I move amendment No. 21:
In page 7, subsection (1), line 28, to delete "professional" and substitute "legal".
SECTION 8 (Resumed).
Amendment No. 20a not moved.
Amendment agreed to.
I move amendment No. 22:
In page 7, subsection (1), line 28, after "provided" to insert "or purported to have been provided".
Amendment agreed to.
I move amendment No. 23:
In page 7, subsection (1), line 32, to delete "or a firm of solicitors".
This is a tidying up measure with which, I will say to the Minister, I am quite happy if he will tell me he will have a look at it and come back to it for Report Stage. When one reads the section it would seem to me that the people will complain about an individual solicitor or about a number of solicitors. You do not normally complain about the firm, you complain about a solicitor. Indeed complaining about the solicitor might be synonymous with complaining about the firm of solicitors. This amendment which proposes the deletion of the words "or a firm of solicitors" is more by way of a tidying up measure than by way of anything else. I am raising it with the Minister because if you look at the earlier part of the section and the linguistics of it, it talks about professional services which and I quote "were inadequate in any material respect and were not of the quality that could be easily expected of him as a solicitor or a firm of solicitors". You would not expect something of him as a firm of solicitors. That makes a point. It is not designed to change in any way the impact of the section, it is purely linguistic and gives it sense. It is an amendment I was hoping the Minister would take on board. If he does not and if he wants to consider it for Report Stage as a tidying measure, it is not something on which we should delay the Committee unduly.
Mr. Ahern
Mr. Chairman, it might be more preferable that in line 3 we could put in "by a solicitor or a firm of solicitors" and that would tie in the latter part that Deputy Shatter refers to.
That would deal with the matter. As I understand it, and the Minister can correct me if I am wrong, the complaint which the society investigates is a complaint about a solicitor not providing appropriate services. I think this is one of the few areas where there is reference to a firm. I have no strong views on this beyond tidying up. The suggestion by Deputy Ahern would equally address it in the context of this section.
Mr. Ahern
To follow on from that, it is quite possible that perhaps a complaint would be made in relation, not only to the solicitor, but also in relation to an assistant or to somebody else in the firm and for which the solicitors who are the partners would ultimately be responsible. I think it could be tidied up a bit.
If that was the case it is the solicitor who would have the responsibility as the complaint is about the solicitor.
I have to say I am not supporting this amendment. I have no difficulty if the thing needs to be tidied up. The point that concerns me is that quite often, particularly in the larger firms of solicitors, there is a change of personnel. I suppose that if, for example, a well founded complaint is being launched towards a particular solicitor in a firm it may be a very good reason why he or she would be moved on, fired or find his or her service terminated. I think it is important that the complaint does not follow the defaulting solicitor where he or she goes on but that liability attaches to the firm that was delivering the service. I would be concerned that if we took out the words "or the firm" here that you could find a company getting over its liability in an issue by in fact firing the particular solicitor responsible and saying well that is it, look to the particular individual. I think the firm has to carry the blame as much as the individual.
Mine is only a query and it has to do with the linguistics of this. It follows directly from the language that has just now been used by Deputy McCartan. He talks about "he" or "she". Is it acceptable in the times in which we now live to talk about a solicitor, in connection with any matter, as "he or his" firm. Is that acceptable?
Yes. The Interpretation Act would cover that.
That was the subject of a Private Members Bill about a year ago. I do not know which party brought that up but the status quo prevailed and the Interpretation Act covers it.
Thank you very much Chairman. That is very enlightening, I must say, especially on the day that is in it. When is "he" coming in to address the Houses, Chairman? "He", in this instance, being a constitutional lawyer. When "he" is coming in to address us? Is it 4 o'clock?
Arising out of what Deputy McCartan said, what is the position of a firm when a solicitor is responsible for the actions of any subordinate in respect of a complaint like this? What is the position of a solicitor employed by a firm when a complaint is made about the solicitor who is employed by, but is not a principal of, the firm? Does the firm have to carry the responsibility for its employee, the solicitor, in that respect? Therefore does that tie in the firm anyway? It is a point that arises from what Deputy McCartan said and I think it would be logical that, where a solicitor is employed, the principals of the firm would be the people that carry the ultimate responsibility even though there was negligence on the part of that particular individual? What is the interpretation of that? It might lead to a conclusion there.
Reading the section over again and to follow through on the point that I was making, I wonder whether we should in fact be amending subsections (1), (2), (3) and (4) which deal with what the Society can do. It says "determine that the costs which the solicitor" and perhaps "or the firm of solicitors" should be included in there. That is something the Minister would consider for Report Stage also.
Mr. Ahern
Mr. Chairman the interpretation section does not define "solicitor". I take that it is probably defined in the 1954 Act.
The amending Act.
Mr. Ahern
That could take care of what we are saying. I was not speaking contrary to Deputy McCartan when I said to include on the third line "by a solicitor or firm of solicitors". I was not asking for the deletion of the firm of solicitors later on. The complaint could be made against the firm of solicitors or indeed an individual solicitor in a firm of solicitors.
