Solicitors (Amendment) Act, 1960

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Number 37 of 1960.

SOLICITORS (AMENDMENT) ACT, 1960.

ARRANGEMENT OF SECTIONS

PART I

Preliminary and General

PART II

Disciplinary Provisions in Relation to Solicitors

PART III

Control of Solicitor's Property and Compensation to Clients in Certain Cases

PART IV

Miscellaneous

FIRST SCHEDULE

Provisions of the Principal Act Repealed

SECOND SCHEDULE

Provisions having effect for the purposes of sections 8 (2) (a) and 19 (5) (a) of this Act

THIRD SCHEDULE

Provisions in relation to the Compensation Fund

Number 37 of 1960.

SOLICITORS (AMENDMENT) ACT, 1960.

AN ACT TO AMEND AND EXTEND THE SOLICITORS ACT, 1954 . [22nd November, 1960.]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:—

PART I

Preliminary and General

Short title and collective citation.

1.—(1) This Act may be cited as the Solicitors (Amendment) Act, 1960.

(2) The Principal Act and this Act may be cited together as the Solicitors Acts, 1954 and 1960.

Commencement.

2.—This Act shall come into operation as follows:

(a) section 31 shall come into operation on such day as the Minister for Justice, by order made on the request of the Society, appoints,

(b) the remainder of this Act shall come into operation on the passing of this Act.

Interpretation.

3.—(1) In this Act—

“the Compensation Fund” means the Compensation Fund established under section 69 (repealed by this Act) of the Principal Act;

“the Disciplinary Committee” has the meaning assigned to it by section 6 of this Act;

“documents” includes deeds, wills, papers, books of account, records, vouchers and correspondence;

“the former Disciplinary Committee” means the committee constituted by section 13 (repealed by this Act) of the Principal Act;

“misconduct” includes—

(a) the commission of treason or a felony or a misdemeanour,

(b) the commission, outside the State, of a crime or an offence which would be a felony or a misdemeanour if committed in the State,

(c) the contravention of a provision of the Principal Act or this Act or any order or regulation made thereunder,

(d) conduct tending to bring the solicitors' profession into disrepute;

“the Principal Act” means the Solicitors Act, 1954 ;

“the Solicitors' Accounts Regulations” means the regulations relating to accounts made by the Society for the purposes of section 66 of the Principal Act.

(2) In this Act, references to the Principal Act shall, where the context so requires or permits, be construed as references to the Principal Act as amended by this Act.

(3) This Act shall be construed as one with the Principal Act.

Meaning of “solicitor” in the Principal Act and this Act.

4.—In the Principal Act and this Act, “solicitor”, where the context so permits or requires, includes a former solicitor or a deceased solicitor.

Repeals.

5.—(1) The provisions of the Principal Act set out in column (1) of Part I of the First Schedule to this Act are hereby repealed to the extent specified in column (2) of the said Part I.

(2) The provisions of the Principal Act set out in column (1) of Part II of the First Schedule to this Act are hereby repealed to the extent specified in column (2) of the said Part II, but shall continue to apply to any case where, in the opinion of the Society, the loss arose before the passing of this Act.

PART II

Disciplinary Provisions in Relation to Solicitors

Disciplinary Committee.

6.—(1) The President of the High Court shall, from time to time as occasion requires, appoint, from amongst the members of the Council and such former members of the Council as are practising as solicitors, a disciplinary committee (in this Act referred to as the Disciplinary Committee) consisting of not less than seven and not more than ten persons.

(2) A member of the Disciplinary Committee may resign his office by letter sent by registered post to the President of the High Court and his resignation shall take effect on the date on which the letter is delivered.

(3) The President of the High Court may remove a member of the Disciplinary Committee, may fill a vacancy therein and, subject to the limits stated in subsection (1) of this section, may increase or reduce the number of persons thereon.

(4) The Disciplinary Committee may act notwithstanding one or more than one vacancy in their membership.

(5) The Society shall defray any costs or expenses incurred by the Disciplinary Committee.

(6) The quorum of the Disciplinary Committee shall be three.

(7) A member of the Disciplinary Committee, who was a member of the Council at the date of his appointment, may act on the Disciplinary Committee notwithstanding the fact that he has ceased to be a member of the Council.

Inquiry by the Disciplinary Committee into the conduct of a solicitor alleged to have committed misconduct.

7.—(1) An application by another person or by the Society for an inquiry into the conduct of a solicitor on the ground of alleged misconduct shall, subject to the provisions of this Act, be made to and heard by the Disciplinary Committee in accordance with rules made under section 16 of this Act.

(2) Where an application in relation to a solicitor is duly made under this section and the Disciplinary Committee, after consideration of the application, are of opinion that there is no prima facie case for inquiry, they shall so inform the applicant in writing and shall take no further action in relation to the application.

