Terms and Conditions
1. On 22nd January 2016 the Government announced a Scheme to help people who are insolvent, and in mortgage arrears on their home, to access independent financial and legal advice. This Scheme is being co-ordinated by the Department of Justice and Equality and the Department of Social Protection, in co-operation with the relevant agencies including the Insolvency Service of Ireland (ISI), the Money Advice and Budgeting Service (MABS), the Legal Aid Board (“the Board”) and the Citizens Information Board (CIB).
2. For information purposes, the following are the criteria for eligibility for the Solicitor Consultation Service (as defined in paragraph 18) and the Duty Solicitor Service (as defined in paragraph 19) elements of the Scheme:
- The person is insolvent (defined as under s. 2 of the Personal Insolvency Act 2012: i.e. the borrower is ‘unable to pay his or her debts in full as they fall due’), and
- The person is in mortgage arrears on the home in which they ordinarily reside (their ‘principal private residence’ (PPR) as defined by s. 2 Personal Insolvency Act 2012), and
- The person is at risk of losing that home (i.e. they have received from the mortgage lender repossession proceedings, a letter indicating that such proceedings will issue, a letter indicating that they are deemed noncooperating, or an invitation to consider sale, surrender or other loss of all or part of the home).
The following are the criteria for the Personal Insolvency Arrangement (PIA) Review Legal Aid Service (as defined in paragraph 20) element of the Scheme:
- The person is insolvent (defined as above i.e. the borrower is ‘unable to pay his or her debts in full as they fall due’), and
The person has made a proposal for a Personal Insolvency Arrangement (PIA) which has not been approved by their creditor(s).
- The debts that would be covered by the proposed Personal Insolvency Arrangement include a debt secured on the person’s principal private residence (as defined above) in respect of which the borrower was in arrears on 1 January 2015 (or, having been in such arrears before that date, the borrower entered into an alternative repayment arrangement with the secured creditor concerned but remains insolvent), and
- The person’s Personal Insolvency Practitioner considers that there are reasonable grounds for the making of an application to the Circuit Court or High Court (as appropriate) for an application under section 115A of the Personal Insolvency Act 2012 (as amended).
A person is not eligible for the Scheme if the above conditions are otherwise satisfied, but the home is disproportionate to the reasonable living accommodation 4 needs of the borrower and his or her dependents. (The criteria for what is reasonable are those set out at section 104 of the Personal Insolvency Act 2012).
3. Section 30(3)(a) of the Civil Legal Aid Act 1995 (“the Act”) provides that the Legal Aid Board (“the Board”) may establish and maintain a panel of solicitors who are willing to provide legal aid and advice to persons who are in receipt of legal services. On foot of the Government decision to establish the Scheme, and pursuant to the Act, the Board has decided to establish and maintain a panel of solicitors who are willing to provide services to insolvent persons in home mortgage arrears pursuant to these Terms and Conditions. The Panel is to be known as the “Home Mortgage Arrears Solicitors Panel” (hereinafter referred to in this document as “the Panel”).
Panel of Solicitors
4. Any solicitor who agrees to abide by these Terms and Conditions and who wishes to have his or her name placed on the Panel must apply in writing to the Board on the form Application for Entry onto Panel.
5. The solicitor must give an undertaking, to comply with the Terms and Conditions herein and the provisions of the Act when providing legal aid and/or advice.
6. Any solicitor wishing to apply to be placed on the Panel must hold a current practising certificate from the Law Society of Ireland and must have professional indemnity insurance that is adequate for the purposes of the Panel. The current figure is €1.5 million in any one case, but the Board may revise this amount from time to time.
7. Solicitors on the Panel must comply with the tax clearance procedures specified in the Department of Finance Circular 43/2006 entitled ‘Tax clearance Procedures- Public Sector Contracts’ or any such circular amending or replacing that circular. Admission to the Panel will be conditional on submission of a valid tax clearance certificate to the Board.
8. Before being accepted for membership of the Panel, the solicitor must demonstrate to the Board’s satisfaction that they have either:
a. recent experience in providing legal services in home repossession cases, which must include experience in advocacy before the Circuit Court in such cases; or
b. experience in providing legal services in relation to personal insolvency arrangements.
Experience in both areas is considered desirable but not necessary.
9. In the event that the number of applications by solicitors who meet the eligibility requirements for membership of the Panel exceeds the numbers required, either in 5 general or in any particular geographic area, the Board may decide that a number only will be placed on the Panel. The Board will select, based on an examination of the application forms and the requirements of the Panel, those who appear to be the most suitable for membership of the Panel. The Board reserves the right to engage in a competitive interview process in order to identify the candidates most suitable for membership of the Panel and/or to act as Duty Solicitor. This is not to suggest that other candidates are necessarily unsuitable or incapable of membership of the Panel and/or to act as Duty Solicitor, rather that there are some candidates, who based on their application, appear to be better qualified and/or have more relevant experience.
