Legal Services Regulation Bill

The Department of Justice has published a press release indicating that the Legal Services Regulation Bill is to be published within the next few days, having received the approval of cabinet.

Regulatory reform in respect of legal services is a key commitment in theEU/IMF Programme for Financial Support for Ireland. A blueprint for reform, indicated in the financial support programme, was provided by the Competition Authority’s 2006 report on the legal professions. The detailed indications of the content of the Bill in the press release suggest the government has rejected some aspects of the Competition Authority report. Notably the proposal that a new regulator would oversee professional self-regulation (as occurs in England and Wales through the Legal Services Board established in 2009) appears to have given way to a new regulatory body which will have direct responsibility for oversight of the professions.

In addition to the Legal Services Regulatory Authority, two further new public bodies are to be established: an Office of the Legal Costs Adjudicator (who will take on regulatory functions over costs currently administered by the Taxing Master) and a Legal Professions Disciplinary Tribunal which will take over responsibility for addressing complaints of professional misconduct, currently administered by the Bar Council and the Law Society of Ireland.

The central rationale stated for the reforms is the promotion of a more competitive environment for provision of legal services, and this is reflected in proposals to allocate tasks concerning entry to the profession and the education of lawyers to the new Legal Services Regulatory Authority so as to liberalize certain aspects of professional education and end the situation under which the profession is both provider and regulator of legal education.

The establishment of three distinct agencies may be controversial and raises the question whether the variety of functions could be undertaken by a single agency. The press release indicates that the industry will be levied to pay for the new regulatory bodies (as occurs with a number of existing regulatory bodies such as the Broadcasting Authority of Ireland). Comments in the press suggest that the professions are concerned that the power of the minister to appoint members of the Legal Services Regulatory Authority will compromise the professional independence of lawyers. It is actually not unusual to find ministers exercising such powers of appointment (appointments to the Legal Services Board in England and Wales are made by a government minister, the Lord Chancellor). Clearly board members must be appointed by someone and ministers are accountable to parliament for their actions. Even the most independent of actors within the legal system, judges, are appointed by ministers (though this is not uncontroversial).

Certain of the more controversial aspects of potential reform, such as fusing the barristers’ and solicitors’ professions and introducing multi-disciplinary partnerships have been assigned to the new Regulatory Authority for research and consideration rather than be provided for directly in the Bill, according to the press release.

Author: Colin Scott

Colin Scott is Principal, UCD College of Social Sciences and Law and Professor of EU Regulation and Governance at UCD. He is a Co-Editor of Legal Studies (Wiley-Blackwell).

37 thoughts on “Legal Services Regulation Bill”

  1. Overly complex. Legal services oversight/council; end dual career; state exams to plead/practice; direct client access; allow ads; fling out medievalistic jargon and costumed; professional judiciary career track.
    Too radical ?

  2. In relation to the bar

    Changing the name of the taxing master is not a reform in and of itself – though the detail here could be significant

    Getting rid of gowns/wigs is not really an issue of importance

    The disciplinary committee thing will end up reducing the number of lawyers on the panel – but there is already a lay majority

    Fusing the professions postponed –

    All in all much ado about nothing – (save teh taxing master thing whcih may end up being significant)

    The education thing is not really a major issue – won’t meaningfully reduce the start up costs of becoming a barrister as most of those costs have nothing to do with fees

  3. That press release was poorly written and garbled. It contradicts some of the press reports. We’ll just have to wait for the text to really consider it

  4. @Colin Scott

    This looks the usual ‘dog’s dinner’ that emerges from the closed circle of policy-making with the professions somehow having been ‘squared’ behind closed doors and a draft bill issued in almost final form as a fait accompli.

    As usual, there has been no public debate on the policy objectives and options. For example, have you, as a recognised and competent academic on these matters – or any of your peers in this area, had an opportunity to present or contest policy and regulatory options in this area in an open forum? (If you’ve been sounded out ‘off the record’ – which seems to be the usual approach – I obviously don’t expect an answer.)

