Court of Appeal dismisses appeal against Legal Aid Board's refusal of legal aid certificate termination. The court finds no material error of fact or law. The Board's decision was based on clear reasons and did not breach EU law or statutory discretion limits.

THE COURT OF APPEAL

CIVIL

APPROVED

NO REDACTIONS NEEDED

[High Court Record No. 2023 943 JR]

[Court of Appeal record No. 2025 169]

Neutral Citation Number [2026] IECA 97

Whelan J. Binchy J. Meenan J.

BETWEEN/

CHRISTOPHER PRENDERGAST

APPLICANT/APPELLANT

AND

THE LEGAL AID BOARD

RESPONDENT

JUDGMENT of Ms. Justice Máire Whelan delivered on the 21st day of May 2026

1. This is an appeal against the judgment [2025] IEHC 257 and subsequent order of Gearty J. (perfected on 28th May 2025) refusing the appellant’s application for Judicial Review including an order of Certiorari setting aside the decision of the Legal Aid Board (‘the Board’) made on 15th May 2023 rejecting his appeal against the termination of a Legal Aid Certificate previously granted to him on or about 7th May 2021 and related declarations. The appellant is a retired engineer who represented himself in these proceedings. The Board is a statutory body established under the Civil Legal Act 1995, (as amended) (‘the 1995 Act’) charged with certain functions under the said Act and the Regulations made from time to time thereunder.

2. The background to the proceedings encompasses a protracted litigation history extending over the past four decades in which the appellant was actively involved and engaged albeit not directly as a litigant or party. The judgment of Gearty J. traces this background in significant detail and it is unnecessary to fully rehearse it here save where necessitated for clarity, context or to assist in more fully understanding the decision of the High Court.

Essential Background

3. On 29th January 1986, a knitwear factory owned and operated by the company W.J. Prendergast & Son (‘the Company’) in Leighlinbridge, Co. Carlow was destroyed by fire. The Company was controlled by the appellant’s father, Mr William J. Prendergast (‘the father’). The appellant was a 20% shareholder. At the instigation of its insurer, the Company brought a claim for compensation against Carlow County Council (‘the Local Authority’) pursuant to Section 5 of the Malicious Injuries Act 1981 (‘The 1981 Act’) arising from the damage caused by the fire. Section 5(1) provides: “Where damage, the aggregate amount of which exceeds one hundred pounds, is maliciously caused to property, the person who suffers the damage shall be entitled to obtain compensation from the local authority in accordance with this Act.”

4. The Circuit Court, by agreement, dealt with liability as a preliminary issue. The Local Authority had resisted the Company’s compensation claim for over £1,000,000IR on two grounds; firstly, that the Company had reconstructed the premises following a fire in 1969 but had done so without requisite planning permission and that accordingly the Local Authority ought to be exempt from having to provide compensation under the 1981 Act. The judge rejected this argument and held it was an exempted development. The second assertion advanced by the Local Authority was that the fire had not been maliciously caused by a wrongful act of a third party within the meaning of the 1981 Act, but rather that the father either by himself or conspiring with his son (the appellant) had set the fire. The judge in his decision delivered in October 1986 held that “The fire which caused the damage to this factory was malicious.” (page 58 Circuit Court Judgment Transcript). The Company succeeded on the liability issue. The Local Authority appealed to the High Court.

5. On appeal to the High Court, O’Hanlon J. having heard de novo the evidence of the witnesses, including, inter alia, for the company Dr MacDaeid (a fire consultant), the appellant and both his parents and, for the Local Authority Mr Redvers Skelton (a fire consultant). O’Hanlon J.’s judgment delivered 3rd June 1988 (‘the 1988 Judgment’) reversed the decision of the Circuit Court. The crucial finding at pp. 9/10 of the 1988 judgment will be considered more fully, for the appellant has maintained ever after and continues to assert that the said judgment necessarily implies that he and his father were guilty of the crime of arson. By reason whereof he now seeks that the Board be compelled to continue the provision of Legal Aid under the 1995 Act to enable him to now pursue litigation in the High Court in order to clear his good name.

6. The 1998 Circuit Appeal heard the evidence of the two fire consultants but, crucially, preferred the evidence of the Local Authority’s expert, Mr Skelton. The latter had inspected the property the day after the fire, testified at length to having found “evidence which suggested…that kerosene vapours were present in at least three locations within the building…”. O’Hanlon J. noted that the Company had, following an earlier robbery, installed “a fairly sophisticated type of burglar alarm…”. It was said that if breached anywhere in the interior it “…would set off alarm bells inside and outside the factory and flashing lights in the exterior of the premises”.

This would alert “...the firm in Dublin which installed the system…”. That firm, in turn, should have contacted both Mr William J. Prendergast (the father) and the Gardaí in Carlow. The alarm was said to have gone off at about 8.42 pm. Unfortunately, no witness from the installing security company was called at the appeal hearing and there was no evidence that they had contacted Carlow Gardai that evening, or, if not, why they had omitted to do so. The judge was preoccupied by what he perceived to be significant delays in calling the Gardai and emergency services on the evening in question.

The father learned of the alarm’s activation from his wife when he returned home at 8.55 pm in the evening. She had already contacted the appellant (her son) to alert him to check out the factory after being informed earlier (presumably by the firm in Dublin which had installed the system) that the factory alarm had been activated. The father had remained at home watching TV until 9.30 pm when he phoned the factory and spoke to the appellant who reported having found a suspicious vehicle with “a length of pipe inserted into the petrol tank”.

The father attended the factory at about 10 pm. Father and son inspected that vehicle and the premises together. The father’s evidence was that while standing outside looking through a window at about 10.10 pm “he saw a “shining glow” in the knitting room about four yards from the window…”. O’Hanlon J. noted that “Christopher said he did not even see the glow, so he was apparently not interested enough to look in the window to see what his father was referring to” (p.8). Father and son then went into the building and to the knitting room but were unable to enter it’s door due to severe smoke.

Once that door was opened “It then became a massive fire which speedily engulfed the whole factory.” Only then did they call the emergency services.

7. Mr Skelton’s expert evidence, which appears to have been delivered with great authority, was found to be persuasive by the judge – “I find this evidence quite convincing.”. Mr Skelton opined that if smouldering had occurred in the room stacked with acrylic material “…pungent fumes would have percolated rapidly to every part of the factory” and should have been apparent in the room where [the appellant] “…sat reading for a considerable time…”. The judge appeared perplexed that the appellant had sat reading a magazine for half an hour 9.30pm – 10 pm while awaiting the arrival of his father in a room where, according to Mr Skelton evidence of kerosene vapour was found the following day.

8. O’Hanlon J. noted that “…the evidence called in support of the claim was designed to exclude the possibility of the fire having occurred accidentally, in circumstances where no claim for compensation would arise”. O’Hanlon J’s judgment placed significant weight on the delays from when the fire started and the father was notified, to when he had arrived on scene and notified Gardaí. The evidence adduced on behalf of the company was found to be deficient in several respects. For instance at p.6 the judge notes “..There was no witness from the burglar alarm firm to confirm that this link with the Garda Station existed and should have operated nor any explanation for the lack of response if it did...”. A further significant problem he found with the company’s evidence was that; “There was… only hearsay evidence as to the exact time the alarm went off.”

9. While the Company’s expert testified that there was no evidence of an accelerant having been used in the room where the fire started, far greater weight was placed by the judge on the expert testimony of the Local Authority’s expert, Mr Skelton, who claimed to have detected traces of kerosine vapour at three sites the next day. The appellant’s long nursed and intensely felt personal grievances with the 1988 testimony of Mr Skelton at the Circuit Appeal hearing is of central relevance to the present application and appeal.

10. O’Hanlon J. concluded: “I find the evidence in support of the Applicant’s claim in relation to these matters, which I regard as crucial to the case, so unsatisfactory and so unconvincing, that I am unable to come to a conclusion that as a matter of probability the fire was caused by the malicious act of a third-party in circumstances giving rise to a claim for compensation under the provisions of the Malicious Injuries Act, 1981”. (pp. 9/10)

11. O’Hanlon J came to this conclusion based on the evidence presented by both sides at the 1988 Circuit Appeal hearing. This was a civil action and the burden of proof rested throughout with the sole plaintiff, the Company, to satisfy the court on the balance of probabilities that the 29th January 1986 fire had been caused by the malicious act of a thirdparty “…done intentionally without just cause or excuse” as required by the 1981 Act. The effect of O’Hanlon J’s conclusion was not to definitively determine whether the appellant or his father were in fact the individuals responsible for the fire or whether it started accidentally or in any other way that caused the Company’s claim to fall outside the provisions of the 1981 Act, but rather was a finding that he was not satisfied to the requisite standard of proof, on the balance of probabilities, based on the evidence put before him by the Company, that the fire was started by a malicious third party for the purposes establishing statutory entitlement to receive compensation from the Local Authority.

12. The appellant is adamant that a necessary implication of the High Court’s conclusion is that he and/or his father were responsible for the fire such that the decision of O’Hanlon J. had the effect of imposing criminal liability on them for the offence of arson without affording them proper procedural protections. One possible reading of the judgment might be that he considered the onus rested on the Company to establish on the balance of probabilities that the fire had not been caused by either (or both) of the Prendergasts. As Keane J. noted in Belton v Carlow County Council [1997] 1 IR 172, at p.179 it does not appear to have been argued before O’Hanlon J. that “if the damage had been perpetrated by one or other or both of the [Prendergasts], the company, as the applicant, could not in law be identified with them.”. The father is not a party to this application. It is not clear whether he is alive.

13. In 1990 the Company, being dissatisfied with the determination of O’Hanlon J as being erroneous on a point of law, sought leave from him to bring an application by way of Case Stated to the Supreme Court (McCarthy J.) pursuant to ss.18(1)(2) of the 1981 Act which he refused. The Supreme Court declined to entertain the Company’s attempted appeal from that refusal on the basis that it lacked jurisdiction - W J Prendergast & Son Ltd v Carlow County Council [1990] 2 IR 482, in light of Section 38 of the Courts of Justice Act 1936.