(3) Where an application in relation to a solicitor is duly made under this section and the Disciplinary Committee, after consideration of the application, are of opinion that there is a prima facie case for inquiry, the following provisions shall have effect—

(a) they shall proceed to hold an inquiry;

(b) on completion of the inquiry, the Disciplinary Committee shall embody their findings in a report to the High Court, specifying therein the nature of the application and the evidence laid before them and any other matters in relation to the solicitor which they may think fit to report, including their opinion as to the fitness or otherwise of the solicitor to be a member of the solicitors' profession having regard to the contents of the report;

(c) if the Disciplinary Committee find that there has been misconduct on the part of the solicitor in respect of any matter complained of in the application or that the solicitor has not answered satisfactorily the allegations against him, the Society shall bring the report before the High Court.

(4) Where an application is made under this section, the Disciplinary Committee may, at any stage of the proceedings in relation to the application and before making a report to the High Court, postpone the taking of any steps or further steps in the matter for a specified period and, if they do so, then, if before the expiration of that period the applicant applies to the Disciplinary Committee for leave to withdraw the application, the Disciplinary Committee may, if they think fit, allow the application to be withdrawn and, if they do so, no further action shall be taken by them in relation to the application.

(5) The Society—

(a) shall be entitled to make an application to the Disciplinary Committee in accordance with the provisions of this section, notwithstanding that any other person may be entitled to make such an application, and

(b) may authorise any person on their behalf to do all such things and acts as may be necessary for the purposes of such application.

Proceedings before the High Court in relation to a report brought before the Court under section 7.

8.—(1) Where the Disciplinary Committee, after holding an inquiry into the conduct of a solicitor, make, under section 7 of this Act, to the High Court a report which is brought before the High Court by the Society under the said section 7, the following provisions shall have effect—

(a) the High Court, after consideration of the report—

(i) may by order

(I) strike the name of the solicitor off the roll,

(II) suspend the solicitor from practice for such period as the High Court may fix, or

(III) censure the solicitor or censure him and require him to pay a money penalty,

(ii) may make such order as to the costs incurred in the proceedings before it and the Disciplinary Committee as it thinks fit,

(iii) may make any ancillary order in relation to the case which the High Court may think fit,

(b) the High Court may, if it thinks fit, on special grounds, remit the case to the Disciplinary Committee to take further evidence for submission to it and make to it a supplementary report, and the Court may adjourn the hearing of the case pending the submission to it of such further evidence and the making of such supplementary report,

(c) in addition to doing any of the things specified in the foregoing paragraphs of this subsection, the High Court may also by order do any one or more of the following things—

(i) direct the solicitor to make such restitution to any aggrieved party as the High Court thinks fit,

(ii) on the application of the Society, direct the delivery to any person appointed by the Society of all or any documents in the possession or control of the solicitor or his firm or relating to any trust of which the solicitor is or was the sole trustee or of which the trustees are or were the solicitor with a partner, clerk or servant of his or with more than one of such persons,

(iii) direct either—

(I) that no banking company shall, without leave of the High Court, make any payment out of a banking account in the name of the solicitor or his firm, or

(II) that a specified banking company shall not, without leave of the High Court, make any payment out of a banking account in the name of the solicitor or his firm.

(2) (a) Where an order with respect to documents is made by the High Court under subparagraph (ii) of paragraph (c) of subsection (1) of this section, the Society may make inquiries to ascertain the person or persons to whom the documents belong and may deal with the documents in accordance with the direction of such person or persons.

(b) For the purposes of paragraph (a) of this subsection, the provisions set out in the Second Schedule to this Act shall have effect.

(3) Where the High Court by an order under subsection (1) of this section requires a solicitor to pay a money penalty, the order shall operate as a judgment against the solicitor in favour of the Society, and the money penalty, when recovered, shall be paid into the Compensation Fund.

(4) If any person acts as agent or nominee of a solicitor or his firm so as to render nugatory an order made by the High Court under subparagraph (iii) of paragraph (c) of subsection (1) of this section, such person shall be guilty of an offence under this subsection and shall be liable on summary conviction thereof to a fine not exceeding one hundred pounds.

Removal at his own request of name of solicitor from the roll.

9.—(1) An application by a solicitor to have his name removed from the roll shall be made to and heard by the Disciplinary Committee in accordance with rules made under section 16 of this Act.

(2) Where an application is made by a solicitor under this section, the Disciplinary Committee shall consider the application, and thereupon the following provisions shall have effect—

(a) if they are of opinion that the application should be granted without making a report to the High Court, they shall order accordingly,

(b) if not of that opinion—

(i) they shall make a report on the application to the High Court,

(ii) the Society shall bring the report before the High Court,

(iii) the High Court, after consideration of the application and the report, may make an order either refusing the application or granting it and as to the payment of costs.

Restoration of name of solicitor to the roll.

10.—(1) The High Court shall have power to order that the name of a solicitor, whose name has been struck off the roll by an order made by the High Court under section 8 of this Act or under the said section 8 as applied by section 11 of this Act or whose name has been removed from the roll under section 9 of this Act, shall be restored to the roll.

(2) A person seeking to have his name restored to the roll under this section may apply to the High Court and shall give notice of his intended application to the Society, who shall be entitled to appear and be heard on any such application.

