Courts Bill, 1986: Second Stage (Resumed).

Thursday, 5 June 1986

Dáil Eireann Debate
Vol. 367 No. 6

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Question again proposed: “That the Bill be now read a Second Time”.

Mr. Skelly: Information on Liam Skelly  Zoom on Liam Skelly  On the last day Deputy Woods gave a very in-depth analysis and critique of civil juries and the position in the courts. It was an analysis of the arguments which were put forward by the Minister in his submission as to whether or not we should have civil juries removed from the High Court in personal injury actions. This is unfortunate legislation in that the case for it has not been proven. It has been too readily entered into. It is an assault on the rights of citizens. That has been happening all too frequently lately; we had it even yesterday and it seems to be a trend. In this instance it is not only an assault on citizens' rights but it is an assault on citizens who are victims of very serious accidents, [1161] in the main. It is an assault on people who are very seriously injured, who are often maimed for life and very close to death and who in many cases have to survive rather than live, who may be in a state of paralysis, in a state of brain damage, in a wheelchair, confined to bed or a quadraplegic. That is unforgiveable if it is not thought out properly, if it has not been the subject of public debate and if there has not been a demand on it and, worst of all, if these people have not been consulted in any manner about whether or not they wish the situation to be changed without consulting them.

We have healthy people deciding in the interests of a few vested interests in this country that we should change a system which has been time honoured and one of the few remaining bastions of freedom and civil rights and social justice whereby a person is tried by his peers in the case of one of the worst things which can befall a human being during the course of his lifetime, that is, to suffer a very serious personal injury and suffer very serious damage both physically and financially to a family, if there is a family involved, whether it is a spouse or whether it happens to be brother, sister or relative who has to take care of that person for the remainder of his life. This debate came about not as a result of a public outcry; in my view it arose as a result of a very short, sharp prod by one of the most entrenched sectors, namely, the insurance sector. The insurance companies wanted their costs reduced so that they could earn more profits. In the space of two weeks they were able to persuade the Government to change their minds and have them declare that it was their intention to introduce legislation to abolish juries in civil action cases. That was a disgrace and it happened twice within the past six or eight months. It was later proved that move on the part of the Government was totally wrong and they had to retract and admit their mistake. The Government fell for the same propaganda on the part of the gaming interests, when they introduced emergency legislation within two weeks to increase the stakes in that industry. In the first case [1162] enormous financial loss and hardship were suffered by citizens. In this case, in addition to the financial loss and hardship that will be brought about as a result of the abolition of juries, these unfortunate victims will suffer additional pain, physical and otherwise.

We might pose the question: from where did the demand emanate? It was not brought about by those people who had their cases tried before a jury. It did not arise on the part of John Citizen or by way of public demand. It arose as a result of representations to the Government from the top levels of the insurance industry. Indeed, it arose as a result of a public relations exercise on the part of that industry who are well able to afford it. They must have been amused at the quick results of their campaign.

Many of us in the House know how difficult it is to have any change effected within the bureaucratic system, or within the system of checks and balances obtaining at the different hierarchical levels in our bureaucracy. It is amazing to note how the rich and powerful can bypass that system. However, it is not difficult to understand when one remembers that they have easy access to the corridors of power or to ways of getting what they want done. That is applicable in this industry internationally. It is applicable in the case of other such powerful bodies, whether they be the multinational, the drug companies, chemical companies or whoever. In this case the unfortunate Irish man and woman must bear the burden.

I was particularly disappointed at the arguments advanced by the Minister in his opening remarks. They were very weak and did not make a case at all for change. I shall refer to those arguments as we progress. One might first pose the question: what steps have the insurance companies themselves taken to reduce the amount of awards or damages where they say they are losing out? Indeed, the insurance companies represent one of the most scorned, derided vested interests in any State, always having been regarded as filthy rich, having unbridled power, [1163] always making enormous profits with very few exceptions.

I read an article in Business and Finance of 18 July 1985 headed “New Life in the Insurance Game”. That article talked about the move away from motor and other forms of insurance into the more lucrative area of life insurance because, it was contended, it was more profitable and stable. It talked about the key to understanding the recent scramble to buy into the life business — the difference between life and general insurance — life insurance being profitable and stable. It was contended that general insurance is sometimes profitable but always unstable. It spoke about the difficulties experienced in the recent past with general insurance and the growth experienced in life insurance over the past five years, when the average growth amounted to approximately 20 per cent. The article referred also to the dangerously variable liabilities in the general insurance area — coming within the scope of the provisions of this Bill, personal injuries — contending that even experienced actuaries have a difficult time attempting to second guess juries and potential awards. The same article talked about underprovision or over-provision maintaining that life business does not involve a company in litigation or court cases except in the most rare situations.

There is a school of thought which contends that the insurance companies should really lump all of their different types of business together, that if they suffer a loss in one area, such as the motor industry or public liability area, then that should be taken into account in the huge profits they make in another. Otherwise pressure will be brought to bear on the Government to become involved in the insurance sector, the same as in the banking sector. If the banks are not prepared to take risks in certain areas of business then the Government have to become involved, as they have in recent months. In the same way the Government would have to become involved in the insurance area. Let us pose the question: [1164] what have the insurance companies done to help themselves or to remedy the situation? From a critical examination of the position it would appear they have not done very much. Two reports have been published in relation to the motor insurance business, one the O'Connor and the other the MacLiam report.

I might refer to another article which appeared in Business and Finance of 13 June 1985 headed “Insurers have become embroiled in arguing about the jury system and the high cost of awards. They should be looking to more fundamental matters.” That article posed some questions, such as: Is there the political will to tackle the basic causes of the high premiums? Why are the insurance companies not lobbying to a far greater extent for the fundamental changes needed in our existing system? Why are they not co-ordinating their efforts and their advertising campaigns accordingly? That is all based on the premise that the cost of insurance is too high. The writer goes on to say:

The insurers would have us believe that today's claims reflect tomorrow's premiums...

He asks:

I wonder what steps the insurance companies are taking to minimise the number of claims and the accidents that result in these claims. Insurers surely have a vested interest in accident prevention which they do not seem to be exercising.

Our attention is drawn to the number of designated black spots where accident statistics are very high and we are asked if this reflects our national attitude towards identifiable areas of known accidents or known risks. Surely we should eliminate the bridges, turns, corners, the sections of roadway and our driving procedures that are black spots in our national insurance claims record.

Statistics show that the most dangerous time to be on the road is after pub closing time and that most accidents, particularly fatal ones, are drink related to a greater or lesser extent. There is a high cost to the State. Every fatality that occurs costs [1165] the State £220,000 and every serious injury costs £67,000. When it is realised that there are 400 or 500 fatalities every year together with tens of thousands of serious injuries it can be seen that the cost to the State is enormous which, in fact, means that the cost to the taxpayer is enormous.

It is now suggested that insurance companies should be helped to make bigger profits by having the cases of seriously injured people heard not in front of a jury of their peers but judged by a graduate of what can only be described as an elitist group of the establishment. As a result of the system which we have many people believe that judges are not really in a position to judge fairly all the time every section of the community, human fraility being what it is.

People feel that, as a result of one person judging cases, some sections of the community from certain backgrounds and environments will be categorised and awards given accordingly. A jury determine a case and then they are exempt for ten years if the case is a serious one. A jury look at one case and the circumstances surrounding it. A jury will take the human hardship involved into account more than a judge will who is a person with a lot of experience of law and whose senses can be dulled by the constant daily decisions which he makes. It is important that the human element be retained. We are not dealing with an inanimate object but with a human being whose life span has perhaps been curtailed.

We are talking about serious injury. A person will not go to the High Court, which has power to give awards in excess of £15,000, unless there is documented evidence of serious injury. Approximately 95 per cent of cases do not go to court. There is usually a formidable file from medical consultants to verify the serious injuries. It is important that a jury should deliberate carefully on the person's injuries and the effect they will have on the person and on the family.

