I move amendment No. 43:
In page 9, subsection (1), line 30, after "made" to insert "or given".
This is a drafting amendment.
SECTION 11.
Amendment agreed to.
I move amendment No. 44:
In page 9, subsection (1), line 35, after "Court" to insert "on notice to the Society".
This amendment will improve the Bill. It will ensure that the Law Society will have notice of an appeal to the High Court taken by a solicitor under section 11. It puts the obligation on the solicitor to give notice to the Law Society that he has appealed their determination under section 8 or section 9.
Will the Minister explain the workings of section 11 and this appeal to the High Court? It seems to relate to a determination made on matters — perhaps the Minister would indicate whether I am right on this — that arise both under section 8 and under section 9. I am coming back to the costs issue. Is it envisaged that under section 9 the society could make a decision that there should be a refund in respect of costs or that costs should be reduced and the solicitor could then appeal to the High Court?
Chairman
I am sorry, Deputy Shatter for interrupting you but your comments relate to the section. May I deal with the amendments first?
Amendment agreed to.
I move amendment No. 45:
In page 9, between lines 38 and 39, to insert the following subsection:
"(2) Where a solicitor in respect of whom a determination or a direction has been made or given by the Society under the provisions of section 8 (1) or 9 (1) of this Act, has not applied within the period provided to the High Court under subsection (1) of this section, such determination or direction shall become absolutely binding on the solicitor immediately upon the expiration of such period.".
Amendment agreed to.
I move amendment No. 46:
In page 9, subsection (2), line 39, to delete "If" and substitute "Where the Society have given notice in writing to the solicitor or his firm under the provisions of section 10 (1) of this Act and where".
Amendment agreed to.
I move amendment No. 47:
In page 9, subsection (2), line 39, to delete "a" and substitute "the".
Amendment agreed to.
I move amendment No. 48:
In page 9, subsection (3), lines 48 and 49, to delete "he has delayed unduly in proceeding with his appeal, and" and substitute "such application has no merits and has been made purely for the purposes of delay, and, where applicable and if the Court thinks fit".
This amendment will strengthen the power given to the High Court under section 11 (3) to dismiss an appeal brought by a solicitor under that section by empowering the High Court to consider if an appeal has any prima faciemerit. Otherwise it is feared that a solicitor might be able to postpone action being taken by the Law Society under sections 8, 9 or 10 of the Bill by delaying proceedings with his appeal after it has been lodged within the 21 day period and the High Court might adjourn the appeal indefinitely.
Amendment agreed to.
I move amendment No. 49:
In page 10, lines 1 to 6, to delete subsection (4) and substitute the following:
(4) If a solicitor, in respect of whom a determination or direction has been made or given by the Society under the provisions of section 8 (1) or 9 (1) of this Act or who has received a notice for production or delivery of documents from the Society under the provisions of section 10 (1) of this Act (to the extent that it has not been rescinded or varied by the High Court pursuant to an application under subsection (1) of this section), refuses, neglects or otherwise fails to comply with such determination or direction or notice without reasonable excuse, he shall be guilty of an offence and be liable on summary conviction to a fine not exceeding £1,000.".
Amendment No. 1 to amendment No. 49 not moved.
Amendment agreed to.
Question proposed: "That section 11, as amended, stand part of the Bill."
I am anxious to ensure that, in this costs area, we do not end up with chaos rather than a solution. Let us take an allegation that a solicitor has charged excessively. Is it envisaged under section 9 that the Law Society could decide he had charged excessively and that the solicitor could then appeal that decision to the High Court? Is it envisaged that the High Court would then engage in an examination of the costs? Secondly, if the Law Society decides a solicitor has not charged excessively but the client is not satisfied with that, is it the position that the client cannot appeal to the High Court under section 11 but that he is left with the remedy of bringing an application before the Taxing Master?
The answer to both question is yes.
May I suggest that that is illogical? I was making the case earlier that a solicitor should be able to have these matters adjudicated on his or her initiative with the Taxing Master, because what you are then setting up is a system which is purporting to be simpler and to reduce costs for everyone. However, the reality is that if the solicitor is not happy with the decision of the Law Society the solicitor then appeals it to the High Court. In the High Court — I am not sure about this — does the society defend their decision that the solicitor has charged excessively or is it a matter for the client or both the client and the Law Society who have a right of appearance?
