Amendment No. 16 has been ruled out of order.
SECTION 8.
On what basis? Its objective is to take out of the hands of barristers, as recommended by the Restrictive Practices Commission, ultimate appeal on fees charged. In the case of barristers, one goes very quickly to court on appeal because there are few other procedures to exhaust. Large fees are charged. Former members of the Bar sit on the Bench making decisions affecting other members of the King's Inns who appear before them. This is the only instance when judges make decisions while having some connection with those appearing before them. This has been reported on by the Restrictive Practices Commission. It is time to take this out of the hands of the courts, in the interests of the courts and the clients, so that a court is not put in the invidious position of having to make decisions about a profession to which it is related.
It is time the Director of Consumer Affairs was given some role in the way barristers' fees are charged. The normal commercial criteria which apply in other areas should also apply to the legal profession. This is an area of potential conflict for the Judiciary, for which I have an enormous regard. It should not be left in the invidious position of having to continuously hear such cases, despite the criticism of the Restrictive Practices Commission.
I share Deputy Mitchell's frustration——
We are not having a debate on this, the amendment has been ruled out of order.
My point of order relates to that ruling. Section 15, which deals with the independent adjudication system, precludes consideration of fees. Deputy Mitchell's amendment seeks to deal with fees. If it is not possible to deal with the issue in that way or under section 15, will the Minister of State clarify which part of the Bill provides for deaing with grievances of clients in relation to fees charged by solicitors?
Amendment No. 16 seeks to have appeals on fees charged by solicitors and barristers heard by the Director of Consumer Affairs. In so far as it relates to barristers, the amendment is outside the scope of the Bill. The amendment could be brought into order if the reference to barristers was removed and Deputy Mitchell should consult the Bills Office as he will have an opportunity to submit a revised amendment later.
I want to include barristers because they are getting off the hook, and that is the point I am trying to make.
I am glad a good word is being said about solicitors.
I did not go that far.
Almost.
I move amendment No. 17:
In page 10, subsection (1), line 14, after "satisfied" to insert "beyond reasonable doubt".
This seeks to tidy up the wording. The Bill states that the society shall investigate a complaint "unless they are satisfied that the complaint is frivolous or vexatious". It would be easy for the society to decide a complaint was frivolous or vexatious. The requirement of something being "beyond reasonable doubt" has a definition and an application in law. The inclusion of those words would be reasonable and would protect clients without putting any further imposition on the Law Society or solicitors.
The amendment deals with the provision whereby the society will only examine a complaint if it is satisfied it is not frivolous or vexatious. If it is satisfied, it is obliged, under the terms of the legislation, to investigate the complaint. The terminology used by Deputy Mitchell is "beyond reasonable doubt". This is the terminology used in criminal cases, where a case has to be provided beyond reasonable doubt. The manner in which the society handles a complaint, including for example if the complaint is dismissed as being frivolous or vexatious, is subject to judicial review and can be appealed. It is also subject to review by the independent adjudicator under section 15. If Deputy Mitchell withdraws his amendment, I will introduce an amendment on Report Stage to incorporate a more suitable wording, such as "fully satisfied" or "adequately satisfied". I do not like using the criminal law formula.
That is acceptable.
Amendment, by leave, withdrawn.
I move amendment No. 18:
In page 10, subsection (1) (a), line 21, to delete "determine" and substitute "direct".
Subsection (1) (b) to (e) authorise the society to direct a solicitor to do certain things. It seems inconsistent not to use the same language in section 8 (1) (a). I understand that the word "determine" implies an assessment of facts whereas the word "direct" means a requirement to do something consequent on a determination.
I support the amendment for the same reason. This section is important. It relates to the point of first instance for a complaint and enables the society to impose sanctions for inadequate services. The first step open to a client would be to call on the society to investigate a complaint. Under this section, the society, having investigated complaints and decided they were not vexatious or frivolous, can take action. It seems inconsistent to use the word "determine" in section 8 (1) (a) and "direct", which is a stronger and more coercive word, in the other subsections relating to actions the society might require, following investigation. It would be more consistent with the general thrust of the section, and a stronger way of outlining what the society needs to say to solicitors, if the word "direct" was used in Section 8 (1) (a) rather than the word "determine".
I accept the points made by the Deputies and I accept the amendment.
Amendment agreed to.
I move amendment No. 19:
In page 10, subsection 2 (b), line 51, to delete "those costs" and substitute "the costs of the solicitor to the extent that they have not already been paid by or on behalf of the client".
This amendment is necessary to distinguish clearly between costs which have already been paid by the client and which the solicitor may be required to refund under section 8 (2) (a) and costs which have not been paid by the client and which the solicitor may be required to waive under section 8 (2) (b).
Amendment agreed to.
Amendment No 21 is an alternative to amendment No. 20 and they may be discussed together.
I move amendment No. 20:
In page 11, subsection (7), lines 47 and 48, to delete "prior to a date that is five years before the date that this section comes into operation" and substitute "more than five years before the date on which the complaint was made".
