Fees must reflect the financial era: Judge

The President of the High Court has said “comfortable assumptions” that legal fees should continue as before, “without the slightest regard for privations experienced by citizens”, including other professionals, does not serve “the interests of justice”.

Fees must reflect the financial era: Judge

Mr Justice Nicholas Kearns made the remarks in a significant decision on fees claimed in a medical negligence case. He upheld a Taxing Master’s decision to cut to €276,00 the €485,000 claimed by Augustus Cullen Law, Wicklow, for a solicitors instruction fee based on a rate of €375 an hour. The defence had offered to pay a €250,000 instructions fee.

The judge noted that senior counsel in the case, Denis McCullough, had claimed a €125,000 brief fee on the grounds that the novelty and complexity of the case in the case meant it took him 100 hours to read the brief, plus daily refresher fees of €3,500.

The Taxing Master did not accept the case, concerning a child with cerebral palsy whose mother’s Rhesus incompatibility disease was allegedly not properly managed prior to birth, was that complex or novel. Mr McCullough later accepted an “appropriate” brief fee of €65,000 and no review of that was sought, the judge said.

In appealing the reduced instruction fee, the solicitors made several arguments, including that the Taxing Master paid inadequate regard to cases where larger fees were measured or agreed even after the economic downturn, including two cases in 2011 involving instruction fees of €400,000 and €380,000, and a third case involving a €455,000 fee.

Mr Justice Kearns said rates which may be payable in times of financial and economic stability are “totally unsuited for circumstances where a major financial and economic catastrophe has affected the national finances”.

He personally believed the Bar Council and Law Society are “acutely aware” the best interests of the profession are served by sharing in the same way as other professionals in “some realistic and proprtionate readjustment” to expectations which might have been the norm before financial difficulties began.

The solicitors in this case had, since the Taxing Master’s ruling, accepted lower fees than they sought here and he did not accept they were “driven” to do so as a result of the ruling.

He suggested the Taxing Master might annually seek the views of an economist about pay cuts in various professions to assist as guidelines for appropriate legal costs. That could also lead to increased fees if economic or financial changes warranted it.

Augustus Cullen Law had represented Isabelle Sheehan, Millbrook, Mallow, Co Cork, suing through her mother, in medical negligence proceedings issued in November 2009 against an obstetrician, Dr David Corr, carrying on a private practise at the Bon Secours Maternity Hospital, Cork.

On claims that the Taxing Master failed to properly address the time devoted to the case, the judge noted there was no agreement between Ms Sheehan and her solicitors to charge fees based on time expended or on appropriate hourly rates.

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