I should like to raise a matter I am concerned about. We finished our meetings at the beginning of July and we are now at the end of October. It was originally envisaged to come back to this job earlier. I am concerned to find that this special committee meeting has been ordered for this morning and will last a full day on a day when there are two Bills from the Department of Justice in the House, the Censorship of Films (Amendment) Bill and the Interception of Postal Packets and Telecommunications Messages (Regulation) Bill. It is not appropriate and indicative of that is the fact that there is not any other Opposition Deputy present. The Minister has the luxury of having a junior Minister and the entire Department to back him up. Opposition Deputies do not have that luxury. We are doing a disservice to our function if we take a Committee Stage in circumstances which render it almost impossible for other Deputies who are members of this special committee to attend. I am sure it is not the junior Minister's fault; it is just the way things have worked out. I do think, as there has been a three or four months gap in our dealing with this Bill it is unreasonable to have two Justice Bills in the House. I would ask that we try to avoid that arising in the future.
SECTION 8.
I will certainly convey those views to the Chief Whip.
Chairman
I would like to remind members of the procedures which were ordered by the Dáil on 9 July govening our voting arrangements. In the case of amendments which might be pressed, the decision of the Chair thereon is conclusive and dissent from that decision only may be recorded. I am anxious that we should utilise our time so as to make as much progress as possible with the consideration of the Bill. At this stage we have before us 138 amendments relating to sections 1 to 22 and whilst I am sure everybody would like future generations to benefit from the contents of the Bill I have no doubt that we would also like the present generation to enjoy its contents. In that context I would hope that we could make some early progress. At our last meeting on 9 July, the Minister of State indicated his willingness to rephrase amendment No. 29a. In the interim he has tabled amendment No. 29b and that is on the white list dated 1 October. We now resume on section 8, amendment 29a which I presume the Minister will now wish to withdraw in favour of amendment 29b as otherwise it is extremely doubtful if he will put in amendment No. 29b.
He might.
Chairman
He might but it will be irrelevant to the subject matter. The subject matter of this amendment was well aired at our last meeting in a grouping with amendments Nos. 29a and 30.
I wish to withdraw Amendment No. 29a, I am substituting amendment No. 29b which is on the list of 1 October. I hope amendment No. 29b will meet the points Deputy Shatter made in relation to amendment No. 29a which is now withdrawn.
I move amendment No. 29b:
In page 8, between lines 37 and 38, to insert the following subsection:
"(6) The fact that a person who was a party to proceedings before any court, tribunal or arbitrator appointed under the Arbitration Acts, 1954 and 1980, was not satisfied with the outcome of such proceedings, shall not of itself, be grounds for a complaint to the Society under this section.".
My recollection was that we were discussing amendment 29a as it was, now 29b, together with amendment No. 30. The concern that arose here was that if someone was simply an unsuccessful litigant in contentious business that could give rise to their making complaints against their solicitor and invoking the complaints procedures provided for under this legislation even in circumstances where everything possible had been done in that litigation. I had proposed an amendment to put in a new subsection (5) which reads:
For the purposes of this section, section 10, the mere fact that a client was an unsuccessful litigant in contentious business shall not of itself indicate the legal services provided by a solicitor in connection with any matter in which he or his firm had been instructed were inadequate in any material respect and were not of the quality that could reasonably be expected of them as a solicitor or a firm of solicitors.
There was a definition of "unsuccessful litigant" as "including a litigant who is not as succesful as he or she may have hoped to be".
The Minister's original amendment did not address the full panoply of legal proceedings that can arise because it confined itself to proceedings before a court and did not use the term "contentious business" as defined in the Solicitors Bill we are dealing with. The Minister's new amendment provides for the following: "The fact that a person who was a party to proceedings before any court, tribunal or arbitrator appointed under the Arbitration Acts, 1954 and 1980, was not satisfied with the outcome of such proceedings, shall not of itself be grounds for complaint to the Society under this section." I would like the Minister to explain the difference between the proposal in amendment No. 30 and his proposal. Perhaps he could clarify that?
