Select Committee on Legislation and Security debate -
Tuesday, 10 May 1994

SECTION 17.

Ms O'Donnell

I move amendment No. 57:

In page 21, line 49, to delete "advise".

This subsection relates to the powers of the Disciplinary Tribunal when there has been misconduct on the part of a solicitor. The amendment seeks to delete the word "advise" because it seems inappropriate for the tribunal when there has been misconduct on the part of a solicitor. It would be inappropriate and weak for the tribunal to merely "advise" a solicitor. The language is more direct further on in section 17 when it states that the tribunal may "direct that the respondent solicitor shall pay a sum not exceeding £1,000, as restitution". In paragraph (a) the word "advise" lacks vigour when the tribunal becomes aware of misconduct.

Mr. Browne (Carlow-Kilkenny)

This is self-explanatory. The word "advise" is a harmless word which someone in a benign mood thought up.

Mr. L. Fitzgerald

Instead of deleting the word "advise", it might help to leave it in. If I decided to propose an amendment, I would propose to add the word "and" after the word "advise", so that the paragraph would read: "to advise, and admonish or censure the respondent solicitor". The respondent solicitor might need advice as well as admonishment or censure. It would be worthwhile to discuss this issue, although I accept the point made by Deputy O'Donnell. The wording suggests there is an option in paragraph (a) because it states that "they shall have power, by order, to do one or more of the following things, namely — to advise, admonish or censure". If that is the case, I agree with Deputy O'Donnell because advice on its own is too soft if there has been a misdemeanour. On the other hand, I suggest retaining the word "advice" and linking with the words ‘admonish" or "censure".

Mr. O'Dea

If one looks at this section as a whole, one will see that when the Disciplinary Tribunal investigates a case and misconduct is found, it can do one of two things. It can refer the matter to the High Court, and it is clear from the section that this is for the most serious cases of misconduct. We are introducing a new provision, subsection (9) of the section, which enables the tribunal to do certain things. I envisage, and this is explicit in the section, that these would be for the less serious cases of misconduct where, instead of handing them over to the High Court with its potential severe penalties, that it would do one or more of these things itself. I take Deputy O'Donnells and Deputy L. Fitzgerald's point that the word "advise" on its own may seem a little weak. Perhaps we could solve this by asking the Chairman if he is prepared to accept Deputy Fitzgerald's suggestion by way of an oral amendment.

Mr. L. Fitzgerald

I propose that the word "and" be inserted between "advise" and "admonish".

Ms O'Donnell

The comma should also be removed because it looks as if "advise" itself would be enough and it would be a shame if that option was chosen rather than admonish.

Chairman

Could Deputy Fitzgerald repeat that?

Mr. L. Fitzgerald

To "advise and admonish or censor the respondent solicitor."

Amendment to amendment No. 57 agreed to.

Chairman

Amendments Nos. 58 and 59 are related and may be discussed together. Is that agreed? Agreed.

Mr. Browne (Carlow-Kilkenny)

I move amendment No. 58:

In page 21, line 52, to delete "£1,000" and substitute "£5,000".

This is to discourage solicitors from misbehaving. In many cases a fine of £1,000 may not be much of a deterrent and there must be punishment for misconduct.

Ms O'Donnell

I welcome the Minister's response in relation to the magnitude of fines and how he reached the figure of £1,000. Is that figure related to the summary nature? Is it not possible in law to introduce a higher fine? This is a problem which we encountered earlier in relation to fines and the appropriateness of levels set. I understand the Minister agreed to look at the area of fines on Report Stage. I take the point that we must look at how serious and grave penalties are and whether they fit the misdemeanour.

Mr. O'Dea

I will look at the question of fines and penalties in so far as the legislation states that they be imposed by the High Court. We must look at the question of contempt of court to see if non-compliance with some of these orders, which draw fines of £1,000 on summary conviction, would also constitute contempt of court. In this situation we are dealing with the exercise of power by the tribunal in what I would regard as less serious cases of misconduct.

