The Gazette 1946-49

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GAZETTE APRIL 1 988
In
this
Issue {
Advertising: The Great
Debate or the Great
Mistake 61
A View from Vienna 64
Irish Legal History Society 65
Professional Indemnity
Scheme 67
Practice Notes 71
People & Places 72
Corroboration Requirement
in relation to
Sexual Complainants 75
E x t c u t i v* Editor:
Mary Gaynor
Committee:
Geraldine Clarke, Chairman
Seamus Brennan
John F. Buckley
Gary Byrne
Michael Carrigan
Jim Hickey
Nathaniel Lacy
Frank Lanigan
Charles R. M. Meredith
Desmond Moran
Daire Murphy
John Schutte
Maxwell Sweeney
Advertising:
Liam 0 hOisin. Telephone: 305236
307860
Printing:
Turner's Printing Co. Ltd., Longford.
The views expressed in this publication,
save where otherwise indicated, are the
views of the contributors and not
necessarily the views of the Council of
the Society.
The appearance of an advertisement in
this publication does not necessarily
indicate approval by the Society for the
product or service advertised.
Published at Blackhall Race, Dublin 7.
Tel.: 710711. Telex: 31219. Fex: 710704.
GAZETTE INCORPORATE D
LAWSOCIETY
OFIRELAND
Vol.82 No.3April 1988
Viewpoint
Too Many Cooks?
The recent decision of the Bar of
Ireland, apparently at the behest of
the Minister for State for Trade, to
restrict the number of Senior
Counsel to be briefed in personal
injuries actions in the High Court
does have its puzzling aspects. It
has always been explained by the
Bar Council that the need to brief
t wo Counsel in such cases flowed
from the manner in which such
actions are listed for hearing in the
High Court. Relying on the virtual
certainty that a high proportion of
cases listed for hearing on any
given day will be settled prior to the
commencement of the hearing,
app r ox ima t e ly four t imes t he
number of cases that actually could
be given a hearing are put into each
week's lists. In order to ensure that
a Senior Counsel will be available
to conduct each case that does go
on for hearing it became the
p r ac t i ce to brief t wo Senior
Counsel in each case. Such
Counsel were not briefed on the
basis t h at t hey wo u ld give
exclusive attention to the particular
case and not take on any other
briefs for the probable dates of the
hearing. Accordingly the fees of
each Counsel were no more than
half what they would have charged
as a single Senior giving the case
exclusive attention.
It the total of Counsels' fees is to
be reduced it would seem that the
listing system will have to be
changed in order to allow single
Seniors to take cases secure in the
knowledge that they will be able to
conduct the hearing, at fees which
would be less than those at present
being charged by the t wo Seniors
who are currently being briefed. A
change in the listing system whereby
dates for hearing are allocated on
a f i xed basis, such as t h at
operating for non-jury actions must
surely lead to a smaller number of
cases being disposed of each term.
Certainly the experience of other
Common Law jurisdictions where
fixed-date systems operate is that
the time lag between setting down
for trial and hearing is excessive.
There is a view wh i ch suggests
that the real anomaly in the three
Counsel system is the requirement
to brief Junior Counsel. Junior
Counsel plays little or no part in the
hearing of the average personal
injury action but yet is entitled to
be paid two-thirds of the Senior
Counsel's brief fee. A justification
for this is that Junior Counsel is
being belatedly recompensed for
the work which he has done at pre-
liminary stages of the case in
drafting all the formal documents
and indeed on occasion writing the
opinion on the basis of which the
proceedings have been launched.
The fees paid for this work do not
c omp e n s a te Jun i or Counsel
adequately for the time and skill
involved. However, to make it up to
Junior Counsel by allowing him to
collect substantial fees for work
which he manifestly does not do is
hard to justify. In addition Junior
Counsel will come off badly in any
case which is settled prior to the
issue of briefs to Senior Counsel in
that he will only have received the
inadequate reward of his earlier fees.
The requirement to instruct
Junior Counsel in judicial proceedings
was abandoned by the English Bar
some 30 years ago w i t h o ut
disastrous consequences for the
Bar. Far from squeezing Junior
Counsel out of the High Court, as
might have been feared, they are
regularly to be found conducting
actions wi t hout the benefit of a
Senior and have a virtual monopoly
of County Court work.
A similar development in this
jurisdiction might not only lead to
a reduction in fees in personal injury
actions but also be to the benefit
of the Junior Bar. An extension of
the jurisdiction of the Circuit Court
would mean that Junior Counsel
would have an opportunity of
presenting cases of considerable
importance which would be a
valuable preparation for future
work at the Senior Bar.
A later Ministerial pronouncement
t ook t he ma t t er further. The
Minister for Justice is to be given
power to limit the number of
Counsel appearing in personal
injury cases to one which seems to
suggest that Junior Counsel will, in
High Court cases, be excluded.
Contd. on pago 62.
59