    And, despite the declared intent to cull the quangos, the knee-jerk resonse to any problem or issue is to create another quango – in fact, three in this instance. What a load of cobblers.

    One would think that, in these straitened times, every effort would be made to streamline public administration, make it more efficient and fit-for-purpose and ensure it generates sustainable benefits for citizens and the economy. But instead we get this. And given the manoeuvrings that are going on behind the scenes on the semi-states, competition law and other professions this looks like being just a sampler for the administrative chaos that is to come – which will damage the interests of citizens and the economy.

    Rather than adding to the herd of special purpose quangos the primary focus in these areas should be on empowering and resourcing statutory advocacy and representation of the collective interests of final consumers of these services. The Competition Authority should be empowered to deal with matters that fall within its remit and the Courts should deal with everything else. The professions should be entitled to have their own bodies to apply some measure of self-regulation and to represent the professions before the Competition Authority and the Courts. An effective consumer advocacy body could initiate investigations by, and hearings before, the Competition Authority.

    But instead we get the multiplication of quangos and the institutional asphyxiation of the under-empowered and under-resourced NCA by folding it into this proposed Competition and Consumer Authority.

    There will, of course, be ‘debate’ about this proposal on the blogosphere, in the media and in the Oireachtas before the current bill is whipped through with, possibly, some cosmetic amendments. But it won’t change anything. One has to ask ‘cui bono?’.

  5. The Troika asked for this? They have it. Nobody told them it was going to be any more than a token gesture.

    Remind me, which profession drafted this bill?

  6. @PR Guy,

    Spot on.

    It’s sad, but entirely predictable, at a time when the need for, and opportunity to, pursue some meaningful institutional and policy reform was never more pressing, that so much effort is being expended to frustrate the intent of the Troika.

    It’s possible that the Troika do not have the resources to monitor what’s being done (and sometimes I would question the capability of some of these ‘experts’), but it’s more likely that they are being cautious about constraining, or being seen to constrain, the Government’s ‘sovereignty’ in these matters. It coud also be the case that the Government has indicated that it would be better if it were to manage this or the FODAR might cut up rough and damage the rosy ‘big picture’ of Ireland well on the road to recovery and heading for the exit of the treatment room.

    Whichever it is, the FODAR are playing a blinder.

  7. @PR Guy
    +1
    succinct. The interesting bit is solicitors being allowed attain the senior counsel status. Now I wonder whose ego that satisfied.

  8. My major concern with this Bill is that the new Legal Services Authority will be used as a tool to interfere with peoples’ privacy and personal property rights at the behest of the Revenue and the banks and others.

    The new body is in charge of developing codes of practice and policies ostensibly in the consumers interest. However, state bodies always act in their own interest. State Agencies have a proven track record in increasing transaction costs and bureaucracy. One could say solicitors are no better but I suspect solicitors volunteering to review these matters (as is currently the case with law society commitees) are more cognisant of the citizen and their clients than a state agency will be.

    I am also concerend that people may be forced to use solicitors or conveyancers for matters which they can freely do themselves at the moment – e.g. make a written agreement to sell their land, sign their deeds on their own behalf and pay their taxes. The legal profession is already close to being turned into a type of Stasi Police which the citizen must engage with at every turn to deal with his own property and pay his own taxes.

    On the other reforms:

    – +1 re Solicitors becoming Senior Counsel – what solicitor, other than Alan Shatter, has the slightest interest in becoming an SC?

    – Education to be opened up. This is very welcome. Education is a cash cow for the secretariat of the professions. It is a means of preserving the old boys network in the bar. Worse than that, the talented but impecunious are excluded form the professions leading to professions that are disproportionately representative of the upper and middle classes.

    – Independent body to deal with complaints. This is also very welcome. Those solicitors and barristers who have kept to the straight and narrrow will be anxious to see the wayward punished and eliminated.

