Walsh -v- MJELR & Ors, [2009] IEHC 102 (2009)

Docket Number:2006 1190 P
Party Name:Walsh, MJELR & Ors
Judge:Laffoy J.





The proceedings

In these proceedings the plaintiff, who is a practising Senior Counsel, seeks remedies for the refusal of the first named defendant (the Minister), who has statutory responsibility for the provision of criminal legal aid under the Criminal Justice (Legal Aid) Act 1962, (the Act of 1962) and the regulations made thereunder, to discharge his fees in connection with the representation by him of an accused person, who had the benefit of a certificate for free legal aid which covered representation by senior counsel. The Minister's refusal was on the ground of non-compliance by the plaintiff with the requirements of the Criminal Justice (Legal Aid) (Tax Clearance Certificate) Regulations, 1999 (S.I. No. 135 of 1999) (the 1999 Regulations).

I propose setting out the statutory provisions and regulations which are in issue before outlining the factual circumstances which give rise to the plaintiff's claim and the bases on which it is advanced.

Relevant statutory provisions and regulations.

The substantive provision under which a legal aid certificate was granted to the accused was s. 3 of the Act of 1962. Subsection (2) of s. 3 mandates the granting of a legal aid (trial on indictment) certificate on application therefor, where it appears to the judge that the means of the accused are insufficient to enable him to obtain legal aid (para. (b)), and that, having regard to all of the circumstances of the case, it is essential in the interests of justice that the person should have legal aid in the preparation and conduct of his defence at the trial (para. (c)(ii)). By virtue of subs. (l), such certificate entitled the accused to have a solicitor and counsel assigned to him for the purposes of the preparation and conduct of his defence "in such manner as may be prescribed by regulations under s. 10" of the Act of 1962.

Section 10(1) of the Act of 1962 empowers the Minister to make regulations for carrying the Act into effect and, as originally enacted, itemised certain matters which might be prescribed in the regulations, which were set out in paras. (a) (the form of legal aid certificate), (b) (with the consent of the second defendant, rates or scales of payment of fees, costs and expenses payable out of monies provided by the Oireachtas), and (c) (the manner in which solicitors and counsel are to be assigned) of that subsection. Section 10(1) of the Act of 1962 was amended by s. 132 of the Finance Act, 1998 by the inclusion of additional paragraphs, paragraphs (d), (e) and (f). Paragraph (d), insofar as is relevant for present purposes, empowers the Minister, in sub-para. (ii), to prescribe:-

"a requirement that a barrister, the willingness of whom to act for persons to whom legal aid certificates are granted has been notified to the Minister by the General Council of the Bar of Ireland in accordance with the Criminal Justice (Legal Aid) Regulations, 1965, must, when required to do so by the Minister, furnish to the Minister a certificate issued by the Collector-General … in respect of that barrister certifying that he has complied with all the obligations imposed on him by the Tax Acts, the Capital Gains Tax Acts and the Value-Added Tax Act 1972, and the enactments amending or extending that Act (and any instruments made under those Acts) in relation to-(I) the payment or remittance of the taxes, interest and penalties required to be paid or remitted, and

(II) the delivery of returns,"Paragraph (e) empowers the Minister to prescribe the conditions that must be satisfied before a certificate referred to in paragraph (d) may be issued by the Collector-General. Paragraph (f) empowers the Minister to prescribe:-

matters consequential on, or incidental to, a requirement or condition prescribed under paragraph (d) or (e) of this subsection (which may include a provision enabling the deletion from any list kept pursuant to regulations under this subsection of the name of a … barrister who has failed to comply with a requirement prescribed under the said paragraph (d)).

The 1999 Regulations were made by the Minister in exercise of the power conferred by s. 10 of the Act of 1962, as so amended. The 1999 Regulations deal with both the barristers' panel and the solicitors' panel maintained for the purposes of the Regulations made under the Act of 1962 and they deal with the requirement to furnish a tax clearance certificate in relation to being added to the panel (Regulation 4) and being retained on the panel (Regulation 5). Regulation 5(3) provides:-

"A barrister whose name is on the barristers' panel, and who wishes to have his or her name retained on that panel in respect of a panel year, shall annually, not later than the 30th day of November immediately preceding that panel year, furnish to the Minister a tax clearance certificate, and shall, provided all other requirements of the … Regulations have been complied with, thereupon be entitled to have his or her name retained on that panel in respect of the panel year concerned."

