Amendment No. 34 has been discussed with amendment No. 9.
SECTION 15.
I move amendment No. 34:
In page 15, lines 28 to 33, to delete subsection (1) and substitute the following:
"15.—(1) Investigation of any written complaint concerning the handling by the Society of a complaint about a solicitor made to the Society by any person, shall be the duty of the Ombudsman as established by the Ombudsman Act, 1980. The Minister shall, in consultation with the Society, set an annual contribution to be made by the Society towards the cost of the Ombudsman's Office.".
My amendment seeks the establishment of the Ombudsman, under the Ombudsman Act, as the person who would look into these matters, with a contribution from the Law Society. In view of our earlier debate, I will not press this amendment but will resubmit it on Report Stage. By that stage, the Minister may have been able to get the clarification he seeks.
Amendment, by leave, withdrawn.
Amendment No. 35 not moved.
Amendments No. 36 and 37 are related and may be discussed together.
I move amendment No. 36:
In page 15, subsection (2) (b), line 40, after "adjudicator" to insert "and the terms and conditions of his appointment".
This amendment is required for clarification purposes to ensure the regulations may provide for the terms and conditions of the adjudicator's appointment. Amendment No. 37 is necessary to ensure that the adjudicator will be entitled to have support staff appointed to assist him or her.
Amendment agreed to.
I move amendment No. 37:
In page 15, subsection (2), between lines 40 and 41, to insert the following: "(c) the appointment of staff to assist the adjudicator and the terms and conditions of their appointment,”.
Amendment agreed to.
I move amendment No. 38:
In page 15, subsection (2) (c), line 41, before “investigation” to insert “examination or”.
I am seeking to insert these words for consistency of wording throughout the section. For example, there are inconsistencies in lines 29, 30 and 38 on page 15 and lines 27, 34, 35 and 38 on page 16. I do not know why this wording was not included.
The amendment concerns the consistency of language throughout the section.
Amendment agreed to.
I move amendment No. 39.
In page 16, subsection (2) (k), line 15, after "reports" to insert ", including annual reports,".
The purpose of this amendment is to ensure the reports to be submitted to the Minister by the adjudicator will include annual reports on the discharge of his duties. There was no reference to an obligation in the section to submit annual reports. This amendment is designed simply to correct that deficiency.
Amendment agreed to.
I move amendment No. 40:
In page 16, subsection (4), lines 46 and 47 and in page 17, lines 1 and 2, to delete paragraph (f).
I am curious as to the purpose of paragraph (f) in the remit of the adjudicator as it is in this section. Under paragraph (f), he may not measure or determine costs as between solicitor and client or make a recommendation as to the level of such costs, in connection with his examination or investigation of a complaint under this section. If the dispute relates to costs, the client has no recourse to this method of investigation. I know section 9 provides for the society to investigate complaints about excessive costs and to impose sanctions on guilty solicitors. That is good as far as it goes and is a mechanism by which the society can exercise control over solicitors. However, there is no mechanism by which some independent party can examine costs. It is a serious omission, irrespective of whether the investigating mechanism is the Ombudsman, some other kind of public office or the mechanism provided for under the current section. It is not desirable that the Ombudsman or adjudicator cannot resolve a dispute in connection with costs. I seek to have the paragraph removed for that reason.
I share Deputy Gilmore's concern. Unless the Minister can clarify the situation to our satisfaction, it seems strange to exclude the remit of the adjudicator to deal with matters relating to solicitor-client costs. Many clients' grievances seem to relate to excessive solicitor-client bills. Even if a litigant is successful and is awarded his costs by the other side often, to his surprise, he receives a solicitor-client bill. In some cases, there is a delay in sending that bill. The client will leave the court thinking he has won his case and has been awarded costs, which means he does not have to pay any costs to his solicitor. However, the extravagant solicitor-client bill he receives a while later relates to all correspondence and work the solicitor has undertaken directly with the client, as distinct from that conducted by the solicitor, on behalf of the client, with the other side. There should be a clear division between party and party work and solicitor-client work.
I am concerned also about the charging of percentage fees. In many cases, the solicitor surprises his client by introducing a percentage, or else an extravagant solicitor-client bill, on top of the party and party costs awarded by the court. I am dealing with a case with the Law Society on behalf of a person who was awarded his costs by the courts, and thought that was the end of the matter. After a long delay, he got a solicitor-client bill, which he did not feel obliged to pay. He is in dispute with the Law Society as to the extent of that bill.
