Appeal dismissed; Legal Aid Board correctly refused costs for medical treatment proceedings outside the Custody Issues Scheme.

THE COURT OF APPEAL

APPROVED

NO REDACTION NEEDED

Neutral Citation Number: [2025] IECA 205

Court of Appeal Record No.: 2025/57

High Court Record No.: 2023/ 1188JR

Faherty J. Meenan J. Hyland J.

BETWEEN/

DARREN WINTERS

APPLICANT/ APPELLANT

- AND -

THE LEGAL AID BOARD, THE MINISTER FOR JUSTICE AND EQUALITY,

IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS/ RESPONDENTS

JUDGMENT of Ms Justice Hyland delivered on the 20th day of October 2025 SUMMARY

1. This is an appeal from a decision of the High Court (Bolger J. [2024] IEHC 744), refusing an application to quash a decision of the Legal Aid Board rejecting an application made by Mr. Winters (the “Appellant”) for payment of his legal costs, pursuant to the Legal Aid – Custody Issues Scheme (the “Scheme”). Those costs had been incurred in a previous set of judicial review proceedings brought by the Appellant seeking the provision of medical treatment while he was in custody (the “2022 proceedings”). Those proceedings were settled. Included in the final Order was a recommendation by the judge that the Appellant receive costs under the Scheme. On receipt of the application, the Legal Aid Board refused to cover the costs on the basis that the costs incurred did not come within the Scheme. The Appellant brought the within proceedings challenging that decision.

2. The trial judge held the application was out of time but nonetheless dealt with the substantive arguments raised, concluding that the Appellant had failed to establish any error of law by the Legal Aid Board. I agree with the refusal of the trial judge to extend time (although for reasons somewhat different to those identified by her) and with her substantive conclusion. The Legal Aid Board made no error in concluding that the reference in the Scheme to judicial reviews “concerning criminal matters or matters where the liberty of the applicant is at issue” does not cover legal costs incurred in seeking to compel appropriate medical treatment while the applicant is serving a custodial sentence. The Legal Aid Board was entitled to depart from the recommendation of the judge in the 2022 proceedings that the Scheme should be applied.

LEGAL AID – CUSTODY ISSUES SCHEME

3. The terms of the Scheme are published by the Legal Aid Board in a document on their website, known as the Guidance document. The Scheme is an administrative, nonstatutory arrangement whereby payments are made from the vote of the Department of Justice and Equality in respect of certain legal costs for cases not covered by civil legal aid or the Criminal Legal Aid Scheme. Paragraph 4 of the Guidance Document provides, inter alia, as follows: “The Scheme applies to the following forms of litigation (which are not covered by Civil or Criminal Legal Aid):

“(i) Habeas Corpus (Article 40.4.2) Applications …

(ii) Supreme Court Bail Motions …

(iii) Such Judicial Reviews as consist of or include Certiorari,

Mandamus or Prohibition and concerning criminal matters or

matters where the liberty of the applicant is at issue …

(iv) Applications under Section 50 of the Extradition Act 1965,

Extradition Applications and European Arrest Warrant

Applications (including Bail Applications directly related to

these cases) …

(v) High Court Bail Motions related to criminal matters .. The Scheme only applies to proceedings of the type referred to above, conducted in the High Court and the Supreme Court. Where the proceedings are of a type which fall outside the scope of the Scheme, as for example in family law cases, the Scheme cannot be applied to those proceedings because public funds may only be applied for the purpose for which they have been provided by the Oireachtas. It is not within the discretion of the Legal Aid Board to apply public funds to other purposes”.

FACTUAL BACKGROUND

4. On 15 June 2022, the Appellant – who was serving a custodial sentence - was travelling to Wheatfield Prison from a court appearance in Monaghan Court House when the prison vehicle he was travelling in was involved in a collision. He did not receive medical attention immediately but attended the prison nurse the following day. He sought a consultation with the prison GP, but no GP was available to see him.