10. In the event that the number of solicitors accepted for membership of the Panel, who are willing to act as Duty Solicitor at any particular Circuit Court venue or venues, exceeds the number of solicitors required to perform the role of Duty Solicitor at that particular Circuit Court venue, the Board reserves the right to limit the number of solicitors selected to act as Duty Solicitor. The Board will select, based on an examination of the application forms, the outcome of the competitive interview process engaged in under paragraph 9 (if any), the requirements of the role of Duty Solicitor, and the required number of duty solicitors, those it deems to be the most suitable for appointment. This is not to suggest that other candidates are necessarily unsuitable or incapable of undertaking the role, rather that there are some candidates, who based on their application, appear to be better qualified and/or have more relevant experience. Depending on the numbers willing to act as Duty Solicitor at particular Circuit Court venues, it may be the case that a solicitor may be appointed Duty Solicitor for certain Circuit Court venue(s) but not others. The members of the panel appointed as Duty Solicitor as a result of this process shall be known as the “Duty Solicitor Sub-Panel”.
11. Any solicitor whose application has been accepted for membership of the Panel must, prior to his or her name being entered onto the Panel, participate in a training course provided by the Board. The solicitor’s name will not be entered onto the Panel unless the Board is satisfied that the solicitor has fully completed the course. While there will be no charge for attending the course, the Board will not be responsible for any costs including travel and subsistence incurred in attending. Appointment to the Panel is a personal appointment and cases, or a Duty Solicitor responsibility, cannot be transferred to another solicitor on the Panel without the express permission of the Board. The Board will determine what fee, if any, is payable before a transfer is agreed.
12. It is the Board’s decision as to whether any applicant for membership of the Panel meets the requirements (including attendance at the training course) for membership of the Panel.
13. Applications for membership of the Panel can be forwarded to the Private Practitioner Service, Legal Aid Board, Quay Street, Cahirciveen, Co. Kerry V23 RD36, DX 166 004 CAHIRCIVEEN, or by email to email@example.com
14. In the event of membership of the Panel or Duty Solicitor Sub-Panel meeting the numbers required, the Board may defer entering further successful applicants on to the Panel or onto the Duty Solicitor Sub-Panel for so long it deems necessary. If the Board decides to enter further names onto the Duty Solicitor Sub-Panel then those who have been accepted for membership of the Panel and have indicated their interest in participating in the Duty Solicitor Sub-Panel will be considered for membership of the Duty Solicitor Sub-Panel, by reference to their date of application for membership of the Panel, provided that the provisions of paragraph 10 of these Terms and Conditions shall apply.
15. The Panel shall be in place for a period of three years from the 10th May 2016 or such other date or period as the Board may determine. The Board may, on giving one month’s notice to solicitors on the Panel, terminate the operation of the Panel at any time. The Board reserves the right to periodically review the terms and conditions depending on the experience of the scheme or for any reason it deems fit. It should be noted that it is the intention to formally review the operation of the Scheme six months after its commencement.
16. Solicitors on the Panel must have access to e-mail facilities and must have IT software that is compatible with Microsoft Office in order to ensure the effective and efficient administration of the Scheme. They must also have access to a scanner and accompanying software capable of converting a paper file to Adobe PDF format. In addition it is Board policy that email communications concerning clients are encrypted for security purposes. Instructions for reading and replying to secure communications sent by the Board are available here.
16A. Solicitors participating in the panel should not accept any work that would conflict with their work as a member of the Abhaile Solicitors Panel or create an appearance of conflict. In particular, for the duration of their membership of the panel, solicitors should avoid accepting instructions from a lending institution in relation to repossession proceedings.
17. Panel solicitors providing services on foot of these terms and conditions will provide one or more of three services:
- The Solicitor Consultation Service
- The Duty Solicitor Service
- The PIA Review Legal Aid Service
18. Under the Solicitor Consultation Service, a solicitor from the Panel (who will be called the “Consultation Solicitor” in these terms and conditions) is to provide a single legal advice consultation (and related services as set out in paragraph 26) to an eligible person in respect of a legal advice voucher issued to them under the Scheme. In certain circumstances and upon prior approval by the Board, the service may extend to the Consultation Solicitor conducting negotiations for the settlement of the repossession proceedings or related legal proceedings and a second consultation with the client, to include the provision of written advice.
