O'Connor v Legal Aid Board
|Ms. Justice Faherty
|06 October 2022
| IECA 216
|Court of Appeal (Ireland)
|Appeal Numbers: 2020/82
 IECA 216
Ní Raifeartaigh J.
Appeal Numbers: 2020/82
THE COURT OF APPEAL
Judgment of Ms. Justice Faherty delivered on the 6 th day of October 2022
. These appeals concern various Orders made by the High Court (Twomey J.) on 20 February 2020 the first of which dismissed Mr. O'Connor's (hereinafter “the plaintiff”) claims as against the second, third and fourth defendants (hereinafter “the State defendants”) in the within proceedings i.e. the proceedings bearing record number 2019/5432P, the second of which directed that all aspects of the within proceedings save the defamation aspect be consolidated with other proceedings instituted by the plaintiff and the third and fourth of which refused reliefs which the plaintiff had sought in motions filed on 2 July 2019 and 30 October 2019.
. Over the course of 2018/2019, the plaintiff instituted three sets of plenary proceedings. The proceedings bear the record numbers 2018/4595P, 2019/5431P and 2019/5432P. The Legal Aid Board (“the Board”) is a defendant in all three sets of proceedings. It is, I believe, fair to say that all three sets of proceedings arise out of the plaintiff's course of dealings with the Board over a number of years.
. In the 4595P proceedings (instituted on 22 May 2018), the plaintiff makes a claim for damages against the Board. The general endorsement to the plenary summons pleads that the claim is for breach of contract, abuse of process, breach of statutory duty, breach of constitutional rights, breach of fiduciary duty, breach of statutory duty of care and negligence on the part of the Board. An appearance was entered to these proceedings on 6 June 2018. The plaintiff delivered a statement of claim running to some 208 paragraphs and some 20,000 words on 4 December 2018. In summary, the statement of claim pleads as follows:
A full defence was delivered by the Legal Aid Board on 29 January 2019.
• The Board was negligent in failing to provide legal advice and legal services prior to April 2016 in relation to professional negligence proceedings the plaintiff commenced in 2014 in the High Court.
• The Board has acted in a wholly inappropriate and irrational manner in deciding to terminate two legal aid certificates ultimately granted to the plaintiff.
• The plaintiff has been denied legal aid due to the Board's negligent decision to terminate the two legal aid certificates and due to the Board's wilful breach of a settlement agreement reached between the plaintiff and the Board following the institution of judicial review proceedings by the plaintiff.
• By terminating the two legal aid certificates, the Board wilfully breached the plaintiff's right to civil legal aid and his constitutional rights.
• The Board wilfully breached the plaintiff's contractual, statutory and constitutional rights to obtain legal services and legal representation in circumstances where the Board's employees or agents have admitted to personal knowledge of the named defendants in the two High Court proceedings the plaintiff instituted in 2014 and have refused to fully disclose personal knowledge of the relationship between the Board's employees and agents and the defendants in the 2014 High Court proceedings.
• The Board has failed to avoid or appropriately manage issues of objective bias or conflict of interest over the past three years and so has been “grossly negligent”.
. On 2 July 2019 the plaintiff issued a notice of motion in the 4595P proceedings seeking to amend his statement of claim by way of additional paragraphs and he sought an order under O.12, r.8 of the Rules of the Superior Courts (“RSC”) striking out the Board's appearance and defence and, if such order is granted, an order for summary hearing and determination of the 4595P proceedings based on the statement of claim. Alternatively, he sought an order for the hearing of preliminary issues pursuant to Order 37, r.7 RSC.
. The 5431P proceedings against the Board and the State defendants issued on 9 July 2019. In the general endorsement of claim to the plenary summons the plaintiff seeks certain declaratory reliefs and asserts that the Board committed certain wrongs, viz:
• A declaration that the Board, its servants or agents have a statutory duty to make within a reasonable time a decision either to grant or refuse the plaintiff's legal aid applications.
• A declaration that the Board made decisions ultra vires, acted unlawfully or committed misfeasance in public office by its failure to consider and decide the plaintiff's application for legal aid in respect of the High Court proceedings the plaintiff instituted in 2018 bearing record no. 2018/4595P and was negligent and breached its fiduciary duty and duty of care to the plaintiff by closing its legal aid file in respect of the plaintiff's application for legal aid for the 4595P proceedings in April 2019 without having made a decision on the application and in requesting the plaintiff to make a new application for legal aid.
