(Carlow-Kilkenny): I wish to share time with Deputy Jim Mitchell.
Solicitors (Amendment) Bill, 1994: Second Stage (Resumed).
Is that agreed? Agreed.
(Carlow-Kilkenny): Is ceart go bhfuil an Bille seo os ár gcomhair inniu agus tá súil agam go mbeidh Billí eile os ár gcomhair sul i bhfad a mbeidh baint acu le gach gné den dlí, go mórmhór na nósanna atá againn faoi láthair i dtaobh na cúirteanna. Nósanna iad seo a bhí ann in aimsir Bhriain Boróimhe agus tá sé thar am leasú a dhéanamh ar gach gné den dlí i dtreo is go mbeidh sé oiriúnach don lá inniu.
Solicitors like politicians have been described as good, bad and indifferent. Those who embezzle money or give bad service give the rest a bad name. Solicitors are in a position of trust. Once they were family friends who advised the family at times of crisis. Because of the nature of their work they are told secrets, given valuable documents and are asked to decide on property issues. It is serious when clients are stung by solicitors but it is not fair to label all solicitors as being bad. Two or three days ago I contacted a solicitor about a person who was getting a raw deal and awaiting free legal aid and he agreed to advise him free of charge. Solicitors have to charge fees, but some go beyond the call of duty and are an example and a credit to their profession.
At a different level fees at the Beef Tribunal were raised but it is the system which is at fault. If I was offered £1,000 a day by the Taoiseach or a Minister to attend Dáil Éireann I would gladly do so. The system must ensure that people who stand by an arrangement do not have to take the blame when they are not at fault. I am glad that the Incorporated Law Society will have the power to deal with difficulties that may arise. Solicitors carry the blame for matters outside of their control, for instance delays at the Land Registry. While the process at the Land Registry has been speeded up delays are still being encountered. The absence of Circuit Court judges also causes delay. When judges go on circuit one case can hold up a whole sitting. For justice to be administered effectively it must be administered speedily. I raised this point with the Minister before and asked her to appoint more judges.
Solicitors have to deal with judges who at times get carried away with their own importance and display arrogance not in keeping with the setting in court. Innocent God fearing people dread the thought of having to give evidence under oath and are very careful in what they say — criminals probably do not care. On one occasion a High Court judge insisted that a person give a yes or no answer when only a fool would have expected such an answer.
Will you stop beating your wife?
(Carlow-Kilkenny): When the fool happens to be a High Court judge what can one do? A barrister tried to run rings around a friend of mine giving evidence in court by suggesting that he had said something he had not said and when my friend replied that he had said no such thing the judge rapped the desk and warned him to be careful of his language when replying to counsel. The court system has to be modernised as judges can be very arrogant in dealing with people.
Methuselah was a wise old man who probably lived beyond his time. Judges should have to retire at the age of 65. I do not know why they are considered to be wise old men. A former Taoiseach thought he could compete with the Chinese but judges do this all the time. Age should be considered and judges should undergo psychological assessment every few years. On a Bill earlier today reference was made to the views of judges on the question of divorce. With all due respect to judges many are probably not in a position if they hold certain views to impartially judge the middle of the road legal position. While they are entitled as private citizens to hold these views they should not be allowed make judgments weighted by these views.
Section 69 deals with advertising. Now-adays people are very much aware of the possibilities for suing for compensation. Solicitors advertise their services on a no foal, no fee basis and encourage people to pursue compensation cases. Why would a person not pursue a case if he does not have to pay any fee? The Bill provides that if advertising brings the profession into disrepute the Law Society may intervene. Such advertisements should be banned because we have to dispel the notion that the first thing a person should consider when an accident happens is who should they sue for compensation.
It was never right that solicitors could take a percentage of the compensation paid. I am glad that that practice will be prohibited. This should apply to other professions also. I fail to see why architects for example should be given a percentage of the total cost of a project for doing a drawing. This is a crazy system which should be abolished.
It is a welcome provision that the solicitor and client will have to agree a fee. It is important that a client should know what he or she will have to pay. It is only fair to the solicitor who I am sure would also like to be paid promptly.
On the question of probate, the Minister appears to have changed her mind about allowing the banks to provide this service. Solicitors are qualified to do the job. If a person owes money to the bank they are the wrong people to give advice on what a person should do with his property or money or in making his will. A bank to whom one owes money might coerce one into doing something to suit it. It would be far better if a person sought advice from an independent solicitor.
