REPORT

(LRC 97 - 2010)

CONSOLIDATION AND REFORM OF THE COURTS ACTS

The Law Reform Commission is an independent statutory body established by the Law Reform Commission Act 1975. The Commissions 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 Commissions 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. Since 2006, the Commissions 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 6377600 info@lawreform.ie www.lawreform.ie35-39 Shelbourne Road Dublin 4 IrelandADDRESS TELEPHONE FAX EMAIL WEBSITE

+353 1 6377601

The Law Reform Commission is a statutory body established by the Law Reform Commission Act 1975

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REPORT

CONSOLIDATION AND REFORM OF THE COURTS ACTS

(LRC 97 - 2010)

COPYRIGHT

Law Reform Commission

FIRST PUBLISHED

November 2010

ISSN 1393-3132

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LAW REFORM COMMISSIONS ROLE

The Law Reform Commission is an independent statutory body established by the Law Reform

Commission Act 1975. The Commissions 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 www.lawreform.ie.

Most of these proposals have led to reforming legislation.

The Commissions 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. The Commission also works on specific matters referred to it by

the Attorney General under the 1975 Act. Since 2006, the Commissions 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. 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.

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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 ODonnell, Judge of the Supreme Court

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LAW REFORM RESEARCH STAFF

Director of Research:

Raymond Byrne BCL, LLM (NUI), Barrister-at-Law

Legal Researchers:

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 OGrady BCL, LLB (NUI), LPC (College of Law)

Darelle OKeeffe 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.), M.Litt, Barrister-at-Law

Legal Researcher:

Aoife Clarke BA(Int.), LLB, LLM (NUI)

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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

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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:

info@lawreform.ie

Website:

www.lawreform.ie

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ACKNOWLEDGEMENTS

The Commission wishes to record its particular thanks to the members of the Commissions Project

Board on the Consolidation and Reform of the Courts Acts. 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 Sen 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

Sen Barton, Solicitor, McCann FitzGerald, Solicitors

Noel Rubotham, Director of Reform and Development, Courts Service

Brian ONeill, Assistant Principal Officer, Courts Policy Division, Department of Justice and Law Reform

Claire Bruton, Barrister at Law, acted as Secretary to the Project Board.

The Commission also wishes to thank sincerely the following, including members of the Commissions

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

Dithi Mac Crthaigh, Barrister at Law

Kieran Mooney, First Parliamentary Counsel, Office of the Attorney General

Ben Floinn, Barrister at Law

Samus Tuathail, Senior Counsel

Justin Sadlier, Solicitor

Irish Translators and Interpreters Association

Full responsibility for this publication lies, however, with the Commission.

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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 Commissions

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) Maximising the consolidation process 17 (6) Future-pro