High Court dismisses judicial review where District Judges lawfully refused multiple legal aid certificates to prevent bypassing statutory payment rules.

THE HIGH COURT

JUDICIAL REVIEW

[2026] IEHC 117

Record No. 2023 7 JR

BETWEEN

MARGARET CAWLEY

APPELLANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

DEFENDANT

AND

THE MINISTER FOR JUSTICE, HOME AFFAIRS AND MIGRATION

NOTICE PARTY AND

Record No. 2023 147 JR

BETWEEN

JAMES HEFFERNAN

APPELLANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

DEFENDANT

AND

THE MINISTER FOR JUSTICE, HOME AFFAIRS AND MIGRATION

NOTICE PARTY

JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 5th day of March, 2026

INTRODUCTION

1. These proceedings by way of judicial review concern the decisions of two District Court Judges (hereinafter “District Judge(s)”) in separate cases to refuse to grant a legal aid certificate (hereinafter “a certificate”) in the names of different solicitors from the same firm on distinct charges against an accused person listed together before the court at the time of application. In each case, the District Judge concerned granted certificates in the name of one solicitor nominated by the accused to act on their behalf and refused an application to assign a separate solicitor from the same firm in respect of other charges against the same accused before the court at the same time.

2. These proceedings were heard before me on the 13th of January, 2026. The parties in both cases were represented by the same legal teams. Many similar cases (some eight proceedings by way of judicial review and a further case by way of case stated) stand adjourned pending the determination of the issues in these proceedings. Except for the Statement of Grounds in Mongan v. D.P.P. (bearing Record No. 2022/1137 JR), papers were not before me in any other case. I understand that the cases all involve applications for legal aid certificates for assigned solicitors working in the same firm of solicitors for the purpose of securing legal aid payments on each separate matter before the same sitting of the court.

3. Although not referred to by either party, the issues which now present also arose in D.P.P. v. S.M. [2024] IEHC 566 where the High Court (O’Donnell J.) refused an application to reformulate the questions presented by the District Judge (Judge Cody)

on a consultative case stated. In consequence, the decision did not resolve the real issue arising, namely, whether the District Judge had jurisdiction to assign three separate solicitors from the same firm in respect of three separate offences coming before the Court at the same time. I note that DPP v. S.M. concerned applications for legal aid by the firm of solicitors involved in the two cases before me and in several other proceedings which stand adjourned.

4. Plainly, the issue for determination is one which arises with some frequency before the District Court. At its heart, the issue is whether, having determined that an accused person meets the criteria for the grant of legal aid, a District Judge may properly refuse to assign separate solicitors from the same firm on distinct charges listed together before the Court and, if so, whether that discretion was lawfully exercised in these cases.

FACTUAL BACKGROUND

5. I propose to summarise the background to each of the two proceedings to the extent relevant. In each case, I have the benefit of the Digital Audio Recording transcript (hereinafter the “DAR”).

6. In the first case (hereinafter referred to as “the Cawley case”), Ms. Cawley appeared before Dún Laoghaire District Court (District Judge Watkin presiding) on the 5th of October, 2022, on two separate burglary charges. The offences in question were allegedly committed on the same date at different locations in Dún Laoghaire and were charged as follows:

i. That Ms. Cawley did, on the 12th of October, 2021, at Elephant and Castle, 18A Monkstown Crescent, Monkstown, Dún Laoghaire, Dublin in said District Court Area of Dublin Metropolitan District, having entered the staff room area of the building known as staff room area of Elephant and Castle as a trespasser did commit an arrestable offence to wit theft therein, contrary to s. 12(1)(b) of the Criminal Justice (Theft and Fraud Offences) Act, 2001 (National Charge Sheet Number 23524696);

ii. That Ms. Cawley did, on the 12th of October, 2021, at Nandos, Dún Laoghaire, Dublin, having entered the staff room area of the building known as staff room area of Nandos as a trespasser did commit an arrestable offence to wit theft therein, contrary to s. 12(1)(b) of the Criminal Justice (Theft and Fraud Offences) Act, 2001 (National Charge Sheet Number 23524671).

7. When the matters were called, Counsel instructed by the firm of Aonghus McCarthy & Co., Solicitors, appeared for Ms. Cawley. Bail was granted without objections and Ms.

Cawley was remanded to the 15th of December, 2022, for Director of Public Prosecution (hereinafter “DPP”) directions.

8. Prompted by the Court in respect of whether there would be an application for legal aid made, Counsel applied for a certificate in Mr. Aonghus McCarthy’s name, indicating that she would hand in the Statement of Means for Ms. Cawley (who was in custody on other matters) once signed.

9. As apparent from the DAR, no charge sheet number was specified at the time of the application for a certificate. It is pleaded in the Statement of Grounds that the application related to National Charge Sheet Number 23524671 and the record shows that the Court granted a certificate in respect of that charge sheet.

10. Later in the day, Counsel re-mentioned the matter for the purposes of seeking a certificate in respect of the second charge sheet (National Charge Sheet Number 23524696). Counsel asked that a certificate be assigned to one Mr. Michael Byrne in respect of this charge sheet. Mr. Byrne is another solicitor in the firm of Aonghus McCarthy & Co. The District Judge refused to make this order stating: “I told you I won’t. I’ve already told you, you have to ask, yes”. She reiterated “one solicitor”. No application was made for a separate certificate in Mr. McCarthy’s name.

11. As apparent from the Opposition papers filed, subsequent to the matters pleaded in the Statement of Grounds, the two charges were dealt with summarily before the District Court on the 19th of September, 2023. They were dealt with together (with one of the charges being struck out). The District Court imposed a bond for a period of one year under the Probation of Offenders Act, 1907 in respect of the offence set out on National Charge Sheet Number 23524696. Ms. Cawley was represented by counsel instructed by the solicitor assigned on 5th of October, 2022, namely, Mr. Aonghus McCarthy. A separate trial or hearing in respect of each charge was not sought and did not occur.

There is no indication that an application was made to the Court for an order under Regulation 7(4) of the Criminal Justice (Legal Aid) Regulations, 1965 (S.I. No.

12/1965) (hereinafter “the 1965 Regulations”) whereby the Court could direct that the matters be treated separately for payment of legal aid purposes.