Many people with a law degree cannot quickly become apprenticed to a solicitor and may have to wait perhaps 12 months for an apprenticeship and when qualified they cannot get work. In one recent case because of the number of applicants two people were taken on and the salary split. This is a form of slave labour. Will the Minister look seriously at the question of allowing people to qualify as solicitors?
The Bill provides a welcome opportunity to debate issues of public concern. Many of the provisions in it will not be pleasing to some solicitors. Indeed, they have been successful in getting the Minister to back down on sensible and overdue proposals. That is a great pity and I hope the Minister will consider and stand her ground. There may be a case for phasing in some of the provisions but the Minister should not cave in so easily to the pressures of the solicitors lobby.
That the Minister has caved in is evidence that legal reform is fraught with great difficulty and bound to run into opposition from powerful forces which are not always the best guide to their own long term interests. A case in point were the scandalous fees charged by and readily conceded to barristers for acting for the State in the beef tribunal. The Committee of Public Accounts was told that the fees conceded were dictated by market forces, yet Part III of the Bill proposed to permit investigations into complaints about excessive fees charged by solicitors. The beef tribunal episode demands that similar provisions be urgently enacted in relation to barristers.
Other aspects of the beef tribunal are also deeply troubling and reflect badly on the Attorney General. It was the Attorney General who, without any advice from his senior legal assistant — the equivalent of a Secretary of a Department — set the astonishingly high daily legal fees without any provision for scaling them down as the timescale of the tribunal increased. It was the Attorney General who nominated the four barristers, two senior counsel and two junior counsel, to the State's legal team. All of them, like himself, were affiliates of the Fianna Fáil party. Moreover, economic and public relations consultants were appointed to advise the State legal team, unknown to the Ministers of the other party in Government at the time, and these consultants were also connected with Fianna Fáil.
It is not the practice in the House to criticise the Attorney General.
The Attorney General deserves to be severely criticised. I will not be silent on this matter. This House has been silent for too long. The Attorney General can, if he likes, answer for himself.
He can do so by making a public statement or coming before the Committee of Public Accounts. I ask him to come before the Committee of Public Accounts to answer for himself.
It is long-standing practice in the House not to criticise the Attorney General.
It may be a long-standing practice but it is a damned odd one that the Attorney General, like the courts, is accountable to nobody for a very bad performance.
By arranging or permitting these acts of folly the Attorney General has allowed a situation to develop whereby the entire presentation of the State case at the tribunal can be categorised as a mere one-sided party-political presentation. This behaviour by the Attorney General must cause enormous problems for the tribunal which was established for the purpose of adjudicating between serious political charges by major political personalities of different parties. The question that arises is how could a totally Fianna Fáil team of barristers impartially represent "the State" when "the State" included Ministers of four different political parties in three different Governments. In the course of the tribunal did some Ministers and former Ministers query what they saw as hostile questioning from the very legal team which was supposed to be representing their interests? Were applications for separate legal representations turned down by the Attorney General to whom the matter was referred? The performance of the Attorney General in relation to the tribunal was such as to call into question his fitness for office. There is an even greater and more fundamental point.
I have drawn the Deputy's attention to the procedure in the House and I ask him to obey it.
I am leading up to what I consider to be an important point. An even greater and more fundamental point arises from the experience of the beef tribunal. If the legal officer of the two-party Government at the time could act in such a blatantly one-sided party-political way in relation to a tribunal which, above all else, should have been totally neutral politically, can his advice be trusted on such other important matters as judicial appointments and promotions? The public should be forgiven for thinking that judges depending on the Government for promotion may not be as independent as they should be in discharging their duties, especially when the behaviour and performance of current Ministers in office are the subject of their judgment? A case in point is the upcoming vacancy in the post of Chief Justice. Can any of the potential contenders already on the Bench be independent or be seen to be independent of the Government? The President of the High Court is an illustrious judge and is only second in rank to the Chief Justice. It would not be unnatural for him to expect promotion to a vacancy in that office. For such promotion he is depending on the nomination of the present Ministers, some of whom have a vested interest in his findings as sole member of the Tribunal of Inquiry into the Beef Industry.
The Deputy appears to be concentrating on aspects of the beef tribunal which are hard to relate to the Bill.
