Cost of going to court reinforces inequalities

Like a posh hotel, the civil courts are open to everyone, but only the wealthy can afford to go   there. Michael Clifford highlights some recent cases that show the prohibitive cost of justice

High Court Judge Mr Justice Max Barrett. Picture: Courtpix

Maureen Lawless is in her 70s and in danger of losing her home. She was not among those who made a disastrous decision to buy property during the years of the bubble. She did not drink herself into debt. She is not a gambler.

She did, however, take what in retrospect was a huge gamble. She sought justice through the courts on the basis that she felt she had been grievously wronged. Such a course of action is supposed to be a cherished right for citizens in a democracy. In truth, it’s a sham.

Last month, the High Court granted a judgement against Maureen Lawless for €176,433. This was money accumulated in legal fees by her former solicitor who had taken on her case in 2010. The case involved a land auction in which Ms Lawless felt she had been wronged. The case was subsequently settled. Ms Lawless had made an initial payment of €5,000 to the solicitor, Larry Burke of Cavan firm Burke, Hunt and Co, but hadn’t coughed up anything else since. The accumulated bill also included fees for a senior and junior counsel, coming to about €64,000.

At the hearing in which judge Max Barrett granted the judgement against Ms Lawless, she couldn’t even afford representation, the court heard. Judge Barrett also noted that she was in danger of losing her home as a result of her foray into the legal world. Despite all that, the judge said he was legally bound to grant the judgement. Ms Lawless was a competent adult who had retained legal counsel and that comes with a cost.

However, the judge is not an island and he couldn’t help noticing the injustice of a system alleged to be route to justice. Of the size of the fees he said: “These are enormous, though not at all untypical, fees which point to a continuing deficiency in our legal system… proper legal representation, at least in civil proceedings, is increasingly a boon that is properly affordable by the few who are rich, and a bane to be feared by the many who are not.”

That, in a nutshell, is the kernel of the scandal of legal fees in this country. The courts, like the Ritz, are open to everybody, but confined to the wealthy.

In this, the system in which civil law is administered serves not as a great leveller but an instrument to reinforce inequities in society.

Judge Barrett’s intervention in the Lawless case was the second time in recent months that he referenced the cost of going to court. In April, he ruled on an application for a firm to provide security of costs, which involves putting up money that can be used to pay legal fees in the event of losing an action.

The action involves a Cork-based training company called Euro Safety which is suing Solas, the state training agency which was formerly Fás. Euro Safety claims it has lost business as a result of blowing the whistle on bad practices in Fás in 2002, which led to a damning report on the state agency.

The Cork firm believes it is entitled to compensation for the manner in which its business has allegedly suffered.

In response, Solas asked the court to force Euro Safety to put up €600,000 as security in case it loses the case. This figure includes €220,000 in solicitor’s costs and €108,500 for a senior counsel for an estimated 20-day hearing. That’s over one hundred grand for the barrister for a month’s work.

The judge pointed out that Euro Safety did not have access to those kind of funds. “The case highlights, yet again, the need for a systemic solution to the present crushing cost of High Court litigation,” he said.

He refused the Solas application on the basis that the case was in the public interest. But what of a case that was just in the interests of a private company seeking justice?

Legal practitioners get all sniffy when judges like Barrett comment on what is plainly obvious before their eyes. It’s regarded as letting the side down or, more often, bad grace from somebody who toiled in the lucrative vineyard themselves before accepting a state job and plum pension. An alternative view might be that the bench provides a wider lens to examine what citizens are subjected to when they opt to go to court.

The sniffy attitude was also deployed against former Justice Minister Alan Shatter when he made attempts to reform the system. In parallel to his political career, Mr Shatter had enjoyed a lucrative legal one. And now he was spoiling the party for everybody else. Again, perhaps the former minister was in a position to look at the system from the point of view of citizens, rather than partitioners.

Mr Shatter’s grand plans were shredded through assiduous lobbying by the business and, while the former minister was not up to the job in other areas of his brief, his drive to reform the system was sadly lost on his departure from office. What emerged instead was a watered down Legal Services Regulation Act which is due to come into force in the coming months.

