, or cases like that. In these cases, according to my recollection of appeals at the Assizes, you secured an order at once and the costs of the appeal would be about £7, going down according to the valuation. In two similar cases recently in Clare I happen to know that the costs were about £28. The man who was upset on appeal had not the satisfaction of getting a run for his money and he had to pay £56. I have taxed a number of bills myself and they have never gone below £16 or £18. Often you have to employ two counsel, if there is any point of law arising. That I regard as a great hardship and the Chamber asked me to point it out. Moreover, there is a certain amount of delay even in getting an appeal order out. That was the case particularly when you had the Commissioners sitting. They were not able to get at the signing of the orders—the completing of their work—as they were pushing it through, and there was great delay. The second point is the delay in connection with the appeals. Since the beginning of the system, it has amounted sometimes even to eighteen months. I have two cases of my own at present waiting and we have no hope of their coming on, although they are waiting over six months. Another matter they asked me to underline is the signature of the decrees. Our Circuit Court Judge goes round three counties and sits at Tralee, Ennis and Limerick. He sits three times a year. You have to follow him round with the papers and they often get mislaid—even cheques for payment of moneys on the equity side of the Court, and that is very inconvenient. If a system could be introduced by which the County Registrar would sign a decree, it would be an immense advantage. As to the number of appeals if Assizes came round again, I think twice a year certainly would be ample for sittings in our district, because the Judge sits three times a year. He sits in July, he sits before May, and he sits in January or February. He sits in just a few days’ time in Limerick. I think if you had the Assizes going round in July like the old Assizes and you had another after the January Sitting you would amply dispose of any cause of delay. There is one point as to an order for payment. Long ago you went for an order for payment by instalments under the old County Court system and you got it more or less automatically. Under the Enforcement of Law Act the Judges took a more serious view of the reading of the Act. They felt that they ought not to give an order except you were able absolutely to satisfy them that the defendant had money and would not pay the debt. Moreover, owing to the interpretation of the rules, if a man makes default in the payment of any instalment he has to pay the whole or go to jail. That is a thing that operates on the Judge’s mind considerably. If there were some distinction made and he should pay the instalment only or go to jail, I think you would get the instalment order more easily. Now, under the interpretation, if he makes default the whole of it is payable. It is rather like one of these moneylenders’ notes. There was a suggestion made that a re-hearing would enable people to mend their hand. I cannot recall in the old Assizes’ time very much of that. It was always open (and I have often seen it exercised) to the Judge to give no costs of the appeal when any attempt to mend the hand was made—where the case was decided on evidence that was not before the County Court. I have seen it exercised by the old Chief Baron and some other Judges. There is another point: that if you extend the jurisdiction of the District Court to £50, there may be a difficulty in being unable to have counsel. You would be rather in a difficulty in that you would not be able to have counsel. Our District Court sits once a month in Limerick and in that time the District Justice has to hear a great number of cases, so that important cases running up to £50 I am afraid would be throwing too much work on the District Justice. On the other hand, if you bring a case within the District Court jurisdiction before the Circuit Court, our Judge is inclined to penalise you for not making use of the facilities you have.

2322. Senator Farren.—You are a member of the Limerick Chamber of Commerce?—Yes.

2323. That Chamber had a discussion with regard to this question of the jurisdiction of the Circuit Court?—Yes.

2324. I understand they passed a resolution in favour of the retention of the present jurisdiction?—They did pass one in August, 1928. When they got the first report from the Dáil Committee, they held a meeting.

2325. I have a special reason for putting these questions to you, because a witness gave evidence here in favour of the reduction of the jurisdiction of the Circuit Court, and I put it to him that certain local public bodies, including the Limerick Chamber of Commerce, the Limerick Corporation, and the Limerick Harbour Board had passed resolutions in favour of the present jurisdiction. He made a deliberate statement to the effect that he knew how these resolutions were manufactured. He went so far as to say that he believed these resolutions were all written by the one gentleman, and he further suggested that the people who passed the resolutions did not understand what they were talking about. I want to know definitely from you if it is a fact that the Limerick Chamber of Commerce have been led by the nose by one individual and passed this resolution in favour of the present jurisdiction without having considered it—is that true?—That is not true. There is—as there is in most assemblies—one prime mover who takes this very seriously. He professes the very greatest possible contempt for the law, and boasts that he has been only twice defendant and never a plaintiff.

2326. This is an important matter, because the gentleman who gave evidence occupies a very important State position, and great weight should be given to any evidence he would give here. For that reason you will excuse me putting the question. I want to know definitely whether or not the local bodies, and particularly the body you are speaking for— the Limerick Chamber of Commerce, who, I understand, represents the commercial community—understood this resolution, and what it implied when they passed it, in favour of retaining the present jurisdiction?—Certainly. I can tell you that the Committee of the Chamber of Commerce met, and when they had outlined what they wished to underline in this, they sent for me as being one of the members of the Association who had some special knowledge of the law, and they gave me exact directions as to what they wanted done. I submitted the précis of evidence that I was proposing to give and they passed it. I have got it here for the benefit of the Committee. They limited it entirely to the convenience of the commercial community.

2327. Senator Hooper.—You spoke of an appeal in which the cost was £28, and you said that in a similar case before the old Assizes the cost would be £7; can you say what was the amount involved in that case?—It was a question of an ejectment in connection with a premises situated in Scariff and valued at about £5.

2328. You think that difference was typical as between the costs?—It was. The great point about it was that I do not think the litigant would have minded if he had known the reason. It was reversed on a point of law, and he considered that he did not get a fair show.

(The Witness withdrew.)

Mr. J. R. Clark, Secretary, Association of Chambers of Commerce, called and examined.

2329. Chairman.—I understand you are Secretary of the Association of Chambers of Commerce?—Yes. As Secretary I should like to tell you of what actually happened. I cannot give evidence in the same way as the other witnesses. With regard to the appeals, all the Chambers—in fact everybody—agreed that the appeals on the notes were absolutely unsatisfactory. When they set down what is in their evidence to that effect, they contemplated that the stenographers would be abolished. The Association also discussed whether the appeal should only be on points of law, and although some members of the Dublin Chamber—perhaps one or two—were in favour of that, the rest, and the country were overwhelmingly in favour of a re-hearing by High Court Judges on circuit.

2330. Senator Brown.—On fact?—On fact and on law. With regard to the resolution set out by the Association, every Chamber was in favour of retaining the jurisdiction with the exception, at that time—in 1928—of Dublin. The resolution set out there was not prepared before the meeting. It was only arrived at after about one and a half or two hours’ consideration in Waterford.

2331. Chairman.—Was that a general meeting?—No, a meeting of the Executive Council at Waterford, but before it was discussed at that meeting it had been under discussion by the Chambers, and they had all expressed the opinion that the jurisdiction should be retained. With regard to the appeals, I should like this to appear on the evidence: A suggestion was made that the amount of the decree should be lodged before an appeal should be allowed. That suggestion was not adopted, because it was considered that there might be some hardship. Under paragraph 4 of our précis of evidence there you will see: “Some method should be devised to prevent bogus appeals being made with the object of defeating justice.” After that they would like this to appear on the evidence: “Where the Circuit Court Judge considers a case to have been clearly proved he might be given power to say when pronouncing his decree, that the amount awarded must be lodged in Court if an appeal be intended.” That is quite a different thing to making everybody lodge the amount of the judgment before the appeal is made. With regard to the other points, Mr. Chairman, I think you have ruled them out. They dealt with sheriffs’ fees orders.

(The Witness withdrew.)

Mr. J. C. M. Eason, representing the Chamber of Commerce, Dublin, called and examined.

2332. Chairman.—I understand you are the ex-President of the Dublin Chamber of Commerce?—I have had that honour.

2333. And you represent them here today?—I do.

2334. Can you tell us the views of the Chamber with regard to the function of the District Courts?—According to the information which we have gathered from our various members, the District Courts are working satisfactorily; we have no complaint with regard to them. We are satisfied with the District Courts.

2335. Have you any views with regard to the present jurisdiction of the District Courts—whether it should be increased or left as it is?—No suggestion with regard to that has at any time been put forward. I think the feeling pretty definitely—and I am making this suggestion because of my own knowledge and not as the result of inquiry—is that the business community would be quite prepared to let the District Courts work as they are working; would be quite prepared to let well enough alone.

2336. Will you give us the views of your Chamber regarding the Circuit Courts, particularly with regard to the present system of appeals?—The views of the Dublin Chamber with regard to Circuit Courts have been determined by a number of factors, all of which have been brought under your notice here. When the Act was being brought into force in 1924, the Dublin Chamber of Commerce discussed a number of points with those who had been promoting it, and they got assurances with regard to arrangements in the rules which would give satisfactory functioning of the Courts in respect of the collection of debts. On the question of jurisdiction, they took the view, and they take it still, that they are not going to stand out or apart from the rest of the community, or be different from the business community in other parts of the country as regards a suitable amount of jurisdiction. The Dublin Chamber of Commerce has to say very definitely that as a result of five or six years’ working of the Circuit Courts they are thoroughly unsatisfactory.

2337. I take it from what you have stated with regard to the attitude of your Chamber of Commerce towards the question of jurisdiction that you are in agreement with the Associated Chambers of Commerce?—We remain in agreement with them.

2338. Their views is that the jurisdiction should not be reduced?—Provided you give us a satisfactory functioning of the Courts.

2339. Explain exactly what you mean by that?—What I mean by that is this: The commercial community expect that a Court such as the Circuit Court with a jurisdiction up to £300, will be able to collect debts satisfactorily and efficiently; that they will get there the service which they have had in the High Court. They desire that they will not be hampered by an appeal system which has tied up the work of the whole Court and enabled persons who wish to evade responsibilities, successfully to evade them. They want to remedy a system which has added to the cost of litigation instead of reducing it. In the memorandum which you have before you, it is pointed out: “Until further experience is gained of the working of the Circuit Court under proper rules, we do not recommend any change in the jurisdiction,” the opinion being that they have never had a chance.

2340. Are there any other defects that you would like to mention?—I do not think there are any other defects which the business community have fastened on. These are the primary points. We are not giving technical evidence with regard to the functioning of the Courts.

2341. What should be substituted for the present system of appeal?—The recommendation of the Dublin Chamber is that there should be a re-hearing on circuit by High Court Judges.

2342. How many Judges?—We have no idea as to how many are necessary. If you mean how many to hear the rehearing, I should say two Judges.

2343. Have you any views as to how many times in the year they should go around?—It was not discussed.

2344. Of course, that does not affect Dublin so much as the rest of the country?—No, except the Dublin merchants may have a case in the country that is waiting to be dealt with. They want it dealt with rapidly. That is where they are affected with regard to the Circuit Court. The country cases really affect Dublin, and if there are delays there and if the hearings are not frequent enough, there should be pressure for more frequent hearings. The Dublin Chamber of Commerce would not express an opinion on that, as they had no facts put before them as to the number of cases, and how long they would take.

2345. Have you anything to say with regard to the High Court and the Supreme Court?—We have put down references with regard to the High Court. The first point that we have mentioned with regard to the High Court is one that we are glad to have an opportunity of bringing under your notice. In 1924, when we were discussing certain matters with the Attorney-General, we had this matter in mind. We asked then that there should be an endeavour made to give commercial cases more or less to one Judge, so that gradually there might be an experience built up which would assist the commercial community and satisfy them that their cases would be dealt with by somebody who had a considerable experience in commercial matters. The suggestion was made partly on the lines of the position in England, where you have a definite commercial Court.

