On 10 May, the High Court ruled that an applicant could apply for judicial review of a decision to terminate a legal aid certificate.
In 1988 a company controlled by the applicant and his parents was damaged by a fire. The applicant claimed compensation under the Malicious Injuries Act 1981, but the High Court refused the application because the fire was not caused by a third party. The Court came to this conclusion based on testimony by the local authority’s expert witness. The applicant now alleges that the 1988 judgment was obtained due to the fraud and perjury of the expert witness and that the testimony implied that the fire was started by the applicant and his father.
In 2019, the applicant sought a legal aid certificate in order to initiate proceedings to have the 1988 judgement set aside. The Legal aid board was advised that the applicant would face “substantial legal obstacles” if he proceeded so the legal aid certificate was denied. The applicant then applied to the Legal Aid Board’s Appeals Committee. In early May of 2021, the Appeals Committee granted the certificate and did not explain as to why. In January 2022, the applicant’s solicitor gave notice that he would be unable to sign off on the applicant’s proposed proceedings due to the Code of Conduct of the Bar which states that, a “barrister shall not settle a pleading claiming fraud without express instructions and without having satisfied himself or herself that there is or will be available at the trial of the action evidence to support such a claim”. The applicant then proceeded to correspond with the Legal Aid Board, but the certificate was revoked in April of 2023. The revocation noted the concern that the applicant may not be able to meet the legal threshold for fraud and thus it would be contrary to the Civil Legal Aid Act 1995, which requires that there be a reasonable prospect of success.
The applicant appealed the revocation to the Appeals Committee, but in May 2023 they denied his appeal stating, “The Committee has upheld the decision to terminate the legal aid certificate on the same grounds and for the same reasons as the Executive”. The applicant then sought judicial review on the grounds that adequate reasons were not provided, that the legal standard required to terminate a certificate was not applied, and that requirements under section 28(5)(a) of the Civil Legal Aid Act 1995 were not met.
In deciding whether to grant the application, High Court Justice Simons looked at the specific circumstance which led to the termination of the certificate. He concluded that there had been no material change beyond the solicitor declining to sign the applicant’s certificate. However, the judge pointed out that this alone was not sufficient to justify a revocation because there were other potential remedies beyond the fraud aspect and the Appeals committee had offered no explanation as to why these other remedies were not sufficiently likely to succeed. In his application, the applicant contended that the only reason that a certificate could be revoked was if the intended proceedings were “manifestly unfounded” or “manifestly inadmissible”. Simons J disagreed with this assertion, stating that an ordinary reading of the Civil Legal Aid Act 1995 indicates the same legal test applies to both the granting and revoking of certificates.
Judicial Review was ultimately granted by the High Court due to the “unusual features identified” and the inconsistency between the two Appeals Committee decisions.
Click here for the judgement in Prendergast v Legal Aid Board [2024] IEHC 265