12. In the second case (hereinafter referred to as “the Heffernan case”), Mr. Heffernan appeared before Portlaoise District Court (District Judge Cody presiding) on the 17th of November, 2022, on foot of four separate charges occurring on three separate dates and at three different locations, namely:

i. That he did, on the 29th of July, 2022 at 17 Westlands Mountrath Rd, Portlaoise, Laois, unlawfully use a mechanically propelled vehicle, registered number 12LK4127 without the consent of the owner thereof, [Name redacted in this judgment] or without other lawful authority, contrary to section 112 of the Road Traffic Act, 1961 (National Charge Sheet Number 23992325);

ii. That he did, on the 29th of July, 2022 at 17 Westlands Mountrath Rd, Portlaoise, Laois, having entered a building known as 17 Westlands Mountrath Rd, Portlaoise as a trespasser, did commit an arrestable offence to wit theft therein, contrary to section 12(1)(b) and (3) of the Criminal Justice (Theft and Fraud Offences) Act, 2001 (National Charge Sheet Number 23992269);

iii. That he did, on a date unknown between the 27th of September, 2022 and the 28th of September, 2022 at Eyne, Portlaoise, having entered a building known as Nolan's, Eyne, Portlaoise as a trespasser, commit an arrestable offence to wit theft therein contrary to section 12(1)(b) and (3) of the Criminal Justice (Theft and Fraud Offences) Act, 2001 (National Charge Sheet Number 23993249);

iv. That he did, on the 16th of August, 2022 at 1 Bridge Street, Portlaoise, Co.

Laois had unlawfully in his possession a controlled drug, to wit, namely cannabis herb contrary to Section 3 of the Misuse of Drugs Act, 1977 (National Charge Sheet Number 23992252).

13. Mr. McCarthy, Solicitor, appeared for Mr. Heffernan when the matters were called.

Once Mr. Heffernan had been remanded on bail to the 16th of February, 2023, for DPP directions, Mr. McCarthy made applications for certificates in respect of the various charges before the Court. To this end, Mr. McCarthy handed in the completed Statement of Means. He then applied to have himself assigned on one of the charge sheets.

14. While the Statement of Grounds pleads that Mr. McCarthy’s application in the Heffernan case was to be assigned on National Charge Sheet Number 23993249 himself, to have Ms. Sinead Wilcox assigned on National Charge Sheet Number 23992252 and Mr.

Michael Byrne assigned on National Charge Sheet Number 23992269, it appears from the DAR that the names of the other solicitors were not stated in Court, albeit reference was made to the other solicitors being solicitors employed in his office. Both Ms.

Wilcox and Mr. Byrne are solicitors in practice together with Mr. McCarthy in the firm of Aonghus McCarthy & Co. There is no evidence that either Ms. Wilcox or Mr. Byrne were present in court when this application was made and Mr. McCarthy appeared in respect of all matters.

15. The presiding District Judge refused the application for a certificate to be assigned to more than one solicitor nominated on Mr. Heffernan’s instructions in respect of the separate charges listed together before the court, instead granting a certificate in Mr.

McCarthy’s name in each case. The District Judge indicated that he was not going to assign separate solicitors from the same firm stating:

“I’m only assigning one solicitor, I’m not assigning as of …I’ll state a case if you want to Mr. McCarthy, I’m not going to have……if he qualifies I’ve no difficulty granting legal aid and I have said several times I have no difficulty applying Regulation 7(4) but not assigning three or four solicitors on the one day to..”

16. Referring to the other solicitors he sought to have assigned on the separate charges, Mr.

McCarthy replied:

“they all work in our office. They all assist Mr. Heffernan. Those are the applications per the statement of means, your honour. It’s a matter for yourself.

Thank you.”

17. The District Judge then ruled as follows:

“Okay. The application for legal aid, I’m going to grant legal aid and then given that you’re here, Mr. McCarthy, regularly, I’ll assign Mr. McCarthy and if you wish, I’ll consider them on the next date, given that they’re … are they all separate dates ….”

18. Noting that the four charges related to three separate dates and involved two different prosecuting members, with one matter listed before the court on a separate date, the presiding District Judge added:

“Well, I’ve no difficulty then in applying Regulation 7(4) in respect of charge sheets 252, 269 and 325. So I think that covers the situation fairly.”

19. In December, 2022, Mr. McCarthy received three legal aid certificates assigning him in respect of all matters, notwithstanding that he only sought an assignment in respect of one charge and had requested that other solicitors in his firm be assigned on the other charges.

20. It appears from the Opposition papers filed that after proceedings by way of judicial review commenced, three of the charges were included in a single book of evidence.

The fourth charge was listed separately. Notwithstanding the invitation from the judge for an application under Regulation 7(4) as outlined at para. 18 above, there is no evidence that an application was ever made for a direction under Regulation 7(4) in the Heffernan case, then or since.

PROCEEDINGS

21. Although the papers were incomplete and orders were handed up to court to supplement the papers before me, it appears that proceedings were commenced on behalf of Ms.

Cawley on foot of a leave application opened ex parte before the High Court in March, 2023 (before Meenan J.). The application for leave was subsequently heard in October, 2023 (on notice to but without objection from the Respondent). Leave was granted (Hyland J.) to seek an order of certiorari quashing the Order made by District Judge Watkin on the 5th of October, 2022, refusing the application for a certificate to be assigned to Mr. Michael Byrne, on National Charge Sheet 23524696.

22. Proceedings commenced on behalf of Mr. Heffernan by application for leave to proceed by way of judicial review also opened ex parte in March, 2023 (before Meenan J.). The leave application was adjourned on notice to the Respondents. By Order made in October, 2023 (Hyland J.) leave was granted to seek orders of certiorari quashing the Order of District Judge Cody made in Portlaoise District Court on the 17th of November 2022 (i) refusing an application for a certificate to be assigned to the solicitors chosen by the Applicant in respect of separate charge sheets; and (ii) granting a certificate assigning Mr. Aonghus McCarthy, Solicitor, on foot of the prosecutions initiated on National Charge Sheet Numbers 23992252 and 23992269 when no application was made in respect of Mr. McCarthy on those charge sheets.

23. Although leave to seek a stay on the further prosecution of the Applicants was granted in both cases, a stay was not granted in either case. Short verifying affidavits were sworn by the Applicants, but the applications were grounded on a short affidavit of Mr.

McCarthy in both cases.

24. A Statement of Opposition was filed in April, 2024, on behalf of the Respondent in the Heffernan proceedings grounded on an affidavit of a Senior Prosecutor who exhibited the transcript of the DAR.

