Section 8, amendment No. 20, 20a is an alternative, amendment No. 31 is cognate and amendment No. 51 is related. Is it agreed that we take those together for discussion purposes?
SECTION 8
Chairman, I move Amendment No. 20:
In page 7, subsection (1), lines 27 and 28, to delete "any person having an interest" and substitute "a client of a solicitor or any person duly authorised on behalf of such client".
Could I suggest that we deal with amendments Nos. 31 and 51 separately because they relate to section 9.
If that is agreed, there is no problem.
I think we are coming to one of the more complex provisions in the Bill in dealing with section 8. I am going to confine my comments to the particular amendment in relation to section 8. There is a far broader discussion which we will have about the section and its subsections. Under section 8, just to put the amendment in context, the start of the section deals with the investigation of complaints against solicitors and it effectively relates to the role of the Society. It refers to the fact that, where the Society receive from any person having an interest, a complaint alleging that professional services provided by a solicitor in connection with any matter in which he or his firm had been instructed by his client were inadequate in any material respect and was not the quality that could reasonably be expected of them as a solicitor or a firm then the Society may, if they think fit, in effect, investigate the complaint.
The amendment tabled is suggesting the deletion of the words "any person having an interest" as they appear to be, to my mind, far too vague a phraseology and to provide instead for the investigation of complaints where they are received from a client of a solicitor or any person authorised by that client. In the context of the investigation of complaints it seems that if a client is having a difficulty with a solicitor that requires Law Society investigation there are a number of things that are important. The first is obviously that the client should be aware of the fact that there are investigative powers and we will come to that later on. Secondly, if a complaint is made to the Law Society it would seem to me to be equally important that it be a complaint that the client supports and agrees with and it be a complaint properly made by the solicitor's client out of a concern that his affairs are not being properly dealt with by the solicitor. I think that is an unexceptional statement. It may very well be that either a person may want to make a complaint that has to be phrased, for some particular reason, in technical language and they may indeed need the assistance of another person. Indeed, someone complaining about a solicitor might, on occasion, have to tread the path of consulting with another solicitor to find out if there is a basis for their complaint. You may find that rather than the client himself making the complaint, it may be made by another solicitor on behalf of the client or indeed by another person altogether. It may be made by a friend, relation or someone with other professional qualifications. You obviously do not need professional qualifications to make a complaint. It would seem to me that all of that is common sense.
There is another element. I think the way this section is drafted, the concept that any person having an interest can make a complaint, is particularly dangerous. What does "having an interest" mean? It may very well be that a client is satisfied that they are getting a proper service but a meddlesome relation complains about the solicitor because the meddlesome relation does not feel the job is being done properly. Some other third party could throw a spanner into the works and say "I have an interest and I am complaining". Let us take for example a case in which a solicitor is involved in litigation or is threatening court procedings on behalf of a client. A solicitor has acted for a client trying to resolve a legal problem — the problem might be a claim that money the client should have received has not been paid. The solicitor sends threatening letters and says that unless the money is paid court proceedings will issue and the client is quite satisfied with that, the solicitor is acting in accordance with the client's instructions. But the person who is the recipient of the threat may not appreciate it. The person who owes the money may think it is outrageous that they are being threatened with court proceedings and may suggest that this solicitor is going too far. They would have an interest in the professional service that was actually being given to the person with whom they were in conflict. It would seem to me that the Minister's provision would allow the person against whom a client is being represented to make a complaint about the legal advice the client is receiving or about the approach adopted by a solicitor on behalf of the client. I do not feel that is the Minister's intention but his phraseology is certainly too loose and could give rise to very large problems if people without a specific authorisation from a client could simply send in complaints about solicitors.
The intention here in this amendment is firstly to ensure, if there is to be this type of complaints investigation, that it be clear that complaints received come from the client or someone properly representing the views of a client. Secondly, to ensure that that type of intervention cannot be engaged in to deflect someone from pursuing their rightful claims with the assistance of a solicitor with whom they are satisfied.
One can transpose that into a variety of other legal areas in which difficulties could arise. I could illustrate these but I do not want to go on at any great length because I want to get a response from the Minister as to what is the objection — if there is an objection — to this particular amendment. The amendment is designed not to delimit the powers of the Law Society. It is not designed to protect solicitors who are behaving improperly. It is designed to ensure that the Law Society can investigate proper complaints made by clients about particular solicitors but it is also designed to ensure that people who allege that they have a particular interest but whose interest does not coincide with that of the client and who take it on themselves to interfere in the relationship between a client and a solicitor cannot invoke this section and be the catalyst to the initial investigation of a complaint that the client himself or herself is not making.