    – Independent body to deal with costs. This is no threat to the legal profession other than the fact that those free spirits who have held out against time recording will probably be obliged to subject their mind body and spirit to the 1984-esque system of mind control. Other than that, legal costs will go up for consumers. Every solicitor who operates time recording will tell you it makes one much more profitable.

    Pro-bono work (of the prosaic type for clients who have fallen on hard times – not Arthur Cox or some big firm acting for the association of homeless lesbians) which is suffering hugely already will suffer more.

    – Fusing of the professions – who cares? This will have no impact on how most lawyers work. A few specialist barristers in the lower paying areas (employment) etc might start plying their trade directly to the public but they will be entering an already saturated market.

  9. A few years ago (for all I know, it may still be the same today), I was living in India and the legal profession used to hang around outside the courts, wearing their gowns and sitting at little stalls – it all looked just like a vegetable market – selling their skills directly to the public, haggling their fee in public and once agreed, they would trot off into court together. If the plaintiff/defendant didn’t like the look of guy or the fee being asked for was too high, they would wander off to the next stall.

    They would also sit at their stalls and write threatening letters (e.g. to a neighbour you were having a dispute with) for about five bob – most of them had a little menu of fixed charges for writing different types of letter.

    Now if we could introduce a system like that in Ireland, that would be progress (and a damn good laugh as well).

  10. One of the reasons for business legal costs being so high is the lack of adequate internal counsel in firms. For a period I worked with a large corporate (20,000+ employees) and they had no ‘general counsel’ , rather instead a quite lowly ranked legal officer who was a full 2 clicks away from the executive commitee. Thus for rather trivial matters, external advice tended to be sought.

    This is a pattern I’ve noticed in other firms, and yes external counsel is often needed for specialist areas and deal making…but no serious internal counsel is daft.

    Also innumerable times I’ve come across instances where managers sought legal opinion about what were in fact business decisions. Thus the legal advise was equivocal and confusing. This is especially true of any FS firms undergoing change assoicated with new regulations. In general they took an overly legalistic view of same with disappointing results.

    I think cultural and behavioural change is needed for such problems, the start being to hire _business_ oriented general counsel in our large corporates.

  11. @Desmond Brennan

    In-house Counsel are a great asset becasue they have no personal liability to the client. Therefore they can simplify their advice to “I think you shoudl do x or y” or “the costs of guarding against this risk through legal agreements is disproportionately high relative to the risk”.

    In-house Counsel can also be of major strategic benefit to the organisation if the organisation understands how legal planning can benefit them. This is much the same as a CIO can be of major benefit to an organisation if it understands the importance of IT.

    However, most CEOs are pretty mediocre themselves. Consequently in-house counsel often are generally relegated to a role of procuring external legal advice and haggling over the price of same. This is a cultural problem within organisations.

  12. @Desmond Brennan/zhou_enlai

    Both your observations are spot on. There is often a need to obtain Counsel in my work with financial services companies and typically in Ireland (because they are usually smaller than UK companies?), at best, I may have an in-house solicitor available to me (usually ‘in charge’ of the compliance department). Often their first response is, “We need to go external for that.” I think though it’s because they don’t want to have the risk/decision carried on their shoulders and the safe option is to go outside.

    On the other side of the coin, where there is a lot of legal expertise available in a UK company over there, they occassionally interfere with communications to such an extent that it becomes utter gibberish and the sign-off process takes forever.

    “However, most CEOs are pretty mediocre themselves”

    Surely not ? 😉

  13. @Zhou

    “- Education to be opened up. This is very welcome. Education is a cash cow for the secretariat of the professions. It is a means of preserving the old boys network in the bar. Worse than that, the talented but impecunious are excluded form the professions leading to professions that are disproportionately representative of the upper and middle classes.”