One of the few reforms in that act will ensure that costs will have to be more transparent. No longer will citizens find out well into a process that they have accumulated crippling debts.

The act makes provision for a review of fees, written notice in clear language, and a new set of principles for adjudicating on costs. The whole thing, however, is a long way from the changes initially envisaged by Shatter.

His plans were lifted to a large extent from an excellent Competition Authority report in 2006 which highlighted the problems with the restrictive practices and lack of transparency within the two arms of the business.

Another recent case illustrated another aspect to the charging of fees. Costs in a medical negligence case have been contested in both the High Court and the Court of Appeal over the last year. At issue are elements to the cost bill which include a claim for a solicitor’s instruction fee of €485,000, which the taxing master originally reduced to €276,000. The firm in question, Augustus Cullen Law of Wicklow appealed the ruling in the High Court, where it lost, and more recently in the Court of Appeal, where it won.

Another element of the costs was the fee for the senior counsel involved Denis McCullough. He had claimed a “brief fee” of €125,000, because of the “novelty and complexity” of the case. A brief fee is awarded for reading oneself into the case. Thereafter, his daily fee was €3,500 per day.

The court heard that Mr McCullough subsequently accepted a reduced brief fee of €65,000 and that was no longer contested. So the senior counsel accepted his fee to be about half what he had originally charged. This is not particularly unusual in the Law Library, and there is nothing whatsoever wrong with it.

But is there any other line of work where a practitioner simply drops their initial fee by about half for no particular reason other than its size is contested? One thing’s for sure, that’s nice work if you can get it.

Michael Clifford

Remembering John Wayne

"Tomorrow is the most important thing in life. Comes into us at midnight very clean. It's perfect when it arrives and it puts itself in our hands. It hopes we've learned something from yesterday."

"I suppose my best attribute, if you want to call it that, is sincerity. I can sell sincerity because that's the way I am."

"Courage is being scared to death... and saddling up anyway."

"Real art is basic emotion. If a scene is handled with simplicity - and I don't mean simple - it'll be good, and the public will know it."

On my tombstone write: ‘Ugly, strong and dignified.’

John Wayne (1907-1979)

We don't appreciate the gems on our doorstep

How is it that so many people dream of seeing the wonders of faraway places while often ignoring gems which are virtually on their doorstep?

You will meet Dubliners who know little or nothing of the Phoenix Park; Killarney folk who have never been out on the world-famous lakes, or climbed Carrantuohill, and Corkonians who have never experienced the marvel that is Garinish Island.

I recently revisited Garinish, in Bantry Bay, having previously been there more than 30 years ago, and the delights of this island garden, just off Glengarriff, came flooding back. It was a warm, sunny day in August and I could sense it was going to be another special day in a special place.

Our boatman, Kieran, highlighted some of the natural features of this lush corner of Ireland and was soon pointing to a white-tailed sea eagle perched on top of a tree. A pair released in Killarney National Park has been nesting in Garinish for about four years and they recently produced a chick which can be seen flying over the island. The nest can be seen easily, but people are asked not to go too near it or disturb the eagles in any way.

The eagles are an attraction in their own right around Glengarriff which also has a common seal colony. We only saw one seal, a well-fed lazy specimen soaking up the sun on the rocks and oblivious to boats and visitors. Bees were also numerous there as they went about their work of pollination. The late screen star Maureen O’Hara had a home in Glengarriff but the real appeal of this place is its natural environment.

The minute you step ashore on Garinish you sense a sort of latter-day Garden of Eden, with all sorts of shrubs, flowers and trees crowding in on you. You can quickly walk around the 37 acres but it’s best to take your time, breathe the fragrant air and absorb it.

This is a huge ornamental garden of tropical plants, made possible by the humid Gulf Stream climate. The most notable feature is, perhaps, the Italianate garden, the work of the former owner of the island, Annan Bryce, and Harold Peto, an architect and garden designer.