The advice I got was that in this situation under subsection (9), the Disciplinary Tribunal will exercise limited powers of a judicial nature. I am advised that it would not be appropriate, for legal reasons, to impose a penalty of more than £1,000. I got this advice from the Attorney General's Office. In this subsection, one will notice that the tribunal when exercising its own powers and when it does not pass the matter on to the High Court for the purpose of imposing a penalty, but when it decides to impose its own penalty under subsection (9), it may do one or more of the following: under paragraph (a), it may advise and admonish or censor; under paragraph (b), it may direct payment of up to £1,000; and it may also direct payment of up to £1,000 under paragraph (c). This could amount to £2,000.

Ms O'Donnell

Can it be cumulative?

Mr. O'Dea

It can be cumulative, but for legal reasons in relation to the tribunal exercising limited powers of a judicial nature, I cannot go over £1,000. The tribunal may also do other things. Someone may have to pay £2,000 as a result of an order under subsection (9) by the Disciplinary Tribunal. I will look at the question of penalties imposed by courts where this intersects with contempt of court.

Amendment, by leave, withdrawn.

Amendment No. 59 not moved.

Mr. O'Dea

I move amendment No. 60:

In page 22, lines 38 to 40, to delete "may confirm the said sanction or impose, by order, a different sanction on the respondent solicitor" and substitute the following:

"may—

(i) confirm the sanction imposed by the Disciplinary Tribunal on the respondent solicitor, or

(ii) in relation to the respondent solicitor, do one or more of the things specified in section 8 (1) (a) (as substituted by the Solicitors (Amendment) Act, 1994) of this Act.".

This is a drafting change which describes the powers of the High Court more clearly.

Amendment agreed to.

Mr. Browne (Carlow-Kilkenny)

I move amendment No. 61:

In page 22, lines 51 and 52, to delete "has not complied, or refuses to comply, with the terms of" and substitute "refuses, neglects or otherwise fails to comply with".

The amendment relates to the use of emphatic English. "Refuses, neglects or otherwise fails to comply with", covers complying with. I am sure the Minister got advice as to whether this makes any difference. To facilitate discussion on amendments, I will not say any more.

Mr. O'Dea

On balance the language is probably better in the amendment.

Amendment agreed to.

Ms O'Donnell

I move amendment No. 62:

In page 22, line 54, after "section" to insert "(to an extent that it has not been rescinded or varied by the High Court consequent on an appeal to the High Court under subsection (11) of this section)".

This amendment recognises the fact that the matter could have been appealed to the High Court and it clarifies that.

Mr. O'Dea

I accept the amendment.

Amendment agreed to.

Ms. O'Donnell

I move amendment No. 63:

In page 23, between lines 10 and 11, to insert the following:

"(17) (a) Where, on completion of an inquiry under subsection (3) of this section, the Disciplinary Tribunal find that there has been no misconduct on the part of the respondent solicitor and, in addition, are satisfied that the evidence adduced at such inquiry was false or misleading in a material respect that the application which gave rise to the inquiry could not, on that account, have been made in good faith, the Disciplinary Tribunal shall have power, by order, to direct that the society or other person whose application under subsection (1) of this section gave rise to such inquiry pay to the respondent solicitor a sum, not exceeding £1,000, towards the cost reasonably incurred by the respondent solicitor in relation to his participation in such inquiry.

(b) The Society or other person in respect of whom an order has been made by the Disciplinary Tribunal under paragraph (b) of this subsection, may within a period of 21 days from the date of receipt by him of notification in writing of such order, appeal to the High Court to rescind or vary the order in whole or in part and the Court may, on hearing such appeal—

(i) rescind of vary the order, or

(ii) confirm that it was proper for the Disciplinary Tribunal to make the order.

(c) If the Society or other person refuses, neglects or otherwise fails to comply with an order made under paragraph (a) of this subsection (to the extent that such order has not been rescinded or varied by the High Court consequent on an appeal to the Court under paragraph (b) of this subsection), the respondent solicitor may recover the sum or any outstanding part of the sum in question as a liquidated debt".