2346. Something like what they have in England—a specialist in the hearing of divorce cases?—Something like that. You might, for instance, have a specialist in bankruptcy.

2347. Senator Brown.—They have a commercial Court in England?—They have.

2348. Chairman.—Your Chamber is of the opinion that it would be an advantage to the business community if we had a similar Court here?—I do not necessarily say a similar Court, but the idea was that we should have one of the High Court Judges who would take commercial cases. I suppose there would not be sufficient work to justify his being set aside for that purpose only.

2349. You mention in your statement that in any action between the State and its subjects either party should have the right of trial before a jury?—This question of a jury trial has been the subject of considerable discussion amongst the members of the Dublin Chamber. There is a considerable difference of opinion in regard to what should be done. The majority take the view that the present arrangements might be left to stand; that is, leaving it in the discretion of the Judge whether there should or should not be a jury.

2350. Senator Brown.—What kind of a case have you in mind?—Where we wished to take away any personal discretion was in a matter between the State and any of its subjects—Revenue cases in particular. There we think there is no question but that there should be a jury, and it is not fair to throw on the Judge any responsibility.

2351. Chairman.—Why?—Because no subject should have taken away from him the right of having twelve of his fellow-countrymen to decide his case.

2352. What I meant by the question was, why confine it to an action between the State and one of its subjects?—Because the issues involved are probably more important.

2353. They may be?—They are certain to be. You must remember there are quite a number of merchants, and some of the members of the Chamber of Commerce who discussed this matter who would like a jury in all cases. This is a sort of a compromise—a half-way house. The majority did not feel disposed to argue that a jury should be got in every case simply because one of the litigants wished to have a jury.

2354. You say that the old practice in existence before 1924 of marking judgment in default of appearance or defence in the Court Office without reference to the Master of the High Court or any Judge should be restored?—Yes. There is no qualification of our views on that point. It worked satisfactorily before, and we would like to have it again. It was quick, cheap, and everything we desired.

2355. Your Chamber is of opinion that the Master of the High Court should be given power to mark judgment in defended cases where the parties have come to an agreement?—Certainly, where there is agreement.

2356. Senator Brown.—The advantage of the commercial Court of England is that you can get your hearing over much more quickly?—Yes.

2357. Because there are practically no pleadings, no preliminaries, and you can get into Court in a few days?—Yes.

2358. But there is no jury. There is a Judge assigned, but they never have a jury. Would you think a jury would be desirable in a Court of that kind?— Members who discussed the matter, and who are interested in certain contract matters, think definitely that they would be satisfied with the Judge, if he were a Judge who would have experience.

2359. They are mostly questions of commercial law?—Difficult questions. You have the qualification that we want a Judge who has experience of commercial matters or who, after a time, would have that experience.

2360. Senator Dowdall.—In your précis you state that the body you represent are in favour of the abolition of appeal on shorthand notes?—Yes.

2361. Do you mean that the stenographer’s function should be abolished?— Yes, that is what is contemplated in our recommendation.

2362. Of course, you will appreciate in a system of appeal by re-hearing that in some cases stenographers’ notes, or some part of them, might be very useful?— They might, but could there not be the Judge’s notes?

2363. I suggest to you that what a witness actually said is more important. A Judge could not take down all that a witness says?—At any rate, we did not contemplate that stenographers’ notes would be continued. That was not in our minds. At the same time, you may take it the commercial community want efficient law. They do not want it dear, but they do not want it cheap if they cannot get it good.

2364. As a commercial man I agree. A thing too cheap may be bad. The Dublin Chamber of Commerce is in favour of reverting to the old system of appeal on re-hearing?—Yes.

2365. Deputy Little.—You state in your memorandum that a long time elapses between obtaining judgment and the signing of the Order. I would like an instance of that?—One individual case was mentioned, but there have been a number of general complaints. I am not in a position to put any facts before you in regard to that.

2366. Perhaps somebody else could?— Possibly, but I cannot. It is extremely difficult to get information from the commercial community as to what is happening in regard to their cases.

2367. You say that the appointment of High Court Judges to act as Chairmen of Commissions interferes with their other work. You have experience of Commissions, and matters like that, and have you any suggestions to offer as an alternative?—The Chamber of Commerce did not feel they should put suggestions. They called attention to the fact that the practice interferes with the other work of the Judges.

2368. You have not considered an alternative to that system?—There is the panel system.

2369. You think a panel would be a good idea?—I do not suggest a panel, but there could be a panel to choose from, and I know of no existing panel to select as an alternative.

2370. Senator Hooper.—When this jurisdiction of the Circuit Court was fixed at £300, what was the attitude of the Chamber towards it?—The Chamber desired to help in its working. They gave evidence on the matter before several people, including the present Chief Justice. They were promised efficiency in the Circuit Court equal to what they were enjoying in the High Court, and they were satisfied to accept a more decentralised procedure.

2371. Did they advocate fixing the jurisdiction as high as £300?—They supported it.

2372. Did they advocate it?—I do not think so. It was not for them to advocate it. The proposal was put to them.

2373. There was no demand for it from the Chamber?—The matter was discussed seriously by the Chamber, and they decided they would not seek for a reduction of the jurisdiction.

2374. What was the attitude of the Chamber towards the old limited jurisdiction of the County Court at £50?—As far back as fifty years ago, I think, a meeting was held of the Dublin Mercantile Association, the Chamber of Commerce, and other bodies to protest against the old County Court procedure. One of the reasons why the Circuit Court procedure was accepted was because the commercial community had not been impressed by the old County Court procedure.

2375. And you were in favour of raising the jurisdiction?—They wanted a change of some sort, not so much a change of jurisdiction as a change of procedure. I have a document here drawn up fifty years ago for the reform of County Court Civil Bill procedure.

2376. Is there much inconvenience in the matter of judgment by default owing to the fact that you cannot get it marked in the office of the Master instead of going to the Master, that is, as far as High Court procedure is concerned?—I understand it leads to a certain amount of delay, and it adds something to the expense.

2377. If the Master is away, is it possible to get a judgment marked?—You would have to ask a solicitor that.

2378. Senator Farren.—I understand you to say that the Chamber of Commerce were in favour of the present jurisdiction of the Circuit Court; that is, leaving it as it stands?—Yes.

2379. I think you said you are not satisfied with the procedure of the Circuit Court?—I am not.

2380. Would the absence of Rules in the Circuit Court be responsible for the delays and inconveniences you suffer from?—That remains to be proved.

2381. If satisfactory Rules of Court were prepared and passed, would that meet the difficulties you have in mind?— We expect it would.

2382. If proper Rules are prepared, would you be satisfied with the jurisdiction?—We prefer to wait and see.

2383. Chairman.—Have you any specific suggestions to make which would lead to a more prompt collection of debts?— The commercial community have had efficient collection up to the present, that is in the writ issued by the High Court. It is expensive, especially for small amounts. I do not think the commercial community have any alternative to suggest.

2384. It was suggested by one witness that proceedings in the High Courts for small amounts was an abuse. Do you find that people in Dublin proceed in the High Courts for small amounts when action could be taken in the lower Courts? —I have no facts upon which to answer that question. The commercial community will take the quickest way it can to recover these debts. In some cases even small amounts can be got from the High Court which could not be got from the Circuit Court.

2385. If a case for a small amount was taken in the High Court instead of the lower Court, would not that be putting great expense upon the person brought to the High Court?—Of course, if he recovers his costs it does not.

2386. We have had evidence tendered here that cases have been brought into the High Court for amounts as low as £3. Do you not think it is an abuse of the High Court to take cases for such a small amount into the High Court?—I think so, but surely there must be something wrong with the lower Court.

2387. That is a point we want to get some information on?—The commercial community are hardly in a position to give expert advice on that. You are here to consider that side of it. We make inquiries from our members and we get complaints. We know that in what they do they are guided by their legal advisers in all these cases.

2388. I think we are entitled to get reasons from representatives of the business community as to why they take proceedings in the High Court for cases within the jurisdiction of the Circuit Court?—Because they collect more quickly. The Dublin merchant does not sue in the High Court as a rule. Proceedings for debts below £25 are frequently taken in the District Court. It must be exceptional cases that go to the High Court.

2389. We have had evidence that many cases for small amounts have been brought to the High Court, and we want to know the reason for that, in view of the fact that the District Justice sits weekly in Dublin?—Is there a record of the small cases brought into the Circuit Court? If a witness made that statement I would be inclined to ask him are there many cases.

2390. We were told there are many cases?—There may be. I have no information on the matter. The information should be available. Surely it is a matter of efficiency. Traders will try to recover their debts the quickest way they can, and is there any public reason why they should not be collected? What hardship is it to a defendant?

2391. Senator Hooper.—My recollection is these were country cases.

2392. Chairman.—Seeing that the District Court has jurisdiction up to £25, why is it cases are brought into the High Court for lesser sums than £25?

Mr. Eason.—My conclusion would be that the commercial community have found they can get their money more quickly and effectively than in the lower Court.

2393. So that if a Dublin merchant or trader is owed, say, £5, by a person in any part of the country he can take proceedings against that person in the High Court, because it is cheaper and quicker than to take proceedings in the District Court in which the defendant lives.

Senator Dowdall.—Not cheaper.

Senator Brown.—The costs are larger.

2394. Chairman.—I am putting it that that is the position—that he can collect more quickly?—Yes, undoubtedly.

2395. In that case is it not possible even if a man did not owe a debt that it would be cheaper for him to pay than to go and defend a case in the High Court? —Surely he can get it remitted.

2396. The cost even of that may be greater than the amount. Personally, I do not think the commercial community wish to employ the machinery of the High Court for the collection of small debts. That is my personal opinion, but it can be tested through other witnesses from the Chamber.

2397. As far as you know, there has not been any abuse in that direction by the Dublin merchants?—Not as far as I know.

Mr. D. J. Cogan, representing the Chamber of Commerce, Dublin, called and examined.

2398. Chairman.—You are a member of the Dublin Chamber of Commerce?— Yes.

2399. You have heard the evidence which has just been given by Mr. Eason? —Yes.

2400. May I take it that, generally speaking, you agree with the evidence he has given?—Yes.

2401. Would you give us your own views on any points outside that evidence?—As regards number 1—the High Court—I want to emphasise as much as possible the point made in the précis, that if the present system of non-jury trial is to be continued we ought to have a Judge versed in commercial law—a man who had practised as a commercial barrister. That, we feel, is the way out on the jury question in commercial cases. As has been already pointed out, that is the practice in England. It was the practice under the old order here that certain classes of actions were tried by Judges who had special experience and qualifications in the particular line concerned. We think there would be an advantage in that. A good deal has been said already on the question of expediting judgment in undefended cases and cases in which there is agreement between the litigants. We think the Master of the High Court should have power, where agreement is arrived at between the litigants, to confirm that agreement and to give it the force of a judgment. I believe that power was taken from him under the Rules, and that he has not got it now. I am not quite sure whether or not he has the power still of marking judgment in undefended cases.