(3) On the hearing of an application under this section the High Court may refuse the application or may order that the name of the applicant be restored to the roll and may order the payment by the applicant of the costs and expenses of the Society in relation to the application.

Jurisdiction of High Court in relation to a solicitor in respect of whom order striking his name off the roll was purported to have been made under section 18 of the Principal Act.

11.—Where, before the passing of this Act, the former Disciplinary Committee made, in purported exercise of powers purported to have been conferred on them by section 18 (repealed by this Act) of the Principal Act, an order providing for the striking off the roll of the name of a solicitor, the Society may, on notice to the solicitor, apply by notice of motion (of not less than ten days' duration) to the High Court for an order striking off the roll the name of the solicitor, and, if the Society so apply, then the following provisions shall have effect—

(a) all available affidavits and other available documentary evidence which were before the former Disciplinary Committee and all available transcripts of evidence given before them shall be admissible as evidence on the consideration of the application by the High Court,

(b) the High Court, after reading those affidavits, other documentary evidence and transcripts, receiving any additional evidence tendered by the Society or the solicitor and taking into consideration any other matters in relation to the solicitor brought to its notice by the Society, shall deal with the application as if it were a report in relation to the solicitor made to the High Court by the Disciplinary Committee and brought before the High Court by the Society under section 7 of this Act, and section 8 of this Act shall apply accordingly.

Finality of orders of the High Court.

12.—(1) Subject to subsection (2) of this section, an order of the High Court under section 8 of this Act, under that section as applied by section 11 of this Act or under section 9 or section 10 of this Act shall be final and not appealable.

(2) By leave of the High Court, an appeal, by the Society or the section 8 of this Act, under that section as applied by section 11 of this Act or under section 9 or section 10 of this Act shall lie to the Supreme Court on a specified question of law.

Exercise of jurisdiction of the High Court under sections 8, 9, 10 and 11.

13.—The jurisdiction vested in the High Court by section 8 , 9 , 10 or 11 of this Act shall be exercised by the President of the High Court or, if and wherever the President of the High Court so directs, by an ordinary judge of the High Court for the time being assigned in that behalf by the President of the High Court.

Privilege in respect of certain proceedings under the Principal Act and this Act.

14.—The following—

(a) the doing, before the passing of this Act, by the former Disciplinary Committee or the registrar, in purported exercise of the powers purported to have been conferred on them or him by section 18 or 21 of the Principal Act, of any act, being an act purported to have been authorised to be done by such section,

(b) the making to the High Court by the Disciplinary Committee of a report under section 7 or 9 of this Act or a supplemental report under paragraph (b) of subsection (1) of section 8 of this Act,

(c) the bringing by the Society of a report before the High Court under section 7 or 9 of this Act,

(d) the publishing, in accordance with section 17 of this Act, of any notice authorised by the said section 17,

(e) the making, before the passing of this Act, of an application to the former Disciplinary Committee under section 14 of the Principal Act or the giving of any information in connection with such an application, and

(f) the making of an application under section 7 of this Act or the giving of any information in connection with such application,

shall be absolutely privileged and shall, in respect of the doing of any act specified in paragraph (a) or (e) of this section, be deemed always to have been absolutely privileged.

Powers of the Disciplinary Committee as to taking evidence, etc.

15.—(1) The Disciplinary Committee shall, for the purposes of any inquiry held by them under section 7 of this Act or the consideration of an application under section 9 of this Act, or the taking of further evidence under paragraph (b) of subsection (1) of section 8 of this Act, have the powers, rights and privileges, vested in the High Court or a judge thereof on the hearing of an action, in respect of—

(a) the enforcement of the attendance of witnesses and their examination on oath or otherwise, and

(b) the compelling of the production of documents,

and a summons signed by a member of the Disciplinary Committee may be substituted for and shall be equivalent to any formal procedure capable of being issued in an action for enforcing the attendance of witnesses and compelling the production of documents.

(2) Where—

(a) a person on being duly summoned to attend before the Disciplinary Committee makes default in attending, or

(b) a person, being in attendance as a witness before the Disciplinary Committee, refuses to take an oath lawfully required by the Disciplinary Committee to be taken, or to produce any document in his power or control lawfully required by the Disciplinary Committee to be produced by him or to answer any question to which the Disciplinary Committee may lawfully require an answer, or

(c) a person, being in attendance before the Disciplinary Committee, does anything which, if the Disciplinary Committee were a court of law having power to commit for contempt, would be contempt of court,

the offence of that person may, by certificate, signed by two members of the Disciplinary Committee, be certified to the High Court and the High Court may thereupon inquire into the alleged offence and, after hearing any witnesses who may be produced against or on behalf of the person charged with the offence and any statements that may be offered in defence, punish or take steps for the punishment of that person in like manner as if he had been guilty of contempt of the High Court.

(3) A witness before the Disciplinary Committee shall be entitled to the same immunities and privileges as if he were a witness before the High Court.

Rules as to procedure in relation to applications to the Disciplinary Committee.