Without this amendment there would be a fixed date forever, by reference to the enactment of the Bill, that is 1989, assuming the Bill is enacted this year and that no other amendments are made to this section. In ten to 20 year's time, the five years would be effectively 15 to 25 years. Reasonable time limits apply for causes of action in most areas of the law, for example the limitation period for breach of contract is six years. We can debate the length of time separately. However, if the intention is that complaints can only be backdated a certain number of years we must change the section to do that. Otherwise, we would have a fixed date and in 30 years' time complaints going back 30 years could be heard.
I tabled this amendment because I was concerned about the precise point which the Minister made. There was a potential for an open-ended retrospection in the Bill as drafted. I felt it was important to have some limit set on it. I am happier now that the Minister's amendment has clarified this. As the Minister said, there is usually some period of retrospection for newly introduced procedures. I will leave it to the Minister to decide whether five years is excessive.
His amendment has changed the perspective which prompted me to put down my amendment. I was concerned about the open-ended nature and the possibility that complaints made today could relate back to 1989. It is difficult to assess whether that is possible. I will not press my amendment but I would like to hear the Minister's response to it. However, I feel that his amendment resolves the confusion and the potential for open-ended retrospection.
I can see the benefit of the Minister's amendment and that the original drafting would give a perpetual date which was not intended. I favour five years rather than three years. I support the Minister's amendment.
Amendment agreed to.
Amendment No. 21 not moved.
Section 8, as amended, agreed to.
SECTION 9.
I move amendment No. 22:
In page 12, subsection (1), line (8), to delete "grossly".
Amendment agreed to.
I move amendment No. 23:
In page 12, subsection (1) (a), line 11, after "refund" to insert "without delay".
I do not imagine that there should be any great difficulty with this either. Section 9 (1) (a) states that a requirement would be placed on a solicitor to "refund, whether wholly or to any specified extent, any amount already paid by or on behalf of the client in respect of the solicitor's costs in connection with the said legal services". I am looking for that refund to be made without delay, to avoid an order being made requiring a solicitor to make a refund and the solicitor just dragging it out.
I am sympathetic to the Deputy's proposition. Under section 11, a solicitor who fails to comply with a direction of the society without reasonable excuse will be guilty of an offence and liable on summary conviction to a fine not exceeding £1,000. Section 61 empowers the Law Society to refuse a practising certificate to a solicitor who has failed to comply with a requirement under the legislation. Section 58 empowers the society to suspend the practising certificate of a solicitor who fails to comply with any provision of the solicitors' Acts. However, all these measures can take time and if a refund is ordered the client should get it without delay. Therefore, I am prepared to accept the amendment.
Amendment agreed to.
Sitting suspended at 4.45 p.m. and resumed at 5 p.m.
Amendment No. 24 is in the name of Deputy Gilmore and amendments Nos. 25, 26 and 27 are alternatives. Amendments Nos. 24 to 27, inclusive, are being taken together by agreement.
I move amendment No. 24:
In page 13, lines 1 to 6, to delete subsection (6).
Section 9 empowers the society to impose sanction on a solicitor where a client complains that a solicitor has charged an excessive amount in respect of services provided for that client. Subsection (6), about which I am concerned, provides that the society shall not investigate complaints where a bill of costs was issued more than five years before the section comes into effect. I propose the deletion of that subsection. That time limit on the society investigating complaints should not exist. There is a stronger argument and a more compelling case that if a bill of costs has been under dispute for five years or more it should be investigated by the society. It would be unfair to clients where there has been a dispute over a bill of costs to deny that client the right to have the complaint investigated by the society.
I seek to abolish the time limit completely. There will have to be protection to avoid a situation where people who have discharged their bills to solicitors suddenly get the bright idea that as soon as the legislation is in place they have grounds to seek to recover payments already made to solicitors. I would be happy if there was some arrangement whereby the release of the time limit would apply only in cases where the bill had been under dispute at the time this legislation came into effect. For example, if a bill of costs has been under dispute and a person has a grievance — some people have grievances which go back over seven years — it would be wrong if there was a cut-off point of five years. That would be unfair to the aggrieved client and it should be lifted.
I accept that there is a case for the deletion of this subsection. My proposal is a good half-way house. If one examines the subsection and takes the Minister's advice on an earlier subsection, the wording has a certain perpetuity. It states that it is five years before the date that this section comes into operation. I did not pick that up in my original reading of the Bill and I proposed substituting seven for five. The objective of my amendment is five years before the original complaint was made, or something of that nature. If we can remove the perpetuity and amend five years to seven years, I would be much happier. It would not be in the interests of clients of the legal profession to reduce it from five to three years. My disposition is to support Deputy Gilmore's amendment to delete the entire subsection if we cannot reach a compromise. Seven years is a reasonable compromise.
Does the Minister intend to amend this section in the same way as he amended the previous section? In other words, does he intend to substitute more than five years before the date on which the complaint was made?
Yes.
I was concerned about the fact that it was open-ended. I was also concerned about the practicalities of having even five years because it was open-ended. Has the Minister moved that amendment?
No, I will be moving it.
I will wait for the Minister to speak and then I will come back to him for clarification.
I am suffering déj� vubecause we had a lengthy discussion on the previous Solicitors (Amendment) Bill. It contains similar sections to sections 8 and 9 and had similar amendments. There is interaction between the two Bills. I wish to deal specifically with this discussion. In case I am misunderstood, I am fully in favour of the general principle of providing reforming legislation in this area. However, I am concerned about providing protection for consumers and ensuring that the legal profession can work on some rational basis given that solicitors, as I know, operate a business with the intent of doing the best they can for their clients. Some solicitors fall down on that and that is why we need proper legislation.
