Environmental group’s bid for legal aid rejected by Court of Appeal

Friends of the Irish Environment (FIE) has lost an appeal over a claim that it was entitled to free legal aid for its failed challenge to the Government’s National Development Plan.

However, the Court of Appeal said it will consider a reference on the matter to the Court of Justice of the EU (CJEU).

FIE CLG, a company limited by guarantee, has been active for 20 years in challenging the legality of various decisions of State agencies potentially affecting the environment.

In 2018, it applied to the Legal Aid Board for free legal aid in connection with its challenge to the national plan. The board refused on the basis that the Civil Legal Aid Act 1995 did not enable the grant of aid to a corporate body.

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FIE argued the State had an obligation under the Constitution, the Charter of Fundamental Rights of the EU and the Aarhus Convention, to grant legal aid for its case.

FIE challenged that refusal in the High Court, arguing, among other things, the board had erred in construing the word “persons” as it appeared in the 1995 Act as being limited to natural persons and that its fundamental rights had been breached. A “person” could be construed as a body corporate under Section 18(c) of the Interpretation Act 2005, it was argued.

The Legal Aid Board disputed the claims. The Attorney General and Ireland were joined in the case as notice parties.

The High Court rejected the challenge and FIE appealed the decision to the Court of Appeal. The board opposed the appeal.

The Court of Appeal said a number of essential arguments had been identified between the parties in the appeal. These included the interpretation of the word “person” and whether the Charter of Fundamental Rights and the Aarhus Convention required the law to mean legal aid extended to corporate bodies.

Mr Justice Brian Murray, on behalf of the three-judge court, said that, on its proper construction, the Civil Legal Aid Act 1995 allows the provision of legal aid and advice only to individuals and not to bodies corporate.

That limitation is inherent in “the substance and tenor” of the Act and to reconstruct the legislation so as to extend it to such legal persons would involve a significant shift of the policy evident from the Act as a whole, he said.

Therefore, he said, this conclusion is not affected by the terms of the Interpretation Act 2005.

FIE had also failed to establish that the national plan case was, in all of the circumstances, “prohibitively expensive” within the meaning of the Aarhus Convention.

He accepted there may be an argument that the complete exclusion of legal persons from the possibility of obtaining legal aid in cases involving issues of EU law might present a breach of the Charter of Fundamental Rights. It was not evident to the judge what argument would advance the FIE case here, he said.

However, he was conscious the court did not receive extensive submissions from the parties in relation to the question of a reference to the CJEU.

Therefore, before ruling this out completely, he was giving FIE a further opportunity to consider whether it wishes to make submissions on the question of making a reference.