Martin v Legal Aid Board

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 23 February 2007
• Neutral Citation: [2007] IEHC 76
• Court: High Court
• Docket Number: [2003 No. 6150 P
• Date: 23 February 2007

[2007] IEHC 76

THE HIGH COURT

RECORD NO. 2003/6150P

MARTIN & DOORLEY v LEGAL AID BOARD & ORS

BETWEEN/

CATHERINE MARTIN AND DIARMUID DOORLEY

PLAINTIFFS

AND

THE LEGAL AID BOARD, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

Abstract:

Constitutional law - Access to courts - Statutory interpretation - Statutory administrative powers - Legal professional privilege - Legal Aid Board - Disclosure of information given to Legal Aid Board solicitor by client to other authorised officers of Board for purpose of enabling Board to discharge its functions - Whether provision of information to Board would impact on client in connection with conduct of legal business in which he is represented and advised by Board's solicitor in manner inimical to fair, proper and efficient administration of justice - Whether such disclosure amounting to breach of legal professional privilege - Whether section of Act unconstitutional - Civil Legal Aid Act 1995, section 32 - Bunreacht na hÉireann, Articles 34, 38 and 40.

section 32 of the Civil Legal Aid Act 1995 provides, inter alia, that "(1) Save as otherwise specifically provided by this Act, the relationship between a solicitor or barrister and an applicant for, or a person in receipt of, legal aid or advice and the rights and privileges arising out of such relationship will be the same as the relationship between, and the rights and privileges arising out of the relationship between a solicitor or barrister and his or her client not being an applicant for, or a person in receipt of, legal aid or advice. (2) Notwithstanding the relationship between, or rights and privileges of, a solicitor or barrister and an applicant for, or a person in receipt of, legal aid or advice, a solicitor or barrister providing legal aid or advice shall, if so requested by a person authorised in that behalf by the Board, provide the person with any information, in such form as the person may specify, relating to legal aid or advice provided to or by an applicant or person in receipt of legal aid or advice, which is required by the Board for the purpose of enabling the Board to discharge its functions under this Act." The plaintiffs were solicitors employed by the respondent who were requested to disclose certain case files to the respondent's administrative staff under section 32(2) of the Act of 1995. They sought a declaration that the decision of the respondent to permit an unfettered right of access to case files was void, ultra vires and in breach of the provisions of the Constitution and, if necessary, a declaration that section 32(2) of the Act of 1995 was unconstitutional (with particular reference to Articles 34, 38 and 40 thereof), in that, inter alia, it unlawfully interfered with legal professional privilege.

Held by Miss Justice Laffoy in dismissing the plaintiffs' claim:

1. That the rationale of legal professional privilege, which was a fundamental condition on which the administration of justice rested, was that the client should not be inhibited in the conduct of litigation or in obtaining legal advice by forced disclosure of communications and advice.

2. That legal professional privilege only became operative to shield a client against disclosure in a forum in which the law would otherwise mandate disclosure to a person who was pursuing an agenda adverse to the interest which the client was seeking to protect and it ceased to operate as a protective mechanism for the client when litigation ceased but the duty of confidentiality endured.

3. That disclosure to an authorised person under section 32(2) of the Act of 1995 was for the purpose of ensuring that the statutory functions of the respondent were properly performed and any information so received could only be used for that purpose and was not a disclosure which required the protection of legal professional privilege.

4. That the umbrella of legal professional privilege extended to cover the respondent and its members and authorised officers because that was patently what the Oireachtas had intended in enacting section 32 of the Act of 1995. Accordingly, disclosure under a decision made by the respondent under section 32(2) could not result in the loss of legal professional privilege and there was a statutory embargo on privileged information which passed to an authorised officer or the respondent pursuant to section 32(2) being amenable to discovery.

5. Accordingly, the fact that an authorised person could insist on access to confidential and legally privileged information without the approval of the solicitor representing the client and without the express informed consent of the client did not have constitutional implications which impacted on the proper construction of section 32(2) of the Act of 1995.