2402. Perhaps you would explain what the advantage would be of that power?— The advantage would be expedition in getting judgment. Under the old system a creditor served a writ, and when the time expired for marking judgment a solicitor had nothing to do but go into Court and get judgment marked. Now, there is very considerable delay in all that. We want the same practice carried out in the Circuit Court—that the registrar should have the same power to mark judgment in undefended and agreed cases. The registrar has that power under the Workmen’s Compensation Acts. In cases of permanent total and partial disablement, there is sometimes agreement arrived at between employer and employed that a certain capital sum, in lieu of the weekly allowance to which the man is entitled, shall be paid. The registrar in these cases has the power to sign. He has also the power to refuse to sign if he thinks that the amount agreed upon between the parties is not a fair one; he can let the case go to the Circuit Judge to decide whether the amount is fair or not. That, in many cases, is a great convenience so far as employers and employed are concerned. We want something similar in those other cases that I referred to, where the commercial community is concerned. A long time often elapses between the obtaining of the judgment and the signing of the order. I have had personal experience of that in more cases than one. In one case it took me nearly twelve months to get the order signed after judgment was given in the High Court.

2403. Can you give any reason as to why that period should have elapsed; what was the defect in the machine?— One reason was: the long vacation intervened. When the long vacation was over, there was such a glut of orders to be signed that the Judge was not able to reach this order and conduct the hearing of the cases in Court during the day. My solicitor informed me that he had his clerk down at the Court every day of the week endeavouring to get his order signed.

2404. Was this in the High Court?— Yes.

2405. Senator Brown.—Was it an action in the High Court or an appeal? —It was a case of a judgment for rent in an ejectment. I may add that it took from January to June to reach the case for trial, although it was an undefended case.

2406. Chairman.—That was one and a half years?—I lost two years’ rent over the transaction. I had a purchaser waiting to purchase the premises at a good price when vacated, but I could not vacate the premises until I got the order.

2407. Senator Wilson.—Is that a recent case?—It was in 1926-27. Of course, the Courts were glutted at the time. A great deal of litigation had accrued, and the Courts were not properly manned. At the same time, the defect is there. We had great satisfaction under the old system, where we could get judgment marked. In an urgent case, a creditor was also enabled to appoint a special bailiff.

2408. Senator Hooper.—All that was necessary was the signing of the order? —Yes.

2409. Senator Brown.—That is what I cannot follow, because judgments in the High Court are not signed by the Judge. They appear in an official form signed by one of the officers of the Court, with the seal of the Court. They are never signed by the Judge. It is very hard to understand exactly what was the cause of the delay in the case you mentioned? —Probably I was wrong in saying the High Court. Perhaps it was the Circuit Court.

2410. Chairman.—You are not quite sure whether it was the Circuit Court or the High Court?—I think it was the High Court, because it was an undefended case.

2411. Senator Brown.—You must be quite wrong about the necessity for the signing of the order by the Judge. That is not necessary in the High Court, but it is necessary in the Circuit Court?— Probably it was the Circuit Court. It emphasises the necessity for having the order signed by the registrar in the Circuit Court. I think that is a very strong point in its favour.

2412. What did you mean by your suggestion that the order might be got from the registrar in “agreed cases?” Did you mean cases in which the defendant entered a defence, but agreed before the case came to trial that a certain amount was due?—Yes. Under the present system in the High Court there would have to be a consent signed by the two parties and made what is called a Rule of Court. That is done by a single Judge sitting any morning. Do you suggest that that should be done by the registrar and not by the Judge?—What we suggest in the case of the High Court is that it should be done by the Master, and that in the case of the Circuit Court the registrar should have the power to do it.

2413. And that the Order should have the same effect as a consent that is made a Rule of Court? A Rule of Court once made is, as you know, made a judgment, and you can actually get your execution on it?—Yes.

2414. Senator Dowdall.—I take it that you have read the précis of evidence put in by the Dublin Chamber of Commerce? —Yes.

2415. You agree that the existing method of hearing appeals on the shorthand notes should be abolished?—I am strongly in favour of that. I was one of the members of the Council of the Dublin Chamber of Commerce who advocated that from the beginning.

2416. You think that the appeals should be heard by way of re-hearing?—Yes. Last week I saw where the High Court sent back a case to the Circuit Court for re-hearing. The point made was that the Circuit Court Judge had advised himself wrongly. About six months ago I saw where another case was sent back. Some time ago I read, in connection with another case, where a Circuit Judge made certain observations which were very pertinent to the case at hearing before him. Because these observations of the Circuit Court Judge did not appear on the stenographer’s notes of the evidence, the Court of Appeal could not admit them, though it was agreed that they had an important bearing on the case.

2417. The other point you have made is that the Master of the High Court and the registrar of the Circuit Court should be given power in defended cases, where the parties come to an agreement, to mark a judgment as well as in undefended cases?—Yes.

2418. You told us that the registrar of the Circuit Court now has the option of exercising that power in Workmen’s Compensation cases?—Yes.

2419. Would you make it mandatory on him to mark judgment, or would you be satisfied with merely giving him the option of marking judgments?—I would say, give him the option because, of course, he must exercise his judgment. He has done so in my own experience. I am Chairman of an Insurance Company, and we have to deal with these cases by the dozen every week in the year. Sometimes in cases where the registrar thought he would not be justified in signing the agreement, he referred it to the Circuit Judge.

2420. I would like to know if the witness has anything to say on the point made in the last portion of paragraph 3 of the précis of evidence dealing with appeals: “Where the Circuit Court Judge considers a case to have been clearly proved he might be given power to say, when pronouncing his decree, that the amount awarded must be lodged in Court if an appeal be intended”?—As was pointed out by the witness from Cork, the intention there is that if there was a case which had no merit for an appeal it should be within the discretion of the Judge to say whether the amount of the judgment should be lodged in Court or not. That would be tantamount to investing the Judge with a discretion such as that given in criminal cases. In criminal cases the Judge can, in the case of a person convicted, refuse his certificate giving the right of appeal. It was felt, of course, that if that power was exercised in every case it might work considerable hardship on some litigants who, while they might have a very good case, would be unable at the time to lodge the amount of the judgment in Court.

2421. Chairman.—Do you not think it would be rather dangerous to give a discretion like that to any Judge?—I do not know that it would be any more dangerous to give it in cases such as we are discussing than it is to give it to a Judge trying criminal cases. He may refuse to give a certificate to enable a convicted person to appeal. There the liberty of the subject is at stake. I think it is more extreme to give it in that case than in the other. In the case that I am speaking of it is a question of £ s. d. that is involved. I think that we might have sufficient confidence in the judiciary to give the Judges this discretion. If the Judge has a doubt in his mind about a case, I think he ought to be placed in the position to be able to say that he will allow the appeal to go on. My opinion of the Irish character is that it is very litigious—very fond of law. We all know people all over the country who are never satisfied with the result of actions they bring in the Courts, and not being satisfied insist on going on with appeals. I have known people myself who absolutely beggared themselves by carrying cases from Court to Court when they had no hope whatever of getting a decision in their favour.

2422. Senator Brown.—Even the best Judge sometimes thinks that he is right when he is not?

2423. Senator Dowdall.—The suggestion here is not to prevent the bringing of appeals, but merely to ask the appellant to give security by lodging the amount of the judgment in Court and not to get rid of his property during the interval that elapses pending the hearing of the appeal?—Our object in this matter is to prevent unnecessary expense on law and waste of time. Our experience has been that because of the legal procedure that has to be followed considerable delay takes place. We want to prevent, as far as possible, the public time being taken up with the hearing of unnecessary appeals. Personally I am absolutely for freedom of action in every individual case. At the same time we have got to recognise the fact that a great deal of public time is wasted because people bring appeals that ought never have been brought.

2424. Senator Brown.—What you want to do, I take it, is to prevent the lodging of appeals that it is intended will never come on, and that are purely bogus appeals for the purpose of gaining time? —Yes.

2425. Deputy Little.—Is there agreement amongst the members of the Chamber of Commerce on the method suggested by you for dealing with bogus appeals?—The Chamber of Commerce is absolutely unanimous on that. It is the view of the commercial community generally. This question has been under the consideration of the Dublin Chamber of Commerce for the last two years. We have debated the question in and out. Our membership in Dublin is about 900. We discuss these matters between ourselves. Those of us who represent the views of the members of the Chamber on the Council then get them into concrete form.

2426. I take it the way it would work out is this, that when a case is concluded and judgment has been given, the counsel or solicitor engaged would ask for leave to appeal, and the Judge would say: “Yes, if the appellant lodges the amount in Court.” But suppose that the appellant was not in a position to lodge the amount in Court, and that the Judge had given a wrong decision, would not the object of justice there be defeated?—Yes, but that is an extreme supposition. You have the litigants on both sides represented by legal gentlemen who, we must presume, will in every case be capable of putting the views of their clients fully before the Judge. The Judge will consider the pros and cons. I am quite sure that if the representatives of the person wishing to appeal put the case for an appeal before the Judge in a satisfactory way, that he will be at once able to see what he should do. In a case like that the Judge acts pretty much as a juror.

2427. But does not that defeat and wipe out the possibility of appealing?— The object, of course, is to get rid of those cases where, as has been pointed out, debtors in commercial cases lodge an appeal so as to get an opportunity of getting rid of their assets.

2428. Chairman.—Might it not also have the object of stopping genuine appeals?—Yes, in very rare cases. It is possible, but not probable.

2429. You are going on the assumption that the amount claimed for is always due?—I am speaking generally and apart altogether from purely commercial cases. I am speaking generally from my long experience of trade and commerce.

2430. Is there any other point that you would like to put before the Committee? —That is all I have to say.

(The Witness withdrew.)

Mr. George P. Cussen, Senior Justice, Dublin Metropolitan District Court, called and examined.

2431. Chairman.—You are senior Justice in the Dublin District Court?— Yes.

2432. And you have held that position since 1924? Yes.

2433. I understand that previously you were a solicitor?—That is right.

2434. You represent the Justices of the District Courts for the purpose of giving evidence here to-day?—Yes.

2435. The contract jurisdiction of the District Courts is limited to £25?—Yes.

2436. Do you suggest that there should be an increase in that amount?—I suggest that an increase might, with safety, be made in that jurisdiction, in contract cases only, up to £50. Of course, my remarks on this deal obviously with my own Court—the Metropolitan Court—and only with other areas subject to what the Justices from the country may say. It strikes me, as a result of conversations with members of the commercial community in Dublin, that they would be very pleased with an extension of the jurisdiction such as I have mentioned. We deal with a very large number of cases, about 7,000 cases of contract in twelve months, and a great number of people have abandoned the excess over £25 in order to get a decree in our Courts. A decree granted on a Tuesday can generally be issued on the following Friday. There is the further advantage in that we sit every weekday, which is a great convenience to the commercial people. I am not in favour of any increase in the tort jurisdiction. We have about 200 cases of tort every year, and our jurisdiction there only extends to £10. I have no doubt if that jurisdiction were increased we would be practically overwhelmed with a large number of fanciful or bogus claims for damages. I found that in Wexford, in the County Court in 1919—that was the period when the boycott had commenced and the Arbitration Courts were set up— there were 134 cases of tort, and all of them defended. If the limit in tort cases in the District Courts were increased, it would mean that it would be impracticable for us to run our Courts as they are manned at present.

2437. Would you say what percentage of contract cases that come before your Court would be defended?—I should say five per cent. of the cases up to £25.

2438. Senator Hooper.—In contract cases?—Yes, about five per cent. defended on the merits. In a lot of other cases people come in and ask for more time.

