Insurance has a strange aspect which we often overlook; we are happy that we did not need it.

We do not think that the premia paid year after year to insure our house is wasted money. After all, we do not want our house to burn down; we just want to rebuild and restore it if it does. So, we pay a small sum of money to meet the possibility of having to pay the much larger sum if the house does burn down (or suffer some other form of damage).

Sometimes the question of what is a proportionate sum to pay as a premium to cover the perceived risk has to be publicly determined.

In the UK, unlike Ireland, there is anxiety that justice should be facilitated. By “justice” is meant the ready and easy opportunity to go to court seeking a remedy without being prevented by extraneous causes, like poverty. Poverty is relative; most people in Ireland would consider the costs of a High Court action (or even a Circuit court action) beyond them.

Consequently, the UK authorities have facilitated schemes intended to achieve this end.

One such scheme is to allow lawyers who work on a “no win, no fee” basis to charge a significantly higher fee when they are successful, and provide that the losing party has to pay that higher fee as a matter of course.

Another is to recompense a plaintiff his or her insurance premium for “After The Event” (ATE) insurance. This is insurance taken out to, effectively, help pay for some of the litigation costs of the plaintiff/insured.

Section 29 of the UK Access to Justice Act 1999 provides:

“Where in any proceedings a costs order is made in favour of any party who has taken out an insurance policy against the risk of incurring a liability in those proceedings, the costs payable to him may, subject in the case of court proceedings to rules of court, include costs in respect of the premium of the policy.”

Inevitably, the losing defendants (other insurance companies) took issue with the premia being charged for the ATE.

HERE ‘s the outcome of that dispute.

The power of mythical thinking has to be experienced to be believed. Currently, in Ireland, nobody is more subject to its power than the judges of the Superior courts. (With the possible exception of the Irish catholic bishops).

Of course the legal profession is subject to the same myths as the judiciary, but that would not long outlast (I hope) the escape of the judiciary from their myths.

The myth of immediate interest is the fairytale that the Dail (Ireland’s lower parliamentary chamber) has any influence in the making or passing of legislation. It does not; legislation is originated by the Cabinet and driven through onto the statute books.

We know who is responsible, therefore, for the requirement that personal injury litigants must swear an Affidavit of Verification asserting the truth of the factual assertions set out in pleadings commenced on their behalf.

Willie O’Dea is in the Cabinet. He says, of his factually incorrect Affidavit, that when he realized his error in his Affidavit, he “put his hands up” and admitted the error. The Cabinet has endorsed this as the correct response. Consequently, no judge can, or should, ask for more of personal injury litigants.

Willie O’Dea’s understanding is not new or peculiar. His Affidavit will have contained the averment:

“I make this affidavit from facts within my own knowledge save where otherwise appears, and where so otherwise appearing I believe the same to be true.”

This statement is about appearances and beliefs. Willie was right to emphasise that his beliefs are the important thing and, of course, we know that appearances can be deceptive, especially to deponents in Affidavits.

That, clearly is what the Cabinet meant and means by the legislation imposing the obligation on personal injury litigants.

Judges take note.

Oddly, nobody has adverted to the role of the Attorney General in the Willie O’Dea kerfuffle. The Attorney General is the lawyer to the Cabinet. He clearly endorsed the view of the Cabinet, did he not? Maybe not. Whether he did or did not is not important. We are not entitled to know and nobody is asking.

But we should see him as he is, warts and all. We should not have to endure the consequence of more mythical thinking by the judiciary (and the Law Library). The Attorney General is down in the arena with everybody else. He fights for his clients. He represents their interests. He should not be accorded the deference he gets from the judiciary and the Law Library. (According to the Bar of Ireland, the Attorney General is the Leader of the Bar).

1. It was (arguably) beyond the remit of the High Court inspector to make exhaustive comment on the giving of legal advice to Mr. Jim Flavin (“Flavin”) on the legality of the sale by Flavin of Fyffes’ shares.

2. However, the advice was wrong, the inspector says. (He could hardly say anything else, given that the Supreme Court effectively said the same thing).

3. Consequently, the question as to whether the solicitor who gave that advice was negligent could arise. Hopefully, the solicitor knew this and qualified the advice with the use of some formulation like “…on the one hand this… on the other hand that…”.

