Official Report: Minutes of Evidence

The Chairperson (Mr Frew): I welcome the Rt Hon Dame Siobhan Keegan, the Lady Chief Justice, to the meeting. Thank you very much to you and to Master Joe Moore, the taxing master, for being here today; for hosting the evidence session in this building; and for allowing us to get out of Stormont and into what is your world. It is very good to be here. Without further ado, I invite you to make an opening statement on the taxation system.

Rt Hon Dame Siobhan Keegan (Lady Chief Justice): Chair, thank you very much for the welcome. I am delighted that you are here. I understand that the Justice Committee came to this building in 2015. It is brilliant to see the Committee in the Royal Courts of Justice. I know some of you, because I gave evidence in 2024, but there are also some new members of the Committee. I am really happy to assist you as best I can on the two issues at hand. I am joined by Master Moore, the taxing master. I cannot comment on policy or anything that is politically controversial, but I hope that I can help a little. I am certainly willing to take questions on the issue of taxation. I will deal with what, I think, is a bit of mystique around taxation: what it means, how it has been a part of the justice system and where the authority to have a taxing master comes from. Then, I will say a little bit about where we are with it, as I know that there are proposals in the Justice Bill — at clause 28 — to look at taxation. I hope that Committee members have the letter of 24 April 2025 that I sent. I understand that it is a little bit complicated, with the recitation of bits of law and statutes that deal with taxation. I will try to summarise that in a comprehensible way.

The context of the discussion on taxation, as I understand it, is that the Department of Justice is proposing a number of changes to current procedures, which have been in place for a long time in our jurisdiction. To start with, the taxing master is a judicial appointment. That appointment is carried out under the auspices of the Northern Ireland Judicial Appointments Commission, which uses criteria that are tailored for the role. The role is for someone who can deal with costs, to put it at its most basic. As you may have seen, Master Moore was appointed in September 2024. The criteria for that role are that you have been a solicitor or barrister of 10 years' standing and have an understanding of costs. Master Moore was a solicitor in private practice, who practised in the area that he now deals with. He had to deal with costs as a solicitor. He tells me that he also taught the subject at the institute. He got the job, so he was obviously qualified to take on the role.

Why do we have a taxing master? It is a rather archaic title, which can cause quizzical looks. It is important to frame this conversation with what our law says. The main statute that governs how our senior courts operate is the Judicature (Northern Ireland) Act 1978, which, at section 59, provides:

the superior courts —

Section 60 of the 1978 Act vests the jurisdiction in the taxing master. That discretion in relation to costs, however, must be exercised in accordance with rules. Order 62 of the Rules of the Supreme Court sets out the parameters for that, dealing with civil costs in particular. That is the law, which, as I said, we have had for a long time.

The taxing master does not work alone: he is part of an infrastructure that is called the taxing office. There is a very good information page online on how the Court of Judicature of Northern Ireland taxing office works. If you go online, you can see that. I did so today, just to have a look at what information you or a member of the public could glean about the taxing office. The taxing office is based here in the Royal Courts of Justice. There is an administration team, and the taxing master has the judicial role. As I said, the judicial role is about costs. What is it? It is a role where the taxing master is responsible for assessing and certifying legal costs in a range of cases. He actually has an important role for the public, because, if a member of the public disputes a legal bill with their lawyers, the taxing master can step in to make sure that the lawyers have not wrongly charged them. However, the Committee's focus is probably on his role in looking at bills where the money is coming from legal aid — public money. That is a big part of the work: if I am right, about 70% of the bills are in that area. That is what I will call "legal aid bills". I put in my letter all the different statutes. I do not need to go over that. You can take it that they cover a range. We are in the civil world. We are in solicitor-client costs — the taxing master can deal with disputes on that. Then, we are in this other world of what solicitors and barristers charge that comes out of legal aid. The master can look at that, and that is really the issue here. It spans civil and criminal work because of the provision of legal aid across those divides. Volume can vary, but, as I said in my letter, we normally audit it at about 1,000 to 1,100 cases each year. The total number varies. We do not see particular spikes, but it can vary a little. It is about 75% legal aid.

A significant part of legally aided work emanates from legal orders. If somebody is legally aided in the court, they have to get what is called an order for taxation. Again, that sounds a bit archaic, but, if you have a legal aid certificate, you ask for an order for taxation, which starts the whole process. Members of the public need legal aid. In my view, it is a strength of our civil and criminal law that people can have an entitlement to the best lawyers through public funding. If someone has legal aid, a court makes an order for legal aid taxation. However, that is not the end of the matter, because there is a check to make sure that the lawyers are asking that legal aid pays a proportionate and proper sum for the work that they do. The other check to mention — this is self-evident, but it is important to articulate — is that the taxing master, as we all do, has a duty to the fund. It is public money: the taxing master is well aware of that, and, as a judge, I am well aware of that when I hear cases. That means that there is an independent judicial office holder who looks at bills.

There are different stages in the system of checking bills. Some bills that come in are wrong because the legal aid certificate does not cover the period claimed. That is easy: administration staff will send those back. Some bills that come in are unsupported by evidence — by that, I mean, broadly, that the office is not satisfied that there is enough evidence to vouch for the bill. Those are not particularly difficult either: they are sent back and not processed.

