Special Committee Solicitors (Amendment) Bill, 1991 díospóireacht -
Wednesday, 28 Oct 1992

SECTION 9.

Mr. Shatter

I move amendment No. 31:

In page 8, subsection (1), lines 38 and 39, to delete "any person having an interest" and substitute "a client of a solicitor or any person duly authorised on behalf of such client".

In the context of section 9 and, indeed, the previous section, we are going to spend some time on these sections and on section 10, because they are very important. Amendment No. 31 deals with section 9 (1) which currently reads:

Where the Society receive from any person having an interest a complaint that a solicitor has issued a solicitor and client bill of costs that is excessive, in respect of services provided by that solicitor, the Society unless they are satisfied that the complaint is frivolous or vexatious, shall investigate the complaint. . ..

It goes on to provide that all appropriate steps should be taken. The proposal is in lines 38 to 39 to delete the words "any person having an interest" and substitute "a client of a solicitor or any person duly authorised on behalf of such client". As for the reason for this proposed amendment, I am not sure how one would define a person having an interest. It may well be that a client has had extensive work undertaken on his behalf by a solicitor. The client may receive the bill and may realise that the bill he has received is reasonable in the light of the work done. The work may be of so confidential that he does now want to share with other people what that work is, but he may have a friend or relation who becomes outraged at the nature of the bill or, indeed, the bill may be passed on to a local TD who does not understand the kind of work done and might express an interest in the matter and then lodge a complaint.

There are two important matters involved here. I have reservations about how this whole section will work and I will come back to those reservations when we deal with the section. However on the basis that the Minister is intent on retaining this section in the Bill it appears to me that if a complaint is made it should be made by the client or by someone authorised by the client of the solicitor to make the complaint. Someone who simply expresses an interest should not, in these circumstances, be lodging complaints, because, although he may have an interest in the matter, he may not know the full detail of what was involved and that could trigger the investigation procedure and prevent a speedy resolution of valid complaints that are lodged with the society. It is particularly important to ensure that it is the true and valid complaints that are dealt with.

Mr. Allen

I have serious reservations about the strength of section 9. I know of the widespread abuses that take place under this heading, namely, the solicitor-client aspect, and I am not impressed at all by the measures proposed by the Minister. Why has the Minister not considered beefing up the section, to ensure that any understanding a solicitor and client may have is of a concrete nature that cannot be varied afterwards by word of mouth? As a public representative who attempts to understand at all times the problems the client brings, I cannot understand solicitors at present being allowed by the law society to get away with what I would term as highway robbery, in relation to the solicitor-client aspect. I ask the Chairman to consider the situation where a client engages a solicitor to take his case for personal damages. An award is given in the court with damages, the client never sees the cheque, number one, as that is forwarded to the solicitor by the insurance company. The client in turn gets a cheque from the solicitor's own account and, on many occasions, never sees the bill of costs, the list of damages that is awarded to the solicitor, so that he can compare the expenses that he has been charged with the cost being allowed to the solicitor by the courts. This area should be firmed up in a major way, and section 9 does not address that.

When a client asks for a full statement the practice quite often is that he is not given that statement. He is just given a cheque with an appropriate reduction for extra solicitor costs, as it is termed. The client at this stage goes to the public representative who attempts at all times to understand the situation. When that complaint is taken to the law society, the law society, unfortunately — and I am not here to criticise the law society — while making an attempt to put their house in order over the last number of years owing to public pressure are still taking a softly, softly attitude to the whole grey area of client-solicitor costs. I can quote examples of recent vintage, the last few weeks, where clients in Cork, who got court awards, found themselves having substantial amounts of money deducted from their awards and found it impossible to get statements from their solicitors. When complaints are made to the law society and an approach is made subsequently to the solicitor for an explanation, the solicitor is, in my opinion, quite incorrect in calling in the client and attempting to get a written undertaking that the client is satisfied. It is totally inappropriate for the law society to approve and allow this sort of conduct to continue. I would ask the Minister to firm up this section in a big way, because the section, as drafted, will allow ongoing abuses to continue.

Mr. Browne

I refer to the way that sentence is written: "where the society receive from any person having an interest, a complaint. . .". Why is "complaint" not so placed so that the clause would read: "where the society receive a complaint from any person having an interest"? I know that legal jargon is difficult, but this is not legal jargon, it is just syntax that is gone astray. I think it is a very sensible amendment from my colleague, Deputy Shatter, where he defines who people with an interest are. He confines it to someone reading the local paper and deciding he would have a go at someone. His amendment is acceptable to me. If the Minister will not accept his amendment would he at least put English on the piece that is there?

Mr. Enright

In connection with Deputy Shatter's amendment, the recent Planning Bill that went through the Dáil, if you recollect, is quite restricted in regard to people who can appeal, and correctly so. It is confined to the following people: an architect or engineer, the person concerned, or a solicitor acting on their behalf, in other words, if there is an interested third party who has an interest in it. It is to try to confine appeals rather than having large numbers of appeals being made by many people who, for vexatious reasons in many instances, might be lodging complaints. I would even go a stage further than Deputy Shatter by saying a client of a solicitor. I would actually go so far as to say, it would want to be a solicitor, an accountant or the person himself. I would have it restricted, because you do come across people who write in to you about complaints and unless the information given out is about something witnessed by the person himself, it wold be a tricky area.

In regard to the usage of language and what we are discussing here, I hope we would try to be temperate in what we are saying. Going overboard and using certain phrases is of no benefit to anyone. The Solicitors' Bill is necessary and I am sure that we would all want to work in the interests of the people we are serving. This is something the solicitors profession have been looking for for 15 or 20 years, and we should try to get a correct mix here now.

Mr. Dennehy

I would not like to see this too confined regarding people who may represent a client. In many cases you have elderly people who may be confused and are asking somebody to act for them. The last thing we want is that it would have to be another solicitor or professional person. In defining the grouping it has to be "somebody directly representing", or words to that effect. As was already said, you cannot have every dog of the road doing it. At the same time we would have to define a professional person who would cost a lot of money in almost all instances, such as a solicitor, an architect or an engineer. Big money is involved. If there has been a serious complaint and somebody wishes to go in and represent a person, I would like to see it more tightly defined. It would be easy to improve that but it does not have to be another member of the legal profession. I would not want that written in.

