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 Céadaoin, 29adh Eanar, 1930.

Wednesday, 29th January, 1930.

The Joint Committee sat at 11.5 a.m.

DEPUTY MORRISSEY in the chair.

His Honour Circuit Court Judge Kenny called and examined.

2670. Chairman.—Judge Kenny, you are Circuit Judge of Circuit No. 2, which embraces Cork City and County?—Yes, it embraces Cork City and County, and the bankruptcy jurisdiction includes the County Kerry as well.

2671. Prior to your appointment as Judge you practised at the Bar?—Yes.

2672. As regards the District Court, have you any views regarding its jurisdiction?—I think the present jurisdiction should not be altered.

2673. You think it should be left as it is?—Yes, I think it should be left as it is.

2674. Have you many cases coming to your Court which are within the jurisdiction of the District Court?—Nearly all the cases which are appropriate to the District Court go to the District Court, and any cases involving any difficulty come to the Circuit Court.

2675. Would you favour compelling people to bring cases in the District Court which are within the jurisdiction of the District Court?—No; all Courts should be open to the people.

2676. Has the appeal system from the District Court worked well?—Yes, there are not many appeals—very few appeals.

2677. Senator Dowdall.—You mean appeals from the District Courts?—Yes, there are very few appeals from the District Courts, and these are mostly licensing appeals.

2678. Licensing appeals are much more numerous than appeals on the purely civil side?—Yes, they are.

2679. Chairman.—Do you think the District Court has been a success?—I do, but I think the District Court is primarily a Police Court. They have to administer about 200 Acts of Parliament, and that is about as much as any one man can do. Overloading the District Courts with civil business would be unfair to them and a mistake from the public point of view.

2680. Do you think the Circuit Court has been a success?—Speaking from my own experience, I would say so.

2681. As regards the jurisdiction of the Circuit Court, do you think it should be increased or diminished?—I think the jurisdiction of the Circuit Court should be somewhat the same as the jurisdiction of the Sheriff’s Court in Scotland. That is to say, every person should be enabled to come in there. Fixing a limit of £300 is purely artificial. It grew out of the system which was first established in this country by Lord Clare. Lord Clare established Civil Bill Courts. The jurisdiction of this side of the Court was gradually increased by £10 and £10 until it finally reached a jurisdiction of £50 in ordinary cases in the County Court. But when the County Courts were established in England by Lord Brougham in 1846 their jurisdiction was very small. They were derided by the legal profession as cheap shops. Now they do nearly all the business or three-fourths of the business in England, and their jurisdiction has been gradually extended, and is extending, until ultimately they will probably be made the same as the High Court.

2682. What you say applies to contract cases only? Would you allow that in cases of tort?—In tort there might be some difference. There are some cases in tort in which people would go for trial to the High Court.

2683. Are there any jurisdictions which in your opinion should be reserved to the High Court? For example, cases of bankruptcy and winding-up?—I speak for Cork. We have perfect machinery in Cork for winding-up. Of course we do not wind up companies every day, but we have wound up companies to the extent of £10,000, and we have done it with greater satisfaction to the creditors than if the company had been wound up in Dublin.

2684. You have practically a High Court in Cork?—Yes, in everything but name and jurisdiction.

2685. And you have the machinery for carrying out the various types of jurisdiction?—We have the machinery for carrying out everything that we are entrusted with. I wish to say that we are under-staffed. We want more clerks. We are starved in that respect. Our men are doing twice what they ought to do, and in some cases four times as much as they ought to do. In some respects they do four times more work than was done previously.

2686. You have got a Bar in Cork?— Yes, about fifteen barristers practising regularly, and 60 or 70 solicitors.

2687. That is, fifteen of a resident Bar? —Yes, and then in addition to that there are some gentlemen who live in Dublin but who are down with me every month. Frequently senior counsel come down. I fix Saturdays for them, because that conveniences them.

2688. Is there a fairly good Law Library in Cork?—Yes, we have an excellent library of law books—standard text-books. I might say that I think the State should supply the law reports, certainly to the Judge, and not to have him buying them at his own expense. I think the State should supply the Judges with the law reports the same as they are supplied in England.

2689. What are your views, Judge Kenny, on the present system of appeal from the Circuit Court?—The present system of appeals from the Circuit Court on the notes is, in my opinion, unsatisfactory, because you can never reproduce the same effect on paper that the living witness produces on the eye of the Judge. There should be a re-hearing, with due precautions. That is, there should be security given by the appellant for costs. There should be some note available of the evidence given in the Circuit Court, or, if there has to be an appeal on the notes only, it should be limited to a question of pure law.

2690. Senator Brown.—It is already?— It is by decision, but not by law.

2691. It certainly overrules the intention?—Yes.

2692. Chairman.—Are you of opinion, Judge Kenny, that the present system of appeal on the notes is more costly than the old system?—Taken altogether, I should say it would be.

2693. If you had appeals by way of rehearing, having available also the stenographer’s notes, do you think there would be any saving in expense to the litigants?—The costs would be about the same, I think, but the litigants would have the satisfaction of reappearing on the scene and presenting their cases a second time.

2694. Have you any power, Judge Kenny, to state a case?—I have never stated one yet, and I do not intend to.

2695. Therefore, you do not think it is desirable that you should have the power?—If I am compelled by certiorari I would, but not otherwise.

2696. Senator Brown.—Judge, we have been furnished with a very interesting Table* this morning telling us the amount of business in your Court under the different heads. We have not had anything like this before, and it is extremely useful and interesting. This is a return of the actions actually entered in your Court?—Yes.

2697. It would include ones that did not go on?—Yes.

2698. I see by your return that the number of actions for £50 and under in 1928 was 657, and in 1929, 671?—Yes.

2699. And that actions over £50 and up to £100 numbered, in 1928, 178, and in 1929 the number was 166?—Yes.

2700. Then actions over £100 and up to £150 in 1928 were 47, and in 1929 they were 37?—Yes.

2701. The actions over £150 and up to £200 numbered in 1928 31 and in 1929 the number was 34?—Yes.

2702. Actions over £200 and up to £250 were, in 1928, 15 and in 1929, 13?—Yes.

2703. Over £250 and up to £300 were, in 1928, 50 and in 1929 they were 41?— Yes.

2704. Actions over £300 were in 1928 three and in 1929 nine?—Yes.

2705. These were cases where the parties agreed, I suppose, to have the cases tried in your court?—Yes, they agreed to submit to the jurisdiction of the Circuit Court.

2706. It looks as if the bulk of your business as far as numbers go was still under £50 or over £50 and under £100?— Yes, so far as the money was concerned.

2707. Of course, that is not a test of the importance of the cases at all?—None whatever.

2708. I notice from another return† that we have here from the Department, not from your office, that in the three years ending August, 1929, there were in your circuit only sixteen cases actually heard in which decrees were given for over £200 and under £300?—Yes, that is so.

2709. Well, now we have from your return* that in cases between £200 and £250 there were fifteen in 1928 and thirteen in 1929 and over £250 and up to £300 there were 50 cases in 1928 and 41 in 1929, and there were only decrees for sums between £200 and £300 in sixteen cases for the three years?—It happens very often that when large claims come in between £200 and £300 that the parties settle. That would not appear on the return.

2710. That would not be the case if it were merely entered for time?—No. I refer to a case in which the parties would come together and settle before hearing. That often happens.

2711. Senator Dowdall.—I had a case of that kind within the last three months myself?—That is the general experience in Cork—especially in the city.

2712. Senator Hooper.—Those are included in this return?—No, only decrees. The figure 16, would represent judgments

2713. But they are included in the return handed in this morning?—Yes.

2714. Senator Brown.—Apparently, the same thing happened in the cases over £300, because you had twelve of these claims in two years and only three decrees for sums over £300 in three years?—Yes, but there is an increasing tendency to go into the Circuit Court.

2715. That is shown by the figures. The figure was 9 for 1929, and only 3 for the previous year?—Yes. I think each year the numbers for that jurisdiction are increasing.

2716. It is curious that the figures for cases over £250 and up to £300 are very much larger than the ones over £200 and up to £250. Are they in the habit of making inflated claims?—£200 is a big sum, but if you can claim £300, why not claim £300? The figure is no guide to me. Yesterday, I had a £300 action before me and I gave a decree for £7 10s. 0d.

2717. The figure is no measure of the size or importance of the case?—No. It is often a measure of the solicitor’s intelligence or skill.

2718. You seem to be specially favoured in the circumstances of your district in Cork?—Yes.

2719. I suppose you give a great part of your time to the city of Cork?—More than half. I do the West Riding business in Skibbereen and I have one sitting in Bantry. There are some important towns like Mallow which have to be considered, but there are three or four towns that I go to which could be dispensed with altogether. The business could be done in Cork.

2720. At the sitting in Cork, you have the advantage of a local Bar and a law library?—I have the advantage of having the Bar with me wherever I go, but in Cork I have access to the library. When any question crops up which requires reference, I can, in addition to my own books, make use of books in the library.

2721. And counsel have access to those books?—Yes. That is the reason why I transfer the final argument in important cases that I come across in the country to the city.

2722. If you meet a case in a country district in which a really difficult point of law arises, you adjourn the argument to Cork?—Yes.

2723. You do not adjourn the hearing of the evidence there?—I take the evidence and adjourn the final argument to the city.

2724. You say that company jurisdiction has been satisfactorily worked in Cork?—We wound up one company quite satisfactorily. I think all the parties were satisfied.

2725. You have in Cork what they have not in the ordinary country district. You have a number of accountants and auditors and people of that class from whom you can choose your liquidator?—There are no better auditors in Ireland or probably in the world.

2726. I know that from my own experience?—They are wonderful men.

2727. That would not apply to other places?—There are very good auditors in Limerick.

2728. Senator Dowdall.—And in Waterford?—Yes.

2729. Senator Brown.—On the question of the costs of appeal, you are against the present appeal on notes?—Yes.

2730. Do you think there should be an appeal on fact at all? Undoubtedly, under the Act of 1924, it was intended there should be an appeal on fact?—Yes.

2731. That is the obvious reading of the section?—Yes.

2732. That has turned out to be quite illusory in practice. There is now only an appeal on law?—It has come to that. Of necessity, they had to drop the idea of a re-hearing on fact.

2733. From your experience, would it be satisfactory to the litigant in this country not to have an appeal on fact?— Taken altogether, I think the public would like an appeal on fact.

2734. In the smaller cases?—Yes. I think it is the prevailing feeling that there should be an appeal on fact.

2735. That would apply more particularly to the smaller cases?—Yes. I do not think the number of appeals would be very great, but that is a matter I could not definitely forecast.

2736. Your personal opinion would be that there would not be more than there are now?—There would be a little more, but not many. There are very few appeals now.

2737. There are a certain number staved off at present by the question of costs?—There are only one per cent. or one and a half per cent. appeals from my decisions. The number is almost negligible.

2738. We have had a good deal of evidence that the cost under the present system of appeal is substantially more than was the cost of an appeal from the old County Court?—There are certain things which make it expensive. There is the preliminary expense of the stenographer’s note. Sometimes that cost is very heavy—almost prohibitive.

2739. You mean the cost of the stenographer’s note and the copying of it in the way of briefing. That is what appears to make the large increase?—Yes. So far as Cork is concerned, there is a double set of counsel. Counsel do not follow their appeals to Dublin. They stay in Cork, and the appeals fall into the hands of fresh counsel, who are not familiar with the facts and who have never seen the witnesses.

2740. No matter whether this Committee recommends that there should be an appeal on notes, as at present, or that there should be appeal by re-hearing, would you be in favour of some scale of costs as distinguished from the present system of taxation of costs?—Yes. Fifteen or twenty years ago the Chief Baron established the principle of a fixed scale of costs of appeal at the Assizes. Something like that should be re-enacted.

2741. Assuming it was a proper scale? —Yes, a proper scale for the present time. That scale was a proper one for that time, and worked all right.

2742. You remember, as I do, that in the old days in a civil bill appeal the costs and witnesses’ expenses were totted up, and the order made almost on the moment?—Yes.

2743. There was no taxation of costs? —That was an automatic taxation of costs, but the Judge of Assize had a registrar who went around with him.

2744. Most of the active Judges, like Lord Justice Holmes, did this work themselves?—Yes, but they were not all Lord Justice Holmes.

2745. It has been suggested many times before the Committee that there might be what has been called alternative jurisdiction in the High Court and the Circuit Court—that is, that the plaintiff in a substantial case should be allowed to go to the High Court without being penalised in the way of costs, unless the case was an unreasonable one to bring there?—I think all the courts should be open to every man.

2746. The High Court is, of course, open at present to a litigant who likes to take the risk of not getting High Court costs. The suggestion was that there might be alternative jurisdiction, that a litigant should be enabled in a proper case —especially a litigant from the country where the circumstances are not as favourable as in Cork—to go to the High Court without being penalised, provided the Court thought it was not an unreasonable thing to do?—I would not penalise any man except the Judge was satisfied his action was unreasonable.

2747. You have to sign all your orders? —Yes. I sign all orders with my own hand.

2748. Does that create any difficulty or delay?—None whatever. I think it is right to do it also, because sometimes I have to look over the order to make sure about it.

2749. Take orders that are made in cases in which there is no defence—decrees for debt, and so on. You have to sign those, too, but I presume you do not go into them?—Those are only matters of form. I sign them and no more.

2750. Would it be possible to have a system by which an order of that kind would be made, when you are not sitting, by the County Registrar?—No. I think that power should be limited to the Judge. I think all orders should go through the Judge’s hands.

2751. That was the old system in the County Court?—It is the sound system. I am sure it was well thought out. I would not take any jurisdiction of that sort from the Judge. It is not very onerous. There is really very little of that sort of work. The number of cases for debt is comparatively small. That may be the result of restricted credit or the increased prosperity of the people. The number of actions for small shop debts in the Circuit Court is comparatively trifling. It is a very small part of the jurisdiction

2752. At present, if a plaintiff gets judgment for £20 or upwards in your Court, the fact that the defendant has been decreed for that amount can be ascertained by searching in your Court?—Yes.

2753. There is no automatic registration, of a judgment of that kind in your Court, in the Central Office here?—No— not that I am aware of.

2754. Would it not be an advantage if there were automatic registration of that judgment in the Central Office. A judgment for £20 or upwards can be registered as a judgment mortgage?—I do not think it would make much difference. It would do no harm. That is all I will say.

2755. If it would not involve any great expense, it would be useful, because you could ascertain whether there was a judgment or not without having to search in twenty-six counties?—Yes. If it could be done cheaply, it might be done.

2756. I suppose in your district there are, as apparently there are in other districts, bogus appeals—that is, appeals entered merely for the purpose of delay? —Yes, there are bogus appeals from my Court, but they are not very numerous. I should say that about half the appeals entered are bogus. At my last sittings I decided 600 or 700 cases. The number of appeals would be about eight. The number of appeals at the previous sittings was about five. Of the number of appeals entered, about half would go on and the other half would be bogus.

2756a. Would you be in favour of making it more expensive to lodge an appeal? —Under any new system there should be security given for costs. A certain sum should be lodged in Court for costs. It should not be less than £5. Personally, I think the sum should be £10. Under the old system, in the case of equity Civil Bill appeals, the sum of £5 had to be lodged.

2757. Of course, £5 meant more money then than it does now?—I think myself that £10 would be a fair sum to fix.

2758. You are not working under Circuit Court Rules at present. Your own Circuit Court Rules have not yet been brought into play?—No.

2759. I take it you are working partly under the High Court Rules?—I apply Wylie’s book to all my decisions. It is nearly always applicable. I can also work from the old Rules of the High Court.

2760. But it would be more satisfactory to have your own Rules?—A splendid set of Circuit Court Rules has been drafted. The Rules are not yet in force.

2761. A very long time elapsed before they got into draft?—They are now in draft, and in my opinion they are a splendid set of Rules.

2762. In view of the fact that there was a good deal of delay producing not only the Rules, but producing the revised Rules for the District Court, would you be in favour of altering the Rule-making Authority?—I do not think there is any necessity at all for submitting these Rules to the Dáil and Senate for their approval.

2763. After all, that does not take a very long time?—It has taken about two and a half years in the case of the Circuit Court Rules.

2764. I do not think that is because they had to be submitted to the two Houses. It has been suggested by some witnesses that the Minister should be the Rule-making Authority, as he is theoretically at present, and that he should act with the concurrence of an expert committee composed, say, of a few Judges and other people?—I think the proper Rule-making Authority would be the Circuit Court Judges, with power to call in the assistance of a draftsman.

2765. Some witnesses were in favour of having the Minister the Authority and of not having any committee at all, and suggested that he should have the right to call in experts—probably some Judges?—I would not approve of that system at all.