The area that is attracting attention is where the master looks at the level of claim, which is another of his obligations. That is the judicial scrutiny: I am very clear on that. If he wants further information, the taxing master has powers to direct that he hears from people, if he wishes. He can look at a variety of things. Let me highlight just a few of the salient issues that the master is looking for. The first issue is whether the hourly rates claimed are applicable. I will come back to that in a minute, because I know that the Department has raised a few issues about it. The master will look at whether the work claimed is covered and whether two counsel are covered. There can be one-counsel certificates and not two-counsel certificates, or, sometimes, the authorisation for senior counsel comes in later. The master can check that. The master also checks whether the number of hours marked are proportionate and properly claimed in a case; whether the costs claimed are reasonable in the overall context; and whether the complexity and seriousness of the case merits an uplift. Without going into too much detail on that, solicitors can claim uplifts for complex cases — there is provision for that in the rules — but they have to justify it. The master can look at all that, under order 62.

It is very much an iterative process. I am sure that the master will agree that a lot of the cases are at levels and in areas that are not particularly complicated, but there are other cases that are. The taxing master has to keep a very close eye on the bigger cases, and he does. He can ask to see more papers, as I said. He can ask to see people — solicitor and counsel — if he wishes. I do not think that I can shy away from this: at the sharp edge, if he thinks that an inappropriate level of fees has been set, he can send the matter to the professional bodies here — the Law Society or the Bar Council.

That is the broad picture. It probably does a disservice to what Master Moore and his staff do. Master Moore is new in the job, but, as I said, he comes with experience in this area. As you can imagine — this applies across the board in these types of complicated issues — he has really dedicated staff who know the territory. They do great work on it in this building.

The solicitors' hourly rate is mentioned in the Department's thinking. It is the master who sets that rate; he is authorised by law to do so. The rate increased recently, in April 2025. That increase did not emerge from nowhere. A working group on the solicitors' hourly rate was set up, chaired by a High Court judge, Mr Justice McAlinden. As you will understand, a working group needs representation from all areas. As I understand it, there were about 20-odd people in the group, including not just the Bar and solicitors but defence practitioners, plaintiff practitioners and the Legal Services Commission and the Department. The Department was sighted on the work and was part and parcel of the group. The work was evidence based. Evidence came from an expert report from BDO and was shared among everybody, and then the master had to look at what the right increase should be. It was as clear as day that there had to be an increase in the rate, because there had not been an increase for 11 years. The lesson in that is that there is a danger in letting these things slip for long periods rather than having inflationary increases on a staged basis. That is why I think that it looks more acute than it really is. The rate obviously had to go up. The experts supported that, and the master settled on the figure.

The same goes for the interlocutory fees. Those were also mentioned by the Department. Interlocutory fees are fees for things such as the applications that come to court, the affidavits that you file, the responses that you file and the skeleton arguments, which, in the current world, where we use written advocacy a lot more, are really important. We had to look at those fees — they had not been looked at for 11 years — and they also went up. I suggest that, as a matter of common sense, that had to happen on an inflationary analysis. The working group made recommendations, and all those have been implemented. The process was transparent. It was all mapped across the various people who would be affected, as I said. It was also published: the master put out a very informative note on the Judiciary NI website, saying where it all came from and what happened.

That is where we are. I have given a broad-brush account of what the master does here. I have, I hope, tapped into the two issues that have changed the landscape a bit. The costs have gone up on those two platforms: the hourly rate and the interlocutory fee. I know that, to start with, the Department had a different approach to clause 28 on taxation, which it has now revised. As I said, I will not get into policy, but I totally understand that you might want to tease out where the role comes from, what it means and its utility. If Master Moore or I can answer anything, we will be happy to do so.

The Chairperson (Mr Frew): Thank you very much, Lady Chief Justice, for that presentation. Master Moore, I am aware that we are talking about you, while you sit there quietly. [Laughter.]

Do you wish to speak, or are you happy enough to go straight into questions?

Master Joe Moore (Judiciary NI): There may be an air of mystery about the role of the taxing master. A nice, simple description of it is that I am the equivalent of a cost judge. There are perhaps 100 cost judges in England and Wales, who undertake exactly the role that I undertake. There is a legal cost adjudicator in the Republic of Ireland, who used to be called a taxing master. I am the only one with that remaining title. Essentially, the taxing master is a cost judge, and it is obviously an important function.

I will supplement what the Lady Chief Justice has said. Before a case gets to me, there are a number of stages, particularly in cases that are publicly funded. The first stage is that the Legal Services Agency will have looked at the case and authorised certain steps to be taken by solicitors, barristers and, also, experts. It is not just lawyers who are involved in legal-aided cases. There is quite a bit of expenditure on experts: for example, in a family case, you may have psychologists or expert witnesses. Any work being done by a participant, as a representative, will already have been approved by the Legal Services Agency. It will have granted a certificate that allows a solicitor, and perhaps a barrister or two barristers, to take certain steps. That is the first stage. The second stage is that a judge will have looked at the case and decided that an order needs to be made for taxation. Then, the case comes to the taxing office.

It is a robust process. The bills are carefully checked by a team that goes through the whole process. The representatives have to itemise what work they do. They have to put in a reporting case. I am interested in what work they have done and what they should be reasonably paid for it. When it comes to me to assess it, that, in layperson's terms, is essentially what I ask: has the work been done reasonably, and what are the reasonable costs of that work? I am very mindful that, in a publicly funded case, I am there to protect the legal aid fund and to ask robust questions of everyone who is looking to be paid.

