Jury Trial (Amendment) (Northern Ireland) Order 1987

HL Deb 02 July 1987 vol 488 cc404-13

7.12 p.m.

The Lord Chancellor rose to move, That the draft order laid before the House on 11 th May be approved. [20th Report from the Joint Committee Session 1986–87].

The noble and learned Lord said: My Lords, I beg to move that the Jury Trial (Amendment) (Northern Ireland) Order 1987, a copy of which was laid before the House on 11th May, be approved.

I should draw to the attention of the House that this is the second draft of the order to be laid before the House. The draft which was laid on 8th May was defective in that it did not give the commencement date of the order. On the advice of counsel to the Chairman of Committees, the original draft was withdrawn and a new draft laid on 11th May giving a commencement date of 1st August 1987.

The effect of the draft order would be to remove personal injury and fatal accident actions from the list of cases in which a party may request trial with a jury in the High Court in Northern Ireland. This change would bring Northern Ireland into line with the position in England and Wales.

At present in Northern Ireland either party to a personal injuries action in the High Court may request trial with a jury of seven persons. Although the majority of cases are set down to be tried in this way, in practice fewer than 2 per cent. are decided by a jury. The vast majority of cases are settled at the door of the court or, in some cases, in the course of the trial. Indeed, court records indicate that 95 per cent. of cases are dealt with without a jury ever becoming involved.

In November 1985 the then Lord Chancellor announced that he had decided to conduct a review of the desirability of a change in High Court practice. A total of 16 organisations were invited to make submissions. Of the submissions received, 11 favoured the abolition of civil jury trial. The 11 organisations comprised employers' organisations, representatives of the insurance industry and the accountancy profession, the Automobile Association, and the General Consumer Council for Northern Ireland. Against this, three of the organisations invited to make submissions were opposed to any change. Those opposing change were: the General Council of the Bar of Northern Ireland, the Law Society of Northern Ireland and the Northern Ireland Committee of the Irish Congress of Trade Unions. That will probably not be a surprise to the House.

Neither the proponents of change nor those opposing abolition raised any new points of substance which had not already been put to an inter-departmental working group which reported to Ministers in 1979. That working group, which comprised Northern Ireland Government Departments, established: that employers' liability insurance costs are higher in Northern Ireland than in Great Britain; that these costs have a significant effect on the operating costs of firms; that awards granted under the jury system in Northern Ireland are higher than under the non-jury system in England and Wales; that legal costs form a higher proportion of the total costs of an award or settlement in Northern Ireland; and, very significantly, that there is a greater delay in dealing with cases or achieving settlements in Northern Ireland.

The working group recorded that consideration be given to the abolition of the jury system in personal injuries litigation in Northern Ireland.

In January this year the then Lord Chancellor announced that, having carefully considered the views of the interested parties, he had concluded that there was no compelling reason why Northern Ireland should differ from England and Wales in the use of juries in personal injury actions.

The change which it is now proposed should be made for Northern Ireland took place in England and Wales as long ago as 1933. I make this point to emphasise that this will be no leap into the dark for the administration of justice in Northern Ireland. The civil law and the rules of civil procedure in the Province are in most respects similar, if not identical, to those in England and Wales. The change now proposed will remove one of the few differences of any significance between our two systems and will provide for even greater parity in the methods of dealing with civil claims in the two law districts. I know that the noble and learned Lord, Lord Elwyn-Jones, has appreciated that I have always been very anxious to reduce differences in legal procedure and other points between the Province and England and Wales.

To turn now to the draft order, the mechanics of the exercise are straightforward. The power to make the Order is provided by Section 62 of the Judicature (Northern Ireland) Act 1978. Subsection (1) of that section lists five classes of action in which a party may request trial with a jury in the High Court. The effect of the draft Order is to remove head (e) from the list. Head (e) is concerned with personal injury and fatal accident actions. Removing personal injury cases will leave four classes of action (libel, slander, malicious prosecution and false imprisonment) in which a party will still be able to request trial with a jury. This, as I have said, will bring the law in Northern Ireland into line with that in England and Wales. I should also mention that there will still be power for the High Court to order trial with a jury, even in a personal injury case, where it is considered that this would be more suitable. However, the majority of personal injury cases will from now on be tried by a judge sitting alone.

