M O'D (plaintiff) v The Legal Aid Board, The Minister for Justice, Equality and Law Reform, Ireland and the Attorney General (defendants).
Judicial review - Legal Aid - Delay of over 24 months in granting legal aid certificate - Claim for declaration and damages - Whether board in breach of statutory duty because it failed to exercise the function conferred upon it under s.5 of the 1995 Act within a reasonable time - Whether board negligent - Criteria for obtaining legal aid - Whether Court constrained by the doctrine of separation of power - The Civil Legal Aid Act 1995 (No. 32) sections 5, 18,19 & 28 - The European Convention on Human Rights Act 2003 (No. 20) - The European Convention on Human Rights - Constitution of Ireland 1937.
The High Court (before Mr Justice Kelly); judgment delivered December 21st, 2004.
The words of section 5 of the 1995 Act simply mean that legal aid shall be provided within the board's resources. The statutory obligation imposed upon the board is not an absolute one - it requires it to carry out its functions within its resources. It is not enough to set up a scheme for the provision of legal aid to necessitous persons and then to render it effectively meaningless for a long period of time. The State must ensure that the scheme is implemented fairly to all persons and in a manner which fulfils its declared purpose. The purpose of the 1995 Act is that persons who meet the necessary criteria shall receive legal aid. That carries the implication that the entitlement to legal aid will be effective and have meaning. The Act of 1995 gives substance, in many ways to the constitutional entitlement to legal aid for appropriate persons. The legislature is entitled to define reasonable limits to that right but the right cannot be effectively set at nought for years.
The High Court so held in deciding that the delay in granting the certificate for legal aid amounted to a breach of the constitutional rights of the plaintiff and granting a declaration and awarding damages to the plaintiff.
Paul Sreenan SC and Pearse Sreenan BL for the plaintiff; Brian O'Moore SC and Luán O Braonáin BL for the first named defendant; Kevin Cross SC and Una Ní Raifeartaigh BL for the second, third and fourth named defendants.
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Mr Justice Kelly began his judgment by outlining what he stated were the undisputed facts at the heart of the proceedings, namely that the plaintiff experienced a delay of 24 months between contacting the first defendant (the board) for legal aid and ultimately obtaining an appointment with a solicitor. A further month elapsed before she was given a legal aid certificate. As a result of the foregoing the plaintiff claimed in the within proceedings that the defendants were guilty of breaches of statutory duty, negligence, and had denied her certain rights allegedly due to her under the Constitution and the European Convention on Human Rights. She sought a declaration and damages. She did not pursue a mandatory injunction as she obtained the relevant legal aid prior to the action.
Mr Justice Kelly said that the plaintiff had left the family home in 1986 when her marriage broke down. She took her only child with her who, as an infant, had contracted a very serious and rare illness which resulted in him becoming profoundly disabled. In 1987 her estranged husband commenced paying maintenance of £40 per week. After ten years and given her son's increasing need for a very high level of care involving physiotherapy, special diet, nutritional supplements and other assistance, the plaintiff's circumstances had become quite straitened. She often asked her husband for an increase in the weekly maintenance but was refused in no uncertain terms. Refusals were often accompanied with a threat of giving up his work. The plaintiff attended at the legal aid centre in South Mall, Cork, on February 2nd, 1997, and explained to an official her need for increased maintenance, for herself and her child and expressed an interest in the possibility of obtaining a divorce. Mr. Justice Kelly was satisfied on the evidence that by the end of February 1997 the plaintiff had taken all necessary steps to apply for legal services from the board and that the board was apprised of her situation. After that date the plaintiff regularly telephoned the legal aid centre throughout the remainder of 1997 and well into 1998. In December 1998 the plaintiff obtained an appointment with a solicitor and her application for legal aid was duly processed with the legal aid certificate issuing on March 25th, 1999. Mr Justice Kelly stated that it was quite clear that the plaintiff was, at all material times, entitled to legal aid but had to wait for a period in excess of two years before she obtained her legal aid certificate.
Turning his attention to why delays of this magnitude were encountered by the plaintiff, Mr Justice Kelly went through the evidence of Mr Frank Brady, the Director of Legal Aid with the board. He was assistant chief executive of the board during the period that the plaintiff was waiting for her legal aid certificate from 1997 to 1999. During that time Mr Brady had ongoing dealings with the State looking for additional funding for the board. Mr Brady gave evidence that between 1993 and 1996 the monies provided to the Legal Aid Board were adequate. However the funding between 1996 and 1999 was inadequate and insufficient. Mr Brady described the way in which he and other officials communicated the seriousness of the position to the other defendants. The chief executive of the board, Mr Goodman, wrote to the personnel officer in the Department of Equality and Law Reform (the department then responsible for the board) on June 18th, 1996, setting out details of additional staff required in order to continue to provide an efficient and effective legal aid service.
