Topical Issue Statement by
Charlie Flanagan TD
Minister for Justice and Equality
Wednesday 13th December 2017
I would like to thank Deputy Casey for his raising of this topical issue. At its root lies the question of the impact of legal costs on small and medium enterprises in terms of their access to the courts and other means of legal redress. As such, he will appreciate that it is an issue which straddles both the Department of Justice and Equality and that of Business, Enterprise and Innovation in policy terms. By the same token, the Deputy will appreciate the priority that has to be given to our more vulnerable citizens in the allocation of finite Exchequer funding in support of the provision of civil legal aid.
I also think it important to note the key structural and transparency reforms that are being made to the legal costs regime under the Legal Services Regulation Act 2015 which will also be of key benefit to enterprise. For example, as well as obliging legal practitioners to provide better costs information, the Act allows employed or corporate lawyers to act in proceedings on behalf of their employers and for direct access to barristers on non-contentious business. Another important development is that of the Mediation Act 2017 which will come fully into operation on 1 January, 2018. The Act, which deals with disputes of a civil nature will, I believe, speed up the resolution of disputes, reduce legal costs associated with such disputes and reduce or avoid the stress involved in adversarial court proceedings.
At this point, I would like to mention that in case C-258/13 cited by the Deputy, the Court of Justice of the European Union determined in its Order of 28 November 2013 that it “clearly had no jurisdiction to rule on the question referred to it” including as it would have related to the interpretation of Article 47 of the EU Charter of Fundamental Rights.
Against a background of ever-increasing demand for civil legal aid, great care was taken to maintain the Legal Aid Board budget during the recession and it has seen an increased budget allocation by 28% over 2011-2017 period with over 10% increase during the period 2016 to 2017.
The Board received an additional €1.250 million in the budget this year bringing it to a total of €38.9 million. This has built on those other budgetary increases made in recent years – over €8 million since 2011 - to continue to reduce waiting list and consolidate services across a number of areas. This includes the Abhaile Scheme for persons in mortgage arrears. It also includes provision for pay increases in 2018.
At present, the Legal Aid Board, established under the Civil Legal Aid Act 1995, provides civil legal aid and advice to persons of limited means who cannot afford to pay a solicitor privately.
Section 5(1) of the Civil Legal Aid Act 1995 states that the principle function of the Legal Aid Board is, inter alia, to provide legal aid and advice in civil cases to persons, who satisfy the requirements of the Act. The Board has always interpreted the word ‘persons’ to mean natural persons only and not to include legal persons, that is to say, companies. Section 29(1) of the Act requires that a person satisfy certain financial eligibility criteria set out in Regulations. The financial eligibility criteria that are set out in the Civil Legal Aid Regulations 1996 – 2013 clearly contemplate a natural person’s income and resources being assessed.
There are no plans at present, by the Department of Justice and Equality, to introduce a scheme of legal aid for commercial enterprises. However, the Department is in regular contact with officials in the Department of Business, Enterprise and Innovation on cross-departmental matters and the situation in regard to legal aid of the nature referred to will be kept under review.