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Dáil Éireann debate -
Thursday, 15 Apr 1943

Vol. 89 No. 16

Committee on Finance. - Solicitors Bill, 1943—Second and Subsequent Stages.

I move that the Bill be now read a Second Time. The purpose of it is to clarify the position so far as the annual certification of solicitors is concerned. Up to recently it was thought that the Chief State Solicitor was exempted, from the provisions of Section 58 of the Solicitors (Ireland) Act, that is, from paying his annual certification fee. But in a recent case in which the State was successful, when he claimed costs he was held not to be entitled to them. It is to rectify that position that this Bill is necessary. It has to be made retrospective because other cases may be pending. It was always understood he was exempt, but the Taxing Master ruled against him.

Mr. Brennan

To how many solicitors does it apply?

Mr. Boland

About twenty.

Mr. Brennan

Is there any good reason why they should be exempt?

Mr. Boland

The State would pay in any case. It is a question of taking it out of one pocket and putting it into another. There is not much reason why they should pay. It was believed that, under one of the British Acts, the State Solicitors would be exempt here as, I think, they were in the British times but, apparently, that is not the case. The number would be about 20. There are some solicitors in the service who do pay the annual fee, that is, the State pays it for them.

What is the fee?

Mr. Boland

About £9, I think— something like that.

I presume the reason why the Minister for Justice was given charge of this Bill is because of his well-known disarming method of introducing Bills into this House. He has lived up to his reputation, certainly, in introducing this particular Bill. Judging by the casual way in which he threw it at the House, one would think it was a perfectly innocuous Bill that all Parties should be willing to acclaim and pass in the shortest possible time. He has not told a story which is very far from being innocuous and which is at the back and basis of this Bill. It is a Bill which, in my opinion, this House should oppose.

Mr. Boland

I did not catch the last word.

Should oppose. There is, as I say, some history behind this Bill. The Bill, as it stands, purports to release all solicitors in the employment of the State from a statutory duty to pay the necessary annual licensing fee payable under the Solicitors (Ireland) Act, 1898. As I understand, the practice in the days before this State was established was that, with the exception of the Revenue Solicitor, who was by statute exempt from the payment of this duty, all solicitors in the employment of the State paid this duty or had it paid for them by the State. The position since the State came in is that, with the exception of, I think, the Revenue Solicitor and the Chief State Solicitor, all solicitors in the employment of the State in fact either paid their annual licence duty or had it paid for them. All solicitors have to do this and there is a very severe penalty attaching not merely to nonpayment but to non-punctual payment of this annual licence fee. It is a penalty which affects not merely the solicitor who fails, perhaps through oversight or excessive business, to pay punctually within the period mentioned in the statute the annual licence fee, but it affects also the client because the provision of the Act of 1898 prescribed that if the fee is not paid within the specified period, even though it is paid perhaps an hour after the specified period or a very short time after it, the penalty attaching to that is that neither the solicitor nor the client can recover any costs to which he has been declared entitled by law.

If a solicitor conducts on behalf of a client successful litigation in court, and gets from the court an award of costs against his opponent, who is well able to pay it, if the solicitor, through a mere oversight or through being very busy at the time, or perhaps through neglect of one of the clerks in his office, fails to pay the duty and has not paid the duty when the costs come for taxation, then neither he nor his client can get either the costs or the actual out-of-pocket money that has been expended in the course of the litigation. The counsel who are employed in the case, unless they get it from their client, cannot get paid; and if, as is usual and the normal practice, counsel get their cheque from the solicitor with their briefs, he paying it out of his own pocket, that solicitor can never get it back. If the client has put—as the phrase goes—the solicitor "in funds" to pay the expenses of counsel, witnesses' expenses and medical expenses, or matters of that kind, and those expenses are paid by the solicitor in due course, he cannot recover nor can his client recover that amount.

That is a very severe penalty imposed both on the solicitor and the client. There is no reason, the law being applicable to State solicitors and solicitors in the employment of the State, why it should not apply to such solicitors. Certainly, there is no justification whatever for the retrospective operation of this Bill because it is going to affect rights already acquired.

Mr. Boland

It is not.

Allow me to develop and I will show you that it is. The first section of the Bill proceeds on its face to declare a statutory lie, if I may put it like that. We are going to lie statutorily. We are going to declare that it is not and never was obligatory for a solicitor employed in the service of the State to take out a solicitor's certificate. It always was the obligation of a solicitor to do it. That is the law. That law has been given effect to in at least one case, and I think more, that have come before the taxing masters in which the State got costs and, when they came to tax them, were met with the objection that the State Solicitor had not taken out a certificate and, accordingly, the Act operated and the State was not entitled to the costs.