As I said, it is proposed to substitute this amendment for amendment No. 29a. At the last meeting of the committee on 9 July I undertook to amend official amendment No. 29a to include a reference to a tribunal. The substitute amendment also extends to an arbitration under the Arbitration Acts. It is appropriate for consistency purposes that such proceedings should not be excluded from this provision which provides that dissatisfaction with the outcome of proceedings shall not of itself be a ground for complaint to the society. In drafting the substitute amendment No. 29b, an improvement is being made in No. 29a. The new amendment simply refers to a person who is not satisfied with the outcome of proceedings, whereas amendment No. 29a refers to an unsuccessful party in an action before any court or where a person was not satisfied with the outcome of such an action. What was the Deputy's question?
The question is, what is the difference in its effect between amendment No. 29b and amendment No. 30?
Amendment No. 30 provides that the fact that a litigant failed to win a case would not of itself indicate that the legal services he received were inadequate in a material respect and were not of a quality that could reasonably be expected of a solicitor. It also defines an unsuccessful litigant as a person who is not as successful as he or she had hoped to be.
I consider the essential point which the Deputy is attempting to address is covered by my proposed amendment No. 29b. Apart from that I would not be prepared to accept the Deputy's amendment. It refers to contentious business which is given a wide definition in section 2 of the Bill and includes business done by a solicitor for the purpose of or in contemplation of proceedings. It is not confined to the outcome of proceedings.
Therefore, I consider the Deputy's amendment to be far too wide in its scope; it leans too far in favour of the solicitor in these matters. I think my amendment meets the essential point he is making and avoids that difficulty.
I was expecting the Minister to come back and say there was no diference between them, that it was just an exercise in semantics, in which case I would have been satisfied although I would have again pointed out that the Department of Justice should not be wasting its time on a Bill that is difficult enough in trying simply to rephrase decent amendments tabled by Opposition Deputies so that the Minister does not have to accept an Opposition Deputy's amendment and say he amended it by his own amendment. I personally do not care about that; that sort of approach is foolish.
However, I am now concerned with what the Minister is saying to me. Is he saying that if someone was to use his phrase he is not satisfied with the outcome of court proceedings or if they are an unsuccessful litigant as I suggested, or not as sucessful as they might have been, the fact that the proceedings were not successful cannot of itself give rise to complaint but that any unsuccessful litigant, no matter how well represented and no matter how good the preparation for a case conducted by his solicitor, can nevertheless contend, because they were unsuccessful, the preparation must have been inadequate and therefore they are invoking the complaints procedure?
The point I made many months ago on this is that I hold absolutely no store for solicitors who do not do their jobs properly. If a solicitor does not represent a client properly, does not do the proper preparatory work, the client must be entitled to redress. What I was concerned about was the situation where a solicitor does all the necessary preparatory work, does his work properly, but the litigant is unsuccessful. The litigant may be unsuccessful because things may have emerged in the witness box they never told the solicitor. The litigant may be disbelieved by the judge. Something may come from the other side of the case which casts doubts on the veracity of the claim made, none of which results in the solicitor being involved.
I expressed a concern that, as a result of this Bill, we have a complaints procedure that is efficient and works properly but that we did not have a procedure which gave rise to vexatious complaints by people who were unsuccessful in litigation. I pointed out that for every successful litigant there is an unsuccessful litigant. There are thousands of court cases going through our courts on an annual basis. Fifty per cent of the people who appear in court are sucessful and 50 per cent are unsuccessful because where there is a court hearing usually one side wins and the other side loses.
