What price justice?
A day in court may be costly but you can negotiate or shop around. We look at how legal fees are charged and the extent of legal aid.
Whenever a headline case or inquiry such as the beef tribunal turns the spotlight on legal fees the cry goes up to regulate lawyers. However, the legal profession cannot set guidelines for fees as this would be contrary to the spirit of competition fostered by the Competition Acts.
Legal costs mount up as soon as you decide to go to court. The following have to be paid:
· Expert witnesses (doctors, engineers, accountants, actuaries, and so on)
· Court fees (stamp duty on various documents)
All the professional fees (lawyers, expert witnesses), except doctors' fees, are subject to 21%VAT, which significantly increases the overall cost of the case.
The longer the case continues the more it costs and this is why many cases settle at the door of the court. The amount involved in an action will also affect the solicitor's profit costs and the barrister's fees. For example, these will be higher in a personal injury claim worth £1 million than if the sum is only £50,000.
A medical report costs about £120. You will also have to pay the witness for attending in court, on the basis that he is giving up a day's work to be there.
Circuit Court stamp duty can range from £3 for a copy of a document to £40 for a request for judgement. In the High Court, for example, stamp duty on applications or motions seeking documents from the other side can cost £200.
Legal fees are basically determined by market forces. But there are certain controls within the legal system. Legislation referring to legal fees dates back to the nineteenth century and is updated from time to time. For example, the Solicitors (Amendment) Act 1994 obliges solicitors to give a client written information about charges as soon as possible after being instructed by the client.
Another control is exerted by the Taxing Master. He is usually a solicitor, appointed by the Government. A judge or client can refer any dispute over solicitor's costs or barrister's fees to him. If this arises the Taxing Master will be given a detailed Bill of Costs and will hear submissions on behalf of both parties. If he decides the charges were not justified he will adjust them accordingly. The High Court provides a final level of recourse. If a solicitor or dient appeals the decision of the Taxing Master this is heard by a High Court judge who may revise the fees again.
A solicitor is obliged to tell you one of three things about charges (these cover fee, outlay and VAT) after you have instructed him:
· the charges for taking on your case
· an estimate of the charges
· the basis on which the charges will be calculated.
The last option refers to certain procedures for which a solicitor will charge a flat fee, such as drawing up a will or conveyancing . The Rules of the Superior Courts 1986 name seven criteria for a solicitor's fee:
· amount of money involved
· importance to the client
· skill involved
· number of documents
· where the business is done (for example, if you brief a Dublin solicitor who must attend court in Donegal, or if your solicitor briefs a barrister from Cork to appear in Dublin, and the level of the court)
· time involved.
At the end of the case you are entitled to a bill from your solicitor summarising the work done and the various charges involved + 21%VAT.
In any contentious case, or one which went to court the bill should also include a note of the damages and costs recovered from the other side.
If you are unhappy about your solicitor's fee you should ask him to explain how it is calculated.
For some work a solicitor may charge a flat rate. For example, in a conveyance the fee is usually between 1% and 1.5% of the cost of the house (+ 21%VAT) in addition to the solicitor's outlay and the cost of the various documents, searches, stamp duty and land registration involved.
Likewise, for probate or administration of an estate the fee is a percentage of the gross estate. The scale is:
· 3.5% on the first £10,000
· 3% on the second £10,000
· 2.5% on the balance
In some instances such as commercial work the solicitor may charge an hourly rate.
If your case is a straightforward traffic offence the solicitor can quote you a fee up front. If you think this is too high you can go to another solicitor.
For more complicated cases such as defamation or constitutional actions it is almost impossible to say at the outset what the costs will be. The costs are determined by the level and complexity of the claim. The Rules of Court set out the points taken into account in the fees (see Costs).
The client is liable for costs. If the claimant wins he will recover costs against the defendant. If the claim fails the claimant usually pays the costs of both parties.
The costs for the other side are known as party and party costs and cover:
· gathering evidence
· issuing and dealing with court proceedings including barristers' fees
· correspondence between your solicitor and the solicitor on the other side
· medical representatives.