Every Christmas we are warned on radio and television that a campaign will [1166] be launched by the gardaí in order to enforce greater safety on the roads. Statistics have proved the worth of this. However, after Christmas the campaign ceases and we continue to have mayhem on the roads. Why do we not have this campaign all the year round? Why do the insurance companies not take over advertising around black spots? Why do we not bring in laws which would discourage drinking and driving and ensure that people who want to drink must not drive? This is another example of us failing to correct the system and then penalising innocent people by taking from them the basic civil right to trail by jury in the High Court.

There are many ways we could lower the accident rate but I will not go into detail on that now. However, we should deploy gardaí in a better manner. We have a lot of them available and they should be organised in such a way as to reduce the carnage on our roads. I should like to develop that line of thought, which is relevant to the Bill. The Minister has said that the main reason for the legislation is the high cost of insurance, but that is an appalling reason. Why do insurance companies not campaign for greater safety on our roads? They have campaigned, for example, for greater use of seat belts; but a seat belt is not much use in a car that does not have any brakes or that has fundamental defects. Why do we allow cars on our roads which have not been tested? Why do we not have compulsory testing of vehicles as occurs in other countries? We have been talking about that for donkeys years but people continue to drive defective vehicles. Cars with bald tyres, bad brakes or broken exhausts are involved in many accidents. Why is it that we do not ensure that the provisions of Road Traffic Acts are stringently adhered to?

Accident black spots are well signposted and a lot of them are close to licensed premises. As a nation we seem to be appallingly lacking in consciousness of what are fundamental safety standards in other jurisdictions. Insurance companies have submitted that the Irish are more litigation conscious than others. [1167] Some Members hold a similar view, but I do not think we are any more litigation conscious than any other nation. Most actions are successful in our courts because drivers or employees are negligent or in breach of statutory duties. Most of them fail to comply with the provisions of our Road Traffic Acts or legislation governing safety in industry. I do not think we can discuss personal injuries or the high cost of insurance without mentioning the huge number of uninsured drivers we have in Ireland. I accept that it will be compulsory to display an insurance disc from July, but this is another example of us letting things get out of hand before we do something about them. This is a reactionary society. We do not do anything if there is a break up in a particular area until everything gets out of hand. Then we are prompted into fire brigade action. It is never a question of prevention but of trying to lock the stable after the horse has bolted.

I do not see why it is not possible to insist on tax and insurance being renewed from a certain date each year. We have everything computerised and I do not think it would be difficult to introduce such a system. In Canada, for example, after 1 April the police carry out intensive checks on all cars for tax and insurance offences. The colour of the number plates there changes each year and the driver of a car found with the previous year's colour after 1 April is pulled into the side and prosecuted. In that country one never sees an advertisement in a newspaper offering a car that is taxed to the end of the year for sale. Drivers are not allowed to tax their vehicles for three months or six months. The vehicle is taxed for 12 months, but we do not do that. We are content to carry on with an old system which causes us enormous problems.

Another reason for the high cost of insurance premiums is the slow reaction of insurance companies. Very often they are to blame for the high legal cost because the cases are drawn out over a number of years. Insurance companies must be informed within seven days of an accident or, if not, the policy may [1168] be declared void. However, they do not respond. If insurance companies handled claims quickly, either on a man to man basis or with the minimum of correspondence, there would be less involvement by the legal profession and, consequently, less cost. Insurance companies are in a position to settle cases quickly if they want to. Surely it is not asking too much of them to take the initiative and dispose of claims at the earliest possible moment.

The legal profession come in for a lot of blame — some of it is warranted — but most solicitors say that they have to drag insurance companies towards a settlement by initiating proceedings even where the same insurance company covers the two parties involved in an accident. Insurance companies must accept a lot of the blame for the delay in dealing with civil action. They have to be dragged towards the courts. They will drag a case out for as long as possible, even to the extent of taking advantage of a person who sustains serious injuries in an accident. I make that statement from my own experience and having thought out the issue very carefully. In the case of a serious injury, where the person is not likely to survive insurance companies deliberately drag out the case and use the possibility of the imminent death of the injured party as a reason for not settling the case or settling it at a much reduced amount. That occurs frequently. I have had two family experiences of that. My brother died as a result of a motor accident and his next of kin did not get one farthing. My father-in-law was paralysed from the neck down as a result of a motor accident but his case was not settled by the insurance company for five years. When we discussed a settlement with lawyers, the insurance company involved told us, following their examination of him, what the lifespan was and that if we did not settle with them they would appeal the case through the High Court and on to the Supreme Court. They delayed for five years and then settled for a reduced amount. The settlement was reached nine weeks before that man died. That man was compos mentis and was [1169] confined to bed in a county home. He could not get the care and attention he wanted because the insurance company did not even pay part of the award. That occurs frequently, but now we will have the Supreme Court coming along to fix a ceiling of £150,000 general damages. That is appalling. If men and women were appointed to the Supreme Court bench tommorrow it is quite likely that on consideration the ceiling would be changed because if the judges did not have experience of being personally involved in injury cases they might change the £150,000.

If a person who has sustained the worst possible injuries is paralysed for life from the neck down, he or she will get a maximum of £150,000. The rest will be made up of special damages for hospital care and attention. Allowance will not be made for future hospital charges. Nearly always in such cases complications arise long after the settlement of the injuries action but the person will not be entitled to go back and claim damages. The people involved in such cases are ruthless, as all business people are in getting their pound of flesh. I know the Minister would be very concerned that such would be the case. If he extracts from his own speech the three arguments he used for changing the civil jury system he will find them very weak and that they do not hold water. It is not sufficient to go back over the history of the court system and talk about Chancery and other courts and how they got rid of juries. That seems to have been an administrative decision as time progressed and we ended up with the Circuit Court operating without juries and with a ceiling of £15,000. Therefore, it does not follow logically that the next step should be to take another bit of cherished freedom from unsuspecting citizens and say: “They are unsuspecting, we will remove the juries and there will not be an outcry”.

As I continue in public life I find fewer and fewer outcries about anything. The reason is that people are getting fed up of getting battered. They are weary of taking on the system and even more weary of losing, whether they are fighting [1170] dumps or for the protection of the environment or for the retention of the few rights available to them under the common and criminal laws. We have a Parliament, we introduce laws, and Ministers play the numbers game. They bring in pieces of legislation, they have a majority on their side of the House, very few Deputies contribute to the debates and when they go into the lobbies most of them do not know what they are voting for. Therefore, they rubber stamp the legislation.

The Dáil has lost much of its power. It is the intention to change that, but I despair of it happening. That is the way our civil liberties are being eroded. This legislation has been set up here, the Committee Stage will follow and I ask myself what are the changes I can suggest to protect citizens against the removal of their right to have cases tried by jury in the High Court.

Deputies are either for this or against it. I am against it. Lawyers have argued for the retention of civil juries in the High Court, particularly barristers. This is a laugh: they have been labelled as doing so with a vested interest, because they want to retain high fee earning possibilities — I will consider that in a minute. Not for once has anybody suggested that the insurance companies are arguing because of their vested interests, for what they can save by having uniform lower awards. They will now be able to get a price for a finger, a price for a below-the-knee injury, a price for a foot, a price for an arm.

In that way we will see the folly of the Supreme Court being allowed to have a ceiling of £150,000 for general damages. A person might lose a leg and get £60,000 or £70,000, and if he were to lose half of the other leg he might get another £30,000, or £100,000 for the loss of a leg and a hand; if he lost an arm as well, he might get near to the £150,000. Little thought goes into the care and protection of the injured person during the rest of his or her life after a serious injury. Juries, on the other hand, showed concern for the care and protection of injured persons for 20, 30, and 40 or sometimes 50 years [1171] after an accident. If other medical complications arise after a settlement the injured person will be at a great disadvantage.