I am connecting this with the Bill. The Bill purports to be major legal reform. I am arguing that its proposals ought to be extended to barristers, the courts, the Attorney General and the Director of Public Prosecutions because although they ought to be independent in the conduct of their duties they must be accountable to somebody.
I must remind the Deputy of what I said about procedure in the House relating to the Attorney General. It is not the practice to comment in this way.
I do not want to transgress the rules of the House but it is my public duty to highlight this. If we cannot criticise in this House what we perceive to be serious wrong-doing by the Attorney General where can we do it?
I ask the Deputy to concentrate on the Bill and refrain from any further comment on the role of the Attorney General.
The Chair can take it that I will not be saying anything further about the Attorney General. I have made my point.
The Deputy has got his headline.
It is not just a headline, it is a very important fact. The time has come to change the method of appointing judges. At present judges are appointed without the need to have regard to their track record and, once appointed, they cannot be held accountable even if they are grossly inefficient or ineffective in their court. I am not referring to their individual decisions; there can be huge delays in the courts. Recently the Tánaiste proposed that the role of the President should be expanded. Article 35.1 of the Constitution provides that judges should be appointed by the President. In reality the appointments are made by the Government and merely rubber-stamped by the President. I do not see why that role cannot be reversed, even under the Constitution. Article 35.1 is superseded by another provision which states that the President shall act on the advice of the Government except where it is specified that she has absolute discretion. She does not have that in realation to the appointment of judges. The President should be given power to initiate the appointment of judges. She should nominate appointees to the Government and if the Government does not accept that person she should nominate another. It is important to remove the appointment of judges from the political arena so that there is total separation of the Judiciary and the Legislature. Even within the constraints of the Constitution it should be possible to do so and if the Tánaiste is serious about expanding the role of the President he should take this on board. A judicial commission should be established to vet the effectiveness and efficiency of the courts. When I was Minister for Justice there was a long delay in hearing a particular case in court but nothing could be done about it. The judge was old and doddery. The case went on for years and judgment was reserved. Such problems need to be addressed. A judicial commission could oversee the efficiency and effectiveness of our prosecution service in the office of the Director of Public Prosecutions which also must be independent of the political process but should be accountable to somebody. At present that office is not accountable to anybody. I hope the Solicitors (Amendment) Bill, 1994 is a first step in major judicial and legal reform because much more needs to be done urgently in this area.
I wish to share my time with Deputy Creed.
Is that agreed? Agreed.
While I accept all that was said about the need for reforming the legal profession, I will take a more balanced view, dealing with the positive aspects of the profession and speaking on behalf of many good solicitors with whom I come into contact during my work.
When the last Coalition Government introduced a similar Bill I expressed a fair and balanced view on the legal profession. I stated that it was easy to criticise a profession with whom we as legislators are often at loggerheads. Solicitors are the foot soldiers of the legal system and easy targets for the heavy artillery of the Government and all of us in this House. It is obvious that they do not have as many friends in this House as the Bar.
Does the Bar have many friends here?
The fees to barristers in respect of the beef tribunal are sufficient evidence of that. Why should there be a difference in the treatment by both Government parties of their friends at the Bar and their apparent enemies in the solicitors profession?
This legislation will not benefit the legal profession. It is negative and does not contain any positive steps to assist that widespread profession. There are approximately 5,000 solicitors employing 10,000 people. In Kerry, more than 250 people are employed in solicitors' offices. The 15,000 people who are gainfully employed by that profession make a meaningful contribution. In our local constituencies we know these hard working and dedicated men and women whose work frequently brings them into conflict with others. The losing party in such conflicts often blames the judge and then the solicitor. The party cannot take its defeat and targets the solicitor for complaint at no cost to himself or herself, but at enormous cost and loss to the solicitor involved. Clients are entitled to make complaints and take proceedings against solicitors who do not carry out their duties properly, but if a person loses a case the trend is to blame the solicitor for everything. This Bill does nothing to redress that wrong.
The cost of controls and the complicated procedures with which a solicitor's office must comply ultimately falls on the public. The Government and the Law Society should explain the need for the many loosely worded controls. I am not familiar with all of them but I will outline some. An accountant's certificate must be paid for by the solicitor every year. This involves an outside accountant checking the books for several days at considerable cost. A Law Society accountant must carry out a spot check, again paid for by the solicitor through his or her substantial compulsory payment to the Law Society. Control is also exercised by the Law Society's various committees, inspectors and accountants.
