Dáil Éireann díospóireacht -
Wednesday, 18 Nov 1998

Vol. 496 No. 7

Solicitors (Amendment) Bill, 1998 [ Seanad ]: Second Stage.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue)

I move: "That the Bill be now read a Second Time."

The main purpose of this Bill is to place more effective controls on the nature and extent of advertising by solicitors, particularly in the area of personal injuries. The Bill specifies what may and may not be contained in solicitors' advertising generally. It prohibits advertising which expressly or by implication refers to claims for damages for personal injury and treats contravention of the advertising provisions in the Bill as misconduct by a solicitor for the purposes of the Solicitors Acts. The Bill also removes difficulties and anomalies in certain procedures of the Disciplinary Tribunal for the solicitors' profession, and it strengthens the power of the Law Society to prohibit contravention of the Solicitors Acts in relation to advertising and other matters concerning the conduct of solicitors.

The Law Society has indicated its support for the Bill and I welcome that support. It is important that the society has made clear its position because it is the general regulatory body in relation to the solicitors' profession. The society has indicated that while the present law provides for limited control of advertising, it is not adequate to deal with the excesses which have become prevalent among some of its members.

Advertising by a small number of solicitors is blatantly litigious. It openly invites persons to make claims and it stirs up business involving claims against employers, occupiers, State organisations or any other mark for damages. This advertising is pushy, "in your face" and sometimes personalised. The advertising in question has brought the good name of the solicitors' profession into disrepute. Advertising by solicitors in relation to Army hearing impairment cases is but one example of the kind of advertising which this Bill aims to deal with. The intention of the Bill is to ensure that the solicitors' profession as a whole will work within a reasonable standard advertising code. The reality which cannot be ignored is that the actions of a few have tended to lower the public's respect for the profession. It is time now for this matter to be addressed.

The Law Society carried out admirable work on a code of conduct over a long period of time which culminated in 1988 in a code, A Guide to Professional Conduct for Solicitors in Ireland. It is the work of many eminent solicitors and it is a monument not only to them but to the wisdom of the society in promulgating the work and bringing it to finality. The foreword to that code of conduct by the then President of the Society, Thomas D. Shaw, is as relevant in the context of this Bill as it was in 1988. He stated that "sound ethical conduct is the foundation on which any profession should base the conduct of its business", and among his concluding remarks were the following:

This Code of Conduct attempts to translate ethical philosophy into a practical set of rules and conditions, based upon sound common sense, culled from the collective wisdom of practitioners over many years. Professional conduct is largely a matter of self-discipline. It has to do with personal pride, pride in oneself and in one's profession. It transcends the purely legal aspects of a situation, because sometimes even when the legal niceties are attended to there can be a choice between common sense and sharp practice. Ethical conduct has to do with standards of common decency the observance of which affects that very precious commodity the "good name" of the profession to which every solicitor has the honour to belong. It is to be hoped that this Code of Conduct will act as a ready reference to solicitors as to what is proper in the many diverse situations in which they find themselves as they go about their daily business in close proximity with the public which they have the honour to serve.

When the Law Society published its code of conduct it elected, with some reluctance and after considerable debate, to allow advertising under certain conditions. The society, since 1955, had, by regulation, prohibited solicitors from advertising their services to the public. While the 1988 regulations allowed solicitors to advertise, they prohibited advertising which was in bad taste, false or misleading, claimed specialist knowledge or superior quality of service over other solicitors or was critical of other solicitors. Those advertising provisions were subsequently put into primary legislation by the Solicitors (Amendment) Act, 1994.

I propose, briefly, to set out for the information of the House the main provisions of the statutory code, contained in Acts of 1954 to 1994, which currently apply to advertising by solicitors.

Section 71 of the Solicitors Act, 1954 empowers the Law Society to make regulations with respect to the professional practice, conduct and discipline of solicitors. That section was extended by the Solicitors (Amendment) Act, 1994 to provide that the society may not prohibit advertising except in the case of advertising which is likely to bring the solicitors' profession into disrepute, is in bad taste, reflects unfavourably on other solicitors, contains an express or implied assertion that a solicitor has specialised knowledge superior to other solicitors, is false or misleading, consists of unsolicited approaches to individuals for business or is contrary to public policy. These legislative provisions were given detailed effect by the society in regulations made in 1996.

Under the regulations of 1966 a solicitor is obliged to furnish the Law Society with a copy of an advertisement issued within a 12-month period of its date of issue when requested to do so by the society. Breaches of the regulations may be investigated by the Disciplinary Tribunal and may be found by the tribunal to be misconduct within the meaning of the Solicitors Acts of 1954 and 1960. The 1994 Act gives the Disciplinary Tribunal power, where it has found a solicitor guilty of misconduct, to advise, admonish or censure that solicitor and to order him or her to pay a sum, not exceeding £5,000, to the compensation fund of the society or an aggrieved party. In addition it has the power to refer the matter to the High Court which has the power, inter alia, to strike the name of the solicitor off the roll, suspend the solicitor from practice for a specified period of time or place restrictions on the solicitor's practice.

A person who refuses to obey a direction of the Disciplinary Tribunal is guilty of an offence which carries a maximum fine of up to £10,000 and/or two years' imprisonment. Where the offence is tried summarily, the maximum penalties are a fine of £1,500 and/or 12 months' imprisonment. Disciplinary Tribunal orders may be appealed by a solicitor to the High Court. Disciplinary tribunal orders may be appealed by a solicitor to the High Court.

The Bill repeals and re-enacts many of the provisions of section 71 of the Act of 1954 as inserted by the Act of 1994. A main difference is that the details of prohibitions on advertising will now be contained in primary legislation rather than in regulations made by the Law Society. The Bill aims to ensure that the kinds of excesses of advertising experienced to date will be a thing of the past.

I now turn to the specific provisions in the Bill. Section 1 is the main provision. It amends section 71 of the Solicitors Act, 1954, which relates to regulations with respect to the professional practice, conduct and discipline of solicitors, by the substitution for subsections (2) to (7) of ten subsections, many of which contain either new or amended provisions. Before dealing in detail with these new subsections I first draw the attention of Deputies to definitions contained in the new subsection (10).

The definition of "advertisement" is wide and covers any oral, written or electronically produced communication which publicises a solicitor or his or her practice. It includes any material or statement for general publication and any audio or video recording or any presentation, lecture, seminar or interview.

The definition of "claims for damages for personal injuries" means claims for damages or compensation for personal injuries suffered by a person owing to an act of another person. The term "personal injuries" is defined as including any disease and any impairment of a person's physical or mental condition or death.

The new subsection (2) corresponds in large part to existing law in so far as it prohibits solicitors from publishing or causing to be published an advertisement which is likely to bring the solicitors' profession into disrepute; is in bad taste; reflects unfavourably on other solicitors; contains an express or implied assertion of specialist knowledge in any area of law or practice which is superior to that of other solicitors; is false or misleading; is contrary to public policy.

Other provisions, however, are new and are of particular relevance. A solicitor is prohibited from publishing or causing to be published an advertisement in an "inappropriate location" which is defined in subsection (10) as including a hospital, clinic, doctor's surgery, funeral home or cemetery. Many people would find it extraordinary that any solicitor would attempt to promote his or her practice as a solicitor in such a location. The fact in some cases, as I have learned in the recent and not so recent past, is that truth is stranger than fiction.

Subsection (2) also prohibits advertising which expressly or impliedly refers to claims or possible claims for damages for personal injuries; the possible outcome of such claims; the provision of legal services in connection with such claims; which expressly or impliedly solicits, encourages or offers any inducement to any person or group to make such claims.

A key provision is the new subsection (3). It prescribes the information which may be contained in a solicitor's advertisement. An advertisement can include the name, address, including electronic address, telephone and facsimile number and place of business of the solicitor. Particulars of the academic and professional qualifications and legal experience of the solicitor may also be provided as well as factual information on legal services provided and any areas of law to which those services relate, particulars of any charge or fee payable to the solicitor, and other information specified in regulations made by the Law Society.

The new subsection (4) makes clear that, without prejudice to the prohibition on advertising in relation to claims for personal injuries contained in subsection (2), solicitors may, when advertising, include the words "personal injuries" in the factual information they provide.

The Law Society will be required under the new subsection (5) to make regulations, with the Minister's consent, to give effect to provisions in the Bill. The regulations, among other matters, must make provision in relation to advertisements by a solicitor, including the manner of their publication, their form, content or size. They must restrict solicitors from "touting" and provide for the manner of determination by the Law Society of a contravention of the advertising provisions in the Bill or regulations made under it.

The new subsections (6), (7) and (8) repeat existing provisions in the Act of 1994. Those subsections enable the Law Society by regulations to prohibit the advertising by solicitors of any charge or fee for a specified service where the Law Society considers it appropriate and where the Minister is satisfied that such regulations are in the public interest. The subsections prohibit a solicitor from charging less for a legal service than any charge or fee specified under any enactment for the time being in force and empower the Law Society to provide by regulations that solicitors, who satisfy the Law Society of specialist knowledge in a prescribed area of law or practice, be permitted to advertise themselves as having such knowledge.

The advertising controls provided for in section 1 in relation to personal injuries apply by virtue of section 2 to non-solicitors also. Given the extent to which non-solicitors advertise services of a legal nature in the area of personal injuries it is only reasonable that statutory controls which apply to solicitors in this area should also apply to non-solicitors.

There is a need to address the question as to whether and to what extent the new provisions affect existing advertisements. Section 3 provides that sections 1 and 2 shall not apply to advertisements published not more than three months after the commencement of the Bill. This will give solicitors a reasonable time within which to acquaint themselves with the new provisions and to be on notice on how to act within the parameters of those provisions for the future.

The Solicitors Acts of 1954 to 1994 specify what constitutes misconduct by a solicitor. Breach of advertising provisions in those Acts constitutes misconduct. Section 4 of the Bill extends the definition of misconduct for the purposes of those Acts to include breach of the new advertising provisions in the Bill. The section also provides that any solicitor who acts with an unqualified person whom the solicitor knows to be acting in contravention of the Solicitors Acts shall be guilty of misconduct under those Acts, including provisions in the Bill. Accepting instructions from any such person or any other conduct tending to bring the solicitors' profession into disrepute will also constitute misconduct.

Sections 5 and 6, which I initiated on Committee Stage in the other House, have been included as a result of consultations between my Department and the Law Society. Both sections amend the procedures to be followed by the disciplinary tribunal when inquiring into the conduct of a solicitor against whom misconduct has been alleged.

Section 5 amends section 7 of the Solicitors Act, 1960, as substituted by section 17 of the Solicitors (Amendment) Act, 1994, and is designed to strengthen the disciplinary tribunal's procedures in a number of respects.