I have been in the role for 18 months, but I was a solicitor for 30 years. I ran a big law firm as a managing partner, and costs were a fundamental part of that role, so I came to this role knowing exactly how those cases should be costed — knowing what is a reasonable cost and what is not. Eighteen months into the role, I have looked at probably 1,500 cases across the spectrum of legal-aided work. I am happy to take any questions that you have on the role. It would not be appropriate to speak about individual cases or taxation reform, but, if the Committee has any other specific questions, I will be more than happy to assist you where I can.

The Chairperson (Mr Frew): Thank you very much for that. We will try to chart a course that avoids policy, where we can. Our world is all policy, however, so that might be hard.

Rt Hon Dame Siobhan Keegan: We understand.

The Chairperson (Mr Frew): You do, of course, reserve the right to tell us to back off, stop or not ask a particular question.

At the start of the presentation, Lady Chief Justice, you talked about the basis for this in law. You talked about the 1978 Act. Do you know what went on before 1978? Has taxation always been a thing?

Rt Hon Dame Siobhan Keegan: I do not know the answer to that off the top of my head; you are going back a long way. I was born in the '70s, so I am having difficulty with that. There would have been some other process, I imagine, but the Judicature Act settled the current landscape. I will not guess an answer.

The Chairperson (Mr Frew): No problem. That is just a quirky thing that I had in my head about the law and the intrigue around it.

It is clear that the taxing master has independence, but there is also the rub about public money and the Department. What do the clauses that we are looking at mean, practically, for manpower — workforce may be a better word — in the office of the taxing master? Practically speaking, does that mean that the workforce would have to transfer from the taxing master's office to the Department? How would the Department cope if there were not that transfer of workforce?

Rt Hon Dame Siobhan Keegan: Do you mean in taxation reform?

The Chairperson (Mr Frew): No, in assessing bills.

Rt Hon Dame Siobhan Keegan: Well, somebody has to assess the bills. I do not perceive that the Department is suggesting that the taxing master would be redundant in that work; I could be wrong about that. I think that the latest proposal boils down to the Department wanting to set the rate. I suggest that there would still have to be somebody independent who has oversight of the content of the claims, working on the basis on which we explained the taxing master operates currently.

The Chairperson (Mr Frew): I may be wrong, but I thought that, basically, clause 28 moves that function of assessing the itemised bills to the Department and that the new section that the Minister is talking about inserting through the amendment would give the vires to set the rate, which was changed this year.

Rt Hon Dame Siobhan Keegan: I think that you are right about clause 28 as it originally stood, which would mean passing that work to a different organisation, but the work would still have to be done. The profession will certainly have a perspective on who assesses the bills. The potential move from having an independent office holder to bills being assessed in the Department was the primary issue. The amendment — the secondary aspect — concerned the hourly rate. The work still has to be done. I suggest that that approach will not save money given the audit of any bills that needs to be undertaken.

The Chairperson (Mr Frew): Yes. This is a question for the Department, but I want to know how the Department will obtain the expertise of an office that has been in operation since 1978. If that is exactly what the clause does, how will it transfer that expertise?

Rt Hon Dame Siobhan Keegan: That is for the Department to answer.

The Chairperson (Mr Frew): Yes, of course.

Mr Kingston: Thank you, Lady Chief Justice and taxing master. I appreciate your attendance at the Committee meeting. It is a pleasure to be at the Royal Courts of Justice. This is my first time here, and I noticed the similarity of the architecture downstairs to the architecture in Parliament Buildings, where the courts were once planned to be located. Thank you for your assistance.

When reading and trying to understand the wording of clause 28, which amends the 1978 Act, I find that there is better assistance in the notes with which we have been provided.

My understanding of it is that the Department seeks to take on the role of setting the rate for solicitors and, if possible, barristers but that the taxing master's role will still involve assessing claims and determining that they are appropriate and in keeping with all the guidelines. My reading of it is that it is just about the rate at which payment will be made. You have confirmed that that is your reading of it.

Rt Hon Dame Siobhan Keegan: It started out with a different focus, which caused the Chair's question, but it has drilled down into what you said.

Mr Kingston: Another point is about the Bill's precluding the High Court and the Court of Appeal from making a judgement on taxation. I am not sure what that means. Are there situations in which a barrister or solicitor asks for your judgement or ruling — whatever the correct term is — that would challenge that? I am trying to understand the bit about the High Court and the Court of Appeal not having a role.

Rt Hon Dame Siobhan Keegan: That is something different. That is about the judges who hear cases not giving an order for taxation, I think.

Mr Kingston: Right.

Rt Hon Dame Siobhan Keegan: It is a difficult scenario when somebody who is legal aided does not get an order for taxation. There is some discretion in the courts on that, but, by and large, as you will understand, if you have the benefit of a legal aid certificate, you get one, save exceptional circumstances. In criminal cases in the Court of Appeal, if you do not have leave, the court may not grant legal aid on a renewed application for leave; that is where I come across it. Having looked at the matter a number of years ago, I will say that, in other cases, if you are legal aided, you get a taxation order. I am not sure how that would operate in practice if that element of judicial oversight were removed, but that is a policy world that I do not want to tread too much further into, because I am not sure what alternative is being proposed on behalf of the Department.