This amendment raises the spectre of, on the completion of an inquiry under subsection (3), the Disciplinary Tribunal finds that there has been no misconduct and the evidence which came out during the course of the inquiry shows that the process was based on lies, perjury or mala fides on the part of the complainant. It is designed to discourage unfounded applications to the Disciplinary Tribunal based on false or misleading evidence. It is not geared to affect bona fide applicants.

Where the Disciplinary Tribunal is satisfied that evidence brought before it by an applicant, either the society or another person, was false or misleading in a material respect and that the application could not have been made in good faith, this amendment would allow the tribunal to direct the applicant to pay up to £1,000. It introduces a balance and recognises that in some cases we are not only dealing with rogue solicitors or solicitors found guilty of misconduct. In some cases one may find applicants, complainants or litigants acting in bad faith and with malicious intent against their solicitor.

This direction as set out in the amendment could be appealed to the High Court and the new subsection balances subsections (9) (b) and (c) in page 21 where a solicitor may be directed to pay up to £1,000 where misconduct has been found. It reintroduces an element of balance into the legislation. We are introducing procedures which tilt the basis of the tribunal, inquiry and the investigation of complaints toward the consumer of legal services. At the same time there should be some recognition that in rare occasions one finds a complainant or a litigant who is acting in bad faith. I will be interested in the Minister's response and whether he believes this amendment is reasonable.

Mr. E. Ryan

I support this amendment because it introduces a balance. I would go further than £1,000, I believe it should be increased to £5,000. A solicitor accused — or whose practice is accused of wrongdoing — will need good legal counsel and many counsel would not even look at the brief for £1,000. This figure should be increased because one would rule out vexatious accusations against solicitors. People who complain about solicitors may be right or wrong, but often cases may be vexatious and there should be balance.

Ms O'Donnell

There is a procedure at the earlier stages for vetting vexatious cases by the Law Society but this is dealing with a case which has gone all the way. It has gone to the Disciplinary Tribunal which has limited judicial powers. Getting to this advanced stage would mean a solicitor suffering a certain amount of shame and ignominy. If it is shown in the course of the tribunal's deliveries and investigations that there has been mala fides it is fair that the legislation be balanced to recognise and to address the terrible injustice to the good name of the solicitor involved. I have also allowed in the section the facility to apply to appeal that order to the High Court so it introduces on element of fairness and balance to the legislation.

Mr. L. Fitzgerald

I agree with Deputy O'Donnell. It is fair that if we impose penalties on one side, we accommodate the possibility of a complainant being vexatious, awkward and difficult on the other. Balance and fairness are important, they are the very heart of legislation. When we are bringing in legislation like this I support the idea of ensuring that we do whatever is necessary to discourage trouble makers and vexatious complainants. Deputy Ryan made a point that perhaps the figure is not sufficient. I am not as well versed in legal affairs as some people here but whatever the figure is, it should be sufficient to discourage vexatious complainants on the one hand and on the other give reasonable retribution to the offended party. The reputation of a legal person and his or her good standing is extremely important and if a complainant does damage to the reputation of that person, retribution should be seen to be adequate, so this should be looked at very carefully. I appeal to the Minister to accept the principle of the amendment, whatever about its details.

Mr. Callely

I can see the benefit in Deputy O'Donnell's amendment and the reason one would like to incorporate it in the Bill. However, I also see the lay person's concern in relation to an amendment of this nature, particularly a person who would not have the best advice or opinion available. They might feel browbeaten by the legal profession who could play a certain amount of politics with the individual. They might feel members of the profession would stand up for one another, protect one another and maybe discourage a person from taking a case to the tribunal in the first place. I am concerned that a person who wanted to take a case to the tribunal might feel that it is not worth the energy or effort because the professionals would stand by one another and would protect each other. I am interested to see what the Minister has to say.

Mr. Browne (Carlow-Kilkenny)

A client might genuinely take a solicitor before a tribunal but because of lack of information — often information is given wrongly — there may be no case against a solicitor. I am worried about the whole question of finding the solicitor innocent. It need not follow that the person taking that solicitor before the tribunal was making a vexatious claim. Is there a difference in the way that person is treated?

