Tuesday, 28 June 1994
Dáil Éireann Debate
Minister of State at the Department of Justice (Mr. O'Dea): The effect of the amendment in the names of Deputies Gay Mitchell and Browne (Carlow-Kilkenny) is to postpone the coming into operation of the Bill for three months after the date of its passing. Under section 1, all the provisions of the Bill, save section 68 and the various sections dealing with the new disciplinary tribunal come into effect immediately on the date of its passing. The matter of commencement was dealt with in some detail on Committee Stage. The main problem with the amendment in the names of Deputies Mitchell and Browne is that it delays all the provisions of the Bill for three months and I do not believe that is necessary. The reason that the provisions referred to in subsection (4) will not come into operation until such day as may be fixed by order of the Minister is simply to allow the new disciplinary tribunal to be established. The new disciplinary tribunal is a new body to replace the existing disciplinary committee. It will comprise solicitors and for the first time lay persons. My intention is to establish the disciplinary tribunal as soon as possible and I am aware that the Law Society, too, is most anxious that it be established with the least possible delay. I indicated on Committee Stage that I hoped to have this tribunal established  within three months but I do not wish to be tied to a strict time limit in this regard. There is no good reason why all the other provisions of the Bill, bar section 68, should not come into operation immediately on the passage of the Bill. The reason for putting a three month time limit on section 68 is because it places new obligations on solicitors to inform clients about charges and so on and I want to give the Law Society an opportunity to inform solicitors of their obligations in this regard and to allow them a limited period to get acclimatised to the changes.
Apart from those provisions, there is no reason the rest of the Bill should not come into effect immediately on its passage as it has been awaited for a very long time. I understand the reasoning behind the amendments of Deputy Mitchell and Deputy Browne but I cannot accept them because they have the effect — unintended perhaps — of delaying much needed sections of the Bill for three months.
An Leas-Cheann Comhairle: Amendment No. 9 arises out of committee proceedings. No. 11 is related and No. 10 is consequential on 11. The suggestion is that amendments Nos. 9, 10 and 11 be taken together.
‘(10) A Committee to whom the Council has delegated the exercise of the functions of the Council under subsection (1) of this section may, with the prior approval of the Council, delegate any of such functions to a designated senior officer or senior officers for the time being of the Society, subject to such restriction or restrictions (if any) and for such period or periods as that Committee or the Council may specify, and that Committee, or the Council, may revoke such delegation with or without notice.’.”.
Mr. O'Dea: I take it, as we are discussing amendments Nos. 10 and 11 with No. 9 that I can refer to my amendment No. 10, which meets the substance of what Deputy Mitchell is proposing in amendment No. 9?
Mr. O'Dea: The question of delegating functions to a committee of the Council of the Law Society to offices of the society was discussed at some length on Committe Stage. I was asked to accept an amendment to permit such delegation. I undertook to discuss the matter with the Law Society and I have since had the opportunity to do so. I am satisfied that the amendment I now propose will facilitate the administration of the business of the society and allow it to deal with the increased business and correspondence likely to arise under the numerous provisions of the Bill when it comes into  effect. The amendment will enable a committee of the council to delegate functions to a specific senior officer of the society subject to the prior approval of the council which will also be empowered to revoke any such delegation of authority. I am satisfied that the provision will allow for the speedier transaction of business and enable the society to deal with complaints from the public more effectively and speedily. Acceptance of this amendment will require a drafting change to subsection (2) of section 7 which I also propose. I assume Deputies will have no quibble with that amendment as, in substance, it is the same as Deputy Mitchell's amendment but drafted differently. It meets the case he made so effectively on Committee Stage.
“(10) Where the Council has delegated functions to a committee under subsection (1) of this section, that committee may, subject to the prior approval of the Council, delegate any of such functions to a designated senior officer or senior officers for the time being appointed by the Society for that purpose, with or without restrictions, for such period as the committee may specify with the approval of the Council, and the committee or the Council may revoke such delegation with or without notice.”.
