Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

I move amendment No. 177:

In page 69, between lines 3 and 4, to insert the following:

“PART 9
Legal Costs
Chapter 1
Interpretation

Interpretation (Part 9)
80.In this Part-
“application” means an application for adjudication of legal costs under section 94;
“bill of costs” means a document setting out the amount of legal costs chargeable to a client in respect of legal services provided to him or her, prepared by a legal practitioner in accordance with section 92or, where applicable, section 94(1);
“Chief Legal Costs Adjudicator” means the Chief Legal Costs Adjudicator appointed under section 81(2);
“commercially sensitive information” means—

(a) financial, commercial, scientific, technical or other information the disclosure of which could reasonably be expected to result in a material financial loss or gain to the person to whom it relates, or could prejudice the competitive position of that person in the conduct of his or her business or otherwise in his or her occupation, or
(b) information the disclosure of which could prejudice the conduct or outcome of contractual or other negotiations of the person to whom it relates;

“contentious business” means legal services provided by a legal practitioner for the purposes of, or in contemplation of, proceedings before a court, tribunal or other body, the Personal Injuries Assessment Board or an arbitrator appointed under the Arbitration Act 2010 or in connection with an arbitration;
“disbursement” means a fee or cost (whether or not fixed by or under a statute or rules of court) payable to a third party that is necessarily and reasonably incurred by a legal practitioner for the purposes of the provision by that legal practitioner of legal services to a client, and includes fees or costs payable by the legal practitioner to a barrister or an expert witness, but does not include general costs incurred in the course of the legal practitioner’s practice as a legal practitioner;
“enactment” means—

(a) an Act of the Oireachtas,
(b) a statute that was in force in Saorstát Éireann immediately before the date of the coming into operation of the Constitution and that continues in force by virtue of Article 50 of the Constitution, or
(c) an instrument made under—

(i) an Act of the Oireachtas, or
(ii) a statute referred to in paragraph (b);

“Legal Costs Adjudicator” means a person appointed under section 81(2)to be a Legal Costs Adjudicator;
“legal costs” means fees, charges, disbursements and other costs incurred or charged in relation to contentious or non-contentious business, and includes—

(a) the costs of or arising out of any cause or matter in any court,
(b) any costs which are the subject of an order made by an arbitral tribunal in accordance with section 21(4) of the Arbitration Act 2010 for the adjudication of the costs of the arbitration by a Legal Costs Adjudicator,
(c) the costs of a receiver appointed in any cause or matter, on the application of the receiver or of any party to the cause or matter,
(d) costs that arise from an inquiry, investigation or other proceeding conducted under an enactment, and
(e) the cost of registering judgments as mortgages, of obtaining grants of probate and of letters of administration, of satisfying judgments, and any other costs usually adjudicated ex parte;

“non-contentious business” means legal services that do not relate to contentious business;
“Office” means the Office of the Legal Costs Adjudicators referred to in section 81;
“register of determinations” means the register of determinations referred to in section 82.”.

Part 9 of the Bill has been extensively reworked, primarily to ensure operability and clarity and to incorporate a number of practical suggestions made to me by persons with expertise in the legal costs arena after publication of the Bill.

