JUSTICE MINISTER JIM O’Callaghan is to increase the proposed new “flat fee” for criminal legal aid paid to solicitors from €455 to €520 following a week of disruption across the court system.

Thousands of District Court cases were adjourned in recent days after criminal defence solicitors withdrew their services in protest at proposed changes to how they are paid, leading to delays and knock-on impacts across the criminal justice system.

The dispute centres on plans by the minister to replace the current appearance-based payment model with a flat fee per District Court case.

At present, solicitors are paid around €240 for the first appearance and about €60 for each subsequent sitting, but the new system would instead see a single payment regardless of the number of court appearances.

Increase to €520

However, following talks with the legal profession over the last few days, the minister will confirm to the Oireachtas Justice Committee on Tuesday that, regardless of the number of appearances, a fee of €520 will be payable to solicitors from 1 July.

The same fee will apply regardless of the number of charges but if a person appears for subsequent charges, a separate fee of €520 will be payable to the solicitor assigned. 

The full fee of €520 is payable for representation from the beginning to the end of the case, according to the minister. 

After engagement with stakeholders, O’Callaghan said he is willing to make a number of other concessions, namely that cases sent forward for trial in the higher courts now attract a full flat fee of €520, instead of the initially proposed fee of €100. 

He will introduce a separate fee for certificates issued in respect of the execution of bench warrants, whereby multiple defendants, who under the old system attracted lower fees, will now attract each full separate flat fees of €520. 

“I have also taken into consideration submissions made in relation to the fact that Criminal Legal Aid is often granted to more vulnerable people, which has an impact on the overall number of adjournments, and I have therefore increased the proposed fee to €520, to reflect the current average of five appearances for all courts,” he says in his statement. 

This means that under the new system, a solicitor who appears in the District Court on the same average number of occasions will be paid the same amount as they would be under the old system, according to the minister, plus the 8% restoration fee. 

“In the event that the new system results in a reduction in appearances, the fee per case will actually increase, and I have no issue with that. My objective in all of this is a more efficient system that works for all stakeholders.

“I should also say that the fees payable to solicitors in the Circuit Court are being increased by 8% and where a case that starts in the District Court and is tried on indictment in the Circuit Court, the full €520 fee will be paid in addition to increased Circuit and Higher Court fees,” he adds.

Report finds some solicitors using system to maximise earnings 

A confidential report carried out by the Department of Justice and reported on by The Journal, will be cited extensively by the minister in his opening statement on Tuesday.

It found that some solicitors were “maximising” their earnings through criminal legal aid payments.

Speaking to reporters last week, O’Callaghan said “there are very clear abuses going on in the system”.

He said the department’s review identified a series of structural issues in the administration of justice in the criminal legal aid scheme, such as the payment per appearance incentivising additional adjournments.

In his opening statement to the committee on Tuesday, the minister says it is his view that granting payments for multiple appearances is excessively complex and incentivises solicitors to seek multiple hearings, delays trials and is administratively burdensome and inefficient.

Calling his new scheme the ‘one accused, one fee’ model, solicitors will be paid a fee per defendant, regardless of the number of appearances.

He said the new fee model will simplify administration, reduce opportunities for abuse and will deliver cost savings to the state while protecting access to justice.

Views of the Bar Council of Ireland and the Law Society

However, Senior Counsel and Chair of the Council for The Bar of Ireland Seán Guerin will say in his opening statement that the proposed flat-fee model for criminal legal aid cases in the District Court is premised on the view that a higher number of court appearances is, of itself, evidence of inefficiency.

“Our concern is that the analysis underpinning this proposal focuses exclusively on the number of adjournments involved in criminal legal aid cases, rather than on the reasons behind why such adjournments occur,” he says.

A fixed-fee model may appear attractive in principle, but criminal cases vary significantly in complexity, duration and procedural requirements, says Guerin.

Rosemarie Loftus, President of the Law Society, will tell the committee on Tuesday that the Law Society is deeply disappointed with the department’s decision to impose this model of Criminal Legal Aid.

The proposal was developed by the department without any consultation with the Law Society, she says. 

Loftus says the Law Society is calling for the postponement of the introduction of the new model until such time as the Department of Justice has received and processed all the additional data that it has requested from the Courts Service.

The minister claims he has had ongoing constructive engagement with the legal professions, including the Law Society and Bar Council on multiple dates last year and this year. 

He confirms in his statement the operation of the new criminal legal aid arrangements in the District Court will kick in on Wednesday.