Friends of the Irish Environment CLG v The Legal Aid Board

• Jurisdiction: Ireland
• Judge: Mr. Justice Murray
• Judgment Date: 03 February 2023
• Neutral Citation: [2023] IECA 19
• Court: Court of Appeal (Ireland)
• Docket Number: High Court Record No. 2019/169JR

Between

Friends of the Irish Environment CLG

Applicant/Appellant

and

The Legal Aid Board

Respondent

and

Ireland and The Attorney General

Notice Parties

[2023] IECA 19

Barniville P.

Murray J.

Noonan J.

High Court Record No. 2019/169JR

Court of Appeal Record No. 2021/01

THE COURT OF APPEAL

CIVIL

Legal aid – Body corporate – Civil Legal Aid Act 1995 – Appellant seeking legal aid – Whether a body corporate may apply for and obtain legal aid pursuant to the provisions of the Civil Legal Aid Act 1995

Facts: The applicant/appellant, Friends of the Irish Environment CLG, in April 2018, applied to the respondent, the Legal Aid Board, for legal aid in connection with proposed proceedings in which it then intended to apply for leave to seek relief by way of judicial review of the Government’s National Planning Framework and National Development Plan. That leave was granted on 14 May 2018 (Friends of the Irish Environment v Government of Ireland 2018/391 JR) (the NDP case). By decision of 12 November 2018, the respondent refused the applicant’s application for legal aid. That decision was appealed internally and upheld by decisions dated 28 January and 11 February 2019. The principal basis for all of those decisions was that the Civil Legal Aid Act 1995 as amended did not enable the grant of legal aid to a body corporate. The applicant applied to the High Court for an order of certiorari quashing the refusal of the respondent to grant and/or consider granting legal aid in respect of the NDP case, and for ancillary declaratory relief. The applicant contended that a body corporate may apply for and obtain legal aid pursuant to the provisions of the Act, and that reference in relevant provisions of the Act to ‘persons’ should be construed accordingly. The respondent contended that it could not, arguing that it was not the intention of the Oireachtas to extend eligibility for legal services to artificial legal persons. The High Court (Hyland J) agreed with the position adopted by the respondent: [2020] IEHC 454. The applicant appealed to the Court of Appeal from the decision of the High Court.

Held by Murray J that, on its proper construction, the 1995 Act allows the provision of legal aid and advice only to individuals and not to bodies corporate. Murray J held that because that limitation is inherent in ‘the substance and tenor’ of the Act, and because to reconstruct the legislation so as to extend it to such legal persons would involve a significant shift of the policy evident from the Act as a whole, this conclusion is not affected by the terms of s. 18(c) of the Interpretation Act 2005. Insofar as the applicant sought to contend that the provisions of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention) require a different construction, Murray J held that the applicant had failed to establish that the NDP case was ‘prohibitively expensive’ within the meaning of Article 9(4) of that Convention. Murray J accepted that there may be an argument that the complete exclusion of legal persons from the possibility of obtaining legal aid in cases involving issues of EU law might, at least in certain circumstances, present a breach of Article 47(3) of the Charter of Fundamental Rights of the EU. However, it was not evident to Murray J that this argument would advance the applicant’s case: the applicant had not sought orders against the State that it be provided with legal aid for the NDP case; noting the fact that no relief was sought based on any alleged incompatibility of the Act with the Charter, there may be a difficulty in setting aside provisions of the Act that interfere with any such right, if established, because it cannot be said that the only mechanism for obtaining civil legal aid in Ireland is via the Board and under the Act; the same point might be made in relation to the argument insofar as it was based upon a conforming interpretation, this being the principal point made by the applicant; and in any event, the interpretation urged by the applicant would be contra legem.

Murray J proposed affording the applicant a further opportunity to consider whether it wished to make submissions as to whether there was any other basis on which a reference should be made.

Appeal dismissed.

