Amendments Nos. 128 and 129 form a composite proposal. Amendment No. 130 is related to them and, therefore, they may be discussed together.
SECTION 68.
I move amendment No. 128:
In page 70, subsection (1), after line 48, to insert the following:
"(d) (i) the client's right to require that solicitor to submit a bill of costs to a Taxing Master of the High Court for taxation on a solicitor and own client basis, and
(ii) that client's right to make a complaint to the Society under section 9 of this Act that he has been issued with a bill of costs that is excessive,".
I put down these alternative proposals because the existing subsection (8) requires a solicitor, on tendering a bill of costs to the client, to inform him of his rght to taxation and the right to complain to the society under section 9. This information to be provided with each bill of costs is like a health warning. I worked in costs before becoming a Deputy. I fear that this might be used as a delaying tactic and have severe implications and repercussions for the cash flow of solicitors. It introduces the notion of a dispute before one arises. Each bill of costs will state that the bill will not have to be paid if the client disputes it and will outline various measures the client can take. In practical terms this will introduce aggression and suggest conflict where none exists. If an ordinary practitioner, who is trying to run a business, sends a bill to a disappointed litigant or somebody who is a little bitter about something, that person might see this as being provided with 15 months to two years' credit. The person may complain to the society under section 9, ask for the bill to be referred to a Taxing Master for taxation or generally drag his feet.
I considered if there was a way around this. If clients refused to pay the first bill of costs or indicated there was a problem, the second letter to them could inform them of the measures they can take. Then I realised that section 68 deals with taking instructions where the question of money might be mentioned. It is desirable that this is mentioned. A problem in the past has been that solicitors have been loath to talk about the possible contingent costs arising out of actions and litigation. It is good that section 68 deals with money and liability for costs. The information should be mandatory at that point and clients should be told that if they have problems with bills of costs they can refer them to the Taxing Master or complain to the society under section 9. There is a danger of cash flow repercussions for ordinary solicitors. The introduction of this warning on all bills of costs which are not disputed may introduce dispute where none exists and may prompt disagreement and aggression between solictors and clients.
Amendment No. 130 tries to ensure that all steps are taken to resolve the argument and that the client is informed of his or her rights. It is self explanatory. We will leave it to the Minister to decide if it is acceptable.
Regarding amendment No. 130, there is an element of duplication. Section 68 (8) requires a solicitor, on tendering a biil of costs, to inform clients of their legal right to require that the bill be submitted to the Taxing Master and of their right to make a complaint under section 9 of the Bill. The requirement arises whether there is a dispute or not. It appears that amendment No. 130 requires a solicitor to inform clients in writing, again, of their statutory entitlements should a dispute arise when the client receives the bill of costs. This is not necessary. The client will already be aware of his or her legal rights from the time they are given the information when the bill of costs is tendered.
Regarding amendments Nos. 128 and 129, when this section was being prepared, it was considered that the appropriate time to inform clients of their legal rights to make a complaint about a bill of costs was at the time they were presented with it. There can be a wide gap between the time a solicitor takes instructions from a client and the time when the business is completed and the bill of costs is tendered. This is often the case, regardless of whether the business is contentious or not.
The general view is that it is in the best interests of clients if they are informed at the end of the process of their right to challenge a bill of costs at the time they are presented with the bill and not at some indeterminate time in the future when they will have forgotten about the information they received before the process started.
However, I take Deputy O'Donnell's point regarding cash flow. I addressed this issue in another context earlier and I will do so again now. I would not like to do anything which would further exacerbate the unemployment situation within the profession and perhaps this provision can be watered down somewhat. However, my natural inclination is that it is best if clients are informed about this matter at the end rather than the beginning of the process.
I can see the point of the warning, but where there is no dispute it promotes dispute. There is also a practical danger that it may have an impact on the running of practices. I take the Minister's point and I note he appreciates my point. Given this, the Minister might consider the matter further on Report Stage.
Amendment, by leave, withdrawn.
Amendments Nos. 129 and 130 not moved.
I move amendment No. 131:
In page 72, subsection (9), line 11, to delete "and expenses" and substitute ", expenses and any other financial charges".
The purpose of this amendment is to clarify any doubt there may be regarding expenses and any other financial charges that may not be covered in the Bill.
I consulted with the parliamentary draftsman on this matter and I am advised this is essentially a drafting matter and that it is not necessary. Section 68 (9) does not contain an exhaustive list of charges. It provides that "charges" shall include "fees, outlays, disbursements and expenses".
In addition, there is a difficulty with the amendment because to some extent the definition becomes circular. The amendment refers to "financial charges"; however, "charges" is the word section 68 (9) attempts to define. If the amendment is agreed there is a risk of confusion because it defines "charges" as "charges", whereas the definition set out in section 68 (9) is inclusive rather than exclusive.
I accept the Minister's explanation.
Amendment, by leave, withdrawn.
Section 68 agreed to.