There was discussion on Committee Stage on the question of the time limit for making complaints under the provisions of this section. Views ranged from having a time limit of three, five or seven years to abolishing the limit. The view of the majority of Deputies who contributed to the debate was that there should be some time limit although it did not prove possible to reach consensus on how long it should be. I have considered the matter in the light of the debate on Committee Stage and on balance five years is a reasonable time limit for making complaints under this section. There must be some certainty in this area. We are talking about a business relationship between a solicitor and his or her client.
If a client is unhappy or dissatisfied with the bill of costs, one would expect that he or she would raise the matter quickly with the solicitor. From the solicitor's point of view, he or she is unlikely to allow a long period of time to elapse if a bill of costs has not been paid. In fact, if the time limit that has been allowed to elapse is too long, the solicitor could find himself or herself statute barred in  relation to legally pursuing the client. The more likely position is that the solicitor will pursue his client for the amount of the bill. Five years is a reasonable period and in fact it is arguable that in the majority of cases a much shorter period is likely to prove adequate. However, I am trying to ensure justice for the client and the solicitor and I do not want to rule out a legitimate complaint about a bill of costs because the Bill provided for too short a period.
Time limits apply in respect of all causes of action. That is desirable so that there is certainty in the law and in business relationships. In relation to the amendment in the names of Deputies Mitchell and Browne, I am not inclined to accept a time limit of seven years, it is too long. Deputy Gilmore's amendment, which has not been moved, will allow a client to complain about a bill of costs regardless of how long it was issued. There is a need for certainty and fairness here. The provision in the section allows for a retrospective period of five years which, in my amendment, refers to when a complaint was made. It is fair to all concerned, the client, the solicitor and the Law Society, which will be required to investigate a complaint of overcharging.
The technical change I made in the amendment relates to a problem we discussed which was brought to my attention on Committee Stage. If somebody had made a complaint within a period of five years before the section came into operation, they could require that to be investigated 30 years or 100 years into the future. That had to be changed to ensure that one can only go back five years in relation to any complaint. As I said, it was not possible to reach consensus on a period of three, five or seven years but everybody, with the exception of one person, felt there should be some time limit to bring certainty to the area. Deputy Browne and Deputy Mitchell wanted a time limit of seven years. The period in relation to a personal injuries action is only three years and, therefore, the five year period originally proposed is fair and reasonable.
An Leas-Cheann Comhairle: Amendment No. 17 is in the name of the Minister. Amendments Nos. 26, 34, 36, 38, 42, 43, 44, 66, 67, 68, 69, 89, 90 and 94 are related. Nos. 18 and 19 are alternatives to No. 17. No. 35 is an alternative to No. 34 and No. 37 is an alternative to No. 36. The suggestion, therefore, is that 17, 18, 19, 26, 34 to 38 inclusive, 42, 43, 44, 66 to 69 inclusive, 89, 90 and 94 be taken together.
I undertook on Committee Stage to consider further the level of fines on summary conviction in respect of offences under the Bill. A number of amendments were proposed increasing the fines under this and other sections. Where a summary offence is created the maximum fine provided for is £1,000. I have been advised that this can be safely increased to £1,500 and I, therefore, propose to amend the relevant provisions of the Bill by increasing the maximum fine from £1,000 to £1,500. This represents a significant adjustment and increases the maximum fine by 50 per cent.
The fine in section 11 is backed up by the potentially heavier sanctions which may be imposed on a solicitor for misconduct which, pursuant to section 24 of the Bill, includes any contravention of the solicitors' Acts or any order or regulation made thereunder. For example, solicitors who fail to comply with any provision of the solicitors Acts may have practising certificates suspended under section 58. In addition, they could be brought before the disciplinary tribunal and ultimately struck off the roll of solicitors.
The Society also has the power under section 61 to refuse to issue a practising certificate to a solicitor who fails to comply with sections 8, 9, or 10. Taken together these provisions represent a strong deterrent and I doubt if any solicitor would wish to face having a criminal record and his or her career suspended or terminated.