Mr Kingston: Given what you said about an order for taxation and the entitlement to legal aid, I realise, from what you are saying now, that that is what that point refers to.

Rt Hon Dame Siobhan Keegan: It does, I think, yes.

Mr Kingston: Just to clarify, who issues the order for taxation?

Rt Hon Dame Siobhan Keegan: It is a court order.

Mr Kingston: It is a court order but not an order of the High Court or the Court of Appeal.

Rt Hon Dame Siobhan Keegan: No: it is an order of the High Court or the Court of Appeal. If you are legal aided, you will have an order for taxation, which means that you can submit your costs to the Legal Services Commission, and, ultimately, the costs will get to the taxing office.

Mr Kingston: OK. I will seek more clarification. Maybe there are certain criteria — I will read into it more — but it is the court that makes the order.

Rt Hon Dame Siobhan Keegan: Yes.

Master Moore: May I assist you with that? I can assess costs only if another court has made the order. I can make the assessment only if, at the conclusion or at some other stage of the case, the judge has said, "I have listened to this point, and I give an order for the costs". If a judge does not give that order, I have no jurisdiction to assess the costs.

Mr Kingston: Is it primarily means-based?

Master Moore: No. The judge has no role in that. I said that there were three stages before it gets to me. In the majority of cases, the determination on whether someone has an entitlement to be legal aided is decided by the Legal Services Agency at the start, except in some criminal appeal cases.

Mr Kingston: OK. I have one last question just to clarify whether the increase in April last year that you mentioned was the 52% increase.

Rt Hon Dame Siobhan Keegan: It is 53%, I think; maybe 52% was said.

Mr Kingston: That was the first increase in 11 years.

Rt Hon Dame Siobhan Keegan: That is right.

Mr Kingston: OK. Thank you.

Ms Sheerin: Thank you both for coming — well, we have come to you. What engagement have you had with the Department on the matter? Do you feel that there is scope for mediation? Has that been discussed? Could that be a way of dealing with it?

Rt Hon Dame Siobhan Keegan: I have a good relationship with the Department in that it is transparent about what it is proposing. In this circumstance, I thought that the best thing to do was to ask the Department to engage directly with the master. I know that the Department did that, and the master can tell you what shape that took.

Master Moore: I will go back a step. The Department was involved in the working group that fed into the hourly rate being changed and a practice direction being issued on interlocutory fees. Departmental representatives were in attendance. I had a number of meetings with them. They were probably just introductory meetings, because I was new in post. The most recent proposal as to how the legislation might change is, I understand, a move away from removing taxation to setting legal aid rates for work in the High Court. I had a meeting with the Department, at its request, at the beginning of November, and that is when the Department indicated to me that it had decided to do that instead of taxation. That is my impression.

The Chairperson (Mr Frew): I will interject there. That is really important. The Department will basically amend what is in the blue pages of the Justice Bill in clause 28. It will not insert an amendment in addition to clause 28; it will amend clause 28. Is that your understanding?

Master Moore: Again, I have to be careful about discussing policy —

The Chairperson (Mr Frew): Yes, of course.

Master Moore: — and decisions that need to be taken by the Assembly. I have no real comment to make on that. However, when it comes to the Department giving me the information about what it intends to do, I understood that it was proposing to put to the Assembly a change that would introduce hourly rates determined by the Department for cases that are funded by legal aid. Obviously, I deal with a lot of other cases that have no legal aid involvement. The exact same process applies in those non-legal-aided cases when it comes to how I assess the costs.

The Chairperson (Mr Frew): I will tell you my understanding — or misunderstanding — of the situation. When I have spoken to the Minister about it, I have never had the impression that she was going to change clause 28 but, rather, that she was going to add a new amendment to take the vires of setting the hourly rate.

Rt Hon Dame Siobhan Keegan: I am not sure that we can really say much more except that we have been open to the conversation. The Department has been open with us. We cannot really say what that will translate into by way of amendment or otherwise of clause 28. We are open to any further discussion on that with the Department; we always have been.

Ms Sheerin: We have not had sight of that.

The Chairperson (Mr Frew): We are still waiting for that.

Rt Hon Dame Siobhan Keegan: The Department was before the Committee in November. This is quite a fast-moving area, so it may be that it is premature to give any firm steer about where the Department is or is not, because all this has been evolving just over the past number of months. The answer to your question is that there will be ongoing dialogue. We can assist from a point of expertise, because we have the taxing office here and the taxing master. Bear in mind that we are not able to advance the competing arguments. The profession will have a view on the matter, as will the Department and others, but when it comes to the role of the taxing master in all of it, yes, we will engage further as we are asked to. It is relatively recent, and that is possibly why the Committee is in this grey area, if I may describe it in that way, when it comes to how exactly the issue will be firmed up. Hopefully that helps.

The Chairperson (Mr Frew): That is very helpful.

Mr McGlone: Thank you for inviting us here today. It is great to be in such lovely surroundings. Please just treat me as a clean sheet, because this is an area that I know very little about. Talk me through the process. I have read there that there could be about 1,000 to 1,100 cases per annum. How many staff members in the office are involved in sifting or auditing those? Of those staff, how many are qualified to do that type of auditing of costs? That is also important.

