O'Shea v Legal Aid Board

• Jurisdiction: Ireland
• Judge: Ms Justice Baker
• Judgment Date: 31 July 2020
• Neutral Citation: [2020] IESC 51
• Court: Supreme Court
• Docket Number: S:AP:IE:2019:000165
• Date: 31 July 2020

Between/

Paul O'Shea

Applicant/Respondent

- And -

The Legal Aid Board, Ireland

And

The Attorney General And by Order The Minister for Justice And Equality

Respondents/Appellants

[2020] IESC 51

Clarke C.J.

MacMenamin J.

Dunne J.

Charleton J.

Baker J.

S:AP:IE:2019:000165

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Judicial review – Costs – Legal fees – Appellants appealing from the order of the High Court granting judicial review of the refusal of the first appellant to pay the costs and/or fees and expenses incurred by the respondent – Whether the first appellant was bound by a recommendation made by a court under the Legal Aid-Custody Issues Scheme that the legal fees of a party be discharged through the Scheme

Facts: The respondents/appellants, the Legal Aid Board, Ireland, the Attorney General and the Minister for Justice and Equality, appealed to the Supreme Court pursuant to Article 34.5.4° of the Constitution directly from the order of Simons J made on 25 July 2019, for the reasons set out in a written judgment, O’Shea v Legal Aid Board [2019] IEHC 385, granting judicial review of the refusal of the Board to pay the costs and/or fees and expenses incurred by the applicant/respondent, Mr O’Shea, in accordance with the recommendation made by Humphreys J by his order of 6 February 2017: O'Shea v Ireland [2017] IEHC 9. The central question for determination was whether the Board was bound by a recommendation made by a court under the Legal Aid-Custody Issues Scheme that the legal fees of a party be discharged through the Scheme.

Held by Baker J that the trial judge was correct in his characterisation of the proceedings as properly coming within the Scheme, but it was not appropriate to make an order of mandamus to direct the Board to pay out under the Scheme merely on account of the fact that a recommendation was made, and the Board was entitled to, and did come to, a decision as to the eligibility of the applicant to be considered under the Scheme, and an order of mandamus was not an appropriate response to the failure by the Board to pay out under the Scheme although the Board had made an error concluding that the proceedings were not eligible under the Scheme.

Baker J held that, in the circumstances, she would allow the appeal in part and set aside that part of the order of Simmons J that granted an order of mandamus directing the Board to pay the costs for which the recommendation of Humphreys J had made provision.

Appeal allowed in part.

JUDGMENT of Ms Justice Baker delivered 31 July, 2020

1 This appeal concerns the operation of the Legal Aid - Custody Issues Scheme (“the Scheme”), formerly and still commonly known as the Attorney General's Scheme, a non-statutory scheme for the payment by the State of legal costs in certain types of cases, and which is now administered by the Legal Aid Board (“the Board”). The central question for determination is whether the Board is bound by a recommendation made by a court under the Scheme that the legal fees of a party be discharged through the Scheme.

2 It is an appeal by the Board and the State appellants pursuant to Article 34.5.4° of the Constitution directly from the order of Simons J. made on 25 July 2019, for the reasons set out in a written judgment, O'Shea v. Legal Aid Board [2019] IEHC 385, granting judicial review of the refusal of the Board to pay the costs and/or fees and expenses incurred by the respondent in accordance with the recommendation made by Humphreys J. by his order of 6 February 2017: O'Shea v. Ireland [2017] IEHC 9.

The factual and legal background

3 On 10 May 2011, the respondent, Mr O'Shea, was sentenced to 5 years’ imprisonment with the final 3 years suspended under s. 15 of the Misuse of Drugs Act 1977, as amended. On 27 October 2015, Mr O'Shea pleaded guilty to committing during the period of suspension a triggering offence under s. 4 of the Criminal Justice (Theft and Fraud) Act 2001, the effect of which was to reactivate the suspended sentence under s. 99 of the Criminal Justice Act 2006 (“the 2006 Act”).

4 On 19 April 2016, Moriarty J. held, in Moore v. DPP [2016] IEHC 244, [2018] 2 IR 170, that subsections 9 and 10 of s. 99 of the 2006 Act were unconstitutional.

5 On 3 May 2016, Mr O'Shea initiated judicial review proceedings impugning the constitutionality of s. 99(11) of the 2006 Act on the grounds that the section can, and did in his case, result in excessive and disproportionate sentencing.