4. But then Flavin would have been in a quandary. He would not have been able to sleep with worry about the possibility that he was about to commit a crime.

5. But what of the solicitor? Is his sleep of no consequence? If he says, positively, that the sale of shares is legal; is not a crime, and is nonetheless wrong, is he not liable to the client? How can he sleep with the worry that his advice will prove to be wrong?

6. Even if he has nerves of steel and a will of iron, what can he say to the client who returns to him after the trauma of even a successful defence of the client’s actions? Did he not advise the client of the possibility, indeed the likelihood of litigation? If he did, surely the client had grounds to doubt the legality of what was proposed and if he did not surely the client, learning of the decision in C. W. Dixey and Sons Ltd. v Parsons [1964]192 E G where the court said;

“In the present circumstances the solicitor owed a duty of care to his client to take reasonable care, not only to protect his client against committing a breach of the law but to protect him against the risk of being involved in litigation… It would not do for him to say that in his view it was all right. There was an obvious danger that a different view might be taken. In the present circumstances the ordinary careful solicitor would have gone to see his clients and advised them not to sign.”

would be rightly aggrieved at the advice the solicitor had given.

7. Of course, there is another way of seeing the situation. There are some things upon which a solicitor should not venture an opinion or advice and clients should not seek such opinion or advice.

It is surprising how often the willfulness of lawyers or litigants drives litigation, rather than evidence. We see an instance of this in the “theory” that William Shakespeare did not write the “Shakespearean canon” and that the plays and poems were written by, among others, Francis Bacon. This theory was first advanced by Delia Bacon in a book published in 1857.

The essential element of the book, in explaining its success, was prolixity. A work is prolix if it is too long. It is a general human failing to think that there must be substance to something if it can be written about at length.

At any length, Ms. Bacon’s book was too long.

In this vein, some solicitors and some barristers stand out for an inability to produce short affidavits. They talk all around the problem, avoiding the terms in which the opponent has defined the issues. This may be very good in principle, but it is tiresome in practice and oppressive when the prolix affidavit is sworn in the cause of big institutions, for, in truth, this is a feature of struggles with big institutions; they try to talk the problem away.

Britain and Ireland have similar, but different, legal systems. In Britain it is permitted for solicitors and barristers to agree to act for no, or a reduced, fee, conditional on being entitled, on winning the case, to charge the client (and a losing opponent) an enhanced fee (one larger than the norm). This is known as “a conditional fee agreement” (CFA).

This is not possible in Ireland.

In Britain, these CFA arrangements are most common in personal injury claims. In Ireland the principal law applicable to such claims and the terms to be agreed between solicitors and clients is S.I. No. 518/2002 — The Solicitors Acts, 1954 To 2002 Solicitors (Advertising) Regulations, 2002

Under the Regulations it is illegal for a solicitor to advertise “No win, no Fee”. Solicitors are not permitted to calculate their fees by reference to a percentage of the compensation recovered for the client. (Or as the Regulations put it, “In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement”.

Furthermore, not only are solicitors subject to the foregoing restrictions but are also restricted from offering “legal services involving contentious business… at no cost or reduced cost to the client”

Indeed, it is the obligation of a solicitor to give an estimate of the costs of the legal services to the client in writing, at the commencement of the engagement.

Finally, the Regulations provide, inter alia, advertisements shall not “be published in an inappropriate location”.

(We know for sure that the back of a bus is an inappropriate location).

Contrary to conventional thinking, the critical conversation is, often, not the conversation of the client with his/her solicitor, but the conversation of the solicitor with an expert.

This is definitely the case in medical negligence actions.

The issue in a medical negligence action is whether the defendant deviated from approved or appropriate practice. It is an error, usually, to think that the plaintiff will succeed if he/she proves that there would have been no injury had the defendant followed a different course of action. (The exceptional case where it would not be an error would be one where the court was persuaded that the conventional practice carried such obvious defects that it was indefensible and where the court effectively condemns the defendant and the practice.)

Thus, in the conversation with the expert, the solicitor is assessing the likelihood of the success of a defence claiming conventional merit for the defendant’s actions.

Incidentally, the solicitor is also assessing the quality of the expert.

Sometimes the quality of an expert shines out.

Former Supreme Court judge Donal Barrington, for instance, has seriously misled the general public (some) of the quality of our judges following his appearance on Nightly News with Vincent Browne. They have assumed that all our judges are of his high quality.

