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Special Committee Solicitors (Amendment) Bill, 1991 debate -
Thursday, 9 Jul 1992

SECTION 8 (Resumed)

Debate resumed on amendment No. 26:
In page 8, subsection (2) (a), line 14, after "any" to insert "subsequent".

This concerns the position regarding a solicitor's costs and the effect on those in connection with their reference to the Law Society. It would be reasonable for the benefit of any non-legal Members of the Committee, if there are any here at all, to explain in some brief detail the operation of solicitor's costs and to say that the whole issue of a solicitor's costs is a very skillful and complex matter in itself. There are specialist professionals known as cost drawers who spend their lives doing this and nothing but this. They are not solicitors. They are not even lawyers. They are called cost drawers or legal accountants. The fancy new name is legal accountants but when I was growing up they were called cost drawers. That is a profession and a trade in itself. They become apprenticed over a period of years and then they practice. I presume there are professional firms in practice up and down the country but they are certainly in Dublin. I am not sure whether they are located in rural areas. They are specialists in the matter of solicitor's costs. I have been in practice as a solicitor now for some 40 years and I know very little about the complexities of solicitor's costs. I know a certain amount but not very much. Anything of substance that requires to be done is referred to one of these cost drawers' firms, who are independent people. They have offices down on the quays. Some of them are quite substantial firms having many partners in them. They do nothing else but assess solicitor's costs and arrange for them to be taxed by a taxing master. We are talking, on the amendments in connection with this section, about the giving of a decision by the Law Society on a reference as to what they will or will not do about a solicitor's bill of costs. I think it is fair to say that no member of the Law Society would take umbrage if I said that in all probability their knowledge of the intricacies of solicitors' costs is no greater than mine is and that they would have very little expertise in the detail of solicitors' costs. I am sure they would agree with that proposition. At least, I think they would.

For the purpose of the assessment of solicitors' costs there are court functionaries, civil servants known as taxing masters — I think there used to be only one in my early days but that there are more than one now — and they sit in the Four Courts in a kind of judicial way and matters of solicitors' costs are argued before them. They are paid by the State. They are independent, objective people. They are not practising lawyers. They are masters of the Court. That is a lesser role than a judge but nonetheless they exercise a sort of judicial function. Any solicitor's bill of costs can be sent there and that is the Taxing Master's job. That is his only job. He sits there all day examining solicitor's bills of costs and reducing them or varying them in accordance with his expertise. It is the cost drawers who would appear before him and argue about the bill and all the rest of it. They are independent people and they are also, as you will understand, highly skilled people in the matter of solicitors' costs because they deal with it all the time. They deal with nothing else but solicitors' costs. If we are setting out in legislation a position where solicitors' costs require to be assessed and examined and if necessary reduced in certain circumstances when there is already an established procedure there for doing that by experts, by objective people, by court officials appointed by the Government who deal with this all the time and who know, to the penny, what is right for any particular item and what is too much, why are we ignoring in this section the existence of the taxing masters who are the people to tax solicitors' costs and reduce them and deal with them as necessary as they are authorised to do. They are the specialist people to do it. We are purporting to give that function to the Law Society instead. The Law Society council or committees of the council who would be dealing with this are just ordinary practising solicitors like myself, many of them perhaps not in practice as long; and as regards their knowledge of the intricacies of costs or what is a correct cost or what is a fair figure to apply, quite frankly, I would not regard, myself, as being up to doing it. I would strongly suspect that they would not be too happy about doing it either. Where is the necessity to have them to do it anyway when the whole procedure and the whole system is already there in place. If the Minister were to bring in a section providing that, when a complaint is made to the Law Society and the adequacy or excessiveness of costs are called into question, the Law Society may then take that bill and refer it down to the Taxing Master to be examined, assessed and reduced if it is the Taxing Master's decision to do so, that would be a very understandable thing to do. I would fully support that position. If the Law Society has doubts or if anybody queries the costs then the Law Society who are examining the complaint may refer it down to the Taxing Master, the expert, the specialist who is skilled in it in the way that no council member of the Law Society would be. A further aspect of this matter, touched on by Deputy Shatter, is that the whole issue is left rather loose. Is this to be a usurping of the function of the Taxing Master — that the Law Society make a decision on the solicitors' costs — or is there to be an appeal from the Law Society's decision on the cost question to the Taxing Master or indeed to anywhere else. That is not very clear. There is an appeal from a decision of the Taxing Master to the High Court or the Circuit Court in the case of county registrars who also act as taxing masters. The only appeal from a section 8 position so far as costs are concerned, or indeed anything else, arises under section 11. Section 11 deals with appeals to the High Court against determination.

