The provision for payment of an applicant’s legal costs and outlays associated with an application to a redress scheme is always an important aspect of any scheme and often is critical to the success of the scheme.
In the absence of being able to access proper legal representation many applicants will not be able to navigate the application process and claim redress and this in turn can lead to applicants instead bringing their claims in the more traditional and costly way, by litigation.
In Northern Ireland this matter is addressed in Section 19(2) to (4) of the Historical Institutional Abuse (Northern Ireland) Act, 2019 (the 2019 Act) which provides for the creation of rules to provide for the assessment and payment of the costs incurred in connection with legal advice and assistance and for the reimbursement of other costs or expenses associated with an application to the Northern Ireland Redress Board (NIRB).
There is further provision made in Rules 14,15, 16 ,17 & 18 of the Historical Institutional Abuse Redress Board (Applications and Appeals) Rules (Northern Ireland) 2020 (the 2020 Rules).
Under Rules 14 & 15 a solicitor who is acting for an applicant for compensation under the 2019 Act may make an application to the NIRB to recover the costs of providing that legal advice and assistance. This application must be in writing and set out in the Expenses Claim Form which has been drawn up by the NIRB.
In general, the assessment and consideration of costs and expenses incurred (including legal costs) will be undertaken by a panel appointed by the President of the NIRB as part of the final determination of an application for compensation.
As previous blogs have made clear, applications for compensation to the NIRB will be determined either ‘on the papers’ however, there is provision to have an oral hearing. It is expected that the majority of applications for compensation will be determined on the papers although section 9(3)(b) of the 2019 Act states that a Panel may direct an oral hearing in respect of an application if there are “exceptional circumstances” which make it necessary to do so in the interests of justice. What constitutes “exceptional circumstances” for the purpose of an application proceeding to an oral hearing has not been defined but this will no doubt emerge in due course as the NIRB goes about its work.
The legal costs payable to solicitors and counsel have been decided on the basis of how the application proceeds, there being one set of costs payable to solicitors only if the application is determined “on the papers” and a different set of costs payable to solicitors and counsel where the application has been determined by way of an oral hearing.
Where an application has been finally determined “on the papers” the following fees will be payable to the solicitor:
|Compensation award||Costs for solicitor|
|Above £10,000 but no more than £15,000||£383|
|Above £15,000 but no more than £20,000||£453|
|Above £20,000 but no more than £25,000||£513|
|Above £25,000 but no more than £30,000||£583|
|Above £30,000 but no more than £55,000||£729|
Where an application for compensation has been finally determined by an oral hearing/hearings the following fees will be payable to the solicitor and counsel:
|Compensation award||Costs for solicitor||Costs for counsel|
|Above £10,000 but no more than £12,500||£2,709||£659|
|Above £12,500 but no more than £15,000||£2,955||£740|
|Above £15,000 but no more than £20,000||£3,992||£867|
|Above £20,000 but no more than £25,000||£4,381||£982|
|Above £25,000 but no more than £30,000||£4,833||£1,092|
|Above £30,000 but no more than £55,000||£5,800||£1,311|
Where an application for compensation either “on the papers” is unsuccessful the rules provide that the Solicitor will be paid a fixed cost of £150 unless the Panel determines that the application for compensation was wholly without merit.
Where an application for compensation, which involved one or more oral hearings, is unsuccessful, it will be for the Panel under the rules to determine what cost should be paid to the applicant’s solicitor, and counsel, if instructed but it must not exceed the amount that would be payable if the applicant had been awarded compensation of £10,000
An application for compensation under section12(2)(c) of the 2019 Act, in respect of the Child Migrant Programme is to be made “on the papers” and if successful may lead to an award of £20,000, solicitors acting for applicants for compensation in respect of these application will be paid a fixed cost of £150.
In addition to solicitors’ and counsels’ fees, the NIRB has also indicated that it will pay no more than £500 in respect of a medical report from a consultant psychiatrist and/or a psychologist.
It is not anticipated that medical experts will be needed to attend oral hearings but if they do their fees have been measured as follows:
|Medical Consultant||General Practitioner|
|Morning, or part thereof||£203.50||£165.00|
|Morning and Afternoon or part thereof||£297.00||£253.00|
When one considers the significant costs that can be incurred by a claimant in bringing litigation in this area, the legal costs associated with applications before the NIRB are modest and one hopes enables the monies that have been ring fenced for this purpose to be paid out in compensation to the applicants.
Louise Roden, Solicitor, BLM