16.—(1) The Disciplinary Committee, with the concurrence of the President of the High Court, may make rules (not inconsistent with this Act) regulating—

(a) the making of applications to the Disciplinary Committee under this Act,

(b) the proceedings of the Disciplinary Committee under this Act,

and generally as to procedure in relation to those matters.

(2) Rules under this section may provide in particular for extending the period for furnishing any affidavit or document or for receiving an application or document notwithstanding any irregularity in its form where it appears to the Disciplinary Committee to be just to do so.

Filing of orders made by the High Court or the Disciplinary Committee and notice of certain orders made by the High Court.

17.—(1) The following—

(a) a copy of every order made by the High Court under this Act, and

(b) any order made by the Disciplinary Committee under section 9 of this Act,

shall be filed by the Disciplinary Committee with the registrar.

(2) Where an order striking the name of a solicitor off the roll or suspending a solicitor from practice is made by the High Court under section 8 of this Act or under the said section 8 as applied by section 11 of this Act, the registrar shall forthwith cause a notice stating the effect of the operative part of the order to be published in Iris Oifigiúil and shall also cause the notice to be published in such other manner as the Disciplinary Committee may direct.

(3) The registrar shall maintain separate files on which all orders made under this Act by the High Court or the Disciplinary Committee shall be entered in the following manner—

(a) on a file to be termed File A, there shall be entered each order striking the name of a solicitor off the roll or suspending a solicitor from practice made by the High Court under section 8 of this Act or under the said section 8 as applied by section 11 of this Act,

(b) on a file to be termed File B, there shall be entered any other order made under this Act by the High Court and any order made under section 9 of this Act by the Disciplinary Committee.

(4) The registrar shall furnish a copy of an entry on File A or File B to a person who applies in writing for such copy.

(5) Notwithstanding subsection (4) of this section, where—

(a) application is made for a copy of an entry on File A or File B being an entry which is earlier than two years before the date of the application, or

(b) application is made for a copy of an entry on File A or File B, being an entry in respect of which the Disciplinary Committee have directed the insertion of a note that the furnishing thereof might cause injustice,

a copy of the entry shall (save where the copy is furnished by order of a court) be furnished only by permission in writing of the Society.

Application of Bankers' Books Evidence Acts, 1879 and 1959.

18.—An application to or an inquiry or other proceeding before the Disciplinary Committee under this Act shall be a legal proceeding within the meaning of that expression as used in the Bankers' Books Evidence Acts, 1879 and 1959.

PART III

Control of Solicitor's Property and Compensation to Clients in Certain Cases

Power of Society to deal with documents of certain solicitors.

19.—(1) Where the Society are of opinion that a solicitor or a clerk or servant of a solicitor has been guilty of dishonesty in connection with that solicitor's practice as a solicitor or in connection with any trust of which that solicitor is a trustee, they may by notice require the production or delivery to any person appointed by the Society and may take possession of all or any documents in the possession or control of such solicitor or his firm or relating to any trust of which such solicitor is the sole trustee or of which the trustees are such solicitor with a partner, clerk or servant of his or with more than one of such persons.

(2) Where a person, having possession or control of documents which he has been required under this section to produce or deliver, refuses or fails to produce or deliver them in accordance with the requirement—

(a) he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding fifty pounds, and

(b) the Society may apply to the High Court and that Court may by order require such person to produce or deliver the documents.

(3) Where the Society take possession of documents produced or delivered under a requirement under this section—

(a) they shall serve, on the solicitor and on every other person from whom the documents were received, a notice giving particulars of the documents and the date of taking possession thereof, and

(b) if any of the documents are grouped together as relating to a particular matter, the notice may give particulars of those documents by referring to the group and the matter to which it relates.

(4) Within fourteen days after service of a notice under subsection (3) of this section on a solicitor or other person, he may apply to the High Court for an order directing the Society to return the documents received by the Society to the person or persons from whom they were received or to such other person or persons as the applicant may require and the High Court may make the order applied for or such other order as the Court thinks fit.

(5) (a) Where an application is not made in accordance with subsection (4) of this section or the High Court on such application directs that the documents shall remain in the custody or control of the Society, the Society may make inquiries to ascertain the person or persons to whom the documents belong and may deal with the documents in accordance with the directions of such person or persons.

(b) For the purposes of paragraph (a) of this subsection, the provisions set out in the Second Schedule to this Act shall have effect.

Control of banking accounts of solicitors.

20.—(1) Where the Society are of opinion that a solicitor or a clerk or servant of a solicitor has been guilty of dishonesty in connection with that solicitor's practice as a solicitor or in connection with any trust of which that solicitor is a trustee, they may apply to the High Court, and the High Court may make an order directing either—

(a) that no banking company shall, without leave of the High Court, make any payment out of a banking account in the name of the solicitor or his firm, or

(b) that a specified banking company shall not, without leave of the High Court, make any payment out of a banking account kept by such company in the name of the solicitor or his firm.

(2) The High Court shall have power to hear in camera an application for an order under subsection (1) of this section.

(3) Where the High Court make in relation to a solicitor an order under subsection (1) of this section, the High Court may at the same time order that his practising certificate be suspended until the certificate expires.