Rather strangely the only right of appeal given is by the solicitor. A solicitor is given a right of appeal and I wonder about that too. Say, for example, a client or an interested person makes a complaint and the Law Society make a decision that the bill, let us say that the bill was £1,000, was to be reduced to £750. Under section 11 the solicitor can appeal that. The client does not seem to be given any right of appeal as far as I can see, unless I am missing something. A client may say £750 is far too high, it should only be £500 or £200 and yet there seems to be no second forum to go to on appeal there. An appeal, let it be said, from a body that has no expertise in the area of assessment of taxation. It goes on to do a further strange thing. It says that, if the matter comes to the Law Society and they make a determination on a cost question and if the matter then goes to taxation or is referred to taxation, the figure that goes for taxation, the starting point is the Law Society's determination rather than the original bill. That is totally unacceptable. I would like to know if the Law Society have indicated their readiness and capabilities of dealing adequately with this assessment of costs. Be that as it may, if the inexpert or non-specialist body in this matter of solicitors costs makes a determination and the matter then goes on to the experts why should the starting point for that procedure be the Law Society determination. Why should the bill not go in its entirety as furnished and let the specialist, the independent, judicial, objective person who is a specialist in costs and as far as I know by no means generous, or certainly not over-generous, to solicitors deal with it. I suppose "fair" would be the best description of the Taxing Master's approach to solicitors' bills broadly speaking. Why not leave it to him to do his job and to exercise his speciality rather than put him in the position of having a pre-determined result as the starting point for his deliberations. I do not see the reality of it and that is the propose of my amendment.

I have listened to Deputy Taylor's view and whilst he is seeking to move an amendment, his contribution is substantially, if not entirely, attacking the whole basis and idea of subsection (8) with regard to the power of the Law Society to regulate or deal with the question of excessive charges for services. What Deputy Taylor is saying is far beyond what his amendment is suggesting.

I support the idea of the Law Society having the power to regulate over-charging of solicitors and being able to take steps as provided for in this Bill and under this section. Some amusement was expressed to me after yesterday's meeting about the fact that I seemed to be on one day hot and on other days cold either on solicitors or the Law Society. The way I approach this Bill, as I said on Second Stage, is that I approach it from the point of view of the general public and ensuring that at the end of the day they get a service from the legal profession or the solicitors that they are entitled to and for which they pay good money. For that reason I am not too happy with some of the ideas of the Law Society in attempting to cut back on the provisions of this Bill, but I am more in support of the Law Society when it is looking for more adequate police powers for itself to deal with the profession. I believe we are talking about giving the Society powers to deal with a small number of solicitors in this area. I have no hesitation in saying that over-charging in many instances of this type of situation amounts to an act of gross professional misconduct, if not thievery of the highest order. It must be seen as that. Some of the methods in which solicitors level fees and extract them from clients amounts, in my mind to thievery if not thuggery. The Law Society wants and should have the power to deal with those people. Deputy Taylor suggests that there are professionals out there for the normal run of proper business between solicitors and their clients and their disputes over the taxation and the levelling of costs. It is a fact that seems to escape some members of the committee, that the Law Society employs six or eight accountants who work full-time for them, travelling from firm to firm around the country examining their books, looking to see how they run and keep their accounts. They are doing that because they want to continue a role of being policers of the profession. That is the way the Bill is structured and that is the way we should be going. I see no difficulty in their employing the professional services of cost drawers if and whenever the situation arises. This section and these powers are primarily designed to deal with the blatant case of gross excessive professional fees. The minutae about the fee charged for the stamping of a document or the settling of a draft deed or the work entailed in lodging papers or going to court all of which comprises 95 per cent of a statement of account do not cause difficulties. They are about small sums of money. It is the big one that is struck in at the end or at the top of the Bill —"fee for professional services rendered"— and which is calculated at a percentage or is picked out of a cloud and is utterly unrelated to the scale of work that a solicitor has to undertake and the complexities of what was involved etc., that the Society wants to deal with and should be entitled to. It should be able to say, looking straight at a bill, that that it is outrageous. I have met people many times in advice centres who have, for run of the mill stuff, been charged thousands of pounds. When settling a personal injuries award that relates to the gravity of the injury the person suffered and has nothing to do with the complexities of the case, the solicitor says I take 10 per cent, that is my normal fee. That is 10 per cent of a horrendous amount of money related to the injury and not related to the work done. That is the kind of thing the Society wants to deal with and will be dealing with in the circumstances. That carry-on by solicitors, which I have met time and again in practice has to be dealt with. The Society wants this power and they should have it. They should be in a position to deal with these people on the basis, not that they are getting into trading on figures on behalf of people, but that they are getting into an area that is and must be seen by us as a committee to be encroaching on gross professional misconduct. The case of the highway robber in the profession has got to be dealt with.

I would like to remind Members that we had a long discussion on this amendment yesterday. I am anxious to avoid repetition and would like to bring it to some conclusion.

I will not be too long. The reason I am contributing at this stage is that I missed the sessions on Tuesday and yesterday because Deputies Dennehy, O'Donoghue and myself were involved in the British-Irish Interparliamentary Body talks in Edinburgh. I have evidence that there is widespread abuse going on here. Basically, I welcome any move by the Law Society to monitor and control the type of activities Deputy McCartan has set out. That is the area of civil damages claims being awarded by the courts, damages being awarded with costs where, subsequently, the client never sees the cheque issued by the insurance company but gets a cheque from his solicitor. He is never made aware of what his rights are and what costs were given to his solicitor when a deduction is made. I have had many examples of this and I have passed them on to the Law Society from time to time. In fairness to the Society, they have tried to control this type of activity. I would say that in recent years there has been an improvement in the level of monitoring by the Law Society on this type of activity. They need more powers and I believe that they are being given the powers here. What was happening was that the client was getting a cheque, but if he got £20,000 damages, he ended up with £17,000 and when he asked why he was only getting £17,000 he was told by the solicitor that he had done a good job for him and that he had got more than he expected to. That is reality. I was in a solicitor's office in Cork recently where £4,000 was withheld from a lady who was living in London. She had to travel over specially to accompany me to a solicitor's office in Cork. Eventually the matter was settled and she got the £4,000 along with the rest of the damages. The whole lot was being held back for a period of time until it was settled. It was described as highway robbery. I welcome any power being given to the Law Society to control it.