2766. That was suggested because it was thought it would save time?— I do not think so. I think that the analogy of the old High Court Rules, drafted by a well-known member of the Bar, should apply. If the Circuit Court Judges were given authority to call in the assistance of a member of the Bar—I could name half a dozen members of the Bar, any one of whom would be suitable for the purpose —I think they would be thoroughly competent to draft a first-class set of Rules that would work admirably. We have an admirable set of Rules drafted at the present time. They appear to have been very well done.

2767. As the Circuit Court Rules are not at present in operation, I do not know whether this is a fair question to ask, but what I want to know is, do they provide for any form of pleadings in the Circuit Court?—Simply for a statement of claim and defence, but nothing further in the way of reply.

2768. Is the statement of claim on the originating document, whatever it is?— Yes, and the defence has to be sent in within a certain time.

2769. And they are bound on that to state what their defence is?—Yes.

2770. When you state that in your opinion a re-hearing would be the best form of appeal from the Circuit Court, would you have that appeal heard by one High Court Judge or by two?—By two.

2771. And sitting locally?—Yes, but of course some counties could be grouped.

2772. I do not mean that it should necessarily be done by counties, but done conveniently?—The unit could be the Circuit. For instance, all appeals from County Cork could be tried in Cork. Those on the South-West Circuit could be tried in Tralee and Limerick. Judge Wakely travels over a number of counties, and on his Circuit I imagine you would have to have three groups. I think, too, that the Judges hearing those appeals should have a registrar.

2773. Would you please give a reason for that?—One reason is that it would be unfair to throw such additional work on the existing staff, who, in my opinion, are already considerably overworked.

2774. Do you mean the County Registrar and his staff?—Yes. In my opinion the County Registrar and his staff are overworked at the present time. There is no doubt but that some of these officials are being worked to death.

2775. Chairman.—Do you think that applies generally? Have you any knowledge as to whether it applies to other districts than your own?—The Circuit Court Judges meet together two or three times a year, and we are all agreed that all our staffs are overworked.

2776. Senator Brown.—You see it was an unknown quantity?—But when unknown quantities are discovered and the quantity is found, the proper thing to do is to provide the necessary remedy.

2777. Deputy Little.—You referred to the history of the Courts in England. With regard to appeals in England, can you say what the system is there?—Appeals from the County Court Judge in England are on questions of law only.

2778. Do you think that system works satisfactorily?—In England, yes.

2779. Yet you would not be inclined to suggest it here?—No. The mentality of the two peoples is quite distinct.

2780. Is that due to the history of our legal system?—To some extent, but I think it is largely due to the character of the people.

2781. In the sense that there used to be a re-hearing in this country and not in England, the two systems were different?—Yes.

2782. You think that on the whole it would be better to have a re-hearing here?—The people were accustomed to it, and I think they like to have a re-hearing. It suits their temperament. Altogether I think that a re-hearing before two Judges would be best.

2783. Do you have many jury cases?— No. I have not had a jury case for the last two years.

2784. That, of course, would add to the necessity of having a re-hearing on appeals, because if you had a jury it would probably help to settle a great deal more, so far as the facts were concerned?—I do not think so at all.

2785. You are speaking now more or less from your experience in your own Court. Very few appeals have been taken from your Court. But where the Court had to deal with complicated questions of fact I imagine the Judge would be glad to have a jury?—The number of appeals from the Circuit Courts in Dublin is very small. I was speaking to one of the Judges the other day, and he told me that the number of appeals was very small in comparison with the number of cases decided.

2786. But take the country generally? —Of course there are more appeals from some circuits than from others.

2787. We have had some figures* put before us with regard to the number of appeals in arrears awaiting hearing. I think the figure we got was 200?—But that figure is for the whole State.

2788. Some parts of the country are not quite as happy as Cork in that matter?— These appeals are pending for more than a year. In that way they mount up in number, and the figure looks larger than it really is.

2789. Suppose you were asked for a jury in a case in which there was a complicated question of fact, say, in regard to a will, what would your attitude be?— I would give the jury in any case I was asked for it—that is, where the person was entitled to a jury. I never refuse a jury, but I have not been asked for one for the last two years. The last time I was asked for a jury, it gave the parties that asked for it a dose that they never got over.

2790. You have experience of appeals from the District Courts which are heard by way of re-hearing. There are no stenographer’s notes in the case of appeals from the District Court?—No.

2791. Yet the system there works out very satisfactorily?—Last year I had only 27 or 28 civil bill appeals. That is a very small number.

2792. From your point of view I take it you had no difficulty in dealing with those cases because of the lack of stenographer’s notes; there was no opportunity for perjury in the way of witnesses mending their hands?—They were very small cases. People always tell lies, but I do not mind that.

2793. You mentioned that you did not think the Dáil should have any say in the matter of approving or disapproving of the Rules?—That is my view.

2794. In view of the fact that you have found the final draft of the Rules so satisfactory, do you not think that the Dáil has proved itself?—No. It was originally a mistake to entrust the Rulemaking Authority to the people they entrusted it to.

2795. You would have a different body to draft them?—I would have the Rules drafted by the Circuit Court Judges, with the assistance of an expert.

2796. That would save——?—It would save all the humbug that went on here.

2797. Do you not think that in the end the public generally would be more satisfied to have a set of Rules which had passed through the Dáil?—No doubt, that may be so. The Rules in England are put on the Table of the House of Commons and laid there for six weeks. In my time there were about seventy or eighty lawyer members of the House. They were the only people who took the slightest interest in these Rules. The Rules were put on the Table as a matter of form, but the lawyer members of the House never said a word about them in Parliament. The Rules disappeared from the Table after six weeks and became the Rules of Court.

2798. As regards pleadings, do you agree that the drafting of pleadings is an art in itself?—In my opinion, it is very simple now.

2799. If it is not so simple it may become necessary to have them amended so often that the Judge will have to give permission to amend?—But the Judge can do that.

2800. You do not think there would be any objection to allowing them to amend the pleadings?—It is necessary that the Judge should have power so to amend that the question at issue between the parties can be decided. It is not for the Judge to defeat justice but to carry it through and for that purpose he should have all the power necessary.

2801. Do you think it would be advisable that the Judges should change their circuits from time to time?—That would involve a break-up of camp in a great many instances. At the present time they are sent to places, and they take houses and that sort of thing; and it would be very hard upon them to be shifted about. The Minister can, if he thinks fit, I understand, change a Judge from one circuit to another.

2802. He has done it?—Yes, at the request of the Judge, but I do not think he has done it against the will of a Judge.

2803. Senator Brown.—Only if there was a vacancy?—I think in every case there was a vacancy.

2804. Deputy Little.—It would be very unwise if such power was exercised. It would leave the Judge open to certain influences?—I think the more independent a Judge is the better.

2805. Do you not think it would be a good thing for the Judges to arrange amongst themselves to change about from time to time?—I do not think they would ever consent or agree amongst themselves. The Judges near Dublin would not consent to change with those farther away.

2806. Sometimes a Judge might grow stale in a particular district, and it might be well to have a change. That might not apply to cities so much as to country towns?—They are so much on the move that they have not time to get stale. Some of them have three or four counties, one has six counties and some have five.

2807. Sometimes you find in districts certain practitioners who feel that they have not got so much in favour with the Judge?—That was so in cases of the old County Court system, but the old County Court system was very different to the present system.

2808. Senator Dowdall.—You told us that in your view the Courts should be open to the people?—Yes.

2809. We have evidence that small sums are frequently claimed in the High Courts?—Yes.

2810. Frequently the plaintiffs are English firms. Is it not a hardship to bring a defendant say from Bantry up to the High Court in such a case?—But they could apply to change the action and to have it remitted.

2811. But that involves costs?—Yes, but the plaintiff would be liable.

2812. You do not think it is an abuse? —I think it is very regrettable, but I would not go the length of calling it an abuse.

2813. You told us the winding-up of companies locally has worked well?—Yes, in Cork.

2814. I know that from my own knowledge. You spoke only from experience of your own circuit?—That is all.

2815. In your view, would not that apply also to Limerick, Waterford and Kilkenny?—Yes, it would apply to those places, I think.

2816. I cannot speak from knowledge, but I think there are chartered accountants in places like Clonmel and Kilkenny also?—There are in Limerick and in Waterford, I should say.

2817. I am sure there are in Clonmel also?—Very likely.

2818. The winding-up of companies locally by such men, if available, as you know they are in Cork and Limerick and Waterford, would be likely to give better returns to those who own the estates than otherwise?—Yes.

2819. Senator Hooper.—I would like your views on a suggestion made here. It has been suggested that in the event of the old system of appeal being revived, and that the Appeal Court travelled through the country, the jurisdiction of the Circuit Court should be reduced, say, to £150, and that those cases now tried in the Circuit Court for sums between £150 and £300 should be tried by one of the Appeal Court Judges on circuit?— That would be separating the two Judges.

2820. That was one suggestion made here; the witness who suggested that was asked whether the cases should be tried by the two Judges or by one, and he expressed in favour of one. I would like to have your opinion on that matter?— I would not agree to that at all. The jurisdiction should not be divided. All these divisions are artificial.

2821. Would not that give the advantage to the litigants of having senior counsel more accessible than in those cases of higher jurisdiction?—I do not think it would make any difference in that respect. They could have senior counsel in any event.

2822. Yes, but senior counsel would be attending these Assize Courts, as we might call them, in the ordinary way, as in the old days, and they would be available for the hearing of those cases of higher jurisdiction?—If there is to be an appeal, will they not be be available also?

2823. They would be for an appeal in Dublin?—Suppose there is a Civil Bill for £300 and it is tried before the Circuit Judge, there is an appeal from him.

2824. And that would come before the Appeal Judge?—Yes. But it is like making two bites of a cherry.

2825. Chairman.—It is really setting up another Court?—Yes, an unnecessary Court.

2826. Senator Hooper.—I want your views upon that. That suggestion came from one witness examined before us, and I understand it is to be supported by another responsible witness who is to come on. You spoke of Appeal Judges having to bring their registrars with them?—Yes.

2827. Can you give an idea of what other staff there would be?—The crier would have to come.

2828. The crier, the registrar, and the Judge himself?—Yes.

Senator Brown.—They have the crier already.

2829. Senator Hooper.—It means that the Appeal Judge would have to bring his crier?—Yes; all they would have to do would be to pay his second-class fare. They used to travel second class and they wore silk hats.

2830. Senator Hooper.—You would prefer two Judges?—Yes, otherwise it would be ridiculous.

2831. In the old days there used to be only one Judge?—We had enough of experience of that in the old days to say that it was very unsatisfactory.

2832. You think that there should be the stenographer’s notes in every case heard in Ireland?—Yes.

2833. Should these stenographer’s notes, in cases of appeal from the Circuit Court, be the full notes in every case?—Yes, and available for the parties if they liked.

2834. Would that mean that the stenographer would have to transcribe his notes in any event?—If he transcribes his notes I would be in favour of paying him.

2835. In any event should they be before the Judge on appeal?—He might call for them if he thought them necessary.

2836. It does not necessarily mean that the notes should be transcribed in every case?—Not necessarily.

2837. What would be the practice?— In some counties they would be called for more frequently than others. They would be a great check upon the dishonest witness.

2838. They would be on the records of the Court?—Not unless the Judge ordered them to be filed with his decision and judgment.

2839. So that after the stenographer had taken the notes it would depend upon the Judge, or either of the parties, to call for those notes?—Yes.

2840. Otherwise they might ask for a portion of them?—Yes.

2841. You spoke of the cost of appeals being inflated by the cost of the notes?— In some cases.

2842. Are you aware that portion of what is ascribed as cost of the notes is really part of the solicitor’s profit and is not properly attributable to the notes at all?—That is quite possible.

2843. Do you think that that is advisable?—Solicitors must live.

2844. But do you think it wise that the cost should be, let us say, camouflaged in that way by putting it under the heading of notes?—The solicitor goes to a certain amount of trouble in regard to those notes. He has to order them and to peruse them and see that they are right.

2845. We have heard that the solicitor can get as many copies of the notes as he likes from the registrar, at twopence per copy, and that afterwards in briefing these he charges sixpence for the first copy and threepence for every subsequent copy?—I have nothing to do with that.

2846. I know, but I would like your opinion about it?—If that is the established practice I do not think that I should say anything against it.

2847. Senator Brown.—Is not the real question whether there should not be the old system of remunerating solicitors through a scale?—Yes, the scale would come in to deal with it.

2848. Senator Hooper.—It seems to me rather absurd to put down to one head what really belongs to another?—It could be easily altered.

2849. A very serious argument advanced as to the reduction of the Circuit Court jurisdiction is its effect upon the Bar. It is said that the present system is causing the Bar to deteriorate. I would be glad to have your views upon that matter?—I think whatever the effect may be upon the Junior Bar in Dublin, the tendency to decentralise legal business is getting stronger every day.

2850. But is that affecting the standard of the men at the Bar?—Not in my opinion. I should not, of course, criticise my own profession, but the real effect on the Bar, in my judgment, is that access to the Bar is now too easy; the Benchers are now taking steps to remedy that.

2851. You are specially circumstanced in Cork by the fact that you have a resident Bar, some of whom are very experienced?—Yes, you will have one before you by-and-by, and you can judge the rest by that sample.

2852. In other counties that state of things does not exist?—In some it does. There is no resident Bar, strictly so-called, anywhere except in Cork, but the same men go around with the Judge, or practically the same men.

2853. Would I be right in thinking that if any effect has been produced on the standard of the Bar to-day it is not due to the Circuit Court itself?—Oh, no, it is not.

2854. It may be due perhaps to the system of appeal?—The nearest system to ours by analogy is the Scottish system. There the business is decentralised and the Sheriff’s Court has complete jurisdiction on all questions of contract and in most actions of tort. That jurisdiction is very extensive by way of appeal from the sheriff’s substitute. Then there may be an appeal from the sheriff to the High Court in Edinburgh. The sheriff must give his consent to all decrees under a certain amount. The quality of the Scotch Bar has not been affected by that, but it has attained the highest efficiency. The Library in Edinburgh consists of Senior Counsel of the highest efficiency, and it is because of that that the biggest cases in Scotland go to that Court.

2855. You are satisfied that the present system has not hurt the Bar?—No, I do not think it affects their income either, in Dublin.

2856. The arguments advanced here were that the young barristers going out in the country lost touch with the Library and lost the advantage of consultation with their seniors, that that in time will affect the seniors themselves and ultimately the Bench?—They do not. as a matter of fact lose touch with the Library. Nearly all the young fellows are up in Dublin as often as they can and are in the Library every day when they are not on circuit.

2857. That argument has been advanced here and we wanted to know what you thought of it?—They are not as much in the Library as they used to be because the Circuit Judge sits nine months now as compared with the old County Court, but they do not lose touch with the Library.

2858. Senator Wilson.—To sum up your evidence: You say there is no case for reduction of the jurisdiction of the Circuit Court?—The reverse.

2859. You would like to see it like the Sheriffs’ Courts of Scotland?—Yes. Why should £300 be selected?

2860. There is talk of congestion in the Circuit Courts. In your Court there is no congestion?—I could do a little more if it came, but I expect it will come, because it is increasing steadily.

2861. Are you in favour of an appeal on fact from your Court?—I am not opposed to it.

2862. Seeing that the number of appeals is only 1½ per cent. to 2 per cent., what is the necessity for stenographers when 98 per cent. will not be appealed at all but will be decided there and then? —You never know what becomes of the 98. The sheep you lose are more important than the sheep you have.

2863. Does it not seem a tremendous waste to take down notes of 99 per cent. of cases that never come up again?— That looks like waste, but it is not. You must provide against the infirmity of human nature.

2864. Should the costs follow the result in your Court?—Yes.

2865. Do you ever vary that?—Not except where I have legal power to do so.

2866. You say you should not have power?—No, except under very exceptional circumstances.

2867. It is the practice in some of the Circuit Courts not to give costs where the result has been in favour of the plaintlff?—I have no experience of that. I have not deprived the successful party of his costs.

Senator Brown.—There is a difference in the view of the Circuit Judges as to whether they have discretion or not.

2868. Senator Dowdall.—Do you think that you should have that option?—To tell you the truth, I do not. I would not mind it for myself, but I would not trust it to others.

2869. Senator Wilson.—The effect is that the costs should follow the result?— That is the correct rule of law.

2870. With regard to this concurrent jurisdiction, why would you leave the discretion as to costs to the Judges in the case of a man going to the High Court? —Because a man might very dishonestly and fraudulently go into Court with a bogus claim. That man should be punished to the extent of being compelled to pay costs.

2871. I was speaking of cases within the jurisdiction of the Circuit Court which are brought to the High Court?— I would not deprive him of his costs. I would leave that in the discretion of the Judge of the High Court.

2872. Then, the costs would follow a lower scale. Would you have two scales? —There are in operation two scales for that purpose, because the Judge could say that the costs would be the Circuit Court costs.

