Thursday, 5 June 2008
Civil Law (Miscellaneous Provisions) Bill 2006: Report and Final Stages
I welcome the Minister of State at the Department of Agriculture, Fisheries and Food, Deputy Tony Killeen, to the House. Prior to commencing I remind Senators that Senators may speak only once on Report Stage except the proposer of an amendment who may reply to the discussion on the amendment. On Report Stage, each amendment must be seconded.
Amendments Nos. 1 and 2 are related and will be discussed together by agreement of the House. Is that agreed? Agreed.
10.—Subsection (5) of section 32A (inserted by section 180 of the Criminal Justice Act 2006) of the Courts (Supplemental Provisions) Act 1961 is amended in paragraph (b) of the definition of "relevant district" by substituting "subparagraph (1), (2) or (2A) of paragraph 3 of the said Schedule" for "subparagraph (1) or (2) of paragraph 3 of the said Schedule".".
Amendments Nos. 1 and 2 are designed to put in place a system to facilitate the signing of warrants where the person whose function that would normally be, namely, the District Court judge assigned to the district to which the warrant relates, is not available.
Section 32A of the Courts (Supplemental Provisions) Act 1961, which was introduced by the Criminal Justice Act 2006, established a process whereby a District Court judge can, even though outside the District Court district to which he or she is assigned, exercise the powers to issue arrest warrants, search warrants and other related warrants that relate to his or her District Court district. This section has been operating well enough as far as it goes. However, a difficulty has been encountered where the District Court judge assigned to a District Court district is not just outside the district in question but for the moment inaccessible within the normal turnaround time required, for instance, physically remote on a holiday.
The speed and capacity of modern communications are such that the need for a warrant may arise very quickly. However, there still must be a physical piece of paper that an arresting or searching officer can produce on demand to any person affected by it. If, for instance, the District Judge assigned to a district in Clare happens to be in Donegal and the urgent need arises in Clare for a warrant to search premises, it can be difficult under present arrangements. These amendments are proposed by the Government to deal with the difficulty.
"(2A) Without prejudice to subparagraph (2), the President of the District Court may, in relation to any district, temporarily assign for a period not exceeding 6 months one or more district judges (whether or not any such judge is permanently or temporarily assigned to another district or districts) to exercise, in relation to that district, the powers specified in subparagraph (2B).
(a) in case there is for the time being a district judge permanently assigned to that district – he or she shall, in relation to that district, have, while so temporarily assigned, concurrently with that district judge, all the powers of a district judge to which section 32A applies for the time being conferred on that district judge who is so permanently assigned,
I move amendment No. 3:
In page 23, to delete lines 23 and 24.
I return to this issue which we dealt with on Committee Stage. I made the point that it was difficult to see how our jurisprudence would be improved by the proposal to delete the requirement in the Petty Sessions (Ireland) Act 1851 with regard to the judge's note. On Committee Stage, the Minister of State, Deputy Conor Lenihan, made the point to the House, of which we were well aware, that an appeal from the District Court is by way of a full rehearing in the Circuit Court. It is still difficult to see why, in the absence of a universal transcript system, we should not have a formal judge's note of the evidence before him or her. Need for this could arise in a case stated, a judicial review or a complaint against a judge before the judicial council if and when it is established.
It is no use stating an appeal to the Circuit Court is a full rehearing. We know this. However, need for a note could arise in other circumstances. On Committee Stage, the Minister of State, Deputy Conor Lenihan, referred to two authorities, namely, Friel v. McMenamin and Hegarty v. Fitzpatrick. In these cases, the court refused to permit the applicants to have access to the note of the evidence required under section 24 of the 1851 Act. Taking the outcome of these cases as read still does not dispose of the possibility that a judge might need a note to finalise a case stated, that the High Court might wish to have access to a note or that the judicial council, when it is established, might require access to a note.
The case for the removal of this provision has not been compellingly made. On Committee Stage, the Minister of State, Deputy Conor Lenihan, did not clarify from where this is coming and perhaps the Minister of State, Deputy Tony Killeen, will do so now. I know it is a matter for the Government to bring forward proposals to change legislation. What is the source of the case being made for this change? Is it coming from the Courts Service or the judges of the District Court? I am perplexed by it and I do not see any real rationale for it.