The purpose of the amendment and the thinking of the Society was to try to settle this down on a particular solicitor which I certainly would not be happy with.
In relation to Deputy Ahern's point, the term "solicitor" which we defined by way of an amendment includes "a firm of solicitors except where the context otherwise requires". My intention is that the legislation should have the impact Deputy McCartan requires, namely, that you do not fasten it to a particular solicitor and that if a solicitor behaves negligently while he is employed by a certain firm that the complaint is made about the solicitor's actions but that the firm are the people that carry the can in so far as he was an employee of theirs. I agree that the wording could be tidied up, and providing we can tidy up the wording and still retain that impact, I will be prepared to look at it.
Is it agreed to withdraw the amendment on that basis?
Amendment, by leave, withdrawn.
Amendment No. 24. Amendment No. 24a is an alternative. Amendment No. 24b, 29, amendment No. 1 to amendment No. 29 and amendment No. 37a are related. We will take amendments Nos. 24, 24a, 24b, 29, amendment No. 1 to amendment No. 29 and amendment 37a together by agreement.
I move amendment No. 24:
In page 7, subsection (1), lines 32 and 33, to delete "may, if they think fit, following investigation of the complaint" and substitute ", unless they are satisfied that the complaint is frivolous or vexatious, shall investigate the complaint and shall take all appropriate steps to resolve the matter by agreement between the parties concerned and may, if the matter is not so resolved by agreement and subject to the provisions of subsection (3) of this section and section 14 of this Act,".
This amendment was designed to deal with a problem that was touched on yesterday which is to give the Society a general discretion to regard a complaint as vexatious and frivolous. Where there are good grounds for viewing a complaint as vexatious or frivolous, it means that the obligation imposed on the Society to formally investigate the complaint does not arise. It seems, as the section is currently drafted, that once the society receives from any person a complaint alleging that the professional services of a solicitor were inadequate in any material respect, the Society is virtually obliged to commence the investigation process. I am sure the Minister will remind me that the Bill as currently drafted says the Society "may if they think fit following investigation of the complaint do one or more of the following things". It can be argued that if they get a complaint and they do not think it fit they may not pursue the issue, even if a complaint is vexatious and frivolous. That is not the way the section will work. They still have to investigate it. They still have to send the complaint to the solicitor, get a response, look at the background and they then may come to the conclusion that they should not do any one of the various things listed in section 8 in respect of a solicitor who has not behaved properly. Where the society gets a complaint from someone who is behaving in a vexatious and frivolous way or, not to put a tooth in it, someone who might be mad and it is quite clear from the manner in which the complaint is presented that this is not a serious complaint from a serious person with a serious grievance, it allows the society to have a discretion to say it is frivolous and vexatious. That is very important because, in later sections of the Bill, if the Society gets a letter from someone who is more in need of psychiatric help than in need of any investigation of their legal problems and if the Society refuses to investigate it because they think it is vexatious and frivolous, under the terms of the current legislation that can be a cause of complaint to the independent adjudicator. He can then be launched on the Law Society and on the solicitor concerned for no particular reason. I have a concern that the legal requirements to which the Society must fully adhere would compel them to conduct such investigations and if they had to investigate complaints that were vexatious and frivolous, that could clog up the system and could prevent the speedy investigation of real and valid complaints that deserve immediate response. That is not in the interests of clients of solicitors. That is the thinking behind the proposal contained here and it is also designed to ensure that the provisions in the Act which are designed to provide for the resolution of disputes or complaints between a client and a solicitor by agreement are envoked before the Society makes a punitive direction against a solicitor. If the problem can be resolved speedily by agreement and if that resolves the problem of the client it is in all respects the most satisfactory outcome that can be achieved. Obviously if something is resolved by agreement with the client but it is obvious to the Society that there has been a serious act of misconduct by a solicitor, that does not stop the Society from proceeding under other legal provisions to act as the disciplinary body against the solicitor. That point is worth making.
Since I should not address amendments that are being taken consequentially in relation to this but which have not yet been proposed — I would like to reserve my right to come back on the Minister's proposals and Deputy McCartan's proposals. It seems to me that Deputy McCartan's amendment is designed largely to cover the same matter about which I have concern and about which Deputy Taylor has concern. He is using different linguistics to do that. The Minister, in his amendment, is seeking to ensure that investigations are not conducted which are unnecessary and, in a number of instances, where there are alternative remedies available, but he is not addressing the issue of the vexatious complaint made in the manner described. Perhaps when the Minister is moving his amendment, he might respond to what I have said.