In the contentious area of investigating complaints under this section which deals with charges, I raise a general issue with regard to subsection (6). Unfortunately, I missed a little of the debate earlier and perhaps the Minister intends to address some parts of it. Although everyone will say it is not the case, a general assumption, or a whiff, runs through this Bill that most solicitors are either crooks or potential crooks and that it is very unusual to find an honest solicitor. There is that type of whiff about this Bill. It has been generated by virtue of the fact that a small minority of solicitors over the years have behaved extremely badly and have cast a slur on decent, honourable people who work extremely hard on behalf of the clients they represent. It is not a popular thing to say because three professions are supposed to be held in low esteem, TDs and solicitors — with barristers catching up — never a day passes in this House when some TD does not enjoy taking a dig at the legal profession; perhaps it is by way of personal psycho-therapy to get over the digs the general public take at Members of this House. The third profession that tends to be linked to these two is prostitution although that seems to be becoming politically correct nowadays, so only TDs and solicitors are left in this wonderful isolation.
In the context of this measure, would anybody run any business here and leave themselves in a position where five years after a bill had been submitted, someone could jump out of the woodwork and claim it was excessive? Would doctors, five years after their bills were paid, allow them to be reviewed? Would plumbers, accountants or any business in the private or public sector seriously operate on the basis that five years after a bill was submitted and paid, not only could it be the subject of an inquiry, but also the subject of a complaint which could result in someone's professional livelihood being put at risk? It is like taking a sledgehammer to crack a nut.
The problem that has to be addressed is the genuine complaint against someone who charges excessively. I will not say that does not happen because I accept it does. On occasion, wearing my solicitor's hat, I have acted on behalf of clients who have queried bills for work done by other solicitors. Fortunately, we have a mechanism to deal with that which is now given some recognition in this Bill. It was not recognised in the previous Bill and we will deal with that in more detail later. Is it to be seriously suggested that four and a half years after someone has completed a job of work as a solicitor for a client, that the client can raise a complaint which would result in an investigation by the Incorporated Law Society? A bona fide complaint would be raised a good deal earlier. As someone who still occasionally works as a member of the legal profession, I would not like to have to recall the exact work I did for a client four and a half years ago whose case had been successfully resolved. Admittedly, I would have a file to consult which would contain a memo of the nature of the work undertaken. However, this proposal is daft and does not approach the problem on a logical basis. There must be a proper procedure. I am not satisfied with some of the existing procedures but it is daft to suggest that if someone has a true and valid complaint about a bill, he can raise it up to five years later.
This section applies to five years before the time the Bill becomes law. If the Bill becomes law at the end of December 1994, presumably bills can be queried back to December 1989. I have doubts about the constitutionality of putting in place a set of legal procedures to allow a form of investigation to take place on alleged incidents that occurred five years prior to the enactment of the legislation to which they apply. The second problem is that if someone had a genuine problem about fees, there is an existing mechanism for querying a solicitor's bill by going to the taxing master of the High Court. I am not sure why we need to include this five-year provision however, it should apply only from the enactment of the legislation or perhaps from the date of publication of the Bill when people have been forewarned. I would like an explanation for the five years.
The other thing wrong is that this section and section 8 — where subsection (7) is a mere image of this to some extent — seem to envisage that bills can be investigated for ever more. Deputy Mitchell alrady referred to the words "in perpetuity" and I presume that that is what was discussed when I was absent. If this legislation is put on the Statute Book and in the year 2010 somebody decides that a bill from his solicitor in 1995 was grossly excessive, he can write to the Incorporated Law Society which will investigate it. Old files will then have to be pulled out and people will have to try to remember what they did 15, 20 or perhaps 30 years ago for a client although some files may have been disposed of because there was no reason to retain them. There is no limitation of any nature on this provision.
In the commercial section if someone in the banking community engages in major fraud which can give rise to a civil action under the statute of limitations, if they are regarded as being in breach of contract they can be sued for up to six years and if they are regarded as being negligent they can be sued for up to three years. In this context, people can start complaining about a solicitor who acted for them 30 years earlier. That is utterly bizzare and it gets more bizarre. I want to draw the Minister's attention to the interaction between this subsection and section 9 (1). The same problem exists with section 8 (1). The complaint can be made by a client or by any person on behalf of such a client. The word "client" is given a very wide definition in the section. Problems can arise five or ten years later. For example, the assumption in the Bill is that the client is either the person who consulted the solicitor or perhaps a husband, wife or close relative. The way this is defined "from any person on behalf of such client", means that any group of individuals who form a view that the entire legal profession is evil and should be investigated, can ask that a bill be investigated even if the client was happy with the bill. This is extremely odd and needs to be examined.