19. The Duty Solicitor service will involve a Panel solicitor on the duty solicitor rota for that Circuit Court venue (who will be called the “Duty Solicitor” in these terms and conditions) attending in the court building for at least one hour prior to sittings by 7 the County Registrar to hear civil bills for possession and for the duration of the sitting, until all matters are disposed of or otherwise adjourned, and during that period to assist such persons who are eligible for assistance as outlined further below. Subject to leave of the Court or of the County Registrar concerned, it is expected that the duty solicitor will attend before the County Registrar and speak on behalf of defendants, without entering a defence or coming on record in the proceedings.
20. The PIA Review Legal Aid Service shall apply in relation to a person/persons who has/have been granted a legal aid certificate issued by the Board for representation in the Circuit Court or High Court in proceedings for a review by the court of a proposed personal insolvency arrangement which has been refused by his/her creditors under section 115A of the Personal Insolvency Act 2012 (as inserted by section 21 of the Personal Insolvency (Amendment) Act 2015). If a legally aided client wishes to appeal a refusal to make an order, or to defend an appeal against the making of an order, to the High Court, Court of Appeal or Supreme Court as appropriate, an application for an amendment to the certificate (or an application for a certificate in the event that the person was not legally aided for the original hearing) may be made either by post to Private Practitioner Service, Legal Aid Board, Quay Street, Cahirciveen, Co. Kerry V23 RD36, DX 166 004 CAHIRCIVEEN, or by email to firstname.lastname@example.org.
21. The following paragraphs refer to Consultation Solicitor and Duty Solicitor services under the Scheme. Different procedures apply to the PIA Review Service – see below under “The PIA Review Legal Aid Service”.
22. Solicitors should note that it is the responsibility of the referring MABS office to verify the person’s eligibility for the Scheme or any element thereof and the solicitor is not required to do this. The solicitor must inform the referring MABS office and/or the Board if any matter comes to their attention which throws doubt on the person’s eligibility for the Scheme. In relation to applications for a PIA Review, solicitors should note that the PIP will verify the persons’ eligibility for the Scheme.
23. Persons seeking services under this Scheme (other than the PIA Review Legal Service) will initially make contact with one of the MABS offices. Staff of MABS will initially identify whether the person is eligible for services under the Scheme. If a person is so identified, MABS will allocate the person a reference number under the Scheme and will take a decision on whether to refer the person to a dedicated mortgage arrears MABS expert, an accountant from the panel of accountants established under the Scheme, or a Personal Insolvency Practitioner (PIP) from the panel of PIPs established under the Scheme for expert financial advice. That person (‘the financial adviser’) will prepare the borrower’s Standard/Prescribed Financial Statement and will provide financial advice in writing to the borrower on their best options for return to solvency, if feasible, while remaining in the home.
24. Once the Standard/Prescribed Financial Statement and the written financial advice are available, a decision will be made by the referring MABS office as to whether the person requires legal advice. If the MABS office decides that legal advice is required, the office will issue the person with a legal advice voucher which will certify their eligibility under the Scheme for the services of a consultation solicitor and (subject to paragraph 32 below) the services of a duty solicitor rostered for the relevant Circuit Court venue, from the Panel. MABS will provide a list of solicitors on the Consultation Solicitor Panel to the person and the person will choose a solicitor from that list.
25. The referring MABS office or the person shall notify the consultation solicitor of the issue of the voucher and shall furnish them with:
- two copies of the voucher which will indicate the person’s reference number under the Scheme, their name, and the address of the person’s principal private residence (which is at risk of repossession),
- the Standard/Prescribed Financial Statement prepared by the financial adviser, .
- a copy of the financial advice provided in writing by the financial adviser to the borrower,
- a copy of the borrower’s file sharing consent, .
- a claim form on which the Scheme number and voucher ID number should be entered.
The MABS office shall simultaneously notify the Board that a voucher has been issued and shall forward a copy of it to the Board which will contain the person’s name, address, Scheme number and the voucher ID number.
26. The voucher shall be valid for three months following its date of issue. Should a person present for the solicitor consultation service with a voucher issued more than three months prior to the date of the consultation, the financial statement is likely to have become outdated; the voucher should be returned to the referring MABS office and the person advised to return to the MABS office.
27. The voucher with the Scheme number shall be the solicitor’s authority to provide legal advice to the client under the Solicitor Consultation Service as specified in paragraph 28. One copy of the voucher shall be retained by the solicitor on the client file. The second copy of the voucher shall be attached to the Claim Form for payment of the fee.
28. The service to be provided (independent legal advice on the borrower’s best options for sustainable resolution of the mortgage arrears on their home) shall also include but not be limited to: .
- Arranging a consultation with the client and taking instructions; .
- Checking the borrower’s legal position; .
- Explaining clearly to the borrower and answering his or her questions,
- Advising the borrower on any related legal complications (for example where a co-borrower is not cooperating in efforts to resolve the mortgage arrears);
- Advising the borrower on any legal aspects of alternative solutions including those specified in the written advice from the financial adviser; and,
- Where the borrower has been issued with, or is on notice of pending issue of, repossession proceedings: .