Mr. Allen

I would say that Deputy Shatter's amendment is quite appropriate and meets the needs. Any person duly authorised on behalf of his client meets the needs; anybody who can effectively present a case on behalf of a client who feels aggrieved, that approach should be made and should be allowed. I reserve the right to use any type of phrase that I feel is justified to highlight some of the things that have been going on. I would reject totally that the law society have been attempting to bring about change in this area for 15 years. The law society are on record as saying in 1984 there were no real problems. It was only by people raising the issues and exposing them that pushed the law society into accepting that there was a problem subsequently in the mid-eighties. It was only from then on that the Minister for Justice and the Department accepted the need for a major reform in this whole area. But up to then the law society said there was no problem and that the rantings and comments of certain individuals were just exaggerating the situation. The disclosures made by individuals at the time brought the issue out from under the carpet.

Chairman

I would like to remind members that the general issues on the section may be raised when the amendments have been disposed of and so far as is possible — I am not naming anybody — I would request that contributions be confined to the amendments. Otherwise we will never finish this.

Mr. O'Dea

I take Deputy Browne's point about the grammatical situation. He is well known for his expertise in the English language. I will consider rewording it to make it clearer. Deputy Allen said that the issues he is concerned about are not addressed in section 9. He is quite right; they are not addressed in section 9. There is a very good reason for that. They are all addressed in section 62. If he reads section 62 he will find that every issue he spoke about is dealt with in some detail. In relation to Deputy Shatter's amendment, we had, as he will recall, a discussion on this in the context of section 8. I indicated in our discussion on section 8 — and I suppose that what I do in relation to this particular matter on section 8 I will have to do in section 9 — that I am going to consider very seriously what he said. I have not finalised my thinking process on it yet, but I would be optimistic that we will be going in the direction suggested by him.

Mr. Shatter

I welcome the fact that the Minister is thinking in this direction. I would have been a bit more optimistic that since June his thinking would have clarified somewhat and we could have disposed of this today. On the assumption that we will come back to this on Report Stage I will not press the amendment.

Amendment, by leave, withdrawn.

Chairman

Amendments Nos. 32, 33 and 39 may be taken together by agreement. Agreed.

Mr. O'Dea

I move amendment No. 32:

In page 8, subsection (1), line 39, after "issued" to insert "to a client".

These are merely drafting amendments.

Amendment agreed to.

Mr. O'Dea

I move amendment No. 33:

In page 8, subsection (1), line 39, to delete "solicitor and client".

Amendment agreed to.

Mr. O'Dea

I move amendment No. 33a:

In page 8, subsection (1), line 40, after "in respect of" to insert "legal".

This is a drafting amendment consequential on the official amendment.

Amendment agreed to.

Mr. O'Dea

I move amendment No. 34:

In page 8, subsection (1), line 40, after "provided" to insert "or purported to have been provided".

Amendment agreed to.

Amendments Nos. 34a and 34b not moved.

Chairman

Amendment No. 35 is in the name of Deputy Shatter. Amendment No. 36 is an alternative and No. 37 is related. Amendments Nos. 35, 36 and 37 can be discussed together, by agreement. Agreed.

Mr. Shatter

I move amendment No. 35:

In page 9, lines 3 to 5, to delete subsection (2), and substitute the following:

"(2) Nothing in subsection (1) of this section shall prevent any person from exercising any existing right in law to submit a bill of costs to the Taxing Master of the High Court for taxation or to require that such account be so submitted.

(3) In the event of either the client or the solicitor invoking the procedure for taxation of a solicitor and own client bill of costs the Society shall discontinue any investigation being conducted by it pursuant to subsection (1) of this section and both the client and the solicitor shall be bound by the result of the taxation of costs and the Taxing Master shall communicate the result of any such taxation to the Society.

(4) Where the Society is informed that a solicitor is unreasonably delaying in submitting a bill of costs to a Taxing Master of the High Court for taxation after the discontinuance by the Society of an investigation pursuant to subsection (1) the Society after giving due notice to the solicitor may re-open the aforesaid investigation.".

Amendment No. 35 brings into focus a concern I have about this section and how it is going to operate. Indeed, I have a huge concern about the seriousness with which the Government are dealing with this issue in the light of recent developments. The only way to explain amendment No. 35 is by going back to the original section 9 (1). Under section 9 (1) where the Law Society receive a complaint that a solicitor's bill is excessive, the Law Society can investigate the complaint and can take all appropriate steps to resolve the matter by agreement between the parties concerned. Then, if they are satisfied that the bill of costs is grossly excessive they can direct the solicitor to comply or to secure compliance with a number of requirements. One obvious requirement is to refund all or part of the money and there is also a requirement to waive an entitlement to recover costs. Section 9 (2) reads:

Nothing in subsection (1) of this section shall prevent any person from exercising any existing right in law to submit an account to the Taxing Master of the High Court for taxation.

There are a variety of problems here and I want to put in perspective the approach I am adopting. First, I do not believe solicitors who grossly overcharge clients should be immune from the law. There must be a mode of redress to ensure that people are not overcharged for work done. I start from that premise. Second, a solicitor like any other professional person, is entitled to be properly paid for the work he does.

Third, there are a small number of solicitors who abuse their position — and I emphasise a small number.

I regret that my colleague, Deputy Allen, when dealing with this issue regularly uses language which seems to smear the entire legal profession. All of us as legislators have a role to play to ensure that the small number of solicitors who create a real problem are dealt with, and that there are legal mechanisms to ensure that they are dealt with properly. As in every walk of life, there are people who behave inappropriately, and I am sure none of us can say that there may not be one or two people within the hallowed walls of this House who, on occasion behave inappropriately. I do not think there is any purpose in smearing an entire profession.

I agree with my colleague, Deputy Enright, that that sort of language may be good to catch a headline but does not help to resolve a problem. Equally, it is grossly unfair to the vast number of solicitors who do their best for their clients and often in difficult circumstances. As, on occasion we all have difficult constituents to deal with equally members of the legal profession, the medical profession, architects or accountants may have very difficult clients who do not always approach their affairs in a clear and logical frame of mind.