2873. Witnesses say that it is a penalty on the plaintiff who loses his costs when he goes to the High Court, because the case was within the jurisdiction of the Circuit Court?—I do not know that that is often done. There is a fair number of those cases transferred to me, but nearly always the costs are left in my discretion.

2874. It is your opinion that the Bar should accommodate itself to the Court rather than the Court to the Bar?—Certainly; the public are more important than any section of the public.

2875. This Court, which is really described as the People’s Court, should be maintained with its powers and, if possible, be extended?—Yes, the tendency would be to extend rather than contract its powers.

2876. Senator Dowdall.—Something has been said to you in connection with the cost of the stenographer’s notes. Would the institution of the Rules tend to curtail that?—I do not think so. At least, I could not say that it would.

2877. Would it not be the case that a counsel appearing before you in a case would bring in everything he possibly could so as to justify himself on appeal, whereas if you had pleadings and Rules it would curtail and shorten the proceedings in that way?—The tendency of pleadings is to limit the case.

2878. Then the institution of pleadings and Rules would tend to shorten it?—It would tend to exclude all the irrelevant matter introduced at present when there are no pleadings. At the present time, you see counsel probing round and round to see what possible way he has to meet a case, and when you ask him what his defence is he says: “I will tell you that by-and-by.”

2879. He is on a roving commission which tends very much to amplify the stenographer’s notes and add to the costs of the notes?—Yes. I would not say in numerous cases but in many cases.

2880. It necessarily adds to the cost of appeal on notes?—Yes.

2881. Senator Brown.—I would like to clear up this matter of the stenographer’s notes. You are of opinion that there ought to be a stenographer in every Court in this country?—Yes.

2882. I respectfully agree with you. Therefore, you must have a salaried man in every Court?—Yes.

2883. If the system of appeal were altered to a re-hearing the stenographer’s notes would not be a necessary part of the appeal at all. It would only be for the purpose of checking a witness. The professional men who conduct the case in the Court below know very well whether there is perjury or not and they would then know what portion of the stenographer’s notes they would require, so you would not have any unnecessary transcription of the notes?—No.

(The Witness withdrew.)

Mr. George Joseph Daly, Barrister-at-Law, called and examined.

2884. Chairman.—I understand, Mr. Daly, you were called to the Bar in 1907? —Yes.

2885. You are Professor of Law in University College, Cork?—One of them.

2886. You practised in the old County Courts and at the Assizes?—Yes.

2887. You are now in practice in the Circuit and District Courts of Cork?— Yes, principally in the Circuit Court.

2888. You express the views of the barristers practising in the Cork Courts?— Yes, after consultation with the members of the Cork Circuit Court, about fifteen on the whole.

2889. Your views generally would only be applicable to a large city like Cork?— Yes, and County Cork.

2890. Do the District Courts, in your opinion, function satisfactorily?—From my experience most satisfactorily.

2891. Would you suggest that there should be any increase in the jurisdiction of the District Courts?—I do not think so. I do not think there is any call for it at present. Our experience has been that the small type of County Court cases has gone into the District Court and the people are satisfied to take them there. On the other hand, some of these cases come before the Circuit Court Judge.

2892. What is your opinion regarding the jurisdiction of the Circuit Court?— I am in favour of the retention of the present system for many reasons.

2893. You would not favour diminishing the jurisdiction of it in any way?—I think the demand is there by the people for the retention of the present system. I think the general view in Cork City is in favour of it, and in connection with the commercial community I can speak in a way for them, judging by the views they expressed to me in the course of our business. They prefer to take their business in the Circuit Court than to proceed in the High Court when either is available.

2894. I suppose you are aware that there has been some criticism of the working of the Circuit Court. You think that has been fair?—I think it is largely due to the fact that the Circuit Court has not been implemented by proper Rules. I think myself that any defect in the Circuit Court system is due to the absence of the Rules. Much of the criticism centres round a long-winded cross-examination. That is due to the fact that there are no pleadings. If you had these pleadings on the file the Judge could control the cross-examination and put a stop to these long-winded notes. I have been on appeals before High Court Judges and have found that they find it difficult to know what the counsel is driving at. If he had his pleadings on the file he would keep to his four or five points and there would be a much shorter note. In connection with some of the questions put to Judge Kenny, the length of the note at present is enormous, due, in one aspect, to these rambling cross-examinations.

2895. You are satisfied that the absence of Rules prevents the Circuit Courts from getting a fair chance of working?—In that regard, certainly. Of course there are other aspects too, in which Rules would be of great assistance.

2896. Is it your opinion that jurisdiction in ejectment requires to be more explicitly conferred?—I think so. I think the section makes that apparent. There is not any express conferring of jurisdiction in the Circuit Court save that by reference to the old County Court jurisdiction. You see, they only confer ejectment jurisdiction by reference to the valuation—increasing the valuation from £30 to £60. Of course all ejectment jurisdiction, as some of the members of the Committee know, is statutory, and you have to go back to the County Court statutes to ascertain what is in fact the present jurisdiction of the Circuit Court. It is conferred explicitly in the District Court.

2897. Does the same apply in the winding-up of companies?—No; the winding-up of companies is, of course, a new jurisdiction conferred on the Circuit Court. It is of considerable importance, I should say, to a community as large as Cork City. The Judge referred to a winding-up case that came before him. It was a case of considerable importance in this sense, that the principal creditor was an English creditor, who was involved to the extent of £6,000. I happened to be in the case for the English creditor. The liquidator appointed was one of those competent gentlemen to whom reference has been made here. I submit that, from our experience in that case, more money was collected as the result of the local administration of that company than could possibly have been secured by a winding-up in Dublin. Firstly, the liquidator was on the spot; he knew who the debtors were, and by the assistance of local knowledge, as well as his activity, he got in far more money than he ever anticipated he would get in.

2898. Senator Dowdall.—I hope it was reflected in your fee?—There was no regular scale of fees allowed in that case, but his Lordship takes a good, sensible view of all these things. He works under certain rules.

2899. Chairman.—Is there any lunacy jurisdiction?—Oh yes, there is. That comes to us from the County Court Acts and is developing every day. The mental hospital authorities are searching their books to ascertain whether people in their charge are entitled to a share in any estates. Oftentimes they discover that there are such persons, and with a view to economising and saving the rates as well as they can, they direct proceedings on the lunacy side of the Court. Also the Solicitor for Lunacy in Ireland, Mr. Robinson, has become more active in regard to that. Consequently I anticipate a development on the lunacy side of our Court. The jurisdiction at present has been increased; it used to be only £500, but now it goes up to £1,000.

2900. What is the position in regard to bankruptcy?—Bankruptcy is a separate jurisdiction and has been a long time in existence locally—since the Act of 1888. Mr. O’Connell is the local registrar and the Judge is the Judge in Bankruptcy. It is of vital importance. They also have jurisdiction in the County Kerry, but I think the number of cases in County Kerry is very small; possibly the Kerry jurisdiction would come under the Circuit Judge for that area. It is a well-established Court, does its work excellently and is of tremendous advantage to the local traders. The costs are exceedingly moderate.

2901. You suggest in your précis of evidence that claims for judicial separation might go before the Circuit Court in certain cases?—That occurred to me in going through the various sections. There is a class of case where an outraged wife in poor circumstances would be entitled in the ordinary way to a judicial separation. Owing to the fact that the jurisdiction is reserved to the High Court, she has no possible chance of getting what the law should confer on her, namely, a judicial separation. She ought to get that in the local Court. I do not say that that will occur very often, but it does happen sometimes. I qualify my suggestion by saying that there ought to be evidence required as to the inadequacy of means of the parties to proceed in the High Court. As a matter of fact, there is a pending suit on the part of parties who are in a very poor walk of life, and it is ridiculous to have to institute those proceedings in the High Court in an undoubted case in which relief ought to be granted to the wife. Of course I do not know whether the Circuit Judges would like to take on this additional burden. In point of importance it is not very much more than a good abusive language or assault case.

2902. Senator Brown.—The difficulty would be limiting the jurisdiction—knowing exactly what size of case it ought to apply to?—That would be so. I should say that it would depend on the proved means of the husband.

2903. Could you fix it by limiting the alimony, or whatever you call it, to a certain amount?—Yes. A man earning a weekly wage would be in a position that would be known, and in such a case there would be evidence, I should say, satisfactorily to enable the case to be proceeded with locally.

2904. Chairman.—You suggest the amending of Section 52 (iii) by adding the words: “or where the executors or administrators or any of them reside.” Will you explain your reason for that?— In these probate and administration matters, at present, where the testator or the intestate at the time of the death had a fixed place of abode, that is the place where the jurisdiction is conferred. Oftentimes that is awkward, because the intestate may die in some county home away from his local home. That is really a case that ought to be determined locally, and I suggest the addition of the words that were in Section 33 of the old County Court Act of 1877, which gave the right to bring the case where the executors or the administrators or any one of them resided. We had cases like that where parties mentally unwell were transferred to homes outside Cork; their estate was in Cork and was being administered in the local Court, but their permanent place of abode was away from the city because they had been away for twenty years. That also arises in connection with some small American estates.

2904a. You also suggest amending paragraph (vi) of the same section by adding the words: “or in tort where defendant resides, etc., or where tort was committed”?—Yes. The reason I suggest that is, because of two or three cases that have occurred recently owing to the development of the motor traffic. You have serious injuries inflicted by motors on. say, Cork county people. These injuries were inflicted by a person who came from England in one case, and by persons who came from outside areas in other cases. In the case of England, it is at present impossible for the local person who has been injured to proceed against a person in England unless he goes over there, whereas the insurers of the car would be quite prepared to conduct the proceedings in Ireland in any of the approved local courts. The other case is that of tourists and others who come in with cars, the tort being committed within the jurisdiction of the Circuit Judge of, say, Cork. The Judge ought to have jurisdiction to try such cases. Of course, I can see the legal difficulty of bringing an English person over here; I can quite understand that, but that is the position at present owing to the change in the legal system.

2905. Do you believe that the Bar is deteriorating as a result of the present jurisdiction of the Circuit Court being so high?—I have to confine my remarks solely to the local Bar; I do not want to criticise the High Court Bar. From my experience, I think the introduction of High Court jurisdiction and, of course, correspondingly more important cases, has greatly enhanced the standing, if I may use the word, of the local Bar. They are put more to their experience, to their studies and, of course, to reference to books. In other words, they regard some of these cases as in fact being High Court cases and as having to be dealt with on an entirely different basis from the old County Court case.

2906. Would a barrister attending Circuit Courts outside the larger cities get sufficient work to keep him going?—In some towns, from my experience, I believe they have. In Cork city and county there is substantial work for at least four barristers. I think you could say that they are making a reasonable livelihood out of it. Then they are always changing and newcomers coming along. They have to wait their time, and the interval of waiting for junior barristers is, I think, getting longer. The reason for that is that in the old days the junior barrister was put into cases in the County Court much sooner than he is now put into Circuit Court cases by the local solicitor, because the solicitor now regards the Circuit Court cases as more important. The District Court has really taken away the training ground of the smaller type of cases. On the other hand, the Circuit Court Judge’s jurisdiction has given a great deal more important work to the barrister, and, of course, it is of a general character, which is our great difficulty. It comprises all sorts of cases. We have Admiralty and Probate cases, and a man has to make himself reasonably proficient in these things. The local barrister is not the person he is represented to be by some parties. He cannot afford to be. A barrister who does not keep in touch with modern Courts and present-day conditions puts himself entirely out of court. He does not do it. In my twenty years’ experience there has never been such a profusion of law books and reports in country towns as there is at present. There used to be great difficulty in this respect, but now every solicitor provides himself with modern text books, including, of course, Halsbury’s “Laws of England” and “Digest of Cases.” That is in part due to the enterprise of publishers as well as to the industry of barristers and solicitors. We have a very good Law Library in Cork. Judges and practitioners were surprised at the number of books it contains. It embraces several old Irish books which are difficult to get. We have got the regular reports and modern text books. We are bound to keep them up to date, as otherwise the various law points that crop up could not be adequately dealt with. I should also say that members of the local Bar do all they humanly can in endeavouring to distribute the work among senior counsel. They are always glad to have them come down. They would be glad if it were made possible for senior counsel to come down as often as they can. The Judge has always facilitated senior counsel when a solicitor applies to fix a day for their attendance. The difficulty at present is the question of fees. If senior counsel would charge moderate fees they would take their share of the Circuit Court work as well as ourselves. I suggest that the reason they do not come down more frequently is that they have quite enough work to do in Dublin.

2906A. You suggest that the Circuit Courts should be given original jurisdiction to grant injunctions in certain cases? —Yes. They have at present jurisdiction in small cases. There is an absence of jurisdiction to grant a primary injunction. In important cases such, for instance, as a menace to a building or difficulties regarding the discharge of a vessel, the Circuit Judge has no jurisdiction. Another case would be where a trading agreement has been broken by not observing a covenant regarding exclusive trading or trading within a certain area. That would be a case for injunction and, possibly, damages. An interim injunction should be granted by the Circuit Judge. He grants injunctions in title and property cases when the main topic is being dealt with.

2907. On the question of Circuit Court appeals, is it your opinion that the system of appeal on notes is unsatisfactory?—I, and all local barristers, find it almost impossible to follow an appeal because the hearing of it clashes with an important sitting of the local Court. There is great difficulty in ascertaining when such appeal is likely to come on. I think that these notes, about which so much has been heard, would be reduced to one-half or one quarter if pleadings were required and the points brought before the judge in the first instance.

2908. Is it not otherwise unsatisfactory?—Yes. It is unsatisfactory from the point of view that the parties were always accustomed to see the Judge and hear the evidence on appeal. Now they sometimes do not know the result until they get a letter from their solicitor and sometimes they do not get even that.

2909. Senator Brown.—And do not believe it when they get it?—Yes. Counsel writes a short note to the solicitor saying “This case was decided against us. Costs above and below against.”

2910. Chairman.—Is it your opinion that there should be an appeal on facts or should the Circuit Court judgment be final on that?—I think there should be an appeal on the facts as well as on law points, for the reason that often the Circuit Court litigant does not feel satisfied with the decision on a question of fact. I do not think that an appeal on facts should be tried by a single Judge. It should be before two Judges.

2911. Are not appeals in the Supreme Court dealt with satisfactorily on notes? —That is, an appeal from the High Court?

2912. Senator Brown.—A new trial motion?—At present an appeal from the Circuit Court corresponds to a new trial motion as to whether the Judge was right in drawing an inference from certain facts. I think that country litigants would be in favour of the old Assize appeal before two Judges. If I may say so, what you want is to establish respect for the law all over the country. The State summons that runs in the wilds of West Cork is what you want to establish and I think you will do that by setting up an Appeal Court from the Circuit Court but there should be two Judges instead of one.

2913. Chairman.—How often do you suggest they should sit?—I would suggest three times a year. In the old days we had the Assize Judge in March and July at the Spring and Summer Assizes. The Judge also came for the Winter Assizes, but, except for one portion of Ireland, he dealt altogether with criminal cases. I am glad to say that crime has almost disappeared from our county so that if there were a similar Judge now he would have very little to do. The Appeal Judges should sit on days which would not clash with the sittings of the Circuit Court so that the Court would be occupied solely by these Judges.

2914. In cases of re-hearing would you favour the retention of the stenographer’s notes?—Undoubtedly, for two reasons. First, because there is a record for all time in matters of title which often become controversial over questions of ownership of land and so forth. The second reason is that the notes would be a check on the veracity of witnesses. I do not go all the way with some persons who say that the old Assize appeal was really a re-hearing of what was originally a preliminary canter. I think that in the majority of cases the Assize appeal was an appeal before a Judge who might take a different view as to the facts and as to the law.

2915. Have you anything to say in regard to the High Court or Supreme Court?—No. I do not profess to speak on that as it would be outside my bailiwick.

2916. You suggest in your précis of evidence a number of minor amendments? —Yes. They are really technical. From my experience and from chatting with other practitioners I may say that we found these defects in the Act. Some of the suggestions are important and some are minor.

2917. I would like you to deal with them?—There are certain defects at present in the system which can be remedied by the introduction of proper Rules. Though we have had a sight of the new Rules we cannot speak of them publicly. So far as we can see, they are an excellent code of Rules and, except in some small particulars, ought to supply what is wanted. A modified system of pleading is what is wanted. That only exists in Probate matters and then only orally. Only in Probate cases is the other side entitled to know what the defence is and whether it is on statutory or other grounds. My first point is embodied under the heading “Debt collecting.” A good many commercial men have spoken as to the inadequacy of the present system whereby a decree under £20 in the Circuit Court cannot be turned into a judgment mortgage. They suggest that if you could devise a scheme by which decrees under £20 would be registered as judgment mortgages against persons owning land or property it would be a tremendous source of information to traders, people trading in a large way with the agricultural community. I would qualify that by emphasising the need for a small set of costs in connection with that. At present you can turn a decree for £20 and over into a judgment mortgage and the costs come approximately to £9 or £10.

