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1 REPORT(LRC 97 - 2010)CONSOLIDATION AND REFORM OF THE COURTS ACTSThe Law Reform commission is an independent statutory body established by the Law Reform commission Act 1975. The commission s principal role is to keep the law under review and to make proposals for reform, in particular by recommending the enactment of legislation to clarify and modernise the law. This role is carried out primarily under a Programme of Law Reform. The commission s Third Programme of Law Reform 2008-2014 was prepared and approved under the 1975 Act following broad consultation and discussion. The commission also works on specific matters referred to it by the Attorney General under the 1975 Act.

2 Since 2006, the commission s role also includes two other areas of activity, Statute Law Restatement and the Legislation Directory. Statute Law Restatement involves incorporating all amendments to an Act into a single text, making legislation more accessible. The Legislation Directory (previously called the Chronological Tables of the Statutes) is a searchable guide to legislative changes.+353 1 Shelbourne Road Dublin 4 IrelandADDRESSTELEPHONEFAXEMAILWEBSITE+3 53 1 6377601 The Law Reform commission is a statutory body established by the Law Reform commission Act 1975 50 CONSOLIDATION AND REFORM OF THE COURTS ACTSREPORTLRC 97 2010113682 - LRC COURTS ACTS cover 108/11/2010 15 113682 - LRC COURTS ACTS cover 208/11/2010 15:59 REPORT CONSOLIDATION AND REFORM OF THE COURTS ACTS (LRC 97 - 2010) COPYRIGHT Law Reform commission FIRST PUBLISHED November 2010 ISSN 1393-3132 ii LAW REFORM commission S ROLE The Law Reform commission is an independent statutory body established by the Law Reform commission Act 1975.

3 The commission s principal role is to keep the law under review and to make proposals for reform, in particular by recommending the enactment of legislation to clarify and modernise the law. Since it was established, the commission has published over 150 documents (Consultation Papers and Reports) containing proposals for law reform and these are all available at Most of these proposals have led to reforming legislation. The commission s role is carried out primarily under a Programme of Law Reform. Its Third Programme of Law Reform 2008-2014 was prepared by the commission following broad consultation and discussion. In accordance with the 1975 Act, it was approved by the Government in December 2007 and placed before both Houses of the Oireachtas.

4 The commission also works on specific matters referred to it by the Attorney General under the 1975 Act. Since 2006, the commission s role includes two other areas of activity, Statute Law Restatement and the Legislation Directory. Statute Law Restatement involves the administrative consolidation of all amendments to an Act into a single text, making legislation more accessible. Under the Statute Law (Restatement) Act 2002, where this text is certified by the Attorney General it can be relied on as evidence of the law in question. The Legislation Directory - previously called the Chronological Tables of the Statutes - is a searchable annotated guide to legislative changes.

5 After the commission took over responsibility for this important resource, it decided to change the name to Legislation Directory to indicate its function more clearly. iii MEMBERSHIP The 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: The Hon Mr Justice Donal O Donnell, Judge of the Supreme Court iv LAW REFORM RESEARCH STAFF Director of Research: Raymond Byrne BCL, LLM (NUI), Barrister-at-Law Legal Researchers.

6 Dannie Hanna BCL (NUI), LLM (Cantab) Helen Kehoe BCL (Law with French Law) (NUI), LLM (Dub), Solicitor Donna Lyons LLB (Dub), LLM (NYU) Tara Murphy BCL (Law with French Law) (NUI), LLM (Essex), Barrister-at-Law Jane O Grady BCL, LLB (NUI), LPC (College of Law) Darelle O Keeffe LLB (UL), H Dip Soc Pol (NUI), EMA (EIUC) Helen Whately LLB, LLM (Dub) STATUTE LAW RESTATEMENT Project Manager for Restatement: Alma Clissmann, BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor Legal Researcher: Andrew Glynn BBLS (NUI), LLM (Dub) LEGISLATION DIRECTORY Project Manager for Legislation Directory: Heather Mahon LLB (ling. Ger.), , Barrister-at-Law Legal Researcher: Aoife Clarke BA(Int.), LLB, LLM (NUI) v ADMINISTRATION STAFF Executive Officers: Deirdre Bell Simon Fallon Legal Information Manager: Conor Kennedy BA, H Dip LIS Cataloguer: Eithne Boland BA (Hons), HDip Ed, HDip LIS Clerical Officers: Ann Browne Ann Byrne Liam Dargan vi CONTACT DETAILS Further information can be obtained from: Law Reform commission 35-39 Shelbourne Road Ballsbridge Dublin 4 Telephone: +353 1 637 7600 Fax: +353 1 637 7601 Email: Website: vii ACKNOWLEDGEMENTS The commission wishes to record its particular thanks to the members of the commission s Project Board on the Consolidation and Reform of the Courts Acts.