What is the current position in relation to costs? There is a myth about the problems in this area. I agree with Deputy Allen that if a solicitor does work for a client the client is entitled to a detailed bill if he requests one. I have no disagreement with that. If a solicitor currently presents a bill to a client, what is the position? If the client objects to the costs on the basis that they are excessive the client can have the Taxing Master of the High Court tax the bill of costs. The Taxing Master is an independent judicial official who will have full access to the solicitor's files and can deal with any allegation that a bill is excessive and can adjudicate on what is the appropriate sum someone should pay.

There are certain difficulties at the moment in the operation of this procedure, and the difficulties are largely Government created. The first difficulty got no real publicity and, presumably, after today's meeting it still will not get any publicity. There used to be two Taxing Masters in the High Court. Bills of costs had to be taxed not only as a result of complaints made by clients. The overwhelming majority of bills, of costs are taxed where someone wins a court case and an award for costs is made against the other side or the State loses a court case and an award for costs is made against the State. The Taxing Master then has to determine the amount of costs to be paid.

In June of this year one of the Taxing Masters, Master de Valera, retired and since June there has only been one Taxing Master in the High Court. We are now in October and if a client has a complaint about a solicitor's bill of costs and wants it taxed in the High Court, it is highly unlikely that this will be dealt with by the Taxing Master until February or March of next year.

There is a growing backlog of cases pending before the Taxing Master of the High Court, the majority of them in the context of successful litigants trying to have their legal fees paid by the people who were unsuccessful in the case in which they were involved. The Government are grossly negligent in failing to appoint a Taxing Master. It is farcical to be dealing with this Bill in relation to solicitors' costs, the real problem of the small number of solicitors who overcharge clients and putting mechanisms in place to deal with that issue, when the existing mechanisms are not being properly worked by the Government.

I want the Minister to tell us today whether it is the Government's intention to appoint a second Taxing Master. I predict that if one is not appointed by January there will be a 12 months backlog because with the best will in the world, one Taxing Master cannot process all the taxation of costs which need to be processed. Again I emphasise that in the context of litigation not in the context of solicitors' complaints.

The problem with this section is that it gives no insight as to how the current system will work with a new system. On occasion complaints made about solicitors in the area of the taxation of costs are valid because people have been overcharged but on occasion the complaints made are not valid and a decision is made by the Taxing Master that the costs charged are reasonable and he is a person whose decisions are subject to appeal to the High Court and to the Supreme Court, and there have been occasions when the appeal system has been necessary and has been properly used. The Taxing Master takes an overview of litigation in the courts and the approximate costs involved and he is up to date in those areas. The Taxing Master is an identifiable independent person.

The problem with this section is that it does not say what happens if a client makes a complaint to the Law Society — I want the Minister to answer these questions — and a solicitor is satisfied that the bill of costs is reasonable, can the solicitor invoke the taxation procedure so that the matter is properly dealt with? He may want the matter simply adjudicated on and not want to get involved in a long wrangle. Equally, if the Law Society is to make the decision, be it at the behest of the client or the solicitor, what person will make the decision because the reference here is to the society? What identifiable individual with expertise is going to make the decision as to whether the costs charged are reasonable or not? Is it going to be a secretary in the office of the Law Society? Is it going to be the Director General? Is it going to be a committee of the Law Society? Is it going to be, perhaps, some solicitor appointed by the society who has been practising in conveyancing for 30 years and has had no experience of litigation and who is then going to start pronouncing on the reasonableness or not of litigation fees charged by solicitors? None of this is clear in this section.

What happens if the society decides that a bill is grossly excessive? What happens if this unidentified individual decides this while the solicitor, from experience in similar cases, knows it is a bill more or less of the same nature as that charged in other cases that have been approved by a Taxing Master?

Is there a right of appeal if the client is truly of the view that a bill is grossly excessive and it happens to be someone in the society who does not have a great deal of experience who makes the decision? What right of appeal will the client have from the Law Society's decision? The society does not have any identifiable people with expertise at present dealing with bills that are allegedly excessive. It is dealt with by the Taxing Master. It is proposed to have a body called "the society" making the decision, an anonymous body presumably. Will it be the president of the society, who will be nominated to do this? How can a client of a solicitor, who has a genuine complaint, be satisfied that this will be properly dealt with? How will a solicitor who, perhaps, has been wrongly complained about be satisfied that this will be properly dealt with? This is a grossly inadequate section. How does it interact with the Taxing Master? For example, under this section — I am coming to the reason for my amendment — if a client makes a complaint to the society, could the solicitor then invoke the procedures before the Taxing Master? Could we have a situation where some member of the society decides a bill is excessive and a week later the Taxing Master decides it is reasonable?

This section is put in place as if there is no legislation to provide for the taxation of costs. Is it perhaps the Minister's intention that when the current Taxing Master, who was recently appointed and is the only one we have, ceases his term of office he will not appoint anyone to replace him just as no one has been appointed to replace Master de Valera? I do not know the answer to that.

My amendment is designed to bring some order to bear, at least on this section which is grossly defective. I do not understand how section 9 (1) can operate in the context of the society taxing costs or determining whether costs are reasonable or excessive at the behest of a complaint from a client because there is no indication how the society is to go about this. For example, are they to be bound by decisions of the Taxing Masters. Currently, if there is a contentious issue about this before a Taxing Master a solicitor will be represented by someone called a legal cost accountant who has expertise in this area and a client might be similarly represented. What role is the legal cost accountant, if any, to play in front of the law society? Has there to be any sort of formal hearing? Has it to be done by letter? If the client makes a complaint will the solicitor know about it and have an opportunity to respond? If the solicitor wrongly says to the Law Society, "ignore the client, the client is mad" and the client is quite sane and being grossly overcharged what opportunity will the client have to respond to that?

The subsection which I am seeking to insert in the section would read as follows:

Nothing in subsection (1) of this section shall prevent any person from exercising any existing right in law to submit a bill of costs to the Taxing Master of the High Court for taxation or to require that such account be so submitted.

I think that should read, "or to require that such bill of costs be so submitted", and I wish to formally amend it in that way. My amendment continues:

(3) In the event of either the client or the solicitor invoking the procedure for taxation of a solicitor and own client bill of costs. . ..