On the occasion of our previous visit, rhododendrons and azaleas were in full bloom, as it was earlier in the year, but this time a kaleidoscope of summer colour adorned the scene. Very soon, the colours will change again with the coming of autumn. Lots of Irish people and overseas tourists were on the island.

The foundations of what’s being enjoyed today by thousands of visitors were laid around 80 years ago. The island was bequeathed to the State, in 1953, and is now under the control of the Office of Public Works. Well worth a visit.

Donal Hickey

Dublin named world's third friendliest city

                             Dublin's Ha'penny Bridge

Dublin and Galway have been named among the world's ten friendliest cities by readers of Condé Nast Traveler.

The city placed third on the list, behind Charleston in South Carolina and Sydney, Australia - and just ahead of Queenstown, New Zealand.

"We had the best recommendations on where to go and what to see from the locals," said another visitor. "Better than any guide book."

"I've never been somewhere with friendlier drinkers," added a third.

Condé Nast Traveler's Top 10 friendliest cities:

1 Charleston, South Carolina

2 Sydney, Australia

3 Dublin, Ireland

4 Queenstown, New Zealand

5 Park City, Utah

6 Galway, Ireland

7 Savannah, Georgia

8 Krakow, Poland

9 Bruges, Belgium

10 Nashville, Tennessee

The list was complied based on Conde Nast Traveler's Readers' Choice Survey, taken by some 128,000 readers in 2015, according to the magazine.

"Just look at this city," it says of Galway. "It's hard not to be charmed."

Live music, pubs and food "enchanted" its readers, the travel bible adds. "These are the friendliest people I have ever met," commented one reader.

Galway was named the world's friendliest city by readers of another US publication, Travel + Leisure, last year, with Dublin ranking third and Cork fourth.

"Again and again, our research shows us that the friendliness of our people is one of our unique selling points," said Niall Gibbons, CEO of Tourism Ireland.

"It is the warm welcome and the ‘craic’ here that resonates with our overseas visitors and makes our cities, and the island of Ireland, such a great choice for a short break or holiday."

Meanwhile, Condé Nast Traveler's list of the world's unfriendliest cities was topped by Newark, followed by Tijuana, Mexico and Oakland in California.

Pól Ó Conghaile

'Whatever “it” is, Ireland has “it” in spades'

'There’s more to life than the weather, and whatever “it” is, Ireland has “it” in spades'

Australian born of Indian parents, Shampa Lahiri explores the migrant life and her love of her adopted country on The Women’s Podcast

I first came here in 1997 and back in those days very young school children used to stop and stare at me in the street. I was here during the last heady days of Mary Robinson’s presidency when the air of optimism and opportunity was palpable. It rained every single day, and yet every second car driving down the road was a convertible. This place captured my imagination like no other. A place where the weather was so awful and yet the people were so cheerful, I just had to come back and find out why.

There are many reasons why migrants leave. We leave our homes, our families, our friends and possessions. We leave our entire life’s worth. In The Irish Times series New to the Parish we read about some of these reasons - about adventure and opportunity, fear and persecution, love, sacrifice and hope. But regardless of our reasons for leaving, there is no doubt in my mind, that the life of a migrant is harder in almost every respect.

We have no family response units to resuscitate us with tea and sympathy when things go wrong. We live parallel lives, the lives we are trying to lead, the lives that we aspire to lead, versus the lives we should have led had we stayed and not broken our parents’ hearts. So when you encounter a foreigner who can’t quite speak English, who is lost in the street or who is struggling with some menial bureaucratic task, please remember this anguish. Not all of us are welfare shopping radicals plotting destruction. Most of us are here trying to lead a better life, we are trying to be better people. And when things go wrong, as they invariably do, it makes us question not just whether we should have gotten out of bed that morning, but whether we made the right life choice. Our successes here may be greater, but so too are our failures.

