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Consultation Paper on Consolidation and Reform of the Courts Acts

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Consultation Paper on Consolidation and Reform of the Courts Acts CONSULTATION PAPER CONSOLIDATION AND REFORM OF THE COURTS ACTS (LRC CP 46-2007) IRELAND Law Reform Commission 35-39 Shelbourne Road, Ballsbridge, Dublin 4 i © Copyright Law Reform Commission 2007 First Published July 2007 ISSN 1393-3140 ii LAW REFORM COMMISSION Background Law Reform Commission is an independent statutory body whose main aim is to keep the law under review and to make practical proposals for its reform. It was established on 20 October 1975, pursuant to section 3 of the Law Reform Commission Act 1975. The Commission’s Second Programme for Law Reform, prepared in consultation with the Attorney General, was approved by the Government and copies were laid before both Houses of the Oireachtas in December 2000. The Commission also works on matters which are referred to it on occasion by the Attorney General under the terms of the Act. To date the Commission has published 83 Reports containing proposals for reform of the law; eleven Working Papers; 45 Consultation Papers; a number of specialised Papers for limited circulation; An Examination of the Law of Bail; and 27 Annual Reports in accordance with section 6 of the 1975 Act. A full list of its publications is contained on the Commission’s website at www.lawreform.ie Membership Law Reform Commission consists of a President, one full-time Commissioner and three part-time Commissioners. The Commissioners at present are: President: The Hon Mrs Justice Catherine McGuinness, former Judge of the Supreme Court Full-time Commissioner: Patricia T Rickard-Clarke, Solicitor Part-time Commissioner: Professor Finbarr McAuley Part-time Commissioner: Marian Shanley, Solicitor Part-time Commissioner: Donal O’Donnell, Senior Counsel Secretary/Head of Administration John Quirke iii Research Staff Director of Research: Raymond Byrne BCL, LLM (NUI), Barrister-at-Law Project Manager Chronological Tables to the Statutes: Deirdre Ahern LLB, LLM (Cantab), Solicitor Legal Researchers: John P. Byrne BCL, LLM (NUI), Barrister-at-Law Áine Clancy BCL, LLM (NUI) Philip Flaherty BCL , LLM (NUI), Diop sa Gh Cliona Kelly BCL, PhD (NUI) John Kenny LLB, LLM (Cape Town) Eimear Long LLB, Barrister-at-Law Eóin MacDomhnaill BCL, LLM (Dub) Margaret Maguire LLB, LLM (NUI) Jane Mulcahy BCL, LLM (NUI) Tara Murphy BCL, LLM (Essex) Richard McNamara BCL, LLM (NUI) Charles O’Mahony BA, LLB (NUI), LLM (Lond), LLM (NUI) Tina O’Reilly BCL, LLM (NUI) David Prendergast LLB, LLM (Lond), Barrister-at-Law Keith Spencer BCL, LLM (Dub), BCL (Oxon), Barrister-at-Law Nicola White LLB, LLM (Dub), Attorney-at-Law (NY) Joanne Williams LLB, LLM (NUI), Barrister-at-Law Administration Staff Project Manager: Pearse Rayel Executive Officer: Denis McKenna Legal Information Manager: Conor Kennedy BA, H Dip LIS Cataloguer: Eithne Boland BA (Hons), HDip Ed, HDip LIS Information Technology Officer: Liam Dargan Private Secretary to the President Debbie Murray Clerical Officer: Ann Browne iv Principal Legal Researcher on this Consultation Paper Claire Bruton LLB, LLM (Lond), Barrister-at-Law Contact Details Further information can be obtained from: Secretary/Head of Administration Law Reform Commission 35-39 Shelbourne Road Ballsbridge Dublin 4 T: +353 1 637 7600 F: +353 1 637 7601 E: [email protected] W: www.lawreform.ie v ACKNOWLEDGEMENTS In November 2005 the Commission established a Working Group to assist it on issues relating to this Consultation Paper. The members of the Working Group met on four occasions to discuss aspects of the project and to appraise the material provided. The members of the Working Group are: Robert Browne, Assistant Secretary General, Department of Justice, Equality and Law Reform Raymond Byrne Director of Research, Law Reform Commission John Cronin, Principal Officer, Courts Policy Division, Department of Justice, Equality and Law Reform Professor Hilary Delany, School of Law Trinity College Dublin Mr Justice Hugh Geoghegan, Supreme Court Mrs Justice Catherine McGuinness, President, Law Reform Commission Benedict Ó Floinn, Barrister at Law Patricia T. Rickard Clarke, full-time Commissioner, Law Reform Commission Noel Rubotham Director of Reform and Development, Courts Service Claire Bruton is Secretary and Researcher to the Group. The Commission wishes to record its appreciation for the invaluable contribution which the members of the Working Group made, on a voluntary basis, to this project. Full responsibility for this publication, however, lies with the Commission. vi TABLE OF CONTENTS Table of Legislation ix Table of Cases xv INTRODUCTION 1 A Background 1 B Phasing of the Project 