Paragraph (a) makes it mandatory for the tribunal to include with its report to the High Court "a verbatim note of the evidence given and submissions made" to the tribunal in the course of its hearings. Under the law, as it stands, the tribunal is required, on completion of its inquiry into alleged misconduct by a solicitor, to embody its findings in a report to the High Court specifying the nature of the application, the evidence laid before the tribunal and any other matter which the tribunal thinks fit to report. Because the full transcript of the proceedings is not made available to the High Court, it leaves open the possibility of challenge, by way of judicial review, by either the applicant or respondent solicitor, as to the accuracy of the tribunal's report. Paragraph (a) remedies this potential difficulty and the availability of the verbatim note will have the added advantage of minimising delays in the production of the tribunal's report for the High Court.

Section 5, paragraphs (b) and (c) deal with service of the tribunal's report and order. At present, the tribunal is required to serve a copy of its report to the High Court and to serve its order under section 7(9) of the 1960 Act on the respondent solicitor. The amendments contained in paragraphs (b) and (c) oblige the tribunal to serve copies of the report and order on the Law Society and, where appropriate, the lay applicant. The documents in question must be served within 21 days of their preparation. These provisions will ensure that all parties before the tribunal are dealt with equitably and that the tribunal's proceedings will be seen to be open and transparent.

Section 5 paragraph (d) provides for amendment of the law relating to appeals to the High Court against an order of the tribunal in two ways. First, it provides that the Law Society and applicant in the proceedings before the tribunal shall have the same right of appeal against the order of the tribunal as the respondent solicitor currently has. At present, the society or the applicant may only appeal in respect of the adequacy of the sanction imposed by the disciplinary tribunal or on the basis that, in lieu of making an order, the tribunal should have referred the matter to the High Court. I am satisfied that, in the interest of equity, the society and applicants should have the same right of appeal as the respondent solicitor.

Second, paragraph (d) provides that the period of appeal will run 21 days from the "date of service of the order or the report, whichever is the later" in place of the current provision for the period of appeal to run 21 days from "the date of service of the order" only. The tribunal's report, which contains its findings and the evidence presented to it, is of singular importance in any appeal and is of particular relevance to the parties contemplating an appeal against an order of the tribunal. Given that the appeal period of 21 days is relatively short and that, in some cases, the tribunal's report may not be ready for some time after the issue of the order, I am satisfied that for the parties to fully assess the tribunal's findings, the date of appeal should run from the date on which the full particulars of the tribunal's findings and its order are available to all the parties.

Section 6 amends section 23 of the Solicitors (Amendment) Act, 1994, to allow the Law Society to publish a summary of the disciplinary tribunal's report on its findings in proceedings against a solicitor for alleged misconduct. At present, section 23 provides that the Law Society may, on receipt of an order from the disciplinary tribunal, publish the order or notice of the making of the order and its effect. Such publication has undoubtedly a certain deterrent effect on solicitors. However, publication of the order, which often contains no more than the sanctions imposed by the tribunal or its effect, may not make clear in all cases the nature of the misconduct of which the solicitor has been found guilty or the significance of the misconduct. Consequently, the deterrent effect of publication can be diminished. On the other hand, the disciplinary tribunal's report specifies the nature of the complaint against the solicitor, the evidence which is presented to it in the course of its inquiry into the complaint and its detailed findings. The view of the Law Society, with which I agree, is that more disclosure should be made of the findings of disciplinary hearings against solicitors. Publication of such hearings would give rise to greater transparency and it could also have a greater deterrent effect than simple publication of details of the penalty imposed on a solicitor for his or her misconduct.

The remaining section of importance in the Bill is section 7. It provides that, on application by the Law Society, the High Court may where it is satisfied grant an injunction prohibiting contravention of the Solicitors Acts by a solicitor or any other person, notwithstanding that such contravention may constitute an offence. The background to this new section is that in a High Court case, the Incorporated Law Society of Ireland v. Carroll and others — 1993, vol. 3, Irish Reports, p. 145 — the Law Society sought declarations that a defendant who was not a solicitor and who had held himself out to be such had contravened the Solicitors Act, 1954, and sought injunctive relief restraining him. In refusing to grant the injunction the court held that, while the society had power to bring a criminal prosecution against a person who commits an offence under the Solicitors Acts, it did not have the power to obtain an injunction to prevent a person from breaching the Solicitors Acts. Section 7 of the Bill now provides for that power against any person, both solicitors and non-solicitors.

The House will agree that the Bill is warranted and that it will achieve a reasonable balance between the right of solicitors to communicate and the need to maintain good ethical standards in the legal profession consistent with public policy. I commend the Bill to the House.

Mr. Higgins

(Mayo): While I welcome the Bill, it is too little too late. It is akin to closing the stable door when the horse has bolted. The compensation culture rampant in this country derives from two decisions in which the Minister's party played central roles. First was the Law Society decision of 1988 to relax the rules governing advertising by solicitors. It is worth recalling the Law Society made its decision in 1988 after much agonising and under threat from the Government of the day that, if it did not drop the prohibition on advertising, the Government would introduce legislation to ensure it did so. It was the era of open and free competition. Knife edge, cut and thrust competition was the order of the day. It may have seemed a sensible decision at the time, but there was grave anxiety within the legal profession about it. There was a great deal of soul searching and the decision, when made, was by way of postal ballot and was carried by the slimmest of margins.

The second instrument responsible in part for encouraging the culture of compensation was the Solicitors (Amendment) Act, 1994. There is no doubt that this opened the door further. While it sets down a series of guidelines, rules, strictures and sanctions for any breaches, the reality is that not alone have these not been effective but the relaxation of the ban on advertising has been the single greatest stimulus for the spate of compensation claims which annually records a dramatic increase. That legislation lifted the lid and it is impossible at this stage to put the genie back in the bottle.

Each high profile area of compensation seems invariably to trigger off some other potential area of claim. The unfolding saga of Army deafness claims, with estimates of the final cost to the taxpayer being between £1 billion and £2 billion, has opened up other potential areas of claim. It will be noted about the Army deafness claims that there is a distinct pattern in some cases and a distortion in others. A reply was given to the House by the Minister for Defence, Deputy Michael Smith, on 17 December 1997 to a question asking him to set down all details relating to claims made by various regiments, squadrons, battalions, etc. It showed that, while the 1st Infantry Battalion in Galway, a sizeable one in the Western Command, had a mere five claims at the time, the 12th and 13th Infantry Battalions in Limerick, which are the same size as the 1st in Galway, had 159 claims. I do not want to make spurious allegations but it seems more than coincidental that there is a massive increase in one battalion over another which has been exposed to the same occupational hazards in the same set of circumstances, yet in the case of Limerick the claims amount to 159 as against five for a battalion of the same size in Renmore, Galway. I would not like to draw an inference from the fact that one of the people in Limerick actively touting for business in Army deafness claims is a former Army officer who is now a solicitor.

Other like comparisons can be made. In the 28th and 29th Infantry Battalions in Donegal, 42 and 20 claims respectively have been made. Donegal is a substantial battalion covering Finner, Letterkenny and Lifford, and it is no coincidence that the person openly advertising for business in Army deafness claims is a solicitor who is the wife of former Army officer.

In the 3rd Infantry Battalion in the Curragh, 63 claims have been made while the figure for Kilkenny is 53. There seems to be a Newbridge influence in those cases showing a tangible connection between people who formerly served in the Army and those now openly touting their services. Going through the list, one can see increases in claims where open touting is taking place.

I tabled a question last week to the Minister for Justice, Equality and Law Reform on the number of deafness claims from members of the Garda Síochána. A total of 72 gardaí have made deafness claims and while the Minister talked tough during Question Time by insisting that claims would be vigorously defended and that there would be no easy settlements, the reality is that the handful of claims settled so far were for £32,000 each. That is not small change. The Department does not appear to have a strong defensive policy in these claims. The merits or otherwise of every case must be thoroughly investigated.

I received a reply from the Minister some time ago in relation to personal injury compensation. The figure for his office is relatively small but in regard to the Garda Vote, actions involving official vehicles amounted to 582 in 1994, with the number of payments made being 396. The total expenditure, including compensation and legal fees, involving official vehicles was £2,652,472. The situation worsened in 1995 when a total of 590 claims were made. A total of 639 claims were made in 1996 while in 1997, 659 claims for civil actions were made of which 534 were paid at a cost to the taxpayer of £3,898,449.

This House and taxpayers are owed an explanation of the kind of occurrences that give rise to 659 cases being brought and 534 settled at a cost to the taxpayer of £3.8 million.

In examining the number of claims under the Garda Síochána (Compensation) Acts, 1941-5, I note that 258 claims were made in 1997. The number of claims on which compensation was paid was 50. The amount of compensation was £1,388,000. That is a welcome reduction on the 1992 figure where 372 claims were made, of which 293 were paid costing the taxpayer £4,471,000. In regard to the prison Vote, 102 claims were made in 1997, 59 of which have been settled so far at a cost of £883,000.

There is a need for a root and branch examination of the way we deal with compensation claims, and it should start with Government Departments. While I welcome the commitment of the law society to the procedures set down in the Bill and its commitment to self-regulation, I fear its task will not be easy because so many legal firms are actively promoting the compensation culture through the most reckless form of advertising. No attempt is made at subtlety in these advertisements. The most blunt form of inducement is used. Advertisements which read "Personal injuries. No foal, no fee. We settle most of our cases out of court so you will not have to worry about embarrassing publicity" have become the norm. Taxis carry advertisements stating:

If you accidentally collide with the car in front of you, you may have a successful and lucrative personal injury claim to make. We are the experts to advise you. Contact us.

The firm of sponsoring solicitors is named, the telephone number is given and of course the first consultation is free.

One would have thought that these legal firms would begin to move away from such aggressive marketing in view of the imminent prospect of this Bill becoming law. The Minister referred to section 3 providing an acceptable run-in period to allow people adjust to the new regulations. There should not be any adjustment period provided. As soon as this Bill becomes law and the order is made, it should take effect immediately.

The Minister referred to the deterrent effect of section 23. I am not optimistic about that because, irrespective of how this Bill might signal new strictures, those in the industry have not taken the hint even though the measures in the Bill have been well flagged.

The very week the Bill was being taken in the Seanad, advertisements in the Sunday newspapers ran the banner headline "Have You Been Exposed to Asbestos?" The advertisement went on to state:

You probably know that Asbestos can be "harmful". You may have been told to be "careful" when working with it. But has anyone told you the full story?

If you inhale Asbestos dust it will harm your lungs but you might not find this out for years. It may take twenty to thirty years before it kills you.

Yes, Asbestos dust can and does kill people. In the UK more than 3,000 people are dying each year from Asbestos related diseases. There are no accurate figures available for the Republic of Ireland.