I was born in Australia of Indian parents. I was raised in between two cultures and I was effectively denied a cultural identity by both. People would always ask me “But where are you actually from?” It is a question I could never really answer because I didn’t really belong anywhere. Here in Ireland I am asked that same question and yet the undercurrent is of genuine curiosity, almost verging on incredulity. I think its because most of the Irish can’t quite believe that us migrants choose to live here when we could be sunning ourselves in warmer climes. But there is more to life than the weather, and whatever “it” is, Ireland has “it” in spades.

The Irish welcome that you are all so famous for is real. To hear my name pronounced correctly every day is a joy that I cannot overstate. That you would take the time and effort to say it properly means the world to me. To walk down the street is such a simple thing. But to do it without the threat or fear of physical violence and racial vilification unveiled is an incredible freedom. And the day that I swore allegiance to the Irish State and became an Irish citizen is one of the most defining moments of my life. Having been denied a cultural identity for so long, I now get to choose. And I choose Ireland.

While many countries try and fail to promote multiculturalism, the Irish succeeds. I think its because the fabric of your cultural identity is so strong that you don’t fear change. But I also think its because virtually every Irish family has itself suffered the wretched effects of exodus. Virtually everyone misses a son or daughter, a sister or brother, a friend or family member who has made the same decision we made to leave. I think people are kind to me here because they hope that someone will be kind to their child living the migrant experience somewhere else, a cultural “paying it forward” if you will. But whatever the reasons, I am incredibly grateful for the warmth and generosity which has characterised my time in this wonderful place. I know I will always be a blow in, but now when people ask me where I’m from I say “Dublin”.

20 years I’ve been cartwheeling around the world and sometimes when I wake up in the morning in that split second before consciousness I have to remind myself which city I am waking up in. Every day I try and anchor myself to this place, I try and make myself relevant because if I don’t, I fear that I might disappear and no one will notice, that I am lost to one life and invisible in the other.

If there is any advice that I can give to those who are new to the parish it is this: do not be invisible. You are valuable. Be valuable, contribute, give back to the communities in which you live. But above all else, be proud. Be proud of the decisions you have made and what you have achieved because not many people have the guts to buy a one way ticket. You did. You have courage and determination and you have proven that you can be fearless. So be proud.

But with pride comes humility and we cannot demand the same benefits that derive from birth right. We are not Irish. We must not expect to be first in the queue or place the same demands on the Irish State that the Irish are entitled to take for granted. We have to earn these rights, whether it be the right to housing, medical care, education and employment.

So one final piece of advice - earn your place in Irish society, show people that you deserve to be here, show them how valuable you can be. We are at a critical point in time in the public perception of immigration. We need to be a part of this conversation, not by marching for more rights or by placing further demands on an already burdened State, but by showing, by our conduct, that we can advance, not just our own self interests, but Irish society as a whole. And sometimes we just need to accept that we will, and should, be at the back of the queue.

20 years I’ve been gone and I still can’t lose this accent. 20 years and people still ask me if I will ever go home. It’s another question I struggle to answer and I struggle with it the most when I am standing at the airport clutching my Irish passport in one hand and waving goodbye to my parents with the other. Every year that we are away, their lives go on and we become just that little bit more invisible to each other. Every day they struggle and we are not there to help, another anguish that we bear.

Why do we stay? Why do we stay and suffer these distances, these endless airport goodbyes? Well, I wont presume to answer this question for anyone else, nor am I naïve enough to assume that my experiences can be generalised for all. But I will try and answer this question for myself.

I stay because here I am not just tolerated, but I am welcomed, I am embraced. By the passport officer who says “Welcome home” every time I fly back into Dublin airport and by the woman who chased me down Grafton Street one day to ask me what brand of fake tan I use. I am embraced by the vast majority of Irish people who see me not simply as a colour, but as a fellow human being who is just trying to be that better person. I stay because of my wonderful husband from Donegal, because he is, by far, my greatest joy. I stay for a hundred different reasons which serve every day to wash away the doubt and recriminations that never really leave you once you make that decision to go.

After all these years, I understand the cheerfulness and that it is often bittersweet, especially when it rains. And I stay because I know I will never find anywhere quite as wonderful as Dublin. I am incredibly lucky. I am incredibly grateful. And I love reading New to the Parish” because it makes me realise that I am not alone in my gratitude.