A member of the public can make a complaint, no matter how trivial, unjust or irrelevant to the Law Society, who investigate it. Under legislation a solicitor, if found guilty of misconduct, excessive charges or shoddy work, can be severely penalised. This Bill does not contain any provision for redress for frivolous complaints made against solicitors. They may be put to endless trouble, frustration and expense but the complaining party does not pay anything. That is most unjust and should be redressed especially if there are no grounds for the complaints.
Solicitors can be sued in all our courts, similar to the rest of us. We are appointing an ombudsman for the Law Society and law observers, but who will pay for these services. There will also be compulsory expensive indemnity insurance and the press will monitor court performance. Is all that bureaucracy necessary? Is there a need for everyone to be the big brother at a substantial cost to the public? The sophisticated public can avoid the few disreputable solicitors. People are aware of the solicitors who do a good job and if a solicitor has a bad reputation people will avoid him or her. Such solicitors should be answerable for their shoddy work.
Clients and the public in general are well protected by the compensation fund, again paid for by solicitors. Honest solicitors carry the cost for dishonest ones. That is unacceptable and results in higher costs for honest solicitors. I understand that those and other administrative costs to a practising solicitor in a busy office amount to approximately £30,000 per annum. For that reason we should not be surprised at the high cost of legal fees, especially when one considers the 21 per cent VAT levied by the Government. It is interesting that the Government should criticise the 10 per cent fee imposed by solicitors for handling a High Court case that can take up to five years to get to court due to the inadequate court system while the Government levies a 21 per cent VAT rate. Are widows, orphans or poor clients exempted? They are not. Everybody is charged at the 21 per cent rate. Is a legal aid system available for private solicitors and injured clients to get a case to court? There is not, but under this legislation a restraint is being put on solicitors' fees. This is dangerous because it will protect the Government's friends in the insurance business. If the independent solicitors' profession is starved of funds those multimillion companies cannot and will not be tackled. The public not only understood but welcomed the 10 per cent levy if a case is run on a "no foal, no fee" basis. Because of the delays and expense of court proceedings, most cases cannot be taken by people against major insurers. This Bill should contain more positive aspects.
Why can solicitors with ten years' practical experience not be appointed to the District Court, High Court or Supreme Court? Those solicitors have daily contact with clients and if appointed to the courts would make them more user friendly at a time when we need more Circuit Court and High Court judges. If they are not provided people may take the law into their own hands. Why are honest solicitors compelled to contribute to a compensation fund to provide compensation for those who suffer as a result of the dishonest dealings of some solicitors? No other profession is compelled to contribute to such a fund. Why is there not a private practitioners legal aid scheme here as in England? The so-called legal aid scheme here is public and is an expensive disaster. The provision of better court facilities to deal with family matters is essential.
I thank Deputy Deenihan for sharing his time. I welcome the thrust of the Bill. In analysing such an important Bill we should reflect on what is perceived to be its consumer ethos. The difference between perception and reality is often stark. Undoubtedly the legal profession is perceived by the general public as being an avenue to fame and amassing a fortune. Members of this House should be extremely cautious of using that premise as a reason for legislative initiatives. If we accept that perception as reality without careful analysis, logically we should next turn on ourselves to satisfy public perceptions because, as with the legal profession, politicians are perceived also to bask in the lap of privilege, fame and fortune. In reality we know that is not the case and it behoves us to familiarise ourselves with the reality of the legal profession before taking legislative initiatives.
The law has an enormous influence on our lives and it is logical that the legal profession, especially those in its vanguard should become almost household names. This is all the more reason those people should act with prudence and propriety and should never act in a fashion that would bring the law or the legal profession into disrepute. Unfortunately, that has not always been the case.
Previous speakers referred to the beef tribunal. The most public manifestation of the descent into disrepute of the legal profession emerged during the beef tribunal. The public were entertained daily——
The Deputy should concentrate on the Bill and not on aspects of the beef tribunal.
My reference to it is relevant to the Bill if the Chair will allow me develop my point. During the beef tribunal the public were entertained by high drama, the cost of which has been the subject of enormous public criticism in recent weeks. By any standard the fees charged by the legal profession at the beef tribunal, albeit agreed by the State and endorsed by the political system, constitute a scandal of enormous proportions and have served to undermine the law, the legal profession and other institutions of the State. The concept of an honest day's work for an honest day's pay was stretched beyond all credibility. The perception of the legal profession with their snouts in the trough of the State, with the blessing of the political establishment, was firmly based in reality.
