Thursday, 30 July 2020
Civil Law and Criminal Law (Miscellaneous Provisions) Bill 2020: Committee and Remaining Stages
I will speak to this point and address another one. I ran out of time; I was not avoiding answering questions.
The measures in the Bill are Covid-specific, but also address a lot of built-in efficiencies in a system that needs to be reformed. That is why there is no sunset clause in the Bill. The vast majority of what is in the Bill has been thought through. It has not appeared in the past few weeks or months.
Sections 12 to 19, inclusive, which Deputies have referenced, were not developed by vulture funds or lobbyists. The Bill does not deal with that. They are being included because they, along with other issues, have been identified as being necessary to reduce delays in the majority of cases. There is no challenge to the majority of documents. It is important to say that a document being included or admissible in evidence does not mean that a court will presume that the records are correct. That is very evident in the Promontoria case, where it was a judge who identified this.
Under the proposed amendments, business records can still be challenged in the normal way. There are a number of safeguards that will ensure all parties would be aware of, and have an opportunity to object to, the documents being presented via this channel. I have to again point to the fact that the vast majority of these documents are not contested and there is no issue with them. Where there is, and where somebody wants to raise concerns, they have an opportunity to do so. In addition, as I have mentioned, they can be challenged by the courts, which will have a specific power under the proposed section 16(1) to exclude business record evidence in the interests of justice on its own motion, such as, for example, in a case where no formal application has been made to exclude a business record because the litigant is not there or is not legally represented.
The commission's report, which I referenced, recommended that records compiled in the course of business, because they are generally reliable, should be admissible in civil proceedings as an inclusionary exception to the hearsay, subject to the safeguards set out in the Bill. Under section 15, the party who seeks to rely on business record evidence must give advance notice or provide an advance copy to other parties. Under section 15(2), the other party is required to provide advance notice of his or her intention to object. There is no procedural restriction on the right to adduce countervailing evidence in terms of the evidential weight to be afforded to the business record section in the relevant part and that regard shall be had to all of the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise.
This is not something that has been brought in in the dead of night or which will benefit vulture funds. It is part of a wider package of measures that we want to introduce to ensure that our court system can start to function as close to 100% as possible. We know that will not be the case, but the Bill will introduce efficiencies that will benefit people. The measures will not in any way support vulture funds or hinder anybody in ensuring that justice is served.
I will not accept the amendment because under Standing Order 164 I have an opportunity, as Minister, to report to the Dáil after 12 months. I will monitor the situation carefully and I fully take on board the points Deputies have made. If what they are suggesting does happen, then I will respond. I do not believe that will be the case. If what they have said will happen does happen, I assure the House I will address that.
There are safeguards in the Bill to ensure that will not be the case and everybody has an opportunity to challenge documents brought before the courts. Given that there is a sunset clause in the amendment, I cannot accept it. These measures are not necessary for the longer-term development and modernisation of our court system, but are absolutely vital to ensure that our systems can function at as close to full capacity as possible while addressing the very significant challenges we face during Covid-19.