Solicitors (Amendment) Act, 1994
|
Compensation for loss due to dishonesty of solicitor or clerk or servant of solicitor (section 21 of Act of 1960). |
29.—The Act of 1960 is hereby amended by the substitution of the following section for section 21: | |
“Compensation for loss due to dishonesty of solicitor or clerk or servant of solicitor. | ||
21.—(1) In this section and in section 22 of this Act— | ||
‘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) (a) Where it is proved to the satisfaction of the Society that any client of a solicitor has sustained loss in consequence of dishonesty on the part of that solicitor or any clerk or servant of that solicitor arising from that solicitor's practice as a solicitor within the jurisdiction of the State, then, subject to the provisions of this section, the Society shall make a grant to that client out of the Fund. | ||
(b) Subject to the provisions of this section, the amount of the grant referred to in paragraph (a) of this subsection shall be such as represents in the opinion of the Society reimbursement of the amount or value of the loss sustained with, where appropriate in the opinion of the Society, interest (at the rate per annum standing specified for the time being in section 26 of the Debtors (Ireland) Act, 1840 , as varied from time to time pursuant to section 20 of the Courts Act, 1981 ) on the whole or any part of the amount or value of such loss in respect of the whole or any part of the period between the date when such loss was sustained and the date of the making of a grant, but excluding damages or any other form of loss consequent on the client of a solicitor being deprived of the amount or value of the loss sustained. | ||
(5) Notwithstanding the foregoing provisions of this section, if it is shown to the satisfaction of the Society that a client of a solicitor has entrusted moneys to that solicitor, with express instructions to apply or to invest those moneys in a specified manner which would (if so applied or invested) have yielded a return higher than that which would have accrued had the moneys been applied or invested at the rate of interest standing specified for the time being in section 26 of the Debtors (Ireland) Act, 1840, as varied from time to time pursuant to section 20 of the Courts Act, 1981 , and the solicitor has dishonestly misappropriated such moneys, the amount granted under subsection (4) of this section shall, in lieu of interest at the rate mentioned in that subsection, include an amount representing such higher return in respect of the whole or any part of the period, as appropriate, between the date when such moneys were so entrusted to that solicitor and the date of the making of a grant. | ||
(6) The amount of a grant made to any client of a solicitor (including any body or bodies corporate beneficially owned or controlled by that client) under subsection (4) of this section shall not exceed £350,000 in respect of matters arising from the relationship between such client and that solicitor. | ||
(7) The Minister may, from time to time, vary by regulations the amount specified in subsection (6) of this section having regard to changes in the value of money generally in the State since the said amount was first specified. | ||
(8) Notwithstanding the amount specified in subsection (6) of this section (as may from time to time be varied pursuant to subsection (7) of this section), a grant of a larger amount may, at the discretion of the Society, be made to a client of a solicitor, where the Society are of opinion that the particular circumstances giving rise to the making of a grant under subsection (4) of this section are such that none of the provisions of subsection (9) of this section apply and that grave hardship would be caused if such grant of a larger amount was not made (whether in one sum or in such instalments as the Society, in their discretion, determine). | ||
(9) Notwithstanding the provisions of subsection (4) of this section, 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 was sustained, | ||
(b) in a case in which the Society are of opinion that there has been dishonesty or negligence on the part of the client of the solicitor or of any person for whom that client is responsible which has contributed to the loss in question, | ||
(c) in a case in which the Society are of opinion that the client of the solicitor has assisted (whether by act or omission) in the commission of misconduct by the solicitor, | ||
(d) in a case in which the Society are of opinion that the loss sustained has arisen otherwise than as a result of the dishonest misappropriation or dishonest conversion of moneys, securities or other property of a client of a solicitor entrusted by the client, or by any other person for or on behalf of the client, to that solicitor or to any clerk or servant of that solicitor, | ||
(e) in a case in which the Society are of opinion that, having regard to all the circumstances, the loss sustained by the client of the solicitor did not arise from, or was not directly related to, the provision of services of a legal nature to the client 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. | ||
(10) 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 practice, been suspended from practice, or had his practising certificate suspended. | ||
(11) No grant may be made in respect of a loss made good otherwise. | ||
(12) (a) On the making of any grant to any client of a solicitor 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 that client 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, and | ||
(III) to all other rights and remedies (if any) of that client or such solicitor, clerk or servant in respect of the loss; and | ||
(ii) the client of the solicitor 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 client of a solicitor or to the solicitor, clerk or servant include, in the event of his or their death, insolvency or other disability, references to his or their personal representative or any other person having authority to administer his or their estate or estates. | ||
(13) 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 client of the solicitor concerned. | ||
(14) 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. | ||
(15) (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 or any instalment of any grant. | ||
(16) Where the Society are of opinion that— | ||
(i) there has been no dishonesty or negligence on the part of a solicitor, and | ||
(ii) that solicitor is vicariously liable to any one or more of his or his firm's clients who has or have sustained loss in consequence of dishonesty on the part of any partner of that solicitor in circumstances where, but for such vicarious liability of that solicitor, a grant would have been made under subsection (4) of this section to such client or clients, | ||
a grant may, nonetheless, at the discretion of the Society, be made under subsection (4) of this section to any such client or clients of an amount determined by the Society, subject to the provisions of this section. | ||
(17) For the purposes of this section, a solicitor or a body corporate beneficially owned or controlled by that solicitor shall not be a client of a solicitor's practice in which he is the sole practitioner or in which he is a partner. | ||
(18) The Society may apply, by regulations, to the extent provided in such regulations, the provisions of this section to a solicitor's practice outside the jurisdiction of the State.”. |