Select Committee on Legislation and Security debate -
Wednesday, 27 Apr 1994

SECTION 13.

Mr. G. Mitchell

I move amendment No. 32:

In page 14, subsection (1), line 39, to delete "may" and substitute "shall".

Subsection (1) reads:

Where civil proceedings or criminal proceedings are instituted in connection with a matter that is the subject of a complaint under section 8 or 9 of this Act and have not been finally determined, and the Society consider that in those proceedings it is likely that the court will determine an issue relevant to or concerning such complaint, the Society may adjourn their investigation . . .

Where the society sees that the High Court is likely to determine an issue relevant to or concerning such a complaint, it should not pre-empt the High Court and it should not continue to carry out inquiries in parallel if it knows that the High Court is to come to a determination. The word "may" gives the option of continuing although the High Court may be in the process of making a determination of which the society would be aware. I would not "go to the wall" with this amendment but I would like the Minister's view on the point.

Mr. O'Dea

I am not greatly opposed to this amendment in principle because in the vast majority of cases the only reasonable course for the society will be to suspend the investigation. However, the wording states, "it is likely" and, therefore, not certain that the issue will be determined in the subsequent legal proceedings. It could happen that the legal proceedings are likely to be protracted and in that case justice delayed would be justice denied. One could for an unreasonable and unconscionable length of time cut off a person's access to the remedy that can be given by the Law Society if it is obliged to suspend its proceedings only on the basis that it is likely that they will be determined by the court.

There is no certainty involved and in the small minority of cases where the proceedings are likely to be protracted it would not be in favour of the consumer. I am anxious to make this legislation as consumer-oriented as possible and to change "may" to "shall" would be anti-consumer rather than pro-consumer.

Amendment, by leave, withdrawn.

Section No. 13 agreed to.

Section 14 agreed to.

NEW SECTION.

Chairman

Amendment No. 33 was discussed with amendment No. 9. Is the amendment being pressed?

In page 15, before section 15, to insert the following new section:

"15.—(1) The Minister shall, by regulation, establish an Office of Solicitors Ombudsman, who shall be independent of the professions and the administrators of law in Ireland.

(2) The Solicitors Ombudsman shall be entitled to investigate complaints from members of the public with regard to the conduct of any solicitor in the delivery of a legal service in any particular matter or in general.

(3) The Solicitors Ombudsman shall be entitled to have access to all or any documents concerning the investigation of any matter under subsection (2) from any solicitor of from any third party concerned and shall return those documents to the person entitled to custody on the completion of the investigation.

(4) The Solicitors Ombudsman shall be entitled to direct the legal professions or court officers to act in a particular manner to resolve a complaint of a member of the public whether the complaint be in a particular or general manner, save that no such direction shall act, in any way, to usurp the functions of the Courts to judicially determine any issue relating to a matter pending before any court.

(5) The Minister shall, in making regulations herein, consult with the Law Society.

(6) The Minister may require the Law Society to make a contribution towards defraying the costs of maintaining the Office of Solicitors Ombudsman.

(7) A person appointed as a Solicitors Ombudsman shall not be or have been a practising solicitor or barrister and shall be independent in the exercise of his functions.

(8) The Solicitors Ombudsman shall present a yearly report on the working of his office to the Oireachtas.".

Amendment, by leave, withdrawn.