High Court refuses leave for judicial review of Ombudsman's decision on legal aid refusal.

THE HIGH COURT

[2026] IEHC 123

[Record No. H.JR. 2025/1041]

BETWEEN

LUKE WYNNE

APPLICANT

AND

THE OFFICE OF THE OMBUDSMAN

RESPONDENT

JUDGMENT of Mr. Justice Barr delivered electronically on the 5th day of March 2026.

Introduction

1. This is a leave application on notice wherein the applicant seeks various orders against the respondent for its failure to issue a recommendation in his favour in respect of a complaint that he lodged with it in respect of the refusal by the Legal Aid Board (hereinafter “LAB”) to grant him legal aid in relation to civil proceedings that he wished to bring against a neighbour.

2. While the background will be set out in more detail below, at its most basic level the matter can be summarised as follows: the LAB refused the applicant's application for legal aid to bring proceedings against a neighbour in relation to a contested rightof-way over a laneway.

3. The applicant lodged a complaint in respect of that refusal to the respondent. The respondent investigated the complaint. It obtained a copy of the file held by the LAB. The respondent issued its decision in which it found that there was nothing wrong with how the LAB had dealt with the applicant's application for legal aid.

4. The applicant lodged a customer service complaint against that decision. This was a purely internal review of how the respondent's staff had handled the applicant's complaint. The reviewing officer held that the respondent’s staff had handled the applicant's complaint appropriately.

5. The applicant, acting as a litigant-in-person, has sought leave to bring judicial review proceedings against the respondent's decision in respect of his complaint. The list judge directed that the leave hearing should be held on notice to the respondent.

Background.

6. Since in or about 2008, the applicant has been the owner of a mid-terrace property in County Kildare. The applicant maintains that since the property was built, it had enjoyed a right-of-way down a side entrance to the adjoining property, which provided access to the applicant's backyard. The applicant states that the right-of-way was provided for in various deeds through the years, including in a lease from 1961 which ran for a term of 60 years.

7. In 2015, the adjoining property was sold by the owner (hereinafter “the vendor”) to a third party (hereinafter “the purchaser”). Following the sale of that property, there was considerable correspondence between the purchaser and the vendor’s solicitor in relation to the contested right-of-way over the laneway adjoining the purchased property. The purchaser was registered as full owner of the adjoining property in 2019. While the folio mentions the 1961 lease, it does not refer to any rights of way over the laneway.

8. The applicant alleges that in or about June 2021, the purchaser blocked the entrance to the laneway at the side of his property, thereby preventing the applicant having access to his backyard via the laneway. The applicant wished to contest those actions on the part of the purchaser. In particular, he wished to institute proceedings that would establish that he had a right-of-way over the laneway.

9. The applicant stated that he was unable to obtain the services of a solicitor without providing substantial funding for the proposed litigation. The applicant states that he was unable to afford the legal fees that were quoted to him. The applicant lodged an application with the LAB seeking legal aid to enable him to institute proceedings against the purchaser.

10. On or about 4 June 2021, the applicant met with a solicitor who had been nominated by the LAB to interview the applicant and furnish a recommendation. He made a recommendation on behalf of the applicant to the LAB.

11. On 25 March 2022, the board communicated to the solicitor that it was refusing to grant legal aid to the applicant on the basis that disputes concerning “rights and interests in or over land” were not eligible for legal aid under s.26(2)(b) and s.28 (9)(a)(ii) of the Civil Legal Aid Act 1995.

12. The LAB subsequently sent the applicant's application for legal aid to counsel for the purpose of obtaining an opinion as to whether they had jurisdiction to grant legal aid. An opinion was furnished by counsel on 27 March 2023. Counsel opined that as the matter in respect of which the applicant sought legal aid was a “designated matter”, the LAB was prohibited from granting legal aid pursuant to s.28(9)(a)(ii) of the 1995 Act.

