A Legal Costs Regulatory Body is to be established on an interim basis, pending legislation, to provide for a new legal costs regime for the citizen. The body, along with a separate Legal Costs Assessment Office, will replace the existing Taxing Master system, to oversee the charging of legal fees. And new rules will apply to how they are calculated. It will issue guidelines, regulate procedure and inform the public.
This was announced by the Tánaiste and Minister for Justice Michael McDowell yesterday as the report on the Legal Costs Implementation Advisory Group was published. It drew up recommendations following an earlier report on legal costs by an expert group chaired by former secretary to the Department of Enterprise and Employment, Paul Haran. Closely following the recommendations of that group, lawyers will be required in future to base their bills on work actually done, rather than on a vague estimate of work that will or might be done. The previous system of charging a global "instruction" or "brief" fee, supplemented by specific charges for court appearances and other items, will be replaced by a bill based on hourly or daily rates. Solicitors and barristers will be obliged to use time recording in the compilation of their charges; clients will be provided with estimates in advance; and they will then enter into legal costs agreements with solicitors and barristers.
These reforms are to be welcomed at face value. They will lead to greater transparency for the client. The citizen will be able to glean an estimate of legal costs before embarking on a legal action. Whether the reforms will result in lower legal fees, however, remains to be seen.
It is not clear how binding the new guidelines will actually be, and how far lawyers may deviate from them. The fact that the value of the claim and its urgency to the client can give rise to additional costs still means that different fees can be charged for the same work, depending on the assets involved or the vulnerability of the client.
The issue of the costs in family law, which was effectively parked by the Haran committee, but which has attracted the concern of the Supreme Court, has not really been addressed.
A separate but nonetheless related issue is the inadequacy of the civil legal aid scheme, where the means test excludes people on quite low incomes from eligibility and many types of actions are not provided for. In the absence of a comprehensive scheme it was the practice of some solicitors to provide legal advice on a pro bono basis to clients who could not afford to pay. This was made an economic proposition by the elastic manner in which fees were charged to paying clients, a practice targeted by the new proposals.
It would be very regrettable if a side-effect of these reforms was to deprive even more people of this limited means of legal representation, without any corresponding expansion in access to legal aid.