M.C. v Legal Aid Board

• Jurisdiction: Ireland
• Judgment Date: 01 January 1991
• Date: 01 January 1991
• Docket Number: [1990 No. 177 J.R.]
• Court: High Court

C. v. Legal Aid Board

M.C.

Applicant

and

The Legal Aid Board, The Minister for Justice and The Attorney General

Respondents

[1990 No. 177 J.R.]

High Court

Constitution - Right of access to the courts - Legal aid - Nullity proceedings challenging applicant's constitutionally recognised status of marriage - Whether State obliged to provide legal aid to applicant to assist her defending such proceedings - Whether State failing to vindicate applicant's right of access to the courts by piling to provide legal aid - Whether applicant had right to legal aid - Whether applicant had legitimate expectation of such aid being provided - Constitution of Ireland, 1937, Arts. 40, s. 3 sub-s. 1 and 41, s. 3, sub-s. 1.

Legal aid - Civil litigation - Legal aid scheme administered by Board - Obligation on Board to decide whether application for legal aid should be granted - Delay in considering application due to shortages of funding and staff - Whether Board obliged to consider application.

Judicial review - Mandamus - Principles on which mandamus granted - Must be effective to remedy actual or imminent wrong - Rules of the Superior Courts, 1986 (S.I. No. 15), O.84.

In 1986 the Slate (represented by the second and third respondents) adopted a scheme of legal aid and advice for the purpose of enabling persons of limited means to obtain legal services. The scheme is administered by the first respondent ("the Board") which is responsible for the allocation of funds and resources made available by the State. The Board allocates funds for legal aid to applicants who satisfy a means test and whose cases meet certain criteria.

The applicant, a separated woman with one child living on social welfare, was served with High Court nullity proceedings by her husband. She applied for legal aid in relation to these proceedings. The consideration of her application was deferred by the Board because of a backlog of claims due to inadequate levels of staff and resources to meet the demands made on the Board under the scheme. Because of this delay the applicant issued these proceedings seeking, inter alia, an order of mandamus directing the Board to consider and to decide upon her application and various declarations that the actions of the respondents constituted a failure to vindicate her constitutional right of access to the courts. The applicant claimed that the failure of the Board to consider her application in sufficient time to allow for the preparation of her case was a denial of her right of access to the courts to defend her constitutionally recognised status of marriage. Whether the delay was reasonable could only be determined by the Board after having considered the nature and merits of her application. The applicant also claimed that, in establishing the scheme, the State created a legitimate expectation for her that her application would be decided upon in order to vindicate her right of access to the courts.

The Board argued that the State was responsible for any failure on the part of the Board attributable to the State's failure to make sufficient funds available to operate the scheme fully and that the State cannot delegate functions to the Board without providing the means for their discharge. The Board argued further that mandamus should not be ordered to compel it to do something only possible at the expense of other applicants for legal aid who were not represented before the court.

The State argued that there had been no infringement of any constitutional right of access to the courts as such right only related to the right to initiate proceedings and did not extend to the right to be assisted by the State in the defence of civil litigation.

Held by Gannon J., in refusing an order of mandamus but in granting some of the declarations sought, 1, that the principles applicable to the granting of an order of mandamus were similar to those governing the granting of injunctions and mandamus should not be granted unless it would be effective to remedy a wrong done or to prevent an imminent risk of harm. The applicant had not established sufficient risk of actual or threatened harm to her attributable to the Board to warrant such an order.

2. That there was no duty owed personally to the applicant by the State by virtue of her being a party to civil litigation in a forum provided by the State.

3. That the fact that the litigation in which the applicant was involved concerned her personal right to the constitutionally recognised status of marriage did not impose any duty on the State to intervene in such litigation.

4. That the adoption of the legal aid scheme did not impose on the State an obligation to provide legal aid to any individual litigant but did impose a duly to ensure that the scheme was administered fairly and fulfilled ils purpose.

5. That an individual citizen did not have a constitutional right to require that the State provide financial support for civil litigation of a dispute with another citizen.

6. That there was no evidence of any representation made by the respondents which induced the applicant to act to her detriment and, accordingly, she did not have a legitimate expectation to financial assistance in the preparation of her case.