If the Minister is suggesting that under his amendment whenever a person loses a court case they can then lodge a complaint with the Law Society alleging their solicitor did not do the necessary preparatory work for the court hearing, rather than this being a Bill which will facilitate the processing of bona fide justifiable complaints it will create a situation where it would be impossible to separate the real complaints from the falacious complaints. It would simply not work in practice. It would also mean that the solicitors who do their work properly would become vulnerable to a series of investigations at the behest of people they had represented, who had been unsuccessful in the courts, perhaps through no fault of their own. I am somewhat bemused at the Minister saying to me that "contentious business" is an objectionable phrase because that phrase "is defined in section 2 as meaning, business done by a solicitor in or for the purposes of or in contemplation of proceedings before a court or before an arbitrator appointed under the Arbitration Acts, 1954 and 1980". We amended that to include "before a tribunal". I am somewhat bemused at the distinction that the Minister is now drawing. If the Minister had simply said that was a redrafting job to achieve exactly the same objective I would not have had any objection to it beyond that people should be spending their time doing better things than simply redrafting worthy amendments that deal with a problem. The Minister should clarify what he is talking about.
I can see that it would lead to many problems. At the same time if, as Deputy Shatter said, 50 per cent of the people will lose a case and 50 per cent will win then 50 per cent are getting bad advice to go to court and 50 per cent are getting good advice. Let us take an example of a solicitor representing somebody charged with drunken driving. The solicitor may put up a big defence but with the level of alcohol in the man's system having been 280 millimetres there would be no hope. Not only that but he may persuade the client that he should appeal also and charge him £800 for the appeal which may cause him to receive a ban from driving for two years driving instead of one. That to me would be terrible bad advice and would amount to carrying the fool further.
It is hard to know what the Deputy is insinuating.
I would not try to insinuate that legal people are half-tanked going around. I do not believe that Deputy Enright means that either.
It is very hard to believe Deputy.
I will give the Deputy documented proof of such a case. I have taken it and many other cases up with the Incorporated Law Society.
If most people are in total ignorance of the law, and they depend on a solicitor just as they would with the family doctor, a teacher or a postman. The advice to people may be to go for it, to go to court and they will win. If there is no basis for going to court in the first place a solicitor has a case to answer for wrongful advice.
The Minister will know from his records that of the cases set down for hearing in the High Court — I cannot give the percentages — 70 per cent at least are settled out of court. The vast majority of cases, I think the Minister will agree, never go to court. In most cases solicitors and barristers get involved in a considerable amount of negotiation to try to reach a settlement. Irrespective of what area one is in, if a hearing commences it is contentious and it leads to protracted poor relations between people. It should be borne in mind that most cases are settled before they ever come to court. Similarly quite a number of cases at hearing are settled before a court decision is made. Cases that go to hearing only do so after a considerable amount of thought. The case the Deputy mentioned is very hard to decide on. In a case of that nature unless there is a very technical issue it would be very hard to see how that sort of defence would arise. In regard to the matter before us we must bear in mind that many cases never reach court.
Deputy Shatter was concerned that the mere fact that a person lost a case in court should not of itself be grounds for a complaint against his solicitor. Of course it is not but we decided we would write it in anyway. If a solicitor does his preparatory work properly and the case goes to court and the client loses we are simply saying that the mere fact that he lost the case is not of itself going to give rise to the successful pursuit of a complaint against the solicitor. All I can say to Deputy Shatter is that if a solicitor does his preparatory work he has nothing to worry about. Basically what we are trying to deal with here are solicitors who do not do their preparatory work properly.
I will respond to that. The Minister of State is not actually answering the question. The question is, at what stage do you trigger these mechanisms? I am saying this on the basis that I believe we must have an efficient system to investigate circumstances where solicitors have not provided a proper service. I have absolutely no problem with that.
I am very conscious of the fact that often people who are unsuccessful in litigation are unsuccessful, not through the fault of their lawyers but through their own fault, because they either have not told their lawyers the full story or because they simply proved to be poor witnesses. It may be unkind to say that that is their fault, it may simply be that they are so nervous in court that they become unimpressive witnesses. Although they are telling the truth they may be disbelieved by a judge. Many people who are unsuccessful in court cases feel aggrieved. There is not a solicitor in the country who has not had the experience of advising a client not to proceed to a court hearing at some stage during their career on some issue but the client disagrees with that advice and is insistent on his day in court. Often the solicitor is proved right — the client loses the case. What then happens is that the client then blames the solicitor even though the solicitor had, perhaps, advised the client in the first place against proceeding to a full court hearing.
