O'Donoghue v Legal Aid Board

• Jurisdiction: Ireland
• Judgment Date: 21 December 2004
• Date: 21 December 2004
• Docket Number: [1999
• Court: High Court

[2004] IESC 413

High Court

[1999 No. 6961P]

O'Donoghue v. Legal Aid Board

Marie O'Donoghue

Plaintiff

and

The Legal Aid Board, The Minister for Justice Equality and Law Reform, Ireland and The Attorney General

Defendants

Cases mentioned in this report:-

Airey v. Ireland (1979) 2 E.H.R.R. 305.

Application of Gallagher (No. 2) [1996] 3 I.R. 10.

Bosphorus v. Minister for Transport [1997] 2 I.R. 1.

C. v. Legal Aid Board [1991] 2 I.R. 43.

Cannon v. Minister for the Marine [1991] 1 I.R. 82; [1991] I.L.R.M. 261.

T.D. v. Minister for Education [2001] IESC 101, [2001] 4 I.R. 259.

Doran v. Ireland (Unreported, European Court of Human Rights, 31st July, 2003).

Garvey v. Ireland [1981] I.R. 75; (1979) 113 I.L.T.R. 61.

Hanahoe v. Hussey [1998] 3 I.R. 69.

Healy v. Minister for Defence (Unreported, High Court, Barron J., 7th July, 1994).

In re Haughey [1971] I.R. 217.

Kavanagh v. Legal Aid Board (Unreported, High Court, Butler J., 24th October, 2001).

Kennedy v. Ireland [1987] I.R. 587; [1988] I.L.R.M. 472.

Kirwan v. Minister for Justice [1994] 2 I.R. 417; [1994] 1 I.L.R.M. 444.

Macauley v. Minister for Posts and Telegraphs [1966] I.R. 345.

McNeill v. Commissioner of An Garda Síochána [1997] 1 I.R. 469.

O'Domhnaill v. Merrick [1984] I.R. 151; [1985] I.L.R.M. 40.

O'Keeffe v. Commissioners of Public Works (Unreported, Supreme Court, 24th March, 1980).

Ryan v. The Attorney General [1965] I.R. 294.

S. v. Landy (Unreported, High Court, Lardner J., 10th February, 1993).

Sinnott v. Minister for Education [2001] IESC 63, [2001] 2 I.R. 545.

The State (Healy) v. Donoghue [1976] I.R. 325; (1975) 110 I.L.T.R. 9 (H.C.); (1976) 112 I.L.T.R. 37.

The State (Gary McFadden) v. The Governor of Mountjoy Prison (No. 1) [1981] I.L.R.M. 113.

The State (Richard F. Gallagher Shatter & Co.) v. de Valera [1987] I.R. 55; [1987] I.L.R.M. 555.

Toal v. Duignan & Others (No. 1) [1991] I.L.R.M. 135.

Twomey v. Minister for Tourism and Transport (Unreported, Supreme Court, 12th February, 1993).

Constitution - Right of access to courts - Legal aid - 25 month delay in provision of legal aid - Whether right to legal aid - Whether delay constituted failure to vindicate plaintiff's right of access to courts - Constitution of Ireland 1937, Article 40.3 - European Convention on Human Rights, article 6.

Constitution - Separation of powers - Declaratory relief - Expenditure of public funds - Whether appropriate to grant declaratory relief - Whether appropriate to award damages.

Constitution - Remedies - Legal aid - Failure to vindicate plaintiff's right of access to courts - Damages - Pecuniary loss - Manner for calculation of damages.

Legal aid - Civil litigation - Legal aid scheme administered by first defendant - Obligation on first defendant to determine application for civil legal aid - Delay in considering application due to shortage of resources - Whether first defendant acted negligently or in breach of statutory duty - Civil Legal Aid Act 1995 (No. 32), ss. 5, 18 and 28 - European Convention on Human Rights, article 6.

Plenary Summons

The facts of the case have been summarised in the headnote and are more fully set out in the judgment of Kelly J., infra.

The proceedings were initiated by way of plenary summons issued on the 5th July, 1999 and were heard before the High Court (Kelly J.) from the 27th to the 30th January, 2004 and on the 3rd February, 2004.

Section 5(1) of the Civil Legal Aid Act 1995 provides:-

"The principle function of the [Legal Aid] 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 that Act provides, inter alia:-

"Notwithstanding any other provision of this Act, the Board shall grant a legal aid certificate to a person -

(a) where the State is, by virtue of an international instrument, under an obligation to provide civil legal aid to the person:

Provided that the person shall, before being granted such certificate, comply with such requirements (if any) as are specified in the international instrument and relate to him or her."

