Wariness grows in legal aid row after week of bitter recriminations

Hopes of peace breaking out between Jim O’Callaghan and criminal defence solicitors over the new legal aid payment model for the District Courts appear remote after a week of increased disruption across the criminal courts.

As solicitors escalated their withdrawal of services last Monday, and O’Callaghan, the Minister for Justice, slammed them for their disruption while refusing to budge over his changes, both sides faced sharp criticism over their actions.

Solicitors extended their four-month withdrawal of services to include cases involving people in custody, drawing the ire of some judges, including Central Criminal Court judge Paul McDermott and Dublin Circuit Criminal Court judge Martin Nolan.

[ Judge ‘coerced’ into adjourning six rape and sexual offences trials as solicitors withdrawOpens in new window ]

[ ‘It is the most basic duty of a solicitor to represent a client in custody’, says judgeOpens in new window ]

Both judges pointed out that solicitors were required under law to secure court permission to come off record for clients, with Nolan describing a unilateral decision by some solicitors not to represent clients in custody as “astounding”.

The legal aid row centres on a new €520 flat-fee payment model introduced by the Department of Justice, based on an average of five appearances, replacing the previous model of €240 for the first appearance and €60 for each subsequent appearance.

“If solicitors think their dispute with the department is more important than representing their clients in custody ... I find it hard that solicitors would adopt this position,” Nolan said.

Solicitors attended hearings of five of 16 defendants up for sentence, with the remainder all adjourned to next month.

In the Children’s Court in Dublin, District Court president Paul Kelly had 16 cases on Tuesday, with solicitors appearing in just three.

Solicitors attend when a client who is about to turn 18 is facing sentence because any delay in sentence would mean the defendant is sentenced as an adult, not a minor.

O’Callaghan came under fire from politicians, the Law Society and others, particularly over his claim the solicitors’ action “deliberately” affected new rape trials listed last Monday.

Six rape trials at the Central Criminal Court did not proceed that day because the accused – all on bail – were not represented.

Solicitors were incensed at the Minister’s claim that they targeted such cases, pointing out their withdrawal has from July 1st affected all types of cases in all criminal court divisions, including rape and other sexual offences, assault, theft, burglary, drug offences and arson.

They strongly disputed the Minister’s suggestion the extension of their action to affect cases of people in custody and “protocol” cases – sexual offence cases involving young people as accused or complainants – meant rape cases were “deliberately affected”.

Will Jim O’Callaghan back down in solicitors’ pay dispute?

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O’Callaghan repeated his “targeting” claim when he appeared before the Oireachtas justice committee on Tuesday, drawing criticism from several members, including Fine Gael TD Barry Ward, a barrister, who described it as “grossly unfair” and asked him to withdraw the claim.

Labour TD Alan Kelly said he agreed about the need for criminal legal aid reform but told the Minister his claim about targeting rape cases was “beneath your role” and a “tactic” that was both “unjustifiable and wrong”.

The committee chairman, Sinn Féin TD Matt Carthy, reflected the views of many court users, including judges, barristers, solicitors, court staff, defendants and victims of crime, when he urged the Minister to lower the temperature and “engage constructively” with the Law Society.

There is now a “real prospect” of significant parts of the criminal courts system “grinding to a halt”, Carthy warned.

O’Callaghan maintains the courts are functioning and has pointed to the fact there are 177 solicitors across the State engaging with the new scheme. He accepted this week that some, “particularly in Dublin”, have withdrawn their services.

[ The criminal courts are operating, but not ‘effectively’, as Jim O’Callaghan claimsOpens in new window ]

Sources across the Courts Service, judiciary and legal professions agree the criminal courts are operating but are very concerned that the large and increasing numbers of case adjournments means further hearing delays compounding existing backlogs.

The impact of such delays on accused people and complainants has been highlighted by organisations including the Irish Council for Civil Liberties.

The council referred to one of almost 90 High Court applications taken since July by unrepresented people alleging unlawful detention. It noted that the High Court had ruled that a lone parent with no previous convictions who was charged with robbery – and who had told the District Court she did not know how to represent herself – had been deprived of a fair hearing.

In another case, the High Court found an illiterate man who had visible injuries during the District Court hearing was subject to “a fundamental denial of justice”.

O’Callaghan has consistently mounted a strong defence of his new payment model.

He says it is the “most significant reform and modernisation” of District Court criminal legal aid in years and argues it is necessary in the interests of an efficient and cost-effective system and will not be revoked. He says he has made “tweaks”, including increasing the proposed flat fee from €455 to €520 and signalled a willingness to discuss further tweaks in cases involving children.

The new scheme is aimed at stamping out “abuses” of the old system, he says, particularly concerning the numbers of multiple legal aid certificates (invoices) granted in a context where spending on criminal legal aid rose from €19 million in 2015 to more than €41 million in 2025.

Solicitors argue their concern is to ensure they are paid for the work they carry out. They want two key changes.

First, where cases exceed five appearances due to prosecution or judicial applications or interventions, they argue that an additional certificate should be granted to cover their additional work.

Second, where an accused person is subject to separate and distinct prosecutions, they should receive a certificate for each distinct prosecution. Under the new scheme, just one certificate would be issued, irrespective of the number of distinct prosecutions.

O’Callaghan wrote this week to Law Society president Rosemarie Loftus, saying he is happy “to continue my engagement” with the solicitors’ representative body in advance of the delivery, on November 3rd, of the High Court’s judgment on a challenge by solicitor John Quinn to the lawfulness of his scheme.

[ Jim O’Callaghan accused of treating solicitors’ pay dispute ‘like it’s a game’Opens in new window ]

He told Loftus he had asked his officials to organise a meeting before that judgment “to hear your viewpoint and specific concerns”.

That meeting is expected to be held on Wednesday.

In her response, Loftus asked the Minister to attend the meeting “in person”.

It “should take place without further delay”, she said, and the society trusted it would “address the substance of this dispute and support a meaningful resolution”.

Loftus referred to the “real and significant” impact of the impasse on the administration of justice. She said that behind each adjourned case was “a defendant without representation, a victim whose wait for justice goes on, and many others who are directly affected”.

[ Law Society seeks to meet O’Callaghan ‘in person’ to solve legal aid payments impasseOpens in new window ]

The society, she said, had been calling for criminal justice reform for years. Its concern is that any new model is “practical, evidence-based and capable of protecting the constitutional rights of accused people while remaining sustainable for those who provide publicly funded legal representation”.

The society had previously set out to the Minister the two core issues it believed would resolve the key concerns of criminal defence solicitors, she said.

In advance of the meeting between the sides, solicitors remain wary.

Tony Collier, a partner in Dublin firm Ferrys Solicitors LLP, said the Minister’s comments about solicitors targeting rape trials had caused “extensive dismay” among solicitors who lack trust in whether the offer of a meeting is “a response to political pressure or a sincere effort to resolve matters”.

Some have suggested an independent third party could facilitate a meeting between the sides, “given the breakdown in relations”, said Collier.

For now, after one of the most bitter weeks in the months-long dispute, the two sides seem very far apart.