John Citizen will be the loser again by this legislation. He has taken a bashing and he will continue to do so. It is ironic that this comes from a Government who have introduced so much social legislation, who have had the courage to do so. They introduced recently the Combat Poverty Bill, three Children Bills — a Child Care and Protection Bill, an Adoption Bill and a Legitimacy Bill — a Contraceptive Bill, regardless of criticism, and now have given the people an opportunity to decide whether we should have divorce in the event of marriage breakdown. It is ironic, therefore, that that caring Government should be introducing a piece of anti-social legislation like this.

The only suggestion I can make on Committee Stage is that the Minister will not go ahead with this. I do not think such an appeal would be successful. Many people are concerned about this. Many Deputies on this side are worried and we have had meetings about it. I do not know if it is half-and-half or not, but numbers of us are concerned.

This legislation is not as important as the Criminal Justice Act or the two Bills that went with it in order to temper the first harsh piece of legislation aimed at eliminating crime — those Bills tried to strike a balance by providing protection for the person in custody, for citizens' rights and the rights of the Garda.

It is ironical and sad that this Bill was rushed into the House. I know when machinery is set up it is hard to stop its operations. I have tried to bring the matter to the attention of the Minister and I have called for an open discussion on the need to reconsider seriously the whole question before removing juries in civil cases in the High Court. If people had been given more time to make their opinions known, it would not have caused any great damage or hardship.

The Minister set out his case in his speech but he was very fond of quoting [1172] from minority decisions. I was surprised at that. He used those minority decisions to make his case but that does not make sense. In his speech he made the following comment:

It was against this general review of the present operation of the civil jury system and in the context of the renewed debate on the issue in relation to insurance matters, that the Government considered in principle last year to change the present system...

I do not know what is the Minister's argument. He referred to a “general review” but there was no such review. He also spoke about the “renewed debate” but I ask what renewed debate? Does he mean the insurance companies decided to lobby to have the procedure changed, that they did it in a period of two weeks and that members of the Government caved in? What we are talking about is collective responsibility on the part of the Government. I know there is an element of social concern in the Government but were those members who stand up for social rights asleep when this matter came before the Government? Where were they when this brilliant argument as set out in three paragraphs of the speech was used?

The Minister stated that for well over 100 years there has been “a gradual erosion of the right to jury trial in civil matters”. I am saying it is a right and it appears the Minister also believes it to be a right. Yet, we are removing it. In his speech the Minister said that jury trial achieved its present form by the 15th century and he made the following statement:

In the Court of Chancery a jury's finding on issues of fact could be obtained by sending that issue to a common law court but that was rarely availed of and for all practical purposes Chancery cases were decided by a judge alone.

The system evolved in that way and nobody objected. People do not object to any great extent about matters any more because they are fed up and they know [1173] how difficult it is to change things. They can tackle something obvious that happens on their own doorstep or district, but it is a different matter for them first to understand what happens here, then to get a sympathetic TD to listen to them and then to extend that to getting a majority of Members here to support their case. They consider the game is not worth the candle.

The Minister stated:

The Common Law Procedure (Ireland) Act, 1854, provided that the parties might, on consent, and with the approval of the court, allow issues of fact to be tried by a judge alone.

I ask a simple question: in 1854 what say had the common man in deciding whether he would allow issues to be tried by a judge alone? Was he asked? At that stage the British House of Commons were legislating for this country also and the House of Commons was controlled by people with property rights who were the ruling class. It was very nice of them to word the Act in such a way as though the ordinary common man had a say in the affairs of State. I presume some of the bigwigs, perhaps barristers or counsel in Kings Inns, Grays Inns, Inner Temple got together and decided at their club that this should happen. The Minister tells us that rules made under the Judicature (Ireland) Act, 1877, obliged a party requiring a jury trial to state this when setting out the action for trial.

Up to a few years ago one could say with absolute truth that people in the Law Library were an elitist group and some would argue that they continue to be an elitist group. Certainly when I was there in the late sixties and early seventies it most definitely was an elitist group. Can anyone here say what was the literacy rate of the common people of Ireland in the period from 1850 to 1870? How many of them spoke English and how many of them would have been consulted? Some of those poor wretches did not even know they were going to he hanged until the rope was put around their necks. Many of them did not know until they were half-way to Van Diemen's [1174] Land that they had been sentenced to deportation. Yet, this is the case the Minister is making to prove to us that juries were being abolished as though by common demand. There is no such demand at the moment.

Many people believe the only chance they have is trial before a jury and I go so far as to suggest that a person should be able to opt for trial by jury even in the Circuit Court. If, as is the case at the moment, a person cannot opt for trial by jury in the Circuit Court the defendant or plaintiff should be able to take it to the High Court for a hearing before a jury. That demand exists because many people believe they should have that right. Some quake when they think they have to appear before a judge and they quake even more when it is pointed out to them that they have to appear before a particular judge. Often they are told by their counsel that a certain judge is liable to act according to his moods, that a person could either get off or have to pay maximum damages.

If a person has the right to a jury he can be sure that he will be heard by 12 men and women good and true, a different group each time, and one does not have to go to court too often. The 1877 Act obliged the party requiring jury trial to state this when setting down the action for trial. The Chancery (Ireland) Amendment Act, 1858, provided that the right to a jury in chancery actions should be in the discretion of the judge. We can take it that these Acts were enacted by Members who acquired their fathers' seats at Westminster. The landed gentry, the people with wealth, made these laws, not the common man. Their successors are the insurance companies, people with vested interests, people with power — one would find many lords sitting on the boards of these companies — and they are now laying down the law for us.

Eight months ago the gaming barons came here and whispered into the ear of the powers that be that they might lose a few million pounds if the law was not changed. Within two weeks we obliged by bringing in legislation to increase the stakes. To the shame of this House we [1175] still have not reversed that decision. This legislation is still on the Order Paper which says we will increase the stake and the payout on gaming machines for the benefit of these racketeers who make more money than drug barons and drug pushers. We still have not brought in legislation to ban these machines.

In the same way we are playing around with the civil and human rights of our citizens, the most unfortunate people in our society, the sick and the indigent invalids, the people our spiritual leaders ask us to look after. These are the people who would be most affected, not the healthy people. They are very sick people who have suffered the most appalling injuries in car accidents or at work. They may have brain damage, or they may be broken and weak but their lives are seriously affected, yet we are telling them they can no longer have a jury system.

We had the Common Law Procedure (Ireland) Act, 1854, the Judicature (Ireland) Act, 1877, the Chancery (Ireland) Amendment Act, 1858, and the Courts of Justice Act, 1924, which provided that no party to an action for a liquidated sum, or for damages for breach of contract, or for the recovery of land, should be entitled to a jury unless the court considered that a jury was necessary or desirable. None of these decisions was made by the ordinary person. The result of these developments is that, for all practical purposes and with limited exceptions, jury trials in the High Court occur only in personal injury cases. That is all we have left and now, in one fell swoop, we intend to remove that.

This brings us up to the sixties and the Minister mentioned civil juries in modern times. In their third interim report in 1965 the Committee on Court Practice and Procedure, by the narrowest of majorities — six to five — recommended that the right to civil jury trial should continue in the High Court. The Minister preferred to depend on the view of the minority. The 1937 Constitution was passed by the narrowest of margins as well. If the [1176] coming referendum is beaten by the narrowest of margins, do we take the minority view? The Committee on Court Practice and Procedure also recommended that the right to civil jury trial in the Circuit Court should be abolished and this was effected by a provision in the Courts Act, 1971. I think that is a mistake and, if a concession were to be made, I would ask that that right should be given to the people who wish to opt for a civil jury. The committee in their 20th interim report in 1978 reaffirmed their earlier view that no change should be made in the High Court system, although the Minister said they only considered the latter incidentally. That is not good enough because there is no case for the removal of the jury system. The only case made was by the insurance companies, with their power, contacts and inside track with the establishment.