Deputy Taylor talked about the taxing master. The taxing master and that procedure is used to terrorise clients. When a client questions the level of costs he is told by a solicitor "you have the right to go to the taxing master but there is a cost involved". That keeps the client from going to the taxing master and going through those procedures so the solicitor gets his way. I am in favour of this move. I would go along with it.

In section 8 we are heading into the whole area of the investigation of complaints. Somebody yesterday said that one of the issues here was whether or not——

We are on amendment No. 27 and not on the entire section.

I do not know about that. I take it you will accept a contribution on the entire section because what I wanted to say is this——

We will be having a discussion on the section as a whole when we have gone through the amendments.

I will be a bit previous then Chairman and I will say what I have to say about the section when we are taking the amendment on that section.

I would appreciate your co-operation.

You will get my co-operation. I know you are anxious to make progress but I do not think we are going to get this Bill through before tomorrow.

For the first time we are coming to the fundamental issue of who should investigate any form of complaint about the Law Society. That is the fundamental, bottom-line issue. Somebody yesterday said that there was a problem here — can the Law Society be a trade union operating on behalf of and in the interests of a profession and at the same time be a policeman policing the activities of a particular profession on behalf of people who are not members of that profession, specifically, the clients. While I take the point made by Deputy McCartan that the Law Society does have legal cost accountants in operation to try and ensure that there is some regularity in this particular matter, I do not believe any profession can investigate itself. What we are doing here is toying with imperfection. I said that at Second Stage of the Bill and I will say it when we come to discuss the final stages. I believe that the whole issue of complaints should be handled by a legal affairs ombudsman. When we get to section 15 we will be discussing an amendment by Deputy McCartan in this area. Really, by discussing how we should amend the way this particular practice or any sort of complaint is handled by the Law Society, we are actually conceding the principle that the Law Society is the appropriate body to examine the complaint. I simply do not believe that any professional organisation is the appropriate body to investigate a complaint. Certainly, what is suggested here is an improvement, but it is an improvement that is based on a principle which I have difficulty in accepting. In deference to your wishes to make progress I will again record my view that we are actually starting from a fundamentally flawed position and we are not going to improve it other than tinker around with the ornamentation of that particular position.

I must say that Deputy Roche has brought new thinking into it. Obviously he has not put down an amendment to it so we will have to discuss what is down.

I do not think Deputy Dennehy or his senior whip would welcome an amendment from me.

You might discover a majority in favour of that amendment.

I take the point made by Deputy McCartan. Deputies Taylor and Shatter should welcome this kind of move because it has been pointed out that it is an extreme case that has been referred to.

(Interruptions.)

I was identified at the outset as the only non-legal member present. I think I can bring a different perspective to it. The most damaging public perception of the whole profession is the one of blatant overcharging, of blackguarding at the highest level. It is not about the scales of cost for signing a document or whatever, as has been pointed out. You can argue that the standard is there but we must think about the blatant case that will come up out of perhaps 10,000. It is that we must deal with, and it should be accepted in that spirit. The changes that are proposed in the Bill should be accepted in that regard. Otherwise it will simply be another defence mechanism being thrown up at this stage which will be that we are not budging, not an inch, from the present situation. I would ask those who have put down the amendment to accept that section as it stands.

I just want to say how strongly I disagree with Deputy Roche. The reason I totally disagree with him is that the Incorporated Law Society of Ireland has absolutely no vested interest in assisting solicitors to defraud or to misconduct themselves. The Society, in fact, and quite the reverse, has a vested interest in ensuring that the highest standards are maintained. That is the vested interest it has. To do otherwise would be to turn the knife on its own back.

In principle I do not agree with the Incorporated Law Society monitoring the activities of its own members, but we are presented with a Bill that is as it is. I would not agree with some of the underlying principles of the Bill but we have got to work with that Bill now in the best way we can. I want to get across the point that I do not agree with the underlying principle that the Incorporated Law Society is monitoring itself and its members.

Are you writing a new novel, Deputy Shatter?

It's centred around the committee that deals with this Bill. Specially designed for insomniacs.

Order, please.

With regard to the amendment, I think it is a bit unfair for people to question the bona fides of the Law Society on a regular basis, on the one hand, but on the other hand it is a matter of public perception. What we are trying to do in this section will not achieve what is required by the public. I would not question the bona fides of the Law Society. They are a very responsible group of people, doing a very responsible job, but I think that over the last four centuries the whole thing has grown into an unmanageable monolith. They are responsible for addressing the fraudulent activity of their own members. What they are doing is unbelievable. It is a crazy situation that they actually have to do that and it is written in legislation that they have to do it. We are legislating here for further restrictions and the whole thrust of that is wrong. Deputy Shatter made it quite clear yesterday what our view on it is. Questioning the Law Society and putting a question mark over the characters of the people who are responsible for the work they do is very unfair. I am concerned about public perception and I do not care how the thing operates. Unless the public realise that it is impeccable and above question, we are going nowhere. There is a big gap in the public perception. My view is that, while they are responsible for policing themselves, that will continue to be the case. That is the basis of my argument for scrapping the whole Bill, throwing it in the bin and starting again.