The board was experiencing considerable additional work load at that time (June 1996); the Civil Legal Aid Act (which put the board on a statutory footing) was due to come into force in October 1996 and the Strategic Management Initiative introduced by the government required each body to prepare a corporate plan or a strategic plan and have a greater involvement of staff in putting a focus on customer care and the efficient delivery of service to the public. Mr Brady agreed that that meant a lot more work to be done but no appreciable improvement in services.
The board also had to anticipate the impact that divorce would make on the law centre network when it would become available in February 1997. Despite all of this, the deputy chief executive post was not sanctioned until July 1998, two years and one month after it was requested and the same fate awaited most of the other staff appointments which were sought in 1996.
Mr Justice Kelly stated that, leaving the question of divorce to one side completely, it was clear that in June 1996 the board identified the administrative staff it would require in order to provide a reasonable service and that there was no doubt that the Department of Equality and Law Reform was fully au fait with the position of the board. In correspondence Mr Goodman relied on figures which, he submitted, showed that as resources increased and more centres were opened, the demand for services grew apace and absorbed the benefit of the additional resources which the board had received since 1992. Mr Goodman pointed out that the additional resources provided were in the main for new locations and the only real addition to existing locations were 12 solicitors recruited for existing centres in 1993. Mr Brady testified that the relevant departments were fully aware of the board's position and the level of demand for legal services. They were also aware of the impact that that demand had on the waiting lists. This was so as a result of correspondence and the communication had between the various officials.
This correspondence showed that the board was extremely conscious of its obligations and was very conscious of the need in terms of resourcing to make it absolutely clear to the State what would be facing the board, and, perhaps, the State if the board did not have the resources to meet the demand that was there. The board was totally dependent on the Departments of Equality and Law Reform and Finance for its resources. Mr Brady's evidence indicated that all the correspondence emanating from Mr Goodman, the chief executive of the Legal Aid Board, was achieving little or nothing. The board's position got worse. Despite the fact that money was sanctioned in December 1997 it was only after the chairperson of the board met with the Minister for Justice on June 18th, 1998, and adverted to the prospect of law centres closing that the Department of Finance finally gave sanction, by letter dated July 8th, 1998, for the creation and filling of 25 additional posts, including five relief solicitors. One solicitor was recruited for the centre in question in this case and took up duty in January 1999 and saw the plaintiff in February of that year
Mr Justice Kelly was satisfied that the cause of the delay encountered by the plaintiff was the absence of resources in the law centre to meet demands. He stated that had the board been provided with the staff it sought, the plaintiff would have been given an appointment to see a solicitor within a period of about four to five months at most. He found that the board was acutely aware of the deteriorating situation, that it made the position known to the relevant departments and sought the funds and approvals necessary to deal with the problem.
Mr Justice Kelly said that whilst he was concerned with the delay encountered by the plaintiff, it was clear that the whole working of the board and the Legal Aid Centres was seriously substandard. Working conditions were appalling but nothing much was done about it. Mr Justice Kelly stated that the only time any sense of urgency appears to have been manifested was when the threat of closure of law centres was made. Mr Justice Kelly said there was consistent failure to even respond to the board's correspondence, never mind considering in any serious way the reasonable requests made by it.
Mr Justice Kelly then looked at the Law Centre concerned and stated that the annual report of the board presented the average waiting time for an appointment with a solicitor as follows: 1996 - 3.5 months; 1997 - 7 months; 1998 - 16 months.
Mr Justice Kelly stated that whilst the board attempted to ensure that a system for prioritising applicants by reference to the urgency of their case operated, that system did not work well in the case of the plaintiff. It was described by Mr Brady as a systems failure because information concerning the plaintiff's case was not recorded and not conveyed to the managing solicitor. Mr Justice Kelly was satisfied that the reason for that was the lack of resources which resulted in insufficient support in the law centre in question and that this lack of resources was made known to the department on many occasions. Mr Justice Kelly said it was difficult to see what more the board could have done to deal with the problems. He stated that they resulted from the failure on the part of the State to fund the board properly and an inexplicable delay in the Department of Justice in proceeding to give effect to the recruitment sanctioned in December 1997 until July 1998. Mr Justice Kelly referred to the fact that no witnesses were called to give evidence on behalf of the other defendants and neither was any witness called from the Department of Finance.