Of course, in the light of the Minister's change — I presume this should read, "the procedure for the taxation of a solicitor and client bill of costs" because this arose out of the original wording. The amendment continues:

. . .. the Society shall discontinue any investigation being conducted by it pursuant to subsection (1) of this section and both the client and the solicitor shall be bound by the result of the taxation of costs and the Taxing Master shall communicate the result of any such taxation to the society.

(4) Where the Society is informed that a solicitor is unreasonably delaying in submitting a bill of costs to a Taxing Master of the High Court for taxation after the discontinuance by the Society of an investigation pursuant to subsection (1) the Society after giving due notice to the solicitor may reopen the aforesaid investigation.

That is designed to indicate that if a client complains to the Law Society about a bill of costs it may be, if we can ever discover who in the society is going to deal with this, that both the solicitor and the client are happy enough to allow the society deal with it. However, if either of them wish the matter to be dealt with by the Taxing Master of the High Court it can proceed to be so dealt with. The Law Society will then stay taking any action so the possibility of two contradictory decisions does not arise. There will nevertheless be a society "foot" still in the door so that if the solicitor does not with a reasonable degree of speed present a bill to the Taxing Master the society can continue whatever investigation it is engaging in. That provides a protection for the client.

The problem with this is that if we are going to have only one Taxing Master it will be impossible within another few months for any bill of costs to be taxed with any degree of reasonable speed. That is clearly the position. One would have thought, in the context of our dealing with these provisions that at the very least over the summer period the Government would have gone about resolving that problem.

In proposing the amendment I am conscious of the fact that it perhaps, now requires amendment because of the changes the Minister has made to section 9 (1) which seem to be directed in its original format to dealing with solicitor and own client bill of costs. This should be somewhat more widely drafted.

I would like the Minister to explain to us how he envisages all of this working? The problems in this area are largely created by Government because if we had enough Taxing Masters anyone who had a complaint about a bill of costs would be able to have their costs taxed quickly. The one problem with the taxation of costs at present is the expense of it. The merit of some other body, group or individual doing it is based on the idea that it will make it less expensive. It is expensive at the moment because a Government tax is imposed on the taxation of bills of costs. A substantial amount of money has to be paid out by a client by way of taxation of costs when their bills of costs are being taxed——

Mr. Taylor

On a percentage basis.

Mr. Shatter

Yes. Not only are the Government not providing enough personnel to ensure that taxation of costs at present can take place speedily but they impose a charge on it that is, in my view, grossly excessive on a percentage of the bill as taxed.

It seems to me that this is designed to suggest that you could have the same job done in the Law Society without it costing any money. It would seem to me that if the Government wanted to free up this area, a very simple thing could be done, appoint more Taxing Masters and there is no reason why we should only have two. There is no reason why legislation cannot be changed to provide for more. The Government should not impose a tax based on a percentage of the bill of costs as taxed. What we are doing here is discussing an utterly inadequate and defective solution to a problem that needs to be resolved. I do not think we are going to resolve the problem fully in this debate but it is something we need to talk out at some length.

Mr. O'Dea

I can see we are not going to make much progress today. Deputy Shatter asked who is going to make the decision in the Law Society. This section has been inserted at the request of the Law Society, and they have assured us that they will have a system in place to operate it. I have to take their assurances at face value. Deputy Shatter had many good things to say about the Law Society earlier when it suited his case. Now he is suggesting that the Law Society is in some way misleading the Government and the Department of Justice and I utterly reject that. We are talking about the Law Society and the Deputy blames them when it suits him and praises them when it suits his case.

Deputy Shatter suggested that we should appoint more Taxing Masters, and that we should reduce taxation on bills of costs. Of course, and I suppose we should appoint more judges, more guards and more prison officers but I would like to hear suggestions from Fine Gael as to where the money for all these suggested improvements will come. I cannot speak for the Government as to when the Taxing Master who has retired will be replaced but I am sure he will be replaced shortly, that is the latest information I have.

The amendment in the name of Deputy Shatter proposes to insert a new subsection (2) and to add two new subsections. The proposed alternative, subsection (2) adds substantially to the provision that is already there, which merely provides that subsection (1) shall not interfere with any existing right in law to proceed to taxation.

I agree with Deputy Shatter on one point. Section 9 of the Bill as originally drafted is inadequate and leaves many things unresolved but it is unfair to speak about that section and totally ignore the fact that I am proposing amendment No. 37 which deals with the situation.

Chairman

The Minister may discuss that now; it is related to the amendment before us.

Mr. O'Dea

Amendment No. 37 purports to marry the new scheme to the present scheme for taxation of bills of cost. The thrust of the proposed subsections (3) and (4) in Deputy Shatter's amendment is similar to that of amendment No. 37 which seeks to insert a new subsection. I would not be disposed to accept the wording in Deputy Shatter's amendment because it implies that a solicitor may invoke the taxation procedure. I am advised that that is not the case, that it is only a client who can require the bill of costs to be taxed by signing a requisition to tax. A solicitor, of course, has a right to sue for his costs.

I understand that the position in relation to costs and taxation to be — this is the advice I got — (1) the solicitor cannot lawfully sue for one month after delivery of the bill of costs; (2) the client has a period of 12 months within which to demand and obtain taxation; (3) after the expiry of 12 months, or after payment of the amount of the bill, then the court may, if the special circumstances of the case appear to acquire the same, refer the bill to taxation, provided the application to the court is made within 12 calendar months after payment and (4) after the expiry of the latter period there is no statutory power to refer for taxation.

I am also concerned about the proposal in subsection (3) of the amendment, that a solicitor and client would be bound by the result of the taxation of a bill of costs. First, it would appear to interfere with the power of the High Court to review decisions of the Taxing Master. Second, it attempts to change the existing law in regard to taxation of costs by binding the parties. I am particularly concerned that we should not attempt to change the long established rules relating to taxation of costs in this Bill.

What I am doing is conceding the point that section 9 as originally drafted is defective in that it does not link up the present system for taxation of costs with the new procedure which we are proposing. I will be moving an amendment to deal with that. Secondly, I would point out to Deputy Shatter that there is an appeal mechanism to the High Court against determination by the society in this regard set out in section 11.