Mr. L. Fitzgerald

It might appear from the contribution I made in support of Deputy O'Donnell and Deputy Ryan that I support a situation where innocent ordinary citizens would be browbeaten into not bringing complaints against rogue solicitors. I do not support that and I know Deputy O'Donnell feels the same. I could not imagine Deputy Ryan supporting that either. I am not trying to create a triumvirate here for the Minister but I assume that on the basic literal interpretation of the wording of the amendment I was supporting a situation where, a tribunal having made a decision, it was subsequently established that the complaint was of a vexatious nature, not founded firmly on facts. I hope that was the basis of what I was supporting. If it was, I stand by what I said initially. If there is a case for concern as to the acceptability or otherwise of the innocence of the complainant well then we are in a different area. I assumed I was supporting a case where a complainant's case has been established by the tribunal, where certain additional evidence became available and it was established subsequently that a wrong decision was made and that the complaint was vexatious. If that is the case, we have to put a balance into the Bill.

Ms O'Donnell

The terms of the amendment read ". . . on completion of an inquiry under subsection (3) of the section, the Disciplinary Tribunal find that there has been no misconduct. . ." That is a finding of fact, there has been no misconduct on the part of the solicitor. Again, it reads: ". . . and in addition, are satisfied that the evidence adduced at such inquiry was false or misleading . . ." That would be another finding of fact, ". . .that the application which gave rise to the inquiry could not, on the basis of the facts as discovered during the course of the tribunal, have been made in good faith . . ." In other words, recompense is to be made to the solicitor if it is clear that blatant lies were told and that evidence was formed in bad faith and given to the tribunal in bad faith. It is not to put off people going to the Disciplinary Tribunal. It is based on the findings of that tribunal when there has been as a matter of fact a finding that there was no misconduct and where in addition there has been a finding that there was false and misleading evidence given in bad faith. In that case there should be a remedy to address by way of sanction the loss of a good name of the solicitor and in some way to make retribution for the very serious damage which would definitely have been caused to the solicitor brought in bad faith before the tribunal. This would apply not only against the individual applicant, but also against the Law Society if it, in bad faith, brought such proceedings against a solicitor.

Mr. E. Ryan

I am not talking about some ordinary person, I am talking, as both the other speakers said, about some false or misleading material fact. I am talking about proving that the complainant knowingly gave false information in bad faith. Serious damage could be done to a solicitor's practice. There should be a fine for that and in that case only, not to try to stop somebody bringing an action against a solicitor. I am not in favour of that, but, as Deputy O'Donnell and Deputy Fitzgerald said, there should be something there to stop people damaging the good name of a solicitor's practice.

Mr. Browne (Carlow-Kilkenny)

I am in favour of this provision in the extreme case where bad faith has been proven. The only thing that worries me is that it is possible to go into court and have a judge give a decision. I had the experience of going before two judges who heard the same case. One of them got it right, the other got it wrong and was twice as arrogant as the man who was right. What is to be done about a case that is proven? I am worried that a person who did not follow the instructions might come up with a case that was wrong. It could easily be said of that person that he or she should have known that the facts given were not right when that might not be the case. At the same time it could be a very serious imposition to put on people. The tribunal could find that the case was not sustainable and that they should have known this. We should all know lots of things, that we should drive within the speed limits and so on, but often it does not work that way in reality. While I do not defend people who try to take anybody's character, whether they are solicitors or TDs, one could cause awful injury to innocent people who might have been wrong in what they were saying. To prove that it was vexatious and done with malice might be difficult.

Mr. O'Dea

The Disciplinary Tribunal has been in existence for quite some time. It was dealt with by legislation in 1954 as amended in 1960, and the Legislature in 1954 and in 1960 did not think it worthwhile to put in a provision like this. Since the Disciplinary Tribunal was first established there has not been any complaint or difficulty with unfounded applications or false evidence of this nature. The problem is that we have to find a balance. The Disciplinary Tribunal deals with misconduct which can often have the most profound consequences on clients of the legal profession. I do not want to deter any person who might have a genuine complaint from bringing that complaint by the threat that if they fail it could cost them £1,000. At present it does not cost anything to go to the Disciplinary Tribunal. The threat of having to pay £1,000 for some people — perhaps not for Deputy Callely — might be an awesome prospect.