2918. Senator Brown.—Costs of registration?—The whole thing, taking out judgment and registering affidavits.

2919. Registering it as a judgment mortgage?—Yes. That is added to the debt eventually. The next point deals with the matter of special defences. I take it that other witnesses dealt with the question of counterclaim and set-off. The question of juries in civil cases has already been dealt with by Judge Kenny who mentioned that he had had only two such cases.

2920. Deputy Little.—It seems rather extraordinary that you have not had more?—The reason is, I think, that we have every confidence in our Judge. It is really encumbering small cases, which can be adequately dealt with by a Judge of experience, to bring in six countrymen who will invariably take different views on the facts before them. The case referred to by Judge Kenny was a running-down case which in the ordinary way would be dealt with in half an hour but it took a whole day because there were addresses to the jury. As regards a case stated, I think that the old jurisdiction given to a Judge of Assize to state a case on a point of law ought to be given to the Circuit Court Judge in cases where his decision is final. Take, for instance, his decision on an appeal from the District Court. Nice legal points often crop up and at present his decision is final. The old Assize system of case stated would be more satisfactory.

2921. Senator Brown.—Has he not jurisdiction to state a case at present—a case in his own Court, not a case on appeal from the District Court?—Not at present, so far as I know. The old system of case stated was a power given by a separate Act of Parliament to the Judge of Assize.

2922. That is so, but should not the Circuit Judge have statutory power, if he has not got it, to state a case?—Certainly.

2923. Senator Dowdall.—The District Justice has.

Witness.—The District Justice, strange to say, can utilise it especially in connection with licensing cases.

2924. Senator Brown.—Before we pass from that, your evidence is that the Circuit Court Judge should have power to state a case on an appeal case from the District Court and also have the initial power to state a case on his own? —Yes. For instance, a law point may be discussed before the Circuit Court Judge and instead of proceeding to appeal the whole case, if the Judge stated a case on the particular point, it would facilitate matters.

2925. It would be cheaper and quicker? —Yes. A nice illustration of that arose in Cork lately in reference to a private Act of Parliament in which the Harbour Board was concerned. That came before the Circuit Court Judge by way of an ordinary Civil Bill for a few pounds. The Circuit Court Judge decided the case and both the English litigant and the Harbour Board agreed to his decision, but if it were appealed the Judge should be able to state a case on the particular law point involved.

On Section 48, par. (iii) the suggestion is made that power should be given to the Judge to appoint an independent engineer to visit and report in cases of title or cases of rights as to property. Those with experience of title cases, know how difficult it is to decide between two engineers as to whether a certain road or drain is being cut in a certain way or whether the rights arose in a particular way. It would be much easier to solve the differences as between the parties if the Judge were empowered to appoint an independent engineer to go to the place and make an independent report to him just as in Workmen’s Compensation cases, where the Judge refers certain difficulties to a medical referee.

2926. That practice obtained in the High Court. Whether there was real jurisdiction to do it or not, it was done frequently. Where there was contradictory engineering evidence the Judge appointed an independent engineer to report to him?—It would be a very valuable asset in these local cases.

2927. You think it should be a statutory power?—Yes. It may not be very often availed of, but it would be of great assistance to the Judges. They do not sit on the fences now as they did at one time.

2928. Chairman.—Is there anything else you would like to add?—I refer to Section 21, the Enforcement of Orders Act. I think at present that does not provide whether there should be a stay of execution on the lodgment of an appeal. The question for the Committee is whether the lodgment of the appeal should mean a stay of execution. I think the old system required the appellant to lodge some money. That was a deterrent to some extent against bogus appeals.

2929. That was in equity appeals?—In equity appeals. It should be made applicable in the discretion of the Judge. At present the Judge is asked on an appeal becoming a stay of execution to fix the amount of the security which is required. In fact, there is a case at hearing at present in the High Court in which that question arose, and in which there was a stay of execution by the fact of an appeal. If you look at the High Court Rules which deal with these matters you will find that the appellant had to go before the Circuit Court Judge and ask the Circuit Court Judge what amount should be fixed by way of security for costs. I think there should be either a definite statement that a stay can be only effected by the lodgment of a certain sum, as under the old equity appeal, or that it should be itself a stay, which would be a very improper thing in some cases. The District Court has some very complicated Rules dealing with this matter. The time limit there is very short.

2930. It would not be necessary in the District Court?—It would in the case of a party being dispossessed of a building.

2931. But the appeal from the District Court to the Circuit Court is a quick appeal?—It comes on within three or four months.

2932. Chairman.—You deal, in your suggestion as to Section 50, with the Rules to define Courts at which licensing applications may be made?—At present there is some confusion as to whether when the Circuit Judge grants a licence at a Court other than the ordinary licensing Court—

2933. Senator Brown.—Other than at the annual Court?—Yes, whether there is a necessity, as the statute stands, to get a confirmation of that licence. I think strictly there is, but it does seem an absurdity that you should have to go to the same Judge a few months afterwards and incur all the costs incidental to advertising and employing a solicitor to have it confirmed. When the Judge grants a licence in September or March it should be final, and not need to be confirmed.

2934. Senator Wilson.—Final for that year?—It only lasts for the year. It has to be renewed.

2935. Senator Brown.—I would like you to explain to the Committee—this is a technical matter—what alteration you would make in the jurisdiction section of the Circuit Court, Section 48, paragraph (iii), that is cases of ejectment on title, so as to make it clear. More than one witness has complained that that subsection is not quite clear. I would like your view as to how you would make it quite clear?—That is in reference to title and rectification of the Register. As regards the first point, my suggestion is that that is the only section entitling the Judge to deal with ejectments. The whole ejectment jurisdiction is running through the old County Courts Acts, the whole series of them. I think that seeing it is a new Court, a Court of Record, inheriting in one sense the old County Courts jurisdiction and having a new jurisdiction conferred on it there should be a definite series of sections conferring ejectment jurisdiction on the Judge.

2936. That you should not have to go outside the Act to ascertain the jurisdiction?—Yes.

2937. You have now to go to the old County Court Act?—Yes. It is better to modernise and codify our own laws than to look to old Acts of Parliament. Rectification of the Register arises in the same connection. It is a great advance to have that jurisdiction conferred on the Circuit Court Judge because, as you know, it is in the country these register errors have to be rectified.

2938. You would practically re-enact the old County Court system and have the limit £60 instead of £30?—Yes. There is a difficulty which arises in ejectment for non-payment of rent cases. That is in a peculiar position. The original Act of 1924 apparently gave jurisdiction to the District Court to give an ejectment for non-payment of rent where the rent did not exceed £100 per year in any tenancy, but it did not say whether there was to be a year’s rent due or not. In one case decided, the Judge gave a decree for possession where there was not a year’s rent due, and in the other case the decision was the other way, that there should be a year’s rent due, although the tenancy was a weekly one.

2939. How would you remedy that?— By clarifying the section when you introduce the new Act.

2940. Would you give power to the Court to grant a decree where there was less than a year’s rent due?—From the landlord’s point of view, I think it would be a great advantage to the landlord of small houses, that he should be entitled to get a decree for possession where a quarter’s rent on a weekly tenancy was in arrear.

2941. With power to the Judge to grant a stay?—Yes. In other words, that is a means by which the landlord could recover his rent. Of course, there is six months for redemption under Deasy’s Act.

2942. From your statement it would seem that the law on the point at present is not in a very definite form?—No.

2943. You made a very useful suggestion to give jurisdiction in probate cases to the Circuit Court of the district in which the executor or administrator lives? —Yes.

2944. Would that create any real difficulty in places where the assets were largely land and situated somewhere else than in the Circuit?—No, because the Circuit Court Judge’s decree would be honoured in any portion of the Free State.

2945. You seem to be fortunate in the local Bar in Cork. There has always been a practically local Bar in Cork?—Yes.

2946. And you have now a very well-equipped Library?—For years. It is an accumulation of gifts from Judges as well as purchases by the Association.

2947. When the Circuit Court system started in Cork there was an experienced local Bar?—Am I to answer that?

2948. You need not be too modest because I know there was?—We did our best.

2949. There was always an efficient local Bar in Cork?—The men who preceded us were very able.

2950. I know that and if I may say so I think their successors have upheld their reputation very well. That being so, a newly-fledged barrister going to the Circuit Court at Cork has the great advantage of being in an experienced legal atmosphere?—Yes.

2951. In fact, it is a Four Courts Library or a Castle Library on a small scale. He has the experience of the members of his own profession to appeal to and the advantage of seeing them at their work. After all, that is not a perfect test of the effect on the Bar of the Circuit Court practice in other places?—No, I can conceive cases in outlying districts where there would be a difficulty as to books and also in dealing with matters in the way in which we deal with them.

2952. You said that there should be more power to grant an injunction than at present. That is a very important point. At present there is jurisdiction to grant an injunction?—But it is ancillary to the other jurisdiction.

2953. You would give jurisdiction to the Circuit Court to grant a bare injunction?—A bare injunction, if that were necessary, in particular cases.

2954. That is to bring an action for an injunction?—Yes.

2955. It has never been possible to do that in any Court?—You had power to endorse your writ for an injunction.

2956. There is no reason why a reform of that kind should not be made if it was useful?—Yes.

2957. In your opinion there ought to be in the Circuit Court power to bring an action for an injunction in order to prevent something being done?—Yes.

2958. You suggested that the appeal from the Circuit Court in the shape of rehearing should be heard three times yearly?—Yes.

2959. Tell us roughly how you would divide the periods?—I would capture the appeals coming from the Michaelmas sittings in December.

2960. The Circuit Court work would be over before December?—Yes. My anticipation is that when you have the new rules working and the appeal list modified, as it will be it the rules be effective, then appeals would be dealt with in a centre like Cork in a very few days.

2961. And the next term?—I would capture the next term’s appeals some time before Easter or immediately afterwards, or let them come on in July. That would be capturing two terms. I think you would have very few appeals, and that two sittings yearly would be found sufficient.

2962. What are your views as to whether there ought to be discretion in the Judge as to costs? Should they follow the finding or should the Judge have any discretion?—I am afraid I have an unsettled mind on that. It depends on the side you are on. There are cases in which the Judge throws out the suggestion: “I think there ought to be no costs,” and if there is a very poor suitor, almost invariably the solicitors on both sides abide by the suggestion. The question is whether you ought to carry that into a statutory discretion.

2963. Senator Dowdall.—A case of the kind took place last week?—Yes, where a person was knocked down by a bus.

2964. Senator Brown.—That would be by consent?—Yes. You had a statutory discretion given in the County Court Act in some cases.

2965. Does that apply to the Circuit Court?— I do not think it does. We never availed of it. It comes to this, whether in a certain type of case the Judge ought to get statutory discretion. I would not like to have to decide, but I suggest that he ought to have discretion in certain type of cases.

2966. That is, in depriving a successful litigant of costs to certify the reason for doing so?—Quite so.

2967. Do you go so far as to say that the reason should be defined in some way? —I think that would be a good way out of it, if it was found by the Judge that the proceedings were vexatious. I think there ought to be discretion to disallow costs.

2968. At present have both sides to agree before you can proceed in the Circuit Court for a claim over £300?—Yes. We have done it several times.

2969. Would you be in favour of giving power to abandon the excess without the consent of the other party, in cases turning out to be over the jurisdiction?—I think that is logical, and follows the County Court rule, where you had a case over £50. Whether the litigants in a claim over £300 should not be entitled to do the same, I cannot say.

2970. I have forgotten what was the County Court rule?—On the face of the civil bill it was abandoned.

2971. It might occur that a contract claim turns out to be over the jurisdiction. Would you be in favour of allowing the plaintiff to abandon the excess without the consent of the defendant?—Yes, on the face of his process.

2972. At present can a solicitor accept service of a process in the Circuit Court? —No. I think the service in the old County Court required to be by a civil bill officer.

2973. And you carried that into the Circuit Court?—A solicitor cannot accept service.

2974. Should not a solicitor have power to accept service?—Yes. There was a reason in the old days for putting in that provision. It would be a great convenience to litigants and solicitors.

2975. And a saving in costs?—Yes. Instead of sending Civil Bills over mountainous districts, while, perhaps, the solicitor was living about ten yards away, he could accept service.

2976. Deputy Wolfe.—You spoke about the jurisdiction of the District Court. You have practised in special cases in the District Court?—Yes. We are often sent for.

2977. As regards the proposal to increase the jurisdiction of the District Court, is not that impracticable by reason of the fact that that Court in country districts only sits one day?—Yes. It is wholly impracticable in that sense. If you were to increase the jurisdiction you would put the Justices out of existence, as already they have too much work to do.

2978. Would it not mean, where you had a District Court and 50 cases in the list, that one case might take all day, and the parties in the remaining 49 would have to go home? Therefore, apart from being desirable, it is impracticable?—Impracticable.

2979. As regards the winding-up of companies you and I know that there is only one place in the Free State to do so?—We are agreed on that.

2980. There are smaller places?—Yes.

2981. And judging from that standpoint, the winding-up of companies is not so easy?—I agree.

2982. As it would be in Cork?—Yes.

2983. In Cork you have experts?— Yes. I think the accountancy profession is developing. That is rendered necessary by the income tax and other returns that are prepared by chartered and other accountants.

2984. Imagine a circuit in the Free State where you have a certain Judge who knows nothing about company law, a County Registrar who knows slightly less, and a solicitor who knows even less, concerning the winding-up of a company? —I agree that it is a specialised branch.

2985. I will put it this way: Is not the question of the winding-up of a company, apart from that, a question of some difficulty?—Eminently so.

2986. There might be a Circuit Court where there was not the necessary expert knowledge which we have in Cork?— Correct.

2987. As regards ejectments for non-payment of rent you pointed out the difficulty that arises on the construction of the section of the Courts of Justice Act, 1924? Has not that been amended to some extent?—By the Act of 1926.

2988. In 1928?—Not as far as I know. I know that you are the father of the original amendment, as you saw the absurdity of the position.

2989. Did not the difficulty arise there as to whether you could in fact evict a weekly tenant for non-payment of rent in advance?—That is so.

2990. Have you considered that alteration?—I think it should be put right.

2991. You suggest that when a new licence is granted in the Circuit Court, the licensee should not be asked to have what was done, say, in May confirmed in October?—Yes.

2992. At present is it not a question of some doubt whether that is necessary?— There is some doubt, but you take the safe course.

2993. The profession takes the line of least resistance, and incidentally that means that costs have to be paid twice?— Yes, and the second application runs the risk of objection by the authorities.

2994. There is no need I think for any such thing as an annual licensing court? —No.

2995. Would you give the Circuit Judge the option, when granting a new licence, of doing so subject to its being confirmed say at a later period not exceeding one year?—Certainly, in cases where the Gárdaí object to the condition of the premises, or require structural alterations to be made. I think in such cases the licence ought to be granted subject to these being carried out to the satisfaction of the Gárdaí before the next sitting of the Circuit Court.

2996. And to be brought up at a later court?—Yes.

2997. You spoke of minor amendments that are necessary. Take the Section of Deasy’s Act which refers to the endorsement on the back of an ejectment, which stated that if the amount of the debt with ten shillings costs, were paid within ten days, all proceedings would be stayed. Do you think that Section has served its day and might be usefully scrapped?—I think our Judge has decided that endorsement is no longer necessary.

2998. Do you not think that might be usefully scrapped?—I think so.

2999. Take the other case of an ejectment civil bill. A solicitor can print his name on a High Court writ but he must sign his name on the civil bill ejectment? —We have disregarded that for years. It is considered not good form to raise such a point.

3000. Do you not think it might be usefully scrapped by statute?—Yes.

3003. You said something about Circuit Court decrees not being in force after six years?—Yes.

3004. How long are they in force at present?—My recollection is that they last for six years, but there is an extension.

3005. Take a decree for £55. Is there any difficulty about it?—There is nothing to prevent the continuance in life of a Circuit Court decree.

3006. Is it not doubtful at present?— Very doubtful. The question is whether the rule of the District Court conferring a life of six years on a District Court decree is right.

3007. Is there anything in the Courts of Justice Act to curtail the life of a Circuit Court decree for £55 to six years? —Nothing at present.

3008. But the matter is uncertain?—I know of cases where some decrees are in existence for six years. It ought to be made clear that the Circuit Court decree has that life.

3009. It has at least six years’ life and that is what you are getting at?—Yes.

3010. But the matter ought to be cleared up before 1931?—Yes.

3011. At the end of this year the Section will become important as to whether decrees have or have not died, and it will become very doubtful, when the amount recovered is under £50, whether the old life of the County Court attaches?—There are cases which leave a doubt as to the life of the decree.