3 C Outline of the Consultation Paper 4 CHAPTER 1 DEVELOPMENT OF REFORM OF COURTS 7 A Introduction 7 B Proposals for Reform pre 1922 7 (1) The Supreme Court of Judicature (Ireland) Act 1877 7 C Proposals for Reform post 1922 8 (1) The Judiciary Committee 8 (2) Report of the Joint Committee on The Courts of Justice Act 1924 9 (3) Committee on Court Practice and Procedure 9 (4) Programme of Law Reform 1962 11 (5) Report of the Constitutional Review Group 11 (6) Fourth Progress Report of The All-Party Oireachtas Committee on the Constitution: The Courts and the Judiciary 12 (7) Working Group on a Courts Commission 12 (8) Chief Justice Keane’s 2001 Lecture 14 (9) Working Group on the Jurisdiction of the Courts 15 (10) Statute Law Revision Acts 2005 and 2007 16 (11) Law Reform Commission Material 17 CHAPTER 2 HISTORY OF THE COURTS IN IRELAND 19 A Introduction 19 B Civil Jurisdiction 21 (1) The Supreme Court 21 (2) Court of Appeal 42 (3) The High Court 45 (4) The Circuit Court 57 (5) The District Court 67 C Criminal Jurisdiction 72 (1) Supreme Court 72 (2) The Court of Criminal Appeal 74 (3) The Special Criminal Court 79 (4) The High Court 81 (5) The Circuit Court 88 (6) The District Court 92 D The Courts Service 102 vii E Conclusion 103 CHAPTER 3 SUBSTANTIVE AREAS OF REFORM 111 A Introduction 111 B Specific Issues 111 (1) Case Stated Procedure 111 (2) In camera rule and proceedings heard in private 131 (3) Vesting of statutory jurisdiction in statutory bodies and the removal of court jurisdiction in other areas 152 (4) The appeals system in general, including leave to appeal in criminal cases 160 (5) Increase in general monetary limits in the civil jurisdiction of the District and Circuit Courts. 184 (6) The Rules of Court Committees 187 (7) Criminal Procedure: summary trials of indictable offences and the right of election 206 (8) Jurisdiction of the Courts-Criminal: Allocation of Cases to Circuit Court and Central Criminal Court: 218 CHAPTER 4 A MODEL FOR A MODERN COURTS ACT 233 A Introduction 233 B Courts Acts and relevant literature 234 (1) Ireland 234 (2) England and Wales 235 (3) Singapore 237 (4) New Zealand 237 (5) Queensland, Australia 240 (6) Australia 244 (7) Northern Ireland 245 C Discussion and scheme of Courts Act for this jurisdiction 247 (1) General 247 (2) Approach to structure of the Courts Acts: 247 (3) Purpose of the Act 248 (4) Outline of a consolidated Courts Act: 249 D List of Courts Acts since 1922 265 CHAPTER 5 SUMMARY OF RECOMMENDATIONS 269 APPENDIX viii TABLE OF LEGISLATION Access to Justice Act 1999 1999, c. 22 Eng Act of Union 1800 40 Geo 3 c. 38 Eng Adaptation of Enactments Act 1922 1922, No. 2 Irl Administration of Justice Act 1960 1960, c. 65 Eng Administration of Justice Act 1969 1969, c. 58 Eng Adoption Act 1991 1991, No. 14 Irl Air Navigation and Transport Act 1936 1936, No. 40 Irl Care of Children Act 2004 2004, No. 90 NZ Chancery Amendment Act 1858 21&22 Vic c. 27 Eng Chancery Appeal Court (Ireland) Act 1856 19&20 Vic c. 92 Eng Children Act 2001 2001, No. 24 Irl Children's Act 1989 1989, c. 41 Eng Civil Bill Court (Ireland) (Amendment) Act 1864 27&28 Vic c. 99 Eng Civil Bill Court (Ireland) Act 1851 14&15 Vic c. 57 Eng Civil Liability Act 1961 1961, No. 41 Irl Civil Liability and Courts Act 2004 2004, No. 31 Irl Civil Procedure Act 1997 1997, c. 12 Eng Common Law Procedure Amendment Act (Ireland) 1856 19&20 Vic c. 102 Eng Common Law Procedure Amendment Ireland Act 1870 33&34 Vic c 109 Irl Companies Act 1963 1963, No. 33 Irl Competition Act 2002 2003, No. 14 Irl Competition Act 2002 2002, No. 14 Irl Constabulary (Ireland) Act 1836 6&7 Will 4 c. 13 Irl Constitution of the Irish Free State (Saorstát Eireann) Act 1922, No. 1 Irl 1922 Constitutional Reform Act 2005 2005, c. 4 Eng Consumer Credit Act 1995 1995, No. 24 Irl County Courts Act 1984 1984, c. 28 Eng County Officers and Court (Ireland) Act 1877 40&41 Vic c. 56 Eng Court Houses (Ireland) Act 1818 58 Geo 4 c. 31 Eng Court of Bankruptcy (Ireland) Officers and Clerks Act 1881 44&45 c. 23 Eng Court of Chancery (Ireland) Regulation Act 1850 13&14 Vic c. 89 Eng Courts (Establishment and Constitution) Act 1961 1961, No. 38 Irl ix Courts (No 2) Act 1997 1997, No. 43 Irl Courts (Supplemental Provisions) (No 1) Act 1968 1968, No. 3 Irl Courts (Supplemental Provisions) Act 1961 1961, No. 38 Irl Courts Act 1476 16&27 Edw 4 c. Irl 22 Courts Act 1971 1971, c. 23 Eng Courts Act 1971 1971, No. 36 Irl Courts Act 1981 1981, No. 11 Irl Courts Act 1991 1991, No. 20 Irl Courts Act 1991 1991, No. 20 Irl Courts Act 2003 2003, c. 39 Eng Courts and Courts Officers Act 1995 1995, No. 31 Irl Courts and Courts Officers Act 2002 2002, No 15 Irl Courts of Justice Act 1924 1924, No. 10 Irl Courts of Justice Act 1926 1926, No.
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