14. The appellant states that he approached the Supreme Court in a personal capacity on 14th October 1988 seeking to challenge the findings in the judgment of O’Hanlon J. of 3rd June 1988. He reports that the Supreme Court ruled that his underlying claim was “hopeless in law” since he was not party to the proceedings he sought to challenge.

15. In 1992 the Company brought plenary proceedings against the Local Authority and its expert witness, Mr Skelton, arising out of the 1988 judgment seeking damages for injurious falsehood and alleging fraud and various fraudulent conduct in relation to the evidence given at the 1988 Circuit Appeal hearing as to the origins of the 1986 fire. This litigation went into abeyance and no further action was taken by the Company to pursue same until November 2000 when there was a change of solicitor.

16. In separate proceedings, Mr Belton, whose nearby premises were damaged in the January 1986 fire, also instituted proceedings against the Local Authority. He was awarded compensation under the 1981 Act for malicious damage to his property. The Local Authority subsequently sought to be indemnified by the appellant and his father under the 1981 Act, on the basis of them having started the fire. The Circuit Court found in favour of the appellant and his father. The Local Authority appealed. Johnson J. stated a case for the opinion of the Supreme Court as to whether the appellant and his father were estopped from adducing evidence to establish the cause of the 1986 fire or whether that issue was res judicata or subject to issue estoppel by reason of O’Hanlon J.’s 1988 judgment.

17. The decision of the Supreme Court Belton v Carlow County Council [1997] 1 IR 172 was given by Keane J. The Court found that there was no issue of estoppel as same arose only if parties sought to litigate issues which necessarily and fundamentally formed the basis of a judgment in earlier proceedings between the same parties or their privies. There was no privity between the Prendergasts and the Company. They could not be conflated with the Company for the purposes of the indemnity claim and the doctrine of abuse of process cannot apply in a case of collateral proceedings not otherwise barred by an issue estoppel.

18. To a suggestion that O’Hanlon J. had erroneously concluded that the onus was on the Company to establish that the fire had not been caused by the Prendergasts, Keane J. observed at p.180 :“I attach no significance in this context to the fact that O'Hanlon J., in reaching his conclusion, used language which, on one view, would suggest that he regarded the onus of establishing that the fire had not been caused by the company as resting on them. I would, to put it mildly, be surprised if a judge of his experience and knowledge of the law would have proceeded on so erroneous a view of the law. It is, however, sufficient to say that even making the assumption that he did err to that extent, his judgment, as between the parties and their privies, remains conclusive as to all matters of law and fact on which it was founded.”

19. The Supreme Court further found that while the question of liability for the fire had been settled in the previous High Court judgment it was inappropriate for the Local Authority to seek to indemnify itself through the appellant and his father since they were not parties to those proceedings. The fundamental legal distinction which the appellant and his father succeeded in having the Supreme Court recognise in the Belton judgment was between the appellant and his father on the one hand, and the Company on the other - with the latter being viewed as an entirely separate legal entity which had been a party to subsequent proceedings challenging the 1988 judgment is significant to the present claim where the appellant seeks now to disregard this legal distinction. Keane J., at p.183 in Belton, left open the potential that any proceedings taken by the Applicant or his father to set aside the 1988 judgment might be precluded by the maxim interest rei publica ut sit finis litium .

20. Returning then to the Company’s 1992 action referred to above, in 2001 the Company served Notice of Intention to Proceed against the Local Authority and Mr. Skelton. The Local Authority brought a motion to strike out same on the grounds that the Company had no cause of action and that there had been inordinate and inexcusable delay. The High Court (O'Donovan J.) was satisfied that the existing statement of claim did not show a cause of action but had granted the company liberty to amend it. The Local Authority appealed against the said order of the High Court refusing to dismiss the proceedings.

21. On appeal it was held by the Supreme Court in W.J. Prendergast & Son Ltd v Carlow County Council (Unreported, Supreme Court, 8 March 2005) McGuinness J. (Geoghegan and Kearns JJ. concurring) in allowing the appeal and dismissing the plaintiffs' proceedings that no cause of action was disclosed against the Local Authority.

22. The Company’s proceedings continued against Mr Skelton. Same were dismissed by McGovern J in the High Court in W.J. Prendergast & Son Ltd v Carlow County Council [2007] IEHC 192. The Court there noted that the claim being brought was reliant on an expert report of Dr Brian G. O’Rourke commissioned in 2006 (‘The 2006 Report’) 14 years after the proceedings first commenced against Mr Skelton in 1992. This report asserted that much of the original expert testimony of Mr Skelton was mistaken and that several of his conclusions contained false evidence. McGovern J., citing the decision of the Supreme Court in Looney v the Governor and the Company of Bank of Ireland and Morey (Unreported, Supreme Court, 9th May 1997) found that regardless of the allegations advanced by the report against him, Mr Skelton was protected by the immunity afforded to expert witnesses in suit.

23. McGovern J. also found that the allegations emerging from the 2006 report were not based on new evidence and concerned findings surrounding the expert testimony of Mr Skelton which were known to the Company at the time of the original trial/Circuit Appeal but not challenged at that stage. He noted that the Company was legally represented throughout the original proceedings and had called its own expert witnesses to testify as to the origins of the fire. No reason was provided as to why the arguments being presented in 2006 could not have been advanced by the Company in 1986/1988. Because of this, McGovern J. found that there was no reason to displace the presumptive immunity which Mr Skelton possessed as an expert witness. The court did not find it necessary to consider the issue of delay.

24. In 2019 the appellant, having refrained since 1988 from taking any litigation on his own behalf over the previous thirty years to assert or vindicate his rights, applied to the Board seeking a civil Legal Aid Certificate to launch a personal claim against Mr Skelton. The Legal Aid Certificate was initially refused but subsequently granted on 7th May 2021 to obtain advice on the viability of a challenge to the 1988 O’Hanlon J. decision. On 19th January 2023, after consultation with counsel who furnished an opinion, the Board wrote to the appellant to inform him of its intention to terminate his Legal Aid Certificate pursuant to Regulation 9(5) of the Civil Legal Aid Regulations 1996-2021. A detailed 4-page letter setting out the Executive’s reasons was provided to him 4th April 2023. The appellant invoked his right to appeal and same was considered at the May 2023 meeting of the Appeal Committee. He was notified by letter of 15th May 2023 that the Committee had upheld the

decision “… on the same grounds and for the same reasons as the Executive.”

25. On the 10th May 2024 Simons J. granted leave to apply by way of an application for judicial review seeking an order of certiorari to quash the Board’s decision of 15th May 2023 to terminate his Legal Aid Certificate and sundry declaratory reliefs. The appellant’s claims included, inter alia, arguments that the decision of the Board to terminate the certificate amounted to an attack on his rights to a fair trial as an EU citizen under Article 47 of the Fundamental Charter of Human Rights (the Charter), and under Article 6 of the European Convention of Human Rights (ECHR). He argued that these rights took primacy over the domestic statutory provisions of the 1995 Act on which the Board based its decision. The substantive action was heard by Gearty J. in 2025.

The High Court Judgment

26. On 29th April 2025 Gearty J. delivered a very comprehensive judgment ([2025] IEHC 257) rejecting the appellant’s claim that the Board’s refusal of his appeal was a violation of his rights as a European citizen under Article 47 of the Charter, and his rights under Article 6 of the ECHR. The judgment can usefully be broken down into the distinct issues which comprise the basis of the appellant’s claim. Central to same is the issue of the Board’s statutory capacity to terminate Legal Aid Certificates and whether the appellant can, on the evidence, purport to rely on international instruments to compel the Board to provide him with legal aid to pursue proposed litigation.

27. The trial judge (para. 4) cites s.24 of the 1995 Act which identifies the general considerations governing decisions of the Legal Aid Board to grant of legal aid or advice: “24.—Without prejudice to the other provisions of this Act a person shall not be granted legal aid or advice unless, in the opinion of the Board—

(a) a reasonably prudent person, whose means were such that the cost of seeking such services at his or her own expense, while representing a financial obstacle to him or her would not be such as to impose undue hardship upon him or her, would be likely to seek such services in such circumstances at his or her own expense, and

(b) a solicitor or barrister acting reasonably would be likely to advise him or her to obtain such services at his or her own expense.”

The trial judge also noted that the power of the Board to revoke legal aid is found in s.28(7) of the 1995 Act which sets out that it may revoke a Legal Aid Certificate “where it considers that it is no longer reasonable for the person to continue to receive legal aid…”. Regulation 9(3) S.I. No. 273/1996 of the Civil Legal Aid Regulations 1996 provides: “… the Board may at any time terminate a certificate from such date as it considers appropriate when satisfied that this is justified and in particular may do so —

(e) where it considers that the legally aided person is behaving unreasonably in connection with the conduct of the proceedings or that it is unreasonable in the particular circumstances of the case (including the cost of the proceedings) that that person should continue to receive legal aid…”.

28. In analysing the degree of discretion granted to the Board by the regulations, the trial judge attached weight to the decision of Phelan J. in B.A. v Legal Aid Board [2023] IEHC 569, where at para. 32 it was observed that “the Board is entitled under the statutory scheme within which it operates to refuse legal aid where it considers that the maintenance or defence of proceedings for which a legal aid certificate is sought lacks merit such that there are no reasonable grounds for maintaining or defending the proceedings, the proceedings are not reasonably likely to succeed and all the circumstances of the case including the cost versus the likely benefit mean that it is not reasonable to grant it. While the Board's opinion as to the merits of granting a legal aid certificate must be a reasonably held opinion informed by relevant considerations and must not be irrational, to ultimately succeed in a challenge to a decision to refuse legal aid on rationality or reasonableness grounds the Applicant must meet a high test.”

