Amendments Nos. 72 and 73 are consequential on amendment No. 71 and may be discussed together.
SECTION 25.
I move amendment No. 71:
In page 30, to delete lines 38 to 48 and substitute the following:
"(a) the enforcement of the attendance of witnesses and their examination on oath or otherwise,
(b) the compelling of the production of documents, and
(c) the compelling of the discovery under oath of documents,
and a summons signed by a member of the Disciplinary Tribunal may be substituted for and shall be equivalent to any formal procedure capable of being issued in an action for enforcing the attendance of witnesses and compelling the production and the discovery under oath of documents.".
The difference between these amendments and the provision in the section is that they give the tribunal the power to order discovery of documents. There is a doubt about the tribunal's power to order discovery arising from a recent High Court decision. The amendment is designed to put the matter beyond any doubt.
Amendment agreed to.
I move amendment No. 72:
In page 31, line 11, after "produce" to insert "or discover under oath".
Amendment agreed to.
I move amendment No. 73:
In page 31, lines 17 and 18, after "produced" to insert "or discovered under oath".
Amendment agreed to.
I want to draw the attention of members of the committee to a typographical error on page 31, section 25, lines 34 and 35. In paragraph (f), the words "the person shall be guilty of an offence" are to be realigned to the margin.
Section 25 as amended, agreed to.
NEW SECTION.
I move amendment No. 74:
In page 32, before section 26, but in Part III, to insert the following new section:
"26.—Fines imposed by a Court under any provision of this Act shall be indexed annually by reference to the Consumer Price Index and regulations setting out this index shall be published annually by the Minister and laid before both Houses of the Oireachtas not later than the 31st March in each calendar year.
The indexing of all kinds of fines and penalties should be automatic. If one sets down any fine, it will automatically be out of date next year. I presume this amendment will be accepted. I will say nothing until I hear otherwise.
Nobody would disagree with the principle put forward by Deputy Browne. However, I recall either the Minister or his colleague, the Minister for Justice, Deputy Geoghegan-Quinn, stating that there will be a review of penalties in the near future and that this issue will be, or is currently being, included for consideration in it. While supporting the principle I would prefer to wait for the final draft.
Looking at the text of the amendment, there seems to be a number of technical difficulties. For example, if there is deflation in the economy, the consumer price index could go down. Then we would automatically be reducing fines. As Deputy Fitzgerald said, the Minister announced that legislation is almost ready, which will provide for the updating and indexation of fines in separate legislation. The Minister will introduce it shortly and that will be the most appropriate place to deal with it. It will deal with fines for all types of offences. It would not be appropriate to anticipate the Minister's decision on fines for one part of the legislation. It will be dealt with by the Minister and announced in the Dáil shortly. It is based on a Law Reform Commission report and I can confirm that the legislation is almost ready.
Amendment, be leave, withdrawn.
NEW SECTION.
I move amendment No. 75:
In page 32, before section 26, but in Part IV, to insert the following new section:
26.—(1) The Society may make regulations (in this section referred to as "indemnity regulations") making provision for indemnity against losses arising from claims in respect of any description of civil liability incurred—
(a) by a solicitor arising from his practice as a solicitor, or
(b) by a partner, clerk or servant or former partner, clerk or servant of a solicitor arising from that solicitor's practice as a solicitor.
(2) For the purposes of providing such indemnity, indemnity regulations may do any one or more of the following, namely—
(a) authorise the Society to establish and maintain any indemnity fund or funds, including a mutual fund;
(b) authorise the Society to effect and maintain a general policy of indemnity insurance making provision for indemnity against losses arising from claims in respect of any description of civil liability, in which solicitors would be required to participate;
(c) require solicitors or any specified category of solicitors to effect and maintain a policy of indemnity insurance with insurers approved of by the Society or to participate or to continue to participate in a fund or funds established or maintained pursuant to paragraph (a) of this subsection or in any other fund approved of by the Society, including the mutual fund known as the “Solicitors Mutual Defence Fund Limited”.
