O'Donoghue v Legal Aid Board, Minister for Justice and Ag

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 21 December 2004
• Neutral Citation: [2004] IEHC 413
• Court: High Court
• Date: 21 December 2004

O'DONOGHUE v. LEGAL AID BOARD, MINISTER FOR JUSTICE and AG

BETWEEN

MARIE O'DONOGHUE

PLAINTIFF

and

THE LEGAL AID BOARD, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

[2004] IEHC 413

Kelly

IEHC 413./[2004]

NO. 6961 P/1999

THE HIGH COURT

Synopsis:

CONSTITUTIONAL LAW

Right of access to courts

Legal aid - 25 month delay in provision of legal aid - Whether right to legal aid - Whether delay constituted failure of State to vindicate plaintiff's right of access to courts - Separation of powers - Declaratory relief - Expenditure of public funds - Whether appropriate to grant declaratory relief - Damages - Pecuniary loss - Manner for calculation of damages - Whether appropriate to award damages - Delay in considering application due to shortage of resources - Whether first defendant acted negligently or in breach of statutory duty - Kavanagh v Legal Aid Board (Unreported, High Court, Butler J, 24/10/2001); C v Legal Aid Board [1991] 2 I.R. 43; The State (Healy) v Donoghue [1976] I.R. 325; S v Laney (Unreported, High Court, Lardner J, 10/2/1993); Kirwan v Minister for Justice [1994] 2 I.R. 417; Ryan v The Attorney General [1965] I.R. 294; Doran v Ireland (Unreported, European Court of Human Rights, 31/7/2003); Airey v Ireland (1979) 2 E.H.R.R. 305 followed - Civil Legal Aid Act 1995 (No 32), ss 5, 18 and 28 - Constitution of Ireland 1937, Article 40.3 - European Convention on Human Rights, article 6 - Damages awarded against second and third defendants (1999/6961P - Kelly J - 21/12/2004) [2004 IEHC 413

O'Donoghue v Legal Aid Board, Minister for Justice and Ireland

section 5 of the Legal Aid Act 1995 provides that "the principal function of the Board shall be to provide, within the Board's resources and subject to the other provisions of this Act, legal aid and advice in civil cases to persons who satisfy the requirements of this Act". Section 28(5) of the Act provides that "Notwithstanding any other provision of this Act, the Board shall grant a legal aid certificate to a person where the State is, by virtue of an international instrument, under an obligation to provide civil legal aid..." . The plaintiff sought an increase in maintenance from her estranged husband to care for her handicapped son and a divorce and to that applied to the Legal Aid Board for a certificate for legal representation to achieve same in February, 1997, having satisfied the requirements of the Act of 1995 for legal aid. She had to wait in excess of two years to obtain such a certificate due to the fact that the legal aid board was under-resourced by the State at that time. She instituted proceedings seeking damages and appropriate declarations, alleging that the first defendant was guilty of breach of statutory duty and negligence because it failed to exercise the function conferred on it under section 5 of the Act of 1995 within a reasonable time and that pursuant to section 28(5) of the Act, there was an obligation under the European Convention on Human Rights to provide legal aid without regard to the Board's resources. The plaintiff also contended that the State had breached its obligations to her under the Constitution and the European Convention on Human Rights in not resourcing properly the Legal Aid Board.

Held by Kelly J in granting a declaration and awarding the plaintiff €8,991.60 in damages for loss of maintenance and stress and upset due to the delay that the statutory obligation imposed upon the first defendant was not absolute but required it to carry out its functions within its resources. Section 28(5) of the Act of 1995 only operated where an international instrument expressly required the State to provide civil legal aid or prescribed requirements which had to be met, which the European Convention on Human Rights did not. Accordingly, the phrase "notwithstanding any other provision of this Act" in section 28(5) did not operate to override the saver in section 5 as to resources.

The legislature was entitled to define reasonable limits to the constitutional right of access to legal aid but the right could not be effectively set at nought for years. Access to the courts and fair procedures under the Constitution required that the plaintiff be provided with legal aid and the delay in granting the certificate for legal aid amounted to a breach of her constitutional entitlements to same which would entitle her to recover damages in respect thereof.

As it was found that the plaintiff's rights under Bunreacht na hÉireann had been infringed and she was entitled to a remedy thereunder, it was unnecessary to consider her entitlements under the European Convention on Human Rights.

Reporter: P.C.

