The Master of the High Court says it is "laughable" for the Law Society to be pleading that the Government's proposals for the reform of legal costs "might cause injustice".
A constant critic of unnecessarily high-cost litigation, Edmund Honohan yesterday said the society was making that claim "almost as if there was nothing wrong with the present set-up".
In an address to a continuing legal education seminar for solicitors in Dublin, Mr Honohan said the modernisation of the assessment of legal costs would mean the winning party was still likely to recover their costs, which would be measured "on the basis of necessity, reasonableness and proportionality".
It would also mean the losing party would not be penalised by the winning party's lawyers incurring unnecessary costs.
There was also "nothing to stop" lawyers here developing, as proposed in the recent Haran report, a standard service and fee agreement governing basic price and a mechanism for "extras", if and when such extras arose. Scheduled and prescribed fee scales were up and running in Britain since the 1980s, he said.
Mr Honohan said the Government's proposals for legal costs reform should not be particularly difficult to implement. Competitive forces would come into play if lawyers were to quote a price at the outset. Published guidelines should be the basis for such quotations and these would provide something of a "floor", discouraging predatory behaviour.
The proposed changes would enable a client to shop around for a solicitor to do the work at the quoted rates and they would also give the solicitor some security against predatory behaviour by colleagues, he said. The scheduling of standard prices for standard services would also put "serious pressure" on service delivery standards because the solicitor's profit margin would depend on office efficiency, control of overheads and the elimination of costly mistakes.
There was nothing in principle to prevent a solicitor from quoting staged payments or from quoting rates for steps of an unusual nature over and above the standard procedure, he added.
The principal factor in pricing should not be how much the client could afford or even the importance of the case to the client but "an objective yardstick" - what was the legal budget proportionate to the complexity of the case and the jurisdiction in which the case would be litigated.
One of the main difficulties in bringing competition into the market for legal services was that the price of litigation was never quoted at the outset, he said. This meant there was no price sensitivity, no competition between suppliers and, in certain situations, no pressure on service delivery standards.
The proposal that different prices should be given for different services should be welcomed, not criticised, he said. It would discourage solicitors from seeking to pick up business at an inappropriately low price.
The market for legal services was not a single market but a multiple of markets. It "would be lunacy", for example, for a solicitor to quote the same price for a District Court application as for a Supreme Court appeal.
It was not the function of the courts to drive a competition agenda, Mr Honohan added. The courts' function should be limited to measuring the recoverable costs of the winning party in litigation and to blocking the winning side's demands for payment for unnecessary and wasted costs.
There should be no need for the State to involve itself in providing cost-assessment mechanisms in regard to solicitor-client bills, he added. Lawyers here could develop a standard service and fee agreement and, if necessary, the Oireachtas could legislate for the use of such an agreement.
Why the State should be regulating the market place at all in this regard must be questioned, Mr Honohan continued. "Why has the marketplace and competition in the marketplace failed the clients of the legal profession?"