    The kings inns is running at a loss

    Also, entry to the law society or the bar is through an exam which a significant majority of people pass (used to be like 80-90% for the bar – and even if it was lower that’s not necessarily a bad thing) there’s no old boys network here any more than there is in a university

    Further, the cost of the kings inns, as a proportion of the start up costs of becoming a barrister is not that large, and further, any reduction in these fees, while welcome, would not likely be above 10-20% without effecting quality. Minor price reductions won’t attract entry

    Moreover, there are reasons to believe that for barristers, with a yearly class of about 200, (some at nights and weekend) , that a second provider would constitute wasteful duplication that would swamp any benefits from competition. It might also result in a reduction of the quality of the education provided as students go for the cheapest provider – that’s fine for them if that’s what they want – but society may have an interest in them not doing that.

    But either way because the reduction in the price and perhaps the quality of the education received would be marginal this is simply not a big issue – and that won’t change no matter how many times people say that is, particularly in light of the fact that grants are available for the course.

    If I’m missing something here please let me know because the consistent talk of monopoly education providers as if it’s a big deal bemuses me. Its a non-issue in the big scheme of things

  14. @zhou

    “- Independent body to deal with complaints. This is also very welcome. Those solicitors and barristers who have kept to the straight and narrrow will be anxious to see the wayward punished and eliminated.”

    From the website the current situation is ;

    “The General Council of The Bar of Ireland (The Bar Council) publishes a Code of Conduct and a Disciplinary Code that all barristers must obey.
    If a barrister does not follow the Code of Conduct or the Disciplinary Code, a client may complain about them to the Tribunal. Sometimes, the Bar Council may make the complaint.

    Five non-lawyers and four barristers are members of the Tribunal. Usually, when a complaint is made about a barrister, two of the non-lawyers and one barrister from the Tribunal form a panel to deal with it.

    The non-lawyers come from diverse backgrounds such as trade unions, businesses or voluntary organisations.

    The members of the Tribunal are listed here.

    Aine Hyland, former Professor of Education at UCC
    Maurice O’Connell, former Governor of the Central Bank
    Pat O’Neill, Consultant in Orthopaedic and Sports Medicine
    Jerry Shanahan, Irish Congress of Trade Unions
    Marie Sweeney, IBEC – Human Resources
    Isobel Kennedy SC, barrister
    John Gleeson SC, Tribunal chairman, barrister
    Patrick McCann, barrister
    Patrick McGrath, barrister

    Now – you could say don’t have even one barrister on the panel – but a moment’s thought tells you why that’s not necessarily a good idea and in general you need specialisation on professional disciplinary committees

    So once again – this reform is not really a big deal – in fact it’s just a new quango doing the same thing – it’s changing the name but not the substance

  15. @zhou

    “- Fusing of the professions – who cares? This will have no impact on how most lawyers work. A few specialist barristers in the lower paying areas (employment) etc might start plying their trade directly to the public but they will be entering an already saturated market.”

    This is the one reform that WOULD make a huge difference.

    When a small solicitor’s firm takes on a case, he can brief the best barrister in the country – now of course there are reasons why this won’t happen all the time or even that often – but the availability is there.

    This has positive effects, particularly in constitutional/human rights cases where a “nobody” can be as well represented in court as the State or a large company – it allows for, (but of course does not ensure), equality of arms between the parties. This is particularly the case when there is a question of law as opposed to a big factual dispute at issue.

    Now if you merge the professions, in the long run, large multidisciplinary firms will develop- ie barristers and solicitors. Small country solicitors will not be able to brief advocates who work for these firms.

    Moreover, it seems likely that in teh long run the big solicitors firms will simply eat the bar. Barristers will be at a disadvantage when competing with solicitors for work for many reasons, not least of which will be that they won’t have a stable of clients who they do non – contentious legal work for like wills, conveyances and company restructuring. The big firms will hire barristers/make them partners and not brief any one who doesn’t work for them.

    What you’ll end up with is barristers applying to firms as it will not be possible to stay on, or to establish a reputation as, a barrister.

  16. @Christy

    Barristers can already go close to being part of solicitors firms by “consulting”, e.g. Prof Robert Clarke and Yvonne Scannell in Arthur Cox.

    There will always be room for barristers to stay outside solicitor firms. I don’t think Garrett Simons SC, Paul Anthony McDermott SC, Paul Fogarty BL or Brian O’Moore SC are going to be under presure to go in house. They will want to remain independent of individual solicitors practices so they have a constant stream of work.