I do not agree with the O'Connor committee report which decided that while juries should be retained, the responsibility for deciding the quantum of damages should rest with the judge assisted by assessors. The Prices Advisory Committee on Motor Insurance — the MacLiam committee — concluded in their report in 1982 that the jury system should remain and they spoke about the problems of inconsistency and unfairness.

The Minister said:

It is clear from the Court Committee's report that strong arguments arise on both sides of the issue, and that there are strongly divided views on the matter. This is true even of Judges. Professor Bryan McMahon in his article “July Trial for Personal Injury Cases in Ireland”, published in May 1985 in The Irish Times, found that High Court judges who responded to a questionnaire from him were evenly split on the central issue...

Even the judges cannot decide unanimously or by a majority that we should abolish trial by jury. Where is the argument? In the 19th century the propertied classes, the aristocracy and their representatives decided these matters in [1177] Westminster. They decided in their own interests always, not for the common good, what the ordinary wretch was entitled to. That is not so here, yet the Minister finds an argument in this for abolishing juries. The flaw in the whole thing is that he need not have gone to this trouble. If he had put this out for public examination initially he would have come to the conclusion, by argument anyhow, that the right to trial by jury should not be removed.

The Minister said: “It was against this general review of the present operation of the civil jury system and in the context of the renewed debate on the issue in relation to insurance matters,” that the Government decided. That does not make sense because that general review, as has been demonstrated, is flawed. It was not a general review at all. It was an evolved matter under the administrative system that went on in a partly disenfranchised country where women had not the right to vote until the twenties and where the propertied classes, the landed gentry and the rich controlled the Parliament and made the laws and their sons — there were no daughters operating in the courts — were the counsel, the barristers and the judges. The highest placed families came from that sector. They made the laws for the millions and they decided on this and that is how it came about. The Taoiseach when introducing the Minister as Minister for Justice said that this concern for justice would show through. If that is so, then we should strike a blow for the common man and try to reverse some of these decisions that were made against the common man, against the person whom he, I and all of us here represent in our constituencies because the aristocracy are long gone, as he is aware.

Another point that must be made forcibly is that the type of person who becomes a judge and to whom it befalls in the event of the removal of civil juries to make the judgment in these cases comes, as many of us have said here, from if not entirely an elitist group, at least from the few people for whom this State was founded, who benefited most as a result [1178] of the founding of this State and whose sons and daughters through the profession have continued to benefit from 1922. They grasped what was there and got into positions of influence and power and held on to the professions largely to the exclusion of the rest of the population and they maintain those positions. I maintain that to a large extent the Honourable Society of King's Inns, the Benchers and the Incorporated Law Society of Ireland are elitist groups. Many of us have called for a change in this system and to date we have not been successful in this. If we succeed in changing the system and have the professions opened up and legal education removed from both the Society of the King's Inns for barristers and the Incorporated Law Society for solicitors and the State gets control of those, I might have more confidence in even considering this matter.

However, even if that was done, I would still be faced with the problem of recognising that education, third level education in particular is the preserve of the few in this country. Statistics available show that in my constituency, to quote an appalling example, in areas of Inchicore 1 per cent of the population get third level education. However, they make up 27 per cent of the population of St. Patrick's and Mountjoy. In an area like Ballyfermot, of 40,000 to 50,000 people, 4 per cent, a miserable 400 or 500, get a crack at third level education and they make up 17 per cent of the population of St. Patrick's and Mountjoy. Yet we are asking that those people's peers be not given the opportunity to judge their cases of serious personal injury, people who would have a better understanding of what the unfortunate victim of a motor accident or an injury at work is going through, the circumstances under which that person is living and the pain and suffering and the miserable existence that is his lot because of the lack of social justice and equal opportunity.

We are asking these people to give up their right and to let their future and their welfare and the amount of money they are to be awarded in such a case be decided by a member of the establishment, [1179] by a member of a profession who is accustomed to wining and dining in places that some of these people might never have frequented or will never frequent in their lifetime. These establishment people as part of their examination had to eat 48 dinners, 12 a year for four years, at the King's Inns and dress formally to do so in the seventies and eighties. They get into a profession because they can nominate or know a person of ten years' standing in that profession who will sign a memorial for them. How many people in this country know a barrister of ten years standing? How many know a barrister at all? That is the kind of condition that the `Honourable' Society of King's Inns demand of their students when they decide to let them into the profession. They can decide that they will limit their numbers this year to 40 or 50 graduates otherwise the rabble coming in might crowd out their opportunity of earning more fees. They can decide as benchers to sit around a table and indicate arbitrarily which student will go through their examination and who will not. Even if some students fail but happen to be well connected or their family have been members of the same profession, they will be brought through on the nod. These are the people who judge in our courts, who have rejected down through the decades ever since the foundation of the State the common man from membership of the Honourable Society of King's Inns.

I am speaking from knowledge, not from guesswork or from anyone telling me. I had difficulty in finding a barrister of ten years' standing to sign my memorial. I had the difficulty of getting recommendations and I was rejected because I was a member of the working class, the common class of whom there were not too many up there at that time. I have seen my fellow students compelled to borrow money that they could not afford in order to buy themselves suits of clothes to go up and eat dinners that they could not afford to eat in order to fulfil the regulations as laid down by the Honourable Society of King's Inns. If ever an [1180] institution qualified for “Dis” in front of its “Honourable”, that institution do and they have not changed much in the intervening years, except that certain concessions have been made in order to remove the spotlight from their unfair and dishonourable deeds over the past number of years.

Until that institution sorts itself out we should be very slow to make any concessions or to entrust justice to them. We should be even slower in handing over State money, which we did last year to the amount of £600,000 to do up the Inns, without having control over the regulations they make for the admission of students and their legal education. However, we did that in the same way as we brought in the emergency gaming law after a limited debate of two hours even though people who wanted to speak were not allowed to do so.

If the referendum is passed we hope to bring in divorce legislation and we are assured that special divorce and family courts will be set up. This is an important point. The Taoiseach, the Government and the Minister who is introducing this legislation have assured the worried population — they are genuinely concerned — that special family courts will be set up with judges sitting who have a special interest in that area. However, that is not happening in this case. The argument is that the judges who sit in our courts at present are members of an élitist group who may not be suitable to judge all sectors of society. Until that is changed and we become a more egalitarian society, we should not change the system.

I was talking about insurance companies earlier and I want to continue the argument that they have not helped their industry or made any real contribution towards reducing motor or civil liability insurance because of their actions, or lack of them. I said that most solicitors will tell you that they literally have to drag insurance companies towards a settlement by initiating proceedings. When they enter into negotiations settlements are made much more quickly. There seems to be a new reality dawning on [1181] insurers and solicitors at least in relation to personal injury claims and an awareness on both sides of the advantages of earlier negotiations and settlements. It has been demonstrated that 95 per cent of all claims are settled before going into court in cases of personal injury, some of them on the steps of the court, and much of that is the fault of the insurance companies.

There have been some improvements but more need to be made. One is that the Incorporated Law Society have implemented the exchange of medical reports which has reduced the waiting time by at least six months for a High Court action.

Insurance companies seem to blame the legal profession for high costs but they do not accept that there is a reluctance on the part of insurers to realise that the old order has changed and that there is an anxiety on the part of the legal profession for the earliest possible disposal of claims. That applies to barristers as well as solicitors. A solicitor has no reason for dragging out a claim as he is anxious to get it off his books and to get on with the next case and the same applies to the barrister. Some insurance companies delay matters by having to obtain the opinions of a number of counsel and sending them to head office overseas before they are given authority to expedite claims. That is because some of the foreign insurance companies based here do not have much confidence in the grey matter between the ears of most Irish people; we cannot do things very well, so they go back to their head office.