7. That the Board was obliged to consider the applicant's application for legal aid within a reasonable time in order to determine if the application deserved priority and the refusal to consider the application was an unlawful fettering of the Board's discretion to decide whether legal aid should be granted. However, as the applicant had not established that any harm was caused to her by the Board's delay, the appropriate order was a declaration as to the Board's obligations and not an order of mandamus.

Cases mentioned in this report:—

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

Amalgamated Property Co. v. Texas Bank [1982] Q.B. 84; [1981] 3 W.L.R. 565; [1981] 3 All E.R. 577; (1981) 125 S.J. 623.

O'Brien v. Keogh [1972] I.R. 144.

R. v. Bristol Corporation; ex p. Hendy [1974] 1 W.L.R. 498; [1974] 1 All E.R. 1047.

The State (Healy) v. Donoghue [1976] I.R. 325; (1976) 112 I.L.T.R. 37.

The State (Macauley) v. The Minister for Posts and Telegraphs [1966] I.R. 345.

The State (McCormack) v. Curran [1987] I.L.R.M. 225.

The State (Quinn) v. Ryan [1965] I.R. 70; (1964) 100 I.L.T.R. 105.

Webb v. Ireland [1988] I.R. 353; [1988] I.L.R.M. 565.

Judicial Review.

On the 30th July, 1990, the applicant's ex parte application to the High Court (Lavan J.) for leave to apply for judicial review was granted. On the same date the applicant filed an application seeking an order of mandamus directing the first respondent to consider and to decide upon her application for legal aid and various declarations that the respondents were infringing her right of access to the courts by their failure to provide legal aid. The facts are summarised in the headnote and fully set out in the judgment of Gannon J., infra.

Pursuant to notice of motion dated the 9th August, 1990, the matter was heard by the High Court (Gannon J.) on the 3rd, 4th and 5th of October, 1990.

Cur. adv. vult.

Gannon J.

By his order of the 30th July, 1990, Lavan J. gave leave to the applicant to apply to this court by way of judicial review for an order of mandamus and declaratory orders against the respondents. The nature of the reliefs sought are stated as follows in Lavan J.'s order:—

"(A) An order pursuant to O. 84, r. 18 of the Rules of the Superior Courts, 1986, of mandamus directing the first respondent, its officers and such duly appointed committee of its members as may be appropriate to process, consider and decide upon the applicant's application for civil legal aid and advice pursuant to the scheme of civil legal aid and advice and in accordance with law.

(B) If necessary, an order pursuant to the provisions of O. 84, r. 21 of the Rules of the Superior Courts, 1986, extending the time within which the within application may be brought.

(C) A declaration that the respondents are guilty of an infringement of the applicant's constitutional right of access to this court.

(D) A declaration that the first respondent is obliged to consider the application of the applicant for civil legal aid and advice within a reasonable time and further that the first respondent has failed to do so.

(E) A declaration that the first respondent's failure to process, consider and decide upon the applicant's application for civil legal aid constitutes a breach of the applicant's legitimate expectation that her application will be processed and decided upon within a reasonable period.

(F) A declaration that the first respondent's refusal to process and consider the applicant's application for civil legal aid and advice constitutes an unlawful fettering of the discretion vested in it in that behalf to consider and decide upon the application made by the applicant to the first respondent under the scheme of civil legal aid and advice.

(G) A declaration that the failure of the third respondent to provide the applicant with civil legal aid and advice or to ensure that her application for same to the first respondent is adjudicated upon within a reasonable period is in breach of the applicant's constitutional rights and in particular her rights under Article 40, s. 1 and Article 40, s. 3 of the Constitution.

(H) A declaration that the first respondent in failing to process consider and decide upon the applicant's application for civil legal aid and advice within a reasonable period is acting ultra vires the provisions of the scheme of civil legal aid and advice."

The additional reliefs mentioned in that order at paragraphs (I) and (J) are now not being sought, and that at paragraph (B) is no longer necessary. The statements of opposition consist of denials and traverses on the facts and do not raise any controverted issues of fact.

The circumstances giving rise to this application and to the grounds...