It may be that Deputies Taylor or McCartan have other issues they wish to raise on this and there is nothing I want to add at this stage.
Deputy Eric Byrne, substituting for Deputy McCartan.
Mr. Byrne
It is very important to attempt to substitute for the Deputy but it may be the layman putting his nose in where it should not be amongst all the professionals and I note that the three solicitors have tabled identical amendments.
It should be pointed out that the same amendment is tabled by Deputy McCartan.
Mr. Byrne
That is what I am saying, the three solicitors, Deputies Shatter, McCartan and Taylor.
We have tabled it not as solicitors, but as legislators. If the Deputy wants to have a row with his colleague perhaps he could bring him back into the Committee and have the row with him.
Mr. Byrne
I am not in fact having a row.
Deputies should speak through the Chair. I am very conscious of time and we must endeavour to proceed with this Bill as quickly as possible.
Mr. Byrne
Through the Chair I ask the Minister, in the event that the family of a deceased client wants to protest or contest the way a will was constructed or whatever other complicated legal problems might occur after the death of a client of a solicitor, what door is open for those immediate family members to process a claim. Presumably that is why the Minister is saying "from any person having an interest" such as a widow or a widower or family member. If I could just tease that out with the Minister I would be very happy.
To answer Deputy Byrne's last point, the definition of client includes the personal representative of a deceased client so that person is covered.
Chairman, I, like Deputy Byrne must say I was amused. I suspect it was divine providence or maybe something from another portion of the city that suggested to three Deputies that they should put forward identical wording. I would object to this amendment because from my reading this very severely limits the possibilities of complaint and as a mere layperson like Deputy Byrne, and notwithstanding the point that the Minister has made about the definition, I can understand where people who had a real interest but would not, for example, in the words of the amendment, be duly authorised on behalf of such client — a dead client — may wish to make a complaint about the way the affairs of that person were handled. I recall when the Ombudsman Act was going through the Dáil and everybody here knows from the Second Stage that I would much prefer a legal services ombudsman to be investigating these affairs rather than the Law Society but that is a different discussion. When the Ombudsman Act was going through there were very similar suggestions for a restrictive approach as to who may or may not make a complaint put forward by several professional bodies representing public service agencies who were interested in the legislation. No good purpose can be served by having a limiting restriction such as the restriction proposed in this particular amendment. For example, a public representative who may not be duly authorised may consider, given the knowledge which comes to him or her, that there has been an abuse in a relationship. The person who has been abused may not even be aware of the abuse and may not believe at that time that abuse has taken place but it could be right and appropriate that a complaint be made.
With regard to the point made by Deputy Shatter about this being used in a vexatious manner, or in a frivolous manner or in a manner to simply stop proceedings being taken, it would strike me that the phrase which appears in the section itself is adequate: "then the Society may if they think fit" which leaves the Society, incidentally, a considerable amount of latitude as well —"following investigation of the complaint, proceed". It strikes me that if somebody were seeking to abuse this particular section to prohibit a legitimate process the Law Society would very quickly come to the view that that was not a fit matter for it to investigate or that the complaint was not a fit matter to investigate. I feel that the amendment as proposed by the three Deputies has very little to recommend it and I think that it would be very restrictive and it should be resisted.
Chairman, it comes to mind immediately that many of us are asked to speak on behalf of clients who appeal decisions on assistance claims and pension cases etc., and where the clients are not able to express themselves or feel inhibited to express themselves. In many situations I can imagine from my long experience in this House that there are many people who would not be aware or be mentally competent to realise that they had been done a disfavour and it is open to another person to act on their behalf. We have many people throughout Ireland who have very little or no education whatsoever and take the word of the solicitor as gospel, rightly so in the majority of cases, but for the one case that is wrong I think it is necessary to leave that protection in for an outside person interested in the client's interest.