13. On 18 August 2023, the LAB communicated its refusal to grant legal aid to the applicant. There was a further review process, and on 29 October 2023, the Board reaffirmed its refusal to grant legal aid. Following a final internal appeal process, the Board upheld its refusal of the applicant’s legal aid request on the same grounds by

decision dated 15 November 2023.

14. On 4 January 2025, the applicant filed a complaint with the respondent in respect of his application that had been lodged with the LAB. The applicant complained, inter alia, that the LAB had failed to take account of relevant documents in its consideration of his application and had misclassified his application for legal aid as a property dispute.

15. Notwithstanding that the applicant's complaint was outside the twelve month time limit for complaints to the respondent as provided for under s.5(1)(d) of the Ombudsman Act 1980, as amended, the respondent held that there were special circumstances that would justify the complaint being received by it.

16. The applicant’s complaint was investigated by a member of the respondent's staff. The respondent sought a copy of the file in the possession of the LAB. The respondent also received a written response from the LAB, wherein it maintained that it had been legally prohibited from granting legal aid to the applicant under the terms of the 1995 Act, because the case concerned a dispute over land.

17. On 7 April 2025, the respondent wrote to the applicant informing him that it was not upholding his complaint on the basis that there was no evidence that the

decision by the LAB had been improperly made. The letter from the respondent also informed the applicant as to the limitations on the Ombudsman’s powers under the 1980 Act.

18. In addition, it noted that while the applicant had disputed the conclusions set out in the legal opinion that had been commissioned by the LAB, the respondent was precluded from examining the quality of legal services provided by or to the LAB.

19. While recommendations of the Ombudsman are not subject to an appeal, a complainant who is not satisfied with the service of the Ombudsman, may make a customer service complaint. The applicant did that by filing such a complaint on 9 April 2025. That complaint was reviewed by the customer service manager of the respondent, Ms. Mary Byrne. By letter dated 27 May 2025, Ms. Byrne wrote to the applicant stating her conclusion that she was satisfied that the caseworker who had examined and considered the applicant's complaint had done so in line with the Ombudsman's procedures. She stated that she had found no issues with the handling of his complaint. The letter further informed the applicant that there was no further action for the Ombudsman to take in respect of the matter.

The Law.

20. The test which the court must apply when determining whether it is appropriate to grant leave to an applicant to proceed by way of proceedings for judicial review, was set down in 1993 in the case G v DPP [1994] 1 IR 374. While that test is very well known, it is still appropriate to set it out, lest its essential terms have been lost due to repeated use. It was set down in the following terms by Finlay CJ at p. 377/378:

“An applicant must satisfy the court in a prima facie manner by the facts set out in his affidavit and submissions made in support of his application of the following matters:

(a) that he has a sufficient interest in the matter to which the application relates to comply with rule 20 (4).

(b) that the facts referred to in the affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review.

(c) That on those facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks.

(d) That the application has been made promptly and in any event within the three months or six months’ time limits provided for in [Rules of the Superior Courts]…

(e) That the only effective remedy, on the facts established by the applicant, which the applicant could obtain would be an order by way of judicial review, or if there be an alternative remedy, that the application by way of judicial review is, on all the facts of the case, a more appropriate method of procedure.”

21. The test as to what amounts to arguable grounds was summarised by Charleton

J. in Esme v Minister for Justice & Law Reform [2015] IESC 26 at paragraph 15 as follows:

“Any issue in law can be argued: but that is not the test. A point of law is only arguable within the meaning of the relevant decisions if it could, by the standards of a rational preliminary analysis, ultimately have a prospect of success. It is required for an applicant for leave to commence judicial review proceedings to demonstrate that an argument can be made which indicates that the argument is not empty. There will be no filtering process or mere arguability to be the test without, at the same time, taking into account the trivial or unstateable cases are to be excluded: the standard of the legal point must be such that, in the absence of argument to the contrary, the thrust of the argument indicates that reasonable prospects of success have been demonstrated.”

