Ceci n’est pas une publicité

There are a number of forms of State-funded legal aid in Ireland but, in summary, they will be of no use to you unless charged with a reasonably serious crime or involved in family law proceedings. The Legal Aid Board is not provided with anything close to the resources needed to actually provide a system of civil legal aid. The Free Legal Advice Centres (which are not part of the State-funded legal aid system) pointed out in a 2005 report on access to justice that:

[T]he Legal Aid Board employs 89 solicitors to deliver the entire civil legal aid scheme in 30 Law Centres throughout Ireland. This is less than the number employed in some large legal firms in Dublin. Small wonder then that waiting lists for civil legal aid in many centres have been extremely lengthy, leaving people without any legal assistance for as long as two years in some locations.

It is almost unheard of for legal aid to be obtained to initiate a civil, non-family law case. In addition, many people who would not qualify for legal aid would still find it prohibitively expensive to fund many cases (particularly those relating to serious personal injury or medical negligence). Conditional fee arrangements, commonly known as no foal/no fee, fill the void. Despite this fact, cases which usually involve such arrangements are often characterised as being somehow of questionable merit or a feature of ambulance chasing.

It is, presumably, fear of the profession being tarnished by such characterisation that led the Law Society to severely restrict how solicitors can advertise their services. I wrote about this topic before, mentioning that solicitors can’t advertise the fact that cases might be taken on a conditional fee basis. John McCarthy recently highlighted the ludicrous nature of the advertising restriction.

… I as a solicitor cannot take out an ad offering my services to you on a no win, no fee basis. It does not mean that I cannot provide services to you on this basis, because that is exactly what I do for clients every day. It does not mean that we cannot have a discussion about it, such as what we are doing here. It’s a pretty silly regulation when you think about it.

Such advertising is considered so serious that to engage in it is a matter of professional misconduct and can result in such a finding by the Solicitors’ Disciplinary Tribunal. Despite this, the Citizens Information Board tells citizens that many solicitors do take cases on a no foal/no fee basis. The Board, a statutory authority, essentially does what solicitors are prohibited from doing.

Fee arrangements are currently the subject of debate in the UK, where reform proposals are under consideration that could seriously impact on access to justice. Ironically, the current UK system of allowing success fees to be recovered from the losing side was designed to avoid footing a legal aid bill for personal injury claims: the same motivation explains why the Irish Citizens Information Board tells people that many solicitors work on a no foal/no fee basis.

Andrew Dismore suggests on the Guardian website that the UK reforms might only reduce legal costs by scaring potential claimants off.

They are playing on claimants’ worst fears: the threat of uncertain and unlimited legal bills. If the government wanted to reduce legal costs fairly, they should start by giving insurance companies incentives to accept liability and make sensible offers earlier, not by making it harder for the public to enforce their rights to get justice.

Lest people dismiss the access to justice argument on the basis that no foal/no fee arises only in relation to inflated claims arising out of minor soft-tissues injuries, Dismore gives a particularly good example of the type of injustice that could result from the reforms.

Martyn and Christine Harrison’s daughter Sophie was appallingly injured in a road accident in April 2009. She died two days later, when Martyn and Christine made the hardest decision anyone could make by agreeing that her life support machines should be switched off … The Harrisons borrowed the funeral expenses from Sophie’s grandparents because they couldn’t afford them. Their predicament became worse when they sought legal advice. They had problems finding a lawyer because Sophie had been 18 years and one month old when she died. Because she was over 18, her parents were not entitled to bereavement damages. No one wanted to help until they found a solicitor in Sittingbourne, who took their case on a conditional (“no- win-no-fee”) basis to try to reclaim the funeral costs and compensation for Sophie’s pain and suffering for the two days she survived after the accident. As a result of his efforts, Martyn and Christine recovered the funeral costs of £3,151 and £1,599 for Sophie’s pain and suffering.

Dismore’s charge that the UK Government’s proposals are unfair because they favour insurance companies have some resonance here. Solicitors have long complained that the Personal Injuries Assessment Board (now styling itself InjuriesBoard.ie, with television ads in recent years reminiscent of those seen in the UK on the part of claims agencies) is a creation of the insurance industry which favours that industry over citizens.

McGarr Solicitors wrote, before the election, that the new government should abolish PIAB on the grounds that it is unfair to injured parties. Unfortunately, as I regularly complain, the views of solicitors are routinely discounted on the basis that solicitors are a vested interest concerned only with securing huge fees and rarely with justice. It is essentially with that argument that the insurance industry convinced the Irish government to create a system of claim handling that attempted to remove solicitors from the equation and provide the industry with extra options when defending claims. The Board appears to see solicitors as providing an entirely unnecessary, luxury service and go to great lengths to give the impression that solicitors have no role in personal injury claims. Note their FAQs:

you may choose to engage an agent (e.g. a solicitor) who will submit the application on your behalf. You may, however, be liable for some or all of the cost in respect of engaging the agent.

John McCarthy outlines the reality.

The way the insurance industry works is that if you have suffered a genuine loss you have to bring a claim to recover it. However, it pays the insurance industry to drive down the cost of claims by portraying the very act of bringing a claim in an unfavourable light.

The average claimant who has suffered an injury will hope that his/her claim is a one-off and will enter the system with little or no experience of it. Their opposing party, an insurance company, defends claims on a daily basis and has teams of claims handlers and solicitors managing claims. Of course, many solicitors make some of their profits from personal injury claims. But the argument for involving solicitors in such claims is not about increasing profits, rather it is about equality of arms.

Endnote: here’s some great lawyer advertising from the US. But: is it appropriate? It would certainly raise a few questions under the Irish regulations.

About these ads

3 Responses to “Ceci n’est pas une publicité”


  1. 1 Simon McGarr 5 April 2011 at 19:00

    I’ve recently found that the respondents in PIAB applications are more likely to refusing to have matters assessed.

    The result is additional delay and cost to the applicant (injured party) with no benefit.

    At least one insurer indicated to me that the cost of assessment (which is currently €45 for the injured party but €850 for respondents) is making the process unattractive. It may be why the fees were dropped on the 1st Feb this year.

  2. 2 Rossa McMahon 6 April 2011 at 10:38

    Ironic, given that PIAB is a creature of the industry created to cut down on delay and cost.


  1. 1 InjuriesBoard.ie: “lawyer-free zone”, or competitor? « A Clatter of the Law Trackback on 11 May 2011 at 18:47
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