Legal services Bill should do more to confront costs

Wed, Mar 21, 2012, 00:00

ANALYSIS:THE OIREACHTAS Committee on Justice, Defence and Women’s Rights is considering the Legal Services Regulation Bill today. It will hear from bodies with an interest in legal services, including the Competition Authority, authors of the report on legal services referred to by the troika, the Law Society, the Bar Council and the Free Legal Advice Centres.

This is a juggernaut of a Bill of more than 100 pages, containing 123 sections covering an enormous range of matters relating to legal services. Some proposals (for example, those relating to giving advance notice on costs) are unexceptionable, and have been widely welcomed. Others would be frankly bizarre to have enshrined in legislation – for example, that providing for the client to decide on what lawyer should lead his or her legal team in court. Many may not be necessary at all.

The most controversial aspects of the Bill so far have been the proposal that the Legal Services Regulatory Authority and the proposed legal practitioners disciplinary tribunal should have a majority of their members nominated by the Minister for Justice, and the proposal regarding the extent of the powers and responsibilities given to these bodies, and, through them, to the Minister. There is also widespread disquiet among lawyers that the Bill proposes multidisciplinary partnerships when this model has been rejected in many other jurisdictions.

However, there is a danger that the discussion will get bogged down in speculating as to whether or not specific proposals in the Bill will increase or reduce legal costs, or how the proposed legal services regulatory authority and disciplinary tribunal should be constituted.

The memorandum of understanding between Ireland and the troika which contained a commitment to implement the recommendations of the Competition Authority deplored the high cost of legal services in Ireland. It followed a number of other reports in doing so.

The reasons for high legal costs in Ireland go beyond the structures and regulation of the legal professions.

The whole legal system is in urgent need of an overhaul. This comes at a time when cutbacks are the order of the day, but cutting across the board will do little to improve the functioning of a dysfunctional system, and could make it worse. It will be necessary to spend money in some areas in order to save it in others. This will require a fundamental examination of how the existing system works – or does not work – and measures to fix it.

One of the most shocking statistics to emerge from the legal system recently is that more money (€17 million) was spent on Garda overtime in 2010 where gardaí sat around waiting for cases that did not get heard than was spent by the Director of Public Prosecutions (DPP) on briefing counsel to prosecute on behalf of the State. They cost €15 million that year.

To this wasted money can be added the cost of prison officers accompanying prisoners to cases that may not go ahead; the cost of lawyers on both sides turning up to get adjournments and fresh dates; and, in some cases, the costs of witnesses.

That is just in criminal cases. In civil cases, the list of cases “for mention” on any one day runs well into double figures. There were more than 60 cases on one High Court list recently. All of them would have had lawyers present in court to obtain dates for trial, or for further “mention” to check on progress. Every day in court costs the client lawyers’ fees, or the State pays instead if it is involved, as it is in about 50 per cent of all cases.

Often the two sides in a dispute will turn up in court with their lawyers and witnesses, only to find the case is not going ahead because the judge is tied up in another case, or one of the lawyers is unavailable, or the previous case is taking longer than anticipated. Seeking an adjournment can be a tactic employed by one side to put pressure on the other to settle. Not only does this cost a great deal of money – it adds immeasurably to the stress and frustration of those going to court.

Running the list of any court is the responsibility of the judge, who is independent in the exercise of his judicial functions. Managing cases to make sure lawyers carry out the necessary preparatory work and meet deadlines is a special skill. It also requires time and resources. However, most judges do not have secretaries, let alone anyone with the qualifications and skill to help them manage cases.

Technology that could help, such as video-conferencing, is underutilised by other State agencies such as the Garda and Prison Service.

Providing administrative support to judges to help them in active case management and the use of appropriate technology to file documents in court and, in some instances, hear witnesses, would cost money. But the €17 million wasted on Garda overtime for cases that do not go on, not to mention other costs associated with such inefficiency, would go a long way towards paying for such support.

In addition, the State could actively promote alternatives to court. Terms and sittings could be looked at to ensure resources are fully utilised. Courtrooms that are not used all the time could be put at the disposal of hearings such as those of the Employment Appeals Tribunal.

The cost of legal services does need to be tackled. It is difficult to understand how one State agency, the office of the DPP, can have a standard brief fee of €7,919 for a senior counsel to take on a murder trial, followed by €1,736 a day in refresher fees, when a civil case involving the State, where neither a person’s liberty nor the safety of the public is at stake, can cost another State agency many multiples of that. If the DPP can set standard fees, why can other State agencies not do likewise?

None of these issues are addressed in the Bill under discussion. There is no doubt it will be passed in some form. Whatever form it finally takes, it will not solve many of the problems with our legal system.


Carol Coulter is Legal Affairs Editor