April 10, 2011 - Brief Counsel's Hugh Kennedy cited in The Sunday Times
10/04/2011
Mark Tighe, writing in today's Sunday Times, cites Brief Counsel's Hugh Kennedy when revealing payments of over €34m made by the HSE to a law firm without any competitive tender process. The full text of the article appears below.
Law firm paid €34m by HSE without competing for work
Solicitors acquired lucrative public sector contract 'organically' without being subject to official tendering process
Mark Tighe
Published: 10 April 2011
THE Health Service Executive (HSE) paid a legal firm more than €10m a year without requiring it to tender for the work. ByrneWallace solicitors, which changed its name from BCM Hanby Wallace last year, was paid €34m in three years from 2007 to 2009, according to figures released under the Freedom of Information (FOI) act. This is almost half of the €70.4m paid by the HSE to solicitors over the period.
BCM Hanby Wallace won a contract to represent the old South Western Area Health Board in 2003 following a competitive tender. After the HSE was established on January 1, 2005, it never required BCM Hanby Wallace to tender for further work. Instead, the firm picked up the work "organically".
Hugh Kennedy, a director of Brief Counsel, a legal services firm in Dublin, said it was "unacceptable for a public body to pay so much money for legal services since 2005 without holding a tender competition".
The HSE says tendering for legal services is not mandatory under EU directives on public procurement. The Dail's public accounts committee recently recommended tendering for all state procurement of legal services in order to cut costs.
Last month the HSE, the largest purchaser of legal services in Ireland, appointed Arthur Cox as its legal managers after a tender competition. The firm will delegate day-to-day legal work to a panel of a little more than 30 legal firms, including ByrneWallace.
The HSE spent €26.1m on solicitors in 2007, €21.25m in 2008, and €23m in 2009. The service said some of the money recorded as being paid to solicitors included payments to barristers, third parties and settlements through legal firms. The €70.4m paid to the solicitors was shared among 38 firms. The HSE said 56% of services from the firms related to childcare issues.
In total its legal bill for the three years, including payments of settlements, guardian ad litem and barrister fees was €110.8m. The HSE said it has not yet compiled its legal fees for 2010.
Comyn Kelleher Tobin, a Cork firm, was the second highest earner in the period, with a bill of €6.3m. A&L Goodbody received €4.02m, and Philip Lee earned €4.01m. Arthur Cox was in fifth place with a bill of €2.46m.
In a statement ByrneWallace said its bill included €5.9m in Vat and the average hourly rate that was charged to the HSE was €230. It said the work involved 82,000 hours, advice on 5,978 cases, and representation on an average of 75 cases before courts a week.
The firm said the majority of its cases involved complex child protection and vulnerable adult matters where child care orders were sought on behalf of the HSE.
"The fees charged by ByrneWallace were agreed in 2003 and were maintained at that level until 2010," it said.
Through the three years covered by the FOI the firm said it measured its HSE duties as "the equivalent of 39 man years of work".
(Copyright The Sunday Times).