The dispute here is that for the first time we are including provisional legislation for somebody to make a complaint to the Law Society about the negligent or inadequate provision of services by a solicitor. A lot of people do not realise that up to now you could only complain to the Law Society in the event of misconduct and misconduct is a pretty severe form of behaviour and is defined in that way. For the first time we are allowing people to complain where the service is inadequate, shoddy, careless or negligent. The point of dispute between myself and the people who put forward the amendment is about who can complain or make the complaint. Deputies Shatter and Taylors' amendment has exposed — to my way of thinking just sitting here without consulting the draftsman — one inadequacy in the legislation. I agree with Deputy Davern that it is only right that whoever the complainant, the person allowed to make the complaint, is we should include provision to allow somebody else to make the complaint on his behalf. I take that point and I will be introducing an amendment to provide for that.
That is in our amendment.
Yes, but there are other things in that amendment that I might not necessarily agree with. The second point in the amendment relates to who can be the complainant and in that I must take issue with the people who put forward the amendment. The amendment proposes that only a client of a solicitor may complain to the Society about that solicitor. The present scope of section 8 would allow "any person having an interest who is not a client of a solicitor" as well as clients to complain to the Law Society about the adequacy of a solicitor's services. In other words it covers a broader area than just clients. A complainant would have to demonstrate, however, that he or she has an interest in the matter that he or she is complaining about and the Law Society will have discretion under an amendment which I am introducing, amendment No. 29, to take action against the solicitor only "if it is appropriate to do so". Guidance is provided subsequently to the Law Society as to when it should or should not take action. That should ensure that only genuine complaints will be dealt with under this provision from people who have good reason to complain. It is not difficult to visualise the situation where a person who is not a client of a solicitor would have a genuine complaint against the solicitor. For example, take the case of the sale of a house or land, where a vendor could find himself at a serious financial loss due to delay on the part of a purchaser's solicitor in dealing with a conveyance of property. The vendor will not be in a contractual relationship with the purchaser's solicitor, however, there is no doubt but that he has an interest in the matter.
If the amendment were accepted, the vendor in that example that I have given would have no remedy available to him apart from the ultimate remedy of court action which will involve further cost and inconvenience and that is the sort of thing to which we are trying to provide an alternative. If we are to err at all here, and I would not accept that the section as drafted together with the official amendments is in any way unfair to solicitors, I think it is right that we should err on the side of the consumer.
The proposed amendment would limit the scope of the section and the effect could be that the Society would be prevented from considering a genuine complaint about a solicitor from a person who is affected by the actions of the solicitor but who is not actually a client of the solicitor.
Deputy Shatter made the point that the client should co-operate and I would envisage that, when the Law Society is investigating those complaints, the complainant will certainly have to have the co-operation to some extent of the client because what the complainant is complaining about is that he has suffered financial loss presumably due to the fact that the service provided by a solicitor to the solicitor's client was in some way inadequate. Obviously I would envisage that, taking the ordinary layman's attitude to this, the first thing the Law Society will have to ascertain is whether the client was happy with the service or not and much will depend on what the client says.
I would like to come in briefly on this part Chairman. The example given of the person purchasing the house is the exact example I came up with, except in the litigation context. The person purchasing the house is dealing with one solicitor and the Minister is suggesting that because he is dissatisfied with the service provided by the seller's solicitor that he is actually going to complain about the seller's solicitor. This means that it is open to any person who is represented by a solicitor in any transaction, litigation, conveyancing or anything else, to launch into complaining to the Law Society about the behaviour of a solicitor who was not representing him. That is a recipe for chaos because the client who is making the complaint has a remedy. You say he has remedy in going to court, he has remedy in looking for damages. Perhaps in the context of the house purchase and sale provision, he has a remedy against the people who are selling the house to him. But the Minister has actually confirmed that this provision will allow every person who is in contention, through solicitors, with another person to launch a complaint against the solicitor who is actually opposing him or who is acting for someone on the other side of a transaction. That is a recipe for total chaos.
Just to conclude — yes I do propose to allow the person on the other side as Deputy Shatter mentions to be able to make a complaint. Of course, whether he succeeds in that complaint or whether he has a genuine complaint is a horse of an entirely different colour. He must overcome two barriers before he succeeds. He must establish that the services provided by the solicitor to his own client were inadequate and not of a standard which you would expect from a solicitor or a firm of solicitors. In addition to that, under official amendment 29, which I am introducing, the Law Society will not make a determination or give a direction unless it would be appropriate to do so in all the circumstances. In relation to what Deputy Shatter just said about a person having a right to a court action, amendment No. 29 goes on to state that in determining whether it would be appropriate to make a determination the Law Society must have regard to such matters as the existence of any remedy which could reasonably be expected to be available to a client in civil proceedings or whether proceedings seeking any such remedy have been commenced or whether it would be reasonable to expect the client to commence them.
