Bearing that in mind, see this newspaper article from the Sunday Business Post of last year. The subject is legal costs. This writer has much to say on the subject, which is not to say the writer is always right.

However, the writer is confident of this; there is a great deal of hoopla dished out on the subject. This post is a small attempt to look at some proposed nostrums and the cited Sunday Business Post article is useful for collecting them together in a “gentleman’s cabinet of curiosities”.

1.       Assess costs by reference to the work actually done. No reasonable person could dispute this. However, as Milton knew,

“They also serve who only stand and wait.”

Lawyers spend an inordinate amount of time standing and waiting, sometimes both. One solution to this aspect of things is that lawyers might charge by reference to time expended. In short, while they are waiting, “doing nothing”, they are entitled to be paid. Taxi drivers operate to some extent on this principle. So, what looked like a reasonable proposition needs refinement by the careful definition of what is meant by “work”. Then we need only make the “assessment” of value. The work of lawyers is not always equal or comparable. That is, some lawyers produce better work than others. (This can sometimes be explained by the role the lawyers are playing; in civil litigation, generally, a plaintiff’s barrister has a greater burden than a defendant’s barrister). One expression of this is to say that, not only do you need to know how to hit the nail on the head, you need to know which nail to hit and when to hit it.

2.       Assess costs by reference to the work appropriately done. Again, no reasonable person could dispute this but who is to decide what is appropriate? Generally speaking, following convention is a reasonable guide to doing appropriate work. (Another solution is that adopted by the Taxing masters of the High Court, who have assigned to barristers the job of defining what is appropriate work to bring an action on for trial. Of course, the Taxing masters are themselves an answer to the question.)

3.       Liberalise conveyancing services. This writer does not know what this phrase means.

4.       Allow clients to switch solicitors. Currently clients may have any number of solicitors they want. They may change their solicitor in any particular matter. What the proposal really means is this; that the client be permitted to change solicitor without reference to the fact that he or she owes the solicitor outstanding fees for work done in the matter. Currently, solicitors rely on a lien on papers to secure them their fees. (The client may withdraw instructions but will not get his or her documents or papers unless the outstanding fee is paid). If solicitors lose that lien they will, inevitably, require payment in advance for their services. That will have social consequences generally considered to be undesirable.

5.       Give the public direct access to barristers. Barristers, generally, do not want this and in due course, neither will a select group of the public – those members of the public who have accessed barristers directly. This last comment will be wrong, in time. That time will arrive when barristers have sufficiently changed to become very like solicitors. Then, they will take and manage client money; they will require larger premises and more staff and they will require to pay more for their professional indemnity insurance.

6.       Permit partnerships for barristers. Why not? Chambers of barristers in the UK very often deliver services as if the chambers were a partnership, but the Law Library in Dublin does the same. These are structures to pool resources and reduce costs. The missing element is the allocation of loss, due to wrongdoing or negligence, on a group rather than a sole practitioner. If barristers formed partnerships it would be for the presumed benefit, to them, of attracting more clients due to the extra security of the collective responsibility, but that is predicated on the supposed inadequacy of current professional indemnity insurance for barristers. If it is inadequate that problem should be addressed immediately.

7.       Increase the numbers of lawyers. Currently, as many as 1,300 solicitors are unemployed. Practising barristers are self employed. They are not so much unemployed as underemployed. Some are much more underemployed than others. Why generate more unemployment?

This subject of legal costs is reminiscent of the “discovery” of “Ida”, a 47 million year old fossil. The press release promised much as Time magazine remarked;

“All of which renders the press release touting a “revolutionary scientific find that will change everything” absolutely true — as long as by “everything,” you mean “whether the branch of the primate family that includes monkeys, apes and humans comes from the suborder strepsirrhinae or the suborder haplorrhinae,” according to the PLoS One paper. And by “change,” you mean “adds information that may or may not help settle the question, but whose implications won’t be known for a long time in any case.”

(See the New Scientist article on the topic HERE, paying close attention to the diagram HERE.)

Public speeches or comments by politicians should always be seen in that context.

One is reminded of the history of waste disposal and control in Ireland. Local Authorities were the regulators of waste disposal and were the greatest offenders; their sewage, alone, was a source of great damage and offence.

