A Clatter of the Law

People often gripe about the free legal aid system but, to my mind, it’s part of the price we pay for the Republic and its Constitution, which

seek[s] to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured [and] true social order attained.

Some people don’t like that the system exists at all. Others dislike the cost. A small number of lawyers make a lot of money from the legal aid budget, but they tend to work exclusively in criminal defence. And they work hard: criminal defence is far less profitable than many other areas of law, including areas that consume far greater amounts of taxpayer funding.

An email has been circulated among criminal defence lawyers proposing a Criminal Law Practitioners Union (CLPU) to lobby and negotiate with the Government on the system of criminal free legal aid. The email says that, when the next round of cuts are implemented, the fees paid for criminal legal aid will have been cut by up to 50% of their 2007 level.

Cuts of this magnitude will put a large number of [criminal legal aid lawyers] out of practice and seriously undermine the fair and proper administration of justice in criminal law. Cuts of this magnitude are unfair and unjust and impose a greater burden on us than on any other ‘public service sector’.

Two points are involved here: the public interest argument and the private interest argument. The latter doesn’t interest me and will not find much sympathy with the public. But this issue is not about incomes: lawyers are also professionals who want to represent their clients’ interests, not just in court but before they reach it.

For example: it has long been the practice of the Department of Justice to pay defence counsel the same fee as the prosecution. Equality of arms is an important principle, but the Department recently abolished it for criminal trials and imposed a 10% cut on fees paid to defence counsel (ie. 10% less than what is paid to prosecution counsel by the Director of Public Prosecutions). [Edit: I agree with this letter-writer to the Irish Times. Cuts should be equal.]

Quite obviously the only reason that we are very much the ‘poor relations’ in the courts system is because our clients are voiceless and so are we. (My emphasis)

The email seeks support for the CLPU to negotiate terms and conditions of a contract with the Department of Justice for legally aided criminal defence. I would expect that the CLPU will run into competition law issues but the email states that nothing will be done to distort competition.

The email suggests a picket on the courts as a final measure to protest further cuts. This will inevitably be the focus of headlines and the move would be reported by the media as a strike to protect the income of lawyers, rather than a strike to protect the interests of justice. A serious public interest issue is at stake and is unlikely to receive the quality of discussion and debate regularly achieved in the UK.

(As I finalised this blog post, this article published on the Evening Herald website. The headline provides a taste of the tone of coverage to come.)

The timeframe for action is tight, and apparently over 100 lawyers have already indicated an intention to join the CLPU (around 30 of whom are solicitors).

In the meantime, it remains unclear what has become of the last government’s mad proposal to move responsibility for the criminal legal aid system to the Legal Aid Board. However, Brendan Howlin’s Ideas Campaign-style search for solutions has apparently generated the suggestion that inexperienced law graduates “be deployed” to the legal aid system.

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.

The current issue of The Parchment includes a brief but interesting interview with Michael Finucane, well-known criminal law and human rights solicitor and son of the late Belfast solicitor Pat Finucane. [See page 30 of printed magazine, page 32 of online version.]

He sums up the challenge facing solicitors well in two sentences.

We are a sector being squeezed like no other but for whom there is absolutely no sympathy because of how we’re perceived. What we need to achieve long term is to remind people we are composed of more than partners for property developers; we should take pride in our profession and make it worthy of respect and trust.

Legal costs in Ireland are high, yet the Minister for Justice could, overnight, activate an existing change to the law which could have a significant impact on such costs.

The legal professions are saddled with most of the blame for the high level of costs, but some of the problem is structural: as a rule of thumb, higher courts involve more work and higher costs. This is particularly the case for cases taken in the High Court. So: why not take a case in a lower court?