Mr. Shatter

I wish to raise a couple of queries in response to the Minister. First, it was my intention that it would be available both to a client and a solicitor to bring a matter in dispute before the Taxing Master of the High Court. I would ask the Minister why in principle should that not be the case. If a complaint is made to the Law Society about a solicitor, is it not reasonable that the solicitor should be able to say, I want this matter adjudicated by the Taxing Master? Why should it be left solely to the client to have it adjudicated by the Taxing Master? This Bill should be amended in that way. It was my intention that this amendment indicate that was now to be open to the solicitor.

Second, in relation to the Minister's reference to the society, I have good things to say about the society and I also have criticisms of it. I make no excuse for that. Our job is to act as legislators. It does not matter what the society tell us or what promises anyone else outside this House makes to us. We are enacting legislation which is conferring powers on people. I do not care what assurances we have got from the Law Society that they will get a good chap or a good woman to make these decisions. That is not what we are about; we are about saying identifiably who is going to make decisions on something that is genuinely serious. If a client has a genuine complaint he or she is entitled to know what individuals are going to deal with that complaint. I do not think that some anonymous body, the society, should deal with it. Perhaps the Director General will nominate a different person every six months to deal with it.

I am not saying the society would act with mala fides in this but I am certainly conscious over the years that the society on occasions made very wrong decisions about a number of issues. That may depend on the personalities dealing with them. There are things over the years about which I would be very critical of the Law Society and other things I would support them on. This does not mean that we as legislators abdicate our role to the Law Society; we are enacting legislation to identify who is going to deal with complaints.

It is not good enough that the Minister has some assurance from the Law Society that it will appoint the right people to do it because on occasions the Law Society has not appointed the right people to do a variety of things. It made some wrong decisions as we saw in the way it dealt with the educational system the society runs which had to be sorted out through the High Court. It is not always right.

It is my view that if this provision is put into place in this way, it will not work; it will be a source of contentious litigation no matter what assurances we have. If there is a particular body or if the society is to nominate a body what expertise will it have to adjudicate on costs? That is a relevant question to ask under section 9 (1).

It is not a satisfactory reply for the Minister to say that sometimes I say nice things about the society and other times I do not and that he has assurances that some proper person will deal with it. That does not indicate that there will be any expertise.

Amendment No. 37 deals with some of the matters I raised but it is different in that it does not allow the solicitor to have the Taxing Master deal with it. It is not a question of the Minister telling us what the law currently is. We are now changing the law to provide a more efficient and responsible system. I deliberately made that provision in my proposal.

In relation to "unreasonable delays", the Minister in his amendment referred to unreasonable delays in submitting the Bill. What effect will unreasonable delays have on the Taxing Master making decisions, in particular in circumstances where we only have one Taxing Master who is over-worked? The Minister suggests that what I wish to do is create a situation where appeals could not be taken from the decisions of the Taxing Master. In my introductory remarks I made it clear that it was right that the appeals system be available and it was not my intention that it be otherwise. I notice the Minister did not respond to the problem of cost to litigants who seek to have their costs taxed. I would ask him to respond to that.

Mr. Allen

This committee is unique in that it breaks down on political lines and also seems to break down on legal and non-legal lines. As a non-legal representative I reserve the right at any time as a legislator to use——

Chairman

I know all of that. We are discussing amendments at the moment and we should not go off wandering around the place.

Mr. Allen

I am not going to wander.

Chairman

You have the right to comment and I would not deny that to you. You will be allowed to make your comments on the generality of section 9 when we have finished the debate on amendments Nos. 35, 36 and 37. I have to enforce some kind of procedures.

Mr. Allen

I have said very little this morning.

Chairman

I know that but you can say as much as you wish provided it is relevant to the amendments before us. You are not referring to the amendments at the moment. If the Deputy has something to say about the amendments before us that is fair enough.

Mr. Allen

In relation to the Taxing Master any comments I made were made in my capacity as a legislator and representing people who have come to me with problems in relation to this procedure. I will use the words I wish because they are the words I am hearing from people I meet every week. I can give a litany of complaints I received on the rip-off in relation to the solicitor/client aspect. My criticism is not of the profession because it is obvious that the majority of solicitors do a good job for their clients but of a minority——

Chairman

No; you are taking French leave. What I am objecting to is that Deputy Allen is not referring to the amendments. I will allow him refer to the section when I have disposed of the amendments. I respect his right of reply but he must understand that if this keeps up we will never be finished. I will allow him in on the section. I cannot see how another five minutes would make that much difference.

Mr. Allen

I am asking the Minister to reconsider this section and to strengthen the hands of an independent procedure within the Law Society in order to keep cases out of the area of the Taxing Master since there are delays there at present. The major problem a client has to face in going to the Taxing Master is the cost involved if he loses the application. It is quickly pointed out by the Law Society in responding to clients that they have the right to go to the Taxing Master but in the event of their case not being confirmed by the Taxing Master they have to bear the extra costs. That is a deterrent to a person with a problem.

I ask the Minister to consider including a section to strengthen the role of the Law Society in dealing with these complaints. The Minister said that section 62 dealt with the points I raised earlier. That section does not deal with a total disclosure of awards given by the courts. If the Law Society is given sufficient powers in this section clients would not have to go to the Taxing Master in the manner set out in the section. I would like to hear the Minister's opinion on this. Has he any views on strengthening the role of the Law Society in his area?

Mr. Taylor

I am rather puzzled by Deputy Allen's comment about the Law Society as an independent procedure with the implication that the Taxing Master in the High Court is something other than independent. I would have thought that the argument could be made that the Law Society is the body that is not independent because it is the controlling body of the solicitors' profession. One might argue that it might be biased towards solicitors, not that they would be but it is a partisan organisation. The suggestion by Deputy Allen is surprising.

Mr. Allen

I was referring to the proposals by the Minister to have lay representation on the Law Society complaints procedure in relation to independence.

Mr. Taylor

We are not talking about those procedures. We are talking about assessment of costs procedures which is different. Whatever little knowledge the average solicitor may have on the quantum of costs — most solicitors have precious little knowledge of that complex area — lay people who would be brought in would have none and would have no constructive role to play having regard to the fact that this is an area of great expertise which even solicitors do not have. So, a fortiori, how would lay people have it?