I understand the point made by Senator Alex White. The strong argument against making the change he proposes which de facto does not make the change the Bill proposes is that it is impractical with regard to the time it takes. In any event, I have not been able to find any circumstances in which the proceedings as followed in the manner provided for previously could be of any subsequent assistance. An enormous workload would arise were this to be required in all cases.
The 1851 provision states:
Whenever any Justices shall proceed to hear and determine any Complaint or Information to an Offence, they, or One of them, shall, when required so to do by either Party, or his Agent, take or cause to be taken a Note in Writing of the Evidence.
This is a major practical undertaking and during the century and a half since it was enacted, this provision has evolved considerably. The petty sessions themselves are a thing of the past and in the vast majority of cases, the justices who sat on them were unpaid part timers and frequently were not lawyers. At present, we have District Court judges who are whole-time appointees with legal qualifications and experience, each sitting alone in the District Court.
The procedures for the hearing of criminal trials and of civil trials have made considerable advances since early Victorian times. The strongest argument advanced by the Minister is that this provision, of which the Bill seeks to dispose, is of no practical benefit at this stage and has considerable capacity to delay matters.
The annual throughput of cases in the District Court is approximately 650,000. That number has increased rapidly and it is likely to increase in the future. Just under 70% of cases relate to criminal offences, which range from the most minor parking infringements to offences involving violence, theft to offences involving violence, theft, public disorder and the like, and the overall trend is upwards every year. Were district justices to be asked, in even a small proportion of those cases, to take a written note of the evidence, the work rate of the court would not be able to keep up with demand. The major underlying reason for making this change is that no practical use is being made of the provision currently and were it to be invoked in a substantial number of cases, it would result in an unmanageable workload for the courts, which would be unable to proceed as heretofore.
The provision has been in place for 157 years and the bottom line is it has no practical use. I imagine other provisions in our body of legislation have no practical use. Can we expect all such provisions will be addressed and the Government to proposed that they be deleted? That is unlikely even though there are many. I am sure this issue has arisen in other areas. If one scanned our body of legislation, many such provisions might be found. Who is the source of this request? Is it is the Courts Service, the Judiciary or another body?
The proposal to remove this 157 year old provision emanated in the Attorney General's office. I agree with the Senator that it would be a good idea to make this change in other legislation. When evidence is introduced, the opportunity should be availed of to dispose of provisions that are unlikely to be used or that are impractical, particularly in cases where they have not been used to a great extent historically and on the rare occasions they have been used, they have been unhelpful to both parties and particularly the court. The Attorney General suggested this change.
The amendment was ruled out of order on Committee Stage because it involved a potential charge on the Revenue. It was, however, still open to the Senator to debate the issue on the section but the issue was not debated at all. It must be ruled out of order on the basis it does not arise from Committee proceedings.
I move amendment No. 4:
In page 28, between lines 2 and 3, to insert the following:
"31.—(1) If in any proceedings before a court it appears to the court that—
(a) costs have been improperly or without any reasonable cause incurred by a solicitor acting for a client who is a party to those proceedings, or
(b) by reason of any undue delay in proceeding under any judgment or order, or of any misconduct or default of that solicitor, any costs properly incurred have nevertheless proved fruitless to the client incurring those costs,
the court may, on its own motion or on the application of the client concerned —
(i) call on the solicitor of the person by whom such costs have been so incurred to show cause why such costs should not be disallowed as between the solicitor and the client and also (if the circumstances of the case require) why the solicitor should not repay to the client any costs which the client may have been ordered to pay any other person, and
(ii) make such order as the justice of the case may require.
(2) An order under subsection (1)—
(a) shall not be made in respect of a solicitor acting in good faith and without negligence,
(b) does not depend upon a finding by the court that the solicitor is guilty of professional misconduct or gross negligence in relation to their duty to the court.
(3) (a) Where a court is considering whether to make an order under subsection (1), the court may at any stage refer the matter—
(i) in the case of the High Court, to a Taxing Master,
(ii) in the case of the Circuit Court, to a county registrar, for inquiry and report and may also appoint a solicitor to attend and take part in such inquiry.