You are likely to have come in contact with Asbestos at work. Those at risk include people employed in construction, maintenance and manufacturing, as well as electricians, plumbers and laggers.

But you don't have to work with Asbestos. Wives have been harmed because of the Asbestos dust carried home on the overalls of their husbands.

I wonder what would happen if it came home on the underwear.

Entire families have been affected because they lived close to a factory or an Asbestos dump.

If you think your health has been put at risk because of Asbestos you may wish to know more.

We are a firm of solicitors specialising in personal injury law. At present we are investigating numerous claims of Asbestos exposure. Maybe we can help you. Please phone us if you would like more information or why not avail of our free first consultation.

We are putting legislation through this House which will send out a strong signal to curtail blatant touting, yet here is a large, so-called reputable city centre firm of solicitors openly encouraging anyone who may have come into contact with Asbestos to come forward for advice about a personal injury claim. It is the crudest form of exploitation. It plays on people's fears, anxieties and emotions and anyone can see that it is deliberately drafted to create the maximum doubt in people's minds. It asks if anyone has told the full story and suggests that it may take up to twenty or thirty years before asbestos kills its victim. It reminds the reader that asbestos dust can and does kill people. The reader is not even asked if he has come into contact with asbestos. The advertisement tells him that he has come into contact with asbestos at work. The scope is further widened to the tradesman's wife and family and the neighbourhood and entire community are invited to get in on the act. Wives, it is claimed, have been harmed by asbestos dust carried home on the overalls of their husbands.

Mr. Roche

It does not mention the fellow standing at the bus stop.

Mr. Higgins

(Mayo): Advertisements such as this demean the legal profession. No one suggests that any person should be denied his or her legitimate and constitutional right to compensation for genuine personal injury. However, the instant and automatic reaction of a substantial number of people is to lodge a claim with a solicitor if they suffer the most trivial injury and occasionally when they suffer no injury at all. It has become the norm. No question of morality is involved. Indeed, morality has no place in situations where people deliberately set out to exploit fears and anxieties, as was done in the advertisement I cited. The current situation is seen as a harvest of rich and easy pickings. The problem must be tackled on several fronts and this Bill goes part of the way towards doing that.

There is a growing and worrying tendency not to fight personal injury claims. This is particularly true of public bodies so that local authorities, Government Departments and semi-State bodies are seen as soft touches. Too many cases are settled out of court. Dublin Corporation has a specialist claims unit in its finance department. Well might Dublin Corporation require such a unit because in 1997, 593 personal injury claims were lodged against it. Of these 502 were settled and the total settlement for the year was £4,720,399. The tendency to settle out of court sends out a wrong signal.

The issue of excessive legal costs must also be tackled. While the amount paid out in compensation by Dublin Corporation in 1997 came to £4.7 million, the amount paid in legal costs came to £2.3 million. These costs are particularly out of proportion in view of the fact that most claims were settled out of court. I cite the example of Dublin Corporation but that body is not exceptional. The picture is reflected throughout most public bodies. Not alone does the proliferation of claims play havoc with people's attitudes but also with the services provided by public bodies. In County Mayo, for example, public playgrounds are being closed down because of the number of claims resulting from alleged accidents on swings and other pieces of playground equipment. Minor injuries are seen merely as opportunities to rip off a public body.

An examination of the variety of claims lodged against local authorities makes interesting reading. Claims are lodged for every conceivable situation including falling on roadways and footpaths and in playgrounds, falling from bicycles and motorcycles, driving into potholes and for injuries caused by litter bins and by slates falling from public buildings.

One of the major problems encountered, particularly by Irish Public Bodies Mutual Insurances Limited, in seeking to defend public authorities is that many claims are not made for several months or even years after the date of the alleged accident. This can make it impossible for local authorities fully to investigate the circumstances of the alleged accident. An individual who alleges he sustained personal injuries as the result of falling into a pothole on a public road need not submit his claim until two years and 364 days after the alleged incident. By this time the pothole has been filled in, the local authority has forgotten about it and was probably unaware that an incident ever occurred at the location and there is no hope of seeking witnesses, presenting a cogent defence or of disproving the claim. This problem arises from the Statute of Limitations (Amendment) Act, 1991. This stipulates that the limitation period within which a personal injury claim can be brought runs for three years from whichever of the following dates is later, the date upon which the cause of the accident accrued or the date upon which the person injured first had knowledge of all the following facts: that he or she had received a significant injury; that the injury could have been caused by an act of negligence; the identity of the defendant; where a person other than the defendant is alleged to have acted negligently the identify of that person and the additional facts necessary to bring an action against that person. The limitation period of three years only begins when the plaintiff has full knowledge of the facts surrounding the injury. The time period for lodging claims for damage to property is six years.

Prior to the passing of this Act, by reason of the Statute of Limitations Act, 1957, the limitation period for bringing an action for personal injuries was three years from the date upon which the cause of the action accrued. This formula was generally acknowledged to be three years from the date on which the act of negligence was complete and the damage had been caused. Prior to the passing of the Public Authorities (Judicial Proceedings) Act, 1954, the time limit allowed for bringing an action against a local authority was six months. We must return to that regime. We urgently need an amendment to the 1991 Act which would reduce the time limit now enjoyed. This would allow local authorities fully to investigate and defend third party claims.

When this Bill was introduced in the Seanad, Senator Henry welcomed it as a member of the medical profession. She referred to the huge escalation in the number of medical negligence claims. No one can excuse shoddy medical practice but there is no doubt that the same attitude of opportunism which pervades the general insurance scene has taken a firm grip in the area of medical insurance claims. Fifteen years ago a typical doctor paid £40 per year for medical insurance protection. The average general practitioner is now paying £7,000 per year. Anaesthetists and surgeons are paying £14,000 and up to £18,000 in some cases. Obstetricians are paying between £34,000 and £36,000 for medical insurance protection. The Department of Health and Children, in other words the taxpayer, is meeting the bill for a large number of doctors employed by it. The Department must pay approximately 80 per cent of their medical indemnity costs — more than £20 million of taxpayers' money per year. The figures are staggering. They are growing and will continue to grow unless something is done. In saying this I do not wish to infringe on people's rights to claim in genuine cases.

I regret the Bill does not attempt to address the problem faced by young graduates seeking to enter the legal profession as solicitors. As a result of a court judgment handed down by Judge Foy in a case brought by Queens University graduates, all law graduates must pass an entrance examination before they can enter Blackhall Place. Prior to this judgment, law graduates got automatic entry. In this case, entry examination requirements are unreasonable. I cannot see the logic in asking someone with three or four years' study for a specific legal degree or qualification to sit a duplicate entry examination. The Minister should have entered dialogue with the Law Society in advance of the publication of this Bill to see if this could be rectified. This Bill offered such an opportunity. It deals with a different aspect of the profession but it presents a golden opportunity to rectify an unfair anomaly. I plead with the Minister to examine this and to introduce an amendment on Committee Stage. All sides would have pleasure in supporting such an amendment.

There is another difficulty for law graduates which should be tackled, namely, the difficulty, and in some case the impossibility, of young graduates obtaining apprenticeships. It is unfair that young, highly motivated and qualified, top ranking honours graduates, who entered university with the ambition of becoming solicitors, will never get the chance to practice as they do not have family ties with, or roots in, the profession. The present situation has been overlooked for too long and something must be done to bring some order and create more apprenticeship opportunities. Has the Minister any proposals in this regard?

Another matter which has not been addressed is the unwritten rules concerning the introduction of restrictions on conveyancing. There is an inherent danger in allowing a solicitor to act for both sides. This adds to the dangers of the modern phenomenon of gazumping. Where a solicitor is privy to, and acting for, both sides, there is a danger and a temptation that such a practice will become the norm in view of the linkage between fees and the amounts paid.

I welcome the main thrust of the Bill. However, there are a number of omissions which should be rectified. I look forward to the Minister's response and to the subsequent Stages of the Bill.

Dr. Upton

Listening to Deputy Higgins reading excerpts from the advertisement, I wondered if having a lung disorder caused by asbestos was something to which one should aspire. The language used was appalling.

I welcome the opportunity to address the House on this Bill. It is necessary to protect the consumer from being enticed into taking legal action arising from advertising, but it will also put a halt to the emergence of large scale advertising by companies, not operated by solicitors, who offer legal services in respect of personal injuries.

While the Bill is a measure to protect the consumer, it must be remembered that when the ban on advertising by solicitors was lifted it was not done at the behest of the Law Society. Therefore, I advise against large scale solicitor bashing during this debate. However, I also acknowledge there are legal practices which take huge advantage from the lifting of the ban which have done nothing to abate the compensation culture that has emerged in recent years.

The Bill was published on foot of the Army deafness cases against the State. The number of these cases led the Minister for Defence to adopt the view that solicitors were acting as ambulance chasers and there was a requirement to impose restrictions on how they advertise. While the view of the Minister for Defence may or may not have been correct, it is important to state that, prior to the lifting of the ban, the Law Society stated it was not in favour of such a move. However, it has already been found that, under the Competition Act, the advertising ban was anti-competitive and legislation was drafted and implemented in keeping with that Act. In hindsight, the advertising ban should not have been lifted. Competition does not work well in litigation and the Competition Act should not have applied.

The objectives of the Bill are to change the rules on advertising by solicitors; to ensure the consumer is not abused and to prevent the onslaught of the compensation culture. I hope the change will benefit the consumer. What does the Minister intend to do to restrict para-legal advertising? Does he plan to regulate para-legal advice and advertising? There have been remarkable cases of people convicted of gross criminal activity who set themselves up as legal advisers in the vicinity of the Four Courts.

From the lawyers' perspective, where there is a wrong there must be a remedy. A person who has suffered loss through the fault of another must be entitled to recover damages as compensation. No one could argue with this rationale. There would be no point in asserting the existence of rights under law if remedies are not available. Remedies are essential to restrain breaches of the law and to award compensation which has the effect of vindicating the rights of the individual who has suffered injustice at the hands of another.

Such an award of damages is, as the word compensation makes clear, not intended as a punishment for the wrongdoer but to put the victim, in so far as money can do, in the same position as if the wrong had not occurred. In personal injury cases, out of pocket expenses are met, future losses assessed and an extra sum is arrived at which is intended to cover pain and suffering. However, an economist, sociologist or statistician would argue that modern living is a risky activity. Individuals are at risk from the actions of others and the slightest mistake on the part of another can expose one to extraordinary and far reaching consequences. The public seems unable to accept the concept of risk or to accommodate the notion that life is full of risks which cannot be eliminated.

There is no point in stating that the wrongdoer should cover the costs of his or her mistake as many could not afford to do so. Every lawyer is familiar with the concept of the market for damages — the person or the body with the deepest pocket who can afford to be found responsible. There is no point in finding fault with an individual who cannot pay for his or her mistakes.