25. Subsequently, by Orders dated the 25th of February, 2025, the Minister for Justice, Home Affairs and Migration (hereinafter “the Minister”) was joined as Notice Party in both proceedings as the Criminal Legal Aid Scheme is administered by the Department of Justice, Home Affairs and Migration (hereinafter “the Department of Justice”). It was only after this order was made that Opposition papers were filed in the Cawley case.

26. Opposition papers filed in April, 2025 were grounded on an affidavit of an officer in the Office of the DPP who exhibited, inter alia, the DAR transcript from the hearings and the legal aid certificate granted in the Cawley case.

27. Opposition was subsequently further supported by an Affidavit filed in similar terms in both cases by the Head of Service Delivery at the Department of Justice (Ms. Carole Sullivan) on behalf of the Notice Party.

28. In her affidavits on behalf of the Notice Party, Ms. Sullivan sought to assist the Court in relation to the operation of the Scheme. She acknowledged that while the Scheme is administered by the Department of Justice and that Department is responsible for the payment of legal aid, decisions on whether to grant legal aid and on the assignment of solicitors to represent an accused person remains a judicial function. She identified Regulation 7 of the 1965 Regulations and Regulation 7 of the 1970 Regulations (as amended) as being of relevance.

29. Noting that Regulation 7(4) of the 1965 Regulations provides that where multiple certificates have been granted but the cases in respect of which they have been granted are ultimately heard together or in immediate succession, one certificate only shall be deemed to have been granted unless the court otherwise directs for good reason as being consistent with prudent management of resources, Ms. Sullivan contended on behalf of the Minister that it is reasonable that one solicitor only would be assigned in respect of multiple charges arising out of the same incident where tried together either summarily or on indictment. She acknowledged that ultimately this would be a matter for the discretion of the District Judge granting legal aid having regard to the relevant statutory provisions and the right of the accused person to legal representation.

30. Ms. Sullivan further acknowledged on behalf of the Notice Party that the District Judge might have regard to such matters as the complexity, gravity, and distinct nature of the charges, together with any submission which the accused person might make concerning the necessity that more than one solicitor be assigned to that person. She observed that in considering whether to assign more than one solicitor, it may be material for a District Judge to have in mind the possibility that the assignment of more than one solicitor will result in increased cost to the State and may also result in the proceedings taking longer to reach finality.

31. Mr. McCarthy swore supplemental affidavits in both cases (in May, 2025), principally addressed to rates of payment on foot of a legal aid certificate and detailing the work which is done for a fee of €201.50 (plus VAT) on a certificate in the District Court.

32. These affidavits of Mr. McCarthy elicited supplemental affidavits sworn by Ms.

Sullivan on behalf of the Notice Party in June, 2025, in both cases. She exhibited the Notice Party’s “Procedures Governing the Payment of Criminal Legal Aid Fees”

(January, 2025) and relied on up-dated rates of legal aid.

33. The response on behalf of the Notice Party prompted Mr. McCarthy to file additional affidavits in reply in September, 2025, in both cases. In each case, he pointed out that Ms. Sullivan was relying on January, 2025 rates rather than those applicable in 2022.

He also averred that the updated figures cited were not, in any event, the applicable rates where a solicitor is assigned on multiple certificates relating to the same accused.

He supported his position in both cases in reliance on an affidavit sworn by Ms.

McPeake on behalf of the professional billing and account management engaged by Mr. McCarthy to process his legal aid claims.

34. Ms. Peake’s affidavits confirmed that in a situation where three certificates are assigned to the same defendant, in the same court, on the same day and the same solicitor is assigned in respect of each certificate, only one certificate is payable.

35. Both Mr. McCarthy and Ms. McPeake’s affidavits are silent, however, on the operation of Regulation 7(4) of the 1965 Regulations when a District Judge makes a direction being satisfied that there is good reason for separate certificates. Similarly, Ms.

Sullivan’s affidavit is silent in this regard.

36. While all parties relied on their instructions in submissions before the Court, there is a regrettable evidential deficit on both sides. It was submitted, although not supported by evidence before me and without demur, that where certificates are granted in the names of different solicitors employed by the same law firm, the practice is for legal aid payments to issue to each of the assigned solicitors even where the cases were heard together and on the same day, whether a direction under Regulation 7(4) of the 1965 Regulations was made or not.

37. In circumstances where this factual matter is at the heart of the proceedings, I directed correspondence to the parties post hearing by email dated the 18th of February, 2026, inviting them to agree that it is common case that where certificates are granted in the names of different solicitors employed by the same law firm, the practice is for legal aid payments to be made to each of the assigned solicitors even where the cases were heard together or in immediate succession, whether a direction under Regulation 7(4)

of the 1965 Regulations was made or not.

38. By letter dated the 25th of February, 2026, the Chief State Solicitor’s office replied on behalf of the Notice Party by quoting from Regulation 7(4) of the 1965 Regulations and stating:

“The Notice Party confirms that Ms Justice Siobhán Phelan has correctly described the Notice Party’s practice in cases where certificates are granted by the District Court in the names of different solicitors employed by the same firm.

Where this occurs, legal aid payments issue to each of the assigned solicitors, even where the cases were heard together or in immediate succession. This occurs where the Financial Services Unit of the Notice Party is unaware whether the District Court in question has made a direction under Regulation

7(4), and effectively proceeds on the assumption that such a direction has been given.”

39. By email dated the 26th of February, 2026, Mr. Aonghus McCarthy, Solicitor, replied as follows on behalf of the Applicants:

“The applicants confirm that Ms Justice Phelan has correctly described the practice as set out in her query. However, they do not agree with the notice party’s contention that the reason this is paid is because “the Financial Services Unit of the Notice Party is unaware whether the District Court in question has made a direction under Regulation 7(4), and effectively proceeds on the assumption that such a direction has been given.”

Prior to a claim being paid under regulation 7(4), the Financial Shared Services, the organisation that processes legal aid payments on behalf of the notice party, require a specific letter to be signed by the District Judge, which is then sent with a separate and distinct claim and falls to be paid as such. Accordingly, the practice as described by Ms. Justice Phelan is correct. However, the explanation as provided by the notice party must be seen in this light and would appear inconsistent with the fact that a claim for payment, where regulation 7(4) applies, is a separate process to that where certificates are granted to different solicitors within the same firm. These are never processed under the regulation 7(4) claiming method.”