Again I do not think there is a barrister in the country who has not at some stage experienced that situation. The Minister's perception seems to be that any person who is an unsuccessful litigant can trigger this mechanism to the extent of asking the Incorporate Law Society to investigate the solicitor's file in relation to the preparatory work done. Having regard to the fact that people often feel aggrieved when they are unsuccessful in court cases — and on occasion those who are most aggrieved are those who are most at fault for their lack of success and their lawyers are not at fault — it is dangerous to allow this mechanism to be triggered in these circumstances because the mechanism will be swamped and the genuine complaints left in a long line to be dealt with. That is my concern.
I am not sure the Minister fully understands his amendment. I would have interpreted his amendment as meaning the same as mine. He is putting this strange artificial view on it. I am concerned that we should have a system that works and that is all. It is disingenuous to say that whenever a complaint is made if the solicitor has done the preparatory work properly that can be established. There are more than 3,000 solicitors here. If each solicitor — just once a year — has one client who complains because he or she was unsuccessful in litigation are we to have 3,000 cases being investigated every year? If that happens the system will be swamped and it will not work.
The fact is that anybody can make a complaint. There are mechanisms built into the Bill, the Incorporated Law Society have power to examine the complaint and pursue it if it is felt it has substance. The fact that a person loses a case will not of itself be sufficient to ground a complaint. Surely Deputy Shatter is not suggesting that all unsuccessful litigants should be precluded from making a complaint. All we are saying is that an unsuccessful litigant who makes a complaint and alleges to the Incorporated Law Society that the services etc., were not adequate or were not of the quality which could reasonably be expected will have to do more than just simply show that he lost the case.
In the context of complaints being made, could the Minister say if there is any time limit on complaints being made under this section? For example, all of us over the years as TDs have come across individuals who might have become fixated by the result of a court case that happened ten or 15 years ago and started nailing practically every Member of the House with a whole series of complaints which might or might not have been genuine.
As a lawyer one comes across people who become what I would describe as litigation happy, a small section of people who become so fixated by the courts that they seem to be constantly trying to litigate and end up litigating on their own bat without any legal help. Indeed there was one well-known gentleman who regularly tried to sue the Sweepstakes years ago because every time there was a sweepstake draw he alleged that his ticket had won but that there was a conspiracy to deny him his benefits. At the end of the day the High Court had to impose an injunction to stop him issuing proceedings twice a year against the Irish Sweepstakes. Sadly there are people who need help outside the legal system, who become fixated with an event in their life, which may or may not be a legal event but in this instance it can be a court case, and who many years after the event blame whatever lawyer it was who acted for them with regard to what befell them. There is before the High Court at present a case in which a lady, who is a personal litigant, is suing a variety of solicitors and the law society for events that took place in 1982. There has been an interim judgment but so far that case has been in and out of hearing for between 50 and 60 days in the High Court.
What I want to raise is what happens if ten years after a court case someone who has been represented by a solicitor develops this sort of fixation and makes a complaint? It seems to me that there is one essential thing missing from this and other sections dealing with the investigation of complaints. First, it is most important that the general public be made aware of the existence of a comprehensive and functioning complaints system. I am not sure if there is any provision in this section or any other section to cover that.
It is also important that there be some reasonable time limit within which complaints can be made. I am not suggesting that it be within six months or a year or so. In all other areas of litigation the statute of limitations can be applied. If I am run over by a car in the street and if I decide not to sue the driver, then three years after the accident I can forget about it if I have not issued proceedings. Normally you must bring a negligence action within three years. If I am in breach of a contract, then someone has six years within which to sue me.
