Judge criticises Law Society for specifying sum to be claimed for backdated practising certificates

About this case:

• Judgment:
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The Judge had previously made a series of orders on consent pursuant to section 48(3) of the Solicitors Act 1954 as amended by section 55(2)(b) of the Solicitors (Amendment) Act 1994 that the practising certificates issued by the respondent Law Society to Fachtna O’Driscoll, Richael O’Driscoll, Michael Barron and Kim Walley.

Both sides made submissions with regards to the questions of costs.

The Judge noted that the solicitors who made the application for the orders were by their own admission in default in relation to their obligations to apply for a practising certificate in timeous fashion.

It was noted that this happens from time to time, although in excess of 99% of solicitors do apply for their certificates on time.

When such an application does become necessary, two statutory provisions fall to be considered in relation to costs.

The first is s.48 of the Solicitors Act 1954, as amended, which identifies a sum of money which can be fixed by the court as a condition of the concessionary order being made.

The second is s.25 of the Solicitors Amendment Act 1960, as amended. That provides for a jurisdiction being exercised by the President of the High Court in respect of costs. It provides that an order made on any application or appeal to the President of the High Court under the principal Act as amended, may contain such provisions as to costs as the President considers proper.

The Judge read s.25 as concerning itself with legal costs and s.48 of the 1954 Act, as amended, as dealing with administrative costs which may be identified by the President of the High Court and require to be paid.

The Judge found that during the time of Mr Justice Johnson’s presidency of the High Court he fixed costs to be paid by an applicant at €350, in respect of each practising certificate which was sought to be backdated.

This practice continued through Mr Justice Kearns’ presidency, and was mentioned in various practice notes issued by the Law Scoeity.

However, it appeared for the first time as part of the Regulations made under the Solicitors Acts in 2014 in S. I. No. 561 of 2014.

The applicants complained that there is no entitlement to specify that sum of €350 in the statutory instrument because there is no authority to do so. It elevates what has become the practice of the court into, in effect, a demand by the Law Society that that sum has to be discharged.

The Judge agreed, noting that: “The €350 was merely a sum fixed by the court which in practice has continued but it is not something that is written in stone. The court could, if it wished, measure the costs at a sum either in excess of or less than that in any particular case.”

Therefore “it would be better when the Law Society is contemplating the next set of regulations to merely indicate that it will be entitled to seek its costs without specifying a sum”.

However, the Judge also noted that: “I am not at all sure that this objection is going to be of general benefit to solicitors who are in default because this application has now focussed and brought the attention of the Law Society to the fact that it is under the relevant statutory provisions, entitled to apply for two sums of money. First are the costs provided for under the 1960 Act and s.25 in particular, and second the sum by reference to s.48(3), as amended.”

The entitlement of the Law Society to seek a sum was found to be clearly established, but a fixed sum was found to potentially give rise to disproportionate sums being payable to the Law Society.

The Judge then considered the facts of the current case, determining that: “it would be disproportionate in this case to measure costs of €350 per solicitor per practising certificate. The work of ascertaining whether there is a basis for objecting, and the actual appearance in court is largely the same for each solicitor and practising certificate. I think that the appropriate order to make here is that there should be an entitlement to recover €350 in respect of each solicitor but not in respect of each practising certificate for each year.”

The Judge concluded: “I am sure the Law Society will take into account the observations that I have made concerning the inadvisability of specifying a specific sum in the statutory instrument. It is, I think, sufficient if it indicates that it will seek costs but without specifying a sum because that transmutes what has been a sensible practice of the court into a statutory demand. It could well be that in an individual case a sum either greater or less than that would be fixed by the court. The jurisdiction to do so is that of the court and not the Law Society.”