I hope other sections of the Bill will deal with the areas of solicitor-client and party-party bills and the risks clients take when going into litigation. The costs and the clarification between these two aspects should be clarified during the initial interview between the solicitor and the client. I am worried that this important aspect of grievance, the solicitor-client aspect could be excluded from the remit of the adjudicator. I cannot see the reason for doing this. I am grateful to Deputy Gilmore for raising it because unless it is justified by the Minister, I cannot see the reason for excluding it from the remit of the adjudicator.
On Deputy O'Donnell's points, we are outlawing percentage charging in section 68. Section 68 also contains a specific provision that in contentious business, the solicitor would have to set out in advance the circumstances in which party and party costs will not meet the client's full obligation. The question of costs which the Deputy correctly mentioned, and the different ways of determining party and party costs will be dealt with by the court and court officers Bill.
Deputy Gilmore's amendment seeks to delete the provision which prevents the adjudicator from measuring or determining costs or making a recommendation on the level of costs in his examination of a complaint. The reason for including this provision is that other machinery is provided to deal with cases where the client is dissatisfied wth the level of costs which he or she is being asked to pay.
Hitherto there was only one type of machinery to deal with this. We are now introducing another form of machinery, the Law Society. Section 9 empowers the Law Society to deal with cases of overcharging by solicitors. It also specifically provides that nothing in the provisions of that section shall prevent a client from exercising any right to require a solicitor to submit a bill of costs to a Taxing Master of the High Court on a solicitor and own client basis. If a client makes a complaint to the Law Society, therefore, and the client is unhappy with the decision of the Law Society, he or she may have the bill of costs referred to taxation.
While section 15 (4) (f) prevents the adjudicator from measuring or determining costs, he would still be entitled to make a recommendation to the Law Society on how it investigated a complaint about overcharging. He is prevented from recommending the appropriate level of charges. If section 15 (4) (f) is deleted, can a client who is dissatisfied with the decision of the society under section 9 refer a bill of costs to the Taxing Master and also refer the bill of costs to the adjudicator? In the event, which view will take precedence? Will it be the view of the Taxing Master or of the adjudicator?
There is also the question raised by Deputy Shatter on the criteria to be used by the Law Society. I presume these will emerge as the complaints proceed to the Law Society. What criteria would be used by the adjudicator? Would it be a different set of criteria to that used by the Law Society?
There is also the question of expertise. While we are, to a certain extent, taking a risk that there will be a sufficient level of expertise in the Law Society to determine these matters which are quite technical could we be guaranteed that there would be a sufficient level of expertise in the adjudicator's office? It is a very subjective matter.
While I am not happy with it in principle, I can see a certain merit in Deputy Gilmore's suggestion. I have no argument with the Deputy on principle, however, I can see practical problems. Before the Deputy tabled the amendment I was considering an amendment about which I have spoken to my officials. Further discussion on it will take place.
I am anxious to allow the adjudicator to make a determination on costs because it is somewhat odd that while the adjudicator is empowered to investigate whether the Law Society properly investigated a complaint about costs and to make a determination that the Law Society did not properly investigate a complaint about overcharging, he or she cannot give an opinion or recommendation as to what he or she believes the bill should be. I am not to happy with that and the matter is under discussion. I hope we will reach the position required by the Deputy in tabling the amendment without too many practical difficulties.
On the appropriate level of charges, is it possible to have a standard level of charge? This is where the difficulty will arise as the question of fees is very subjective. It raises issues such as how solicitors value their time, cost management and so on. A price can be put on specific items such as a licensing application, but costs depend on which firm of solicitors the litigant approaches. If the litigant engages a swanky firm in Dublin with high overheads, well qualified staff and expensive facilities that firm will charge a higher fee for the work than a small firm which does not have the same overheads.
Fees are subjective and the way in which solicitors value their time in terms of cost management is an issue which the Law Society will have to consider as there should not be a huge variation between firms. If a person goes to a small firm will a cause of action be only half the price of a bigger firm of solicitors? I am pleased the Minister is willing to consider this issue.