There is something else that has been niggling at the back of my mind, so I need to get it out. Does every individual determination or adjudication of cost have to be done by you, Mr Moore? My reason for asking that is that you are obviously a man with extensive legal experience, and you have worked in a large legal firm. Over that time, you would have had numerous solicitors and barristers through your hands. What happens when you come across someone and think, "There is your man. He and I are best buddies", or "He and I worked collectively on a good case a while back"? Give me an idea of what happens there, because part of the emphasis throughout the issue is the impartiality of your office. As I see it, the Department is trying to come in, take over, maybe throw you the wee buns as in England and Wales with the £2,500 limit, keep you at that level and hand everything over to the Department for control. Will you talk me through that, please, and advise how the process works?

Master Moore: There is a fair bit to unpick in that question.

Mr McGlone: I am sure that you are well up for it.

Master Moore: That is, in effect, one of the interview questions from when I got appointed. During my 30 years of practice, will I have come into contact with lots of people whose bills I now assess? Yes. Northern Ireland is a small jurisdiction. You might be better asking the solicitors in the Bar for their impression of me, but I can assure you that I am not in the slightest bit shy about taxing off costs where I think that they are unreasonable, regardless of who is before me. I take the role very seriously. Before I was appointed, I was a deputy county court judge. Again, in a small jurisdiction, you have to make difficult decisions. I have to apply two things to my approach. One is fairness — trying to be fair to people — and then the law sets out what factors I have to take into account. Whether it is a small bill or a big bill, the same approach is taken. Yes, there are 1,000 cases, on average, coming through. There are four members of staff working with me, and I am probably fortunate to have four really experienced members of staff who have been there for 20 years. I think that I am the fourth taxing master for whom they have all worked. I am fortunate, because I came into a team of staff who are really familiar with the role and take their job seriously. They are like mini accountants. If you have ever dealt with accountants, you will know that they are prepared to ask difficult questions, and they absolutely do, so when the bill comes to me, it is ready to be assessed. Among those 1,000 bills, some can be assessed in 15 or 20 minutes. Others are more significant, because they have been through a long legal process and many hearings, and they could take me a day. I regularly bring in the lawyers to ask them about the work that they have done. If I think that the information that they have given me is light on the extent of the work, I am not in the slightest bit shy about demanding more information about the work and getting it broken down properly.

Mr McGlone: Yes, I am getting to that point because the nub of the issue is impartiality. I am not in any way questioning your ability to do that. However, if a circumstance came up where, for example, a member of your family who is a solicitor popped up in front of you for adjudication or determination, is there a process whereby that case is set aside, and somebody else has to make that determination?

Master Moore: Yes, there are eight deputy masters who could all, in theory, step in to tax a bill. In theory, a judge could tax a bill. In one or two cases, my previous law firm had to come before the taxing office. I certainly did not hear or have any involvement in those cases. That would be the same for any other judge who was familiar with the background to a case. They would have to step aside.

Mr McGlone: All that I am doing here is getting you to clarify the impartiality of the office.

Can you elucidate what the DOJ has told you about its motivation in this? Has it said anything other than that it is just about keeping the books right?

Rt Hon Dame Siobhan Keegan: I am not sure that we should comment on that.

Mr McGlone: That is OK. All I am asking is whether the Department gave some clarification on why that is a motivating factor. That is all. I am just asking whether it said that to you. I am not asking for the policy reasons. I am trying to get to the pragmatic aspect of it.

Rt Hon Dame Siobhan Keegan: The Department has not said that to me. I do not know whether there is anything that we can really add to that.

Mr McGlone: That is grand. It is OK. Thanks very much.

The Chairperson (Mr Frew): Patsy, in any conversations that we have had with the Minister, one of the issues has been the £7 million in regard to the uplift in fees that, she said, she could not or did not account for at the end of the year. Of course, as the Lady Chief Justice said, there was a process with a working group for many months on the lack of an increase over the years.

Ms Ferguson: Thank you very much for coming along. It is really good that you are here. I have requested a few times your attendance at a Committee meeting so that we get further clarity on exactly what your role is, the size of the team and the independence that exists. We all know that we have got here through the audit. It is about the Department's accounting officer having that level of responsibility. I am a bit confused at the minute, because it is quite difficult to make decisions on the proposal when you do not know what the replacement system will be.

There are two areas on which I would like clarity from you. First, you had a substantial working group on solicitors' fees, and a process was worked through. How do barristers' fees compare? Is there a range in order for you and the eight other taxing masters to assess bills? How does the current fee structure for barristers work?

You may not be able to answer my question on the second area. As time goes on, the profession will generally know the scale of work that is involved. From speaking to barristers and solicitors, I know that the scale has changed dramatically over the years. How would the Department ensure that, like you, it is abreast of all that knowledge? I am bit confused about the taxing master's future role if the change comes into effect. Those are the two areas.