- Assessing whether the borrower appears to have a valid legal defence to those proceedings, .
- Informing the person who does not have a legal defence, but who might benefit from accompaniment to Court, of the Duty Solicitor Service, .
- Advising and facilitating the person to make an application for civil legal aid to defend the proceedings if they have a good defence capable of meeting the merits criteria under sections 24 and 28 of the Act and .
- Providing to the borrower, in writing, the legal advice given at the consultation(s), and providing a copy of that written advice to the borrower’s financial adviser under the Scheme.
29. During the course of the consultation, the solicitor may form a view that the borrower could benefit from the solicitor’s assistance in negotiating terms of settlement to the repossession proceedings (if any are in being). Where that is the case the solicitor may apply to the Board’s Private Practitioner Service by email to email@example.com for an authorisation to conduct negotiations (an authorisation). An authorisation, if granted, shall be the solicitor’s authority to continue to provide legal advice to the borrower in the form of negotiations with the mortgage lender and, following the conclusion of negotiations, a final consultation with the borrower with the advice confirmed in writing. An additional fee will be payable when an authorisation is issued and negotiations have been concluded on foot of that negotiation. A copy of the authorisation shall be attached to the Claim Form when the fee for the case is being claimed.
30. Only one consultation fee will be payable in respect of the PPR which is at risk, even if co-owners are individually eligible for advice under the Scheme. However, if the co-owners are living separate and apart, two fees may be payable. If this is so, the consultation solicitor will refer the second party to MABS for admission to the Scheme and the consultation solicitor service will be provided to that person by a different Panel solicitor from a separate firm.
31. All solicitors on the Panel will at all times be kept informed by the Board (by email) of the duty solicitor rota(s). In the event that the person has been served with a Civil Bill for Possession and indicates their wish to avail of the Duty Solicitor service, the solicitor shall send by email, to the designated Duty Solicitor for the Circuit Court venue in question for the next return date of the civil bill, the entire file including a note of any advice given under the Scheme. It is intended that the Consultation Solicitor will be furnished with a file sharing consent form and he/she will make his/her file available to a Duty Solicitor when requested.
32. In the event that the person applies to a law centre for civil legal aid and advice to defend repossession proceedings, and the law centre so requests, the solicitor shall be under an obligation to copy and make available to the law centre the entire file including the written note of the legal advice given by the Consultation Solicitor under the Scheme.
33. The Board will arrange for each Circuit Court venue, among those members of the Panel (or Duty Solicitor Sub-Panel, as the case may be) who have indicated their willingness to act as Duty Solicitor at the Circuit Court in question, a strict rota whereby one of their number will act in turn as Duty Solicitor for a set period.
34. Members of the Abhaile Solicitors Panel will be kept informed of the details of the Duty Solicitor rota for their county. The Board will publish the rota on its website under the heading “Private solicitors and barristers”.
35. The Duty Solicitor shall be required to be in attendance at each Circuit Court venue in the county on such dates as the County Registrar sits to hear civil bills for possession and shall be in attendance at least one hour before the time at which the County Registrar is due to sit.
36. Any Duty Solicitor who is unable to be present in Court at the required date and time must contact the Board by email at firstname.lastname@example.org as soon as he or she becomes aware that he or she is unable to be present to enable the Board to arrange for another member of the Duty Solicitor Sub-Panel to act as Duty Solicitor on the date and arrange for the transfer of the files of any and all relevant clients to the replacement Duty Solicitor.
37. When the Duty Solicitor arrives in the Courthouse they shall base themselves at the MABS Information Desk, to which persons who have applied (or who wish to apply) for legal advice under the Scheme will be directed.
38. A person who has been advised by a Consultation Solicitor pursuant to a legal advice voucher issued to him or her under paragraph 23 of these Terms and Conditions, and who has been served with a Civil Bill for Possession in respect of his or her PPR which is listed for hearing before the County Registrar, may avail of a Duty Solicitor Service on the return date. Such a person is referred to as a “Scheme-advised defendant” in these Terms and Conditions and the Consultation Solicitor will forward a copy of their file to the Duty Solicitor rostered for that date.
39. The Duty Solicitor:
a. will provide advice and assistance to a Scheme-advised defendant in the Courthouse based on the file provided by the consultation solicitor including the following:
- explaining clearly to the borrower their legal position regarding the repossession proceedings and answering his or her questions,
- speaking on the borrower’s behalf in Court (without coming on record),
- seeking an adjournment and/or settlement of the proceedings, and
b. may, in so far as practicable:
- check the borrower’s legal position, and provide supplementary advice to the borrower, in the light of any new information emerging in the course of the Court sitting.