There was something in the nature of peculiar poetic justice in the situation which confronted the State when this point was raised against them for it had been the practice—perhaps not the correct legal practice—for years here, where solicitors through a genuine oversight failed to pay for a few days their licence duty, not to raise the point on taxation but, a short time ago, directions were given from the Department of Finance that this point should be raised by the taxing masters in every single case. That direction arose out of a case that was determined in the High Court on an application for habeas corpus, I believe. An application was successfully made, I think, to Mr. Justice Gavan Duffy, founded on the invalidity of one of the provisions of the Offences Against the State Act and Mr. Gavan Duffy gave the order for habeas corpus, declaring that that particular provision of the Statute was either unconstitutional or had been infringed. The solicitor who was acting for the applicant in that case was in fact either interned or detained. By reason of that fact, he was not able to pay his licence duty but he wrote a letter from his place of detention, as I am informed, directing that his licence duty should be paid. Perhaps in the circumstances confronting his office at the time, or for some reason that is certainly very explicable, his licence duty was not paid punctually but it was paid afterwards. The solicitor, on behalf of his client, conducted that litigation successfully and got costs against the State.

It may be surmised that it was as a result of the letter that he wrote that it came to the knowledge of the Department of Finance, or the officials concerned, that his licence duty was not paid. He had intended it to be paid, but could not pay it because of the fact that he was incarcerated. When his costs against the State came to be taxed the objection was raised on behalf of the Department of Finance, "you cannot get your costs because your licence duty was not paid in time"—although it was then paid. He was deprived of a very substantial sum of costs, and the counsel engaged in the case was deprived of the remuneration which he had earned, and very hardly earned, in the conduct of that successful habeas corpus proceeding. He never got it, and, of course, he would not ask his client, in the circumstances, to pay what the State ought to have paid.

That is the situation in which this Bill comes before the House. The State raised that point against a man whom they had incarcerated and who, because he was incarcerated, had not his licence duty paid in time. They declined to honour what was in fact a moral obligation to that man who successfully carried out proceedings of a a type that are embodied in the Constitution for the protection of the citizens of this State, namely, habeas corpus proceedings. The court, in the exercise of its discretion, had thought fit to order that the State should, in the circumstances of the case, pay the costs. But, instead of paying the costs, the State raised the technical point that the solicitor who had conducted the proceedings had not paid his licence duty. Now, because the same point is raised against the State, as the State did not comply with its statutory obligation, and the State is deprived of a small amount of costs, the Minister brings in a Bill to provide not merely for the future but for the past. As I read this Bill, it will enable the State to recover a sum for costs against certain public bodies to which they are not entitled (1) on the law, and (2) on the practice initiated by themselves to gain an immoral advantage. In that state of affairs, this Bill is wholly indefensible.

A case came before the Taxing Master in which, I think, the Minister for Local Government had been dismissed from certain proceedings and got costs against two public bodies— the county councils, I think, of Clare and Galway. The State proceeded to tax these costs against the two public bodies and were met by this objection. There was only one thing for the Taxing Master to do—to follow the rule in the previous proceedings and decline to tax the costs of the Minister for Local Government. Hence this Bill. It was all right for the State to repudiate its moral obligation to a solicitor who had been—I think illegally—in custody but who was subsequently released. He had directed his office to pay his licence duty but, owing to an oversight or for some other reason, it was not paid. Solicitor, counsel and client were deprived of their costs by the State for the first time in the history of the State or even during the British régime. The State repudiated what I say was a moral obligation, not merely to the solicitor, but to counsel and their client. Because the same rule which the Department of Finance initiated is operated against the State very shortly afterwards, in comes this Bill, with retrospective effect. What is fish for one is flesh for another. If this is to be done retrospectively for the State, it should be done retrospectively for all solicitors. I know some solicitors who, following the ordinary practice, which had been winked at for some years, did not pay their licence duty on the day it was supposed to be paid. Although they paid within a few days, they were met by this objection and deprived, not merely of their costs, but of their out-of-pocket expenses—money which they had disbursed to counsel, medical experts and other persons of that type. There is to be no retrospective remedy for those solicitors, but the State must get its costs against the county councils of Clare and Galway.

