David Stanton (Cork East, Fine Gael)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 7:

In page 10, between lines 17 and 18, to insert the following:

“Amendment of paragraph 18 of Eighth Schedule to Courts (Supplemental Provisions) Act 1961

9. Paragraph 18 (inserted by the Civil Law (Miscellaneous Provisions) Act 2011) of the Eighth Schedule to the Courts (Supplemental Provisions) Act 1961 is amended—

(a) in subparagraph (6)(a), by the substitution, for “clauses (b) and (c)”, of “clauses (b) and (c) and subparagraphs (7) to (9)”,

(b) in subparagraph (6)(c), by the insertion, after “shall”, of “, subject to subparagraphs (7) to (9),”, and

(c) by the insertion, after subparagraph (6), of the following:

“(7) If, in the opinion of the Minister, the making of the determination next mentioned in this subparagraph is appropriate, the term of office of a person who has been appointed to be a Taxing-Master may be extended by such period, not exceeding 3 years from the date of expiry of that term, as the Minister decides and specifies in a determination made by him or her for the purpose of this subparagraph.

(8) In addition to its being exercisable before the term of office of the person concerned has expired, the power under subparagraph (7) to make a determination under that subparagraph may be exercised in relation to the term of office of a person referred to therein which has expired if the following conditions are fulfilled—

(a) before that expiry, the Minister has communicated, in writing, to the person concerned the Minister’s desire in general terms that the person continue to serve as a Taxing-Master, and

(b) the Minister is satisfied that had subparagraph (7) been enacted before that expiry the Minister would have exercised, before that expiry, the power under that subparagraph to make a determination thereunder in relation to the term of office of that person, and such a determination that is made after the expiry of the person’s term of office is referred to in subparagraph (9) as a ‘post-expiry determination’.

(9) A post-expiry determination shall have retrospective effect, that is to say it shall operate to continue the person concerned in office as a Taxing-Master (for the period specified in the determination) from the date of expiry of his or her original term of office, and anything done by the person on or from that expiry and before the making of the postexpiry determination shall be as good and effectual as it would have been had the determination been made before the expiry of the person’s original term of office.”.”.

This is a Government amendment which seeks to make provision for the extension of the period in office of a taxing master by up to three years. Amendment No. 8 provides for the procedures for the completion or carryover of any work in hand in the Office of the Taxing Master. Amendment No. 9 provides for the consequential changes that need to be made to the Long Title of the Bill to include these provisions.

Amendments Nos. 7 and 8 are being made in support of the smooth and orderly transition of the Office of the Taxing Master to that of a new legal costs adjudicator under the Legal Services Regulation Act 2015, including the completion of any case in hand that has already been referred for taxation and where the initial Taxing Master is no longer available. The Office of the Taxing Master will become the Office of the Legal Costs Adjudicator once the relevant provisions of Part 10 of the Legal Services Regulation Act 2015 are commenced. The commencement of this major undertaking and the coming on stream of the new Office of the Legal Costs Adjudicator are anticipated to take place early in the new year. Members will recall that the new Office of the Legal Costs Adjudicator will be bolstered in its legal costs adjudications by a set of legal cost principles contained in Schedule 1 to the 2015 Act. It will have modern strategic and business management structures and maintain a register of its legal cost determinations which will be accessible by the public. These structural reforms will complement the wider legal cost transparency measures in the 2015 Act. It should also be noted that the title of the new office moves away from the use of the term "taxation" which was confusing for the general public which would more usually associate it with the work of the Revenue Commissioners but which bears no relation to it.

The legal services regulation rules were originally published in the autumn of 2011 and it was anticipated that the legal costs and other provisions would be enacted within a period of two years from that date.

However, the enactment of the Legal Services Regulation Bill did not take place until December 2015, with the competing legislative priorities of the troika programme and a change of Government in between. It is now going to be the case, therefore, that the terms of office of existing Taxing Masters will have expired before the changeover to the new legal costs adjudicators under the Legal Services Regulation Act will have taken place. Amendment No. 7 provides a practical means of managing and bridging this emerging gap.