I hope small exchanges between Deputy Shatter and myself will not explode into anything more this afternoon. There is a little bit more than linguistics involved in what I am attempting to achieve with some of my amendments. I would like to take the Committee very quickly through them. The first is amendment No. 24a. In principle I am attempting to move in the direction for which Deputy Shatter, Deputy Taylor and the Law Society were arguing in their amendment. Amendment No. 24a proposes that the provision be mandatory on the Society. The Bill as drafted says that the Society "may" investigate or "may" take certain steps. That should be changed to "shall" so that there can be no ambiguity about this and so that there will be a positive onus on the Law Society to act in the way that the Bill intends that it should do. In page 7, line 33, it says: "The Society may, if they think fit, following an investigation of the complaint, do one or more of the following things". That must be changed from the permissive "may" to the mandatory "shall" so that there can be no doubt about what we want the Society to do in this area.
The second point, in relation to amendment No. 24a, is that I am borrowing the formula used in section 9. I am doing that for consistency. Unless they are "satisfied about the complaint is frivolous or vexatious" is the formula used in section 9 and we should also use it in section 8. I agree with the Society that there must be some residual entitlement to the Society on receipt of a complaint to say that it is vexatious or frivolous. They must have the right to say that they are not going to process or deal with the matter.
As a practising solicitor, the experience I have had with the Law Society on those occasions in which they had to write to me arising out of a client's complaint (which were very few) — that might have been the nature of the practice more than the quality of the service — was that, irrespective of what was written to the Law Society by a member of the public, the Law Society simply photocopied the letter, put a covering letter with it and sent it to me. If one did not respond to that correspondence, that failure to respond in itself could have been deemed, and was on occasions deemed to be, an act of misconduct. Even though you would read it and wonder what the Law Society was doing — your Society which is there to service you and of which you are a member — sending you the most ridiculous correspondence to be answered, you nonetheless had to put down your pen, get your file out and give a chapter and verse detailed response to them. I have no hesitation in saying that that practice will have to end. In defence of the Law Society, they were under a certain amount of pressure. They did not want the person who had written in the letter to be writing into the columns of the papers next or to the Minister for Justice saying: "I wrote to the Law Society, I have received no response, they have done nothing for me". So every day they got in a huge mound of letters — or perhaps it was not so big as they would like to make it out — photocopied every one of them and sent it off to you and you had to respond. If you did not respond you were in trouble. It is important that the Society — now getting its greater and more adequate powers here — have the right to look at things and on the face of it say: "Sorry, this is ridiculous, this is vexatious or frivolous, we have made that ruling and we are not prepared to proceed with it".
The Minister has approached this in a slightly different way. He is in fact suggesting that they will act in circumstances where they consider it appropriate to do so. This is in the Minister's amendment No. 29. The Minister suggests that, in determining what would be appropriate or not, the Society could have regard to certain things. He says that the existence of a remedy elsewhere for the client in civil proceedings is one such thing. Whether the proceedings seeking the remedy have been commenced or not is another and whether section 14 of the Act applies is another. I am proposing an addition there. If we are going the Minister's way about it and if he is not prepared to accept the wording that I suggest in amendment No. 24a, I am asking him to accept my amendment No. 1 to amendment No. 9 which proposed that one of the considerations by the Society as to whether they think it appropriate to act or not under the Minister's amendment, is whether the Society considers the complaint as frivolous, vexatious, previous or made without due cause. The reason I extend that a little bit here is that people often go in to see a solicitor and they are not even over the hurdle of the first consultation or they have not given the solicitor or the firm a reasonable opportunity to deliver the service, but they write a letter to the Law Society. Before you know it, the relationship between the solicitor and the client is gone up in the air because of the intervention by the Law Society in those circumstances. It could often serve the Society better to be in a position to write back to the client and say: "you have only started along the line of litigation, you are only launching out, give the firm or the solicitor an opportunity to prove themselves or deliver the service to you. Go back and talk to the solicitor, raise this query with him or her and we suggest, for example, that you raise it in this way with him or her at your next consultation". In other words where the Society looks at the complainants issue and considers that it can be resolved between the solicitor and the client themselves, in other words that it is previous or may be without due cause, this is an important consideration that the Society should be entitled to avail of.
My final amendment is No. 37a. The Society, in its submission, suggest that there should be a sanction for those people who waste the Society's and indeed the profession's time by frivolous and vexatious complaints. I am not inclined to that view because I do not think that we should be building anything into the legislation that makes or acts as a disincentive to people availing of this legislation. Where a person is in doubt and if they are worried that they might end up getting a penalty or some other sanction imposed on them as was suggested, they would back off and not avail of the service. I am suggesting in my amendment that what we could consider is — and I am open to better suggestions on this line — that there should be something written into the legislation to assist the Society in dealing with the continuous and repetitive annoying member of the public. Let no one around this table suggest that they do not exist, they do. I say that from practice and more particularly as a member of the Dáil. There are a number of individuals who keep coming back, and I know that other members around this table have received an amount of documentation from one woman complaining about a service she got at a law centre earlier this year where all she has to do is go back to the court and apply for an extension of time to appeal. She is engaged in this incredible effort of collecting a mound of paper which she has indexed and circulated to one circle of people. Deputy Shatter was in the first circle and now the ripple has gone out and she has brought Deputy Roche, Deputy Taylor and myself into a second circle.