Some insurance companies also instruct their counsel to fight every claim. For years and years the major insurance company here had a policy of fighting every claim; they dragged them out to the last and of course then they did not have enough money to cover outstanding claims. Eventually the company collapsed and had to be taken over by the State. That was deliberate blackguarding by an insurance company and the earlier case to which I referred, in which my father-in-law was paralysed from the neck down, is proof that he was a victim of [1182] that company. They dragged out the case and their counsel said that if he did not settle for a lesser amount they would drag it out for so long that he was likely to die before he got anything. That is the fault of the insurance companies and not of the motorists or taxpayers and is damning to the case the insurance companies are making.

Insurance companies have a vested interest in lobbying for changes in court procedures, extending the hours of sitting, reduction in vacations, more judges and for regular reviews of the jurisdiction limits. If they adopted a unified approach to these matters their voices would be very influential and powerful. Most insurance companies have internationally based offices and could import useful procedures used abroad to much advantage. They can cite advantages and disadvantages in other countries; they are involved and why do they not do something about it? They seem content to work within the unsatisfactory system which operates here. Insurance companies concentrate their energies too much on complaining about juries, the effect their decisions have on high awards and the overburdening of cases by the necessity to employ three barristers in each case. Changes in these procedures will not effect the savings which the insurers hope for and they have confirmed that premiums will not be affected. I remember quite distinctly, when the former Minister first mooted this idea, that I was the first to object at my own parliamentary party meeting.

The Minister has searched long and hard in his Department for arguments but has not come up with even one. The sole reason given was that premiums were too high and that the abolition of juries would reduce them. The arguments produced since for bringing in legislation have been pathetic. This debate could have taken place in committee rooms around the House with Members of all parties taking part. Members from all sides met the former Minister for Justice to bring in emergency legislation in relation to gaming which is still on the books. We could have met in [1183] the same way about this and we would not now be in a situation where we are involved in a Second Stage debate about a Bill which the Minister is unlikely to change at this stage.

Why am I going on about it if he is unlikely to change it? The answer to that is very simple. One gets various opportunities to make points. One is in the parliamentary party; another is among one's colleagues and by going to see the Minister and talking to him. Finally, if it is insisted upon, we come in here. One has to make it very clear, even if one is a member of a party and is going to be whipped in what one's position is in relation to legislation. As it happens, the main Opposition party do not agree with the removal of juries. I do not agree either. I do not accept the alternatives put forward by the spokesman for the Opposition, but I will get to that later. I just do not want the jury system tampered with at all.

The Minister referred to the MacLiam and O'Connor reports in which the situation was considered in detail and which concluded that the retention of juries was appropriate to certain modification of procedures. I maintain that this legislation is an assault on the rights of citizens and it is inexcusable. This removal of juries is not being done by popular demand. One must ask who is making this demand and the answer is irrefutable — the insurance companies argue that high premiums are the result of the cost of actions and the high fees of the lawyers. Let me point out that there is a tendency among lawyers to drag out cases. There is a lot of horse dealing going on. I have actually experienced cases where barristers talk slowly to make cases go on for a certain length of time and perhaps get one or two days out of it. That situation has come to the attention of many people and Members of this House who want to change it. While cases are being dragged out, a bit of horse dealing is going on in the corridors and, after two or three days when fairly high fees have accumulated, they come back [1184] in and say that a settlement has been arrived at.

These insurance companies are complaining about the high cost of settling claims in court, but 95 per cent of these cases are settled out of court. So what effect is the small percentage that end up in court having on the cost of premiums? One of their arguments is that because jury awards are sometimes high, they set the standards for the settlements out of court. The insurance companies themselves must have some control over settlements. Costs could be reduced if they moved faster, if they gave clearer instructions — it is not necessary to instruct two senior counsel to settle an action.

If we really want to do something about that, the answer is in our own hands. There was an attempt twice here to fuse the two sides of the legal profession, the barristers and the solicitors, and it is one of my greatest regrets that it did not come off. In 1970 the then Minister for Justice, the late Michael Moran, said it was his intention to fuse the professions and he worked to do that. In 1973 his successor, Deputy O'Malley, then Minister for Justice, worked towards that. Both said definitely and categorically that they would fuse the professions. But the fellows with the curly wigs and gowns up in the Law Library got together to try to stop this. The Minister was determined to win but he was beaten by the clock, not by the legal profession. He was beaten by the coming to power of the Coalition. I have to say that the Coalition were then, as they are now, a predominately legal party.

Mr. Allen: Information on Bernard Allen  Zoom on Bernard Allen  That is unfair. They have representatives in all parties.

Mr. Skelly: Information on Liam Skelly  Zoom on Liam Skelly  The Deputy should not be so sensitive to constructive criticism. What I am going to say does not apply to all parties. In the early seventies, and prior to that, Fine Gael were very much a legal party, much more than Fianna Fáil, the only other party of their size. Since 1922 practically every judicial appointment in this State was a political [1185] appointment. As it happens Fianna Fáil were in power for most of the time and appointed more people. But in 1973, to prove the point which the Deputy has drawn out of me now although I was not going to make it——

An Leas-Cheann Comhairle: Information on John J. Ryan  Zoom on John J. Ryan  I wonder is that relevant to the Bill?

Mr. Skelly: Information on Liam Skelly  Zoom on Liam Skelly  We are talking about the removal of juries.

An Leas-Cheann Comhairle: Information on John J. Ryan  Zoom on John J. Ryan  You have gone back to 1922. That is the problem.

Mr. Skelly: Information on Liam Skelly  Zoom on Liam Skelly  The Minister went back to 1857.

An Leas-Cheann Comhairle: Information on John J. Ryan  Zoom on John J. Ryan  I noticed that. How far back do you want to go?

Mr. Skelly: Information on Liam Skelly  Zoom on Liam Skelly  We have to go back as far as necessary. We are doing something that will be irrevocable after it is done.

An Leas-Cheann Comhairle: Information on John J. Ryan  Zoom on John J. Ryan  We are dealing with the Bill of 1986.

Mr. Skelly: Information on Liam Skelly  Zoom on Liam Skelly  All this has interrupted my train of thought. I was making the point that when the Coalition were in Government in 1973 they appointed 14 judges in a short space of time and yet they say they are not in the business of making political appointments. When the Coalition Government came into power in 1973 they were not in favour of fusion of the professions because they had such dominance of associates at the Law Library and such close connections with senior members of the Bar Library and there were members of that Library who were also Members of this House and who later went up to the highest echelons of the profession, right up to the position of Chief Justice. Had that fusion taken place and history been different, we had lasted for about another year, perhaps the late Deputy Ó Moráin and Deputy O'Malley would have succeeded in doing a great favour to this country. There would have been a break away from the British system. We would have had a [1186] single profession and not had the present high costs.

The judges are still strongly divided on whether there should be that change. The civilians have not been asked. On a lighter note, as Sonny Liston once said: “The only people who get paid whether they win or lose in this life are doctors and lawyers.” That is unfortunate. With no reference to anybody, the greatest idiot can be looking after a case for you and whether he makes a hames of it or not, he will be paid and in full. That is one of the reasons behind the high costs — and these people can be carrying on two or three different actions simultaneously. If we were serious about reform we would fuse the professions. That would go a long way towards sorting out the present difficulties.