As to the timing of this change, it is proposed to bring the order into force on 1st August this year so that it will be in place at the start of the new legal year—and of course I mean the new legal year in Northern Ireland, which is a month ahead of ours. A corresponding amendment to the Rules of the Supreme Court will make clear that, from the beginning of the new legal year, trial by judge alone will be the mode of trial in personal injury cases.

I. have no doubt that there are those who will oppose this change and will plead in aid of their case the common sense and standards of the ordinary juryman. However, I consider that arguments of this sort ought not to blind us to the simple fact that the standard of justice attainable in personal injury actions in England and Wales is in no sense inferior to that which has hitherto been available in Northern Ireland from judge and jury. Consequently, the proposed change should not be portrayed as bringing about any lessening of standards. Rather, I would urge on the House that it is a desirable and long overdue reform. Indeed, the savings for litigants that should result from reduced legal costs and the expedition of trials and settlements are reason enough for bringing this order before the House. My Lords. I beg to move.

Moved, That the draft order laid before the House on 11 th May be approved. [20th report from the Joint Committe Session 1986‐87].—(The Lord Chancellor.)

Lord Elwyn-Jones

My Lords, the House will welcome the noble and learned Lord the Lord Chancellor on the introduction of what is, I think, his first order. I wish that I could support it. Alas, I cannot! Indeed this apparently innocuous order has given rise to a great deal of adverse comment in Northern Ireland. In particular, as the noble and learned Lord said, it is strongly opposed by the legal profession in Northern Ireland, both the Bar and the Law Society. The Northern Ireland Bar is a Bar to which I have had the honour to belong for a great many years. It is distinguished both for its independence and for its competence. I do not think its opposition is explained by any selfish advantage which may be suspected to derive to the Bar from the existence in a limited number of cases of the jury system.

As the noble and learned Lord the Lord Chancellor has said, the order is also opposed by the Northern Ireland trade unions and by many in the Province who deplore the further whittling away of the jury system. The weight of opinion that has been communicated to me from Northern Ireland is to the effect that the civil jury system is working sufficiently well there to justify the continuance of its use. In the troubled field of Northern Ireland, it is wise to leave well alone.

No overwhelming reasons have been put forward, I submit with respect, by the Lord Chancellor for abolition. Indeed the extent to which civil juries in Northern Ireland have historically carried out their duties free from religious, political and social bias has been one of the reassuring features of life in Northern Ireland. That record, we have every reason to think, will, in these troublesome times, be continued.

In my submission, speaking for those on this side of the House, the arguments for abolition are unconvincing while those for retaining civil juries are strong, particularly in the special circumstances prevailing in Northern Ireland. The factors which led to the setting up of the Diplock courts in Northern Ireland to deal with terrorist activities, by reason of the fact and fear of intimidation of witnesses and jurors, do not apply to civil proceedings. There has never been any evidence of intimidation of juries in those cases or indeed of witnesses in civil proceedings. So there is no justification of the kind that existed in regard to the Diplock court arrangements that apply to civil proceedings in Northern Ireland.

Indeed, the historical background in Northern Ireland does not appear to support the Government's action. The MacDermott Committee's report on the Supreme Court of Judicature of Northern Ireland published in 1970, recommended with only one dissenter the retention of jury trials in actions for damages for personal injuries or death, and that was in full knowledge of the fact that civil jury trials in England had effectively been abolished before that time. If the Government's proposals are implemented, trial by jury will effectively cease to exist in the Province. As the Bar of Northern Ireland has stated: There will be no active public participation in the administration of justice. This may well diminish and endanger public trust in and respect for the legal system". Those are serious fears with which I hope the noble and learned Lord the Lord Chancellor will feel able to deal.

One claimed justification for the order is that judicial time will be saved by its introduction. Not so, my Lords. Inevitably there will be more appeals from judges sitting alone. More judges may well be required to hear a greater number of cases. While the Bar of Northern Ireland and the Law Society accept that jury awards of damages in Northern Ireland are higher than in the rest of the United Kingdom, economic factors specific to the Province are believed to be the main cause of this taking place and not the existence of civil juries. Indeed, jury damages awarded there are surprisingly both uniform and predictable and have kept reasonably in step with the value of money.

It would be interesting to know, if the noble and learned Lord has any statistics on the matter, how many cases in the last 12 months have been successfully appealed against on the grounds that they were excessive. It would be interesting to know also what proportion of total personal injury claims that amount represented.