Rt Hon Dame Siobhan Keegan: On the first area, the issue of an hourly rate is nothing new to solicitors. Solicitors always work on an hourly rate; their work is time-based. However, it would be new for barristers. In that area, barristers have what is called a "brief fee". That is a fee to cover the work, but it does not break it down in the same way, so working on an hourly rate would be a change for them. I say that by way of explanation of legal-aided barristers. Barristers who work for, say, Departments are paid an hourly rate. There are rates there for departmental solicitors or Crown solicitors who are briefing or departmental barristers who are briefed. It is not alien, therefore, but, in legal aid, barristers have set fees by way of a brief fee that the master then looks at. I think that I am right in saying that the master will ask barristers, "How long did you work on that?" to provide some reassurance or by way of an audit.

I am not going to make a case either way, because I am not a professional, as you can understand. The Bar may have a strong view that that should not change, or, to be honest, the Bar may suggest, "Well, some barristers have marked hourly rates in other areas, so we can look at that". That is open to some discussion. Then, there has to be a discussion about the level of it.

Your second question is, again, for the Department. When it comes to expertise and keeping abreast of what a big medical negligence case, a big family case or a big judicial review actually involves, all I can say is that we appoint people to the judicial role who have been members of the profession and who, I suggest, have that expertise inbuilt. I am sure that the Department will address you or firm that up in due course, because you cannot look at costs without an understanding of the landscape of law. The landscape of law has changed substantially, even in the 11 years that we are talking about since the fees went up, with regard to complexity and the number of new criminal offences that we have, particularly in the area of sexual offending and domestic violence, which are really welcome but are on the books. There is the use of forensic evidence, mobile phones and expert evidence. You cannot underestimate the need to have knowledge in the area to get to the point where you pay people properly for the work that they do.

All that said, there has to be a proper check on the fees, because it is public money. I come back to that; that is what the taxing master has traditionally done. If there is an alternative, it will be debated. However, at the moment, we have a model here that, I suggest, looks at all the elements in the way in which we have described. Your first question is a good one. The major change in all this, if you are looking at hourly rate, would be for the Bar legal aided people to adapt that rather than have a brief fee. I am sure that they would have something to say about that, so I would not say yea or nay on it. Obviously, that is a policy issue.

Ms Ferguson: We are on the Justice Bill now. We are talking about a clause. I am a bit concerned. Have there been discussions and meetings with you as taxing master? You do not need to divulge any detail, but are you over the detail of what the Department is proposing? Officials have come to the Committee and said that they are working closely with you, going back and forward. Are we close to a proposal coming from the Department on what might replace the current system?

Rt Hon Dame Siobhan Keegan: Do you know, Joe? I am not sure that we know that. However, we have had discussions.

Master Moore: The simple answer is no, I do not. I have not been provided with all the detail as to what has been proposed. The first indication that there was a change in how the draft legislation might look came to me in early November, maybe two weeks before it came to Committee. I think that it was discussed on 20 November. That was the impression that I had. That is as much as I can say about that.

Ms Ferguson: Thank you for that. I need to highlight that I am seriously concerned that there has been a total lack of communication and engagement with you on that. It did not come to us in October or November: I have been asking departmental officials for it for over a year. A few months back, I asked again. It was reinforced that they had been engaging with you. It is quite difficult for us, as policymakers, to make decisions on stuff when we are not over the detail. Today, once again, we are not getting much further.

Rt Hon Dame Siobhan Keegan: It would be wrong to say that they have not engaged with us. The problem is that we have not seen a final proposed product, as you may not have either. We are open to further discussions to see that. That is where we are.

Ms Ferguson: May I ask a final question? From the discussions that have happened, what role do you foresee for the taxing master? I could not get any answers from the officials at our last meeting.

Rt Hon Dame Siobhan Keegan: It is what it is until there is a change to the Judicature Act. If the Department proposes a change, it will have to be debated, because it would be a substantial change to how we operate and look at costs in Northern Ireland.

The Chairperson (Mr Frew): That is a very good point. If I am right about what the clause says, it removes the ability of the taxing master to deal with the civil aid piece. That leaves you with only 20% of your work.

Rt Hon Dame Siobhan Keegan: If the legal aid is taken out, it is 25%, I think.

Master Moore: Yes. It is probably roughly 20% to 25%.

The Chairperson (Mr Frew): If it does what we think, it could be a massive change.

Rt Hon Dame Siobhan Keegan: Yes.

Ms Egan: Thank you both for meeting us today. I do not want to ask about specific cases. In general, how many legal aid claims come before you that you decide are too high and deduct down?

Rt Hon Dame Siobhan Keegan: Do you know, Joe?

Master Moore: We have to be careful with the statistics. If you had statistics that showed that, for 1,000 bills, a change was made in 50% or 60% of them — I am not saying that that is what the reductions are — it could be a minor change in the majority of bills, such as a travel cost. The bill can be from the very small to the very substantial. I can tax off minor changes because someone has claimed 100 miles instead of 90 miles, and it is a very modest change. It is important to say that each case is looked at case by case. I do not want to give a percentage for the number of cases that are reduced, because you could get the wrong impression.

Ms Egan: OK. There is a real difference between something such as a travel cost and something more substantial. Is it fair to say that we are not comparing like with like?

Master Moore: Yes. It is fair to say that.

Ms Egan: Do you uplift more or do you decrease more of the cases that come before you?

