Paul Behan on the Unshockable Role of a Legal Costs Adjudicator
Paul Behan, who recently retired as Ireland’s first chief legal costs adjudicator, shares his insights into the role of a legal costs adjudicator. Behan emphasizes the necessity of being “unshockable” when deciding disputes about bills for legal costs, a principle he honed over his 50-year career in legal costs.
The Unshockable Mindset
Behan discusses the importance of remaining impartial when reviewing legal costs bills. He explains, “Part of the CV here is to be unshockable because you can’t have any element of predetermination about what you are going to find when you read the documents.” Behan admits to moments of initial surprise, but he always seeks a deeper understanding. “I have looked at things and said, ‘My God,’ but then I have come out of there after a day [and think], ‘Oh, now I see why.'”
Despite his extensive experience, Behan admits to occasional puzzlement. “I have sometimes not seen why,” he says. “Some deductions will be apparent from where I have said that’s not on, not fair or reasonable, it wasn’t earned.”
Spotting Misrepresented Work
Behan provides an illustrative example from his career. In one case, he uncovered discrepancies in the reporting of a legal executive’s work. “Work done by a legal executive in one case was portrayed as ‘accomplished legal work’ when it was not. If the fact-finding exercise was not part of the job, you would never find that.”
A Career Transition
Behan’s career path is noteworthy. He worked as a legal costs accountant for 35 years before transitioning to become a High Court taxing master in 2014. He was appointed the chief legal costs adjudicator in 2019. Notably, Behan has a law degree but has never been a solicitor or barrister, positioning him as an “outsider” within the legal profession.
Tackling Legal Cost Disputes
In 2023, the adjudication office had about 1,100 adjudications totaling €210 million, a 12% increase from 2022. While many disputes were resolved through mediation or adjourned, 181 cases involving €22.8 million were heard, resulting in a reduction to €13 million.
Behan prefers to describe legal costs as “high” rather than “excessive” or “inflated,” uses he finds less confrontational. “They are emotive words implying somebody is out for a grab; that is not my experience.”
Key Judgments
One notable case involved a Supreme Court appeal where a claim of €397,000 was reduced to €75,000. Behan clarifies, “The Supreme Court limited the entitlement so what appears to be a grab was not. Our job is to make sure that what was awarded by the court is not exceeded or smuggled in to a later claim.”
Another high-profile case saw a bill for €39,176 cut to €30,399, and a €821,923 claim reduced to €415,396, demonstrating the substantial savings potential.
The Role of Detailed Review
Behan emphasizes the thorough nature of the adjudicators’ review process. One of his determinations ran to 440 pages. “That is the detail the public does not see. That is our fact-finding role: we see how many motions, how many appearances before the court, how many things are captured by the order, how many are not.”
Vetting Legal Costs
Behan explains that legal costs can arise in two forms: litigation-based costs, directed by court order, and contractual costs from solicitor-client disputes. Bills must include a detailed breakdown of all services and costs to ensure transparency and accuracy.
The adjudicators have broad powers, including examining whether work was outsourced or done in-house. This assessment can significantly impact cost determinations, given the wide range of solicitors’ hourly rates, typically between €150 and €500.
Adjusting to Changing Standards
Behan notes the impact of recent reforms on the number of smaller personal injury claims coming before the adjudicators, which has dropped appreciably since the 2021 personal injury guidelines. Additionally, he observes an increase in judicial reviews, particularly in planning and asylum cases.
The Role of Mediation and Settlement
Behan mentions that many disputes are settled out of court through mediation or agreement. However, he underscores the importance of maintaining an objective, fair process to ensure that both parties are treated equitably.
The Future of Legal Costs
Behan provided evidence to the civil justice review group, which made over 90 recommendations to reduce costs and improve efficiencies. However, he is critical of the idea of introducing a scale of legal costs, believing it creates artificial ceilings and floors.
“They become the ceiling which the following week is the floor,” he explains. “There have been numerous attempts in England and other jurisdictions to have scales for costs which have been abandoned. I think our system is fairer because the defendant has every right to dispute every element of the legal costs.”
A Final Reflection
Throughout his career, Behan has maintained an unwavering commitment to fairness and impartiality in legal cost adjudication. His insights offer valuable perspectives on the complex and sometimes contentious world of legal costs.
Conclusion
Paul Behan’s career as a legal costs adjudicator brings a wealth of experience and insight to the complex and often contentious issue of legal costs. His dedication to impartiality and fairness has made him a respected figure in the legal community.
As the role of legal costs adjudicators continues to evolve, Behan’s legacy will undoubtedly shape future practices and decisions in the realm of legal costs.
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