The Irish Court of Appeal has concluded that the Civil Legal Aid Act 1995 allows the provision of legal aid and advice only to individuals and not to bodies corporate in the appeal of environmental organisation, Friends of the Irish Environment (FIE).
The Court of Appeal held that the EU Charter of Fundamental Rights did not give the applicant an entitlement to legal aid, however, it was arguable that a complete prohibition on the provision of legal aid for bodies corporate for EU law issues might breach the Charter.
Case Background
The applicant is a company that has engaged in litigation promoting and protecting the Irish environment for over 20 years. In 2018, FIE applied to the Legal Aid Board for civil legal aid in proceedings which challenged the Government’s National Planning Framework and National Development Plan (the NDP case).
The Legal Aid Board refused to provide legal aid to FIE on the basis that it was a company and that the Interpretation Act 2005 (‘the 2005 Act’) limited the provision of civil legal aid to natural persons. FIE contended that there was no express limitation on the provision of legal aid for legal persons, noting that section 18(c) of the Interpretation Act 2005 included bodies corporate in the definition of “person”.
The Court of Appeal (CoA)
Mr Justice Murray in the Court of Appeal (the Court) stated that there were several key issues which arose out of the appeal.
First, the Court dealt with the proper test to determine whether a presumption that a provision applied to a legal person. The High Court had considered whether “a contrary intention appears” in the 1995 Act to displace the presumption that a provision applied to a legal person.
The Court held that the “contrary intention” test was the correct approach to the question. However, the Court framed the inquiry by reference to the “substance and tenor” of the Act as a whole and whether this was inconsistent with the word “person.”
In considering the context of the 1995 Act, the Court noted that there were difficulties with including bodies corporate within the scheme of legal aid. For example, there were certain types of litigation which companies would primarily engage in (such as Companies Act matters) but there was no mention of these types of applications within the Act.
When reading the provisions of the 1995 Act, it was clear to the Court that all conditions for eligibility to the legal aid scheme used language ordinarily associated with individuals rather than legal persons. Further, there was nothing in the Act which suggested that the Oireachtas had given any consideration to the factors affecting a corporate litigant.
Having regard to these factors, there was no doubt that the 1995 Act was only intended to apply to individual natural persons rather than legal persons.
Secondly, turning to consider Article 47 of the EU Charter and the Aarhus Convention, the Court held that it was arguable that there was an entitlement to legal aid for bodies corporate in certain cases involving EU law (see Case C-279/09 DEB Deutsche Energiehandels-und-BeratungsgesellschaftmbH v. Bundesrepublik Deutschland).
However, it could be said that the Irish legal system did not interfere with the core right of access to court for bodies corporate, the Court held. This was particularly so having regard to the wide exemption from adverse costs orders and the long tradition of lawyers engaging in “no foal, no fee” work. Further, the EU Charter was focused on individual rights and did not concern litigation involving public interest.
Similarly, the Aarhus Convention did not assist the applicant. The claim that there was an obligation on the State to provide direct financial assistance to FIE was not strong, especially where the requirement for “not prohibitively expensive” costs was “far from obvious” when placed in context. When given the opportunity, the CJEU did not outline a positive obligation to provide such aid (see Case C-260/11 Edwards and ors v. Environment Agency and ors ECLI).
There was also an evidential problem for FIE as it had never suggested that it had difficulty instructing lawyers in the NDP case, so it was very hard to see how the Aarhus provisions could apply to require legal aid.
The Court also held that FIE was asking the Court to amend the 1995 Act by inserting the definition of legal person into the provisions. The Court stated that this created a significant distortion of the legislative scheme.
The Court therefore found against the applicant in its’appeal on the grounds that FIE was a corporate body and was for that reason precluded from the legal aid scheme.
The Court acknowledged that complete exclusion of legal persons from obtaining legal aid in EU law cases may violate the Charter. It was uncertain how this argument would apply to the current case and noted that the parties did not provide extensive submissions regarding a reference to the CJEU. The Court therefore provided FIE with a chance to consider submitting arguments on the question of making a reference.
Click here to read the full judgment in Friends of the Irish Environment CLG v. The Legal Aid Board [2023] IECA 19
Click here for a previous PILA Bulletin article on the High Court case.