ISSUES

40. On the pleadings in the two cases, the question which arose was whether the refusal to issue certificates under s. 2 of Criminal Justice (Legal Aid) Act, 1962 and the regulations made thereunder in the names of separate solicitors in the same legal firm was unlawful by reason of a failure to consider the application appropriately, refusing it without “sustainable reason” and, further, a breach of the accused person’s right to be represented by a solicitor of his choosing protected under Article 38 of the Constitution and Article 6 of the European Convention on Human Rights.

41. In oral argument, the case advanced on behalf of each Applicant narrowed. It was accepted that in the context of a legally aided applicant, the right to representation of choice is not unlimited and may be curtailed. It was also accepted that under Regulation 7(4) of the 1965 Regulations, where two or more certificates for free legal aid are granted to a person and the cases in relation to which they are granted are heard together or in immediate succession, one certificate only shall be deemed to have been granted unless the Court, being satisfied that there is good reason for so doing, otherwise directs.

The position urged on behalf of the Applicants focused on the failure on the part of the District Judges in each of the two cases before me to enquire into the basis upon which an application for nomination of different solicitors within the same firm was made and to state the reasons for not acceding to this application.

42. Although much on the evidence adduced on affidavit in these cases turned on the level of fees payable under the Criminal Legal Aid Scheme, I am not asked in these proceedings to adjudicate on the adequacy of fees payable under the Scheme or on whether the low level of fees payable impairs an accused person’s rights of defence.

Indeed, it is not disputed that notwithstanding the refusal to assign different solicitors on each charge, the Applicants had the benefit of legal representation in respect of all relevant charges.

LEGAL FRAMEWORK

43. The Criminal Legal Aid Scheme is provided for in the Criminal Justice (Legal Aid) Act, 1962 and the regulations made under s. 10 of that Act. Section 2 of the 1962 Act provides for the grant of a legal aid (District Court) certificate. It was amended by s. 5 of the Criminal Justice (Miscellaneous Provisions) Act, 1997 and now reads as follows:

"(1) If it appears to the District Court before which a person is charged with an offence or an alternative court within the meaning of section 5 of the Criminal Justice (Miscellaneous Provisions) Act 1997, before which a person is appearing

(a) that the means of the person before it are insufficient to enable him to obtain legal aid, and

(b) that by reason of the gravity of the offence with which he is charged or of exceptional circumstances it is essential in the interests of justice that he should have legal aid in the preparation and conduct of his defence before it,

the said District Court or the alternative court, as may be appropriate, shall, on application being made to it in that behalf, grant a certificate, in respect of him, for free legal aid (in this Act referred to as a legal aid (District Court)

certificate) and thereupon he shall be entitled to such aid to have a solicitor and (where he is charged with murder and the said District Court or the alternative court, as the case may be, thinks fit) counsel assigned to him for that purpose in such manner as may be prescribed by regulations under section 10 of this Act.

(2) A decision of the District Court in relation to an application under this section shall be final and shall not be appealable."

44. Section 10 of the 1962 Act empowers the Minister for Justice to make regulations providing for certain matters, including “the form of legal aid certificates” and “the manner in which solicitors and counsel are to be assigned pursuant to such certificates.”

45. The 1965 Regulations were made under s. 10 and have been amended from time to time. Under Regulation 4(1) of the 1965 Regulations (as amended), each County Registrar is required to maintain a list of solicitors who are willing to act for accused persons to whom legal aid certificates are granted.

46. Regulation 7(1) provides as follows:

“Upon the grant of a certificate for free legal aid, the court granting the certificate shall, having taken into consideration the representations (if any)

of the person to whom the certificate was granted, assign to him a solicitor from the appropriate list kept pursuant to Regulation 4 of these Regulations to act for him in the preparation and conduct of his case.”

47. Regulation 7(4) addresses circumstances in which an accused person receives more than one legal aid certificate in respect of cases which are heard together. It states as follows:

“Where two or more certificates for free legal aid are granted to a person and the cases in relation to which they are granted are heard together or in immediate succession, one certificate only shall (unless the Court, being satisfied that there is good reason for so doing, otherwise directs) be deemed, for the purposes of these Regulations, to have been granted to the person.”

48. Accordingly, the statutory scheme provides for a second or subsequent certificate to be disregarded in the payment of legal aid fees unless the Court directs otherwise for “good reason.”

49. In the terms prescribed, the automatic or presumptive disregard rule applying to a second or subsequent certificate in Regulation 7(4) applies whether the said certificates are in the same name or different names where cases are heard together or in immediate succession. Without a direction from the Judge in the concerned proceedings, by operation of Regulation 7(4) of the 1965 Regulations (which does not stand impugned in these proceedings), only one certificate is deemed to have issued whether the different certificates assign the same solicitor or different solicitors to the one accused person where the cases are heard together or in immediate succession.

50. For completeness, it is also appropriate to refer to Regulation 7 of Criminal Justice (Legal Aid) (Amendment) Regulations 1970 (S.I. 240 of 1970) as amended by Regulation 7 of the Criminal Justice (Legal Aid) (Amendment) Regulations, 2011 (S.I.

362 of 2011) which states:

“7.Where a solicitor assigned pursuant to a certificate for free legal aid in relation to a case does not attend the hearing or part of the hearing of the case, the fees and expenses payable under the Act in connection with the hearing shall be paid to the solicitor concerned if the person on whose behalf that solicitor stands assigned in the matter is represented at the hearing or part of the hearing of the case by—

(a) a solicitor who is a partner of the solicitor assigned,

(b) a solicitor who is a solicitor employed by the firm of solicitors in which the solicitor assigned is a partner or employee, or

(c) counsel instructed by the solicitor or firm of solicitors in which the solicitor assigned is a partner or employee unless the case is one where counsel has been assigned in the case by or under the Criminal Justice (Legal Aid) Act 1962 (No.

12 of 1962) or the Enforcement of Court Orders Act 1940 (No. 23 of 1940).”

51. In this way, the Criminal Legal Aid Scheme makes express provision for situations where a different solicitor in a firm works on an accused person’s case.

FINDINGS OF FACT

52. In the Cawley case, the grounding Affidavit was sworn by Mr. McCarthy who appears not to have been present in court on the day in question. Counsel who attended on his instructions has not sworn an affidavit. A very bare verifying affidavit has been sworn by Ms. Cawley but, as clear from the DAR transcript, she was also outside the courtroom. In consequence, the only real evidence of what transpired in court is limited to the DAR record.