Litigation and compensation are a means of sharing risks. The Oireachtas requires that every person who drives a car must be insured for the damage which they may cause. It is recognised that such damage is potentially enormous and beyond the means of most private citizens. Essentially, we as policy holders club together to form a fund from which the needs of victims are met. Although not required by law, in practical terms anyone in the business of providing goods or services to the public must carry public liability insurance. The cost of insurance is reflected in the charges which firms impose and is eventually borne by consumers.

In the law courts, people with extraordinary needs have them met from a common fund. Whether policy holders, consumers or taxpayers, we all contribute to these funds. The true defendant is not named in court. To a large degree, every consumer and taxpayer is the defendant. The function of the court in many ways is to decide who is eligible to pay.

The question the legal profession must answer is whether disbursement from these funds is managed in the most effective and efficient manner. The courts are not primarily concerned with the needs of the plaintiff, but with the responsibility of the defendant. Even though the defendant meets little or none of the cost, he must be blamed in some circumstances. In assessing the merits of a system where the plaintiff's needs do not count as a trigger for payment, and where the defendant does not pay the bill, one has to bear in mind the various other mechanisms society has put in place to meet sudden and extraordinary needs. There are some fine examples of that. Social welfare, pay related insurance and private schemes are based on the concept of individuals grouping together to form a common fund to which each has recourse in time of need. The only difference between those systems and compensation cases is that the purse strings are not in the hands of highly paid professionals who make their living by determining access to the money and extracting a percentage.

For example if a child deprived of oxygen at birth becomes profoundly handicapped as a result, it will impose an emotional, physical and financial burden on those charged with responsibility for its care for the foreseeable future. If nobody is to blame for this accident, the family in question and the State must meet this challenge. If a doctor or a hospital can be found responsible, an award of damages will be made. The cost of the future care of the child will shift from the State, funded by the taxpayer, to a medical insurance company. Most of the premia paid to this company are paid by the State while the rest are made up from charges paid by the general public.

I do not argue that a child in such circumstances is not entitled to the best possible care or that the parents are not entitled to every assistance. Why, however, should the provision of this care and assistance be contingent on finding fault? Why is there such a radical difference between the services the State would supply to such a family from Exchequer funding and those which could be afforded by the insurance company managing the fund premia? Regardless of the route, the money comes from the public. Do we, whether we are paying as taxpayers or consumers of insurance goods and services, really want some needs to be met in full and others to be met on an inadequate basis simply because nobody can be found at fault?

What is at issue is the fairness of the system and its efficiency. The issue is not new. The merits of no fault insurance have been accepted in several jurisdictions and, as a result, the large increases in premia required to fund litigation can be modulated. This is now generally supported by the medical profession, notwithstanding the importance medical personnel attach to their reputations. They are still prepared to disregard that importance in exchange for the efficiencies and improvements which would result and which would not damage the customer. There should be a serious examination, on the basis of efficiency and effectiveness, of State funded, no fault insurance in such discrete areas as medical malpractice and industrial and road traffic accidents. In the meantime, we depend on the courts.

It is a truism that litigation is now confined to the very rich and the very poor. The middle classes cannot afford to get involved. The poor are given a free ride through the legal system. This is not provided by the State, with us as taxpayers, but by the insurance companies, with us as policyholders and consumers.

A litigant with personal injuries will be told by the local legal aid centre that it will not take the action since any private firm of solicitors will take it instead. The private solicitor and his or her barrister will operate on a "no foal, no fee" basis. If the case is unsuccessful, the defendant's insurance company will not pursue an individual with no means for its costs. These become part of the costs of running the insurance company and are reflected in increased premia. In such circumstances, small cases develop a nuisance value where it is simply not worth the defendant's time and energy to contest a case, so small amounts are paid to plaintiffs simply to send them away. Again, the increased expense is borne by the public.

Litigation does not work to the public benefit when it is entered into recklessly by those who are not taking risks with their own money. In some jurisdictions where the State subvents public injury cases, the legal aid board or centre will assess the prospects of success and refuse to finance cases which are of dubious merit. In such jurisdictions, private lawyers who fund litigation from their own resources with a view to taking a share of the profits might encounter rules which would forbid such practices as contrary to public policy.

In this country, one might suspect that at least some of those involved in personal injury litigation adopt a scatter gun approach where the merits of each individual case is less than the number of writs issued. On a statistical or actuarial basis, if one puts enough of these cases through one's hands, one simply cannot lose. It is similar to being the bookie on the racecourse. One can see the risk and work out the odds and, if the numbers are adequately large, one must profit. If the numbers are too small, one might come out at the wrong side of probability, but if one can increase the numbers, one is on a winner.

I wish to conclude with a few remarks about the legal profession. It has a history of being a worthy and worthwhile profession and, to a great extent, it has served the Irish public well. The Minister was correct to draw attention to the good name of the profession, which has been seriously damaged by the activities of a relatively small number of solicitors. A good example of those activities were the advertisements which Deputy Higgins quoted in his contribution. At one level, one could view them as appalling but at another they were so outrageous they were funny.

On a serious note, it is a dreadful and nauseating form of touting for business which one would associate with the more grotesque huckster shops. Any profession which tolerates such practices must seriously consider its position because they are undoubtedly doing it a serious disservice. However, these solicitors would not be in business or publishing such advertisements if there were no compensation culture. If the advertisements did not generate business, they would cease to be published in a relatively short time.

The compensation culture which has developed is one of the nastier aspects of our present prosperity. Years ago, when Irish people were not so well off, they had a feeling for the common good and a sense of social obligation. Their sense of community led them to understand that money in compensation cases came from somewhere, probably from somebody who did not live far from them. In other words, they were aware the money came from the people who lived in the same community. In a society dominated by individualism it is easy to understand how the compensation culture can come to prominence and why people are willing to avail of it. To a large extent, it arose from Thatcherism which facilitated that type of society.

I also wonder about the awards made by the Judiciary in these cases. I do not want to take the easy option of attacking the Judiciary in this debate. However, some of the awards made by the courts must give rise to questions. The problems in this area might have been addressed if adequate data were available about the size of awards, the circumstances surrounding them and so forth. There is a need for a coherent method of gathering statistics and information on the courts within the Department of Justice, Equality and Law Reform. The Minister would not accept amendments to impose an obligation on the new courts agency to gather statistics, but I hope the agency will do it anyway on its own initiative. The information would be extremely useful.

The other ugly aspect of the compensation culture is the practice of defensive professionalism by medical personnel, engineers and other professionals. A defensive professional service is now supplied to the public. In medicine it results in doctors carrying out tests and gathering samples and information which they know are not necessary on the basis of reasonable and sensible behaviour. However, they must take into account how they would fare on the witness stand if confronted by a barrister asking why they did not carry out the tests. Defensive professional practice is a disservice to the public, whose members generally have to endure sufficient invasive medicine because doctors must cover the risk of a compensation claim.

In the case of agencies such as Government Departments and local authorities, one is inclined to wonder in what type of funny world they lived while this compensation culture grew. People in Dublin city organised crashes and accidents in order to claim compensation. It might not have been part of the duties of public officials in these agencies to be aware of that, but anybody out and about in the world should have seen what was going on. It is a great pity that was allowed to continue for a long time. If the information had been gathered, it would have been possible to see there were families which had an exceptional level of risk. The local authority or the State should have wrapped them in cotton wool or placed them in a padded environment where they could not do themselves any more injuries. It seemed as if their cars were attracted to drains and the like. Unfortunately, large sums of money were paid out.

Some of this also arose from what many would see as the old political business of engagement, shrill adversarialism, kicking again to the lowest common denominator. It involved lots of shouting and aggression. It was as if life was a game of football or a boxing contest. All of us, not just in our profession but in some of the other professions should be a little more thoughtful, consider where this is taking us and maybe make some modifications to our behaviour.

I welcome the Bill. I hope it deals with all the issues. I have some concerns in relation to its capacity, or the capacity of any Bill, to deal effectively with all the concerns. Some of the difficulties it is trying to address arise from the nature of society and the values which currently exist. I would be particularly concerned with the para-legal folk who operate at a distance from law, but at the same time are carrying out similar activities to the advertisements. I hope the Bill also adequately tackles and eliminates their activities.

Mr. Roche

I want to follow on from the last fine contribution. The two previous speakers made fine contributions. I welcome the Bill which raises the issue of the manner in which an important profession, the legal profession, relates to society.

The Bill is long overdue. As Deputy Upton stated, in many respects we must blame the Oireachtas for the ills we are now addressing. A few years ago these changes were forced on the legal profession in the belief that practices within that profession were so bad we had to create a marketplace, and we created a monster. In recent years the legal profession has become debased by the activities of some of its members while the legal profession as a whole has served the country well. Sadly, a proportion of the members of that profession are not serving their profession, their clients or their country well. They are debasing the profession and destroying society. They are pandering to greed and to the lowest elements in society.

One need only look at the Golden Pages to see some of the extraordinary lengths to which some members of the profession have gone to tout for business. Deputy Higgins referred to one or two interesting examples. The excesses of these pages give a measure of the breakdown of the profession's capacity to regulate itself.

This will not be the last time I will address the question of a profession's capacity to regulate itself. There can be no doubt the legal profession has lost much of its esteem. There can be no doubt ambulance chasing solicitors, their activities and the advertisements which adorn the national press and the Golden Pages have contributed in no small way to the diminution of the profession's status. Touting for business in the most outrageous way has become the virtual norm. Unfortunately, one can see from the advertisements that some fine old legal firms are now engaged in the same process. They have decided they might as well go with the herd, otherwise they will be left behind.

Some of the most peculiar professional services are on offer in the Golden Pages. On pages 1309 to 1352 there is an exotic array of services on offer which are not pervaded by legal firms in any other country. These include pavement specialists, falling in public places specialists, hearing specialists and so on. It is bizarre. Deputy Higgins pointed out the latest of this exotic array, the asbestos claims specialists. It is nauseous. Full page display advertisements offer all sorts of bizarre arrangements.

Virtually every one of these companies advertise their services as being available on a free first consultation basis. As we are all aware, the free first consultation is less intended as a service to the potential client than as a means of cherry-picking cases. Deputy Upton is correct. If one can build up the case law, the probability is that one will make a mighty big hit.

The problem which has arisen in recent years is one of greed. There can be no doubt Ireland is gripped by a compensation culture. On the one hand, there is the greed of those in the profession who are willing to tout services, drum up business and encourage spurious claims, offering compensation on the basis that there will be no problem getting it and, as Deputy Higgins quoted from an advertisement, there will be no embarrassment because they will fix up outside the court. The previous two speakers are correct. Public authorities which do not challenge spurious cases have a great deal to answer for.

