Supreme Court grants ad hoc legal aid recommendation for complex freezing order appeal due to insufficient means evidence.

[2001] IESC 33

THE SUPREME COURT

72/01

Murphy J.

Murray J.

Hardiman J.

Between:

MICHAEL F. MURPHY

Plaintiff/Respondent

and

GM, PB, PC LIMITED and GH

Defendants/Appellants

JUDGMENT of Mr. Justice Hardiman delivered the 3rd day of April, 2001.

1. By order of the 23rd July, 1999 the High Court (O’Higgins J.) made an order pursuant to Section 3 of the Proceeds of Crime Act,

1996 prohibiting the Respondents from disposing or otherwise dealing with a sum of approximately £300,000. The case made by the

present Appellant, Mr. B., in relation to these monies was that they represented the proceeds of unlawful activities by the first-

named Respondent.

2. On the 2nd October, 2000 the second and third named Appellants issued a Notice of Motion seeking:-

“(a) An order for the payment out of the monies the subject matter of the order herein the total amount of such monies

together with interest for the purpose of paying outstanding legal fees and such sum as will be necessary to pay for the

transcripts;

(b) A recommendation under the ad hoc legal aid scheme in respect of the costs of the appeal herein”.

3. By order of the 10th November, 2000 the High Court (Butler J.) refused these applications. He did so primarily on the basis that the

information furnished was inadequate; that Mr. B. had given no information as to his means of livelihood and no sufficient information

as to his business. He concluded that “I am not satisfied that he has made any effort to establish that he cannot fund the appeal”.

4. From that order the Appellants have appealed to this Court. There was some delay and confusion in the processing of the appeals,

in part related to a difficulty in taking up the order of Butler J. More significantly, however, the nature of the relief sought by the

Appellants has changed significantly.

5. At the hearing of the appeal before this Court on the 23rd March, 2001 the Applicant was represented by Mr. Haughton, Solicitor,

neither of his Counsel being available. He was not at all prejudiced by their absence since Mr. Haughton advanced his case with

economy and precision. He first made clear that his concern related wholly to the funding of future litigation and in particular an

application to the High Court listed for the 24th day of April, 2001. He was not concerned with the release of funds to discharge the

apparently very considerable sum (approximately £800,000) said to be outstanding for past legal services. Mr. Haughton stated that

his client would be happy to avail of the “ad hoc legal aid scheme (Criminal Assets Bureau)” which has been in place since the 2nd

April, 1998, and asked the Court to recommend that Mr. B. have the benefit of this scheme.

6. In support of this application Mr. Haughton pointed to his client’s statement on Affidavit in relation to his means, and stated that

these had not been effectively contradicted and that, in particular, no notice of intention to cross examine had been served.

7. These statements extended to the following:-

“(4) I...... am without any significant income or assets. All aspects of my business which I carried on before the Criminal Assets

Bureau began proceedings against me have been shut down and I have no prospects in the foreseeable future of earning a

living or making an income.

(6) I have no other monies from which I can fund these proceedings and the only source of monies from which I can provide the

money to pay for the transcript of evidence and for legal fees lie in the approximately £300,000 which are presently been held

by the Plaintiff.....”.

8. On the basis of the relief sought, on this Appeal the question of a payment out under Section 6 of the Act, 1996 of the monies

seized by the Plaintiff does not arise. In the Notice of Motion, the payments out of these monies was sought, not to fund forthcoming

litigation but to pay “outstanding legal fees and ........... for the transcript”.

9. Neither in the High Court nor in this Court was any application pursued for the payment out of a sum to partially discharge, to the

extent of approximately 3/8th only according to the Affidavit, the cost of legal services already rendered.

10. Furthermore, if the first relief sought in the Notice of Motion had been contended for, I would not have been prepared to grant it

on the present state of the evidence. There are bald statements as to sums due to Solicitor and Counsel, unsupported by vouchers

of any sort, by particulars of sums already paid if any, or by details of the arrangement under which Solicitor and Counsel rendered

their services. Furthermore, the monies the subject of the application are not claimed by Mr. B. himself, or by the Company, to be in

their own beneficial ownership. There is merely an unvouched and unparticularised statement that the persons who are the beneficial

owners consent to the application. More generally, there is insufficient information to arrive at a conclusion as to the merits of the

application. This is so particularly in view of the findings of Mr. Justice O’Higgins in his judgment dated the 4th of June, 1999 which do

not appear to be the subject of any appeal. I refer in particular to the comments in relation to the second-named

Defendant/Appellant at page 125 of the judgment, which represent the learned judge’s conclusions from a considerable body of

evidence analysed on earlier pages.

11. I now turn to the application for a recommendation in relation to the ad hoc legal aid scheme. This appears to me to raise issues

quite different from those arising on an application under Section 6 of the 1996 Act. In particular, it seems possible to approach this

application, in the circumstance of the present case, without any consideration of the merits of the litigation to which it refers.

12. The matters which are of importance to note in relation to the scheme are the following:-

(a) that the grant of legal aid, including the level of legal representation, is a matter for the Court and

(b) the Court considering the application must be satisfied that the means of the Applicant are insufficient to enable him to

obtain legal representation on his own behalf and that

(c) by reason of the exceptional circumstances it is essential, in the interest of justice, that the Applicant should have legal aid

in the preparation of conduct of his case.

13. It appears from this formulation that a recommendation by the Court in relation to the application of the ad hoc legal aid scheme

will, in practise, mean that legal aid under the scheme will be available for the Applicant.

14. It appears to me that Mr. Haughton is correct when he says that inadequate steps have been taken to dispute the Applicant’s

assertion as to his present inability to discharge legal costs. In this regard, it may be noted that the alteration of the normal onus of

proof, in relation to substantive applications under the 1996 Act, does not appear to have been extended to applications for a

recommendation in relation to the legal aid scheme.

15. I am also satisfied that the circumstances of the case make it essential in the interest of justice that the Respondents be legally

represented. The entire statutory jurisdiction is, in its own terms, both complex and exceptional. The important constitutional

considerations identified in State (Healy) v. Donoghue [1976] IR 325 in relation to criminal legal aid would appear to apply to a

substantive application such as the present. It is beyond dispute that the complexity of the present application far exceeds that of

the underlying criminal charge in the case cited.

16. For these reasons, I would make a recommendation that the Applicant be afforded legal aid under the terms of the ad hoc scheme

referred to above, and that the level of representation afforded to him should extend to Solicitor and two Counsel. This

recommendation relates to the forthcoming litigation only. I express no view either as to whether there is jurisdiction to entertain a

retrospective application for legal aid or, if there is such jurisdiction, on the merits of such an application in the present case.