The Cost of Justice

High legal fees are locking people out of the courts system.

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If someone needs legal services, it can mean paying thousands of euros, and the exact cost generally can’t be predicted in advance.

For example, if you want to hire a solicitor for a divorce they will refuse to tell you how much it will all cost because they don’t know. Lawyers charge an hourly rate. If they make a phone call, write a letter, peruse a case file, do research or witness a statement the lawyers will charge for this, all before anyone steps foot inside a courtroom.

The difficulty of the case depends on whether there are assets that need to be discovered and valued, children who need custody arrangements, or maintenance payments where one spouse earns significantly more than the other. It also depends whether the case is contested.

Given that hourly rates are invariably more than €100, this process can mean a bill in the thousands.

Most people don’t have that much money sitting around. It can mean being forced to drop the case, self-representation in court or getting into debt to pay your legal fees. The threat of legal action alone is often enough to bully people into settlements.

Chances are most people will need legal help at some point in their lives. Apart from general legal transactions like registering a will or buying a house, you can’t predict when you might be illegally evicted, unfairly dismissed, run over by a reckless driver or be unable to pay your debts.

Subsidised legal services

When people speak about legal aid they often call it ‘free legal aid’. This is only half correct. If you are given criminal legal aid, you will receive legal services free of charge.

But for everyone not accused of a crime, it’s a different story. In Ireland, we have civil legal aid, but it is not free. The person applying must make a contribution to the Legal Aid Board.

The contribution for legal representation can cost anywhere from €130 to over €5,000 depending on your disposable income and disposable capital.

The €130 fee may not seem like a lot, and it’s certainly much less than a private lawyer will charge you. But this contribution is still a full two-thirds of the basic weekly welfare allowance and can be difficult for many people to pay.

Unfortunately, the full contribution must be paid up front before the Board will represent you. While people can apply to pay by instalments or for a waiver of the fees, this is almost never allowed.

The requirement that fees be paid in advance can be especially problematic where cases are urgent, such as those involving domestic abuse, where the abusive partner often has control of the money.

On top of that, the Legal Aid Board is entitled to charge its full fee if you are awarded money or property from the case, which usually happens in divorce cases when assets are split. There is an informal cap on legal fees of €6,000, on top of the contribution.

The fact that the Legal Aid Board can recover their full costs from the sale of a family home, even where that money is needed to find somewhere new to live, is cruel and can leave clients being unable to find a new home.

Mediation is cheaper than going down the traditional legal route. However, it is not advised in certain cases, such as where there is domestic violence. It can still cost up to €1,000, not including the expenses of formally registering the agreements made.

Even choosing to represent yourself doesn’t get rid of the costs. Apart from the €60 you need to pay to file an appearance, it’s also €60 to file a Notice of Motion (to initiate a case), €20 per affidavit, €20 per subpoena and €250 to get a trial date. Just filing documents can end up costing self-represented litigants hundreds of euro in stamp duty.

Additionally, as a general legal rule, if you lose the case you could also have costs awarded against you, meaning you would need to pay the other side’s lawyer.

Bringing down the price

Richard Susskind, a professor at Oxford and advisor to the Lord Chief Justice of England and Wales, argues in his book ‘The End of Lawyers’ that legal costs can be reduced by standardising routine and repetitive legal tasks, such as drafting wills and leases, and through the computerisation of services.

Since the book was published in 2008, we’ve seen a move in this direction. One recent entrant to the Irish legal market, LawOnline.ie., offers to “assemble a document” based on answers given by clients in an online questionnaire. They charge a flat fee for documents, including tax. You can get a comprehensive will for €75, or €130 if you want a solicitor to review it. They also offer a ‘complete divorce or separation pack’ for €450 or €650 with the review.

In the UK there are other options in the low-cost legal market. Companies like the Co-operative Legal Services offer fixed fee prices for a range of work. Some firms provide free online or phone advice as a loss leader. Others now use online document assembly services like Rapidocs, or advertise ‘unbundled services’ where instead of paying for everything that a case involves, you do some of the work yourself, like filing claims or drafting documents.

Of course, these services are limited by the fact that it requires people to have enough literacy and education to be able to take on some legal work.

Another option for reducing the cost of legal services is providing online triage, which provides early advice and prevents legal problems from increasing.

Legal aid services in the Netherlands, parts of Australia, New Zealand and Canada currently do this. Sites vary; some have links to helpful leaflets while others are interactive, bringing people through the different stages of their case and directing them towards the best option for dispute resolution.

The leader in this field is the Dutch Legal Aid Board ‘Rechtwijzer’. The user chooses the legal problem area, and the website asks a series of questions. For example, if you are getting a divorce, saying that there has been violence in your relationship leads you away from the mediation option and directs you to victim support and lawyer referral. However, the site heavily leans towards mediation in all other cases and encourages you to draw up an agreed parenting plan if you have kids.

The user pays nothing, and it saves the Legal Aid Board time and money. In Ireland, triage is still done by Legal Aid Board lawyers, and the waiting times for this first appointment range from 4-33 weeks depending on your law centre.

The triage system’s main benefit is directing users to non-court services which are usually quicker, cheaper and less adversarial, such as mediation and alternative complaint mechanisms. It provides early intervention and helps people to quickly get a handle on their legal problems rather than letting them fester.

Unfortunately, we are not yet at this stage in Ireland. John McDaid, CEO of the Legal Aid Board, explains:

I think we are some distance from what they do in the Netherlands… I mean at the moment we’re at the less advanced stage of just trying to have a better website, which hopefully we’ll have in the next month or two. We’ll build on that with our online applications. But in terms of the Dutch model we’re some way from being in a position to really sort of develop that model.

Investing in Justice
Part of the problem is the Legal Aid Board’s lack of funding. Although it has law centres throughout the country, the number of lawyers is roughly equivalent to a medium sized law firm in Dublin. The Board has struggled to meet demand.

However, it could be in the Government’s interest to put a significant investment into the legal aid system and to make it more accessible for people who currently can’t afford its services.

A 2010 study by Citizens Advice in the UK found that where there was early intervention in legal problems, this could save the State money. They estimated that:

● For every £1 of legal aid expenditure on housing advice, the state potentially saves £2.34.
● For every £1 of legal aid expenditure on debt advice, the state potentially saves £2.98.
● For every £1 of legal aid expenditure on benefits advice, the state potentially saves £8.80.
● For every £1 of legal aid expenditure on employment advice, the state potentially saves £7.13.

Legal aid paid for itself by reducing adverse outcomes such as homelessness, lost productivity and earnings, reliance on state supports, related health issues and relationship breakdown, including its negative effects on children. It also prevented further related legal issues. The Free Legal Advice Centres (FLAC) note in their 2016 Report:

Debt problems are linked to family problems; social welfare problems are connected to employment issues; family problems are associated with housing problems; immigration issues are tied to social welfare issues. Thus failure to provide legal representation, or even timely representation, in a social welfare case, for instance, can lead to greater debt problems. It is vital that problems which require legal support are addressed at an early stage.

Therefore, the expense of legal costs is not just borne by individuals, but by the State as well.

As with our health system, our focus should be on prevention. Providing comprehensive legal aid save not just money, but untold hardship for the people involved.

This is the third article in a series on legal aid.

You can find the first article, about proposals to limit criminal legal aid, here.

You can find the second article, about how access to legal aid can reduce domestic violence, here.

Author: Liz O'Malley

Freelance journalist, sometime law student, political junkie, pasta addict.

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