The Gazette 1972

Two Senior Counsel Briefed For

Each Party In Superior Courts

Bar Council and Minister for Justice

BAR COUNCIL S STATEMENT

Only one of 15 reports from the Committee on Court

Practice and Procedure, submitted to the Department

of Justice since 1962, had been adopted, says a state-

ment from the General Council of the Bar in Ireland

issued yesterday.

It criticises the attitude of the Minister for Justice,

Mr. O'Malley, and describes his recent statements as a

public manifestation of the hostility of his Department

towards the Bar.

Mr. O'Malley is expected to reply to the statement

today.

The Bar Council refers to the Minister's statement,

especially his choice of language in designating as "a

hit of a racket" the use of two Senior Counsel in cases

before the Courts. It stresses in the statement that the

work load falling on the Supreme Court and'High

Court Judges cannot be disposed of if there is any waste

°f judicial time, which would necessarily result if dates

°f the trial and actions and appeals were fixed in

advance.

Uncertain

The statement says that as a result, the barrister

cannot normally expect any more than 24 hours notice

°f when a case will be tried and quite commonly it is

uncertain whether a case listed for the following day

will be taken that day.

"When Senior Counsel is asked by a solicitor even a

Week before the probable date of trial to give exclusive

attention to an action without the assistance of a second

Senior Counsel he is put in a difficult position. He

does not know what other briefs he will have to return

°r decline if he agrees because the same uncertainty as

to the date of trial afflicts most of his briefs. If he

accepts the invitation any reasonable fee will probably

xceed what would be paid for the part-time services of

two Senior Counsel.

"In most cases where a single Senior Counsel is

briefed it can be assumed that the client can afford to

Pay a very substantial fee irrespective of the outcome of

the action."

The ordinary citizen pursuing a claim for damages

for personal injuries against an insurance company does

not fall into that class, it is stated.

The Minister for Justice, at Belgrade for a confer-

ence of the World Peace through Law Centre and

more recently in the Dail, had pleaded in mitigation

of the State's failure to introduce a scheme for legal

id in civil cases, that it was the tradition of the Irish

Bar to act for litigants who could not afford to pay

Counsel's fees.

"The Minister appears now to have designated as 'a

kind of a racket' the practice of two Senior Counsels

which makes this service possible. At the same time in

the new Courts of Justice Bill the Minister is taking

away the exclusive right of Barristers to appear in the

High Court and Supreme Court, which is the founda-

tion of the tradition on which the Minister relies," the

statement says.

Barristers believed that they had an obligation to

appear for poor litigants because Barristers had up to

now the exclusive right to audience in the Superior

Courts and failure of the Bar to act in that way would

have deprived their fellow citizens who could not afford

Counsel's fees of the right of access to the Courts.

Outrageous

The Minister appears to have said it was 'outrageous'

to have two Senior Counsel briefed for the same party in

the High Court in an action which the amount involved

might be only £700. The Bar Council agreed with the

Minister, but would point out that this situation

is solely due to the failure of the Department

of Justice to keep the jurisdiction of the Circuit Court

in line with the falling value of money. The present

jurisdiction of the Circuit Court was fixed at £600 in

1953 and had remained unaltered for 18 years.

"If the Minister wanted to be reasonable he

could have told the Dail that in these small cases fees

are allowed by the Taxing Master to one Senior

Counsel only. It is not the practice of the Bar to

ask a poor litigant to pay out of the damages he has

recovered, fees to Counsel whom it was necessary for

him to employ but which are not allowed on taxation."

Fees

In its criticism of the Minister's proposed regulations

for the Taxing Master, the Bar Council says that the

Minister's statement that he intended to give directions

to Taxing Masters not to allow fees to more than one

Counsel except in serious cases would appear to indicate

either lack of knowledge on the Minister's part of the

constitutional limits of his authority, or perhaps an

intention to act in violation of the Constitution.

The Taxing Masters were administering justice and

determining matters in dispute in regard to costs.

Any attempt by the Minister to impose his views on the

Taxing Masters would appear to be a flagrant inter-

ference with the constitutional right of citizens to have

their cases determined by due process of law.

"The Minister's statement bears a more sinister

appearance in the light of the unprecedented invasion

last week of the Taxing Masters Office by the Depart-

ment of Justice, when over the weekend a Taxing

Master's files were surreptitiously removed and he was

barricaded out of his office.

If this can be done to an officer of the Court, a little

more temerity might suggest it could be attempted on

the Judges, though this would be unnecessary if the

Minister succeeded in usurping power over the officers.

If the Minister can control the officers of the Court

and dictate to Taxing Masters what costs they are to

allow it would be easy to control the citizens' right of

access to Justice," the statement concluded.

(Irish Independent,

8th December 1971)