The Gazette 1972

Two Senior Counsel Briefed For Each Party In Superior Courts Bar Council and Minister for Justice BAR COUNCIL S STATEMENT

Only one of 15 reports from the Committee on Court Practice and Procedure, submitted to the Department of Justice since 1962, had been adopted, says a state- ment from the General Council of the Bar in Ireland issued yesterday. It criticises the attitude of the Minister for Justice, Mr. O'Malley, and describes his recent statements as a public manifestation of the hostility of his Department towards the Bar. Mr. O'Malley is expected to reply to the statement today. The Bar Council refers to the Minister's statement, especially his choice of language in designating as "a hit of a racket" the use of two Senior Counsel in cases before the Courts. It stresses in the statement that the work load falling on the Supreme Court and'High Court Judges cannot be disposed of if there is any waste °f judicial time, which would necessarily result if dates °f the trial and actions and appeals were fixed in advance. Uncertain The statement says that as a result, the barrister cannot normally expect any more than 24 hours notice °f when a case will be tried and quite commonly it is uncertain whether a case listed for the following day will be taken that day. "When Senior Counsel is asked by a solicitor even a Week before the probable date of trial to give exclusive attention to an action without the assistance of a second Senior Counsel he is put in a difficult position. He does not know what other briefs he will have to return °r decline if he agrees because the same uncertainty as to the date of trial afflicts most of his briefs. If he accepts the invitation any reasonable fee will probably e xceed what would be paid for the part-time services of two Senior Counsel. "In most cases where a single Senior Counsel is briefed it can be assumed that the client can afford to Pay a very substantial fee irrespective of the outcome of the action." The ordinary citizen pursuing a claim for damages for personal injuries against an insurance company does not fall into that class, it is stated. The Minister for Justice, at Belgrade for a confer- ence of the World Peace through Law Centre and more recently in the Dail, had pleaded in mitigation of the State's failure to introduce a scheme for legal a id in civil cases, that it was the tradition of the Irish Bar to act for litigants who could not afford to pay Counsel's fees. "The Minister appears now to have designated as 'a kind of a racket' the practice of two Senior Counsels which makes this service possible. At the same time in the new Courts of Justice Bill the Minister is taking away the exclusive right of Barristers to appear in the High Court and Supreme Court, which is the founda-

tion of the tradition on which the Minister relies," the statement says. Barristers believed that they had an obligation to appear for poor litigants because Barristers had up to now the exclusive right to audience in the Superior Courts and failure of the Bar to act in that way would have deprived their fellow citizens who could not afford Counsel's fees of the right of access to the Courts. Outrageous The Minister appears to have said it was 'outrageous' to have two Senior Counsel briefed for the same party in the High Court in an action which the amount involved might be only £700. The Bar Council agreed with the Minister, but would point out that this situation is solely due to the failure of the Department of Justice to keep the jurisdiction of the Circuit Court in line with the falling value of money. The present jurisdiction of the Circuit Court was fixed at £600 in 1953 and had remained unaltered for 18 years. "If the Minister wanted to be reasonable he could have told the Dail that in these small cases fees are allowed by the Taxing Master to one Senior Counsel only. It is not the practice of the Bar to ask a poor litigant to pay out of the damages he has recovered, fees to Counsel whom it was necessary for him to employ but which are not allowed on taxation." Fees In its criticism of the Minister's proposed regulations for the Taxing Master, the Bar Council says that the Minister's statement that he intended to give directions to Taxing Masters not to allow fees to more than one Counsel except in serious cases would appear to indicate either lack of knowledge on the Minister's part of the constitutional limits of his authority, or perhaps an intention to act in violation of the Constitution. The Taxing Masters were administering justice and determining matters in dispute in regard to costs. Any attempt by the Minister to impose his views on the Taxing Masters would appear to be a flagrant inter- ference with the constitutional right of citizens to have their cases determined by due process of law. "The Minister's statement bears a more sinister appearance in the light of the unprecedented invasion last week of the Taxing Masters Office by the Depart- ment of Justice, when over the weekend a Taxing Master's files were surreptitiously removed and he was barricaded out of his office. If this can be done to an officer of the Court, a little more temerity might suggest it could be attempted on the Judges, though this would be unnecessary if the Minister succeeded in usurping power over the officers. If the Minister can control the officers of the Court and dictate to Taxing Masters what costs they are to allow it would be easy to control the citizens' right of access to Justice," the statement concluded. (Irish Independent, 8th December 1971) 27