It is ironic and regrettable that the legal profession may end up hoist on its own petard in this regard. Many people want to enter the legal profession and that is not only confined to leaving certificate students. The numbers swarming around the entrance doors to the legal profession, having arrived by a variety of routes, is enormous. Many of them are driven by a perception, which has little basis in reality, that a fortune is to be won if they could only turn the key to that door.
The reality is very different. Recently I spoke to a solicitor in a small rural practice who receives a number of applications weekly for apprenticeships. Law students apply to hundreds of law firms around the country to secure an apprenticeship. Invariably in that environment, it is inevitable that market forces will take over and the reality for many apprentice solicitors is very low wages. Many law students and law graduates fail to get any apprenticeship. Another reality must be recognised also. In the absence of a meaningful extension nationwide of the civil legal aid scheme there does not appear to be a market demand for additional solicitors nor for the numbers currently embarked on a course which they hope will lead them into the legal profession.
In this Bill the Minister made an intervention into this vicious circle which deserves the closest scrutiny. In sections 40 to 53 the Minister proposes wide-ranging changes to procedures governing admission to practise as a solicitor. The most serious consideration must be given to those proposals and their impact on the profession. As a rule of thumb it is questionable to advocate a shorter education period at a time when the needs of society are for greater specialisation. It has been claimed that this legislation was needed to protect the consumer but that proposal does not pass the consumer test. It is not in the interest of the consumer to lower educational standards so as to satisfy more people wishing to qualify as solicitors. That is a short-sighted approach which will not improve the lot of the consumer.
Why did the Minister not give consideration to the obvious alternative route to resolve that problem which has much to recommend it and indeed which can be more easily adapted to changing circumstances, namely, the intake into law faculties of our universities? In this instance, it would appear the legal academics had the ear of the Minister and carried more political clout than the legal practitioners.
Other provisions in the Bill, wrapped in the consumer ethos, will, in view of the impending influx to the profession, amount to a self-fulfilling prophecy of doom. Those measures include proposals to grant powers to the Law Society to deal with complaints of shoddy work; proposals to appoint an independent adjudicator to consider complaints about the society's handling of complaints against solicitors and the establishment of a disciplinary tribunal to investigate allegations of professional misconduct. In the new environment in which solicitors will have to operate if the Bill is passed unamended, those measures will be widely availed of.
There is no evidence that we have too few solicitors. With a fixed amount of business to be carried on, an underdeveloped civil legal aid scheme and the anticipated influx of a large number of solicitors, an unhealthy competitive streak will emerge and with it an inevitable lapse of standards. I urge the Minister to further consider these proposals with a view to regulating entry to the profession through the low faculties of our universities.
I am somewhat concerned about section 59 which proposes to prohibit the Law Society from preventing solicitors from advertising their fees. That proposal is wrapped in the consumer ethos and designed to make it difficult to challenge. It is also important to differentiate between public perception and reality in that regard. The public perception is of uniform high earnings across the board whereas in reality many members of the legal profession charge no fee or a small fee for clients in needy circumstances. That should be acknowledged and the best approach to that issue should be based in reality and not ill-considered views based on solicitor-bashing stereotypes. We must concern ourselves with substance and not image or form. We must not fetter the legal profession so as to satisfy some perceived consumer need which on examination may be unworkable or undesirable. That has particular relevance in the areas of advertising.
On the publication of a number of reports on the legal profession there was a debate in this House on the need for advertising legal services in the interests of the consumer. Yet when the Law Society introduced regulations permitting limited advertising there was criticism of the nature of such advertising and it was suggested that it encourages litigation and a claims conscious society. What message are we giving to the legal profession? What do we want of that profession? If the fee advertising provision in this Bill, which solicitors have made clear they do not want, is implemented, will we criticise solicitors for offering bargain rates?
This Bill proposes to extend advertising to fee advertising, apparently in the interests of consumers, but how will consumers be assisted by this measure? Legal services cannot be compared to purchasing soap powder or to the provision of a service of a short duration. In the legal service there are too many variations so as to make comparison real.
Even the legally uneducated can consider innumerable variations in legal transactions. The Minister should give serious consideration to deleting this section of the Bill.