53. From the DAR record of the Cawley proceedings, I am satisfied that the District Judge had before her two charge sheets which disclosed two notably similar offences occurring at different locations in Dún Laoghaire on the same date. She was not satisfied to assign separate solicitors from the same firm on separate charge sheets. She indicated clearly that she would only assign one solicitor. There is no evidence that any certificate issued in respect of the second charge sheet as the application was for a certificate in the name of a different solicitor as opposed to a second certificate in the name of Mr. Aonghus McCarthy.

54. There is no evidence before me as to what the District Judge had already told counsel but it is apparent that there is a history to applications of this nature being presented before the District Court by this solicitor (and perhaps others too). The failure to address the history on affidavit is unsatisfactory, particularly where other cases have been adjourned pending the outcome of these proceedings and it is desirable that the real issues are determined on true and accurate facts.

55. From the transcript in the Heffernan case, while the District Judge refused to assign certificates in different names, he confirmed that he had no difficulty in granting legal aid to qualifying applicants and no difficulty applying Regulation 7(4) to direct payment on a separate certificate if satisfied there is good reason to do so but not assigning three or four solicitors on the one day to the same accused in respect of cases heard together or in immediate succession. The District Judge went further in noting that the four charges related to three separate dates and involved two different prosecuting members, with one matter listed before the court on a separate date, meaning that he would have no difficulty in applying Regulation 7(4) in respect of charge sheets 252, 269 and 325.

56. Through these words, I am satisfied that the District Judge in Heffernan was clearly signalling that he recognised that the charges were different and would require separate attention and work with the result that if an application were made to him under Regulation 7(4) in the event that the cases were listed together or in immediate succession, he would be disposed to make an order because he would have good reason to do so. It is apparent from the DAR that the District Judge was anxious to be fair to the legal representatives as regards the remuneration they would receive in respect of distinct work on separate charges.

57. The exchange in both courts makes sense when it is appreciated that when certificates issue in the assigned names of different solicitors on distinct charges, albeit in the same firm and listed in immediate succession before the same sitting of the court, the Department of Justice pay a separate full legal aid fee on each certificate as though an order under Regulation 7(4) of the 1965 Regulations has been made and without requiring evidence that the Judge made a Regulation 7(4) direction. In this way, the Department of Justice effectively treats the assignment of different solicitors as evidence of the Judge’s intention to make an order under Regulation 7(4). This practice on the part of the Department does not secure compliance with the statutory intention reflected in the Criminal Legal Aid Regulations. The practice of the Department in making these payments is not under challenge in these proceedings but appears to be without legal basis.

58. It is not clear to me why the Department adopts this approach and it has not been satisfactorily explained. It may be for reasons of practicality and administrative convenience or perhaps because of potential difficulties arising if unconnected solicitors (from different firms) appear in respect of separate matters for the same accused before the same sitting of the court. Whatever the reason, it is clear that only one solicitor is entitled to be paid as a matter of law on an application of the default rule under Regulation 7(4) in the absence of a court direction otherwise.

59. Irrespective of the reasons and legal basis for the payment practice adopted by the Department of Justice, I find that as a matter of fact it was known to both the District Judges and practitioners in the Cawley and Heffernan cases that the assignment of different solicitors from the same firm in respect of different matters heard together or in immediate succession is treated for payment purposes as though a direction under Regulation 7(4) of the 1965 Regulations has been made for “good reason.” In the absence of any other explanation for the application for assign different solicitors from the same firm, I am satisfied that the applications made in both cases were made to secure separate payments in respect of matters listed together or in immediate succession on behalf of the same accused person without a direction under Regulation 7(4) for “good reason”, contrary to legislative intention.

60. I am satisfied that if the practice of the Department of Justice in processing payments was properly aligned with the requirements of the statutory scheme, then whether legal aid was assigned to different solicitors within the same firm or not would make no difference as payment would be made on one certificate only by operation of the default rule under Regulation 7(4) unless a direction otherwise was made by the judge for good reason. In consequence, any burden on the Exchequer arising from multiple certificates issuing in the names of separate solicitors in the same firm results from the practice of the Department of Justice in not enforcing Regulation 7(4) in line with statutory intention.

61. In the context of the accepted practice of the Department of Justice, it seems to me that by stating “you have to ask”, the District Judge in Cawley was likely alluding to the fact that the possibility of seeking a direction under Regulation 7(4) of the 1965 Regulations on a future date remained if such application was warranted. By not assigning a separate solicitor from the same firm of solicitors, the District Judge acted to preserve the requirement for such an application based on “good reason” as a condition of securing separate payments. Had the District Judge assigned a separate solicitor from the same firm in respect of the second of two charges before the Court on a first date, the effect of such assignment would have been to achieve separate payments without complying with the condition of obtaining a Court direction for “good reason” as envisaged in Regulation 7(4).

62. A central fact in these proceedings is that no application was made for a direction under Regulation 7(4) of the 1965 Regulations in either Cawley or Heffernan. Without such an application being made, in both cases the court was asked to assign different solicitors from the same firm on charges listed together before the court. This application could only have a purpose were the assignment treated as a direction under Regulation 7(4) because otherwise and as a matter of law, only one certificate is deemed to have issued. It is particularly telling in this regard that nothing has been advanced to explain why Ms. Cawley or Mr. Heffernan sought the nomination of different solicitors within the same firm in respect of distinct charges in support of the application before the District Court.

63. Although neither Applicant told the District Judge in each Court why they wished to be represented by different solicitors from the same firm and neither has provided sworn evidence explaining their choice in grounding these proceedings, I am satisfied on the evidence having particular regard to the importance attached on affidavit to the rates of payment and the work done in respect of payments by way of legal aid, that the application in each case was motivated by a wish to secure legal aid payments on more than one certificate in respect of a single court appearance dealing with separate charges either together or in immediate succession without the necessity of establishing that there was “good reason” for payment on separate certificates in accordance with Regulation 7(4) of the 1965 Regulations. In making the application, Aonghus McCarthy and Co. sought to capitalise on or take advantage of the practice of the Department of Justice in making separate payments where different solicitors are assigned whether a direction has been made under Regulation 7(4) of the 1965 Regulations or not, thereby subverting the requirement to obtain a direction on stated grounds as prescribed.

64. I am satisfied on the evidence that the plain purpose of the District Judge in each case in not acceding to the application to assign different solicitors from the same firm in respect of matters concerning the same accused listed together before the court was to uphold and give effect to the rule in Regulation 7(4) of the 1965 Regulations. The reason for refusing the applications was to uphold the rule of law by ensuring that legal aid payments are made in accordance with the statutory scheme.