29. The appellant relied - and continues on appeal to place weight - on s.28(5) of the 1995 Act which provides that that the Board shall grant a certificate of legal aid to a person where the state is, by virtue of an international instrument, under and obligation to provide civil legal aid to that person. This is subject to the condition that the applicant has complied with the specific requirements of said international instrument. The appellant contended that same entitles him to rely on his fair trial rights under the Article 47 of the Charter and Article 6 of the ECHR as constituting ‘international instruments’ for the purposes of s.28(5).

30. The trial judge rejected the latter proposition at para. 13 of the judgment clarifying that “this is a misinterpretation of section 5. The section plainly requires that the State shall grant legal aid to a person in circumstances where the State is obliged by an international instrument to provide civil legal aid in such cases.” In developing this point the trial judge cited the High Court in O’Donoghue v Legal Aid Board and Others [2004] IEHC 413 where Kelly J held at para. 109 on this precise point: “I am satisfied that this approach is not well founded. 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 provision overrides the saver as to resources]… the section has no application to this case.”. The Court concluded that the appellant’s interpretation of s.28(5) was incorrect where he sought to rely on Charter rights which did not expressly require the state to provide civil legal aid. The trial judge declined to grant the appellant relief on this basis.

31. Gearty J. dedicated a significant part of her judgment to consideration of the public interest in the finality of litigation. In relation to the within proceedings, it was noted that the appellant was seeking legal aid to challenge a decision of the High Court delivered in 1988, over thirty years ago. The events had already been extensively litigated by both the Company and other third parties. Weight was placed on the discussion of the Supreme Court in Belton v Carlow County Council [1997] 1 IR 172 which found that the appellant and his father could not be seen as connected to the Company for the purposes of indemnifying the Local Authority from having to pay Mr. Belton compensation under the 1981 Act. Keane J. there had emphasised that the 1988 proceedings had been launched by the Company rather than the appellant or his father and there was no privity between the Company and the Prendergasts as would entitle the Local Authority to seek an indemnity or contribution from them. While the appellant sought to rely on the Belton judgment as authority for the proposition that he and his father were separate entities from the Company such that he ought not be restricted now from seeking legal aid to take proceedings on his own behalf against Mr Skelton on points which were previously litigated by the Company, this argument was rejected by the court. Emphasis was placed on the observations of Keane J. at p.183 where he noted: “The [Prendergasts] have not initiated any proceedings for the purpose of mounting any form of attack upon the decision of O’Hanlon J. On the contrary, the proceedings have been initiated by the local authority and their invocation of the abuse of process principle is intended to deprive the defendants of a defence, which they might otherwise have upon the merits, to present the claim”. Gearty J. noted at para. 34: “In this case the applicant seeks legal aid in order to take up a position described by the Supreme Court in Belton as one being contrary to his position in Belton: he seeks to initiate proceedings to mount an attack upon the decision of O’Hanlon J.”

32. The High Court had regard to the impact of court findings in the previous proceedings between the Company and the Local Authority/Mr Skelton alleging fraud. On the latter it was noted that the judgment of McGovern J in W.J Prendergast v Redvers Skelton [2007] IEHC 192 made a clear finding that Mr Skelton enjoyed protection under the principle of immunity from suit of an expert witness. While McGovern J. had decided that case on the immunity point, it was further noted that the Company would most likely have been unsuccessful in pursuing its claim against Mr Skelton where it was not introducing any new evidence that could not have been adduced or argued at the original 1988 trial. At para. 47 of her judgment Gearty J. clearly explained the relevance of this finding: “These comments are not only pertinent to this issue but suggest a logical conclusion to the arguments raised by this Applicant. One of the main submissions made is that the Legal Aid Board has not justified, rationally, its decision to terminate the legal aid certificate. However, the three opinions of counsel documented his views which moved from warning of the difficulty of proving fraud, to concluding that it was not possible to prove fraud and withdrawing from the case. McGovern J dealt with the same situation.”

33. The appellant challenges the reasoning for the decision of the Board (dated 15th May 2023) to refuse his appeal of the termination of his Legal Aid Certificate which was brief, noting only that “the Committee has upheld the decision to terminate the legal aid certificate on the same grounds and for the same reasons as the Executive”. This refers to the original

decision to terminate the appellants Legal Aid Certificate, of which the appellant was informed by letter dated 4th April 2023. The terms of this letter were examined by the trial judge who at para. 52 noted that: “In its concluding paragraph, the Board pointed out that the requirement to prove fraud or perjury was central to any proceedings which might be brought. The Board further drew the Applicant’s attention to the fact that counsel was not satisfied to the required standard that there was evidence of fraud or perjury. The Board also noted that this was a separate issue to the obstacles of delay in the case which led to an expectation that the doctrines of res judicata or a simple statutory time bar or abuse of process application would be raised, leading to the risk not only that the applicant would lose, but that costs would be awarded against him.”. The trial judge rejected the appellant’s assertions that the reasoning of the appeal decision was unclear where it had made explicit reference to the earlier termination letter of 4th April 2023.

34. The judgment also considered issues raised by the appellant that he was entitled to rely on ECHR rights in seeking legal aid regardless of any limitations in relation to civil matters based on his assertion that he had been subjected to a ‘criminal’ trial. The Board had argued that the appellant could not rely on ECHR rights where the judgment which he sought to impugned had been delivered in 1988 and the ECHR was only ratified in Irish law with the European Convention on Human Rights Act 2003 (‘the 2003 Act’) such that any application would be retrospective and impermissible. The trial judge considered conflicting decisions including Carmody v the Minister for Justice [2005] 2 ILRM 1 and Dublin City Council v Fennell [2005] IESC 33. The issue need not detain us since Gearty J. correctly concluded that the relevant decision for the present proceedings was that of the Board to terminate the Legal Aid Certificate in 2023 - a date when 2003 Act was clearly in force. The trial judge considered the scope of ECHR rights as they relate to legal aid noting the decision of the ECtHR in Airey v Ireland (1981) 3 EHRR 592 where it was determined that the right to a fair trial under Article 6 ECHR encompassed a trial before an impartial tribunal and implies also the right of effective access to the courts and civil legal aid in certain instances. Gearty

J. concluded that Airey is not authority for the proposition that there is a right to legal aid in all civil cases. She attached weight to subsequent decisions of the ECtHR such as Steel and Morris v The United Kingdom (2005) 41 EHRR 22. At para. 66 Gearty J. assessed the scope of the appellant’s rights under the ECHR in relation to decision to terminate legal aid to finding that: “The essential question is not only whether this decision was fair, but whether the Board was entitled to make that decision and whether it was made in a way that was arbitrary or disproportionate in the circumstances.”

35. To answer that question, it was necessary for the Court to consider the appellant’s assertion that the rights for which he sought legal aid to vindicate were violated by a historic finding of the High Court against him that he had engaged in conduct of a criminal in nature. Gearty

J. having considered the O’Hanlon J. decision in some detail, rejected the suggestion that it had resulted in a finding of criminal liability as against the appellant relating to his role in the events of the night of 29th January 1986. She noted at para. 70; “this is a fundamental misconception as to how this process began and was conducted: the Company in which he and his father were shareholders and his father was a director, began civil proceedings. As already explained, there was never a criminal trial, no charges were brought, and there were no penal consequences for the Applicant. There was, undeniably, a finding of fact that was potentially damaging to his reputation. That finding was not directed towards this Applicant but was a finding by O’Hanlon J. that he was not satisfied that a malicious intruder had started the fire at the factory and preferred the Council’s theory of the case. This cannot be equated with a criminal conviction in respect of the Applicant. The criminal process is initiated by agents of the State, it can result in a finding of guilt, after a trial in which the standard of proof is proof beyond a reasonable doubt, and the process allows for the imposition of penalties. It is this process, which may lead to conviction and sentence, in which there is a presumption of innocence, and which requires access to legal aid if requested.”

36. The Court carefully assessed the appellant’s assertion that the 1988 Circuit Appeal hearing was a criminal trial of him which infringed his fair procedure rights with reference to the definition of criminal trials under CJEU and ECHR caselaw. The appellant relied on a large volume of mostly irrelevant decisions. The High Court considered the decision in Director Geral das Alfandegas v ZF Zefeser C-62/06EU:C:2007:264 regarding the characterisation of the powers of Portuguese customs authorities to impose levies as “civil” in nature where allegation of smuggling were made against the party being levied. Gearty J. noted (para.73) that :“…the CJEU held that the same considerations must apply with regard to the interpretation of the legal concept of an act that can give rise to Criminal Court proceedings, otherwise there is a risk that the procedural guarantees provided by community … could be circumvented …” Gearty J found (para.73) that the present proceedings were distinguishable as the appellant “despite submissions to the contrary, was never found to have committed an act that could give rise to criminal proceedings.” The court noted at para. 41 of the Advocate General’s decision in Zefeser that “the criminal character of specific conduct must be determined according to the substantive and procedural rules of national criminal law.” Applying this principle to the appellant’s claim the trial judge held that the findings of O’Hanlon J. in 1988 amounted simply to a determination of civil liability as between the Company and the Local Authority and that those proceedings could not be characterised as criminal for the purposes of EU law.