People shop around. I recently dealt with a case involving a woman who wanted to sell her house which was originally a corporation house and was not very valuable. I obtained details of fees from four solicitors. They did not vary wildly but there was a substantial variation between the top and the bottom of the scale.
There is an element of subjectivity in this issue. I agree with Deputy Shatter's remark that there is a significant amount of law on how the Taxing Master assesses costs, but even in this regard it has to be admitted that there is a high degree of subjectivity also. This is perhaps a further argument for proceeding along the lines suggested by Deputy Gilmore. I ask the Deputy not to press the amendment today because, in principle at least, I am at one with him on it.
I am happy to co-operate on this matter. The Minister is responding positively. I will withdraw the amendment and await further developments on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 41:
In page 17, subsection (4), lines 3 to 6, to delete paragraph (g).
I have difficulties with subsection (4) (g). It may seem reasonable that the adjudicator:
may not examine or investigate a complaint made to him under this section after the expiration of two years following the determination by the Society of a complaint made to the Society.
There may well be circumstances where somebody is ill, where he is not fully compos mentis, where he is not aware of his right to appeal and so on. In this respect two years is a very short period.
As against that, if an experienced Ombudsman is appointed and somebody raises a matter five or six years later, the Ombudsman will take this into account in his determination of the case and, therefore, a provision of this kind is superfluous. I would be slow to accept that the expiration of two years is the right time scale. If this section is deleted, and a person complains to the Ombudsman who considers that too long a period has elapsed or that the complaint is vexatious or unrealistic, he can make that determination. However, if the Ombudsman believes it is fair and reasonable to consider the matter after two years he should be empowered to hear the complaint.
That is the reason I have difficulties with subsection (4) (g). It is too restrictive and does not favour the client. Most clients go to solicitors because they do not know the law and they are not aware of these procedures. In my constituency the Ombudsman is often referred to as the Ambulanceman, Omnibusman and so on because people do not know a great deal about him. Yet in this instance we are doing away with their legal rights to appeal to an Ombudsman or an adjudicator if they do not do so within a two year period.
This is not fair or reasonable, but it would be fair and reasonable for the Ombudsman to determine that somebody had not behaved with good faith if he left it too late to appeal and if there were not good grounds for so doing.
This section is of interest to me and I look forward to hearing the Minister's views on it. Subsection (4) (g) which refers to a complaint made to the adjudicator "after the expiration of two years following the detemination by the Society of a complaint made to the Society". I dealt with two interesting cases recently. One related to a person purchasing a house from a local authority. Only when the last mortgage payment was made did the person notice the deeds of the house were still in the previous owner's name. Sorting this out caused great confusion and frustration, even in regard to simple matters like stamp duty costs. When the Law Society was contacted, the person was referred back to the local authority. In this case would the initial contact with the society be seen as an official complaint even though the society suggested that the person should go back to the local authority to have the matter sorted out? At the end of the day, it was a matter for the solicitor to solve and with the assistance of the society, we solved the matter.
In the second case, many years after the death of a parent, irregularities came to light in the way the matter was dealt with by the solicitor. Inquiries were made to the solicitor and the society but the issue has only been recently resolved to the family's satisfaction. Like the previous speaker, I question why the Bill provides for a period of two years after which the adjudicator may not examine or investigate complaints.
I share the concerns expressed by the previous speakers. It may be better to leave the matter to the discretion of the adjudicator based on the circumstances of cases. I can imagine a situation where, due to his workload, the adjudicator and his staff may not be able to deal with complaints even two years after the determination of a complaint by the society. We do not know the workload which will fall on this legal ombudsman or what procedural difficulties he will face. A complicated case could take up the time of his staff for many months. Two years is a short period. The adjudicator may not be able to consider cases because of his workload and the statutory limitation of two years may expire through no fault of the person making the complaint. As Deputy Mitchell said, in the human context there are all sorts of reasons why people do not deal with problems immediately. They might get totally fatigued by the complaints procedure having had their complaint heard by the Law Society. They may experience litigation fatigue and not bother submitting their complaint to the adjudicator for a year or so and may miss the two year deadline. We must be careful that in setting a limit we do not deny justice to individual litigants.
Deputy O'Donnell stated that the adjudicator may not be able to deal with a complaint for some time. However the only criterion is that the complaint must be submitted within the two year period. Unfortunately, if we delete the paragraph and the Law Society makes a determination today, people will have forever to appeal to the adjudicator. They could appeal in 50 years time about the Law Society's handling of a complaint.