Mr Justice Kelly then examined the statutory framework. The board was established by the Act of 1995, section 5(1) of which sets out its principal function namely to provide, within the board's resources and subject to the other provisions of this Act, legal aid and advice in civil cases to persons who satisfy the requirements of the Act. Section 19 of the Act requires the board to establish and maintain a fund known as the legal aid fund which consists of sums advanced to the board pursuant to section 18 of the Act and all other payments made to the fund or the board, including contributions paid into the fund by persons who have been granted legal aid and advice, together with any costs or damages recovered by such persons and paid into the fund in accordance with the Act. Section 18 provides that the Minister may in each financial year, with the consent of the Minister for Finance, advance to the board out of money provided by the Oireachtas, such sum or sums as the Minister, after consultation with the board, may determine for the purposes of expenditure by the board in the performance of its functions under this Act. Section 28 sets out the criteria for obtaining legal aid and at subsection 5 provides that notwithstanding any other provision of the Act the board shall grant a certificate where the State is by virtue of an international instrument, under an obligation to provide civil legal aid to the person, provided that person, shall before being granted such certificate comply with such requirements as are specified in the international instrument and relate to him or her.
Mr Justice Kelly then analysed the plaintiff's contention that the board had been guilty of breach of statutory duty because it failed to exercise its function within a reasonable time. Counsel for the board accepted that the plaintiff had a statutory right to apply for legal aid and a statutory right to receive it provided she met the qualifications. He accepted that she met the qualifications and her need of legal aid was not met timeously yet contended that there was no breach of statutory obligation because of the saver contained in s.5, which makes carrying out the principal function of the board subject to the resources available to it.
Mr Justice Kelly was of the view that this contention was correct. The statutory obligation imposed upon the board is not an absolute one. It requires it to carry out its functions within its resources. In his view the delay encountered by the plaintiff was caused exclusively because of the lack of resources made available to the board. Mr Justice Kelly said that if the plaintiff had made a claim solely by reference to an alleged breach of duty on the part of the board (excluding the provisions of s.28(5)) she would have failed as the board did all it could to provide for her and indeed other persons within its resources. The sole cause of the delay was the lack of resources of the board. It was hard to think that it could have done anymore than it did to acquaint the relevant parties with its precarious position. The failure to address that position was not the fault of the board. Mr Justice Kelly said that the plaintiff's claim in negligence against the board must likewise fail as he was unable to identify an act of negligence on the part of the board or its officers. Mr Justice Kelly stated that the conditions under which the board's personnel had to operate were woefully substandard and the reason for that was the failure to resource the board properly.
Mr Justice Kelly then analysed the claim based on section 28(5) of the 1995 Act.
The plaintiff had submitted that under the European Convention on Human Rights there is an obligation to provide legal aid to her and therefore under section 28(5), a legal aid certificate should have been granted without regard to the board's resources as the phrase "notwithstanding any other provision of this Act" overrides the saver in section 5. Mr Justice Kelly was satisfied that approach was not well founded and stated that section 28(5) will only operate where an international instrument expressly requires the State to provide civil legal aid. The instrument may prescribe requirements which have to be met. The European Convention on Human Rights does neither. Accordingly, even if the phrase "notwithstanding any other provision of this Act" operates to override the saver as to resources in section 5, the section had no application to this case.
Mr Justice Kelly then examined the plaintiff's contention that the State owed obligations toher under the Constitution and the European Convention on Human Rights, to provide adequate and appropriate resources to the board. The plaintiff argued that it cannot be the position that the State's obligations are met merely by the establishment of a board - the board must be adequately resourced to be effective.
Counsel for the defendants other than the board contended that there is no statutory, Constitutional or European Convention right to free legal aid and thus no right for the plaintiff to have her application dealt with expeditiously. Counsel contended that legal aid was nothing more than a provision in law that did not confer a right and submitted that even if there was a right the court was powerless to give effect to it as it would have fiscal implications for the State and any decision in favour of the plaintiff would contravene the separation of power. Whilst delay was acknowledged it was denied it was unreasonable.
Mr Justice Kelly stated that the plaintiff in this case based her case principally upon Article 40(3) of the Constitution. Mr Justice Kelly then referred to the case of Ryan v The Attorney General IR 294 where the courts recognised unspecified personal rights enshrined in the Constitution by virtue of Article 40 and the case of Macauley v The Minister for Posts and Telegraphs IR 345 which recognised a constitutional right to have access to the courts.
Mr Justice Kelly stated that he agreed with the plaintiff's contention that she had no realistic prospect of access to the courts without the assistance of a lawyer. Mr Justice Kelly then referred to M.C. v The Legal Aid Board & Ors 2 IR 43 (a decision given in the context of a non-statutory scheme) where Mr Justice Gannon held that an individual citizen did not have a constitutional right to require that the State provide financial support for civil litigation with another citizen but that once a legal aid scheme was in place there is a constitutional duty on the State to ensure it is administered fairly and fulfils its purpose. It seemed to Mr Justice Kelly that the unfortunate circumstances of the plaintiff in the present case were such that access to the courts and fair procedures under the Constitution would require that she be provided with legal aid.
