The withdrawal of services by criminal defence solicitors since last July over a new legal aid payment model has sparked a huge increase in High Court challenges alleging unlawful detention.
Almost 90 such challenges have since been taken arising from the dispute, with the legal costs of an individual challenge estimated to range from €20,000 to more than €40,000.
Since the model for the District Courts was introduced on July 1st, Courts Service data obtained by The Irish Times shows 87 of 116 challenges taken up to last Friday arose through accused persons being unable to obtain legal representation.
In the same period in 2025, a total of 30 challenges over alleged unlawful detention had been taken.
The highest number of challenges, brought under Article 40 of the Constitution, was 52, in July – of which 45 related to the new payment scheme.
Of 38 challenges in August, 33 related to the scheme. There were 13 in September, including seven under the scheme. This month, up to the 16th, there were 13 challenges, including two under the scheme.
During the hearing of one application, the High Court was told a senior counsel was due a total fee of €16,250; a junior counsel’s fees were €10,565, and the solicitor’s fees were put between €16,000 and €19,000.
In that case, the judge was told it was almost impossible to provide a final bill of costs at that stage, as the matter was not fully completed. In a different case, a judge was told the fees were estimated at between almost €42,815 and €45,815.
At the end of July last, another High Court Judge, Mary Rose Gearty, ordered the immediate release of 11 people who had been remanded in custody.
The court found they were deprived of access to a solicitor and, without legal representation, their detention was illegal and could not stand.
One of the 11, a woman facing a robbery charge, had told the District Court judge she was worried she would lose her home and access to her daughter if she was not released from prison.
[ Legal aid dispute a matter of concern, says Chief JusticeOpens in new window ]
Gearty’s ruling set a precedent that resulted in a number of people, some of whom legal sources suggested would never normally get bail, being released in the lower courts, as judges became aware of the precedent.
In a ruling on a different Article 40 challenge, Judge Garrett Simons stressed the absence of legal representation “does not, of itself, render a bail hearing fundamentally flawed”. He said an unrepresented accused may, depending upon the circumstances, be given “a meaningful opportunity to understand, test and answer the case for detention”.
Some Article 40 applications were converted by High Court judges into bail hearings, and bail was refused in a number of those.
The withdrawal of services by many defence solicitors is set to escalate from Monday with its expansion to virtually all cases, including of persons in custody.
In letters to court presidents on Friday, the solicitors said the escalation was due to the failure of Minister for Justice Jim O’Callaghan to agree to “meaningful” engagement with their representative body.
Many criminal defence solicitors, particularly in Dublin, have withdrawn services, leading to the adjournment of thousands of criminal cases across all court divisions, adding to existing court backlogs.
[ Confusion and delays at district court as criminal legal aid dispute drags onOpens in new window ]
The new payment scheme provides for a single flat fee of €520, irrespective of the number of charges or appearances. Solicitors say it means they will not be paid for the work they do, particularly in more complex cases involving children and vulnerable clients with addiction and mental health issues.
O’Callaghan has repeatedly said the scheme involves necessary reform of criminal legal aid, will achieve costs savings and is in the public interest.