Mannion v Legal Aid Board and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice McGovern |
| Judgment Date | 07 December 2007 |
| Neutral Citation | [2007] IEHC 413 |
| Court | High Court |
| Date | 07 December 2007 |
[2007] IEHC 413
THE HIGH COURT
BETWEEN
AND
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14
CIVIL LEGAL AID ACT 1995 S 24
CIVIL LEGAL AID ACT 1995 S 25
CIVIL LEGAL AID ACT 1995 S 26
CIVIL LEGAL AID ACT 1995 S 28
CIVIL LEGAL AID ACT 1995 S 32(2)
CONSTITUTION
EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(1)
CIVIL LEGAL AID ACT 1995 S 28(1)
CIVIL LEGAL AID ACT 1995 S 31
CIVIL LEGAL AID ACT 1995 S 32
CIVIL LEGAL AID ACT 1995 S 37
CIVIL LEGAL AID ACT 1995 S 26(1)
CIVIL LEGAL AID REGS 1996 SI 273/1996 ART 5(5)
CIVIL LEGAL AID REGS 1996 SI 8/2002 ART 3(a)
CIVIL LEGAL AID REGS 1996 SI 460/2006
MARTIN & DOORLEY v LEGAL AID BOARD & ORS 2007 1 ILRM 481 2007 IEHC 76
AIREY v IRELAND 1980 2 EHRR 305
SALIH v GENERAL ACCIDENT ASSURANCE 1987 IR 628
C (M) v LEGAL AID BOARD 1991 2 IR 43
WATKINSON v LEGAL AID BOARD 1991 2 AER 953
CIVIL LEGAL AID ACT 1995 S 30(1)
CIVIL LEGAL AID ACT 1995 S 30(3)
Mr. Justice McGovern on the 7th. day of December 2007
1. On 23 rd January, 2006 the applicant obtained leave to apply by way of judicial review in respect of the following reliefs:
(i) A declaration that in failing to assign a solicitor to interview the applicant to process her application for free legal services, other than a solicitor employed by the first named Respondent, the first named Respondent was acting contrary to the principles of constitutional justice and fair procedures, contrary to the provisions of the Legal Aid Act 1995, and was acting contrary to the Applicant's constitutional rights and rights enjoyed pursuant to articles 13 and 14 of the European Convention on Human Rights and was acting contrary to its statutory duty.
(ii) An order by way of certiorari of the decision of the Respondent on 19 th May, 2005 which was conveyed to the Applicant by way of letter of 26 th May, 2005.
(iii) An order of mandamus directing the first named respondent to forthwith assign to the Applicant a solicitor other than one employed by the first named respondent for the purposes of processing her application for free legal services.
(iv) A declaration that in so processing the Applicant's application for free legal services as referred in the proceedings herein, the first named Respondent is not entitled to any information on the legal proceedings giving rise to the application for free legal services from the solicitor so assigned to deal with the application referred to in the preceding paragraph herein.
(v) Further or in the alternative, a declaration that sections 24, 25, 26, 28 and 32(2) of the Civil Legal Aid Act, 1995 would, if applied in these proceedings, to the application made by the applicant herein, constitute a breach of her rights under the Constitution and under the European Convention on Human Rights.
(vi) A declaration that the first named Respondent in these proceedings has, in dealing with the Applicant and her application for free legal services, failed to perform its functions in a manner compatible with the State's obligations pursuant to the European Convention on Human Rights, contrary to the provisions of s. 3(1) of the European Convention on Human Rights Act, 2003.
i (vii) An order of certiorari of the memorandum dated 3 rd November, 2005 issued by the first named Respondent, and signed F.J. Brady Director of Legal Aid, entitled "note re provision of legal aid in cases where the Board is considering applications for legal aid to take proceedings against the Board".
(viii) A declaration that the Civil Legal Aid Act, 1995 fails to satisfy the constitutional obligations of the second and third named Respondents in relation to the provisions of free legal aid for civil cases and is in breach of the State's obligations pursuant to article 6 of the European Convention on Human Rights as applied in this jurisdiction by virtue of the European Convention on Human Rights Act, 2003.
(ix) If necessary, a declaration that the Civil Legal Aid Act, 1995 is incompatible with the European Convention on Human Rights.