They do not cover the solicitor-client fee which could apply to:
· correspondence with your own solicitor
We have been told that In some personal lnjury claims a solicitor will ask the client for a percentage of the award by the court, or the settlement, over and above the costs recovered from the defendant This Is usually about 10% of the value of the award. R)r example, on an award of £100,000 some solicitors might look for £10,000 in addition to the costs.
A solicitor may tell you that he Intends to ask for this extra payment when you first instruct him in the case. You should not agree to this. This Is forbidden by the Solicitors Act and you should report it to the Law Society.
We condemn this practice as unjustifiable and unfair.
· a bank loan guaranteed by your solicitor to cover the cost of repairs before the hearing
· witness expenses where the witness attended in court but was not called because of a last minute narrowing of the issues, for example, if on the day of the hearing the defendant admits negligence.
In some circumstances the court will make 'no order as to costs' which means that each side pays their own costs.
If you think the final costs are too high you can complain to the Law Society If the Society finds the fees to be excessive it will order the solicitor to reduce them by a specific amount. This service is free.
This power was endowed in November 1994 50 the Society cannot investigate any work done before that date. However, the Taxing Master can hear an appeal on costs relating to a court action which were set before that date.
If the Taxing Master reduces your bill by 16.6% (one-sixth) your fees are reduced and your solicitor pays the Taxing Master's fee. Otherwise you must pay the Taxing Master. The fee for the Taxing Master is stamp duty of 5% of the final bill + £20.
In effect, the cost of a solicitor's court work is directly controlled by the taxation system. Solicitors know what level of fees the Taxing Master accepts and charge accordingly. You are free to shop around from one solicitor to another but you will find many quoting the same prices.
Like the Law Society, the Bar Council, the administrative body for barristers, cannot set guidelines for fees as this would be anti-competitive.
Your solicitor usually chooses your barrister and should be able to advise on the range of his charges. These depend on factors such as the complexity of the case, the length of the hearing, which court it is heard in and the amount involved.
The number and seniority of barristers you need depends on the court where your case will be heard. Your solicitor may represent you in any court. Some do act alone in the District Court. For more complex matters such as cases heard in the High Court and Supreme Court you will need at least one junior and one senior counsel.
The Bar Council advises clients to agree the barrister's fees before the case begins and the solicitor should explain the basis for these charges. Although for example, the charge for a consultation depends on the length of time it takes and the issues involved, a routine pre-trial consultation costs about £95 per hour.
Charges are also similar across the board for routine work such as pleadings (court documents), short opinions and proof. The proofs contain the barrister's advice on what witnesses and documents should be available for the trial. The average fee for these in a High Court personal injury action is £130.
A barrister charges a brief fee for taking on the case and appearing in court on the first day of the hearing. He charges a refresher fee for every subsequent day. Brief fees vary according to the type of case, complexity, and amount involved.
On average, in a High Court personal injury claim the brief fee is about 1.5% of the amount of the award or the value of the case. Refreshers are usually 0.5% of the brief fee. As the value of the claim rises the percentage falls. For example, a barrister will not charge 1.5% of a £1 million claim.
Value of claim Brief fee £50,000 £907 £100,000 £1,815
In a contract case in the High Court the barrister's fee would rarely be less than £1,500, and the refresher per day would be 0.5% of this.
A recent report on the Economic Evaluation of lnsurance Costs in Ireland, commissioned from DeLoitte and Touche by the Department of Enterprise and Employment comments on legal costs. It notes that the bigger the award the lower the legal costs as a percentage. They can range from 8% to 50% of the total outlay on the case, the higher percentage relating to cases worth about £20,000.
A major factor in the legal costs bill is the long lead time in getting to court. It can take up to 4 years to come to trial and this can double the amount of legal costs. If a case Is listed but does not get to court this also adds to the expense as lawyers and expert witnesses may be on stand-by. The expert witnesses must be paid for this time.
While taking certain factors into account in the fee a barrister can set any value on his expertise. You can ask your solicitor to brief a barrister who charges less but he may reply that winning depends on having the best in the field.
However, very few barristers charge fees such as those in the beef tribunal. There are about 1,200 barristers in the Law Library and the Bar Council encourages people to shop around for a reasonable quote.
