Michael McDowell (Independent) | Oireachtas source

I welcome the Minister of State to the House and thank him for the fair and reasonable way in which he has approached the Second Stage debate. I thank the members of the Government for the decision they made today in respect of same.

As Senator Boyhan has pointed out, the purpose of this Bill is not to take out a meat cleaver and say that in no circumstance could anybody get their costs out of the estate. The purpose is to say that the ordinary discretions granted to a court to do justice, and the ordinary procedures, including lodgement and things like that, would be far more just if they were applied to probate actions than the rule in Vella v. Morelli. Section 4 of the Bill explicitly states:

A court shall have jurisdiction to exercise its discretion or to apply and operate the ordinary rules of court or procedure for the time being applying generally to costs in civil proceedings, including interlocutory proceedings, in respect of actions or proceedings to which this Act applies.

The idea was to give judges discretion but tell them that in future one does not, as a matter of presumption, go to the estate as the first port of call in determining where the money is to come from to pay for lawyers and cases. That is as far as the Bill goes.

I am very grateful to the Minister for pointing out to me section 168(1)(b) of the Legal Services Regulation Act 2015 because I had not seen that getting in under the radar. I thought that it was all to do with barristers, solicitors and the like and I had not seen the particular provision. It is relevant to how this issue should be dealt with and I am grateful to the Minister for drawing it to my attention.

Of course, I have no doubt that all of the sponsors would be agreeable to looking at how, on a collaborative basis, this issue can be best approached, and this is what the Minister is saying. Quite obviously this is a single purpose Bill. If there was a civil law (miscellaneous provisions) Bill travelling through the Department at greater speed than this legislation, we will not be selfish and we will not be dogs in the manger. If the issue can be dealt with in a way that is agreeable to everybody, I am quite happy to let that happen. The idea that the costs of an unsuccessful challenge to a will come out of the estate as a matter of course is an unfair idea. It could be fair in some circumstances but the presumptive rule in Vella v. Morelli is that it operates that way.

In these litigious days, and I was interested in what Senator Colm Burke said about the growth of litigation in this area, it is strange that as we are getting wealthier, we are becoming more litigious. I think the rule in Vella v. Morelli has something to do with that growth and that it is why it should be changed. In those circumstances I am very grateful to all of those, including Senator Ó Donnghaile and Fine Gael colleagues, for allowing this Bill to go to the Third Stage.