Monahan v Legal Aid Board

• Jurisdiction: Ireland
• Judgment Date: 06 October 2008
• Date: 06 October 2008
• Docket Number: [2007 No. 1542 JR]
• Court: High Court

Monahan v. Legal Aid Board

Marie Monahan

Applicant

and

The Legal Aid Board, The Minister for Justice, Equality and Law Reform, Ireland and The Attorney General

Respondents

[2008] IEHC 300,

[2007 No. 1542 JR]

High Court

Legal aid - Civil litigation - Legal aid scheme - Financial eligibility for legal 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 (S.I. No. 273), reg. 16 - Civil Legal Aid Regulations 2006 (S.I. No. 460), reg. 3 - Civil Legal Aid Act 1995 (No. 32), s. 29(2).

Statutory interpretation - Literal interpretation - Purposive interpretation - Whether language plain and unambiguous - Whether purposive approach to interpretation appropriate - Intention of legislature from Act as a whole - Limited nature of powers - Detailed regulations - Long title - Persons of insufficient means - Civil Legal Aid Act 1995 (No. 32), s. 29(2) - Interpretation Act 2005 (No. 23), s. 5.

Section 5(1) of the Civil Legal Aid Act 1995 provides:-

"The principal function of the [Legal Aid] Board shall be to provide, within the first respondent's resources and subject to the other provisions of this Act, legal aid and advice in civil cases to persons who satisfy the requirements of this Act."

Section 29(2) of the Act of 1995 provides, inter alia:-

"The Board may, in accordance with regulations under section 37, provide legal aid or advice to an applicant without reference to his or her financial resources and may waive any contribution payable pursuant to this section and to any other regulations under section 37 or may accept a lower contribution."

The Civil Legal Aid Regulations 1996, as amended by the Civil Legal Aid Regulations 2006, make provision for, inter alia,the criteria governing financial eligibility for legal aid and advice. Regulation 13(2) provides that financial eligibility shall be assessed by reference to the applicant's disposable income and, where appropriate, disposable capital. Regulation 16 provides that disposable income shall consist of income as assessed in accordance with the Regulations less a series of allowances. Regulation 16(1)(b) provides for an allowance of EUR1,600 per annum in respect of each of the applicant's dependants. "Dependants" are defined in reg. 16(3) as "dependent relatives or other persons permanently residing with the applicant, who are supported by the applicant and who do not have available to them independent means of support".

It was common case that none of the Regulations addressed the manner in which the first respondent could provide legal aid or advice to an applicant without reference to his or her financial resources.

The applicant was a single woman living with her sister and her nephew; her nephew required care and support on a full time basis. She sought legal aid from the first respondent for the purposes of applying to the Circuit Court for a new tenancy in respect of a house to which she and her sister were allegedly jointly successor tenants for the purposes of the Housing (Private Rented Dwellings) Act 1982.

The applicant was refused legal aid on the grounds that her disposable income exceeded the threshold specified by the Regulations of EUR18,000 per annum. The applicant appealed to the appeal committee of the first respondent on two grounds: first, that the first respondent erred in failing to give her the benefit of a dependants' allowance in respect of her sister and nephew and, second, that the first respondent had a residual discretion to grant legal aid without reference to her financial resources.

The appeal committee upheld the first respondent's refusal to grant a certificate of legal aid to the applicant.

The applicant sought an order of certiorari quashing the decision of the first respondent to refuse to grant her a certificate of legal aid. The applicant submitted that the first respondent erred in its interpretation of reg. 16(3) of the Regulations and in concluding that the applicant could not be granted a dependent allowance in respect of her sister and nephew. The first respondent contended that, as the mother of the dependent relative in question was in receipt of a One Parent Family Payment, it did not have discretion to grant the allowance. The applicant also submitted that the first respondent erred in holding that it had no discretion to provide legal aid to the applicant without reference to her financial resources. The first respondent contended that it did not have such discretion as its power to provide legal aid or advice to an applicant without reference to her financial resources was expressly stated to be subject to the Regulations made under s. 37 of the Act of 1995, which did not make such provision.

Held by the High Court (Edwards J.), in dismissing the applicant's claim as against the first respondent, 1, that the first respondent interpreted reg. 16(3) correctly in holding that the applicant was not entitled to the benefit of a dependants' allowance in circumstances where the applicant's sister was in receipt of a One Parent Family Payment and, as such, had available to her an independent means of support.

