Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

The Bill is about extending the jurisdiction of one of our courts, namely, the Circuit Court. It is important, however, to identify what are the different jurisdictions that operate in our courts system, as sometimes we, as Members of this House, take it for granted that the public is aware of them. There are two courts of local and limited jurisdiction in our legal system. They are the District Court and the Circuit Court. The District Court is one of the courts of local and limited jurisdiction established under Article 34 of the Constitution. It is local because the country is divided into 23 District Court districts based upon geography. The District Court is limited, in civil matters, because, in general, a party cannot take a claim in the District Court if that claim is worth more than €15,000.

We also have another court of local and limited jurisdiction in our courts system, and that is the Circuit Court. The Circuit Court is a local court because the country is divided into eight circuits based upon a larger geography than the District Court districts. The Circuit Court is limited in civil matters in respect of the value of claims that can be made because one cannot bring a claim in the Circuit Court if that claim is worth more than €75,000.

There are many advantages to the ordinary citizen of this country in being able to access justice in courts of local and limited jurisdiction. It means that if one is brought before the courts for a minor criminal offence, one can have that offence dealt with summarily and quickly in a District Court in one's locality. It also means that if one wants to take an action in our courts for a sum of damages, say, in excess of €15,000 but less than €75,000, one can do that by instituting proceedings in the Circuit Court and ensuring that one can have one's case heard in the circuit where one lives as opposed to having to come to Dublin to have one's case heard in the High Court. The advantages of taking a claim in the Circuit Court are that it is quicker and less costly than the High Court. That is to the advantage of all litigants in that they can have their cases heard more quickly and in a cheaper fashion. It would be unfair if litigants were required always to go to the High Court, even in circumstances where they had small claims.

The jurisdiction of the Circuit Court derives from statute. Unlike the High Court, it does not enjoy the full original jurisdiction that the High Court enjoys to deal with all matters concerning issues of justice. The Circuit Court can only exercise powers that have been given to it by this Oireachtas. Under the Courts (Supplemental Provisions) Act 1961, the Circuit Court has jurisdiction to deal with matters relating to land provided the rateable valuation of the property does not exceed €253.95. That is the old translation of the £200 that existed at the time the 1961 legislation and its subsequent amendments were introduced.

The Valuation Act was enacted in 2001. Section 15 of that Valuation Act expressly provided that domestic premises shall not be rateable. The House will be aware that many years prior to that a decision was made that domestic properties would not be subject to rates but it was only in the Valuation Act 2001 where this was definitively set out for the first time. Section 3 of the 2001 Act defined domestic premises as properties "which consist wholly or partly of a premises used as a dwelling and which is neither a mixed premises nor an apart hotel”. Accordingly, since the Valuation Act 2001, the Circuit Court did not have power to hear cases concerning land where that land was a domestic premises because such land is not rateable under the 2001 Act. In effect, from 2001, the Circuit Court did not have power to hear cases concerning land. However, we need to take into account that there were subsequent laws introduced giving the Circuit Court power after 2001. Those other statutory developments since 2001 that gave the Circuit Court jurisdiction in respect of certain land cases need to be identified.

Section 101 of the Land and Conveyancing Law Reform Act 2009 gave the Circuit Court jurisdiction to hear cases concerning properties which are subject to a housing loan mortgage. All houses, therefore, which are principal private residences and subject to a housing loan mortgage, could, because of section 101, be heard in the Circuit Court. However, that legislation only applied, as legislation generally does, prospectively so it was the case that only housing loans granted after 1 December 2009, when the Act came into force, were covered by the 2009 legislation, namely, section 101, which allowed those cases to be heard in the Circuit Court. Housing loan mortgages granted before 1 December 2009, therefore, could not be pursued in the Circuit Court but every claim in respect of a principal private residence concerning a mortgage granted after 1 December 2009 could be pursued in the Circuit Court.

We then had a further development in 2013 when section 3 of the Land and Conveyancing Law Reform Act came into effect. Under section 3, the jurisdiction of the Circuit Court was extended to cover mortgages in respect of principal private residences created before 1 December 2009. Therefore, under that legislation introduced in 2003, any case in respect of principal private residences before 1 December 2009 could be brought in the Circuit Court.

It is important to identify what those two statutory provisions mean in respect of people's principal private residences. What they mean is that because of section 101 of the 2009 Act and section 3 of the 2013 Act, any cases in respect of housing loan mortgages for principal private residences, namely, what we call the family home, can be brought in the Circuit Court. This Bill will have no impact in extending the powers of the Circuit Court to grant repossession in respect of principal private residences. This Bill will make no change to the entitlement people have to go to court in the Circuit Court in respect of houses that are principal private residences.

