An ongoing battle between the Law Society and the Taxing Master has resulted in the society going to the courts to challenge a number of taxation decisions by Christopher Napier.
The society is claiming in its paper 'The Hourly Rate' by John Meehan of Meehan, Murphy & Co that the Master does not, in principle, want to increase the rate beyond £40 per hour. And it feels that it is time for solicitors to mount a more concerted challenge to the present Northern Ireland Taxing Office rate as it has “been unable to advance matters through constructive dialogue with the Master”.
It is a subject of considerable anxiety to NI practitioners who claim to be the poorest paid
solicitors in the UK.
Law Society president Aidan Canavan says the troubles gave a false image of criminal solicitors allegedly benefiting from highly profitable trials. However, for most of the profession “earnings in real terms have dropped dramatically over the past five to 10 years”.
Canavan believes that solicitors have been slow to use the taxation procedure and consequently have allowed the basic hourly rate to drop to a level “which simply does not reflect the actual cost of running a modern solicitor's office”.
According to Meehan's paper, the problem had its root in a meeting between the Law Society and the Master in 1993 when the Master announced a “provisional” hourly rate of £40 which allowed only for inflation over the previous year. He also challenged the society to provide empirical evidence indicating that the new rate was out of line with solicitors'
expenses; only then would he review the figures.
The society “felt something was awry when the matter of keeping remuneration in line with commercial realities, year by year, would appear to come down to a situation whereby the process was halted in all but the most uncontroversial and verifiable respect, inflation, until the profession itself, through the society, produced satisfactory evidence as to the current level of direct expenses,” Meehan notes in his report.
The report goes on to say: “In the course of the following year and a half, however, our expectations as to what might be achieved through dialogue with the Master were steadily eroded. Indeed, we believe that the Master's own disposition has changed significantly.”
The society says that only a comprehensive survey of expense rates throughout the profession, not only from those likely to seek taxation in their casework but from a full spectrum of practice types is likely to encourage him to change his mind – other than an authoritative ruling to the contrary.
However, the Master later said he felt it contrary to the interests of solicitors that there should be a sharp increase in the Northern Ireland rate since this would only provoke government action to cap legal aid casework as was the case in England and Wales in 1994.
According to Meehan's report, he said that he felt solicitors ought to be more careful in regard to their position on the hourly rate and that a change in the published rate might indicate a rise in the legal aid budget for the province.
The society believes the NI Court Service will bring NI into line with England and Wales in its own time. The real danger is that when the Court Service does come to negotiate the appropriate capping rate, it will take the Taxing Master's current figure of £40 as “sufficient to meet the direct expense element in a new omnibus rate and declare itself willing to negotiate only on the appropriate, standardised mark-up”.
The report says the Law Society has been unable to have a constructive dialogue with the Taxing Master and believes that there is an urgent need for authoritative rulings from the courts on the principles underlying the subject in NI.
The Law Society has funded a number of cases in the High Court against decisions of the Taxing Master. Canavan says that it is looking for cases where there is a point of principle involved.
“It is a long-term strategy but we are encouraged by the realistic attitude taken by the judiciary,” he says, adding that to date, a few cases have gone through successfully.
He says the society is “not convinced the Taxing Master has a proper appreciation of the costs of running a modern office. One might have expected that the Taxing Master, being a solicitor, would have a better understanding of the problems relating to fair remuneration for solicitors than has been evidenced in his decisions.”
It looks like the battle is only just beginning.