At present, paragraph 18(6) of the Eighth Schedule to the Courts (Supplemental Provisions) Act 1961, as amended, provides that a person appointed to the office of Taxing Master shall not be eligible for re-appointment or to have the term of appointment extended. Amendment No. 7 proposes to overcome this prohibition. It does this by seeking to allow for extension of the term of appointment concerned up to a maximum of three years - this is now to be found in the proposed new paragraph 18 (7) of the Eighth Schedule. For the reasons I have outlined, the extension of the period of appointment of a Taxing Master is now considered a crucial option to have for the orderly and effective transition of the Office of the Taxing Master to that of the Office of the Legal Costs Adjudicators. It will allow for the retention of critical working capacity and management expertise as may be considered appropriate to lead and drive this complex process. It will also enable the necessary steps to be taken for any existing workload of taxation cases to be brought to completion. Due to the automatic expiry of the existing term of office of a Taxing Master under current law this capacity and expertise will otherwise start to become unavailable in the coming weeks.

The proposed three year period of extension will also allow for the operation, as may be considered appropriate, of the transitional provisions of section 164 of the Legal Services Regulation Act 2015. This section provides for the designation by the Minister for Justice and Equality of a person who is serving as a Taxing Master to perform the functions of the Chief Legal Costs Adjudicator or of a legal costs adjudicator in what will be the newly established Office of the Legal Costs Adjudicators. This designation will be effective for the remainder of the relevant term of office as a Taxing Master. The additional paragraphs 18(8) and (9) for the Eighth Schedule under amendment No. 7 provide that the new power to extend the term of office under paragraph 18(7) may, in the strict circumstances prescribed, be exercised after the term of office has expired and that such a post-expiry determination shall have retrospective effect. Provision is being made for such a contingency to enable extension of a term of office to take place notwithstanding the date on which this Bill may be enacted.

Amendment No. 8 proposes to change the Eighth Schedule to the Courts (Supplemental Provisions) Act 1961 by the insertion of a new paragraph 18A. The new paragraph deals with a variety of working options to be applied in completing the functions of a Taxing Master which may not have been fully performed on the occasion of his or her vacating office. This amendment is considered necessary to allow for the completion of matters referred for taxation which may be in train at the time a Taxing Master vacates his or her office. This is intended to provide the maximum degree of clarity regarding the procedural requirements arising from the completion of a particular matter by a Taxing Master who is not the Taxing Master to whom the matter was originally assigned and where the initial Taxing Master is no longer available.

The new paragraph 18A contains six subparagraphs. Subparagraph (1) deals with interpretation matters relating to the paragraph as a whole. Subparagraph (2) provides, in general terms, that another Taxing Master may perform functions relating to a particular matter which had been assigned to an initial Taxing Master who is not available to perform those functions. Subparagraph (3) provides that the alternative Taxing Master shall conduct a complete re-hearing of a matter on which an initial Taxing Master had commenced but not completed a hearing. However, it should also be noted that it is also open to the parties concerned to consent in such instances to the first hearing being resumed. Subparagraph (4) provides, in general terms, for the exercise by the alternative Taxing Master of the jurisdiction and powers initially conferred where the initial Taxing Master is no longer available. Subparagraph (5) provides that the Taxing Master who has been duly designated by the Government to be responsible for the management of the Office of the Taxing Master shall have the power to determine any question regarding the application of these bridging provisions to a particular matter and, in consequence of any such determination, to give directions. Subparagraph (6) provides that the new paragraph 18A is without prejudice to the general law but that a particular procedure set out in the paragraph shall prevail.

Amendment No. 11 is a technical amendment proposed by the Office of the Parliamentary Counsel. It is somewhat self explanatory in that it proposes the amendment of the long Title of the Bill. The proposed amendment to the long Title is to add the necessary element that the Eighth Schedule to the Act of 1961 and section 139(2) of the Act of 2015 are also to be amended by this Bill.

There is also the additional amendment proposing to delete the words "and, in particular," up to "Valuation Act 2001", as suggested earlier.