Melissa Gowan, partner at Cantillons Solicitors in Cork, writes on the challenge posed to access to justice by delays in solicitors receiving their fees.

The right of access to the Courts, is a Constitutional right, which was recognised in McCauley v Minister for Posts and Telegraphs when Kenny J held:

“There is a right to have recourse to the High Court to defend and vindicate a Legal Right and that is one of the personal rights of the citizen included in the General Guarantee in Article 40.3.”

Solicitors’ costs are routinely slammed by the media described as “excessive” and “out of control”. Little or no media attention is given to the fact that solicitors commonly carry the cost of bringing a case to hearing in the hope that they will get paid promptly on the successful conclusion of the matter. Solicitors’ fees are regularly blamed for driving up Insurance costs. This is not so.

In the last number of years a situation has evolved of there being serious delays in the payment of solicitors’ costs. These delays can run to 2 to 3 years. This is compounded by the considerable reductions seen in Plaintiff’s costs when the matters are ultimately decided by the Taxing Master.

Added to these delays one of the two current Taxing Masters is due to retire later this year and is not taking on new cases. The second Taxing Master is due to retire in Spring of 2017 and has a significant backlog of cases waiting to be heard. The Legal Services Regulation Act provides for the appointment of a Legal Costs Adjudicator. This office and regime has yet to be set up. A combination of these factors have resulted in costs not being paid for up to 3 years following settlement of a client’s case.

It is our view at Cantillons that Access to Justice will be denied to our clients unless the untenable situation in relation to Solicitors costs is urgently addressed.

How can this impasse be solved?

We at Cantillons propose an alternative dispute resolution mechanism such as Arbitration or Mediation for the taxation of costs. This would lead to a workable solution to this dilemma provided it is set up in a structured way. This would not only in our view reduce delays in clients’ costs being paid but would significantly reduce costs also and is a win win scenario for both Plaintiffs and Defendants alike.

If it is not addressed and if solicitors are not properly paid, and in a timely fashion, clients will in our view continue to be denied Access to Justice.