Master Moore: Again, as I said in the answer to Mr McGlone's question, I test what is fair and reasonable. If I think that the costs are fair and reasonable, I will allow them. However, if I think that they are unreasonable, they will be deducted and taxed off. That is the rule. It is done on a case-by-case basis, and I look at a range of factors, including the importance of the case to the client — a lot of legally aided cases are really important to the clients — the complexity and the time spent on the work. I am very focused on what work was actually done on each case, and that is the fairest way for me to look at what should be paid by legal aid.

Ms Egan: OK. You said that you have a process whereby you can refer someone to their professional body if it is unreasonable. What are the steps in that process? I assume that it is not one strike and you are out. What is the process that you go through before making the decision to refer someone to the professional body?

Rt Hon Dame Siobhan Keegan: If the claims are too high, that can come through not just the taxing master but the Legal Services Agency. There is not a staged approach. If somebody clearly marks too much in any case, it can be referred. The Bar's code of conduct refers to marking too much as a disciplinary offence, and I assume that the solicitors' code of conduct is the same. That is the sharp end, but it does happen, and it is dealt with by the profession.

Ms Egan: In the absence of us being able to ask about policy and legislative change, that is all from me.

Mr Beattie: Thank you, Lady Chief Justice and Master Moore. That is a great title, I have to say. This is like a dark art. I have to be honest and say that I came here thinking that I had clarity but that I will leave here with no clarity.

I do not want to drag you back to clause 28 again, but I am doing that because I need to get this on the record. I am reading what you have written, and I have listened to what you have said. It has been very insightful. I am getting information from the Bar's evidence and from what it says in the blue book. That is where I am, and that is where I have to be. I have to start there until somebody gives me something different. There can be no conjecture. It is written down. It clearly states that clause 28 will bring in a new section 59A to the Judicature Act that will preclude the High Court and Court of Appeal from granting orders of taxation for legal aid costs but will refer that to the Department. The aim of the clause will be to restrict the role of the taxing master in legal aid. That is where we are now, regardless of what else is said.

You might not be able to answer this, but does that have a negative effect on the independence of the judiciary to be able to function if we are now handing out stuff to a Department that, rightly or wrongly, will look at where the cost is as opposed to the need in some cases?

Rt Hon Dame Siobhan Keegan: What you have said hits the nail on the head with the issue that can arise, rightly, because it changes the structure away from the independent judiciary. To be honest with you, on that question, the Department will really have to articulate an answer for you, along with the other element of whether there is a revised proposal. You are right. As it stands, it speaks for itself.

Mr Beattie: Yes, and we can go nowhere other than what is in front of us. Ciara outlined that very well; probably better than I am doing.

This is a very simple question, and it may even be for you, Master Moore. Does what we have at present work?

Rt Hon Dame Siobhan Keegan: Perhaps I can help on that one. I do not perceive that there is any issue with the process. I do not get complaints about the process. Possibly, the wider picture is the cost issue, which the Department, obviously, has on its mind. I understand that. I am not sure that there is a particular principled objection raised to the way that the process works with our office. There is just an alternative, which, I think, as we have realised, is driven by other matters beyond us that the Department is looking at after the increase in the fees that the master, rightfully and lawfully, had to look at as part of his remit.

Would you like to add to that?

Master Moore: The process is very similar to that in other jurisdictions. It is tried and tested. I have not come into the role looking to reinvent the wheel on any aspect of the process. I will bring my own views and judgements to the exercise. My view and judgement are that the process includes checks and balances. There are a number of stages before anything gets to me, and, when it gets to me, I am determined to scrutinise the cost very carefully.

Mr Beattie: I get that sense that clause 28 is trying to reinvent something that is actually working quite well by itself. Sorry, Master Moore; you may not be able to answer this. Is there anything that you look at of what you have now where you say, "This might help. The overall principle of what we have does not change, but this little tweak is needed"? Is there anything that jumps to mind? I am concerned that we are being asked about clause 28 and there are no alternatives to it.
We are told that:

That is a word salad. It does not mean anything. Is there anything that jumps out?

Master Moore: Sorry, Mr Beattie. I think that I have taken you to the end of my view on the legislation. I do not think that I can really comment.

Mr Beattie: That is a fair one, but I had to ask.

I have one last question for you. How are we addressing fraud and error in the legal aid system? How is that going? I have raised that matter on many occasions. I know that we have been tackling it and that things have been getting better. Where do we stand now on fraud and error?

Master Moore: My role is to look at cases on a case-by-case basis. I have not seen any issues that I would consider to be fraudulent in terms of how bills and costs claims are being submitted to the taxing office. You have to remember that, by the time it gets to me, a High Court judge has already looked at the case. The cases that come before me are all in the High Court or the Court of Appeal. The question of fraud in those cases, and an entitlement to legal costs, is very unlikely to be a big issue. I certainly have not seen it as a concern in the 18 months that I have been in post.

If you are referring to a wider issue of fraud in relation to someone who has applied for legal aid, that is more a matter for the Legal Services Agency, which deals with the issue of the certificate in the first place, rather than me. I am at the end point.

Rt Hon Dame Siobhan Keegan: As well as that, Mr Beattie, the Legal Services Agency has a good and quite sophisticated structure in place now to weed out any claims that raise a red flag, by and large, with the profession, which is what it does, as far as I am aware.

