Catherine Murphy (Kildare North, Independent)
Link to this: Individually | In context

Question 35: To ask the Minister for Justice and Equality if there is a system of redress for those who engage legal professionals whereby they feel they have been overcharged for services rendered; if so, the system concerned; the role he plays in respect of this; and if he will make a statement on the matter. [11721/11]

Alan Shatter (Dublin South, Fine Gael)
Link to this: Individually | In context

I have no function as Minister in the investigation of complaints against a solicitor or barrister for overcharging. Generally, when a person takes issue with costs incurred as a result of a legal action he or she opts to have them taxed by the Office of the Taxing Master. The Taxing Master, as a court officer attached to the High Court structure, provides an independent and impartial process of assessment of legal costs which intends to achieve a balance between the costs involved and the services provided.

Once an application has been made for a taxation of costs it must be demonstrated to the Taxing Master that costs incurred were proper and reasonable in all the circumstances. Where there is a dispute between a solicitor and a client with regard to the solicitor's costs or the cost of counsel instructed to represent an individual, what is known as a solicitor and own client bill of costs is taxed before the Taxing Master, that is, the Taxing Master assesses whether it is financially appropriate. At the end of the process a certificate of taxation is issued based on the determination of the Taxing Master and is legally enforceable. There is an appellate procedure to the High Court where matters are not resolved to the satisfaction of either side. At Circuit Court level the taxation of costs is provided by the relevant county registrar.

In parallel to the Taxing Master both the Law Society and the Bar Council have substantial mechanisms in place to deal with complaints of overcharging of clients by solicitors and barristers, respectively. The Law Society's powers in relation to the charging of excessive fees are provided for in section 9 of the Solicitors (Amendment) Act 1994. Where a complaint of overcharging is made to the society by or on behalf of a client of a solicitor, the society is required to investigate the complaint and to take all appropriate steps to resolve the matter by agreement between the parties. The society may, if satisfied that the bill of costs is excessive, direct the solicitor to refund the client without delay or waive the right to recover specified costs.

Section 14B of the 1994 Act, inserted by section 41 of the Civil Law (Miscellaneous Provisions) Act 2008, provides that the issue by a solicitor of a bill of costs that is excessive may constitute misconduct. In more serious cases of overcharging a complaint of misconduct may be referred by the society to the Solicitors Disciplinary Tribunal established under section 16 of the 1994 Act. The tribunal is appointed by the President of the High Court to investigate complaints of misconduct against solicitors. It has limited judicial powers and its function is to establish, by evidence and documents, the facts of a complaint and to decide whether misconduct is proved. Where there is a finding of misconduct, the tribunal can itself impose a sanction on the solicitor, or it may refer its finding and recommendation to the President of the High Court who will decide on the nature of the sanction to be imposed on the solicitor, which can range up to striking the solicitor off the roll.

The Bar Council's complaints scheme is provided for under the Disciplinary Code for the Bar of Ireland. Complaints of misconduct against barristers may be made to and investigated by the Barristers' Professional Conduct Tribunal whose decisions may be appealed to the Barristers' Professional Conduct Appeals Board.

Catherine Murphy (Kildare North, Independent)
Link to this: Individually | In context

Is it open to the State to appeal to the Taxing Master and, if so, has it ever happened? In the case of a recurring misconduct, which may not necessarily be of a very serious nature, is there provision for the name of the solicitor in question to be published? It would assist people who need to consult a solicitor or barrister to have access to information indicating a profile of continuous complaints against a particular professional.

The Minister's reply indicates that he considers there is sufficient legislative provision in this area and he did not indicate an intention to introduce any type of modification. In most cases where one engages a professional to do a job one can quantify the job and obtain an estimate, but that is not generally the case when it comes to legal fees. In family law cases, for example, it is difficult for people to evaluate legal costs, which may cause great distress at a later date. The ideal is not to go the legal route but rather to find some way of mediating disputes, but this is not always possible. Is the Minister considering any measure to assist people to obtain an accurate estimate of legal costs so there can be some degree of certainty before an action commences?

Alan Shatter (Dublin South, Fine Gael)
Link to this: Individually | In context

I thank the Deputy for asking so many questions. The Leas-Cheann Comhairle may not allow me to answer all of them but I will do my best to work my way through. On the first issue, the State can appeal to the Taxing Master but the reality is that the State is not normally in conflict with the Chief State Solicitor's office over a costs issue. However, if, for instance, the State or a State agency instructs private solicitors to represent it for some particular purpose and there is a dispute about fees, the State could take the matter to the Taxing Master. Proceedings before the courts relating to the State or in which the State is involved frequently find their way into the adjudication process of the Taxing Master. For example, if the State is a successful defendant in court proceedings it may get an order for costs against the plaintiff or applicant and may want to recover legal costs. In those circumstances the Taxing Master may adjudicate on the appropriate sum if agreement is not reached on the matter.

In the context of transparency, contrary to the Deputy's perception I do not consider the law as it currently stands in this area satisfactory. It is contained in a variety of legislation some of which goes back to the late 1800s. Some of it is contained in rules of the courts, be it rules of the superior courts or lower courts. We are currently undertaking substantial work on a legal services Bill which I hope will be published during the course of this year and which must be published under the terms of the IMF-EU agreement. Initial work was undertaken by the previous Government on this legislation but I have revisited it and it will be substantially different and more reforming. It will address issues such as legal costs and mechanisms to resolve disputes and it will ensure in so far as it is possible that there is a degree of knowledge on the part of a client of the legal profession as to what costs may be incurred.

In some areas, it is impossible to give an accurate prediction as to what someone's legal costs will be. A provision in section 68 of the Courts Act 1994 requires lawyers to advise clients in advance either of the specific costs they will incur in court proceedings or to set out in detail the factors that would be applicable to calculating costs. One of the great difficulties, be it in family law or other types of litigation, is that a lawyer can rarely accurately predict how many court hearings may be required when people are heading into court or what difficulties may arise in accessing information and documentation. This results in different bills of cost being furnished to different individuals based on the background circumstances of their own proceedings. It is important that we have a modern framework of law in this area and substantial work is being undertaken to provide one.