I am pleased to present the Courts and Civil Law (Miscellaneous Provisions) Bill 2013 to this House.
This Bill contains a number of diverse reforming provisions. Most of the provisions are, in effect, important reforms of the courts system. The provisions are, in summary:
· provisions that will serve to shed light into family law and child care proceedings by providing for the attendance of members of the press in certain circumstances;
· long overdue provisions to bring the monetary jurisdiction limits of the Circuit and District Courts in civil proceedings into line with current monetary values;
· provision to permit the appointment of 2 additional Supreme Court Judges to tackle the delay in cases before that Court and the Court of Criminal Appeal;
· provision for the appointment of extra jurors in lengthy complex criminal trials;
· provision for legal aid and advice for coroners’ inquests into the death of persons in involuntary custody of the State.
In addition, following a post-enactment review of the Personal Insolvency Act 2012 by my Department and by the Insolvency Service, I am providing for a number of amendments to that Act and to the Bankruptcy Act 1988. These amendments have been identified as necessary to enhance the operational efficiency and effectiveness of the provisions of the Personal Insolvency Act. The provisions will facilitate the Insolvency Service and the courts in dealing with insolvency cases as efficiently as possible.
For the benefit of the House, I will explain the purpose and detail of each of these provisions.
Changes to in camera rule
Part 2 of the Bill provides for changes to the long standing in camera rule in family law and child care proceedings. The in camera rule provides that family law and child care proceedings should be held otherwise than in public. The in camera rule is an exception to the fundamental principle of our law, guaranteed by the Constitution, that court proceedings should be held in public.
The exception exists for a very important reason that I accept and support. In family law and child care proceedings, often painful and very sensitive family and personal matters are at issue and it has long been accepted that there cannot exist a public interest in the very private affairs of the parties such as would justify full public access to such proceedings. However, the absolute nature of the in camera rule has led to a situation that such proceedings are perceived to be shrouded in secrecy. There is no press reporting of these proceedings because the press access to them is prohibited.
There is accordingly an absence of reliable information on the operation of the law in this area which is not conducive to confidence in our system of family law and child protection.
Recent policy in the law on the hearing in the courts of family law proceedings in private is reflected in section 40 of the Civil Liability and Courts Act 2004. Regulations made under that section allow certain classes of persons to attend family court sittings, subject to Ministerial approval, in order to draw up and publish reports. Ministerial approval is subject to certain safeguards, including a requirement that the parties to a case or any relevant child would not be identifiable. Under this scheme, several persons engaged in family law research who were nominated by bodies specified in the Schedule to the Regulations have been approved. In addition, the Courts Service introduced the Family Law Reporting Service on a pilot basis in 2006. The purpose of the pilot project was to provide information on the operation of family law in the courts.
While these initiatives have provided a useful insight into family law and its operation, they cannot alone bring the greater transparency that I believe is required on the operation of the law in this area.
Accordingly, what I am providing for in this Bill is a careful balancing of the need for privacy with the need for public access to important information on the operation of family and child care proceedings in our courts. My proposal is to retain protections on the privacy of the parties in respect of such court proceedings while providing that bona fide members of the press can be admitted to the proceedings.
In this Bill, the right of Press access to the proceedings is balanced with a strict prohibition on the publication of any information that is likely to identify the parties to the proceedings or any child to whom the proceedings relate. It will be a criminal offence to publish information in breach of this prohibition.
I am also providing that the courts will retain the right to exclude or restrict the presence of members of the press from all or part of the proceedings in certain circumstances. The circumstances are where it is necessary to do so to preserve the anonymity of the parties or any child to whom the proceedings relate, because of the circumstances of the case or in the interests of justice. The court in making its decision in this respect will have to take into account a range of factors including the best interests of a child to whom the proceedings relate. The courts will for the same reasons, be able to direct that certain evidence should not be published. The type of situation envisaged could be, for example, where a child or indeed vulnerable adult is giving evidence. This residual power is being included in the Bill to give the courts the power to deal with the myriad of sensitivities and situations that can arise in proceedings of this nature.