ANALYSIS AND DECISION

Overview

65. There is no dispute between the parties on foundational issues. It is accepted that there is a constitutional right to legal aid in criminal matters as established in State (Healy)

v. Donoghue [1976] I.R. 325 but this right is not unlimited (see Carmody v. Minister for Justice [2010] 1 I.R. 635; [2009] IESC 71). While choice of representation is an important consideration, a judge may refuse to assign a particular solicitor for good reasons (State (Royle) v. Kelly [1974] I.R. 259; State (Freeman) v. Connellan [1986] I.R. 433; 1986 WJSC-HC 581; Ward v. Minister for Justice [2019] 2 I.R. 565; [2017] IEHC 656). Similarly, the Article 6(3)(c) right to counsel of choice under the European Convention on Human Rights is qualified in free legal aid cases (Croissant v. Germany, Application No. 13611/88 and Lagerblom v Sweden, Application No. 26891/95).

Denial of Legal Representative of Choice

66. Neither of these proceedings relate to a case of an accused person being denied legal aid for representation by reason of the decision of a District Judge to refuse to issue separate certificates in different names. Unlike the situation in Ward, the effect of the Rules is not to disentitle the Applicant’s solicitor to any payment in respect of an appearance in court on behalf of an accused person but rather to ensure that multiple payments are not made in respect of one appearance, unless the Court so directs for good reason. The position considered in King v. DPP [2022] IEHC 74 does not arise because this is not a case where a certificate issued without application being made for same. Furthermore, neither accused has been denied representation by a solicitor of his choice, although an attempt has been made to present the cases as such. Both Ms.

Cawley and Mr. Heffernan were assigned solicitors of their choice but refused the assignment of more than one solicitor or multiple solicitors on separate charges listed together before the court.

67. It bears emphasis that in the Cawley case, the application was not for a separate certificate on the second charge simpliciter but for the assignment of a different solicitor from the same firm on a second charge, almost identical to the first, without separate attendance in court of a second legal representative. Likewise, in Heffernan, one solicitor in attendance, sought the appointment of different solicitors in his own firm, who were not in attendance, in respect of matters listed together before the Court. In neither case did the Applicant set out why he or she wanted to be represented by a different solicitor from the same firm on distinct charges. Nor have they grounded these proceedings on sworn averments which explain their choice of different solicitors from the same firm as communicated to the District Court.

68. I am satisfied that in assigning a solicitor nominated by an accused person from the panel of legal aid solicitors, the Court discharges the duty on it to assign a solicitor in accordance with Regulation 7(1) of the 1965 Regulations. So long as the accused person has legal representation from an assigned solicitor on the panel in respect of each charge, there is no obligation on the Court to consider a request to assign a different solicitor on each charge, unless the application is advanced on the basis that “good reason” exists for a direction under Regulation 7(4). It would be otherwise were an accused person to find himself or herself without legal representation because a certificate issued for one charge and not another, the court having been satisfied that the nature of the case and the accused person’s means warranted the grant of legal aid. This scenario does not present on the facts before me.

69. Crucial to a proper contextualization of the issues arising in these proceedings, is the fact that while on the face of Regulation 7(4) of the 1965 Regulations, deeming provisions apply whether the certificate assigns one or more solicitors, in practice the Department of Justice treats the nomination of separate solicitors as de facto evidence of a direction by the District Judge disapplying the deeming provision because the Judge is satisfied that there is good reason for so doing. I am satisfied that this practice of the Department of Justice, adopted for whatever reason (not elaborated upon in evidence), does not honour the letter of Regulation 7(4) and the spirit of the legislative intention behind that provision and the legislative scheme. It is recalled in this regard that the legislative scheme separately provides for situations where a different solicitor in a firm works on an accused person’s case (Regulation 7 of the 1970 Regulations as substituted by the 2011 Regulations). The clear legislative intention permeating Regulation 7(4) and informing its application and operation is a requirement to limit the burden on the public purse by providing that, as a general rule, multiple payments are not made in respect of a single court appearance on behalf of the same accused on foot of separate legal aid certificates.

Adequacy of Reasons

70. The decisions, the subject of challenge before me, have been criticised on behalf of the Applicants as lacking in discernible reasoning. I do not find these criticisms justified or the refusals unlawful for lack of reasoning when the refusals are properly contextualised. This context includes the history of similar applications being refused, the legislative scheme and the intention underpinning Regulation 7(4) of the 1965 Regulations (informed by Regulation 7 of 1970 Regulations as amended), the fact that good reason within the meaning of Regulation 7(4) was not advanced in support of the application and the fact that an application for a direction under Regulation 7(4)

remained open where good reason was demonstrated for payment on foot of separate certificates. Against this background, while it is true that in neither case was an express and clear explanation articulated as to why the assignment of more than one solicitor was refused, it seems to me that the reasons were or ought to have been obvious to the parties. I have found as a fact, on the evidence, that the reason was to uphold the rule of law by ensuring that effect was given to the statutory intention made clear in the provisions of the Criminal Legal Aid Scheme.

71. The absence of express or elaborate reasoning in each case does not mean that the reasoning was not readily and adequately discernible from the fact that the legislative policy underpinning the Criminal Legal Aid Scheme envisages payment on foot of one certificate in respect of related matters before the Court as the default position, thereby avoiding multiple payments for overlapping or identical work. By the terms in which this default rule is expressed whereby multiple certificates for cases heard together shall be treated as one certificate, it is made clear that the Scheme generally envisages only one solicitor being paid in respect of related matters listed together or in sequence. This rule applies presumptively and is intended to be automatic unless the court affirmatively decides otherwise for reasons identified by the court as “good” reasons.

72. Accordingly, while the reasons for not assigning multiple solicitors were not expressed in each case, the refusals occurred in a particular context from which the reasoning was clearly discernible. This issue was not new to the Court and had been the subject of previous exchanges. It is not known what reasons were offered on previous occasions because this evidence has not been adduced but, absent evidence to the contrary, I consider it likely that the basis for the District Judge’s concern was well understood given that the issue was a recurring one. More importantly, the decision of the Court not to make multiple assignments of different solicitors from the same firm was in line with furtherance of the policy reflected in law (and not the personal policy of the District Judges) whereby payments would be made on foot of one certificate only unless otherwise directed in accordance with Regulation 7(4) and where is envisaged under the scheme that the assigned solicitor could be represented by another solicitor in his or her firm or by counsel instructed by the firm. The obvious intention of the District Judges was to give effect to the legislative policy reflected in Regulation 7(4) of the 1965 Regulations and Regulation 7 of the 1970 Regulations (as substituted) by requiring an application for a direction on the basis of “good reason” if the default rule were to be disapplied.