2. That, adopting a literal interpretation of s. 29(2) of the Act of 1995, the entitlement of the first respondent to provide legal aid or advice without reference to an applicant's financial resources arose only where it might be done so in accordance with the Regulations and, as the Regulations did not provide for the grant of legal aid without reference to financial resources, the first respondent did not have discretion to grant legal aid or advice without reference to the applicant's financial resources.

Bakht v. Medical Council [1990] 1 I.R. 515considered.

3. That, as the express language of s. 29(2) was plain and unambiguous and a literal interpretation would not be absurd or fail to reflect the legislative intent, there was no basis for contending that a purposive interpretation of s. 29(2) ought to be adopted.

4. That, even if a purposive approach to statutory interpretation was adopted and the court was to consider the intention of the legislature from the Act of 1995 as a whole, it was clear it was intended that the inclusion of the words "in accordance with the regulations" in s. 29(2) would act as a limitation on the power conferred on the first respondent. That the powers conferred upon the first respondent by the Act were limited in nature was apparent from s. 37 of the Act, which contemplated extremely detailed regulations and conferred the power to make those regulations upon the Minster alone.

5. That, it was evident from the long title to the Act of 1995 that the scheme of legal aid provided for under the Act was clearly directed towards persons who could not afford to pay for, and would thus be deprived of, legal services and, accordingly, absent express authorisation and guidance, the first respondent could not provide legal aid or advice to an applicant without considering his or her financial resources.

Cases mentioned in this report:-

D.B. v. Minister for Health (Unreported, High Court, O Néill J., 31st July, 2002) (H.C.); [2003] 3 I.R. 12 (S.C.).

Bakht v. The Medical Council [1990] 1 I.R. 515; [1990] I.L.R.M. 840.

Direct United States Cable Co. v. Anglo-American Telegraph Co.(1877) 2 App. Cas. 394; 216 L.J.P.C. 71; 36 L.T. 265.

Gooden v. St. Otteran's Hospital (2001) [2005] 3 I.R. 617.

Howard v. Commissioners of Public Works [1994] 1 I.R. 101; [1993] I.L.R.M. 665.

Inspector of Taxes v. Kiernan [1981] I.R. 117; [1982] I.L.R.M. 13.

Keane v. An Bord Pleanála (No.2) [1997] 1 I.R. 184.

King v. Burrell (1840) 12 Ad. & El. 460; 4 Per. & Dav. 207; 4 Jur. 1109; 113 E.R. 886; sub. nom. R. v. Burrell 9 L.J.Q.B. 337; 4 J.P. 556.

In re MacManaway [1951] A.C. 161; 66 T.L.R. (Pt. 2) 808; 94 S.J. 687.

Mulcahy v. Minister for the Marine (Unreported, High Court, Keane J., 4th November, 1994).

M.O'C. v. Minister for Health [2002] 1 I.R. 234.

Rahill v. Brady [1971] I.R. 69.

Salomon v. Salomon and Co. Ltd. [1897] A.C. 22; 66 L.J. Ch. 35; 75 L.T. 426; 13 T.L.R. 46; 41 S.J. 63; 4 Mans. 89; 45 W.R. 193.

Tinkham v. Perry [1951] 1 K.B. 547; [1951] 1 All E.R. 249; [1951] 1 T.L.R. 91; 95 S.J. 107.

Judicial review

The facts have been summarised in the headnote and are more fully set out in the judgment of Edwards J., infra.

By order of the High Court (Peart J.), dated the 26th, November 2007, the applicant was granted leave to apply by way of judicial review for, inter alia, an order of certiorariquashing the decision of the first respondent made on the 18th May, 2007, refusing her a certificate of legal aid.

By order of the High Court (Gilligan J.), dated the 10th March, 2008, the applicant was given liberty to file an amended statement of grounds to incorporate challenges to further decisions of the first respondent of the 21st December, 2007 and the 31st January, 2007.

The applicant also contended on various grounds that the scheme provided under the Act of 1995 and the Regulations was unconstitutional and was incompatible with the State's obligations under the European Convention on Human Rights. The parties agreed that the court should first address the issues relating to the first respondent's interpretation of the Act of 1995 and of the Regulations.

The issues relating to the first respondent's interpretation of the Act of 1995 and of the Regulations were heard by the High Court (Edwards J.) on the 24th June, 2008.

Cur. adv. vult.

Edwards J. 6th October, 2008

Factual background

[1] The applicant is a single woman and she was born on the 28th June, 1957. She works as a sales assistant employed by Dunnes Stores in the Ilac Centre in Dublin City Centre. She...