The Duty Solicitor shall keep a log of the name, PPR address and Scheme number of all Scheme advised defendants so assisted, the name of the Plaintiff and record number of the proceedings in the Client Details Form of these Terms and Conditions and a copy shall accompany any claim form as appropriate.
40. The Duty Solicitor may not, on a legally aided basis, go on record as the Solicitor for the Defendant nor conduct litigation related to the matter before the court on the person’s behalf.
41. The Duty Solicitor must at all time make clear to the person that the service being provided is in relation to the present hearing date only and that:
a. if the proceedings are adjourned a different Duty Solicitor (or no duty solicitor) may be present on the adjourned date, and
b. the Duty Solicitor will not be in a position to act in the event of the transfer of the case to the Circuit Court Judge’s list or for any appeal.
42. In circumstances where the person appears to have a valid legal defence to the proceedings, or instructs the Duty Solicitor that they wish to defend the proceedings, the Duty Solicitor may inform the Court of the person’s position and seek an adjournment to allow the person to apply to a law centre for civil legal aid or to engage a solicitor in a private capacity, outside the scope of the Scheme.
43. The Duty Solicitor may also give more limited assistance to a person who has been served with a Civil Bill for possession in respect of his or her PPR, who appears in person before the Court in response to the Civil Bill and wishes to avail of the Scheme, but who has not yet applied, has not yet received a legal advice voucher, or has not yet been advised by a consultation solicitor, such person can be referred to as a “Scheme Applicant” in these Terms and Conditions.
44. The Duty Solicitor may, with leave of the Court/County Registrar, speak in Court on behalf of a Scheme Applicant (without coming on record). The Duty Solicitor must clearly indicate to the Court that the borrower is a Scheme Applicant, inform the Court of the status of the application and may apply on the borrower’s behalf for such adjournment as the Court may deem appropriate to facilitate the borrower availing of the Scheme.
45. The Duty Solicitor shall keep a log of the name, PPR address of all Scheme Applicants so assisted, the name of the Plaintiff and record number of the proceedings in the form as specified in these Terms and Conditions and a copy shall accompany any claim form as appropriate.
46. A person wishing to avail of the PIA Review Legal Aid Service must complete, together with their Personal Insolvency Practitioner, the Application for Legal Services Form contained in Appendix 6 and return it to the Private Practitioner Service, Legal Aid Board, Quay Street, Cahirciveen Co. Kerry V23 RD36 or by email to email@example.com. The application must contain the person’s Scheme number (which the Personal Insolvency Practitioner will apply for and obtain from MABS prior to making the application) and a statement signed by the Personal Insolvency Practitioner that there are reasonable grounds for the making of an application for the review by the relevant Court of the proposed Personal Insolvency Arrangement (PIA) under section 115A of the Personal Insolvency Act 2012 and certifying the applicant’s eligibility for the Scheme. A copy of the proposed PIA must be attached to the form.
47. A member of the Board’s staff will make a submission for a legal aid certificate, based on the information provided on the application form. The Board, in accordance with its normal procedures for the grant and refusal of legal aid certificates, will consider the information in the application by reference to the criteria in the Civil Legal Aid Act 1995.
48. If the Board refuses to grant a legal aid certificate, the person and their PIP will be notified in writing and offered an opportunity to have the decision reviewed and/or appealed according to the Board’s normal procedures.
49. If the Board grants a legal aid certificate, the Board may refer the person and/or their PIP to select a solicitor from the Panel to act on their behalf. The person and/or their PIP shall advise the Board of their nominated solicitor and the Board shall furnish the solicitor with:
- two copies of the legal aid certificate which will indicate the legally aided person’s name and Scheme number, the nature of the proceedings authorised and the steps authorised on foot of those proceedings, in terms of the expenditure on witnesses that may be incurred; and
- a Claim Form on which the Scheme number and legal aid certificate number should be entered. 50. The certificate shall be the solicitor’s authority to provide legal aid to the client under this Scheme. One copy of the certificate should be retained by the solicitor on the client file. The second copy of the certificate should be attached to the Claim Form for payment of the fee and any outlay, when the case is concluded.
51. Legal services cannot be provided under the PIA Review Legal Aid Service without a valid legal aid certificate.
52. It is an essential requirement of this Scheme that where a solicitor is engaged on foot of any matter authorised under a legal aid certificate, they continue to provide services for that matter. Failure to do so without good reason will be regarded as grounds for removal from the Panel.
53. Section 115A(2) provides that the application papers for the Court review shall be lodged not later than 14 days after the creditors’ meeting referred to in subsection (16)(a) or, as the case may be, receipt by the personal insolvency practitioner of the notice of the creditor concerned under section 111A(6) (inserted by section 17 of the Personal Insolvency (Amendment) Act 2015). There is no provision for extension of time. It is essential that solicitors be aware of this time limit when providing services.