As I have said, and as has been admitted from the Woolsack, the legal profession of Northern Ireland are strongly opposed to this order, and as I have again ventured to say, it would be wrong to attribute that to alleged additional benefit that they or their clients derive from jury trials.

I now turn to the opposition from the trade unions. The Northern Ireland Committee of the Irish Congress of Trade Unions has declared its firm commitment to the retention of juries in personal injury cases. The committee makes the significant and, I think, important point that those left disabled in Northern Ireland as a result of an industrial injury, motor accident or whatever it may be have significantly fewer opportunities of re-entering the labour market than those similarly handicapped in Great Britain—difficult enough as it is for those here. Awards in Northern Ireland should therefore reflect that extra disadvantage suffered by those who have sustained injury.

As the legal profession in Northern Ireland has urged, at the very least the Government should delay the introduction of the regulations until there has been an opportunity for full public consultation on this issue in the Province—I understand that there has been very little—including possibly a public inquiry. That has not been done.

Secondly, it is the case that new supreme court rules were introduced in Northern Ireland last September on civil cases. Has any review been conducted into their effects and has that review produced any relevant information in relation to the trial system in civil cases?

Finally, has proper research been undertaken in Northern Ireland on the effects of juries on the level of damage awards? Those are important questions which, I submit, justify withholding approval of this order, certainy at this stage, until those steps are taken and those inquiries are made. My submission on behalf of my noble friends on this side of the House is that no adequate justification has been produced for the order.

7.30 p.m.

Lord Wigoder

My Lords, I find it sad that the noble and learned Lord, whose accession to the Woolsack has been so very widely welcomed, should find himself constrained as his first substantive contribution to your Lordships' House to make a proposal to whittle away the right of jury trial. It is sad because those of us who know the noble and learned Lord know how both at the Bar and in his distinguished career since he ceased to practice at the Bar he has always been a stalwart supporter of the principle of jury trial.

I know that the noble and learned Lord will agree that the burden upon those who advocate any reduction of any kind in the principle of trial by jury is a very heavy one. I say that because we would all recognise that the jury occupies a quite unique place in our society. It occupies it in two important respects: first, as an essential bulwark of our democratic way of life and one that is probably far more important than the two Houses of Parliament in preserving our democracy. Secondly, the jury by its participation in the administration of justice enables the public to get a feel of what is going on and to bring informed criticism and comment to bear on the whole system of justice.

In those circumstances the proposal that is put forward today needs, I suggest, much more weighty argument in its support than so far has been mustered by those who are seeking to advocate it. It does not do simply to say, "Well in a sense it is not very important. It is only personal injury cases. It is only head (e) out of five heads contained in the order".

The noble and learned Lord can no doubt give us the exact figure but I suspect that the cases that come under head (e) that were tried by jury in the last 12 months were the overwhelming preponderance of jury trials in Northern Ireland and that in those circumstances the proposal is far from being an insignificant one. It will remove from Northern Ireland the great majority of jury trials that at present take place there.

I find this a strange time and a strange place for the proposal to be put forward. First it is a strange time because, as the noble and learned Lord, Lord Elwyn-Jones, pointed out, new rules for civil procedure introduced only last September have been operating for less than a year and it is still difficult to assess their precise effect. Secondly, it may be a strange time because of the election of the new government recently in the Republic of Ireland. I do not know what views that new government have on the proposal in relation to the legal system in the Republic but I should have thought, particularly after the Anglo-Irish Agreement, that there was much to be said for seeing if reforms could go hand in hand in the Province and in the Republic and it might therefore perhaps have been better to have waited a little while to see what the reaction of the new government in the Republic might be to a proposal of this kind. Those two reasons perhaps make it somewhat of a strange time.

I find it a strange place to put forward the proposal again for the reasons that have been touched on by the noble and learned Lord, Lord Elwyn-Jones. First, the Province of Northern Ireland is a strange place in which to put forward the proposal because of the fact that criminal trials there have already been for all practical purposes abolished and therefore there is no comparison to be made with the rest of the United Kingdom. The effect of the present proposal would be, as has been said, to abolish juries in almost every case throughout the Province, whereas the effect in this country would still be and always has been to leave the juries in criminal cases. I do not think therefore that the comparison is a valid one.