5. On 28 July 2022, the Appellant was given leave to seek an order of mandamus compelling the provision of medical treatment to him. He was released from prison very shortly afterwards. On 25 October 2022, those proceedings were struck out, with the Court recommending payment of the Appellant’s costs in accordance with the Scheme. The Appellant’s solicitors sought payment on foot of that recommendation, but this was refused by the Legal Aid Board by letter dated 18 July 2023, on the basis that the proceedings related to the manner of the applicant’s detention within the prison and, therefore, pertained to administrative and statutory functions of the prison and did not come within the Scheme.

6. The Appellant’s solicitor wrote to the Legal Aid Board by letter dated 21 August 2023, asking that the application be reconsidered. No reply was received. The Appellant’s solicitor wrote again on 28 September 2023, asking for a review of the decision. The Legal Aid Board responded by letter dated 3 October 2023, setting out, in terms similar to those in its letter of 18 July 2023, that the litigation was not covered by the Scheme.

THE PROCEEDINGS

7. The Appellant issued these judicial review proceedings in the High Court on 19 October 2023 and was granted leave on 27 November 2023. The statement of opposition was lodged on 1 March 2024, along with a replying affidavit from the Respondents. Following the hearing, the trial judge delivered judgment on 31 December 2024. The Appellant filed a notice of appeal on 19 March 2025, and the appeal was heard on 27 June 2025.

ARGUMENTS OF THE PARTIES

8. The Appellant argued that his application should have been treated as coming within the Scheme, that his exclusion from that Scheme infringes his constitutional rights, and that he should have been entitled to an extension of time pursuant to the inherent jurisdiction of the court. (It is not disputed by the Appellant that he was one day outside the three-month time limit provided by Order 84, r. 21(1) of the Rules of the Superior Courts (the “RSC”) for bringing judicial review proceedings, where he now accepts that the letter of 3 October 2023 from the Legal Aid Board did not reset the clock). The Appellant contends that his litigation concerns criminal matters or matters where the liberty of the applicant is at issue, relying on Barr J.’s decision in H v. Director of Public Prosecutions [2021] IEHC 308, where he said “the purpose of the legal aid custody issues Scheme is to ensure that people who are incarcerated in prison have an opportunity to obtain legal advice and bring whatever applications may appear appropriate that are connected to either their incarceration or their criminal trial.” The Appellant further relies on the dicta of Clarke C.J. in J.G.H. v. Residential Institutions Review Committee [2018] 3 IR 68, where he observed that it must be assumed that the Oireachtas did not intend potentially qualifying applicants entitled to public funds would be excluded on narrow or technical grounds. The Appellant argues that a judicial review application aimed at securing medical treatment must fall within the Scheme and, in circumstances where the Appellant was injured during transportation from court to prison, proceedings compelling adequate treatment must come within the Scheme.

9. Secondly, if he does not come within the parameters of the Scheme, the Appellant argues that the Scheme is contrary to the Constitution and/or the ECHR. For the Appellant, his exclusion from the Scheme diminishes his constitutional rights, namely his right of access to the courts and his bodily integrity. Further, he argues his right of access to courts and bodily integrity under the ECHR has been infringed by his refusal to legal aid.

10. The Respondents argue that the application for leave, having been made on 19 October 2023, was not made within three months from the date when the grounds for the application first arose, i.e. the letter of 18 July 2023 from the Legal Aid Board, as required by Order 84 r. 21(1) RSC. They point out that no application was made to the Court to extend the time pursuant to Order 84 r.21(3). Nor has the Appellant even attempted to provide any good and sufficient reason which would justify the court in extending time to bring the proceedings. In respect of the substance of the application, the Respondents argue that it clearly falls outside of the scope of the Scheme, as it related to the provision of medical services, rather than to any criminal matter. Nor could it be said that proceedings would impact on the Appellant’s liberty, or that they were connected with his incarceration. As such, the Respondents argue that the decision to refuse the application for payment was reasonable and lawful.

11. The Respondents deny that the Appellant’s constitutional or Convention rights have been breached. As the Scheme applies to criminal proceedings or proceedings related to the liberty of an applicant, and the Appellant’s right to medical treatment of his choice is not a matter that falls within the scope of the Scheme, then, in their submission, his rights to bodily integrity, and access to courts were not breached. They point out that the right to legal aid is not absolute, and they are not obliged to provide legal aid regardless of an applicant’s means.

