Ireland remains an expensive place to litigate and the price of legal services is going up rather than down
The prospect of having to pay astronomical legal fees has long been an obstacle for regular people seeking justice in Ireland’s superior courts. Win, and the other side usually has to pay your lawyers’ fees. Lose, and you might have to sell your home or worse. It was refreshing then to hear the new Chief Justice, Frank Clarke, tackle the issue in his first major speech since assuming office.
“It has increasingly become the case that many types of litigation are moving beyond the resources of all but a few,” he told a gathering to mark the start of the new legal year, which began this month.
Lawyers are notoriously defensive about the fees they charge, as is the judiciary about its pay.
So, Mr Justice Clarke’s comments were a rare acknowledgement that in our system of justice, the dice appear to be loaded in favour of the wealthy.
A general lack of information about civil legal fees has inhibited debate on the issue.
The legal industry in Ireland is big business, generating €2.3bn annually in revenue and supporting 18,000 jobs, but information on private fees is closely guarded.
During the financial crisis, a series of cuts were made to legal fees. These largely related to work in the criminal courts and civil work involving State bodies. In contrast, fees charges by lawyers for private work in the civil courts have been on the rise and have largely escaped scrutiny as they are more difficult to quantify.
While public bodies have to disclose what they pay lawyers, private entities and individual do not. Law firms and barristers are under no obligation to publicly reveal their earnings and there is little in the way of voluntary disclosure.
It is no wonder then that analysts at The Lawyer, a UK-based specialist legal publication, have describe Ireland as the “least transparent jurisdiction in Europe” from a data collection perspective.
While it is encouraging the Chief Justice put the high cost of accessing justice front and centre, actual solutions may not be so easy to find.
The fledgling Legal Services Regulatory Authority (LSRA) is expected to bring forward measures to increase competition and drive down costs but it is still only in the process of being set up.
One solution advocated by many lawyers is to provide significantly more taxpayer funding to the Legal Aid Board. The board administers a civil legal aid scheme under which, in theory, people of limited means can get support from the State to vindicate their rights in court. In reality, this system is straining under the weight of demand, with long waiting times for consultations.
Many who could reasonably be classed as poor do not meet the qualifying criteria and those that do still have to make a contribution towards their legal costs. These rules gave rise to a shocking situation recently where a domestic abuse victim whose husband threatened to kill her had to represent herself in a family law case because she could not afford the necessary €130 contribution.
However, despite considerable lobbying on issue, the Government has shown little appetite to significantly increase civil legal aid funding.
The judiciary, for its part, is focussed on reviewing procedures, many of which are seen as outdated.
Lawyers aren’t the only ones being paid when someone goes to court and parties involved in cases had to spend €44m last year in fees just to lodge civil documents, fees the Courts Service can ill-afford to do without. But if there are to be changes, they won’t happen any time soon as a review of the area, being led by High Court President Peter Kelly, is set to take three years.
It is also doubtful whether it will have any impact on fees charged by lawyers.
During the bail-out years, the Troika repeatedly criticised the high cost of legal services in Ireland.
In response, barristers in the criminal courts had their fees slashed, and bodies like the State Claims Agency sought better value for money by inviting tenders for legal services.
However, Ireland remains an expensive place to litigate and the price of legal services is going up rather than down, according to the National Competitiveness Council (NCC). Its 2017 Cost of Doing Business report found legal service prices were 8.3pc higher in the third quarter of 2016 compared to the same quarter in 2012.
Both the Law Society and the Bar of Ireland, which respectively represent and regulate solicitors and barristers, place a health warning on the NCC figures, due to the small sample size used to calculate them. However, the World Bank is also of the view that Ireland is a costly place to litigate, finding it to be the sixth most expensive place in the OECD to enforce a contract.
Law Society director general Ken Murphy said the body was pressing for the revision of court rules to minimise the burden on businesses and individuals. He said increased spending on infrastructure, such as online services, was also needed to speed up the administration of justice.
Bar of Ireland chief executive Ciara Murphy said the ability of courts to cope with caseloads was closely related to the number of judges available. A 2014 study found Ireland had the lowest number of judges in Europe per head of population.
But what about the legal fees charged by practitioners themselves?
A senior barrister prosecuting or defending a murder case is paid a “brief fee” of €7,127. This is a fee covering preparation of a case and the first day of a trial.
For every subsequent day the barrister is paid a “refresher fee” of €1,562. Solicitors receive the same brief fee and a refresher fee of €750 per day. Murder trial brief fees for junior barristers are €4,752.
Lower rates apply in the Circuit Court, but they are still generous. Senior counsel get a brief fee of €1,716 and refresher fees of €858 per day. The brief fee for junior counsel and solicitors is €1,144 and