As an interested party you could refer that to the Law Society.
It could go on and on.
And then to the independent adjudicator.
Mr. Noel Ryan is on the mailing list so the Law Society are well and truly involved in it. There is a ruling of the President of the High Court on a certain individual in the City who cannot issue a writ out of the central office of the High Court without first getting the permission of the President of the High Court. There is one wonderful gentleman who is prohibited by a practice direction of the President of the High Court from going into the central office to issue High Court writs in any event. His defendant company are out of business now so maybe he will take on the lottery one of the days. There are such people. If they are going to present themselves constantly at the door of the Law Society with endless complaints, I think the Law Society must have the mechanism of saying no. I suggest that if, in the previous five years, a person has been found to have made a vexatious or frivolous complaint they are therefore debarred for a period of time from approaching the Society though this mechanism.
I have looked at the question of a person who is found out to have made one frivolous complaint but who might well have a legitimate complaint subsequently. I am merely saying that they have to go elsewhere to seek the remedy. There must be some mechanism, short of a direct inflicting sanction, available to the Society to enable it to deal with the problem. Those are the reasons why I have advanced the amendments. I would hope the Minister, if he cannot take them on board, would at least consider them as he has been very open in responding to the submissions already made.
Mr. Ahern
I do not have a lot to say. Looking at all the amendments I am mesmerised by all the various subsections. Deputy Shatter's and Deputy Taylor's amendment in my opinion is probably the most reasonable. I cannot recall in my years as a solicitor whether I personally have been the subject of a complaint. I do not think so but I might be reminded later on that I have. I am not altogether sure about my firm which goes back for many years. I am aware of some complaints that have been made about solicitors and many of them tend to be frivolous and vexatious and yet they have to be addressed. The way amendment No. 24 is phrased, probably gives some latitude. In the section, and indeed in the other amendments, there is a reference to resolving the matter by agreement. We are in an era of consultation and mediation and so on. Perhaps in some case where there are legitimate complaints to be made, after receipt of a letter, the client and the solicitor and, indeed, the Law Society, as mediator, could settle the matter. The way it is phrased in amendment No. 24 is probably the best and I think we should go along with that.
As part of the mediation process, I want to express some support for Deputy McCartan. I have reservations about the idea of a complete block for five years on someone making a complaint, because it is quite possible that someone might make a complaint about a solicitor which may be deemed vexatious. They may then go to another solicitor, against whom they may have a very real complaint. There is a problem with this. Nevertheless, Deputy McCartan has a point and it does need to be addressed. He has given an example of a lady who has been engaged in circulating a huge amount of documentation to me, and at this stage, practically every Member of this Committee. One can go through the public documents. There is a court case that has been winding its way through the High Court since the autumn of last year in which one particular lady is suing the Law Society. I think I am right in saying that a number of solicitors are involved. Indeed, I think she is actually suing the solicitor who acted against her in a matrimonial matter. One of the solicitors she is suing is the solicitor who acted for her husband against her in the matrimonial matter. From looking at the legal diary, I think I would be right in saying that so far one High court judge since mid-November has had to devote approximately 45 days to the hearing of this particular case. I am not going to express a view on the case, other than to say that it is clear from what I know of it that this is the case in open court. I am not a defendant in the case, in case anyone thinks I am. It is a lady who appears to be complaining about the performance of every single solicitor who has acted on her behalf over a period of about ten years, and is now complaining about the Law Society's failure to strike off each of the solicitors who have acted for her over that period. The Minister can get some information about the case. In case anyone thinks I have an interest in this, I will simply say that I was called as a witness at one stage. It is my understanding that there has been a preliminary judgment delivered by Mr. Justice Budd in the High Court in this case. It runs to something in the region of 70 pages and the judgment envisages further hearings that may go on for further lengths of time because of the large number of people this person is calling as an individual litigant (unrepresented) to give evidence. Perhaps she will succeed in some aspects of the case, and it is not for us to prejudge it, but I want to illustrate what can happen when someone gets a fixation with the law and the way in which they perceive they are being treated. The way in which they perceive they have been treated and the actual way they have been treated may be two entirely different things. It is quite extraordinary that one High Court judge has been tied up for this length of time in dealing with something of this nature. It is just an example of what could happen in the context of the Law Society if they were not able to make fairly swift decisions not to investigate frivolous and vexatious cases. If they are given that power — let us assume for a moment that the independent adjudicator then receives a complaint from the same person about the behaviour of the Law Society — there will clearly have to be a provision which would allow the independent adjudicator to simply look at what was presented to him or her, and make a decision that this was vexatious and frivolous and there was no need for the Law Society to investigate it. Otherwise the 45 day-type hearing which happened in the High Court could end up happening before the independent adjudicator. It would mean that, rather than this Act working, it would be utterly destroyed. It only takes two or three unwell people who have been involved in litigation to make vexatious and frivolous complaints to destroy the operation of this Act in practical terms for 12 months or more in regard to investigating real complaints.
