Alan Shatter (Dublin South, Fine Gael)
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I move amendment No. 91:

In page 45, after line 48, but in Part 4, to insert the following new section:

PART 5

INFORMAL RESOLUTION OF COMPLAINTS RELATING TO INADEQUATE LEGAL SERVICES AND CHARGING OF EXCESSIVE FEES
45. - (1) For the purposes of this Part a legal practitioner shall be considered as having provided inadequate legal services where by act or omission the legal services actually provided by the legal practitioner were not of a standard that it is reasonable to expect of a legal practitioner, having regard to whether the legal practitioner concerned is a solicitor or a barrister.
(2) For the purposes of this Part a reference to an amount of costs sought by a legal practitioner in respect of legal services means an amount of costs specified in a bill of costs issued by the legal practitioner concerned.”.

We are now discussing an important series of amendments. Amendment No. 91 creates a new Part 5 to deal with the informal resolution of complaints relating to inadequate legal services and charging of excessive fees, but not grossly excessive ones. The Law Society, the lay members of the complaints committee of the Law Society and other commentators have pointed out the need to provide a framework for dealing with this type of complaint, which in essence would not amount to misconduct. The published Bill was silent on how the authority would deal with the substantial number of complaints which tend not to amount to misconduct. The amended Bill will provide a detailed and formal resolution process for complaints relating to inadequate legal services and the charging of excessive fees. The charging of grossly excessive fees will now come within the definition of misconduct under a separate provision.
Under this Part, section 47, a client of a legal practitioner may make a complaint where the client considers that (a) the legal services provided to him or her are or were of inadequate standard; or (b) the bill of costs issued by the legal practitioner was excessive. The new section 45 will provide that a legal practitioner will be considered to have provided inadequate legal services where, by act or omission, the legal services provided were not of a standard that is reasonable to expect from a legal practitioner as a solicitor or a barrister.
Government amendment No. 92, which introduces new section 46, deals with admissibility of complaints and mirrors provisions which were previously contained in the Bill as published. A complaint under this Part would not be considered by the authority if in the opinion of the authority it is deemed to be (a) frivolous or vexatious; or (b) is without substance or foundation, or does not satisfy the other criteria set out in the section. Where the authority determines that it will not consider a complaint, the authority, where appropriate, will have to notify the complainant in writing to set out the reasons. It will also have to notify the legal practitioner, if appropriate.
Amendment No. 93, new section 47, provides that a client of a legal practitioner may now make a complaint where the client considers that (a) the legal services provided to him or her are or were of inadequate standard; or (b) the bill of costs issued by the legal practitioner is excessive.
Amendment No. 94, new section 48, provides that the authority will carry out a preliminary review with regard to a complaint of inadequate legal services or excessive fees. The preliminary review allows the authority to determine whether the complaint should be dealt with under these structures for less serious complaints or should be dealt with under the formal misconduct provisions. In making that assessment, the authority shall have regard to the extent that the standard of the legal services provided to the client fell short of the standard reasonably expected from a legal practitioner in the provision of those services. Section 48(2) provides that where having completed the preliminary review process, the authority considers the complaints to be admissible and appropriate, it will notify the legal practitioner concerned to set out the alleged complaint and request him or her to respond within the time period specified in the notification. Section 48(3) provides that the authority, following receipt of the reply, may admit the complaint and enter into further consideration of the complaint under this part; determine that the complaint is unfounded; or request further information regarding the matter of the complaint. If the authority, having concluded the preliminary review and having considered any further response it has received, is of the opinion that the complaint, if it were substantiated, could constitute misconduct, it is open to it to decide the complaint should be dealt with under the more formal misconduct provisions and it will so inform the complainant. That is under section 48(4).
Under amendment No. 95, the authority can facilitate the resolution of complaints relating to inadequate services in new section 49. If the authority is of the opinion that the complaint is capable of resolution, it may invite the client and the legal practitioner concerned to make efforts to resolve it. Under section 49(2), the authority may itself facilitate the resolution of the matters which are the subject of the complaint in an informal manner by (a) offering its assistance to resolve the matter; or (b) by identifying other persons to the legal practitioner and the client who are willing to assist in resolving the matter. This facilitation of resolution may include the referral of the dispute to mediation or another appropriate form of legal resolution. Having allowed the client and the legal practitioner a reasonable period of time to resolve the matter, if the authority considers that an agreement or resolution between the parties is unlikely it may give notice in writing to the client and legal practitioner that it proposes to conclude the dispute resolution process. The authority cannot conclude the dispute resolution process earlier than 30 days after the giving of notice under section 49(4) and on concluding the dispute resolution process, it is obliged to invite the client and the legal practitioner to furnish it with a statement under section 49(5). Under section 49(6), the authority would then consider the statements and, where it considers that the legal services provided by the practitioner have fallen short of the standard reasonably expected from a legal practitioner, it may direct the legal practitioner to do one or more of the following: secure rectification at the legal practitioner's own expense or at the expense of his or her firm of any error, omission or other deficiency arising in connection with the legal services concerned; take, at his or her own expense or at the expense of his or her firm, such other action as the authority may specify; transfer any documents relating to the subject matter of the complaint to another legal practitioner or firm nominated by the client, subject to such terms and conditions as the authority may consider appropriate, having regard to the existence of any right to possession or retention of any of the documents concerned vested in the legal practitioner; or pay to the client a sum not exceeding €3,000 as compensation for any financial or other loss suffered by the client in consequence of the legal services provided by the legal practitioner having fallen short of the standard reasonably expected of a legal practitioner in the provision of those services.
Under amendment No. 96, new section 50, it will be possible for the client or the practitioner concerned to seek a review of the authority's directions or its failure to make a direction. This will be done by a review committee of three persons, two of whom will be lay persons and the third will be a legal practitioner. An application for the review of the authority's direction must be made in writing not more than 30 days after the authority has notified the parties to the complaint of its decision and furnish a statement as to why the decision was either incorrect or unjust. The review committee will be able to confirm the decision of the authority, make a finding that the complaint is not well founded or issue one or more of the directions to the practitioner which the authority is authorised to issue under section 49(6).