Secondly, Northern Ireland seems a strange place in which to introduce a proposal of this kind because, as is all too apparent, it is a small divided community in which, at the moment, the jury system is working adequately, whereas trial by judge alone in that kind of community will inevitably on many occasions give rise after the trial to complaints of bias and to criticisms of the judges. I am not saying for a minute that those complaints would be justified; of course they would not. But it is almost inevitable that in that society if the judge alone has to come to a decision on such matters he will incur criticism.

The noble and learned Lord mentioned the various bodies whose opinions have been given on this issue. I do not know whether the opinion of the judiciary in Northern Ireland, for whom I have the highest respect, has been sought or whether indeed it was unanimously in favour of the proposal. I would very much welcome that information from the noble and learned Lord.

One consequence, if I am right in the suggestion that it will not be easy in that kind of community for judges alone always to take those decisions, is that there may well be an increase in the number of appeals once the proposal goes through and that will largely undo any beneficial effects that the proposal might otherwise have in terms of costs or delay. In those circumstances I venture to think that there is much to be said for the suggestion of the noble and learned Lord, Lord Elwyn-Jones, that perhaps the Government should think again after the order has gone through your Lordships' House today and before bringing it forward in another place and should suggest a period of delay in which much more research could be undertaken into the various issues that have been raised today.

I have one final observation to make. It is that there was a somewhat curt footnote in one of the newspapers this morning which simply said that the noble and learned Lord on the Woolsack had declined to receive a deputation from the Bar of Northern Ireland. All of us who know the noble and learned Lord on the Woolsack would know perfectly well that he would never in any circumstances show discourtesy towards members of the Bar, nor indeed appear to show discourtesy to them. I have no doubt that that short report does the noble and learned Lord something of an injustice and I hope therefore that he will clarify the matter so that his reputation in that respect will remain totally unsullied, as I am sure it will.

Lord Mishcon

My Lords, I assure your Lordships that my intervention will be very brief. I should like to appeal to the noble and learned Lord the Lord Chancellor to consider the question of delaying the implementation of the order, not only to allow consideration of the matters to which the noble Lord, Lord Wigoder, referred, such as the matter of the representatives of the Irish Bar appearing before him (which I know he would with his usual courtesy wish to happen), but also because of certain political considerations.

The noble Lord, Lord Wigoder, in extending the points made by my noble and learned friend Lord Elwyn-Jones, said he wondered whether this was the right time and whether Northern Ireland was the right place. I add the further question: Is this the right House of Parliament? Should we, at this time and from a political point of view, issue from this House of Parliament an instruction which means that a vital civil right is being taken away from the citizens of Northern Ireland? One wonders whether the more tactful thing to do would not be to hope that there would be some parliament working properly in that Province which would make its own decision in regard to the matter.

As my last observation on the question of timing, I repeat the point that has been made concerning whether it would not be more tactful, when juries are restored to Northern Ireland in criminal trials, then possibly to think in terms of removing juries from civil trials. The jury system does not operate there, as the noble and learned Lord well knows, because of the tragic circumstances. Is this the time to remove a civil right of this kind in regard to civil trials for negligence actions?

7.45 p.m.

The Lord Chancellor

My Lords, I am grateful for the contributions to what I think, given its brevity, has been a very interesting debate. The noble and learned Lord, Lord Elwyn-Jones, expressed straight away, as is characteristic of him, the view of the Labour Party. He said that this order was whittling away at the jury system and that there is no evidence of intimidation of civil juries. With that I totally agree and I should like to pay tribute to those jurors who set aside all the sectarian differences and get down to doing justice.

The noble and learned Lord asked me about criminal cases. The figures are quite interesting. One finds, for example, that something like 75 per cent. of criminal cases are non-Diplock. Those cases will not all be tried by juries, because sometimes defendants plead guilty. But the figures show that juries are still playing a very large part.

When we come to balance the questions of whether it is right to keep the jury system and what juries do, perhaps I may go into a little detail about the other side of the coin. Jury trials may be said to militate against a consistency and predictability in the award of damages and thus to inhibit settlements. They are more expensive than trial by judge alone and unfortunately they take longer to arrange and complete. There is a further consideration which has weighed considerably, I think I can fairly say, not only with my predecessor but also with myself. This was a matter on which I was consulted when I was Attorney-General.