It would seem that if you tried in that circumstance to exclude the client from a right of appearance, as the client is the person directly affected by the decision, they would, upon application, be added by a High Court judge as the notice party to the proceedings. I am in favour of discovering a way this can be done more cheaply and speedier.
It seems that what this is doing is, instead of allowing the Taxing Master deal with it with cost accountants, who are cheaper to employ than senior or junior counsel or senior and junior counsel together, creating a situation whereby a client who has an adjudication that a solicitor has charged excessively can find the solicitor appealing the excessive adjudication to the High Court. The solicitor, presumably, would have counsel representing him, the Law Society might have counsel representing it and, as the client has a financial interest in the matter, the client would be extremely foolish not to be represented. It would seem to be a cumbersome procedure than, as Deputy Taylor said, the more accessible, independent adjudicator, in other words the Taxing Masters.
If we had more Taxing Masters and they were more accessible and the whole procedure was less expensive, it would give rise to fewer appeals and be more straightforward. We will have two strings of appeals from this, one by the client, possibly to the Taxing Master, and one by the solicitor, possibly to the High Court. If the client does not like the decision of the Law Society and gets a decision from the Taxing Master and the solicitor does not like the decision of the Taxing Master the issue will end up in the High Court again.
I am pointing out to the Minister in a constructive way that while the idea behind this may be a good idea, there may be confusion. In the case of misconduct the Law Society makes the decision and there may be an appeal to the High Court and there may be constitutional reasons for that. It is because the taxation of costs is dealt with by the Taxing Master, and the county registrar at circuit court level, that there may be genuine confusion. I do not think that is intended but there is genuine confusion as to how the provision is going to work. That is to the detriment of the legal consumer, the client or the customer of the legal profession who has a genuine complaint and it is to the detriment of those who work in the legal profession.
I appeal to the Minister to have a look at the costs issue and the interaction between sections 9, 10 and 11 and the workings of the Taxing Master of the High Court because, rather than this being a remedy for problems where people have dug their heels in where there is an outright conflict between a solicitor and a client, there is the addition of an extra layer to the problem. I have grave doubts legally about the way this will work in the context of one party having an appeal to one body and another party having an appeal to another body; it is a very odd way to deal with the problem. This was put in place without a clear view as to how the Taxing Master works in practice and the cost factor is being overladen with allegations of misconduct and so on. There is a need for clarity and consistency in the way we approach this.
I do not think I can add any more to that issue but I would seriously urge the Minister to look at it. I do not believe the Law Society, with all the promises they are making to the Minister, have thought this through. It could well be that those in the Law Society who have thought about this are solicitors who have great conveyancing experience but not much litigation experience and very little experience with regard to Taxing Masters of the High Court.
There is a need for greater clarity in how this is going to operate. It is confused and could result at the end of the day in disputes being more long drawn out and more expensive for both clients of the legal profession who feel aggrieved and for members of the legal profession who might be facing some charge or claim that they behaved improperly in the area of costs and who feel a burden imposed on them by that and want the problems resolved.
The Minister may want to make some response but it seems to me, as we tease this out, there is a real problem with the workings and interaction of these sections with the powers of the Taxing Master.
In answer to Deputy Shatter's request to me, I will, of course, look at this. I have taken note of what he said in relation to section 9 and we will be looking at the matter in total. What we are trying to do is to help the consumer of legal services. There is no intention to hammer or penalise the legal profession in any way but we are trying to assist the consumer by putting a mechanism in place which it is hoped, will allow the consumer initiate an easier — psychologically easier from his point of view — procedure than going to courts and solicitors again, namely through the Taxing Master. We are attempting to aid the consumer but, as was said, there are difficulties in this because this is new in Irish law.
In relation to the appeal to the High Court by the solicitor — I think the committee will agree with this — I do not think we could constitutionally make the decision of the Law Society final in that respect. We must give the solicitor the right to appeal but I will look at it. There are two further points I want to make. I said I will discuss with the Law Society — we have ample time to discuss this with them — exactly what sort of system it is intended to put in place because I have been informed there are similar provisions in operation in Scotland. I intend to get a report on those and look closely at how they operate in practice. The final point I want to make is in relation to the appointment of the extra Taxing Master. The vacancy in the position of Taxing Master was filled yesterday, the committee will be delighted to hear.
Can the Minister tell us who the new Taxing Master is?
I am informed that it is a Mr. Flynn, no relation.
I urge the Minister in looking at it to retain if at all possible the Law Society as the body to which the issue will be taken initially rather than direct to the High Court.
Question put and agreed to.