Monday, June 30, 2014
As published in the Irish Times, Monday 30th June 2014
Carlsberg don’t do litigation in Ireland but if they did, let’s face it, there would be a court room that none of us recognises. The Judge might wear a gown and the lawyers would all be in suits. There would be a lawyer (perhaps two) and the client sitting together in front of the Judge. You could try in vain explaining to the marketing people at Carlsberg that, in Irish Courts, the more senior barrister should sit in the bench in front of the junior barrister and all barristers wear black gowns (a tradition which allegedly can be traced back to the mourning of the death of Queen Mary in 1694, wife of William of Orange); that the more senior barrister should be heard before the more junior; that the solicitor sits with their back to the Judge facing the barristers and that the client usually sits behind all of them towards the back of the Court unable speak to the barrister or solicitor. You could try explaining the distinction between the solicitor and the barrister and the role of the independent referral bar – but I envisage problems. And there are problems. The litigation system in our Republic is out of step with what the public expect and deserve.
Many reasons are cited for the Legal Service Regulation Bill; an OECD report in 2001, the Competition Authority Report in 2006, the EU/IMF/ECB Memorandum of Understanding in 2010, the Programme for Government 2011 – 2016. The simple truth is that the litigation system in Ireland needs reform and you have to start the debate somewhere. The right to legal representation is considered by all civilised countries to be a fundamental right. However, if the cost becomes such a factor as to discourage seeking redress then those costs become a barrier to a fundamental right in a modern republic. This entitlement is equally applicable to corporations as it is to individuals. Part 7 of the Legal Services Regulation Bill (sections 71 to 75) will pave the way for a great debate in this country about how the interests of the public and business are to be served by legal practitioners representing them before the courts. Once the Bill is brought into law, a number of public consultations will be triggered ultimately culminating in a report being made to the Minister and thereafter recommendations for new legal structures to be approved by government. The new legal structures under consideration are aimed at modernising and varying the way legal services can be provided.
Of interest to the public will be the anticipated consultation on the merging of the two professions. Currently we have what is called a ‘split system’ whereby there is a distinction between the roles of a solicitor and barrister. In times past where solicitors were generalists and barristers were specialists it was easier to explain the distinction. It is the case that an experienced litigator and barrister in complex commercial litigation will undertake different roles and so even if the solicitor were to advocate the case in Court it may still require two solicitors to run the case. It is also the case that having an independent referral bar and the ‘cab-rank rule’ means that a small firm in West Cork has potentially the same right of access as a Dublin commercial law firm for her client to the senior barristers, irrespective of the client involved or the nature of the case. Barristers consider their ability to act as sole traders as ensuring they have no conflicts in the discharge of their overriding duty to the Court to act with independence in the interests of justice and its efficient administration. It is however also the case that the ‘split system’ often leaves the ‘users’ – whether the public or companies – feeling further removed from justice.
If you consider the G8 countries – the US, UK, France, Germany, Italy, Canada, Russia and Japan – only the UK still operates a split system, albeit a much more modernised system than ours. In a speech in 2012 entitled ‘Fission or fusion, independence or constraint?’ by John Wotton, the then President of the Law Society of England and Wales, in response to querying whether barristers and solicitors would remain separate profession, said “I assume, however, that the two separate professional titles of barrister and solicitor will survive for the foreseeable future, if only because there is no strong current of opinion in favour of fusion… One might, however, envisage a time at which the distinction between barrister and solicitor is more a matter of tribal culture than function.” I see the same thing happening here.
One final point – what would I say if the Minister for Justice granted me one wish to help reduce the costs of litigation?
We need to tackle the inefficiencies within the legal system which are the drivers of high litigation costs. These include waiting around for cases to be heard because of a dearth of Judges, the role and style of pleadings, the costly discovery process and the need for electronic lodgment of documents. If we are going to reform the system let’s bring real change.
Author: Philip Lee, Managing and Founding Partner