Try and try again

Lawyers have been slammed for charging huge fees on the raft of tribunals plaguing Ireland. Jon Robins asks: is it fair comment or just another excuse for lawyer-bashing?

At the beginning of the year it was reported that the Irish Finance Minister Charlie McCreevy was about to call time on the “lawyers' gravy train”, the common description for the series of tribunals running in Ireland. According to leaked memos, the minister estimates that the total cost of the state's tribunals could be as much as e500m (£348.2m) by the time they are all concluded.

Critics in the press have long since arrived at the same conclusion. “Politicians are only in the ha'penny place compared to lawyers when it comes to taking money from the public purse,” protested an editorial in The Sunday Tribune following an increase in lawyers' fees at the end of the last year. “The proliferation of tribunals has served to highlight the massive and unwarranted fees which are paid to barristers in this society.”

In a letter to his attorney-general Rory Brady, McCreevy put the costs of the seven existing tribunals at e250m (£174.1m) so far. He complained of the “apparently relentless” increase in fees being demanded by lawyers. There has been swift action and last month the Minister of Justice Michael McDowell published his own model for a new and less expensive form of inquiry. At around the same time, the Law Reform Commission published its consultation paper on public inquiries, including tribunals; it called for “a private, low-key inquiry which concentrates on the wrong or malfunction in the system and not the wrongdoer”.

Of course, complaints about the supposed extravagance of tribunals are nothing new in the press over here. The costs of Lord Saville's inquiry into Bloody Sunday, in which it was recently claimed that Edwin Glasgow QC had earned over £2m from the hearings and that more than seven QCs have been paid more than £500,000, have been hugely controversial. But the coverage is nothing compared with the acres of column inches devoted to the rising legal aid bill of the current tribunal fest in the republic. According to one report, the recent rash of tribunals has already created seven millionaires.

In fact, even the legal profession is quick to acknowledge that there is a problem with the system. Ken Murphy, director general of the Irish Law Society, conceded to the press that the tribunals had been a disaster for the public image of the legal profession. “A few lawyers are making a fortune and the others are taking the public blame,” he was reported to have said.

For the last four years, Pat Hanratty SC has been involved in the Flood inquiry into planning irregularities and payments to politicians and has only recently been released to return to his practice. “The main problem with tribunals in Ireland is that there are just too many of them,” declares the silk, who has been identified as one of the tribunal millionaires. “It seems that every political bun fight generates a tribunal. It's come to be seen as a panacea for all of the past failings of the state to protect the interests of its citizens, and there's no doubt that the amount of tribunals we have now is by any standards exceptional.”

There were 10 public inquiries last year and seven are live in 2003 – and they come in all shapes and sizes. There are the headline-commanding Moriarty and Flood tribunals, which have both been going on for around five years with no end in sight, and which go to the heart of Irish politics. Moriarty concerns allegations of corruption in the grant of a mobile phone licence and payments to the former Taoiseach Charles Haughey and one-time Fine Gael minister Michael Lowry. Others, such as the Dunne inquiry into retained bodyparts and the now completed Lindsay report into how haemophiliacs were infected with HIV and hepatitis C through contaminated blood, concern the way in which people were treated by hospitals. And then there are inquiries (Morris and Abbeylara) into aspects of Garda conduct.

The tribunals are not just a source of fees for Ireland's small bar of about 1,000 practitioners. As the work also spills out into the wider profession, all the large law firms are involved to some degree on the larger tribunals. While inquiries are portrayed in the press as being run largely for the benefit of the legal profession, there seems little affection among lawyers for keeping the status quo.

“Everyone involved would be in favour of as much work as possible being done in private, with work moved to the appropriate person [as opposed to being limited to the bar] and greater streamlining,” comments Andy Lenny, a partner in the litigation group at Arthur Cox, which has been involved in some form in all the major tribunals. Lenny was involved in in the McCracken tribunal into payments to politicians, which discovered in 1997 that Charles Haughey had received £1.3m in secret payments from a supermarket tycoon. This led to the Moriarty tribunal (which Lenny was also involved in), which was set up as a wider judicial investigation into payments to politicians.

“There's a huge difference between these existing tribunals and McCracken, which was very self-contained,” recalls Lenny. “It started in February 1997 and ended in July 1997, and the report was published in September.” But Lenny argues that Flood and Moriarty are of “such fundamental importance, because of the nature of the investigations, the potential findings and the identity of the people involved”, and progress is necessarily slow.

“It will be fought tooth-and-nail by the people involved, and the tribunal has to be 100 per cent sure of its facts before bringing them into public session; and that all makes for taking a very, very long time,” the solicitor comments.

Eileen Roberts, a litigation and dispute resolution partner at A&L Goodbody, says that her firm has been involved in “not all, but most, tribunals” (including Moriarty and Flood), and might be acting for different parties in one tribunal if there were no conflicts.