So I will finish by saying thank you. Thank you to everyone involved in the publication of New to the Parish. Thank you for giving us migrants a positive voice. To all the people whose stories have featured in the column, thank you for sharing your wonderful adventures. We are meeting you mid-flight, and I wish you great joy and great success in your journeys. And finally to Ireland, to the Irish, thank you for letting us into the house with dignity, for letting us sit at your table with grace and respect. There are not enough words, in either our languages or in yours, to express our gratitude.

You can download individual episodes of The Women’s Podcast on Soundcloud, Stitcher and iTunes

Shampa Lahiri

Suffering shellshock and schadenfreude after arrest of Pat Hickey in Rio

It is inevitable that the arrest of Pat Hickey in Rio de Janeiro will give rise to schadenfreude among more than a few people.

The detention of any 71-year-old in a foreign country would normally be a cause for concern for anybody who knows the individual, but it’s fair to say Hickey has stepped on more than a few toes down through the years.

The most recent to have felt the sharp end of the former judo champion’s personality was Sports Minister Shane Ross. “Shell shock here in Rio,” the minister tweeted as the news broke — you could almost smell the schadenfreude through cyberspace.

Ross had flown to Rio on Sunday after letting all and sundry know he was going to ensure Hickey allowed an independent person to be included in the Olympic Council of Ireland’s inquiry into how a man had been arrested in possession of hundreds of tickets from the OCI allocation.

The summit between the pair ended with Hickey emerging cool, calm, and not a little smug, and Ross quite perturbed at having been effectively snubbed. There would be no independent person sitting in on an OCI inquiry.

Now, it would seem, all has changed utterly with the arrest of Hickey.

From Dublin, Hickey worked as an auctioneer, but it was in his capacity as a sports administer that he came to prominence. He enjoyed a successful career in judo, acquiring a black belt.

While long retired from the sport, he remains physically active. Until recent years he was known to go for 45-minute runs in the Phoenix Park three or four times a week.

While active in judo he began his voluntary work as an Olympic official. In 1988, he was elected president of the OCI for the first time and has held the position since.

His strength lies in his political nous and his ability to water the grassroots of the wider Olympic sporting family. While he has often been in conflict with bodies associated with the high- profile sports, he has always enjoyed support from the lesser known sports, which enjoy equal standing within the Olympic body despite their minority status in terms of participation.

There have been many controversies along the way. At the Atlanta Games in 1996, there was an embarrassing standoff over what kit Sonia O’Sullivan could wear due to a disagreement between the athletics body BLE and the OCI. Hickey stood his ground and found himself in conflict with sport minister Bernard Allen.

Four years later, a major controversy blew up over accreditation for the Sydney Games for then sport minister Jim McDaid. Following a high-profile falling out, it soon became obvious that the government of the day would prefer not to have to deal with Hickey as the top man in the OCI.

An alternative president was proposed for election. Richard Burrows, from a prominent business family and a renowned sailor, went forward as a representative of his sport. Government sources made it plain whom they would want at the helm at a time when allocation of monies to sport was on the increase.

As with other battles in the political sphere, the two sides adopted very different positions.

Hickey assiduously canvassed support among all the sporting bodies, travelling up and down the country to do so. Burrows, apparently buoyed by the backing of official Ireland, sat back and awaited his election. Apart from McDaid, other figures such as Eamonn Coghlan, Michael Carruth, and Mick Dowling suggested it might be time for change at the top.

The outcome, in the 2001 election battle, was emphatic, with Hickey willing 27 voters to 10. Accurately or otherwise, Hickey saw McDaid’s hand behind the attempt to unseat him.

“Guys like him felt they could run the world,” Hickey said later. “‘I’m a big minister, do what I tell you.’ It doesn’t work like that. My constituency is different.” There has been no challenge to his leadership in the intervening 15 years.

He did indicate he was going to step down after the London Games four years ago, but ultimately changed his mind. In one interview last year, he suggested he felt compelled to stay on after being urged to do so by sporting bodies.

