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Legal system provides no guarantee of justice

Michael Casey - Irish Times

OPINION: LAWS PASSED by the Oireachtas are often poorly drafted, lack coherence and are sometimes at odds with the Constitution.

Our laws on abortion, white-collar crime, human rights, and consumer rights are inadequate in several respects; while bylaws on parking arrangements in towns and cities are a complete mess. The legal underpinning of the Joint Labour Council pay arrangements has recently been deemed unconstitutional. If more people could afford to challenge our laws in the courts, many of them would be found to be unconstitutional.

But in addition to the content of the legislation there is the question of how it is administered by officers of the court. For many years the community, including the Garda Síochána, have been demoralised by lenient sentencing for serious crime and by the revolving door system of justice.

How many violent acts are committed by criminals out on bail or early release? Why are the victims of serious crime so badly treated, even down to the fact of having no designated seating area in court?

Why are victim impact statements the exception rather than the norm? Why is the Republic one of the few states in the world where victims were forced into forming a group to defend their interests (Advic)?

Why do we continue with all the trappings of a royal court – wigs, gowns, prayer bands, tipstaffs, being ordered to stand when a judge enters a room? These symbols have no place in a republic; they represent privilege rather than justice. Why, in a democracy, is the Director of Public Prosecutions allowed to make his decisions in secret without any accountability?

Let us look at a typical civil case: A plaintiff, let us call her Sheila, sues a service provider (XY Building Services, say) for inferior workmanship, overcharging and walking off the job. Sheila must prepare herself for dealing with a solicitor and one or more barristers. Other countries have abolished this restrictive practice which can lead to pointless duplication, but not Ireland.

As a private client and a mere member of the public Sheila will not be able to see the barrister or even his or her “junior” without the solicitor being present, although they are supposed to be providing her with a service!

She may also have to hire technical experts who tend to charge the same as barristers, costing up to about €3,000 a day; “juniors” receive two-thirds. Even if she can bear the costs, the chances of getting all of her team into a room at any one time are slim, a problem compounded by generous legal holidays and outmoded system of law “terms”.

She will discover that the first meeting is largely devoted to what is euphemistically called, “the quantum”. Roughly translated, this is the monetary size of her claim – which will become a factor in the level of fees that are charged. If it is less than €1 million, she will not qualify to be allocated to the Commercial List (which is now reasonably good in bringing cases to trial quickly).

Instead, Sheila’s case will go into a “waiting-to-be-heard” category akin to a publisher’s “slush pile”. If the quantum is only, say €100,000, her case may languish at the bottom of the pile and it may take eight or 10 years to get to trial. After such a long delay the judge may be unimpressed because memories will have faded and the trail will have gone cold. This will weaken Sheila’s case through no fault of her own.

The lawyers for XY may do all in their power to drag out the case, knowing that the mere passage of time will erode Sheila’s chances. Will her lawyers fight tooth and nail to prevent such stalling tactics? Not necessarily, because they might do the same if the shoe were on the other foot. In addition, they might know the lawyers on the XY side and might socialise with them regularly.

It is Sheila who is the outsider.

Another factor contributing to delay is the antediluvian call-over system which is supposed to monitor and schedule all of the “slush-pile” cases in the ordinary High Court list. Sheila may find that her case is bumped to the bottom of this list time and again without any good reason being given.

If, before the case is heard, Sheila’s barrister “takes silk” – ie, becomes a senior counsel – then he or she is likely to find it more difficult to devote the same time to her case. Even the new junior barrister may move on and an even newer junior will have to start the work all over again. Sheila may not be informed about any of these changes and would not have a say in any case.

If she complains to her solicitor about the delay, she may be told that the delay is due to the barristers or the legal holidays, or the call-over system, or the Courts Service. There are plenty of explanations to hand.

If she contacts the Law Society they may offer to write a letter to her solicitor, but this could cause bad blood. She might easily find herself going from the frying pan into the fire. What other solicitor is going to take on a busted flush, or a client who is known to have lodged a complaint? Sheila has no choice but to stick with her legal team for good or ill.

She may soon realise that, despite the strength of her case the XY defendant has a huge advantage – being backed by an insurance company. The XY lawyers essentially work for the insurance firm so if they do a good job repeat business will follow; a big incentive to prepare thoroughly.

By contrast, Sheila’s barristers will not get any repeat business.

Another big advantage XY has is the fact that they can pressurise Sheila by threatening to call 20 or more witnesses. Lax case management by the court allows XY to do this. This means the case could extend into five or six weeks in the High Court, running up an enormous bill. An insurance firm can afford to take such a risk, but Sheila cannot. Even if there were only a 5 per cent chance of losing the case, the consequence would be catastrophic. She would be wiped out financially by the cost orders made against her. She is in an impossible position.

The term “costs” is a misnomer employed by the legal profession. Costs in the true economic sense would probably rarely exceed 20 per cent of the bill. The other 80 per cent is profit, most of it supernormal, ie, profit which is made by virtue of market dominance. In a recent case the Taxing Master reduced a barrister’s bill by more than 80 per cent, with the comment that the sum demanded was “revolting in the extreme”.

Sheila may come to the conclusion that going to law in Ireland provides no guarantee of justice. It is to be hoped that the EU-IMF programme will give teeth to the work done by the Competition Authority and that the promised legal regulatory body will not be of the “light-touch” variety.

Posted Date: 
22 August 2011