State challenged on provision of legal aid

In a test case challenging delays in the State's provision of civil legal aid, a mother of three has sued the Legal Aid Board for damages for distress. The case concerns a 21/2-year delay in processing her application for judicial separation from her violent husband.

While waiting for her case to be taken, the woman said she and her children had to flee the family home because of a particularly violent incident. Because of the delay, she was obliged to stay with her husband longer than she should have had to, she said.

The Minister for Justice argues that he had given the board those resources which the board asked for. In the circumstances and given the demand on its services, the board denies there was any unreasonable delay.

Ms Clare Kelly, assistant director of the board, said the woman's application was made in September 1997, a period of very high demand for services. The woman was referred to the board's Private Practitioners Scheme in relation to proceedings for a barring order, which proceedings were given priority.

Ms Kelly said the adverse impact of a lack of resources for the law centres operated by the board to meet the demand for all legal services was exacerbated by frequent fluctuations of staff.

Aside from such difficulties, it was during 1997 that the board and its centres began to experience most acutely the effects of significant changes in family law, including the introduction of divorce.

In an affidavit, Ms Catherine Hickey, director of the Free Legal Advice Centres (FLAC), said FLAC received some 100 legal queries per week from the public and saw some 175 clients weekly at its 16 centres. It had been inundated with calls from people unable to access the civil legal aid scheme.

"It is clear there is a crisis in civil legal aid provision," she said. Long waiting lists in legal aid centres had resulted in a logjam in many court lists and the delays were depriving citizens of their constitutional entitlement to access to the courts.

Opening the woman's action, Mr Michael Cush SC, instructed by FLAC, said his client applied to the Tallaght Law Centre in September 1997 for legal aid for an application for judicial separation. On May 11th, 1999, 20 months later, she received a legal aid certificate.

During that 20-month period, the woman had herself arranged two separate court applications - for a barring order and a maintenance order. Her applications were assisted by what was known as the Private Practitioners Scheme, which was funded by the board but outside its functions.

After the woman secured a legal aid certificate in May 1999, proceedings were issued. She secured an interim barring order on July 15th, 1999 and returned to the family home some weeks later. Her substantial application for judicial separation had then to be dealt with.

On April 7th, 2000, she had secured leave from the High Court to challenge the delay. Since that action was taken, the judicial separation proceedings had concluded in December 2000.

Mr Cush said the case turned on the proper interpretation of the Civil Legal Aid Act, 1995. He contended the board was obliged to consider applications for aid within a reasonable time and had failed to do so.

Mr Shane Murphy SC, for the board, argued the case was moot because all the issues had been decided. He said the 1995 Act imposed a qualified obligation on the board to provide civil legal aid and the board was not susceptible to an action for breach of duty. The court should not be asked to second guess the deployment of resources, which were limited.

The case continues today before Mr Justice Butler.