2439. Senator Brown.—There are about five per cent. of contested cases?—Yes.

2440. Chairman. — Would the added jurisdiction bring in a higher percentage of defended cases?—Yes.

2441. Would that be likely to cause congestion?—It is very hard to calculate that. I did my best to do so by taking the figures in the Circuit Court and I find in a Circuit Court having the same area as an ordinary District Court there were 81 contract cases between £25 and £50 and of these 13 per cent. were defended. You might take it that the same would be the percentage in our case.

2442. Do you find that a number of cases within the jurisdiction of the District Court goes to the Circuit Court?— Yes. I could not give the numbers, but I know from the enforcing orders that a good number go to the Circuit Court and a small number to the High Court.

2443. Could you give the reason why that is done?—I could in some cases. Take the case of people who lend money. They are not treated with the same severity in the Circuit Court as in our Court. For instance, in undefended cases, where the moneylender says he lent so much, I feel bound to look at the promissory note and if I find he did not lend the amount on the face of the promissory note I make him recalculate his interest on the amount advanced. They do not like that and in a number of cases they go to the Circuit Court.

2444. You mentioned that a small number of cases go to the High Court. What is the explanation of that?—It is very hard to find an explanation but possibly the original claim was for more than the jurisdiction of the District Court. I see that sometimes when enforcing orders of the Circuit Court or the High Court. Possibly the amount was more.

2445. I am taking cases where the original claim did not exceed the jurisdiction of the District Court?—I do not know. I never see the original documents.

2446. Would you say that cases within the jurisdiction of the District Court should be confined to the District Court? —If you ask me do I favour that, I say I do.

2447. I think you said earlier that the decrees of the District Court are issued rapidly?—Yes.

2448. So that from the point of view of having these issued expeditiously, there is nothing to be gained in the Dublin District Courts by taking cases from the jurisdiction of that Court to the higher Court?—There is nothing to be gained so far as the District Court is concerned. The decree is issued practically at once.

2449. Now, on the question of tort. The jurisdiction of the District Court is limited to £10. I understand there are certain types of cases that are excluded? —Yes.

2450. You do not favour increasing the tort jurisdiction?—No. I suggest it should remain as it is.

2451. Is not £10 a small figure?—It is very small.

2452. You are satisfied that if the tort jurisdiction were increased, it would lead to very great congestion?—Yes. You could not do it as the District Court is manned at present. The total number of cases dealt with last year in the Metropolitan Court was appalling. I have the figures here, as you mention the point, and I think it would be impossible to manage if they were much increased. In 1925 there were 36,000 cases disposed of in the Metropolitan District Court; in 1926, 40,000; in 1927, 50,000; and in 1928, 50,800. I have not yet got the figures for 1929.

2453. That is for the Metropolitan Courts alone?—Yes.

Senator Dowdall.—That includes all sorts of cases?—Yes.

2454. Chairman.—Three Justices?— Yes.

2455. Chairman.—That is 17,000 a Court. The jurisdiction covers cases of ejectment where the rent does not exceed £27 per annum. You are in favour of raising that?—Certainly, for the city of Dublin. It would be a gain to the community if the increase included ejectments up to 15/- a week. That would make it up to £40. There are very few defended on the merits. Nearly all are defended on the question of time. Every defendant wants time to pay the arrears of rent.

2456. You also suggest that Section 77 C of the Courts of Justice Act, 1924. should be amended to make clear that the certificate for dancing licences should be granted in a District Court?—Yes. I am informed that certain of the Circuit Judges say that under the 1924 Act they have no power to give dancing licences. Here in Dublin dancing licences and renewals are granted by the Circuit Court Judge and extensions are granted by us. We have some doubts as to whether we have any power to give extensions. It would be more convenient if one Court dealt with both the annual renewal and the extensions. For instance, the ordinary publican’s licence is renewed for a year in the District Court; applications for exemption orders and occasional licences are granted also in the District Court, and I cannot see any reason why the renewals of the dancing licences should be dealt with by the Circuit Court Judge and the applications for extensions dealt with in the District Court. I think in every case in Dublin except one, dancing licences have been granted until twelve midnight. The Judge says to the applicants, “If you want an extension of those hours, go to the District Court.” In one case at least a dancing licence was given without any restrictions at all. We have to make some sort of a practice rule, and we never, except on very rare occasions, give extensions into Sunday morning. But quite recently, at the Mansion House, a dance was held until 3 o’clock on Sunday morning. That was done under their annual licence. I spoke to the Circuit Judge, and he told me that he did not put any restriction on it because he did not think that the Mansion House would be used for any purpose except a proper one. It seems to me that under C of that Section that all certificates should be granted by the District Court except certificates for new publican’s licences.

2457. You are also in favour of Justices having power to extend the hours in connection with the sale of intoxicating liquor?—Yes. We have that power at present.

2458. Is it clear?—We have no doubt about our power to extend the hours for selling drink.

2459. Do you consider that there are certain jurisdictions which might now be transferred to the District Court?—I do. There is a section giving us the old jurisdiction of the magistrates and of Divisional Justices in the city. The Justice in the country cannot use the jurisdiction given to the Justices under the Dublin Police Acts of 1842 and a couple of amending Acts unless the defendant resides in the metropolitan area. A man illegally detains another person’s goods. Under the Act of 1842, we make an order ordering the defendant to deliver up these goods or to pay their value, but we can only make an order against a person residing in the metropolitan district. It follows from that that a Justice in the country cannot make a similar order, and there does not seem any reason why a person in Cork or in Limerick should not be ordered to give up the goods which the Justice holds he illegally detains. There are other points which deal with criminal matters—for example, attempted suicide. We can deal with that similarly, but in the country they are obliged to send a person forward for trial. I admit that is not within the terms of reference of this Committee.

2460. The District Court has power to commit for contempt. That is so in criminal cases. You think it is desirable that the Court should have it?—I think it is essential. Supposing a defendant became boisterous in a Civil Court, except on a charge of disorderly conduct, we cannot deal with him.

2461. Senator Brown.—You can remove him?—I doubt if we can, in our civil Courts. There is a doubt if we can at all deal with him in the civil jurisdiction.

2462. Deputy Little.—He is not committing trespass?—No.

2463. Senator Brown.—On the subject of the dancing licences, of course, you in Dublin have your District Courts sitting every day?—Yes.

2464. You sit for civil business once a week?—One of us.

2465. The Circuit Court in Dublin is practically sitting all the time, so it does not matter in Dublin which Court has to give the extension order?—We sit all the year around, except Sundays and two other days, Christmas Day and Good Friday. The Circuit Court does not sit through the Long Vacation, and at other times.

2466. Therefore, it would be more convenient if you had the right to give the extended hours?—I think so.

2467. In the country, the District Court sits oftener than the Circuit Court. That is really the reason of the present state of the law?—Yes.

2468. Therefore, you would like to get the original dancing licences also, so that it would be all within the one jurisdiction?—Yes.

2469. There is another matter which is, perhaps, even more important to the ordinary law-abiding citizen than the power of committal. You have not in the District Court a system of pleading or counter-claim?—We have no such procedure.

2470. Does that mean that a defendant who is sued in your Court and has claimed against his opponent, has got to issue a cross-process?—The Rules Committee have advised the Minister to make certain rules.

2471. You may take it we have not seen these?

2472. Are these the usual conditions which used to prevail in the old County Court in England, and which prevail in the High Court?—Yes.

2473. Do you think that would be an important addition to your practice?— Yes. The reason I mentioned it at all was this: the Rules Committee were advising the Minister. You remember there was a long controversy in the County Court with regard to Rule No. 2 of the orders of 1890 in connection with counter-claims. Judge Johnston of the old King’s Bench held that the rules were valid, but it was afterwards doubted in Osborne’s County Court Practice. Osborne said: “It does not matter, because all the High Court Rules shall apply to the County Court.” We clearly would not have the advantage, as the Judicature Act does not apply to us.

2474. Legislation ought to give power to the Rule-making authority to provide for the procedure?—We would very much prefer that the power should be embodied in a Statute.

2475. That is, you would rather have the procedure in an Act than in a Rule?— Yes, there are so many procedures required to amend a rule.

Senator Brown.—I think there is a good deal to be said for that.

2476. Deputy Little.—Under the Enforcement of Orders Act, do you find, when making an order, that owing to the fact that the Enforcement of Orders Act is such a severe remedy you are very much slower in making an order than you would otherwise be?—Yes.

2477. Can you suggest any other way in which the same remedy could be obtained in a less extreme way?—The only suggestion I can make is one which we have adopted by an office rule of our own. There are three of us, and we always insist that the same Justice shall deal with the same defendant, no matter how many people apply for committal orders. Otherwise, obviously gross injustice might be done. I might make an order for a defendant to pay 10/- a week. The next week one of my brother Justices might make an order that he pays the same sum in the case of another plaintiff. We avoid that as much as we can.

2478. Are you not obliged under certain circumstances to make an order to put a man in jail for non-payment?—Yes.

2479. Do you think you should have the right of discretion?—We hold we have. We never make an order if we are satisfied that the man at the time finds it impossible to pay. It has never been questioned. As the point is mentioned, it might be desirable to put into any Act suggested a section so that not alone should we be satisfied as to the means, but we must be satisfied that he has means at the time we commit him. We might be satisfied that he has means when making the payment order, but it frequently happens that he has not means when the application for committal has to be made. So far, no injustice has been done in our Court. A man might be employed, but between the date of the payment order and the making of the order for committal he might have lost his employment. But we never do make the order in such a case. At the same time those who follow us might not adopt the same procedure, and the Committee might think it wise to recommend that evidence as to means might be given by the defendant before us on the application to commit. The onus is on the defendant to show that he has not the means to pay.

2480. Deputy Little.—Supposing a different point of view was taken by the Judge, it might lead to a form of blackmail?—I would not call it blackmail, but hardship. The relatives might pay to prevent his going to jail. The only amendment I suggest is, if there is any doubt in the minds of the Committee, that our procedure should be followed always, that it would be made statutory to hear the defendant on his means on an application to commit him. At the moment we are not bound to do so.

2481. In certain circumstances, are you not obliged to give “body warrants”?— What we understand by body warrants are merely orders to the Governor to bring a prisoner down.

2482. What I have in my mind is a complaint which I think you made on a different Commission about “body warrants,” and that you were obliged in revenue cases to commit people to jail?— That is so.

2483. Would it be better if you had a discretion in that matter?—Oh, yes. Of course, that does not, unfortunately, perhaps, come within the terms of reference; it is on the criminal side of our Court. There is another matter, however, which your remarks suggest to me, and which I admit I did not think of before. If a collector of income tax sues for income tax on the civil side of our Court, we are obliged under the Rules to issue a warrant or a decree, which corresponds very much to what you describe as a “body warrant”—that is, if distress fails to recover the money the man must go to jail until the Revenue Commissioners wish to release him. We struggled very hard against allowing such a provision to appear in the Rules, but unfortunately it is in the Rules; the Revenue Commissioners insisted on it. Of course, we would be very much relieved if the Revenue Commissioners were exactly in the same position as any other person suing for a debt, that is, distress only and not imprisonment.

2484. There is one question I would like to ask you which does not really arise out of your evidence, but out of other evidence, about appeals in other Courts. Have you had much experience of appeals from your Court? Do you have to state a case, or what is your method?—The appeal is to the Circuit Judge by way of a re-hearing.

2485. But are there not cases also where you state a case to the High Court?—Yes, under a section in the 1924 Act I may state a case, on application or of my own motion, for the opinion of the High Court.

