Obligations when making a recommendation
A solicitor must give a recommendation in every case that a full statement of facts is required. The starting point of any recommendation should be an analysis of the merits criteria in section 24 and 28 to the case. You must make explicit reference to the particular provisions in the Act upon which you are basing your recommendation.
A recommendation either way based on unsound legal reasoning can have adverse consequences for the applicant. Clearly, an unsound recommendation to refuse may result in a citizen not having his/her rights vindicated. On the other hand, a recommendation to grant can result in applicants becoming involved in litigation with no prospect of success or likely benefit, and awards of costs made against them. In such cases the applicant will take no comfort from the inevitability of failure and it is possible that they may seek to hold the Board responsible in the event their action is thrown out.
The solicitor, as an employee of the Board, a lawyer and an officer of the Court in recommending a grant or refusal is expected to provide an independent and dispassionate assessment of the case.