37. The appellant sought to rely on an excerpt (para.61) from the Advocate General in Zefeser for the proposition that statements should not be made as to the guilt of an individual where they have not been found guilty of a criminal offence. Gearty J. on examining the entire excerpt more closely found that it primarily concerned statements made during an ongoing criminal trial and was of no assistance to the appellant, noting: “This Applicant, however, despite submissions to the contrary was never found to have committed an act that could give rise to criminal proceedings. There is no competing jurisdiction in evidence in the history of this case.” (para.73)

38. On the issue of the appellant’s fair trial rights under Article 6 ECHR, the trial judge considered the judgment of the ECtHR in Allen v UK (2013) (25424/09) which the appellant offered as authority for the proposition that a statement made by a court as to a person’s guilt where this has not been proven infringes their rights under Article 6(1) of the ECHR. At para. 79 Gearty J. found that the appellant was incorrect in his interpretation of Allen which was authority for the contrary proposition to what he had claimed viz., there must have been some positive comment of the court asserting guilt in order for Article 6 to arise. Where O’Hanlon J. had made no such positive comments concerning the criminal liability of the appellant, he was not entitled to rely on Article 6 as was held in Allen.

39. The trial judge noted the Board’s reliance on X v The United Kingdom (1980) (8158/78) concerning an applicant who was granted a limited Legal Aid Certificate which was subsequently discharged without providing reasons. Legal Aid had been sought by X concerning aspects of his treatment as a convicted prisoner. At para. 91 the trial judge noted the Commission’s view and observed “…a State may incur liability under Article 6 (1) if it arbitrarily declines to grant legal aid in respect to the civil claim…”. She emphasised that in X it had been recognised that states retained discretion to decide the means whereby legal aid could be accessed and that “there is no obligation on a state to provide free legal aid for every dispute relating to a civil right” (para 92).

40. The appellant relied on rights under Articles 47 and 48 of the Charter to defend his good name and the decision in Adler, C-546/18, EU:C:2021:219 concerning the obligation to enable parties to defend their good name as a basis for the orders sought. The facts in Adler concerned allegations that parties were in breach of Directives which carried the imposition of penalties. Gearty J. held that Adler was distinguishable from the appellant’s claim, noting at para. 82: “… there is no question of the decided issue being a determination that a breach of a directive, or of any law, has occurred or of the Applicant being bound by the decision for the imposition of a penalty. On the contrary, there was no express ruling on the actions of the Applicant nor any findings as to what he did or did not do, let alone the imposition of a penalty. To that extent, Adler simply does not apply to these facts.”

41. Having comprehensively reviewed the authorities and identified their inapplicability to the claim and noting the appellants inability prove fraud in relation to the evidence of the expert witness he wishes to challenge, Gearty J. concluded : “98. Leaving aside the powerful argument that this was a challenge he ought to have mounted in 1988 rather than waiting 31 years to approach the … Board, it remains the case that there is no evidence of fraud, and that being the case, the Board’s decision was proportionate, and it was strongly supported by the facts.

99. …. Having had a consultation with the Applicant, counsel took the view that this case had no reasonable prospect of success. The views of counsel were set out in detail in the first decision to terminate the legal aid certificate. Notwithstanding this decision the Applicant was given an opportunity to make submissions as to why legal aid should continue and this Court has had an opportunity to review those submissions. The

decision of the appeals committee … repeated the decision made by the first instance

decision maker. There was nothing raised by the Applicant in his submissions which suggest that the decision was an irrational or disproportionate one. Many of the same submissions have been made to this court and rely, to a very large extent, on case law about criminal trials and a conflation of the civil process with the very different criminal trial process.”

42. The trial judge, in refusing the orders sought and granting the respondent an order for costs against him, considered the appellant’s inordinate delay noting that he first sought legal aid to reverse the 1988 judgment in 2019 – a delay of some 31 years. The court observes that it appeared as though he waited until the Company has exhausted all of its potential remedies before, over a decade later, seeking legal aid to challenge the decision on his own behalf. Delay was not the decisive factor in her conclusions, but the trial judge noted (para. 104): “Not only is there little prospect of success for a challenge to the decision of O’Hanlon J by this Applicant on the grounds of fraud, because there is still, 37 years and here cases later, no such evidence but any case is certain to be dismissed on procedural grounds long before any witnesses could give evidence: it is now nearly 40 years since the fire, 37 years since the first hearing and the Applicant has done nothing in the intervening years to challenge the findings of the judge…”

The Appellant’s Grounds of Appeal

43. The appellant’s notice of appeal relies on four primary grounds:

a) The judge made errors of fact and law in her determinations, including in relation to the investigation of the 1986 fire by Gardaí, the criminal nature of the allegation and the reversal of the burden of proof arising from the findings of O’Hanlon J, and the position the Applicant at law in relation to correcting “a perjuriously obtained judgment”.

b) The judge failed, neglected or refused the legal principles that relate to the supremacy of EU law and caselaw over national law, Directive 91/13/EC (The Unfair Terms in Consumer Contracts Directive), Article 19(1) TEU, the Charter and Joint Declaration of 1977 of the Council, Community and Parliament in conjunction with the CJEU.

c) The non-conformity of the Board’s decisions with EU law, ECtHR and Treaty Articles in particular, the operation of Section 28(5) of the Civil Legal Aid Act 1995.

d) The refusal of legal aid in the case herein and the judgment affords absolute and unfettered discretion to the Board in the provision or otherwise of legal aid and as such is not in conformity with the Directive or EU law and in itself bad law.

The Standard of Review

44. The differing standards of appellate review by this court depends on whether the appeal concerns issues of fact (whether in the nature of findings of primary fact and/or inferences drawn from those findings of fact) or pure issues of law, and whether the appeal is based on conflicting oral evidence or exclusively on affidavit or documentary evidence. These distinctions were usefully considered by the Court of Appeal in Minogue v. Clare County Council [2021] IECA 98. Humphreys J. (with whom Whelan and Pilkington JJ. agreed), a

decision subsequently followed in A.K. v. U.S. [2022] IECA 65 wherein. Murray J. noted (paras. 51-53) that an intermediate standard of review operated in cases such as the present appeal; “…where the appellate court is addressing alleged errors by a trial judge in inter alia

(a) the findings he or she has based on affidavit or documentary evidence alone (Ryanair Ltd. v. Billigfluege.de GmbH [2015] IESC 11; McDonagh v. Sunday Newspapers Ltd. [2017] IESC 46, [2018] 2 IR 1 at para. 163 to 164) or (b) where the court is reviewing ‘secondary findings of fact that are not dependent on oral evidence such as inferences from admitted facts or those proven otherwise than by way of oral testimony’ (per Humphreys J. Minogue v. Clare Co. Council at para. 100). Here, the standard of appellate review is ‘somewhat deferential’ (id.). …

52. As explained in Ryanair Ltd. v. Billigfluege.de GmbH, in cases of this kind the party appealing the decision bears the burden of demonstrating that the trial judge was incorrect in relation to the findings of fact which underpinned the decision so that ‘the appellant must establish an error in those findings that is such as to render the decision untenable’ (per Charleton J. at para. 5). Charleton J. explained this further in McDonagh v. Sunday Newspapers Ltd. (at para. 163) as follows: ‘… the role of an appellate court in reassessing what in the court of trial was affidavit or documentary evidence is easier than when witnesses were involved, but even where that is the case, the party claiming that the trial judge assessed the facts wrongly bears the burden of proving that the trial judge was wrong.’

53. …”

Discussion and Analysis

General Observations

45. The appellant’s written submissions attempt to develop the various grounds raised but provide little clarity or meaningful reasoned engagement with the specific points of law from the High Court judgment which he purports to challenge, nor does he adequately clarify how, precisely, it is said that the trial judge erred. The appellant’s written submissions and subsequent oral arguments place great emphasis on the applicability of the Unfair Terms in Consumer Contracts Directive. This argument will also be considered hereafter.

Civil Nature of the Proceedings

46. The appellant persists to assert that the true effect of the 1988 O’Hanlon J. judgment was to impose criminal liability onto him for the offence of arson by implication of finding that a malicious third party was not responsible for the 1986 fire which destroyed the Company’s premises. He contends that the only possible inference from the 1988 judgment is that he and/or his father were responsible for the fire, which amounted to a finding of criminal liability against them without him having been afforded the protections of a criminal trial. It is necessary to consider this proposition and how the appellant seeks to characterise the 1988 judgment in some detail as determination of this issue is material to the scope of rights which the appellant enjoys in relation to the receipt of legal aid from the Board. The appellant’s arguments ignore the fact that the plaintiff in the 1986 claim which resulted in the 1988 judgment was the Company. He was never a party to the suit. Under s.18 of the 1981 Act the burden of proof rested throughout with the Company. It had to satisfy the court to the civil standard of proof that the fire was started by the malicious act of a third party. The High Court judge on appeal held that the Company had failed to adduce evidence to establish this fact and as a result the decision of the Circuit Court was reversed and set aside. Determining the identity of who caused or set the January 1986 fire was not an issue arising in that appeal and was not decided in the 1988 judgment. The appellant’s status in the 1988 appeal was that of a witness, nothing more.

47. The trial judge’s conclusions on this argument are outlined clearly at several points in the judgment. In describing the effect of the 1988 judgment she explained at para. 17; “O'Hanlon J. did not expressly decide that it was arson, nor did he find that it was likely that the shareholders of the Applicant's family business had started the fire themselves, although this was one possible inference and it was the case made by the County Council.” Later, at para. 80 Gearty J. considered the nature of the 1988 appeal in further detail; “The 1988 case, by every measure, was a civil, and not a criminal, case. The claim was initiated by the Company’s insurance brokers after the Company sought compensation under the 1981 Act and the claim was resisted in that civil action by a State body. The Company, in other words, sought the protection of the civil law and the Council resisted the application. Both sides were represented by lawyers who were entitled to crossexamine all the relevant witnesses, each team had experts of their own to assist them. A decision was made that, on the balance of probabilities, the evidence of the applicant company was not as persuasive as that of the defendant Council. No penalties were imposed. There was no loss of liberty as a result. The presiding judge made no finding of guilt, nor did he comment on the criminal liability of any party.”