The Law Society must take into account all of these different matters, particularly civil remedies that would be available to the person who is making the complaint, before they give a determination in his favour.
If I understand the Minister correctly, he gives us an example of the application of this section in the position where a vendor is selling a house to a purchaser. The vendor has a solicitor and the purchaser has a solicitor. That is a situation of contention. One might think that there is no pull between a buying and a selling of a house and that it is not like a court case but that is not so. There are tensions between the buying and the selling of a farm or a house or whatever; tension as to the closing date; as to whether it might need structural repairs; or whether the title is in order; or a dozen and one different things. One can have a situation where the purchaser and his solicitor are discussing in consultation the protection of the purchaser's position, examining the title, advising as to getting an architect to examine the structure of the house, all confidential matters between the solicitor, a professional adviser and his own client within the confines of his office. That purchaser's solicitor is acting as he is professionally obliged to do, to protect the interest of his client, the purchaser, looking after his interest and being negligent if he did not. It takes time, if there were some weeks or months delay while the house was being looked at by an architect or the title was being examined or all these different things. So the vendor's solicitor gets aggrieved and, as the Minister tells us, he sets up a complaint. He says "you are not completing the deal quick enough, I am not getting my purchase price quick enough" because the purchaser's solicitor is messing around and causing a delay. "I will sort him out and make a complaint about how the purchaser's solicitor is dealing for his client, and say that he is delaying this transaction and that the service which the solicitor for the purchaser is providing not to me, the vendor, but to the purchaser is inadequate. I am going to bring that to the Law Society". The Minister quoted that as an example and he says that that is in order and envisaged by the section and that it is an appropriate thing to do. The matter then comes to the Law Society on complaint and the Law Society have to decide whether it is reasonable, whether they must proceed with this matter, investigate it further and do something about or whether they are not. Before the Law Society can decide that, they must get the full picture and the full story. They would have to see the files of the purchaser and his solicitor. The purchaser may be saying to the vendor: "You are looking to protect my position, get lost, I am very happy with what my solicitor is doing. He is looking after my interest." So the Law Society will be getting the confidential documents between the purchaser and his solicitor and will be looking at them, and the vendor, who is making the complaint, will be saying: "I want to see that documentation because I want to make representations about it." So the Law Society will have to disclose to him what they are looking at and vice versa.
Deputy Shatter has said that this would lead to chaos. I would say that chaos is an under-statement of what is being envisaged. I cannot imagine that one could seriously contemplate that a vendor should be entitled to complain about the solicitor/client relationship between the opposing solicitor and his own client. Of course that client may complain about his own solicitor. There is nothing wrong with that. That is a contractual relationship and it is a professional relationship. But to say that the vendor can do it — and the Minister seems to have said that — we would need to look at section 8 and see what we are talking about here. It states:
". . . where the society receive from any person having an interest a complaint alleging that the professional services provided by a solicitor in connection with a matter on which he was instructed.".
and note these words
". . . by his client. . . ."
In other words, the vendor's solicitor is going to complain about a matter in which the purchaser instructed the purchaser's solicitor. It is nothing to do with him whatsoever. It is none of his business at all. What the solicitor is doing, he is doing to protect his own client, and very well taken in all probability. In any case of complaint, be it on a court case or a sale of land, the party on the other side is going to dump that on the Law Society. It will happen in every second case. The Law Society will be called on to look at everybody's documents and they will have to refer them back to the other side for examination. The whole thing would be wide open and it just does not bear contemplation. I am quite certain that when the Minister reconsiders the matter with his advisers, he will have a further thought on this.
Perhaps I live in a different world from the two solicitors, but I have come across many complaints. I will give some examples as did Deputy Taylor. A hotel that was bought, as a hotel, but which had ceased to be a hotel since 1927 under the Intoxicating Liquor Act, was sold in 1972 by one solicitor, and bought by another solicitor. The client then ended up with nothing. Surely there was a case against both solicitors there? The man has a fine premises made out of it now.
Its up to each client to complain against their own solicitor.