Would that it were so.

Often, in the conversation between the solicitor and the expert, the expert is not aware of any body of opinion supporting the defendant’s actions. This implies a criticism either of the expert or of the defendant.

It is the solicitor’s job to correctly judge whether the expert or the defendant is wrong.

It is a surprising fact that most contracts are concluded without reference to lawyers. It is surprising because of the extent of the law of contract and the effect of getting something wrong in the conclusion of the contract.

Contract law is an essential element of the world of commerce. Buying and selling things is what contract law is about. So, too, is the provision of services.

Most contracts are for small items and small sums; our transactions as we buy our groceries are typical. We do not expect to have to enter written contracts for these items, and we don’t. Nevertheless, these sales are subject to ascertainable conditions and terms, nowadays often emanating from the European Parliament.

If the Government decides to build substantial roadways across the landscape it will, of necessity, enter a contract, or contracts, to achieve that objective; the alternative would be to establish a national workforce in the employment of the State to directly build the roadways. We don’t do that.

Signing a contract for a new roadway (or a new building) is a significant matter. The contract will have to provide for a great number of things, not least the specification for the type or quality of road or building.

A lawyer should not be far removed from this occasion. After all, who drafted the contract? It should have been a lawyer. What if the written terms contain an ambiguity? There is a standard method, or rule, for dealing with that; the contract is interpreted against the person who drafted it.

There is another practical approach; use a standard form of contract. The benefits of such a form are enormous. Any ambiguities will have been eliminated, and the experience of predecessors will have been built into the contract with clauses providing for all the issues and matters that need to be addressed or provided for.

However, these large contracts will often have special conditions to be inserted into them; the facts will require it. It is a general rule that special conditions override general conditions where there is a conflict between them. In that case there is an unavoidable need for a lawyer.

In the construction industry many contracts commence as a consequence of the conclusion of the main contract. The contractor will, of necessity, have to source the skills required to do some of the work, possibly most of it, from specialist sub-contractors. Because of the time consumed in finding the sub-contractors, there may be exchanges of letters of intent or such like. Astonishingly, the result may be that there is no contract between the contractor and the sub-contractor. If the sub-contractor does work in such circumstances, it will still be entitled to be paid. The claim will be in quasi-contract on a “quantum meruit” basis. The work will be valued at market rates and a profit element will then be added. That is what the sub-contractor will be entitled to.

For the contractor, this may be a severe blow. Claims of delay, if any, (there will be such) and consequential, loss will not be enforceable by the contractor.

This is a post of clarification. No blog post can be a monograph, but sometimes “mature reflection” indicates that more needs to be said.

My post on the UK Law Society (seen HERE) is one such post.

May I be taken to be endorsing the Legal Services Board in any sense? Emphatically, no.

Do I approve of the concept of a regulatory system for solicitors? Reluctantly, yes.

Do I believe that the throwing of ashtrays at staff is a matter to be addressed in a regulatory system for solicitors? No.

Do I believe that the stealing of money from clients is a matter to be addressed in a regulatory system for solicitors? Yes.

A fundamental principle should apply; no person and no group of persons should be above the law. That law should be adequate to protect the legitimate interests of the public.

In addition, it is undesirable that there be a special process for applying the law to one group of persons by comparison with any other group of persons.

(It was the failure of the Catholic church and Irish society to adopt and apply these principles to Catholic priests that facilitated wrongdoing by priests.)

In any walk of life, therefore, be it that of lawyers or priests, the throwing of ashtrays should be challenged and, if appropriate, punished, in the same forum as is used for everyone else.

Why do I distinguish the stealing of clients’ money by solicitors from that principle?

I do so because when it happens the client is immediately at a disadvantage, relative to the solicitor.

The client has voluntarily transferred, or directed the transfer, of the money to the solicitor. On that ground alone the average policeman is immediately bemused at the beginning of any hypothetical investigation of a client’s complaint. It takes a specialised policeman, from a fraud squad, to conduct that investigation. In Ireland we have inadequate resources to investigate fraud.

As a practical matter, therefore, it is a necessary evil that the regulation of solicitors exist and that it apply with full force to the management of clients’ money.

I should declare an interest in this topic; under current regulations the Irish solicitors’ profession (I belong to that group) is the collective end stop for making good money losses by solicitors’ fraud or theft, as analysed previously by me HERE.