48. The appellant rejects these characterisations of the 1988 judgment in his submissions, claiming of the trial judge’s assessment; “This is erroneous as no exoneration of me personally is to be found anywhere in the judgment of O’Hanlon J”. The appellant is fundamentally mistaken in his assessment of the substance and function of the determination required to be made by O’Hanlon J. in the 1988 Circuit Appeal. It was not for the judge in the 1988 judgment to exculpate the appellant - whose status in the case was that of a witness for the Company - from any insinuation of wrongdoing advanced in the cross-examination of him on behalf of the Local Authority at the hearing. Sometimes, particularly where the stakes are very high, cross-examination can be very robust in civil proceedings. Equally, Gearty J. in the judgment under appeal did not have any function in reaching a determination that the 1988 judgment did not impute wrongdoing by him.

49. Rather the issue, as Gearty J. correctly outlined at para.86/87 of her judgment, was; “86. … whether, in such a situation, a witness who could be identified by implication as a possible wrongdoer in the first set of proceedings, to which he was not a party, is entitled to the full panoply of rights which attend the criminal wrongdoer in the context of a trial at the suit of the DPP on behalf of the State.

87. Phrased in this way, it must be obvious that the Applicant has no such rights. The right to legal aid in most of the cases on which he relies is a right to defend oneself in a criminal trial. It arises from the very serious consequences of a guilty verdict, which include the possibility of imprisonment”

50. If the appellant’s arguments were to be strictly entertained, it could mean that where any court makes a finding under the 1981 Act that an applicant has failed to establish entitlement to relief by failure to prove their case on the balance of probabilities such a finding could be construed as implicitly freighted with imputations of criminal wrongdoing either against the applicant or its witnesses or parties referred to at the hearing. Such cannot be the case. As discussed by the trial judge, the conclusions of the 1988 judgment take place in the context of civil proceedings initiated by the Company and the onus was on the Company at all times to establish on the balance of probabilities that the 1986 fire was started by a malicious third party. The appellant relies on the fact that the Local Authority in the 1986/1988 proceedings robustly opposed the Company’s claim by asserting that the appellant and his father were responsible for the fire. Crucially however, nowhere in the judgment of O’Hanlon J. is agreement expressed with this specific theory. O’Hanlon J’s

conclusion that he was unconvinced the Company had met its burden in establishing a malicious third party does not operate in law as a factual determination of any other matter, including as to the ‘guilt’ of the appellant (or indeed his father) in respect of any offence.

51. The Supreme Court in Belton (p. 180 Keane J.) had to decide whether “the same issue” was being raised in that case as was previously determined by O’Hanlon J. in the 1988 judgment such as would give rise to an issue estoppel. The “same issue” in question was “whether the fire had been caused deliberately by the third parties” (i.e. by the appellant and his father) (p. 174 Keane J.). The Supreme Court rejected the arguments of the Local Authority that O’Hanlon J. had so determined in 1988: “I would, to put it mildly, be surprised if a judge of his experience and knowledge of the law would have proceeded on so erroneous a view of the law.” (p. 180). The Supreme Court judgment in Belton, wherein the appellant and his father were defendants, makes clear, that the 1988 judgment was conclusive only “…as to all matters of law and fact on which it was founded.” (p.180). It makes clear that whether the appellant and his father deliberately caused the fire had not “necessarily or fundamentally formed the basis of" the 1988 judgment.

The appellant’s submissions

52. The appellant repeatedly refers to the decision of the High Court, Simons J. [2024] IEHC

265 delivered 10th May 2024, granting him leave to seek judicial review in the first place (‘the leave judgment’) comparing the findings and conclusions of the trial judge unfavourably with some observations in the leave judgment. In doing so he fundamentally misunderstands the purpose of the leave application and the low threshold he was required to meet to be granted such leave. Denham J. (as she then was) observed in G v. Director of Public Prosecutions [1994] 1 IR 374 at pp. 381/2, that a leave application is “a judicial screening process, a preliminary hearing to determine if the applicant has…a stateable case…It is to prevent an abuse of the process, trivial or unsustainable cases proceeding, and thus impeding public authorities unnecessarily…”

53. That said, the appellant appears to merely selectively quote aspects of the leave judgment at various points throughout his lengthy submissions. For instance, at para. 30 of the leave judgment Simons J. had prefaced his observations with the words “It would appear from the limited papers before the High Court on this leave application that …”. At para. 57 the appellant characterises the leave judgment as having “ruled” on certain matters – but that judgment is limited to the issue of granting leave to seek judicial review and all appropriate procedural directions to ensure the matter proceeded expeditiously as Simons J. acknowledged at para. 44: “The Applicant has met the low threshold governing an application for leave to apply for judicial review under Order 84 of the Rules of the Superior Courts.” Arguments suggesting that it reached findings binding on the trial judge are erroneous. “Manifestly unfounded or manifestly inadmissible”

54. The appellant contends repeatedly throughout his submissions (including, inter alia, at paras. 2, 6, 7, 14, 16 etc.) that “a case must be manifestly unfounded or manifestly inadmissible before legal aid may be refused” or a Legal Aid Certificate be terminated by the Board. At the leave stage, the Court considered this argument to be “radical”.

55. The Board’s operation is governed by the provisions of the Civil Legal Aid Act 1995, as amended. Section 24 identifies general criteria for grant of legal aid and advice:

“24. — Without prejudice to the other provisions of this Act a person shall not be granted legal aid or advice unless, in the opinion of the Board—

(a) a reasonably prudent person, whose means were such that the cost of seeking such services at his or her own expense, while representing a financial obstacle to him or her would not be such as to impose undue hardship upon him or her, would be likely to seek such services in such circumstances at his or her own expense, and

(b) a solicitor or barrister acting reasonably would be likely to advise him or her to obtain such services at his or her own expense.”

The appellant is now retired from his work as an engineer. He did not indicate whether his financial circumstances in the late 1980’s, 1990’s, 2000’s or 2010’s were such that to retain solicitors and counsel to pursue his proposed claim at his own expense would have imposed any undue hardship on him. Such was not offered as a reason for the delay.

“28.—(1) A person shall not be granted legal aid unless the person is granted a legal aid certificate under this section in respect of the legal aid sought.

(2) Subject to sections 24 and 29 and the other provisions of this section and to regulations (if any) made under section 37, the Board shall grant a legal aid certificate [under this section to a person, other than a person referred to in subsection (2A), if, in the opinion of the Board]—

(a) the applicant satisfies the criteria in respect of financial eligibility specified in section 29,

(b) the applicant has as a matter of law reasonable grounds for instituting, defending, or, as may be the case, being a party to, the proceedings the subject matter of the application,

(c) the applicant is reasonably likely to be successful in the proceedings, assuming that the facts put forward by him or her in relation to the proceedings are proved before the court or tribunal concerned, …(e) having regard to all the circumstances of the case (including the probable cost to the Board, measured against the likely benefit to the applicant) it is reasonable to grant it.

…(7) The Board may revoke a legal aid certificate granted to a person under this section where it considers that it is no longer reasonable for the person to continue to receive legal aid and, in particular, where the person no longer satisfies the requirements in respect of financial eligibility specified in section 29 and in regulations under section 37.

Regulation 9 (3) of the Civil Legal Aid Regulations 1996 S.I. No. 273 of 1996 (17th day of September, 1996), as amended and extended from time to time, governs termination/ revocation of a Legal Aid Certificate:

“(3) Subject to the provisions of paragraph (5), the Board or a certifying committee may at any time terminate a certificate from such date as it considers appropriate when satisfied that this is justified and in particular may do so — …

(c) on being satisfied by the report of the legally aided person's solicitor that the certificate should be terminated, or….

(e) where it considers that the legally aided person is behaving unreasonably in connection with the conduct of the proceedings or that it is unreasonable in the particular circumstances of the case (including the cost of the proceedings) that that person should continue to receive legal aid, …

(5) The legally aided person shall be notified directly or through his or her solicitor of the Board's or the certifying committee's intention to either terminate or revoke the certificate and it shall be open to him or her to show cause in writing, within a period of one month, why such termination or revocation should not be proceeded with”.

56. The ordinary and natural meaning of the relevant provisions of the 1995 Act, as amended, together with the Regulation 9(3) of the implementing regulations, demonstrate the legal test which governs both the grant and revocation of a civil Legal Aid Certificate. The Board is only entitled to continue the provision of legal aid under the Act where it is satisfied that there are “reasonable grounds” for instituting the intended proceedings and where the applicant is “reasonably likely” to be successful in the proceedings.

57. Litigation alleging fraud, dishonesty, perjury or the procurement of any judgment by acts of deception, or similar claims, require the greatest degree of care and caution and a proper investigation of all material facts prior to their institution and thereafter active management and review in their conduct. Pleadings must disclose a proper evidence-based case, compliant, inter alia, with Order 19 r.5(2). or otherwise are at risk of being stayed or dismissed under Order 19 r.28 (1)(ii) as an abuse of the process of the court.

58. As the High Court noted (e.g. paras. 23, 47-49,51-54), when viewed in their totality the advice of counsel makes clear the challenges confronting the appellant to prove the claim he wished to advance of fraud by an expert witness and that the evidence necessary to establish same was not available at an earlier stage. Notably a similar issue had arisen years before as is evident from the judgment of McGovern J. in W.J. Prendergast & Son Ltd v Carlow County Council & Skelton [2007] IEHC 192 when the Company sought to pursue a broadly similar claim. The appellant had been intimately involved in that litigation and was well aware of the issue. The High Court judge was correct that: “… this evidence cannot now be relied upon to challenge the expert witness as the Applicant suggests: it is not new evidence and could have been used to challenge the evidence at the original hearing in 1988.” (para. 48) The letter of 4th April 2023 is exhaustive and very clear, and comprehensively reasoned. It explained very clearly, inter alia, that: “Where Counsel cannot draft the pleadings in the absence of the required evidence of fraud/perjury, it is considered that there are not reasonable grounds to continue to pursue the matter, the requirement of proof of fraud/perjury being a central element to any proceedings which might be brought… A solicitor or barrister acting reasonably would not advise you to do so where you do not meet the legal grounds in such a case, where there are such limited prospects of success; and therefore, no likely benefit to you in pursuing the proceedings, and where there is a strong likelihood of you being fixed with significant legal costs.” The impugned letter of May 2023 incorporates by reference the entirety of the contents of the 4th April letter. There was no necessity to have the terms of the April 2023 letter transcribed or otherwise re-stated or indeed new reasons formulated in the May 2023 letter. There is no merit in that argument. The trial judge was entirely correct at para 84: “There is nothing in the Applicant’s evidence that could not have formed the basis of a challenge years ago and, as he was told by counsel instructed by the Respondent, unless he uncovered new evidence of fraud, his action was bound to fail. This was explained clearly.” The appellant has not identified any basis which warrants interfering with this reasoning.