To return to a point made by Deputy Mac Lochlainn earlier, to which I did not respond, he stated there is nothing in the Bill dealing with legal costs. An entire part of the Bill deals with legal costs and is designed to ensure they are kept at an appropriate and reasonable level based on the work done, and that there is independent oversight and a very clear structure in place to facilitate clients of the legal profession to have adjudications on the legal costs bills they receive which they may think are excessive, or where one side in court proceedings is ordered to pay the other side's costs. The adjudication process will determine the appropriate costs to be paid.
To make it easier for the committee to deal with this part, any section proposed for amendment is presented in its fully revised state rather than as a series of individual amendments. I will set out what each section in Part 9 provides and what changes, if any, are proposed.
Amendment No. 177 refers to section 80. This is a standard interpretation section to describe and delimit key terminology in the Part. It has been slightly reworked from the original for the sake of clarity. During the long consultation analysis period following publication of the Bill, new definitions, including those of disbursements and contentious business, were found to be necessary. These have been inserted into the text we have today.
Section 81 is a technical provision to enable the redesignation of the Taxing Master's office as the office of the legal costs adjudicators. This new office will have an increased capacity for making adjudications and will be headed by a chief legal costs adjudicator who will have certain core functions which I will outline as we go along.
Section 82 is a key section, representing as it does the twin policy imperatives of transparency and modernisation. The new chief legal costs adjudicator will be obliged to keep a publicly examinable register of determinations. This register will bring to light the decisions made by the legal costs adjudicators and the reason for these decisions. It is my belief and expectation this register will make a valuable contribution to competition in the legal services marketplace. As legal cost adjudications will be a quasi-judicial function in the Courts Service apparatus, it is appropriate that adjudications would be published and explained within reasonable limits so as not to breach confidentiality rules or overburden the office with bureaucracy.
Section 83 is new and provides clarity on the long-standing policy intention that while the new office of the legal costs adjudicator will replace the current Taxing Master's office, the status quo will continue with regard to county registrars and their existing and limited taxation functions. The only change regarding county registrars is that in maintaining their existing functions, they will be required to keep a register of their determinations and will in their own adjudications be guided by the principles relating to legal costs set out in Schedule 1.
Section 84 is a much improved upon section 83 of the Bill as published. This section provides that guidelines will be prepared by the chief legal costs adjudicator to the benefit of anyone making an application to the office setting out how the process works and what is required. I should point out the reference to the Minister for the Environment, Community and Local Government as one of the persons to be consulted on the guidelines comes about as result of Ireland's obligations under the Aarhus Convention which seeks to ensure access to justice on environmental matters is not prohibitively expensive.
Section 85 on the review of scales of fees is new. It came to my attention recently that appendix W to the Rules of the Superior Courts, which sets out certain scales of fees for specified legal services, is irregularly updated. I propose to provide that the Superior Court Rules committee, whenever it considers it appropriate to do so but at least every two years, would review and update appendix W in line with the new cost principles set out in Schedule 1 of the Bill.
Amendment No. 183 of the Bill provides for a new section 86 which, along with the unamended sections 85 and 86 from the original Bill, will help to modernise the operation of what is currently the Taxing Master's office. The new office of legal costs adjudicators will be required to be run in a more business-like and transparent fashion in the framework of a strategic plan, an annual business plan and an annual report to be laid before the Houses of the Oireachtas together with the annual report of the Courts Service. I have ensured since publication that the powers of the Minister to influence and approve strategic plans have been removed from the text of section 86. They are now purely a matter for the chief legal costs adjudicator and the chief executive officer of the Courts Service.
The final amendment in this group is amendment No. 184 which relates to section 88. It provides for the substitution of the Taxing Master's office with the office of the legal costs adjudicators, and makes provision for a chief legal costs adjudicator and his or her terms of appointment along with those of other legal costs adjudicators. The key amendment is the deletion of previous references to bankruptcy and arrangements with creditors as a disqualification from holding office as the legal costs adjudicator. It is possible I will, on Report Stage, also revise the length of term of appointment for a legal costs adjudicator, which may not be entirely satisfactory. It stands at a five year term which is non-renewable. Having reflected on this, I am concerned the term may be too short and that by making it non-renewable, substantial good practice and expertise could be lost to the office and to the important work undertaken, and that continuity has a particular and important role to play. I want to reflect on how we further enhance the office and on how we address this issue in circumstances in which I am concerned if someone is appointed to the office, it should not necessarily be, and it is not necessarily in the public interest that it would be, a lifetime appointment, but I am also concerned to ensure the office is entirely independent and there is no suggestion the Minister of the day, or a Minister who may be unhappy with an adjudication, could in any way interfere with the workings of the office or exercise some discretion with regard to whether, if the appointment was for a five year period or longer, somebody's appointment should be renewed. I am giving some consideration as to how best to deal with this matter pending Report Stage.