3012. As to the question of matrimonial jurisdiction, you suggest, and it often occurred to me, that at present the poor man is anchored to his wife—he cannot get a separation and has no redress at present?—That is so.

3013. Would you suggest that the Circuit Court might be usefully opened for him to give him a chance?—I think so, or confer on the District Justice some increased powers in relation to maintenance of a deserted wife. There is no doubt that there are a great number of desertions in the Free State, due either to persons going to America, or marriages here during a particular period, and the husbands deserting the wives.

3014. Do you think that it would be done more effectively in the Circuit Court?—Yes, by giving the Judge power to grant alimony under stringent conditions, attaching the salary if necessary.

3015. Senator Wilson.—Would pleadings increase the costs in the Circuit Court?—Very little. We have pleading on the equity side at present, and the fees attaching to it are very small.

3016. Would the increased cost be counter-balanced by the fact that there would be shorter notes?—I think so in the event of an appeal.

3017. Do you know any country where there is an appeal on fact?—I understand there is not, but there is no other country like ours. We have grown up with this old privilege of re-hearing.

3018. Do you think a system which is unique in the world and which gives rise to perjury, ought to be perpetuated?—I do not think the re-hearing on fact gives rise to perjury. I think the restriction of perjury is largely in the hands of the Judge. If the Judge knows his business he can put a stop to perjury, either in the Circuit Court or in the Court of Appeal.

3019. Senator Brown.—There is far more perjury discovered on appeal than there is created by appeal?—Yes.

3020. Senator Wilson.—You said that there should be power to give a mortgage on a man’s land for a judgment under £20?—Yes, speaking from the point of view of the trader who has advanced money or supplied goods to persons having land. I am not concerned with it as a barrister. I am speaking from the point of view of the efficiency of your Act.

3021. You would agree that there should be an expense of £8 or £9?—No; I have qualified the suggestion by saying that the cost of turning a decree under £20 into a judgment mortgage should be as small as possible.

3022. The cost would be £8 or £9?—It is the Rule-making authorities’ duty to make them as small as possible in such cases.

3023. Do you not think it would be ridiculous to mortgage a man’s land for £19? —I do not think so, because I think that side by side with the efficiency of your local administration comes the development of your industrial credit, and if merchants in this country and in other countries supply goods they ought to be entitled, as they have been in England to see what is the type of man to whom they are supplying goods. It applies to our own local merchants as well as to others.

3024. As a matter of fact, Judge Kenny said the payment of debt was very well done?—Very well done.

3025. This is only creating a chance for abuse in my opinion—giving the lawyer an opportunity of creating costs?—I am only expressing my view. I do not wish to argue the matter. There are two sides to the question.

3026. As to licences, there are not many new licences granted now?—A new licence, in the sense we have been using it, referred to matters, say, arising as the result of the accidental lapse of a previous licence or some other fatality in connection with it, and also in connection with a hotel licence.

3027. A District Justice gave evidence here that he would be glad to see the jurisdiction of the District Courts in contract increased to £50, and he said that sometimes his day’s work only lasted for two minutes?—I should like to occupy his position. I do not think there is any need for an increased jurisdiction in contract. In fact, if there was to be an increased jurisdiction in the District Courts, I should like to increase it in tort, because it is limited at present to £10.

3028. He does not want it increased in tort?—It is not what he wants, but what the public want.

3029. He had an argument against increasing it in tort, but he said that in contract it would benefit the public if he had the power to deal with cases up to £50—that he was quite competent to do it, and had plenty of time?—I have no doubt as to his competency, but I do not think that there is that need for it.

3030. Chairman.—In the ordinary country districts, apart from the cities, would it not be an advantage to the traders if they could proceed for sums up to £50 in the District Court?—In answer to that, I would say that 90 per cent. of the country cases are under £25. In fact, we have looked through long lists of these traders suing in our Court in the old days, and they were all under £10. It is only the exceptional case that is over £25.

3031. Deputy Wolfe.—As to ejectments for non-payment of rent, the Courts of Justice Act, 1928 (No. 15 of ’28), Section 16 (2), says:—“Notwithstanding anything in clause (iii) of paragraph A of Section 77 of the Principal Act, the District Court shall not have jurisdiction in ejectment for non-payment of rent in respect of tenancies less than tenancies from year to year or where less than one year’s rent is in arrears”?—That restores the status quo, and brings you back to Deasy’s Act. The question for the Committee is whether that is correct. I think it was a pity in one aspect not to allow the new section to have remained with modification. At present you cannot get a decree for possession in a non-payment of rent case unless there is a year’s rent due, a yearly tenancy being in existence.

3032. Would you reduce the year’s provision?—You can conceive a case where that would be a reasonable provision and, to a certain extent, it protects the tenant, because it gives him six months in which to pay up the arrears. If he wants to show bona fides and to retain the tenancy, he will make an effort to pay up. In the other case, if he is ejected for non-payment of rent, it lies with the Judge whether he should give one or two months. Oftentimes Judges take different views as to the extent of the stay.

3033. Deputy Little.—You have heard complaints that have been made since the institution of the larger jurisdiction that it has a bad effect on the junior Bar. You do not find that in Cork?—No.

3034. Do you think it has a good effect, because it puts the young men on their mettle quicker?—Unquestionably.

3035. Do you find there are any abuses of professional etiquette?—Absolutely none. The relations between the two professions are ideal so far as we are concerned.

3036. Also there are means of striking out for the younger men?—Yes. The tendency of the solicitors is to try to encourage them. They welcome newcomers on the circuit.

3037. Do you think that the fact that there has been a change may account for that happening in other parts of the country and that once the change was well established that would disappear?— Yes.

3038. You suggested that in actions for tort the case should be dealt with in the jurisdiction of the Judge where the tort occurs?—In particular cases.

3039. Certain accident cases?—Yes.

3040. How would you enforce the judgment outside the jurisdiction?—In the Free State I see no difficulty.

3041. I am thinking of outside?—You have to await the time when we will get back our rights under the Judgment Extension Act. You know the position in reference to that. The position at present is that you can extend the judgment from England to Ireland, but you cannot do the converse. The Judgment Extension Act in England entitles them to extend a judgment granted in England against an Irish debtor or defendant, but the contrary arrangement is not in force. I think it is the subject of negotiation, just like the Workmen’s Compensation difficulty.

3042. Have you anything to say about the Enforcement of Orders Act; do you think that Act is too harsh and that it operates on the mind of the Judge and makes him hesitate to give an order?— No. I should say that we have not much to do with the practical working out of it. Our business and interest end when the decree is granted. It is more a question for the solicitor. I have heard of the heavy expenses put on defaulting defendants by the present sheriff’s fees, but that is not a matter for me.

3043. Some people suggest that it would be a good thing if the Judges could be changed about. You practised in the old County Courts. Had you any experience of strained relations arising between the practitioners, and a particular Judge?— No, except through the fault of the practitioner himself. He may have had some tiff with the Judge, but it passes over. The Judge is too big a man to regard these things seriously or continue them in his mind.

3044. I am rather thinking of the old times. You seem to be particularly fortunate at present in Cork?—Very.

3045. That might apply in some other parts of the country, and I thought you might draw some conclusion from former experience?—No. I think we were always extremely satisfied with the three Judges we have had—Judge Bourke, Judge Conner, and Judge Kenny—three ideal men.

3046. You could imagine it where there are only small towns in a particular area? —The smaller the area, the greater the liability of that occurring.

3047. Would you have any view about the practicability of changing Judges?— I have to look at it from the general point of view, and not the local point of view. Looking at it from the general point of view, there may be cases or occasions when it might be advisable to change a Circuit Court Judge from one district to another, but I think the Judge would have to be consulted, because he has more or less established himself in a particular district. He is obliged to live in the district, and has probably purchased a house and things like that.

3048. It would probably be preferable that it should be done by the Judges amongst themselves rather than by the Minister?—I think so.

3049. In reference to winding-up companies, do you think it would be necessary to make a distinction between the jurisdiction for the country districts and the city. You have all the appliances in the city, but you have not got them in the country areas?—In a great many of these cases, the winding-up is a matter of great simplicity, and if the question was to provide a liquidator for a local Circuit, I suggest that there would be no difficulty in having a man from Dublin appointed or some accountant in one of the big local firms. It is only really in the larger type of case that you have any technical difficulties in winding-up a company.

3050. Do you think there would be any danger of an Appeal Court with two Judges overshadowing the Circuit Court in this way: That the people will say “We will have a shot at the Appeal Court as we have them here?”—I do not think so. I think the litigant looks at it from a certain point of view; the average countryman looks at it from the point of view of the number of cattle that the appeal would cost him. That is the attitude of people in the Counties of Kerry and Cork. They say: “I think this will cost me another beast.” That is exactly what one litigant said when he was going to appeal.

3051. In the matter of pleadings you have had experience on the equity side. Do you find that it requires considerable skill?—In equity I think it does, but on the simple pleading suggested under the new Rules there would be no difficulty. The possibility is that the sensible solicitor, too busy to deal with these matters, will transfer them to the barrister. The great thing about it is this: Pleading involves the necessity on the part of the solicitor to have out the work earlier than he was accustomed to do. That was one of the complaints we had in the old County Courts—that we did not get our work in time. It was due to the fact that you travel with the Judge and often you got your work on the morning of the sitting. That is all changed now and the solicitors are inclined to get out the work earlier; consequently there is increased preparation. One can study the authorities if there is a case to get ready in which authorities are needed.

3052. Senator Dowdall.—You say the local Bar in Cork is very satisfactory?— There are about fifteen of them altogether. They do not all attend all the Courts. Some of them come from Dublin and return to Dublin.

3053. Is it not possible that in such areas as Limerick, Waterford and Galway under the present jurisdiction similar Bars will grow up?—I do not know. I rather think the Waterford men would like to go back to Dublin. At present, there are recognised members on the Waterford circuit and they will remain doing that—going up to and coming down from Dublin. The Cork Court is more continuous and we have a variety of business there, much more than in any of the other circuits. We have Bankruptcy and District Courts working, and Estate Duty Appeals are heard during the time the Court is not sitting.

3054. We have had evidence that not infrequently small amounts are claimed in the High Court and to defend such claims will involve a defendant living in a distant part of the country in a considerable amount of expense?—I consider it a very reprehensible thing to issue a writ, as was done recently, against a man for £3 1s. 6d. The Order he got was: “Unless this sum together with £3 10s. costs be paid within so many days …” These cases are exceptional and they ought to be made more so. They ought to be penalised for doing such a thing.

3055. With regard to winding-up companies, we know that that is done very advantageously in Cork, due to the local knowledge of the man entrusted with the liquidation?—Yes.

3056. We know chartered accountants are available in Limerick and Waterford. Would you be in favour of taking advantage of the local knowledge of the liquidator where available and leave ill optional to the Circuit Court Judge to wind up a company in an area other than Cork?—Do you suggest winding-up a Limerick company in the Cork Circuit Court?

3057. No, but if an application were made, say, to the Circuit Judge in Galway to wind up a company in his area, he might, if he thought it were to the advantage of the party, give him the option of winding up in his area?—Do you mean is there machinery in existence for that purpose?

3058. I do not know if the machinery is in existence, but would it be well to provide such machinery in the revised Act?—In that case the persons requiring the company to be wound up ought to satisfy the Judge that it could be dealt with adequately in the circuit area. It is absurd to send so many companies to the High Court, and that could be avoided when you have local machinery. It is like the local bankruptcy jurisdiction.

3059. I take it you favour the proposition that a successful plaintiff be given every facility within the law to recover his debt?—Yes.

3060. For that reason you favour a judgment mortgage? That is for the reduced amount.

3061. Subject to reduced costs, of course?—Subject to a very modified scale of costs.

3062. It has been put to you that the system of appeal by re-hearing is unique, and that it exists in no other country?— Yes.

3063. We have had evidence here that our people are litigious. In your view, have they the right to appeal on fact as well as on law, if they are prepared to do so?—It seems to me they ought to have, but, of course, it is a peculiar thing that they should have the same facts over again before another tribunal. It certainly leads to the ascertainment of the truth, and you will have two Judges dealing with a particular question of fact.

3064. With a system of appeal by rehearing—two Judges travelling on circuit —would you be in favour of the retention of the stenographer’s notes?—I would. I think we have dealt with that on other grounds.

(The Witness withdrew.)

Mr. John J. Horgan, Solicitor, Cork, a Representative of the Southern Law Association, called and examined.

3065. Chairman.—Mr. Horgan, you are a solicitor practising in Cork and district?—Yes. I propose to give evidence in my capacity as a solicitor. I have been 27 years practising in Cork city and county, and I have had experience of the courts during that time.

3066. You are a member of the Council of the Incorporated Law Society?—Yes, and a past president of the Southern Law Association, member of the Circuit Court Rule-making authority, member of the Council of the Cork Incorporated Chamber of Commerce, Cork Harbour Commissioner, etc. I have commercial experience also, and I am a director of one big company, so that in addition to my legal experience, I have a good deal of commercial experience of the working of the courts. However, I am here to give evidence specifically on behalf of the Southern Law Association.

3067. As regards District Courts do you suggest any amendment of the Act, or do you suggest any increase in the present jurisdiction?—I am quite satisfied with the District Court as it is. I think a change from unpaid magistrates to the present system of a paid judiciary operating entirely in a district has been an absolute and unqualified success in every way. In Cork city and county we have had the utmost satisfaction. In the beginning there were District Justices new to their jobs, but most of them have shaken down, and they are satisfactory from the point of view of the public.

3068. You consider the District Courts are satisfactory so far as you are concerned, and that there should be no change?—I do not think there should be any change in the jurisdiction. Any change that could be made would be infinitesimal and of no use. Somebody suggested increasing the jurisdiction to £30, but that would be useless. As regards the District Courts, I think some provision should be made for enforcing their powers on the civil side. At present a person can be subpoenaed, but I am not aware of any power under the Rules by which that can be enforced. If a person chooses to ignore it, he cannot be committed for contempt of court. That should be remedied.

3069. We have had evidence on that. As regards the Circuit Court, do you think its jurisdiction should be increased or diminished?—It must be remembered that a mistaken view has been taken on that by some eminent people, in fact by some people who might be described as parents of the system. In talking of the Circuit Court they seem to think they are talking about the old County Court. That is a perfectly absurd view to take of the matter. The Courts of Justice Act set up an entirely new court with an entirely new jurisdiction, and adopted an entirely new principle in the administration of justice in this country. It has made the administration of justice centrifugal instead of centripetal. It has brought it home to the hearts of the people. The old system had its merits. I think it was an admirable system in many ways, but it was a system framed for another country, and to which it was suited.

3070. What are your views on the question of jurisdiction?—I am absolutely certain the jurisdiction should not be reduced. Two things have to be remembered in connection with that. First, a great deal has been made of the point that £300 is an enormous amount. The old County Courts dealt constantly with amounts of £300 in Workmen’s Compensation cases. Objection has been raised on the question of pleadings. In the Workmen’s Compensation cases there is a definite system of pleading. It must be remembered that a jurisdiction up to £300 is not much more than a £150 jurisdiction, when the value of money now is compared with that of pre-war. If the jurisdiction were reduced to £150 that would be virtually going back to the old County Court jurisdiction, which would be an absurd position.

3071. Do you consider that the decentralisation of justice has meant a deterioration of the Bar?—Certainly not. In Cork we have a perfectly good law library, and several of us have good libraries of our own. Any man who cares about his profession and is competent keeps himself up-to-date in his books. Those who cannot afford to do that borrow books from those who have them. I think we are one of the most fraternal professions in the world in that respect.

3072. Does that apply to the area covered by the Southern Bar Association? —It applies to the whole county of Cork. which is the only area covered by the Southern Law Association.

3073. Senator Dowdall.—But it is one-eighth of the area of Ireland.

Senator Brown.—And it represents one-eighth of its wealth.

Witness.—Yes. As regards the commercial community we find that the Circuit Court has been a great success, but it has been terribly hampered by a lack of proper Rules, especially in the marking of judgment in default. Suppose I issue a Civil Bill, I have to wait until the Court sits to get my judgment. There are no Rules to enable you to enter a judgment in the office, as in the High Court. If a man wants to get away he has ample opportunity of doing so. People very often have to waste time in Court waiting for their cases to be heard. With a proper default procedure that could be obviated, and it should be obviated.

3074. Chairman.—How could that be done?—It could be provided for in the Rules.

3075. Senator Brown.—You would have the order signed by the Registrar?—Of course.

3076. There may be constitutional objections to that?—There is no objection, I think, that cannot be got over by an Act of Parliament.

3079. Senator Brown.—I mean you cannot work that simply by Rule?—I am not going to challenge your opinion on that. There was a procedure in our Rules for dealing with it. In any case, a Circuit Court Judge is not so inaccessible that he could not be got to sign orders as they came in batches. That would work better than the present system.

