One of the many charges proven against Beresfords was:
That they failed to give sufficient information to clients about costsand/or the funding of claims generally, contrary to Rule 1 (a), (c), (d) and (e) and/or Rule 15 of the SPR and the Solicitor’s Cost Information and Client Care Code ("the Client Care Code").
However the treatment meted out to Beresfords contrasts with the double-charging practiced by Irish solicitors when handling claims for compensation by former residents of residential institutions. Some of these solicitors have received fours sets of fees for effectively the same work:
- Work done before Commission to Inquire into Child Abuse (CICA)
- Work done before Residential Institutions Redress Board
- Illegeally double-charging of work done before Residential Institutions Redress Board (RIRB)
- Work done when taking case for compensation
The cost of these legal fees alone will easily top €300 million and may be much higher, dwarfing the legal costs of all other tribunals put together as well as being over twice the amount of money paid by the religious orders to cover their costs.
RIRB Solicitor Fees
The top earning solicitors for the years 2003 to 2007 (the last year for which the RIRB has published an annual report) were:
Michael E Hanahoe
Lavelle Coleman
Peter McDonnell & Associates
Murphy English & Co
Hodge Jones & Allen
Margaret Campbell
Madden & Associates
Paul W Tracey
The fees they earned were:
€12,686,356.56
€10,805,131.04
€6,271,877.66
€5,673,409.57
€4,503,085.76
€3,844,980.84
€3,531,004.36
€3,106,815.50
The average cost per case per solicitor was:
€16,825.41
€13,557.25
€8,638.95
€14,183.52
€10,375.77
€11,758.35
€11,849.01
€7,966.19
The solicitors that have processed the largest number of cases also generally charge the largest average cost. You would imagine that these solicitors would have achieved the economies of loading and scale to drive the average cost per case down. Apparently this is not the case. Does this mean that solicitors are being allowed to charge a percentage of awards achieved rather than payment for work done?
If those solicitors charging greater than the average fee had their fees reduced to the average, the saving would be €10 million.
A more detailed analysis can be found here.
Commission to Inquire into Child Abuse Legal Fees
This consists of two committees: an Investigation and a Confidential.
The Investigation Committee which operates on an adversarial basis, received about 2,200 complaints of which about 1,700 are live. Because of the gross incompetence of Justice Laffoy in her establishment, organisation and ongoing operation of the Commission, each complaint was effectively organised like a separate High Court case: separate complainant, separate plaintiffs (Regulatory – Department of Education, Regulatory – the Order that ran the institution, and individual – the members of the orders against whom complaints were made). Given that many complainants attended multiple institutions, the average number of plaintiffs per complaint is about 9.
Remember that each complainant and plaintiff is entitled to legal representation and that their costs will be covered by the Commission, i.e. the Government, i.e. the tax payer. The length of time the operation of the commission has dragged on has just increased legal costs.
Internal estimates made by Department of Education civil servants estimate the external legal costs (that is excluding the cost of the barristers working for the Commission) at anywhere between €300 million and €1 billion.
Bear in mind that the average legal bill for Hepatitis C cases was of the order of £30,000 (€38,000). These were much simpler cases with smaller numbers of participants.
Of course Laffoy performed the dual act of escaping from the cock-up she created and being beatified in the process, leaving others to pick up the pieces.
Other Legal Fees
Another point that is being ignored by all parties is the dual billing of legal fees and the failure of all parties to attempt to address it.
And now for some legal background to explain this:
Commission to Inquire into Child Abuse
The relevant section of the COMMISSION TO INQUIRE INTO CHILD ABUSE ACT, 2000 as amended by the RESIDENTIAL INSTITUTIONS REDRESS ACT, 2002 is:
20.—(1) The Minister may, with the consent of the Minister for Finance and after consultation with the Commission, make a scheme providing for the payment by the Commission to a person who, pursuant to a request of a Committee or a direction attends before a Committee, of a reasonable amount in respect of the expenses incurred by the person in relation to such attendance.
(2) The Minister may, with the consent and after consultation aforesaid, make a scheme amending or revoking a scheme under this section.
(3) The Commission shall carry out a scheme under this section in accordance with its terms.
20A.—(1) The Investigation Committee may representation and allow a person appearing before it to be represented by counsel or solicitor or otherwise.
(2) Subject to subsection (3), the Commission may pay such reasonable costs arising out of the representation referred to in subsection (1) to the person so represented as are agreed between the Commission and that person or, in default of agreement, such costs as may be taxed by a Taxing Master of the High Court.