(b) Notice of an order under paragraph (a) shall be given to the client in such manner as the court may direct.
(4) In this section, "court" includes the Master of the High Court.".
The amendment is designed to ensure solicitors who incur costs due to their negligence are required to pay them by empowering the court to make an order in that regard. If costs have been incurred through the negligence of a solicitor on behalf of a client, provision is made to require the payment of such costs by the solicitor because they should not be borne by the client.
The issue of legal costs in contentious cases generally is being addressed by the Department of Justice, Equality and Law Reform. By "contentious", I mean legal services provided or work done in connection with legal proceedings before a court. The work is intended to address concerns about the costs associated with civil litigation and the intention is to bring forward practical proposals to help address the issue. A number of reports have been prepared in this regard. The issue of legal costs generally has been the subject of much scrutiny in recent years. In December 2005, the report of the legal costs working group, chaired by Mr. Paul Haran, former Secretary General of the Department of Enterprise, Trade and Employment, was published. Broadly speaking, the report recommended the replacement of the existing taxation of costs system with a new system of legal costs assessment. A group set up by the Department of Justice, Equality and Law Reform to advise on the implementation of that report and to consult professional legal bodies has completed its deliberations.
Officials in the Department have commenced work on drafting the scheme of a Bill to reform the manner in which disputed legal costs are assessed, with the allied objective of making the market for civil legal services more predictable, consistent and transparent to consumers. It is intended that the Bill will also provide for significant improvements in the quality and quantity of information that a solicitor is required to provide to clients and the manner in which it is to be supplied. An important consideration in developing the Bill is the view that the individual litigant should have a central role to play in controlling his or her legal costs. How the litigant can be so empowered will be addressed in that Bill. The timely provision of information to clients is central to this empowerment.
The proposal is to have a new system for the assessment of costs which, as part of its remit, will provide information to the public on the law and on clients' entitlements relating to costs. I expect the new system will have a mechanism to collect, analyse and publish data regarding costs, counsels' fees, witnesses' expenses and other disbursements from all court jurisdictions. The Bill will also provide for legislative and procedural changes to reduce delays in court hearings and generally expedite the legal process. The issue of costs penalties for delays or costs incurred due to negligence can be addressed in the context of this proposed Legal Costs Bill. This will provide an appropriate opportunity to consider the issue, which is considerably wider than what would be dealt with if the amendment were accepted.
Until the final few sentences, the Minister of State's reply was interesting and compelling but it had nothing to do with my amendment, which addresses a narrow issue in respect of the negligence of solicitors. I do not have an objection to the matter being dealt with in other legislation, if this is what the Minister of State is proposing, although he stated the issue "can be addressed" in the context of other legislation. If he was indicating that it will be dealt with in that other legislation, I would be much more reassured. I see Senator Walsh is present. We previously had a brief discussion in the House about legal costs. I would welcome a wide-ranging debate on the question of legal costs. I think Senator Regan would agree with me. Such a debate would provide us with an opportunity to address the serious issues that exist and perhaps address many of the misinformation that exists as well. This is a wider debate that ought to be held.
What I am proposing in this amendment is much narrower. It relates to the question of negligent solicitors and has arisen in some recent decisions in the Master's Court, if I am not mistaken. It is something that needs to be dealt with even if we were not dealing with the wider issue of legal costs. If the Minister of State can or is willing to indicate to me that it will be addressed in the context of that other legislation mentioned by him, I would be prepared to take that commitment on board.
I will certainly raise that with the Minister who I believe will be very disposed to making that commitment. I will certainly raise it in the strongest terms. I understand the important point made by Senator White.
Bill reported without amendment.
I move amendment No. 5:
In page 30, between lines 24 and 25, to insert the following:
"(2) Where a tenant has, prior to the passing of this Act, effected a renunciation as referred to in subsection (1), the tenant shall be deemed not to be entitled to a new lease for a period of 20 years, and any lease for a shorter period effected on foot of such renunciation shall be deemed to be valid.".