3080. Chairman.—With regard to the present system of appeals, are you of opinion that it has failed to function properly?—Yes and no. I am absolutely of opinion that it is a public disgrace in its functioning as regards time. I will give an example. There is a case in which I am interested, which was heard last February. It was a case where the only question involved was the amount of damages. The plaintiff was rather poor. A shop front had been destroyed by a motor car, and she had to get the place repaired at once. The other side appealed on the question of damages. This case was heard in February, 1929, and it is now January, 1930. I asked the other day when the appeal was likely to be heard, as my client was complaining of the delay, and I was told it might be heard, if I was lucky, in eight months. That is an example of the working of the system.

3081. Might not that be due primarily to the inadequacy of the appeal tribunal rather than to the system?—I quite agree. I am talking about the question of time, or delay.

3082. What do you suggest is responsible for the delay?—I am not a High Court official and cannot tell you, but I think it is probably due to the inadequate number of Judges. Once you appoint a great number of Judges you do away with the fanfare of trumpets that introduced the Courts of Justice Act. We were then told there was to be a tremendous reduction in the cost of the administration of justice. Even if it costs more, people are entitled to a speedier administration of justice. The delay at present is a disgrace.

3083. Assuming the hearing of appeals on the present system could be speeded up, do you think the people generally would be satisfied with the system?—I do not. I know there is the argument that no other country has an appeal by way of re-hearing. That is a perfectly logical argument, but like most logical arguments it falls to the ground when applied to this country. You must take this country as it is with its own peculiarities. There is no doubt that in this country a litigant feels, unless he sees and hears a Judge on the second occasion, that he has not got value for his money. Very often the second hearing is entirely different from the first on the presentation of facts. It is essential to my mind to have, sometimes, certainly not in every case, but in a small percentage of cases, a second hearing. You very often get at the truth on a second hearing and you do not get it the first time. I am sorry to have to put it that way.

3084. Chairman: You are of opinion that there should be a re-hearing on the facts as well as on the law?—Yes, where there is an appeal. As to whether that should be by one or two Judges I am indifferent. I think myself it would be better to have the appeal heard by one Judge. Other people hold different views on that. If you have a difference between the two Judges, then there is likely to be another appeal and each appeal adds to the expense. I would like to say as regards the whole procedure at present that in giving evidence in favour of the Circuit Court jurisdiction as it stands, I am giving evidence against myself and my brother solicitors, because there is no doubt that the old system, from the money point of view, was a far better one for us but I think the interests of the community in this matter are predominant over the interests of the legal profession.

3085. In an appeal, by way of re-hearing would you retain the stenographer’s notes also?—I would. I think the Court ought to have the stenographer’s notes of the first trial. I think every Court ought to have a stenographer’s notes, even the humble Court, the Coroner’s Court in which I sometimes sit myself. But I do not think we will ever reach that perfection.

3086. Will you explain to us why the appeals are so costly?—Because, of course, of the expense of the stenographer’s notes to some extent. Of course, the cost depends on the case.

3087. We have got evidence here that the stenographer’s notes can be obtained for 2d. per folio. If that is so, it seems to me that except in very exceptional cases, the costs of the stenographer’s notes should not run into a very large figure?—I think the costs of the whole system have been much exaggerated.

3088. We have got evidence here as to the expense from very responsible witnesses, even from the Taxing Master?—I am not challenging that, but I would not have thought myself that you could make out a very strong case from the cost point of view. I fancy a re-hearing of the case in the county town or the chief town of the district would be much more satisfactory.

3089. Would you say how often the Appeal Tribunal should sit?—From three to four times a year. Four times a year would be a counsel of perfection.

3090. Do you think it would be necessary to sit four times a year?—Three would be sufficient.

3091. Senator Brown.—On this question of the costs of the appeal under the present system we have had a quantity of evidence that the costs are substantially higher than the costs of a re-hearing would be. That is partly due to what has been called the cost of the shorthand notes, but it is really because of the costs that have been allowed the solicitor for briefing, and that is really the only way in which he makes his profit on the costs in a matter of that kind. What I want to know is, would you be in favour of a scale of costs—I am putting it to you as an experienced solicitor? Would you be in favour of a scale of costs rather than taxing the solicitor’s costs?—If you mean a scale according to the amounts sued for—that is the only way it would work—I would be in favour of that.

3092. And the same would apply to a re-hearing?—Yes.

3093. Under the old County Court system that was how it was worked?—Well, it was a kind of rule of thumb, but it was very fair. It saves overhead expenses in the solicitor’s office, which is a very important thing, because if you have to make out items of a bill of costs, it means a great deal more trouble and delay in the office and a great deal more expert assistance.

3094. If you revert to the old system of re-hearing would you be in favour of a proper scale of costs?—Yes; one of the things hampering us in the Circuit Courts is that we have no such thing at present. The legal profession has worked most amicably with the officials of the Court in this matter. I shudder to think what confusion there might be if the profession had not worked amicably with the officials. None of us has taken advantage of the absence of Rules. I do hope that the Oireachtas will do something to implement the Rules in the near future whatever you do about other matters.

3095. Do you think the present Rule-making Authority is the best one?—I happen to be a member of it myself.

3096. Well, I know it is a delicate question?—I tell you what I think—I think that the Rule-making authority, subject to the Minister, should be the only body dealing with the Rules. I think the Oireachtas has proved itself thoroughly incompetent in the matter of the Rules.

3097. You would have the Rule-making authority and the Minister the sole authority in the matter?—Yes.

3098. We have had evidence to the contrary, that the Rules ought to be made by the Minister with the advice of experts?—I favour the reverse, that the Rules should be made with the Minister’s concurrence as representing the Executive Council.

3099. Chairman.—Of course, Mr. Horgan will say that the Oireachtas is thoroughly incompetent, but, Mr. Horgan, you know the limited way in which the Oireachtas can deal with the Rules?— When I said that, what I meant was that the Ministry of Justice allowed the matter to slide. They did not care whether we had Rules or not.

3100. Senator Brown.—There is one other question about the Circuit Courts which I would like to put to you. You were very lucky in having a very efficient Bar in Cork and you have a very competent and efficient library?—That is so, but I think that most of the principal country towns in the Saorstát, places like Killarney, Tralee, Waterford and so on have very much the same conditions as in Cork. Of course, in those other large towns they have not such big libraries as in Cork.

3101. There is this about Cork, that you have a resident Bar there; a Bar that always has had and always apparently will have, men of experience at the head of it?—I think it is inevitable that you are going to have that all over the country. I think Cork is not going to be unique in that respect. I think you are bound to have local Bars all over the country.

3102. Well, take the case of the Circuit which includes Sligo, Leitrim, Donegal— about six counties entirely—how are you going to have a resident Bar there?—You are going to have an ambulatory Bar there. You will have a number of men attending that Circuit and they will go round.

3103. That is to say, they would live in motor cars?—Not altogether, but they go up to these districts which can be reached from one central place. Transport is now very easy.

3104. I agree that with modern transport that will be possible. But will they have the training that the young Bar got under the old system—will they have the training that the young juniors got?—My answer is that there will be still room for a Bar sufficient for the needs of the country in Dublin. What is wrong with the Bar is that it is too big.

3105. It is too big everywhere?—Yes, and my point is that you cannot make the administration of justice to meet the requirements of the Bar.

3106. What I want is to have a Bar to meet the interests of justice. Unless you have an efficient Bar you will not later on have an efficient Bench?—You will always have an efficient Bench because you will always have sufficient High Court business to maintain the nucleus of a Bench.

3107. But if you have no junior Bar?— In the past the men who graduated in Dublin were able to go down the country, and, in the future, the practice in Dublin and in the local Bars will be sufficient to provide an efficient Bench. I do not think there is anything in that argument.

3108. You mentioned one matter in connection with the District Courts. That is the power of the District Court Judge to enforce a subpoena on the civil side?— Yes.

3109. You suggest that the District Justice should be given the right to commit?—Yes, that is the only way to do it, to commit or to fine.

3110. I think the old County Court had a peculiar system. It did not work. The man who did not attend as a witness was fined £5 or £10. There was a limit. Then the plaintiff, say at the other side, or whichever side applied for the subpoena, had to sue him in the County Courts. The man suing would get whatever amount up to that limit of £5 or £10 which he could prove he had lost by the witness not having been there. That was highly unsatisfactory?—It did not work in practice.

3111. You think the proper way is to give the District Justice power to commit for contempt or to fine?—That could not be done by the Rules.

3112. Senator Brown.—No. You would have to have legislation to do it.

3113. Deputy Little.—You say that the Oireachtas should not have any say in the matter of the Rules?—I say they should have a say, but it would be through their Executive Officer, the Minister for Justice. I think it is ridiculous to fling at a body like the Oireachtas a big bulky volume of Rules. You might as well send to the Oireachtas the technique of a surgical operation and ask them to advise on it.

3114. Do you not think that there is a principle involved—that the Oireachtas should have certain control over the Rules of Court?—I quite agree that they should have control, but it should be through the Executive Officer, the Minister for Justice.

3115. Except you have the Rules on the table for a certain time, there is no way of dealing with them?—There is a way of dealing with them if the Minister for Justice is given power to deal with them.

3116. Then how could you get the matter brought before the attention of the House if anything in the Rules wanted attention called to them?—Surely that could be done by putting a motion in the House. I do not think the Rules of Court are tabled in the House of Commons.

3117. Senator Brown.—They are?—If they are, nobody looks at them except the lawyers, but here we were so fresh that it was a different matter.

3118. Deputy Little.—Do you not think that the present draft of the Rules is better than the last and is not that an argument in favour of the rejection of the Rules by the Oireachtas?—Yes. Every new edition of a book is better than the last but if we got assistance at first we would have the Rules better still.

3119. Do you not think that the turning down of the Rules by the House has resulted in getting a better draft now?— You mean the matter about the jurisdiction of the county registrar. We had nothing to say to that. It was your Committee who were not asked to say anything about it at all who went out of their way in the matter of that jurisdiction.

3120. I was merely dealing with the powers of the Oireachtas. The point has been made that the ethical standard of the junior barristers is lower since the new system came in?

Witness.—What ethical standard?

3121. Deputy Little.—There was evidence given here that owing to the fact that the younger juniors were away from the law library in Dublin and away from the learning of a proper professional practice, this led to their doing things which were undesirable and against the interests of the members of the profession?—I think you might as well say that because I do not attend the Library of the Incorporated Law Society here in Dublin I have not the same standard of ethics or morals as the men in Dublin. I think one statement is about as sensible as the other. I have not seen any instance in the Bar of any falling away in a moral sense. Like every other profession it has people of different moral calibre. You cannot make a rule of thumb about it.

3122. Do you not think that the recent delay in the hearing of appeals is due largely to the fact that the reading of the stenographers’ notes takes too long? —Yes, the reading through irrelevant matter. There are no pleadings and everything is in a diffuse state. I certainly do not envy the High Court Judge who has to do that. A Judge dealing with the witness directly would reduce the time perhaps to ten minutes.

3123. Senator Dowdall.—Senior counsel who was examined here spoke with bated breath of what might happen the junior barrister going about the country without having the high moral influence of a senior who would hold his hand. Is there any justification for that view?— None whatever. We all have to learn to walk.

3124. Senator Hooper.—How is this Rule-making Committee constituted?— The constitution is laid down in the Courts of Justice Act*—one representative of the Incorporated Law Society, one representative of the country solicitors—I am that representative—two representatives of the Bar, four representatives of the Circuit Judges, with the Minister for Justice as an ex officio member. That is the constitution, as far as I remember it.

3125. When you draw up these Rules, what happens them?—They are placed on the Table of the Oireachtas and nothing more is ever heard of them.

3126. Senator Brown.—They go to the Minister first?—Yes.

3127. Senator Hooper.—What power has the Minister when he gets them?— He has power to revise them. He can come back to us and say that he wants certain things done before he puts them on the Table of the Oireachtas.

3128. The responsibility is on him? Yes. The Circuit Court Rules would not be in their present position only the Minister wanted to make a new Order increasing the fees. I said: “You will get no Order for fees until you agree to go on with the Rules.”

3129. He is not the final authority. He is subject to the Oireachtas and stands between you and the Oireachtas?—He is a kind of filter, through which we reach the Oireachtas.

3130. Litigants have no representation on that Committee?—No.

3131. Do you not think that it would be advisable that the public should have some representation in the matter?— Personally, I would not have the slightest objection to that, but if you do that the Oireachtas falls out of the picture.

3132. I suggest to you that the reason the Oireachtas is in the picture is to protect the public in some way?—Yes, but I suggest that the proper person to protect the public is the Minister for Justice. He represents the Executive Council—the Government of the country.

3133. He also being a lawyer?—Not necessarily. He was not always a lawyer.

3134. But in practice he is always a lawyer?—The late Mr. Kevin O’Higgins was not always a lawyer.

3135. You know that the Oireachtas has no power to amend the Rules?—They have only the power of rejection.

3136. Or acceptance?—Yes.

3137. You agree that the public should have some voice in the matter?—I would much rather the Oireachtas had the power of criticism, because the matter would have been settled if they had.

3138. You agree the public should have some voice?—Yes, through some properly-constituted authority. It is only a question of doing the work efficiently and expeditiously, instead of leaving it in the clouds.

3139. You think the Minister provides sufficient protection for the public?—Yes. He is amenable to the House.

3140. Senator Brown.—The worst of it is the Minister is the Rule-making Authority; the Committee is only advisory.

3141. Senator Hooper.—If Mr. Horgan’s view were carried out, there would be nobody to check him at all. On the question of appeals, you favour a fixed scale of costs?—I do.

3142. Would a fixed scale of costs result in cheaper litigation?—That is a difficult question to answer. You must first “catch” your scale.

3143. Assuming it was similar to the old County Court scale?—I think it would. A person would know what he was going to spend. People come and ask you what the cost of a particular action will be. A business man always wants to know what his overhead expenses will be.

3144. You agree that litigation would be cheaper in the average case?—Yes.

3145. The suggestion was made here that there should be exclusive jurisdiction in each Court—that is to say, that an action on contract up to £25 should be brought only in the District Court and correspondingly in the Circuit Court up to £300?—I do not agree with that, but I think where a person could have brought an action in the District Court he should not get higher costs than are given in the District Court unless the Judge certifies for higher costs. There may be a vital issue in a process for a shilling. A small case may involve tremendous issues from the point of view of the litigants.

3146. Senator Brown.—As, for instance, harbour dues amounting to £2 the other day?—Yes. I know all about that case.

3147. Senator Hooper.—Would you make your rule a cast-iron rule as regards that question of costs?—I think I would. I think that should be the rule, unless the Judge of the High Court certified to the contrary.

3148. Senator Farren.—On the question of appeals from the Circuit Court, I understood you to say that you are not in favour of the present system of appeal on stenographers’ notes?—No.

3149. You favour a re-hearing orally?— Yes.

3150. We have had evidence here to the effect that the cost of an appeal at present is a good deal higher than it formerly was, and I understood you to say that you were in favour of the stenographers’ notes being still retained?— With this qualification, that it would not be necessary if you had a re-hearing to produce the notes except they were called for by the Judge. I am in favour of stenographers’ notes in any Court of Justice, on the principle that you have a definite and exact record of what took place.

3151. Obviously, it would be necessary to have a full stenographic note of every case in the event of an appeal?—The notes would be only there for reference if any dispute arose as to what occurred in the Court below. I would have them filed in every case in Court.

3152. Do you not think that stenographers’ notes, plus a re-hearing, would be much more costly than the present system?—I am not assuming that the litigant should pay for producing the stenographers’ notes at the re-hearing. I am putting it that the State should, as a matter of course, provide a stenographer in every Court to take a record of the proceedings. If any party wanted to get these notes or use them, they would have to pay for them, but the notes would be there anyhow.

3153. Would you think it necessary that the Appeal Judge should have the stenographers’ notes before him?—Certainly not.

Senator Brown.—I think he should not have them before him.

3154. Senator Farren.—I understood you to say that an appeal by way of re-hearing, such as we used to have in the Assize Courts, did not obtain in other countries?—I have never heard of an appeal by way of re-hearing in any other country. I may be wrong in that. Senator Brown knows more about that than I do.

Senator Brown.—I do not think there is an appeal by way of re-hearing in any other country.

3155. Senator Farren.—Several witnesses stated that there ought to be a re-hearing as there formerly was in this country, that litigants wanted it. Is it good to encourage litigants in that respect?—You have got to deal with things as you find them. You have got to take our peculiarities into account. If the people want a re-hearing, if it is the most satisfactory way, and if it gives justice, is not that all you want.

3156. Is it not a notorious fact that the peasantry of this country are very litigious?—That is true, but that is not peculiar to the peasantry of this country. All primitive peoples are litigious.

