Committee Reports > List of Committees > Joint > 1986 > Committee on Legislation > Report - Statutory Instruments [18]

APPENDIX III

Secretary,

Department of Justice.

I am directed by the Chairman of the Joint Committee, Mr. Mervyn Taylor, T.D., to refer to Article 5 of the District Court (Fees) Order, 1983 (S.I. No. 207 of 1983) and to Article 5 of the Supreme Court and High Court (Fees) Order, 1983 (S.I. No. 209 of 1983).

It is noted that both Orders were made under the powers conferred on the Minister by section 65 of the Courts of Justice Act, 1936. Subsection (2) of that section specifically provides for general or special exemptions from fees chargeable on the property of wards of court to be made by Ministerial order but the general power conferred by subsection (1) thereof enables the Minister merely “to prescribe and from time to time as occasion requires vary or otherwise revise the fees to be charged”. In the circumstances I am to invite your comments on the exemption from fees provided for in the above-mentioned Order.

T. DWAN.

Clerk to Joint Committee.

25th April, 1985.

Mr. T. Dwan,

Clerk to the Joint Committee on Legislation,

Leinster House,

Dublin 2.

District Court (Fees) Order, 1983 (S.I. No. 207 of 1983) and Supreme Court and High Court (Fees) Order, 1983 (S.I. No. 209 of 1983

I am directed by the Minister for Justice to refer to your letter of 25 April about the above instruments.

While it does not affect the substance of the matter, it may be noted that the particular provisions to which you refer have been replaced by others similar in type - and incidentally, they themselves were by way of replacement for earlier basically similar provisions. The statutory instruments mentioned were revoked by S.I. No. 21 of 1984 (District Court) and S.I. No. 19 of 1984 (Superior Courts). The particular provisions were replaced by corresponding provisions in those 1984 Orders. The 1984 Orders were, in turn, replaced by S.I. No. 38 (District Court) and S.I. No. 36 (Superior Courts) but on that occasion the “relevant” provisions of the 1984 instruments remained in force - the Schedule of fees to be charged was replaced by a new Schedule in both causes.

Your letter appears to suggest that the exemptions are ultra vires. The argument adduced in your letter in support of that proposition appears to be that -

(a)subsection (1) of section 65 of the 1936 Act empowers the Minister (“merely”) to prescribe, vary or revise the fees to be charged;

(b)subsection (2) specifically provides for general or special exemptions from fees chargeable on the property of wards of court;

(c)accordingly - this appears to be the implied part of the argument in your letter - there is no power to make any other exceptions.

Since a question whether a provision is ultra vires cannot be determined authoritatively otherwise than by a Court, there must presumably be some degree of uncertainty in any situation of this kind in the absence of a Court decision. It is accepted that, if your statement about the provisions of the two subsections reflected their full contents, the implied conclusion might be difficult to resist. However it is clear that both subsections contain more than what is referred to in your letter - which, incidentally, means that it is not accurate to say that subsection (1) enables the Minister “merely” to take the action you mention - and, in the absence of more detailed legal analysis calling in question the validity of the exceptions in the context of the section as a whole, the Minister would not see a need to review them on legal grounds since subsection (1) does not, on its face, require that fees be charged in all cases and accordingly the presumption, unless displaced, must be that the exceptions are permissible.

Cathal Crowley

13 May 1985.