This Bill is designed to ensure that consumers are saved money, as well as ensuring that legal costs do not excessively eat into damages awarded by the courts, or assets held in an estate when someone dies. In the latter area the Bill gives rise to a real and serious problem. It is not exceptional that when people make a will they leave small legacies to large numbers of people. It is not unusual in a will to have ten to 15 residuary legatees who might be sharing a million pounds between them if they are extremely fortunate. If they are not particularly fortunate there could still be £10,000 or £15,000 to be shared out. Under the definition of client in this Bill, if I am a residuary legatee and as a result am entitled to £500 from an estate, it appears that if the solicitor submits a bill for administering this estate and I form the view that the solicitors fees should be less, I can challenge the solicitor's bill. The person who should be in a position to do that, and who has that responsibility, is the executor of the estate. The 15, 20 or 25 people who are beneficiaries of the will should not, individually, be able to raise these issues. This is particularly relevant in circumstances where such an issue is raised by somebody who — and I will be told I have a vested interest in exaggerating — might be a crank who could delay the completion of an estate resulting in additional legal costs incurred by the solicitor administering it who is obliged to deal with such queries despite the fact that the position of the legatees, pursuant to succession law, is protected by the executor.
Obviously, there must be provision in legislation to challenge excessive bills for completion of estates. However, the Bill should clearly state that such power is vested in the executor or the administrator of the estate and does not devolve on individual legatees. I can demonstrate how absurd it can become. Let us assume the legatee who received £500 or £600 was a sane and sensible person at the time but 20 years later had become physically infirm and mentally confused and decides that perhaps the £500 should have been £1,000. Relying on this provision the person can decide to have the case investigated because he or she believes that the legacy is less than £1,000 because the solicitor who dealt with the estate ripped everybody off in legal costs. This may sound exaggerated but, it is not to someone who has seen odd things I have seen happen in the courts.
I can give an example which the House would consider daft, if it had not happened. Some years ago when the sweepstakes draws were still being held every time a winning ticket was drawn a particular gentleman issued proceedings in the central office of the High Court alleging that he had the winning ticket but, because of a conspiracy within the Irish Hospitals Sweepstakes, nobody had told him. He issued a series of High Court writs against Irish Hospitals Sweepstakes until eventually an injunction was granted by a High Court judge forbidding the central office of the High Court from issuing any more proceedings against the Irish Hospitals Sweepstakes without the permission of a High Court judge. Occasionally odd people do odd things.
While the Bill must provide protection for people against solicitors who behave improperly, its drafting invites major problems. In some areas it could add to legal expense and diminish the moneys that would be properly available to people when estates are being administered following the death of the owners. The Minister should look at how the provisions in sections 8 and 9 will work. Section 9 (6) must be revamped. I am not sure that the proposed amendments touch on the full extent of the difficulties that arise under this section.
It is useful to hear a practitioner's perspective given that the procedures in the legislation must be workable. I fear that the five year period in which a client can make a query and the society can proceed with the investigation of a complaint under this section is, perhaps, too long.
Big firms now have most of their costs and all their records on computer. However, five years is a long period for small firms. Apprentices might have moved on or the solicitor dealing with the case might have left the firm. There are many other uncertainties as to the capacity of people to recall what happened in a case under investigation and their capacity to give evidence on it to the society.
I share Deputy Shatter's view that we are in danger of giving the impression that all solicitors are rogues or at least incompetent. There are also rogue litigants and rogue clients of whom we must be wary. We must put fair procedures in place. The Minister's amendment goes some way towards closing the open ended nature of the Bill as drafted. However, a five year period might be unreasonable in some cases. Perhaps the Minister could tell us if a shorter period might be more practicable.
As a Deputy who does not have a legal background and who has no association with the legal profession, I can say psychotherapy is not a factor in my criticism of the Bill. The shortcomings I highlighted were highlighted in paragraphs of the restrictive practices commission report on the legal profession. One of the paragraphs in the report, at table 4.1 on page 19, says that in all 100 liability claims tried in court or settled prior to hearing by a number of member companies of the Irish Insurance Federation in a 12 month period from 1986 to 1987, 24.6 per cent of the awards were swallowed up legal fees. That is a matter of public concern. It is a legitimate and proper point to raise particularly as it is mentioned in that report.
Two solicitors told the committee that a small number of solicitors are responsible for getting solicitors a bad name and I accept the accuracy of that statement. The vast majority of solicitors are honourable people who do their jobs professionally and well. However, the Law Society over the years has contributed to the bad image of solicitors because when people approached the Law Society they got no satisfaction. I told the committee about a person who could not get a breakdown of the costs being charged by his solicitor. When he went before a committee of the Law Society — and I was permitted to accompany him — some members of the committee argued that he was not entitled to such a breakdown until a sensible lawyer said this was nonsense and that the man should be given the breakdown of his costs. That is the problem people face.
If there are such problems referred to in an independent report on restrictive practices which cause much concern — and I accept that it applies to a small number of solicitors — it is the job of Parliament to deal with them. Allowing this subsection to apply in perpetuity would not be fair. However, there should be a reasonable period in which complaints can be investigated although I do not know what it should be. When reading the section, I thought the seven year period would begin on the day the Bill comes into effect. I did not imagine it was to be in perpetuity, which as the Minister pointed out is the case. That would not be fair. If the section is deleted, there will be no restriction on the number of years one can go back. If that is supported that is fine, but I favour a restriction on the period one can examine.
We have amended section 8 to prevent examination in perpetuity and amendment No. 27 will similarly change this section. Deputy Shatter mentioned that a person who had a complaint four and a half years ago could have raised it then and asked why he should be allowed raise it now.