In the context of making complaints there seems to be nothing to stop someome, ten, 15 or 20 years after a solicitor has acted on their behalf, from lodging a complaint with the Law Society, who will have to start investigating, and it may require a solicitor having to try to recollect events that occurred so long ago. I have deliberately not tabled an amendment on this bacause I wanted to discuss it at this stage first. It is something I think we should come back to on Report Stage. It is relevant to the overall section. There should be some time limit for the making of a complaint against a solicitor in relation to the different issues that arise under section 8, and indeed under some of the other sections. It is curious to me that the Law Society have not raised this matter. A professional person who has acted in good faith for a client is entitled to know that 15 or 20 years afterwards someone will not lodge a complaint against them. I have no fixed view whether three, four or five years would be a reasonable time scale within which a complaint should be made, but I do thing it is an appropriate question for us to raise at this stage.
Deputy Shatter is right in saying that there is no time limit after which a complaint cannot be investigated. I take it that what the Deputy is talking about is investigation of a complaint?
Yes. Put in very simple terms what I ask is, if a solicitor acted on behalf of someone in 1980 and whatever they had done had been completed in that year, is it reasonable that in 1995, for instance, someone could at that stage lodge a complaint which would require a whole investigation? There must be some reasonable time scale within which the general public know they can lodge complaints and also within which solicitors know matters may not again be reopened.
Deputy Shatter will notice in section 8 (1) that the Law Society "may, if they think fit. . . do one or more of the following things. . ." That is following an investigation, so there is an obligation there to investigate. He will also notice in section 8 (5) — that is the new subsection (5) which we put in by official amendment — the society "shall not make a determination unless. . .."
Again determination follows an investigation, so the responsibility is still there to investigate. I take the Deputy's point. It is not unreasonable and I will consider it.
Let us take a situation where a solicitor has been pursuing a case and it has gone to quite an advanced stage, perhaps been set down for hearing — as you will be aware there is far greater movement of clients from solicitors' firms than there was in the past, particularly with rights of advertising etc. — if someone has put in a considerable amount of work and is then authorised or directed by another solicitor to transfer a file and suppose the file is not transferred immediately, the matter then goes before the Law Society for investigation as to why it is not transferred. Has the Minister given any thought — perhaps he might consider it for Report Stage — to the protection and reimbursement of the solicitor who has advanced all of the work, who has had considerable outlays and expenditure, and put a great deal of time and effort into a case? The Law Society would normally ask for an undertaking from the solicitor taking the file. How can such a matter be resolved? I do not know whether the Minister can provide for that here.
The society have power to investigate a complaint. If in fact a person wants to move and a solicitor feels that he is not going to be reimbursed if he transfers the file the matter then goes before the law society for investigation.
To make a complaint?
A complaint can be made over not transferring the file.
Does the Minister intend to bring in any further proposals on Report Stage in relation to the solicitor-client arrangement? Does he feel that costs are adequately dealt with in this section or will he leave the question of cost control to the Taxing Master?
The next section deals specifically with people who are complaining about overcharging and it gives the law society power to do certain things and to receive complaints. One of the sanctions available to the law society under section 8 is to reduce costs or order the solicitor to pay back some of what he has already charged. We have accepted a number of proposals in relation to section 8. A number of good points have been made which we will be considering on Report Stage and it is possible that we will then propose even further amendments to section 8. The question of overcharging and giving the law society the right to deal with that is specifically dealt with in the next section.
I realise that. Can I read it now that, even if the law society make a judgment in relation to the level of cost, that decision can be overturned subsequently by the Taxing Master? Is that a proper interpretation?
Under section 8 — no.
Chairman
While I find everything that everybody said highly illuminating we have 138 amendments relating to sections 1 to 22 of the Bill alone. We spent almost 40 minutes on this last amendment. If we proceed like that it appears to me that the Bill will not be passed in my lifetime. Therefore, if we could try to get into summaries more often it would be helpful.
We must remember that this is almost the end of October and I understood we would have a lot of meetings——
Chairman
I cannot go into that now, Deputy.
If all the meetings made the same progress as the meetings we have had I do not think we would be much further advanced regardless of the number of meetings.