Paul Kehoe (Wexford, Fine Gael) | Oireachtas source

I thank the committee for making time available today to consider my request for a Supplementary Estimate for the Office of the Chief State Solicitor. As committee members are no doubt aware, the Office of the Chief State Solicitor is a constituent part of the Office of the Attorney General and provides solicitor services within the Attorney General’s office and to Government Departments and offices. The office has a wide remit including the area of civil litigation in all courts, including the Court of Justice of the European Union in Luxembourg, and the provision of conveyancing, property law and general services for an array of Civil Service clients. Many matters are high profile, sensitive, capable of attracting publicity and sometimes involve emergency applications to court, strict time limits and complex issues of law.

The Supplementary Estimate is sought to cover extra expenditure on fees to counsel in 2015. Expenditure on counsel fees is, to a large extent, dependent on the level of activity in the courts at any time and so is always difficult for the office to forecast. In addition, recent years have seen a marked increase in the complexity of work being handled by the office in areas such as commercial litigation, transactional and procurement work, as well as advisory and litigation work resulting from our membership of the European Union and the implementation of directives in areas such as environmental law, planning, employment and social welfare law. In areas such as judicial review, a faster throughput of cases by the courts has resulted in a marked increase in the number of fee items payable such as brief fees, fees for refreshers, consultations, advice, opinions, submissions and affidavits and a greater involvement of senior counsel.

It should be borne in mind that the Estimate allocation for fees paid to counsel was very much reduced in 2014 due to the ongoing financial situation. The office struggled to remain within the allocation last year and had an overspend of €200,000 which it managed to cover through savings in other areas of the Vote without the need for a Supplementary Estimate.

The management of expenditure on counsel fees is a key activity for the Office of the Chief State Solicitor. These are fees payable to counsel representing Departments and offices in litigation before the Irish courts and other tribunals as well as the European Court of Justice. They also include fees payable for the provision of legal advice for the State, whether sought for the Attorney General’s office or for Departments and offices.

An allocation of €9.6 million was made for expenditure on fees for counsel in 2015, which was the same as 2014. However, due to a number of factors it has not proved possible for the office to remain within that allocation. The office has observed that the issues raised in cases taken against the State are becoming increasingly complex. In late 2014 and into 2015 the office dealt with a major civil action in the High Court which required significant input from counsel over a long period of time. While the fees paid to counsel in this one case were very large, the exposure of the State to damages awarded if the State had lost would have been far greater. The office has also had to deal with a number of challenges to referendums. The area of public procurement has also expanded in recent years and some significant challenges are beginning to arise. This has led to an increase in the requirement to use counsel. The office has seen a 14% increase in the services delivered by counsel in the period January to mid-November compared to the same period last year.

It is estimated that the office will have an overspend of €2.5 million on fees to counsel this year. However the office has made savings of €1 million in other areas of the Vote and is now seeking a Supplementary Estimate of €1.5 million. The office has made savings of €500,000 in its payroll allocation due to difficulties filling vacancies at solicitor level and the retirement of senior staff at the top of their pay scale with replacements commencing at the first point on the scale. Savings of €300,000 have been made in the general administration subheads due to lower than estimated expenditure on IT systems and refurbishment work on the offices. A further €200,000 has been saved in general law expenses as the requirement has proved lower than expected at the start of the year.

Expenditure in the area in 2015 is expected to compare to the level of spend in 2013 and will still be approximately 30% lower than the expenditure in 2008, at the start of the financial crisis. I am pleased to recommend this Supplementary Estimate to the select sub-committee.