“As a result of the press hype, it becomes hugely stressful for people to give evidence, even on key points where they have nothing to be afraid of. Inquiries have become not exactly a soap opera, but certainly subject to huge media attention,” says Roberts. “There's an argument to say that they've moved away from fact-finding to a pretty contentious form of examination and cross-examination, and it can be daunting for anyone to appear.”

The focus of the criticism has fallen on the hourly rate paid to the teams of lawyers: counsel can be paid up to e2,500 (£1,700) per day, solicitors in the region of e1,000 (£700) and research counsel up to e500 (£350). The daily costs of the state-appointed legal teams to the seven tribunals has been reckoned to be in the region of e60,000 (£418,000) – and that does not even include the third-party costs of the lawyers hired by witnesses.

The Law Reform Commission has called for a new way of paying lawyers. “The payment of a barrister normally works on a sequence of rainy days when he is not paid and sunny days when he is, and those sunny days pay for the rainy days,” says Professor David Gwynn Morgan, a former director of research at the commission, who worked on the consultation paper. “Inquiries are a meteorological impossibility. They're years and years of sunny days.”

“These figures appear enormous to Joe Public,” says Lenny. “But the reality is that experienced senior counsel would earn far more in private practice, and in addition, the longer they stay on the more their practice would be decimated. The pay is also supposed to compensate them for the slow run they'll have back into private practice after they've been out for a long time.”

When Hanratty was first approached by the tribunal, he was told that the process would last two years, but he was convinced that it would go on for a minimum of four. However, when he left it was reckoned that there were another five years still to run. The barrister says he left because he “couldn't sustain a complete and total absence” from his practice for 10 years.

It is a point that the Bar Council makes. “One of the things that happens when you take on tribunal work is you essentially surrender your practice,” said chairman Conor Maguire recently. “Not only do you surrender it, but you surrender it to your competitors. In that sense, when you hire a barrister you hire his practice. It's not a question of wages straight into the pocket – it's a question of actually engaging him in such a way that you deprive him of his ordinary practice.”

Morgan acknowledges that for the tribunals to retain the best counsel, high levels of money have to be paid. As the Law Reform Commission observes: “[If] leading practitioners are to continue to be attracted to this work, the change in the way that payment is calculated will not necessarily mean a significant reduction in the total cost.”

The glut of inquiry work has had a detrimental effect on the legal profession insofar as it effectively takes many of its leading lights out of action. And now many of the really talented barristers are increasingly wary of becoming involved. “If you do have people willing to participate there, they'll generally be people who aren't making money anywhere else in my view,” says one solicitor.

“The bar isn't exactly fed up, but it's increasingly difficult to instruct barristers who are suitably qualified to do the work,” says Hanratty. There is “widespread support” in the bar for the Justice Minister's plans for a cheaper, pared down inquiry, he adds. It is not just a problem for senior members of the profession – the juniors, who have spent seven years qualifying, are not exactly queuing up to spend four years on one inquiry.

According to the Law Reform Commission, there is a “very extravagant measure of constitutional justice” granted to tribunals where it is neither legally nor constitutionally required.

Roberts at A&L Goodbody explains that the normal position for a statutory-based tribunal is that no guarantee of costs is made. “But the reality is that all parties will make an application, and at the end of the tribunal they're usually awarded,” she explains. In the Lindsay tribunal, the haemophiliacs made an application for upfront costs, but it was turned down by the tribunal; however, they did secure some funding on account from the government.

Will a witness be significantly disadvantaged by not having their own lawyers? “They can be,” she replies. “Merely giving evidence is one thing, but a lot of witnesses will be required to engage in quite an extensive discovery process, and that's where you really do need lawyers involved. It can become a very expensive exercise.”

The Law Reform Commission argues that an inquiry being held in private would avoid the excesses of the present system, within which the accusations of a person are “made possibly by a prejudiced witness and often amplified by the mass media”. It also calls on an inquiry to concentrate on the “flaw or malfunctioning” of the institution, big business or profession and not the wrongdoer. “The question is whether you can reduce the need for that constitutional justice by sitting in private,” says Morgan.

According to Hanratty, a lot of what he calls “the fair procedure overlay” is a direct consequence of the fact that inquiries are run in public. He says: “There is undoubtedly a significant delay between the allegation made and being adjudicated, and so a person is left hanging and waiting for vindication – or not, as the case maybe.”

Given the widely diverse nature of the various inquiries taking place, the press's totalling up of the costs to the state seems a rather crude tool. Or a pretty meaningless exercise, according to many of those involved. It also obscures the fact that, according to Hanratty, some of the inquiries have to a certain extent been self-funding, owing to the money, undisclosed income and off-shore accounts collected by the government.

But the silk also says: “The cost to society of the things that we are looking into are costs that are very hard to quantify. If those things are put right, then the benefits are very intangible, but they're real and perhaps outweigh the actual costs of the tribunals.”