Trevor Sargent (Dublin North, Green Party)

I congratulate Deputy Thomas Byrne on becoming a father recently and wish him, his wife and new daughter Sinéad every success, health and happiness.

Ba mhaith liom leithscéal a ghabháil mar ní féidir leis an Aire Dlí agus Cirt, Comhionannais agus Athchóirithe Dlí bheith i láthair. D'iarr sé orm an freagra seo a thabhairt don Teachta ar a shon.

I stress, as did Deputy Byrne, that I cannot comment on individual cases, especially because the issues raised are linked to a matter before the courts. As the Deputy is no doubt well aware, undertakings are a vital component of conveyancing practice and, in preparing for the completion of a conveyance, it is common for solicitors to give undertakings in relation to certain aspects of the process.

Undertakings may take different forms, depending on who is making them and the subject of the undertaking. For example, a vendor's solicitor may, where a property is being sold subject to a mortgage and the mortgage is to be discharged from the proceeds of the sale, give an undertaking to hold the title deeds on trust or on behalf of the mortgagee and to account to the mortgagee for the amount required to discharge the mortgage on completion of the sale. A purchasers' solicitor will usually give an undertaking to a financial institution to the effect that he or she will ensure the purchaser has a good marketable title to the property, that the documents are executed and that all the title deeds are stamped, registered and lodged with the institution. In addition, the solicitor will generally, pending lodgement of the title deeds with the bank or building society, undertake to hold the deeds in trust for the lending institution.

It is important to understand what in particular constitutes a solicitor's undertaking as distinct from any other type of undertaking. Essentially, the undertaking by a solicitor is a promise or guarantee given by the solicitor in his or her professional capacity to do or undertake to do certain things. As the undertaking is given in the solicitor's professional capacity, it must be honoured by the solicitor. Where a solicitor fails to honour an undertaking, it is considered to be professional misconduct and, as a result, he or she is rendered liable to the Law Society's disciplinary procedures and investigation by the solicitors disciplinary tribunal which is independent of the society. It is appointed by the President of the High Court and includes lay members.

The tribunal has limited judicial powers and its primary function is to establish, by evidence and documents, the facts of a complaint and decide whether misconduct is proved. Where there is a finding of misconduct, the tribunal can impose a sanction on the solicitor which can include a direction to pay restitution to an aggrieved party, or it may refer its finding and recommendation to the President of the High Court who will ultimately decide on the nature of the sanction to be imposed on the solicitor. This can include the striking of the solicitor off the roll. The Minister for Justice, Equality and Law Reform is further strengthening these powers in the Civil Law (Miscellaneous Provisions) Bill 2006 by providing for the better enforcement of orders made by the tribunal.

It should also be noted that, as an officer of the court, the solicitor is subject to the jurisdiction of the court and may be compelled by it to implement the undertaking. Furthermore, it is possible, depending on the facts of the case and the wording of the undertaking, that the court may enforce the undertaking against the solicitor personally.

Given the nature of an undertaking, it is imperative that great care is exercised by a solicitor where the question of giving an undertaking is concerned. The Law Society has issued guidelines to its practitioner members on the giving of undertakings. A number of principles relating to undertakings have been outlined by the society regarding issues such as obtaining an irrevocable authority from a client to give such an undertaking and the inadvisability of giving personal undertakings, unless the solicitor is in a position to honour the undertaking.

The Law Society has also agreed standard forms of undertakings with the Irish Banking Federation to cover a number of issues such as the lending of title documents to a solicitor for inspection only and return to the institution. In so far as the system of banking and making loans available to clients is concerned, the Deputy will appreciate that the Minister for Justice, Equality and Law Reform has no function.

The Financial Regulator is responsible for the prudential supervision of Irish-licensed financial institutions and independent in matters of day-to-day supervision. The regulator has consistently conveyed to lending institutions that mortgage lending policies and practices should be prudent and responsible. The standards accord with best regulatory practice internationally. According to the IMF, our regulatory regime is up to the best international standards. It is in everybody's interests that best practice is followed in the areas referred to by the Deputy. In so far as there are any matters to be reviewed or issues addressed, he can be assured that the responsible Ministers will do so.

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