Mr. David Barniville:

I thank the Chairman and members of the joint committee. I am accompanied by a fellow member of the Bar Council, Ms Sara Moorhead, senior counsel, and we are anxious to assist the joint committee in its deliberations on this difficult and important issue. One point that struck us was that it is important that this session is taking place because it is critical to ensure there is a balance in the debate, that is, balance between the interests of patients and their families who have been damaged or harmed by the medical negligence of doctors and the interests of the medical professionals involved and their insurers. There also is a further critical public interest that the system is designed to work and works effectively in the interests of the administration of justice.

I wish to make a couple of points, the first of which is on the role of barristers and where they fit in all of this. Second, I wish to consider some of the reforms that have been proposed, with some of which we agree and with others of which we do not. Finally, I will say something about fees. I first should note the Bar Council is the representative body for all barristers practising in Ireland. Barristers act for plaintiffs and defendants in cases. As we are an independent referral Bar, work comes from solicitors to barristers and we are instructed by solicitors in these difficult cases. The area of medical negligence work is difficult, complex and requires a high degree of specialisation on the part of barristers, solicitors and other professionals working in this area. It is not an area of work that is easy to jump into and jump out of or to transfer into at short notice or in times of economic difficulties in other areas of work.

I will turn to some of the suggested reforms, some of which are referred to in the recent MPS report, and they refer to both procedural and other substantive issues. I will deal first with the procedural and other issues, and it is fair to state that as with many of the organisations that spoke to the joint committee last week, we are agreed that there are a certain number of critically important procedural reforms that should be introduced in this jurisdiction. They have been the subject of a number of reports already of the working group on medical negligence, to which I will turn in a moment. However, the first and fundamental point to make in this respect is the question of delay. Delay is bad for everybody in the system. It is appallingly difficult for plaintiffs in these cases to have to wait months and years in many cases for their cases to proceed. It also is difficult for the medical professionals involved to have to wait to have their cases decided by the courts or resolved. It is bad for lawyers because if the case is delayed, lawyers do not get paid, and it fundamentally is bad and damaging to society.

I turn now to the question of the duty of candour. The Bar Council is in full agreement with the comments already made today and before this joint committee last week. It is essential that there is a statutory duty of candour in this jurisdiction to encourage medical professionals to come clean at the very beginning and to ensure that by so doing, they do not prejudice the defence of cases in due course. There should be a statutory requirement to this, as well as ethical and professional underpinning. A series of recommendations has been made by the working group on medical negligence and periodic payments initially chaired by Mr. Justice Quirke, a former judge of the High Court, and then by Ms Justice Mary Irvine. We agree with, fully support and participated in those working group reports and agree that a number of things are essential to try to cut down on the delay and waste of resources and trauma caused to people in these cases. The first is the question of periodic payment orders. The court should have the statutory jurisdiction to make such orders in appropriate cases. Not all cases are appropriate for such orders to be made. There should be pre-action protocols in cases in order that there is the facility to have an early admission of liability in cases, because what happens in many cases is that liability should be but is not admitted at an early stage. This leads to enormous trauma and a huge waste of costs and resources. There should be case management of cases and there should be legislation enacted and rules of court amended to implement them. All the relevant legislation and amended rules of court have been proposed by the working group reports I have mentioned. There should also be greater use of alternative dispute resolution, ADR, and mediation.

We disagree with a number of things in the report and we set them out in our paper. We do not agree that there is a tolerance for unmeritorious claims in this jurisdiction and we do not agree that the type of specialised and expert work involved in medical negligence cases makes it amenable to the jumping from conveyancing to medical negligence work that has been suggested. We disagree with a number of the substantive reforms proposed. We do not think there is a need for a tort of clinical negligence and we do not think there is a need for caps on special damages, as that would be highly unfair. We do not agree that it would be necessary to reduce the limitation period and we do not agree with the concept of caps on costs. On the question of fees, a fundamental point must be made. In the absence of an adequate and satisfactory system of legal aid in this jurisdiction, those barristers and solicitors who act for plaintiffs in effect provide legal aid to their clients. They take on this difficult work with no guarantee of payment and in many cases will not be paid. They will only be paid if the cases succeed and, ultimately, if the indemnifiers of the doctors pay their costs. This can be many years after the work has been done. If there is a dispute on the question of fees, there is an independent statutory body to determine them. The Legal Services Regulation Bill will enhance and make more transparent the system for the adjudication of such costs. Those who act on the defendant's side generally agree the fees with the client, whether it is the MPS or the State Claims Agency. In general, fees for barristers, and I believe for solicitors, in this area have come down significantly since 2008.

We commend the joint committee on introducing this balance into the debate. We have set out in our paper those areas of reform that we support and those with which we disagree, which paper the joint committee has to hand.