Sunday 25 September 2011

Access to justice is as important as costs

THE LAW IN CRISIS: THERE IS an assumption in the memorandum of understanding between Ireland and the EU-ECB-IMF that the implementation of the recommendations of the Competition Authority and the Legal Costs Working Group will reduce legal costs. But will they and are they enough?

While there is widespread acceptance of the idea that legal costs in Ireland are too high, there is remarkably little information on what these costs actually are and reliable data on legal costs is extremely difficult to obtain.

One of the few sources of information, apart from the figures for State work published in relation to tribunals and civil and criminal legal aid, comes from judgments of the Taxing Master, who decides on appropriate costs when these have to be paid by the losing party in a contested High Court case.

Two recent rulings give useful illustrations. In July 2010 Taxing Master Charles Moran reduced by 82 per cent the fees sought for taking a successful case against the Personal Injuries Assessment Board (PIAB). They included brief fees (for preparing the case) of €110,000 each for two senior counsel and €75,000 each for two junior counsel in the High Court. He reduced them to €25,000 for the seniors, €16,670 for one junior and zero for the other, as he concluded he had not done work to justify the fee. Mr Moran retired earlier this year.

The following July the remaining Taxing Master, James Flynn, heard a claim for fees in a case taken by the Usk Residents Association against An Bord Pleanála and the Attorney General. The respondents challenged the costs claimed after they were awarded by the court to the plaintiffs in October 2009, which included a brief fee of €60,000 for the senior counsel and €40,000 for the junior counsel, with €4,000 a day in court for the senior and €2,666.66 a day for the junior. Mr Flynn allowed these fees, while reducing the solicitor’s instruction fee of €325,000 to €225,000.

This compares with a brief fee of €7,919 in the criminal legal aid scheme for a senior counsel taking on a murder case in the Central Criminal Court, with €1,736 a day in refresher fees.

So while judgments of the Taxing Master do give an insight into legal fees, they are not representative of fees as a whole.

First, they relate only to cases in the High Court, which make up only a small proportion of the business going through the courts. The Circuit Court, where most barristers appear, hears twice as many cases as the High Court, and barristers also sometimes appear in the District Court. Fees in these courts are only a fraction of those in the High Court.

Secondly, the costs going to taxation are “party and party” costs, where the loser pays, and many of these are cases taken on a “no foal, no fee” basis.

This is often the only way an individual who has suffered an injury, or whose rights have been infringed by a State body or a large organisation, can obtain justice, and the “no foal, no fee” system is a cornerstone of our current system of justice. But it means that the person buying the legal service will never have to pay for it. It also means that solicitors and barristers who take “no foal, no fee” cases – and most do, outside the big commercial firms – have to make them commercially viable over the long term. Thus for every case lost, with all that work going unpaid, a way has to be found to make it up, which will drive up the cost of the cases that are won, which are then artificially inflated. These fees in turn become the norm in other big cases.

This system has grown up in the absence of a comprehensive civil legal aid scheme, and if it were abolished overnight it would deprive great swathes of the population of access to justice. But it is a very unsatisfactory way of meeting unmet legal need, and one that has had very undesirable economic consequences.

Therefore any discussion of how to deal with legal costs must examine not only whether certain practices are anti-competitive, but the issue of access to justice for everyone, along with how the courts themselves actually work. It may well be that the reduction of legal costs will require an investment in other areas of the legal system, which could pay big dividends in the long run.

Reducing adjournments

The courts need to be examined to ensure they are working to maximum efficiency, reducing the need for adjournments. This means looking at the hours they work and providing for active case management so that lawyers meet deadlines in producing documents and preparing the case for hearing. That is likely to involve administrative assistance for judges, which is totally lacking at the moment.

It also means the State actively promoting alternatives to court, through mediation and other forms of alternative dispute resolution, which are very rarely used at present. A report from the Law Reform Commission on this awaits implementation.

Resources need to be assessed and used to maximum efficiency. For example, many courthouses around the country are only used certain weeks of the year. More sittings would help clear backlogs and when the court is not sitting they could be used for other hearings, like those of the Employment Appeals Tribunal, thus reducing its need to rent rooms.

Changing how barristers work

Various Government departments and bodies, the courts and the professions all need to engage with each other in finding ways to improve the system. Some sacred cows need to be questioned. Do we need two grades of barrister at all, when the main discernible difference between a senior counsel and a very experienced junior seems to be the ability of the former to charge higher fees? The “two-thirds” rule on senior and junior fees may have been abolished by the Bar Council, but the practice has not, as evidenced by the Taxing Master’s ruling above.

