Applications for legal aid to take proceedings against the Board
On occasions law centres receive applications for legal services where the intended defendant (or one of the co-defendants) will be the Legal Aid Board itself. This most often (but not exclusively) takes the form of a judicial review of a decision of the Board, or an action in professional negligence.
The Board has developed a system whereby:
- Applications for legal aid to take proceedings against the Board are dealt with through Head Office, Cahirciveen, by the Director of Decision Making and Support.
- Defence of actions against the Board are the responsibility of the Director of Civil Legal Aid who is based in Dublin.
Any person may approach a law centre and apply for legal services to take legal proceedings against the Board. The law centre will consider the application as usual and then forward it to the Director of Decision Making and Support. Once received in Head Office, the file is clearly marked as one to be handled on a restricted circulation basis. EOS, the Board’s case management system, has been designed to facilitate the restriction of a case to specified staff. The Director of Decision Making and Support, in consultation with the managing solicitor, or solicitor who has conduct of the case, will restrict the case to specified staff in Head Office and the law centre.
The Director of Decision Making and Support (or staff in Legal Services under the supervision of the Director) will consider the application. Having regard to the material supplied by the applicant’s solicitor and in the absence of the application being clearly spurious or vexatious, a decision is usually taken to approve the engaging of a barrister to consider the matter. The application is progressed in the normal manner, subject to a liberal interpretation of the merits criteria in the Act. The purpose of this approach is to ensure that the Board gives every opportunity to an applicant who has to rely on it for legal services, particularly where it relates to potential proceedings against the Board.
In order to further develop this approach, to respond to concerns about the provision of opinions from barristers to Head Office and to deal with what is an exceptional set of circumstances, the following approach is to be adopted:-
- the applicant’s solicitor should obtain from the barrister an opinion on the likelihood of obtaining leave from the High Court to issue judicial review proceedings if that is the remedy being sought;
- assuming that the response to the issue of leave is favourable, the barrister should express an opinion on the prospects of an applicant being successful in the actual judicial review proceedings, including, in particular, an indication of the likelihood of success; for example, applicant has a better than 50-50 chance of succeeding in the proceedings;
- if the matter is a professional negligence matter the barrister should express an opinion on the prospects of the applicant being successful; for example, applicant has a better than 50-50 chance of succeeding in the proceedings;
- the applicant’s solicitor should then prepare a formal application for a legal aid certificate, in accordance with standard practice, and express an opinion on the granting of legal aid with specific reference to the provisions of section 24(a) and (b) of the Act and also having regard to section 28(2)(c) of the Act;
the application should be submitted to the managing solicitor of the law centre (this will not be relevant if it
- is the managing solicitor who has conduct of the matter);
- the managing solicitor should review all the papers, in particular the opinion from the barrister and the opinion of the applicant’s solicitor; and
- the managing solicitor should then form his/her own professional opinion on the application and forward that opinion with the application to Head Office.
- If the managing solicitor expresses an opinion that legal aid should be granted with specific reference to the provisions of Section 24 of the Act, a legal aid certificate should be issued for the appropriate proceedings.
It is to be noted, however, that the procedures set out above were predicated on the basis that a solicitor/barrister would form an opinion that legal aid should be granted. Circumstances arise where a solicitor or barrister, as appropriate, might form an opinion that legal aid should not be granted.
The following approach is to be adopted in circumstances where an applicant’s solicitor forms an opinion that a certificate should not be granted having regard to the provisions of the Civil Legal Aid Act 1995:-
- the solicitor should have regard to the safeguards set out above and the “liberal interpretation of the merits criteria” as referred to above;
- it is open to the solicitor to form an opinion that the application for legal aid is one for which legal aid would not be granted, having regard to the merits criteria in the Act;
- nevertheless and notwithstanding that opinion, the solicitor may obtain, at his/her discretion, an opinion from a barrister before communicating formally with the applicant;
The solicitor should write to the applicant:
- setting out the facts and the appropriate legal advice;
- advise the applicant that he/she is not in a position to recommend the grant of a legal aid certificate;
- state the reasons why the solicitor is not in a position to recommend the grant of legal aid, having regard to particular sections of the Act;
- invite the applicant to submit any observations either to the solicitor or to the Managing Solicitor;
- consider any observations received, and
- arrive at a final opinion on the refusal of the application for a legal aid certificate; and
- if the solicitor remains of the opinion that legal aid should be refused, a formal application should be prepared, in accordance with standard practice.
The application should be submitted to the managing solicitor of the law centre (unless it is the managing solicitor who is acting for the applicant):
- the managing solicitor should review all of the papers and in particular any opinion from a barrister and the opinion of the applicant’s solicitor
- the Managing Solicitor should then form his / her own professional opinion on the application and forward that opinion, with the application, to Head Office;
- in the event that the application is refused the applicant should be notified of the refusal and the reasons for the refusal in accordance with standard practice;
- however, the applicant should be given the specific option of authorising the provision of additional material to Legal Services for the purpose of a review of such a negative decision and should also be advised that specific arrangements will be in place to ensure that access to any material provided is strictly controlled;
- subject to any review, an applicant has the same right of appeal as in any other case, and may provide such additional information to an appeal committee as the applicant considers appropriate; and
the appeal committee will make a decision on the application and the applicant will be advised of the decision.
Nothing in the foregoing precludes an applicant, who has been fully informed as to the specific arrangements that are in place for dealing with these applications, from providing any information about the case direct to Head Office at any time while the application is under consideration.