(4) If any person acts as agent or nominee of a solicitor or his firm so as to render nugatory an order made by the High Court under subsection (1) of this section, such person shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding one hundred pounds.

Compensation for loss due to dishonesty of solicitor or clerk or servant of solicitor.

21.—(1) In this section—

“the Fund” means the Compensation Fund;

“grant” means a grant under subsection (4) of this section.

(2) The Society shall continue to maintain the Fund.

(3) The Fund shall be maintained and administered in accordance with the provisions of the Third Schedule to this Act.

(4) Where it is proved to the satisfaction of the Society that any person has sustained loss in consequence of dishonesty on the part of any solicitor or any clerk or servant of a solicitor in connection with that solicitor's practice as a solicitor or in connection with any trust of which that solicitor is a trustee, then, subject to the provisions of this section, the Society shall make a grant to that person out of the Fund and the amount of the grant shall be such as represents in the opinion of the Society full indemnity for that loss.

(5) The Society shall have a discretion to make or refuse to make a grant—

(a) in a case in which the solicitor did not have a practising certificate in force at the time when, in the opinion of the Society, the loss arose,

(b) in a case in which the Society are of opinion that there has been negligence on the part of the claimant or of any person for whom he is responsible which has contributed to the loss in question, and

(c) in a case in which the Society are of opinion that the claimant has by his conduct actively assisted in the commission of misconduct by the solicitor,

and, where the Society decide to make a grant in any such case, they shall have a discretion to make it only to a limited extent.

(6) A grant may be made notwithstanding that the solicitor has, after the act of dishonesty, died, had his name removed from or struck off the roll, ceased to practise, been suspended from practice, or had his practising certificate suspended.

(7) No grant may be made in respect of a loss made good otherwise.

(8) (a) On the making of any grant to any person (in this subsection referred to as the grantee) in respect of any loss—

(i) the Society shall, to the amount of the grant, be subrogated—

(I) to any rights or remedies to which the grantee was entitled on account of the loss against the solicitor or any other person or against the estate of such solicitor or other person,

(II) to any rights or remedies to which the solicitor or his clerk or servant was entitled on account of the loss against any other person or against the estate of such other person,

(III) to all other rights and remedies (if any) of the grantee or such solicitor, clerk or servant in respect of the loss,

(ii) the grantee or his representative shall have no right under bankruptcy or other legal proceedings or otherwise to receive any sum out of the assets of the solicitor, clerk or servant in respect of the loss until the Society has been reimbursed the full amount of the grant.

(b) In paragraph (a) of this subsection, references to the grantee or the solicitor, clerk or servant include, in the event of his death, insolvency or other disability, references to his personal representative or any other person having authority to administer his estate.

(9) No grant shall be made unless notice of the loss is received by the Society—

(a) in the prescribed manner, and

(b) within the prescribed period after the loss comes to the knowledge of the loser.

(10) The Society, for the purposes of inquiry into any matters which may affect the making or refusal of a grant, may take evidence on oath, and the administration of such oath is hereby authorised.

(11) (a) A grant may, at the discretion of the Society, be paid either in one sum or in such instalments as the Society may determine.

(b) The Society, if they are of opinion that the financial stability of the Fund so requires, may postpone payment of any grant payable in one sum or payment of any instalment of a grant.

Contributions to the Compensation Fund by solicitors.

22.—(1) In this section “the Fund” means the Compensation Fund.

(2) Before a practising certificate is issued to a solicitor in respect of the practice year ending on the 5th day of January, 1962, or any subsequent practice year, he shall pay to the Society such annual contribution to the Fund as may be appropriate in accordance with the subsequent subsections of this section and the registrar may withhold the issue of the certificate until the payment is made.

(3) Subject to subsection (4) of this section, the annual contribution to the Fund payable by a solicitor under subsection (2) of this section shall be—

(a) in case the practising certificate in respect of which it is paid is issued to him within the period of three years beginning on the day of his admission—five pounds, and

(b) in any other case—twenty pounds.

(4) (a) At any time in any practice year, being—

(i) the practice year next following that at the end of which, for the first time, the total amount standing to the credit of the Fund (including the value of all investments forming part of the Fund but after deducting all outstanding liabilities) is more than £25,000, or

(ii) any subsequent practice year,

the Society may, if they think fit, determine that every solicitor taking out a practising certificate in respect of the next following practice year (not being a certificate issued to him within the period of three years beginning on the day of his admission) shall pay to the Society, as the annual contribution payable under subsection (2) of this section in the case of that year, such amount greater or less than twenty pounds as the Society may fix.

(b) In exercising the powers conferred by the foregoing paragraph, the Society shall have regard to the principle of maintaining the total amount standing to the credit of the Fund (including the value of all investments forming part of the Fund but after deducting all outstanding liabilities) at £25,000.

Arrangements with the Incorporated Law Society of Northern Ireland.

23.—(1) In this section—

“the corresponding society” means the Incorporated Law Society of Northern Ireland,

“corresponding certificate” means a certificate issued by the corresponding society and corresponding to a practising certificate,

“corresponding practitioners” means persons holding corresponding certificates.