I would not go quite that far, but the very first prerequisite of any investigation mechanism is that it be regarded as independent of those who are investigated. The Oireachtas set up an ombudsman, not because we considered all civil servants as venal or because we questioned the bona fides of civil servants but because the Oireachtas felt that the people of this country did not have confidence in all of the existing mechanisms and we went on to set up a police complaints commission.

We are on a specific amendment to the section, and we are not discussing the Ombudsman Bill or any other Bill. We are dragging on for too long on this section. We have had widespread discussion on it and I want to bring it to a conclusion.

With respect, Chairman, I am simply making the point that we have to see how we actually establish confidence in any complaints mechanism. I have always argued that — and it would be inconsistent if I did not say it now — I firmly believe that the very first requirement of any complaints mechanism is that it be independent, and be seen to be independent of those against whom a complaint is registered. That is not questioning the bona fides, or the goodwill of genuine people. I accept the point made by Deputy O'Donoghue that the people who above all have an interest in this matter being regulated are the very great majority of solicitors and the Law Society who would not wish to support the rogues.

In regard to what Deputy Cotter said about perception, I think it goes further than perception. It is the public's experience of the workings of the Law Society and is not a perception. Only this week I came up against a situation where a lady who was invited to the Law Society to put her case met an individual who then passed on to me her interpretation of the complainant's position.

I would remind Deputies that we are on amendment No. 26: In page 8, subsection (2) (a), line 14, after "any" to insert "subsequent". Then we have amendment No. 27 put down by Deputy Mervyn Taylor. I know it has widespread ramifications as has been evidenced by the debate so far.

Despite an hour long debate on this, we have not as yet heard the Minister's views on either of these amendments or indeed the Minister's replies to the various queries I raised yesterday.

I would invite the Minister to come in at this point.

Firstly in relation to the conflict of opinion between my two good friends and colleagues, Deputy Roche and Deputy O'Donoghue. I take Deputy O'Donoghue's point, it is well taken. The fact of the matter is that the incentive of the Law Society must be to ensure that the very highest professional standards are maintained within the profession that they represent.

I understand what Deputies Roche and Allen are saying — that they are unhappy with the experience to date of how the Law Society have dealt with complaints. That experience has arisen from a situation where the Law Society's powers were severely restricted. First of all, they could only investigate misconduct which is a more serious type of situation. Secondly, they had no detailed powers such as we are giving them in this Bill. Under this Bill we are extending their powers to deal with shoddy practice, negligent handling of a case, and we are giving them a wide range of things they can do to remedy that. We have to see how this works out in practice. If it does not work out to the satisfaction of the public, whom we are all here to represent, we will have to look at the situation again. But in fairness to the Law Society they should be given the opportunity now. We are giving them the opportunity by putting the ball firmly in their court. We are giving them wide ranging radical new powers. In so far as the independence factor is concerned, well, for the first time we are introducing an initiative, namely the introduction of an independent adjudicator. Anybody who now complains to the Law Society and who is not happy with the way the Law Society handled a complaint can immediately invoke the independent adjudicator. That is a radical new departure which will bring the necessary element of independence into the equation.

First of all, from the point of view that has been stated so far, I agree with Deputy McCartan. We have to approach this from the point of view of the general public. We are here to represent the public and we have to ask ourselves what it is the public need, what series of measures will best serve the public interest. Of course we must also take the views and interests of the profession into account, but our primary duty here is to look after and serve the public interest and to try to resolve the complaints, queries and dissatisfaction that we all know is to be out there.

I shall deal now with Deputy Taylor's two amendments. Section 8 of the Bill provides that a person can complain to the Law Society about inadequate services provided by his solicitor. One of the things the Law Society can do when they get that complaint is to reduce his bill. As Deputy Taylor stated, there is a Taxing Master. It is not our intention to oust the Taxing Master. Our intention, in so far as we can write legislation to do so, is to leave the Taxing Master mechanism there and let it run independently or parallel to the new powers which we are giving the Law Society. However, if somebody goes under this Bill to the Law Society complaining of inadequate service, and the Law Society says "yes, you were charged £1,000 for that transaction but you were not very well looked after, it took too long and you were messed around and the bill should be reduced to say £700", that person, if he is unhappy with that reduction to £700, can go to the Taxing Master — and this answers Deputy Taylor's query about appeal — and the Taxing Master can then decide either to leave the bill stand as it is or to reduce it. If he reduces it, his decision is final. The Law Society's decision goes out the window, the Taxing Master's is seen as final.