This issue arose because of a particular case drawn to my attention. The amendment proposed by us is designed to ensure renunciations of the right to a new lease made pending the passing of the Act would be recognised as valid. Otherwise, some tenants would have their tenancies terminated and hardship might be caused.
On Committee Stage, the Minister objected and said that the amendment would discriminate unfairly between persons who made a renunciation before or after a particular date, which is a fair point. In those circumstances, we have changed the amendment to delete the reference to a particular date, as the Minister of State will see. On that occasion, the Minister also objected to the idea of retrospective legislation. Rather than being retrospective legislation, and I know that Senator Regan addressed this on the previous occasion, it is more in the way of a validating amendment. It is designed to validate and give effect to what the parties referred to actually intended, which was that there would be a renunciation. I cannot see how that would be a breach of anyone's rights.
I second the amendment. The Minister gave a fairly comprehensive response to the debate and questions raised by Senator Alex White and me on the previous occasion and indicated that the intention of the amendment was to make it retrospective. My concern was that the existing provision provides for the ability of a tenant to renunciate prior to the taking out of a tenancy — assigning the tenancy agreement — whereas there is no reference to "prior" here. As I interpret it, the provision as drafted would apply in the case of "prior to" or at any time after the lease was entered into. Perhaps the Minister of State could clarify that one point.
In effect, what this amendment is proposing is that a change to the law affecting business tenancies be made retrospective. The proposed change to the Landlord and Tenant (Amendment) Act 1980 contained in the Bill is to enable parties to a business tenancy to contract out of the provisions of Part II of the 1980 Act which gives the right to a new tenancy in certain circumstances. The important precondition for contracting out is that the tenant or would-be tenant has first received independent legal advice.
The provision draws upon section 4 of the Landlord and Tenant (Amendment) Act 1994 which enabled business tenants who had, or were entering into, leases of office premises to exercise this opt-out. Unlike the provision in the 1994 Act, the ability to contract out is not confined to cases where the renunciation has been completed prior to the commencement of the tenancy. This is a deliberate policy choice since it is intended to facilitate existing business tenants who, in the absence of an ability to renounce their statutory right to a 20-year tenancy, might face eviction as the period of five years, after which the right accrues, draws to a close. One of the effects of the provision in Part II of the 1980 Act that gives the business tenant a right to a further 20-year tenancy after a continuous tenancy of five years is that landlords tend to offer business leases, especially in the small business sector, for a period of four years and nine months. This is, in general, because landlords are unwilling to put themselves in a position where they have committed their property to a long leasehold during which they may find themselves at a disadvantage if, say, they are unable to secure rent reviews that keep pace with inflation or they may have to pass up on development opportunities that might arise during that period.
As this Bill proceeds through the Oireachtas, there are many business tenants who entered into their tenancies three, four or more years ago and whose leases are approaching their end. When they entered into those tenancies, there was no inkling that there would be a change in the law along the lines now proposed in this Bill. They were content to take the leases on the terms being offered by their landlords and had no expectation of anything other than that at the end of their leases, they would have to look around for alternative premises either to lease or to buy. As this Bill has made its way through the Houses, there are some whose leases have expired exactly on that basis.
They now see the possibility offered in the Bill, a possibility that will be available to others who entered into leases a little later than they did, and they have made representations to Members in both Houses to see whether it is possible for them to avail themselves of the new law. Naturally, that happens all the time in respect of all the issues raised. It is a very important point and as was the case on Committee Stage when the Senators set a particular date retrospectively, the Minister, among other things, pointed out that there were difficulties relating to the specific date. To be fair to the Senators who tabled the amendment, the only alternative was to leave it open-ended in retrospective terms. This also creates a particular difficulty. In respect of Senator Regan's point, the proposal as it stands is not retrospective but it does enable current tenants to avail of the opt-out. Naturally, they will not have that facility until after the Bill is enacted and commenced. Without reading through a lot of material with which both Senators are considerably more familiar than I am, my understanding is that this is the current situation in respect of the provisions in this Bill. There are two reasons, one of which is dealt with or circumvented by the Senator by removing the date but the other, which is the retrospective element, continues to be a difficulty that the Minister believes cannot be addressed in this legislation