Friday 23 February 2018

Legal costs: a devil's defence

All this talk of giant fees is fine but it takes years for barristers to make even a basic income

Seat of justice: the Four Courts in Dublin
Seat of justice: the Four Courts in Dublin
Deirdre Conroy

Deirdre Conroy

The very thought of ending up in court always sent shivers down my spine. As a young woman, my most "accidental" contraventions of law resulted in parking and speeding fines, "inadvertently" driving in a bus lane or unconsciously overlooking my motor tax renewal date, all led to a tearful parting of hard-earned cash.

The fear of a courtroom, the mystery of legal fees, taking days off work to attend a hearing - all of the above, aside from morality, are enough to make me behave. Nowadays, my fear of the courtroom has somewhat abated, as I have to go in there as a devil. That's where barristers start; spending two years shadowing a master and doing research, appearing in court for mention or a motion in front of the County Registrar or Master of the High Court. No fees guaranteed.

Some devils establish themselves with masters in the Criminal Courts of Justice and gather fees if they are on their feet enough, €25 for an appearance, €50 for a guilty plea and €67.50 for a hearing. When payment is made is another question, it usually takes months. The same applies for appearance on the Circuit, without any reimbursement of mileage. It's not exactly exorbitant remuneration, considering the years of study, part-time jobs, the university fees, the law library fees, the formal clothes, the transport.

It is not surprising that so many barristers have had to leave the Bar to find work elsewhere. We are told it is at least five years before a basic income becomes viable. Part-time work is not unusual and pro-bono work is common for barristers. And yet, the response I got from a few people when I told them I was doing law, was generally "are you mad, they are all robbers!" Even a well-known newspaper columnist declared at a public lecture I attended, that all "lawyers should be taken out and shot". Clearly, some litigants have perhaps taken a gamble, didn't win, and are very sore losers.

Unlike legal fees, when it comes to costs, there are some areas I don't understand, where I have no choice but to pay up. I phoned my car insurer last week asking about the 25pc rise in my premium, I was informed of a new Government levy. The increase in premium is not due to legal costs on claims, as is often reported. The levy is entirely attributable to the expensive lifestyle of the Quinn family. So, without your permission, without your request, you are paying Sean Quinn's legal fees and loss of investment in a bank he gambled on.

The necessity of legal fees is apparent to the general public, in house purchase, family law or probate. Fees in those areas can be clearly set out and agreed in advance. When it comes to criminal issues, barristers contribute to the funds for Free Legal Aid for those that find themselves in a vulnerable position, charged with breaking the law, without sufficient means to defend themselves. Isn't it alarming then when a well-paid TD seeks and is awarded Free Legal Aid?

In most cases, you will have a solicitor's fee at a rate for which you can budget. Unless, of course, the marriage break-up, or the will is contested and an angry party decides they want their day in court. Even at that, couples are encouraged to have mediation rather than take their case to court.

There is consistent public confusion between solicitors and barristers and the fee system. In straightforward cases, consultation with a solicitor could be sufficient for advice and they can seek a written legal opinion to assist your decision on whether to take a case to court or not. Such a written opinion, citing legislation and case law, can start at €150.

The best in any profession can succeed financially from their hard work, building their expertise and making smart investments through private equity - heart surgeons, orthopedic surgeons and accountants are not criticised for their fees. They can have big houses, holiday homes, etc, and their income is not questioned.

Barristers act for clients who need their advocacy; the work, time and research, the complexity and novelty of cases is undermined by what appears to be a few hours on their feet in court. Emergency injunctions require weekend all-nighters, judicial reviews are heavy-loaded with research and paperwork, the mountain of photocopying is phenomenal. I can attest to that. There could be a minimum of 10 people on a case including solicitors, their trainees, barristers and pupils - and only the pupil/devil is unpaid.

It was in the age of tribunals that pupils were at a great advantage if they were commissioned. The fees in tribunals are what have given the impression of that all-round massive income. At least, the Irish art market did well out of the tribunal era.

Unlike other professions where you can develop a relationship with your consultant, members of the Bar are seen as aloof. It is part of the ethos to be independent. One could be acting for the State one week and against the State the following week, everything is argued on law. We are sole traders; most barristers carry out their own work, with the assistance of a first or second-year devil. With the difficulty in making a living at the Bar, the devil population has dramatically decreased in recent years.

Ultimately, in my experience, Irish people hate paying fees. They are inclined to think they can sort out issues themselves, and resent having to consult an expert for advice, particularly legal advice, which can go either way. Legal advisers can provide essential advice in dispute resolution, when it comes to settlement negotiations, avoiding public exposure in court. The alternatives of mediation and arbitration are increasingly popular, and the fine-tuned ability and experience of legal practitioners bring, in my short experience, relief to both sides.

So when you leave a bag of rubbish outside your house, untagged, or beside a bottle bank, and end up in the District Court being fined and paying legal costs - think about the cost to the State, the waste of court time, and the delay in more important hearings. Behave!

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