There is a great temptation to be as disorderly as previous speakers in this debate and to dilate on matters in which I have a close interest, but I will stick to the issues that arise in the Bill. I agree with Deputy Creed that it is tempting to adopt the view taken by the Fair Trade Commission and its equivalent in foreign jurisdictions that it is uniformly beneficial to encourage price competition in the practice of law. It is tempting to articulate the view that the consumer is best served by rigorous price competition which should be the sole purpose of Government intervention in the market for legal services. Without apology, I take the view that, unlike window cleaning, litigation is not universally beneficial. To increase the number of litigation cases does not benefit society. Litigation involves a person winning and a person losing. For the party who loses, litigation is involuntary and can spell disaster. It is a mistake to adopt the view that the more litigation that takes place and the cheaper it is the better. Obviously the cheaper litigation is in general terms, the better, but the views that the more litigation that takes place the better is one with which I cannot identify.
I spoke here previously about the effect of the present regime in terms of solicitors advertising. As a practical experiment I rang the Golden Pages to ask the cost for a solicitor to place a full page advertisement in that directory. I was told it is in the region of £10,000 and if a spot colour is used on the page it would be up to £11,000. In the Golden Pages, at least for the Dublin area, there are many full page advertisements by solicitors seeking clients, largely on the basis of a creative image. What is the purpose of such advertising? Is it to the benefit of society or does it create a claim conscious society? I believe the latter is the case.
Under the present advertising rubric most people know they can go to a solicitor and bring a claim in court. Advertisements do not improve the quality of service to clients. In large measure they are aimed at the gullible. They do not bring work to those who are most qualified to do it, but are used to bring about litigation where cases would not otherwise be taken. That may be done by way of an advertisement of a clever, intelligent looking solicitor posing in an arm-chair in front of a case of books, with an impressive standard lamp on his desk and with a statement underneath the picture that the person specialises in such matters as "slip and fall" cases. It always amuses me that solicitors claim to specialise in "slip and fall" cases. If solicitors specialise in such cases as opposed to "dive and sue" cases, the question must arise as to whether society benefits from such advertising. The number of litigation cases taken is not necessarily an indicator of the well-being of society.
In an interesting memorandum to the Pringle report on civil legal aid a civil servant who was a member of the advisory committee dissented in very trenchant terms from the proposal to establish a comprehensive system of legal aid. He did so on a very unfashionable basis in that he said that every penny spent on legal aid could also be spent on old age pensions, poverty amelioration and so on. On balance he took the view that such application of the funds is likely to do more social good than funding legal advice and litigation. In our society the case does not exist for a system of comprehensive legal aid. The limited legal aid that exists at present through the legal aid centres, if it were made available without delay, would probably be a correct focusing of limited resources on social issues. It would be foolish to bring consumer law and personal injuries litigation within the remit of State-sponsored legal aid because it would divert resources which ought to be applied to much more meritorious ends.
I do not agree with the present regime of advertising because it does nothing to cut costs. The question arises whether one should extend the liberty to advertise to cover fees in the hope that it will reduce them or whether one should simply say it is not worth the candle and leave things more or less as they are or even try to limit the capacity of people to seek work and litigation by using ambulance chasing type advertisements?
There are good grounds to be worried about price advertising by solicitors. It is not in the interests of the ordinary punter that a solicitor of very limited competence should be able to prey on gullible people and those who are not aware of his limited competence by promising to do work at a fee which seems attractive at first glance. I do not think in most cases that such a solicitor will promise to do a good job or that its net effect will be to bring work to people who are competent to do it. Rather it will give rise to more of the present "slip and fall" style of advertising which has the effect of diverting work to those with a neck rather than to those with competence. I make that point subject to my acceptance of the proposition that people are entitled to know what going to law will cost them.