Mr. Callely

That is why I asked about it.

Mr. O'Dea

I do not want to tilt the balance too much against the complainant. I do not want individuals to be deterred from bringing what would otherwise be a genuine complaint because of a threat hanging over their head.

Section 25 of the Bill makes it an offence for any witness before the tribunal to give false or misleading evidence to it, or to do anything which obstructs or hinders the tribunal in carrying out its functions. The penalties that can be incurred by a person who gives false or misleading evidence before a tribunal under section 25 are quite severe. On summary conviction they are 12 months' imprisonment or a fine of £1,000, or both. On conviction on indictment, if the Director of Public Prosecutions wants to take a conviction to indictment, they are up to two year's imprisonment or a fine of £10,000, or both.

There are substantial sanctions in section 25 for a person who deliberately gives false or misleading information to the Disciplinary Tribunal. I will consider the arguments made but I do not want to tilt the balance unnecessarily against the client.

Ms O'Donnell

I appreciate the points the Minister made and it is important that the balance should not be tilted in such a way as to deter a complainant. With regard to the cases before the tribunal to date, this legislation considerably opens up access to a complaints procedure and the Disciplinary Tribunal. It will rightly spread like wildfire through the community, but it might encourage litigation against solicitors and, perhaps, encourage people who are dissatisfied or have a personal grudge against a solicitor to make an unfounded complaint of misconduct.

There is a danger in this and we are talking about the lives and livelihoods of solicitors who might be totally innocent of the charges. If it is found by the tribunal that the allegations are completely unfounded or even malicious, surely the Disciplinary Tribunal should have jurisdiction to address that at the time, rather than wait for separate proceedings under section 25. I would be grateful if the Minister would consider the matter for Report Stage. I will not press the matter but I wished to raise the danger of malicious action by an embittered person. We have to be fair to solicitors on this issue.

Mr. L. Fitzgerald

I enthusiastically endorsed this amendment because as a member of Dublin City Council I am only to well aware of the "rent-a-witness" syndrome that has swept across this city in recent years. People have sometimes created multiple injuries and there seems to be a circle — not the golden circle we talk of sometimes — of people who operate in collusion successfully bringing cases against local authorities and other agencies.

Against that background I agree with Deputy O'Donnell when she refers to the degree of awareness that will be brought about in that circle. It causes concern that that circle would see a new agenda since the law agents of local authorities and other local agencies are working in closer co-operation to halt the gallop of these successful colluders. They might turn their attentions to areas such as this, not out of any great sympathy for solicitors but merely in the interests of fairness and balance.

Mr. Callely

I welcome the Minister's clarification in regard to his concerns, which I share, that it should be free and open for a person to avail of the services of the tribunal. I am a little surprised at Deputy Fitzgerald's comments. We are all aware of the increase in the "rent-a-witness" syndrome and in fraud by certain individuals and their wider families. Deputy Fitzgerald referred to Dublin City Council of which he and I are members, it had to set up a new unit to deal with the escalating number of claims.

I congratulate the Law Society in taking out the rogue solicitors who were pursuing these claims on behalf of the fraudulent applicants. Not so long ago a newspaper report mentioned a solicitor in the city who had processed nearly 80 per cent of these claims, knowing they were false and misleading. We should not lose sight of that when Deputy Fitzgerald refers to the large increase in such claims. There is a lot of controversy in the manner in which solicitors are currently advertising.

Chairman

We have an amendment before us Deputy so please do not broaden the debate.

Mr. Callely

Deputy Fitzgerald mentioned it and I want to bring the discussion back to the issue. I support the Minister and it is right that people who avail of the tribunal should not be concerned or threatened that if they do so it may cost them money.

Mr O'Donnell

Even if they are lying or are found to have lied?

Mr. Callely

That does not enter into it at this stage.

Amendment, by leave, withdrawn.

Section 17, as amended, agreed to.