ANALYSIS

Extension of time

12. The first point raised is whether the trial judge erred in concluding that the Appellant was out of time in bringing these proceedings and failing to exercise the court’s inherent jurisdiction to extend time for the issuing of the proceedings. The period by which the Appellant delayed was the shortest possible one, being one day outside the three-month time limit prescribed by Order 84, r. 21(3) RSC. However, cases have been excluded for being one day out of time (see for example the Supreme Court decision in Dekra Éireann Teo v. Minister for Environment [2003] 2 IR 270 a public procurement case governed by Order 84A RSC, which also provides for a three-month time limit from the date when grounds for the application first arose).

13. A wide range of other grounds were included in the notice of appeal, including that the trial judge erred in finding that the Appellant was out of time, that the identification of the date upon which time ran was incorrect and that the trial judge ought to have extended the time for good and sufficient reason. However, at the hearing the grounds were narrowed, leaving only the argument based on the refusal of the trial judge to exercise the inherent jurisdiction of the court.

14. That argument is wholly misplaced for the following reason. Order 84 RSC provides for an application for an extension of time under Order 84, r. 21(3) and identifies the criteria by which any such application must be judged. Order 84, r. 21(5) sets out the procedure for an application to extend time. Any application for an extension shall be grounded upon an affidavit sworn by or on behalf of the applicant setting out the reasons for the applicant’s failure to make the application for leave within the period prescribed and verifying any facts relied on in support of those reasons. The Appellant included in the reliefs sought in the Statement of Grounds an application for an extension of time but did not file any affidavit as required by Order 84, r. 21(5). It is difficult to understand why no such affidavit was sworn, as it was clear from the Statement of Opposition filed by the Respondents that the proceedings were being opposed on the basis that they were out of time (see paragraphs 1 and 2 of the Statement). Similarly, the legal submissions of the Respondents include a submission that the proceedings are time barred and refer to the requirement of Order 84, r. 21(5) that any application to extend time requires to be based on an affidavit. In other words, the Appellant was left in no doubt but that this was an obstacle he would face when the matter came on for trial.

15. In the absence of an application under Order 84, r. 21(3), the Appellant sought an extension of time pursuant to the inherent jurisdiction of the court. The trial judge refused the application on the following basis: “The Court has been asked to exercise its inherent jurisdiction to extend the time in the absence of any clearly identified reason to do so, and where intervening pre-litigation correspondence did not present any such reason. I do not consider it appropriate to accede to such an application where the basis for doing so, as per O. 84, r.21(3), has not been established. A further matter of relevance to whether a court should extend time is the strength of the underlying judicial review, particularly where the proceedings are only one day out as occurred here. For the reasons I have set out below, I do not consider the substantive judicial review proceedings here to be especially strong or compelling and I take that into account in refusing to exercise the court’s inherent jurisdiction to allow an extension of time”.

16. I agree with the trial judge’s substantive conclusion i.e. that time should not be extended, but not because it was an inappropriate case in which to exercise any inherent jurisdiction to extend time. Rather, in the context of judicial review, I consider that any inherent jurisdiction to extend time that may have existed has been comprehensively excluded by Order 84, r. 21(3) to (7), which provides for a complete and exhaustive scheme in respect of the extension of time. It is well established that, where the jurisdiction of the courts is delineated by statute law, this generally excludes the exercise by the courts of jurisdiction of an implied or inherent nature. As recently observed by Murray J. in Kirwan v. Connors & Ors. [2025] IESC 21: “The position was clearly explained by Murray J., as he then was, in G.McG v. DW (No. 2) [2000] 4 IR 1, at p. 27: ‘Where the jurisdiction of the courts is expressly and completely delineated by statute law it must, at least as a general rule, exclude the exercise by the courts of some other or more extensive jurisdiction of an implied or inherent nature. To hold otherwise would undermine the normative value of the law and create uncertainty concerning the scope of judicial function and finality of court orders. It may indeed be otherwise where a fundamental principle of constitutional stature is invoked against a statutory or regulatory measure determining jurisdiction ...’”

