Committee Reports > List of Committees > Seanad > 1959 > Select Committee on Statutory Instruments > Report No. 02 - Statutory Instruments [7]

APPENDIX II.

The Solicitors’ Accounts (Amendment) Regulations, 1958 (S.I. No. 193 of 1958).

1 Eanáir, 1959.

A Chara,

The Select Committee on Statutory Instruments has directed me to inform you that it has been considering the Solicitors’ Accounts (Amendment) Regulations, 1958 [S.I. No. 193 of 1958], with a view to determining whether the special attention of Seanad Éireann should be drawn to the instrument. Before coming to a decision on the matter the Committee wishes to afford your Society an opportunity of furnishing any observations it may wish to make on the following points.

The Committee notes that by article 6 of the instrument under reference a new regulation 14 is being inserted in the Solicitors’ Accounts Regulations, 1955, which contains a provision somewhat similar to one in the regulation it replaces, whereby the Council, before instituting an inspection of a solicitor’s accounts on a written complaint “may require the payment by the person lodging the complaint of a reasonable sum to be fixed by the Council to cover the costs and expenses of the inspection and of the solicitor against whom the complaint is made”. The Committee also observes that the regulation provides that “the Council may deal with any sum so paid in such manner as they think fit”. It is not clear to the Committee that the sections of the parent statute quoted in the citation of authority confer precise power on the Society to include a provision of this kind in the regulations.

The Committee also wishes to refer to the use of the phrase “every other power thereunto them enabling” in the citation of authority. In previous correspondence the Committee was informed that the use of this phrase in regulations made by the Society followed precedents established over a number of years. As the Committee is of the opinion, however, that the phrase tends to make the citation of authority valueless it would be glad to learn if there was any special need for its use in the present instance and whether it would be possible to avoid the use of this or similar phrases in drafting such instruments in the future.

Finally the Committee observes that clause 3 provides that the regulations shall be read together with the Solicitors’ Accounts Regulations, 1955 (S.I. No. 218 of 1955), the Solicitors’ Accounts Regulations, 1956 (S.I. No. 308 of 1956), and the Solicitors’ Accounts Regulations, 1957 (S.I. No. 252 of 1957) and “shall in or so far as they are inconsistent therewith alter and amend the same”. The necessity for the provision that these regulations be read together is quite clear to the Committee but the significance and purpose of the phrase “shall in or so far as they are inconsistent therewith alter and amend the same” are not. It is the view of the Committee that where a statutory instrument purports to effect an amendment of an earlier instrument the nature of the amendment should be clearly set out. It seems to the Committee that the purpose of the instrument under reference is to effect the amendments of the 1955 regulations which are set out in clauses 4 and 5 and that the phrase quoted may not be necessary. In any event the Committee would like to see the use of phrases of this kind avoided in the drafting of future instruments if this is possible.

The observations of your Society on the foregoing points would greatly assist the Select Committee in its deliberations.

Cléireach an Rogha-Choiste.

The Secretary,

Incorporated Law Society of Ireland,

Four Courts, Dublin.

24th March, 1959.

The Clerk,

Select Committee on Statutory Instruments,

Seanad Éireann,

Leinster House, Dublin.

Dear Sir,

Your letter dated January 1st has now been considered by the Council of this Society and they direct me to reply as follows to the several points raised.

The provisions of article 6 of the Solicitors Accounts (Amendment) Regulations, 1958, with respect to the payment by a person lodging a complaint of a reasonable sum to cover the costs and expenses of the inspection of a solicitor’s accounts and the disposal of such monies, are similar in terms to article 14 of the principal regulations. These regulations were made under the authority of section 66 (1) (d) and (e) of the statute. The Council are advised that the provisions with regard to payment and disposal of monies are ancillary and subsidiary to the objects of the section and that they are within the authority conferred by the statute. The English Solicitors Accounts Regulations made under a similar provision of the Solicitors Act, 1933 are in terms similar to the regulations made by this Society. All the regulations made by this Society under part VII of the Solicitors Act 1954 were made with the concurrence of the Chief Justice.

With regard to what have been called “blanket clauses” contained in the citation of authority and in clause 3 of the 1958 regulations the precedent followed was the rules made by the Superior Courts Rules Committee under the Courts of Justice Acts. The Council have consulted that Committee and have been inormed that the Superior Courts Rules Committee take the view that the clauses have the sanction of long usage not alone in regulation making but in a variety of legal instruments and are considered desirable having regard to the increase in legislation both direct and delegated. The Council of this Society take the view that as the Superior Courts Rules Committee is chiefly composed of Judges of the High Court who may from time to time be required to construe the Solicitors Accounts Regulations, it would be undesirable to depart from the precedents set by that committee.

ERIC PLUNKETT,