If what Deputy Allen is saying is that the determination of what solicitors' costs ought to be should be by an independent procedure then I agree with him. It should be by an independent procedure, an independent tribunal or an independent person or persons. That is precisely what Taxing Masters are. They are the equivalent of judges in the area of costs. They sit in a quasi-court and have arguments put to them by cost accountants for the solicitor and for the client or for opposing solicitors as the case may be. They are supposed to be totally impartial. They are paid by the State and that is their job, their expertise. There are many textbooks on this subject of legal costs and it is an extremely complex area. On the very rare occasion that I have gone down — I have been in practice as a solicitor for 40 years — to the Taxing Masters I wish I had not because they talk a different language that I could barely understand. The procedure of Taxing Masters is independently organised and has been for some time. It is a very good procedure provided it is brought up into the 20th century. I agree with the comments of Deputy Shatter on what should be done.

In an ideal situation the Law Society as a partisan organisation should not have any role in this except, perhaps, as arbitrators. The notion of arbitration as between a solicitor and client is a good one as it is between any disputing people on any issue. If a matter can be resolved amicably by arbitration all the better and this would save the trouble of the courts and the Taxing Masters. To that extent they would have a role and to some extent the section is designed towards that end. The role should be that of an arbitrator rather than a judicial one. The ideal way to deal with the matter would be to have a proper court-based taxing system.

The Minister made a point about the cost of providing a Taxing Master. If the Minister, and his officials, take the trouble to check the cost of running the Taxing Master's office and the tax take of the Government on every bill they will find that few areas show such substantial profit. I suggest that the Minister should have a look at the tax and see the amounts that are being charged. The notion of solicitors charging bills on some kind of percentage basis is frowned on in the Bill but, on the other hand, the Government are applying the percentage system.

Chairman

Deputy Taylor, you must realise we have to confine ourselves to the amendments. The question of taxing of bills is a matter for the Minister for Finance. We cannot go into that issue. I will have to ask you to deal with the amendments.

Mr. Taylor

I appreciate what you are saying but I would like to know if you are ruling that it is in order for the Minister to raise queries about the tax, the costs and who is going to pay and that other members of the Committee may not comment. Is the Chairman saying that only the Minister is in a privileged position to raise these issues and that we may not respond to them? That would not be very fair.

Chairman

The Minister was responding to Deputy Shatter. I have ruled that members must confine their remarks to the amendments.

Mr. Enright

The Chairman is like the French referee in the game between Australia and Munster; he is caught between both sides.

Mr. Taylor

We are dealing, then, with the question of making Taxing Masters independent to decide issues which, in the words of Deputy Shatter's amendment, shall be binding on the solicitor and client. That is a very sensible and good proposal. Taxing Masters are the supreme experts in the field of solicitors' costs in that they deal with nothing but solicitors' costs every day. Who could be more specialist in that area? They are more specialist than any High Court or Supreme Court judge could be on appeal. Why leave open the prospect of an appeal on an issue decided by the ultimate expert on the subject to somebody who is not? It is fair enough that, so far as amounts of costs and taxation assessed by a Taxing Master are concerned, that decision should be final. If an issue arose as to the basis of taxation or some legal point connected with it it might well be open to an appeal by case stated or whatever, as applies to references or from arbitrators.

The Minister should tell us if he intends to smarten up and open up the taxation procedure by introducing a different basis for the charges, moving away from percentages as we are getting away from percentages where costs are concerned, and having a fixed rate of charge on a bill, irrespective of whether it is big or small. That would make this more manageable and would go a long way towards covering the salaries of the Taxing Masters. That should not be a factor, anymore than it should be a factor in providing for the salaries of judges. This is a service that a Government and a Department of Justice are expected to provide. The question of the cost of providing it should not be a relevant factor if the service is required. As Deputy Shatter rightly said, there are arrears involved and people who want to have their costs taxed are held up. I agree that the Law Society should have an arbitrator's role but that is provided that we, as legislators, are satisfied that the arbitration and negotiation will take place. It should be conducted by some person who knows what he is talking about, who has a fair measure of experience in the area of costs, and knows what is fair and reasonable for the client and the solicitor.

I agree the Minister may be taking on a bit much in assuring the Law Society that everything will be all right. I am sure they mean well in this regard, but it is our responsibility as legislators to probe that a little bit further and ask what is meant by "all right"; how will this be done; who will make the decisions and what will their qualifications be? When we have the answers to those questions, we can examine what powers should be delegated to the Law Society.

Mr. Dennehy

Deputy Shatter said we are here as legislators but I heard a number of attacks on one member who is a legislator. It appears to me that the only reason that member — that is Deputy Allen — was attacked consistently was because he was critical of the profession. It appears members are wearing their other professional hat at times, unfortunately. Two of Deputy Allen's colleagues have been particularly vicious in attacking him today. Only two members are not involved in the legal profession, Deputy Allen and myself.

I had taken for granted the bona fidesof the Law Society but I am going to be more questioning about it in the debate on this Bill. Listening to Deputies Taylor and Shatter, it seems that I must not take as much for granted as I did. Up to now I took it that they had a certain status. I hear they are working night and day at a fierce rate challenging bills, and I question if there are any uncontested legal fees if they are that busy.

I read earlier that an effort will be made to siphon off some cases that, perhaps, some can go to arbitration. That seems to be a very logical road to go down. I am told that some people do not have the expertise. Obviously, the Law Society does not have the expertise and notwithstanding that we are told the appeal can be made to it. As a layman I do not think the society should have anything to do with it but I give them full credit, as I would to any professional group, for managing their affairs. It has the support of its members although that was questioned this morning by two members of the profession.

I support this section. If there is a big bottlekneck let us get rid of it. The appointment of an extra person is not going to sort out that problem if it is as difficult as we were told. I support the thrust of specific amendments put forward by the Minister. He is allowing some freedom.

Chairman

Deputy Allen is next as the plot thickens.

Mr. Allen

This procedure has the effect of adding another complex expensive barrier for the consumer which he has to surmount in getting justice.

(Interruptions.)

Mr. Allen

The whole question of taxing presents a very expensive terrifying barrier for people who want to get justice in relation to the client/solicitor arrangement. I ask the Minister to come back with a more detailed procedure that would deal with this problem at Law Society level. I have reservations about the commitment of the Law Society in giving justice to the public but the Minister's proposals that there would be lay representation should be extended to disputes about solicitor/client bills and dealing with complaints regarding the solicitor/client aspect.