We are putting a new mechanism in place to enable people to complain about excessive legal fees. As the Deputy rightly pointed out, the only mechanism available up to now is the Taxing Master. As members know, the Taxing Master is a quasi-judicial officer and to go to him one needs another solicitor. Most people would be aware of someone who felt he had been charged excessive fees by the legal profession but who after the initial angry reaction felt it wise not to throw good money after bad by employing another solicitor to appear before the Taxing Master. Such a process was unthinkable for that person, especially if the query related to a few hundred pounds.
We are now establishing what I hope will be a speedy and inexpensive mechanism so people can have a legitimate complaint investigated by the simple expedient of writing to the Law Society, who now have the power to investigate it. This facility was not available five years ago; it will only come into operation on the passage of this legislation. We are under pressure from informed members of the public to allow retrospection and it is not unreasonable to allow such retrospection.
With the exception of Deputy Gilmore, everyone who has contributed is in favour of a fair cut off point. If a person has suffered severe personal injuries having been knocked down by a car, he or she is only allowed three years in which to commence proceedings. If someone suffers from breach of contract or unfair dismissal and wishes to take a common law action there is a six year cut-off point. If someone takes an unfair dismissals case in the Employment Appeals Tribunal, the limit is only six months. People cannot bring actions in relation to events that occurred ten years ago because the system would become completely clogged.
There must be a cut-off point but the dispute is about when it should be. Deputy Shatter thinks it should be from the date of passage of the legislation and does not believe there should be any retrospection. Deputy Gilmore thinks there should be no cut-off point at all. Of those who think there should be a cut-off point, my officials in the Department think it should be five years, Deputy O'Donnell thinks the period should be three years and Deputy Mitchell thinks it should be seven years. There is obviously a difference of opinion.
We should split the difference between Deputy Gilmore and Deputy O'Donnell and set it at 20 years.
One can hardly split the difference between a figure and infinity. Deputy Shatter's point on the definition of client is a reasonable one. We changed the definition in the 1992 Act to include a person who can act on behalf of a client. A strong case was made by members that a client of a solicitor may not be able to make a complaint for some reason. It is only fair that someone such as a public representative, a friend or a relative should be entitled to make a complaint on his or her behalf. I support that reasoning and the Law Society is entitled to reject frivolous or vexatious complaints.
The Deputy made a point about a beneficiary of a deceased person who left a small estate, who would only benefit by a small amount. The definition in section 2, the interpretation section says "In this Act, unless the context otherwise requires" so there is a saving mechanism. We could devise other examples but the Law Society would be entitled to treat the person in the position outlined by Deputy Shatter as not being a client entitled to complain. High Court judges, being usually sensible, would uphold such a decision if the situation was clearly ridiculous.
The definition mentioned by the Minister includes a beneficiary to an estate under a will. It would seem that both a personal representative and a beneficiary could complain. If there is an excessive bill for completion of an estate there must be an entitlement to raise the issue, but surely that should be vested in the personal representative, be that the executor or the administrator of an estate. It could create enormous difficulty if it was otherwise.
All definitions in section 2 are governed by the overriding consideration: "unless the context otherwise requires". Deputy Shatter said it would cause horrendous problems in the profession if people were allowed to go back a number of years and make complaints directly to the Law Society about overcharging, as opposed to complaining to the Taxing Master. During the prelude to this debate an allegation was made on a radio programme that the Law Society drafted this legislation; that is not the case. Nonetheless we had extensive consultations with the society.
That allegation was made by the Law Society itself.
Yes, but I reject it. The society subsequently wrote a letter to the Minister for Justice withdrawing the allegation. There was considerable consultation with the Law Society and it not only sought the sections in question but welcomed the specific wording of the sections. The Law Society which represents the profession and comprises practising members of it has no great difficulty with this.
There should be an element of retrospection and there should be a cut-off point. We are in dispute as to what the cut-off point should be. I will give further consideration to that aspect between now and Report Stage.
Is the amendment being pressed?
The Law Society should not be involved in this; I said so some years ago and I repeat it now. I would much prefer a simpler and less expensive procedure than the way the Taxing Master currently operates. More Taxing Masters should be available to deal with complaints, avoiding the expense currently associated with that office a good portion of which derives from stamp duties paid to the State for the privilege of using the Taxing Master. If the Government wants to make the Taxing Master more accessible, it should abolish stamp duties on the taxation of legal costs. Major companies can write off such costs against tax but not individual litigants in personal accident or family cases.
I carry no brief for the Law Society. There were serious defects in the previous Bill which were not noticed by the Law Society and the Minister has tried to address them. I have no interest in going to bat for the Law Society, which over the years has made a mess in this area. I accept that in the past it has not applied sufficient expertise, efficiency and care in dealing with genuine complaints and that the society is as much as part of the problem as it is of the solution. I regret their part of the solution in this Bill, but as the policy seems to be that the Law Society operates these mechanisms I want to ensure that whatever is put in place works properly for the public, who have genuine complaints, and the solicitors who are trying to represent their clients. That it will be operated by the Law Society does not indicate that it will work properly or achieve the purpose for which it is intended. I am concerned that the Law Society is happy and sanguine with the sections because it does not have a glorious record in this area.