Moral or ethical questions for the client or for the solicitors' firms do not really arise in these cases. It is sad that many people are willing to chance taking a case, no matter how weak, in the hope that they will enjoy a windfall. I remember the late John O'Connor once telling me in UCD many years ago that the best thing that could happen to an Irish person was to have a little road accident and not be killed or maimed, but have enough to leave a mark because one would make a few shillings from it. Unfortunately, that attitude to road injuries which existed ten years ago has escalated to cover almost everything which can happen in the State. Far too many people in modern Ireland adopt a flexible moral attitude when it comes to the issue of compensation. They do not see it as theft, because that is what it is.

Deputy Upton was correct in stating that the courts have some contribution to make. All too often substantial compensation claims have been agreed on the most tenuous of claims. The idea of an Army bandsman making a substantial claim because somebody tooted a trumpet in his ear ten years ago begs the question why everyone who operates in a disco is not queuing up at the High Court seeking compensation. While some cases are rejected and others are reversed on appeal, these are a distinct minority.

Besides solicitors and their clients, and occasionally judges, the Law Society has a great deal to answer for. It is the body charged with governing the solicitors' profession. By any objective standard, it has failed. This failure is not peculiar to the Law Society because we, as a society, allow this professional body to involve itself in self-regulation. In reality, self-regulation does not work. One cannot be judge and jury in one's own case and that also applies to the Law Society. The current increase in compensation claims and the evidence that many solicitor firms actively encourage spurious compensation claims is a breach of the ethical standards of the profession and it is also a clear measure of the failure of self-regulation.

This is not, however, the most important evidence that self-regulation does not work. There are far more serious examples. I will outline one case to prove that self-regulation does not work and to suggest to this Minister, as I have to previous Ministers, that we need to have a serious root and branch examination of this matter. The dogs on the street know that some solicitors tout for business in a manner which shows they do not care from where the business comes, yet one would search long and hard to find public evidence of effective action taken against firms of solicitors which have stepped over the mark by their own professional guardians. Everybody in Dublin knows the firms which specialise in doubtful cases. Like the population as a whole, the Law Society must be aware of the evidence on this issue. Its members read the papers and gossip is plentiful in Blackhall Place and in the Law Library, yet there is no evidence that anything has been done to enforce an acceptable standard of professional behaviour on any legal firm which has behaved in a manner which, by any standard, is outside the norm. Money talks and in this business it speaks at least as eloquently as it does in other businesses. The Law Society has a responsibility not just to society but to the many decent firms and solicitors which it counts among its members, but has failed to fulfil its responsibility to its members or to society. If the failure of the Law Society to do anything to curb the excesses in the manner of advertising was the only failure of self-regulation, I would not be as concerned. It is not the only example of self-regulation failure, there are many others. I give the example of one case which has been through the courts and has been the subject of a very fine judgment of the Supreme Court. It illustrates the problems with this profession.

In the extraordinary case Doran v. Maguire a series of events were unravelled. Over a period of eight years a young couple has been denied a house and a home because of the gross professional incompetence and behaviour of a number of solicitor firms. This couple has lost everything. They first petitioned the High Court, then the Supreme Court and then went back to the High Court to seek justice and restitution for their loss.

As the facts of this case have been well publicised elsewhere, I do not need to dwell on them. However, a degree of detail is necessary because it illustrates the extent to which self-regulation of the legal system has failed. It also illustrates the need for an independent oversight on this and other professions.

In this case the couple bought a site which turned out to be land locked and it was not possible to obtain planning permission. Even if planning permission had been forthcoming they would not have been allowed to build because of an existing legal dispute. When the solicitor for this young couple requested the vendor's solicitor for requisition of title on the matter of any outstanding law case, his queries were dealt with in a manner which can best be described as careless. In response to questions as to whether there was any outstanding disputes on the land in question, the reply given was "no". This is a gross dereliction of duty. It was a breach of the standards which the Law Society prescribes.

To the great credit of the Supreme Court, in a very fine judgment handed down recently it found unanimously that the vendor's solicitors had a responsibility not just to their clients, but to the purchaser to provide full and accurate information. That did not happen in this case. Because it did not happen, almost nine years after the events in question, that family is still living in rented accommodation and still waiting to get a home of their own. The children of that marriage have grown up moving from one rented place to another while they wait for justice.

The real problem in this case is that the Law Society, to which the Legislature has given responsibility for controlling the activities of solicitors, is the same body which is charged with defending the interests of solicitors. It is fulfilling a dual role. It has always been my belief that it is impossible for any profession to fulfil the role; it cannot be done. The State should be the regulating body and we should recognise that. We have handed over extraordinary powers to the Law Society and to other professional bodies. This case and many others are evidence of the failure of the breakdown of self-regulation.

When the most recent Solicitors Bill came before the House some years ago, I argued strongly that there is a need for a completely independent agency to control and oversee the activities of solicitors. Solicitors are no better or worse than the rest of us. None of us is capable of self-regulation. We in this House are the court of the people — they will judge us. Small shopkeepers are judged by their customers, but who judges solicitors? We need a legal ombudsman to deal with the complaints that arise about the operations of the legal profession. The Doran case is a good illustration of this.

Before that couple could progress their action, it was necessary to find a solicitor to take their case. That was no easy undertaking. We all know it is not easy to find a solicitor to sue another solicitor. In this case, as in other cases, one could go to the Law Society. However the Law Society was not much help. My experience, and that of other Members, has been that when one takes such a complaint, it falls on deaf ears. The help which should come from a self-regulating body does not come. Citizens who wish to take an action against a solicitor experience real difficulties. Members can search the Golden Pages but they will not find a solicitor who specialises in suing solicitors because that is the one taboo area they are not willing to enter.

Inevitably the first approach of the Law Society is a defensive reaction. I understand that because the society is a trade union for its members. It does not produce any evidence that the society is overly anxious to become involved in patrolling the activities of members against whom complaints are made. It is wrong that people have to trawl the streets looking for a solicitor to undertake an action against one of their own kind. In such cases, it is no exaggeration to suggest that the courts are not always as sympathetic to the plaintiff as they should be. In the Doran case there was a reprehensible and unforgivable delay in the court action which heaped injustice upon injustice. It would not have been necessary for this couple to go before the formal process of the courts if a reasonable and rational arbitration system had been in operation. It should not have been necessary for particular issues to go before the courts because the Law Society has prescribed high-handed conveyancing. If there is an issue of fact, and one which is clearly misrepresented, it is obvious that those who suffer the tort must be compensated. It should not have been necessary for an Irish couple and their children to put their lives on hold for eight years while they sought justice and went to the Law Society and then through the courts system.

In this case two separate firms of solicitors made serious mistakes at the outset. In spite of these errors, problems could and should have been resolved with relative ease. If an effective and independent complaints mechanism had been in place which would have been able to establish the facts, this problem could have been resolved in a short time without any great expense.

The Dorans went to the Law Society, the society that regulates. They were told to take their problem to a solicitor and were given a list of six solicitors. Their contracts with these firms failed to produce results. When they encountered difficulties in getting a solicitor they went back to the Law Society. Telephone calls were made, messages were left, the official — whom I will not name — responsible in the Law Society did not get back to them. Following more telephone calls, more rejections, the Dorans were lucky to find a young and good solicitor who was willing to take on what seemed an impossible case. To his great credit he brought that case to the High Court and to the Supreme Court.

Another side of the legal establishment is the solicitors mutual defence fund, an august body, that has much clout. That body provides cover for the profession. It took two years and three months from the time the proceedings were initiated to get that case into the High Court. If the Dorans thought an end of their troubles was in view at that stage, they were wrong. It took a further 23 months to get a judgment from the High Court, but there was more to come. The Dorans decided to take the third point of their case to the Supreme Court. Before their case could go before the Supreme Court they had to wait 29 months. Some of that delay arose because the defending solicitors, acting on behalf of the mutual fund, would not agree with all the evidence before the Supreme Court. The biggest delay arose because of the failure of a judge in the High Court case to produce his report for the Supreme Court. I do not want to get into a controversy, but a High Court judge in England recently had to take a hike because he delayed a case for 18 months. With all the delays, it took little short of seven years before that case commenced in the Supreme Court. The Supreme Court found in favour of the Dorans in each and every point raised in their case. The judgment is a great credit to the Supreme Court. In its judgment, the court was very critical of the standards of practice of the solicitors involved in the case. One judge commented as follows: "They ought to have known that the information they were passing on was neither the truth nor the whole truth". I read with great interest the response from the Law Society to that. It is an astonishing indictment of a firm of solicitors. In stark contrast to the High Court, the judgment of the three Supreme Court judges took slightly less than one month to deliver.

By any objective reading, this case and many other similar cases, point to a systems failure of cataclysmic proportions which can destroy people seeking justice. I have argued long and hard for better State regulation of professions. In this profession we need a fair, independent and statutorily established legal ombudsman. The point will be made that we have a legal ombudsman of sorts and an adjudicator who was recently appointed under the 1997 regulations. An ombudsman should be appointed by statute, be independent and seen to be independent, be capable of receiving direct complaints from the public, be a high level public official with investigative capacity, and above all completely separate from the agency he or she seeks to oversee. An ombudsman must also have powers to ensure findings are followed up, and the term "ombudsman" suggests the office should be directly related to parliament. We have abdicated our responsibilities in this regard, because we have given statutory powers to self-regulate to this and other professional groups. It is a parliamentary failure that we do not put in place the same overseeing provisions we have created in the ombudsman legislation.

This is not to labour the point. An adjudicator was appointed under the solicitors' adjudicators regulations of 1987; he is appointed and funded by the Law Society. He is a fine and independent individual but there is no direct access to him by a member of the public who has a complaint. Anyone offended by the operations of a solicitor's firm has first to progress through the Law Society before the case can be heard.

The Doran case and the issues we discuss here indicate a high level of systemic failure. I welcome this legislation, but it is only the first step on a long journey. I commend the Bill, but ask the Minister to urgently turn his mind to a full, independent, statutorily created, overseeing body — in other words, a legal ombudsman — which is something we require.

Ms McManus

May I share my time with Deputy McGrath?

An Ceann Comhairle

Is that agreed? Agreed.

Ms McManus

Deputy Roche's points about the ombudsman are valid. A danger evident in the debate so far is that it is argued, on one hand, that a professional body is above reproach by virtue of its nature and cannot be treated as a commercial body would be and, on the other, that being a solicitor is purely a commercial business and the rules which apply should not be other than the normal rules of commercial transaction. I hate the term "ombudsman", but the idea that the holder of that office should draw his or her authority from the Oireachtas is a sound one.

