Friends of The Irish Environment CLG v The Legal Aid Board

• Jurisdiction: Ireland
• Judge: Mr. Justice Murray
• Judgment Date: 22 March 2023
• Neutral Citation: [2023] IECA 63
• 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 63

Barniville P.

Murray J.

Noonan J.

High Court Record No. 2019/169JR

Court of Appeal Record No. 2021/01

THE COURT OF APPEAL

CIVIL

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Murray delivered on the 22nd of March 2023

1 . In my first judgment in this matter ( [2023] IECA 19), I rejected the claim of the applicant that notwithstanding that it is a body corporate it was a ‘person’ for the purposes of those provisions of the Civil Legal Aid Act 1995 ( ‘the 1995 Act’) addressing eligibility to apply for, and obtain, legal aid from the respondent. Although the applicant had contended, amongst other things, that it had a right to seek legal aid for certain types of proceedings pursuant to Article 47 of the EU Charter on Fundamental Rights and Freedoms, I found that this did not advance the claim it made in this action as an interpretation of the 1995 Act that rendered bodies corporate eligible to apply for and obtain legal aid pursuant to that statute would be contra legem the statute.

2 . Nonetheless, observing that there might 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, and noting that the issue of whether a reference should be made to the CJEU regarding this question had not been argued in the course of the appeal, I allowed the applicant the opportunity to make further submissions (if it wished) as to the basis for such a reference. I made clear in my judgment that any consideration of the issue of making a reference must proceed on the assumption that the interpretation of the 1995 Act urged by the applicant would be contra legem that Act, as I had found.

3 . The applicant accepted that invitation and made most helpful submissions, as did the respondent and the Attorney General in reply. The applicant wishes to have the following questions referred to the CJEU:

• i. Whether Article 47 of the Charter requires Member States to have in place a legal aid scheme that may be availed of in cases involving litigation that engages EU law, that is open in principle to legal persons?

• ii. Whether, having regard to a combination of Article 47 of the Charter, and Article 9 of the Aarhus Convention, there is an enhanced or different obligation to provide access to legal aid in environmental matters, as opposed to other litigation?

4 . In my judgment, I noted some potential difficulties in making such a reference. The only case made by the applicant both in this Court, and before the High Court, was that the relevant provisions of the 1995 Act must be interpreted as extending to corporate persons, and the argument around Article 47 of the Charter was presented on that – and only on that – basis. Given that I had decided that the 1995 Act could not be so interpreted, I was concerned as to how an argument based on Article 47 could advance the applicant's case.

5 . In response, the applicant says that in these proceedings it did not take any issue with the provision of legal aid to natural persons. Therefore, it did not seek any orders questioning the lawfulness of the 1995 Act. Instead, it made two points – (a) that EU law requires at least the possibility of legal aid for bodies corporate and (b) that in the light of this the 1995 Act should be given a conforming interpretation so that the applicant's application for legal...