UNAPPROVED

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Murray delivered on the 3rd of February 2023

Background

1 . The fundamental issue in this appeal is whether a body corporate may apply for and obtain legal aid pursuant to the provisions of the Civil Legal Aid Act 1995 as amended (‘ the Act’). The applicant – relying upon the provisions of the Interpretation Act 2005 (‘ the 2005 Act’), Article 47 of the EU Charter of Fundamental Rights (‘ the Charter’), and Article 9(4) of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (‘ the Aarhus Convention’) – contends that it can, and that reference in relevant provisions of the Act to ‘ persons’ should be construed accordingly. The respondent – the body charged with responsibility for administering civil legal aid in accordance with the Act – contends that it cannot, arguing that, interpreting the Act as a whole in the light of certain Regulations made thereunder, it is clear that it was not the intention of the Oireachtas to extend eligibility for legal services to artificial legal persons. The respondent further disputes that the provisions of Article 47 of the Charter or of the Aarhus Convention affect this construction, a position shared by the notice parties. 1 Following a detailed and careful survey of the Act and relevant authorities ( [2020] IEHC 454), Hyland J. agreed with the position adopted by the respondent on each of these questions.

2 . The relevant facts are few and undisputed. The applicant is a company limited by guarantee. It has been active in the protection and promotion of the Irish environment for approximately twenty years. That activity has included the bringing of legal proceedings challenging the legality of various decisions of state agencies potentially affecting the environment. In April 2018 it applied to the respondent for legal aid in connection with proposed proceedings in which it then intended to apply for leave to seek relief by way of judicial review of the Government's National Planning Framework and National Development Plan. That leave was granted on 14 May 2018 ( Friends of the Irish Environment v. Government of Ireland 2018/391 JR) (‘ the NDP case’). By decision of 12 November 2018, the respondent refused the applicant's application for legal aid. That decision was appealed internally and upheld by decisions dated 28 January and 11 February 2019. The principal basis for all of these decisions was that the Act did not enable the grant of legal aid to a body corporate.

3 . Meanwhile, the applicant proceeded with the NDP case, being represented throughout those proceedings by solicitor and counsel. Barr J. refused the relief claimed in that action on 24 April 2020 ( [2020] IEHC 225). That decision was unsuccessfully appealed to this Court ( [2021] IECA 317), the Supreme Court granting to leave to appeal that decision on 21 February 2022 ( [2022] IESCDET 22). In a judgment delivered by the Supreme Court on 9 November 2022 ( [2022] IESC 42), that Court referred certain questions arising in the case to the CJEU.

The decisions

4 . In their letter applying for legal aid of 18 April 2018, the applicant's solicitors asserted that the proceedings their client intended to institute were prohibitively expensive by reason of their complexity and bearing in mind the limited resources available to the applicant. In consequence – it was said – the State had an obligation under the Constitution, the Charter of Fundamental Rights of the European Union and the Aarhus Convention to grant legal aid so that the applicant could engage solicitors and specialist barristers to represent it in the NDP case.

5 . The letter prompted the respondent to revert with an application form. That form was clearly designed to process applications from natural persons (it referred, for example, to employment, pensions, social welfare income and spousal income). When the applicant's solicitors pointed this out by e-mail of 19 April 2018, the respondent replied thus:

‘ The Legal Aid Board provides legal advice and legal aid in civil cases to persons who satisfy the requirements of the Civil Legal Aid Act 1995. The principal requirements are that a person's financial means must be below a certain limit and there must be some merit in their case. Therefore Legal Aid is not available to a Company.’

6 . Following further correspondence, the applicant's solicitors (on 15 April 2018) completed the form insofar as possible to do so having regard to the applicant's corporate status, provided the respondent with the court papers (on 2 July 2018) and (on 12 November 2018) agreed to meet at the respondent's offices on 15 November as part of that application process. Then, on 12 November 2018, the respondent wrote cancelling that meeting, stating as follows:

‘ It has come to our attention that the Application for Legal Services received from you is being made by an organisation rather than by a ‘person’ as is required by the Civil Legal Aid Act 1995. It is accordingly not possible for the Legal Aid Board to provide legal services to you in those circumstances. Furthermore Section 27(9)(a) of the 1995 Act 2 provides that legal aid shall not be granted in respect of an application by or on behalf of a person who is a member, and acting on behalf, of a group of persons having the same interest in the proceedings concerned.’

7 . In their letter of 23 November 2018 appealing this decision, the applicant's solicitors stressed that there was...