The barristers or the Bar Council are not in favour of this change. In The Irish Times of 29 April last the Chairman of the Bar Council opposed the abolition of the jury system stating that premiums would not come down if juries were abolished; that has been confirmed. The insurance companies are trying to hoodwink the Minister and the Government into bringing in this legislation in the hope that the premiums will come down. The Chairman believes that the major reason for high premiums is the inefficient way in which insurance companies run their business, not the amount of jury awards. I have just proved that. However, the lawyers and barristers are being blamed. The Chairman of the Bar Council accused the insurance industry of trying to manipulate the public into the belief that juries should be abolished in civil cases and said they were trying to save themselves money rather than have justice done. I hope the Minister takes note of that.

There has been no investigation of the juty system in recent years. The Restrictive Practices Commission and the Committee on Court Practice and Procedure concluded that the jury system was the best and most democratic way of assessing damages. In The Irish Times of 18 June 1985 the Bar Council also defended the jury system, saying that it was a civil [1187] right of considerable value which we are now about to throw out of the window forever. None of the other pieces of legislation thrown out ever came back. How difficult it would be to undo what is being done. What kind of case would have to be made then? Three paltry, watered down reasons, which do not stand up to examination, are put forward for abolishing the jury system. What sort of case would have to be made for its reintroduction? We would need a body of knowledge built up over ten years, with many volumes of information and reports, needing delegation after delegation, with members of all professions and the public bombarding us with information. Even then they might not succeed. It is grossly unfair, to say the least.

The Bar Council also say in the article that there are compelling social and democratic reasons for the retention of the jury system, that the arguments to the contrary centre entirely on economics. It does mention one not too strong argument which the Minister also used to strengthen his argument, that it is a mode of involving the ordinary citizen in the working of the courts and ensures in that way not merely that the standard of justice administered is close to the feeling of the ordinary man, but that the respect of the ordinary citizen for the courts, which is essential for their proper functioning, is retained.

It is true that rarely after this will one see a member of a jury, except in a criminal case, anywhere near a court of law. Then they have to suffer the trauma and fright of having to go into court when it does happen. Any members of the public I have met who have done jury duty will tell you in great detail long afterwards of their experience, even though it may have been an inconvenience at the time. They will say how carefully the whole thing was considered and the detail that was gone into. It is an experience that will stay with them for a lifetime.

Another argument was used by the Minister and also by his colleague on radio last week, probably having been briefed by the Minister. This was that it [1188] needed 10,000 citizens last year to make up the jury panels and that 30 per cent of these turned up. What is wrong with that figure of 30 per cent? There are many reasons for people not being able to be in certain places. We still get the juries and have plenty of people from whom to draw. A whole body of argument with reference to the jury system needs attention. There is very little for the abolition of juries except weak economic reasons. That will not lessen the cost because the solution lies in the hands of the insurance companies.

There are options for reform. Settlements which have been made are usually on the insurance companies' terms and those companies are always in the driver's seat when it comes to settlement. They work very well together when they want to. It is wrong to suggest either that the legal profession or the jury system is responsible for the high costs. There are other more serious reasons. One is the total lack of application of the Road Traffic Acts, compounded by the standard of driving and drunken driving. The costs of the legal profession are not the difficulty.

The solutions are in the hands of the insurance institutions which should not be getting the sympathy they are getting from Members. They are well able to look after themselves, being past masters at it. They can afford it and are in the business for what they can get from the system. They are milking it dry, giving precious little back to the public. The profits which they make in other areas of insurance, such as life insurance, should be taken into account. They have many assets in their fine buildings and investments. One would think they were not able to look after themselves in the big bad world, but they make fat profits by being very well able to use the system. They employ the best brains in actuarial services which are available.

It is wrong of the Minister to compare us with Britain. This is done whether we want to bring in a system or abolish one. We do not seem able to take our own situation in hand. The insurance companies have the expertise of international [1189] offices and the experiences of different countries. We seem to get the blame for everything. They lack confidence in the Irish people to work out settlements for claims. They have a lack of confidence in the Irish system. They think it does not work as well as those in other countries. That is an argument which should be shoved down their throats and should not be tolerated. It is unfortunate that the Minister insists that this is done after careful consideration. I do not think it was carefully considered. I have said enough about that to prove it right. The Irish system is correct. High awards should be favoured. If a person is subject to a very unfair and low award, and has to live a life of misery as a result, that is not a reason for decrying the system. Jury awards are mostly balanced and fair, as has been confirmed by Mr. McEntee, one of the most eminent members of the legal profession.

insurance cost is for uninsured drivers. The Government could do away with that overnight. If the members of the Garda implemented the law we would not have uninsured drivers. I do not know how anyone can make a human suffering uniform or how it can be consistent. It states in the Bill that we should get consistency. It is a disgrace to fix a sum for any injury. The whole family situation should be taken into account. That is done by insurance companies. The profits from insurance companies and other areas are not taken into account. If they do not get their act in order the Government will have to look at that area closely. That is what the Minister should be doing rather than bringing in this legislation.

I already mentioned the Road Traffic Act and drinking while driving. The Supreme Court were very severe in fixing a figure of £150,000. I know they have the right to do that, but I am confident that under a different system and with judges who have wider experience that would be overturned. They should go on a tour of the Rehabilitation Institute and other places before fixing such a figure. That would give them an idea of what they had done. The different strata of society would not be catered for in the [1190] case of the abolition of civil juries. It should not be left to one judge alone.

The Minister's case is very weak and he should recognise and address that. Deputy Woods made the point that a jury has no vested interest in a case. They come to the court, make a decision and go again. People feel glad of the experience of being able to help their fellow man. It involves them in the administration of justice. It gives them an input into social justice. If there are 3,000 or 4,000 people coming out every year with jury experience mixing with the population and letting the people know what is going on, it has a soothing effect on society. The only reaction I have to this measure is to reject it because it is inopportune, wrong and unfair.

I spoke about the cost of insurance. One cannot say the most extreme case should be fixed at a figure of £150,000. The most extreme case of suffering cannot be defined because one cannot take into account what is going on in the mind of a person who is suffering. It is an assault and an affront on the sick and the most unfortunate in our society. I felt very badly about some of the awards which were overturned by the higher courts because of the high media profile which some of these cases got. It was very unfair. I heard on the radio some weeks ago about a man from Cork who suffered in an explosion in the Glen of Imaal. He was one of a number of people who fought their case for five or six years. He lost one leg and the other was very badly damaged. He said that he had nothing to live for. He got nothing out of it at the end of the day. He was just thrown on a heap with no place to go and no recourse of action. That case is now closed and cannot be opened again. One person will have to make that decision from now on.

The phrase used by the Minister was unfortunate. In the light of historical arguments he should now change the system. He did not prove anything with those historical arguments. They reviewed chronologically how the changes were made. Personal injury actions should take place before civil juries mainly because of the injuries and [1191] the pain that individuals suffer. Each case should be considered by a body of men with no vested interest who are not prejudiced or intimidated in any way. The Minister should not rely on minority decisions. There has been a self-corrective process in these awards. Awards were increased and then petered out again. That was perhaps in response to inflation or to people being more conscious of the matter.

The jury system is self-corrective. It is very important that it has worked that way. That is evidenced by the moderation of awards recently. It is working properly. I will not reiterate Deputy Woods' suggestions because they are on the record. I do not want to take the power away from the jury or give it to the judge. I do not want the judge assessing the amounts of money. Sometimes he presumes that people are idiots by overturning an award and replacing it by as little as 25 per cent and 50 per cent. I do not think he is in that position. You can have hit and miss justice. We will put the judge in an awful position if we leave that to him. Maybe he will become hardened but he will always have his conscience to wrangle with over whether, in the light of experience four or five years later, his awards stand up or do not stand up. On a jury people are for or against certain amounts but they arrive at a better conclusion.

The Minister should also allow the option for a jury trial in the Circuit Court. That is one suggestion I would make. I will also make the suggestion that the defendant or plaintiff should be able to opt to take an action from the Circuit Court into the High Court in front of a jury if he will not get a jury in the Circuit Court. Many people do not feel happy, for various different reasons, operating in front of a judge or a particular judge.