In such a case could the adjudicator not tell people that they did not submit their complaints in time?
Not under the section as drafted. We do not want people to complain that the adjudicator heard complaints which were submitted seven years later, bud did not hear theirs, even though they were submitted only four years later. We do not want to introduce this type of uncertainty as there will be queries about uniformity. The adjudicator would prefer a fixed period. I am flexible on the time limit.
Two years is a little short.
In the context of ordinary appeals, it seems very long when one considers the time and unsuccessful litigant is given to appeal to higher court. there is a strict time limit of literally weeks.
People would have legal advice in that situation. In this case people do not have to employ lawyers and advise them to submit their complaints for investigation.
That is why the time limit is so much longer. I will examine the time limit and might be disposed to increase it by a year. However, I certainly cannot agree to an open-ended timescale.
Could the Minister allow the adjudicator the flexibility to determine if a complaint has been submitted too long ago to warrant an inquiry? If there was a limit of three or four years and a case warranted adjudication, I presume it would be the Minister's desire to ensure it was adjudicated upon. Could he insert a provision to accommodate such circumstances?
I suggest the insertion of words such as "unless the adjudicator feels there are reasonable grounds for admitting an appeal". This would allow people, where justice requires it, to have their case heard.
I will consider that. The difficulty is that if the Law Society makes a determination today, it is difficult to see — I know it can happen in exceptional circumstances — why somebody would delay three or four years before writing to the adjudicator, to make a complaint. If there is flexibility, there will be inevitably be complaints. People will approach public representatives, and parliamentary questions will be tabled querying why the adjudicator feels that the case mentioned by Deputy Callely is valid after five years and another case is not valid after three years. I would prefer a general wording, maybe on the lines suggested by Deputy Mitchell, or an increase in the time limit.
Amendment, by leave, withdrawn.
I move amendment No. 42:
In page 17, between lines 10 and 11, to insert the following subsection:
"(6) Subject to paragraph (g) of subsection (4) of this section, an adjudicator may direct the Society to re-examine or reinvestigate a complaint made to the Society about a solicitor, if the adjudicator is not satisfied that the Society have investigated the complaint adequately.".
Amendment agreed to.
I move amendment No. 43:
In page 17, subsection (6), line 11, after "section" to insert "and notwithstanding the provisions of subsection (6) of this section".
Amendment agreed to.
I move amendment No. 44:
In page 17, subsection (7), line 21, before "reinvestigation" to insert "re-examination or".
Amendment agreed to.
I move amendment No. 45:
In page 18, subsection (13), line 2, after "conviction" to insert "thereof".
Amendment agreed to.
Question proposed: "That section 15, as amended, stand part of the Bill."
What penalty will apply under subsection (5)? Subsection (12) states that a person shall not obstruct or hinder an adjudicator or do anything "which would, if the adjudicator were a court having power to commit for contempt of court, be contempt of such court". Is it proper for us to include this provision? On one celebrated occasion we provided that the Committee of Public Accounts should have the power to compel the attendance of witnesses and a witness, who did not co-operate with the committee, was sent before the High Court because he was held to be in contempt of the committee as if he were in contempt of the High Court. If I recall the case correctly, he duly received a sentence, which he appealed. The appeal was successful on the grounds that because no penalty was specified he was entitled to the option of a jury trial as there was a possibility that the sentence would exceed a given figure, which I think was two years.
Would the same constitutional problem apply in this case, because the adjudicator seems to be in the same position as the then Chairman of the Committee of Public Accounts? A person who would have to appear before the High Court for contempt of the adjudicator may well rely on the precedent set by that case and argue that because a sentence is not specified for contempt, he is entitled to trial by jury. It is a technical point which I ask the Minister to examine. It arose in similar circumstances where such powers were devolved on a committee of the Dáil which is not a court.
I take the point. There is a penalty specified in subsection 13.
It mentions a fine not exceeding £1,000. Contempt of court would seem to be in addition to that.
I will have to consider that point.
That is fine. I ask the Minister to come back to us on it.
Question put and agreed to.
The Select Committee adjourned at 6.50 p.m. until Wednesday, 10 May 1994.