Supreme Court dismisses appeal against Legal Aid Board's assignment of its own solicitor in civil negligence proceedings.

THE SUPREME COURT

Hardiman J. 79,102 and 152/08

Geoghegan J.

Finnegan J.

JUDICIAL REVIEW

Between:

DOLORES MANNION

Applicant/Appellant

and

THE LEGAL AID BOARD AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND

AND THE ATTORNEY GENERAL

Respondents

JUDGMENT of Mr. Justice Hardiman delivered the 26th day of February, 2010.

These proceedings have a long and tortuous history. In 1989 the applicant purchased an apartment in Tralee, Co. Kerry.

She instructed a firm of solicitors (Firm I) to act for her in that connection. She alleges that there were serious problems

relating to the apartment and to the management company. Accordingly she instructed another firm of solicitors (Firm II), to

commence proceedings against the vendor of the apartment and her former solicitors, Firm I. These proceedings were

instituted in 1994 but the applicant was unhappy about the manner in which Firm II dealt with these proceedings. She then

sought the services of the Legal Aid Board, the first respondent here. However, she came to believe that it acted negligently

in the matter and she sought the services of another firm of solicitors, Firm III. Proceedings were issued by that firm against

the Board and Firm II in March 2001. Shortly after the proceedings were commenced Firm III sought to come off record

for the applicant and were permitted to do so. In January of the following year another firm, Firm IV, came on record but

some years later that firm, too, sought to come off record and were eventually permitted to do so, apparently over the

applicant’s objections, by the High Court. This occurred in 2005. She then retained Firm V who later ceased to act for

undisclosed circumstances.

In 2005, the applicant contacted one of the “Law Centres” through which the Legal Aid Board makes its services available

for the purpose of providing legal services in relation to her action against the Legal Aid Board and Firm II. This action has

been adjourned by reason of the present proceedings.

In accordance with the ordinary procedures of the Legal Aid Board, an individual solicitor, Mr. de Feu of Tallaght Law

Centre was assigned to meet with the applicant and process her request for legal aid and her action if the Board decided to

grant legal aid. The applicant however felt that it was inappropriate for the Board to assign a solicitor employed by it (albeit

in a separate Law Centre to that she had previously dealt with) to her for the purpose of prosecuting her negligence action

against the Board and Firm II. She made this complaint frequently and in strong terms to the board commencing with a

letter of the 18th March, 2005. She eventually took these judicial review proceedings arising out of this point. She was

granted leave to seek judicial review by Mr. Justice Peart on the 23rd January, 2006. The relief she seeks are as follows:

(i) A declaration that in failing to assign a solicitor to interview the applicant to process her application for free

legal services, other than a solicitor employed by the first named Respondent, the first named Respondent was

acting contrary to the principles of constitutional justice and fair procedures, contrary to the provisions of the

Legal Aid Act 1995, and was acting contrary to the Applicant’s constitutional rights and rights enjoyed pursuant

to articles 13 and 14 of the European Convention on Human Rights and was acting contrary to its statutory duty.

(ii) An order by way of certiorari of the decision of the Respondent on 19th May, 2005 which was conveyed to

the Applicant by way of letter of 26th May, 2005.

(iii) An order of mandamus directing the first named respondent to forthwith assign to the Applicant a solicitor

other than one employed by the first named respondent for the purposes of processing her application for free

legal services.

(iv) A declaration that in so processing the Applicant’s application for free legal services as referred in the

proceedings herein, the first named Respondent is not entitled to any information on the legal proceedings giving

rise to the application for free legal services from the solicitor so assigned to deal with the application referred to

in the preceding paragraph herein.

(v) Further or in the alternative, a declaration that sections 24, 25, 26, 28 and 32(2) of the Civil Legal Aid Act,

1995 would, if applied in these proceedings, to the application made by the applicant herein, constitute a breach

of her rights under the Constitution and under the European Convention on Human Rights.

(vi) A declaration that the first named Respondent in these proceedings has, in dealing with the Applicant and her

application for free legal services, failed to perform its functions in a manner compatible with the State’s

obligations pursuant to the European Convention on Human Rights, contrary to the provisions of s.3(1) of the

European Convention on Human Rights Act, 2003.

(vii) An order of certiorari of the memorandum dated 3rd November, 2005 issued by the first named

Respondent, and signed F.J. Brady Director of Legal Aid, entitled “note re provision of legal aid in cases where

the Board is considering applications for legal aid to take proceedings against the Board”.

(viii) A declaration that the Civil Legal Aid Act, 1995 fails to satisfy the constitutional obligations of the second

and third named Respondents in relation to the provisions of free legal aid for civil cases and is in breach of the

State’s obligations pursuant to article 6 of the European Convention on Human Rights as applied in this

jurisdiction by virtue of the European Convention on Human Rights Act, 2003.

(ix) If necessary, a declaration that the Civil Legal Aid Act, 1995 is incompatible with the European Convention

on Human Rights.