However, the law at present is that there is now a situation where domestic premises - not principal private residences but investment properties - which have mortgages on them created before 1 December 2009 cannot be pursued in the Circuit Court. They can, however, be pursued in the High Court. This legislation will alter cases that can go before the Circuit Court but it is incorrect to present it as though if these cases do not go before the Circuit Court they can go nowhere. They will go to the High Court and the effect of that is that we will have greater delay and more expense imposed on both sets of litigants.

It was because of this statutory gap that the Court of Appeal in the decision of PTSB v.Langan, which was decided on 28 July 2016, ruled that the Circuit Court did not have jurisdiction to grant repossession in respect of the six investment properties that were the subject matter of that Court of Appeal decision. It is important to remind ourselves, and I do not want to go into the details of that case, that the properties that were the subject matter of the Court of Appeal decision were six investment properties that were being rented out. It did not nor could it relate to principal private residences or what we refer to in this House as the family home. The reason the Circuit Court did not have jurisdiction to deal with those cases, according to the Court of Appeal, was because each of those six properties was a domestic premises which had mortgages on them created before 1 December 2009. However, if that case before the Court of Appeal had involved a principal private residence, or what we call the family home, the court could not have decided it in the way it did because since 2009 and 2013, and the statutory provisions I referred to earlier, the Circuit Court already had jurisdiction to deal with those issues.

As a result of the Court of Appeal decision, there are now some unfortunate and unintended consequences. It will mean, as was stated by Mr. Justice Hogan in the Court of Appeal decision, that proceedings in respect of such premises will now have to be commenced in the High Court rather than in the Circuit Court. To whose possible advantage could that be? It will simply mean that litigants will be exposed to greater legal costs by having the case taken against them in the High Court as opposed to the Circuit Court. It will deprive litigants of access to their local courts in the manner in which the Constitution actually intended.

The reason we set up courts of local and limited jurisdiction was so that people from those areas would, in cases of a certain value, be able to have their cases heard in those areas. I do not know to whose possible advantage it is if those individuals now have to come to Dublin to have their cases heard in the High Court.

Those are the facts of the principal proposal in this legislation. This is not legislation that will have any impact on, or change in any way, the Circuit Court's jurisdiction in respect of principal private residences. That needs to be stated repeatedly. It is legislation that will impact those who have investment properties which had mortgages created on them before 1 December 2009 and which are not principal private residences. Therefore, only a small group of properties will be affected by this new legislation, if enacted by the House, and those will be investment properties that are not principal private residences but in respect of which mortgages were created before 1 December 2009. Even if this legislation is not enacted, it does not mean that we are helping any vulnerable group regarding the prospect of repossession proceedings. Such proceedings in respect of those properties will still be permitted but the repossession hearings will take place in the High Court instead of the Circuit Court. In my opinion, there is no advantage to anyone being exposed to a more expensive and slower process.

This legislation, however, opens up the important issue that still affects thousands of people in this country, namely, the fact that there are individuals in their homes who are unable to meet their mortgage repayments. Those people need the assistance of this House and the Government. We are not talking about people who have investment properties and who want to be able to hold on to them, we are referring to individuals in their principal private residences or family homes. Those people continue to be under significant financial pressure. They will remain so until such time as the Government and this House make a decision as to what can be done to ameliorate their position. There is no point in people suffering simply because they cannot afford repayments on their properties. We need to restructure their loans. In the previous Oireachtas, members of my party, including Deputy Michael McGrath and Deputies Thomas Byrne and MacSharry, both then Senators, introduced a variety of legislative proposals that were of benefit and to the advantage of individuals who find themselves in such a position. When a Member of the Seanad, Deputy MacSharry introduced the Family Home Bill 2011. It did not get any support from the previous Government. Deputy Michael McGrath introduced the Mortgage Resolution Bill 2013. It did not get any support from the Government. What we need to recognise is that the solution for individuals who find themselves in mortgage distress is not in trying to present to them that their problems will be solved if a certain item of legislation is stopped from going through. We need to provide coherent solutions for those people so that they can get themselves out of the mortgage distress in which they find themselves.

I should also point out that we need to reform our legislation in respect of the courts in general. If a person is searching for where he or she should go to discover the jurisdiction of the Circuit Court or the District Court or how to get into the High Court, he or she must look through a library of books to find it. I would urge the Minister that we need to start the process of consolidating one complete courts Act so that citizens of the State will be in a position to know themselves - without having to go to the expense of seeking out lawyers or looking at the legislation - what they are entitled to do in individual courts, what is the jurisdiction of the Circuit Court, what type of cases can be brought in the High Court, etc.

In light of what I have said, Fianna Fáil will be supporting this legislation.

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