7 The Project Board was responsible for preparing the draft Courts (Consolidation and Reform) Bill in Appendix A and the initial draft of this Report. The commission is especially conscious of the contribution of Se n Barton, Solicitor, McCann FitzGerald, Solicitors, who was engaged as the drafting specialist for this project. In particular, he was responsible for preparing and revising successive drafts of the draft Courts (Consolidation and Reform) Bill, as well as related working papers, including a detailed audit of relevant pre-1922 Acts. Project Board on Consolidation and Reform of the Courts Acts Mrs. Justice Catherine McGuinness, President Patricia T Rickard-Clarke, full-time Commissioner Raymond Byrne, Director of Research Se n Barton, Solicitor, McCann FitzGerald, Solicitors Noel Rubotham, Director of Reform and Development, Courts Service Brian O Neill, Assistant Principal Officer, Courts Policy Division, Department of Justice and Law Reform Claire Bruton, Barrister at Law, acted as Secretary to the Project Board.

8 The commission also wishes to thank sincerely the following, including members of the commission s Project Steering Group (who reviewed the draft Courts (Consolidation and Reform) Bill and the initial draft of this Report) and those who made submissions to the commission on the Consultation Paper on Consolidation and Reform of the Courts Acts. Robert Browne, Assistant Secretary General, Civil Law Reform Division, Department of Justice and Law Reform Professor Hilary Delany, School of Law, Trinity College Dublin Mr Justice Hugh Geoghegan, former judge of the Supreme Court D ithi Mac C rthaigh, Barrister at Law Kieran Mooney, First Parliamentary Counsel, Office of the Attorney General Ben Floinn, Barrister at Law S amus Tuathail, Senior Counsel Justin Sadlier, Solicitor Irish Translators and Interpreters Association Full responsibility for this publication lies, however, with the commission .

9 Ix TABLE OF CONTENTS INTRODUCTION 1 A Background 1 B Development of the Project 1 C Project management leading to the Report 2 D Scope of the Project and the commission s General Approach 3 E Phases in the Consolidation and Reform of the Courts Acts 4 F General Principles relevant to the Draft Bill 4 G Outline of the Report 5 CHAPTER 1 THE GENERAL STRUCTURE OF THE DRAFT COURTS (CONSOLIDATION AND REFORM) BILL 7 A Introduction 7 B The core Courts Acts and the Draft Courts Consolidation and Reform Bill 7 (1) Selection of the main post-1922 core Courts Acts 7 (2) Selection of the main pre-1922 core Courts Acts 8 (3) List of over 100 of the 240 Acts examined 8 (4) The need for a consolidated Courts Act 11 C The current courts and the root title of their jurisdiction 12 D Structure of the Courts (Consolidation and Reform) Bill 13 (1) Included and excluded provisions in the draft Bill 13 (2) Overall scope and structure of the draft Bill 14 (3) The courts included in the draft Bill 16 (4) The use of a general objects clause and part- specific content clauses 17 (5)

10 Maximising the consolidation process 17 (6) Future-proofing of Bill and pending legislation 17 CHAPTER 2 SPECIFIC REFORMS IN THE DRAFT COURTS (CONSOLIDATION AND REFORM) BILL 19 A Introduction 19 B Specific reform Issues addressed in the draft Courts (Consolidation and Reform) Bill 19 (1) Simplifying terms in court proceedings (section 5 of Bill) 19 (2) Provisions concerning the Court of Criminal Appeal (sections 18 to 21 and 296 to 304 of Bill) 20 (3) Non-exhaustive statement of High Court civil jurisdiction (section 24 of Bill) 21 (4) Non-exhaustive statement of Circuit Court civil jurisdiction, including in equitable matters (sections 40 to 45 of Bill) 22 (5) Non-exhaustive statement of District Court jurisdiction (sections 57 to 68 of Bill) 23 (6) Judicial control of civil proceedings, judicial case management and case conduct principles (sections 75 to 77 and section 259 of Bill)