Alleged factual errors as to detail

59. In the appellant’s submissions he that asserts a variety of errors emerge in the judgment including that the trial judge erred in finding that he was not criminally investigated in relation to the fire. The appellant claims that this was inaccurate in that there were investigations into the cause of the fire which were considered as part of the 1988 “trial”. The 1988 hearing was not a “trial”. It was a Circuit Appeal in a civil case to which the appellant was not a party. Even if any alleged “error” were to be made out none is demonstrated to have been material to the substantive findings of the trial judge. Even if it were to be true that he had been the subject of a criminal investigation, such would not assist the appellant in his assertion that the 1988 Circuit Appeal judgment operated as a criminal finding against him. It did not. Also he failed to establish that there was any relevant nexus between the 1988 judgment and any alleged criminal investigation. Neither does he produce any evidence of such an criminal investigation into himself. The appellant points to para. 7 of Gearty J.’s cost judgment (22nd May 2025) as a concession or acknowledgement by her of errors in her judgment. But it is not. Paragraph 7 of that ex tempore decision reads: “He asks me not to award costs due to the various defects in the main judgment, including that the Court characterised his position as involving delay and ignored the fact that he was investigated by An Gardaí Síochana…In any event , he quite rightly understands that my judgment has been delivered and it is a matter for him to appeal on one or all of these issues, rather than seeking to persuade me not to award costs on the basis that the judgment contains matters with which he disagrees.”. The trial judge is merely referring to the arguments presented by the appellant in seeking a stay on costs and that no determination was made on the accuracy of the original judgment on this point. The appellant must understand that there is no basis whatsoever for his submissions (paras.8,10 etc.) that she “admitted”… “that she did indeed get a few matters wrong”.

Delay

60. The appellant asserts that his delay in seeking legal aid to challenge the evidence provided by Mr Skelton arose from the Courts of Justice Act 1936 which prevented him from taking an “appeal” against the decision of O’Hanlon J. He asserts that he was informed of this barrier by the Supreme Court in 1988 when he approached them seeking to challenge the judgment of O’Hanlon J.

61. This contention seems slightly at odds with the evidence. While there is a Supreme Court

decision in W.J. Prendergast and Sons v Carlow County Council [1990] 2 IR 482 to the effect that the Company was unable to appeal the decision of the High Court by reason of the 1936 Act, this decision would have had no bearing on the appellant’s personal capacity to have brought the proceedings advancing the allegations which he now seeks to advance.

62. His arguments are also contradictory. He claims that he was unable to bring proceedings sooner due to the effects of the 1936 Act, but also claims that the Board acted unreasonably in terminating his Legal Aid Certificate without explaining why he would now no longer be barred from seeking to bring the same proceedings since the relevant provisions of the 1936 Act remain in force. The appellant had no entitlement to appeal the decision of O’Hanlon J. to the Supreme Court because he was not a party to the proceedings.

63. The appellant has provided no coherent or valid justification for his exceptional delay in seeking legal aid to bring the substantive proceedings. As such the Board was entitled to consider the very exorbitant delays of the appellant as a factor when deciding whether the proposed proceedings had any reasonable prospect of success. The judge’s approach to the issue of delay, including her reliance on Meadows v Minister for Justice and Equality [2010] IESC 3, [2010] I.R. 701 and B.A. v. Legal Aid Board [2023] IEHC 569, was entirely correct.

64. In the context of delay, regard should be had to the decision of the Supreme Court (Hogan

J. et al.) in Kirwan v. Connors [2025] IESC 21 where the principles governing applications to dismiss proceedings on the delay grounds were restated and recalibrated. It emphasised that the law recognises that the passage of time is important in and of itself, and can justify dismissal of a claim, without more. Furthermore, procedural rules and precedents on dismissal of claims for want of prosecution are not per se an impermissible interference with the right of access to courts to litigate claims and there is no presumption against dismissal. The trial judge summed up the problem on the delay front - which operates quite apart from the other fundamental impediments to the viability of this proposed claim commendably at para. 104 - :

“Not only is there little prospect of success for a challenge to the decision of O’Hanlon

J. by this Applicant on the grounds of fraud, because there is still, 37 years and three cases later, no such evidence but any case is certain to be dismissed on procedural grounds long before any witness could give evidence: it is now nearly 40 years since the fire, 37 years since the first hearing and the Applicant has done nothing in the intervening years to challenge the findings of that judge.”

65. As Hogan J. noted in Kirwan, and re-iterated subsequently in GM v. IG & Anor [2026] IESC 2, by virtue of the constitution the judiciary act as the custodians of the administration of justice and each court is obliged to not only ensure that the judicial process works efficiently and fairly, but also that this process is not used for oblique or abusive purposes. Viewed through that prism, it is obvious that were litigation of the sort contemplated by the appellant to be instituted, its prospects of proceeding to trial are substantially doomed. Further, the appellant identified no “exceptional circumstances” which might justify the delays from 1988 to date in the appellant instituting his claim in the light of Kirwan.

Unfair Terms in Consumer Contracts

66. At the hearing of the appeal significant time was spent on the appellant’s claim that the relevant provisions of the Civil Legal Aid Act 1995 which allow the Board to terminate a Legal Aid Certificate are contrary to the Unfair Terms in Consumer Contracts Directive 93/13/EEC (‘The Unfair Terms Directive’) which was transposed into Irish law through the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 as amended. The difficulties with this argument become immediately clear when one considers that the Unfair Terms Directive concerns “consumer contracts”.

67. It is well established that agreements with State Bodies through statutory schemes such as the provision of civil legal aid fall within the sphere of public rather than private law. This can be seen clearly explained in the case of Rosborough v Cork City Council [2008] IEHC

94 which concerned a dispute between the plaintiff homeowner and respondent council concerning the payment and frequency of waste collection charges. The Council there was subject to certain obligations for the collection and management of waste pursuant to the Waste Management Act 1996. The plaintiff claimed that despite the statutory foundation of the arrangement there was a legally enforceable contract with the Council which it had altered unilaterally. Clarke J, (as he then was) provided a useful discussion on whether such statutory arrangements could fall under the scope of private contract law: “6.1 Before considering the argument put forward on behalf of Cork City Council it is important to emphasise that the question of whether the relations between a public authority and persons who may avail of services from that authority are governed by, on the one hand, contract, or, on the other hand, by statute and public law can be of very considerable legal importance. While there can, of course, be difficulties encountered in determining the terms of a contract or whether those terms have been breached, the basic principles by which the law of contract operate are clear. The parties come to a bargain. They are kept by the courts to their bargain. If one party is in breach of that bargain, then the court will intervene, whether to award damages or apply some other appropriate remedy…

6.2 On the other hand statutory bodies charged with carrying out statutory functions (including those where such bodies are entitled to charge for services provided) will normally be required to keep the manner in which those functions are carried out under review and are precluded, as a matter of public law, from fettering their discretion as to how they might exercise any genuine statutory discretion as to how they might carry out their functions in the future. That is not to say that there may not be circumstances where, at least within certain limits, a statutory body may be precluded from altering its policy or, perhaps, so doing without notice. It is at least possible that a statutory body may, for example, so conduct itself as to give rise to a legitimate expectation that a particular practice will not alter without reasonable notice (see, for example, Glenkerrin Homes v. Dun Laoghaire Rathdown County Council [2007] IEHC 298). However, the benchmark by reference to which the actions of a public authority in such circumstances is to be judged is that of public law involving principles such as those embodied in the doctrine of legitimate expectation. Such public bodies can change policy and, subject to any legitimate expectations which may have been created, can ordinarily do so unilaterally.

6.3 I emphasise these distinctions simply for the purposes of illustrating that it is no mere technicality to determine whether the relations between a public authority and those who may avail of its services are governed by the law of contract on the one hand or by statute and public law on the other hand. There are very significant differences indeed between the principles by reference to which the relationship between the parties, and the actions of those parties, will be judged depending on the answer to the question as to whether the relations are governed by contract or by statute and public law…

6.6 The starting point has to be the clear mandatory language contained in s. 33 of the 1996 Act, which imposes an obligation on Cork City Council to collect refuse (or arrange for its collection) within its functional area. The primary obligation is, therefore, to collect waste. In order to enable such collection to be done in an economic way the legislation also, at least now, provides that a charge may be levied which can, in turn, be recovered as a simple contract debt. It seem to me that if the legislation contemplated a local authority entering into individual contracts with householders within its functional area, for the collection of waste from such householders, the legislation would be likely to be expressed in very different language and contain very different provisions. Furthermore, there would be no need to provide that any charges levied were to be capable of being recovered as a simple contract debt. The arrangements for payment which would be entered into between householders and the local authority concerned, if their relationship was governed by contract, would allow any amounts agreed to be paid to be recovered as a true contract debt in any event.”

68. The Board’s powers in relation to the termination of civil Legal Aid Certificates are found in the provisions of the legislation and regulations outlined above. Exercise of those powers occurs pursuant to that statutory scheme and does not necessitate the realisation of a contract between the parties. While the Board as a legal entity has capacity to enter into legally enforceable contracts with third parties, it cannot be deemed that an agreement for the grant of a Legal Aid Certificates creates such a contract.

