The Gazette 1994

345 / 432

GAZETTE
V I E W P 0 I N T
NOVEMBER 1994
Cour t Re f o rm - One St ep Forwa rd,
Two St eps Backwa rd
Wh i le the L aw Society, quite rightly,
we l c omed many of the reforms
proposed in the Courts and Court
Officers Bill recently published there
was, at the end of the day, not much
j oy in the Bill for practising solicitors.
The good news is that solicitors will
now be eligible for appointment to the
Circuit Court bench - though, sadly,
not to the higher courts - and the
President of the L aw Society will in
future have a role in the nomination of
candidates for appointment to judicial
office in all the courts. The
establishment of the new Court of
Appeal, which will have a civil as
well as a criminal jurisdiction, is also
to be we l c omed and, when account is
taken of the recent announcement by
the Ta o i s e a ch of the proposed
appointment of additional judges to
the District, Circuit and High Courts,
it is to be expected that there will, in
due course, be a considerable
speeding-up in the civil work of the
courts. The L aw Society has also
given a cautious we l c ome to the
proposal to establish a Courts
Commi s s i on provided that the
Commi s s i on is comprised, in addition
to judges, of lay persons with proven
administrative ability and managerial
skills and that it is given the necessary
administrative support at senior
ma n a g eme nt level to enable it to carry
out its functions effectively. Wh e t h er
or not this will be the c a se remains to
be seen as the Bill provides only an
enabling power for the Minister to
appoint the Commi s s i o n.
The provision that has caused the
most serious disquiet in the legal
profession is that contained in the
very final section of the Bill - Section
4 3 - under which the Minister has
taken unto herself a power to
prescribe appropriate scales of
solicitors' costs and counsels' fees in
the District Court, Circuit Court and
in the higher courts. This power will
operate in c i r c ums t a n c es where the
relevant rule-making authority is
requested by the Minister to submit
for the Minister's c on c u r r e n ce rules
governing costs and either fails to do
so within three months or submits
rules containing scales that are, in the
Minister's opinion, e x c e s s i v e. In our
view, this is a most retrograde step.
Given the developments in relation to
legal remuneration o v er the years and
especially the provisions contained in
the Solicitors ( Ame n dme n t) Act,
1 9 9 4, this can only be described as an
extraordinary provision. The Minister
is sending a clear signal to the rule-
making c ommi t t e es of the courts and
to the legal profession as a whole that
she intends, once again, to introduce
scale fees with rigid controls on party
and party costs in litigation.
It is now over twenty years since party
and party costs were last prescribed by
statutory instrument. Many people,
even then, considered that such legal
controls were inappropriate but, of
course, great changes have occurred
throughout our e c o n omy since the
early 7 0 ' s and the Minister's current
proposals run totally counter to the
prevailing ethos of freedom of
contract - which surely applies to
solicitors as well as to others - under
which appropriate fees can be
negotiated on a c a s e - b y - c a se basis
having regard to the work done. The
mo ve is also, of course, totally at
variance with the rules of modern
competition policy. Mo r e o v e r, in a
situation in which the reasonableness
of solicitors' c h a r g es can be assessed
by an independent taxing master in the
courts and in which, consequent on
provisions in the Solicitors
( Ame n dme n t) Act, 1 9 9 4, solicitors
must notify their clients in a dv a n ce
about the level or basis of their
charges and the L aw Society is
required to deal with complaints about
e x c e s s i ve costs, this latest provision
will be seen as an attempt by the
Minister to 'bully' the rule-making
c ommi t t e es into submission. How,
may we ask, is the Minister in a
position to substitute her views for
those of the court experts on what are
appropriate levels of solicitors' fees?
We would challenge the right of any
Minister or ministerial advisor to say
what is or is not an appropriate level
of remuneration for a solicitor in
litigation in our courts. It should be
pointed out that, in drawing a formal
bill of costs in the Circuit and higher
courts, the main item of remuneration
for a solicitor is the 'instructions fee'
which is a discretionary fee that
depends on matters concerned with
the c omp l e x i ty of the c a se and the
importance of the case to the client. It
is in fact the fee that rewards a
solicitor for his work. Is the Minister
going to attempt to control a fee that
is discretionary and must, of
necessity, vary from case to c a s e?
In this and other respects, this Bill
bears striking evidence of having been
put together in a very rushed fashion
without having been properly thought
out. This is no way to deal with
reform of our courts and the
administration of our legal system.
Undoubtedly, more will be heard of
this. •
I R I S H
D O C U M E N T
E X C H A N G E
O V E R N I G H T - E V E R Y N I G H T
E V E R Y W H E R E
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