Deputy Taylor wants to insert the word "subsequent" on page 8, subsection (2) (a) line 14 to ensure, when we are talking about that situation which I have just described, that any such bill goes to taxation after the Law Society has made its determination. I do not have any difficulty in accepting that. I will have to consider it before Report Stage to see if it would do any damage to the Bill. Looking at the general tenor of section 8 (2) it is quite clear that it has to be subsequent. If you look at the beginning of subsection (2) it says "where the Law Society have given a direction under subsection (1)". Therefore, the Law Society must have given their direction, and must have reduced the bill as in the example I have given. It is only when they have given that direction, that we are talking about taxation in this particular context. It is quite clear from the words. If it can be accepted without doing any violence to the general intent and tenor of the section, I am quite happy to accept that.

I think it will — move with caution.

Yes indeed. I have not been persuaded that there is any need to put it in there. In relation to Deputy Taylor's amendment No. 27, I cannot accept that amendment. Section 8 deals with inadequate services not excessive charges. Probably where a lot of the confusion is coming from is section 9 which allows a person to go to the Law Society specifically about excessive charges. Section 8 allows him to go to the Law Society about inadequate service but one of the sanctions that the Law Society can apply if they decide there was inadequate services is to reduce the fees. Therefore there might be a certain confusion between the two sections.

Let us get back to reality now. Section 8 deals with inadequate services, not excessive charges. Take for example, when somebody goes to the Law Society under section 8 complaining that the service he got was not of a proper professional standard but that the fee he was charged was £1,000. The Law Society may say that is a proper fee for what has been done but that, because the person was messed around and did not get a proper service they are going to reduce the fee to £700. If that person subsequently went to the Taxing Master, the Taxing Master would simply look at the bill and say that was such and such a service, the proper fee for that looks to be about £1,000 and will confirm it as £1,000. The Taxing Master has no jurisdiction or inclination to look into the detailed handling of the case to see was there adequate handling. From that point of view I do not think it would be right that the original bill of cost submitted to the Law Society could be submitted to the Taxing Master. For instance the solicitor could inveigle the client into subsequently going to the Taxing Master. If the obligation was only to present the original bill of cost, the Taxing Master will take the view that, "having regard to the services provided, that seems to be a proper fee for the service and that is it, we are not going to consider whether you were messed around or got shoddy or inadequate services". From that point of view I could not possibly accept that amendment. I am prepared to be open about this. As a concession, I would be prepared to consider the possibility that, where the complainant goes to the Taxing Mastert in a case like that, it would be mandatory to include a note on the bill of costs saying that it is a reduced bill of costs which was reduced by the determination of the Law Society. I am prepared to look at the possibility of doing that.

To go back to the general tenor of this and to deal with some of the points made by Deputy Shatter yesterday, there is a lot of dissatisfaction out there, at the moment and, as I have pointed out, an ordinary person is very restricted in the sort of things he can complain about to the Law Society. For the first time we are giving an ordinary member of the public the right to complain to the Law Society because he feels that the standard of service he got was not adequate. Anybody sitting around this table, or any reasonably intelligent person in the country sitting down to draft that legislation, will write the general provisions. The next thing we have to write in is what sanctions we are going to give the Law Society — what are we going to allow them to do when they decide that, indeed, the service was inadequate? If I did a general opinion poll on this, one such sanction that would be immediately obvious is give them the sanction to reduce the fees. Let the Law Society say to the solicitor that they have decided that, while the fee might be right for the actual service, the job was inadequate, therefore, he must reduce his fees. If the client has paid the full fee, we must give the Law Society the right to tell the solicitor to give back a portion of that fee. That is one obvious sanction.

There is a problem with imposing that sanction in this particular context. As Deputy Taylor stated, the problem is that there is a mechanism there for dealing with that already called the Taxing Master. How do you tie the two in together? How do you ensure that they run properly in parallel? That is where the difficulty of writing a section like this comes in. Our intention and certainly the intention of the draftsman is to allow a person to complain about inadequate services to the Law Society and to allow the Law Society, as one of their sanctions, to reduce the bill of costs but not, at the same time, to oust the Taxing Master out of the procedure. There are cases — and we have all come across them — where a client is unhappy with the standard of service provided and he feels something should be done about the fees. In a situation like that somebody could go to the Taxing Master and, almost invariably, he will be unsuccessful, but it could happen otherwise, that is a possibility and that is what we have to look at when we are writing a section like that.

Our intention is that, if a person is unhappy with the standard of service if, instead of invoking these new rights to go to the Law Society, he goes to the Taxing Master ab initio as it were and the Taxing Master, as he usually will, confirms the fee because he does not have to look at the standard of service provided, then the decision of the Taxing Master will be final, there will be no way that this person can come back and have another trial run at the Law Society to see if the Law Society will further reduce the fee. That is our intention.

I do not think the section says that.

I will come to that. What we have done is allow the Law Society to reduce the person's fees if they complain about inadequate services, that is one of the sanctions, there are other sanctions but that is one of the sanctions they are given. If the person goes to the Law Society and the Law Society reduces fees, saying "look you were messed around, you were charged £1,000 but we think we should reduce it to £700", nothing more happens and if he does not go any place else that is it. It is final.

However, if after going through this procedure the client is still not happy and he decides to go to the Taxing Master, what we are saying is that the bill to be presented to the Taxing Master is the bill as reduced by the Law Society. I have already given the reason for that, the Taxing Master is not going to look at the type of service provided and the decision of the Taxing Master in that situation is final. However, after Deputy Shatter's contribution yesterday I read this thing myself last night and I see a few things which strike me and I have made my own note on it there.