(2) Where a scheme operated by the corresponding society requires corresponding practitioners controlled by that society to contribute to any fund or insurance policy, or to take out any insurance policy, for the compensation or indemnification of clients for or against losses due to defalcations of such practitioners or their clerks or servants, the Society may make arrangements and agreements with the corresponding society in regard to persons who are entitled both to take out practising certificates and to take out corresponding certificates, and any such arrangement or agreement may provide—

(a) for the payment by each such person of one combined annual contribution and the manner in which the combined contribution is to be applied for the purposes of the Compensation Fund and any fund or insurance policy maintained for the purposes of the said scheme,

(b) for the manner in which claims in respect of defalcations by any such person, or his clerk or servant, shall be treated and the extent, if any, to which those claims shall be paid by the Society and the corresponding society respectively,

(c) for any consequential or incidental matters.

Regulations for purposes of Part III.

24.—Regulations made with the concurrence of the President of the High Court may—

(a) provide for procedure (other than court procedure) to be followed in giving effect to the provisions of this Part of this Act and the Second and Third Schedules to this Act,

(b) make provisions ancillary or supplemental to the provisions of this Part of this Act and the Second and Third Schedules to this Act,

(c) make provisions giving effect to any arrangement or agreement pursuant to section 23 of this Act or ancillary or supplemental thereto.

PART IV

Miscellaneous

Transfer to the President of the High Court of certain functions of the Chief Justice under the Principal Act, and rules of court in relation to the exercise of those functions.

25.—(1) The functions of the Chief Justice under any of the provisions (other than subsection (3) of section 14) of the Principal Act are hereby transferred to the President of the High Court, and references in those provisions to the Chief Justice shall be construed accordingly.

(2) (a) The Superior Courts Rules Committee may make rules of court for the purposes of the hearing by the President of the High Court of applications and appeals under the Principal Act, as amended by subsection (1) of this section, and generally as to procedure in relation to those matters.

(b) An order made on any application or appeal to the President of the High Court under the Principal Act, as amended by subsection (1) of this section, may contain such provisions as to costs as the President of the High Court considers proper.

Amendment of section 49 of the Principal Act.

26.—The following paragraphs shall be substituted for paragraph (l) of subsection (1) of section 49 of the Principal Act:

“(l) having failed to comply with an order of the High Court,

(m) having failed to comply with regulations made under section 66 or 71 of this Act.”

Amendment of section 73 of the Principal Act.

27.—The following subsections shall be added to section 73 of the Principal Act:

“(6) A member of a committee under this section may resign his office by letter sent by registered post to the Council and his resignation shall take effect on the date on which the letter is delivered.

(7) The Council may remove a member of a committee under this section, may fill a vacancy therein and may increase or reduce the number of persons thereon.

(8) A committee under this section may act notwithstanding one or more than one vacancy in their membership.

(9) A member of a committee under this section, who was a member of the Council at the date of his appointment, may act on the committee notwithstanding the fact that he has ceased to be a member of the Council and, for the purposes of paragraph (a) or (b) (where relevant) of subsection (3) of this section, he shall be regarded as a member of the Council.”

Amendment of the Sixth Schedule to the Principal Act.

28.—In paragraph 8 of the Sixth Schedule to the Principal Act, the reference to section 21 (repealed by this Act) of the Principal Act shall be construed as a reference to section 17 of this Act.

Penalty for false evidence, etc.

29.—Any person who, upon examination on oath authorised under this Act or the Principal Act, or in any affidavit in or about any matter arising under this Act or the Principal Act, wilfully and corruptly gives false evidence or wilfully and corruptly swears anything which is false, being convicted thereof, shall be liable to the penalties for wilful and corrupt perjury.

Service of documents.

30.—Where any document is required or authorised by or under the Principal Act or this Act or any regulations made thereunder to be served on any person, the following provisions shall apply in relation to the service of that document—

(a) it may be served—

(i) by delivering it to that person, or

(ii) by sending it by registered post in an envelope addressed to that person at his last known place of business or residence in the State or, if he is a solicitor, at the last address appearing in the register of practising solicitors,

(b) where that person is absent from the State or his whereabouts is unknown and cannot be ascertained by reasonable inquiries, or where the notice or document, having been sent by registered post in the manner specified in subparagraph (ii) of paragraph (a) of this subsection, has been returned undelivered, the High Court may make such order for substituted or other service, or for the substitution for service of notice, by advertisement or otherwise, as may seem just.

Provisions as to accountants' certificates.

31.—(1) Every solicitor to whom the provisions of the Solicitors' Accounts Regulations apply shall, once in each practice year, unless he satisfies the Society that owing to the circumstances of his case it is unnecessary to do so, deliver to the registrar a certificate signed by an accountant (in this section referred to as an accountant's certificate) stating—

(a) that in compliance with this section and any regulations made thereunder the accountant has examined the books, accounts and documents of the solicitor or his firm for such accounting period as may be specified in the certificate,

(b) whether or not the accountant is satisfied, from his examination of the books, accounts and documents produced to him and from the information and explanations given to him, that during the said accounting period the solicitor or his firm has complied with the Solicitors' Accounts Regulations, and

(c) if the accountant is not satisfied as aforesaid, the matters in respect of which he is not so satisfied.