Fixed Policy

73. The Applicant cites the decision of Kelly J. in Mishra v. Minister for Justice [1996] 1 I.R. 189; 1996 WJSC-HC 4227 and Budd J. in Whelan v. Fitzpatrick [2008] 2 I.R. 678;

[2007] IEHC 213 in support of a complaint that underpinning the decisions challenged in these proceedings is an unlawful policy of refusing to consider application for assignment of different solicitors from the same firm in respect of matters coming before the Court together regarding a single accused person, irrespective of the specific facts of each case. In this regard I am referred to the Statement of Grounds in the case of Mongan v. DPP (Record Number 2022/1137 JR), one of the cases adjourned pending the determination of these proceedings, seemingly to evidence this practice.

74. Although leave has been granted in Mongan to challenge a refusal to assign more than one solicitor from the same firm in like fashion to the decisions challenged in these proceedings, the affidavit evidence relied upon is not before me. In any event, where Opposition papers have not been filed and the evidence is not agreed, it is unclear to me what real reliance I can place on the Statement of Grounds which was handed up to me during the hearing. While I understand the purpose is to evidence an alleged fettering of discretion on the part of the District Judge on the basis of an assertion that the application for nomination of separate solicitors from the same firm is always refused because the Court has a fixed policy, the Statement of Grounds in another case does not constitute evidence in this case.

75. In any event, even if it were established in evidence that the District Judge in each case before me generally refuses to nominate different solicitors from the same firm in respect of separate charges concerning the same accused person listed together before the Court, it seems to me that whether this constitutes a fettering of discretion depends on the purpose and effect of the refusal and the true nature of the power being exercised.

For there to be a fettering of discretion, it must be established that the policy position adopted by the District Court impermissibly disables the vested discretion such that the District Court effectively improperly abdicates a part of its statutorily vested decisionmaking function which requires case by case consideration of the factors in each case.

76. The Applicants’ case in reliance on Mishra is based on a fundamental misconception as to the effect of the Judges’ decisions in these cases. In Mishra, Kelly J. was dealing with the imposition of a policy on the exercise of a statutory discretion under s. 15 of the Irish Nationality and Citizenship Act, 1956 (as amended) to grant or refuse a certificate of naturalisation. Although there was evidence of a general policy on the part of the Minister before the Court which the Court found entirely permissible, the judgment cautions against the application of a general policy in a manner which precludes individual consideration on the facts of a given case as to whether to exercise a discretion or not. As to the exercise of this discretion, Kelly J. said at p. 205 that:

“In my view, there is nothing in law which forbids the Minister upon whom the discretionary power under Section 15 is conferred to guide the implementation of that discretion by means of a policy or set of rules. But care must be taken to ensure that the application of this policy or rules does not disable the Minister from exercising her discretion in individual cases. In other words, the use of a policy or a set of fixed rules must not fetter the discretion which is conferred by the Act.”

77. The analogy with Mishra is misplaced because the effect of the decision in these cases did not impermissibly curtail the exercise of judicial discretion. Neither Applicant was left without legal representation of choice. In neither case did the way the legal aid certificates were assigned dictate that payment be made on one certificate only in every case of an accused appearing on more than one charge at the same sitting of the District Court consequent upon a decision of the District Judge. The effect was to require that if payment were to be made on more than one certificate in respect of such matters listed together, it would be on the basis of a direction by the District Judge that there was good reason for same. Crucially, this is only what the law already requires and does not involve the development of an impermissible rule by the District Judge in a manner which interferes with the proper discharge of the judicial function.

78. Unlike the position in Whelan v. Fitzpatrick, also cited on behalf of the Applicants, this is not a case where either District Judge simply refused to assign legal aid to a class of case thereby disabling its discretion under the 1962 Act. In Whelan, the District Judge had pronounced that he did not give legal aid in driving cases even though there is no statutory exclusion of driving cases from eligibility for legal aid. Instead, as a matter of law it is for the District Judge in each case to decide whether the nature of the offence with which the accused is charged or the circumstances of the case are such that the interests of justice require the grant of legal aid in vindication of the defence rights of a person with insufficient means to enable him or her to obtain legal representation (as required on an application of the test in s. 2 of the 1962 Act).

79. I do not consider that by proceeding as they did in these proceedings that it can fairly be concluded that the District Judges operated a fixed personal policy of refusing multiple solicitors from the same firm or fettered his or her discretion, as has been contended on behalf of the Applicants. The District Judges’ only discretion to make an order requiring payment on foot of more than one certificate in respect of cases heard together or sequentially arises under Regulation 7(4) of the 1965 Regulations where satisfied that “good reason” is shown.

80. As a matter of law, it matters not whether one or more solicitors are assigned by the Judge, as absent a direction under Regulation 7(4) of the 1965 Regulations, the Regulations provide that they should not be paid. As this is not what occurs in practice by reason of the approach of the Department of Justice in processing payments, by refusing multiple assignments, the District Judge was doing no more than ensuring that the law was applied.

81. The preference on the part of Mr. McCarthy to secure the assignment of separate solicitors from his firm as opposed to multiple certificates in his own name as a means of enhancing the level of fees payable to solicitors in the firm makes sense in the light of the practice outlined before the Court of the Department of Justice in making payments on foot of legal aid certificates in different names notwithstanding the existence of a deeming provision under Regulation 7(4) of the 1965 Regulations which has not been disapplied by court direction. The reason for seeking the assignment of different solicitors from the same firm of solicitors in practice is explained by the fact that multiple assignments serves the purpose of securing payments to the same firm on foot of separate legal aid certificates, even though the cases were heard together or sequentially and the accused was represented by the same legal representative, without the necessity for court direction under Regulation 7(4). Plainly stated, the purpose was to secure the circumvention of the deeming provision of Regulation 7(4) and to avoid the necessity to satisfy a judge that there is good reason for disapplying that provision.

82. Accordingly, by not making an application under Regulation 7(4) of the 1965 Regulations but asking the Court to assign different solicitors from the same firm in respect of each of the matters listed before the Court together, an attempt was made to subvert the application of the default rule and avoid the requirement to satisfy the Court that good reason for such a direction existed.

