Solicitors win abuse victims fees case

A firm of Cork solicitors has won its High Court attempt to overturn a determination by a Law Society committee that it had charged excessive fees to two abuse victims when processing their claims before the Residential Institutions Redress Board.

Mr Justice Liam McKechnie yesterday upheld the firm's claim that remarks by the then Director of Consumer Affairs Carmel Foley in October 2005 about the complaints gave an appearance of bias.

Ms Foley was "unwise" to have publicly voiced her opinion about the complaints at a time when she was also a member of the Law Society's three-member client relations committee, he said. The judge was referring to a statement by Ms Foley on October 15th, 2005, in which she was quoted as stating it was "nothing less than scandalous" if solicitors were taking money over and above their fees. To take money from a claimant's award was a very serious offence in her view.

The judge said Ms Foley's status as the Director of Consumer Affairs was especially important in this regard as her sphere of influence was in the area of consumer welfare. It was "unwise" for her to have publicly declared any position on the claims of overcharging, even by way of general comment. Justice must not only be done but must also be seen to be done.

He also ruled that the society and its client relations committee had, when dealing with the complaints, failed to take certain steps which they were obliged to do under section 9 of the Solicitors Amendment Act 1994, the section under which the society had acted.

It was a mandatory requirement of section 9 that the solicitors be allowed to take all appropriate steps to settle the matter with their clients by agreement before directions were issued but that was not done, he said.

The judge stressed that complaints of overcharging could be investigated by the society by means other than section 9, including under provisions of the 1994 Act relating to alleged misconduct, but stressed the society must adhere to the correct procedures under whatever provision was invoked.

The proceedings were brought by Garry O'Driscoll, Shearwater Apartments, Kinsale, and Grattan d'Esterre Roberts, Riverwood, Curabinny, Carrigaline, against the Law Society and the Solicitors Disciplinary Tribunal.

The solicitors had challenged determinations made by the client relations committee of the Law Society on November 10th and December 15th, 2005.

The committee determined that the fees charged by the firm for processing two claims before the Residential Institutions Redress Board were excessive, directed that the fees be refunded and referred the matters to the solicitors disciplinary tribunal.

The case arose after the Law Society's committee investigated claims made by a man on the Prime Time programme in 2005 that he was allegedly overcharged by the law firm Ahern, Roberts, O'Rourke, Williams & Partners, the Old Rectory, Carrigaline, Co Cork.

The man claimed he was charged a fee of €8,510 by the firm for processing his claim. He said he had secured an award of €70,000 from the board plus €6,000 for legal fees. The firm had accepted the €6,000 and retained the additional €2,510 from the award.

A second claimant said he secured an award of €103,333 from the board plus €10,800 for legal fees. The firm's total fee sought was €14,300 and it retained the balance of its fees, €4,235, from the award.

The solicitors said the fees charged in relation to both claimants were "reasonable and appropriate and in no way excessive".

They accepted there was no documentary evidence that the firm had obtained any authority from either of the two claimants to accept the legal costs figures offered by the redress board in circumstances where the board's costs figures were less than the fees sought by the firm.

In the latter circumstances, the firm had offered to refund both claimants their fees, plus interest, and that should have been the end of the matter, they said.

Mr O'Driscoll, who has ceased to practise as a solicitor, is a former partner in the firm of Ahern Roberts, O'Rourke Williams & Partners (formerly Ahern Roberts Williams & Partners), while Mr d'Esterre Roberts is a partner in the firm. Mr d'Esterre Roberts said the cases of the two claimants in question were dealt with by an assistant solicitor in the firm who, at the relevant time, reported to Mr O'Driscoll.

He accepted the firm was responsible for the actions of the assistant solicitor in whom, he stressed, the firm had "complete confidence as an extremely competent, diligent and upright member of the profession".

Mr d'Esterre Roberts said the committee has concluded the fees in the cases of both claimants were excessive without reviewing the work done by the firm for the clients.

A legal costs accountant had concluded the fees in the case of the first claimant were reasonable. In the second case, the accountant had stated the appropriate fees was €15,250 and accordingly the fees charged were too low.