Monahan v Legal Aid Board and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice John Edwards
• Judgment Date: 06 October 2008
• Neutral Citation: [2008] IEHC 300
• Court: High Court
• Docket Number: [No. 1542 J.R./2007]
• Date: 06 October 2008

[2008] IEHC 300

THE HIGH COURT

[No. 1542 J.R./2007]

Monahan v Legal Aid Board & Ors

JUDICIAL REVIEW

BETWEEN

MARIE MONAHAN

APPLICANT

AND

THE LEGAL AID BOARD, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

CIVIL LEGAL AID REGS 1996 SI 273/1996 REG 16(3)

HOUSING (PRIVATE RENTED DWELLINGS) ACT 1982

CIVIL LEGAL AID ACT 1995 S29

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

CIVIL LEGAL AID REGS 1996 SI 273/1996 REG 16(1)(B)

CIVIL LEGAL AID ACT 1995 S29(2)

KEANE & NAUGHTON v BORD PLEANALA & CMRS OF IRISH LIGHTS 1997 1 IR 184

CRAIES & EDGAR CRAIES ON STATUTE LAW 7ED 1971 65

HOWARD v CMRS OF PUBLIC WORKS 1994 1 IR 101

DIRECT UNITED STATES CABLE CO LTD v ANGLO-AMERICAN TELEGRAPH CO LTD & ORS 1876-77 2 LR AC 394

KING v BURRELL 1840 12 A & E 460 113 ER 886

MACMANAWAY, IN RE 1951 AC 161

RAHILL v BRADY 1971 IR 69

INSPECTOR OF TAXES v KIERNAN 1981 IR 117 1982 ILRM 13

O'C (M) v MIN FOR HEALTH 2002 1 IR 234 2001/18/5089

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S5(1)

COURTS ACT 1981 S22

B (D) v MIN FOR HEALTH & HEPATITIS C COMPENSATION TRIBUNAL 2003 3 IR 12 2003/4/812

MULCAHY v MIN FOR MARINE UNREP KEANE 4.11.1994 1995/5/1198

B (D) v MIN FOR HEALTH UNREP O'NEILL 31.7.2002 2002/3/462

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S5

GOODEN v ST OTTERANS HOSPITAL 2005 3 IR 617 2001/11/2896

INTERPRETATION ACT 2005 S5

INTERPRETATION ACT 2005 S5(1)

INTERPRETATION ACT 2005 S5(2)

LAW REFORM CMSN REPORT ON STATUTORY DRAFTING & INTERPRETATION 2000 21

INTERPRETATION ACT 2005 S2(1)

CIVIL LEGAL AID ACT 1995 S24

CIVIL LEGAL AID ACT 1995 S26

CIVIL LEGAL AID ACT 1995 S28

CIVIL LEGAL AID REGS 1996 SI 273/1996 REG 16(1)

CIVIL LEGAL AID REGS 1996 SI 273/1996 REG 13(8)

CIVIL LEGAL AID ACT 1995 S37(1)

CIVIL LEGAL AID ACT 1995 S37(2)

CIVIL LEGAL AID REGS 1996 SI 273/1996 REG 13(1)

CIVIL LEGAL AID REGS 1996 SI 273/1996 REG 13(3)

CIVIL LEGAL AID ACT 1995 S37

INTERPRETATION ACT 2005 S7

BAKHT v MEDICAL COUNCIL 1990 1 IR 515 1990 ILRM 840 1990/1/52

MEDICAL PRACTITIONERS ACT 1978 S27(2)(D)

LEGAL AID

Civil litigation

Legal aid scheme - Financial eligibility for legal advice and aid - Refusal of legal aid - Disposable income - Allowances - Dependent allowance - Independent means of support - Whether regulation correctly interpreted - Whether discretion to provide legal aid or advice without reference to financial resources - Whether discretion fettered - Limited nature of powers Civil Legal Aid Regulations 1996 (SI 273/2006), reg 16 - Civil Legal Aid Act 1995 (No 32), s 29(2) - Claim dismissed (2007/1542JR - Edwards J - 6/10/2008) [2008] IEHC 300

Monahan v Legal Aid Board

Facts: The plaintiff, who sought to obtain legal aid in respect of a landlord and tenant dispute, exceeded the income threshold for legal aid by €217, the income eligibility level being €18,000. The plaintiff alleged that the Legal Aid Board (the Board) had fettered its discretion in s. 29 of the Civil Legal Aid Act 1995 to provide aid without regard to financial resources. The plaintiff sought to challenge the validity and constitutionality of s. 29 of the Civil Legal Aid Act 1995 and alleged that the Board had misinterpreted the definition of “dependents” by concluding that her nephew did not constitute a dependent because he had independent means. The issue arose as to the operation and interplay of ss. 29 and 37 of the Act, which provided that the Minister could enact regulations to give effect to the Act and whether the literal or purposive approach was to be applied to the sections.