Mr Beattie: I asked that question because of the wider issue of the legal aid budget. The accounts have been qualified over so many years, for fraud and error, and we know that some of that is genuine error. The word "fraud" means mistakes as opposed to anything else. I am just trying to get a sense of whether we are on top of that and whether it is coming down, as far as you are aware. Certainly, since I have been on the Justice Committee, every account has been qualified on legal aid due to fraud and error. It is not a huge issue, but they are still qualified.

Rt Hon Dame Siobhan Keegan: Legal aid would be the best port of call to answer that.

Mr Beattie: That is fair enough.

The Chairperson (Mr Frew): It is about the process. The independence of the roles around the legal aid aspect helps to qualify it to that point. The Department does not have complete control over that budget line, so that goes one way.

Doug's question was a very good one. I understand why he asked about how it works and whether it is working well. I know that you will be reluctant to answer that, because it is about your performance.

Let me ask you about the scale of this, so that members are aware. The taxing master has taxed off the bill, yearly, £4·4 million, £6·5 million and £5·6 million. Those are rough sums, but that amounts to about 20% of the fee applied for. That is the scale of the taxing master's role in that regard. The issue is that the taxing master's vires are that he or she is concerned with the legal aid budget; the Justice Department, however, is also concerned about its budget. When you look at the figures that have been taxed off and compare that with the issue that really annoyed the Justice Minister this year, which was the £7 million uplift in relation to the fees increase, you see that the figures are proportionally about the same.

This is big stuff. We have a lot more work to do in order to determine exactly what the Department is trying to do. We have been discussing that amongst ourselves while you were answering questions. There is conflicting evidence coming out of the Department as to what it is trying to achieve. What the Department has told the Committee in our evidence sessions and what is written on the blue pages do not match up. Then, the Minister's determination to bring forward a further amendment has been thrown into the mix. We have not seen that amendment yet. That is what is adding to the confusion here.

Brian wanted in to make a small point.

Mr Kingston: These are probably questions for the Department. You may not have the wording of the Bill —.

Rt Hon Dame Siobhan Keegan: I do not have it in front of me.

Mr Kingston: As Doug has done, and as I was doing earlier, I am looking at the wording of clause 28, which inserts section 59A to the 1978 Act, and I am trying to understand the problem that it is seeking to address or solve. It says that legal aid will not be awarded:

Is there any way in which those services can be funded by the Department other than by legal aid? I am just trying to understand what that means.

Rt Hon Dame Siobhan Keegan: You need to ask the Department. I have a question along the same lines.

Mr Kingston: It seems that what it is saying is that the court cannot award the order of taxation if the legal services are already being funded by the Department. There is no other way that springs to mind.

Rt Hon Dame Siobhan Keegan: I am surmising, but could a scale of costs be set out in statute? I am not sure whether that is what it is driving at. I am almost arguing in the dark.

Mr Kingston: I appreciate that.

Rt Hon Dame Siobhan Keegan: I am not sure that I should say too much more.

Mr Beattie: We are all in the dark.

Mr Kingston: Likewise, there is mention of paying "part of the costs". I am not sure whether that would be in a situation in which the costs are awarded as part of a court ruling; someone has been given legal aid, but —.

Rt Hon Dame Siobhan Keegan: If legal aid is granted, you have to be paid.

Mr Kingston: Yes, but, if the other side loses the case, and part of that is that the defence costs will be covered, legal aid would not have to be paid from the public purse.

Rt Hon Dame Siobhan Keegan: That is right. That can happen, too.

Mr Kingston: From the point of view of the public purse, that is only right.

Rt Hon Dame Siobhan Keegan: Yes.

The Chairperson (Mr Frew): Patsy, you want in. I am loath to go around the table again —

Mr McGlone: I have no intention of it.

The Chairperson (Mr Frew): — so I ask you to be brief.

Mr McGlone: Lady Chief Justice, you mentioned earlier that forensics is developing things at a fast pace and all that. Something else that is moving at a fast pace, but which is hard to watch, is artificial intelligence. If we are in a developing new age, process-wise, how do you see the role and function of your office in developing and improving? Everybody can improve.

Rt Hon Dame Siobhan Keegan: How long do you have on AI? [Laughter.]

That is a whole day.

Mr McGlone: Absolutely.

The Chairperson (Mr Frew): I suggest that we park that until the next session, which is about delays. I suspect that —.

Rt Hon Dame Siobhan Keegan: I can come back to that under delays.

Mr McGlone: I was thinking about how AI can be utilised for those delays. Everybody has to reflect on how their businesses or processes work with that fast-evolving artificial intelligence.

The Chairperson (Mr Frew): We will bring you in first, Patsy, in the next session. Will that do?

Mr McGlone: Dead on, Paul. Thank you.

The Chairperson (Mr Frew): Thank you very much, Lady Chief Justice and Master Moore. It was very informative, yet very confusing. However, it is good that we are confused, because we can seek the unknown unknowns, if that is OK.

Mr Kingston: That is a positive spin.

The Chairperson (Mr Frew): Yes. It has been very helpful, which is what I am trying to say in a concise way. Thank you very much.

I am not sure whether you, Master Moore, are staying for the delays piece. You are quite welcome to do so.

Master Moore: No, I need to step away.

Rt Hon Dame Siobhan Keegan: He has to go back to his duties.

The Chairperson (Mr Frew): OK. Thank you very much for your attendance. We really appreciate it. It was lovely to meet you.