Kevin Humphreys (Labour)
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I thank the Cathaoirleach for selecting this matter. In an interview on RTE recently the new Chief Justice acknowledged a basic problem in the justice system, namely, the cost of engaging in litigation in certain cases was beyond the resources of many. There is little point in having a good courts system if a great many people find it difficult, if not impossible, to access it. That is true both for citizens and small businesses. The 2016 District Court rules which I downloaded yesterday indicate that it costs approximately €3,000 to hire a solicitor specialising in the area of intellectual property, while it costs approximately €1,000 to hire a barrister. Therefore, it would cost a total of €4,000 to take to court an infringement claim for €1,500.The Minister of State will note that it involves a disproportionate cost for many small businesses to bring actions under these circumstances. Taking the figures I have given at face value, does the Minister of State consider that this situation is acceptable or should something be done to resolve this?

This issue has been kicked between Departments for the past two years. It is clearly a justice issue and one for the Minister for Justice and Equality. If we want to be a country that encourages people to be entrepreneurial and to start their own businesses, they must have access to the courts system.

There is an EU ruling on this area. Ireland is in breach of an EU ruling to allow a small business person to take a claim to our courts and to represent themselves. Failing our allowing a small business person to represent themselves, we should provide them with free legal aid, but it would be much more cost-effective to allow small business persons to represent themselves in our courts system. It is within the remit of the Department of Justice and Equality to allow this. This issue has been dodged for two years. I am seeking action today rather than platitudes. Urgent action needs to be taken if we are to encourage the development of an entrepreneurial society. We need to give our small businesses the supports they need as well as access to the courts system.

Damien English (Meath West, Fine Gael)
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On behalf of the Minister for Justice and Equality, I thank the Senator for raising this matter. The Minister appreciates the Senator's interest in this subject and apologises for not being able to be here due to a commitment in Dublin Castle.

First, on behalf of the Minister, it is not accepted that the State is in breach of EU law in regard to the matter the Senator has raised. Council Directive No. 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights has been transposed into lrish law by the European Communities (Enforcement of Intellectual Property Rights) Regulations 2006, Sl 360 of 2006. Proceedings may be brought in the District Court for damages for breach of copyright where a claim falls within that court's threshold, which is a maximum of €15,000, and legal costs recoverable in the District Court are fixed by a scale in the District Court rules, which measures the costs in proportion to the value of the claim.

By contrast with remedies under EU law such as those falling within the European small claims procedure, the directive on enforcement of intellectual property rights does not mandate that remedies relating to intellectual property claims under the national law of a member state be the subject of a small claims procedure, nor does it mandate that corporations be entitled to represent themselves when bringing an intellectual property claim before the courts.

In so far as self-representation is concerned, this has been the subject of a detailed report in March 2016 of the Company Law Review Group, a statutory advisory expert body that advises the Minister for Business, Enterprise and Innovation on the review and development of company law in Ireland. According to the report, the review group remains to be convinced of the need for a radical overhaul of the law in this area. Although it remains sympathetic to the plight of the many companies that fell victim to the collapse of the property market and recognises that in the absence of available funding a number of companies have been unable to have their objections to summary judgment heard, the review group recognises that the courts retain the discretion to hear from non-lawyers where justice requires and are best placed to determine whether justice so requires in the case of companies which are party to court proceedings. In particular, the review group does not recommend that legislation should introduce a blanket permission to companies to be represented by their shareholders, officers or others, or a general entitlement to so act where they are in financial difficulty.

The review group observes that the general rule against pro se representation of companies in court is well-established in Ireland and almost universally followed in other jurisdictions. There is no suggestion that the Irish approach is significantly out of line with the approach in most other jurisdictions. While the strict application of the rule may on occasion lead to apparent or real hardship, such consequences can be considered the quid pro quofor the concession of separate legal personality. As Ó Dálaigh CJ stated in Battle v. Irish Art Promotion Centre Ltd. in 1968, the creation of the company is the act of its subscribers. The subscribers, in discarding their own personae for the persona of the company, doubtless did so for the advantages which incorporation offers to traders. In seeking incorporation, they thereby lose their legal right of audience which they would have as individuals, but the choice has been their own.

I hope that clarifies the matter for the Senator.

Denis O'Donovan (Fianna Fail)
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I ask the Senator to be brief in his supplementary question. I read remarks made by the new Chief Justice to the effect that the courts should be more easily accessible and available. A small courts system might resolve the Senator's issue, although I should not be commenting on it, but it is an interesting point.

Kevin Humphreys (Labour)
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I appreciate the Cathaoirleach's comments which are constructive. I do not want to have a go at the Minister of State, Deputy English, as I understand his position, having been in a similar position previously when I have delivered a script. I appreciate he is representing the Minister for Justice and Equality.

I wish to correct what he said. EU law demands that we must either let companies represent themselves or increase the costs that are recoverable, or give legal aid. That is quite clear. The Minster spoke about the review. The Copyright Review Committee put forward sensible proposals in line with our EU partners. For example, in the Netherlands, companies can bring claims of less than €24,000 without a lawyer, in Germany, they can bring claims of less than €5,000, in England, there is no limit, in Sweden, no lawyer is required, and in Scotland, they are planning to introduce measures with respect to intellectual property, IP, rights through the small claims court, a system on which the Chairman has just commented.

The response the Minister of State has given is contradictory to the view the Taoiseach gave seven years ago when he raised the same issue regarding enforced representation with the then Minister, Mary Coughlan, and that was questioned with respect to item 213 of 2010.

I ask the Minister of State to ask for the Department to correspond with me in a factual manner. There are a number of inaccuracies in the reply I was given. The way the system is operating protects large businesses and gives no support to small businesses, with the effect that the only people making money out of this are solicitors and barristers. If small business people want to take a claim, they will be at a loss. Most of the time they cannot afford it, so no claim is taken. If we want to encourage people to set up small businesses, we must allow them access to the courts and at the very least they should be allowed to represent themselves. I find such onerous costs of up to €4,000 for a claim of only €1,500 unacceptable. The script that was delivered today was quite insulting both to this House and to myself.

Denis O'Donovan (Fianna Fail)
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The Minister of State has already delivered a script. It might make sense if the Minister for Justice and Equality or his staff contacted the Senator directly. The Minister of State was obviously given a script. I would also say that we should not shoot the messenger.

Kevin Humphreys (Labour)
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I acknowledge that.

Damien English (Meath West, Fine Gael)
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It is okay, a Chathaoirligh. I can take plenty of bullets. As this is not my line Department, I do not have all the details of the case, but I would seriously doubt that the reply is factually wrong. Generally, Departments are quite good when it comes to factual information. I have no problem in consulting the Minister on this matter and I will ask him to engage with and to write to the Senator on this matter.

I want to make it clear that I have a similar view to that of the Cathaoirleach on this issue. It is one that could be examined. The Chief Justice made those comments and, clearly, there is the independence of the courts to make judgements in these cases. There is more to this than merely the Department giving a factual position on the matter. It is an area of interest to myself, given my previous role in the Department with responsibility for enterprise. I agree with the Senator that some companies, when it comes to intellectual property, can face great difficulty. We must always try to help them as best we possibly can, but there is more than one way of addressing that.

On the factual matter, I cannot put my hand on heart and say I am absolutely right in what I have given the Senator, but I would be very surprised if there are any factual errors in the reply from the Department. I will get the Minister to write to the Senator on that as well.

Denis O'Donovan (Fianna Fail)
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We cannot advance the matter any more today but the Minister of State might forewarn the Minister for Justice and Equality that Senator Humphreys seems to be coming well armed on this issue.