Ms Michele O'Boyle:

The Law Society of Ireland welcomes the opportunity to discuss with the committee important issues relating to the justice system. I am accompanied by Mr. Ken Murphy, director general, and Mr. Stuart Gilhooly, former president and council member. We come to this discussion with a strong understanding of how the courts are currently operating and how that impacts on solicitors' clients, many of them families and businesses seeking to resolve disputes and move on with their lives.

The committee is to be commended for focusing on the issue of access to justice. Access to justice does not merely apply to access to the courts but also to legal advice and assistance in dealing with many other aspects of citizens' lives. For example, it can involve how they interact with Departments and State agencies, as well as non-contentious work. In that regard, solicitors play an essential role ensuring the rights of citizens are protected and defended when compared against the might of the State, as well as facilitating their contribution to the economic and social welfare of the State.

The committee has raised queries about competition in the legal sector and transparency in legal costs. Approximately 11,500 practising certificates were issued by the Law Society this year, representing an all-time high. This represents a substantial increase of approximately 64% on the 7,000 issued in 2005. On the education front, we are inching towards 500 trainees at any one time. Throughout the State, there are approximately 2,300 firms, 90% having ten or fewer solicitors, based in every county, city and town. Trends that have, in recent years, shaped the competitive environment include changing consumer behaviour. Consumers increasingly shop around and are happy to have several solicitors looking after various items. The model of the family solicitor – the one-stop-shop – is being increasingly challenged. As a consequence, we compete on what and how we offer, as well as price. Close to 20% of the profession now works in-house, providing legal services only to their employer and not to the public. While many work in the public sector, as well as large institutions and corporations, it is also the case that businesses have employed solicitors to handle legal work internally. The implication of this is that firms are tendering more competitively for corporate work. In turn, this is impacting positively on price and delivery for clients.

With the new LSRA in place, the option of limited liability partnerships is available to firms who are in partnerships. We anticipate that this will lead to greater competition and innovation between firms, as it supports a greater appetite for growth and expansion of practices. As of November 2019, no fewer than 4,000 new admissions from our three neighbouring jurisdictions – England and Wales, Northern Ireland and Scotland - have occurred since 1 January 2016.

The Brexit bounce brings the total number currently on the roll of solicitors to 20,500. Dublin boasts an increasingly international legal sector and a number of UK and international law firms have established here in recent years. The legal market in Ireland has always welcomed competition. Competition is good for the consumer and for the solicitor firms in finding new and innovative ways to deliver for their clients.

I will address the issue of transparency. New and transformative provisions of the Legal Services Regulation Act 2015 commenced on 7 October 2019. Along with new disciplinary and complaints mechanisms for consumers to avail of, the newly commenced provisions significantly strengthen consumer safeguards and transparency in respect of legal costs. As a brief overview with regard to transparency, section 150 of the Act provides for: an indication of costs from the outset of a case, including the basis of those charges; an obligation to update clients on costs throughout the lifetime of a case or matter; a cooling-off period; and mediation on disputes about costs. Failure to furnish this information to clients can result in the solicitors' costs being unrecoverable and it becoming a disciplinary matter. The Act provides for the establishment of an office of legal costs adjudicators. The data that will be assembled by the office of legal costs adjudicators through the public register of determinations, under section 140, as well as the criteria that will apply, will provide a valuable tool in ensuring the proportionality of fees, insights into the factors that inform fee levels and consumer guidance on legal fees. The level of granularity of data in respect of cost headings and stages of proceedings derived from the revised bill of costs, the basis of the forthcoming register, will provide a benchmark to legal professions and to the public that will be much more predictable and transparent.

I will address future developments under two headings. The first is multi-party and class actions. The LRC in 2005 subjected this matter to considerable scrutiny and analysis. At present, there are many examples of large numbers of virtually identical claims being issued in the District, Circuit and High Courts in consumer and competition litigation and product liability litigation contexts where the availability of a class action procedure would reduce costs for all parties and lead to more efficient use of court resources. The LRC recommendations included that a formal procedural structure be set out and rules of court be introduced to deal with instances of multi-party litigation - it provided draft rules in the report - and that reform of current procedures to deal with multi-party litigation should be based on the three principles of procedural fairness for the plaintiff and defendant, procedural efficiency and access to justice. In 2017, Sinn Féin prepared a multi-party actions Bill and this might provide some assistance in progressing the matter.