A number of parties interested in promoting the rights of children made comments to me on this Bill. Many of those concerns are, I believe, catered for in the Bill. In particular, I have added to the Bill a requirement that the court must consider the views of any party to the proceedings and the views of any child to whom the proceedings relate before making an order in relation to press attendance or publication of information. This requirement was suggested by the Children’s Rights Alliance and by the Ombudsman for Children and I thank them for it, because I believe it is an important addition to the Bill.
Monetary jurisdiction limits
Part 3 provides for the increase in the monetary jurisdiction limits for the District and Circuit Courts in civil matters. The purpose of these jurisdiction limits is to ensure that the level of court that hears a case is appropriate to the potential value of a case. Deputies will be aware that the legal costs incurred by the parties to a case are related to the court in which the proceedings take place. It is estimated that, on average, the legal costs of taking a case in the Circuit Court, subject to the complexity of the case, are 30 per cent less than in the High Court. An appropriate increase in the jurisdiction levels is long overdue to ensure that courts are dealing with the cases at an appropriate level and that the costs being incurred by the parties are at a reasonable level.
The monetary jurisdiction limits of the Circuit Court and District Court have remained unchanged since 1991. The Courts Act 1991 set the current monetary jurisdiction limits for civil matters at €38,092 for the Circuit Court and €6,384 for the District Court. Although the Courts and Court Officers Act 2002 made statutory provision for increases in the limits to €100,000 and €20,000 respectively, these increased limits were never brought into operation with the unfortunate result that they remain as they were 22 years ago.
The retention of the lower monetary limits has rendered the District and Circuit Courts redundant in respect of some classes of civil proceedings. The low level of jurisdiction in the Circuit Court means that very modest actions must, in the absence of agreement between the parties, be taken in the High Court. Such cases are potentially the subject of appeal to the Supreme Court; this makes no sense at a time when the workload of the Supreme and High Courts has increased significantly in volume and complexity, with Supreme Court appeals currently waiting over 48 months for a hearing date.
Following consultation with the Attorney General and the Presidents of the Circuit and District Courts, I am therefore proposing to increase the jurisdiction of the Circuit Court to €75,000 and of the District Court to €15,000.
The failure to bring the revised limits provided for in the Court and Court Officers Act 2002 in operation relates to a concern that increasing the limit of the Circuit Court to €100,000 as provided for in the Court and Court Officers Act 2002 would have an inflationary increase on personal injury awards in the Circuit Court and a consequential inflationary effect on insurance claims. I have decided to address this issue in the Bill by setting a lower jurisdiction limit in the Circuit Court for personal injury proceedings. I am setting the level at €60,000, that is, 40 per cent lower than the equivalent level set by the 2002 Act eleven years ago.
I believe that the increased jurisdiction limits will prove to be a fairer and more cost-efficient approach to the processing of civil proceedings by the courts. The proposed changes to the jurisdiction limits of the Circuit and District Courts should ultimately lead to a reduction in the burden of legal costs for individuals and companies involved in litigation. It is crucial that parties involved in legal conflict do not incur more legal costs than are necessary in circumstances in which they have to resort to litigation.
It is also important that our court jurisdictions keep substantially in line with inflation and that our higher courts are not unnecessarily overburdened with appeals that could and should be properly dealt with at a lower level. The changes to jurisdiction limits proposed in this Bill should effect a reduction in the number of appeals that have to be dealt with by our Supreme Court.
A further amelioration of the burden at present imposed on the Supreme Court will result from the creation of a Court of Appeal should the proposed referendum, which it is hoped to hold in the Autumn to provide for such a court, receive public support.