• A declaration that the plaintiff's complaint in October 2018 about the Board's delay in providing the plaintiff with legal aid in respect of certain family law proceedings was valid and appropriate.
• A declaration that the plaintiff's statutory, constitutional and/or European Convention on Human Rights (“ECHR”) rights were breached by virtue of the Board's refusal to provide him with legal aid granted to him by way of certificate for legal aid in respect of certain family law proceedings and the failure of the Board to progress the family law proceedings based on legal steps specified in a written legal opinion obtained in support of the legal aid application.
• A declaration that the Board, its servants or agents, unlawfully denied the plaintiff's statutory rights to legal aid under the Legal Aid Act 1995 (“the 1995 Act”) and so breached the plaintiff's constitutional rights and his Art. 6 and Art. 8 rights pursuant to ECHR.
• The Board was negligent and/or breached its duty of care or fiduciary duty when, acting as the plaintiff's appointed agent pursuant to a certificate of legal aid, it refused to make applications in family law proceedings based on the plaintiff's instructions and when it withdrew its services in October 2018 for invalid reasons and without providing an alternative legal service to the plaintiff.
• The Board engaged in an abuse of process by terminating in December 2018 a legal aid certificate previously granted to the plaintiff, which constituted a collateral attack on the prior decision of the Board to grant this legal aid certificate.
• The Board committed misfeasance in public office due to deliberately and dishonestly abusing the powers conferred on it under the 1995 Act and the Regulations made thereunder by deciding to terminate the plaintiff's legal aid certificate in family law proceedings for grounds or reasons that were an abuse of process.
. At paras. 10 and 11 of the general endorsement of claim, the plaintiff pleads that the State defendants bear vicarious liability for the wrongful acts of the Board, its servants or agents, in particular the “[v]icarious liability of [the] second named Defendant” by virtue of sections 3, 4, 6, 7, 9, 10, 11, 19, 20, 21, 28, 29, 30, 33, 36, 37 and 38 of the 1995 Act for the alleged wrongful acts of the Board. At para. 12, the plaintiff seeks a declaration that all the defendants have a duty under the Human Rights Act 2003 (“the 2003 Act”), in particular s. 3 thereof, to protect citizens' ECHR rights and that the defendants failed to protect the plaintiff's ECHR rights and thus are liable in damages. As of the date of the hearing of the motions which gave rise to the Orders under appeal here, no statement of claim had been delivered in respect of these proceedings.
. The 5432P proceedings issued on 9 July 2019 against the Board and the State defendants. In the general endorsement of claim to the plenary summons the plaintiff pleads defamation of him by the Board, its servants or agents. He seeks a declaration that the Board, acting as his appointed legal representative under a grant of legal aid certificates, published defamatory statements and/or false statements in relation to the plaintiff. He seeks a declaration that the defamatory statements and/or false statements made by the Board “were published, and relied upon, without appropriate challenge, verification corroboration, or correction” and “so constitute a serious infringement of the Plaintiff's constitutional rights…and a serious infringement of the Plaintiff's inherent rights to fair procedures and fair process by [the Board]”. He also seeks a declaration that the Board, its servants or agents, denied the statutory rights afforded to the plaintiff under the 1995 Act which rights protect the plaintiff's constitutional rights and his rights under the ECHR, in particular Art. 6 and Art. 8. At paras. 7 and 8 of the general endorsement of claim, the plaintiff pleads that the State defendants bear vicarious liability for the wrongful acts or omissions of the Board, its servants or agents, in particular the “[v]icarious liability of [the] second named Defendant” by virtue of sections 3, 4, 6, 7, 9, 10, 11, 19, 20, 21, 28, 29, 30, 33, 36, 37 and 38 of the 1995 Act for the alleged wrongful acts of the Board. At para. 9, the plaintiff seeks a declaration that all the defendants have a duty under the 2003 Act, in particular s.3 thereof, to protect citizens' ECHR rights and that the defendants failed to protect the plaintiff's ECHR rights and, thus, are liable in damages.
. The claim for damages for defamation is said to arise from an internal memorandum of the...
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