Dáil Éireann Debate, Tuesday - 20 June 2017
741. Deputy Pearse Doherty asked the Minister for Justice and Equality if a duty solicitor connected to the Abhaile scheme is entitled to speak in court on behalf of persons that they have never engaged; and if he will make a statement on the matter. [27065/17]
Amharc ar fhreagraThe ‘duty solicitor’ service is an innovative and important component of the Abhaile service and is arranged by the Legal Aid Board at repossession lists in County Registrars’ courts around the country. It is modelled on the Housing Possession Court Duty Scheme, which has been operating successfully in many parts of England and Wales as well as in Northern Ireland.
A key element of the Programme for Government was, as the Deputy will be aware, to put in place a national mortgage arrears resolution service and priority was given last year to getting the new national Mortgage Arrears Resolution Service (Abhaile) up and running. The objective is to help these homeowners to identify and put in place solutions to their mortgage arrears, with priority to helping them remain in their home wherever possible. A new national information campaign was launched in February 2017 to reach out to homeowners in mortgage arrears and further raise awareness of the Abhaile service.
Because of the general awareness that defendants in repossession cases were turning up for court appearances in very small numbers, and because those who did turn up, were often unrepresented and fearful and without knowledge of what might happen in Court, it was considered important that this duty solicitor service be put in place as part of the Abhaile initiative.
The Deputy will be aware, that normally a solicitor is required to ‘go on record’ as representing a person, before he or she must be heard by a Court on their behalf. A solicitor who is not ‘on record’ may, however, be heard at the Court’s discretion. The ‘duty solicitor’ service in Abhaile, like the Housing Possession Court Duty Scheme, avails of this discretion.
The experience to date is that the courts in Ireland have generally welcomed the Abhaile duty solicitor service, and will intervene to ensure that any borrower appearing in repossession proceedings against their home is aware of the free supports available to them under Abhaile.
The role of the duty solicitor is to provide advice and assistance in the Courthouse to a defendant who is already facing repossession proceedings. Normally, before seeing the duty solicitor, a borrower receiving support from Abhaile has already received expert financial advice and has seen a consultation solicitor. The duty solicitor will be provided with the consultation solicitor’s file, which reflects that existing analysis and advice.
Most repossession cases are heard and decided in Court before the County Registrar. A minority, where the borrower claims to have a valid legal defence to repossession, are transferred to the Circuit Court judge’s list. The duty solicitor service is provided for the repossession cases listed in Court before the County Registrar, as this is where most repossession cases are decided, and therefore, where borrowers most need assistance.
In these cases, the duty solicitor may, with the leave of the County Registrar, speak in Court on behalf of an Abhaile applicant (without coming on record). The duty solicitor must clearly indicate to the Court that the borrower has applied to Abhaile, inform the Court of the status of the application and may apply on the borrower’s behalf for such adjournment as the Court may deem appropriate to facilitate the borrower availing of the supports available under Abhaile.
The duty solicitor’s role includes explaining clearly to the borrower their legal position regarding the repossession proceedings and answering his or her questions, speaking on the borrower’s behalf before the County Registrar, seeking an adjournment and/or settlement of the proceedings, and explaining to the borrower what has taken place in the Court hearing. The duty solicitor may, in so far as practicable, check the borrower’s legal position, and provide supplementary advice to the borrower, in the light of any new information emerging in the course of the Court sitting.
The duty solicitor may also give more limited assistance to a person who has been served with a Civil Bill for possession of his or her home, who appears in person before the County Registrar in response to the Civil Bill and wishes to avail of Abhaile, but who has not yet applied, or has not yet received financial advice, or advice from a consultation solicitor. In such a situation the duty solicitor may, for example, seek an adjournment on the borrower’s behalf, explain to the borrower what has taken place in court, and ensure that the borrower is referred to prompt assistance under the Abhaile service.
There are some overall limits on a duty solicitor’s role, similar limits apply under the scheme already mentioned in England, Wales and Northern Ireland. The duty solicitor may not go on record as the solicitor for the borrower nor conduct litigation related to the matter before the court on the person’s behalf. If the proceedings are adjourned, the same duty solicitor may, or may not, be present on the adjourned date.
The duty solicitor will not be in a position to act in the event of the transfer of the case to the Circuit Court Judge’s list or for any appeal. In such a case civil legal aid and advice is available from the Legal Aid Board, pursuant to the Civil Legal Aid Act 1995, to persons who satisfy the financial eligibility criteria laid down in that Act and in the Civil Legal Aid Regulations 1996 to 2016. The person’s case must also satisfy the merits criteria laid down under that Act.
While the duty solicitor component is considered a key part of the Abhaile service intended to assist borrowers in this very difficult situation, the Deputy will appreciate that the Courts are constitutionally independent in their operation and the management of the business of the Court in any given case is a matter for the presiding judge, or in the case of proceedings in a County Registrar's list, the County Registrar.