3157. I understood we had a special dose of that sin?—Sir Henry Maine, in his “Ancient Law,” tells of gentlemen in India who came down from the hills after trying to kill their opponents and took to the Courts as an alternative. The Law Court, after all, is only a substitute for the dagger.

3158. I quite understand that, but it is very expensive?—It would be more expensive to be killed.

3159. I understood you to say that you did not favour the Oireachtas having any say in the question of the Rules of Court? —My reason being that it has been a purely negative interference up to the present, leading to nothing useful.

3160. Are you aware that the majority of the committee who turned down the Rules of your Court were lawyers?—I am.

3161. That seems to me extraordinary? —Not a bit.

3162. Deputy Wolfe.—As regards the turning down of those Rules, did you hear somebody say recently that they were turned down after six hours’ consultation?—That was the time, as far as I could see from reading the proceedings— about six-and-a-half hours.

3163. Would you be surprised to know that they were dead and buried at the end of an hour?—I would not. From my reading, I would say that they did not last ten minutes.

3164. There was a committee of ten dealing with those rules?—Yes.

3165. They were unanimous?—Yes.

3166. Did they know anything about what they were doing?—I think they had a very definite purpose in view.

3167. And they did it?—Yes.

3168. Do you suggest that the new Rules are better than the old ones?—Yes, but I think they are the old Rules camouflaged.

3169. The committee appointed had of course to consider the matter from the public standpoint and not merely from the standpoint of the legal profession. Do you agree that the Rules “would add to the cost, complication and delay of litgation?”—No.

3170. They were wrong in that?—I think pleadings would add considerably to the expediting and cheapening of litigation.

3171. You think the Rules as drafted and turned down by the committee would have added to the cost?—Not materially. They would have put the Circuit Court on a proper basis as a miniature High Court, which it really is. The chairman of the committee, I think, laboured under a misapprehension. He regarded it as the old County Court. He referred to it as the old County Court.

Chairman.—I do not see the relevancy of this examination.

3172. Deputy Wilson.—Supposing you were to institute pleadings in the Circuit Court, thereby tightening up the issues of fact, and the facts were then placed before a learned Judge of the Circuit Court, would he not be as good a Judge of the facts so presented as any appeal Court could be?—Certainly. I am not disputing that at all.

3173. Why then should you have an appeal on fact?—Simply because the custom has been to have an appeal. People ask for it and I think myself it is desirable.

3174. How do you know the people ask for it?—Simply from my experience as a practising lawyer. I know that the people are thoroughly dissatisfied with the present system.

3175. You spoke of a proper scale of costs to be drawn up. I take it that what you meant was that no one but members of the legal profession would have any say in that?—The costs would be part of the Rules and every iota in connection with them would come before the Oireachtas.

3176. A Judge who gave evidence before us this morning was very much against the suggestion that a Circuit Court registrar should be given the power to mark judgment in his office. He said it was the function of a Judge, and not of a registrar, to do that. Do you disagree with that?—I do not. All I want is some system by which judgment can be marked speedily. I do not care whether it is the Judge or the registrar who signs it. As a solicitor, I want some method by which my clients and myself can go in and get judgment marked, where there is no defence, against some rogue who is probably trying to get out of the country.

3177. Senator Dowdall.—There was one question which I omitted to ask you, Mr. Horgan. In addition to being a solicitor, you are a director of at least one company the capital of which runs into six figures? —I am Chairman.

(The Witness withdrew.)

Mr. James J. Mooney, Solicitor, a representative of the Southern Law Association, called and examined.

3178. You are a member, Mr. Mooney, of the firm of Babington, Clarke and Mooney, Cork?—Yes. I have had twenty-four years’ experience of work under the old County Court, the Petty Sessions, and the present Courts.

3179. You have heard Mr. Horgan’s evidence. Do you agree with it?—Generally, except in some very minor details.

3180. I do not want you to go over the ground that has been covered already by Mr. Horgan, but the Committee would be glad if you would explain wherein you agree or disagree with him as regards the District Court?—My opinion is that the District Court Rules ought to be amended so as to give the District Justice power to deal in inter-pleader cases. The Rules at present do provide for inter-pleader, but the jurisdiction given to the District Justice does not give him power at all. In my opinion, the Rules are ultra vires so far as inter-pleader is concerned. Mr. Horgan dealt with the matter of giving the District Justice power to commit for contempt of Court in the case of witnesses who fail to attend Court. I suggest that, instead of imprisonment, the District Justice be given power to inflict a very substantial fine. An order for imprisonment for contempt of Court is difficult to enforce if the person concerned lives outside the jurisdiction of the Court. I suggest that instead of imprisonment there should be a substantial fine, say, of £10, in the case of a witness who fails to turn up in Court. There is another matter I wish to refer to. It is in connection with default Civil Bills both in the Circuit Court and the District Court. Take the case of a plaintiff who is living outside the Court area. Once the defendant puts in a notice of his intention to defend, having at the same time no intention whatever of defending the case, it means that the plaintiff’s witness will have personally to attend the Court. I suggest the Rules should be amended to provide that an affidavit to ground the default Civil Bill would throw the onus on the defendant of proving his defence. Another matter that I think ought to be considered is the avoiding of personal service where the Court is of opinion that the defendant has been keeping out of the way. There is a procedure under the District Court. Rules by which, in an ordinary Civil Bill, there can be substitution of service on the defendant, but I do not think it applies to default Civil Bills.

3181. You are of opinion that it would be undesirable to interfere with the present jurisdiction of the District Court?— That is my definite opinion.

3182. Would you tell the Committee wherein you agree or disagree with Mr. Horgan in his evidence regarding the jurisdiction of the Circuit Court?—I agree with everything he said as regards the jurisdiction of the Circuit Court. I will not go into the matter in the same detail as he did. I would like to point out to the Committee some very strong reasons why the jurisdiction of the Circuit Court should not be interfered with. To begin with, it is obvious that if there is any interference with the present jurisdiction of the Circuit Courts that costs would be very much higher. It has to be remembered that in the local Circuit Court, we generally only have one counsel engaged in a case. In the High Court you must have at least two counsel. The big point about any change in the present system is the question of the cost of bringing witnesses to Dublin. You would have to bring up doctors and engineers in many cases, and also require the personal attendance of solicitors. The unfortunate litigants would have to pay for all that. It would be certain to amount to a very big item. Then you cannot be sure of the day on which your case will come on in the Dublin Courts. You may require to have your witnesses waiting at the Castle for four or five days. That would be another big item of expense. I think the only people who would gain by the change are the hotel and lodging-house keepers. The people in the country have now got so used to the Circuit Court that they would be very dissatisfied if the present jurisdiction was taken away. A man can get for a few pence on a tram to the local Circuit Court, whereas if there was a change in the present jurisdiction he would have to spend half a day in the train travelling to Dublin.

3183. You are satisfied, then, that the public in the area with which you are acquainted are perfectly satisfied with the present jurisdiction of the Circuit Court? —They are perfectly satisfied.

3184. And that they would object to any reduction in the present jurisdiction? —Yes. I think it would be a very great hardship on people who are not well-to-do to be put to all the expense they would be involved in if they had to come to Dublin with their cases, especially in those accident cases—running-down by motors—in which the plaintiffs as a rule are not very well off.

3185. I take it you are in agreement with the evidence given by Mr. Horgan regarding the present system of appeals? —Yes.

3186. Do you favour his suggestion that the taking of appeals should be by way of re-hearing with the stenographer’s notes?—That is where we differ a little bit. Where a case comes on for re-hearing, I think it is quite immaterial whether you have the stenographer’s notes or not. I think they would only be of use for the purposes of cross-examination.

3187. You are also of opinion that in the case of a re-hearing, it should be by one Judge?—I would prefer two Judges, but if it is a question of saving expense I would be perfectly satisfied with one Judge as in the old days.

3188. But you think it would be much more satisfactory, where appeals are being dealt with from the Circuit Court that there should be two Judges on the appellate tribunal?—I would prefer two.

3189. Senator Brown.—You are strongly of opinion that the present Circuit Court system is satisfactory and that litigants like the big jurisdiction?—I am perfectly satisfied that is so.

3190. In your experience is there any large proportion of heavy cases coming into the Circuit Court in Cork?—Yes, and in my opinion the number is inclined to increase.

3191. The reason I have asked you about that is this, that the Committee have got some figures* which to me were rather surprising. These figures relate to the number of cases disposed of in the two years 1928-29. I take it that they have been furnished by the County Registrar. In 1928, there were 978 cases altogether, and of these only 65 were over £200?—Yes.

3192. In the following year the number was a little more. The point that I am trying to get at is: how much the general public in Cork would miss the higher jurisdiction if it were taken away from the Circuit Court?—They would miss it greatly.

3193. But it is apparent that the people who claim £50 and under supply the real work for the Court?—My opinion is this, that law is a luxury. It is an uncertain factor. I know that if I were an ordinary member of the public and were taking legal proceedings, I should certainly like to get the case tried as cheaply as I possibly could, so long of course as it was tried efficiently.

3194. Deputy Little.—Have you had any experience of abuses of the standards of the profession by the Junior Bar?—No.

(The Witness withdrew.)

Mr. D. M. J. O’Connell, County Registrar, Cork, called and examined.

3195. Chairman.—You are Cork County Registrar?—Yes.

3196. That includes both the county and the county borough?—Yes, it is one circuit, No. 2.

3197. How long have you held that office?—Since the passing of the Court Officers Act, 1926.

3198. You were Clerk of the Crown and Peace before that?—Yes. There were two jurisdictions. I was clerk to the Judge of the West Riding, but, for the County Assize, I acted for the whole county, east and west. I had nothing to do with the city.

3199. Have you any suggestions to make with regard to the functions of the District Court?—I have. In my opinion the jurisdiction should be left as it is. I do not think there is any demand for increased jurisdiction. I think there is some limitation of time on the District Justices, having, as they have, to discharge other business in the Criminal Court.

3200. Are you in favour of retaining the present jurisdiction of the Circuit Court? —Yes; I think it ought to be left as it is.

3201. You think it is working satisfactorily?—I think it is a wonderful success; it has got through very hard work with the co-operation of everybody. We started without Rules, and we had to improvise Rules. What we did was, we used the Civil Bill jurisdiction for the purpose of the only pleadings there were, and where we got beyond the Civil Bill procedure we utilised the procedure of the High Court, and in doing that, with the co-operation of the profession, we were able to carry on with great success. Of course, it is high time that that should end, and that we should act under proper Rules.

3202. You are satisfied that with proper Rules the Circuit Court can give great satisfaction to the public?—Yes. and before we pass from that I would like to say that I am absolutely in favour, not of an increased jurisdiction, but of the present jurisdiction.

3203. What are your views with regard to the present system of appeals?—I have given this matter a great deal of very anxious consideration. Of course, my views must necessarily be the views of an official in charge of the Court, and also with a little knowledge of the circumstances of litigation and with some view as to the future. I know I am in this matter in a great minority among my friends, but not among officials, so it is necessary for me to proceed very carefully. In the first place, I am in favour of the jurisdiction of £300, and, as the Circuit Court is a new constitutional Court the conditions are absolutely different to the old Civil Bill jurisdiction. The jurisdiction now, I am taking it, is certainly the jurisdiction of a High Court. It has been decided, I think, by the Supreme Court that the Circuit Court is a High Court jurisdiction within its own area and subject to the limitations of the statute. If that is so, there is no appeal on oral evidence from it to the High Court, and it is absolutely repugnant to me, always in the position of hearing cases from my seat in Court—not participating in them —that there should be a re-hearing on facts in important cases. It would be to say that the unsuccessful litigant would have another opportunity of again producing the witnesses that he had already produced in the Court below before a competent Judge. I emphasise very much the fact that the present Circuit Court Judges are extremely important Judges, and that they have not only the competence, but the power of High Court Judges. I say it is wrong, to my mind, that that process should be gone all over again before two High Court Judges, or that the unsuccessful suitor in the Free State should have a right to go before a higher tribunal on question of fact alone. I had some difficulty on approaching the subject because I know it is one of the important questions involved in this Inquiry. Of course, this being a Court under the Constitution of the Irish Free State, it is limited and of local jurisdiction. Many people have given evidence that the poor people prefer a system of re-hearing before a second tribunal, and, as they had that right before, that they ought to be entitled to have it now. The proper implication of that means—whether you can describe a suitor as poor who is suing for damages up to £300—that they should have a right, if unsuccessful in the Court below, to have their case heard before a fresh tribunal in the High Court. The reason, we are told, he is entitled to that right is that under the former jurisdiction of the County Court Judge he had the right of re-hearing before a Judge of Assize. When I went to investigate the origin of that I found, that under the old procedure of the time, going back so far as the reign of Queen Anne, during the time of the Irish Parliament there was a procedure of what was known as English Paper Petitions which were tried before a Judge of Assize. That was the first civil bill. The Judge of Assize entered upon these cases of civil bills, on the simple pleading of civil bills, which was a summary procedure, and he gave judgment in favour of whoever was successful. That was changed in 1796 by an Act 36 of George III. (an Irish Statute), which I understand was drafted by Fitzgibbon, Lord Clare, and jurisdiction was removed from the Judge of Assize by reason of the increase of his duties. The Judge of Assize did the criminal work, and by reason of the great increase in the Paper Petitions or Civil Bills, as the Act recites, jurisdiction was then taken from the Judge of Assize and was vested in the Assistant Barrister who first came into being under that Act. The Assistant Barrister was made a constant official of the Court of Quarter Sessions. It was a criminal Court and tried certain cases of a certain limitation in criminal matters before a jury, and when the criminal business of the Quarter Sessions concluded, the Assistant Barrister, as Chairman, had a peculiar jurisdiction in civil bills and the Act itself recites that that jurisdiction was a summary jurisdiction for the hearing of small cases. I have set it out in my précis. It was a summary jurisdiction for the recovery of small debts with power to hear and determine all disputes and differences between the parties not exceeding £20, and was conferred on the Assistant Barrister (predecessor of the County Court Judge) with a right of appeal back to the old tribunal of the Judge of Assize. The Preamble of the Georgian Statute, which is said to have been drafted by Lord Clare, precisely sets out the reason for creating the Court of the Assistant Barrister and his Civil Bill jurisdiction. It says: “It will contribute much to the ease of the poor whose causes are heard by Civil Bill, who are brought frequently far from their homes, and often unavoidably kept many days attending the Assize as parties, or witnesses, in such Civil Bills at an expense exceeding the value of the sum in contest.” Well, of course, the powers and jurisdiction of the Assistant Barrisiter, as regards the amount, became enhanced, and in the course of time the Assistant Barrister became the County Court Judge. But I suggest the reason why the County Court had that jurisdiction was that there was a right reserved to the litigant who could appeal to the Judge of Assize by reason of the fact that originally that jurisdiction was the jurisdiction of the Judge of Assize under that original Act of Queen Anne. Since that time, I respectfully submit, conditions have changed. The peasants are emancipated and enfranchised and have become the owners of the fee simple of their farms, a great contrast to the past eighteenth century when the poor suitor had only the Court of the Assistant Barrister to resort to in the first instance and the King’s Commissioner as a Court of Appeal. I went back to that and I found that whatever right the parties had, it was a right vested in poor persons, and, in the course of time, the litigants improved and the country improved and the jurisdiction was enhanced to meet the change in conditions. So I think I am quite logical and consistent in saying that in this new suitors’ Court where the jurisdiction is up to £300 there is no right left in these suitors to go back to the Judge of Assize. I think it would be a reactionary system. Leaving that matter altogether out of sight, the success of the Circuit Court has led to a demand, first, for the service of local Judges and, secondly, the creation of the Court itself and the appointment of good Judges. My first Judge was the late Judge Conner and, subsequently, we got our present Judge, and they have worked very hard and the Court has been a very great success.

3204. I take it that you are in favour of the present mode of appeal?—Yes.

3205. Are you aware that we have had evidence here that the present mode of appeal is almost as costly as the old system?—Of course, I am not familiar with the costs, but I have seen the figures* given by Master Denning.

3206. Senator Brown.—And other witnesses too?—I did not see those.

3207. Chairman.—Do you not think it is a factor which must be taken into consideration apart from anything else in deciding what the mode of appeal shall be? —The first view I take would be what is the most effective course. That, of course, is purely a question of opinion. I know I am emphasising the opinion that a great many people do not hold. I certainly agree that the question of expense has to be considered. If I may offer an opinion on the question of expense, I would say that it seems to be a great deal more than I thought. I was rather surprised when I learned what it was.

3208. Have you any opinion regarding the comparative costs of the Circuit Court and the High Court?—I am always in favour—and I suppose I inherited it from the fact that I was myself Clerk of the Crown and Peace with a limited staff— that all cases in the Circuit Court should be on a tax scale, as far as is practical. The first reason is that the suitor can ascertain more or less what it would cost him, which is a very important consideration. Secondly, it facilitates the issue of the decree because when these costs are all scaled there is nothing more to do for the clerk in the office but to put the amount in. At present, £50 would be in keeping within the scale. That is subject, of course to the Judge’s direction within the scale of the County Court. From £50 there is no scale, so the whole costs have to be submitted and taxed as by a taxing master. That system to me without a taxing master I find very difficult. It delays things and there is no standardisation.