I have mixed feelings about this Bill, although I support it. The principle of permitting solicitors to advertise is generally progressive. Anything which leads to competition should benefit the consumer and should be maintained, particularly in a profession not renowned for its competitiveness. There is also a public information aspect to this question. Not long ago, thousands of married women won the right to equality payments, at least in part due to the opening up of the legal profession to the use of advertisements. These were used to inform people as well as to promote services and those women have reason to be grateful to the legislation we are now setting out to amend. When a Fianna Fáil Minister for Social Welfare was fighting these women tooth and nail, solicitors were essential in supporting them. Although it took the appointment of Deputy De Rossa as Minister to deliver the equality payments, after years of governmental stonewalling, solicitors representing the women played a significant part in informing them of their rights and in ensuring a happy ending to the story.

It is therefore welcome that the Bill controls rather than abolishes advertising. Its concentration is on personal injuries and it sets out to eliminate the aggressive style of advertising much beloved of the ambulance chasing solicitor. We have all seen these advertisements, the seductive lines of "no foal, no fee", insurance cover to protect against failure, and the high number of cases settled before reaching court. The message is directed at a public which needs no encouragement to exercise its right to litigation — compared to many other countries we are a highly litigious society. In the area of personal injuries we have almost made it a national pastime; one of my colleagues said it is the only real effort made by Ireland towards redistribution of wealth.

Apart from the insurance implications, there is a social cost which must be underlined, and this feature of Irish life cannot be ignored. The absence or loss of public facilities is often a direct result of personal injury claims. Many campaigns for improved facilities have foundered on the rock of public liability. Young parents seeking to have public playground facilities provided by their local authority have frequently been frustrated by the obstacle presented by the threat of personal injury claims. The other aspect is that local authorities have been found to be gravely at fault in a range of their responsibilities, where the only recourse open to the public was to take them to court. However, when it comes to personal injuries claims, experience has shown that there are unscrupulous solicitors who want to take advantage of current circumstances, and that reflects unfairly on a profession which generally maintains good standards.

The principle of advertising services is valid and provided for in the Bill. It is, however, curtailed in a number of ways, some of which are self-evident but others of which deserve comment. While the principles are laid down in the Bill, the regulations governing them will be determined by the Law Society. It is in the public interest to know the criteria the society will use in determining these regulations. For example, what is likely to bring the solicitor's profession into disrepute? What is "bad taste"? I am not sure anyone in this House could provide a definition. Taste is a subjective matter, dependent on one's outlook and life experience, and may change over a lifespan. Many commercial advertisements prize themselves on being in bad taste. Will the Law Society take into account future changes in the public appetite to tastelessness?

Most of the provisions, including that one, are already in the Solicitors Act, but I am concerned about a new provision which bans advertisements being published in inappropriate locations. Certain of these are specified but presumably other unspecified ones are also included. Even taking into account those specified, I can think of instances where the subsection could be too restrictive. For example, a funeral home is often a place where a bereaved family receives advice and guidance about many aspects of the bereavement. A suitable listing of local solicitors would be an asset in giving advice and dealing with people in a funeral home. I do not agree with the Minister that this would be harmful — what is at issue is how an advertisement is prepared, not its location. Many people do not have contact with a solicitor and would not know where to find one until they experience a bereavement. Doctors' waiting rooms have a form of televised advertising which solicitors use, and that too will be banned under the Bill. This is not necessary because such advertising is not doing much harm — it may not be doing much good either but that is a separate issue.

More particularly, many local bodies, organisations and services depend on advertising to survive and expect solicitors to play their part in supporting them. Where will they stand? This could affect schools seeking advertisements for journals, football clubs, chambers of commerce, doctors' information sheets and organisations raising funds for charities. It is not clear whether these means of advertising would be considered inappropriate locations. The publication may be located in a school or medical or sports centre. This may seem a small point, but it is important because it relates to a form of advertising which is local, low cost and has a significant social purpose, yet is clearly still advertising. The offensive style of commercial advertising is on a different scale both in terms of content and extent. We saw the famous advertisements on the backs of buses about the ambulance chasing solicitors. They have all taken advantage of the current situation.

The Army deafness claims were the stimulus for the Government to draft this Bill. However, there is a danger of hypocrisy in this regard. It ill becomes Departments to blame solicitors for promoting themselves, when they are culpable for not preventing hearing loss in the first place. This is costing the taxpayer a fortune.

The feeding frenzy does not reflect well on solicitors. In one case it was reported that a video was produced by a member of the legal profession to train litigants for cross examinations. I understand there was no clear evidence of this but it attracted media attention. It highlights the need for the Law Society or the Bar Council to have clear control mechanisms which are accessible and which work when such queries arise.

A customer friendly service requires a quick and responsive appeal system when a dispute arises. However, that does not exist at present. Deputy Roche mentioned the case in my constituency which raises the question of who puts things right when they go wrong.

It has been suggested that there is a correlation between the introduction of advertising in the US and the reduction in the status of the legal profession in the public's eyes. I do not know if that is true. People both inside and outside this House are a little sanctimonious about it. I believe it has more to do with the cost of fees. The establishment of the Flood Tribunal, which was of national interest, was delayed because the legal teams were not getting the fees they wanted. When the fees were agreed as a compromise, they were phenomenal compared to the average industrial wage. People had great difficulty understanding how such fees could be justified and they began to wonder if people were worth such large amounts of money. I am not taking away from the good work done by solicitors, but we must not become tied up in the mystique of the profession as that is not in the public interest.

The stimulus which led to advertising by solicitors was based on a free market approach, which has grave limitations. Advertising confirms the principle that what is on offer is just a service for which people pay and are paid. For too long the mystique of the profession has served to cloud the public's understanding of that fact. In a modern climate in which democracy applies in all types of ways which would have been unheard of in the past, there is a danger of patronising the public. In a world where advertising plays such a major role, I am convinced the public is sophisticated enough to make its own judgments on what is real and what is show.

Mr. McGrath

I welcome the opportunity to speak on this Bill. For many years there was a debate about how solicitors could advertise their services when a strict code of practice was in existence. The first measures to relax this regime were introduced in 1988. The Solicitors Act, 1994, allowed for the almost total removal of restrictions on advertising of services by solicitors. These measures were imposed on the Law Society by the Government of the day and were driven to a large degree by Deputy O'Malley and the Progressive Democrats. They opened the advertising floodgates and fuelled the ambulance chasing activities of a small number of solicitors who gave the profession a bad name.

These imposed changes may have brought about the compensation culture which seems to be so prevalent. One cannot move without the threat of legal action and local authorities are crippled by the huge claims lodged against them. The Law Society and individual solicitors pointed out at the time that this would be the likely outcome of these measures but, unfortunately, their calls fell on deaf ears. They were forced into the situation in which they now find themselves. Those who promoted the liberalisation of the code of advertising at that time got it totally wrong.

I agree in general with the contents of this Bill but I have some queries to which I hope the Minister will respond. Much power and authority is vested in the Law Society. It has done a good job over the years in monitoring the activities of its members and it has exercised a control appropriate to this profession. I have contacted the Law Society on a number of occasions since being elected to this House and I found it to be helpful and efficient. The Minister quoted from a former President of the Law Society, Mr. Thomas Shaw, who is a practising solicitor of J.A. Shaw and Company in Mullingar. He paid tribute to his work in compiling a code of conduct for solicitors.

I note that this Bill gives the Law Society the power to classify solicitors as having expertise in specific areas of law. Perhaps the Minister could indicate if such expertise will be measured by the Law Society. Will the years a solicitor has worked in a specific area of law be considered? Will further studies in areas of law qualify them as experts? Will the expertise of someone who has worked for years on cases at the coalface in the Law Courts be recognised? Will the successful handling of cases in a particular area warrant such accreditation? Will experts be scattered throughout the country or will they be restricted to the Dublin area? Will solicitors apply for such accreditation to the Law Society or will they be awarded credits at the behest of the Law Society? What system of transparency will be put in place to ensure that genuine experts are identified and get the necessary accreditation? These queries were brought to my attention by solicitors who feel that too much control may be given to the Law Society.

I commend Deputy Roche for what he said tonight. He outlined a situation, which sounded intolerable, in which a couple from County Wicklow found themselves. The people responsible for that have a great deal for which to answer.

I regret the Minister has missed an opportunity to put into law measures related to conveyancing, which is an important aspect of solicitors work. A solicitor handling a conveyancing case between a father and a son is expected to advise his clients that independent legal advice should be obtained by them. I wonder if this happens. Does a solicitor say to his clients that he must send one of them to someone else to get expert advice or are such dealings handled by the same solicitor or the same practice? This has led to many difficulties and it should have been outlawed in the Bill.

Solicitors are prohibited from working for a builder and a purchaser on the same conveyancing case. Is that regulation always adhered to? Is it right that a solicitor may represent a purchaser and a builder in the same case? That is not supposed to happen, but it does and it is an ideal case in which gazumping could occur. Is it possible that a solicitor could work for two masters at the one time? Was this not an ideal opportunity for the Minister to introduce into law restrictions on this type of practice? Restrictions on such practices are laid down by the Law Society, but what does it say to a solicitor who is found to have practised in this way? It cannot even be declared that he or she operated in an unprofessional manner. In effect, there is no real prohibition or penalty imposed on solicitors who act in this way. It is regrettable the Minister did not consider it appropriate to include a provision in the Bill to restrict this unprofessional behaviour in which a small number of solicitors engage.

Ms Hanafin

Fáiltím roimh an mBille seo a chuireann cosc ar fhógraíocht áirithe ó dhlíodóirí — fógraíocht a théann thar fóir, fógraí nach mbíonn ag lorg oibre ach ag cruthú fadhbanna do dhaoine.

Advertising by solicitors was permitted initially on the basis that it would allow market forces to rule as against fees, but all it did was lead to increasingly daft forms of litigation. Do we want to live in a society where advertisements from solicitors peer at us from the back of buses, stare down at us from hoardings or shriek at us from the radio?

It took people a long time to realise there is no such thing as a free lunch. Maybe they will also realise that there is no such thing as a free first consultation. Solicitors advise us that we do not fall anymore, we are caused to slip. Everybody now suffers loss, damage and expenses. Many of these advertisements inform us of problems we did not know we had and of pains from which we did not know we suffered. They have prompted us into believing somebody else is to blame for our carelessness, that somebody else is responsible and, more importantly, that somebody else will pay.

The recently published edition of the Golden Pages contains 44 pages of solicitors in the Dublin area alone. Instead of the usual one line entry, there are full page advertisements that make outlandish statements. They speak to the person directly, stating, “You've had an accident. There is pain, disruption and financial distress. Talk to us.” Another one offers “home/hospital visits for the elderly or the seriously injured”. Is one's solicitor one of the people one would like to count among one's closest friends and family when lying in a hospital bed? The same solicitor may visit one in the cemetery because he or she also deals with “accidents that involve death”. Others deal with “injuries at work” and claim they will get their clients “compensation for damage to their promotional prospects, real or imagined”. They will all help in the event of a slip and fall. If a person slips and falls surely he or she is responsible, but the advertisements would have us believe somebody else can be blamed for the fall. Do we want to live in a society where every incident must have an author with a deep pocket or an insurance company behind him or her? I am pleased this Bill curtails that type of advertising. It will not mean the end of solicitors' advertising, but it will introduce a level of standard into such advertising.