Dublin’s Four Courts, nicknamed the Four Goldmines by the Phoenix Magazine, gets its name from the four types of court that historically sit* there. Each court has different jurisdiction: its territory, so to speak. [* TJ McIntyre reminds me that the Four Courts gets its name, of course, from the courts that used to sit there (Chancery, King's Bench, Exchequer and Commons Pleas) rather than the current varities]. The four courts of the Irish justice system are:

• The District Court is the lowest court, with jurisdiction to deal with relatively minor, non-jury, criminal trials and civil cases up to a value of €6,349. There are 23 districts in the State (West Limerick is in District 13). The Small Claims Court is part of the District Court.
• The Circuit Court deals with appeals from the District Court, more serious criminal cases and civil cases up to a value of €38,092. There are eight circuits in the State (Limerick is in the South Western Circuit).
• The High Court is one of the two constitutional courts (see article 34 here) and has jurisdiction to hear all civil cases of whatever value. The Central Criminal Court is, in fact, the High Court when hearing criminal cases and it deals with the most serious criminal offences (there are a number of other special purpose courts). It may sit as a divisional court with three judges, as it recently did in Dellway Investment Limited & Ors v. NAMA & Ors (a.k.a. McKillen v. NAMA).
• The Supreme Court is the second constitutional court and is the court of final appeal. Cases generally cannot be started in the Supreme Court and can arrive there only on appeal.

The Four Courts/Goldmines in quieter times

Anyone who has been involved in High Court litigation will know that it is generally an intensive and expensive undertaking. Yet, if you have a civil case seeking damages over €38,092, you have no option but to start your case there (except in the rare circumstances where both sides agree to the case being heard in the District Court with unlimited jurisdiction). The hierarchy of courts involves a hierarchy of fees, and some parties may find that their potential claim falls into the jurisdiction of the Circuit Court which may carry a risk of unsustainable fees. It is not uncommon to find claims of €10,000 or more taken in the District Court in the knowledge that only €6,349 can be recovered.

Given the very low thresholds at which cases must be initiated in the Circuit and High Courts, why not just increase the jurisdiction of the District and Circuit Courts? In fact, the Government did this in the Courts and Court Officers Act 2002, 8 years ago. Unfortunately, it is not unknown for recent governments to enact legislation but never commence it (meaning it is not operative) and sections 13 and 14 of the 2002 Act are a case in point. They provide that:

• The jurisdiction of the District Court be increased to €20,000.
• The jurisdiction of the Circuit Court be increased to €100,000.

Why have these provisions been left to wither on the vine? According to Murdoch’s Dictionary of Irish Law:

As of 1st September 2004, the Minister had decided to await the experience of the recently established Personal Injuries Assessment Board and to assess the proposed increase in the light of that experience. The final report of the Motor Insurance Advisory Board recommended that the current limit not be increased, other than to express the figure in a convenient euro amount.

The MIAB’s position is that increasing the jurisdiction of the lower courts leads to inflation of personal injuries awards. Given the existence of the now well-established Injuries Board, however, why should jurisdictional increases be held up because of insurance industry concerns about a single type of case?

Making the change would have inevitable consequences for all three lower courts, and while the High Court might have its workload reduced the Circuit and District Courts would certainly require additional resources. However, it would appear to be a change that is long overdue and, given the IMF’s interest in legal costs (see p.14 of the EU/IMF Programme of Financial Support for Ireland),* one which that organisation could easily direct the Minister to make.

* Eoin O’Dell‘s article in yesterday’s Sunday Business Post outlines reforms of the Irish legal professions proposed some years ago and which are now “required” to be implemented by the IMF/EU programme. If these are implemented in the relatively short timeframe of the programme, they would represent something of a Big Bang for the professions.

The Law Society of Ireland, the hybrid regulator, representative body and educator of solicitors, has not forgotten the legions of unemployed young solicitors. They have appointed a career development adviser, who provides the following advice: get out of law and do something else.

An article in the current Law Society Gazette (p. 10) confirms young solicitors need not despair and suggests alternative career options available:

• taoiseach;
• Bord Gáis director;
• multi-millionaire;
• solicitor (?);
• Prime Time presenter;
• comedian.

Apparently, solicitors can break into these careers if they can just escape their “blinkered mentality”.

An un-blinkered young solicitor, unlikely to be our next taoiseach.

Further suggestions are provided in a box headed “Alternative areas to think about” which lists a diverse range of possibilities, some of which seem non-existent and most of which are another word for “solicitor”.

The final suggestion, “commission of inquiry”, is interesting. While I thought the Society might be eager to dispel any public perception that tribunals are gravy trains for lawyers, one hopes the forthcoming information evenings will advise on how best to encourage the Government to establish some more such inquiries.