    Also, where a barrister does cut them off from other solicitors then others will take their place and build up the necessary. Some solicitors firms may think it will look good to have a BL or an SC on the letterhead as a bauble but it will make little difference in practice.

  17. @christy

    The Kings Inns has its diploma [?] course for getting all the blood related duds into the bar, where the cream of their contacts can rise to the top. Its degree course is in Dublin which is an added expense for our country cousins. It is better than the Law Soc insofar as people can work while doing the couse in the evening but it is worse insofar as entry wasn’t based on an entrance exam. I am not sure how it is works now although I do know there is a heavy brainwashing regime to enforce a sense of aristocratic hierarchy with “dining” carried on like something out of a hollywood version of Eton. The brainwashing works on many if not all. It is reprehensible nonsense in a Republic.

  18. @zhou

    you do need to do an exam to get into the BL course – its called the bar entrance exam or colloquially the “bar”.

    In relation to the diploma – it’s super standard to have conversion courses in professional subjects – indeed in USA law is a POST graduate subject like accounting is typically here – some would say that law ought to be done that way – moreover, if there was no diploma that would act as a restriction on mature students coming to the bar.

    The fact that it is in Dublin makes sense – having one in cork/galway could be justified i suppose if there was sufficient demand

    In relation to the comment;

    “I am not sure how it is works now although I do know there is a heavy brainwashing regime to enforce a sense of aristocratic hierarchy with “dining” carried on like something out of a hollywood version of Eton. The brainwashing works on many if not all. It is reprehensible nonsense in a Republic”

    There are a lot of old customs and ways – this annoys some people – but really, it’s just not a big issue. As for “brain washing” that seems abit dramatic

    As for being “reprehensible nonsense in a republic” – this seems to flow from the fact that alot of the old customs are British in origin – the same applies in countries as far flung as Nigeria, Australia, Canada, teh Caribbean, and to some extant America. Judges wear funny gowns in Europe too.

    Its actually quite interesting to see how people get so annoyed about this kind of thing. Its seemed to be associated with thinking that they’re all too big for their boots down at the four courts – lets take them down a peg or two.

  19. @christy

    In the USA, Law as a post-grad is taught by numerous colleges and they all sit one state bar entrance exam, therefore no one college controls the whole profession. In the Kings Inns, based on what you tell me, you have to do their course after the entrance exam. I don’t agree with that.

    I have no problems with wigs and gowns. They depersonalise the system so criminals don’t stab prosecution lawyers and judges.

    It is the dining nonsense which appalls me/ I am happy for people who are into that sort of thing to indulge their desires and whatever other fetishes they have. However, I think it is wrong that everybody who wants to practice at the bar should have to kow-tow to these ugly and anti-democratic notions of ersatz aristocracy, class and status. I further think the Judiciary should be barred from attending such events.

    “It’s actually quite interesting to see how people get so annoyed about this kind of thing. Its seemed to be associated with thinking that they’re all too big for their boots down at the four courts – lets take them down a peg or two.”

    Nope. That is not what people think. People think we live in a democracy and a republic with a constitution which says that citizens of the state are all equal and they shall not accept honorific titles. People think that it is a foul paradox that at the centre of the administration of justice in this democracy there is a group of people who, through mandatory training, fashion themselves as an elite and faux aristocracy.

    The proof of the warped self regard in which barristers hold their profession is the fact that if you have a conversation with a barrister they will nearly always drop in an anecdote about another barrister and some *witty* remark they made or something they did. It is just not healthy.

  20. @Zhou

    “fashion themselves as an elite and faux aristocracy.

    The proof of the warped self regard in which barristers hold their profession is the fact that if you have a conversation with a barrister they will nearly always drop in an anecdote about another barrister and some *witty* remark they made or something they did.”