Held by Edwards J. in dismissing the applicants claim against the first named respondent, that until such time as the Minister provided for a grant of legal aid irrespective of financial resources, the Board did not have further powers to provide such resources. The Board thus did not have any power or discretion to grant legal aid and that if a purposive approach was adopted, the correct interpretation of s. 29 was that it conferred a power on the board to grant legal aid without regard for financial resources only where such provision was made in the regulations.

Reporter: E.F.

JUDGMENT delivered by

Mr. Justice John Edwards

on the 6th day of October, 2008

1 The applicant is a single woman and she was born on the 28^th June, 1957. She works as a Sales Assistant employed by Dunnes Stores in the Ilac Centre in Dublin City Centre. She has been working there for thirty-three years. She resides at 89 Oxmanstown Road, Dublin 7, with her sister, Carol, and her nephew, Siva (Carol's adult son). Siva suffers from severe obsessive compulsive disorder and requires care and support on a full-time basis which he receives from his mother.

2 The house at 89 Oxmanstown Road is rented from Folio Homes Limited. It is a protected letting and the current tenants are the applicant and her sister as successors to their parents. Indeed, their parents were in turn successors to the original tenants namely the applicant's and Carol's maternal grandparents, Tim and Margaret Doran, who first came to live in the house in 1928. The applicant and Carol's father, Christopher Monahan, died in October, 1970. Their mother, Una Monahan, died on 22^nd September, 2001.

3 Shortly after their mother's death, a representative of Folio Homes Limited telephoned the house. The call was answered by the applicant's sister, Carol. The representative of Folio Homes Limited wanted to know in whose name the rent book should be following their mother's death. Apparently Carol was not sure and may have agreed to a suggestion by the landlord's representative that he should put her name on the book. Carol's sole name now appears on the rent book.

4 On 4^th October, 2006 Folio Homes Limited wrote to Carol enclosing a Notice to Quit which was due to expire on 6^th November, 2006. It was accompanied by a letter explaining that she might be entitled to a new tenancy and that if she wished to claim a new tenancy she would need to be legally represented and to take proceedings in the Circuit Court. She was advised to bring the enclosed Notice to Quit to the North Brunswick Street Law Centre. On 10^th October, 2006 the applicant and her sister, Carol, went along to the North Brunswick Street Law Centre and indicated their wish to apply for civil legal aid for the purpose of claiming a new tenancy in the house at 89 Oxmanstown Road. By a letter of the same date a law clerk at the North Brunswick Street Law Centre wrote to the applicant asking her to attend at the Law Centre on Friday, 10^th November, 2006 at a specified time for the purpose of completing an application form and financial assessment forms in respect of her proposed claim for civil legal aid. The applicant was concerned when she received this letter because it meant that her application for civil legal aid would not be assessed before the Notice to Quit was due to expire. Accordingly she and her sister went along to the constituency clinic of Mr. Bertie Ahem, T.D., and explained their problem to him. He wrote on their behalf to FLAC (Free Legal Advice Centres Limited) on 25^th October, 2006. FLAC is a voluntary, non-governmental service offering free advice at evening clinics in Dublin and around the country. However, it does not normally provide legal representation. In response to Mr. Ahem's communication the applicant and her sister were given an appointment to attend an evening clinic run by FLAC at North King Street. They duly attended and received reassurance that they were not about to be evicted and they were assisted by a volunteer at the said clinic to complete a Notice of Intention to claim relief for service on the landlord. The applicant and her sister were very grateful to receive this assistance but it was clear to them that they would also require representation in respect of the court application which was to follow, and FLAC would not be able to assist them in relation to that.

5 The applicant kept the Legal Aid Board appointment and attended at the North Brunswick Street Law Centre on 10^th November, 2006. She was informed on that morning that the person that she was due to see was in court and was given another appointment for the 14^th November, 2006. She attended again on that date and on this occasion filled in an application form. The person that she was dealing with then scrutinised the form and, having done so, informed the applicant that she would not qualify for legal aid. It was suggested to her that if she could get proof that her sister had no income and she could bring that proof to the Law Centre and it might make the difference. The applicant, however, was at a loss to know how she might prove a negative and was unable to produce any documents proving her sister's lack of income.

6 On 15^th November, 2006 the applicant received a letter from the North Brunswick Street Law Centre provisionally informing her that she did not satisfy the means criteria to allow her to avail of legal services. It further informed her that she was entitled to have her means verified by Head Office and the letter stated that if she wished to avail of that option she could contact the Law Centre. It was further suggested to her that if she had any further information pertaining to her adult sister's financial dependence on her she should forward it so that it could be included in any request to Head Office to verify her means.

7 On 12^th December, 2006 the applicant and her sister called to the FLAC offices on Dorset Street, Dublin, to seek advice in respect of the letter of 15^th November, 2006 and it was suggested to them that they should avail of the offer to have the applicant's means verified by the Head Office of the Legal Aid Board. The applicant then contacted the North Brunswick Street Law Centre and asked to have her means assessed by...