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Ethics Law

High Court Strikes Down Fee Claim For Suicide Abatement by Galway Solicitor, Patrick M Keane

I don’t know if Galway solicitor Patrick M Keane is the same Paddy Keane I used to know years ago, but if he is, he hasn’t lost his black sense of humour.  I could tell you stories about Paddy’s exploits as a student that would put the hair standing up on your head, but of course, my lips are sealed.  What goes on tour stays on tour, as they say.

I always liked Paddy.  In our student days, he educated me about such abstruse concepts as the incorporeal hereditaments, something that often came in useful later in life when confronted with ravening drunks at a taxi rank.  He told me what a tort was, and he informed me about Lord Denning’s frolics.  He was knowledgeable, enthusiastic and never less than great company.

What’s more, he always had a skewed take on life, which I greatly enjoyed, but he really has excelled himself with the latest caper.

Paddy is a solicitor, and a damn good one by all accounts, which doesn’t surprise me in the slightest.  He was always a bright sort of fellow, but to the best of my knowledge, he never studied anything but law, apart from his primary degree which was in some Arts thing.  He certainly never became a counsellor, and for my authority here, I rely on Mr Justice Nicky Kearns of the High Court,  who said as much when rejecting Paddy’s claim of €14,000 for 70 hours of what he called suicide abatement.

The background is this.  A seven-year-old boy was hit by an uninsured  car, with consequent physical and mental trauma.  He was badly broken up in body and mind.  The victim sued the Motor Insurers’ Bureau, which handles claims against uninsured drivers, and eventually, in 2009, the parties settled for €800,000 plus costs.  Paddy claimed  €406,069 in fees, which presumably included barristers’ costs, expert witnesses, doctors’ bills, travelling expenses, photocopying and all the rest of it.  But it also included a most unusual item, headed suicide abatement phone calls, which Paddy estimated at 70 hours, for which he charged €200 per hour.  Reading between the lines, it seems that the unfortunate victim spent long hours on the phone to Paddy talking about his despairing feelings and Paddy in turn was only too willing to listen, at three times the rate that a professionally-qualified counsellor would charge.

The defendants referred the costs to the taxing master, James Flynn, who reduced them to €324,000.  Still not satisfied, the defendants referred the matter to the High Court where Mr Justice Kearns said that Paddy should never have made the claim in the first place since solicitors are not qualified to counsel anyone.  He went on to say that Mr Flynn didn’t analyse the costs properly and should never have allowed them.  Interestingly, Flynn is a former solicitor, while Kearns is a former barrister.

Now let me ask you this.  If you were feeling suicidal, who would you call?  Well, maybe if you thought you were on good terms with your solicitor, you might call him up.  But would you spend 70 hours on the phone discussing your suicidal urges?  Maybe you would, if you had been so emotionally traumatised as the victim in this case.

Turn it around a different way.  If you were a lawyer, or a dentist, or a plumber, or an interior designer or a journalist or a bricklayer and one of your customers called you to say they were feeling suicidal, what would you do?  You’d probably do the right thing as a human being and you’d listen to them.  But would you spend 70 hours listening to them, and would you set your money-clock ticking as you did so, or would you steer them in the direction of a qualified professional and gracefully withdraw?

Taking the most charitable interpretation of it, I can imagine a lawyer being called at all hours of the day and night.  This happens.  I know it from other people in the profession, but there are ways of dealing with these things that don’t involve taking careful note of the billable minutes as they add up.  And besides, even if you found yourself having your ear bent, would you submit a bill for services you are not qualified to provide?

I can’t imagine Paddy charging for, let’s say, assessing the structural stability of a foundation, or measuring the stopping power of a car’s brakes, or assessing the toxicity of a pollutant in the drinking water, although if he’s the same man I’m thinking of, he would be well versed in farming matters.  So what on earth did he think he was doing charging for counselling, at a rate no qualified counsellor would ever dream of applying, and is he happy to have it working both ways?

I wonder how Paddy would feel about a counsellor with no legal qualifications offering legal advice at a third of the rate he himself charges?

Of course, I could be wrong.  It might well be that his fees reflect the level of his counselling qualifications, despite what the High Court has to say on the matter.  For all I know, he might also be qualified in heart surgery, orthopaedics, architecture, craft brewing, chiropody, horticulture and botany.  He might even be a doctor of divinity, for all I know.

Blame Mr Justice Kearns if I got it wrong.