And of course, as Deputies will be aware, the Thirty-third Amendment of the Constitution (Court of Appeal) Bill 2013 was published today. The Bill provides for the establishment of a Court of Appeal which will hear most appeals from the High Court and from which cases may only be appealed to the Supreme Court if they are of general public importance or if the Supreme Court is satisfied that it is in the interests of justice that it hear and determine the case. I expect that this major reform of our courts architecture will result in a significant reduction in the caseload of the Supreme Court and will allow it to concentrate on those cases that merit the consideration of the highest court in the land.
Appointment of additional Judges of the Supreme Court
Part 4 of the Bill amends section 1(2) of the Courts (Establishment and Constitution) Act 1961 to provide for the appointment of two additional judges to the Supreme Court. The Chief Justice has drawn attention to the current critical situation regarding delays in the Supreme Court and Court of Criminal Appeal. Despite the introduction over the past two years of new case management methods and new listing systems, there is a delay in excess of four years to have an ordinary case heard in the Supreme Court. A “priority” case gets on the list in approximately 9-12 months. The Chief Justice has pointed out that a case logged today would not get in the list until mid-2017. The Court of Criminal Appeal has a backlog which amounts to two years for an appeal date at the current time.
This provision will allow for the appointment of two additional judges of the Supreme Court as an interim measure to deal with the current critical situation regarding delays in the Supreme Court and Court of Criminal Appeal. This would bring the total number of Supreme Court judges, including the Chief Justice, to 10.
These appointments would allow for urgent remedial measures to be put in place prior to the introduction of the proposed reforms envisaged following the referendum on a Court of Appeal. The appointments would allow for the scheduling of several sittings each week of the Court of Criminal Appeal and for two divisions of the Supreme Court to sit routinely. The Chief Justice believes that the appointments, together with efficiency measures already introduced, could radically reduce delays and the financial, economic and reputational risks associated with delay.
Juries in lengthy trials
Part 5 of the Bill amends the Juries Act 1976 to provide for the appointment of up to three additional jurors to deal with lengthy trials. The provision follows a recommendation to this effect in the Law Reform Commission’s recently published Report on Jury Service.
This issue is of significance in relation to lengthy trials involving fraud or other complex financial matters. Under current law, a jury consists of 12 members, but a decision in a trial by 10 members of a jury can be accepted. Accordingly, up to two members of a jury could become incapacitated or otherwise unavailable during the period of trial without risk to the sustainability of the trial. However, during the period of a protracted trial there is a risk that more than two jurors would become unavailable. Were that to happen, the trial would collapse. I have accepted the Law Reform Commission’s recommendation that legislative provision is required to provide against such a possibility.
The provisions of Part 5 amend the Juries Act 1976 to insert a new section 15A to provide that on application by the prosecution, the defence or on its own motion, the Circuit or Central Criminal Court can order that up to 15 people be selected to serve as jurors. The judge has to be satisfied that the trial is likely to last more than two months. If, before the jury is to retire to consider its verdict, there are more than 12 jurors remaining on the jury, a jury of twelve jurors will be selected by ballot. Ballots are conducted in open court by the Registrar under the supervision of the presiding judge. In effect, what would happen in a case of this nature is that the Registrar would draw from a drum containing the names of the fifteen jurors or such number of jurors as remain, the names of the twelve jurors who are to constitute the verdict jury.
I am also providing by way of an amendment to section 20 of the Juries Act that where a jury has additional jurors, challenges without cause shown can be made by the prosecution or the accused person of to up to eight jurors as opposed to seven in a normal jury.
Amendment of the Coroners Act 1962 and the Civil Legal Aid Act 1995 to provide for legal advice and legal aid in relation to certain inquests
Part 6 of the Bill provides for amendment of the Coroners Act 1962 and the Civil Legal Aid Act 1995 to provide for legal advice and legal aid in relation to certain inquests.
The Coroners Bill 2007, which is currently before the Seanad, provides for the comprehensive reform of the existing legislation and structures relating to coroners and for the establishment of a new coroner service. The Bill is in the course of being reviewed in my Department. That review essentially is focusing on the development of the optimum administrative and jurisdictional structures, which, in the most cost effective way, can best deliver the planned reform of coronial law.