This Bill is anti-social and it is unjust. I am sorry it has been brought in without the opportunity for us to have hammered it out on the outside. It is an ideal Bill to have all parties sitting around arguing about it. It is not a strong argument — if it cannot be used in the case of the [1192] referendum, it cannot be used here — that there is no demand for this Bill as there was no demand for contraceptives and there is no demand for divorce. As my colleague, Deputy O.J. Flanagan would say, there is no demand from the citizen. If there was a demand, it would be a demand for retention. Therefore, I cannot use that. I will argue strongly for the retention of the jury system. I hope the Minister will reconsider. I do not think it is too late to do that as the debate is only beginning. I will reserve my further comments for Committee Stage.

Mr. Hyland: Information on Liam Hyland  Zoom on Liam Hyland  The Bill before the House is important for at least two conflicting reasons. Historically, it proposes the abolition of the time established system of settling claims for civil actions by jury and, secondly, and perhaps more disappointingly, the Bill as circulated by the Minister does not bring forward any new, more effective or just proposals for the settlement of claims within the existing judicial system. I agree that there are good arguments for and against the retention of the present system as we know it. The House must be fully satisfied that any proposed change is an improvement in the existing system and that we are not merely proposing change simply for change's sake.

For that reason, the Bill should receive the fullest possible consideration and debate on all stages during its passage through both Houses. I am tempted to ask where the demand for this Bill originated, or why we find ourselves debating it at this time of all times when there are so many other more important and pressing matters to which this House should be applying its time and attention. If I were asked for my views on this matter before the publication of the Bill, and before I had an opportunity to examine the proposals contained in the Bill, I would have said by way of almost instant comment that the jury system should be abolished as a means of deciding civil action claims for injuries. If I were further asked to give my reasons for that view, I would have said that the existing system is a major factor in the increasing [1193] and escalating cost of insurances, in particular motor insurance. If I were further asked why or how I came to that conclusion I would say it was the most often publicised reason and the explanation most often offered by those who answer criticism, the escalating costs of insurance generally.

I would now say that the public perception of the system up to this point in time is exactly the same. I have no doubt that, before this debate was initiated in the House, the vast majority of our citizens out there on the streets would respond to that query in the same way as I would have responded initially. Somebody — and it must have been the vested interests in the insurance companies — has been very successful in having that viewpoint publicised, propagated and promoted. Therefore, they were successful in colouring the public attitudes and thinking in relation to what they would try to sell as the adverse effects of jury decisions in relation to the ultimate costs of insurances, as I said in particular motor insurance.

We are, therefore, lucky in this debate that we have available to us the mature and considered views of at least three committees which have examined and reported on various aspects of the insurance industry. Let me say with respect to the Minister and to the Members who have already spoken, and to those who will follow in this debate, that the committees' study of the problem is more thorough and scientific than any amount of research which we as individual Deputies could undertake. For that reason, their collective views, judgments and sometimes their decisions in relation to insurance generally, the effects of jury decisions in relation to awards and the general application of the judicial system in relation to awards, cannot be ignored.

The members of these committees, some of them very highly qualified in the area of insurance and some of them eminently qualified in terms of their judicial knowledge, put their collective views together with a view to making their findings available to our citizens and to Members of this House. We would be [1194] extremely foolish if we did not take seriously into consideration the views which they have documented and made available to us.

As one Member of the House — and I am sure the same will apply to every other Deputy — I should say I burned the midnight oil in an effort to brief myself as thoroughly as possible in relation to what the outcome of this debate would involve. Following my personal study of these reports and of the Minister's proposal to dismantle the jury system, I am not convinced that the proposed changes will in any way lead to a reduction in insurance charges which, presumably, was the Minister's main motivation in introducing this Bill. However, on reflection, having read his speech and the Bill, I was not sure what was his motivation for its introduction at this time.

One of the most telling and convincing arguments for me against the Minister's proposal is the fact that all three reports available to us — perhaps there are more — having examined all aspects of the insurance industry and the effects of the jury system on awards, came out to varying degrees in favour of the retention of the jury system. That is particularly significant in the context of the debate in which we are now involved, that at the end of the day these three major, wide-ranging reports, having examined the pros and cons of the operation of the jury system and the general problems of insurance, came out in favour of the retention of the jury system as it has obtained in this country. The committees in at least two of their reports clearly indicated that the involvement of juries in deciding on claims did not make any significant contribution to increased insurance costs.

If one is not convinced by or satisfied with the views and comments of those three independent committees then all one has to do is look at the report of the Joint Committee on Small Businesses which examined the insurance industry and came out in favour of the retention of the jury system subject to certain specific adjustments in the system as it operates at present. The same applied to some of [1195] the other reports. It is significant also that that joint committee gave long and serious thought and consideration to insurances generally and, of course, to the effects of the operation of the jury system. Therefore, it is significant that they also on balance came out in favour of the retention of the jury system.

I am tempted to repeat a question I have posed already: where did the demand originate for this Bill? It is interesting to note that on some of the committees to which I have referred the insurance industry was represented and, presumably, at the end of the day they agreed with the final drafts of the reports published. Be that as it may, one can only be suspicious that the main argument, demand and private lobbying for the need to introduce this Bill must have come inevitably from vested interests within the insurance companies. As a result of a good publicity campaign somebody has successfully sold the argument to the Irish people that the jury system is responsible for the increasing burden and cost of insurance cover. Yet all of the mature consideration and thought given the matter by various people, professionals and others available to us in this context, clearly indicates that there is very little evidence to support that contention.

It is worthy of note also that, while the jury system in criminal injury cases in Britain has been discontinued now for a number of years, proposals to extend the system to Northern ireland were abandoned because of the British experience. Yet in recent times and on a number of occasions previously consideration was given to whether Northern Ireland should follow the British practice and do away with the jury system. It was decided on the basis of the experience of the system in Britain that it should not be extended to Northern Ireland. While that fact may not be significant in itself, nonetheless it is a further aid in helping us decide this issue for ourselves. At the end of the day the argument which would have the most influence on our people is whether insurance premiums would be reduced as a result of the proposal to disband the jury [1196] system. One need only look to the response of the insurance industry itself when they were confronted with the devastatingly disappointing reply that there would not be a significant reduction, particularly in motor insurance premiums, as a result of the disbandment of the jury system. It must be obvious to many Members of the House that there are already conflicting views, even within the industry, in regard to the operation of the jury system. That has been placed on record by way of a number of statements issued by interests in the insurance industry.

We must pose the question: what, then, is the advantage? Why should there be a proposal at this time to disband the jury system if there is not to be any saving effected in insurance premiums, if there is not to be any improvement effected in the overall availability of insurance? Indeed, the availability of insurance is becoming as much a problem as its cost. Regardless of cost it is becoming extremely difficult, particularly for young people, to get insurance cover on a motor car. The same applies particularly in large urban areas where it is becoming extremely difficult if not impossible for householders to get adequate insurance cover. That reflects the serious deterioration in law and order.

Insurance companies are not willing or prepared to pass on to the consumer savings which would accrue through the changes envisaged by the Minister in this Bill. There is an obligation on them to play their part in making insurance available as a right and at a price which people can afford. Instead of talking about disbanding the jury system the Government would be better employed giving serious consideration to how insurance could be made more readily available to people who cannot afford very high premiums. People in the lower income brackets who need a car to travel to work cannot afford to pay motor insurance. That is very serious. People are left with the choice of driving without insurance or opting out of work. The increasing number of uninsured vehicles [1197] is a greater factor in the high cost of insurance premiums than juries giving high awards.

