Friends of the Irish Environment CLG v The Legal Aid Board

• Jurisdiction: Ireland
• Judge: Ms. Justice Niamh Hyland
• Judgment Date: 15 September 2020
• Neutral Citation: [2020] IEHC 454
• Docket Number: [2019/169JR]
• Court: High Court
• Date: 15 September 2020

BETWEEN

FRIENDS OF THE IRISH ENVIRONMENT CLG

APPLICANT

-AND-

THE LEGAL AID BOARD

RESPONDENT

-AND-

IRELAND

AND

THE ATTORNEY GENERAL

NOTICE PARTY

[2020] IEHC 454

Niamh Hyland

[2019/169JR]

THE HIGH COURT

JUDGMENT of Ms. Justice Niamh Hyland delivered 15 September 2020

Summary

1 This is a question of statutory interpretation of considerable difficulty, not least because it involves not just one word or sentence or phrase in a statute but rather necessitates a consideration of the relevant word at issue throughout the entire statute. In short, the question is whether the reference to “person” in the Civil Legal Aid Act 1995 as amended (the “1995 Act”) applies just to natural persons or to both natural and legal persons. The answer to that determines who may apply for legal advice or aid under the Act.

2 The question arises where the Legal Aid Board, who are charged with administering civil legal aid under the 1995 Act, have always taken the view that civil legal aid may only be granted (assuming the necessary conditions are met) to natural persons and that legal persons are excluded from the ambit of the Act. The applicant, a company limited by guarantee, seeks various declarations to the effect that there is an entitlement on the part of legal persons as well as natural persons to apply for legal aid, in the context of a refusal by the respondent to consider its application for legal aid on the ground that it was a company limited by guarantee and thus ineligible.

3 The primary task for any court charged with a question of statutory interpretation is to ascertain what the Oireachtas intended the words or phrase to mean, considered objectively. That necessitates both examining the intention of the Oireachtas at the time the measure was adopted, and through the lens of the present day. Based on a construction of the reference to “person” or “persons” throughout the 1995 Act, considered in the context of the Act as a whole, as well as a consideration (to a significantly lesser extent) of the Regulations adopted at the time the Act was first enacted, I have come to the conclusion that where the legislature refers to “person,” it intends to refer only to natural persons and not legal persons. Naturally, in so concluding, I have considered the treatment of the term “person” in the Interpretation Act 2005 (the “2005 Act”).

4 The applicant also advanced a significant argument to the effect that the Charter of Fundamental Rights, specifically Article 47 on the right to an effective remedy, and the Aarhus Convention, specifically Article 9(4) which requires that identified procedures relating to environmental law remedies not be prohibitively expensive, imposed an obligation to interpret the 1995 Act so as to include legal persons in the definition of persons. Having joined Ireland and the Attorney General to these proceedings as notice party to ensure that the argument in respect of Aarhus be thoroughly addressed, I conclude that the right to an effective remedy under the Charter does not require the reference to person in the 1995 Act to include legal persons. In respect of the Aarhus argument, I find that, given the special costs regime applicable in Ireland to all persons litigating certain environmental matters, including the applicant, and the evidence provided by the applicant on affidavit as to its access to legal representation, it is not prohibitively expensive for it to access judicial review procedures. Therefore, in order to achieve the result sought by Article 9(4) in this respect, it is not necessary to construe the Act as covering legal, as well as natural persons, including the applicant.

Facts

5 The applicant was established to advance aims of environmental protection and is a nonprofit making company. It is, in common parlance, known as an “NGO” i.e. a nongovernmental organisation.

6 On 18 April 2018, the applicant wrote to the respondent seeking legal aid to bring proceedings challenging the adoption by Ireland of the National Planning Framework and National Development Plan. The judicial review proceedings were subsequently brought by the applicant. They are entitled Record No. 2018/391 Friends of the Irish Environment v. Government of Ireland, Minister for Housing, Planning and Local Government, Ireland and the Attorney General Minister (the “Friends litigation”). The proceedings have been heard and determined by Barr J. against the applicant ( [2020] IEHC 225). The decision of the High Court has been appealed by the applicant.