6 On 19 January 2017, Humphreys J. dismissed the application for judicial review on the grounds that, when imposing a sentence on the subsequent offence, the sentencing judge can prevent the sentence from becoming disproportionate and excessive by considering the totality of the duration of custody. He did not award costs against Mr O'Shea.

7 An application was made for a recommendation from the court pursuant to the Scheme and Humphreys J. directed that the application be made on notice to the Board.

8 The Board was notified of the making of an application and counsel attended on behalf of the Board at the hearing and informed the court that the Board was neutral as to whether a recommendation was made and that it did not have any role in relation to the decision of the court to grant or refuse a recommendation. After hearing argument from counsel for the applicant and considering the evidence of the income and means of the applicant, Humphreys J. made the order recommending the payment of Mr O'Shea's legal costs in accordance with the Scheme.

9 The Board refused to discharge the costs on the stated basis that the Scheme did not apply because the proceedings did not come within the class of proceedings to which the Scheme applies.

10 On 6 November 2017, Mr O'Shea commenced the present judicial review proceedings seeking, inter alia, an order of mandamus directing the Board to pay the costs and/or fees and expenses incurred in respect of the earlier judicial review proceedings in accordance with the recommendations of Humphreys J.

The judgment of the High Court

11 On 4 June 2019, Simons J. gave judgment in favour of Mr O'Shea, holding that he was entitled to be paid his costs from the Scheme. He held that a recommendation given by the court is dispositive in the sense that it determines conclusively whether an applicant is entitled to the benefit of the Scheme, that as the court is the arbiter of whether the Scheme applies to particular proceedings the Board had breached the express terms of the Scheme, which, in his view, restricts the role of the Board to assessing the quantum of costs to be paid.

The evolution of the Scheme

12 The Scheme derives from Application of Woods [1970] IR 154, an enquiry pursuant to Article 40 of the Constitution. In the course of the hearing, an undertaking was given by the Attorney General which formed the basis of the Scheme as it evolved. Walsh J. records the undertaking at p. 166:

“In my opinion the grounds of complaint in these applications were so devoid of substance and difficulty that it was not necessary for this Court to assign counsel to make submissions in support of the applications. I think it right, however, to take this opportunity to mark as a notable contribution to the cause of personal liberty the undertaking on behalf of the Minister for Finance and of the Attorney General, given in respect of this application and of every application for habeas corpus made henceforward, to defray the cost of solicitor and counsel for applicants who are not in a financial position to engage such professional representation whenever the High Court or this Court, as the case may be, considers it proper that solicitor and counsel should be assigned by the court concerned to make submissions in support of the application.”

13 As O'Donnell J. said in Minister for Justice and Equality v. O'Connor [2017] IESC 21, at para. 15:

“While the court was careful not to stop short of suggesting that legal aid was required to be available in every case involving the liberty of the citizen, and was not provided in Woods case itself, it is difficult to avoid the conclusion that the scheme was understood, at least in part, to be required to meet the State's constitutional obligations. Because the matter arose the way it did, it was itself not the subject of detailed argument and a judgment, and therefore the argument was not fully developed. However, it is difficult to conclude that in some cases at least, the provision of legal aid was more than merely a generous gesture on behalf of the State, but rather was a constitutional obligation.”

14 Later in the judgement, O'Donnell J., in a discussion concerning the difference between the provision of legal aid under the statutory civil legal aid scheme in the Criminal Justice (Legal Aid) Act 1962, and the non-statutory administrative scheme said that “[i]n those cases to which the 2013 scheme [the Legal Aid - Custody Issues Scheme] applies, the law is to be found in a detailed administrative scheme and underpinned by the Constitution”, and described the Scheme as one that could not be arbitrarily withdrawn, and which was capable of being enforced by action.

15 There followed the adoption and publication of a number of schemes, the history whereof is set out in the judgement of Bums J. in McDonagh v. Legal Aid Board [2018] IEHC 558. The statistics advanced by the Board show that the Scheme operates successfully and there have been few problems in its operation. In practice, a recommendation made by a court is almost never queried by the Board. It seems that from 2012 to June 2019, 1,200 applications for legal aid under the Scheme have been received, and access to the Scheme was refused on 11 occasions only, three at least of which have been the subject of successful applications for judicial review. The cost of the Scheme in 2016 was €3.2 million. More up to date figures and...