Discussion and Conclusions.

22. At the outset, several things must be kept clearly in mind: first, these are judicial review proceedings. They are not an appeal from the decision of the respondent; much less are they an appeal from the decision of the LAB.

23. These are proceedings which seek to establish that there was some unlawfulness or legal infirmity in the decision made by the respondent. That decision looked at how the LAB had handled the applicant's original application for legal aid. These proceedings are not a review of the legality or correctness of the original decision taken by the LAB.

24. The limitations on a review in the context of judicial review proceedings were considered in Sweeney v Fahy [2014] IESC 50, where Clarke J (as he then was) stated as follows at paragraph 3.8:

“Thus, there are very significant limitations on the extent to which it is appropriate for the superior courts to exercise their judicial review jurisdiction arising out of allegations that the evidence before a lower court or other

decision-maker was insufficient to justify the conclusions reached rather than insufficient to establish that the decision-maker had any lawful capability to make the relevant decision in the first place. Absence of a lawful power to make the decision would render the decision unlawful. Save in an extreme case, absence of sufficient evidence as to the merits would only render the decision incorrect and, thus, not amenable to judicial review.”

25. The second thing which the court must bear in mind at this stage is that this is a leave application. The court is not determining whether the respondent acted lawfully or correctly. On a leave application, even one that is on notice, this Court is only concerned to apply the test set down in G v DPP.

26. In essence, this Court is only concerned with whether the applicant has established an arguable or stateable case that the respondent acted in a manner that was legally unsound.

27. Finally, it is necessary to keep in mind the review powers enjoyed by the Ombudsman under the 1980 Act. These are set out in s.4(2) of the Act, which provides that the Ombudsman may investigate any action taken by or on behalf of a reviewable agency in the performance of administrative functions where having carried out a preliminary examination of the matter, it appears to the Ombudsman that the action has or may have adversely affected an eligible person, and that the action was or may have been: taken without proper authority; taken on irrelevant grounds; was the result of negligence or carelessness; was based on erroneous or incomplete information; was improperly discriminatory; was based on an undesirable administrative practice may:

there was a failure to comply with section 4A; or was otherwise contrary to fair or sound administration.

28. The respondent’s role in investigating complaints is to consider whether a person has been adversely affected by improper actions on the part of a public service provider within its remit. If there is no evidence that the decision complained of was made improperly; then, under the 1980 Act, there would be no grounds for the respondent to pursue the matter with the public service provider. It is not the role of the respondent to act as an advocate or mediator between members of the public and public service providers.

29. Having reviewed the pleadings to date, being the statement of grounds and the affidavits sworn by the applicant and the exhibits thereto, and the affidavit sworn on behalf of the respondent by Ms. Siobhán O'Donoghue, sworn on 31 October 2025, and the exhibits to that affidavit; and having considered the oral and written submissions on behalf of the parties, the court has come to the conclusion that it is not appropriate to grant leave in this case because the applicant has not established an arguable case that the respondent has acted unreasonably or unlawfully in its consideration of his complaint to it.

30. The court has reached that conclusion for the following reasons: first, the court accepts the evidence set out in Ms. O’Donoghue's affidavit as to the steps that the respondent took to investigate the complaint lodged with it by the applicant. The court is satisfied that the respondent obtained all relevant material and information from both the applicant and from the LAB.

31. Having done that, the respondent was entitled to come to the conclusion that the LAB had considered the applicant's application for legal aid in a comprehensive, rational and fair manner.

32. The respondent was entitled to come to the conclusion that the LAB had acted lawfully and rationally in coming to the conclusion that they could not grant legal aid to the applicant because his proposed action against the purchaser was in relation to a dispute concerning rights in or over land.

33. That being the case, the LAB was entitled to come to the view that it could not grant legal aid due to the provisions of s.28(9)(a)(ii) of the Civil Legal Aid Act 1995. That section provides that legal aid shall not be granted by the Board in respect of a number of matters, referred to as “designated matters”, including “disputes concerning the rights and interests in or over land”.