The man has a fine premises now. Anybody here involved particularly in rural county councils will know that solicitors have been selling property on behalf of clients to other clients. In the last couple of years it was found that in one case, not only was it a wrong site but it was on the wrong side of the road and it was the wrong shape. People selling this property or the people buying the property on that basis have ended up with a totally different property. There are hundreds of these cases. Recently in a co-operative estate in my area, the first house in eight years was due to be sold. Here 17 houses are all on the wrong sites. They are on the site of the farm next door and that farmer is now holding up the sale because he wants compensation because they have taken the site from his farm instead of somebody else's. Surely he has a case against both solicitors? Some would say they should both be shot. I would not go that far. There are many people who come to a TD about cases and find out that they have received gross injustices from the solicitor. I will give an example of this. A client came to me who had been charged with drunken driving recently. He pleaded guilty in the court, he paid the solicitor £285 for saying he was guilty. Then he was told by the solicitor that if he paid £600 he would appeal the case. There was no basis for appeal. He was as drunk as could be. He was over 300 mlgs. He was at stroke stage. Yet he never got the £600 back but he had to pay a £400 fine to the courts. That person is totally inadequate mentally, because he is braindamaged from drink, to take up the case. I am very tempted to press him to go to the Incorporated Law Society with the case but he just does not want the bother of it. He is afraid of solicitors; he is afraid of the profession. I think it is justified that an outside body should have an interest in this.
Chairman, for fear of being shot for interrupting, I am tempted to say to the Deputy that if that happened the solicitor should clearly have a complaint made against him. But if the person the Deputy is talking about is brain damaged from drink, I wonder how much of this is real and how much is a figment of his imagination.
No, unfortunately I have seen the cheques. There have been several complaints about the solicitor to the Incorporated Law Society and nothing is seen to be done about it.
Thank you, Deputy Davern.
I, too, could cite examples. I believe the whole point of the section as it is drafted, is to allow benevolent intervention by disinterested third parties. If we go the route suggested by the amendment, you would, in fact, assume that all interventions by disinterested third parties, or even by interested third parties, must be malevolent. I think that the proposers of the amendment are ignoring the fact that there is a considerable amount of discretion with the Law Society when it does receive a complaint as to whether or not it progresses with that complaint. I cited a case on Second Stage of this Bill in the Dáil. It was an extraordinary case where no less than six separate solicitors were involved in a case concerning an unfortunate lady who bought land. The title was defective, the map that was originally appended to the documents was for another piece of land in a different townland. This lady was so overawed at the concept of making a complaint about a solicitor that it was somebody who heard casually about her particular problem who initially brought it to my attention. Subsequently, I contacted her and brought her case to the Law Society who duly ignored the whole matter in any event. I have a very jaundiced view of the Law Society's capacity to handle the complaint; but that is a different matter for a different section. I think that there is a great deal of merit in allowing benevolent interventions by third parties who may be totally disinterested in the thing. I would suggest that amending this particular section would be doing damage to the capacity in the Bill to do something that is good and beneficial. So I do think that the chaos which is envisaged by Deputy Shatter and the chaos multiplied by a factor of three, as suggested by Deputy Taylor, need not arise for the simple reason that the Law Society could simply say that a particular complaint is a sham and will go no further with it.
They cannot do that. They must investigate it first.
I accept that they have to investigate it first but to simply disallow the possibility of complaint on the basis that there may be malevolent use of this particular section, strikes me as being a very illiberal way indeed to progress. I think that if you find some abuse of this particular section it will be relatively easy to establish that there is an abuse and the society need not progress with the case at that stage.
Finally, do you wish to come in Minister.
I take the hint. The Chairman asked me if I wanted to come in "finally".
First of all I would envisage that the vast majority of people who will lodge complaints with the Law Society will actually be clients of solicitors. Secondly, when a person who is not a client and who has only an interest lodges a claim they would clearly have to establish that they have an interest otherwise they will go nowhere. They will also have to establish the inadequacy of the service. There are two barriers there and that presumably will involve the co-operation of the client of the solicitor who provided the inadequate service. Thirdly, under amendment No. 29 the Law Society will have to decide that it is appropriate that they would have a complaint. When the Law Society is considering whether it is appropriate that they should have a complaint, the Society will have to consider what other civil remedies, for example, the complainant would have.