17. As stated by Clarke J. in Mavior v. Zerko Ltd [2013] 3 IR 268: “If, in a constitutionally permissible way, the Oireachtas have defined the limits of a particular jurisdiction then it is not for the courts to extend those limits by invoking a vague “inherent jurisdiction” (paragraph 17). In Mavior, the court was required to consider whether the provisions of Order 29 RSC had operated to oust the inherent power of the courts to direct security for costs, with Clarke J. referring to the observation in G. McG v. D. W. (No. 2) to the effect that invoking an inherent jurisdiction of the courts beyond the delineation specified in a statute would result in the courts trespassing on the legislative role.

18. On the other hand, Clarke J. noted that if a relevant jurisdiction was not the subject of a complete delineation by statute, for example where the Rules merely regulated the procedural manner in which an inherent court jurisdiction may be pursued, then they should not be treated as creating a comprehensive code for the regulation of that jurisdiction. He concluded that where the scope of a particular jurisdiction is regulated in part by the Rules and in part by case law (as was the case with security for costs), it was not appropriate that such issues be addressed by the creation of a parallel “inherent jurisdiction”, asking rhetorically what would be the point of an elaborate analysis of the circumstances in which an order could be made, if it were possible to by-pass the Rules and case law by invoking a separate inherent jurisdiction.

19. Here, Order 84, r. 21(3) to (7) suggests that the entitlement to extend time to bring judicial review proceedings is to be found exclusively in those provisions. Those Rules have been closely scrutinised by the Superior Courts on several occasions (perhaps most searchingly by the Supreme Court in O’S v. Residential Institutions Redress Board [2019] 1 ILRM 149). In my view, the jurisdiction to extend time in judicial review proceedings is now wholly delineated by statute i.e. Order 84, r. 21(3) to (7), and represent a complete code in respect of the extension of time, including the criteria by which applications are to be judged, the procedural manner in which an application is to be made, the relevance of the impact of an extension on third parties and other associated matters.

20. Paraphrasing Clarke J. in Mavior, what would be the point of providing detailed provisions in respect of extensions of time in judicial review if it were possible to bypass the rules and the existing case law by invoking a separate inherent jurisdiction? To do so would lead to an inconsistency of approach, as is in fact shown by the facts of the instant case. As part of her consideration of the application, the trial judge considered the merits of the application as part of her rationale for refusing to extend the time. This is not in any way an unorthodox approach: the “Eire Continental” test, first identified in Eire Continental Trading Co. Ltd. v. Clonmel Foods Ltd. [1955] IR 570 and consistently followed by the courts since then (albeit with some refinements – see Seniors Money Mortgages (Ireland) DAC v. Gately [2020] 2 IR 441), requires a litigant seeking an extension of time to appeal to demonstrate they have arguable grounds. But the criteria applicable to an extension of time identified in Order 84, r. 21(3) do not include the strength of the case sought to be advanced. Rather, a court is required to consider whether there is a good and sufficient reason for extension, and whether the circumstances that resulted in the failure to make the application either were outside the control of, or could not reasonably have been anticipated by, the applicant. This illustrates the danger of using inherent jurisdiction where the legislature has regulated the arena: a parallel set of criteria not selected by the legislature may creep into the analysis, thus undermining what has been provided for in legislation. In short, any inherent jurisdiction to extend time that a court might enjoy is displaced in judicial review proceedings where Order 84 specifically provides for an extensive mechanism regulating applications to extend time to bring proceedings.

21. My conclusion means that there is no requirement to consider the strength of the Appellant’s substantive case as the Appellant is out of time and has not sought to extend it. However, because the appeal case raises a somewhat novel point of law in respect of the Scheme that may arise in future cases, I have addressed the substantive question. The following observations are therefore obiter.

Interpretation of legal aid – Custody Issues Scheme

22. The core of the Appellant’s complaint is that the Legal Aid Board erred in deciding that his proceedings seeking medical assistance were outside the scope of the Scheme. He also argues that his constitutional and ECHR rights have been breached, namely his right of access to the court and his right to bodily integrity.

