Improve Access to Justice: Reducing Costs (IE0033)

Commitment Text (note: this text is also relevant to 3A, 3B, and 3C of this
report):
Objective: Improve access to justice by reducing its cost, assisting those who
require support, and improving oversight of legal practitioners.
Status quo: The Legal Aid Board provides legal advice, for a nominal fee, on certain
civil matters to those below certain income thresholds. However, there have been
criticisms that high legal fees for those above the income thresholds reduces access
to justice. The opaque nature of how those legal fees are calculated has also been
criticised. The recently established Legal Services Regulatory Authority is charged
with the oversight of legal practitioners, legal services and creating a more
transparent legal costs regime in the State as provided for under the Legal Services
Regulation Act 2015.
The Irish Government recently began a scheme, Abhaile, of free legal and financial
advice, as well as professional assistance, to certain borrowers who find themselves
at risk of losing their home due to mortgage arrears. This initiative will seek to
encourage engagement of borrowers and creditors in alternative dispute resolution
mechanisms, prevent unnecessary recourse to the courts, and minimise
repossessions for distressed borrowers.
Milestones:
A) Reduce the cost of accessing justice by:
3A.1 - Introducing new legal business models, such as Legal Partnerships. This will
help to integrate the dual model of legal representation in Ireland and will enable
legal entities to become more efficient in dealing with their clients.
3A.2 - Implementing a new system to adjudicate on the costs associated with legal
proceedings. This new independent process will involve publishing determinations in
respect of legal cost disputes. This action will help to create openness, consistency
and clarity around the costs of accessing justice.
3A.3 - Introducing a quicker and cheaper informal arrangement for the resolution of
complaints surrounding the costs of legal representation. This informal mechanism
may be accessed by aggrieved clients prior to going to full adjudication.
3A.4 - Classifying unjustifiable overcharging of clients as ‘serious misconduct’. This
would be adjudicated by the new independent oversight body for legal practitioners.
A robust penalties and professional disciplinary scheme will be applied to those
found to have grossly overcharged clients.
3A.5 - Encouraging greater use of alternative dispute resolution. We will introduce a
new framework to promote mediation as a viable, effective and efficient alternative to
court proceedings thereby reducing legal costs, speeding up the resolution of
disputes and relieving the stress involved in court proceedings.
Responsible institution: Department of Justice and Equality
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Supporting institution: Department of Health, Decision Support Service
Start date: January 2017
End date: June 2018

3A. Improve Access to Justice: Reducing Costs

Commitment Text (note: this text is also relevant to 3A, 3B, and 3C of this report):

Objective: Improve access to justice by reducing its cost, assisting those who require support, and improving oversight of legal practitioners.

Status quo: The Legal Aid Board provides legal advice, for a nominal fee, on certain civil matters to those below certain income thresholds. However, there have been criticisms that high legal fees for those above the income thresholds reduces access to justice. The opaque nature of how those legal fees are calculated has also been criticised. The recently established Legal Services Regulatory Authority is charged with the oversight of legal practitioners, legal services and creating a more transparent legal costs regime in the State as provided for under the Legal Services Regulation Act 2015.

The Irish Government recently began a scheme, Abhaile, of free legal and financial advice, as well as professional assistance, to certain borrowers who find themselves at risk of losing their home due to mortgage arrears. This initiative will seek to encourage engagement of borrowers and creditors in alternative dispute resolution mechanisms, prevent unnecessary recourse to the courts, and minimise repossessions for distressed borrowers.

Milestones:

A) Reduce the cost of accessing justice by:

3A.1 - Introducing new legal business models, such as Legal Partnerships. This will help to integrate the dual model of legal representation in Ireland and will enable legal entities to become more efficient in dealing with their clients.

3A.2 - Implementing a new system to adjudicate on the costs associated with legal proceedings. This new independent process will involve publishing determinations in respect of legal cost disputes. This action will help to create openness, consistency and clarity around the costs of accessing justice.

3A.3 - Introducing a quicker and cheaper informal arrangement for the resolution of complaints surrounding the costs of legal representation. This informal mechanism may be accessed by aggrieved clients prior to going to full adjudication.

3A.4 - Classifying unjustifiable overcharging of clients as ‘serious misconduct’. This would be adjudicated by the new independent oversight body for legal practitioners. A robust penalties and professional disciplinary scheme will be applied to those found to have grossly overcharged clients.

3A.5 - Encouraging greater use of alternative dispute resolution. We will introduce a new framework to promote mediation as a viable, effective and efficient alternative to court proceedings thereby reducing legal costs, speeding up the resolution of disputes and relieving the stress involved in court proceedings.