To return to the example about which Deputy Taylor and Deputy Shatter are so horrified, the case of a vendor selling land where the purchaser's solicitor does not do his job properly and where there is a financial loss to the vendor as a result. Admittedly, there is no contractual relationship there between the vendor and the purchaser's solicitor, therefore, the vendor has no contractual action against the solicitor who messes around, but he would have an action for negligence. If the vendor suffered financial loss he would have an action for negligence. What we are simply saying is that instead of having to go to court and pursue an action for negligence, the vendor has the option of complaining to the Law Society. The Law Society, when determining whether they should make a determination or whether they should give him some remedy, will take account of the fact that he may have an action for negligence and that may prevent them from allowing him to proceed any further with his complaint. If he can bring this person, with whom he has no contractual relationship, into court, if he can sue him, and if because of his right to do that the sky has not fallen in or there is no social disorder or chaos, I cannot see why there will be social disorder or chaos simply because he has the remedy of making a simple complaint to the Law Society rather than going back into court again and going through the legal process all over again. Frankly, I do not see that and I do not take it seriously. My intention is to leave the matter stand as it is and allow a person who has an interest to make a complaint. The vast majority of cases will involve clients of solicitors. The person who is not a client of a solicitor will not get any remedy from the Law Society unless he can clear all those hurdles I have mentioned. It is not at all unreasonable, particularly, in view of the fact that he has the right to bring a court action.
The Minister has told us that a person, not being a client or somebody acting on behalf of a client, who wishes to proceed under section 8 has to clear two hurdles before the operation of this section would come into play. Hurdle 1 is that he has to establish an interest and hurdle 2 is that he has to establish that the service provided was inadequate. That is not correct, with respect to the Minister. That is not what the section says. The section says that a person has to have an interest and I have made my views known on that, but it does not say that the person has to establish that the service provided was inadequate. All he has to do is complain to the Law Society that it was inadequate but not to establish it. On receipt of the complaint the Law Society is then obliged to investigate. It is not correct to say that the person at that preliminary stage has to establish that there was inadequacy there, he only has to complain that there was inadequacy.
I did not say that.
That is what I noted you down as saying. If you did not say that I apologise.
He has to take two hurdles to get a remedy from the Law Society.
He only has one hurdle. He on has to establish his interest. He makes a complaint. He is the vendor. He goes to the Law Society and says "I have an interest because I am the vendor and I am complaining that as between that client and that solicitor, that purchaser and that purchaser's solicitor, that solicitor is providing an inadequate service to that client. I am interested because I am the vendor and the sale is being held up." He has an interest and that is all he has to do. On receipt of that complaint the Law Society is obliged to start investigating, see the files, see what is there on both sides, get the information, exchange it and the whole panoply would have to be gone through. There is just no way that could possibly add up.
The Minister — unless I took him up wrongly — was talking about whether the vendor should have a complaint for negligence. I am not sure what he meant. Did he mean that the vendor could sue the purchaser's solicitor for negligence?
Yes, for loss.
There is no way that the vendor could sue the purchaser's solicitor for negligence. With respect, that would not be on. A negligence action could be brought by a client against his own solicitor but the vendor could not sue the purchaser's solicitor for negligence. That just does not add up in my view. If there was a delay in completing a contract for sale or something like that there might be specific performances and there might be various issues arising as between the vendor and the purchaser. The purchaser may be saying to his solicitor: "hold up on this, I do not want this sale completed just yet, there are matters I have to check out. I have to see about a stream going through or I want to make sure what the position is about the hotel licence, I have to be careful about that". The solicitor, on the instructions of his own client and so as to protect him, is holding up matters to check things out. So the vendor makes a complaint about that to the Law Society and the Law Society have to start investigating that. It does not add up. We are talking about complaints here, of course. a complaint is a fair thing. A person goes to a solicitor and they are unhappy with the level of service that they are being provided with so they can make a complaint to the Law Society and there is no problem about that. The person may be inarticulate and may not have the relevant capabilities and they may appoint someone else to do it on their behalf and that is provided for. There is nothing wrong with that, but I do not agree that a person who is on the outside of it all should come along and interfere and conjure up that something was inadequate between that client and that solicitor. Are we seriously bringing in legislation to provide for that? If we are I just give up.
I totally refute Deputy Taylor's statement that a vendor, in the example I have given, could not have a negligence action against his solicitor. If you go back to the very case which established negligence — the snail and the bottle case — you will see that the person who has the right of action is the person who you foresee as being injured by the negligence. It seems to me that the purchaser's solicitor would foresee the vendor, in a case such as I have given, as being injured by his negligence and therefore he should have a right of action against him.