As I have said already, the client may go to the Taxing Master ab initio. Our intention is not to allow him to have another run at the Law Society later on. There is another possibility that a client might run both things together, he might put in a complaint to the Law Society and he might go to the Taxing Master as well. It is our intention that if he does that, in the context of section 8, in so far as fees are concerned, the Taxing Master’s decision will be final.

Another problem seems to me to arise if a person goes to a Taxing Master about inadequate services and the Taxing Master says "No, that is a proper fee for that particular service", I would be concerned to ensure that he can still go to the Law Society under section 8 but the Law Society will have no power to reduce fees in that context.

As I read subsection (3) it only makes the Taxing Master's decision final when costs are taxed by the Society and a reduced bill submitted — in other words, when the decision is taken subject to section (2) (a). That will have to be altered to meet the points I have made. Parliamentary draftsmen, like the rest of us, are not infallible. That is admitted by the amount of Government amendments we have seen rolling off the stocks, they were not infallible either when Fianna Fáil were in Opposition and when some other people were in power and their infallibility unfortunately continues through various changes of government. We are going to have to look at that section and recast it. I do not wish to anticipate the debate on section 9, but a bit of information came to my attention this morning. Last year — I know Deputy Allen was very interested in this — only 30 cases were taken to the Taxing Master.

By clients.

Against solicitors?

Yes, are we are trying to tell ourselves in this day and age and with all our experience as public representatives that there are only 30 people in this country who are unhappy with the fees they were charged by solicitors last year?

Deputy McCartan gave the reason.

The reason is that I have at least one person a week coming to me in my political capacity complaining about fees and when I managed to explain to them how they go about challenging those fees 99.9 per cent just throw their hands in the air and say "that is it, more lawyers, another tribunal, no way". I do not think it is unreasonable to give the Law Society an input into this. As set out in section 8, the Law Society is the body, that is concerned with professional standards and I do not think it is any harm at all to extend the Law Society's powers in this regard, that is the intention of the Government and that is my intention.

This has been a deeply moving and historical occasion. I regret the fact that, yet again, this Committee has been abandoned and we are left alone by the media who obviously find Question Time on agriculture more stimulating. I do not think we should discuss sheep in the context of the current Family Planning Bill, it may not be appropriate.

I am glad the Minister took time out to read the section in detail last night. It is a complicated Bill and the historical thing is that it is the first time I can ever recall any senior or junior Fianna Fáil Minister admitting to fallibility as opposed to infallibility. The problems I have with the section were well detailed.

We heard from Deputy Burke yesterday that a Minister always protects his civil servants so I presume it is the Minister himself who is admitting to fallibility — I am only being jocose, I am not being serious about that.

The point is that the Minister has worked out what I saw as the problems with the section in its operation in that it was not clear how it was going to interact with the Taxing Master. Having set down my marker as to my general objection to this procedure, my objection does not relate either to the integrity of the Law Society as some people might suggest, or to a brief that Deputy O'Donoghue was actually right in what he said, my objection relates to the fact that there should be one body policing the entire legal profession, not just the solicitor's profession, unless the Bar is willing to allow the solicitor's profession to police them. I would be quite happy for them to do so and one would assume that you need an independent body policing the entire legal profession. In that sense it would be more logical that this Bill actually addressed that as an issue but it does not and I am not going to labour the point. The other side of it is the perception of fairness that the public have, even if the Law Society always has and always do in the future behave perfectly properly. There is, nevertheless, a perception. There is the well-known legal phrase that no-one should be a judge in their own cause and there is a public perception about this, be it right or wrong. I am concerned to bring barristers into the disciplinary area, not just solicitors.

Having said all of that the Minister has recognised that there are problems in the interaction between this section and the way the Taxing Master works. I welcome the fact that the Minister will now have another look at the section. I think that is of considerable importance. I think it is important that we do not have a system which could result in people with vexatious complaints running cases into the Law Society, into the Taxing Master and, in effect, subverting the system and by doing so preventing people who have genuine complaints from having their complaints resolved in a speedy way. In that sense I would not push these amendments. I welcome the Minister's coming back to us on this.

I do not know whether it is true that only 30 people last year had compliants about solicitors but I have absolutely no doubt that there is a small minority, and I emphasise that, of solicitors, with whom we have very large problems. In think that, in every profession and walk of life, and it strays into politics as well, that is probably the case. Indeed, my firm is currently representing at least one client who was previously involved with a solicitor who has since left the jurisdiction. This client will get substantial moneys back out of the Solicitors' Compensation Fund. I am under no illusions about it. I find it extraordinary though that Deputy O'Dea seems to have a problem in his constituency where, apparently on a weekly basis, people are complaining about solicitors. It would seem to me that the most effective thing Deputy O'Dea, as Minister or local TD could do is refer the names of the relevant solicitor to the Law Society and have them investigated. If there are 52 complaints a year about Limerick solicitors, it would seem to me that there is a very profound problem in Limerick which somebody should investigate.

It is not confined to Limerick.

I am just saying that I deal with people who have had difficulties on occasions with solicitors. Indeed, my firm has represented them and we have indicated a willingness to do that. My firm certainly would not get that level of complaints in trying to unravel people's difficulties.

