New legal aid payment model conflicts with existing legislation, court told

High Court Reporters

Lawyers for a solicitor challenging the new legal aid payment model have argued that the scheme is at odds with existing legislation and infringes on judicial powers.

John Quinn, a solicitor at John M Quinn & Co Solicitors, wants the High Court to quash the statutory instrument underpinning the new payment model.

It is his case that the statutory instrument’s regulations are “arbitrary, capricious and unjust”, and conflict with the provisions of the Criminal Justice (Legal Aid) Act 1962.

Minister for Justice Jim O’Callaghan, who introduced the model, is embroiled in a dispute with solicitors opposed to it.

Some solicitors have withdrawn their services in protest at the new arrangement, which came into effect earlier this month. This has led to significant disruption in the criminal justice system.

The new legal aid payment scheme provides for a once-off legal aid fee of €520 irrespective of how many appearances solicitors make to represent a client in the District Court. Previously, solicitors were paid per appearance.

Opening  Mr Quinn’s case on Thursday, barrister Feichín McDonagh argued that section 2 of the 1962 Act provides for a District Court judge to consider granting legal aid certificates in respect of each charge an accused person is faced with.

A legal aid certificate is essentially a payment invoice.

McDonagh, appearing with Karl Monahan, submitted that the “extraordinary” new regulations seek to stop District Court judges from exercising that statutory duty.

Nothing in the new regulations can change the provisions allowing for the granting of multiple legal aid certificates, counsel argued. He submitted that the new regulations amount to an instruction to a District Court judge that they can only grant one legal aid certificate in respect of an accused person.

McDonagh referred to a review of the previous legal aid system, relied on by the minister, which criticised the granting of multiple legal aid certificates and asserted that solicitors were incentivised to adjourn cases.

Counsel said the minister’s case showed no appreciation for why adjournments happened in the District Court – often, it is to facilitate gardaí and the Director of Public Prosecutions. He submitted there was no evidential basis to claims in the department’s review.

He submitted that it was irrational that the €520 flat fee was considered appropriate for a solicitor’s work in respect of an accused facing one charge, and an accused facing multiple charges.

Shane Murphy, counsel for the Law Society with Frank Kennedy, said his client considered Quinn’s case – that the Minister acted beyond his power in enacting the new legal aid regulations – to be well founded.

Counsel said that the Minister, with the new regulations, was attempting to undermine a statutory scheme and system provided for in the 1962 Act. The regulations seek to remove the discretion of a judge to grant more than one legal aid certificate in respect of an accused person, Murphy submitted.

Eoin McCullough, for the Minister, said the case was concerned with the lawfulness of a system of flat fee payments in respect of solicitor’s work on a range of cases.

If his side can demonstrate that the system is lawful, and does not fall foul of rules against arbitrary and capricious legislation, then that will be the end of the case, McCullough submitted.

McCullough, appearing with Eoin Carolan, Hugh McDowell and Davy Lalor, said there was no requirement for a payment-per-appearance legal aid scheme in the 1962 Act, and therefore no prohibition on introducing the flat fee scheme.

McCullough also argued the 1962 Act does not require that a District Court judge has discretion to grant multiple legal aid certificates in respect of an accused person.

The judge decides whether or not legal aid is granted – it is up for the minister then to decide how legal aid is remunerated, McCullough said.

McCullough said the 1962 Act gave the minister wide powers, and the court had to be conscious of the separation of powers between the courts and the Oireachtas.

That being so, the court has to be conscious that Quinn’s action is not about the merits of the dispute over the legal aid payment model.

He said the court had to be careful to distinguish legal complaints from economic complaints. Whether there is a better system for the remuneration of lawyers is not a matter for the court, counsel said.

The case, before Judge Mary Rose Gearty, continues.