O'Shea v The Legal Aid Board
| Jurisdiction | Ireland |
| Judge | Mr Justice Garrett Simons |
| Judgment Date | 04 June 2019 |
| Neutral Citation | [2019] IEHC 385 |
| Court | High Court |
| Docket Number | 2017 No. 822 J.R. |
| Date | 04 June 2019 |
[2019] IEHC 385
THE HIGH COURT
JUDICIAL REVIEW
Simons J.
2017 No. 822 J.R.
AND
Judicial review – Costs – Order of mandamus – Applicant seeking an order of mandamus directing the respondent to pay the costs and/or fees and expenses incurred in respect of earlier judicial review proceedings – Does the power to decide whether particular proceedings are eligible for the Legal Aid – Custody Issues Scheme reside with the High Court or with the Legal Aid Board
Facts: The High Court (Humphreys J) made an order in earlier proceedings taken by the applicant, Mr O’Shea, recommending the payment by the State of the costs incurred by the applicant in those proceedings in accordance with the Legal Aid – Custody Issues Scheme. That order was dated 6 February 2017, and had been made in circumstances where the first respondent, the Legal Aid Board, had had an opportunity to make submissions to the court as to whether or not the Scheme did apply to the proceedings. Notwithstanding the clear terms of the order of 6 February 2017, the Legal Aid Board maintained the position that it was entitled to disregard the recommendation of the High Court and to decide instead that the Scheme did not apply to the earlier proceedings. The applicant issued judicial review proceedings on 6 November 2017 seeking, inter alia, an order of mandamus directing the Legal Aid Board to pay the costs and/or fees and expenses incurred in respect of the earlier judicial review proceedings.
Held by the High Court (Simons J) that the position adopted by the Legal Aid Board was in breach of the express terms of the Scheme. Simons J held that it was the High Court—and not the Legal Aid Board—which had jurisdiction to determine eligibility; the function of the Legal Aid Board was confined to one of assessing or measuring the quantum of legal costs to be paid. Simons J held that the issue of principle as to whether an applicant is entitled to legal costs is conclusively determined by the recommendation of the High Court; this is subject to an exception where it is subsequently found that an applicant has provided misleading or substantially incomplete information in respect of their financial means.
Simons J held that the applicant was entitled to recover his costs, as assessed and measured by the Legal Aid Board, in respect of the first set of judicial review proceedings.
Order granted.
The within proceedings raise a net issue as to the interpretation of the ‘Legal Aid – Custody Issues Scheme’ (‘ the Scheme’). The Scheme is a non-statutory scheme administered by the Legal Aid Board from funds made available from the Vote of the Department of Justice and Equality. The point of interpretation centres on a question of jurisdiction, namely, does the power to decide whether particular proceedings are eligible for the Scheme reside with the High Court or with the Legal Aid Board.
The High Court (Humphreys J.) had made an order in earlier proceedings taken by the Applicant herein recommending the payment by the State of the costs incurred by the Applicant in those proceedings in accordance with the Legal Aid – Custody Issues Scheme. This order is dated 6 February 2017, and had been made in circumstances where the Legal Aid Board had had an opportunity to make submissions to the court as to whether or not the Scheme did apply to the proceedings.
Notwithstanding the clear terms of the order of 6 February 2017, the Legal Aid Board now maintains the position that it is entitled to disregard the recommendation of the High Court and to decide instead that the Scheme did not apply to the earlier proceedings.
For the reasons set out herein, I am satisfied that the position adopted by the Legal Aid Board is in breach of the express terms of the Scheme. It is the High Court—and not the Legal Aid Board—which has jurisdiction to determine eligibility. The function of the Legal Aid Board is confined to one of assessing or measuring the quantum of legal costs to be paid. The issue of principle as to whether an applicant is entitled to legal costs is conclusively determined by the recommendation of the High Court. (This is subject to an exception where it is subsequently found that an applicant has provided misleading or substantially incomplete information in respect of their financial means. See further paragraph 47 below).