Will the Minister consider the point I made about the interaction of the sections and my point about estates? The words "unless the context otherwise requires" will not resolve the difficulties to which I referred. It seems to be a sensible and proper way to deal with an estate that if an excessive charge for legal costs is alleged, the executor or the person representing the estate should query it. It will create great difficulties if that applies to beneficiaries in the context of the administration of an estate.
I will try to explain this situation for Deputies who are not familiar with it. When payments are to be made out to residuary legatees, a solicitor's bill is prepared setting out the costs. This may be accepted by an executor or administrator or it may be challenged. It is only when the bill is settled that the residuary legatees can get the money from an estate, because it is only when the bill has been ascertained that one knows what the residuary legacy will be. If one residuary legatee makes a complaint, which is not valid, but which prima facie may look worthy of investigation, it could hold up for many months the entitlements which a number of other legatees should receive from an estate. This should not happen because the beneficiaries do not know the details of the legal work done in administering an estate. The personal representatives have a specific responsibility to deal with this properly and carefully because if they do not take care they could be subject to legal action. They have a duty to the legatees in that sense. This may sound technical to some Deputies, but it is a real problem which has been exacerbated further by the perpetuity rule we are dealing with. Will the Minister please have another look at this?
The fact that the Law Society is happy with this Bill does not mean I can rest easy in the belief this will work properly and will not create a problem, because the Law Society has been blind to too many of the problems in this area over the years. On the last occasion this measure was in committee we debated issues which the Law Society had never raised or brought to the attention of the Department of Justice and which are now accepted as issues which need to be addressed.
The more I listen to the debate the more convinced I am that the appropriate way to deal with this is to delete the subsection. That does not mean that people who dream up disputes over bills, could require the Law Society to investigate them because, as the Minister said, the section provides for the weeding out of frivolous or vexatious claims. If someone approached the Law Society with a complaint about a bill he had received ten years ago, and had not complained about in the meantime, I doubt if the Law Society would, or could be expected, to pursue it.
On the other hand, it is difficult to establish a time limit because time limits are arbitrary. For example, if the time limit was set at five years and someone had a bona fide complaint it would not be considered five years and a month later. One could have a valid complaint just outside the time limit, regardless of when it is set. Often bills date back a number of years. No one wants to put in a provision which will encourage a rush of false complaints about bills which solicitors have sent, we want a mechanism to deal with legitimate complaints and grievances.
The Minister indicated that he will return to this issue on Report Stage, therefore I am happy to withdraw the amendment at this stage. The removal of the time limit does not mean that people can complain 20 years after a bill is sent, because there is a mechanism for weeding out these claims. However, it would be wrong if complaints made just outside the time limit could not be dealt with.
It is important to get this section and section 8 right because this is the first port of call for a client with a grievance. Later on in the Bill there is an appeal procedure to the High Court against determinations arising from this investigative procedure. We should try to limit client or solicitor appeals to the High Court on the determination of the Law Society. These two sections deal with the power of the society to impose sanctions and investigate misconduct and excessive charges. I would be grateful if the Minister could improve this section to make the first port of call the final one. The measures being introduced on requirements for laying out bills of cost before the case begins will diminish the number of grievances. However, it is desirable that grievances should not go on appeal to the High Court. I withdraw my amendment and look forward to the Minister's consideration of the time limit on Report stage.
We have spent a long time discussing this section. On Deputy Shatter's point, we would love to appoint more Taxing Masters, to abolish stamp duty on taxation and to reduce taxes on many other items, if the Minister for Justice could get money from the Minister for Finance. However, even if we got more money and appointed more Taxing Masters, the average client by the expedient of writing a letter would not appear before a Taxing Master.
Without interfering with the Taxing Master's powers, we are introducing a defensible alternative mechanism which will make available a simple, speedy and inexpensive remedy to a solicitor's client. Many complaints about overcharging will involve small sums of money and it will not be worth going to the Taxing Master or engaging in further legal process, regardless of the number of Taxing Masters.
I understand Deputy Shatter's point about estates, but the difficulty is that one rarely finds a provision in legislation to deal with a general problem. One can always dream up examples of where something might operate unfairly. I will consider Deputy Shatter's point, subject to this caveat — I do not want to include restrictions, "ifs", "buts", and "ands" in the legislation which may weaken it so that anyone could drive a coach and four through it.
As Deputy Gilmore pointed out time limits are by definition arbitrary. He said a genuine complaint could fall one month outside the five year period, but that is an argument that could be made about time limits generally. There are time limits for everything, including the right to institute litigation and there are good reasons for time limits in this case. I will consider exactly how long the time limit should be and also Deputy Shatter's point about estates.
Amendment, by leave, withdrawn.
Amendments Nos. 25 and 26 not moved.
I move amendment No. 27:
In page 13, subsection (6), lines 5 and 6, to delete "that this section comes into operation" and substitute "on which the complaint was made".
This specifically refers to the five year period and we should leave it until Report Stage.
Amendment, by leave, withdrawn.
Question proposed: "That section 9, as amended, stand part of the Bill."
I would like to respond to something the Minister said in the context of the State imposing a tax on people who have bills of costs from solicitors assessed by the Taxing Master. This has received little public attention over the years. It is odd that the State erects a financial barrier to those who validly seek to query solicitors' bills and to use a court appointed official to ascertain whether the charge submitted is valid. There has never been a rational debate about the inequity of that.