As regards section 18, Deputies Mitchell  and Browne propose to create an indictable offence in a case where a person acts as an agent of a solicitor to render nugatory an order of the High Court made under that section. This raises the question of proportionality and consistency throughout the Bill. I do not believe that the offence in question should be indictable. I have been advised — I undertook on Committee Stage to consider this — that a person who interferes with a court order under this section would leave himself or herself open to being cited for contempt of court. That would be a matter for the High Court which has unlimited powers in relation to sanctions in cases of contempt.
The question of proportionality also arises in the case of the amendment proposed by Deputies Mitchell and Browne to create an indictable offence under section 21. This section deals with a solicitor who has been struck off or suspended and seeks employment in connection with the provision of legal services without informing his employer that he or she is unqualified by reason of having been struck off or suspended or who engages in legal work, for example, as a clerk in a solicitor's office without first obtaining the permission of the Incorporated Law Society. We should look at this provision in the light of other offences in the Bill.
Section 63 increases the penalties where an unqualified person acts as a solicitor. That is a most serious matter and under that section a person convicted of an offence on indictment will be liable to a term of imprisonment not exceeding two years or a fine of £10,000, or both. I refer Deputies to section 77 of the Bill which provides for a fine of £10,000 on conviction and indictment where an unqualified person carries out any of the reserved functions provided for in section 58 of the principal Act.
Section 21 offences are not as serious and a summary offence is appropriate in these cases. I am confident that I have the correct balance in the Bill with respect to these various offences. I do not believe it is necessary to provide for an indictable offence in sections 18 and 21 and for these reasons I urge my amendment on the  House and ask that the alternative amendments be withdrawn.
Ms O'Donnell: The Minister is correct when he says there is need for balance in the fines to be imposed. Will he clarify how he was able to increase the fines as they are for summary offences? On Committee Stage there was much debate about the stringency of penalties. There are other sections dealing with misconduct and internal sanctions other than fines and penalties which are adequate and can be imposed. The implications are enormous for a solicitor found guilty of misconduct. To go through that process is penalty enough for many solicitors. It is worth putting on record that there is not a host of corrupt solicitors but many incompetent solicitors. Sometimes incompetence leads to negligence. In an effort to hide negligence solicitors can fall foul of the law and be guilty of serious misconduct. This was clearly identified in several cases in the recent past.
We have achieved the correct balance. There was an increase in the fines for summary offences and that is welcome. The procedures we have put in place in the legislation were needed in the interests of the public. For the first time this Bill tips the solicitor-client relationship in favour of the client. That is the purpose of the Bill. We must maintain a balance and there must be a presumption that solicitors are acting in the best interests of their clients. The majority of them are honest people doing a good day's work. I welcome the increase in the fines to £1,500 where applicable.
Mr. O'Dea: The Deputy will recall that concern was expressed about the level of fines on Committee Stage. It was felt we might have to confine it to a maximum of £1,000 because it is a summary offence. The Attorney General carried out a review of the position and has advised me that it can be safely increased from £1,000 to £1,500.
Mr. O'Dea: The effect of the amendment would be to require the society to adjourn the investigation of a complaint under sections 8 or 9 when the substance of the complaint is likely to be determined by a court in separate proceedings. In the majority of such cases the only reasonable course for the society to take would be to suspend investigation of complaints received under sections 8 or 9, depending on the outcome of the court proceedings. There is a good argument for allowing the society to proceed in certain circumstances notwithstanding the fact that the substance of such complaint may come before the courts. For example, where proceedings are likely to be protracted, suspension of the society's investigation may well cut off a complainant's access to redress under sections 8 and 9. I stressed on Committee Stage that would negate the client orientated thrust of these provisions. Basically what Deputies Browne and Mitchell seek to achieve will apply in 99.9 per cent of cases. There may be the odd case where proceedings will be protracted and it might be in the interests of the client and of justice that the matter proceed. From that point of view I would prefer to leave the Bill as it is.
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