The Gazette 1930-33

The Gazette of the Incorporated Law Society of Ireland.

JUNE, 1932]

I refer to the procedure by which judgment in default of appearance can be entered in the office of the County Registrar in cases of liquidated demands. This provision was one much in the interest of the commercial community, as it afforded an expeditious and inexpensive mode of procuring judgment for trade debts. The Rules were but a short time in force when it was rumoured that the Rule authorising this procedure was ultra vires. So persistent did these rumours become that the Council submitted a case to Senior Counsel, who advised that there was grave doubt as to the validity of the Rule. I apprbached the Minister for Justice with a view of putting the matter on a satisfactory basis, but having regard to the recent con– firmation of the Rules by the Oircachtas, coupled by the fact that there has been no judicial decision on the validity of the Rule, the Minister did not consider that he was called on to take any step. The difficulty underlying the matter is one arising on the interpretation of Article 64 of the Constitution, by which it is declared that the judicial power of the Irish Free State shall be exercised and justice, administered in the Public Courts by Judges appointed by the representative of the Crown on the advice of the Executive Council. Questions of great importance have arisen as to whether the exercise of what is con– tended in many quarters to be judicial power by Special Commissioners of Income Tax, the Land Commission, County Registrars and other officers carrying out administrative functions is ultra vires the Constitution and illegal. No judicial pronouncement has so far been made on this far-reaching topic, and the Council has come to the conclusion that until the basic difficulty is cleared up by a decision of the Supreme Court, nothing can "be done to settle the question of the power of County Registrars to enter judgments by default. In the meantime the Council has thought it well to draw the attention of the profession to the possible illegality of the procedure. On the subject of expeditious recovery of trade debts it is admitted on all sides that the District Courts have given entire satisfac– tion. The procedure is simple, quick and inexpensive, and it may be worthy of the

consideration of the profession whether it would not be beneficial to the commercial community if the jurisdiction of District Justices was increased to £50 in simple contract debts. This would cover the vast majority of debts sued for by traders. Circuit Court Appeals. In reference to appeals from Circuit Courts, general dissatisfaction has been expressed by the profession at the present mode of dealing with these appeals. In the past enormous arrears ran up and, as you will remember, Special Commissioners had to be appointed to deal with these arrears. It will'interest you to know the present position of pending appeals. There were on the 1st of January last 209 appeals unheard. Since then 80 notices of appeal have been lodged, and at the moment there are 90 undisposed of. That shows a considerable speeding up ; but, nevertheless, I feel that the profession as a whole regard the hearing of these appeals on notes to be unsatisfactory. The Joint Com– mittee of the Houses reported in favour of appeals by way of re-hearing to be heard locally in convenient centres twice a year, and emphasised the general dissatisfaction with the present mode of appeal expressed by the great majority of the witnesses who ! gave evidence before the Committee. It is hoped when the Government introduce the promised legislation to implement the Report of the Joint Committee that this i recommendation shall be given effect to. Landlord and Tenant Act, 1931. The only recent Act which calls for any remarks is the Landlord and Tenant Act, 1931, which introduces a number of com– plicated provisions to regulate as regards houses the future relations of landlord and tenant. By Section 5, Sub-Section (3) the Rule Making Authority is the Minister for Justice, and that provision practically overrides Section 65 of the Courts of Justice Act, 1924. Every Court heretofore has been allowed to adopt its own procedure, and this new method of allowing procedure to be dictated by the Minister for Justice which as we all know really means the permanent officials of the Ministry is objectionable. Prescribed