28th March, 2002
Dr. Henry: I welcome this very practical Bill which has a lot of excellent measures that should have been introduced sooner, including the provisions to allow solicitors to be judges and to deal with the division between the solicitor and barrister professions.
It is dreadful that we need so many judges. There is a great national appetite for litigation and it is extraordinary that life has become so centred upon the courts. Personally, my only involvement with the courts was in acting as an expert witness. I have always found courts to be rather intimidating places, but some people seem to have a great desire to go there. There is greater informal discussion between judges regarding sentencing policies and so on, but it must be extremely difficult for them to keep up with legislation and I hope they are given sufficient time to go on training courses, attend seminars and so on. We pass legislation here, but it is the Judiciary who has the responsibility of interpreting it and I hope they are given sufficient time to do so.
Many people have expressed concern recently about variations in sentencing policy. Senator Taylor-Quinn referred to this, and I am sure she was thinking of a rape case recently where the rapist got a suspended sentence despite threatening to kill the woman involved. The judge ruled that she had no other injuries, but if she had struggled and had her head beaten in or whatever, would that have made the whole process more acceptable? It seemed an extraordinary decision.
I am less than enthusiastic about rapists being allowed to give monetary compensation to victims rather than serve custodial sentences. It sends out a message that the rich can escape penalties while the poor cannot, even though the crime is equally bad regardless of who commits it. I am sure the Minister is well aware of the public's concern about this.
Senator Farrell talked about the difficulty of trying to reduce costs, and it is extraordinarily difficult to do so. My main interest is in medical litigation and the Department of Health and Children proposes to introduce, on 1 July, enterprise liability or indemnity whereby the Department rather than insurance companies will be liable for the costs of medical negligence cases. I do not know how this will work, but I hope the Department understands what an extremely tricky area it is entering into and the extent of the costs involved. The Department will have to employ experts and will have to be in the position of advising those individuals who are being pursued for negligence.
It is interesting to note that Dr. John Harding-Price, who was employed as a psychiatrist in this country despite being suspended by the General Medical Council in Britain, was yesterday acquitted of everything he was accused of. There was great uproar here about the South Eastern Health Board and the Irish Medical Council letting him work when he was suspended in Britain. We are very inclined to prejudge cases. This man managed to demonstrate his innocence even without the aid of a lawyer.
With medical litigation, we had hoped when the ruling regarding the exchange of expert witnesses came into being that there would be a reduction in costs. This is where both sides had to exchange the reports from their expert witnesses early in the case. Unfortunately, this seems to have been generally overlooked. In addition, plaintiffs are being allowed introduce a new expert witness on a totally different track if it discovered that the defendant's expert witness has undermined the original case.
This is a very difficult area which seems to be encouraging more and more litigation. Senator Farrell talked about lawyers luring people into court with the enticement of getting more money. I have had a great deal of information from insurance companies which tell me they try to settle long before a case goes to court, but on the steps of the court the settlement takes place because all fees are paid up to then. There are many more practising lawyers now than there used to be, but then we also have more courts and more judges. I hope we can call a halt to the amount of litigation that is taking place because it is costing the State an enormous amount of money.
I have had a motion on the Order Paper for some time which reads:
That Seanad Éireann, concerned that some of those involved in child custody cases before the Family Courts feel aggrieved about their treatment, asks the Minister for Justice, Equality and Law Reform to consider allowing some reporting of cases from these courts on an anonymous basis, so that the public may have a better knowledge of the workings of the courts.
Had I known that this Bill was coming forward, I would have asked the Minister to include legislation to deal with this issue. I am sure I am not the only Senator being contacted by people in relation to family law cases where they consider that they were badly treated. We cannot have any notion of how such people were treated because, quite correctly, family law cases are heard in camera. I have contacted the courts service about this and they told me that, over a year ago, a barrister was appointed to report anonymously from the Family Courts. It was anticipated that this would facilitate a greater understanding of the nature of family law cases. I gather the Attorney General advised that the in camera law is so strict that the barrister could not report and that additional legislation would be required to allow him to do so. Unfortunately, it is too late for me to propose an amendment that would allow such reporting to go ahead. Nevertheless, I hope the Minister will take this idea on board and act on it at a later date. Family law is a difficult area to discuss because all we can rely on for information is gossip and anecdote. A proper, anonymous report of cases from the Family Court would be extraordinarily useful in facilitating a greater understanding of the scope and judgments of the court.
I welcome this Bill and congratulate the Minister on it.
Dr. Henry: There is no reason I should not get involved here. I will try and help the Minister and his dead judges. For example, take two judges of the Supreme Court who go out golfing and are unfortunately both killed in a car accident on the way home. Two High Court judges will have to be promoted almost immediately to take up their places because we cannot have only three Supreme Court judges - we must have five on the Bench. Those promoted judges may have to leave behind some cases but they will do their utmost, as at present, to hear them. That is the practice at the moment. How about that Minister for dead judges?
Mrs. Taylor-Quinn: I welcome section 13. Increasing the jurisdiction of the Circuit Court to €100,000 is a welcome improvement. It is long overdue and I compliment the Minister.
Dr. Henry: I welcome it too. It might make a big difference to costs because there will be a lesser number of barristers involved.
Dr. Henry: This is the only place I can find where I might get an answer to my question about the reporting of the courts. The Attorney General gave the advice that the in camera rule will cover even a person like the barrister referred to earlier. I am quite happy to wait if the Minister would prefer to reply somewhere else. Will the Minister give me a reply about the reporting of the courts on an anonymous basis?
Mr. O'Donoghue: The Senator is referring to reporting family law cases. That is an interesting point. I recall making inquiries in relation to this. I am awaiting a report from the courts service. The matter is being examined and I hope the report will be issued soon.
Dr. Henry: I thank the Minister for the interest he has taken in this matter. I have queried the Courts Service about it and the Minister may be able to get more action than I can. This has been going on for over a year and I keep hearing that it will require legislation. We constantly receive complaints, based on anecdotal evidence, from people who feel they have been badly treated by the courts and about which we can say nothing but if there were generalised reports, we could do so. Essentially, the courts function well.
The Courts Service appointed a person but the Attorney General said that the in camera rule was so strict that, without further legislation, the woman, who is a barrister, could not report. Although I realise the Minister is very busy, I would be grateful if he would pursue this matter.
Mr. O'Donoghue: The committee appointed by the Courts Service which has been dealing with this has not yet reported. On foot of the report, legislation will be required and I assure the Senator that if such legislation is required I will publish it and have it implemented, if I am in a position to do so.
Dr. Henry: I thank the Minister.
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