    You have just accurately described two relatives of mine who are barristers. I’m sitting here wondering if you know them 🙂
    They are insufferable snobs who believe they are an elite and that the rest of us are just grubbing around in the dirt.

  21. @zhou

    It’s hard to see whether you are giving out about barristers, the judiciary, or both.

    In any event

    I say;

    It’s actually quite interesting to see how people get so annoyed about this kind of thing. Its seemed to be associated with thinking that they’re all too big for their boots down at the four courts – lets take them down a peg or two.”

    then you say;

    Nope. That is not what people think. People think we live in a democracy and a republic with a constitution which says that citizens of the state are all equal and they shall not accept honorific titles. People think that it is a foul paradox that at the centre of the administration of justice in this democracy there is a group of people who, through mandatory training, fashion themselves as an elite and faux aristocracy.

    The proof of the warped self regard in which barristers hold their profession is the fact that if you have a conversation with a barrister they will nearly always drop in an anecdote about another barrister and some *witty* remark they made or something they did. It is just not healthy.”

    I think its clear from what you say above that you do think barristers and /or judges are too big for their boots – you accuse them of thinking they are an aristocracy! – if that’s not too big for your boots i don’t know what is

    similarly you say they have a “warped self regard”, again you think they’re too big for their boots.

    It’s also striking how free you feel to make generalizations about the personality of barristers – I’d say, again it’s because you think thy’re too big for their boots and therefore you are disregarding your usual reluctance to make generalisations about people based on what they do.

    And I think you’re not alone by any means in this belief.

    the problem is that this belief distorts people’s view of what’s to be done in relation to the bar and/or the legal system.

  22. @zhou

    In particular, it makes them focus on things like wigs and gowns and dinners and stuff like that – all of which adds up to nothing of substance in terms of reform

    also, it means they can’t see the wood for the trees when it comes to education – the system is simply not restrictive when looked at objectively – if all people have to complain about is that students have to have dinner together in the hall a few times a year – well that’s not much

    You started out giving out about alot of things – but in the end all you really seem to have to say is that the wigs and gowns and stuff should be got rid of so that barristers and/or judges will be less encouraged to think they’re really important- that’s not much and, moreover, most people think they’re plonkers in any event.

    It’s like the old joke;

    Q “How do you know a barrister is sitting beside you on the bus?”

    A “He tells you”

  23. @PR guy

    “You have just accurately described two relatives of mine who are barristers. I’m sitting here wondering if you know them
    They are insufferable snobs who believe they are an elite and that the rest of us are just grubbing around in the dirt.”

    TOO BIG FOR THEIR BOOTS- TAKE THEM DOWN A PEG OR TWO!!!!

  24. One of the fundamental difficulties with the current system is that there is no meaningful competition between barristers and solicitors inter se. Barristers are precluded from dealing directly with the public, and thus a client has to go through a solicitor. (There is a very limited exception for direct access by other professionals, but this does not extend to litigation). Solicitors are entitled to act as advocates, but very few do. There is no financial incentive to do so in that the Taxing Master will nearly always allow two counsel and a solicitor in a High Court case. Moreover, the costs allowed by the Taxing Master where a solicitor acts without a barrister are less than where a solicitor and barrister act.

    There is also a perception – which may be incorrect – that judges do not encourage solicitor-advocates. It is in this regard that the criticisms about the “wig and gown” and dining at the King’s Inns are relevant, and not merely begrudgery. A solicitor-advocate stands out in court in that he or she is dressed differently than a barrister; this signals to the judge and to the clients that the lawyer is “different”. Moreover, the fact that the judges and very senior barristers “dine” together in the King’s Inns adds to the perception that a barrister-advocate will be treated with more respect than a solicitor-advocate. The abolition of the gown, and the exclusion of judges from the King’s Inns would represent two, albeit very small steps, towards reform.

  25. @christy

    1. I said I was in favour of wigs and gowns.

    2. “Too big for their boots”? Are words and phrases like ‘democracy’, ‘republic’, ‘constitution’ and ‘administration of justice’ too granular for your liking?

