Legal costs challenged: Scale of fees are a barrier to justice

ANYONE who has gone through an acrimonious divorce, a complicated business-related court case, or God forbid, a case involving medical negligence where the defendants are not fighting with their own money, did not need the Troika to tell them that Ireland’s legal fees are among the most spectacularly prohibitive in the world or that they were a barrier to the proper conduct of public life. 

Justice is either for the very rich or those who can avail of free legal aid schemes. Going to court is not a course easily undertaken by most citizens as losing could be financially ruinous. Potential bills make the risk untenable.

In effect the cost of legal services denies a great number of citizens the protection of the courts hence the integrity and independence of our justice system, principles regularly trumpeted by the legal profession and the judiciary, are fatally undermined.

Of course the legal profession will challenge this assertion, publicly at least, but any objective assessment will come to obvious enough conclusions.

The conclusion of a long-running case in the High Court just last December heard by the President of the High Court, Mr Justice Nicholas Kearns, over a few feet of boundary hedge, illustrates this situation perfectly.

Though there were many elements involved, the fact that the Wicklow couple who lost their case, and had costs awarded against them, faced a bill estimated to be in the region of €500,000 shows how utterly bizarre legal costs are in Ireland.

Last week, in another intervention into the fantasy world of legal billing, Mr Justice Kearns warned his legal colleagues that “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”.

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

A senior counsel in the case claimed a €125,000 brief fee because it took him 100 hours to read the brief, plus daily refresher fees of €3,500. The Taxing Master did not accept the case was terribly complex or novel.

That this barrister later accepted an “appropriate” brief fee of €65,000 but did not seek a review of that new figure suggests a flexibility in legal invoicing uncommon elsewhere in business.

Mr Justice Kearns and the Taxing Master should make more interventions like this one because no one will be surprised that, despite the promises made around reforms contained in the Legal Services Regulation Bill, the legal profession has more or less weathered the storm and any prospect of the kind of deep reform proposed by solicitor and former Justice Minister Alan Shatter now seems remote enough.

This is an area where the Government promised to challenge the status quo but that their efforts have been so very ineffective is terribly disappointing and shows how very powerful self-serving professions really are.

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