83. It seems to me that it was entirely proper for the District Judge to exercise his or her discretionary powers in a manner which both ensured that State funded legal representation by a legal representative of their choosing from the panel was available to the accused person in respect of all matters before the Court and that the conditions of the legislative scheme were complied with in terms of when an entitlement to payment in respect of more than one case heard together or sequentially arises. It is not an unlawful fettering of discretion for a judge to exercise powers in a manner which does not create a new rule for which no legal basis has been prescribed but is intended rather to enforce and give effect to properly prescribed rules. The rule that payments be made on more than one certificate only by direction of the Court is not a rule which the District Judge has personally developed as though he or she were making the law disguised as a pre-determined exercise of discretion in a particular way in every case.

It is a rule which is statutorily fixed.

84. Had the order sought been made in either the Cawley or the Heffernan case, it would have served, based on the practice of the Department of Justice, seemingly known to the court and to practitioners, to circumvent the need for an application for a direction under Regulation 7(4) of the 1965 Regulations. It is difficult to see this as other than a device to bypass the proper application of the deeming provision in Regulation 7(4) of the 1965 Regulations, albeit a device made possible by the practice of the Department of Justice in not requiring evidence of a direction under Regulation 7(4) of the 1965 Regulations in such cases or, alternatively, treating the assignment of different solicitors as evidence of a direction under Regulation 7(4) of the 1965 Regulations even in cases where no such application was made. In my view, the District Judges’ refusal to acquiesce to this approach is entirely consistent with the judge’s function in upholding the rule of law. In refusing to assign different solicitors from the same firm on separate charges against the same accused coming before the court together, the Court does no more or less than legitimately exercise its discretion in a manner which upholds the rule of law.

Application of Regulation 7(4) of the 1965 Regulations

85. In the Heffernan case, the assignment of different solicitors from the same firm was sought and some reference was made during this brief application to the differences in the charges against the accused. The fact that the charges were distinct and occurred on a different day or in a different place would not of itself give rise to a necessity for a different solicitor, but it could constitute good reason for directing separate payments notwithstanding the deeming provision of Regulation 7(4) of the 1965 Regulations.

Other factors which could constitute good reason might include the fact that charges were complex or different resulting in additional work or that in dealing with distinct charges, there was a requirement to consider different facts, evidence or law. Whether the reason identified is a good reason is a matter for the discretion of the District Judge.

86. In the Heffernan case, where several certificates had issued in the same name, the District Judge expressly signalled that an application under Regulation 7(4) of the 1965 Regulations was open. Indeed, the Judge was at pains to confirm that he could exercise his discretion under Regulation 7(4) to deal with the matter fairly in the light of the differences between the charges identified and noted by the court.

87. Properly, a direction under Regulation 7(4) of the 1965 Regulations should only be made where the District Judge is satisfied that there is “good reason” for doing so.

Although there may be cases in which a District Judge can be satisfied from the outset that a direction under Regulation 7(4) is warranted, it is my understanding that such a direction is more typically made at a later stage when the District Judge is persuaded that the distinct charges carried a requirement for additional work warranting separate certificates as an acknowledgement of the nature and complexity of the matters the assigned solicitor was required to deal with in providing legal representation.

88. As already noted, in Cawley, the District Judge was never asked to consider the exercise of discretion under Regulation 7(4) based on an identified “good reason”. Similarly, there is no evidence of an application under Regulation 7(4) ever being made in Heffernan. In my view, a judge cannot be fairly criticised for refusing to grant certificates assigning different solicitors under the Criminal Legal Aid Scheme in respect of matters listed together before that judge concerning the same accused person where it is known that such assignment would have the effect of circumventing an application for a direction under Regulation 7(4) of the 1965 Regulations and the requirement to show good reason as a condition of obtaining such a direction. The effect of the refusal was not to deny the accused person legal representation whether by a solicitor of choice or at all. Nor has it been demonstrated that the Applicants’ rights have been undermined or the quality of representation affected by the refusal to assign different solicitors on each of the certificates.

89. The refusal to assign multiple solicitors did not amount to a denial of payment on foot of separate certificates where “good reason” is shown as required by Regulation 7(4)

of the Regulations. The refusal had the simple effect of ensuring that the requirement to obtain a direction under Regulation 7(4) was not circumvented. The effect of the refusal to assign different solicitors on each charge was to require a decision in accordance with law in respect of any application for a direction under Regulation 7(4)

of the 1965 Regulations. Any refusal of an application for a direction under Regulation 7(4) on the basis that a good reason had been shown requires to be considered by the judge. Although obiter, it seems to me that the reasons for refusing such an application should be apparent, albeit terse reasoning may suffice in most cases. As there was no application under Regulation 7(4) in either case before me, the refusal to assign multiple solicitors cannot be faulted by reason of a failure to explain why the Court was not satisfied that good reason had not been demonstrated justifying payments on separate certificates. Indeed, it was clearly signalled that an application under Regulation 7(4)

would likely be positively considered in the Heffernan case, were one made.

CONCLUSION

90. In exercising judicial powers under the Criminal Legal Aid Scheme, it is proper for the District Judge to do so in a manner which both vindicates the right to legal representation of an accused person and upholds the rule of law in relation to conditions governing payment as prescribed by regulations. In the cases before me, both Applicants received legal aid and their chosen solicitor, satisfying all constitutional and statutory requirements. There is no right to payment on foot of multiple solicitor assignments for related charges absent a court direction for good reason. In both cases, the District Court acted lawfully and within its discretion by ensuring that the deeming provisions of Regulation 7(4) were not bypassed resulting in separate payments under the legal aid scheme in the absence of a direction under Regulation 7(4) of the 1965 Regulations. Neither Applicant has shown prejudice by reason of a failure to provide for legal representation by a solicitor of their choice or a failure to consider an application under Regulation 7(4) in accordance with law. The effect of the refusals in these proceedings was merely to ensure that the law was properly applied. This cannot constitute an unlawful fettering of discretion.

91. For the reasons given, I am not satisfied that the Applicants are entitled to the relief sought or to any other reliefs. Arrangements will be made to list these matters before me for the purpose of making final orders following the expiry of fourteen days from the electronic delivery of this judgment. I will hear submissions, if necessary, as to whether the absence of any clear legal basis for the practice of the Department of Justice in making payments on foot of multiple certificates without a direction under Regulation 7(4) of the 1965 Regulations is relevant to the question of costs.