  26. @gadge

    I didn’t know the Taxing Master allowed lower costs if a solr appeared without counsel. That is certainly an issue. The division of labour betweeen a solicitor and a barrister should lead to lower costs as it allows both to act more efficiently.

    There is certainly a perception that Circuit Court and High Court Judges will treat parties better if they engage barristers. This is understandable in as barristers are more experienced in court Procedure and so can help cases and the Courts run more smoothly and efficiently. However, it is not justified that such bias may arise before the advocate even speaks.

    As you say, there certainly is a perception that because Judges and Barristers dine together and are friendly that they, and generally have been inculcated with the values of that “collegiate” system, that engaging a barrister of itself gives one an advantage irrespective of their skills. Also, as anyone will tell you, it is very important to know your Judge. The fact that barristers have a formalised inside line to the judges in a social setting is certainly a competitive advantage.

    Interestingly, the opposite effect can sometimes be seen in the District Court. Judges (who are usually former solicitors) sometimes take the hump that barristers have been engaged to do work which solicitors can do.

    @christy
    Apologies for the snarky remark.

  27. @ zhou_enlai Just to clarify my earlier comment, the aggregate fee allowed where a solicitor and barrister are involved in a case is higher than if the solicitor acts alone. The solicitor’s own fee is higher than where there is a barrister involved, but the overall fee is less. Most solicitors might well decide that the marginal increase in their own fee is not worth the effort, and instead they brief counsel.

  28. @gadge

    That’s what I understood you to say.

    I would expect that most solicitors would not think it worth their while to do the barrister’s work even if they were paid the barrister’s salary. The Court system is so unwieldy and involves so much wasted time sitting around that only a barrister could make good money out of it. This is because they can have a number of things going on in the one building and they can drop out of a case or pick up a case at the last minute.

  29. @gadge

    “Solicitors are entitled to act as advocates, but very few do. There is no financial incentive to do so in that the Taxing Master will nearly always allow two counsel and a solicitor in a High Court case. Moreover, the costs allowed by the Taxing Master where a solicitor acts without a barrister are less than where a solicitor and barrister act.”

    I agree that is a problem – however there is no easy solution.

    The idea is that costs follow the event – i.e. that the loser pays costs is important for a variety of reasons not least of which is to try to cause or encourage equality of arms between the parties.

    Now if you say that, for instance, this case did not require a senior therefore a senior’s costs don’t tax – then one side – the richer side- will hire a senior in any event and have the benefit of that – while the other side won’t be able to afford a senior and as the costs won’t tax he won’t be able to get one – so he’ll end up being less well represented

    The same logic applies to brief fees – if I come to teh taxing master – having lost my case – and say there was no need for teh other side to pay a 25,000 brief fee for their senior – then the first question the taxing master is going to ask is what did you pay your senior? If you paid 25, 000 as well then it’s difficult to hear you say that it was unnecessary.

    Alot of people when they commence on litigation go for the best/most expensive representation they can – when they lose they think its all a con – but they chose the most expensive guy – there are hundreds of barristers with little or no work – and they won’t charge anything like the huge fees you see being earned – but people don’t want those lawyers.

    What they want is a payment system or structure where there is lower fees for the best guys – but there is a supply and demand issue here.

    On the radio the other day i heard the presenter, upon hearing that a barrister was paid 2,500 a day during a case, saying, “nobody is worth that, the system has to change”. But people are worth what someone is willing to pay for their services – (also that’s about 200 per hour if he works all day on the case – same cost as a receiver).

    Now you could say that these high fees are caused by restrictions on entry – so what you need to do is open entry – but entry is VERY open – indeed more then 50% of people don’t “last” five years at the bar principally because they don’t get enough work.