23. I have recited above extracts from the Scheme. The Appellant contends that his proceedings come within the third category at paragraph 4 of the Scheme i.e. “such judicial reviews as consist of or include certiorari, mandamus or prohibition and concerning criminal matters or matters where the liberty of the applicant is at issue.” The Statement of Grounds sought an order of mandamus compelling the Governor of Wheatfield Prison to arrange for the Appellant to receive the requisite medical treatment following the Appellant sustaining injuries in a road traffic collision on 15 June 2022. Therefore, the inquiry circles around whether the judicial review concerned “criminal matters” or was one where “the liberty of the applicant is at issue”. The Appellant appears to contend that the 2022 proceedings fall under both headings.

24. The trial judge held at paragraph 13 that a claim challenging the failure to bring a prisoner to hospital after a road traffic accident was not a matter concerning criminal matters simply because they were being transported from court to prison. She concluded that the matter of the Appellant’s medical treatment or non-treatment did not concern criminal matters. She acknowledged it concerned his incarceration, as, were he not so incarcerated, he would have been free to make his own decision to attend hospital but observed that the Scheme was not one designed to cover matters relating to a person’s incarceration. She therefore concluded that the proceedings did not relate to criminal matters.

25. At paragraph 14 she concluded the proceedings did not relate to the Appellant’s liberty as whether he had been brought to hospital or not, he would still have been in detention and the fact of any hospital attendance or medical treatment would not have changed that. In respect of the argument that the deprivation of his liberty meant that he was not free to attend hospital without the permission and support of the Prison Service, she acknowledged this was so, but noted this was not the same as putting his liberty at issue. In the circumstances, she concluded that the Legal Aid Board were correct in their interpretation of the Scheme that the Appellant’s litigation did not come within its scope and that the recommendation of the learned High Court judge that the costs should be paid from the Scheme did not alter that.

26. The grounds of appeal are somewhat nebulous. Most of the grounds simply identify that the judge erred in law in her conclusions but do not explain why. The purpose of a notice of appeal is to permit the appellate court to understand precisely what the Appellant contends is the legal flaw in the decision appealed against. To simply list the findings of the trial judge and to contend they are erroneous is to squander the opportunity given to appellants to seek to persuade the appeal court that the decision should be overturned. It means that any real understanding of the grounds of appeal is postponed until the written submissions, or even less helpfully, the oral hearing, thus depriving respondents of the opportunity to respond meaningfully to the appeal grounds in their notice. The type of boilerplate pleading exemplified by the notice of appeal here has been condemned by the courts on many occasions and is particularly inappropriate in an appeal context.

27. The written legal submissions bring somewhat more focus to the argument but not a great deal. There is a complaint that the court’s recommendation in the 2022 proceedings was not given any or any sufficient weight. There is a reference to H. v. DPP [2021] IEHC 308 where Barr J. observed that the purpose of the Scheme was to ensure that people incarcerated have an opportunity to obtain legal aid and bring applications appropriately connected to either their incarceration or their criminal trial, thus giving them access to legal aid and legal representation and protecting same. The argument is made that, because the Appellant was injured during transit in the context of his incarceration, a judicial review application aimed at securing medical treatment must fall within the Scheme premised upon this broad reading by Barr J., being connected to his incarceration.

28. A further argument is made that the Scheme should be treated by analogy with remedial statutes and that the court should therefore not be narrow or technical in its interpretation. Reliance is placed on the observations of Clarke C.J. in J.G.H. where he observed that “it must be assumed that the Oireachtas, having decided it is appropriate to apply public funds to compensate a particular category of persons, did not intend that potentially qualifying applicants would be excluded on narrow or technical grounds as that would be inconsistent with the purpose of the legislation.” It is important to note that the quote goes on to say that where there is a remedial Scheme courts should not be narrow or technical in interpreting the bounds of the Scheme, but they should not be ignored either.

29. The Appellant summarises his argument to the effect that because he was injured during transportation from court to prison and while in prison refused access to the correct treatment his proceedings must come within the Scheme. There is no engagement with the findings of the trial judge that the Scheme is intended to cover criminal matters or matters where the liberty of the applicant is at issue, but not necessarily every matter that arises in the context of incarceration.