These are my thoughts as I note that, shortly, the Minister for Justice, Equality and Law Reform (“MJELR”) will disclose his plans for conformity with the IMF/EU “reforms” of the legal professions.

As I understand it, the professed intention is to eliminate wasteful costs.

To that end, the Minister could do worse than have a word with his fellow EU Ministers for Justice about extradition.

Surely the provisions of Section 11 of the Extradition (European Union Conventions) Act 2001 need adjusting?

They are too low.

Many offenders in Ireland, guilty of an offence falling within the terms (but not the application) of Section 11 would qualify for the provisions of the Probation of Offenders Act 1907.

What the EU states have done is this; they have resolved to spend money without reserve in pursuit of EU citizens who have collided with State power. They are saying there will be no opportunity to escape the State, regardless of the triviality of the offence.

Who pays for this? Well, in Ireland, the taxpayers pay and the MJELR spends that money enthusiastically.

When Ireland receives a warrant from another EU state for the extradition of a person a very costly process is commenced. This should happen in appropriate cases, but not in inappropriate cases.

It can, and does happen, that extradition requests are made in cases where the “absconder” received a suspended sentence.

Does the MJELR keep a horse? Does he not notice he needs to clean his stables?

2. Has the Law Society received legal advice that it may lawfully levy the cost of the bailout of the SMDF on solicitors?

3. Has the Law Society received legal advice that it may lawfully make that levy without any statutory power additional to its current powers?

4. Is any such legal advice based on cited legal authority?

5. What, if any, are the cited authorities?

6. From which branch of the profession does the advice come?

7. Will the Society release to the public the legal advice it has received relating to its proposal to bail out the SMDF?

8. Has the Law Society accessed the financial records of the SMDF?

9. Does the Law Society think that a liquidator should be appointed to SMDF?

10. If not, how does the Law Society think it should be managed and wound up?

11. Is it satisfied that the directors of SMDF are without fault in the collapse of SMDF?

12. Does the law Society think that the current directors should continue to manage SMDF?

13. Does the Law Society think that the Central Bank should be asked to make an independent report on the management of SMDF?

14. Does the Law Society accept that the Insurance Compensation Fund is not accessible by the SMDF?

15. Does the Law Society think that all SMDF reinsurance contracts will fall if SMDF goes into liquidation? If so, why?

16. Does the Law Society share the opinions of its appointed representative, Mr. Stuart Gilhooly, as expressed on twitter, on the subject of the SMDF:

a. that there could be an independent investigation of the SMDF?
b. that payment of individual “excess” money to an SMDF liquidator can be ring fenced and allocated only to secure the benefit of the SMDF reinsurance contracts? In other words, that SMDF can continue in business even in liquidation?
c. That the Law Society has the power to levy its members to bailout the SMDF?
d. By implication, that that power does not extend to non-members?

“I have done the State some service and they know it.”

This was feasible only when addressed to an ignorant audience. Othello was a murderer. He was deceived by Iago, but culpably so. He accepted everything Iago told him and took no opportunity to seek evidence of Iago’s assertions. Othello is in fact the minor character in his eponymous play. Not an exemplar for anyone and not to be quoted by way of self justification, particularly when the dominant note of the quote is self pity.

Currently, the Law Society aspires to be Othello, wronged but seeking vindication vainly. Who has been its Iago?

Should it not look to the available evidence. Is it available?

It is worthwhile examining the legislation empowering (and directing) the Law Society of Ireland to set conditions on the issue of a practising certificate to a solicitor.

HERE is the Statutory Instrument relating to 1998. [SOLICITORS (PRACTISING CERTIFICATE 1998 FEES) REGULATIONS 1997]

For example, the obligation to contribute to the Compensation Fund (designed to compensate victims of fraudulent solicitors) is derived from Section 30 of the Solicitors (Amendment) Act 1994. Without that statutory power the Law Society’s regulation could not be effective to compel the payment of the contribution of that year to the Fund.

The Solicitors Acts do not empower the Law Society to levy charges at the discretion of the Society, on solicitors. The charges levied are stipulated in the statutes.