The Coroners Bill as published addressed a matter that has been commented on in recent times by the European Court of Human Rights. The Court emphasised the importance of ensuring that the next of kin of the deceased can effectively participate and engage in a coroner’s inquest into certain categories of death, such as those limited number of cases where a person has died while being involuntarily detained by the State. This right to effective engagement includes the provision of information prior to the inquest. This means that, in certain cases, families may require legal assistance to participate effectively in the inquest process.
Sections 86 and 92 of the Coroners Bill 2007 provide for the introduction of a legal aid scheme for proceedings before a coroner, and in section 92 for the required technical amendments to the Civil Legal Aid Act 1995. These changes would permit the Legal Aid Board to arrange for the granting of legal advice or legal aid to the family of a deceased person for legal representation at an inquest where the person has died in, or immediately after being in, involuntary State custody. Section 86 also provided that the coroner could consider an application to request the Legal Aid Board to provide for legal aid where the circumstances of the death may give rise to a matter of significant public interest where the possible recurrence or continuation of those circumstances could be harmful to public health and safety. This provision was included to ensure the fullest possible compliance with the approach of the European Court of Human Rights.
Given the importance of these matters and being conscious that progressing the Coroners Bill 2007 may take some time, and in light of the State’s obligations under the European Convention on Human Rights, I am of the view that the Courts and Civil Law (Miscellaneous Provisions) Bill presents an opportunity to now address the issue of legal aid at such inquests. Accordingly, Part 6 includes the broad provisions contained in sections 86 and 92 of the Coroners Bill 2007, with some refinements to the text to take into account developments since the Coroners Bill was published. An important consideration is that the amendments will be made to the Coroners Act 1962 as opposed to being contained in a new piece of legislation.
The normal eligibility criteria in regard to financial means operated by the Legal Aid Board will apply in these situations. I would point out that I am not providing for free legal aid to pursue civil actions by next of kin. The legal assistance provided is in regard to coroners’ inquests only.
Transfer of the existing Office of the Official Assignee in Bankruptcy to the Insolvency Service
Part 7 of the Bill provides for the transfer of the existing Office of the Official Assignee in Bankruptcy to the Insolvency Service.
Unfortunately, due to lack of time in regard to finalising the Personal Insolvency Bill for enactment last year, it was not possible to provide in that Act for the transfer of the Office of the Official Assignee in Bankruptcy to the Insolvency Service as originally intended. I am anxious that this matter should be dealt with as soon as possible. To facilitate this, the appropriate additions to that Act have been made by way of amendments to this Bill during the Seanad stages.
Amendments to Personal Insolvency Act 2012
Part 8 of the Bill contains a number of amendments to the Personal Insolvency Act 2012.
Deputies will recall that during the debates in the House on the Personal Insolvency Bill, I indicated that if it was necessary to make any further changes to the legislation to facilitate the operations of the Insolvency Service, that I would do so. A post-enactment review by my Department and the Insolvency Service has identified a number of such changes. The amendments contained in Part 8 of this Bill are mainly technical drafting amendments required to improve the presentation of the Personal Insolvency Act 2012 or to correct errors in the text. The purpose of a number of the amendments made during the Seanad stages is to make clearer the documentation to be presented to the appropriate court for its consideration of the debt resolution processes. The effect of these changes is to facilitate the Insolvency Service and the courts in dealing with the various insolvency cases as efficiently as possible.
I should signal at this stage that it is my intention to introduce some further minor amendments to the Personal Insolvency Act at Committee Stage. These amendments are also required to facilitate the Insolvency Service and the courts in dealing with insolvency cases.
To conclude, I believe that this Bill contains important steps in the process of modernisation of our courts to ensure that the essential service they deliver to the community is efficient, effective, fair and accessible to all our citizens.
I commend the Bill to the House and I look forward to a stimulating debate on its contents.
ENDS