________________

Previously:

Lawyers’ Fees Reduced by 80%

 

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Lawyers’ Fees Reduced by 80%

There was this fellow by the name of O’Brien, and he was boning a cow when it fell on him.

That can happen sometimes, as you might imagine, and it can cause serious injuries.  After all, a cow is heavy — even a dead one such as Mr O’Brien was boning.  He was injured and so he went to see a solicitor: one Mr Denis Boland, of PV Boland, Newbridge, County Kildare who duly contacted the Personal Injuries Assessment Board (PIAB) on behalf of his client.

It’s not surprising that Mr O’Brien went to see Mr Boland.

Mr Boland is the eminent lawyer who, together with his barrister colleague, Mr Alan Mahon, later the judge who took over the Planning Tribunal, successfully sued the State for many millions on behalf of his clients in the Army deafness cases.  For his efforts, Mr Boland earned €16 million from the State in addition to whatever money his clients were awarded.  Who wouldn’t recruit Mr Boland to fight their case?  I would, if a cow I was boning fell on me.

In passing, I might mention that, of the €300 million paid out by the State, about €100 million went to the lawyers involved.  I don’t know what PV Moran’s policy was, but I do know that some solicitors, having been paid by the State, also billed their clients for the work done on their behalf.

Legal costs have always been a huge problem and you might remember that the PIAB was set up as a means of reducing the penal levels of insurance premiums we had to pay.  The idea was that, instead of enduring a protracted, tedious and expensive legal process, you could go to them and they would adjudicate on the rights and wrongs of your case with little or no legal whataboutery.  Clearly, lawyers would not be happy with such an arrangement.   I can understand why lawyers would be unhappy with something that reduced their income.  If something caused me to have less cash, I’d be deeply peeved too, but such is life.  Less money for the lawyers, faster results, reasonable awards, smaller premiums for the rest of us.

The idea was to get the expensive lawyers out of the system so that more money was available for the injured parties.

Needless to mention, you could use a lawyer if you wished, in making your claim, but an over-helpful employee of the PIAB failed to appreciate this and contacted Mr O’Brien to tell him he didn’t need a solicitor.  All he needed was to send them a medical report.  This was true.  Furthermore, the case was not going to court and liability was admitted.  Mr O’Brien was going to get his money no matter what happened but he was still outraged at the suggestion that he didn’t need a solicitor — even though there was nothing for the solicitor to do.

Mr Boland, his lawyer, was — if such a thing could be possible — even more outraged than Mr O’Brien at the injustice inflicted on his client.  He understood quite clearly that everyone is entitled to legal representation.  Everyone is entitled to have a lawyer sitting beside them in a case that isn’t going to court and where everything is already agreed, so there will be no need for legal argument.  In Mr O’Brien he found a client who was absolutely ad idem with his philosophy. Mr O’Brien was prepared to fight the case on principle even though it might bankrupt him because he recognised the fundamental principle of justice that was at stake.

Fight away!  he told Mr Boland.  I’ll pay whatever it costsThe principle at stake here is too important to worry about money.

Proceedings were duly issued against the PIAB.  They went to the High Court and eventually the Supreme Court where, in the end, Mr O’Brien was vindicated.  The highest court in the land decided that he had the right to be represented by a lawyer in dealing with the PIAB if he so chose.

None of this is in doubt.

The PIAB lost and they had to pay Mr O’Brien’s substantial legal costs.  Mr O’Brien, being a disabled boner, is not a wealthy man, and it is no doubt to his credit that he recognised the great legal principle at stake and decided to take the case for the benefit of all future litigants, regardless of the personal cost to himself should he lose.

Mr O’Brien did not lose, however, and now his legal team were entitled to be paid for their endeavours both in the High Court and in the Supreme Court.

They submitted a total fee of €2.143 million against the PIAB and this fee then went to be taxed, which is an archaic way of saying that it was assessed by the Taxing Master.  This is the fellow who decides if lawyers are simply taking the piss, or if they’re riding the arse off the opposition when they send in their bills.  Bills which are simply taking the piss are perfectly acceptable, but giving it up the arse is frowned upon.

Hence, when a man who routinely approves excessive charges expresses disgust and bewilderment, alarm bells are bound to go jangling.  When the Taxing Master says the the level of costs are revolting in the extreme, you know there’s going to be trouble.

But when the Taxing Master cuts fees to a fifth of the amount sought, you really have to start asking yourself questions.