Needless to say I want a good, efficient, policeman working on the problem when it arises.

1. Legal education is expensive. It is not desirable that a person educated for legal work should fail to gain employment. (That statement is too broad; like medical practitioners, some legal practitioners should not be working, but the statement is true generally). The Chairman of the Bar Council of Ireland admits the profession (he means the Bar) is “pear shaped”. By this he means a small proportion of barristers get most of the work (and most of the income). Any expressions of concern from him at this should be taken with a pinch of salt; the Bar Council of Ireland subscribes, and always has, to the Social Darwinist notions of Herbert Spencer. Whatever the legal professional equivalents of thrift, hard work and sound family life are, the Bar Council of Ireland attributes the road to professional success to them.

2. The public is not demanding the Bar Council give up its delusions. No journalist would file a report to the effect that it was, but journalists do report that the public is demanding regulation of the professions. This is not credible. Ordinary people do not express themselves like that; they demand justice and fairness. They do not think that “regulation” delivers justice and fairness and therefore do not make demands for regulation.

3. It is said, or implied, that there is insufficient work for all lawyers. This may be true, but it remains to be demonstrated. A growth in numbers in the legal profession may reveal that, previously there were insufficient numbers of lawyers, rather than show there are now too many. The subject of interest is “work” not “numbers”. It is an unsustainable proposition to say there is not enough work for Irish lawyers. It is true only by reference to a perverse and reactionary definition of “work”. It is predicated on the further dubious proposition that levels of injustice in Ireland are very low. Where there is injustice there is work for lawyers. (Getting paid for that work may be problematic, but that is another issue).

4. Consumers have no confidence in the legal system. The reason for this is that they have little or nothing, as consumers, to do with the legal system. (A “consumer” is a purchaser of a commercial product or service). Lawyers work for consumers, who become their clients, if the consumer has a claim arising from a defective product or service. Consumers are a vanishingly small cohort in lawyers’ clients. The main reason for this is not that Irish products and services are top-notch; it is that the value of the claim does not usually warrant the investment of money needed to vindicate the disappointed consumer.

5. It may be true (who knows?) that clients have low levels of confidence in the legal system. Perhaps they are sceptical of the likelihood of being treated justly in an Irish court, based on newspaper reports of judgments from time to time. They may even have little or no confidence in lawyers, having gone through a bruising family law case. It cannot be true, however, that they have little or no confidence in their own lawyer; they hired him or her and would not have done so if they positively had no confidence in him or her. In any event it is probably misleading to use the term “confidence” in this context, something many clients would probably recognize intuitively. The emotion felt is probably closer to hope than anything else, or, in the case of very inexperienced clients, expectation. “Confidence” is something based on past experience; most clients have little experience of the legal system. What of a client accused of the offence of dangerous driving? How can his/her emotional state be said to be one of “confidence”, when the most positive outcome may, to the knowledge of the client, be one where public humiliation is attenuated by the lawyer speaking for the client, rather than snatching an acquittal from the situation? Nobody, save the more immature readers of Erle Stanley Gardner, expects a lawyer to have only innocent persons for clients.

6. The tribunals, each and every one of them, came into existence because of profound failures of the political system. The level of payment to the lawyers in the tribunals was a direct result of the influence of politics on the legal world and not the reverse. The various Attorneys General (political appointees par excellence) were at the heart of the fixing of payment to those lawyers.

7. The legal profession, both branches, prides itself, (often without justification, but sometimes correctly) on adjusting its fees to the personal situation of the client. What is wrong with that process? If a poor person is not charged a commercial rate, who is to complain? If a rich person is charged a rate commensurate with his/her ability to pay, his/her complaints are without foundation. Citing as authority, on the subject of fees, what some barrister says of solicitors (or vice versa) is the journalistic equivalent of making a point by telling a “Paddy the Irishman, Paddy the Englishman…” joke.

8. The customers of the big city firms of solicitors are sophisticated users of legal services. They do not need external protection. The people who need protection are the employed (and junior partners, if such they be) solicitors of the big firms. Hand-wringing about fee padding is just that; hand-wringing. To say this, is not to condone fee padding, but the causes and the persons effectively responsible should be defined correctly. A workplace that measures the value of work, by reference only to income, is a bad workplace. The “owners” of the practice are answerable for that. Such persons do not have to institute fee padding themselves to get the benefit of it.

