The Law is Unaffordable

Me in a hat

This is the latest entry in that excellent blog, cearta.ie, which is written by Eoin O’Dell, who points out (as this blog has done in the past) that the average Irish citizen simply cannot afford to hire a lawyer, even when they desperately need one.

Access to justice when legal costs are high
Published: 25 November 2015

I have had occasion on this blog to repeat the old adage that justice is open to all – like the Ritz Hotel. I was reminded of it by two headlines I saw this morning.

The first is from today’s Irish Times:

Judge says courts ‘fearfully expensive’ and ‘accessible to few’
The court system is “fearfully expensive”, “alien” and “truly accessible to increasingly few”, a High Court Judge has said. The courts were a forum that should be engaged only as “a last resort”, Mr Justice Max Barrett added. … “Almost a hundred years after the opening salvos that led to the creation of our present Republic, we have now an expensive court system that remains alien to many and truly accessible to increasingly few.”

 

The second is from the Brief (a daily email newsletter from the Times):

We can’t afford lawyers, says public
Lawyers and legal advice are well beyond the budgets of ordinary people, a survey published this week has found.
Some 70 per cent of respondents to research conducted by Citizens Advice said they would not be able to afford a lawyer to advise on a problem or dispute. Only about 10 per cent were confident they could stump up the cost of legal fees.
Other conclusions from the Report are that 1 in 7 don’t have confidence in the justice system, that low levels of support and advice are putting off some people from seeking to solve their problems, that more and more people are going to court without a lawyer, that negative experiences are leading to negative opinions of the justice system, that people’s bad experiences and perceptions of justice are putting them off using it, and that, overall, only 2 in 5 (39 per cent) people believe that the justice system works well for citizens. Also published today is a Report Card on Barriers to Affordable Legal Help in the US, which makes very similar points. The American Bar Association has established a Commission on the Future of Legal Services to “propose new approaches that are not constrained by traditional models for delivering legal services and are rooted in the essential values of protecting the public, enhancing diversity and inclusion, and pursuing justice for all”.

The recent Canadian Bar Association report on its Legal Futures Initiative – entitled Futures: Transforming the Delivery of Legal Services in Canada – around flexibility in business structures, including the adoption of alternative business structures, and new models for legal education. In Australia, recent reforms in New South Wales and Victoria are intended to create a common legal services market, underpinned by a uniform regulatory system, to promote efficient and cost-effective administration of justice. Canada and Australia are on a journey down the same road travelled recently in the UK, where the destination was the Legal Services Regulation Board established by the Legal Services Act 2007.

Also on that road is the Legal Services Regulation Bill. If it improves the problems identified by Barrett J, by reducing legal costs, then its (long delayed, but now imminent) enactment cannot come soon enough. And it will be a necessary endeavour. Confidence in the administration of justice is at the heart of the rule of law. Access to justice is a constitutional fundamental (Greenclean Waste Management v Leahy (No 2) [2014] IEHC 314 (05 June 2014) [23] (Hogan J, upholding after the event legal costs insurance as serving important needs within the community by facilitating access to justice for persons and entities who might otherwise be denied it). Of course, the Bill (heavily amended, and now far more modest than the position recommended in Canada, or obtaining in the UK, New South Wales, and Victoria) on its own will be an insufficient remedy for these problems, but it is a start it might at least be a good start, and it may even be half the work. But that is all that it will be. Far more will need to be done. Much will depend on the Legal Services Regulatory Authority established under it. For that, we shall have wait and see. And, meantime, our expensive court system will remain alien to many and truly accessible to increasingly few.”

Thanks Eoin. Well said.

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
This entry was posted in Legal Costs; Access to Justice; Courts, Public Participation in Decision-making and Access to Justice in Environmental Matters; Aarhus Convention; Aarhus Treaty and tagged , , , , . Bookmark the permalink.

One Response to The Law is Unaffordable

  1. Pat Swords says:

    One also has to give great credit to Kieran Fitzpatrick, whose Communication ACCC/C/2014/113 will be heard in front of the Aarhus Convention Compliance Committee in Geneva on Friday the 18th December. While Ireland was officially represented on my original Communication against the EU back in 2010, they did not speak even when provided with the opportunity to do so – the Party to whom the case in relation to Irish renewable programme was then taken was the EU, as Ireland had not by then ratified.

    So Kieran’s Communication will be the first time the Irish State has to defend itself at UNECE in Geneva and as one can see from the case documentation below, it is all about the costs of access to justice in Ireland. Furthermore, Ireland, true to form, has been petulant and aggressive in responding to the issues concerned, i.e. after all we as citizens can go represent ourselves in cases against public authorities as lay litigants or after finding a lawyer, who will work pro bono, i.e. for free. While all the time they pour huge resources of our tax payer’s money into their legal teams.

    http://www.unece.org/environmental-policy/conventions/public-participation/aarhus-convention/tfwg/envppcc/envppcccom/acccc2014113-ireland.html

    I have no doubt sparks will fly in the Committee room, as a result of the arrogant, aggressive stance those representing the Irish State will take, equally I know from my own experience there, that the likes of Jerzy on the Compliance Committee don’t take crap or suffer fools gladly:

    http://www.unece.org/environmental-policy/conventions/public-participation/aarhus-convention/tfwg/envppcc/aarhuscc-members.html

    So I wish Kieran all the best and I’m sure that if others attended it would be some show. I would also encourage others to dip into the UNECE webpage above for Communication ACCC/C/2014/113, as there will be very relevant documentation posted on it over the next short while. Indeed plenty of source material there for future blog posts and even into the wider domain of what we call ‘the media’ (which is not to be confused with the concept of a public information service – never was, never will be).

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