7 Following an exchange of correspondence on 12th November 2018, the respondent refused the applicant's application for legal aid on the basis that as the application had been made by an organisation rather than a person, it was not possible to provide legal services to the applicant. The applicant sought to appeal and on 28 January 2019, Mr. Sugrue, Assistant Director of the respondent replied indicating that the respondent could not process an application for legal services made by a company limited by guarantee. The respondent committed to reflect further on the question. On 11 February 2019 Mr. Sugrue replied indicating the respondent was satisfied with the response in the letter of 28 January 2019.

8 The applicant now seeks to challenge that refusal on the basis that the 1995 Act, properly construed, entitles both legal and natural persons to seek legal aid. It stresses that it is not seeking an Order that legal aid be granted to it but rather that it is entitled to seek legal aid in the same way that a natural person would be so entitled.

The 1995 Act

9 The Long Title to the Act states that it is “An Act to make provision for the grant by the State of legal aid and advice to persons of insufficient means in civil cases”. An applicant is defined as a person who makes an application for legal aid or advice or both and includes a person in respect of whom a request has been made by a coroner. There is no definition of person or persons in the definition section. The Act establishes the Legal Aid Board and provides that its principal functions shall be to provide, within the Board's resources and subject to the Act, (a) legal aid and advice in civil cases to persons who satisfy the requirements of the Act, and (b) a family mediation service. The Act distinguishes between legal advice and legal aid, the latter being defined as representation in civil proceedings or at an inquest. To obtain legal aid, it is necessary to be granted a legal aid certificate, as such assistance necessitates a more significant financial commitment on the part of the Legal Aid Board than advice. Certain matters are identified for which legal aid or advice will not be provided. These include matters concerning which the Board considers it would be possible for the person “without hardship” to obtain the appropriate advice without obtaining legal advice under the Act (s. 26(2)(c)).

10 Section 24 and s. 29 have aptly been described by counsel for the respondent as setting the overall framework for the grant of aid and advice. Section 24 provides that a person shall not be granted legal aid or advice unless:

(a) a reasonably prudent person, whose means were such that the cost of seeking such services at his or her own expense, while representing a financial obstacle to him or her would not be such as to impose undue hardship upon him or her, would be likely to seek such services in such circumstances at his or her own expense,

and

(b) a solicitor or barrister acting reasonably would be likely to advise him or her to obtain such services at his or her own expense,

11 Section 29 is concerned with financial eligibility and provides that (subject to the Act) a person shall not qualify for legal aid or advice unless (a) he or she satisfies the requirements in respect of financial eligibility, including those requirements in Regulations made under s. 37 and (b) pays to the Board a contribution towards the cost of providing the legal aid or advice. The Board may waive that contribution on the ground that a failure to do so would cause undue hardship to the applicant (s. 29(2)(b)).

12 Section 29(3) provides that an applicant's financial eligibility, and the amount of their contribution, shall be assessed by reference to the applicant's disposable income and where appropriate disposable capital. Section 29(6) provides that certain negative consequences flow insofar as the availability of legal aid or amount of contribution payable is concerned if, in the opinion of the Board, “the behaviour of the person applying for or in receipt of legal aid or advice is such that the costs of providing the legal aid or advice concerned are likely to be increased unnecessarily”.

13 Disposable income and capital in relation to an applicant mean his or her income or capital after making such deductions or allowances as may be specified by the Minister in Regulations made under s. 37 (s. 29(8)).

14 To obtain a legal aid certificate, in addition to meeting the requirements under s.24, s. 29 and the Regulations, an applicant must meet certain additional requirements that relate largely to the likelihood of success and the reasonableness of granting the aid (s. 28(2)). However, even if an applicant does not meet the criteria, there is a “catch all” type provision whereby a legal aid certificate may be granted to a person in certain circumstances including where the State is, by virtue of an international instrument, under an obligation to provide civil legal aid to the person, notwithstanding any other provision of the Act (s. 28(5)).

15 Section 28(9) provides that legal aid will not be granted in respect of specified “designated matters”. Certain of the designated matters merit careful scrutiny in the context of the issues raised in these proceedings, in particular, sections 28(9)(a)(viii) and (ix) (discussed in greater detail below) which exempt...