‘Costs follow event’ in civil matters as reforms go live
Justice Minister Charlie Flanagan has, this week, commenced a series of historical structural reform provisions under the Legal Services Regulation Act 2015.
He said it was the most significant commencement order under the act, as it delivers on key structural reforms in relation to legal costs and legal services, while introducing a new and more independent professional conduct regime for legal practitioners.
“Members of the public will no longer have to make complaints through the legal professional bodies, as happens at present,” the minister said.
“They will now be able to do so through the independent Legal Services Regulatory Authority which was established on 1 October 2016.
“Moreover, the public will now have the benefit of enhanced legal costs transparency requirements when they require legal services,” he said.
Operation
The commencement order includes the following elements of the 2015 act, which now come into operation:
- New public complaints and professional conduct regime supported separately by the new and independent Legal Practitioners Disciplinary Tribunal (part 6),
- Roll-out of Limited Liability Partnerships for solicitors (part 8),
- New and more consumer-friendly legal costs transparency requirements on legal practitioners, supported by the new Office of the Legal Costs Adjudicators and a Schedule of Legal Costs Principles (parts 10 and 11),
- Establishment of a new advisory committee on the Grant of Patents of Precedence for the conferral of senior counsel (part 12),
- Relevant repeals of the Solicitors Acts (part 13).
The minister also commenced a number of related provisions of the Courts Act 2019, which support those made under the Legal Services Regulation Act 2015, as they relate to legal costs.
He thanked the Legal Services Regulatory Authority, the Courts Service, the Office of the Taxing Master, Justice officials, the Office of the Attorney General, and the legal professional bodies for their work to date.
Sixth order
This is the sixth commencement order made under the 2015 act, previous orders having prepared the way.
Specifically, the latest order provides for the commencement of certain provisions as follows:
- Section 5, which provides for a number of repeals to existing legislation,
- The remaining elements of part 2 of the act dealing with the authority and its functions, in particular relating to levels of professional indemnity insurance for legal practitioners, and complaints and disciplinary matters in respect of legal practitioners,
- Part 3, dealing with inspections by the authority of legal practitioners,
- Part 4, dealing with the holding of clients’ monies by legal practitioners,
- Part 5, dealing with matters relating to the protection of clients of legal practitioners, including professional indemnity insurance,
- Part 6, dealing with complaints and disciplinary hearings in respect of legal practitioners, and the establishment of a complaints committee and a review committee for that purpose.
- Part 6 also establishes the Legal Practitioners Disciplinary Tribunal, which will deal with allegations of serious misconduct by both solicitors and barristers,
- Part 8, dealing with direct professional access and limited liability partnerships, The remaining elements of part 9 of the act, dealing with obligations of practising barristers,
- Part 10, dealing with legal costs, in particular the establishment of the Office of the Legal Costs Adjudicators in place of the Taxing Masters Office.
- Part 10 also sets out enhanced transparency obligations on legal practitioners in relation to legal costs, principles relating to the adjudication of legal costs, and the maintenance by the new adjudicators of a public register of legal costs determinations,
- Part 11, dealing with legal costs in civil proceedings, including the principle that costs follow the event,
- Part 12 on the establishment by the authority of an Advisory Committee on the Grant of Patents of Precedence (entitling a barrister to be called to the Inner Bar and to use the title of senior counsel),
- Part 13 – a series of consequential amendments to the Solicitors’ Acts.
Lodgement and tender procedure
The related commencements made by Minister Flanagan of sections 2 and 3 of the Courts Act 2019 provide for a lodgement and tender procedure in relation to legal costs.
They also clarify the requirements of county registrars in maintaining a Register of Legal Costs Determinations, while also including the President of the Court of Appeal on the new Advisory Committee on the Grant of Patents of Precedence.
The minister also announced the reappointment of the following five members of the LSRA for a further three-year term:
- Sara Moorhead (Bar Council),
- Geraldine Clarke (Law Society),
- Stephen Fitzpatrick (Institute of Legal Costs Accountants),
- Dermott Jewell (Consumers’ Association of Ireland),
- and Deirdre McHugh (Competition and Consumer Protection Commission).
The reappointments follow the completion of the independent nomination and approval processes, as laid out in part 2 of the act.
The minister thanked the appointees for the “experience and expertise they will continue to bring to the work of the authority as it begins to operate its onerous regulatory and public complaints functions from next week”.
Six lay members
The authority has 11 members, of whom a majority (six members) – one of them the chair – are lay persons (nominated by the non-legal bodies).
The initial appointments to the authority, including its lay chair Dr Don Thornhill (pictured), were made at the time of its establishment on 1 October 2016.
Under the 2015 act, the members must represent a regulatory balance of interests between lawyers and clients. There are no Departmental of Justice officials on the authority.
The 2015 act also staggers membership periods between three and four-year terms to ensure continuity. The five reappointments now arising relate to those appointed in October 2016 by the drawing of lots under the act for the shorter three-year term