The second heading is a statutory form of third party litigation funding. The Law Society's view is that the Oireachtas must consider a legislative framework to provide for third party funding. Personaand SPV Osusare two recent Supreme Court decisions, which both called for a legislative response, as well as underlining the role that third party funding can play in access to justice. Such reforms have been introduced in many similar common law jurisdictions and have proven effective in ensuring enhanced access to justice without the perceived downsides associated with US contingency fee models.

A discussion on fees is incomplete without discussing the determinants of fees. Some of those are internal to the solicitor firm, such as rising staffing and operational costs as with any business, and some are external. Key external determinants of legal fees are the delays and other inefficiencies in the courts system. In the context of litigation, increased resourcing of the Courts Service would be a fundamental factor in ensuring that costs are avoided and minimised through leaner processes, adequate professional and support staffing and investment in technology. With 0.2% of our GDP spent on Ireland's courts, as opposed to 0.4% in Germany and the UK, the society believes that investment by the State in the courts system must increase to reverse the cuts and impacts of the recession and to achieve long-term and enduring changes. The society has a warm and constructive relationship with the Courts Service, which should be commended on how it delivers its service to the public considering its limited funding parameters. The service is also going through a number of change programmes and is investing in technology. Substantially increased use of technology is the key to the future and its introduction must be greatly accelerated.

Additional issues arise in the context of capacity. Ireland continues to have one of the lowest numbers of judges per capitain the Organisation for Economic Co-operation and Development, OECD. According to the European Commission, Ireland has one of the lowest proportions of second instance judges. With 6%, Ireland is considerably below the international average of 22%. While recent appointments are welcome, the courts remain significantly under-resourced, particularly the higher courts.

The availability of high-quality research assistance is a major factor in the efficient use of judicial time. Increased capacity for legal research, case preparation and management and the drafting of memoranda, orders and judgments would deliver improved organisational capacity for the Courts Service and, ultimately, improve Ireland’s standing as a forum for litigation. The review of the administration of civil justice, chaired by the President of the High Court, Mr. Justice Peter Kelly, and of which Mr. Stuart Gilhooly is a member, is examining these capacity and efficiency issues and is close to final publication.

The society urges that the report's recommended measures that will improve efficiency and effectiveness should be progressed without delay.

On the issue of capacity building, the society, along with the Bar, is excited about the Government-endorsed Brexit initiative for the legal sector. The newly-appointed chairman, former Taoiseach, John Bruton, will lead a valuable infrastructure project that will benefit Ireland's citizens and businesses, as well as attracting additional dispute resolution work and other international legal work to Ireland. With the right approach and investment, the return on this initiative may endure long beyond Brexit.

Our colleagues on the Legal Aid Board have provided an update on expenditure and activity levels in recent years. We commend the excellent work the Legal Aid Board does, despite its underfunding by the State. Our Constitution provides, implicitly, for access to legal aid for qualifying applicants on the basis that parties before the courts should be entitled to legal representation. Accordingly, legal aid is mandated by the Constitution and primary legislation but it must be meaningful and effective, in terms of scope and access. It must be fit for purpose. The narrative on legal aid might lead some to conclude that the system is disproportionately costly. When one considers EU data comparing expenditure on legal aid per head in member states, Ireland's expenditure is disappointingly lower than that of other EU member states, €17.63 per capita, as opposed to for example, €24.30 in Denmark and €30.69 in England and Wales. The willingness of lawyers to carry out legal aid work is necessary for legal aid delivery. The terms on which legal aid is offered can lead to reluctance to take legal aid work, against the backdrop of increasing complexity of cases, rising overhead costs and the administrative burden of the system. The rates payable, particularly for criminal law, are inadequate and borderline uneconomic. The Legal Aid Board has an unenviable task, within the resources available to it, in delivering on its remit. The society continues to advocate for more resources, improved streamlined systems and process and providing feedback on how the civil and criminal schemes are working.

It is the professional obligation of solicitors to seek the best outcomes for their clients under the law. In pursuing that, the reasonable solicitor generally shows flexibility in terms of fees. Many solicitors provide access to justice, support their clients on a "no foal, no fee" basis, on a pro bonobasis, or with a pro bonoelement. Most of us live in the communities we serve. We build our practices based on the quality and integrity of our service. It is therefore in the interests of the reasonable solicitor to charge proportionate and reasonable fees, and to provide transparency on those. The level of legal fees is the product of negotiation and agreement between individual solicitors' firms and their clients in a highly competitive market of 2,300 firms. Solicitors compete on specialised expertise, on specialised skills and on quality of service, as well as on the level of fees charged. I hope these observations have been of interest to the committee and the delegation looks forward to engaging with it on them.