I hope it will not constitute the end of the Minister's endeavours on litigation on the modern law of negligence, which is one of the main questions at issue. In 1932 a snail in an opaque ginger beer bottle in England gave rise to the law of negligence. It is time that snail was put back in its shell. I commend the judge who, in a court in Dublin yesterday, decided that, unlike that snail in the ginger beer bottle, a fly in a bottle was not worth the £400 sought, that it was worth only £1.

Public bodies have been impoverished by the ever increasing frontiers of the laws of negligence. The real losers in society are the ordinary citizens because money that could be used in the provision of cre ches, libraries, playgrounds, playing fields, roads, footpaths, etc. is spent in ever increasing amounts on the defence of increasingly questionable litigation. New words such as "nuisance value" have entered our vocabulary and replaced the old expression of blackmail. If we put the growth in the law of negligence to the acid test, who would have benefited? Would it be the population in general or a selected few? Among those selected few, how many would be lawyers? The old common law maxim de minimius non curat lex seems to have gone out of fashion. Now every stubbed toe, cracked finger nail and grazed knee must give rise to an action. Even gravity has gone out of fashion. People no longer fall as a result of gravity. They fall as a result of negligence, breach of duty, breach of statutory duty or the nearest insured entity, their servants or agents. It is great work if one can get it, but is it good for society?

In curtailing solicitor advertising the Bill takes a tentative step towards reintroducing the concept of fairness into the marketing of elements of the legal profession. This tentative step is welcome, but a much greater stride is needed. The constitutional right to bodily integrity, which was envisaged by de Valera as being necessary to protect life and limb from unlawful and malicious assault, is now called for in the aid of the comely maidens who have consumed too much alcopop and who have twisted their ankles in perceived potholes at the crossroads. Hordes of athletic youths now hobble the streets in pursuit of increased damages as a result of encountering a fallen leaf to which the local authority had failed to attend immediately on its demise. The law of negligence is not an ass, it is a dragon scorching all who fall in its path.

Removing solicitors' advertisements from the hoardings, the backs of buses, the radio, hospitals, funeral homes and the cemeteries may be a first step, but the law that allows suits of this nature ought to be the real target of this legislation. I look forward to that being the next focus of our attention.

Mr. Durkan

When the previous Bill on this matter was introduced I said I hoped it would resolve some of problems in this area. It was said at that time that the advent of competition would ensure equity prevailed and that an even balance was assured. I agree with many of the previous speakers in the sense that the legislation had the opposite effect. There is also negative competition where everyone competes to the extent that there is a downward spiral and instead of equity, fair play and equality, we get the reverse. There is evidence to suggest that we have moved to the fore in terms of identifying who is negligent and who should pay for the negligence.

A young person who fell on a bus some time ago told me her friend saw it happen. I asked if she was hurt, but that was not important; what was important was that her friend saw her fall. The implications of that are that from the moment such an incident occurs, a train of events are set in motion which will ultimately result in compensation.

The Bill may have to be revisited. I am not sure it will resolve existing problems. However, I accept that it is necessary to address the areas where obvious abuses are taking place and where latitude is allowed to such an extent that the law is being tested in respect of almost every issue. We must emphasise the issue of balance. There are those who suggest with a certain degree of accuracy that some people might not gain access to courts if it were not for the fact that a number of solicitors are prepared to operate on a "no win no fee" basis.

Members will be aware of cases where individual constituents might have had to take a large institution or major corporation to court. What chance does an individual have of taking on a major corporation or of successfully engaging legal representation to help him to do so if he does do not have the resources to go to court in the first instance? There are those who cynically state that gaining access to the courts does not necessarily mean one will obtain justice. That is true because the only thing one can ever obtain in a court is the application of the law. However, the presumption is that some measure of justice will be dispensed in the course of its being applied. In recent years, considerable evidence has emerged which suggests that it was necessary to ensure that people without adequate resources were able to gain access to the legal system. In that context, some people have begun to treat the system as something of a game and they are abusing it. To be fair, it is not entirely the fault of solicitors that the system is being abused.

In cases where solicitors may go through the motions of enabling people to bring forward frivolous claims, professional pride usually comes to the fore. In such circumstances all that is important is who will emerge victorious. By the same token, the courts are the final arbiters and are responsible for making decisions. It is on the basis of established case law that subsequent cases are followed through and the kind of matters to which Members referred have emerged.

We do not have to dig very deep to discover how this system operates. It operates on the simple basis that if a person goes to court and his claim succeeds in a particular circumstances, the law on negligence comes into play and if the offending party is deemed to have been, is or continues to be negligent the case must be answered. Several Members put forward the reverse of that argument and there are considerable grounds to support their case. For example, following changes a number of years ago, it has become legally acceptable for solicitors to advertise the range of their services to the general public. However, they do not merely arrange their services in order of importance for the public's perusal, they immediately illustrate examples to ensure that people will be attracted to the services on offer. Having read an advertisement in a newspaper or magazine which stated that they could be successful in a claim against a local authority, the Electricity Supply Board or a range of other utility services, what person in his right mind could turn down the opportunity to gain a few quid if it would not cost him anything?

When the trimmings are stripped away, we must ask whether a person would normally state he was above such behaviour, that he would not make any attempt to achieve a personally beneficial settlement — even though it would not cost him anything to do so — or that he would not follow the example of others and would set his own instead. There are people who do that, but they are fewer and further between than heretofore. By the same token, the numbers of those of the other variety are on the increase. I do not blame individuals, I blame the methodology which allows people to proceed with frivolous claims.

The regulations laid down to govern particular types of claims must be considered. I do not know the extent to which that will be done during the deliberations on the Bill. It is generally accepted that a twisted ankle is worth £4,500 to £5,000 in compensation or that if a car lightly bumps another at a set of traffic lights it might be worth up to £9,000. This is similar to the "knock for knock" system operated by insurance companies and legal advisers where a person involved in a minor car accident may be threatened with having cover withdrawn by the insurance company if he does not settle. That shows no regard for whether a person was in the right. To speed up the process and ensure rapid settlements, people are threatened with the withdrawal of their insurance cover if they do not comply with the wishes of the insurance companies. That is a strange way to do business. People should recognise that, as consumers, individuals and citizens, they have the right to defend themselves in such circumstances.

There should not be a rule of thumb whereby every person who falls, slips or slides can assume he will be automatically paid compensation. A number of years ago a local community operated a children's playground which had proven to be very successful. However, the community was not in a position to fund its ongoing costs and it was decided that the local authority should assume responsibility for it. The playground changed hands on a Friday evening and on the following Monday morning the county manager could barely gain entry to his office because his way was blocked by a stack of claims which had arrived over the weekend. That is a sad reflection and it is clearly an indication that people knew that a powerful body such as a local authority would be in a position to pay out money in a way which would not normally be expected.

Problems exist in this area. It is not a question of fairness, it is merely that there is a recognition that public authorities and similar bodies are more responsible than anyone else when accidents occur and that they are 100 per cent liable whether or not they are at fault. We must consider how a balance can be achieved. I have already referred to the two extremes — the first, where there is rapid access to a system which can be ultimately abused, and the second, where a certain group of underprivileged people may not gain access to the system. There must be a balance, and the changes being made in the law must achieve that balance in so far as that is possible. From my perusal of the Bill, I am not so sure that will happen and we will have to revisit it over the next few years. If possible, difficulties pinpointed by Members should be dealt with by amendment as the Bill progresses.

A number of speakers referred to the laws relating to negligence. That could become a merry-go-round because everybody can be negligent to a greater or lesser extent. If, for example, one leaves one's car door open in traffic, that would be negligent because an unfortunate cyclist might crash into it. At the same time, a motor cyclist speeding past traffic at high speed when the traffic is stopped would have to take some responsibility for not having due regard for other road users. It comes back to trying to achieve a balance. Only if a balance is achieved will there be satisfaction with the legislation.

I hope that as a result of this legislation, or perhaps as a result of further legislation that may have to be brought on stream, there will be recognition of the necessity to achieve a balance on the one hand and, on the other, to ensure people who lack the finance to avail of the regular services of the legal profession have the opportunity of doing so. However, we must ensure that there is no abuse. In relation to advertising, the current parading of the available services and facilities before the public is a blatant abuse of the system. It encourages frivolous claims, and it encourages people to pursue issues in a way in which they might not ordinarily have done were it not suggested to them by way of questions in advertisements as to whether they slipped, fell or bumped their heads in the past six months, whether they suffered headache as a result, and a suggestion that even at this late stage it might be possible to achieve a very lucrative financial settlement on the basis that somebody was negligent. If we go down that road, which we have been doing, eventually the cost of providing services generally will increase. Local authorities, transport, telephone and electricity companies, and anybody who provides a service, will be vulnerable to continuous attack. I hope the Bill before the House will go some way to addressing this. The theme of what I have said is the need for balance. If we do not have balance there will be abuse at one extreme or the other, because of a lack of access to rights or because of over-indulgence of access which is currently being engaged in by a number of people.

Some things never cease to amaze me. I remember reading about the case of an individual who had 13 or 14 unfortunate accidents. On close examination of the individual's past, the judge in the case decided the claim was not genuine. If a person turns up at a solicitor's office in a plaster cast, having twisted his or her ankle, and says he or she will not be able to work for three months, that is a serious issue. It could well be that somebody is responsible for that because of negligence. It could transpire, however, that the same person had a similar accident three months previously, or that he or she had a multiplicity of accidents. Surely the solicitor could examine the file and come to one of a number of conclusions — that the person was accident prone, that he or she was extremely unlucky and should not go out because as soon as he or she stepped out the door there was the potential for loss of life, his, hers or somebody else's, or that the person concerned was chancing his or her arm. I have no doubt there are exceptions, that a person could have slipped and fallen into a manhole or have had various things fall on him or her 30 or 40 times. However, that is the exception rather than the rule. The current system tends to trip up more such people than previously, particularly since insurance companies began to keep records and relate to each other what is happening.

I put down a number of questions to the Minister for the Environment and Local Government relating to claims against local authorities. I have received many replies to the effect that the Minister has no responsibility to the House in relation to these matters. The Minister may well have no responsibility to the House, but if a serious matter arises, a Minister will have to come in and answer to the House. It would be no harm if the Minister for the Environment and Local Government were to accept some responsibility for collating evidence on the multiplicity of claims against local authorities up and down the country.