In bringing in the Bill the Minister is taking the easy way out and is content to try to cure the disease rather than tackling the cause of the disease. If we are serious about job creation and economic recovery, we must accept that people will not always find jobs in their local communities and that they will need a car to travel to work. The Government need to recognise that for many people a car is no longer a luxury.

We are spending many hours debating the disbanding of the jury system when we would be more gainfully employed in trying to tackle this serious problem. This House must legislate for an alternative approach to motor taxation and insurance. Serious thought should be given to a system which would relate taxation and insurance to the necessity for and the usage of a car. My proposal would eliminate the problem of uninsured drivers and result in a substantial reduction in insurance premiums. The large number of uninsured motorists contributes substantially to the high cost of motor insurance. It costs on average £70 on each insurance premium paid by motorists to cover the cost of uninsured drivers. No one would condone the use of uninsured vehicles on our roads, but it is not difficult to see that a man on a low income would be unable to meet the escalating cost of insurance. He might take the risk of driving without insurance in order to keep his job. Our priorities are wrong. We should tackle the economic and social problems which prevent people from securing gainful employment.

Instead of abandoning the jury system we should reform the present system of road taxation and motor insurance. They should be linked to the tax on fuel oils. In this way a man who spends £15 a week on petrol would pay motor taxation and insurance proportionately, whereas a person whose car is a luxury and who could afford to spend £50 a week on petrol would pay proportionately more on insurance and motor taxation. I am disappointed that someone who is in a [1198] position to tackle that aspect of motor taxation and insurance has not done so before now. It would serve a dual purpose in that it would eliminate uninsured and untaxed drivers and lead to a reduction in the cost of insurance.

Instead of abandoning the jury system we should be considering reforming it and making it more appropriate to the Irish scene. In my view we should reform it in such a way that a judge could issue guidelines to a jury as to the extent of damages allowable in specified areas of injury claims. Instead of dismantling the jury system we should amend it in the way I have suggested. There should be certain levels of compensation related to injuries. The Minister should give that suggestion serious consideration. Such a system would help to rationalise compensation awards and minimise the uncertainty and confusion that exists. We have often heard it said that juries are inconsistent in the awards they make and if a judge offers advice to a jury that inconsistency will be removed.

I am sure the Minister will agree that the level of legal and other costs involved in personal injury claims is out of all proportion to the amount of compensation awarded. It is also out of proportion to the amount of work involved in representing claimants and defendants. Both sides are guilty in so far as costs are concerned. Insurance companies are also contributors to the high cost of the system. Defendants are left with little option but to fall into this traditional pattern of legal protectionism which in most cases involves two senior counsel, one junior counsel and a solicitor. The Minister, and the House, will be seen in a more credible light if they tackle this vast area in an effort to reduce costs instead of making a token gesture by abandoning the jury system. The jury system does not contribute in any significant way to the overall cost of insurance.

The Bar Council have acknowledged that the list system is the root cause of the lavish and expensive form of legal bureaucracy. If the House does not legislate to dismantle that system then we should not be here at all. Why must we [1199] waste so much time debating the dismantling of a system which does not in any significant way contribute to increased insurance costs while at the same time we choose to ignore the legal representation system which is a major contributory factor to the overall cost? If the Minister is not prepared to introduce reform in that area I will endeavour to tackle the matter through a Private Members' Bill. I have given this matter serious thought and have come to the conclusion that we must change it. Many of my constituents who have been unfortunate enough to have to go before our courts to get justice have made their views about the level of representation in court actions known to me. It does not reflect in any credible way on the Parliament that we have chosen to ignore such matters while we spend our time debating a Bill which amounts to nothing more than a window dressing operation. The Government are pretending to be interested about doing something in regard to increased insurance costs. They should have been concerned with such matters as legal and medical representation and the other paraphernalia associated with our judicial system. In their own way they are more significant in terms of costs.

The dismantling of the jury system will not result in a weakening of the present listing system. The Minister implied that the listing system would automatically disappear if we dismantled the jury system. Will he explain to the House how that will happen? In my view the Minister is guilty of misrepresentation in that regard. The alternative to doing away with the jury system is to give total control to the legal profession not only on procedure but also in the area of compensation. Is it not wrong to strengthen further that monopoly and hand over to the organised legal profession domination of procedures in our courts and let them decide on the level of compensation to be awarded to injured parties? It would be wrong to create such a monopoly because the jury system will maintain some balance in the procedure. It would not be in the interests of the public to [1200] pass this legislation as it is, because litigation in the High Court would become the sole domain of the professions operating exclusively in that area.

Somebody said earlier that members of juries have no legal qualifications to adjudicate on the merits of injury cases. It may be that they are not legally trained, but from my experience of talking to ordinary jury members, I can say that from the moment they took the oath they embarked on their task with a great sense of seriousness and responsibility. They always regard their position as being of great significance and importance and they have always exercised their judgment as they would apply it as ordinary citizens determining matters without legal qualifications. Is it not the essence of democracy that we have Irish citizens sworn in to exercise their judgment as citizens, having heard the evidence summed up for them by a judge, and giving their collective citizens' views? We could not have a fairer system because it includes consideration in a compassionate way of the social side of a claim, and that might not be taken into account at all by members of the Judiciary sitting on their own. I would have much greater faith in a decision of a group of citizens to come up with correct proposals in relation to injury claims.

I might be influenced in the opposite direction if there were convincing evidence before us that the jury system is contributing significantly to increased insurance costs, but all the evidence available to us clearly indicates the reverse. The MacLiam report showed that only 20 per cent of all accident claims go to solicitors and of those only 12 per cent are listed as going to court. In other words, only 4 per cent of all claims go to court. Of that 4 per cent only 0.2 per cent go to court and are heard by juries. How, therefore, can anybody credibly make the case that the jury system has been contributing to the high overall cost of insurance?

It is worthy of note that the committee set up to examine the insurance industry and the operation of our judicial system [1201] in relation to injury claims reported as follows:

Why should not the ordinary citizen, with guidance from the judiciary, be the arbiters of standards for their fellow citizens who fall victim to accidents?

That fairly reflects the thinking of the ordinary citizen and I go along fully with it. Later the report stated:

The Committee having considered submissions from the Federation of Insurers in Ireland and the Irish Insurance Federation, considered that, whatever the merits or demerits of trial by jury, it is so essential a part of our system of justice, that we do not consider it should be called into question in relation to the legal determination of guilt.

That is another convincing piece of evidence in favour of the retention of juries. Where is the demand coming from? Why do we find ourselves this week and possibly next week, as we did last week, discussing such an insignificant proposal in relation to the insurance industry? I do not want to be negative and I have put forward two proposals that would bring about greater prospects for savings in regard to insurance costs than this Bill. I suggested reducing the number of uninsured drivers through a new taxation system. That alone would reduce the overall cost of insurance. During the passage of an earlier Courts Bill I said that the jurisdiction of the Circuit Court should be increased from its present £15,000 to £30,000. That in its own way would filter through the system and have the effect of reducing overall insurers' costs. Earlier I said that the amount expended by the State in providing for victims of uninsured drivers in 1986 has been £4 million. If the system I proposed were agreed it would mean an immediate saving of that £4 million, because there would not be any uninsured drivers.

I refer also to the specialist costs involved in high insurance awards. Judicial and specialist costs contribute significantly [1202] to the overall level of compensation awards and, consequently, the high cost of insurance premiums. Last year I said the overall loss of revenue through uninsured drivers averages about £48 million annually. If that revenue were available from drivers who do not insure their cars the saving would be £48 million, and one does not have to be a great mathematician to reckon that if that was made available to the insurance companies the premiums would be correspondingly reduced.

One other factor contributing to increased insurance costs is the increasing number of road accidents. I do not like citing the position in Great Britain as an example, but the number of cars involved in accidents there is only 9 per cent of the vehicle population. Ours is double that.

Debate adjourned.

Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.


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