THE LAW IN CRISIS:The courts are creaking along, and the professions are in turmoil. In the first of a five-part series on the law in Ireland, we examine whether the legal-services Bill due this month can deliver real reform
THE JUDICIARY has spent several months embroiled in an unseemly controversy with the Government over pay; the main insurer for solicitors, the Solicitors Mutual Defence Fund, has collapsed under the weight of claims for malpractice and is being wound up; each day seems to bring new revelations about demands on the taxpayer for payments from barristers on top of already obscene levels of remuneration for tribunal work: is there any area of the legal system in which the public can have confidence?
Meanwhile, Minister for Justice Alan Shatter has promised a legal-services Bill by the end of this month, to comply with the EU-ECB-IMF requirement for reform of how legal services are delivered and regulated in Ireland. The memorandum of understanding between the troika and the Government made particular reference to a 2006 report from the Competition Authority on the two branches of the legal profession. Five years on, most of the recommendations it made to the government of the day have not been implemented.
Can the proposed legal-services Bill address the structural problems in our legal system and stem the growing cynicism about it? Can it ensure we have a legal system that guarantees access to justice for all citizens, irrespective of their wealth or position in society, and ensures that society and the economy function properly?
The crisis in the legal system is real, though much of the comment on it is uninformed. The volume of work going through the courts has grown exponentially in the past decade, driven by an explosion in law coming from the EU as well as our own legislature, and by growth in the economy and in the population.
Despite an increase in the number of judges, some courts are overcrowded and there are delays in certain areas. District courts, in particular, deal with an enormous volume of work: almost 500,000 criminal and 110,000 civil cases last year. About 30,000 of these related to family- and child-law matters, meaning that issues of fundamental importance to people’s lives were dealt with in courts already overburdened with work.
At Circuit Court level the problem is less acute, though family law in particular can suffer from delays as there are no dedicated family law courts outside Dublin and cases can be adjourned from one sitting to another that takes place weeks later.
In the High Court, delays can build up through poor management of cases, and where one party drags its feet in preparing the case and producing documents. Apart from the Commercial division of this court, there are few sanctions imposed for delaying tactics.
Some areas are backlogged, and waiting times vary from place to place. In Cork, for example, the waiting time for a personal-injury case from listing to first hearing is 24 months and in Limerick it is 20, but in most other High Court venues new cases are offered dates at the next sitting.
In the area of asylum judicial reviews, however, there is a backlog of 23 months because of the volume of cases, itself a result of the lack of confidence in the refugee appeals system.
The waiting time for rape and murder trials in the Central Criminal Court is 10 to 11 months. In the Supreme Court, the waiting time is 37 months for most cases, and can be even longer. Meanwhile, the Courts Service is struggling with decreased resources and an increased workload to ensure that there is no reduction in court time. The hours of court sittings and the lengths of court terms are now coming under scrutiny.
WHILE ANY DELAY is frustrating and stressful for litigants and witnesses, a different type of stress affects those working in the system. The collapse of the building industry, with the ensuing collapse in conveyancing, had a knock-on effect on solicitors. Property transactions are the bread and butter of most small solicitors’ firms, linked to family law and probate as well as conveyancing, and the collapse in the property market has led to pay cuts, reduced hours and unemployment. The number of unemployed solicitors, according to the Law Society, is 1,100 and is expected to rise as newly qualified solicitors come on the market later this year.
Commercial property transactions also made up a good portion of the work of the big firms, but the economic crisis has led to a growth in work in other areas, notably insolvency, the restructuring of the economy, and litigation.
So the crisis has not hit everyone equally; the London-based publication the Lawyer recently reported that the largest Irish solicitors’ firm, Arthur Cox, ranks 18th for revenue among lawyers’ firms in Europe (excluding the UK), with a turnover of €106 million and earnings per partner of €1.2 million.
It claimed that McCann Fitzgerald, Matheson Ormsby Prentice and AL Goodbody were in the top 30 and that the fifth of the “Big Five”, William Fry, was 47th, with a turnover of €58 million. However, the magazine acknowledges that these figures are a guess, and none of the firms reveals its revenue. But no one denies that they continue to thrive.
The Oireachtas Public Accounts Committee report last January suggested public bodies are the largest procurers of legal services in the State, with an estimated spend of up to €500 million. This puts the State in a very strong position to be proactive in tackling legal fees, but it has been remarkably reluctant to do so until recently.