This Bill proceeds to declare on its face something which is quite untrue— that it is not, and never was, obligatory for solicitors employed by the State to take out a certificate. It always was obligatory. The effect of this will be that, that statutory lie having been enacted, the Minister for Local Government, through one of the State solicitors, can re-lodge his bill of costs and get them from the parties to that litigation in circumstances in which they had acquired a vested right under the law as it stands at the moment, not to have these costs collected from them. That vested right was given to them by the action of the Minister himself in initiating the practice to which I have referred. When that practice is turned against himself, he introduces into this House legislation of a type which is always objectionable—retrospective legislation—but which is particularly objectionable in this case, because it is not universally retrospective but retrospective only in so far as Government Departments are concerned. Those solicitors who, by inadvertence or for some other reason, did not pay their licence duty in time are not to get the same treatment as the Minister's employees. The Minister casts his net more widely than it was ever cast before.

I believe that the only solicitor exempt from this obligation during the British régime was the Revenue Solicitor. I believe that that is the law at present. It may have been the practice for the Chief State Solicitor not to take out his certificate, but it was contrary to the law. It was equally the practice that such a point would not be raised against a solicitor who had overlooked this obligation for a short time but who had, in fact, paid the duty before the taxation of the costs which he was seeking to recover. If the practice is to obtain in one case, it should obtain in the other. If it was the practice for the Chief State Solicitor not to have his licence duty paid for the past 21 years and, nevertheless, to be able to recover costs, then it ought to be the practice in the case of other solicitors. If this Bill is, retrospectively, to enable the State to recover costs to which they are not legally entitled, it ought to cover solicitors who can give a genuine excuse for the non-payment of their licence duty. Unless this Bill is radically altered, particularly in its retrospective provisions, this House should reject it.

Mr. Boland

I am surprised at the opposition which has come from Deputy Costello. If I understand him rightly, it was always the law that the Chief State Solicitor should pay his licence duty. I wonder why Deputy Costello did not see that that was done when he was Attorney-General.

It was the practice not to do so, and it was the practice not to raise the point. Once the point was raised, then the practice on the other side should have been adhered to as well.

Mr. Boland

We took over the position exactly as we found it under the last Government. The duty on behalf of the Chief State Solicitor never was paid.

But the point was never raised against any other solicitor.

Mr. Boland

I intend to deal with that. The licence duty was not paid, and it was believed that it was not necessary to pay it. I have here particulars which, I am sure, are correct, as to what the practice was in the past. Section 58 of the Solicitors (Ireland) Act, 1898, exempted from its provisions as to examination, swearing, admission or enrolment or any rights or privileges, persons appointed to be solicitors to the Treasury, Customs, Inland Revenue, Post Office, any other branch of Her Majesty's Revenue, Solicitor to the Admiralty or the War Office, and the section, furthermore, expressly preserved provisions in the Customs and Inland Revenue codes which conferred further exemptions on revenue officers. This section was in similar terms to Section 50 of the Attorneys and Solicitors Act (Ireland), 1866, which had been repealed by the Act of 1898. Between 1880 and 1920 the organisation and division of work between the Chief Crown Solicitor and the Treasury Solicitor underwent many changes. Neither the Treasury Solicitor nor the Chief Crown Solicitor at any time took out and stamped the necessary certificate, and, of course, the same practice was followed by the solicitors to the Revenue and the Post Office. Apparently, in Deputy Costello's time it was felt that it was not necessary for the Chief State Solicitor, who was understood to be the successor to the Chief Crown Solicitor, to take out a certificate. Now, we are told it was the law.

Mr. Boland

I wonder why the Deputy did not tell the Government that. We believed that the Government was properly advised in the Deputy's time and we simply carried on the practice. As to the statement that a man was illegally imprisoned, obviously Deputy Costello does not know what he is talking about there. It was on my warrant he was interned. I know all about that matter. That man was not illegally interned. The one mistake made was that he was allowed out. I will try to ascertain if it is a fact that the solicitor referred to by the Deputy was not paid. I believe he was paid. I am not now prepared to say definitely that that is so, because it is too late in the evening to make inquiries. I am told by my advisers that they believe that the solicitor was paid his costs.

I am informed that he was not.

Mr. Boland

I am prepared to accept that statement. I may be wrong but I will make certain about it later on. I admit that the Department of Finance raised a point there. It was not because the man had been interned. He was out long enough and could have paid the fee. It was not correct to say that he was illegally detained. I am surprised at Deputy Costello saying so. I know all about the case.

I know nothing about it. I say that he was illegally detained or, in fact, detained, because it was in the course of that period that the matter was tested in the courts by habeas corpus proceedings, and I presume, perhaps wrongly, that the order detaining him was covered by the decision of Mr. Justice Gavan Duffy.

Mr. Boland

That is not correct. As far as the retrospective aspect is concerned, I admit that the Bill might debar some cases from rights they had acquired. That is not intended. The Attorney-General is not appealing in that case. We are paying the costs but we are protecting the State against any other cases that might come along. In this case Clare County Council are paying up. I am going to force this Bill through because we do not know how many other cases may be involved. I might have expected opposition from other people, but certainly not from the legal adviser to a Government from which we took over. There was never any question about the matter when Deputy Costello was in office. The fee was never paid in his time, and was never paid in our time.