The development which I have noticed in my nearly 40 years is this. There was almost a rule of thumb regarding the award of damages. There was a certain figure for an eye and so on. The figures were such that one could almost do them lying in the bath in the morning. The noble and learned Lord and I would almost certainly reach exactly the same figure. Since those days, it has become a much more sophisticated exercise. Our proposals for a modified basis for the assessment of damages for future loss of income and for the full offset of social security benefits would of course reinforce this trend. It seemed to us, just as interestingly enough it seemed to the Law Commission, to militate against the use of lay juries.

As I have already mentioned, the number of scheduled cases in which the defendant pleaded guilty was 264 and the balance of 75 went to non-Diplock courts. I get bored with statistics but I think these are quite important and I promise not to give too many of them to the House. In 1986, 2,742 cases were dealt with in the QBD of the High Court of Northern Ireland. Only 43, or 1.57 per cent., were fully tried before a jury. The overwhelming majority of cases were settled between lawyers without a jury ever becoming involved. Perhaps at the risk of sharing an inside joke with the lawyers here, I may say that they were mostly settled at the courtroom door.

The figures for the first three months of this year show the same picture. There were 558 cases dealt with in the QBD. Eight of those cases, or 1.43 per cent., were fully tried before a jury. What is happening is that the system has developed in this country of cases being settled well in advance, before the huge increase in brief fees. If I may reminisce for a moment, I had a system when I was retained by Norwich Union of writing an opinion setting out exactly how I thought the award would be made. It had my full authority to send that to the other side and it was never to try to reduce the figure that I said was to be the figure that was likely to be awarded. I do not think that I had more than one brief actually going to court out of my entire time with it.

For the Norwich Union it was a great saving. I also think it was a reassurance to the plaintiff. If his counsel agreed, then he was able to say: "This is absolutely clear. We are not trying to knock 10 per cent. off for you settling. Everything that Havers has advised is there and I agree with him". In that regard, I think the late settlement of cases in Northern Ireland has not been good news.

The noble Lord, Lord Wigoder, who is another old friend, spoke particularly of the position in Northern Ireland. I have to give what is rather an Irish answer. The matter was raised by the previous Government and voted against by the then Opposition. The Minister I forget which Minister—by resolution, which is a peculiarity of that system, has it back now that the new Government are supporting it. At this moment it is in the committee stage in the Dail. The Dail, who is luckier than we are, is now going into recess until November. I therefore think there will be a delay. However, there is a government commitment to abolishing juries in the Republic of Ireland in exactly the same way. I hope that gives the noble Lord the answer he asked for.

Going back to the earlier matter of how many cases have gone to appeal on the grounds of awards, I hope the noble and learned Lord will allow me to write to him. I do not have the figures to hand.

I think it is widely known that the judiciary opposed this measure for some time. It has now taken what I think can properly be called a neutral stance and does not oppose it, for reasons which one well understands. Therefore, the initial opposition, which was material over the many reviews we had over so many years, has made a substantial difference to the final decision taken.

Finally, I turn to the point that the noble Lord picked up about the passage in the newspaper. I do not think I have read a newspaper this week. All I can say is that this matter has been exaggerated. As your Lordships know, it was originally to be dealt with in May. The election intervened. For very sensible reasons, this must be in place when the new legal term starts on 1st September. The Rules Committee has to react to it and alter the rules. Therefore we urged upon the Whips the earliest possible date. It was to be the 6th of this month and it has now been advanced to 2nd June for this House. I think it has been advanced to 6th June for the other place.

It is not intended in any sense as a discourtesy. After my eight years as Attorney-General of Northern Ireland they are practically all great friends. There is no way that I would wish them to feel that I have been either churlish or discourteous. I must say this, that they have written letters and I have of course discussed the matter on my many trips to Ireland, particularly with the senior Silks at the Irish Bar. I do not think that they have left a stone unturned. I think it would have been a fun meeting, because it is always fun meeting them, but I suspect that there would have been nothing fresh. However, that is not the reason that the consultation did not take place. It is due simply to shortage of time.

On Question, Motion agreed to.

Lord Beaverbrook

My Lords, I beg to move that the House do now adjourn during pleasure until 8.15 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 7.52 until 8.15 p.m.]