In short, to repeat, currently the Law Society of Ireland has no power to lawfully compel the payment of the levy to make up the SMDF insolvency shortfall. The payment is not provided for in statute, or even contemplated.

2. The issue is whether they should assume responsibility to indemnify some negligent solicitors against claims made, or to be made, against those solicitors. The solicitors are (or were) solicitors “insured” by the Solicitors Mutual Defence Fund Ltd. (SMDF) and against whom successful claims for professional negligence have or will be made.

3. The Council of the Law Society of Ireland is in favour of this idea and sought to get authority to impose the responsibility on the profession by convening a meeting of Law Society members in the City West conference centre in Dublin.

4. There were sufficient members of the Society opposed to the Council’s idea to stymie its plan. The opposition, invoking the Society’s rules, undermined the Council’s meeting and forced remittance of the matter to a decision by postal poll. (Contrary to press report, the “meeting”[which convened anyway] in City West did not remit the matter to the poll).

5. Every practicing solicitor in Ireland is, nowadays, obliged to have insurance cover (PI insurance) for claims arising from the professional negligence of the solicitor.

6. There are a number of entities offering cover of this kind, the SMDF having been one.

7. “Entities” is used here to distinguish SMDF from its rivals, or competitors; they, unlike it, are all authorised insurers, regulated, nominally at least, by the Central Bank of Ireland. The SMDF was not like that. It appears to have been modeled on the structure of UK medical professional defence bodies current at its formation. Those bodies, at that time, denied that they “insured” member doctors, in the contractual sense; they indemnified them in practice, but denied an obligation to do so.

8. It is an astonishing fact that solicitors in Ireland accepted “cover” of such a weak kind, (from SMDF) to protect them when they most need help, but they did.

9. The cover was weak for two reasons; it was discretionary and it was, it seems, unregulated. (Being unlike its rivals/competitors, SMDF liquidators [if appointed] will be unable to access the Insurance Compensation Fund to make up shortfalls).

10. In principle the Law Society’s proposal is very odd. It overlooks the fact that every individual solicitor has paid for professional indemnity insurance. It seems to take for granted that solicitors should be collectively responsible for the negligence of any individual solicitor. This is a new principle; before PI insurance became compulsory, the only person answerable for a solicitor’s negligence was the solicitor at fault (and his/her partners, if any).

11. That SMDF has failed is, of course, of great concern. It was promoted by the Law Society of Ireland. Its directors were, invariably, past Presidents of the Law Society. Arguably, the failure of the SMDF is a failure of the Law Society. But that is not to say that the Law Society’s members are responsible for that failure. The members had no method of seeking accountability for the activities of the SMDF or the Law Society’s failures relating to it. (Even the High Court is constrained here; the Law Society of Ireland is a corporate body, but a very unusual one; it is not subject to the provisions of the Companies Acts. Most of the jurisdiction of the High Court over corporate bodies is derived from those Acts).

12. The Law Society’s proposal is not just odd in principle; it is unsustainable even on a cursory examination of its terms. It assumes that the Law Society or its members has the legal authority to impose a charge on solicitors.

13. The Law Society, in its proposal, intends to make the charge on solicitors a condition of furnishing the annual practicing certificate. In short, it will withhold the certificate if the charge is not paid.

14. The power of granting the certificate is one conferred on the Law Society by statute (the Solicitors Acts 1954-2002).

15. That such a refusal would be unlawful is immediately obvious, for this reason; solicitors do not have to be members of the Law Society.

16. To be a solicitor and to be a member of the Law Society is not one and the same thing. Consequently, what the members of the Law Society decide is irrelevant to the solicitors’ profession.

17. Consequently, it would be unlawful of the Law Society to deny a solicitor a practicing certificate unless he/she paid for the SMDF shortfall.

18. There are other good reasons to question the Law Society’s idea. The profession has no information as to why SMDF is insolvent. It has no information on any investigation, proposed or actual, into the management of SMDF. Without information like that, it is not possible to know exactly who is going to benefit from the Law Society’s proposal. By definition, only solicitors who have been negligent will benefit. Furthermore, given that SMDF asserts that it operates on a “claims made” basis for indemnity and that cover is yearly only and the only possible uncertainty lies with respect to claims which may be made before the end of 2011, the identities of the negligent solicitors in question are known to every practicable degree.