High legal costs have been identified by the EU-ECB-IMF as among the issues the State needs to tackle through reform of the legal system. Its memorandum of understanding referred to the 2006 report of the Competition Authority. The general thrust of that report was that restrictive practices and limitations on competition were inflating prices artificially.
Some of its assumptions and conclusions are questionable, but it is striking that in the past five years there has been no meaningful debate on the report, largely due to the fact that the Government did not engage with it in any way.
Among its main recommendations were an independent legal-services commission with overall responsibility for regulating the legal profession and the market for legal services; abolition of the King’s Inns’ and the Law Society’s control of professional legal training; direct access to barristers for legal advice for members of the public; allowing barristers to form partnerships with each other and with other professionals; easier transfer between the two branches of the profession; a transparent system of setting fees for both branches of the profession; the ending of the solicitors’ lien, which prevents clients moving to another solicitor without paying the first; and the introduction of a profession of specialist conveyancers, to bring down the price and increase the quality of service in conveyancing.
The last recommendation is rather superfluous at the moment, as virtually no conveyancing is going on, and even towards the end of the boom there was intense competition for domestic conveyancing, with many solicitors offering bargain-basement prices.
It is also difficult to see how increasing the number of institutions providing legal training would help reduce legal costs, which are highest at the top end of the market. The market of newly-qualified solicitors and barristers is already flooded, with thousands unemployed or underemployed. The demand for places on the Law Society’s course has declined to such an extent that it has closed its law school in Cork.
Over the past few years there have been growing complaints that the King’s Inns has been producing an unsustainable number of barristers, so the number in the Law Library who are unable to make a living up to five years after qualifying has mushroomed.
Permitting other institutions to provide professional training for lawyers would break the monopoly exercised by the professions on this area, but it is difficult to see how it would reduce costs, given the oversupply of young lawyers.
However, many of the other proposals – transparency in the services provided and the fees charged; requiring solicitors to facilitate clients switching to another solicitor by releasing their files; allowing barristers offer advice to members of the public, form partnerships and represent employers in court; and tackling the practice of setting junior counsel’s fees at two-thirds of those of a senior (even though the Bar Council has abolished the rule) – are likely to feature in the legal-services Bill.
They could make the legal system more affordable and accessible. Or they could concentrate legal expertise in the hands of big firms and drive many of those who offer a service to the public out of the legal profession.
A litigant's story: A 'frustrating, expensive' system
"Seán", an unmarried father, was involved in a protracted case over custody of his son, involving more than 50 hearings. He found the legal system opaque, frustrating and very expensive.
"As an unmarried man I was always warned that as a man you do start lower down the scale: many judges still seem to think women can look after children but men cannot. I was told not to expect too much in terms of access et cetera.
"But the real problem was the lack of consistency throughout all aspects of family law. There are no written rules governing evidence, particularly in the lower courts. For a start, you never know what judge you are going to get. This is because it was felt that solicitors who attend court regularly get to know where particular judges stand on particular issues. Therefore they were seeking adjournments until judges who might be more disposed to their client's particular arguments were there to hear the case.
"Unfortunately, because judges are not assigned to such cases consistently, it leads to real inconsistencies as different judges dip in and out of cases and regularly have to rehear evidence that has been given before, leading to even more court time being consumed on individual cases. Some judges seem reluctant to become involved in family-law cases and are happy to defer cases for weeks, especially if they appear complex, so you have to keep paying for these court 'appearances'.
"Costs are a major issue: solicitors do not outline the costs; nor do barristers. Bills are often only very general, and bear no real resemblance to the time and effort involved.
"However, representing yourself is not a good idea. Judges do not really welcome lay litigants, as they feel they interfere with the workings of the court.
"When a case is difficult and one party breaks court orders, such as access orders, you have to go back to court to seek redress. Judges have no appreciation of the costs involved. These, I believe, are deterring factors for many people who in a lot of cases are forced to walk away from the situation.
"In the end, despite not being married, I was awarded joint custody, with the recommendation that if certain conditions were not met, full custody should transfer to me. This is what helped to break much of the logjam and was recommended by outside medical professionals drafted in at considerable financial cost.
"The whole experience taught me that court is not the right forum for family matters. I think there should be serious mediation with properly trained, specialist personnel involved in intervention. Court should be only a last resort, with cases heard by judges with a family-law-training background and a genuine interest in such cases."
"Seán" cannot be identified because of the in-camera rule
