Sugg v Legal Aid Board

• Jurisdiction: Ireland
• Judge: Mr. Justice Feeney
• Judgment Date: 13 May 2009
• Neutral Citation: [2009] IEHC 348
• Court: High Court
• Docket Number: [No. 3554P/2007]
• Date: 13 May 2009

[2009] IEHC 348

THE HIGH COURT DUBLIN

[No. 3554P/2007]

Sugg v Legal Aid Board

BETWEEN

ALBERT GEORGE SUGG

PLAINTIFF

AND

LEGAL AID BOARD

DEFENDANT

CIVIL LEGAL AID ACT 1995 S5

CIVIL LEGAL AID ACT 1995 S24

CIVIL LEGAL AID ACT 1995 S28

CIVIL LEGAL AID ACT 1995 S27

CIVIL LEGAL AID ACT 1995 S28(2)

CIVIL LEGAL AID ACT 1995 S29

RSC O.19 r28

BARRY v BUCKLEY 1981 IR 306

MCCABE v HARDING INVESTMENTS LTD 1984 ILRM 105

GOODSON v GRIERSON 1908 1 KB 761

SUN FAT CHAN v OSSEUS LTD 1992 1 IR 425

SUPERMACS IRELAND LTD v KATESAN (NAAS) LTD UNREP MACKEN 15.3.1999 1999/23/7572

PRACTICE AND PROCEDURE

Strike out

Abuse of process - Application to dismiss appeal to Supreme Court as unstateable, disclosing no reasonable cause of action and/or frivolous and vexatious - High Court action struck out - Lay litigant - Whether reasonable grounds for instituting medical negligence action - Whether any evidence of negligence - Whether proceedings unsustainable - Inherent jurisdiction - Whether claim disclosed any reasonable cause of action - Whether plaintiff bound to fail - Whether proceedings frivolous or vexatious - Whether any basis to support appeal - Refusal of legal aid - Damages allegedly arising - Legal aid certificate - Statutory framework - Statutory criteria for grant of civil legal aid - Barry v Buckley [1981] IR 306; McCabe v Harding [1984] ILRM 105; Goodson v Grierson [1908] 1 KB 761; Sun Fat Chan v Osseous Ltd [1992] IR 428 and Supermacs Ireland Ltd v Katesan (Naas) Ltd (Unrep, Macken J, 15/3/1999) applied - Rules of the Superior Court (SI 15/1986) O 19, r 28 - Civil Legal Aid Act 1995 (No 32), ss 5, 24, 28, 27 and 29 - Claim struck out (2007/3554P - Feeney J - 13/5/2009) [2009] IEHC 348

Sugg v Legal Aid Board

Facts The proceedings arose out of the plaintiff's related medical negligence proceedings against a consultant and hospital over the death of his late wife. The medical negligence proceedings were dismissed and when the plaintiff appealed to the Supreme Court he sought legal aid. The Legal Aid Board refused legal aid to the plaintiff as did the appeal committee of the Board. The Supreme Court dismissed the plaintiff's appeal. The plaintiff issued the present proceedings seeking damages against the Legal Aid Board for failing to provide him with legal aid.

Held by Feeney J in dismissing the proceedings. The plaintiff's claim disclosed no reasonable cause of action and on the uncontested facts the plaintiff was bound to fail. The Supreme Court's decision was clear, the plaintiff's claim regarding the death of his late wife was unsupportable and any evidence of negligence was entirely absent. The Legal Aid Board was legally obliged to consider the likelihood of success and considered that the claim was unlikely to succeed. The decision was one made within the discretion of the Legal Aid Board and no fact was identified to indicate that it was wrong.

Reporter: R.F.

Mr. Justice Feeney

1 Mr. Albert Sugg is the plaintiff in these proceedings. These proceedings arise out of Mr. Sugg's attempt to obtain legal aid to assist in prosecuting a Supreme Court Appeal in earlier proceedings he brought against Dr. O'Keeffe and St. Michael's Hospital in relation to the alleged negligence by them in the treatment of his late wife.

2 Mrs. Sugg, who was 59 years old at the time, suffered a severe heart attack in November 1997 and was admitted to St. Michael's Hospital under the care of Physician Geriatrician, Dr. O'Keeffe. She never recovered and after eight days in intensive care she died.

3 Mr. Sugg was convinced that his wife's death was caused by the treatment and management his wife received. As he stated on page 1 of his first affidavit herein:

"Over 11 years ago I wanted to know how and why food got into mouth because I thought food caused death. I now know that food in mouth caused death and if instruction for feeding programme on Day 5 had not been given by Dr. Shaun O'Keeffe then my wife, Margaret, would have remained alive."