(3) Where the Chairperson is of the opinion that a person has failed to co-operate with or provide assistance, or has knowingly given false or misleading information, to the Investigation Committee and there are sufficient reasons rendering it equitable to do so, the Chairperson may, on his or her own motion or pursuant to an application by a person appearing before the Investigation Committee, refuse to allow the whole or part of the costs of appearance to such person, and may make an order directing that the whole or part of such costs—
(a) of any person appearing before the Investigation Committee by counsel or solicitor, as may be taxed by a Taxing Master of the High Court in default of agreement, shall be paid to the person by the first-mentioned person, or
(b) incurred by the Investigation Committee, as may be taxed by a Taxing Master of the High Court in default of agreement, shall be paid to the Minister for Finance by the first-mentioned person.
(4) The Commission may pay to a person (other than a person referred to in subsection (2)) who makes discovery of documents pursuant to a direction under section 14(1)(d) appearing before the Investigation Committee by counsel or solicitor such reasonable costs of appearing as may be agreed between the Commission and that person or, in default of agreement, as may be taxed by a Taxing Master of the High Court.
(5) Where, in accordance with this section, expenses or costs are agreed or taxed, the Commission, or, as the case may be, the Taxing Master shall have regard to—
(a) any expenses and costs paid to the person by the Residential Institutions Redress Board, and
(b) any expenses and costs paid to the person by the State in respect of any litigation concerning the same, or substantially the same, acts complained of to the Investigation Committee, for the purpose of ensuring that payment is not made more than once for any matter arising out of such expenses or costs.
The Commission will incur two sets of legal fees:
1. Those by Complainants who are represented by solicitors
2. Those by Respondents who have been named in complaints. There are two types of Respondent: Manager (i.e. the Religious Order that managed the Institution in which the Complainant was resident) and Individual (the person named as the abuser – this can be a member of the Order or a lay person)
Residential Institutions Redress Board
The relevant section of the RESIDENTIAL INSTITUTIONS REDRESS ACT, 2002 is:
27.—(1) The Board shall pay to an applicant to whom it has made an award (including an award that has been reviewed under section 15) a reasonable amount for expenses incurred by him or her relating to the preparation and presentation of the application as shall be agreed between the Board and the applicant and in default of such agreement such expenses shall be determined by a Taxing Master of the High Court.
(2) The Board shall pay to an applicant who accepts an award (including an award that has been reviewed under section 15) the costs of any proceedings instituted by that applicant and to which the waiver under section 13(6) applies as shall be agreed between the Board and the applicant and in default of such agreement such expenses shall be determined by a Taxing Master of the High Court.
(3) Where expenses or costs are agreed or taxed regard shall be had to any expenses and costs concerning—
(a) the proceedings referred to in subsection (2),or
(b) a submission to the Investigation Committee, for the purpose of ensuring that a payment for an item of such expenses or costs is not made more than once.
(4) In subsection (3) ‘‘Investigation Committee’’ has the meaning assigned to it by the Act of 2000.
The Board will incur legal costs of Applicants who have made an application to the Board and who are represented by a solicitor.
Other Litigation and Other Awards
Section 9/10 of the application form to the RIRB asks the applications if damages by way of a settlement or a court award have been received in respect of the application. However there is no obligation on the part of the applicant to complete this section and there is no checking by the RIRB if the section has not been completed (or even if the section has been completed).
Section 24 of the RESIDENTIAL INSTITUTIONS REDRESS ACT, 2002 states:
24.—Where an applicant has accepted an award made under section 13 or section 15 and has complied with section 13(6), no cause of action or claim for indemnity and contribution or either of them, whether by third party procedure pursuant to section 27 of the Civil Liability Act, 1961 or otherwise, in any civil proceedings or otherwise, shall lie against the State or a public body if such proceedings arise out of the same, or substantially the same, acts complained of in an application made under this Act and in respect of which the applicant is a party.
However, there is no restriction based past awards or settlements.
If any such award or settlement was made, there will probably have been legal work done by a solicitor that will be reused during the application process.
Joint Handling of Fees
A facility to handle bills submitted to both the Commission and the Board is required to to allow tracking liability and reducing payments for work being charged for twice or three times.
The workload of the Commission and the Board will is being shared. Many of the Complainants to the Commission will also be applicants to the Board. The RESIDENTIAL INSTITUTIONS REDRESS ACT, 2002 states the Board will make “a submission to the Investigation Committee, for the purpose of ensuring that a payment for an item of such expenses or costs is not made more than once.”
Conclusion
For the 7,876 cases processed so far by the RIRB, the total legal costs have amounted to €95,915,989.57 at an average cost of €12,178.26 per case.
Assume that the 1,700 live cases before CICA have all come before the RIRB. Assume that the average set of legal fees that will be charged for each of complainant will be €40,000. (This does not include the legal fees of all the other parties involved in a complaint.)
So by rights the legal fees charged for RIRB work on these 1,700 should be reduced because the work has already been done for the CICA. If the RIRB fees were reduced by 50%, this would result in a saving of €10 million.
This is on top of the other €10 million that could be saved by more rigorously questioning legal fees charged by solicitors.
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