(x) Alternatively, or in the alternative, an order of mandamus directing the second and third named Respondents to grant free legal aid and advice for the purposes of further processing the proceedings "The High Court, Record Number 2001/3145 P, between Dolores Mannion, plaintiff and Padraic Brennan and Padraic Colm Ferry. practising under the style and title of Ferrys and the Legal Aid Board".
(xi) Damages for breach of the Applicant's right to fair procedures, breach of statutory duty, negligence by the first named Respondent in or about the exercise of its statutory powers, functions and duties and breach of the Applicant's right enjoyed under the European Convention on Human Rights.
(xii) If necessary, an order extending the time within which this application can be made.
(xiii) Such further or other relief as to the court may seem fit.
(xiv) Costs.
2. At the commencement of the hearing the court was informed that the applicant was no longer seeking an order of mandamus as set out in para. (iii) above.
3. In 1989 the applicant purchased an apartment in Tralee, Co. Kerry and instructed Messrs. Hudson and Browne, Solicitors, to act on her behalf. She claims there were some problems relating to the apartment and the management company. Accordingly, she retained another firm of solicitors, namely, Messrs. Ferrys to commence proceedings against the vendor of the apartment and her former solicitors Hudson and Browne. Those proceedings were instituted in 1994 but the applicant was unhappy with the manner in which Messrs. Ferrys dealt with these proceedings and she then sought the services of the first named respondent. But the applicant felt that the first named respondent also acted negligently so she sued the first respondent and Messrs. Ferrys and for that purpose retained the services of Messrs. Brophys Solicitors. The proceedings were commenced by plenary summons on 1 st March, 2001. Shortly after the statement of claim was delivered Messrs. Brophys solicitors sought to come off record in the proceedings and were permitted to do so. On 11 th January, 2002 Messrs. Dockrell Farrell solicitors came on record on her behalf but some time later they too sought to come off record and were eventually permitted to do so.
4. At this point the applicant contacted the Law Centre in Tallaght for the purpose of seeking legal services in her action against the first named respondent and Messrs. Ferrys. That action has been adjourned because her application for legal aid has been delayed for reasons which are apparent in the course of this application.
5. In 2005 the applicant met with Mr. Liam de Feu, a solicitor employed by the first respondent at its Tallaght Law Centre. The applicant felt that it was inappropriate for the first respondent to assign a solicitor employed by it to her for the purpose of prosecuting her negligence action against the first respondent and the firm of solicitors. She set out her concerns in a letter of 18 th March, 2005 to Mr. Roling Ryan, Chief Executive Officer of the Legal Aid Board. The text of the letter reads as follows:
"Re: Mannion v. Legal Aid Board and Ferrys Solicitors"
Dear Mr. Ryan,
Further to my November 2004 application to the Legal Aid Board for financial support in the above legal action, my meeting with your solicitor, Mr. de Feu and our telephone conversation this morning, it is entirely out of the question that a L.A.B. employed solicitor be proposed to represent me: it would be a clear conflict of interest.
My case comes up for listing on 7 th April. In terms of financial support from the Board, I would appreciate authorisation and clarification of my position before that date. My case ought to have been heard last November: the delay is causing severe distress to both my family and me. I might add that I am fully aware of my rights under the European Convention.
I would greatly appreciate a reply at your convenience."
6. In subsequent correspondence the applicant requested the first named respondent to appoint a solicitor from private practice to represent her but she was advised by the first named respondent that they could only do so in circumstances where a panel of solicitors has been established for that purpose under the Civil Legal Aid Act, 1995. She was informed that no such panel has been established and that the first respondent had no plans to do so at present. She was also told that if such a panel existed the first respondent would be paying the private solicitor and perceptions of conflict of interest could still arise. The applicant for her part believes that a distinction should be drawn between a situation where the first respondent is merely paying the fees of the private solicitor and a situation where the solicitor is actually employed by the first respondent and takes instructions from the Board and has promotional prospects from the Board and is generally answerable to the Board as his or her employer.
The applicant lodged an appeal against the decision of the first named respondent not to appoint a private solicitor. The appeal was considered by the Board at a meeting of 19 th May, 2005 and the applicant's appeal was rejected. The first respondent wrote to the applicant on 26 th May, 2005 stating:
"The applicant should be informed that no panel of solicitors has been established under the Act for the purpose of such proceedings and...
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Mannion v Legal Aid Board
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Mannion v The Legal Aid Board
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