30. As observed by the Respondents in their submissions, this Scheme is an administrative non-statutory Scheme which provides ex gratia payments from the vote of the Department of Justice in certain defined cases and is designed to ensure that an impecunious litigant is provided with legal representation in certain types of cases not otherwise covered by statutory legal aid Schemes. The Legal Aid Board is bound by the terms of the Scheme and public funds can only be applied for the purpose for which they have been provided by the Oireachtas. Therefore, to succeed in his appeal, the Appellant must establish that the trial judge erred in the manner in which she interpreted the Scheme.

31. No real argument has been put up as to why there is an error in the approach of the trial judge. This is clearly not a matter where the liberty of the Appellant was at issue since, irrespective of the outcome of the proceedings, his liberty would not have been affected.

32. That leaves only the argument to the effect that the judicial review concerned “criminal matters”. The term “criminal matters” is admittedly somewhat vague but at a minimum must cover matters concerning a criminal charge, bail and a criminal trial (including sentencing). In my view, the question of the nature of the medical treatment afforded to a person while in prison cannot be treated as concerning a criminal matter. It is true that the fact of his incarceration – which in turn meant that he was not free to procure his own medical treatment – arose from a criminal matter, i.e. his conviction and subsequent sentencing to a period of incarceration. But that does not mean that his treatment while in prison and his challenge to that treatment in judicial review proceedings is a criminal matter. Nothing in his challenge related, for example, to his conviction or his sentence. Rather, the litigation concerned his treatment while incarcerated due to a criminal matter. That is, in my view, too remote a connection to warrant his proceedings being treated as concerning a criminal matter. That reality is reflected in the judgment of the trial judge, where she notes that criminal matters do not include the manner of his incarceration. The interpretation contended for by the Appellant would constitute a significant extension of the Scheme without there being any basis for same in the wording of the Scheme. In short, the matter complained of was a failure to get medical treatment: that alleged failure was not in my view a “criminal matter” within the meaning of the Scheme, despite the complaint arising while the Appellant was in prison.

33. No meaningful argument explaining why the trial judge was wrong to uphold the interpretation placed on the Scheme by the Legal Aid Board has been put forward by the Appellant. Rather, the Appellant emphasises the necessity of interpreting the Scheme in a broad fashion to facilitate access to legal advice and refers to his vulnerable status as a prisoner. As Barr J. observes in H. v. DPP, it is certainly true that the Scheme represents an administrative procedure which seeks to ensures that people have access to legal advice. However, the terms of the Scheme show quite clearly it is not unqualified access: it is access within the terms of the Scheme. Where a matter clearly does not come within the Scheme, the underlying purpose of the Scheme cannot be used to extend the wording of the Scheme beyond the meaning that it bears. Similarly, the argument that the court should not be narrow or technical in its interpretation does not assist the Appellant: as Clarke C.J. observed in J.G.H., courts should not ignore the terms of a Scheme even if the purpose of the Scheme is remedial.

34. The Appellant had argued in his written submissions that adequate weight had not been given by the Legal Aid Board to the recommendation that the Scheme be applied in the 2022 proceedings. That argument was considerably watered down at the oral hearing, perhaps unsurprisingly given the decision in O’Shea v The Legal Aid Board [2023] 2 IR 304 to the effect that the Legal Aid Board is not bound by the recommendation of the court. It is true that, having concluded that the Board is not bound by the recommendations of the court, Baker J. observed that a recommendation is a “weighty and valuable matter, one not likely to be disregarded” and that “it is hard to envisage circumstances in which the recommendation of the court would not bear very significant weight in the decision, and may be in most cases dispositive.” Nonetheless, the ratio of the Supreme Court judgment is that the Board is not bound by the recommendation. Moreover, as noted by Baker J. in O’Shea, the Legal Aid Board is not a party to the application. She identified the difficult balancing act the Legal Aid Board must perform as follows:

“The decision not having been made inter partes, it cannot be said in a strict legal sense to bind the board, but the system by which a recommendation is made by a court on an essentially ex parte basis leaves the Board in the difficult position that it must on the one hand undoubtedly respect the solemnity and importance of the fact that a judge has made a recommendation, but equally it must be satisfied before paying out from State funds that an applicant meets the various eligibility requirements in the Scheme”.