Responsible institution: Department of Justice and Equality

Supporting institution: Department of Health, Decision Support Service

Start date: January 2017

End date: June 2018

Context and Objectives

In 2015, the Irish Times reported that legal costs in Ireland were the highest in the western world.[Note: Paul Cullen, ‘Legal costs in Ireland are now highest in western world,’ Irish Times, 3 January 2015, https://www.irishtimes.com/news/health/legal-costs-in-ireland-are-now-highest-in-western-world-1.2053218. ] This report was based on an analysis of the costs related to medical lawsuits, but evidence can also be found in the high costs associated with court cases related to those losing their homes due to non-payment of mortgages. This is despite initiatives such as the Legal Aid Advisory Board that have not been able to bring down costs for citizens needing legal representation in these key issue areas. As reported by the Irish Examiner, the impact of this is that ‘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.’[Note: ‘Legal costs challenged: Scale of fees are a barrier to justice,’ Irish Examiner, 2 March 2015, https://www.irishexaminer.com/viewpoints/ourview/legal-costs-challenged-scale-of-fees-are-a-barrier-to-justice-315470.html. ] These five milestones thus seek to reduce of the cost of accessing justice in Ireland by:

Milestone 3.A1 – Introducing new legal business models, such as Legal Partnerships. As reported in the Irish Times, this will allow barristers the choice of forming partnerships or working as sole traders to explore new ways of delivering barrister services,[Note: Isolde Goggin, ‘Barristers should be allowed to form legal partnerships,’ Irish Times, 9 April 2012, https://www.irishtimes.com/news/crime-and-law/barristers-should-be-allowed-to-form-legal-partnerships-1.497809, 2012.] and by entering into partnership with either other barristers or solicitors.[Note: ‘The basic difference between barristers and solicitors is that a barrister mainly defends people in court and a solicitor mainly performs legal work outside court.’ See: https://www.brightknowledge.org/law/what-is-the-difference-between-a-barrister-and-solicitor. ] This will effectively allow for services to be ‘provided at more competitive cost to consumers by legal and non-legal service providers together.’[Note: Minister Fitzgerald welcomes the completion of passage of the Legal Services Regulation Bill, http://www.justice.ie/en/JELR/Pages/PR15000646.]

Milestone 3.A2 – Creating a new independent process to adjudicate on the costs associated with legal proceedings. Although the Taxing Master’s Office (which is an office of the High Court and is not affiliated with the Revenue Commissioners[Note: See: http://www.citizensinformation.ie/en/justice/court_offices/office_of_the_taxing_master.html. ]) has previously overseen legal costs and disputes, there is a lack of transparency in its functions. The Law Society’s own Independent Adjudicator has called for legal costs to be ‘brought out into the open with better public awareness and entitlement to legal costs information.’[Note: Law Society Independent Adjudicator’s website: http://www.independentadjudicator.ie/the-legal-services-regulation-act-2015/.] This milestone also calls for publishing the determinations of legal cost disputes.

Milestone 3.A3 – Introducing a quicker and cheaper informal arrangement for the resolution of legal representation cost complaints. However, there is no clear differentiation between this milestone and 3.A2.

Milestone 3.A4 – Classifying unjustifiable overcharging of clients as a ‘serious misconduct’ and applying penalties to legal professionals who overcharge their clients. In terms of the status quo, if a client is unsatisfied with a solicitor’s fee, they can take a complaint to the Law Society of Ireland, the regulatory body of Irish solicitors, and ultimately, the Taxing Master.[Note: In more detail, ‘A solicitor's fee must not be excessive for the work done. If you think your solicitor's bill is excessive you should contact your solicitor to seek clarification and try to come to an agreement. Information on fees is available in the Law Society's Information in relation to legal charges (pdf) leaflet. If you are still not happy you can make a complaint to the Law Society. As the regulatory body for solicitors in Ireland, the Law Society sets down rules and regulations about how solicitors may conduct their business, including legal charges. There is a Disciplinary Tribunal, which can investigate any allegations of misconduct made against a solicitor. Read more about making a complaint about a solicitor in Ireland here. You could also have your legal costs independently and impartially assessed by the Taxing Master, this is called the taxation of costs. The Taxing Master is an office of the High Court and has nothing to do with taxes or the Revenue Commissioners. The Courts Service has information on the taxation of costs on its website.’ Taken from the Citizens Information website: http://www.citizensinformation.ie/en/justice/civil_law/cost_of_the_case.html. ]

Milestone 3.A5 – Introducing a new framework to promote mediation as an alternative to court proceedings, where promoting resolution of disputes through mediation speeds up dispute resolution and is less costly than doing so through courts.