Are two counsel even necessary in most cases? The DPP now routinely briefs one, sometimes just a senior, yet District judges, in certifying for legal aid, often provide for a senior and a junior in the same case.

Proper tendering

The State can play a major role in reducing legal fees and ensuring work is more fairly distributed by insisting that all work for State agencies is tendered and panels established by open competition.

It could also impose a cap on earnings from the State by individual barristers of, say, €200,000 annually, in order to spread the work, thus reaching out beyond the golden circle at the top of the bar.

All this could save money for the State and also provide for a more efficient use of resources, which could help provide an improved legal system for everyone, which is needed.

Clearing legal aid backlogs

The State’s free legal scheme is overwhelmed and in practice mainly provides advice and representation to those involved in family law proceedings. It also runs the Refugee Legal Service. Since the recession it has faced ever increasing demands, and the waiting time for a first appointment with a solicitor can now be as much as 11 months.

There are therefore many gaps to be filled. Some are filled by the community law centres, which operate outside the State-provided systems in areas of high need, like north Dublin. The legal rights organisation, Flac, provides a service representing those whose cases raise important points of principle, as well as campaigning on legal reform. Its offspring, the Public Interest Law Alliance is attempting to interest big firms in participating in pro bono work in a systematic way, but this project is in its infancy.

Despite the dedication of all those working in these areas, they cannot ensure that people with few resources can have access to the courts when they suffer a wrong or need a dispute resolved. Many of these go to private solicitors who take their cases on a “no foal, no fee” basis. One cost-effective way of improving access to justice would be to remove the means test for legal aid, substituting a scale of fees tailored to people’s ability to pay, and contracting the additional work out to private solicitors for a set fee.

The proposals of the Legal Costs Working Group will lead to more transparency in legal costs, as it requires time-recording as the basis for fees. Transparency is urgently necessary and will reduce costs, but time-recording is a blunt instrument, and can lead to the tyranny of the need for a solicitor or a barrister to clock up “billable hours”.

It will also almost certainly lead to a reduction in the number of lawyers providing work on a pro bono (with no expectation of payment), or a “no foal, no fee”, basis. If a significant number of people then fall between the gaps it would not only contribute further to the alienation of people who are already facing hostility and exclusion from State services, it could expose us to condemnation from the European Court of Human Rights, whose ruling against Ireland provided the impetus for civil legal aid in the first place.

A deadline for reform has been imposed by the troika. This should be turned to advantage and seized as an opportunity for a holistic review of the provision of legal services to all our citizens.

Young lawyers turning to Free Legal Advice Centres for work experience

WITH YOUNG law graduates finding it difficult to embark on traditional career paths, some are turning to non-governmental agencies such as the Free Legal Advice Centres for their start.

An independent human rights organisation, Flac campaigns on a range of legal issues and also offers some basic free legal services to the public.

Current interns with the organisation, Colin Lenihan (25) from Knocknagashel, Co Kerry, and Amy McDermott (23) from Templemore, Co Tipperary, are happy to be gaining experience while helping people in need.

“One of my friends was working here and told me about it,” said Amy, who graduated with a law degree from Trinity College Dublin in 2010 before spending last year in London, where she studied international business.

“I thought that Flac was very important in what they did. I wanted to get involved and basically learn as much as I could,” she said.

Amy, like Colin, is on a one-year, partly paid internship where, after starting in July, she has been managing the telephone lines in one of the centres. Although this is not the role she may have envisaged when she began studying law in 2006, she said she had “learned loads” on account of being in a working legal office every day.

Her position in Flac has also helped her avoid emigrating for work, as many from her class in college have done, she said.

For Colin, the internship is the first step on a career path within the non-governmental organisation (NGO) sector.

After qualifying with a law degree from NUI Galway, Colin went on to do a one-year master’s in law in University College Cork.

“I like working in the NGO sector. With Flac I’m involved in policy and the lobbying side of the organisation and I enjoy it.”

The areas of work in which he has been involved are campaigns for public interest issues and co-ordinating with other NGOs that needs legal help.

However, he is under no illusions about how difficult it will be to get further work, even along a non-traditional career pathway for lawyers.

Applying for positions has been “tough enough”, he said. “There are only a certain amount of jobs out there and with the amount of unemployed solicitors and barristers looking for work, it’s going to be difficult competing with them.

“Hopefully I’ll get work. I think I will be able to. It is getting more and more difficult to grind out a career but there are still jobs out there.”

Irish Times

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