The fees paid by the State to barristers jumped by almost 40 per cent last year, according to the latest Comptroller and Auditor General report which raised questions about the transparency surrounding contracts.
Barristers were last year paid just under €20 million for taking on cases handled by the Chief State Solicitor’s Office (CSSO), which acts for the State, government departments and State agencies.
The publicly paid legal bill for senior and junior counsel has doubled in five years – up from just under €10 million in 2014. The sharpest rise in payments was last year, when spending on barristers increased by 38 per cent.
In his latest report on the accounts of the public service, Comptroller and Auditor General Seamus McCarthy raised concerns over the accounting practices of the CSSO in recording such payments.
Mr McCarthy said the CSSO, under a deal with the Bar Council, is supposed to settle fees with barristers within six months of being billed. But in practice, payments have “drifted into a significant level of arrears,” he noted, adding that a third of all outstanding fees last year were overdue, while more than half were overdue the previous year.
The prompt payment of bills is “an important principle” in making sure the spending of public money is “properly reported and controlled”, Mr McCarthy said in his report.
The build-up of “accrued” barristers’ fees as well as the increase in the proportion of them that are overdue signalled they “are not being paid for or recognised” in the appropriate financial accounts “in a timely way”.
“This results in a lack of transparency about how much is being spent on the services of counsel each year,” he added.
Mr McCarthy described the CSSO practice as a “modified accounting policy” which the office told him dates back to 2004, when the accounts function was taken back in-house from the Department of Finance.
“In practice, this substantially understates the level of liabilities at the reporting date,” he said.
Government departments and offices – such as the CSSO – are expected to manage their operations within the amount of money allocated to them by the Dáil, he pointed out.
If spending goes significantly above the amount allocated, then a government office needs to apply for supplementary funds.
“Exceeding the funding level approved for a service in a specific year – referred to as an excess vote – very rarely occurs,” said Mr McCarthy.
“When an excess vote does arise, it requires prompt explanations to be provided to the Committee of Public Accounts after the publication of the appropriation accounts, and an additional special vote of Dáil Éireann to approve the excess spending.”
Mr McCarthy added that an “important control over the expenditure of funds is that liabilities that are due are paid promptly and not allowed to accumulate and carry over from one accounting period to the next.”
In a “significant proportion of cases”, the CSSO has “been failing to honour the implicit credit terms” as set out in an agreement over paying barristers, he added.
Responding to the concerns, the CSSO said there had been a “marked increase in the complexity of work” being handled by the office in recent years, in areas such as commercial litigation, procurement, and advisory and litigation work relating to the EU.
“Litigation is becoming increasingly challenging and complex with plaintiffs suing for multiple or alternative reliefs,” the office told Mr McCarthy.
“There is an increasing challenge to the exercise of the power of the State and to constitutional norms.
“As a result, a feature of payments made in recent years is the increase in payments at the upper end of the fee range – a direct consequence of the increase in complexity.”
The office said it was “working to augment existing measures” aimed at reducing public spending on barristers.
The report also notes that the Department of Finance stepped in to pay half of the CSSO’s almost €1 million (€924,000) bill for barristers’ fees in the Apple illegal State aid case during 2017.