9. The “general public” has no opinion on the remuneration of lawyers. It is a political myth that it does. It is one of many political hobbyhorses generated to provide a subject for “public” debate to raise a political profile or deflect attention from real political failures or shortcomings.

10. Competition in the delivery of legal services is not necessarily a good thing. Indeed, “competition” in any field is not necessarily good. Who wants economic competition in the delivery of medical services? Some services should not be measured by the cost of the service. They should be measured by the quality. Unthinking economic notions like “competition” can imply a race to the bottom.

11. What economic commentator will experience the conduct and outcome of major litigation and suggest it should be judged on an “economic” perspective? Few. Litigation more closely resembles a military operation. In 1863, in the course of the US Civil War, General U. S. Grant telegraphed Colonel Murphy of the US Federal Army at Holly Springs telling him to post more guards. The Colonel went to bed, neglecting to do so. The Confederates, that night, burned Federal stores at Holly Springs to the then value of $4,000,000. A failure like that is not an economic issue; it is a personal failure. There are many current Murphys who ought to, but do not, face court martial as Colonel Murphy rightly did.

12. Even the “economists” like Mr. Charlie McCreevy and Ms. Neelie Kroes adjust themselves (quiet differently in the case of those individuals) to reality. Something can be theoretically anathema but practically acceptable to Ms. Kroes, it seems. So much for theory.

The Irish Times is on odd newspaper. It seems to aspire to be a place rather than institution. An institution implies a purpose, a place implies openness to the contingent.

We see this recently in an article on “the Legal Profession”.

The article is a review rather than a report. It is, in fact, an opinion piece.

There is a place in life for opinion pieces, but the Irish Times is overly fond of them.

This post is a modest attempt to counter the Irish Times.

1. It is, in the context of a newspaper article, pointless to speak of “the Legal Profession”. The term must refer, at least, to the collective of persons practicing law (in Ireland). The profession, as most people know, is a divided profession. There are solicitors and there are barristers. That division is a modest indication of this fact:- lawyers are disparate. They live by instructions from individual clients. They spend most of their time acting on the instructions. In short, their daily work has little to do with the collegiate aspect of the profession. Indeed, the work often requires the deliberate eschewing of “collegiality” and emphasizes the individualism implicit in a society that has privatised the practice of law. (The practice of law does not necessitate the existence of private practitioners, but that is the system we have in Ireland).

2. It is a misnomer to use the term “the Legal Profession” as a reference to the Bar Council of Ireland or the Law Society of Ireland. Neither of these bodies is the profession. Even together they are not the profession.

3. Individual wrongdoing by a solicitor or a barrister implies little about any other lawyer. This is clearly the case where the wrongdoing consists of murder or armed robbery or dangerous driving. Even if it consists of mortgage fraud, it implies nothing about other lawyers. (Mortgage fraud may imply something about human nature, but lawyers, as such, are not accountable on that score). Mortgage fraud may indicate the desirability of having mortgage processing systems that will practically eliminate mortgage fraud. If so, any case of mortgage fraud has implications for other lawyers, not because they may succumb, but because it shows up something problematic and remedial. In Ireland, until the Irish banking industry demanded change, there was a system in place that, unlike the current system, hindered mortgage fraud. Any current or recent case of mortgage fraud points to the mistake that was made in yielding to the bankers’ demand. The Bar Council or Ireland was not involved in that mistake; the Law Society of Ireland was. Ironically, the mistake was made because of pressure, ostensibly, to meet the “needs” of clients.

4. Tax fraud is not something unique to lawyers. More than mortgage fraud, it implies nothing about other lawyers.

5. Falling incomes for lawyers do have implications for them and society. Assuming Irish lawyers deliver services that Irish society needs, it is socially undesirable that they are not properly paid for the work. The morale of any normal person would be affected by lack of money and/or recognition of the value of that work. Socially undesirable things usually (almost by definition) have undesirable effects for individual members of society. In this case it may be a neglect of a client’s business; or a refusal to represent a client. More likely than not it will take the form of a growth of unmet legal needs. There is, in the view of this writer, an ocean of this in Ireland. Now, even victims of personal injury may find themselves in this ocean.

To be continued…