Charles Flanagan (Laois, Fine Gael) | Oireachtas source

The primary purpose of these amendments is to facilitate the transition from the Taxing Master's office to the Office of the Legal Costs Adjudicators in the autumn. Due to their highly technical nature, these amendments have been the subject of extensive consultations between my Department, the Courts Service, including the Taxing Master's office, and the Office of the Parliamentary Counsel to the Government.

Amendment No. 1 proposes amendments to section 27 of the 1995 Act, which deals with additional powers of the Taxing Master of the High Court and of a county registrar exercising the powers of a taxing master. The proposed new subsection (12) clarifies that section 27 shall not apply to the adjudication of legal costs under Part 10 of the 2015 Act. That Part provides for the establishment of a new Office of the Legal Costs Adjudicators, which will replace the Taxing Master's office. Accordingly, section 27 will not apply to the new office, but it will continue to apply to county registrars in respect of matters of taxation.

The proposed deletion of sections 27(6) and (7) is in line with the proposal to amend the 2015 Act to allow for a lodgement and tender process in the field of costs adjudication. This will be set out in respect of the proposed amendment of section 154(10) of the 2015 Act, which I will address shortly. The existing subsections (6) and (7) represent an impediment to the lodgement and tender process, as they fetter the allocation of liability of the parties for the costs of an adjudication or taxation of costs. Accordingly, the deletion of the two subsections is proposed.

Amendment No. 2 proposes a new section of the Bill providing for a number of amendments to four sections of the 2015 Act.If the Acting Chair agrees, I will address them individually.

Section 3(a) of amendment No. 2 provides for the insertion of a new subsection (6) into section 141 of the 2015 Act. The section in question deals with county registrars in the context of Part 10 of the 2015 Act which addresses the matter of legal costs. The purpose of this section of the amendment is to align the provision of reasons for legal cost determination by a county registrar with a similar obligation placed on a legal costs adjudicator under section 140(4) of the 2015 Act. This arises in regard to the maintenance by the county registrar of a register of taxation or legal costs, being determinations under the Act. Under section 140(4), costs adjudicators do not have to publish reasons for the determination where they are of the opinion that the adjudication concerned does not involve a matter of legal importance. The proposed section 141 uses identical language to that in section 140(4) to provide for a similar exemption for county registrars. The amendment is put forward in response to concerns raised by the Office of the Taxing Master and country registrars that an unqualified obligation to provide reasons for a determination as currently applies under section 141 would be unduly burdensome at a practical level and create a disparity in how the register of determinations is applied across the board.

Section 3(b) proposes amendment of section 154 of the Act, subsection (10) of which deals with matters relating to the work of the Office of Legal Cost Adjudicators which can be subject to rules of court. The purpose of this section of the amendment is to provide for the introduction of a procedure to enable a party liable for payment of costs to make an offer to settle those costs or a particular item of costs which, if acceptable, would obviate the need for an adjudication or reduce the scope of adjudication. This procedure is known as the lodgment and tender process. To provide an incentive to a party seeking costs to engage with such procedure, it is necessary to provide that a party which unreasonably refuses to accept an offer to settle the amount claimed would be liable to bear the costs of the expense of the adjudication process from the point at which the offer is made. The proposed additional provisions in subsection (10) would enable the making of court rules to facilitate such a procedure and set the respective liability of the parties for the cost of an adjudication where the amount offered is not exceeded by the amount of the costs determined to be paid.

Section 3(c) provides for the amendment of section 160 of the 2015 Act. Its purpose is to correct an erroneous cross-reference. The reference should be to section 163 which deals with the power of the legal costs adjudicator to specify forms in connection with the application for the adjudication of costs. The cross-reference in section 160 should be to section 163 rather than to section 166 which deals with information, documents and records.

Section 3(d) provides for the amendment of section 172 of the 2015 Act and deals with the advisory committee on the grant of patents of precedence. A grant of patents entitles a legal practitioner to whom it is granted to use the title of senior counsel. The purpose of the amendment is to correct the omission of the President of the Court of Appeal from the membership of the advisory committee on the grant of patents of precedence. The omission arose due to the fact that the Court of Appeal Act and the Legal Services Regulation Act crossed each other in time in coming to enactment. Accordingly, the amendment includes the President of the Court of Appeal in the list of members of the advisory committee. It also provides for a temporary alternative member of the advisory committee in the event of the death or retirement of the President of the Court of Appeal in a similar fashion to procedure in the cases of the Chief Justice and President of the High Court.