Solving problems in the legal system

Carol-2Ireland’s legal system is dysfunctional, inefficient and costly. Irish Times Legal Affairs Editor Carol Coulter discusses her potential solutions with Meadhbh Monahan.

A “fundamental examination of how the existing system works and very focused measures to try and fix it,” is vital for reform in Carol Coulter’s view.

Legal costs and inefficient court proceedings (such as allowing gardaí to be paid over-time for waiting in court for a case that doesn’t go ahead) must be dealt with “aggressively” by the Government, the journalist claims. In addition, access to justice for those who can’t afford it could be accounted for in the Legal Services Regulation Bill.

“There’s widespread acceptance that legal costs in Ireland are too high but there is remarkably little information on what those costs are,” Coulter states. Addressing an eolas justice seminar, she pointed to a Public Accounts Committee estimate (in January 2011) that the State spends €500 million on legal costs annually.

Legal costs

The Chief State Solicitor’s Office accounts show that, in 2011, seven barristers, representing the State, earned more than the Taoiseach (i.e. €200,000), with one barrister earning €408,868. The total counsel claims for 2011 amounted to just over €10 million.

In 2010, 10 barristers were paid over €200,000. Two of those earned more than €400,000 and total fees were over €12 million.

A total of €16 million was spent by the office in 2009. Twenty barristers were earning more than the Taoiseach’s current salary and four were on more than €500,000.

Coulter conceded that these figures include VAT, the running of an office, hiring secretaries and paying professional indemnity insurance. However, she noted that “their overheads are substantially less than those of solicitors so it is safe to assume that more than half the sums earned are real earnings.”

As the figures for private solicitor firms working on behalf of the State are not available, Coulter looks to recent judgements made by the Taxing Master for an indication of the costs involved.

A reduction of 82 per cent was ordered by the then Taxing Master in 2010 on the fees sought for taking a successful case against the Personal Injuries Assessment Board. The brief fees were €110,000 each for two senior counsel and €75,000 each for two juniors. The Taxing Master reduced the brief fees to €25,000 each for the seniors, €16,670 for one junior and zero for the second.

In 2011 An Bord Pleanála and the Attorney General challenged costs which included a brief fee of €65,000 for the senior counsel and €40,000 for the junior counsel.

In contrast, a senior counsel prosecuting a murder trial is likely to earn a €8,600 brief fee and €1,800 daily fee. “The explanation given for this discrepancy is that the State operates in the legal market place,” Coulter says. However, she is not convinced.

As such a large consumer of legal services, the Government should “look for a substantial reduction” on legal costs, Coulter suggests. A cap on an individual’s earnings from the State of €200,000 a year, combined with competitive tendering would be a start.

“By competitively tendering, [the Government] could reach outside the golden circle at the top of the Bar and a handful of solicitors’ firms,” Coulter tells eolas.

Court reform

Poor active case management has resulted in long lists of cases for mention. This incurs costs such as lawyers for both sides turning up to seek adjournments, or arriving to deal with the case only to find that the judge is tied up with another case.

“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,” Coulter points out. It also requires time and resources. A secretary with the qualifications and skill to help judges manage cases would help, as would using technology, such as video-conferencing. While innovation in the court room would cost money, it would reduce wasteful spending in the long run, she contends.

Coulter told delegates: “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 on briefing counsel to prosecute on behalf of the State. They cost €15 million that year.”

She estimates that eliminating adjournments, except in true emergencies, could reduce costs by €20 million.

“Judges have been very reluctant to tackle this problem for cultural reasons,” Coulter tells eolas.

While there are “lots of positives” such as transparency in the Legal Services Regulation Bill, Coulter believes “there’s so much in the Bill that could have unintended consequences particularly around the changes in legal structure.”

She is concerned that “there are no provisions in the Bill to ensure that access to justice is maintained.” The current ad-hoc arrangements result in people who can’t afford to pay for representation using the ‘no phone, no fee’ system. Solicitors take the case on the basis that they will get their costs if they win, but will not charge the client if they lose, though the client will be liable for the fees of the other side. For a firm to be commercially viable, it must price winning cases to subsidise those that are lost, thereby inflating costs.

“There’s no doubt in my mind that the different pricing that will be brought in by the Legal Services Bill will actually reduce the amount of no phone, no fee work because it will make it more difficult to subsidise for their work,” Coulter comments.

Her advice to government is to “look at what the problems are and ask: ‘How can we make the system provide a better service to citizens?’”

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