I have never encountered such grossly excessive fees, said Mr Moran, the Taxing Master.  I can hardly find the words strong enough to describe my disgust and bewilderment at the level of these costs being claimed.

He reduced Boland’s fees from €1,025,000 to €132,000.  In other words, a reduction of 87%.

He cut a claim for postage, photocopying, paper and sundries from €10,000 to €1,000.

The Taxing Master said that the costs before him were devoid of all reality, and bore no relationship to the issues involved or the nature or extent of the work undertaken.

I had to think about that for a while to try and understand exactly what Mr Moran is suggesting.  If I submit a bill which is devoid of all reality, it must presumably have no basis in fact, a bit like a Senator’s travelling expenses.  A bill which has no basis in fact is a false bill.  If I submit a bill to you which bears no relationship to the nature or extent of the work I do for you, I’m billing you for something I didn’t do.  That would be fraud, would it not?

If you told me that my explanation for being late for work was devoid of all reality, I would assume you were calling me a liar.

Is that what the Taxing Master is suggesting?  If so, the implications are staggering.  If I were a partner in Bolands, I’d be defending our good name vigorously against Mr Moran’s assertions because what he has said could be very damaging to a firm’s reputation.

I’m afraid the barristers didn’t come well out of the Taxing Master’s decision either.

Mr Gardiner and Mr Whelehan each asked €110,000 for their High Court services but were awarded only €25,000 each.  In the Supreme Court case, Mr Gardiner asked for €110,000 but received only €30,000.

Mr Cormac McNamara sought €75,000 for his Supreme Court work and was awarded €25,000 but his High Court taxing stands out, even though his claim was by no means the highest.

For his efforts in the High Court, Mr McNamara claimed €75,000 but the Taxing Master saw fit to award him the sum of ZERO, presumably on the basis that Mr Moran thought Mr McNamara had done no work at all to support his claim.

Not a sausage.

It’s as if I handed you a bill.  That’ll be ten thousand please, for landscaping your garden.

You didn’t landscape my garden.

Yes I did.

No you didn’t.

Yes I did.  Ten grand please.

No, you didn’t.  I have no garden.

Yes you have.

No I haven’t.  I live in an apartment.

Oh.  Right.

As the Taxing Master put it, The reality is that no case can or could be made to support these fees or justify their level.

You would have to ask yourself why such enormous costs were submitted in this particular case above all others, and they certainly are unique when the Taxing Master himself tells us that he has never seen the like.

The case is under appeal and therefore I would encourage readers to exercise restraint in their comments as I don’t wish to be up all night deleting prejudicial comments.  Luckily,  I’m sure the members of the High Court are not unduly influenced by intemperate things said on Bock the Robber in the middle of the night by drunkards.

___________

UPDATE

2nd July

The Irish Times carries a report that the barristers won’t be appealing the decision of the Taxing Master.  According to the report, the barristers are saying their fees were submitted at the request of the solicitors PV Boland, on the advice of a legal cost accountant, Connolly Lowe.  The Taxing Master was highly uncomplimentary towards the work of this firm.  He said their efforts to make a case for such high costs had failed dismally.

Now, apparently, the barristers are saying that they never submitted detailed figures for fees but instead told the solicitor, PV Boland, that they would accept whatever the Taxing Master thought was fair.  One of them, Dan Boland, whose fee was reduced from €75,000 to €16,670, said that he would never submit a fee of that size, and that he wasn’t aware of the Taxing Master’s comments and didn’t even know his fees had been submitted for assessment.

I can’t imagine that any of the barristers are too pleased at the way this makes them look.

It appears that Mr Denis Boland, solicitor, will be on his own in appealing the reduction of his fees, when he tries to get the full €1,025,000 he believes he’s owed, as opposed to the paltry €132,000 the Taxing Master thinks he should have.

Let us not forget that this is taxpayers’ money we’re talking about.

I rarely find myself on the same page as IBEC, but I must say I agree with a comment from their director general Danny McCoy who said Where fees are grossly overstated there is a case for all entitlements to be forfeited.

In other words, Mr McCoy thinks Mr Boland should receive not a penny, and that’s a suggestion I would not argue with.

On the evidence before us, it’s hard to escape the suspicion that somebody decided to teach the PIAB a lesson for daring to exclude the lawyers from the lucrative world of personal injuries.  I hope an investigation is carried out to establish whether there’s any substance to this suspicion.