Obiter dictum: That, irrespective of whether a client had initially signed a declaration that he was aware that any information disclosed to a solicitor employed by the respondent could be disclosed to such persons as were authorised under section 32(2) of the Act of 1995 to receive it, he was bound by the provisions of section 32(2) and had merely acknowledged what was the entitlement of the respondent and did not waive any right or entitlement by doing so.

Reporter: P.C.

1 Judgment of Miss Justice Laffoy delivered on 23rd February, 2007 .

The claim

2 In these proceedings the plaintiffs, who are solicitors employed by the first defendant (the Board), seek the following declaratory reliefs:

3 (a) a declaration that the decision of the Board to permit, by itself and/or by its authorised officers, an unfettered right of access to case files is void, ultra vires and in breach of the provisions of the Constitution and the European Convention on Human Rights; and

4 (b) if necessary, a declaration that s. 32(2) of the Civil Legal Aid Act, 1995 (the Act of 1995) is invalid and repugnant having regard to the provisions of the Constitution and, in particular, Articles 34, 38 and 40 thereof.

5 The issues in relation to the relief referred to at (a) arise between the plaintiffs and the Board. The issues in relation to the relief referred to at (b) arise between the plaintiffs and the second and third defendants (the State parties). However, the defences of the Board and the State parties overlap to a certain extent.

6 The factual identification of the impugned decision and its content, as pleaded, started with an assertion that on 4th April, 2001 the Board made a formal decision in purported exercise of the powers conferred by s. 32(2) of the Act of 1995 that authorised officers of the Board were entitled to access and to review reports, documents and communications contained in individual case files, notwithstanding that such information would normally attract the protection of solicitor-client confidentiality and/or legal professional privilege, and further decided that the right of access and review was absolute and that the Board did not need the consent of legal aid applicants to gain access to such files. The Board in its defence admitted that on 22nd March, 2001 (not on 4th April, 2001) it had made a decision, inter alia, that the process of access to files was to proceed in accordance with arrangements in place since the early 1980s, and that that decision was made in exercise of the powers conferred by s. 32(2). It was also admitted that some, but not all, of the information in the case files might enjoy legal professional privilege or be confidential. It was denied that the effect of the decision was that authorised officers would gain access to case files without the express or implied consent of the clients, or without the clients being aware of that possibility or unlawfully.

7 It was further pleaded by the plaintiffs that in or about June, 2001 the Board together with its authorised officers accessed case files in a number of Law Centres in the State, without prior consent, knowledge or waiver of the applicants for, or persons in receipt of, legal aid. The Board has admitted that such access occurred but has denied that it occurred without such prior consent, knowledge or waiver or, if it did, that such prior consent, knowledge or waiver was required.

8 Having referred to representations made by the first plaintiff and trade unions, acting on behalf of the interests of solicitors employed by the Board to the Board, it was pleaded by the plaintiffs that on 28th April, 2003 the Board decided to reaffirm its earlier decision in relation to entitlement to access case files and to confirm its intention to recommence access to case files as originally planned. This was admitted by the Board in its defence.

9 I have identified the impugned decision by reference to the pleadings primarily because the minutes of the relevant resolutions of the Board of 22nd March, 2001 and 28th April, 2003 were not put in evidence. There was a hiatus between the two decisions during which the parties consulted the Law Society, got legal advice and were in discussions with each other. The decision of the Board which precipitated these proceedings was the decision of 28th April, 2003, which on the pleadings and the evidence I consider to be the impugned decision.

10 These proceedings were initiated by plenary summons which issued on 21st May, 2003. As I understand the position, the Board has, effectively, suspended the implementation of the impugned decision pending the outcome of these proceedings.

What the impugned decision entails

11 Mr. Frank Brady, the Director of Legal Aid with the Board, testified as to how the implementation of the Board's decision would operate in practice. He explained the admission in the Board's defence that the Board's decision of 22nd March, 2001 was that access to case files was to proceed "in accordance with the arrangements in place since the early...