(x) Alternatively, or in the alternative, an order of mandamus directing the second and third named Respondents

to grant free legal aid and advice for the purposes of further processing the proceedings “The High Court,

Record Number 2001/3145 P, between Dolores Mannion, plaintiff and Padraic Brennan and Padraic Colm

Ferry, practising under the style and title of Ferrys and the Legal Aid Board”.

(xi) Damages for breach of the Applicant’s right to fair procedures, breach of statutory duty, negligence by the

first named Respondent in or about the exercise of its statutory powers, functions and duties and breach of the

Applicant’s right enjoyed under the European Convention on Human Rights.

(xii) If necessary, an order extending the time within which this application can be made.

(xiii) Such further or other relief as to the court may seem fit.

(xiv) Costs.

The applicant’s application for judicial review was dismissed by the High Court (McGovern J.), on the 7th December, 2007.

It is against that judgment and order that the present appeal was taken.

A preliminary matter arising on the appeal.

The applicant has lodged voluminous books of documents, purportedly in relation to her appeal. Some of these documents

were provided very late (indeed the first respondent complained that it had got a significant book of documents only the day

before the hearing). Much of this great volume of documents is of no relevance, or very dubious relevance, to the appeal in

the judicial review proceedings. However, one of the books of documents (that delivered late to the respondents and the

court) included a letter written, to a third party quite unconnected to the proceedings, by the applicant in 2008. In the course

of this letter the applicant alleged that some considerable time ago, apparently in the year 1998, she had contacted a member

of the court, who was then a barrister in private practice, and had several conversations with him as a result of which she

had taken a certain step in relation to a particular stage of her action about the purchase of the Kerry apartment.

Before the hearing of this appeal commenced, the Court, sitting in open court, drew the attention of the parties to this

reference in the papers, which could easily have escaped attention, and invited the parties to consider their position. The

member of the Court in question (Hardiman J.) had no recollection whatever of the conversations said to have occurred

twelve years ago. However, the parties were given the option to express the view that it would be better if the appeal

proceeded without the involvement of Hardiman J. It was emphasised that that would cause no difficulty, and certainly no

annoyance; it would however involve a short the adjournment of the proceedings since no other judge would be available to

take the matter up at such short notice. It was emphasised to all parties that if it were decided to permit the hearing to

continue in the knowledge of the matter to which the Court had drawn attention, it would very likely be impossible to object

later on, after the hearing had taken place or after the decision had been made. The Court then rose to permit the parties

including the applicant, to consider their position. A short time later it was intimated by all parties that they had no objection

to a hearing proceeding with the Court as then constituted hearing the matter. This narrative is included in this judgment for

record purposes.

The applicant’s case.

In the High Court, the applicant was represented by Firm V and Counsel instructed by it. Even though (as Mrs. Mannion

consistently emphasised) the proceedings were in part against the Legal Aid Board, Firm V instructed on her behalf Counsel

of considerable eminence, Mr. Pierce Sreenan B.L. in whom, in the course of the hearing, she expressed confidence and a

great desire to retain, and Mr. Hugh Mohan S.C., a former chairman of the Bar Council. Both of these gentlemen are major

practitioners, enjoying excellent practices in the ordinary commercial market for legal services. However, for whatever

reason, Mrs. Mannion decided to prepare and conduct the appeal by herself. She did so with eloquence and no little passion,

complaining of her allegedly “abysmal treatment” at the hands of the Legal Aid Board. It appears that, in terms of legal

submissions, the applicant’s case on the hearing of this appeal was little, if at all, different from that urged on her behalf in

the High Court. In terms of fact, however, she strongly asserted a matter which had arisen only rather obliquely, if at all, in

the High Court: she insisted that the solicitor to whom she was assigned, Mr. de Feu, had told her that he could not act in

the matter; that he had a conflict of interests; that he knew some of the solicitors involved. Mrs. Mannion on the hearing of

this appeal agreed that she had not attributed these words, or the sentiments they expressed, to Mr. de Feu in her affidavit

sworn for the purpose of seeking judicial review. She said, however, that this was because she had been told that Mr. de

Feu was friendly with her junior counsel who had advised a previous solicitor (Firm V), whom she had employed on the

private market, that he would not be involved in proceedings adverse to Mr. de Feu. It was of course quite proper for

counsel to draw the attention of a client or potential client to any personal relationship of that sort so that she could, if she

wished, retain other counsel.

The grounds upon which Mrs. Mannion was granted leave to apply for judicial review are the following:

(1) (i) The Board failed to establish and/or maintain a Solicitor’s panel containing a list of names of Solicitors who were

willing to provide legal aid and advice.

(ii) In the absence of such an independent panel of Solicitors, the Board failed to engage pursuant to a contract

for service, an independent Solicitor to provide services to the Applicant pursuant to the provisions of Section

11(7) of the Civil Legal Aid Act, 1995.

(iii) Failed to assign a Solicitor not in the employment of the Board, to deal with the Applicant’s circumstances

and her application for free legal services in view of the wide powers of the Board set out in Section 8 of the

Civil Legal Aid Act, 1995.