19. Who are they, that the Law Society is anxious to protect them?

What is good enough for Eoin O’Dell is good enough for McGarr Solicitors. We are now following his example (and some of his wording, which, we believe, he permits). The wording is not identical to his; his blog ranges into subjects where we do not venture. The reasons for this vary. We have, to date, for instance, refrained from telling the world our opinion of the film “The Last of the Mohicans”. (It is not a promotion of the myth of the noble savage; it rejects it. What is noble about Magua? Certainly, Uncas and Chingachgook are noble, not because they are savages but because they are civilized). (This being a blog and of limited space, it is not possible to reconcile the contradictory use of “civilized” in connection with characters unconnected with a city).

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“We get some emails asking for legal advice. (Not surprisingly; that’s the business we are in).
However, this blog is not intended to convey, and should not be construed as, or used as a substitute for, legal advice. It is written for general, informational purposes, and reading it does not create a lawyer-client relationship. Moreover, this blog is always under construction, and the contents are always changing, so please do not rely on any post as a comprehensive or current statement of the law on any of the issues discussed. No responsibility of any kind is accepted for any reliance you may place on anything I have written here.
There are lots of links in my posts, but I am not in any way responsible for the content of sites linked from here – such sites are the responsibility of those who maintain them; complain to them, not to me.”

(I am going to ask our IT department to place this in a more central place; some things are beyond me).

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.

We owe great debts to Montesquieu but he over-egged the pudding when he asserted the primacy of the constitutional principle of the separation of powers. The Executive power will not countenance, and never has, full judicial independence.

Consequently, it is naïve to think a court is not an agent for the application of Government policy, as expressed in law (and sometimes not so expressed).

This may not be the context for the judges’ lessons, but we can hardly think they need refreshers on whether Ms. Donohoe should have won in Donohue v Stevenson [1932] AC 562.

Perhaps they needed a good talking to about the imperative to front-load legal costs on uppity Plaintiffs seeking injunctions?

Or why proposals to re-introduce the death penalty into Ireland ought to be seriously addressed, to distract from current political difficulties?

Or why the current chaos in the Irish legal system, that is the provision of discovery of documents, should persist?

Of course, the lessons may not address these things at all. They may be perfectly standard “continuous professional development” stuff, consisting of a review of recent case law on some theme, say, Tort law.

Either way, it behooves the media to at least ask what is taught at Judge school. It might tell us something about Ireland we need to know, and God knows, we know very little.

In the King’s Inns the students and Benchers of the Inns eat dinner in the Great Hall of the Inns during term time. Each student diner is supplied with beer and half a bottle of wine (or port). Each Bencher diner is also supplied with those drinks, and brandy or whiskey. In Ireland, every judge of the superior courts is a Bencher of the King’s Inns. In the King’s Inns the last Thursday of each term is “Grand Night”.

The drinks allocation is doubled on “Grand Night”.

The ostensible purpose of the dinners is to follow the tradition by which education was imparted to new barristers; they learned what was what by eating, and conversing, with the practising barristers.

Nowadays, they probably confine themselves to conversation about how bad the Government is, or how fortunate Ireland is to avoid the US experience with the use of the death penalty, as reported HERE by the Guardian.

Of course, by the end of a Grand Night, they may be discussing how good the Cabinet is, (especially the Minister for Finance who is qualified as a barrister) and how the Guardian is not a quality newspaper.

He has clarified the words of a suitable jurisdiction clause on websites to confer jurisdiction within the EU. See HERE for how he did it. (This writer has adapted those words below to accommodate his purposes and intentions. Feel free to appropriate the clause without attribution, but on terms of repudiation of liability by this writer for such use).

He, (we are now back talking about the managing director; (see what happens when you eschew words like “aforesaid”)) has promoted (indirectly) the use of interrogatories in Irish practice and procedure.

He has generated legal work for members of the profession (with more to come in England).

These are not insignificant benefits. Why is the Chairman of the Bar Council silent in the presence of such merit?

The words:

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