Health Service Executive -v- MB & anor (Costs - Closing Relationship with Solicitor)

CourtDistrict Court (Ireland)
JudgeToale J.
Judgment Date08 February 2011
Neutral Citation[2011] IEDC 3
Case OutcomeApproved
Date08 February 2011
[2011] IEDC 3
8 February 2011
1. Child 1, who is the subject of these procee dings, is a girl born in January 2005. She was made the subjec t of a full care order on 11
May 2006 and remains the subjec t of that o rder.
2. On 3 December 2009, the father issued an applicat ion for acc ess to the c hild. The said applicat ion was returnable for 10 December
2009. The matter c ame before the c ourt on seven oc casions, and was disposed of following hearing on 20 July 2010, save as to
cost s. The father’s applicat ion for cost s was heard on 8 F ebruary 2011.
3. The f ather’s solicitors issued the initial applicat ion on the fat her’s behalf and appeared on his behalf on eac h date the matter was
before the c ourt.
4. For reasons that this court has previously given in HSE and SK & CP [2010] IEDC 2, I am of the view that this court may award
cost s.
5. The HSE submits that t he father was entit led to apply for and (presumably) to obtain representat ion from the Legal Aid Board and
that, in circumstances w here such representat ion was available to him, the HSE ought not be required to pay t he costs of the legal
representation engaged by him. The HSE submits that it is not open t o the f ather to choose to engage a private solicitor and have
the c osts o f that solicitor met by t he HSE. The HSE submits that if there were diffic ulties in the past betwee n the fat her and the
Legal Aid Board, nevertheless it is incumbent on the fa ther to re- apply for legal aid. If it t hen transpired that t he Legal Aid Board were
unwilling or unable to provide legal aid to the father (including circumstances where such unwillingness or inability might arise as a
result of fat her’s own difficulties in availing of such legal aid), t hen the matte r of alternative representa tion funded by t he HSE might
fall to be c onsidered; however, that situation had not been reac hed or even explored in this case as no application for legal aid had
been made.
6. The f ather conf irms that he did not make an application to t he Legal Aid Board for legal aid in respect of t his matter.
7. The f ather has c onsiderable personal difficulties, including past difficulties in engaging with personnel of the HSE, Legal Aid Board,
and others. He spent considerable time in the care of the HSE or its predecessors. It was submitted that he effect ively is prevented
by disability from engaging with the HSE. It was submitted that during his dealings with the HSE, he built up a significant relationship
with his solicitor. His solicitor was a ppointed to ac t on his behalf pursuant to sec tion 25 of the Child Care Act 1991. It was submitted
that in light of the partic ular relationship betwee n the fa ther and his solicitor, and t he particular circumstanc es of t he ca se, the
father’s c osts ought to be a llowed against the HSE.
8. It is in the inte rests Child 1, who is the subject o f applications in this c ourt, and of her parents, t hat t he parents have acc ess to
legal advice and representat ion.
9. It is a matte r for the St ate t o provide a syst em whereby persons who cannot afford t o pay for legal representat ion can
nevertheless have a cc ess t o such representa tion. The system provided by the st ate in cases of this nature is provision of legal
representation by t he Legal Aid Board. Such representation would have bee n available to the father in this c ase had he pursued an
application. There is not hing to suggest that t he Legal Aid Board would have refused his application, or t hat the Legal Aid Board would
have dealt wit h his application any differently f rom any other applicant. If an applicat ion had been made to the Legal Aid Board for
legal aid, and if it was refused or if there was any inadequacy in t he representation provided by the Legal Aid Board, this might give
rise to grounds for the f ather to be allowed his cost s against the HSE; however, this st age was never reached as the fat her did not
apply for legal aid.
10. I acc ept that t here is a significant relationship between the fat her and his solicitor, which has been built up over a c onsiderable
period of time in the particular circumstances of the father being himself the subject of applications by the HSE. I do not acc ept that
the existenc e of suc h relationship entitles the father t o recove r his costs of instruct ing that s olicitor. Where representation is
available from the Legal Aid Board to t he fat her in a timely manner and at little or no c ost, there is an onus on him to avail of suc h
representation. Where there is no compelling reason as t o why t he father c ould not have availed of representat ion by the Legal Aid
Board, then if the fa ther choose s not t o avail of such representation, I am of t he view that he must bear the cost s of his
representation himself.

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