Deputy Taylor is very concerned about the purchaser telling his own solicitor to delay, etc. If the purchaser is responsible for the delay that is a different matter. We are talking about a situation where the solicitor provides inadequate services for his own client, the purchaser in this case. Presumably, the purchaser will be required to say so before the complainant can get a remedy from the Law Society.
We have Deputies Briscoe, Cotter and Roche offering to speak. I would hope that we could bring this particular amendment to finality before 7 p.m. if that is agreeable.
Is it not the situation at the moment that, where a person is selling a house and there is a closing date and the purchaser's solicitor does not close the sale by that date, that the vendor's solicitor can take the purchaser's solicitor into the High Court. That exists at present so where is the conflict then? It is not the other way around. I was using that as an example of a case I knew about, where the solicitor was about to take the other solicitor to the High Court for nonperformance. If he can do it there surely the Law Society would be another way of doing the same thing.
While people are talking I am trying to understand whether there will be chaos or no chaos at all. Thinking about family law for example and the intricacies and difficulties involved in legal separations and the grievance that one party can feel, I do not think it is possible to surmise what sort of chaos we will end up with. It is worthy of further discussion. Maybe the Minister would agree and maybe the amendments would not be pressed and they could be brought forward at the next meeting for further discussion where people will have time to think and examine it and come back with a different viewpoint next time. I suggest that should be acceptable.
Like Deputy Cotter, I have been trying to project my mind into situations which could arise under this. If anything, having listened to the discussion I feel that this section does not go far enough. It depends on how you determine "interest".
We are discussing a serious piece of legislation here which for the first time is going to regulate how people can complain. Take a situation where a neighbour of an elderly person, a disabled person or a person who is in some way powerless becomes aware that that person's interests are being abused by a solicitor with whom the neighbour has the relationship. The neighbour could not show that he or she had a specific interest in this and yet it would strike me as being quite right and proper and appropriate in a law such as this that a neighbour who could become aware or a third party, a disinterested benevolent third party should have the right to complain. Not only does the amendment unduly restrict who may complain, having read the section, and listened to the discussions and particularly having taken on board some of the suggestions and examples given here. I think the section itself does not go far enough. I would not like to restrict it any further.
It has been an interesting discussion and I would hope we have all been listening to each other. Deputy Roche has a point when he deals with the benevolent person who feels perhaps that someone has been taken for a ride and that that person may not understand that. I would see a role for a person of that description making a complaint. It would be wrong if that was not possible. On the other hand there is the concern of the possibility of this section being abused. That is a real issue. It is a real problem.
Mr. Cotter raised the issue of family law and family problems. I have done so much work in that area over the years that I wanted to stay clear of that because I did not want to start engaging in something that might be seen as very special pleading. It occurs to me in that context that this could arise where you have an acrimonious dispute between a husband and wife, where for example a wife is being assaulted and a husband perhaps drinks too much and is not behaving well but resents the fact that a wife has sought legal advice and where the solicitor is intervening to provide her with protection. It seems that this section could also create a problem whereby the husband perhaps alleges that the solicitor is behaving negligently in trying to break up the marriage when in fact the solicitor is trying to protect his client. Could I suggest that the Minister have another look at the section. It may be that the amendment tabled by the lawyers on the Committee is not appropriate. There is a genuine concern on both sides of this. We need to address both sides of the concern. Perhaps Deputy Cotter's suggestion is right that we do not press the amendment at this stage and that the Minister has a further look at the concerns expressed for Report Stage. It would defeat the purpose of the section if it could be used as a weapon to prevent people getting the advice and help they require. If an investigation was launched into the type of representation someone was receiving, that would at least temporarily frustrate and disrupt the relationship between the client and the solicitor representing the client. Where someone is in difficulty and someone truly benevolent is intervening on their behalf there must be a mechanism to allow them to do that. I would ask the Minister to have another look at this section and, if he is willing to do that, I would not press the amendment until we come back on Report Stage subject to the views of other Members.
I support that position and ask the Minister to have another look at it. I apologise Chairman if I got carried away during the discussion.
Not at all — we had a fascinating discussion.
I feel there is something there that the Minister can usefully look at. I would agree with Deputy Shatter's suggestion.
I have already undertaken to look at one part of the amendment, namely where you allow another person duly authorised by the complainant to make a complaint. It has been an interesting discussion and I will bear it in mind. We will see if we can improve the situation.
Amendment, by leave, withdrawn.
Progress reported. Committee to sit again.
The Committee adjourned at 7 p.m. until 2 p.m. on Wednesday, 8 July.