    Clearly that hasn’t always being the case and it could be argued that the effect of old restrictions still effects the availability of top seniors – but that doesn’t square with the reluctance of top juniors to take silk

  30. @ christy

    The practical application of the “loser pays” rule in “no foal, no fee” cases gives rise to very real difficulties The fact that the person engaging the legal team will not be paying the legal fees means that that person has no incentive to reduce costs, and he or she will usually retain both senior and junior. In any other market, the person purchasing a service will “shop around” as he or she will wish to keep costs down. This safeguard is missing from the legal system. There are very few cases that genuinely need 3 x lawyers, i.e. solicitor, junior and senior, to be involved at all stages. Indeed, juniors are often missing for part of a trial. Yet, it is standard practice to retain all three. Moreover, the Taxing Master generally allows a junior 2/3 of the senior’s brief fee.

    One practical solution would be to abolish the senior and junior divide. If this happened, then the person seeking legal costs would have to justify having more than one barrister involved in the case. Under the current system, it is automatically assumed that both senior and junior are required. Moreover, it is unheard of for a senior to act without a junior. If a party can demonstrate that two barristers were necessary, then he should be allowed the costs of both. However, it should not simply be assumed that two barristers are required for all of the case. Equally, the fact that the other side has two barristers should not be seen as conclusive of there being a need for two barristers: a costs order should only cover reasonable costs and not luxurious litigation.

  31. @gadge

    I think that’s pretty reasonable

    However, i would say a couple of things.

    The problem is teh dividing line between reasonable and luxurious.

    Big companies typically hire the best lawyers and lots of them – now these guys are in it for the money – they would not hire lots of lawyers just for the sake of it – they would not hire the best just for the show. Experience has taught them that hiring the best lawyers (and lots of them) makes a difference that is worth paying for.

    There are lots of loose ends in litigation – many avenues that need to be explored – documents to look through or case to be considered – or arguments that can be thought up. The more people you have doing this the less likely you are to miss something.

    Now, when it comes to what taxes, the question is whether these guys can say your representation was luxurious but mine was not – you can’t recover for having a junior there – but we decided we wanted one there.

    If they can – then this is a fundamental erosion of costs follow the event.

    If one party wants to pay alot of lawyers then it cant complain when the other does too.

  32. @gadge

    Just following on from that – i think that might be the point where the lawyers and economists depart

    The econs are looking at it from an overall society cost point of view – saying that people are paying too much for (and for too much) legal services.

    But the lawyers are looking at it more from the perspective of the individual case – if a party is able to spend vast sums on a case while the other guy, who can’t afford to do that, is not able to do so, irrespective of the strength of his case- he’s at a disadvantage – and justice is, to be dramatic, “put to peril” – and the overall benefit to society in dollar terms will not make that right or justify that injustice. The courts regularly deal with situations where a party, typically the state, argues something is in the greater good, but the other side says that doesn’t matter as it is an interference with my rights as an individual. Let justice be done though the heavens fall !!!!!

    Also, protecting rights, even when they appear to stand in conflict with the greater or wider good today, will, in the long run, by creating a legal system which people can rely on, encourage stability and investment.

    Moreover, while overall the costs would exceed the benefits from a society perspective, (in that it would be more efficient if junior’s fees didn’t tax just because the other guy had a junior there), the people who would lose from that policy would be people who wished to have better representation but couldn’t afford it.

  33. @christy

    There is an optimum number of lawyers for any case. It is lazy to assume that because the other side retained x number of lawyers, including one or more senior counsel, that the case “required” or “needed” that number of lawyers. There are other reasons as why one side might “overmanned” their legal team, e.g. wealthy commercial entities are not cost sensitive; the State sometimes briefs two seniors because the State is involved in other similar cases and it is useful to ensure that both seniors are up-to-speed for the subsequent cases.

    The fact of the matter is that most cases are relatively straightforward: there is usually only a small amount of documentation to be reviewed and the legal principles are usually well established. The current tripartite division of the profession, senior, junior and solicitor, encourages lazy assumptions as the number of lawyers required. As I say, abolition of the senior/junior divide would be a welcome reform in that the party claiming costs would then have to justify the number of lawyers involved in the case.

  34. Could someone enlighten me as to why of all the many things that are wrong with this country the IMF singled out the legal profession as being first up for reform

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