Not that this is directly related in any way to the subject matter of this evening's Committee meeting, but could I ask Deputy Shatter if he knows whether the lady involved in the bizarre case he has described has access to free legal aid?
I would prefer if we spoke to the amendment under discussion.
I am not, happily involved with her in that way. She seems to have had access to an awful lot of lawyers over the years about whom she is making complaints. What I do know of the case is that she is representing herself and I presume that if she sought legal aid through the Legal Aid Board it may have been turned down. But I do not know if she sought it and I am certainly not going to try to find out.
Thank you for your indulgence.
If she had been given it, it would have been an absolute outrage unless there was some validity for the complaint she was making.
Thank you very much——
I think the point has been well argued that there has to be balance in this issue. You cannot compel the Society to pursue a case which is clearly and obviously, on the face of it, a case without merit. So there has to be flexibility. Deputy Shatter has argued the point well that there needs to be balance in all of the sections because the Minister would not wish to create a situation where you could, in fact, find the entire system bogged down by one or two vexatious cases.
We have had a very long discussion on that. If the Minister concludes, we will take a decision on it.
There are two elements involved in the amendment. Firstly, Deputy Shatter wishes to give the Law Society statutory power to resolve the complaint by agreement. I do not see any real objection in principle to that. I do not see anything in section 8 which would prevent the Law Society from suggesting a resolution by agreement within the parties. It is built into section 9, which deals with overcharging, that they have a statutory obligation to try to resolve the matter by agreement. I do not think the distinction between a complaint made about inadequate services and a complaint made about overcharging is sufficient to justify them being treated differently from that point of view so I would be disposed to accepting that part of it.
On the question of giving the Law Society the right to exclude complaints which are vexatious and frivolous, I asked the parliamentary draftsman why this was in section 9, dealing with overcharging, because it is not in section 8. One reason that was given was that a person who has a section 9 type complaint, i.e., overcharging, has access to the taxation machinery of the courts. Under section 8 a person's right to apply for taxation is not excluded if the Law Society, having investigated a complaint, decided to reduce the bill. The person can seek to have it further reduced by going to taxation or, alternatively, he might not complain to the Law Society at all, he might take his chances with the taxing master feeling that the price he was charged was too high for the service provided. I indicated yesterday why I do not think that would be the right way to go. The Law Society might decide to take a hard line and not investigate complaints to as wide an extent as we would wish. In that situation — Deputy Shatter made a point on this, I do not know if it was entirely accurate — as I read the legislation, the complainant would have the right to appeal to the ombudsman. If you look at section 15 dealing with the ombudsman, you will see that the ombudsman will investigate the Society's handling of a complaint. I take it that the term "handling" would include deciding not to investigate the complaint at all.
We are introducing an amendment subsequently to allow the ombudsman not to investigate a frivolous or vexatious complaint. We are concerned basically that it might not be as possible in all cases as it will be in some to determine whether or not a complaint is genuinely frivolous or vexatious unless there is some sort of investigation process. I am not talking about a full blooded investigation but some sort of preliminary investigation. Deputy McCartan's amendment which suggests that the Law Society shall investigate unless they are satisfied that it is frivolous or vexatious would seem to impose an obligation on the Law Society to carry out some sort of preliminary investigation to see whether or not it was genuine or whether it was entirely insane or vexatious.
I would be disposed to making some changes here. I will consider the matter and take account of the discussion we have had here. I will look at both amendments and it would be my intention to come back at Report Stage with an amalgam of the best of what is proposed, together with whatever we want to put in ourselves.
I am happy enough with the Minister's response. Having divided up the two different elements in my amendment, it seems to me that the Minister has argued his own case as to why there should be a provision to deal with vexatious and frivolous complaints and he has, in a sense, confirmed to himself that if the Law Society make the wrong decision on this, the independent adjudication can look at it — that must be right. The Minister said that there may be some cases where the Law Society is not sure whether something is vexatious or frivolous or not. In these cases they are going to have to investigate it. There are others that would be apparently on their face, vexatious and frivolous. The other side of the coin is that, if the Law Society is unsure as to whether something is vexatious and frivolous, and when the Minister is looking at it he may just check the way the section is couched, it should be open to the Law Society to raise, if they wish but without obligation, a further query with the complainant before they do what Deputy McCartan described — which is send off the complaint to the solicitor, who might then devote a considerable amount of time in doing an entire history of his dealings with the client. This may take a number of days to put together and it may not be necessary.
If we can couch the section in that way it will protect the client and it will protect the Society, the independent adjudicator and the solicitor in respect of complaints that are truly vexatious.
I will not press the amendment as I am happy with the Minister's response.
Amendment No. 24 withdrawn. Amendments Nos. 24a and 24b not moved.