2486. Do you think that that works satisfactorily?—Oh, yes. We are very glad to have that relief. It is only on a law point. When we are in doubt as to our own knowledge of the law we can state a case for the High Court. It is a great relief. Some of us have stated cases without being asked by either side. It is under an old statute regarded as an appeal. That is only on law; on fact the only appeal is to the Circuit Judge, and it is just a re-hearing, with all the witnesses examined again. That works very well as far as we are concerned.

2487. Senator Dowdall.—Sometimes you might be asked by either side to state a case, or you might state a case of your own motion. How often does that occur? Does it occur frequently?—Yes, very frequently.

2488. You gave us figures to show that you had several thousand cases in a twelve-months. In how many of these would cases be stated?—I did not work out the number, but you might take it that there would be about ten in a year. Last year there were more than ten, but it was an exceptional year.

2489. Of that ten, roughly speaking, in how many cases would you state a case on your own?—I think there were only two cases stated at the request of either side.

2490. Senator Hooper. — You favour the exclusive jurisdiction of the District Court up to £25 in contract?—I do.

2491. I would like you to elaborate your reasons for that?—If the parties go to the High Court, we will say, there is undoubtedly very much more expense on the defendant. He has to bring his witnesses up, perhaps from a remote district. If the decree is given against him, of course he cannot get the expenses of his witnesses.

2492. We have had evidence that quite a number of cases within your jurisdiction did go to the High Court, and it has been explained to us that it would be a hardship to take a plaintiff down to a distant District Court, so that would counterbalance your argument as to the hardship on the defendant?—Well, does it? When the case is undefended there is no hardship on the plaintiff, because he proves a debt by affidavit. Of course, if it is defended I admit he has the expense of taking his witnesses down to the country. I believe there is a hardship on him there, and it is a question then as to which is the greater hardship.

2493. Do you think there would be a difference in the case of cases arising in Dublin and those arising in the country? —I do.

2494. So that what you say applies to Dublin mainly?—I think it applies to all, with different force, of course. The expenses are, perhaps, even more in the local Courts. Take County Donegal: Suppose you sue a man residing in Donegal for £24 and the case is tried in the High Court. He is put to very heavy expenses bringing his witnesses up.

2495. But there is the opposite case of the man in Dublin who might have to go down there?—I see the force of that, of course.

2496. You favour also the raising of the jurisdiction to £50 in contract cases? I take it that that also applies to Dublin?—I recommend it without hesitation for Dublin, and, subject to anything my brother Justices may say, for the country.

2497. Have you any reason to think that the Dublin business man would favour that method?—I have.

2498. Because we have had evidence that they were quite against it?—I must say that I am surprised.

2499. I thought you would be surprised at that. Would the addition of that jurisdiction to you mean serious congestion in your Court?—No, not for contract up to £50. We could handle that.

2500. You think that the three Justices in Dublin would be able to handle any increase in business arising from that?— As we stand at present we could handle it. Of course, if a great deal of other jurisdiction were put on us, we might not.

2501. In regard to ejectment claims, can you now hear claims for arrears of rent with the ejectment claims?—We can, and we do.

2502. Is a separate process necessary? —No, the landlord proves so much due, the defendant either admits or denies it. We find the amount due on the ejectment process, and we make an order that the defendant pays so much per week or per month, as the case may be.

2503. In the matter of overholding would you give a similar answer?—Well, of course, every case that we have, except a case for non-payment of a year’s rent, which is very rare, is in fact for overholding. Under the 1927 or the 1928 Act we cannot hear a case for ejectment for non-payment of rent unless there is a year’s rent due. The landlord serves notice to quit and demands possession, and it then becomes a question of overholding.

2504. So that under one process you can really try three issues?—That is right.

2505. Ejectment, arrears and overholding?—That is right.

2506. Senator Brown.—What form of decree do you give in a case like that?— A decree for possession. We put a stay on it if the defendant pays so much per week with his weekly rent—“This decree shall not be executed.”

2507. You told us about committal under the Debtors Act, and you would be strongly in favour of making it your duty to investigate the means of the debtor at the date of his committal?—I do not like to put it quite so strongly as that, because we do so whenever we feel there is a moral obligation on us to do so, but everybody might not take the same view.

2508. When a debtor is committed in your Court, how long does he stay in? Is it six weeks?—No, we have various periods up to two months. We never go beyond two months. I think three months is the maximum. I cannot remember whether it is three months or two, because we never commit for more than two months.

2509. There would be no danger of a man being in for an indefinite time?—No.

2510. Deputy Little.—In respect of instalments, he can be put in several times? —The Judges in the High Court differed on that. There were two contradictory decisions on it.

2511. Senator Wilson.—There are great complaints with regard to the machinery of the Circuit Court in respect of the marking of final judgment, and it was suggested that the Registrar of the Circuit Court should get power to mark. If the jurisdiction of your Court in contract was raised to £50, would you not need to have some machinery for marking final judgment?—We have jurisdiction in Dublin to mark judgment in the office without entering it in the Court list at all—what is called judgment by default.

2512. Does that apply to the District Courts all over the country?—No, it is applied only by the Rules to our district. It can be extended to any district if the Justice operating in the particular district asks for it. Of course, the right to get judgment marked by default or not depends very much on the capabilities of the clerk who marks the judgment. You must remember that when it is done it never comes before the Justice at all.

2513. On the capabilities of the clerk? —Certainly. If judgment is marked in the office we must exercise great precaution. We have the Rule and we must see that no injustice is done to the defendant. We must see whether he made an offer to pay by instalments, and whether the plaintiff accepted or refused such instalments. The decree depends on that. You want a competent clerk to deal with that, as he decides whether or not the case is one for marking judgment in the office. If he has any doubt about it, he puts the case in the Justice’s list. We are the only Court that adopted that procedure. Other Courts have refused to do it, as they say that it is casting too much work on the clerk.

2514. Senator Hooper.—Is not that giving judicial power?—Of course we take the precaution to have the decree always signed by the Justice.

2515. Senator Farren.—With regard to the question of committals, supposing a person is sued for a breach of the law by the Revenue Commissioners, is fined and does not pay, the Revenue Commissioners have power to commit him to prison?—Yes, as long as they desire.

2516. Is there any specified period for which he can be kept in prison; can he be kept there as long as the Commissioners desire?—Yes.

2517. Is that desirable?—As I pointed out before the Committee dealing with the Betting Act, in 1879, in England they found it necessary to amend the law in that respect. In England you will find that a certain number of months, I think six, is specified as the maximum for committal. The amending Act was not extended to Ireland.

2518. You think that there ought to be some specified period during which a person could be kept in prison?—Yes.

2519. Chairman.—Is there any reason why in those cases the persons involved should not be committed in the ordinary way by a Justice?—We have no discretion. I fought with the Commissioners in the famous case called “Murphy’s Case.” A certain periodical plastered the walls of the city with a poster “Shall Murphy rot in jail?” I was put down as the person who was keeping Murphy rotting in jail. He was fined £100 for a breach of the Entertainment Tax. I had power to remit the penalty to £25 but, as I said that I did not think he could pay more than £12 10s., I left it to the Commissioners to remit it to that amount. The Commissioners refused to do so and committed him to a fine of £100. I protested when signing the warrant and pointed out that in any case the amount should only be £25. They said “No, we know far more about this man and his position than you do and we insist on the £100.” Murphy’s friends went to Mountjoy and tendered £12 10s. but it was refused. Murphy remained in jail—I forget for how long—and was subsequently released without paying anything. I do not see that there was any gain there.

2520. Senator Farren.—He was kept there at the expense of the State?—Yes. I do not see why the law should not be at least as moderate here in regard to this class of debts as it is in England. I think the matter arose out of football, which was then under the Entertainment Tax.

2521. In regard to extensions for dancing licencees, I understood you to say that you are opposed to granting extensions running into Sunday morning?—Yes.

2522. Is there any reason why Sunday morning should be selected, because there is a large proportion of the population who cannot afford to dance after midnight on any other night except Saturday. I am referring to manual workers. Would it not be unfair to them if they could not obtain an extension on a Saturday night when other people can get it on other nights of the week?—Yes. Whenever an application is made for an extension until Sunday morning for a class who cannot take their recreation at any other time we give it, but only to a moderate hour, only to two and not to six a.m.

2523. That answers my question perfectly?—Of course, we have full power to give it.

2524. Deputy Little.—Have you formed any view on the question of appeal from the Circuit Court to the High Court from your own experience of appeals from your Court to the Circuit Court?—I have, and I can give it if the Committee so desire.

2525. Chairman.—If you yourself desire to do so you can give it?—I have given the matter considerable thought. I had considerable experience of the old system, and the conclusion I have come to is that experience shows that shorthand notes are taken in a very large number of cases unnecessarily because, of course, the percentage of cases in which there is an appeal must necessarily be few when you consider the number of cases with which the Circuit Court deals. To take an appeal on the shorthand notes seems to me to be open to this grave abuse, namely, counsel—very properly, of course—will try and manoeuvre his case in such a way as to present a picture by means of the written evidence which will favour his client’s view. The Judge, of course, can only rely on the notes and, I understand, that for all practical purposes—Senator Brown will correct me if I am wrong—the appeal on the notes is only on a question of law.

2526. Senator Brown.—Practically?— Therefore, on a question of fact both parties are deprived of the right of appeal. I can conceive cases where an appeal on a question of fact would be necessary. My view is that the appeals ought to be heard, as they were in the old days, by way of re-hearing. That, I presume, would have to be done by a Judge of the High Court.

2527. Or two?—Or two. I am aware that it would be impossible for that to be done at present unless the High Court were further manned.

2528. Even under the present system of hearing appeals it is undermanned?—The community would not feel aggrieved if they had a right of appeal, not merely on questions of law, but on questions of fact.

2529. Senator Hooper.—Do you think that there should always be an appeal on a question of fact?—Yes.

2530. Some witnesses who came here held that there should not?—In the old days when a case was tried at Assizes you could move in the High Court for a new trial. One of the grounds in that connection was further evidence, but that seems to me to be shut out under the present system.

2531. It was pointed out to us that there is no such appeal in England or in any other country?—I am not aware of that, but I take it to be so.

2532. That was stated here more than once?—One would want to examine that very carefully. If it was a question of fact decided by a jury there would be something in it, but most Circuit Court cases are not decided by a jury, but by a Judge. Then there is the question of further evidence turning up. That is a very serious matter, and, so far as I know, it could only be dealt with by a re-hearing.

2533. Senator Brown.—Before you go on to deal with the question of pensions, you complained very naturally of the long delay in the making of Rules for the District Court?—I did not complain.

2534. At all events you called attention to the fact that there was unnecessary delay. Was that due to the way in which Rules must be made through a Rule-making Committee?—Yes. The Committee is a fairly large body, and each man has his own view. They often differ, and it takes a long time to get agreement. They are a very scattered body. One member lives in Donegal and another in Limerick. It takes a long time to get Rules through.

2535. Would it be a wise thing to alter the mode of Rule-making by putting it into the hands of the Minister who would, of course, take expert opinion if he required it, and still require the Rules to be submitted to the Oireachtas; would not that quicken the thing?—I agree.

2536. They have spent a long time in producing Rules both for the Circuit Court and the District Court?—Yes. Even without a Committee to advise I would favour the Minister making Rules.