Litigation is much too expensive. There are a number of reasons for this, many of which have to do with court procedures and the inefficiencies in our system. We could make our system of litigation much cheaper. The present system of determining barristers' fees is most unsatisfactory. This statement may lead to me being hanged in the Law Library, but the system of recovery of costs at any rate is conducted on the basis of fiction, that is, the solicitor negotiates a reasonable contract on behalf of his client with a barrister and negotiates a reasonable professional fee with his client before the case starts. The client has at all times been aware that the case will proceed on that basis and since the fees are reasonable the other side can pay the cost if they win the case. The entire notion of the taxtion of costs, when married to the "no foal, no fee system", gives rise to inconsistency. Is it reasonable for me to say that I will represent Deputy O'Donnell in the Four Courts in a libel case, to agree in advance a fee she will pay if I win the case and then go to the other side and say I had won the case and I wanted them to pay the fee Deputy O'Donnell and I independently agreed if I won without regard to the fact that Deputy O'Donnell might have no intention of paying me the fee if I lost her case? There is a problem on that front at present. Marrying the notion of "no foal, no fee" representation with what is effectively a system of assessing costs based on a completely different principle, that is, people dealing with each other on an arm's length basis and deciding the fee irrespecive of the outcome of the case, needs to be visited in a way which is fair to litigants.
It used to be the case, and still is the case in theory at any rate, that every barrister who appeared in a case stipulated in advance to the solicitor the fee he would charge, the idea being that every brief sent to a barrister would be marked with a fee and the barrister was entitled to say he would take the case on the basis of the fee offered or not. Unless one is appearing at a beef tribunal that does not happen. In the vast majority of cases no prior agreement is reached with the barrister or solicitor for his professional fee. All these matters are in abeyance until the outcome of the case is determined. It is futile to pretend that the fees are not determined in the light of the outcome of a case and by reference to the amount of damages recovered.
In that context, if there ever had been a desire to moderate barristers' fees and if insurance companies had really been serious about this matter they would have fixed, at least on their own side, the fees they were offering the barrister to take the case. This would have been determined in advance of a case, it would be up to a barrister to say he would take the case for a £500 brief fee and that if the case went on for a second day it would cost so much more: the costs would have been decided before the case began. However, for some reason it has become more convenient for solicitors and insurance companies to abandon the notion of pre-marking fees and to adopt a results-based negotiating system which gives rise to disquiet.
As far as the relationship between solicitors and barristers is concerned, the Fair Trade Commission in its report examined the possibility of fusion of the two professions. However, it was able to come up with what would have been the only justification for fusing the two professions, a cast iron guarantee that if there was an American style fused profession in Ireland fees would be reduced. A fusion of the two professions would, generally speaking, increase the monopoly of lawyers in dealings with their clients and turn market forces, reputation and the like into an even greater monopoly which could be used against the smaller person involved in litigation. The one great virtue often mentioned but sometimes cast aside as self-serving rhetoric, the one great benefit of having a split profession, is that in most cases Joe Soap——
Or Josephine Soap.
——who has a case against a large multi-national gets more or less equality for forensic fire power when it comes to a court case. If anyone wants to see the opposite situation they should look at the Paul Newman film "The Verdict" in which the Joe Soap was faced with a massive legal machine on the other side which tends in American law to give a tremendous advantage to those who have the resources to coach witnesses, to put vast amounts of money into research and to get the very best advocates at very large fees to confront the little man or little woman engaged in litigation.
Litigation is a disaster for most people involved in it and is a most unpleasant experience even for those who apparently do well out of it. Most people never become involved in litigation more than once or twice — they find the entire experience unpleasant and unnerving. People involved in litigation are vulnerable and have to rely on the quality of the advice they get on a once off basis. Litigation is almost like going to an undertaker — it will happen to you once if you are lucky. The notion that a person will say he is wise after the event and will never go back to that solicitor does not apply to the vast majority of people who engage in litigation.
In debating a Bill which seeks to apply market principles to a situation of this kind one has to be conscious of the fact that people are extremely vulnerable to market forces and, as Deputy Allen would undoubtedly say, to monopolistic forces. I agree with the proposition that monopolistic forces must be broken down as far as possible but that market forces are not always the answer. From my experience — my views are entirely subjective but I offer them for what they are worth — increasing advertising is not the way to deal with the abuse of people on a financial basis by the legal profession. On the contrary, making the financial dealings of the legal profession with their clients transparent requiring, as this legislation proposes, a statement to be made available to every client about where every last halfpenny went to stop people being abused and to allow them in those circumstances a redress on the basis of overcharging is the right way to proceed. Putting trust in competitive cost advertising is more likely, on the American experience where bicycles are given away with conveyances and holidays are given away if one does well, to bring misery to people in the long run than decent professional standards with transparency enforced from the outside and a healthy contempt on the part of the public for the monopolistic practices of the legal profession.