I move amendment No. 25:
In page 8, subsection (1) (v), lines 6 to 9, to delete "without prejudice to any lien on or right to possession or retention of these documents which may be vested in the first mentioned solicitor or any other person" and substitute "subject to such terms and conditions as the Society may deem appropriate".
This will substitute a more appropriate and flexible wording to enable The Law Society to direct the transfer of documents to another solicitor in the case of an investigation.
This particular amendment is deleting the words "without prejudice to any lien on or right to possession or retention of these documents which may be vested in the first mentioned solicitor or any other person". Could I point out to the Minister that the original section, as I understood it, was to allow the Law Society to gain access to documentation in the context of investigating a complaint but to preserve something that has been part of the ordinary law for some time. I cannot recall whether it has a statutory base or whether it is just part of the common law as it has evolved and the Minister might clarify that.
If a solicitor completes work for a client and if the client does not pay for that work or does not pay what the solicitor deems the appropriate fees, the solicitor can retain a lien on the documents. In other words a solicitor can hold the documents of the client pending either the solicitor's fees being paid. Alternatively the client may be sued by the solicitor or the client has the option to complain about the level of costs that he or she is being charged and if necessary go to the Taxing Master of the High Court to have the costs reviewed. Under this legislation the client would be allowed to raise the issue with the Law Society. I am concerned, in the context of what the Minister is proposing that seems, in the case of a solicitor against whom a complaint is made, to be removing the lien or attempting to remove the lien and leaving it to the Society to determine the terms and conditions on which documentation should be handed over. It may well be that the complaint made may not be a valid complaint and the solicitor may be entitled to hold the documentation. It would seem to me that the solicitor's lien on documentation is not being abolished in this legislation and I would not suggest that it should be because that would leave solicitors very vulnerable and basically not having their fees paid by clients who sought to avoid payment when work was completed. It seems to me that there is a problem with this amendment which the Minister is proposing. He might clarify it a bit further.
I think I would be right in saying that a solicitor requested to hand over documentation could assert that he has a common law right to retain it as a lien. He would then find himself in conflict with the Society and the Society could penalise the solicitor under the Act for not making the documentation available. The solicitor could say "I am being perfectly reasonable, I will make them available provided you confirm that my lien is retained and the documents will be returned to me if I request them". You could have a conflict if large legal fees were outstanding which a solicitor may deem worthy of pursuing through the courts. I do not think it is unreasonable that the Society might prescribe particular conditions in relation to the release of documentation but I think there is a problem here. For example, what protection would the solicitor have against the Society handing back the documentation to the client. The Society looks at the documentation, the client comes into the Law Society, demands the documentation, says the documentation is his and that he wants it back. The Society has requested the solicitor to furnish it, he has done so, the lien is based merely on the concept that possession is nine points of the law, it is based on saying that you have a hold over your client. So it would seem to me unless the Society automatically, by way of condition, said "we will retain it subject to your lien" or subject to an undertaking from the Society to return it to the solicitor.
In fact the client could demand documentation that was there to be handed over by the Society and indeed if the Society gave an undertaking and even through bureaucratic mismanagement failed to comply with it and handed the documentation over to the client, the solicitor whose fees were outstanding would have no remedy. The solicitor's undertakings currently are only of value because if a solicitor does not comply with an undertaking the Law Society can in effect move towards having the solicitor struck off the role for misconduct. The Law Society cannot penalise itself for not complying with its own undertaking. I am not sure what the thinking behind the amendment is so that is why I wanted the Minister to explain this amendment. I am concerned that there could be a problem with it and I think it could leave a solicitor who has done his work honourably and whose fees are outstanding somewhat vulnerable under the complaints procedure to having documentation returned to a client and to being left unpaid for work properly done.
I take the point that Deputy Shatter is making. I take it that he has no objection and I do not think he could have any objection to the basic provision that in some cases the Law Society will have to be given the right to direct solicitors to transfer liens.
I fully accept that.
What Deputy Shatter is concerned to do is to protect any lien he would have. I understand that that evolved from the common law, it does not have a statutory base, but it is a common law right — a lien over documentation for fees outstanding. Deputy Shatter is concerned to have that protected.
Yes, that is correct.
Well, I suppose we could do so by recasting the amendment to ensure that, when the documents have been considered or when copies of them had been taken, that they would be handed back to the solicitor, I think that would be the best way to do it — to create an obligation on the part of the person getting them to hand them back to the solicitor.
In that context, could I say to the Minister that there may be some circumstances in which it is not appropriate that documentation be handed back. There may be some circumstances in which the Society makes a serious finding of misconduct and the client should not be disadvantaged by it's not being handed back. There is the general lien that has been part of our law for many years. It is not always just a question of solicitors' fees. It may be that the solicitor or his firm has an obligation to discharge moneys payable to counsel, to discharge moneys payable to medical practitioners, to accountants and to many people who have worked on a client's particular problem. Could I suggest to the Minister, in the context of Report Stage that to insert his amendment at this Stage would not be appropriate. As we have been willing to withdraw amendments, could I suggest rather than us dwelling on this now — and I appreciate the Minister accepting the point — that the Minister withdraw amendment No. 25 and simply leave that provision as it is. I fully accept and understand that the Minister will come back at Report Stage with a further proposal to deal with whatever worries he has in this particular area.