54. The service to be provided shall also include but not be limited to:
a. arranging a first consultation with the client and the PIP and taking instructions,
b. drafting the notice of motion for an order under s115A(9) of the Personal Insolvency Act 2012 and the PIP’s certificate under section 115A(2)(d) of the Personal Insolvency Act 2012,
c. representing the client in Court, d. any follow up work required, and e. advising the client in relation to the merits of any appeal.
55. Section 115A(14) of the Personal Insolvency Act 2012 provides that: “(14) The court, in an application under this section, shall make such other order as it deems appropriate, including an order as to the costs of the application.” It is a requirement in the event of the application under s115A(9) being successful that the solicitor or barrister shall seek an order for the costs of the application in favour of the client. Further in the event that such an order for costs in favour of the client is made, the solicitor shall take all necessary steps to recover such costs and shall pay any costs so recovered into the Legal Aid Fund. The Board will pay the costs to the solicitor save that it will deduct any payments made by the Board to the solicitor and/or barrister and any other expenses paid by the Board which are recoverable or recovered on foot of a party/party recovery, e.g. witness fees.
56. While providing services as part of the PIA Review Legal Aid Service, if a solicitor considers that further steps that will incur expenditure are required to process the client’s claim, over and above those authorised on the certificate, for example, that an expert report should be obtained, that professional or other witnesses are required, that a legally aided person wishes to appeal a decision to a higher court, an application must be made in writing seeking an amendment to the certificate to incur such expenditure. Such application should provide sufficient information, particularly in relation to how the additional expenditure / steps are likely to benefit the client’s case, to allow a decision to be made and to enable the terms of the Act to be complied with by the Board when considering the application. The application should be made to Private Practitioner Service, Legal Aid Board, Quay St, Cahirciveen, Co Kerry, V23 RD36, DX 166004 CAHIRCIVEEN or by email to: firstname.lastname@example.org.
57. A solicitor may not seek reports, engage witnesses or otherwise incur costs or expenses save as authorised on foot of a certificate or an amending certificate. The Board shall be responsible only for costs or expenses incurred where these have been approved in writing in advance.
58. Decisions by the Board to refuse applications for amendments to legal aid certificates shall be subject to the relevant review and appeal procedures contained and the Civil Legal Aid Regulations 1996 to 2017 (Regulation 12).
59. Retention of a barrister is not authorised under this scheme save for the PIA Review Legal Aid Service as defined in paragraph 20.
Where the solicitor is providing services under the PIA Review Legal Aid Service, he or she may deem it necessary, in limited circumstances, to engage a barrister to carry out some of the work. Where this is the case the Board will not be liable for Counsel’s fees unless the solicitor first seeks, and receives, authorisation from the Board to engage Counsel. The Board will only sanction Counsel where it considers that there are legal complexities that require the involvement of Counsel. Complex issues may arise where:
There is a Notice of Objection filed in which the Objecting Creditor raises legal issues which require the services of Counsel to be argued before the court; or
There are other exceptional circumstances involved and the solicitor has provided full details of the circumstances.
In each case, it will be necessary for the solicitor to set out clearly the reasons why Counsel is considered necessary and a decision will be taken on the application by the appropriate authorised officer. Such reasons should be set out in correspondence or by email to email@example.com or Legal Services, Legal Aid Board, Quay St, Cahirciveen, Co Kerry V23 RD36.
61. The barrister so engaged must be a member of the Board’s Barristers Panel and the fees that will be authorised to be paid will be the Board’s case fee for proceedings in the Circuit Court (or the High Court, as the case may be) as per the Board’s Terms and Conditions for the Retention of Counsel in PIA Review Proceedings. The solicitor is required to certify on the barrister’s claim form that the services provided are as claimed by the barrister.
62. It is a requirement that where a barrister is briefed, the solicitor satisfy him or herself that the barrister has the necessary experience and training to carry out the work in accordance with the requirements of the Scheme and also that the barrister is briefed in good time and provided with all information relevant to the applicant’s case in a timely manner. The solicitor remains responsible for the quality of the legal service and representation provided.
63. If the solicitor considers that the services of senior counsel are necessary, the Board will not be liable for any additional barrister’s fees unless the solicitor first seeks, and receives authorisation, from the Board to engage senior counsel. It will be necessary for the solicitor to set out clearly the reasons why senior counsel is considered necessary. Such reasons should be set out in correspondence or by email to firstname.lastname@example.org, Private Practitioner Service, Legal Aid Board, Quay St, Cahirciveen, Co Kerry V23 RD36. DX 166004 CAHIRCIVEEN
64. Solicitors operating under these Terms and Conditions are expected to act in a fiduciary manner in relation to all legally aided clients and to provide a service in keeping with the Guides to Professional Conduct that are issued from time to time by the Law Society of Ireland.