The dispute in the present proceedings concerns the legal costs of an earlier set of judicial review proceedings taken by Mr Paul O'Shea, the Applicant herein. ( O'Shea v. Ireland & Ors., High Court 2016 No. 276 J.R.). The earlier proceedings had sought to challenge the constitutionality of certain provisions of the Criminal Justice Act 2006. More specifically, the proceedings sought to challenge an aspect of the provisions governing the reactivation of a suspended sentence. In brief, where a person who has received a suspended sentence is subsequently convicted of another offence (‘ the triggering offence’), the court has jurisdiction to reactivate the suspended sentence, in whole or in part. Any sentence imposed in respect of the triggering offence must run consecutively to the earlier sentence. The court does not have discretion to impose a concurrent sentence. See Section 99(11) of the Criminal Justice Act 2006 (as it stood in 2016).
‘(a) Where an order under subsection (1) is revoked under subsection (10), a sentence of imprisonment (other than a sentence consisting of imprisonment for life) imposed on the person concerned under subsection (10A) shall not commence until the expiration of any period of imprisonment required to be served by the person under subsection (10).
(b) This subsection shall not affect the operation of section 5 of the Criminal Justice Act 1951.’
The Applicant had sought to argue that these statutory provisions would result in the imposition of an unconstitutionally excessive and disproportionate sentence.
The earlier proceedings were heard by the High Court (Humphreys J.) over the course of two days, and, by reserved judgment dated 19 January 2017, O'Shea v. Ireland [2017] IEHC 9, the application for judicial review was dismissed.
It seems that a dispute then arose as to whether the proceedings were eligible under the Scheme. As will be explained shortly, this dispute centred on the fact that the principal relief sought in the proceedings had been an injunction rather than an order of prohibition. See further paragraph 54 below. What is relevant for present purposes is that Humphreys J. directed that the Legal Aid Board be put on notice of the application by the Applicant that the court make a recommendation pursuant to the Scheme.
The Applicant's solicitors accordingly wrote to the Legal Aid Board on 20 January 2017. Having set out the background to the proceedings, the letter then stated as follows.
‘Senior Counsel applied for a Recommendation under the Scheme, but a question arose as to whether the case fell within the terms of the Scheme, since the case against the [Circuit Court] Judge had been struck out and the Application proceeded only as an Application for a Declaration and an Injunction. Senior Counsel submitted that the Application for an Injunction brought the case within the spirit, if not the letter, of the Scheme.
Mr Justice Humphreys has now listed the matter for mention before him on Monday the 6th of February 2017, in order to enable the Legal Aid Board to consider whether it wishes to make submissions on the question whether the case comes within the scheme.’
It seems that, following on from this letter, the junior counsel who had previously been representing Ireland and the Attorney General in the proceedings was then briefed to make limited submissions on behalf of the Legal Aid Board.
It appears from the transcript of the hearing before Humphreys J. on 6 February 2017 that counsel for the Legal Aid Board simply drew the court's attention to the fact that the Scheme is confined to reliefs by way of certiorari, mandamus and prohibition. Counsel for the Board expressly indicated that he did not have instructions to ask the court ‘to go one way or another’ on the question of whether a recommendation under the Scheme should be made.
Having heard submissions from both sides, Humphreys J. then made a recommendation pursuant to the Scheme. This recommendation was formally recorded in an order of the High Court dated 6 February 2017.
‘The Court considers it proper in the circumstances of this case to recommend payment by the State of the costs of the Applicant including Junior Counsel in accordance with the Legal Aid – Custody Issues Scheme (Mr. Marc de Blacam SC Ms. Louise Troy BL instructed by Josephine Fitzpatrick & Company Solicitors.’
The solicitors acting on behalf of the Applicant subsequently submitted a claim for fees pursuant to the Scheme. By letter dated 2 August 2017, the Legal Aid Board notified the solicitors of the Board's determination that the litigation did not fall within the scope of the Scheme.
‘On receipt of all claims submitted for payment under the Scheme, the Legal Aid Board's remit obliges it to, inter alia, determine if the litigation involved in the case is covered by the scope of the Scheme. In making such a determination the Board takes into account the provisions of the Scheme and, in particular, Section 4. In the consideration of the claim submitted by your firm the Board has determined that the litigation involved does not fall within the scope of the Scheme and, accordingly, the Board will not be in a position to process your claim in this instance.’
This purported determination was made notwithstanding the terms of the High Court order...
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