Minister, would that be agreeable?
Mr. Ahern
Could I just say that, like Deputy Shatter, I wonder about the proposed amendment. The other circumstance is that, not only in relation to the holding of documents by the solicitor in exchange for payment of his fees due or fees on outlay due, a solicitor may feel very aggrieved that a complaint has been made against him and may feel that he is totally in the right and may be very reluctant to let go the documents to the Law Society. I accept, as I think we all would, that the Law Society are entitled to get possession of the documents at some stage if they are relevant to a complaint. I think it is taken care of in the section as it is. In relation to any other circumstance where a solicitor may have documents on foot of an undertaking to a bank or on foot of some mortgage that is due on property and may not be in a position to let go the documents there may be a difficulty. That is perhaps something which, when the Minister does come back at Report Stage, he could perhaps amplify in the section rather than amend it to take into account circumstances where the solicitor may not be in a legal position to part with the possession of the documents without getting a strict undertaking from the Law Society that they are to be returned. He could, in turn, be subject to some undertaking given previously to a bank to return the documents to them.
There is general agreement there the Minister will withdraw the amendment and will come back at Report Stage with a more comprehensive one to deal with the points made in the debate.
Amendment No. 25, by leave, withdrawn.
Amendment No. 26, in the name of Deputies Shatter and Taylor: No. 27 is related so we will take Nos. 26 and 27 together by agreement.
We have about 15 minutes left and we have already discussed some later amendments. We might be in a position to get to the end of the section by 3.30. I am not trying to rush proceedings.
After we complete the amendments there will be some general discussion on this section because it has certain implications. I move amendment No. 26:
In page 8, subsection (2) (a), line 14, after "any" to insert "subsequent".
That particular section reads:
"Where the Society have given a direction under subsection (1) of this section in order to give effect to a determination by them under that provision as to the costs of the solicitor in respect of any services provided by him, then (a) for the purposes of any taxation of a bill covering those costs, the amount charged by the bill in respect of those costs shall be deemed to be limited to the amount specified in the Society's determination,".
What is proposed is that the word "subsequent" be inserted into the section after the word "any" so that it would read "for the purpose of any subsequent taxation of a Bill covering those costs, the amount charged by the bill in respect of those costs shall be deemed to be limited to the amount specified in the Society's determination". I see that Deputy Taylor has a further amendment to which this is related in which he says, in amendment No. 27, "any determination made by the Society under subsection (1) in relation to the costs to which the solicitor shall be entitled shall be disregarded". I am sure that Deputy Taylor will explain his own amendment.
I want to make a couple of points. They are as much general points as they are specific to the amendment. I will start with something that is close to my heart, and I suspect is equally close to Deputy Roche's heart from the comments he has made. I have a personal view that the Society should not be doing any of these things at all. I accept that we are stuck with the structure that the Minister has given us and my approach to this has been, rather than trying to comprehensively re-arrange the Bill in a manner which will not be politically acceptable and will not get us anywhere, to propose specific amendments that I feel will at least facilitate the possible workings of the Bill. It is my view that, rather than the Law Society pretending to act both as a trade union to the solicitors' profession and as a disciplinary body, it should get on with being a trade union to the profession and maintain standards, but that something separate to the proposal that the Law Society should investigate complaints. Separate from the Law Society there could be a complaints body which dealt with all complaints about the legal profession and on which there would be representatives of the solicitors' profession, the Bar and lay members. I would prefer if that was the case.
In the context of costs and the way they are dealt with in section 8, I think there is confusion and some problems. It is envisaged that the Law Society can look at bills of costs submitted by solicitors and reach conclusions that the solicitors charged too much. The problem is that there does not seem to be a clear view as to how this is going to interact with the operation of the Taxing Master in the High Court. I think it is going to cause huge confusion and it does seem to me that it would be better to have a person independent of the Law Society. I think the Taxing Master is that person or maybe we should have a less expensive and simpler procedure than taxing masters but someone independent who would generally deal with bills of costs. I fail to understand why this Bill builds into it two separate procedures, one, the Law Society and the other, county registrars and Taxing Masters. I will say more about that when we come to deal with the overall section and I do not want to labour the point unduly here.
