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Colum Kenny: Report lashes lawyers as cost of tribunals continues to spiral

'Exorbitant" fees are being charged to the taxpayer by lawyers. The State's "kid-glove approach" to lawyers means that it does not even know exactly how much it pays for legal advice.

In a parting shot by outgoing members of the Oireachtas, the Public Accounts Committee (PAC) has published a report on the procurement of legal services by public bodies. The PAC is especially worried about the tribunals at Dublin Castle.

Some lawyers have made almost €10m each out of long-running tribunals, which some other lawyers regard as an institutional embarrassment. The full bill has yet to be paid for the tribunals. When it is, citizens may want to burn the barristers as well as the bondholders.

But because of a Supreme Court decision in the case of two directors of JMSE Ltd, tribunals appear to be unable to refuse full legal costs even to those who tribunal judges believe obstructed or hindered them. This is hard to take for many citizens, some of whom fear that due process is trumping justice in our courts. Last week we learnt that the Mahon tribunal alone may cost nearly €250m.

And State bodies are paying different amounts for equivalent legal services. Certain State bodies do not make lawyers compete for their business. They are distorting the market. The Department of Justice has finally had to promise the IMF to introduce legal reforms that were proposed years ago.

The PAC says that it "heard evidence to suggest that the cost of legal services in Ireland is amongst the highest in the developed world". Does nobody know for certain how the fees compare with those in other small EU countries?

The Bar Council might. Unfortunately, the PAC failed to talk to barristers. The council's chairman, Paul O'Higgins SC, tells me that there are "misapprehensions" in the PAC's report.

Tribunals aside, the PAC found that the State is spending "anything up to €500m" each year on lawyers. Precise records are not kept. Tribunals come in for particular criticism. Counsel usually receive initial "brief fees" as well as daily payments, but the brief fees for tribunals seem particularly high.

The PAC points out that the largest brief fee for a senior counsel engaged by the DPP is for a murder case, which is €8,600: "That covers all the preparatory work and the first day of appearance in court in what can be complex and voluminous cases and a subsequent daily rate of €1,800. These figures stand in stark contrast to the tribunal brief fees of €30,000 and a per diem rate of €2,250 for matters that in some tribunals have lasted for over 12 years."

In fact, "because of an error in the Department of the Taoiseach", it was decided in 2002 to pay lawyers at the Moriarty tribunal €2,500 per day (around €5,000 extra per month each). The error was quickly discovered but was let stand, and has cost the taxpayer an extra €1m.

Why was the error not undone? Because tribunal lawyers could have pulled out, and the tribunal was concerned that its continuity would be disrupted. The PAC was unimpressed by this "institutional memory" argument. The PAC notes that, "the Mahon Tribunal was established in 1997 and its chairman, Mr Justice Flood, retired but that tribunal did not collapse as a result. Also many of the senior counsel working for the tribunals have come and gone. . . yet the tribunals have carried on."

The PAC finds it "difficult to understand therefore why a stronger line was not taken in 2002 in opposing increases in fees for tribunal lawyers". Given that the Department for Finance "saw no basis for paying the higher fee", deputies and senators think that, "the Department of the Taoiseach should have acted with more vigour".

The PAC is very concerned about the fact that hundreds of millions more have yet to be paid to lawyers acting for those who appeared as witnesses before tribunals. It points out that in Australia, Canada and the UK, applications for legal fees to be met from the public purse are required prior to participation in a public inquiry. How those fees will be calculated now also bothers the PAC.

The PAC report rebounds on the Oireachtas itself, which has seemed institutionally unable to address problems promptly and to introduce necessary reforms efficiently.

The Competition Authority years ago called for action on legal fees. The PAC was told that of 15 recommendations in the Competition Authority's report which were addressed to the Department of Justice in 2006, only one has been implemented.

But Bar Council chairman O'Higgins questions this finding and says that the Bar has implemented changes in areas such as advertising, fee estimates and consumer complaints. He believes that some of the other proposed changes are not actually in the public interest.

For example, the Bar Counsel opposes legal partnerships that drive down the number of choices for clients. O'Higgins believes that members of the PAC "do not grasp that the Bar is extraordinarily competitive and very exposed", even if a minority of barristers are very wealthy.

Some State legal fees were reduced by 8 per cent in 2009, and again in 2010. King's Inns has introduced some educational reforms. But practices remain that the PAC finds unacceptable.

Sunday Independent