4 That belief caused Mr. Sugg to investigate and pursue a claim in negligence against the doctor and the hospital. He also complains that Dr. O'Keeffe was a Physician Geriatrician and that no Cardiologist was involved in the treatment of his wife nor was a intensive care specialist as the treatment was under Dr. O'Keeffe who is a qualified medical practitioner and a specialist physician attached to the hospital.

5 Mr. Sugg investigated his wife's death through obtaining the medical records and engaging a solicitor. That solicitor, Murphy's of Dun Laoghaire, obtained an expert medical report, part of which is available to this Court, from Dr. Stephen Webster Consultant Geriatrician in Cambridge. The report concluded:

"Mrs. Sugg's final illness was sudden, tragic and traumatic for everybody involved. The staff at St. Michael's worked hard to give supportive treatment and management during the time of crisis but were, unfortunately, unsuccessful. I can see no evidence of negligence in their management of Mrs. Sugg. I, personally, do not feel there is a case to be pursued but if a further opinion is required I would suggest seeking one from a specialist in intensive care."

6 That report in its conclusion indicates that a further opinion can be obtained but it does not recommend the obtaining of a further medical opinion as urged by Mr. Sugg during his argument before this Court.

7 Mr. Sugg changed solicitors and the new solicitor was involved for a short number of weeks and no further report was sought. Mr. Sugg pursued the civil claim as a lay litigant. The defendant's brought an application to the High Court to have those proceedings dismissed as being unstatable, as disclosing no reasonable cause of action and/or as being frivolous and vexatious. That application was successful and an order was made dismissing the proceedings.

8 At the High Court hearing the medical report Mr. Sugg had from Dr. Webster was not produced or referred to. Mr. Sugg acted as a lay litigant in resisting the application and appeared in person. After the case was dismissed, an appeal was lodged. Mr. Sugg then sought legal aid from the Legal Aid Board.

9 In July 2003, Mr. Sugg attended at Gardiner Street Law Centre indicating that he wished to make an application for legal services in respect of the claim which had been dismissed by the High Court and which was under appeal to the Supreme Court. The order of the High Court of the 23rd June, 2003, that the proceedings be struck out as failing to disclose a cause of action was under appeal as on the 16^th July, 2003, Mr. Sugg had lodged an appeal to the Supreme Court. It was within the context of that appeal to the Supreme Court that Mr. Sugg sought legal aid from the Board.

10 Mr. Sugg was advised by the solicitor who dealt with his application for legal aid, that is Ms. Avril Sheridan of the Gardiner Street Law Centre, that it was unlikely that a Legal Aid Certificate would be granted to him in relation to his Supreme Court Appeal on the basis, that based on the information in her possession, she believed that Mr. Sugg did not have reasonable grounds for the prosecution of the appeal to the Supreme Court.

11 The Legal Aid Board is a body corporate established by the Civil Legal Aid Act1995. It is a statutory body and can only operate in accordance with the provisions of the Act and the Civil Legal Aid Regulations made thereunder 1996 to 2006. Under s.5 of the Act the Board is charged with:

"…the principal function of providing within its resources and subject to other provisions of the Act, legal aid and advice to persons who satisfy the requirements of the Act."

12 Section 24 of the Act sets out the criteria for the grant of legal aid and advise it provides as follows:

"Without prejudice to the other provisions of this Act a person shall not be granted legal aid or advice unless, in the opinion of the Board -"

(a) a reasonably prudent person, whose means were such that the cost of seeking such services at his or her own expense, while representing a financial obstacle to him or her would not be such as to impose undue hardship upon him or her, would be likely to seek such services in such circumstances at his or her own expense, and;

(b) a solicitor or barrister acting reasonably would be likely to advise him or her to obtain such services at his or her own expense."

13 Section 28 of the Act sets out the criteria for obtaining legal aid. Legal Aid is defined within s. 27 of the Act as meaning:

"Representation by a solicitor of the Board, or a solicitor or Barrister engaged by the board. In any civil proceedings to which s. 27 applies it includes all such assistance as is usually given by a solicitor and, where appropriate, a Barrister in contemplation of, ancillary to or in connection with such proceedings."

14 Section 28(2) provides that:

"Subject to s. 24 and s. 29…"

15 I should interject at this stage that s. 29 deals with financial eligibility and there is no issue in relation to this matter as it is common case that Mr. Sugg would have been eligible from a financial standpoint if his case satisfied the other statutory criteria.

16 Section 28(2) provides that subject to s. 24 and s. 29 and to the other provisions of the Act and the regulations, the Board shall grant a Legal Aid Certificate to a person if, in the opinion of Board…"inter alia;

17 a "(b) the applicant has as a matter of law reasonable grounds for instituting, defending, or, as may be the case, being a party to, the proceedings the subject matter of the application.

18 (c) the applicant is reasonably likely to be successful in the proceedings, assuming that the facts put forward by him or her in relation to the proceedings are proved before the court or tribunal concerned.

19 (e) having regard to all the circumstances of the...