2537. The Minister would, of course, get expert advice when he required it?— Yes.

2538. It would quicken the thing if Rule-making had not to be worked through a committee?—Yes.

2539. Senator Wilson.—If the Rules are made there should be no necessity to revise them. Is there necessity to have the Rule-making Authority going on all the time?—It goes on perpetually under the Act until we die.

2540. Are the Rules not there now, and what is the use in revising them?—Experience shows that the Rules require amendment in a great many cases. Last year we called the committee together to deal with a number of cases. We elaborated a number of Rules and suggested that they should be put before the Oireachtas, but that has not yet been done.

2541. Deputy Little.—Have there been many amendments?—Yes. My brother Justice, Mr. Collins, spent hours and hours going through with meticulous care, the forms in the proposed new edition of the Rules. It involved much labour, and we would be glad to be relieved of it.

2542. Chairman.—Now in regard to superannuation rights for District Justices, I understand that the Justices are not satisfied with the present position?— No, we feel very sore over that. Those of us who first came into the service were originally appointed Resident Magistrates under the Provisional Government in October, 1922. We then could keep our finger on the business which we gave up in order ta take up the work. In March, 1923, under the Temporary Justices Act, we were made Justices of the District Court and were obliged to sever connection with our business. We were Judges under the Constitution as everybody holding judicial office has the status of a Judge. When the Bill of 1924 was introduced it was too late to make any effectual protest against what we considered to be an injustice. We admit that we were treated fairly as regards tenure of office and as regards salary but we consider that we were simply let down as regards pensions. We were treated as Civil Servants. Our pensions are referrable to the Superannuation Acts. Not a single one of us, who were in office at the date of the 1924 Act could qualify for full pension. That of itself we thought an injustice. In some of our cases the injustice was very great. Mr. Gallagher, who will be giving evidence after me, if he retires next month, would not be entitled to any pension whatever. I admit that the Department of Finance might give him a gratuity, but what that Department gives is not anything to rely on, unless you are entitled to it as of right. If he retired after ten years, as may be the case, because under the Act the Chief Justice has power to extend his time, he would get a pension of about £135 a year. I would on retiring be entitled to a pension of in or about £210 per year at the age of 70. As I have said, no single Justice can reach the Civil Service maximum of two-thirds. We think we were treated with grave injustice in that matter. Some years ago we prepared and put before the Minister of Justice at the time, Mr. O’Higgins, a memorandum explaining the position and Mr. O’Higgins admitted that as far as the senior members were concerned an amendment was necessary. The Secretary of the Department of Justice was present at the interview where that was said. It was then put to the Department of Finance, and although we felt that our case had been established, that Department refused to recommend any alteration in our pension rights. There we stand. I could not conscientiously advocate any increase in the jurisdiction of the Justices as long as their pension rights are such as I have described. It is not a question of a man who has his retirement in view trying to favour a particular class of the community with a view to making money afterwards. It is what the public would think. If the public know that a man acting as Justice is going to retire on a pension of £150 will they not say: “This man is not an independent Judge. Is there not a danger that he is playing up to a certain class of people; if he is a solicitor and if he is a barrister may he not be playing up to the solicitors?” It is obvious that a man with a salary of £1,000 a year would find it difficult to live on a pension of £150. Yet he is expected to live on it and the temptation is so big that the public will naturally say that he is not independent at all. I take a very serious view of it. I absolutely fail to see why we were treated in that way. The Circuit Court Judges or the Judges of the High Court who, in one sense, are the Judges of the rich man, are given a “two-thirds” pension after fifteen years’ service. We, the poor man’s Judges are given, in the case of two at any rate, a negligible pension. The suggestions that were made in our memorandum were, that those of us who came in in 1922 on reaching retiring age —we do not ask for the same treatment as the Circuit Court Judges who get their full pension of two-thirds after fifteen years—should be entitled to full pension—i.e., ⅔rds of our salaries. That seems to me commonsense and only bare justice. We did not know what we were going to get when we joined. We suggest that in other cases a Justice who retires should be entitled on retiring to added years. Down to some years ago a Stipendiary Magistrate in England or a Divisional Magistrate in Dublin, was entitled to add a certain number to his years of service when he retired. That was abolished in 1914 on a Report of the Civil Service Commission. Within one year, in 1915, it was found necessary to pass an Act enabling the Government to continue that inducement to professional men to become Stipendiary Magistrates in England or Divisional Magistrates in Dublin. The Act of 1915 restored the principle of added years. In 1919 the Superannuation Act was passed in England and in a section that conveyed nothing to the lay mind, that privilege was taken away. When the Act of 1924 was passed I admit candidly that I did not know that the principle of added years had gone in 1919. I am quite certain that the Department of Finance knew it. Therefore, our recommendation or our suggestion is that the men who came in in 1922, if they serve to the retiring age, should get a two-thirds pension and if they do not so serve, or if they were not in in 1922, that they should be entitled on retiring to the principle of added years. I think you will find that all Judges are quite prepared to serve to a later age than, in the case of Country Justices, the age of 65 and, in the case of the City, the age of 70.

2543. Senator Brown.—How long must a District Justice serve for full pension? —He gets one-eightieth for every year’s service—forty years’ service for full pension.

2544. Then practically none of them can attain full pension under the present system, because he must have spent seven years in the practise of his profession before he could be appointed?—He could barely get it.

2545. If he is called to the Bar or admitted a solicitor at 21 he could just get it, and no more?—Exactly.

2546. And I take it that very few would be appointed District Justices after such a very short experience in the profession?—Yes.

2547. Does that mean that no District Justice can get full pension?—Unless he were appointed at 21, as Senator Brown has pointed out.

2548. Senator Dowdall.—You mentioned a case you put before the late Mr. Kevin O’Higgins?—Yes.

2549. And he sent you a view which the Department of Finance afterwards turned down. Have you furnished a copy of that?—I have given the secretary all the information. We did all we could before we were forced to bring the matter before the Committee, but we were always blocked by the Department of Finance. Everybody in an official position, except the Department of Finance, admitted the justice of our claim.

2550. Senator Hooper.—Is it your suggestion that a man should get full pension on reaching the retiring age?—I suggest that the men appointed in 1922 should, if they reach the retiring age, be entitled to full pension, and that in any other case they should be entitled to added years—say about ten years. That means that a man serving for fifteen years would get a pension based on twenty-five years of service.

2551. Deputy Little.—Is there any reason for making a distinction between the treatment of Judges in the Circuit Court and District Justices?—No. I fail to find any reason why they treated District Court Justices as civil servants and Circuit Court and High Court Judges in a different way. Of course, we have the status of Judges under the Constitution. Why our pensions should be on the plane of civil servants I fail to understand.

2552. Chairman.—If your suggestions were adopted how would the District Justice stand relatively with the Circuit Court Judge?—He would not be as well off, because a Circuit Court Judge can retire if he likes after fifteen years and get a full pension of two-thirds. Our suggestion is that we should not get the full pension until we reach the retiring age.

2553. Senator Farren.—Do I understand you to say that, apart from the metropolitan districts, the retiring age of a District Justice is 65?—Yes.

2554. Would the District Justices be in favour of an extension to 70 years in each case?—They are, I believe, unanimously in favour of 70 for the men in the country and 75 for the men in the city.

2555. Is there any reason why the retiring age in the metropolitan area should vary from that in other districts?—There is.

2556. On account of travelling?—Yes. In the metropolitan area we do not travel. After 70 years it might be a little difficult to get a man to travel.

2557. That is the reason for the difference?—That is the only reason.

2558. You suggest that the retiring age for the metropolitan Judges should be 75 and the rural Justices 70?—Yes, subject in all cases to physical fitness.

2559. In addition, you would be satisfied if the District Justices had the same conditions with regard to pension as the Circuit Court Judges?—Yes.

2560. It appears to me that a good case can be made out for that. They are both acting in the capacity of Judge, and if a man serves fifteen years he should be entitled to the same pension rights as the Circuit Court Judge?—Well, this is a personal matter, and I would like to mention that that would leave two men out. It would leave me out by a few months. I would not have the full fifteen years. It would leave Mr. Gallagher out by a few years also.

2561. Did I understand you to say that the Chief Justice had power to extend your time?—Yes, but only until we qualify for a pension.

2562. Would that not meet the point? —The Department of Finance takes the view that that means the minimum pension. This is a very personal point with me. The Department of Finance takes the view that that only means extending the service until a man has served a certain number of years to get the minimum pension. That would be ten years. You must serve ten years before you are entitled to any pension under the Superannuation Act. When the Chief Justice proposed extending Mr. Gallagher’s service the Department of Finance took the view that it could only be extended for ten years, from October, 1922. The Chief Justice took the view that it should be extended from March, 1923. I held a third view, but that is a different matter. These two cases could be easily dealt with.

2563. Senator Wilson.—Is it not the underlying principle in regard to a Civil Service pension that it is merely deferred pay?—Yes.

2564. You are satisfied with the pay? —Yes.

2565. Then there is no deferred pay in the case of the District Justice?—No.

2566. Therefore, the question of deferred pay does not arise?—No.

2567. You think that a man should be allowed to carry on for 40 years in civil life, have the emoluments of civil life, then work for 12 or 15 years as a Justice and get a full pension?—That applies to a pension when it is calculated on deferred pay like a Civil Service pension. Until the Act of 1924 was passed there was no question of calculating a Judge’s pension on deferred pay. A pension to a Judge is a pension given for the benefit of the public.

2568. In the beginning it was not intended that the District Justice should be a Judge. Under the temporary Act there were 36 appointed?—33.

2569. It was only on the passing of the Ministers and Secretaries Act, 1924, or some other Act subsequently that this question of whether a District Justice was a Judge or not, was defined?—It goes much further back than that. It goes back to the Constitution. When the Constitution was passed it provided for the establishment of Judges of first instance who were appointed in March, 1923. We were appointed Judges of the District Court, and it was held then that we had the status of Judges in consequence of the Constitution.

2570. Chairman.—This is a matter with which, perhaps, we should be more conversant than you. Can you tell us in what year the salaries of the District Justices were put on the Central Fund?—I forget the year, but they are on the Central Fund for two or two and a half years.

Senator Wilson.—Under the Ministers and Secretaries Act.

2571. Chairman.—It was much later than 1923?—Yes.

2572. Was it because of the fact that they were not recognised as Judges that this section was put into the Act, and that they were treated for pension purposes on the same level as civil servants? —It is very hard to get at the mind that put that section in, but I do not think it was. I protested at the time. My view is that that section was drafted in the Department of Finance and was adopted by whoever had charge of the Act in the Dáil No one took much interest in us poor people then, and we had not the same friends that we have now, when it passed.

2573. I want to put it this way, that for a number of years the District Justices were not recognised as Judges?—By some people.

Senator Wilson.—By the Parliament.

2574. Chairman.—They were treated differently in this way, that their salaries were not paid out of the Central Fund the same as the salaries of the other Judges? —I know.

2575. Therefore, there was a difference? —I put it this way. We, of course, put up opposition when that occurred, we considered that we had the status, and we came to the conclusion, rightly or wrongly, that if the House liked to put the pension of any Judge on the annual Vote, instead of on the Central Fund, that Judge would have no power to protest. We may have been right or we may have been wrong, but we felt that we had no power.

2576. Senator Dowdall.—Did you follow the proceedings of the Senate when the Bill was going through dealing with the status of the District Justices?—I read them.