34. The respondent was entitled to have regard to the fact that the LAB, having reached that initial decision, had taken the precaution of obtaining the opinion of counsel in the matter. Counsel furnished an opinion stating that the LAB did not have the power to grant legal aid because the proposed action concerned a dispute involving rights over land.

35. The First Schedule, Part II, sub-para. (f) of the Ombudsman Act 1980 prohibits the respondent from reviewing the adequacy or correctness of legal services provided by or on behalf of the LAB. Thus, I hold that the respondent was correct to hold itself unable to review the correctness of counsel's opinion. The respondent was confined to considering the reasonableness of the conduct of the LAB in obtaining the opinion of counsel and in acting upon it. Insofar as the respondent found that the LAB had acted reasonably in so doing, that decision was entirely rational on the evidence before the respondent.

36. In summary, I find that no arguable or stateable case has been made out by the applicant that the respondent has acted unreasonably or unlawfully in the consideration of his complaint to it, or in its decision handed down following that consideration of it.

37. For completeness, I will briefly deal with the various grounds raised by the applicant in his statement of grounds. The applicant alleged that the respondent had failed to investigate his complaint. As set out above, the court does not accept that submission as being stateable. The evidence before the court indicates that the respondent, through its staff, investigated the matter in a full and comprehensive manner.

38. The applicant raised environmental and public safety matters in his statement of grounds. The court is satisfied that the environmental and public safety issues raised by the applicant relate to the underlying access dispute with his neighbour. They are not relevant to the respondent’s review of the applicant’s interaction with the Legal Aid Board. Insofar as the applicant has asserted in his statement of grounds that the decision issued by the respondent was irrational, or was based on an incomplete understanding of the factual or legal context, the court is satisfied that the evidence shows that the respondent reviewed the applicant's complaint in a full and comprehensive manner, having obtained the file from the LAB. There is no substance in this submission.

39. Much of the applicant's complaint both in his statement of grounds and in his submissions to the court concerned what he perceived were errors on the folio. He asserted that these errors were due to incomplete documentation having been submitted to the Property Registration Authority. Insofar as the applicant maintains that there are errors in respect of the relevant folio, these are not relevant to a review of the service provided by the LAB to the applicant; much less are they relevant to a challenge to the lawfulness of the decision of the respondent. If the applicant feels that there are material errors on the folio, there are avenues available to him to have the folio rectified, if he can establish that there are errors on it.

40. In the statement of grounds the applicant made an oblique reference to a lack of power on the part of the respondent. It is unclear to what aspect of the 1980 Act the applicant was referring in this regard. The court is satisfied that no case has been made out that the respondent acted outside the powers conferred on it by the relevant legislation. In addition, there is an assertion in the statement of grounds that the respondent was guilty of bias. There was no basis whatsoever provided to support that claim.

41. The applicant asserted in the statement of grounds that he was suffering ongoing harm due to the inability to access the laneway and via that, to access his backyard. That is not something that is relevant to any consideration of whether he has a right to bring proceedings against the respondent. In his statement of grounds, the applicant has purported to seek relief against the Property Registration Authority and against the LAB. There is no basis on which such relief could be granted as these entities are not parties to the proceedings.

42. Finally, it was asserted in the course of argument that the respondent had misdirected itself in deciding that the LAB could not have granted legal aid in the matter as it concerned a dispute over land, due to the exception that is provided for in s.28 (9)(c) of the 1995 Act, as amended. The provisions of S.28 (9)(c)(iii) of the 1995 Act had been considered by the decision maker in her decision of 7th April 2025. Having quoted the relevant subsection, which provides that notwithstanding the general exclusion set out at subparagraph (a) of s.28(9), legal aid may be granted where the subject matter of the dispute is the applicant’s home (or what would be the applicant's home but for the dispute) and the Board considers that the applicant suffers from an infirmity of mind or body due to old age or to other circumstances; or may have been subjected to duress, undue influence or fraud in the matter; and that a refusal to grant legal aid would cause hardship to the applicant. The decision maker went on to hold as follows in respect of this aspect:

“It is important to explain the remit of the Ombudsman in relation to matters concerning the Legal Aid Board. Part II of Schedule 1 of the Ombudsman Act 1980 (as amended by Section 16 of the Ombudsman (Amendment) Act 2012) provides that the Ombudsman's jurisdiction in relation to the Legal Aid Board does not extend to: “the Legal Aid Board in so far as it relates to the provision of legal services (advice or representation) by solicitors of the Legal Aid Board or by private solicitors working under the auspices of the Legal Aid Board, to clients.”

This office has no role or remit regarding the Board's underlying allocation of resources in terms of providing applicants with a legal practitioner on foot of an approved legal aid certificate. The role of the Ombudsman in examining such complaints is confined to ensuring that, in making a decision concerning an application for legal aid, a complaint about its practitioner or indeed its service, the Board has dealt with the complainant in accordance with its procedures, policies, legislation and regulations. I should also add that in relation to the legal opinions reached by the solicitors and barristers during the assessment of your legal aid application, these are done so in their “professional” capacity and this office cannot instruct legal practitioners to make alternative findings concerning relevant governing legislation.”

43. The respondent gave her ultimate conclusion in the following terms:

“While I note your position primarily is that this matter concerns your family home (right of way access) and therefore obliges the Legal Aid Board to provide you for [sic] legal aid, it is clear that Counsel engaged for their legal opinion has advised the subject matter concerns a designated matter and therefore is not eligible for the grant of legal aid. This is a legal opinion and was conveyed in a professional capacity, taking the matter outside the scope of administrative function. As such the role of the Ombudsman is confined to examining the reasonableness of the Board's position rather than the merits of the particular opinion. I am of the opinion that the Legal Aid Board has provided our office with a comprehensive and reasonable explanation for its refusal of your legal aid application and it is not the role of the ombudsman to act as an advocate. After investigating your case, I have decided that I cannot uphold your complaint. I appreciate that you may be disappointed, but based on all the information available to me, I am not able to pursue the case with the Legal Aid Board. I will now be closing the file on your complaint.”

The court is satisfied that the respondent directed its mind to the relevant exception to the provision of legal aid contained in s. 28.9(c)(iii) of the 1995 Act. The respondent was entitled to reach the conclusion that it did under that heading.

44. In oral argument before this court, the applicant also submitted that as the dispute concerned his family home, he could rely on the more general exception provided for in s.28(9)(c)(i) in respect of proceedings under the Family Home Protection Act 1976. In very broad summary, that Act provides a right for a spouse to be notified of, and to consent to, any proposed sale or alienation of all or part of a property that constitutes their family home. That exception is confined to proceedings involving whether or not there was proper consent from each spouse to a purported alienation by one spouse of some or all of the family home.

45. It does not constitute a general exception to the rule against the grant of legal aid in disputes concerning land where civil proceedings involve rights over land that is a family home. Even if the court is wrong in that, the proceedings in this case do not involve rights in or over the applicant's family home, but concern an alleged right of way over a laneway adjoining his neighbour’s property. Thus, the court is satisfied that there is no substance in this ground of complaint that was raised by the applicant in his oral submissions.

46. For the reasons set out in this judgment, the court refuses leave for the applicant to proceed by way of judicial review against the decision of the respondent dated 7 April 2025.

47. It is proposed that the final order of the court should be to refuse leave to the applicant to proceed by way of judicial review against the respondent in respect of that

decision.

48. As this decision has been delivered electronically, the parties shall have two weeks within which to furnish brief written submissions of not more than 1000 words on the terms of the final order and on costs and on any other matters that may arise.

49. The matter will be listed for mention at 10.30 hours on 25 March 2026 for the purpose of making final orders.