Citations:

C V LEGAL AID BOARD 1991 2 IR 43

CIVIL LEGAL AID ACT 1995 S5(1)

CIVIL LEGAL AID ACT 1995 S19

CIVIL LEGAL AID ACT 1995 S18

CIVIL LEGAL AID ACT 1995 S28(4)

CIVIL LEGAL AID ACT 1995 S25(5)

KAVANAGH V LEGAL AID BOARD UNREP HIGH COURT BUTLER 24.10.200 2001/13/3613

DORAN V IRELAND UNREP 31.7.2003 ECHR

RYAN V AG 1965 IR 294

CONSTITUTION ART 40

MACAULEY V MIN FOR POSTS & TELEGRAPHS 1966 IR 345

S V LANDY & ORS UNREP HIGH COURT LARDNER 10.2.1993/5/1430

HEALY, STATE V DONOGHUE 1976 IR 325 110 1 ILTR 9

KIRWAN V MIN FOR JUSTICE 1994 1 ILRM 444

SINNOTT V MIN FOR EDUCATION 2001 2 IR 545

D (T) & ORS V MIN FOR EDUCATION & ORS 2001 4 IR 259

HANAHOE T/A MICAHEL E HANAHOE & CO V HUSSEY & COMMISSIONER OF AN GARDA SIOCHANA & ORS 1998 3 IR 69

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

AIREY V IRELAND 1980 2 EHRR 305

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6.1

1 JUDGMENT of Mr. Justice Kelly delivered the 21st day of December, 2004 .

INTRODUCTION

2 The plaintiff experienced a delay of 24 months between contacting the first defendant (the Board) for legal aid and ultimately obtaining an appointment with a solicitor. A further month elapsed before she was given a legal aid certificate. These undisputed facts are at the heart of these proceedings. As a result of it the plaintiff claims that the defendants are guilty of breaches of statutory duty, negligence, and have denied her certain rights allegedly due to her under the Constitution and the European Convention on Human Rights. She seeks appropriate declarations and damages. A claim for a mandatory injunction was not pursued since she obtained the relevant legal aid prior to this action being brought.

THE PLAINTIFF

3 The plaintiff married her husband, Robert O'Donoghue, on the 17 ^th September, 1976. They had one son, Paul, who was born on the 2 ^nd November, 1984.

4 At the age of 8 months Paul contracted a very serious and rare illness called Reyes Syndrome. He survived the acute stage of that disease but as a result of it he became, and remains, profoundly disabled. Paul's illness added further strain to what was already a very difficult marriage. That difficulty was created by the plaintiff's husband's excessive drinking.

5 Matters became so serious between the plaintiff and her husband on the 13 ^th July, 1986, that she left the family home a long with Paul and returned to her mother's home. She stayed there for a little less than a year, at which stage she was provided with a small house of just 500 square feet by Cork City Council. She lived there until 2002 when she was re-housed in a larger dwelling. That became necessary because Paul was getting bigger and additional equipment was required in order to deal with his disability.

6 The family home which she left in 1986 was privately owned having been purchased in the joint names of herself and her husband. The plaintiff contributed towards the repayment of the mortgage on that house.

7 For about a year after she left that family home, no maintenance was paid by her husband. In 1987 he commenced paying £40.00 per week.

8 By 1996 the husband was in a second relationship and the woman involved with him had moved into the former family home of the plaintiff. The plaintiff approached her husband with a view to his buying out her interest in that house.

9 She made contact with a Mr. O'Sullivan, a solicitor in Ernest J. Cantillon and Company, with a view to him, as she put it, "doing the legal arrangements around the paper work involved in the transaction".

10 Eventually the husband agreed to purchase her interest. The value of her half interest ultimately netted down to a figure of £12,000.00. She arranged with Mr. O'Sullivan to carry out the conveyancing transaction.

11 During her meetings with Mr. O'Sullivan, she mentioned to him that she was becoming concerned about her financial situation, particularly having regard to the needs of Paul. Mr. O'Sullivan indicated that he was not in a position to give advice on family law because it was not an area of expertise in his firm. He told her that because she did not have any means to employ a private solicitor her best course would be to go to a law centre run by the Board. At that time, she was not even aware of the existence of such a centre.

12 Her circumstances had become quite straitened at that time. The needs of Paul were increasing. A charitable organisation which had assisted her in the past was no longer able to do so. Her family were helping out. She had borrowed from them but was not in a position to repay. She had no savings and was becoming more and more concerned about Paul's position. I accept that he required a very high level of care involving physiotherapy, special diet, nutritional supplements and other assistance, all of which were expensive. She certainly had no means to be able to retain the services of a solicitor privately.

13 At that stage (1996), she was in receipt of the same sum for maintenance as she had been getting for the preceding 10 years and felt it was not adequate.

14 Her principal concern was to obtain maintenance which would be adequate to Paul's...