Courts face increased disruption from Monday due to some criminal defence solicitors escalating their withdrawal of legal aid services to almost all cases, including persons in custody.
Court presidents were told, in a letter on Friday, the escalation arose from the Minister for Justice’s failure to engage in “meaningful” discussions in the dispute over a new legal aid payment model for the District Courts.
While some solicitors have resumed legal aid work, and others never participated in the withdrawal under way since July 1st, sources say most, particularly in Dublin, continue to participate in the action.
Until now, the withdrawal had not affected cases of persons in custody before July 1st, when the new one-flat-fee payment model was introduced.
Under the escalation, custody cases and all other cases, with very limited exceptions, will be affected. The escalation will affect ‘protocol’ cases, ones involving young and/or vulnerable defendants, victims and witnesses.
The action has led to the adjournments of thousands of cases, compounding existing backlogs and delays.
The letter sent on Friday to the court presidents from Tony Collier, a partner in Ferrys Solicitors LLP, is believed to reflect the position of a substantial number of defence solicitors.
Collier referred to comments in early October by the Chief Justice expressing the judiciary’s concern over the continued dispute and expressing hope for a resolution.
He also noted comments by High Court judge Mary Rose Gearty encouraging a resolution of a legal challenge over the new payment model. That challenge by Dublin solicitor John Quinn was taken against Minister for Justice Jim O’Callaghan in late July.
Gearty’s judgment is due on November 3rd.
In his letter, Collier said the Law Society, the representative body for solicitors, “remains ready to engage with the Minister at a moment’s notice”.
John Quinn had also written to the Minister seeking a meeting but had received “no substantive response”, he noted.
There remains “no indication that the Minister is willing to enter into meaningful discussions aimed at resolving this dispute”, said Collier.
That “is both regrettable and difficult to comprehend”.
He said the solicitors’ profession has made “substantial concessions” in an effort to resolve the dispute, with “only two relatively straightforward issues” still outstanding but “fundamental to the proper administration of justice in the District Court”.
It is “extraordinary that a dispute which has narrowed to just two outstanding matters cannot progress towards resolution because the Minister remains unwilling even to engage in discussions with the profession’s representative body”, he said.
In the circumstances, Collier said he regretted to advise his firm will from Monday withdraw all criminal defence services, including custody cases, in Dublin and nationally.
“We fully appreciate the inconvenience and disruption this will cause to the courts and court users,” he said.
The escalation is not due to any unwillingness by solicitors to resolve the dispute but is the consequence of the Minister’s failure “to engage in meaningful discussions”, he said.
He expressed the hope the Minister will reconsider his position. “The profession cannot resolve this dispute alone. Meaningful engagement requires a willingness on both sides to come to the table.”
The letter comes days after the continuing impasse was discussed by Dublin-based solicitors and solicitors from around the country during Zoom meetings.
The new payment model provides for one flat fee of €520, based on an average five court appearances, irrespective of the number of charges and court appearances.
Solicitors say it means they will not be paid for their work in more complex cases, including ones involving children and people with addiction and mental health issues.
The Minister has said the new scheme will achieve necessary reform of the criminal legal aid system and is in the public interest.
O’Callaghan said earlier this month that, while declining to enter mediation, he remains open to engagement and his officials are available to discuss “operational” issues. He has also claimed many solicitors are working under the new payment model.