35. In most cases, there will not be an issue as to whether the proceedings fall within the scope of the Scheme; but where there is an issue, as in the instant case, and where there is no opportunity for the court to consider the question of the parameters of the Scheme when the application for a recommendation is made (as in the instant case, where no arguments appear to have been made on whether the scope of the Scheme covered the 2022 proceedings), then the recommendation of the court will likely bear less weight when the application is being considered by the Legal Aid Board.

36. In the letter of 18 July 2023 from the Legal Aid Board, it acknowledges that a recommendation from the Court must always be obtained for an application to be considered, and it will always give due weight to any such recommendation. In those circumstances, I can see no error in the trial judge’s conclusion that the recommendation is always subject to the application coming within the scope of the Scheme and that is a matter for the Legal Aid Board to determine having regard to the wording of same.

Rights of access to the court/Bodily integrity

37. Finally, an argument is made that it was disproportionate to deny the Appellant his right of access to the courts and to bodily integrity by virtue of a narrow reading of a Scheme and that his constitutional and ECHR rights had been breached. The Appellant acknowledges in his written legal submissions that Article 6(1) of the ECHR does not guarantee free legal aid for every dispute in a civil context. But, relying upon Airey v. Ireland (1980) 2 EHRR 305, it is argued that Article 6(1) may compel the State to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court. Reliance is also placed on the right of access to the court under Article 40.3 of the Constitution and it is argued that these rights “cannot be diminished by the operation of an administrative scheme”.

38. The trial judge found that the Appellant had not been denied access to the courts, as he was able to bring his proceedings and was accommodated in attending with both his solicitor and doctor; the fact that he had to take responsibility for the costs of those proceedings was not a denial of his right to access the courts. The trial judge further found that the Appellant’s right to bodily integrity was not infringed, as the Appellant was seen by a prison nurse on the day after the collision and there was no evidence that further medical treatment was denied to him.

39. The argument in respect of the right of access to the courts can be disposed of promptly. The Appellant clearly exercised his right of access to the court, having brought judicial review proceedings to compel medical treatment. Subsequently, his solicitors failed to recoup the legal costs they had undoubtedly expended because the matter was held not to come within the Scheme by the Legal Aid Board. Given the nature of the proceedings and the wording of the Scheme, those solicitors must have been aware of the risk that the cost of the proceedings would not be covered by the Scheme but nonetheless chose to represent him. As the Respondents point out, the Appellant had a right to apply to the Scheme and to have his application for legal aid pursuant to the Scheme considered (Minister for Justice v. Olssen [2011] 1 IR 384). There was no breach of this right. His application was considered, and reasons were given for the rejection of his application. But it is well established that there is no absolute right to legal aid (see Magee v Farrell [2009] 4 IR 703 and Airey). The constitutional right of access to the court (or that guaranteed by the ECHR) does not encompass a right to legal aid for all actions that a person may wish to bring. In those circumstances, no error is established in the approach of the trial judge.

40. The Appellant also argued that the principle of proportionality required that the Scheme be interpreted to cover his legal costs in the 2022 proceedings. Proportionality cannot be used to seek to extend a Scheme beyond the bounds of what has been provided by the Executive.

41. In respect of the bodily integrity argument, the mere fact that the proceedings were concerned with the provision of medical treatment does not mean that a refusal to provide legal aid undermines the Appellant’s right to bodily integrity. As set out above, the Appellant had full access to the court in the 2022 proceedings to make a complaint in respect of his medical treatment. This challenge is about the recoupment of legal expenses and not about the Appellant’s right to bodily integrity. The Appellant does not explain how his right to bodily integrity was directly undermined by the impugned

decision of the Legal Aid Board on the facts of this case. In the circumstances, I see no error in the trial judge’s rejection of this argument.

CONCLUSION

42. Having regard to the foregoing, I uphold the decision of the trial judge and reject the appeal in its entirety. As the Respondents have been entirely successful, they are presumptively entitled to their costs. Should the Appellant wish to contest this, he should file and serve a written submission of not more than 1,500 words within 10 days from the date of delivery of this judgment, after which the Respondents will have a further 10 days in which to file and serve replying submissions of similar length.

43. Since this judgment is delivered electronically, I am authorised by Faherty and Meenan JJ. to state that they agree with it and the orders proposed above.