Mr. Foley

The purpose of this Bill is to allow for better control of advertising by solicitors. It deals with the nature and extent of advertising by solicitors and prohibits advertising which expressly or by implication refers to claims for damages or for personal injury. The Bill specifies what may or may not be contained in solicitors' advertising, requires the Law Society to make regulations governing such advertising and treat contravention of the advertising provision in the Bill as misconduct by a solicitor for the purpose of the Solicitors Act and enables the society to obtain a High Court injunction prohibiting contravention of these Acts in regard to advertising and other matters concerning the conduct of solicitors.

The Minister is to be congratulated on this Bill which is a response to growing concern about excessive advertising by some solicitors, in particular in the area of personal injuries. The doubts which have existed about the effectiveness of existing controls have been highlighted in the Army hearing loss cases. No one familiar with the advertising which occurred in this area can be in any doubt about the extent to which some members of the legal profession are prepared to go.

The intention in the Bill is to ensure the solicitors' profession as a whole will work within a reasonable advertising code. The actions of a few which have tended to lower respect for the profession cannot be ignored. It is time to address the matter.

In any market for a professional service, competition is based on the laws of demand and supply and the availability of information in such a market should be a reasonable and effective way to combat problems. The legal profession provides an essential and hugely significant service to the public. Because of the vital importance of the service there is an obligation and duty on the Minister and everyone with an input into the provision of such service to ensure solicitors are accountable and that their services are of the highest possible standard.

The Bill does not obstruct by direct means the legitimate right of persons to seek compensation or redress for substantial genuine injuries sustained. Any attempt to do so should be strongly opposed by all fair-minded persons. If a person sustains, as a result of the wilful or careless action of another, a significant injury which causes physical or mental disability, he or she is entitled to seek redress for serious impairment of the quality of his or her life.

The main purpose of the Bill is to amend section 71 of the Solicitors Act, 1954, to provide for stricter controls on advertising by solicitors, particularly in respect of personal injuries. The Bill prohibits a person who is not a solicitor from advertising, for reward, legal services in respect of personal injuries in a manner which is no longer open to solicitors and prohibits solicitors from becoming involved, directly or indirectly, with such a perk.

It is of significance that the Bill was prepared in consultation with the Law Society of Ireland which has publicly welcomed it. The Bill enables the Law Society to obtain a High Court order prohibiting contravention of the Solicitors Acts, 1954 to 1988, by a solicitor or other person.

There is strong evidence that advertising by solicitors contributed in a big way to the flood of Army deafness cases. I do not envy the Minister for Defence his task in tackling the matter on behalf of the taxpayer. The financial implications for the Exchequer are potentially serious. The Minister is determined to face up to his responsibilities for which I salute him.

Advertisements by solicitors contain glaring headlines such as "Army Deafness" and "Don't leave it too late". This constitutes blatant and gross deception. It was always understood that on one's first visit to a solicitor's office one stated one's case and did not seek legal advice. An advertisement in a newspaper in July 1996 read:

Any member or former member of the Defence Forces, including the FCA, who has a hearing impediment which may have arisen as a result of membership, please contact .

Another read:

If you are a member of the Defence Forces, and you have a hearing problem, you may have a claim.

This is provocative and blatant. A further advertisement referred to personal, military and noise related injuries. This constitutes prompting, encouraging, goading and guiding persons with ill intent.

Garda management recently ordered Chief Superintendent Higgins to investigate deafness claims lodged by members of the Garda Síochána, which are not thought to be on the same scale as Army deafness claims.

At £30 million, the annual bill for public liability claims against local authorities and health boards is disconcerting and the number of claims is increasing by between 5 and 10 per cent each year. Irish Public Bodies Mutual Insurance, the company which provides public liability insurance cover for local authorities and health boards, states that it is snowed under with claims. It has to deal with more than 10,000 actions at any one time. The major urban centres of Dublin, Cork, Galway and Limerick account for the majority of claims. The number considered to be fraudulent is as high as 20 per cent. This is a frightening figure.

Public authorities and Departments have a duty to fight back on behalf of the taxpayer. Several are doing so. A number of public authorities have employed private investigators to catch bogus claimants and are defending cases in the courts. There is an onus on all public bodies to adopt similar tactics as the alternative to making settlements which they know to be unjust. The existence of a highly organised witness service or network was revealed as a result of the employment of private investigators. When information from a number of public bodies was tabulated certain names cropped up repeatedly as claimants and as witnesses. It was clear that they were part of a ring.

When such unscrupulous and fraudulent practices are exposed to public scrutiny it brings the legal system into sharp focus. This is unavoidable. Assertions of professional licence and the right to exemption from scrutiny of practices employed in the processing of cases have no validity and cannot be tolerated. Solicitors must be open to scrutiny. I compliment the Minister on the manner in which he worked in close consultation with the Law Society on the principles and provisions set out in the Bill.

It is easy to be wise after the event but with increased competition it should have been possible to predict the emergence of the ambulance chasing culture which could have been averted by better regulations. I hope the provisions of the Bill will be enacted quickly and that the regulations to be made under it will be strong enough to curb this practice. They should be well monitored and policed so that legislators will not have to revisit this issue.

The first victims of the compensation culture are the young, the sick, the poor and the weaker sections of society. The taxpayer pays taxes in the belief that the moneys raised will be used to provide better public services, including education and health services. These include providing care in the community for the old, the sick and the disabled. It is appalling that persons who are clever enough to exploit the situation are filling their pockets with fraudulent payments.

I hope the Bill will deal with this issue effectively, the unintended outcome of the legislation it is seeking to amend. One is being charitable in stating that the advertisements and touting are in bad taste; the effect on public morality is serious. Moneys, provided by the compliant taxpayer for the provision of decent public services, are being plundered. Criticism is being directed at the Law Society because of the activities of a small number of solicitors with whom it should deal with conviction, speed and without mercy.

A key provision is the new section 1(3) which prescribes the information which may be contained in a solicitor's advertisement. An advertisement can include the name, address, including electronic address, telephone number and place of business of the solicitor. Particulars of the academic and professional qualifications and legal experience of the solicitor may also be provided as well as factual information on legal services provided and any areas of law to which those services relate, particulars of any charge or fee payable to the solicitor, and other information specified in regulations made by the Law Society. The new subsection (4) makes clear that, without prejudice to the prohibition on advertising in relation to claims for personal injuries contained in subsection (2), solicitors may when advertising include the words "personal injuries" in the factual information they provide.

The Law Society will be required under the new subsection (5) to make regulations with the Minister's consent to give effect to provisions in the Bill. The regulations, among other matters, must make provision in relation to advertisements by a solicitor, including the manner of their publication, form, content or size. The regulations must restrict solicitors from touting and provide for the manner of determination by the Law Society of a contravention of the advertising provisions in the Bill or regulations made under it.

The Bill repeals and re-enacts many of the provisions of section 71 of the 1954 Act as inserted by the 1994 Act. The main difference is that the details on advertising will now be contained in primary legislation rather than in regulations made by the society. The Bill aims to ensure that the type of excesses of advertising experienced to date will be a thing of the past.

Mr. Neville

I welcome the Bill. It is an important measure in the context of what is happening in the area of litigation. Officials in the Department of Justice, Equality and Law Reform should listen to the debate. I have listened to it and the issues raised have been frightening. The previous speaker said how appalled he was to see taxpayers' money going to people who exploited a situation and spoke of the immense effect on public morality. We, as legislators, must deal with that. We have not been responsible in doing so. The issue has existed for many years. I remember raising it in great detail ten years ago in the Seanad and others have raised it since. It has been discussed in the Dáil and the Seanad but nothing has been done because there is a belief nothing can be done. I do not accept that.

It should be remembered that a similar situation pertained to occupiers' liability and the Occupiers' Liability Act, 1995, was introduced to deal with it. I remember Deputy Deenihan piloting a Private Members' Bill on the matter and it was the first legislative measure which attempted to deal with that problem. It raised the profile of the issue of the difficulties faced by landowners and others, such as sporting clubs, who used or crossed private property. I subsequently raised the issue in the Seanad. Eventually the Minister for Equality and Law Reform, Mervyn Taylor, decided to confront the issue and introduced the Bill to deal with it. People said it could not be done but it was and the problem of occupiers' liability was corrected. Measures are now in place to protect the occupier. If such issues can be dealt with in one area, they can be dealt with in a more general fashion. As the previous speaker said, the effect on public morality is immense.

Those of us involved in local government know the level of claims taken. The previous speaker said 20 per cent of claims were spurious; I think that is conservative and it is higher. Do we take responsibility anymore for what we do or for our safety? Do we accept blame when we have been irresponsible or do we seek to place blame elsewhere? People must accept responsibility. The Law Reform Commission should be asked to investigate the matter and bring forward recommendations to ensure this area is dealt with.

Ireland is one of the most litigious countries in Europe. As others have said, the compensation culture is like a cancer eating into our society and almost borders on the immoral. The State must move quickly to halt the slide down a slippery slope where all commercial and service industry will grind to a halt. We are less competitive in industry and commerce than our partners in Europe because of the level of payment of compensation and the consequential increase in insurance premiums. I calculated that, had we the same level of insurance payments in the area of employers' liability for four years, 10,000 jobs would be created because of the improvement in the level of efficiency. We are uncompetitive in many areas, especially in manufacturing, where we are in competition with our European partners, because of the level of claims taken against employers. Young people cannot obtain insurance. Why must insurance premiums be so high for young people? It is many times higher than that in the UK or on the Continent. The level of payment of claims is way ahead of that of our continental partners.

There is also the practice of insurance companies coming to an agreement. I know they do it because claimants will settle for less rather than going to court. However, it creates a situation where people who make spurious claims do not have to take the stand and give their side of the story. An agreement is reached on the steps of the court and they go away laughing. The system acts against the best interest of the genuine claimant who may have to wait many years for the resolution of his or her claim with its consequential distress and uncertainty at the level of appropriate compensation. This discourages rehabilitation and return to work. People are advised, if they have a claim against their employer, to delay returning to work until their claim is settled. This area of the courts is clogged with claims and people who are fit to return to work are advised in the interests of their claim not to do so. That is not in the interests of the claimant, the employer, industry and commerce or the State.

Insurance costs are creating complications for employers, businesses, motorists, public authorities and voluntary and sporting organisations. No area has been spared the paralysis which has accompanied the escalation in litigation. For example, school teachers can no longer send a student to the nearest shop for a message. Open season has been declared on public houses, clubs, hotels and supermarkets by people who fall on such premises. Once a person falls on any premises, the first thing to enter their minds is to make a claim. We joke about it although it is a serious matter, and this indicates it is regarded as humorous. The compensation culture is pervasive and is on its way to destroying ordinary, decent people's enjoyment of life.

Debate adjourned.