323. Deputy Peter Fitzpatrick asked the Minister for Justice and Equality if there is a cap on the legal aid a barrister or solicitor and their firms can make in divorce cases; if there is a disincentive for them to prolong such cases (details supplied); and if he will make a statement on the matter. (Question 12191/18 asked on 20 Mar 2018)
Minister for Justice and Equality (Deputy Charles Flanagan): Civil legal aid in the State is delivered through the Legal Aid Board pursuant to the Civil Legal Aid Act 1995 and the Civil Legal Aid Regulations 1996 - 2017.
Legal aid in judicial separation and divorce cases is generally provided by solicitors who are employees of the Legal Aid Board. As such, their terms and conditions of employment are those applicable in the Civil Service generally and there is no distinction as to the type of case concerned.
In a minority of cases, legal aid in divorce and separation cases is provided by solicitors in private practice appointed to a Legal Aid Board panel, with established Terms and Conditions of appointment and fixed fees payable by case. This applies irrespective of the time spent on the case. For the Deputy’s information, Appendix 1 attached sets out the fixed fee payable to panel solicitors for a divorce case.
Insofar as the engagement of barristers is concerned, when a law centre solicitor engages a barrister from the panel established by the Legal Aid Board for that purpose, those barristers must also comply with the Terms and Conditions of that panel, which includes fixed fees. The fee schedule is set out at Appendix 2. In cases where a panel solicitor decides to instruct a barrister, that solicitor must pay the barrister a proportion of the fee they are receiving.
In light of the circumstances outlined above, I am advised by the Legal Aid Board that there is no incentive to prolong such cases.
Appendix 1 – Schedule 1 to the Legal Aid Board Circuit Court Private Practitioner Scheme.
|Fees for separation and divorce cases (inclusive of any payments made to counsel and exclusive of VAT)||Fee|
|a) Judicial separation and divorce cases where a Notice of Trial has been served and to include as appropriate but not limited to, consultations, drafting or settling of pleadings, preparatory work, settlement negotiations and /or court appearances, including any interim applications.||€3386|
|b) Cases where matters have been resolved by a Separation Agreement rather than Judicial Separation proceedings.||€2539|
|c) Judicial Separation and Divorce cases where proceedings have been instituted but the matter does not proceed to service of a Notice of Trial and to include as appropriate but not limited to, consultations, drafting or settling of pleadings, preparatory work, settlement negotiations and / or interim court applications.||€1693|
|d) Separation and divorce cases where the legally aided person has given instructions to the solicitor/firm but either fails to give further instructions or chooses not to proceed with the matter.||€423|
|e) Separation and divorce cases where the legally aided person fails to give any instructions.||Nil payment|
|f) Additional fee where a judicial separation or divorce case requires more than one day of evidence.||€592|
|g) Additional fee for taking judgement where a case is heard and judgement is reserved and delivered on a different day.||€296|
Appendix 2 – Barristers Panel Schedule 1 (excerpt – Circuit Court fees
|Fees for services THE CIRCUIT COURT (exclusive of VAT)||Fee Junior Counsel||Fee Senior Counsel|
|All court proceedingsCase Fee:- where counsel is briefed prior to the institution of proceedings to cover all work carried out by him or her in regard to the case to include as appropriate, consultations, drafting or settling of pleadings, preparatory work, interim applications, case progression hearings, settlement negotiations and court appearances. Where counsel is briefed after the Notice of Trial has been served or the matter has been given a hearing date, the case fee (€750) shall cover all work carried out by him or her in regard to the case to include as appropriate, consultations, preparatory work, further interim applications, settlement negotiations and court appearances.An additional sum shall be payable in respect of each interim or interlocutory application on foot of section 35 of the Family Law Act 1995 or section 37 of the Family Law (Divorce) Act 1996. A similar additional sum may be payable for other interim or interlocutory applications subject to them being approved in advance on foot of the legal aid certificate granted to the client. No additional fee shall be payable in respect of an application for judgement in default.Refresher:- An additional sum shall be payable by way of refresher in respect of each second or subsequent day of a hearing, or part thereof. The refresher fee payable to junior counsel shall be in the sum of €400 save in the event that both Junior and Senior Counsel are retained in which case the refresher fee payable shall be €300 per day for Junior Counsel (payable in the event that Junior Counsel is in attendance in court). In order for a refresher to be payable a matter must be at hearing and listed for further hearing and must involve legal submissions and / or evidence in excess of thirty minutes. Refreshers will not generally be payable in relation to mention dates or where matters are adjourned for the purpose of dealing with ancillary issues e.g, costs, or issues incidental to the substantive Order made however the Board may pay an additional fee of €76 to junior counsel and / or €114 to senior counsel in the event that the submission is extensive.Taking judgement:- An additional sum shall be payable for taking judgement (a refresher shall not be payable in these circumstances).Re-entry / enforcement:- If following the completion of a case legal aid is granted for an application to enforce the order or orders made therein or to re-enter the matter for other reasons, the fee payable on such application shall be at the rate of a refresher.General : -Where the Board determines that counsel should be paid for Court work in the superior courts by reference to a set number of hours work the hourly rate.The case fee payable in respect of an appeal from the District Court to the Circuit Court shall be that applicable to a case in the District Court.||€1,145€750€200€400€150€76||€1,650€650€200€114|