Getting back to the Taxing Master — I do not want to digress very much more — there is, nevertheless, a problem for people in having their costs taxed by the taxing master. This is not just a problem in relation to the solicitor's profession. It is a problem created by Government and currently exacerbated by Government. I have already mentioned one part of the problem and that is the cost of going to the Taxing Master. That cost is substantially imposed by Government taxation. Because we will be dealing with this in the Committee for a number of sessions, I tabled a Dáil Question on this issue which came up for reply on Tuesday of this week. I asked the Minister for Justice to give details of the funds received by the State, in each of the years, 1980 to 1991, by way of stamp duties on court certificates of taxation, following the taxation of costs, firstly, before the High Court and the Taxing Master, and, secondly, before County Registrars. I know for a fact that there are substantial moneys coming in, even in the context of my own law firm, in taxing costs on behalf of litigants who were successful and who are now trying to recover costs from the other side. I believe that the Department of Justice and the Department of Finance must know how much money is coming out of the taxing office each year. I would consider it incredible incompetence, bordering on gross negligence in financial management, not to know what moneys are coming in per year through, for example, the Office of the Taxing Master of the High Court. Yet I have been told and I quote: "The information requested by the Deputy is not readily available and could be compiled only by the diversion to the task of a disproportionate amount of staff-time which could not be justified." In the context of trying to provide a cost-effective system which allows people with genuine complaints to have their bills as received from solicitors checked to find out whether they are fair or unfair, one would think that the State would at least make available information as to how much money the State receives by way of benefit through the taxation of costs. Yet the information is being concealed. That is a concealment of information. That is a typical, bureaucratic Department of Justice response to a Deputy seeking reasonable information. Part of the cost of taxation is imposed by the State and the State is unwilling to tell even the Members of this Committee what the cost of it is. I think that is an outrage. The second comment I would make is a serious comment. There are probably people who currently have problems with bills for costs who want costs taxed. I am sure there probably is not a solicitor in the country who at some time has not had a client query a bill, be it reasonable or unreasonable to query it. In the real world people are entitled to inquire as to whether a bill is unreasonable or not. Since the beginning of May of this year, instead of having two Taxing Masters in the High Court, we have one.

We are straying somewhat at this stage Deputy.

It is directly related to what I want to ask the Minister. That has had the effect that there are something like 170 cases outstanding in the Taxing Master's Office in the High Court. The Government will not replace the person who has retired. In the contexts of this section and of the issues that have been raised, I would ask the Minister whether it could be the case that a lot of complaints will end up falling on the Law Society's door in this particular area simply due firstly to the inability of the Taxing Master of the High Court to cope with simple taxation issues, and secondly because of the expense the State imposes on taxation. That is something the Minister would want to consider.

I want to point out that we have seven minutes to go until 3.45 p.m. when we are due to finish. I would like to deal with this amendment within that time.

The point made by Deputy Shatter and was also touched on by Deputies McCartan and Allen, is absolutely correct. The one thing we do seem to be agreed on is that the determination of solicitors' costs should be done independently of solicitors. The appropriate independent bodies are those who are the specialists in the field, the taxing masters. The Minister makes the point that the Taxing Master perhaps could not deal with the question of a reduction of the bill on account of shoddy work or on unduly delayed work. He is probably right in that. Very well, so give him the power. Bring in a section in the Bill and give the Taxing Master and the County Registrar the power to do just that. That would get over that point. Talking about perceptions of lawyers and so on, there is a poor perception of lawyers out there. There is a poor perception of politicians out there too, let it be said, perhaps not much better than that of lawyers. Let us face it. There is a perception that politicians do not work when the Dáil is not sitting, for example. There are plenty of perceptions around but they are not always correct.

(Interruptions.)

There is no response at all because there is no amenability on shoddy politicians. Perhaps there should be. Perhaps the Committee on Procedure and Privileges should have a look at some aspects of that.

The Minister was making the point that only 30 bills went for taxation. The reason for that was given by Deputy Allen and by Deputy McCartan. People are frightened into going because of the ridiculously heavy surcharge imposed by the Government and stamp duty on the bill. With respect, if the correct way of dealing with a solicitors' bill is by having it taxed by an independent specialist authority, then the way to deal with that is for the Minister, who is the Minister in the Department of Justice, to arrange to have surcharge dispensed with and to have no such fee. The fee is incredibly high.

It is 5 per cent.

I thought it was more than that. However the Minister would know. It is still an appreciable amount on a sizeable bill. That should be dispensed with and provision should be made to turn the tables, as it were. In other words, if the bill is excessive and is substantially reduced by the Taxing Master, then the solicitor should be made pay the costs of the taxation and expenses in connection with it. It would put the fear on the other side then. That does not detract from my view that the proper people to assess the complex area of solicitors' bills are taxing masters and county registrars who are there and have been there for a very long time now for that purpose. They should be given the power to look at the type of service that was provided, whether it was shoddy, whether it was delayed or whatever and to take that into account in assessing the figure. There is no reason why that could not be done.

The Minister has indicated that he is prepared to consider this section again before Report Stage. He indicated that he would look at both amendments Nos. 26 and 27 again. Deputy Shatter has indicated that he is prepared to withdraw his amendment for the moment. Would you, Deputy Taylor, be of similar mind, given the Minister's comments.