I apologise if my knowledge of the procedures of the Law Society and the law is not up to the standard of my colleagues and that my language may be foreign to that used in the courts. I am dealing with problems people have had for many years. I am determined that this Bill will deal with the rights of the consumer rather than the rights and privileges of the profession. I ask the Minister to come back with proposals on this. This is a big problem that has not been dealt with up to now.

Recently I had to bring a Cork person back from London to get her rights from a firm of solicitors in Cork and to threaten the solicitor to give her the money she was entitled to. The Law Society stood on the sidelines. Last week, when a complaint was lodged the solicitor rushed out and got the client to sign an undertaking that she was happy. The Law Society stood over that procedure saying the matter is resolved and they have no further involvement in it. I have no confidence in the present procedures carried out by the Law Society but if there was lay representation at the procedures, I have confidence that justice would be done.

Mr. D. Ahern

I was loathe to contribute but I must compliment Deputy Dennehy on his contribution. It was a classic example of the importance of not having legal people on a committee like this because what he said made sense. We all know that the proportion of cases that go before a Taxing Master is very small mainly because many solicitors would not bother allowing it to go to a Taxing Master. They know there is huge expense and delay involved and at the end of the day they would settle for a lot less. What we are talking about here is a small proportion of rogue cases and the solicitor genuinely feels they are entitled to pay this bill. I am bemused at the fact the Law Society are being allowed into to operate the existing procedure. If this were Utopia there would be many Taxing Masters to deal with these bills. What is being proposed is a good compromise.

Mr. Enright

I recently raised in the Dáil the lack of district justices. The Minister told me he was pleased to announce to the House that two district justices had been appointed that day. I compliment him on that. Perhaps if he had been given more notice that we required more Taxing Masters he would have good news for us.

Because of the level of tax on taxing a bill of costs, Taxing Masters pay their way. The same applies in the Land Registry. The service has been let run down and it is very hard to get things done but it is paying its way. I want to clarify a point for Deputy Dennehy. There is a system which has its faults but, the longer a case drags on, the worse it operates. I would prefer to see the level of taxation on bills of costs reduced. It prevents many people from going for taxation.

I qualified as a solicitor 27 years ago and I never went to the Taxing Masters in my life; the majority of solicitors do not. Most cases that go for taxation are complicated. The procedure is that the cost drawers from each side meet to discuss the matter and, in many instances, it is resolved amicably.

In regard to the amendments, Deputy Shatter is fair and he is making the point that he wants to clarify which section of the Law Society will be involved. It is of interest to everybody if the Law Society want to appoint a sub-committee of cost drawers and have the issue resolved in that way. The director will appoint cost drawers.

In Dáil Éireann I represent the consumer and I will not enter into any disputes on a personal basis. I accept everybody's good will in this area but we should confine our arguments to what is being said. I am trying to do a job for people who elected me and I am not representing any particular body. If there has to be taxation so be it, and let the Minister see how the level of taxation can be reduced. It is essential that we appoint more Taxing Masters.

Mr. Dennehy

On the questions of costs and the Taxing Masters, we have heard conflicting views. The chairman said they are paying their way and are not a charge on the State. The problem is they are paying their way because they are imposing an excessive tax charge. Nobody is satisfied; the people paying the bill are not satisfied because there is too much tax involved. It is enough to say they are paying their way. We have heard several members say they are being charged too much. It is not good enough to say they are paying their way because they are charging to much. There has to be protection.

Mr. Enright

May I clarify this? The Taxing Masters are appointed by the Government. They are independent and nobody can approach them. They make a decision as a judicial body. In the District Court there are fixed scales of fees and one cannot go above or below them. In the Circuit Court it is the county registrar and in the High Court it is the Taxing Master who decides.

Mr. Allen

As far as I am concerned the taxing procedure is a deterrent to the client who wishes to get justice in that when the overall expense and the complexity of the taxing procedure is set out to the client, the client backs off. That has been my experience. There should be an intermediate stage where the client would be encouraged to put his case in a way that will not expose him or her unduly financially.

Chairman

I am very anxious that we complete section 9 before lunch.

Mr. Enright

I hope we will not be put under a time constraint in teasing out what Deputy Allen said. In the case of the new body that is being set up, with lay representation, would he be happy if there was some way of having them investigated with cost drawers? The Law Society do it with lay representation and make a decision. After that decision, if they are unhappy, they go back again. We can raise this issue on Report Stage.

Mr. Shatter

I am not sure if we will finish this before 1 o'clock because it is an important section. It would be total insanity to suggest that lay people can make this adjudication. Can you consider an accountant or an engineer or an architect taking the view that a lay person who has no expertise or involvement in an area could look at the work they have done and assess what the fee should be? There is an Alice in Wonderland approach to this which is bizarre. It is also based on the supposition that every client who complains is always right and every solicitor is always in the wrong. Sometimes the clients are right and sometimes they are wrong and sometimes the solicitors are right and sometimes they are wrong. We should not be making supposition as to who is always in the right or who is always in the wrong.

The Minister's amendment, No. 37, envisages the client making application to the Taxing Master after making a complaint to the Law Society. The Minister has pointed out that as the law stands solicitors cannot invoke the Taxing Master procedure. Will the Minister consider on Report Stage amending this Bill to allow the solicitor invoke the Taxing Master procedure? I want to draw the Minister's attention to what he said, that the solicitor can sue a client on foot of a bill one month after the bill has been furnished to the client and the courts when a solicitor sues a client can refer the matter to the Taxing Master. What happens is that two months after the solicitor submits the bill to the client, the client complains to the Law Society and the solicitor issues proceedings. How is that going to work out? What is going to happen?

Would it not make a great deal of sense to allow either party to refer the matter to the Taxing Master? Otherwise, a client with a genuine grievance — the decent solicitor will not behave that way — dealing with a solicitor who is not behaving properly may find himself at the receiving end of court proceedings taken by the solicitor after complaining to the Law Society. With all due respect to Deputy Dennehy, what he said might be common sense, but it does not resolve the problem. There is no point in leaving the section as it is on the basis that this all looks like common sense because when you come up to the real problems operating the section will not work.