(2) The Society shall, with the concurrence of the President of the High Court, make regulations (in this section referred to as the Accountant's Certificate Regulations) prescribing—

(a) the qualifications to be held by an accountant by whom an accountant's certificate may be given,

(b) the nature and extent of the examination to be made by the accountant of the books and accounts of a solicitor or his firm and of any other relevant documents with a view to the signing of a certificate to be delivered by the solicitor under this section,

(c) the form of the accountant's certificate, and

(d) the evidence, if any, which shall satisfy the Society that the delivery of an accountant's certificate is unnecessary and the cases in which such evidence is or is not required.

(3) The Accountant's Certificate Regulations may include provision—

(a) permitting in such special circumstances as may be defined in the regulations a different accounting period from that specified in subsection (4) of this section, and

(b) regulating any matters of procedure or matters incidental, ancillary or supplemental to the provisions of this section.

(4) Subject to the Accountant's Certificate Regulations, the accounting period for the purposes of an accountant's certificate shall—

(a) begin at the expiry of the last preceding accounting period for which an accountant's certificate has been delivered,

(b) cover not less than twelve months,

(c) terminate not more than twelve months, or such less period as the Accountant's Certificate Regulations may prescribe, before the date of the delivery of the certificate to the registrar, and

(d) where possible, consistently with the foregoing paragraphs, correspond to a period or consecutive periods for which the accounts of the solicitor or his firm are ordinarily made up.

(5) A certificate under the hand of the registrar shall, until the contrary is proved, be evidence that a solicitor has or, as the case may be, has not delivered to the registrar an accountant's certificate or supplied any evidence required under this section or the Accountant's Certificate Regulations.

(6) Before a practising certificate is issued to a solicitor, he shall comply with the provisions of this section and the Accountant's Certificate Regulations and the registrar may withhold the issue of the practising certificate until the solicitor delivers to him an accountant's certificate in respect of the last preceding accounting period stating that the solicitor has during that period complied with the Solicitors' Accounts Regulations.

Provisions in relation to certain accounts kept by a solicitor at a bank.

32.—(1) Where—

(a) a solicitor is adjudicated a bankrupt or enters into a composition with his creditors or a deed of arrangement for the benefit of his creditors or dies insolvent, and

(b) the sum at the credit of the client account kept by the solicitor at a bank in accordance with regulations made under section 66 of the Principal Act, or, where two or more such accounts are kept by the solicitor, the total of the sums at the credit of the said accounts, is less than the total of the sums received by the solicitor in the course of his practice on behalf of his clients and remaining due by him to them,

then, notwithstanding any rule of law to the contrary, the sum at the credit of the said client account, or where the solicitor has kept two or more client accounts the total of the sums at the credit of those accounts, shall be divisible proportionately amongst the clients of the solicitor according to the respective sums received by the solicitor in the course of his practice on behalf of his clients and remaining due by him to them.

(2) For the purposes of this section no account shall be taken—

(a) of any account at a bank kept by the solicitor in his own name for a specified client,

(b) of sums received by the solicitor in the course of his practice on behalf of that client and remaining due by him to the client so far as represented by the sum in the bank account in the name of the solicitor for the client,

(c) of any account at a bank kept by the solicitor in his own name for moneys of any trust of which the sole trustee is the solicitor or the trustees are the solicitor with a partner, clerk or servant of his or with more than one of such persons, or

(d) of sums received by the solicitor in the course of his practice on behalf of that trust and remaining due by him to the trust so far as represented by the sum in the bank account in the name of the solicitor for the trust.

(3) Where the Official Assignee in Bankruptcy is appointed a trustee by the High Court under section 25 of the Trustee Act, 1893, in respect of any account or accounts kept by a solicitor at a bank in accordance with regulations made under section 68 of the Principal Act, there shall be payable in the Bankruptcy Office such court fees as are payable on a realisation account of the Official Assignee in a bankruptcy matter.

(4) For the purposes of this section any reference to an account at a bank shall include a reference to a deposit receipt at a bank.

Additional extraordinary members of the Council.

33.—(1) In this section—

“the Charter” means the Royal Charter dated the 5th day of April, 1852, whereby the Incorporated Law Society of Ireland was, by the name of “the Incorporated Society of Attorneys and Solicitors of Ireland”, incorporated;

“the Supplemental Charter” means the Royal Charter dated the 14th day of December, 1888, whereby the terms of the Charter were amended and extended.

(2) Notwithstanding anything contained in the Supplemental Charter, the Council may appoint as an additional extraordinary member of the Council any solicitor holding at the time of his appointment the office of President or member of the Council of the Dublin Solicitors' Bar Association.

(3) The number of additional extraordinary members shall not at any time be more than three.