The commitment attempts to decrease the barriers for access to justice by reducing associated costs associated and increasing regulations to which legal professionals must abide. Therefore, the commitment is relevant to the OGP value of public accountability. Because 3.A.2 involves publishing decisions on legal cost disputes that will presumably be publicly available (although the text itself does not say where they will be published), the commitment is relevant to access to information. While the milestones include verifiable activities, the specific wording makes them open to interpretation. Terms such as ‘Legal Partnership’ and ‘legal business models’ make Milestone 3.A1 unclear. Milestone 3.A2 calls for publishing the determinations of legal cost disputes, but does not: specify where they will be published, clearly state any reference to the system in place that is being referred to, and explain how this is envisaged to be changed. Milestones 3.A3 does not explain how the ‘informal’ complaints resolution system will be synthesised into more formal legal frameworks. Milestone 3.A4 neither specifies what is meant by ‘serious misconduct,’ nor provides details for what the penalties will be for this misconduct. Milestone 3.A5 promises to introduce mediation as an alternative to court proceedings and is slightly more specific, but does not give details regarding what this mediation would look like or what its relationship to the formal court system will be. Given the overall medium specificity, it is difficult to see how the commitment will fully reduce the excessively high legal costs in Ireland. The overall potential impact for this commitment is minor. This potential impact may have been greater if the commitment’s milestones got at the heart of the high legal costs in Ireland, associated with key issues such as medical lawsuits and non-payments of mortgages as discussed in the beginning of this section. Notwithstanding, with regard to 3.A5, the Women’s Aid organisation ‘recognises the potential of mediation to positively resolve family disputes in cases where there is no domestic violence.’[Note: https://www.womensaid.ie/download/pdf/20170716215505.pdf. ]

Completion

The overall implementation level for this commitment is limited, although it is on schedule.

● Milestone 3.A1: Limited implementation and on schedule. According to the government’s progress report on this commitment, progress has been made regarding the public consultation commenced by the Legal Services Regulatory Authority to garner views from stakeholders on legal partnerships, verified by desk research.[Note: In more detail, ‘On Friday 24 February 2017, the Authority published a general invitation calling for the submission of the views on the regulation, monitoring and operation of legal partnerships…(where) written responses were requested by Friday 24 March 2017…. In addition to the online publication on the Authority’s website, the Authority arranged for the notice to be published in three national newspapers, The Irish Times, The Irish Examiner and The Irish Independent on Saturday 25 February 2017...The consultation was designed to elicit the views on the issues that could arise at various stages during the potential lifecycle of a legal partnership. It was not intended to reopen the question of whether or not legal partnerships should be permitted.’ Legal Services Regulatory Authority (LSRA) report Section 118: http://www.lsra.ie/en/LSRA/s118%20Report%20Final%20April%202017%20pdf.pdf/Files/s118%20Report%20Final%20April%202017%20pdf.pdf. ] There were eight written responses to the consultation process. One response came from the Law Society of Ireland, where it outlined a range of issues regarding Legal Partnerships, including benefits and risks to clients and ethical implications for legal practitioners.[Note: See: https://www.lawsociety.ie/globalassets/documents/lsra/legal-partnerships-march5017.pdf. ]

Milestone 3.A2: Limited implementation and on schedule. Officials from the Department of Justice and Equality that were interviewed by the IRM researcher’s team confirmed that the Office of the Legal Costs Adjudicator was originally meant to be established by the end of 2017, but it was delayed due to appointing staff and developing and integrating an online platform that would allow the publication of important decisions online. It is still on schedule given that it is to be completed by the action plan deadline of July 2018.

Milestone 3.A3: Limited implementation and on schedule. The government states in its progress on the milestone that ‘provision (has been) made under Part 6 of the Legal Services Regulation Act for informal resolution.’ As this was unclear, the IRM researcher’s team interviewed the relevant public officials who stated that the new complaint system still needs to be set up.[Note: Interviewees from the Department of Justice and Equality, December 2017] It was meant to be established by the end of 2017; however, due to staffing and IT capacity issues, the deadline has now been extended to the end of 2018.

Milestone 3.A4: Substantial implementation and on schedule. Although it has yet to be fully implemented, the government’s progress report indicates that it has included a new category of ‘grossly excessive’ legal costs under section 50 of the Legal Services Regulation Act 2015, as verified by desk research.[Note: See Article 50, subsections 50. (1)l, 50(2).a-c, http://www.irishstatutebook.ie/eli/2015/act/65/section/50/enacted/en/html#sec50. ]

•Milestone 3.A5: Substantial implementation and on schedule. A Mediation Bill was published in February 2017 and is waiting for final approval in the lower house in the first year of the action plan. It is expected to be adopted in the second year of the action plan. During the consultation by the Department of Justice and Equality in which interested parties were asked to give their views on how cases are processed in light of the proposed legislation and its impact on the profession, the Law Society of Ireland stated that the Mediation Bill will likely have a strong impact on how civil law disputes are processed and resolved. It will also strongly impact the conduct of practicing solicitors in civil proceedings on behalf of their clients.[Note: ‘Mediation Bill 2017,’ Law Society of Ireland, April 2017, https://www.lawsociety.ie/globalassets/documents/committees/arbitration-and-mediation/submission--mediation-bill-2017.pdf. ]

Next Steps

If the milestones in this part of the commitment (3A) are not fully implemented during the current action plan cycle, the IRM researcher recommends carrying them forward to the next plan, and to more clearly state what the objectives and legislative initiatives associated are for each.

For commitment details, see https://www.opengovpartnership.org/wp-content/uploads/2001/01/Ireland_End-Term_...