‘Big firms want to brief somebody who will charge a fortune so that they can justify charging a fortune’
Murphy, who has addressed the Chief State Solicitor’s Office about the MLO, says active pursuit of the policy is about law operating as “a powerful weapon” in the pursuit of fairness.
Given the multiplicity of State agencies, an alternative dispute resolution mechanism should be established to deal with disputes between different emanations of the State, she says. “That should have been done years ago.” Such strategies often mean that those who can afford to pursue the State through the courts will get an outcome while the ordinary citizen will lose out, she says. She declines to comment on the strategy of several governments in seeking to minimise the State’s liability in litigation over illegal nursing home charges imposed on some medical card holders.
The MLO is a policy approach, meaning there is no entitlement to sue over breach of it, but it could be a factor for the courts when making decisions on costs issues, she says. There are some “ambulance chasers” but the way to deal with them is to “call them out at the beginning”, she says. “The response of the agency being challenged is very important. If they engage at the beginning the matter might never go to court at all.”
During a visit to Ireland some years ago, a former Australian high court judge, Justice Michael Kirby, referred to law as “a moral profession”, she recalls. Kirby came to that view as a young solicitor representing an Aboriginal activist convicted of public order offences after opposing a cinema’s discriminatory seating policy.
“Each of them had real access to barristers. I was blessed because there were solicitors who were prepared to take on cases that weren’t popular and that would hold power to account.” The dominance of a small number of huge law firms, and an influx of big firms from abroad, “is changing the face of our legal system”.The big firms are “hoovering up the talent” from university level onwards, she says. “They all have their pro-bono sections, but none of them are actually in the business of representing the ordinary citizen. All of that affects access to justice and law as a moral profession. There are still some notable exceptions but they are exceptions.
The Prosecution of Offences Act 1974 setting up the office of the Director of Public Prosecutions set out principles for briefing barristers for prosecution work, she notes. As a barrister, after Murphy raised issues about how prosecutors were appointed around the country, the opaque manner of appointment was altered and prosecution jobs were advertised.
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