Since the introduction of the single senior system in 1986 defendants pay for only one senior and one junior counsel in a personal injury claim. Frequently1 however, especially outside Dublin, two seniors may be briefed for the plaintiff (in case one is caught unexpectedly for a time in another court on the day of the hearing).
When this happens the fees allowed for the barristers are split three ways on the basis of 26.6% (three-eighths) for each of the seniors and 25% (two-eighths) for the junior. So, briefing two seniors costs the same as one senior.
If you are dissatisfied with the service given by your barrister you can complain in writing on a complaint f6rm provided by the Bar Council (see Useful Contacts). The complaint will be dealt with by the Professional Conduct Tribunal.
The Tribunal comprises five members of the Bar, appointed by the Bar Council and two lay people, one nominated by the Irish Business & Employers Confederation, one by the Irish Congress of Trade Unions. If the complaint is sustained it has the power to admonish the barrister or remove him from the Register of Practising Barristers and recommend that he be disbarred.
Code of Conduct Barristers and solicitors have codes of conduct. For example, a barrister must not coach a witness in his evidence. A barrister who agrees to defend someone charged with a criminal offence should not commit himself to anything which conflicts with his duty to that person.
Legal Aid Board This is an independent body appointed by the Minister for Equality and Law Reform to provide aid for civil cases. It has a Chairperson and 12 members, including two practising solicitors and two practising barristers.
The service is means-tested on the basis of your 'disposable' income (gross income less any allowances for dependants, mortgage, tax, and so on). The present disposable income limit is £7,350.
In cases where a married couple is in conflict the two incomes are assessed separately. As a result one partner may get legal aid while the other does not.
Your eligibility for legal aid also depends on the merits of your case. This is assessed on several bases, including:
- prospects of success reasonable grounds for taking or defending proceedings
- availability of any other method of resolution (mediation, negotiation)
- your ability to get legal representation outside the Legal Aid scheme.
The Legal Aid Board provides a range of services from writing a letter on your behalf to representing you in court and has 28 full-time and 16 part-time centres. These services are available for civil proceedings in any Irish court but not at administrative tribunals. However, if you are taking tribunal proceedings you may get advice at a Legal Aid Centre.
This applies if you are unable to pay the legal costs, and this means that your solicitor and barrister will be paid only if you win your case and costs are recovered from the other party.
The term, however, is misleading. A solicitor can make the offer only on his own behalf. In most cases where this happens the barrister will also waive fees. But neither can speak for the experts' reports and court appearance, or other witnesses, although some of these too may waive their charges. Otherwise, you will have to pay all that outlay.
If you lose, the other side will look to you for costs. So, while for example in a High Court action you might be saved £5,000 or £6,000, you will still have to pay costs to the successful party which could amount to £5,000 or £6,000 or more.
You will not get legal aid for some types of proceedings, including:
· Disputes about rights and interests in or over land (although there are certain exceptions to this).
· Civil Bills below £150.
· Conveyancing - unless connected to a matter in which legal aid or advice has been provided.
Unlike the Criminal Legal Aid scheme the Civil Legal Aid scheme is not free. You must make a small contribution according to your income:
· below £5,060 the fee is £4 for advice and a further £19 for court representation
· between £5,060 and £7,350 the fee is graduated in line with your actual income up to £596.
If you depend on social welfare and you qualify, you pay the minimum contribution of £23. In situations of severe hardship this may be waived.
If you have reckonable capital (for example, savings of over £2,000 or a second home) you will have to pay additional contributions.
If at the end of the case you are awarded costs or damages these are paid to the Legal Aid Fund. The Legal Aid Board is entitled, depending on the circumstances, to deduct its outlay from this, less any money you have already paid.
You are liable for any costs awarded against you. However, the Legal Aid Board may help you by making a token contribution towards the costs of the opposing party if certain conditions are fulfilled.
If you live in another EU Member State and want to apply for legal aid there you must apply to the Legal Aid Board here who will transmit your request to the other State. The Legal Aid Board is also the receiving authority in Ireland for such requests.
Report by Aisling Maguire