M.C. v The Legal Aid Board

• Jurisdiction: Ireland
• Judge: Mr Justice McGovern
• Judgment Date: 19 December 2018
• Neutral Citation: [2018] IECA 398
• Date: 19 December 2018
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 397 Record No. 2017/74

[2018] IECA 398

THE COURT OF APPEAL

McGovern J.

Peart J.

McGovern J.

Costello J.

Neutral Citation Number: [2018] IECA 397

Record No. 2017/74

BETWEEN/

M.C.

APPLICANT/APPELLANT

- AND -

THE LEGAL AID BOARD, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

Administrative & constitutional law - Judicial review – Legal aid – Civil legal aid – Whether available for s 5 Courts (No.2) Act 1986 – S 27 Civil Legal Aid Act 1995

Facts: The appellant was a party involved in family proceedings, which were civil in nature. S 5 of the Courts (No. 2) Act 1986 provided for the enforcement of orders in respect of the Guardianship of Infants Act 1964. The appellant considered the other party in the family proceedings was guilty of an offence under s 5 of the 1986 Act and sought legal aid which was declined. His claim for judicial review was refused and he now appealed seeking an interpretation of s 27 of the Civil Legal Aid Act 1995.

Held, that the appeal would be dismissed, as the appellant’s constitutional rights had not been breached and civil legal aid was not available in proceedings such as the instant case. The enforcement proceedings were not in connection with the civil proceedings, and the High Court was correct to determine that the instant proceedings were moot.

JUDGMENT of Mr Justice McGovern delivered on the 19th day of December 2018

1 This is an appeal from an order of Noonan J. delivered on the 17th January 2017 dismissing the appellant's application for judicial review of a decision by the first named respondent, who refused civil legal aid to him in respect of a prosecution under s. 5 of the Courts (No. 2) Act 1986 on the grounds that it was not within the first named respondent's remit as the s. 5 proceedings were criminal in nature and did not come within the scheme. The applicant also failed to obtain various ancillary declarations including declarations that his constitutional rights and his rights under the European Convention on Human Rights were breached. His claim for damages was also dismissed by the High Court judge.

2 The three principal issues that arise on this appeal are:-

(i) an interpretation of s. 27 of the Civil Legal Aid Act 1995 (‘the 1995 Act’) (as amended) and in particular a consideration of whether the s. 5 prosecution is a matter which is ‘…ancillary to or in connection with’ the Family Law civil proceedings which form the background to the application for legal aid;

(ii) Whether the appellant's constitutional rights or ECHR rights were infringed; and

(iii) whether these proceedings are moot.

3 There is no dispute among the parties that the family law proceedings were civil in nature and the appellant had been granted civil legal aid in those proceedings. Section 27 of the 1995 Act defined legal aid in the following terms:-

‘27. (1) In this Act ‘legal aid’ means representation by a solicitor of the Board, or a solicitor or barrister engaged by the Board under s. 11, in any civil proceedings to which this section applies and includes all such assistance as is usually given by a solicitor and, where appropriate, barrister in contemplation of, and ancillary to or in connection with, such proceedings, whether for the purposes of arriving at or giving effect to any settlement in the proceedings or otherwise’. (Emphasis added)

4 Section 27 applies to all civil proceedings other than those designated in s. 28 of the 1995 Act. None of the proceedings designated in s. 28 have any relevance to this application.

5 Section 5 of the Courts (No. 2) Act 1986 (‘the 1986 Act’) (as amended) provides for enforcement of certain orders under the Guardianship of Infants Act 1964 and s. 5(2) states:-

‘Without prejudice to the law as to contempt of court, where the District Court has made an order under section 7 or section 11 of the Act of 1964 containing a direction regarding-

(a) the custody of an infant, or

(b) the right of access to an infant,

any, person having the actual custody of the infant who, having been given or shown a copy of the order and-

(i) having been required, by or on behalf of a person to whom the custody of the infant is committed by the direction, to give up the infant to that person, or

(ii) having been required, by or on behalf of a person entitled to access to the infant in accordance with the direction, to allow that person to have such access,

fails or refuses to comply with the requirement shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding [€1,500] or, at the discretion of the Court, to imprisonment for a term not exceeding six months or to both such fine and such imprisonment.’ (Emphasis added)

Is the s. 5 prosecution ‘ancillary to or in connection with’ the family law proceedings?

6 In written submissions the first named respondent maintained that the appellant was not refused a legal aid certificate for representation in the s. 5 prosecution. This is based on correspondence from Mr. John Cooke, a solicitor in the Legal Aid Board on the 15th May 2015 wherein he wrote to the appellant stating, inter alia:

‘As such your next step is to prosecute [Ms. W.] for breach of this Access Order and unfortunately I cannot act for you in relation to same as there is an element of criminal proceedings in it. I note your instructions that I should forward your file to MacGuill and Co. solicitors. This will be done directly on receipt of your written instructions.’

7 At the hearing of the appeal it was accepted that for all practical purposes the appellant had made an application for legal aid in relation to the s. 5 prosecution notwithstanding the failure to apply for a certificate, and the appeal proceeded on that basis.

8 The appellant accepted that proceedings under s. 5 were criminal proceedings but argued that nonetheless they came within the scope of s. 27 as they were a means, indeed the only means, for enforcing compliance with orders in the family law proceedings. The appellant drew the Court's attention to the fact that the margin note referred to the enforcement of certain orders under the Guardianship of Infants Act 1964 which would be civil family law proceedings.

9 Order 58 of the District Court Rules which deals with custody and guardianship of infants refers at r. 4 to a s. 5 prosecution and requires that:

‘…the summons which may be issued and served upon the person against whom the offence is alleged shall be in the Form 58. 28 or 58.29 Schedule C, as appropriate…’

10 In this case the appropriate form is Number 58.29 which is headed ‘Schedule: C – Forms in civil proceedings’. (Emphasis added)

11 In Delaney v. Judge Coughlan & Ors [2012] IESC 40 MacMenamin J. held (at para. 17) that s. 18(g)(ii) of the Interpretation Act 2005 precluded the court from having regard to the heading at the beginning of Part 4 of the Proceeds of Crime (Amendment) Act 2005 as an aid to interpretation. Section 18(g)(i) states that subject to s. 7 ‘a marginal note placed at the side, or a shoulder note placed at the beginning, of a section or other provision to indicate the subject, contents or effect of the section or provision’ shall not be taken to be part of the enactment or be construed or judicially noticed in relation to the construction or interpretation of the enactment. Section 7 provides that:-

‘[I]n construing a provision of an Act for the purposes of section 5 or 6, a court may, notwithstanding section 18(g) make use of all matters that accompany and are set out in –

(a) in the case of an Act of the Oireachtas, the signed text of such law as enrolled for record in the Office of the Registrar of the Supreme Court...