This is the first Bill we have had since 1954 dealing with solicitors. We have got to get it right and we have a responsibility to do so for two groups of people, the consumer and those who work within the legal profession. We have a dual responsibility and in that context we must make sure that whatever is in the Bill does not look superficially to have common sense but in practice, because it does not have the substance required, fails to work.

Mr. O'Dea

Many points were raised. In relation to the cost of the Taxing Master, Deputy Taylor said he wanted to get away from percentages but I regret I will have to bring him back to them because under his and Deputy Shatter's Government, the charge was 10 per cent. That was the tax on bills of costs. By order of the next Minister for Justice, Deputy Ray Burke, in December 1989 it was halved to 5 per cent. We have gone a good deal of the way. I would prefer if the taxing procedure and access to the courts were cheaper. I would prefer if many things were cheaper but, unfortunately, the question of taxation and raising of revenue is not a matter for me, it is a matter for the Minister for Finance.

Deputy Allen made a very good point. With regard to my experience, I met somebody last week who was very unhappy with the costs they were charged. In my opinion they were grossly excessive. When I began to explain what they could do by way of going to the Taxing Master they remarked that this meant more solicitors and going back before a court again. They added, "leave it and forget about it". That is what turns people off. The cost is a problem but the idea of going back to a solicitor and to a tribunal for somebody who feels they have been hard done by, by the legal profession is the real turn off. In the case of any person I have advised about the Taxing Master procedure the last thing they raised was how much taxation they were going to pay. Their concern was what will the State charge and what percentage? We are making an effort — as Deputy Allen rightly said we should — to allow those people a different procedure.

Deputy Shatter has rightly raised a number of technical points and I agree with him about what sort of procedure there will be. We have discussed this with the Law Society and we have been assured that they will be able to deal adequately with the matter. We are trying to help the consumer of legal services by putting another procedure in place. I am introducing an amendment that will marry that procedure so far as we can with the present taxation procedure. The procedure of a complaint to the Law Society, and the Law Society considering a complaint, will only be in those cases where the charges being made are grossly excessive, where there is an obvious overcharging case. I imagine that if a difficult case came to the Law Society where they may or may not be overcharging, the Law Society would refer the client to his right to go to the Taxing Master. This is only for cases which are grossly in excess of what the charges should be.

This section comes into operation three months after the Bill is passed. In the meantime I give the committee an assurance that I will have discussions with the Law Society about the sort of mechanism it is intended to put in place to deal with these matters. I intend to do that soon and I may be able to come back with information on Report Stage in the Dáil.

In my earlier reply I said Deputy Shatter had assumed that the solicitor can invoke the taxation procedure. He is saying now that he did not assume that but he is proposing an amendment to allow that to happen. I will give that consideration in view of what he said. The difficulty is — the Deputy brought my attention to another difficulty in his final contribution which is similar — that we are trying to put an alternative system in place for clients who are unhappy with the taxation procedure. I am loath to say a simpler or easier system but that is what we are trying to do. If we accept Deputy Shatter's amendment then any solicitor of the 3,600 practising solicitors can oust the new procedure by the simple expedient of referring the matter for taxation. Under my amendment the client has the right, even after he makes the complaint to the Law Society, to refer the matter for taxation and there are certain procedures laid out. My interpretation of the section is that if a client goes to the Law Society on the basis of excessive overcharging and is not satisfied with the outcome, that client can then go to the Taxing Master.

Mr. Shatter

You can go through the same procedure twice.

Mr. O'Dea

The client can.

Mr. Shatter

That sounds very strange. For somebody who is trying to provide a simpler system, you are now creating two different layers. There is a problem in this.

Mr. O'Dea

I am not trying to create a simpler system as such; I am trying to create a simpler mechanism for the client.

Mr. Shatter

But if the client is dissatisfied with the Law Society decision, the client can start the procedure all over again with the Taxing Master; if the solicitor is dissatisfied he cannot. There would be constitutional problems with that.

Mr. O'Dea

This Bill has been cleared by the Attorney General's Office who is our adviser on constitutional law matters.

Mr. Taylor

The Attorney General?

Mr. O'Dea

This Attorney General, no more than Deputy Taylor's Attorney General is not infallible.

Are we to refuse to accept the advice of the Attorney General? What is the function of the Attorney General? The Attorney General has advised us that this matter is constitutionally all right and we proceed under normal procedure about which Deputy Taylor knows.

I will consider what Deputy Shatter said from the point of view of equity. I am concerned that we do not include something that can give every solicitor the right to render nugatory the new procedure we are trying to implement. My answer to Deputy Shatter's last question is that if the solicitor decides to sue after the month and the person makes a complaint to the Law Society, the Law Society would be bound to say, that this matter is before the courts. That is my interpretation but I may be wrong.

Mr. Shatter

It would be easy to clarify.

Mr. O'Dea

It would not be as easy from the solicitor's point of view to render ineffective the new procedure by taking court action as it would be referring the matter to taxation. That is a matter which I will have clarified between now and Report Stage.

Chairman

Is Deputy Shatter pressing amendment No. 35?

Mr. Shatter

On the basis of what the Minister is saying — that he will look again at the possibility of a solicitor having the right to go to the Taxing Master and on the basis of the Minister's own amendment No. 37 — I will not press my amendments.

Amendment, by leave, withdrawn.

Mr. O'Dea

I move amendment No. 36:

In page 9, subsection (2), line 4, to delete "an account" and substitute "a bill of costs".

Amendment agreed to.

Mr. O'Dea

I move amendment No. 37:

In page 9, between lines 5 and 6, to insert the following subsection:

"(3) Where the Society have received a complaint under subsection (1) of this section and the client concerned (before or after the receipt of the complaint) has duly requested the solicitor concerned to submit his bill of costs to a Taxing Master of the High Court for taxation on a solicitor and own client basis, the Society shall not make a direction under subsection (1) of this section unless, after due notice to that solicitor, they are of the opinion that the solicitor or his agent in that regard is unreasonably delaying in submitting such bill of costs to a Taxing Master of the High Court for such taxation.".

Amendment agreed to.

Section 9, as amended, agreed to.

Sitting suspended at 1.20 p.m. and resumed at 3 p.m.