Section 9 seeks to incorporate the Taxing Master's office, something which was not contained in the previous Bill. In the context of subsection (2), perhaps the Minister will explain what is meant by: "Nothing in subsection (1) of this section shall prevent any person from exercising any existing right in law to require a solicitor to submit a bill of costs to a Taxing Master". I understand that means if someone has a complaint following the enactment of this legislation, he may complain to the Law Society or to the Taxing Master of the High Court. Initially, I presume they will complain to the Law Society. However, if that complaint is thrown out by the Law Society, may the client start again by complaining to the Taxing Master?
Subsection (3) states that where the society has received a complaint and the client has requested the solicitor to submit his bill of costs to a Taxing Master for taxation, the society shall not make a direction unless the solicitor has delayed in dealing with matters. Is it envisaged that when a matter has gone to the Taxing Master, the society will not adjudicate on that complaint? In other words, if the Taxing Master makes a decision on a bill, the society will not intervene.
In the context of a complaint that a bill is excessive, the client may decide to go to the Law Society or the Taxing Master. Will the Minister explain what criteria will the Law Society apply under the Bill when determining whether a bill is grossly excessive? Will the Law Society apply the same criteria which the Taxing Master of the High Court currently applies? If not, what criteria will be applied? There is a substantial amount of legal case law about how a Taxing Master should assess the validity of a bill of costs.
Given that a bill of costs may include both a solicitor's and a barrister's costs and allegations may be made that the barrister's cost are also excessive, what powers will the Law Society have in such circumstances? Will the Law Society simply review the solicitor's costs? If the client wants the barrister's cost reviewed, will he have to go to the Taxing Master who will not only look at the barrister's cost but also at the solicitor's costs. Perhaps the Minister will explain how that will operate. As I understand it, the Law Society are to conduct an investigation. What does that mean? Current procedure before the Taxing Master of the High Court is that a detailed bill is presented and the client or someone acting on behalf of the client may oppose the bill, raise issue with what is charged and point out what they regard as excessive. When that is done, the solicitor or a person appearing on behalf of the solicitor, a legal cost accountant, will defend the bill or explain the reason for the charges. Is that the type of hearing which will be held before the Law Society? What mechanism will be available to clients to make their case that a bill is excessive? Will the Law Society simply look at the bill having received a letter? After they have made a case, what mechanism will be available to the solicitor to respond? If the client can opt to have the Taxing Master, an expert in assessing bills of costs, make the decisions should not the solicitor also have the option to have the Taxing Master adjudicate on a bill of costs which is alleged to be excessive? If a solicitor is deprived of that, does it create any constitutional difficulties.
Subsection (5) could give rise to problems. If a solicitor sues a client for not paying fees, the client may bring the procedure to a halt by complaining to the Law Society that the charge is frivolous. Assuming the solicitor's firm did a large amount of legal work for a commercial organisation which will not pay the fees for work done and want to put off payment of the fees, and the solicitors' firm sues to recoup the fees due to them, just as any other business would for money owing to them, can the company then simply make a complaint to the Law Society and bring the court proceedings to a halt? That seems to be the implication of subsection 5. If that is the mechanism provided for under the Bill, is not that an interference by the Law Society with the jurisdiction exercised by the courts and the independence of the courts in adjudicating on litigation? Is that constitutional? Has the Minister received any advice on that?
We have been advised by the Attorney General's office on the constitutionality of the Bill and are assured that it is in accordance with the Constitution. Deputies will know that the law is not an exact science and the Attorney General does not always get it right. The High Court does not always get it right and is overruled by the Supreme Court from time to time. We seek advice on the constitutionality of proposals we are bringing forward. If we are told by the experts employed to advise us that the proposals are all right we go ahead.
Deputy Shatter asked about financial impositions on people who go to the Taxing Master. The matters raised there are more appropriate to my colleague, the Minister for Finance and I shall certainly pass on the Deputy's comments to him. If a complaint is thrown out by the Law Society a person can start all over again and go to the Taxing Master and if somebody goes to the Taxing Master the Law Society will not intervene as the Taxing Master is paramount.
Deputy Shatter also asked what criteria the Law Society will apply to assess whether a bill is excessive and pointed out that there is case law on the criteria that must apply to the Taxing Master. The Law Society is being given this function for the first time and it will now establish a committee to set out the ground rules on which it will operate. The ground rules will be subject to the requirement that what it is doing will be within the terms of the Constitution. It would also be bound by the rules of natural justice.
On whether a solicitor is entitled to take his case to the Taxing Master, that is not the position now. The client can request the solicitor to refer the bill to the Taxing Master. It would be odd to say the least of it, if a solicitor was allowed to go to the Taxing Master. If a client has a complaint about a solicitor's bill, he can challenge it before the Taxing Master. The solicitor is the person, who issued the bill, so why would the solicitor go to the Taxing Master to challenge his own bill? The term "adjudicate" was mentioned. Did the Deputy have in mind that a solicitor could get the Taxing Master to say that the bill is fair?
When the bill is challenged, the Taxing Master may say to the solicitor that it is not a fair bill. If a bill is presented by a solicitor to a client the client may raise what may very well be a valid and correct query, not pay the bill and take no further action.