(3) The Society may, without prejudice to any of their other powers, carry into effect any arrangements which they consider necessary or expedient for the purpose of ensuring that there is indemnity against losses pursuant to this section.
(4) Without prejudice to the generality of subsections (1), (2) or (3) of this section, indemnity regulations may—
(a) specify terms and conditions on which indemnity against losses is to be available to solicitors from any indemnity fund or funds or under any general policy of indemnity insurance or under any policy of indemnity insurance with insurers approved of by the Society and any circumstances in which the right to such indemnity is to be excluded or modified;
(b) specify minimum levels of cover for indemnity against losses arising from claims or different classes of claims;
(c) provide for the management, administration and protection of any fund maintained under subsection (2) of this section and require solicitors or any specified category of solicitors to make payments to any such fund;
(d) require that solicitors or any specified category of solicitors make payments by way of premium in respect of any general policy of indemnity insurance maintained by the Society by virtue of subsection(2) of this section;
(e) specify conditions which indemnity cover shall satisfy for the purposes of subsection(2) of this section;
(f) provide for the determination by the management of any fund maintained by the Society under subsection (2) of this section of the contribution payable by solicitors or any specified category of solicitors in respect of each description of civil liability for which cover is provided by such funds;
(g) specify the circumstances in which, where a solicitor for whom indemnity cover is provided has failed to comply with the indemnity regulations or with the terms and conditions of such indemnity cover, proceedings for the recovery of sums paid by way of indemnity against losses in respect of that solicitor may be taken against him by the providers of such indemnity cover or by the Society, as may be appropriate;
(h) specify circumstances in which any solicitor or specified category of solicitor may be exempted from the indemnity regulations;
(i) enable the Society to take such steps as they think necessary or expedient to ascertain whether or not the indemnity regulations are being complied with;
(j) include arrangements for the submission to arbitration of any dispute arising between a solicitor and his client in relation to any claim or claims by the client against the solicitor in respect of civil liability to which the indemnity regulations apply by reason of the provisions of this section, where both the solicitor and the client have agreed in writing to submit the dispute to arbitration;
(k) specify the manner in which solicitors or any specified category of solicitors shall bring their compliance with, or exemption from, the indemnity regulations to the notice of their clients or the Society; and
(l) include incidental, procedural or supplementary provisions in relation to any of the matters set out in paragraphs (a) to (k) of this subsection.
(5) Notwithstanding the foregoing provisions of this section, the Minister may direct the Society to make or amend indemnity regulations.
(6) It shall be misconduct for a solicitor to whom indemnity regulations apply knowingly to make a false or misleading declaration of a material nature for the purpose of obtaining indemnity against losses, arising from claims in respect of any description of civil liability incurred by him.
Amendment No. 75 is the insertion of a new section, section 26, which deals with the requirement of solicitors to take out insurance against possible negligence claims. It has been deemed necessary to amend the provisions of the original section 26 to ensure the tightest possible control on the law requirements relating to indemnity insurance to be maintained by solicitors. The difference between the section in the Bill and the proposed new section are essentially drafting in nature. However, because of the number of amendments involved, the draftsmen advise that it would be best to redraft the section in its entirety. The purpose of this section is to empower the Law Society to require solicitors to have indemnity cover against civil liability actions taken against them, such as an action for negligence.
The section essentially provides three methods of providing indemnity cover that can be a combination of any or all of these three methods. The Law Society will be itself able to establish a mutual fund and empowered to negotiate a master policy with insurers on behalf of the profession. They could require solicitors to take out indemnity insurance with authorised insurance companies.
There is a new provision in the amended section — subsection (6) — which provides that it should be misconduct for a solicitor to make a false declaration to obtain indemnity cover.
Amendment agreed to.
Section 26 deleted.