International
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Ireland’s Inadequate Access to Justice: The Discrepancy between Common and Civil Law Systems By Grace Given, SS Law and German At the Access to Justice Conference 2021, former Chief Justice Frank Clarke made a variety of worrying observations about Ireland’s position near the bottom of the international league table with regard to the investment in the justice system. In fact, in comparison with civil law jurisdictions, Ireland is notably lagging behind when it comes to the allocation of taxpayers’ money in this regard. The costs associated with bringing a case to trial in civil law systems are generally fixed and charged in accordance with legislation. In Germany for example, lawyers’ fees are charged either in accordance with the Rechtsanwaltsvergütungsgesetz (Lawyers’ Remuneration Act), or based on fee agreements which must have regard to provisions set out in the Bundesrechtsanwaltsordnung (Federal Lawyers Code). In non-criminal cases, lawyers are not remunerated for the time which they spend on a case, but are paid a fee in accordance with statute, which is evaluated based on the value of the claim. Because low income litigants tend to have lower value claims, many often benefit from this sliding scale fee system. The Rechtsanwaltsvergütungsgesetz does not prevent a party from signing a fee agreement that could lead to higher fees; it does, however, restrict the fees to be reimbursed by the losing party. In addition, fee ranges with statutory maximum and minimum amounts apply in a number of special fields such as matters of social law. In contrast to this, Ireland has been described by ‘The Lawyer,’ a specialist legal publication, as “the least transparent jurisdiction in Europe’’ when it comes to collecting data regarding legal fees. Legal costs in Ireland are generally discretionary in nature and are often prohibitively expensive as a result. The former Chief Justice put forward another line of reasoning for Ireland’s precarious position: “It is fair to say that there is a significant shift, in a common law system, towards work being done by parties and their lawyers (if they have them) as opposed to being done by the court and its researchers. This significant difference has the effect of transferring cost from the taxpayer to the parties to litigation. It is at least part of the explanation as to why the Irish taxpayer spends significantly less on our justice system compared with most continental countries while the Irish litigant spends more.” It is also worth noting that, in a tradition derived from Roman law (iura novit curia: da mihi factum, dabo tibi ius), litigants in Germany need not discuss points of law, but must only present the facts of the case to the court. This means that German lawyers spend significantly less time on researching points of law than their Irish counterparts. During the 2008 Financial Crisis, the high cost of legal services in Ireland was repeatedly criticised. In response to this, barristers and solicitors in the Criminal Courts had their fees slashed, and bodies like the State Claims Agency sought better value for money by inviting tenders for legal services. Under the Financial Emergency Measures in Public Interests legislation, pay-cuts ranged from 28.5 percent to 69 per cent. This month, over 100 Irish criminal solicitors and barristers have signed a petition addressed to Paolo Gentiloni, the European Commissioner for the Economy, in an attempt to reverse these cuts which were referred to as ‘emergency measures’ at the time. By way of comparison, fee charges by lawyers for private work in the civil courts have been on the rise. Ireland remains an expensive place to litigate, with the price of legal services going up rather than down, according to the National Competitiveness Council.