65. The Board is committed to the provision of a quality legal service to its clients and may from time to time provide solicitors on the Abhaile Solicitors Panel with guidelines on the approach to be adopted in dealing with matters within the ambit of this Scheme. The Board may issue Best Practice Guidelines in this regard. Solicitors on the Panel are expected to act in broad compliance with the Guidelines at all times.
66. A solicitor on the Panel shall provide the Board with any information relating to a person in receipt of legal services, which is required by the Board for the purpose of enabling the Board to discharge its functions under the Act. Such information shall be furnished within fourteen days of any such request. Solicitors shall retain files of persons for a period of six years from the date of completion of the services provided.
67. As part of its commitment to ensuring that its clients receive a quality service, the Board shall review/audit a number of files so as to satisfy itself that the solicitor on the Panel is providing an appropriate level of service. In the event that that review/audit identifies issues of concern in relation to the provision of a legal service, the Board may inspect any or all client files assigned to that solicitor. Notes must be kept on file in relation to all consultations and phone calls with clients and such notes must be clearly legible and should ideally be typed.
Section 31(4) of the Act provides that:
“ Where a person to whom the Board has decided to grant legal aid or advice has (a) accepted the nomination of a solicitor or selected a solicitor from the solicitors’ panel pursuant to subsection (1) or been granted the services of a solicitor pursuant to an application under subsection (3), or (b) accepted the nomination of a barrister pursuant to subsection (2) or been granted the services of a barrister pursuant to an application under subsection (3),the person may apply to the Board to have the services of that solicitor or barrister dispensed with and the services of another solicitor of the Board or 16 solicitor from the solicitors’ panel or, as may be appropriate, barrister from the barristers’ panel obtained in the matter and where the Board considers it reasonable in all the circumstances, it may consent to the application”.
If a client makes a complaint to a solicitor about his, her or their performance and it is not possible to address the complaint to the client’s satisfaction, the client should be requested to put the complaint in writing and the complaint should be forwarded to the Board. If the Board receives a complaint from a client or if the Board identifies a performance issue, a copy of the complaint or a note of the performance issue shall be forwarded to the solicitor for his/her/their observations. The Board shall consider the complaint / performance issue in accordance with its Information Leaflet entitled “Customer Care and Complaints Procedure”, and also in accordance with the terms and conditions contained herein, including the appendices attached hereto.
69. Exclusion/suspension/removal/withdrawal from Panel
The Board may suspend or remove a solicitor from the Panel if it considers that:
- the solicitor’s conduct when providing or when selected to provide legal services or his/her/their professional conduct generally render him, her or them unsuitable, in the opinion of the Board, to provide such services;
- the solicitor has failed to comply with these Terms and Conditions;
- the solicitor has not participated in the Scheme to a satisfactory level, including but not confined to his/her refusal on a regular basis to accept an eligible person as a client or to give a client appropriate legal advice or aid; or
- the solicitor has a medical condition that would render him or her unfit to provide the required service. The Board reserves the right to require medical evidence from a solicitor or to refer a solicitor to a medical practitioner in order to confirm their fitness in this respect.
- the solicitor has been assigned to attend as a duty solicitor at any particular court list and fails to do so or fails to contact the Board in due time in order to arrange a replacement from the duty solicitor rota.
70. If the Board decides to suspend or remove a solicitor from the Panel, the solicitor shall be notified in writing of the grounds for the decision. The solicitor may, within a period of one month from the date of such notification, appeal in writing the decision to the Director of Civil Legal Aid / Regional Manager of the Board, setting out the grounds of appeal in full. The Director of Civil Legal Aid / Regional Manager may restore the solicitor, if satisfied that a case for restoration to the Panel is made. Any appeal does not operate to delay or negate the suspension or removal of the solicitor from the Panel, unless the Director of Civil Legal Aid / Regional Manager determines otherwise.
71. Any solicitor who is suspended or removed from the Panel may also be suspended or removed, as the case may be, from any solicitors panel operated by the Board depending on the circumstances.
72. Solicitors who wish to withdraw from the Panel must inform the Board, in writing, of their intention to withdraw. Solicitors shall give one month’s notice of intention to withdraw from the Panel. Solicitors who withdraw from the Panel must complete all outstanding cases that have been referred to them unless the Board consents to the matter being returned to it or referred to another solicitor.
73. The Claim Form (at Appendix 2) shall be the document whereby the solicitor shall be entitled to claim the appropriate fee and any authorised outlay. Care should be taken in completing the Form, as incomplete or improperly completed claim forms will be returned without payment. Solicitors should be particularly careful to ensure that fees claimed are properly payable and that there is an entitlement on foot of the terms and conditions to each and every amount claimed.