The plaintiff, who was separated from her husband and caring for her disabled son, sought legal aid from the first defendant for the purposes of applying to the Circuit Court for an increase in the maintenance paid by her husband. Although the plaintiff satisfied the criteria for a legal aid certificate under the Civil Legal Aid Act 1995, she experienced a 24 month delay in obtaining an appointment with a solicitor of the first defendant and a further one month delay before a legal aid certificate was granted. The plaintiff issued proceedings against the defendants in the High Court. Against the first defendant, she sought damages for negligence and breach of statutory duty. She also claimed that the first defendant was required to provide a legal aid certificate under s. 28(5) of the Act of 1995 and by virtue of article 6 of the European Convention on Human Rights. Against the second and third defendants, she sought a declaration that her constitutional right to legal aid and to have her application for legal aid dealt with expeditiously had been breached, together with damages.

The first defendant argued that, under s. 5 of the Civil Legal Aid Act 1995, it was required to provide legal aid only to the extent permitted by the resources made available to it by the State. It claimed to have been provided with inadequate resources and adduced evidence of numerous attempts to seek increased resources from the State for the purpose of fulfilling its statutory duty.

The second, third and fourth defendants adduced no evidence to dispute the claims of the first defendant. They argued that there was no statutory, constitutional or European Convention right to legal aid and no right to have an application for legal aid dealt with expeditiously. They also argued that any intervention by the High Court to grant the declaratory relief sought, which concerned the expenditure of public funds, would contravene the separation of powers.

Held by the High Court (Kelly J.), in granting the relief sought against the second and third defendants, 1, that the statutory obligation imposed on the first defendant by the Civil Legal Aid Act 1995 was not absolute. The first defendant was required to carry out its functions only within the available resources. The delay experienced by the plaintiff was a direct result of a lack of resources and the first defendant did everything within its power to provide for the plaintiff. Accordingly, the first defendant had not acted negligently nor in breach of its statutory duty.

Kavanagh v. Legal Aid Board (Unreported, High Court, Butler J., 24th October, 2001) followed.

2. That the European Convention on Human Rights neither expressly required the State to provide civil legal aid nor prescribed requirements which the State had to meet in this regard. Accordingly, s. 28(5) of the Act of 1995 had no application to the proceedings.

3. That the plaintiff's constitutional right of access to the courts and right to fair procedures included an entitlement to be provided with legal aid. The delay in granting a legal aid certificate constituted a breach of that constitutional right and entitled her to damages if she could demonstrate a resulting loss.

The State (Healy) v. Donoghue [1976] I.R. 325;S. v. Landy (Unreported, High Court, Lardner J., 10th February, 1993) and Kirwan v. Minister for Justice[1994] 2 I.R. 417 followed. Doran v. Ireland (Unreported, European Court of Human Rights, 31st July, 2003) considered.

Obiter dictum: That, under article 6 of the European Convention on Human Rights, the State might be compelled to provide for the assistance of a lawyer in order to render a person's right of access to the courts effective.

Airey v. Ireland (1979) 2 E.H.R.R. 305 followed.

4. That, having established a civil legal aid scheme, the State had to ensure that it was implemented fairly to all persons and fulfilled its declared purpose.

• C. v. Legal Aid Board [1991] 2 I.R. 43 followed.

5. That, in circumstances where the plaintiff was seeking no mandatory relief, the court was entitled to grant the declaratory relief and damages sought against the State.

Ryan v. The Attorney General [1965] I.R. 294 applied.Sinnott v. Minister for Education [2001] IESC 63,[2001] 2 I.R. 545 and T.D. v. Minister for Education [2001] IESC 101, [2001] 4 I.R. 259 distinguished.

6. That the plaintiff's pecuniary loss could be calculated on the basis of the likely increase in maintenance which she would have been granted by the Circuit Court and the delay in having her application for increased maintenance heard occasioned by the first defendant's lack of resources. Damages could be awarded against the second and third defendants on that basis, together with a sum for stress and upset caused to the plaintiff as a result of the delay.

Cur. adv. vult.

Kelly J. 21st December, 2004

Introduction

1 The plaintiff experienced a delay of 24 months between contacting the first defendant 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 and 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

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

At the age of eight...