(4) Every additional extraordinary member shall hold office for the period for which ordinary members of the Council, holding office at the time at which such additional extraordinary member is appointed, hold office.

(5) Additional extraordinary members shall have the same powers and duties during their terms of office as are given by the Charter and the Supplemental Charter to ordinary members of the Council, except that no extraordinary additional member shall be eligible to be President or Vice-President of the Council.

FIRST SCHEDULE

Provisions of the Principal Act Repealed

Section 5 (1).

Part I

Provisions Repealed Absolutely

Part II

Provisions Repealed with Saving

Section 5 (2).

SECOND SCHEDULE

Provisions having Effect for the Purposes of Sections 8 (2) (a) and 19 (5) (a) of this Act

Sections 8 (2) (b) and 19 (5) (b).

The following provisions shall have effect for the purposes of the following provisions of this Act, namely, paragraph (a) of subsection (2) of section 8 and paragraph (a) of subsection (5) of section 19—

(a) the Society, on receipt of an application for the delivery of documents from a person claiming to be entitled to the possession or custody thereof, may either—

(i) investigate the claim of such person to the possession or custody of the documents, or

(ii) require such person to nominate a solicitor to take delivery of the documents on his behalf,

(b) the Society shall not be bound to investigate the claim of any person who applies for delivery of documents in the possession of the Society or to schedule or list such documents save at the expense of such person, and payment of such sum as the Society may require as a deposit in respect of the costs and expenses of the investigation, scheduling or listing shall be a condition precedent to the undertaking of the investigation or to the delivery of such documents to such person by the Society,

(c) the Society or the person making a deposit as aforesaid may, after the claim has been investigated, require the costs and expenses to which the deposit relates to be taxed by a Taxing Master of the High Court (subject to appeal to the High Court), and the amount found due on such taxation after allowing all just credits shall be a simple contract debt due by such person to the Society or by the Society to such person (as the case may be) and recoverable in any court of competent jurisdiction,

(d) if the Society, in lieu of investigating the claim of the person applying for delivery of documents, require such person to nominate a solicitor to take delivery thereof on his behalf, the Society may retain the documents until the nomination is duly made,

(e) on the nomination of a solicitor to take delivery of documents, the Society may deliver the documents to the solicitor in exchange for—

(i) a receipt for the documents,

(ii) a statutory declaration by the solicitor that, to the best of his knowledge and belief, the person on whose nomination he is acting is lawfully entitled to possession of the documents and that no other person has any prior title thereto or claim thereon by way of mortgage, charge, lien or otherwise,

(iii) a statutory declaration by the person applying for delivery of the documents to the same effect, and

(iv) an undertaking by the solicitor to return the documents to the Society if it should be ascertained, while the documents are in his possession, that his client was not so entitled at the date of the declaration,

and such receipt, declarations and undertaking shall constitute a full discharge to the Society for the documents,

(f) no action or claim shall lie against the Society by any person claiming to be entitled to documents or to any property to which they relate, or to any mortgage, charge or lien in respect of such documents or property, for any loss or injury occasioned by the taking of possession of the documents by the Society, or by the delivery of the documents by the Society in accordance with this Schedule,

(g) the Society shall have a lien over documents, for all costs and expenses, if any, incurred by the Society in connection therewith (including, where appropriate, the costs and expenses of investigating the claim of any person claiming to be entitled thereto).

THIRD SCHEDULE

Provisions in Relation to the Compensation Fund

Section 21.

1. In this Schedule “the Fund” means the Compensation Fund.

2. The Society may invest moneys of the Fund in securities in which trustees are authorised by law to invest trust funds.

3. The Society may borrow for the Fund and, for the purpose of giving security with respect to such borrowing, may charge investments of the Fund.

4. The Society may insure against any risk relating to the Fund.

5. The following shall be paid into the Fund—

(a) all annual contributions and additional contributions paid to the Society under section 22 of this Act,

(b) all interest, dividends and other income and accretions of capital arising from the investment of the Fund or any part thereof,

(c) the proceeds of any realisation of any investments of the Fund,

(d) all moneys borrowed for the purposes of the Fund,

(e) all moneys received by the Society under any insurance effected by the Society under paragraph 4 of this Schedule,

(f) all penalties recovered by the Society under subsection (3) of section 8 of this Act,

(g) all moneys received by the Society under subsection (8) of section 21 of this Act,

(h) any other moneys which may belong to or accrue to the Fund or be received by the Society in respect thereof.

6. The following shall be paid out of the Fund—

(a) costs, charges and expenses incurred in maintaining, protecting, administering and applying the Fund,

(b) premiums on any insurance effected by the Society under paragraph 4 of this Schedule,

(c) repayments of moneys borrowed by the Society for the Fund and payments of interest on such moneys,

(d) payments of any grants which the Society may make under section 21 of this Act,

(e) costs, charges and expenses incurred by the Society under Part III of this Act or under this Schedule,

(f) costs, charges and expenses incurred by the Society in enforcing compliance with the Solicitors' Accounts Regulations and ascertaining whether those Regulations have been complied with,

(g) other sums properly payable out of the Fund.