2577. Can you recall a discussion that took place there, where Lord Glenavy and Mr. Kevin O’Higgins insisted that District Justices should have the status of Judges?—Yes.

2578. That is considerably more than two and a half years ago?—Yes, in 1923.

2579. Senator Hooper.—Am I right in thinking that you do not claim that District Justices who had served 15 years should be entitled to two-thirds pension? —No, all I suggested was that District Justices serving to the retiring age should get two-thirds pension.

2580. No matter what age when appointed?—Yes. I have looked at it that a man took office in 1922.

2581. The original men?—Yes. I stated with regard to any other men that, at least, they should be entitled to the principle of ten added years.

2582. A man, say, of 40, he would have to serve 25 years and would be entitled to 35?—Yes.

2583. Chairman.—When the District Justices were appointed, even in 1922, they did not know what their position would be, or whether they would be kept in office. Apart from the other reasons, at the time there was no security?—No security of tenure. We held on, as we were entitled to, to the financial side of our business until March, 1923. Then I think all of us took the conscientious view and felt that we were obliged to let go because, under the Constitution, we were Judges, and could not have a financial interest in our business.

2584. Although things were not very secure even in March, 1923?—That is so.

2585. I would like to get to the bottom of this matter. Can you give any reason why the District Justices were treated differently, as regards superannuation and removal, to the other Judges?—Simply, economy. You will remember that in 1923 the contention was that the new procedure would be much cheaper than the old. The salaries put into the Bill were on the low side and had in fact to be increased. The Circuit Judges instead of getting £1,500, as in the original draft, got £1,700. Some of the High Court Judges got more than was in the original draft. We were in the last place, where the little squeeze could be put on by the Department of Finance, and the squeeze was put on. With regard to the question of removal (Section 73) I do not quarrel with that, as there are a large number of men—35 in all—and they are a long way from Dublin and from their professional brethren. I think it was excusable to put in a provision such as that. It is a reasonable provision. It deals with misconduct certified, I think, by the Chief Justice and the Attorney-General. I do not quarrel with that.

2586. Does not that weaken the position of the Judges and their claim to equality? —I wonder does it.

2587. By what it implies?—In the old days a King’s Bench Judge held office until there was a petition of the two Houses to the King to have him removed for misconduct.

Senator Dowdall.—That is so in England still.

Deputy Little.—I was under the impression that the High Court Judge could be removed also in this country.

Senator Wilson.—There has to be a petition.

Deputy Little.—By both Houses?

Senator Wilson.—Yes.

Deputy Little.—The same as in England.

Witness.—We do not quarrel with that.

2588. Deputy Little.—In England, Judges can be continued in office up to a very old age, and some of them do extremely good work, such as Lord Halsbury?—Yes.

2589. The wonder is why the procedure should not be the same here, seeing that some of these Judges are the best Judges?—It is economy. As somebody said the other day, it is not in the public interest to have young retired Judges going about playing golf at the public expense.

Chairman.—You will not play very much on £150 a year.

2590. Senator Dowdall.—And it is a scandal that he should go out on such a pension?—That is so.

Chairman.—Thank you very much, Mr. Cussen, for your evidence.

(The Witness withdrew.)

Mr. C. J. Beatty, District Justice, called and examined.

2591. Chairman.—I understand you are Justice for District No. 11?—Yes. I must apologise for sending in such a short précis of evidence, but, unfortunately, I was very rushed. The only thing I dealt with was the question of the extension of jurisdiction in contract and in tort.

2592. You were not here to hear Mr. Cussen’s evidence. I take it you know the evidence that he gave, generally?— Yes.

2593. And you are in agreement with it?—Yes. I consider my district, Meath and Westmeath, as the average district of any District Justice. I am thinking of the average amount of work. Some of my colleagues have more to do than I have, and some considerably less. I understand that will be levelled up, and that a redistribution of the areas is contemplated.

2594. I want to get some answers from you for the purposes of record. You were called to the Bar in 1911?—Yes.

2595. And you were appointed a Justice of the District Court in October, 1922?—Yes.

2596. You assisted in the establishment of the District Courts?—Yes.

2597. I understand you were a District Justice in several counties?—I was in Clare, Limerick, Kerry, Cork, Sligo and Roscommon, Cavan, Leitrim, Longford, and now Meath and Westmeath.

2598. You had experience over a very wide area?—Practically the whole of the Saorstát.

2599. I think you mention in your précis that you are against any increase in tort jurisdiction?—I am very much against that.

2600. As it would overload the Court? —Absolutely. In reference to that, I would point out that the number of cases decided in my district last year was 4,038.

2601. Senator Brown.—Civil cases?— Every class of case—civil and criminal. Of these, 2,866 were criminal and summary cases; 907 were civil cases, and 265 dealt with licence renewals, licence transfers and exemption orders. Of the 907 civil bills dealt with, 10 per cent. were actions in tort, and the rest were actions in contract.

2602. Chairman.—Could you give any idea of the number defended?—Every one of these was defended.

2603. Senator Brown.—A real defence? —Some were bogus, but there were witnesses examined on both sides in every one of these cases. In contract cases, roughly only about 7 per cent. were defended. In my experience contract cases did not last very long; they were over very quickly and were generally for small shop debts. There is never any big question raised in actions for tort when defended, even with a bogus defence, but they last a considerable length. I had one case of an action for tort which took four hours to deal with. That is a thing, I am afraid, might creep into the District Court. It was a case where two motor cars collided outside Mullingar, and a civil bill was issued for £10. The damage to one car amounted to £180, and to the other £120. I inquired why the proceedings were brought before me, as I had plenty to do without disposing of actions of that kind. I was told that they only wanted a decision on the question of liability—the liability of the parties. Two insurances companies were fighting it. They could get a very cheap decision from me, and they had a special man down to make a note of what I said. If either party disagreed they could have an appeal for a cheap sum to the Circuit Court, and thus have two decisions on the question. I would be afraid of that practice extending, and I think if jurisdiction was extended in tort, it would be an invitation to that class of case to come in. I believe, from my experience in the country, that if you extend the jurisdiction of the District Court at all there will be, not a little squabble, but an action for £50 damages will result, instead of what you have now, an application for summary procedure to a binding to the peace. I am convinced that any District Justice could easily overtake any work which would come before him by reason of the extension of actions for contract from £25 to £50.

2604. Chairman.—You favour the extension of the jurisdiction to £50 in contract?—Yes.

2605. Do you think that would lessen to any extent the work of the Circuit Courts?—It would, but not to a very considerable extent. I can only speak from my experience of the Bar. During the 11 or 12 years I was at the Bar I had a fairly extensive practice on the Leinster Circuit in the County Court; and I may say I have had a very big practice in the Recorder’s Court in Dublin, and the amount of cases between £25 and £50 in contract were not very great in proportion to the cases under £25.

2606. You are satisfied that an increase in the jurisdiction in contract to £50 would not give rise to any congestion in the District Courts?—I am quite satisfied it would not.

2607. And that it would be of considerable advantage to business people throughout the country?—A very considerable advantage. Any business people I have spoken to are all very anxious that it should be increased. There is no doubt that a trader can very expeditiously recover a debt. Usually in one month he has got his decree, and it is in the hands of the sheriff.

2608. Senator Wilson.—But if there is an appeal?—Then there is a delay until the Circuit Court comes round.

2609. Will not an increase in the jurisdiction mean that you will have many more appeals to the Circuit Court?—I do not think so.

2610. There are a good many appeals at present, and if you raise the jurisdiction you will have nearly every case appealed to the Circuit Court—that is large cases, for a question of time?—It is just a question of time. I am afraid that is an abuse that it is very hard to remove. If you leave them with the Circuit Court as at present, you certainly will have a long delay, because the appellant will have to get the shorthand notes of the evidence, and will have to go to the High Court, and I think the time it would take to hear an appeal in a Civil Bill case under the present system would at least be twice as long as it would take to hear an appeal from the District Justice.

2611. We find that a number of District Court cases are brought in the Circuit Court; would you be in favour of providing by legislation that they would have to go to the District Court?—Certainly. I think the practice of having small cases adopted by a few solicitors is a great abuse. Just for the sake of a little extra costs they will proceed in the higher Court.

2612. Although they are under the jurisdiction of the District Court?—Yes. I have seen a case taken in the High Courts for £25 within the past twelve months with £3 or £4 costs tacked on, while before me the costs of the civil bill would be about 30/-. It is very hard on a defendant, especially one in financial straits. He cannot make a defence; he cannot do anything; he cannot go into Court and claim protection, because he would bring the other creditors down upon him, so he has to pay the extra costs by reason of the solicitor proceeding in that Court, whereas he could bring it in the District Court and have it disposed of at a cheaper rate.

2613. Chairman.—Have you known at any time of a case for a less amount than £25 being taken in the High Court?—Not since I got out of touch so much with practice as a counsel. That was only a case I heard of from a friend of mine who was in difficulties.

2614. We had evidence tendered here that cases for £3 or £4 had been taken in the High Courts?—If I might give my opinion, I think that is an awful abuse and is doing the whole system irreparable harm.

2615. You are definitely of opinion that they should be compelled to go into the Courts below up to their jurisdiction?— Yes.

2616. Senator Brown.—What you call contract cases are mainly cases for liquidated sums of debt?—Yes.

2617. They would also include cases of damages for breach of contract—small cases of that kind?—Yes.

2618. Have you many of these?—Very few. You might take it that the vast proportion of the civil cases I do are for the recovery of Land Commission annuities. I have a tremendous lot of them.

2619. Practically undefended?—Yes.

2620. Is it your view that these land annuity cases should be taken in the Circuit Court, or that they should be brought in the District Court?—I would leave them in the District Court. There is a slight saving to the defendant in costs, but it is very small.

2621. Senator Wilson.—If the amount was £50, would you leave them in the District Court?—I would.

2622. Senator Brown.—If you increase the jurisdiction to £50, the additional cases that would come into your District Court by compelling them to come there would be heavier cases and would take a long time?—They would, but I am firmly convinced that it would be quite possible to dispose of them all.

2623. Suppose you prevented the cases that were within the jurisdiction of your Court going to the Circuit Court; I find from returns that we have that in the County Westmeath there were during the three years ending August, 1929, an average of 200 such cases per year. There were 607 in the three years, which could have been heard in the District Court. In your other county, County Meath, there were 297, or about 100 per year. That would increase your cases from that source by about 300 cases in the year?— Not quite 300 per year, because I do not sit in the town of Cavan or in Athlone, which are two big towns. I have the town of Mullingar as a civil bill centre and Castlepollard and Delvin.

2624. You have not the whole of either county?—No. I have Oldcastle, Kells and Trim as civil Bill centres in Meath.

2625. That would be rather too big a figure?—Yes. Mr. Kenny and Mr. Goff would take some of these cases if they were transferred.

2626. Have you a definite practice of a set-off in your Court?—I have.

2627. Are you doing that at present without Rules?—Yes.

2628. And counter-claim?—Yes.

2629. Both?—Yes.

2630. These are quite necessary in your Court?—Yes.

2631. They should be provided for, if necessary, by legislation, in case it is ultra vires the rules?—Yes. It has been a great benefit dealing with the set-off and counter-claim.

2632. Senator Hooper.—You apparently differ from some other District Justices in having the set-off and counter-claim?—Yes, but I take the risk.