The solicitor can sue.
The solicitor may sue him, but when he does, under this legislation the client may go to the Law Society. If the Law Society throws it out the client will go to the Taxing Master and, when the Taxing Master throws it out, the client will go off to the legal Ombudsman and five years later the solicitor will probably jump out of the window. If a query about a bill is raised the Taxing Master is uniquely qualified to say whether the query is valid. Just as the client can invoke the Taxing Master, would it not make sense that the solicitor should be able to also even if the Taxing Master takes the view the solicitor's bill is excessive?
A client has a year in which to go to the Taxing Master. If he does not go within a year he is in difficulties. There is some finality.
If after a year the client is in difficulty, the trouble is that only the solicitor can sue him and the client has no absolute right to go to the Taxing Master, but it is a way of ensuring that until the dispute is resolved, perhaps two or three years there is an accusation against the solicitor. At the moment a complaint can be made to the Law Society or to the Taxing Master by the client, and whether the limitation period is extended to three or to seven years, as my colleague suggests, an accusation which might affect someone's professional reputation is left there. The solicitor under this provision for example, cannot ask the Law Society to investigate the complaint and clear his name, because the client will not do anything about it. He cannot ask the Taxing Master to adjudicate on a bill and either confirm that it is correct or say what is wrong with it. Where an accusation is not followed through by the client, the solicitor should be able to take some action to resolve the matter earlier than the limitation period.
I have listened carefully and see a certain logic in what Deputy Shatter said. I take his point that we are proposing a new mechanism which has to mesh with the Taxing Master. I do not know if this is the appropriate place to make this change. The Minister will soon introduce legislation on courts and court officers involving substantial changes in the role of the Taxing Master and in the taxation system generally. Its purpose will be to reduce legal costs. Deputies will have a fair idea of what I am talking about if they look at the interim report produced by the working party set up by the Attorney General in 1991. Perhaps that would be the appropriate place to include this change.
Where there is a dispute, whether the solicitor or the client is right, instead of leaving something to fester because the client will not take the initiative to make the complaint to the Law Society or to the Taxing Master, there should be a mechanism for the solicitor to get the dispute sorted out. I have expressed my reservations about the Law Society dealing with this. If the Law Society is to have these powers, the solicitor should also be able to ask the relevant committee, if not the Taxing Master, to make a decision on the issue.
I will bring that point to the Minister's attention, because changes in the taxation system and in the role of the Taxing Master, will be included in the Court and Court Officers Bill. We could not deal with Deputy Mitchell's earlier amendment about wigs, but the Court and Court Officers Bill is the appropriate place to deal with that as well. I have discussed it with the Minister and even though I cannot talk about it without being out of order I intend to write to the Deputy on the matter.
We have spent over an hour on this very important section.
Does that mean that there will be wigs off the Green?
The Minister has not quite responded to one aspect of this.
We have spent an hour on this now and I want to move on. It is a long Bill.
These sections are probably the most important sections in tackling this problem. The Minister said that the Law Society committee will set out ground rules for operating this. It is essential to protect clients of solicitors as consumers, that there should not be secret ground rules worked out by a Law Society committee to apply to the adjudication of complaints. If solicitors against whom complaints are made are also to be treated fairly, complaints against them should not be adjudicated on using secret ground rules developed by a committee of five or six members of the Law Society who may have an insight into areas of law with which they are familiar but may have no insight into other areas. The section states that the society will make rules of procedure in relation to complaints. That is only about procedure, about how one will present a case. Nothing in this section would indicate the criteria or the ground rules that will be applied by the Law Society in making determinations on bills that are alleged to be excessive. The person who has complained about a solicitor, who feels badly done by having been charged excessively, will have no idea when they make the complaint what criteria will be applied by this committee in adjudicating on the complaint.
Subsection (7) should be amended — I raise the matter so that the Minister may think about it for Report Stage — to provide that the criteria or the ground rules should be published and made part of whatever order is to be made, either by the Minister or by the President of the High Court, so that clients who make complaints know the applicable criteria. Otherwise, we are in a Kafkaesque scenario, where the solicitor is on trial in front of an investigative committee of the Law Society, the client is involved in the trial seeking an adjudication in his or her favour, and neither the client nor the solicitor will know on what basis the adjudication will be made, what criteria are applicable or what will be relevant to say to the committee about the complaints. That is bizarre. It is a major flaw in this section and there is a similar flaw in section 8. This is neither a political nor an academic point but a serious issue.
The Law Society cannot act in an arbitrary way. It is subject to the law and to the rules of natural justice. The Deputy's request is reasonable and I shall consider it for Report Stage.
Question put and agreed to.
SECTION 10.
Question proposed: "That section 10 stand part of the Bill."
Section 10 (1) (c) provides that the society "at a time and place to be fixed by the Society" shall have the right to delivery "of all documents in the possession or under the control or within the procurement of the solicitor or his firm in connection with the matters to which the complaint relates". Will the Minister confirm that client confidentiality will not be breached as a result of such documents being transmitted in this way? Furthermore, does this conflict in any way with the Data Protection Act and, if so, would this legislation stand up?
I will look at the point about the Data Protection Act and communicate with the Deputy. I am assured that client confidentiality will not be breached.
Question put and agreed to.