Yes that would be agreeable.

Amendment No. 26, by leave, withdrawn.
Amendment No. 27, not moved.

Amendment No. 27a has already been discussed with amendment No. 9a.

I move amendment No. 27a:

In page 8, subsection (4) (a), line 34, before "services" to insert "professional".

The Minister's amendment suggests to insert the word "legal". I take it that legal should also be inserted here — legal services.

I have no objection but I am informed that it will not be necessary because the word "services" relates to the earlier one.

I am happy to withdraw it.

Amendment No. 27a, by leave, withdrawn.

I move amendment No. 28:

In page 8, subsection (4) (a), line 34, after "had" to insert "provided or".

Amendment agreed to.

Amendment No. 29 has already been discussed with amendment No. 24. There is an amendment to amendment No. 29 by Deputy McCartan and that also has already been discussed.

I move amendment No. 29:

In page 8, between lines 37 and 38, to insert the following subsection:

"(5) (a) The Society shall not make a determination or give a direction under subsection (1) of this section unless they are of opinion that it would in the circumstances be appropriate to do so.

(b) In determining whether it would be appropriate to make a determination or give a direction the Society may have regard to such matters as they think fit including—

(i) the existence of any remedy that could reasonably be expected to be available to the client in civil proceedings;

(ii) whether proceedings seeking any such remedy have not been commenced by the client and whether it would be reasonable to expect the client to commence such proceedings; and

(iii) whether section 14 of this Act applies to the subject matter of the complaint.".

I move amendment No. 1 to amendment No. 29:

Between lines 3 and 4 of subsection (5) (6), to insert the following:

"(1) whether the society considers the complaint is frivolous, vexatious, previous or made without due cause;".

I hope that the Minister will be amenable to accepting my proposal that one of the other grounds to be included and available to the Society in considering whether it is appropriate to make a direction under subsection (1) is that the complaint is potentially frivolous, vexatious, previous or made without due cause, as I have already argued.

I am reviewing that. I intend to introduce an appropriate amendment.

Amendment No. 1 to amendment No. 29, by leave, withdrawn.
Amendment No. 29 agreed to.
Amendment No. 29a and amendment No. 30 may be taken together, by agreement.

There is a technical problem with amendment No. 29a which will take a few minutes to explain.

Could you leave it until Report Stage?

I would like to deal with it.

I move amendment No. 29a.

In page 8, between lines 37 and 38, to insert the following subsection:

"(6) The fact that a person was an unsuccessful party in an action before any court, or was not satisfied with the outcome of such an action, shall not of itself, be grounds for a complaint to the Society under this section.".

My amendment No. 30 was tabled bearing in mind the fact that for most court cases which take place, particularly in the civil area, one person is successful and another person is not. The wide powers being given to the Law Society in the context of examining a solicitor's work which was alleged to be inadequate in any material respect left the Law Society and solicitors generally open to a complaint by practically every litigant who lost his or her court case even if he or she lost it due to it becoming quite clear in the witness box that he or she had told lies to his or her own solicitor or had not told the full story. I felt there was a need firstly to provide solicitors with protection against that and secondly to make it clear that the mere fact you are unsuccessful in litigation does not automatically entitle you to register a complaint. I welcome the fact that the Minister has recognised that there is a need to address this area. Could I reverse roles and point out to the Minister the problems with his amendment and why I think my amendment is preferable. If I didn't think there was a real problem with this I wouldn't be pressing this any further. The amendment I drafted was very carefully phrased and it was designed, to cover all contentious business. The phrase "contentious business" rather than "an action before any court" was deliberately used, taking into account the definition of contentious business which is contained in section 1 of the Act as amended by the Minister. I didn't draft this until I saw the Minister's amendments. Someone could win or lose an action either before a court or a tribunal so rather than referring — as the Minister refers in his amendment — to "an action before any court" I deliberately used the phrase "contentious business" because the Minister's amendment has extended the definition of contentious business to tribunals. It would seem to me that the desired intent of the amendment would not be fully achieved with the Minister's phraseology because it excludes tribunals. Secondly, I was anxious to ensure that we would deal with someone who did not necessarily achieve the full result that they believed they deserved to achieve but who came out relatively well out of litigation. The Minister used the words "not satisfied with the outcome of such an action". I dealt with that by saying that an unsuccessful litigant shall include a litigant who is not as successful as he or she may have hoped to be. I am not sure if there is a huge difference between the Minister's approach and mine in that context. It is only a matter of semantics. I would ask the Minister to accept my amendment at this stage and I understand that he may well want to have another look at it on Report Stage. It covers more than the Minister's amendment covers but I suspect it also covers what both of us would wish to cover. If the Minister would take on board our amendment, I would fully appreciate tht he might come back with a further refinement of it at Report Stage. I would be anxious that he would not leave it hanging on the Minister's amendment.

I accept Deputy Shatter's point about contentious business and I will amend my amendment accordingly.

Can I take it the Minister will accept our amendment, at this stage.

I will introduce an appropriate amendment to meet the point you are making.

I suggest that we adjourn at this stage and if the Minister comes in with a substitute amendment before our next meeting we might get rid of this difficulty.

Progress reported; Committee to sit again.
The Special Committed adjourned at 3.45 p.m.sine die.
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