2633. Are there many who have taken the risk?—I could not answer definitely.

2634. Take the case of a Dublin merchant who is owed a small debt by a man in Galway. How does he proceed to recover a debt, say, of £10?—He would proceed on a default affidavit.

2635. In what Court?—The District Court.

2636. Which District Court?—In Galway, where the defendant is.

2637. In the case of a man who is owed that money and to whose claim there is no defence, is it not rather inconvenient and expensive to have to go down to Galway District Court to recover the money?—He swears a default affidavit, issues a default Civil Bill, and that is served on the defendant. If the defendant has a defence, he has to give notice before the hearing that he has a defence. That is notified to the plaintiff and then he proceeds. But if the defendant does not serve notice of the defence, the case is heard on affidavit, without the attendance of the man from Dublin, and a decree is granted.

2638. Do you think that is satisfactory?—Yes, very satisfactory. I have a great number of cases by English traders before me. They recover a lot of debts in Mullingar by this means.

2639. It has been suggested to us that the permission that is given to traders to bring small cases in the High Court is a great facility to people from England? Do you approve of that?—I do not think it would be a greater facility than the facilities they have at present, unless in the case of a defence. Of course, in the case of a defence it might save a man travelling from England to Galway. He would only have to travel to Dublin if it were in the High Court.

2640. Chairman.—It would entail much greater expense on the defendant?—Yes.

2641. If it were a small amount it might pay the defendant, even if he had a good defence, to pay the debt?—Yes, unless he was a man of very high principle.

2642. Senator Hooper.—You would not make any exceptions to the amount each Court should have exclusive jurisdiction in?—No, I would not make any exception on that.

2643. Deputy Little.—Have you adopted the practice that obtains in the District Court in Dublin for marking judgments? —No. Every case comes into Court. The rules provide for that. There is no machinery for marking judgments in the District Court in the country districts. It does not put much more work on the Justices to hear them in Court. I think it is very beneficial to the defendant. Sometimes a country defendant, who as a rule does not know his rights as well as a city defendant, will turn up in Court and put up a defence himself, and if judgment were marked in the office he would know nothing about it. I think you would create trouble if you adopted that system in the country.

2644. Senator Dowdall.—It has been suggested, in connection with traders in England, that it is a great expense to have to come to places like Galway to enforce a claim for goods sold. These goods are usually sold by commercial travellers, and the traveller on his journey could attend as a witness?—Yes. I do not think there would be any very considerable expense incurred. That is, from my experience up to the present of cases in Mullingar. I never had a case yet where the trader had to come from across the water.

2645. Senator Hooper.— You come across some cases in which a defence is entered, and when the case is tried the defence is withdrawn?—Yes.

2646. And the plaintiff is put to the expense of bringing up his witnesses?— Yes.

2647. Is not that a hardship?—Of course, in a case of that kind they can always give the costs and expenses against the defendant, for what they are worth. It would be a great hardship if the defendant was a man of straw. If he is a man of wealth, the plaintiff can always recover those expenses off the defendant.

2648. Senator Brown.—He generally is a man who is becoming a man of straw? —Generally becoming.

2649. Senator Hooper.—Expenses of that kind do not always cover the losses of the plaintiff in time, and for witnesses, etc.?—Any man going to law must be prepared to lose time.

2650. Senator Wilson.—You have had a great experience as a District Justice. You are asking for extended jurisdiction. I would like to know how many hours a day do you generally sit?—It is a very difficult question to answer. I divide my districts. There are six towns in which I have Civil Bill work, and have summary jurisdiction. Then I visit eight other villages, and that makes fourteen Courts a month. In some of those villages I have not been more than two minutes. I regard the village work as very light. Unless there happens to turn up an indictable offence which would keep me there for some time, my visits are very short. It all depends on the number of witnesses and the depositions to be taken. I would average my sittings in the big towns where I have Civil Bill work, at three hours a month in each town.

2651. Senator Brown.—There is a question which arises out of the opinion you have given to the Committee that the jurisdiction of the District Court ought to be raised to £50. When you get a judgment in your Court over £20, and, of course, you would have a large number of them if you had a jurisdiction up to £50, would you suggest as a remedy that there ought to be some automatic registration of a judgment of that size from the District Court in a central office in Dublin?—I think it would be of great benefit.

2652. Once your judgment gets above £20 you can register it as a mortgage, which is a very valuable privilege?—Yes.

2653. Otherwise, you could not find out a judgment of that kind without searching all the country Courts, and that would be practically an impossible thing?—Yes.

2654. If the jurisdiction were raised to £50 it ought to be accompanied by an automatic registration in a central office for judgments over £20?—Yes.

2655. You have got no Rules yet?— Yes. We are acting under Rules for a considerable time.

2656. You have not got the amended Rules?—No.

2657. Those have been a very long time coming?—Yes.

2658. We know the way Rules are made. The Minister practically refers them to a committee of experts; they report to him; he makes the Rules and they go before both Houses. Would you, for the purpose of saving time, be in favour of abolishing the Committee stage and letting the Minister make the Rules himself, with whatever expert advice he thinks necessary, and then send them to both Houses?—It would be certainly more expeditious, but there is only one drawback, and that is that the men who are working the Rules are generally, from practice, greater experts than the experts.

2659. They see where the Rules pinch? —Yes. If, in making the Rules, some Justices who are experts on the matter were called to point out beforehand certain important aspects, and their advice were taken, it might save time.

2660. It seems very difficult to get the Committee together and to get them to work?—Yes. There is one other matter that I desire to urge. It deals with summary jurisdiction primarily, and it is a matter of vital importance. In Dublin City, under the Summary Jurisdiction Amending Act of 1871, and the Police Act of 1842, the three Justices have jurisdiction to deal with certain types of cases, such as attempted suicide, indecent exposure, harsh distress by a landlord on a tenant, and malicious damage by a tenant to property. In the country you have no jurisdiction to deal with them.

2661. Chairman.—Would they be more or less criminal offences?—Partly criminal and partly civil. It is summary work purely. In any town where the Towns Improvement Act has not been adopted, if a man is brought before me by a Civic Guard and charged with indecent exposure, I am supposed to take depositions and return him for trial. If the Towns Improvement Act has been adopted that man could be fined 10s. In cases of attempted suicide I have no jurisdiction. In the City of Dublin they have jurisdiction in these matters. In reference to Section 78 of the Act the suggestion I make is, that it should be amended so as to make it clear that District Justices in the country have jurisdiction to deal with these matters. It was intended by the Legislature that the jurisdiction should extend to the whole country.

2662. I am afraid that is outside our terms of reference?—I suggest the only way you could bring it in is by dealing with power to award compensation to a tenant whose landlord is harsh, and to allow compensation to a landlord where a tenant damages his premises, up to £15, which the Dublin Justices have. By amending the Act you would make it clear that the County Justices have jurisdiction in these cases. You would automatically amend it to cover the others mentioned.

(The Witness withdrew.)

Mr. J. H. Gallagher, District Justice, called and examined.

2663. Chairman.—Mr. Gallagher, what is your district?—It is part of Cork, part of East Kerry and part of Limerick; it is District No. 27.

2664. You want to give evidence with regard to your own position?—Yes. My own position is different from that of any other District Justice. I may mention at the beginning that in the report of the Committee set up by the Provisional Government to report as to the different classes of Courts to be set up in the Free State, there was a unanimous recommendation that the retiring ages of District Justices should be 70. The Committee were unanimous that the retiring age for all Justices should be 70, whether in the country or the city, and as regards pension rights, they were unanimous that we should get the Civil Service terms with added years in respect of service in our different professions before appointment. When the Bill was brought forward both these things were omitted. The retiring age of the country Justices was put down at 65, and for the three Justices in Dublin City and the Justice for the City of Cork the age limit was fixed at 70. The retiring age is provided for under Section 72 of the Courts of Justice Act, 1924. There is a proviso dealing with the cases of Mr. Cussen and myself. We are the two oldest Justices, and there is a proviso at the end of Section 72 to the effect that the Chief Justice may, if he thinks it right so to do, extend the retiring age of Mr. Cussen and myself, to such time as would qualify us for a pension, which the Department of Finance says means a minimum pension. At that time we were both country Justices. Mr. Cussen was serving in the County of Dublin and I was serving in the County of Galway. Shortly after the 1924 Act was passed, Mr. Cussen was transferred to Dublin, and he is now entitled to remain on until 70 years of age. In my case, the Chief Justice has promised to extend my retiring age from the 17th of the coming month to such time as will qualify me for a pension. That period will expire on 28th October, 1932. Assuming I serve until that date, I complete ten years’ service, and that is the smallest number of years for a minimum pension. I would be then entitled to a pension of only £125 a year, which represents ten-eightieths of my salary. Apropos the unanimous recommendation of Lord Glenavy’s Committee that the retiring age should be 70, I would like to state that I recently discovered that the retiring ages of State Solicitors have been fixed at 70. These gentlemen will now remain on until seventy years by reason of some Order made by the Department of Justice. I might point out that when I shall have served ten years under the extension given me by the Chief Justice, my age will be 67 years and 8 months. I will be two years and four months short of seventy years. I respectfully ask that in my own case, and in the case of Mr. Cussen, we might be allowed to remain on until seventy-five, our pensions being so small. Every year we could serve it would mean a saving to the Finance Department of the small pension that each of us would receive. So long as we are physically and mentally fit to carry on as District Justices, we should be allowed to do so. I respectfully suggest, that inasmuch as this proviso deals only with the cases of Mr. Cussen and myself, we should be allowed to remain on until we are seventy-five years of age.

2665. Chairman.—You took office as District Justice in 1922?—Yes, on the 28th October, 1922. Had the recommendation of Lord Glenavy’s Committee been carried out with added years for the period at the solicitors’ profession or the Bar, I would be entitled to the added years. I was called to the Bar on the 2nd November, 1886, and I gave up practice in 1902. I got fever, and was ill. and was an invalid for a year or so. As a sequel to the fever I had to undergo an operation for appendicitis. Altogether, I was ill for about three years, and then I did not resume the practice of my profession because other men had stepped in and got my business. If the second recommendation of Lord Glenavy’s Committee had been carried out, I would have been entitled to an added 10 years in respect of service in my profession prior to appointment for 16 years.

2666. The position at the moment is that with three years added you would be entitled to a pension of only £125?—I would be entitled to a pension equivalent to one-eighth of salary. Even assuming my years of service were extended to 70 by legislation I would be entitled, approximately, to only £135 after 70.

2667. You heard the statement of Mr. Cussen with regard to your position and his own; do you agree with that?—I agree with all he has said. I might mention that I knew two County Court Judges, Judge Webb for Donegal, and Sir Francis Brady, for Tyrone, who died in harness, and they were over 80 years. As regards High Court Judges who continued in office till almost up to 80, there were Vice-Chancellor Chatterton, Judge Warren, Chief Baron Palles, Judge Miller, Judge Boyd, Lord Justice Holmes, Lord Justice Walker, Lord Atkinson and Lord Morris. These were almost all octogenarians.

2668. Senator Brown.—Mr. Cussen thought that the whole question of pensions, apart from his particular case and yours, ought to be looked into again?— Yes.

2669. Because, apparently, it is nearly impossible for a District Justice to ever get the maximum pension?—I doubt even if he were called to the Bar at 21 that he could live long enough to get the maximum pension.

Senator Brown.—Most of us were not called until we were 24.

(The Witness then withdrew.)

The Committee adjourned at 5.15 p.m. until to-morrow at 11 a.m.