Prior to the ticketing controversy, he had indicated he might once again revisit the prospect of retirement and is known to favour the FAI’s John Delaney as his successor. Observers have noted that the two men have many similar qualities in terms of political nous and reputations for getting their way in their respective bodies.

The pinnacle of Hickey’s career in the OCI — for which he is not paid a salary — was probably last year at the inaugural European Games, which he opened as president of the European Olympic Committee. The opening in the Azerbaijan capital of Baku was attended by, among others, Vladamir Putin and Lady Gaga, all looking on as Pat did the honours.

In light of what has transpired since the Rio Games began, he may well wish that he had gone out on top. While there is much hyperbole about the lack of success at the Games, it is the ticket-touting scandal that delivered the ultimate ignominy for a man of Hickey’s standing. His longevity has ensured he is one of the better known figures at the Games, and no doubt ripples about his arrest quickly took off right across the city and beyond yesterday. You’ll never guess who’s just been arrested...

If he does emerge from the whole affair intact, it seems most likely that he will finally decide it is time to step down. This may be one controversy too far for this survivalist extraordinaire.

Michael Clifford

Remembering Oscar Wilde at Ashford Castle

Oscar Wilde (extreme right) at Ashford Castle in 1878 aged 23

There are places in the Irish countryside where bird’s voices just rise above a humming silence before the early dawn, when I, as a child, became enchanted by their spell. Shimmering droplets of dew covered spider webs cloaking yellow sage that was everywhere, creating a beautiful bejewelled alien landscape. By mid-morning of that summer day, lambs played in the grass while their mothers looked on in lazy and contented boredom. A mare lounged nearby looking proud and magnificent as she lovingly nudged at her sleeping foal that was her very own creation; well, she did have a little help from a friend. These were sights, sounds, smells and feelings I could not write about unless I was there. A magical place to soothe any tired or aching heart. If I was in doubt, in the shadows behind me lay a cluster of trees on guard beside a pool so still it mirrored their image, that reflection broken now and again from the drops of water gently pulling away from their leaves. Ancient walls and hedgerows cast their mysteries around the ruins of an old castle in the distance, it’s battles and troubles long carried off into the wind tunnels of time. Chiseled stone was all that was left to hint of who might have lived there and a lasting fingerprint of their presence was walked now only by their ghosts. The Castle walls cast shadows over the riverbank that was once its life force, still serving up unwary salmon to men from nearby cottages who fish on their banks; cottages built more recently from that same chiselled stone carved by others a thousand years before. That morning has stayed with me all my life like no other, and here, at a different Castle, Ashford, I ask myself today what inspired the closing chapter of De Profundis by my favourite writer, wit and humanist, Oscar Wilde, and that could only have come from such a place as this.

Oscar Wilde’s father, William, had a holiday lodge near the Castle and Oscar spent many a vacation there. Then the Castle was owned by Lord Ardilaun, son of Benjamin Guinness, along with 20,000 acres of natural woodland, lakes and wildlife. As a boy and young man, Oscar must have felt at home within this great and vast Cathedral to nature, held secret court with its earth, and count among his inner circle here all that lived and breathed. He would always feel safe within its womb. When tragedy did come and his inner desolation was more than a state of mind, Oscar would always remember this place, for his De Profundis letter was more than an explanation to another; to us all it was a farewell to the world. It was in essence his epitaph and one of his finest moments of writing, and the least amount of words was spent to describe so eloquently and fully the healing power of nature at its conclusion:  

‘………..Society, as we have constituted it, will have no place for me, has none to offer; but Nature, whose sweet rains fall on unjust and just alike, will have clefts in the rocks where I might hide, and secret valleys in whose silence I may weep undisturbed. She will hang the night with stars so that I may walk abroad in the darkness without stumbling, and send the wind over my footprints so that none may track me to my hurt: she will cleanse me in great waters, and with bitter herbs make me whole.’ 

Written by Oscar Wilde between Jan and March 1897  

Oscar Wilde

(Born Oct 1854-Died November 1900)

Barry Clifford