The Government's project to bring transparency to lawyers' fees has moved from proposal to implementation. An implementation group is currently at work (and is hopefully bearing in mind some suggestions this writer made recently by letter). Some reforms of legal costs are needed, but not at the expense of damaging a key part of our legal system, writes Edmund Honohan
It is considered likely that new transparency in market prices will bring competition, but there has been no debate on other long-term considerations. There is a clear public interest in cutting the cost of litigation, but long-term damage could unwittingly be done by cutting to the quick.
Significant changes in court practices and procedure in civil (not criminal) litigation are moving our model of dispute resolution farther away from the adversarial and towards the investigative (or tribunal) model. We have more mediation, we have the Personal Injuries Assessment Board.
The skills of the Bar are in that "something extra" which make the barrister an advocate rather than just a lawyer. He comes into his own only in the adversarial trial. The question must be, is society going to have much need for courtroom advocates in the future, other than for jury trials?
In much earlier models of dispute resolution, popular vote determined which party's version of the events was more believable and also what the legal consequences ought to be. Litigants were well advised to have an advocate to speak on their behalf, because oratory could sway the outcome.
There then emerged a role for elders of the community to act as a judge and a need to identify clearer principles of law of general applicability. Codification of the law was the route opted for in mainland Europe, but precedent-based common law has been the tradition for English-speaking peoples.
Precedent is certain, but also organic and dynamic: the adversarial trial allows the trial judge, urged on by the advocates, to develop the established principle in order to secure justice for the litigants. Certainty of law was an objective, but justice was paramount, and the common law developed to meet changing circumstances.
Barristers are not just lawyers: they are advocates for justice. There is no question but that even until relatively recently, judges were almost wholly reliant on the barrister in court to, in effect, research and advise the court as to the applicable law and to rationalise a just outcome.
Before the photocopier and the database search engine, trial was a viva voce set piece and the outcome susceptible to distortion by the unexpected, by mistake or by ignorance. Even the judge was acknowledged to be capable of error: hence the need for appeal courts. In any adversarial trial, the advocate's role is central. His management of the trial will shape the issues and the conclusions.
You might be tempted to say, that was then and this is now. Judges are professionals now and do their own research, surely? The trial is not some amateur dramatic production where everything will be all right on the night provided the advocates are well prepared.
Now, oratory is wasted on the bench and the law is clear. The outcome is produced by finding the appropriate precedent: no creative input is called for. The old risk of hit or miss is reduced by pre-trial paper chase and the amateur or purely personal misdirection on the law are rare. What need, then, for an advocate?
Curiously, the interest group which most vigorously resists this reformatting of court dynamics is that of litigants. They want their day in court and, even if lawyers and legislators agreed that justice could be secured without all that theatricality, the public apparently thinks otherwise. And what the public thinks is, in the final analysis, the absolute test for the constitutionally critical public confidence in their own system of justice.
Perhaps equally importantly, pre-trial mechanisms to ensure that absolutely all cards - relevant or not - on the table face up are even now causing delays in litigation (and a cost mountain) which itself destroys confidence in access to justice. Litigants want a speedy trial, whatever the shortcomings: the barrister will weather those. So we should hesitate before we improve legal procedures perhaps to the point where there is no longer any need for advocacy skills to deal with the unexpected turn of events.
Also to be avoided is the truly depressing trend towards over-pleading (both as to allegations of fact and as to applicable case law) which some lawyers now think is the way to win a case. It is not.
Here is a hint: it's about justice, not precedent. (Law schools, please note.) Alarmingly, more and more such lawyers may be appointed to the bench. Lawyers' instincts as to what constitutes justice may not be totally reliable. They may know the law; they may not spot the injustice.
Worse, when they are called on by the Oireachtas, as increasingly happens in modern legislation, to be the final arbiter of what is "reasonable" in the detail of some public policy, their previous incarnation as lawyers may leave them perplexed and ill-equipped. Transparent justice still demands the involvement of the skilled advocate to condense and highlight.
As against that, the bad news for the Bar is that the public considers them to be indecently highly paid, possibly because entry to the profession is restricted where it counts: at the level where a reasonable and consistent income is achieved. In fact, few survive the early years and this reduced supply to the upper levels shifts the supply/demand intersection and produces the high fees for senior counsel so often criticised in the media.
The greatest of care must be taken that the setting of the new standard fees does not further restrict real competition at the senior level by imperilling the survival of junior barristers.
In my view, litigation costs are unbalanced: solicitors and senior counsel are paid too much and juniors not enough. Juniors also have to face facts: there are too many of them and competition is fierce.
Objectively, it is impossible to value the services of a barrister, but in attempting to fix prices, the services of the advocate to the general objective of justice should not be overlooked. How much are the services of a backbench TD worth to the taxpayer? No way of measuring that, but clearly they play a crucial role in the democratic society. Of course, in this example it is the general body of taxpayers who pick up the bill, not any individual. A closer parallel to legal fees would be the structure of fixed taxi fares, which should be set at a level that is profitable enough for the individual taxi driver to ensure that enough taxis are available to meet the public need.
These comments are necessarily over-simplified but should stand up to cross-examination at greater length. I stand over this conclusion: if a just society needs its advocates and judges in the future who are not just lawyers, the fees structure for junior barristers must be geared to that end.
Edmund Honohan SC is master of the High Court