Mr Justice Kelly said that view was reinforced by the fact that she fell squarely within the entitlements to such under the Act and the regulations but was denied it for a period of 25 months because of the manifest failure of the State. The delay in granting the certificate for legal aid, in Mr Justice Kelly's view, amounted to a breach of the constitutional entitlements of the plaintiff and held that if she could demonstrate loss as a result she was entitled to recover damages in respect thereof. He said it is not enough to set up a scheme for the provision of legal aid to necessitous persons and then to render it effectively meaningless for a long period of time, the State must ensure that the scheme is implemented fairly to all persons and in a manner which fulfils its declared purpose.
Mr Justice Kelly stated that the purpose of the 1995 Act is that persons who meet the necessary criteria will receive legal aid. That carries the implication that the entitlement to legal aid will be effective and have meaning. Mr Justice Kelly asked how can it be if a delay of 25 months is encountered and equally how can the scheme be fair if a qualified person cannot get to see a solicitor for such a lengthy period? Mr Justice Kelly stated that the Act of 1995 gives substance, in many ways, to the Constitutional entitlement to legal aid for appropriate persons. The legislature is entitled to define reasonable limits to that right but that right cannot effectively be set at nought for years.
Mr Justice Kelly next addressed the argument that the court was powerless to intervene in this case, regardless of the nature of the right being asserted by the plaintiff as to do so would be trespassing into an area outside its competence under the Constitution. Mr Justice Kelly did not accept this as this case was not concerned with a claim for mandatory relief against the State. The court was doing no more than what the courts have been doing since at least Ryan v Attorney General namely, ensuring that a right under the Constitution is protected and given effect. He said that there was no question of a future breach involved here and he saw no reason why the court should not be entitled to deal with a past breach by means of an appropriate declaration and/or an award of damages if necessary.
Mr Justice Kelly then looked at the European Convention on Human Rights and said that in view of the fact that he had come to the conclusion that the plaintiff's rights under the Constitution had been infringed and that she was entitled to a remedy in respect thereof, it was strictly speaking not necessary for him to express any view of her entitlements under the European Convention on Human Rights.
However, he felt it was appropriate to note that for long before the incorporation of the Convention into Irish law, the courts of this jurisdiction have proceeded on the basis that Irish law is in conformity with the Convention. Mr Justice Kelly stated that there were many examples of this in our case law. It appeared to Mr Justice Kelly that the view he formed as to the plaintiff's entitlements under the Constitution was completely consistent with the provisions of the Convention. Mr Justice Kelly said it seemed to him that the decision that he arrived at by virtue of the provisions of the Constitution is therefore in complete conformity with rights which are applicable under the Convention. In light of the declaration he proposed to make Mr Justice Kelly felt it was not necessary for him to make any determination in respect of the provisions of the European Convention on Human Rights Act 2003 and neither was it appropriate for him to express any view on whether he could do so given that the Act was not on the statute book at the time of these proceedings.
Mr Justice Kelly then addressed the question of damages. The evidence satisfied him that the plaintiff suffered pecuniary loss as a result of the delay encountered by her. The board's target in 1997 was to provide a service in a two to four-month waiting period. Mr Justice Kelly said that there was, of course, a category of really urgent cases, which had to be dealt with in a shorter time scale. However, the plaintiff's claim would not fall within such a category. There was evidence that in private practice it would be proper practice for a solicitor to see a client within one to two weeks from a client seeking an appointment but Mr Justice Kelly felt that it was unrealistic to expect the board to be able to match that speed and that the plaintiff ought to have had a consultation within a period of two to four months and that it was likely that had matters moved with appropriate speed that a claim for increase in maintenance would have been before the court by January 1998. Mr Justice Kelly said it was very difficult to know what figure the Circuit Court judge would have fixed for maintenance had the case been before him in January 1998, but felt on balance that it was likely the court would, in the circumstances that pertained then, have ordered maintenance be increased by 50 per cent from IR£40 to IR£60.Thus Mr Justice Kelly calculated the plaintiff's damages at IR£20 per week for a period of two years; which came to IR£2,080.00. Mr Justice Kelly then added to that a sum in respect of undoubted additional stress and upset over the norm that was caused to the plaintiff, particularly having regard to her child's position, whilst waiting. He assessed this sum at IR£5,000 giving a total of IR£7,080 which converts to a sum of €8,991.60.
In conclusion Mr Justice Kelly stated there would be a declaration in a form to be discussed with counsel in the light of his findings together with judgment in favour of the plaintiff for the sum of €8,991.60.
Solicitors: Ernest J. Cantillon & Co. (Cork) for the plaintiff; Mason Hayes & Curran (Dublin) for the first named defendant; the Chief State Solicitor for the second, third and fourth named defendants.
Joan Kelly, barrister