3209. Senator Dowdall.—You have to act as a taxing master?—Yes, but before I need not have done so, except in equity cases.

3210. Chairman.—Do you register Circuit Court judgments in your own office? —There is no provision at all under any Rule I know, but to register them as such. Of course, they are recorded, but if they have to be recorded they have to be registered in Dublin.

3211. Would you favour the registration in a central office?—Yes, I think it could be quite easily done. A return can be made afterwards.

Then comes the question of stenographers’ notes. I have expressed already the view that we have a very excellent journalist in Cork, and for that reason our notes are very well prepared. There are cases, of course, where those notes are a little bit diffuse, and sometimes long, but the reason is that the case has been so presented because the stenographers’ note is an actual picture of the case below. A lot of the matter is irrelevant because we proceed without pleadings, and it all depends on the practitioner. Very often, the instructions in that regard are not very concise. Very often the stenographers’ note is not a very satisfactory document to proceed on. My evidence is that the appeal on stenographers’ notes at the present moment has not had a fair trial, and I am inclined to think it ought to be given a chance before any change is made. I think if we had pleadings that with the help of these pleadings you could restrict the matter in Court. Then you could have a stenographer’s report prepared, and I think, on the whole, that would be more concise. If there were judges to hear them we would have gained a great deal of experience as to whether that has been a success or not. I am rather inclined to think, looking forward with a little vision and seeing that our people are improving intellectually and socially, that it is a good system. I think the system could be made perfect, but at all events it is a system, and there is some chance of proceeding by an appeal on fact.

3212. Chairman.—Do you consider it possible for any stenographer sitting in a Court all day and reporting verbatim every case which comes before the Judge to take a correct note of all that transpires in the Court? Is it physically possible?—I think it is physically possible. I also know that he has taken down things which the Judge has not noted himself, his attention being engaged elsewhere.

3213. You are aware of what nearly always happens in the ordinary course in the country where you have solicitors leaning across the table and talking to the barrister or client. That is going on for a considerable time all during the day. Do you think that it is physically possible for a person to sit there through the day with the exception of a break for lunch, and to take an accurate and correct note of all that transpires?—I certainly think he could not. He ought to be given the right conditions under which to take a note. It is my duty in my own Court to see to that, and I see to that. I have very often reminded people that the notetaker is present. I have to remind the barristers that the notetaker is there, and that he is the ear of the Appeal Court.

3214. You may have noticed on more than one occasion to-day that I had to remind both witnesses and members of this Committee that we had a notetaker present here?—That is true.

3215. Would you not admit that the conditions in this room for taking notes are better than the conditions in the ordinary Court in the country?—I quite agree.

3216. You may have noticed that the reporters here have to be relieved fairly frequently?—I quite agree, and I think that is a good thing.

3217. We are informed that it is very necessary. It is because of my knowledge of reporting in Committee and in the Dáil that I have asked you the question whether it is humanly possible for a reporter to keep taking down a verbatim report all day in the Court?—I have seen it done, but I think he is overworked.

3218. Senator Brown.—You have seen him doing it. Was it done?—One of our greatest difficulties is to keep practitioners aware that the notetakers are overworked.

3219. Chairman.—Have you any information as to whether the stenographer finds any great difficulty in reporting a very technical case where you may have a lot of legal jargon?—I quite see that you must have an excellent reporter and a man who is accustomed to legal reporting. We have got one in our Court. When we first started we had all kinds of reporters in the different towns. People came to you and said, “He is the local correspondent of the local paper, would you appoint him?” There was nobody else and the result was when the appeal came on, the solicitors gathered together to see what the report was and disputes arose and one said: “I will not accept that." That became an absolute scandal. We got the present man and he was appointed reporter in the law courts.

3220. You seem to have got the cream of the country to yourselves in Cork?— We have worked extremely hard to make it a success.

3221. Senator Brown.—I want to get your view upon the appeal in the Circuit Court. No lawyer has any doubt that under Section 48 of the Act of 1924 every citizen in this country is given a right of appeal on fact from the decision of the Circuit Court?—Yes.

3222. In your opinion ought there to be an appeal on fact from the decision of the Circuit Court Judge?—I do not think so.

3223. So your recommendation to this Committee would be that Section 48 ought to be so amended as to prevent an appeal on fact?—I think I must say that.

3224. Following that up, the appeal would then be an appeal either on the present system of stenographers’ notes or on some such system as they had in England, of appeal on a Judge’s notes in each case confined to an appeal on law?—That is like the English County Court, yes.

3225. You have had a long experience of the litigants in your own district?— Yes.

3226. Something like well over 80 per cent. of those on the statistics we have got are people who would have brought their cases in the County Court before. That is if they are under £150?—The people who brought their cases in the Court would be the people who would bring them under the jurisdiction of the County Court.

3227. Some of the witnesses here have practically put the old jurisdiction of the County Court at something like £150, with the change in the value of money?— I will not go on the value of money at all.

3228. We will diminish the percentage very slightly to, say, five per cent. at the very least, of the litigants who go into the Circuit Court. and could have got their cases tried in the old County Court. Would those people be satisfied with the kind of appeal you suggest?—They would if they got a good hearing in the Court below.

3229. They do get a good hearing?—The people have changed in my time.

3230. Is the beaten man ever satisfied? —I think he is.

3231. Although a case is heard in Dublin behind his back, and the first thing he hears about it is from his own solicitor, who tells him he is defeated, with so many pounds of costs. Would that satisfy him?—I cannot give an opinion. I have not been in the exact position myself. I rather think he would be dissatisfied.

3232. Would it be better to have a system of appeal in any country which is satisfactory to the litigants rather than logical or ideal? Is it not better to have a satisfactory appeal than a merely logical one?—That is a very difficult question. I am rather inclined to take the view that if he gets a good trial in the Court below, and assuming he is not a litigious person, but a man who wants to have his suit heard, he will be satisfied in our Circuit Court.

3233. You would rather give him what you think he ought to like, than what he really likes?—I do.

3234. There is an appeal on fact from District Court to your Court?—Yes.

3235. That is a re-hearing?—Yes.

3236. Does that work satisfactorily?—I do not know what you mean.

3237. Are the appeals well heard—I not say they are by Judge Kenny— does that hearing satisfy the litigant? s, but the curious thing is we have few of them.

3238. That is because you have such an extraordinarily competent District Judge. think we all know that?—I can give you the figures of our appeals. For the year in the City of Cork we had two. ly in the City of Cork there were appeals in the old days. In the they had three in the City.

3239. Chairman.—That is from the Court to the Circuit Court?— the District Justices in the t is in civil cases.

3240. Senator Brown.—What about the rest of your district?—In the rest of our district we had twenty-eight for the year 1927-28. That is for the whole county of Cork. It may be that they are satisfied with the hearing of the District Justice and that that is the reason the appeals are so few, but that is not conclusive to my mind, because on the whole I think they prefer to go before the Circuit Judge rather than to have two hearings.

3241. That is, in cases within the jurisdiction of the District Court?—Yes.

3242. Would you be in favour of excluding a person of that kind from the Circuit Court?—I think that he ought to be perfectly entitled to go to the Circuit Court or the District Court as he likes.

3243. Deputy Little.—You are not in favour of a re-hearing by means of oral evidence? You would be against appeal on the question of fact?—Yes, I think that that follows.

3244. You would not be against an appeal on the inferences of fact?—No, I think the Court might draw their inferences. They might also draw their inferences as to whether there was a misdirection of the Judge.

3245. In other words, you would be in favour of the system as it exists in the County Court in England?—I am in favour of the system but not because it is in England. I think that the English people had the experience of the Irish Courts before them and that was probably the reason why Lord Brougham framed the English Act differently. I am a very much greater admirer now of the Courts of Justice Act than I was when I was Clerk of the Crown and Peace. I disliked the form of appeal. I do not know how appeals work out because I have no experience. I do not even know what happens in an appeal. It is heard in Dublin and I never hear any more about it.

3246. Which would you think would be better—an appeal upon the Judge’s notes or an appeal upon the stenographer’s notes?—I think that the stenographer’s notes are a more accurate account of the case in the Court below. I am inclined to think that the value of the Judge’s notes is that he has listened to the evidence and has taken a note of the important points, and it is much more concise for the Judge on appeal to hear it on that.

3247. It may not be so satisfactory from the point of view of the losing party?—No, I quite agree. The Judge might be inclined to state the view that influences him in his decision to a great extent. The difficulty about the Circuit Court is this question of time. We have to do cases very quickly and we have to do a great number of them, and I think that the stenographer’s notes have facilitated the hearing of cases. For instance, in Workmen’s Compensation cases the Judge always had to take a note, and we never could hear the same number of cases in Cork as we have been able to do on the stenographer’s notes. I can give you some particulars of that if you think it important, I mean on the point that there is a saving of time by having stenographer’s notes, that is, assuming the very excellent stenographer we have. I had this point in mind and I made a note of it. On the 28th November of last year six Workmen’s Compensation cases were heard, and 35 witnesses were examined and cross-examined, of which 19 were medical witnesses. On 29th November, 5 cases were heard in which 25 witnesses were heard, of which 5 were medical witnesses. Medical witnesses are very important, and of course they are cross-examined. Under the old system that number of cases would have been absolutely impossible if the Judge had to take a note. The reason is that we are pressed to hear these cases; everybody wants to have them heard, and we have to try to do the best we can.

3248. And as you said already, if you have pleadings the evidence will be more strictly limited?—In workmen’s compensation there are pleadings, of course. They are absolutely necessary in our Court, to my mind. There must be pleadings to limit the range of the case. In workmen’s compensation there are very technical pleadings, and there is the answer, and, of course, that helps the case.

3249. In these compensation cases have you found that solicitors are as competent as counsel to draft pleadings?—I say that a competent solicitor can draft pleadings very well.

3250. He does not have to go to counsel every time?—I would say not. I think it would be better to have counsel draft them so that counsel would get in touch with the case at once. It is very unfair for counsel to have a case thrown at them, and by beginning with the pleadings they would have a very good idea of the case.

3251. Do you think it would be better if the Judges were to go round—instead of the cases coming up to Dublin that the appeals should be heard in the same way, but in the locus?—That would meet the objection that Senator Brown mentioned. A man would have an opportunity of hearing his case. Of course, if the Judge were to go round you might as well have oral evidence.

Senator Brown.—I agree.

Witness.—Of course, it would meet that objection, which is the disadvantage of the present situation. I admit that the litigant does not know what the result of his appeal is until his solicitor tells him.

3252. Deputy Little.—Would you be shaken in your view on the suggestion of sending the Judge around? You have suggested that you might as well have an oral re-hearing?—I would not. If you are to have a re-hearing on the notes, I think on the whole it would be better to have it done in Dublin. It would be more convenient for the Judges. If they were to go around they would be put to a certain inconvenience without any advantage.

3253. But the consideration of expense is that senior counsel often have to be instructed when the case comes to Dublin —counsel who have not been in it before? —Dealing with Cork, I would say that that difficulty would still arise, because the Circuit Judge would still be sitting in Cork while the appeal was being held. That is one of our difficulties. I made out our time roughly, and it would be very difficult to fit in appeals when the Circuit Judge would not be sitting, except you heard them during the vacation. I am rather inclined to think that there must be other counsel. In Cork we had two ridings—East and West, and we had often that difficulty that both Judges were sitting; we had often the same barristers, and sometimes it was difficult to manage.

3254. Chairman.—You mention that on a certain date in November you had the Workmen’s Compensation cases. How many witnesses did you say were examined?—Thirty-five, of whom nineteen were medical men.

3255. I just want to put this point you, arising out of that. A verbatim port of all that evidence had to be taken by the stenographer?—Yes.

3256. Do you consider that it was physically possible for the stenographer will take down the evidence and the c examination of thirty-five witnesses with whom nineteen were medical men?—W he did it.

3257. I want to get clear on this. illegible think the Committee will want to be c upon the value that can be placed on illegible notes. You say it was done, but do you know of your knowledge whether it was correctly and properly done?—I could d that by reading the notes. If the Judge or I read the notes afterwards we c form an opinion. You are asking illegible form an opinion on a matter about illegible I have some difficulty in formi opinion.

3258. No, I am not asking y that. You say it was done, but illegiblenot know whether it was correctly done or not—the examination and cross-examination of thirty-five witnesses, of whom nineteen were medical men?—All I can say is that from my previous knowledge of the stenographer it was accurately done.

3259. Senator Wilson.—We had a Judge here from Cork this morning and he pointed out that only 2 per cent. of his judgments were appealed?—Yes, I heard him make that statement.

3260. I want to draw the attention of the Committee to the fact that the question of appeals to the Circuit Court is only a small thing, whereas the Circuit Court is the people’s Court, that 98 per cent. of the business is done locally?— Well, of course, you asked me the percentage—

3261. The great bulk of the business is done locally?—I am inclined to think it is, but of course I cannot be sure. I do not know what is done in the High Court and I am not in the position to give you figures.

3262. The re-hearing of cases from the District Court in the Circuit Court is not a hardship on the local people because it is only a question of the District Court and the Circuit Court?—It is a very convenient method.

3263. You might as well hear the witnesses a second time?—In Cork you have to take distances into account. You might have to come from Castletownbere to Bantry or Skibbereen. Of course, close to Cork it is quite convenient.

3264. Deputy Wolfe.—Senator Wilson has drawn attention to the small number of appeals at present and he has suggested a possible explanation. Might I suggest to you that the explanation is due to the fact that there is no effective appeal on the question of fact? Is not that the real reason?—Of course, I have not your knowledge of the District Court. You see, I want to keep myself purely within what I really know.

3265. Is it not a fact that a solicitor who knows his job, even when he knows he has got a case on a question of fact, knows there is no use in appealing as he will be beaten?—It is possible that he says that, but I have no knowledge of it. I am quite sure that you have said that many times.

3266. Do you not know that in nine out of every ten cases of intended appeal the solicitor has to tell his client: “You have no chance. You may have a good case, but there is no chance. There is no appeal on fact”?—He might tell them that there is no re-hearing. I understand that the Judges who have been hearing these cases do not hear them on fact.

3267. As regards your views on appeals generally, are you not satisfied that they are a very small minority?—I am quite sure of that.

3268. The bulk of public opinion, whether it is right or wrong, is in favour of a re-hearing on the question of fact?— They would have a better view of it if the matter had been more tried out.

3269. As regards the appellate jurisdiction of the Circuit Court, has it not on the whole, been very satisfactory?—Yes.

3270. I am talking of the jurisdiction both in civil and, for the moment, in criminal matters. Has not the present jurisdiction which Judge Kenny exercises been very satisfactory?—Do you mean on the criminal side as well?

3271. Yes?—It has.

3272. And largely sought by litigants? —Yes.

3273. You hear a large number of appeals each year?—You are putting the matter largely. I am afraid that they have been rather limited on the criminal side to appeals under the Licensing Act

3274. Taking them all together, there are a number of appeals to the Circuit Court?—Yes.

3275. Judge Kenny hears appeals from at least five District Justices?—Yes.

3276. Did you ever hear any expression of dissatisfaction with that method of re-hearing; are not the public satisfied with the present system of appeal?—I presume they are as I have never heard any dissatisfaction.

3277. At all events the public avail of the opportunity of appealing?—Yes.

3278. Do you not see that that is about the only practical test that you can apply as regards the old system of hearing appeals; you have it in your own Court working and I suggest that it is working satisfactorily?—Of course you want me to say that for that reason we should return to the old system but I am not inclined to take that view.

3279. You will admit that you have the system to which you object at present working?—Yes.

3280. But you will not go so far as to say that it is not working satisfactorily? —It has been working satisfactorily.

3281. If it is working satisfactorily in one case why not in the other?—In one case it is an appeal from the District to the Circuit Court. You want me to say that an appeal from a very competent Court should be heard again by two Judges. I am inclined to think that if there is re-hearing the number of cases will not be very large.

3282. Would you suggest that such appeals should be to two Judges on questions of fact—an oral re-hearing?—If they differ on a question of fact I presume that the original decision would stand. If the appeal is to be on fact I would rather have one Judge, but if it is to be on law I would rather have two. A question of fact is to a great extent a matter of competent opinion. I have often listened to cases which I would have decided differently.

(The Witness withdrew.)

The Committee adjourned at 5.10 p.m. until to-morrow, at 12 noon.

* Appendix 7.

† Appendix 3a.

* Appendix 7.

* Appendix 4.

* Courts of Justice Act, 1924 (Section 65).

* Appendix 7.

* Appendix 5.