69. The burden of establishing that there is a properly enforceable contract between the parties rests with the appellant where he seeks to rely on the provisions of the Unfair Terms Directive. Given that the appellant’s core arguments largely revolve around the scope of the Board’s statutory authority to terminate Legal Aid Certificates and where he has failed to establish that there is a contractual relationship arising between the parties it follows that he cannot rely on the terms of the Unfair Terms Directive, as such this ground must be dismissed.

70. Insofar as the appellant requests preliminary reference to the CJEU on this issue, he has not established a basis for such a reference and this court does not consider such to be necessary or appropriate. The authorities and jurisprudence make clear that the distribution of legal aid in member states is pre-eminently a matter for national courts. While the appellant seeks to rely on the Unfair Terms Directive he cannot demonstrate the existence either of a contract or a consumer contract to which the Directive would apply.

Conformity with International Law

71. The appellant maintains that in breach of his alleged rights under both the Convention and Charter the Board acted in excess of its authority in terminating his Legal Aid Certificate. He seeks to rely on s.28(5) of the 1995 Act to assert that the Board is obliged under these international instruments to grant him legal aid. Section 28(5) provides; “(5) Notwithstanding any other provision of this Act, the Board shall grant a legal aid certificate to a person—

(a) where the State is, by virtue of an international instrument, under an obligation to provide civil legal aid to the person: Provided that the person shall, before being granted such certificate, comply with such requirements (if any) as are specified in the international instrument and relate to him or her,”

72. The Board has now quite properly conceded that this provision encompasses rights under the aforementioned international instruments despite their domestic ratification post-dating the 1995 Act. What remains to be considered is whether these instruments in fact confer an unlimited entitlement to civil legal aid in the manner he contends. In his written submissions, the appellant relies on the CJEU decision in DEB v Bundersrepublik C- 279/09, EU:C:2010:489 (DEB) as authority for the proposition ‘that legal aid may only be refused to a natural person when a case in respect of which the legal aid application is made, appears to be ‘manifestly unfounded’ or ‘manifestly inadmissible’’. This is simply mistaken and a complete mischaracterisation of the conclusions of the Second Chamber

decision in DEB – which was correctly analysed and applied by the trial judge at paras. 88-

90 of the judgment. DEB concerned whether members states were entitled to implement national rules governing the distribution of legal aid in light of the EU law principle of effectiveness. The issue concerned protections afforded to EU citizens to a fair trial and access to the courts pursuant to Article 6 TEU and Article 47 of the Charter respectively. At para. 60 of the judgment the Second Chamber explained; “60. In that connection, it is for the national court to ascertain whether the conditions for granting legal aid constitute a limitation on the right of access to the courts which undermines the very core of that right; whether they pursue a legitimate aim; and whether there is a reasonable relationship of proportionality between the means employed and the legitimate aim which it is sought to achieve.

61. In making that assessment, the national court must take into consideration the subject-matter of the litigation; whether the applicant has a reasonable prospect of success; the importance of what is at stake for the applicant in the proceedings; the complexity of the applicable law and procedure; and the applicant’s capacity to represent himself effectively. In order to assess the proportionality, the national court may also take account of the amount of the costs of the proceedings in respect of which advance payment must be made and whether or not those costs might represent an insurmountable obstacle to access to the courts.”

73. The appellant argues that the language of the 1995 Act, in allowing the Board a broad discretion to terminate Legal Aid Certificates where there is no ‘reasonable prospect of success’ is contrary to the standard specified by EU jurisprudence. The appellant is simply misguided or, perhaps, misadvised. It is clear from the judgment in DEB that the national courts are afforded a broad degree of discretion or “margin of appreciation” in deciding whether national measures restricting access to legal aid are proportionate and provide effective protection for EU rights under both TEU and the Charter.

74. The appellant also places reliance on his fair trial rights under Article 6 ECHR. He engages in a discussion of the ECtHR in X v United Kingdom (1980) 8158/78, disputing the High Court’s thorough and thoughtful analysis of that decision. He rejects the contention that this decision applies to the facts of the present proceedings where the court therein decided the issue on the applicant’s rights under Article 27(2) of the Convention. The appellant fails to address the full quotation from X cited by Gearty J. (para.93) which bears repeating; “16. It is self-evident that where a state chooses a "legal aid" system to provide for access to court, such a system can only operate effectively, given the limited resources available, by establishing machinery to select which cases should be legally aided. Such limitations on the availability of free legal aid, common to most Convention countries, often require a financial contribution or that the proposed litigation have reasonable prospects of success. In the Commission's view, Article 6 (1) does not require that legal aid be provided in every case, irrespective of the nature of the claim and supporting evidence. Where an individual is refused legal aid in a particular case because his proposed civil claim is either not sufficiently well grounded or is regarded as frivolous or vexatious the burden would then fall on him to secure his "access to court" in some other way such as, for example, bringing the action himself or seeking assistance from some other source. Accordingly the Commission is of the opinion that where a prisoner has been refused legal aid on the basis that his claim lacks reasonable prospects of success such a situation would not normally constitute a denial of access to court unless it could be shown that the decision of the administrative authority was arbitrary.”

75. I pause here to emphasise the significance of Steel and Morris to the issues in this appeal in light of the appellant’s arguments. Of particular note is para. 62 which held: “62. The right of access to a court is not, however, absolute and may be subject to restrictions, provided that these pursue a legitimate aim and are proportionate (see Ashingdane v. the United Kingdom, judgment of 28 May 1985, Series A no. 93, pp. 24-25, § 57). It may therefore be acceptable to impose conditions on the grant of legal aid based, inter alia, on the financial situation of the litigant or his or her prospects of success in the proceedings (see Munro, cited above). Moreover, it is not incumbent on the State to seek through the use of public funds to ensure total equality of arms between the assisted person and the opposing party, as long as each side is afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis the adversary” The High Court also noted the decision of the ECtHR in Tabor v Poland (12825/02) (Unreported, June 27 2006, ECHR) which was relied on by the appellant as authority for the proposition that a party in civil proceedings must be able to participate effectively, with the stakes for an applicant being a central consideration in an assessment to the scope of measures to be taken to ensure fair procedures.

76. The appellant continues to contend on appeal that by virtue of various EU and ECHR provisions/measures the provisions of the 1995 Act have in effect been superseded and the Board is compelled to reinstate the Legal Aid Certificate hitherto terminated by it. He locates the basis for his “manifestly unfounded” or “manifestly inadmissible” hypothesis in the jurisprudence of the Court of Justice of the European Union (“CJEU”) and the European Court of Human Rights (“ECtHR”). His submissions, Booklets of Authorities and arguments in the appeal are replete with decisions/opinions of both courts and the Advocate General which he asserts demonstrate his legal entitlement to insist that termination of the Legal Aid Certificate be reversed.

77. The High Court judge comprehensively addressed these misguided arguments. Many decisions relied on were not relevant or clearly distinguishable from the instant case. Some concerned legal aid in the context of criminal proceedings, European Arrest Warrants or extradition type proceedings. In other instances quotations the appellant relied on were found to be partial or selective as consideration of the entire decision or opinion by the High Court demonstrated. Gearty J. noted at para 71: “The Applicant has cited numerous cases which confirm the precedence of EU law in this jurisdiction, a proposition which is not controversial. Not one of the cases cited is supportive of his position, however.” There is little to be had in rehearsing these many instances so clearly set out by Gearty J. in her careful and comprehensive analysis. By way of example, the Advocate General’s opinion and CJEU decision in Director General das Alfândegas v ZF Zefeser, case C- 62/06EU:C:2007:264 (Zefeser) were cited, but after careful scrutiny the Advocate General’s Opinion was correctly found by the High Court to be clearly distinguishable in material respects and “simply not comparable to these events” where the appellant “was never accused of arson, never convicted of arson, nor was he penalised in any way.” (para.72). The High Court noted (para. 75) that the appellant had neglected to set out the quotation in full. The High Court concluded that the CJEU’s decision in Zefeser had no application since the appellant “… despite submissions to the contrary, was never found to have committed an act that could give rise to criminal proceedings. There is no competing jurisdiction in evidence in the history of this case.” (para.73). The appellant identifies no material error in the High Court’s analysis as to the inapplicability of Zefeser at para. 74 (or, for that matter, any other authority he attempts to rely upon) where she noted: “…the findings of fact by O’Hanlon J. which were made during a civil trial, and which amounted to a determination in respect of compensation, cannot be considered as criminal proceedings or even as an interpretation of an act that can give rise to criminal proceedings as his determination was silent as to wrongdoing, if any, on the part of the Applicant. The finding of fact amounts to no more than a finding that the Company was not entitled to compensation under the relevant civil statute.”

78. Similar conclusions apply to the ECtHR decisions the appellant contended established his entitlement to an order of certiorari quashing the Board’s 15th May 2023 decision to reject his appeal against the termination of his Legal Aid Certificate including Allen v UK, (2013) (25424/09) and Minelli v. Switzerland, (1983), Series A no. 62. She correctly noted at para. 78 that: “Both cases confirm directly the opposite of the position for which he contends:..” The trial judge likewise comprehensively disposed of the appellant’s arguments based on the decisions in Adler, C-546/18, EU:C:2021:219 and DEB v Bundesrepublik C-279/09, EU:C: 2010:489 (paras.81-90 of her judgment). She correctly dealt with the proportionality issue and clearly explained the ambit of her considerations as including; “90. In this case therefore, this Court is considering whether or not a withdrawal of legal aid is disproportionate, taking into account the subject matter, the prospects of success, the importance of what is at stake, the complexity of the law and the applicant’s capacity to represent himself effectively. I must also consider whether the costs of obtaining legal assistance might represent an insurmountable obstacle to access to the courts.” The decision in X v. The United Kingdom (1980) 8158/78 was also correctly distinguished from the salient facts of the instant case (paras.91 -93 of the judgment).