74. A Claim Form must be accompanied by the following documentation:
a. Where services have been provided under the Solicitor Consultation Service, a copy of the voucher.
b. Where services have been provided under the Duty Solicitor Service, the Client Details Form
c. Where services have been provided under the PIA Review Legal Aid Service, a copy of the legal aid certificate.
75. The completed Claim Form, together with a copy of the signed voucher, Client Details Form, or Certificate, as the case may be, should be returned to the Board:
a. Where services have been provided under the Solicitor Consultation Service, after the advice consultation has occurred.
b. Where services have been provided under the Duty Solicitor Service, when the solicitor has ceased acting as Duty Solicitor for the period appointed.
c. Where services have been provided under the PIA Review Legal Aid Service, when the services specified in the certificate have been provided and the case has been determined to the point where a fee becomes payable.
76. A PIA Review Legal Aid Service case shall be deemed to have been determined to the point where a fee becomes payable where the Court makes an order, or refuses to make an order, as the case may be, under s115A(9) of the Personal Insolvency Act 2012 or in any appeal from a decision made under that subsection.
77. Persons being provided services under this Scheme must not be charged any fees and must not be asked to discharge any fees, expenses, costs or outlay, except in accordance with such specific instructions as may be issued in writing from time to time by the Board. If a legally aided person offers to pay additional money to a solicitor for additional services in their case the solicitor must refuse to accept any such additional money. Furthermore, persons being provided services must not be asked to sign undertakings to pay for additional services. The charging or accepting of additional fees, expenses, costs or outlay or the seeking of undertakings to pay for additional services shall be grounds for immediately removing a solicitor from the Panel.
78. There shall be a standard scale of fees (set out in Schedule 1) payable per case to solicitors on the Panel for the provision of services.
79. Solicitors on the Panel providing services under the PIA Review Legal Aid Service shall be responsible for the outlay of any necessary viaticum to secure the attendance of witnesses, but shall be entitled to a refund of any outlay authorised on foot of the certificate or amendment thereof. If it becomes necessary to pay a fee for professional services that has been authorised by the certificate or an amendment thereof, in advance of the determination of a case, an Interim Claim Form together with the original fee note may be submitted to the Board. The fee shall be paid by the Board directly to the relevant person or body and the solicitor will be advised when payment has been made.
80. The fee for the Solicitor Consultation Service and the Duty Solicitor Service is an “all inclusive” fee for providing services save for VAT. No outlay, expenses, or any other fee over and above the case fee, or duty solicitor daily or half daily rate, as may be applicable, shall be paid to solicitors providing services under the Solicitor Consultation Service or the Duty Solicitor Service.
81. Travel and subsistence expenses shall not be payable on foot of this Scheme. Solicitors must have regard to this provision when indicating the areas in which they are willing to provide services.
82. Nothing in these Terms and Conditions shall give rise to, or be construed as giving rise to, a relationship of employer and employee between the Board and any solicitor on the Panel.
|Fees for services Solicitors Panel -||Fee for solicitor|
Solicitor Consultation Service
Fee per consultation (including all follow up work and furnishing client file to duty solicitor where applicable
Additional fee where an authorisation to conduct negotiations with the lender has been issued (to include one additional consultation and follow up work)
Duty Solicitor Service
Half day fee
Full day fee
This fee is "all inclusive" and is irrespective of number of persons assisted. The solicitor is expected to be in the Court building one hour before the list is due to commence and remain there until matters have been disposed of
PIA Review Legal Aid Service
Case fee where the case goes to a full hearing:- to cover all work carried out by him or her in regard to the case to include as appropriate, consultations, preparatory work, settlement negotiations and/or court appearances incidental to and including the full hearing.
PIA Review Legal Aid Service
Case fee where the case goes to a full hearing and is related to a similar case (spouse / partner) involving the same PPR:- to cover all work carried out by him or her in regard to the second spouse/partner’s case to include as appropriate, consultations, preparatory work, settlement negotiations and/or court appearances incidental to and including the full hearing.
Case fee where no Notice of Objection is filed:-
to cover all work carried out by him or her in regard to the case to include as appropriate, consultations, preparatory work, settlement negotiations and/or court appearances.
PIA Review Legal Aid Service
Case fee where the case is related to a similar case (first spouse / partner) involving the same PPR and where no Notice of Objection is filed:- to cover all work carried out by him or her in regard to the second spouse/partner’s case to include as appropriate, consultations, preparatory work, and/or court appearances.
PIA REVIEW LEGAL AID SERVICE
The fees payable in relation to an appeal of a decision of the High Court or the Supreme Court shall be the same as the fees payable in the court of original jurisdiction.