Until this case was raised we never knew anything about it. Apparently Deputy Costello believed that the position was analogous to that of a Chief Crown solicitor, and acted in that belief when he did not advise against it.

That is so, but the point was never raised. It was also proper that it should not be raised against anybody else.

Mr. Boland

The fact is that it has been raised. A specific case that went to court was settled and the man is going to be paid his costs. The Bill is retrospective in case any other cases might arise. As far as this particular case is concerned I say that we will not deprive anyone of anything.

It is the Minister is looking for costs against Clare County Council.

Mr. Boland

That is what I mean. We are waiving our claim to costs. The Taxing Master decided against us.

Will you waive the costs in the case I raised and allow counsel to be paid? The counsel engaged in the case had a very stiff fight to establish this principle on behalf of citizens' rights generally. He ought to be paid by the State.

Mr. Boland

I have information, which I believe is correct, that the costs were paid subsequently. If the Deputy consults counsel he will find that he was paid. A question was raised by the Department of Finance but the solicitor was paid his costs subsequently. I could not be positive about it until I was able to confirm the facts. Undoubtedly a point was raised, as apparently the Department of Finance look into these things, and they found that the solicitor had not paid the duty. It should be remembered that this stamp had to be paid to the State. If the State had to pay it would be a matter between one Department and another. It should not be like the case of an outsider. It was a case in which the State paid and exempted its own servants.

Mr. Brennan

Was the amount the State paid in addition to the salary?

Mr. Boland


Is any payment made to the Incorporated Law Society?

Mr. Boland

There is a small payment of, I think, £1 a year. They would lose that much. As far as I am aware no objection was taken by them to this Bill.

It is taken by a number of solicitors.

Mr. Boland

I am told that that is not so. We have not heard of them.

Question put and declared carried.

When is it proposed to take the Committee Stage?

Mr. Boland

Is it too much to ask that it be taken now? If Deputy Costello agrees, I would ask the House to give me the Committee Stage now.

If you give me my terms, so to speak.

Mr. Boland

I simply told the Deputy that he was misinformed.

Will the Minister agree to the retrospective provisions applying to solicitors?

Mr. Boland

This is an urgent Bill and if the Dáil meets to-morrow I should like the Committee Stage to be taken then.

As far as the State is concerned in any case that has occurred the exercise of objection will not take place in respect to costs. I do not want to catch the Minister in case he could not answer definitely, as possibly the Department of Finance will have views to express. I am taking it that in these cases we are putting a gown around State solicitors or whoever the Minister intends to shepherd, but there are other people affected. Our case is that in at least one case a solicitor has not been paid and that the State owes the money. It is scarcely fair that we should seek to get for the State a certain advantage which we would deny to an individual. As the Minister knows, we have no interest in any individual. In this Bill we are taking power to give the State a retrospective advantage which is denied to the individual. Will the Minister meet us on that point? If he can, he can have his Bill now. I am not making a bargain, but I tell him that the position we are seeking is one in which the State should not have an advantage which was denied to others.

Apparently the Minister's information is contrary to mine. There may be a misunderstanding on one side or the other. I was told to-day what I stated here. Definitely, I was told to-day what I have stated. I do not want to use the word "undertake", but, if it transpires that I am correct, will the Minister see to it that counsel in that case will be paid the fee to which he is entitled?

Mr. Boland

I think it is the solicitor who gets paid.

Yes, and he pays counsel. Whatever views anybody may have of this solicitor's political activities, I can give him here in this House a certificate of honesty in regard to payment of counsel.

Mr. Boland

My information on that point is very definite now, and it is from a source which I think Deputy Costello would accept. My information is that the solicitor has been paid in that case.

I am perfectly prepared to accept the Minister's word at once, but it may be that there is a genuine error somewhere. If it transpires that there is an error, will the Minister see that justice is done? I will make further inquiries myself, and let the Minister know the result to-morrow, or possibly in the course of this evening.

Mr. Boland

Very well. On the other point then, the retrospective provision would apply to cases where the Taxing Master has not taxed the costs. Where he has disallowed on the ground of the Chief State Solicitor not being certified, then we are accepting that decision. That is only one case. Where the other party has got his decision, we are letting him take the fruits of it. I do not know whether or not the Deputy is satisfied with that. We want to cover any other case that may be there.

Agreed to take the Committee and Final Stages now.

Bill passed through Committee without amendment, received for final consideration and passed.