The expression "panel year" is defined as meaning the period of one year commencing on 1st December in one year and ending on 30th November in the following year.

Regulation 5(4)(a) provides that the requirement to furnish a tax clearance certificate under Regulation 5 shall be satisfied where the barrister furnishes a tax clearance certificate issued by the Collector-General pursuant to s. 1095 of the Taxes Consolidation Act 1997, (the Act of 1997) which has an expiry date that is later than the 30th day of November immediately preceding the panel year concerned. I assume that the rationale of that provision is to obviate the Collector-General having to issue more than one tax clearance certificate to a barrister, for example, a certificate under s. 1095 in relation to retainer by public authorities, as well as a certificate under s. 10 of the Act of 1962 in relation to the criminal legal aid scheme.

Regulations 6 and 7 of the 1999 Regulations deal with an application for a tax clearance certificate and an appeal against a refusal to issue a tax clearance certificate and mirror the provisions of s. 1095, including the provisions of sub-sections (5), (6) and (7) of s. 1094 of the Act of 1997 (the section of the tax code dealing with tax clearance certificates in relation to certain licences), which are incorporated in s. 1095. Sub-section (7) of s. 1095 provides that a tax clearance certificate "shall be valid for the period specified in the certificate".

While pleaded in the defendants' defence, in my view, Regulation 8 has no application to the facts of this case, although it is of relevance in construing the 1999 Regulations as a whole. It regulates retention of a solicitor or barrister on the relevant panel in circumstances where an application for tax clearance certificate has been made not later than 15th October immediately preceding the relevant panel year and the application is pending, or there is an appeal pending against a refusal to issue a tax clearance certificate which has not been finally determined. The retention, which is subject to compliance with certain requirements and formalities, is on a temporary basis for successive periods of three months until the pending application or appeal is dealt with.

Regulation 9 deals with power to delete the name of a solicitor or a barrister from the relevant panel. Regulation 9(2) mandates the Minister, following the expiration of ten days after the 1st December, 1st March, 1st June and 1st September in each year, to review the barristers' panel and, with effect from the first day of the month following such review, that is to say, in the case of a December review,

1st January in the following year, to delete from the panel the name of any barrister in respect of whom a tax clearance certificate has not been furnished or the requirements of Regulation 8 have not been complied with.

Regulation 10 mandates the Minister, following such review and deletion, to send a copy of the list of names remaining on the barristers' panel to the Registrars of the Courts which deal with criminal matters, from the Registrar of the Supreme Court to each District Court clerk, and to furnish a copy thereof to any solicitor who requests it.

The provisions of the 1999 Regulations on which the Minister relies as supporting his entitlement to refuse to discharge the fees claimed by the plaintiff are Regulation 11(4), (5) and (6) which provide as follows:-

"(4)Responsibility for ensuring eligibility for inclusion or retention of a barrister's name on the barristers' panel shall at all times remain the responsibility of the barrister concerned.

(5) No fees under the Criminal Justice (Legal Aid) Regulations shall be payable to a barrister who accepts an assignment to a case if his or her name is not, at the time of assignment, on the barristers' panel.

(6) A barrister shall be entitled to payment of fees under the … Regulations where at the time the assignment was made the name of the barrister concerned was on the barristers' panel."

The factual basis of the plaintiff's claim

The plaintiff's name was on the barristers' panel for the panel year which ended on 30th November, 2004. Prior to the expiry of that panel year he was notified by the Courts Policy Division of the Minister's department, by letter dated the 18th September, 2004, of the requirement of the 1999 Regulations to submit a tax clearance certificate to the department by 30th November, 2004 with an expiry date after that date and was warned that non-compliance would result in his name being removed from the panel. Although he could not recollect having received that letter, I think it is probable that the plaintiff did receive...

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