(iv) Failed to put in place a system whereby an application for free legal services could be processed by a

Solicitor not in the employment of the Board pursuant to a system whereby neither the Board nor any of its

employees would at any stage every (sic) have access to or be provided with, or entitled to be provided with

information confidential to the Plaintiff and/or the independent Solicitor so assigned.

(v) Failed to ensure that the legal aid scheme established by virtue of the Civil Legal Aid Act, 1995 was

administered fairly and in accordance with constitutional justice and failed to ensure that it exercised its functions

pursuant to the 1995 act in a manner compatible with the Applicant’s rights which she enjoys under the

European Convention on Human Rights (hereinafter referred to as “Convention rights”)

(vi) Failed to retain an alternative Solicitor to act on the Applicant’s behalf, not in the employment of the Board,

pursuant to the provisions of Sections 8, 11, 31(3) and 31(6) of the Civil Legal Aid Act, 1995.

(vii) Breached the fundamental principle of natural and constitutional justice namely nemo iudex in sua causa.

(viii) Breached the Applicant’s Convention rights enshrined in Articles 6, 13 and 14 of the European Convention

on Human Rights.

(2) The second and third named Respondents purported to satisfy the State’s obligation pursuant to Article 6 of the

Convention by the Civil Legal Aid Act, 1995. That legislation is flawed in circumstances such as arise in the Applicant’s

position. The manner in which the act is constructed and implemented gives rise to a breach of the Applicant’s constitutional

rights (to fair procedures) and Convention rights. Should this Honourable Court determine that the Board cannot address the

Applicant’s application for free legal services in a manner which complies with the principles of constitutional justice and

satisfies the Applicant’s Convention rights, then the Civil Legal Aid Act, 1995 is incompatible with the provisions of the

European Convention on Human Rights and the Applicant in those circumstances should it arise seeks a Declaration of

incompatibility in accordance with the European Convention on Human Rights Act, 2003.

Decision.

After considering this case and the submissions made, on both sides and also by the State parties, who were represented by

Mr. Declan Doyle S.C., the Court finds itself in complete and precise agreement with the judgment of the learned trial

judge, Mr. Justice McGovern. It would be otiose to repeat the same material. The Court will therefore observe only that we

will dismiss the appeal and affirm the order of the learned trial judge for precisely the reasons he gives.

It is of course an unusual situation in which a public body such as the Legal Aid Board is making legal services available to

sue itself and another defendant. The body has, however, a good deal of experience of acting for both parties in Civil

(usually matrimonial) proceedings where both parties are impecunious and so require its services. It has, by statute and

otherwise, procedures in place to deal with that situation. Of course, one would have to agree that acting for both parties to

a freestanding dispute, not involving the Board itself, is not the same as acting against ones own organisation. Nevertheless it

is in the nature of the Board’s constitution and the services that it provides that it might be asked to do so. It has put a

specific set of guidelines, set out in the judgment of the learned trial judge, in place to deal with precisely this situation. We

fully agree, in particular, with the finding of the learned trial judge set out at page 21 of its judgment:

“In view of the statutory and procedural safeguards which are in place I do not consider that there is

any failure on the part of the respondents to meet the requirements of natural or constitutional justice

nor do I believe that the principle of nemo iudex in causa sua has been breached”.

The Legal Aid Board is a creature of statute: it makes its services available in accordance with its statutory constitution and

not otherwise. We are satisfied that this involves, in the circumstances now obtaining, that it makes its services available

through ‘a solicitor of the Board’ and not otherwise. There is no panel of private solicitors relied upon by the Board to

conduct litigation in the High Court, and there is no statutory requirement that there should be such a panel: it is a matter for

the Board’s discretion. There are procedures for the applicant to ask the Board to supply her with another solicitor in lieu of

the practitioner first assigned to deal with her. She has not done this and (it appears to the court) wisely so. From the

correspondence we have seen it is clear that Mr. de Feu has doughtily fought the applicant’s case and represented her

interests even internally, to his own superiors and board members. He has been acutely, perhaps even overly, conscious of

the need to withhold information emanating from her, and counsel’s advices obtained in relation to her case, from the Board

and its officials. He has indeed declined to read such advices himself without her explicit permission, by reason of his status

as an employee of the Board.

The applicant did not proceed in this Court, or apparently in the High Court, to urge the unconstitutionality of the statute or

of any part of it. This indeed is raised only ambiguously, if at all, in the pleadings. Accordingly the Court, like the High

Court, did not consider this aspect and would not in fact have been properly constituted to do so. The applicant’s case was,

rather, that the Board itself had failed to fulfil its constitutional duties.

In the course of discussion with Mr. Doyle S.C. the latter agreed that no analogy could be drawn between the structures

whereby civil legal aid is made available pursuant to statute and those applicable to criminal legal aid. It must be obvious that

the circumstances in which criminal legal aid is available, and where the State is always the party adverse to the individual

citizens seeking legal aid, are quite distinct from those of civil proceedings and in particular may require a much more

unfettered choice of advocate and adviser.

I would dismiss the appeal and affirm the order of the learned High Court Judge.