79. The appellant, as stated above is incorrect in his assertions that the Board is only authorised to terminate legal aid where it can be shown that the case pursued is ‘manifestly inadmissible/manifestly unfounded’. Nothing in Article 6 of the ECHR or the caselaw of the ECtHR indicates that the ability of the Legal Aid Board to terminate Legal Aid Certificates is so restricted where a proposed claim has no reasonable prospect of success. Rather the case law points to a broad discretion to permit measures which restrict access to legal aid unless it can be shown that such measures are ‘arbitrary’. The appellant has failed to demonstrate that the relevant applicable regulations which allowed the termination of his Legal Aid Certificate were arbitrary. This ground of appeal fails.

Adequacy of Reasons

80. The appellant’s claim that the decision to deny his appeal against the termination of his Legal Aid Certificate in the letter dated 15th May 2023 was invalid in that it did not provide sufficient reasons for the decision is entirely unconvincing. The letter of 15th May 2023 was short and read as follows;

“Dear Mr Prendergast,

Please note that your appeal was considered at the May 2023 Appeal Committee Meeting. The committee has issued the following decision on the appeal: The Committee has upheld the decision to terminate the legal aid certificate on the same grounds and for the same reasons as the Executive. Regrettably, in the circumstances we are now closing our file.”

81. The letter makes clear reference to the prior decision of the Executive as the basis for the determination on appeal, as already stated above. The appellant had previously received two letters from the Board, a letter dated 23rd January 2023 informing him of the board’s intention to terminate his Legal Aid Certificate. This letter contained an outline of the reasons for this decision including reference to opinions of both a barrister and solicitor assigned to the case that the underlying case had no reasonable prospect of success. The letter focuses on the opinion of counsel that he was prohibited by the Bar of Ireland Code of Conduct to settle a pleading claiming fraud where he was not satisfied that there would be sufficient evidence at the time of trial to support such a claim. It also notes the concerns raised by counsel in relation to delay that would be likely to arise, the presumptive immunity from suit that the defendant would be afforded and issues of res judicata which would arise at or prior to trial. The letter concludes as to the appellant’s the prospects: “It is clear that any solicitor or barrister acting reasonably would not advise you to do so where you do not meet the legal grounds in such a case, where there are limited prospects of success, and therefore, no likely benefit to you in pursuing the proceedings, and where it there is a strong likelihood of you being fixed with significant legal costs. It is not considered reasonable therefore in all the circumstances to continue to provide you with legal aid.” The appellant was afforded one month to respond with reasons as to why his Legal Aid Certificate should not be terminated. The appellant appeared to be impervious to the fact that a Certificate of Legal Aid would not immunise him from being personally liable for legal costs of the Defendant were his claim to be struck out or fail for any reason.

82. Following the appellant’s 1st February 2023 response, the Board sent a further letter dated 4th April 2023 wherein it confirmed its decision to terminate the appellant’s Legal Aid Certificate. This explained in greater detail the opinion of counsel which raised specific evidential concerns surrounding the claim of fraud the appellant wished to pursue. The letter addresses the evidence of his commissioned 2006 Report on which the appellant’s claim of fraud was heavily reliant, noting: “… while the findings go to challenge the correctness of Mr. Skelton’s findings, Counsel considers that these experts reports taken on their own do not go far enough to meet the required threshold in terms of the requirement to draft the pleadings with sufficient detail to plead fraud/perjury as against Mr Skelton and to prove that the impugned evidence was introduced with malice and for wither the Council’s or Mr Skelton’s own purposes.” The letter concludes that for these reasons and for reasons of delay and res judicata raised in the previous correspondence the Board would be finalising its termination of the appellant’s Legal Aid Certificate pursuant to the terms of Regulation 9(3)(c) and 9(3)(e) of the Civil Legal Aid Regulations 1996-2021.

83. It is undisputed that there is a general duty on the Board to provide reasons for administrative decisions it takes such as refusing or terminating of Legal Aid Certificates. What fell to be determined was whether the Board provided adequate reasons in the letter of 15th May 2023 for its refusal of the appellants appeal. The appellant relies on the comments of Simons J. [2024] IEHC 265 in granting leave for the appellant to seek judicial review where he claimed at para. 31 of his judgment that: “It may well be that in the context of a decision to refuse to grant a legal aid certificate, which is delivered in a straightforward case, it would be appropriate for the Appeals Committee simply to say that it agreed with the reasons set out in the first instance

decision. It may be that an enhanced duty to give reasons on appeal only arises in the case of the revocation or termination of a previously granted certificate. The change in position may call for greater explanation.”

84. This extract does not consider the full discussion that Simons J. engages in on this point, and crucially it was not the decisive ground on which the appellant was granted leave. The judgment of Simons J. was directed to assessing whether the low threshold for the grant of leave to seek Judicial Review was met and placed weight on the counsel’s opinion on which the Board relied for its decision to terminate. At para. 30 he noted that while the opinion of counsel was that the allegations of fraud/perjury could not be pursued in light of the ethical obligations and evidential requirements of barristers bringing such claims, counsel had adverted to the possibility of pursuing other remedies through EU or ECHR rights. It was the failure of the second appeal committee to consider this alternative avenue in its assessment of whether the proceedings had a reasonable prospect for success on which Simons J. granted leave. He later stated at para. 34: “In the present case, leave is only being granted because of the very unusual features identified above and the existence of what, on one view at least, appears to be a discrepancy between the decision of the first and second Appeals Committees. It is, of course, open in principle to the Legal Aid Board to review an earlier decision to grant a legal aid certificate and to resolve to terminate or revoke the certificate for good and sufficient reason. This is a necessary corollary of the Legal Aid Board having been conferred with an express statutory power to revoke a previously granted certificate. The Legal Aid Board must, however, provide an adequate statement of reasons for any such discordant decision.” Simons J. was not making any determination on the substantive issues including on the adequacy of reasons provided by the Board but was instead opining on a possible avenue of argument which the appellant was free to pursue in the substantive hearing before Gearty

J. In her judgment for the High Court, Gearty J., having comprehensively assessed these avenues quite correctly rejected such arguments as to the alleged inadequacy of reasons noting: “Insofar as the Applicant claims that the decision to terminate his legal aid certificate was insufficiently reasoned, this is clearly not correct and any relief sought on this ground must be refused. Further, his argument that it is unreasonable to expect him to uncover direct evidence of fraud against the expert or the Council is simply wrong. If any litigant makes such an allegation, he must be in a position to prove it.” (para. 54)

85. The trial judge was correct in concluding that the Board provided adequate reasons in the letter of 15th May 2023 for its refusal of the appellant’s appeal. It is clear from the caselaw that whether the duty to give reasons has been met is not to be decided as part of a formulaic or rigid assessment but must instead be considered holistically. This is illustrated by the

decision of the Supreme Court in Mallak v Minister for Justice [2012] IESC 59 where it was explained that the core purpose for the duty to provide reasons is to ensure fairness in the decision-making process and to allow unsuccessful recipients of such decisions to know whether they might be able to mount an appeal per Fennelly J.: “The most obvious means of achieving fairness is for reasons to accompany the

decision. However, it is not a matter of complying with a formal rule: the underlying objective is the attainment of fairness in the process. If the process is fair, open and transparent and the affected person has been enabled to respond to the concerns of the

decision-maker, there may be situations where the reasons for the decision are obvious and that effective judicial review is not precluded.” (para. 66)

86. This is particularly the case where a final determination under appeal is downstream of extensive previous communications which when read together comprehensively and exhaustively made the full spectrum of reasons for the decision very clear. Of note in this regard is the decision of Dermot Doran v Commissioner of An Garda Síochána [1992] 1 ILRM 303 where a plaintiff challenged the adequacy of reasons for his transferral out of a particular Garda station. In his judgment for the High Court, O’Hanlon J. noted that the plaintiff was “at all relevant stages aware, in general terms, of the matters which were causing concern to his superior officers in the Garda Síochána.” such that the defendant was not in breach of the duty to provide reasons for his relocation. Once it is shown that a plaintiff had a clear awareness of the reasons for the decision the duty was met.

87. Given that the final determination of the Board’s appeal incorporates by reference the previous correspondence which contained extensive reasoning and which the appellant had received and replied to, it is unsustainable to assert that he was unaware of the reasons for the Board’s decision to terminate his Legal Aid Certificate. This ground of appeal fails.

Conclusions

88. In conclusion, all grounds of appeal fail. The trial judge made no material errors of fact or law such as undermines the correctness of her analysis or legal conclusions. The appellant’s arguments as to the supremacy of EU law and caselaw over national law, Directive 91/13/EC (The Unfair Terms in Consumer Contracts Directive), Article 19(1) TEU, Charter and Joint Declaration of 1977 of the Council, Community and Parliament in conjunction with the CJEU are unsound in the context of the issues to be determined and this ground of appeal is unsustainable. The Board’s decisions were not shown to be in breach of any material aspect of EU law, ECtHR and Treaty Articles nor was its operation and application in particular, of Section 28(5) of the Civil Legal Aid Act 1995. The Board’s decision on the facts cannot be characterised as amounting to the exercise of an “absolute and unfettered discretion” by it.

Costs

89. The respondent, having been entirely successful in resisting the appeal, is presumptively entitled to an order for its costs. However, if – at the risk of increasing the burden of costs upon him – the appellant wishes to contend for any other costs order he may within 14 days from the date of the electronic delivery of this judgment file and serve short written submissions not exceeding 1,500 and directed solely to the question of costs; in which case the respondent will have 14 days to respond, similarly so limited and directed. The court will thereafter consider same and make its determination on the Costs issue.

90. Binchy and Meenan JJ. concur with this judgment.