They are the different directives I listed a moment ago.

Government amendment No. 97 creates a distinct new section 51, under which the authority will be enabled to facilitate resolution of those complaints relating to excessive costs where the main substance of the complaint is that the amount or any part of the amount of costs claimed by a practitioner in a bill of costs is excessive in a material respect and the authority is of the opinion that the subject matter of the complaint is capable of being resolved. The authority may invite the complainant and the practitioner concerned to make efforts to resolve the matter that has been complained about. The authority may offer assistance in resolving the matter or identify other persons willing to assist in its resolution. It is a similar approach to the one previously mentioned.

The amended section 51(3) provides that the period beginning on the making of a complaint to the authority and ending two months after the complaint is determined can be disregarded in relation to the making of an application for adjudication of a bill of costs under Part 9. It will still be open to the client of a legal practitioner to submit a bill of costs to the legal costs adjudicator if he or she cannot resolve the matter under this informal resolution process. However, where a dispute regarding a bill of costs is resolved between the client and a legal practitioner under this section, pursuant to this process, the client would not be entitled to seek the adjudication of the bill of costs under Part 9 unless such adjudication forms part of the resolution. In other words, we are providing for a procedure to facilitate an amicable agreement being reached or an agreement being reached with the assistance, for example, of a mediator in a cost-disputed case without the parties having to go through the full costs adjudication process with the legal costs adjudicator, while at the same time not creating any barrier to someone deciding to go through the legal costs adjudicator should he or she so wish. Of course, it is possible, where there is an attempt at an informal resolution, that people would simply agree to disagree and would agree to put the matter to the legal costs adjudicator any way. This is just an extra provision to try to facilitate the speedy resolution of issues where there is a complaint about costs but not costs that are grossly excessive.

Under section 51(5) the authority will also be able to conclude, on notice to the parties, the disputes resolution process if it considers that an agreement or resolution of the complaint is unlikely to be reached. This is in the context of a costs complaint. It is worth adding that our objective here is to ensure that consumer complaints - as opposed to complaints of misconduct - that is, complaints about over-charging which is not of a major nature, can be resolved in a speedier way. There is a very successful complaints process of this nature being used in New South Wales in Australia. In the course of our preparatory work on the Bill, we engaged with the individual who is in charge of the legal services regulatory functions in New South Wales, who introduced this informal complaints system or what could be more correctly described as the consumer complaints system. It has had two effects in New South Wales. It has produced a far speedier and less bureaucratic structure for dealing with consumer complaints than previously existed. I am also told that because of the existence of this facility for some years in New South Wales, solicitors are now more efficient in their dealings with clients. It was expected that the number of cost complaints would increase over time and that was the case in the early years. Now, however, the number of complaints is decreasing because of the approach that has been taken to dealing with complaints. Many cases of disagreement between solicitors and their clients are now resolved without even the need to use the complaints process in place there.

We aim to ensure that complaints of a serious nature will be dealt with in the formal regulatory structure but consumer complaints will have the possibility of being dealt with otherwise but in dealing with cost issues, the availability of the costs adjudicator in relation to any issue in dispute on costs is not in any way impeded. No access barricade is created. There will continue to be full access but this will readily provide a mechanism to facilitate a resolution where it is possible without the need for an individual to resort to the legal costs adjudicator, unless he or she chooses to do so.