What really is not clear and in both my amendment and Deputy Taylor's amendment we are trying to address aspects of this, is how the rulings of the Law Society under section 8 are going to interact with decisions of the Taxing Master and I would like the Minister to clarify that. For example, what is the position if a client disagrees with a bill presented by his solicitor and he goes off to the Taxing Master of the High Court and gets an adjudication from the Taxing Master as to the appropriate amount to be paid by the client. Can the client then complain to the Law Society that that amount is too much, submit the solicitor's original bill and suggest that what the Taxing Master has said is not right and that he should pay less. Can the Law Society then under section 8 reach a decision that, in effect, ignores the decision of the Taxing Master? If the Law Society can do that I think it is probably a provision that some time in the future will be held to be unconstitutional. What is the position if somebody complains about a solicitor's bill of costs and the Law Society reaches a decision — let us assume an individual or a committee in the Law Society look at a bill of costs, let us assume they have no expertise in the area of law to which the bill relates and they take the view that this is a grossly excessive bill and they say for argument's sake £2,000 should be docked from the bill — and the solicitor disagrees with it and says he wants this dealt with by a Taxing Master. If the solicitor goes to the Taxing Master who makes the decision that the bill is perfectly reasonable and that the amount that the Law Society wants docked off should not be docked off, what is the position under this section? How is this interacting with it? How does it work? I am not clear on this and I have read and reread this section. Maybe there is something I am missing in it. This is a problem that permeates through this Bill and there is a great need to clarify that.
I am talking specifically about costs because, under section 8 (1) (i), the Law Society can determine the amount of costs that should be paid in the context of the quality of work provided. Perhaps the Minister will say what the Law Society is doing is that they are actually penalising the amount of costs because there has been an initial decision that the solicitor's work was inadequate in a material respect or not of the quality that could be expected of him. Perhaps that is the answer to that. It does seem to me that there is a huge problem if the Taxing Master has made a decision about costs. I think it would be possible within the processes before the Taxing Master, I am not going to pretend to be an expert on this, for the client to represent to the Taxing Master that particular items of the solicitors work were unsatisfactory. In fact I am quite certain that this is the case because I can recall my firm doing this on one occasion for an aggrieved client who came to us having been dealt with by another solicitor. During the taxation process it is possible to point to work that the solicitor is seeking payment for and point out to the Taxing Master that the work was inadequately undertaken that there was a very obvious problem with it and to set out what the problem was. I think the Taxing Master does have a discretion not to allow fees to the solicitor for that work. I am practically certain that is the case. If that is the case, I am not sure how this is going to work because the Taxing Master may have taken all of this into account, made a decision and yet be limited by a prior Law Society decision to awarding lower costs than he believes is reasonable. The Law Society may also be faced by a Taxing Master's decision and may seek to reduce it in some way.
In conclusion, I would like the Minister to explain this. I really believe that if rather than this clarifying of the position, we cannot have an entirely independent body dealing with this, it would be much preferable to concentrate disputes about legal fees, not about misbehaviour on a court official — be it the Taxing Master or some reformed version of the Taxing Master — and to allow it be done in a manner that would be less expensive than it is at present. I have already referred to the expenses that the Government impose on this by way of stamp duties and charges.
Chairman, I submit my apologies for leaving the meeting earlier on but some other pressing business drew me out. I may have missed some comments made by a number of the Deputies but briefly I will come directly to deal with these amendments. I understand what Deputy Shatter is saying, he has an aide in Deputy Roche, that the Law Society should not be involved in this area. I do not agree with that view. As I understand it, the Law Society welcomes the powers contained in these sections. They will prove to be very effective provisions available to the Society to deal very quickly and succinctly with the complaints that come before them, where people will be happy to obtain a remedy that directs a solicitor to refund in whole or in part, moneys paid. It is a very useful provision and is one we should seek to protect.
Deputy Shatter raised a question with regard to the interaction between the Taxing Master where he or she is relied upon and the functions and powers of the Law Society. Frankly, I believe that both of them can run concurrently and that there is no difficulty of conflict. I think the Taxing Master is very restricted in the way in which he or she can deal with a bill of costs. Whilst there can be some trespass along the lines suggested, it is very limited in terms of the Taxing Master's entitlement to hear arguments about the quality of the service delivered and to adjudicate on an appropriate fee. It is almost regimental. If the instruction required certain legal action which was taken, then the Taxing Master has a scale of fees that are allowed depending on the amount of hours. From my experience there is very little scope for the Taxing Master delving into the quality of the work or the standard of the work. On the other hand the Law Society is being given this power, this entitlement and this opportunity. It is appropriate that it should have. I have no difficulty with it because the Taxing Master will often measure a bill of cost based upon the very rarified restrictions in his area of work, whereas the Law Society could have a different view of it and say we think that that bill in itself should be reduced because of factors that could not have been presented or made known to the Taxing Master or could not have had a bearing on the Taxing Master's view. My inclination is to let this section stand without Deputies Taylor's or Shatter's amendments in this regard.
I take the view that the Law Society are not an appropriate body to be involved in the specialised area of costs.
Deputy Taylor, as we are concluding at 3.30 p.m. it might be just as well if you wait until tomorrow to make your contribution you would have greater continuity, as we are meeting again at 2.30 p.m. tomorrow.
I am happy with that.
We will leave the discussion until tomorrow.
Progress reported; Committee to sit again.
The Committee adjourned at 3.30 p.m. until 2.30 p.m. on Thursday 9 July, 1992.