Neutral Citation no. (1999) 1906

Ref:    

KERC2781

 

 

 

Judgment: approved by the Court for handing down

Delivered:

16/03/99

(subject to editorial corrections)

 

 

 

                 IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

 

                                 QUEEN'S BENCH DIVISION (CROWN SIDE)

 

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                IN THE MATTER OF AN APPLICATION BY SHARON LAVERY

                                                     FOR JUDICIAL REVIEW

 

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KERR J

Introduction

            This is an application by Sharon Lavery for judicial review of various decisions of the Legal Aid department of the Law Society in relation to her entitlement to legal aid for legal representation at an inquest into the death of her husband, Paul Lavery.

Background

            On 24 September 1997 the applicant's solicitors applied to the Legal Aid department for legal aid to represent the applicant at the inquest.  The department replied on the same date, informing the solicitors that legal aid was "not available" for representation in such proceedings, citing Schedule 1 to the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981.  This lists the proceedings for which legal aid may be allowed.  Paragraph 5 of Schedule 1 includes proceedings before a coroner but Article 1(3) of the Order provides that paragraph 5 shall come into operation on such day as the Secretary of State shall by Order appoint.  No such Order has been made.  Since 1982 the power to make the relevant Order has vested in the Secretary of State by virtue of the Legal Aid, Transfer of Functions (Legal Aid and Maintenance Orders) 1982 [SI 1982/59].  The letter of 24 September invited the applicant's solicitors to confirm that they wished to have legal aid to hold a watching brief at the inquest.  The applicant's solicitors must have confirmed that they wished to have that limited legal aid for, on 25 September 1997, the department wrote to them enclosing a legal aid certificate for the prosecution of the applicant's claim against the Department of the Environment in respect of her husband's death; this certificate was limited in operation to the attendance of the solicitors at the coroner's court to hold a watching brief.

            Also on 25 September 1997 the applicant's solicitors applied to the department for legal aid to pursue an application for leave to apply for judicial review of the Lord Chancellor's decision not to bring into operation paragraph 5 of Schedule 1 to the 1981 Order.  This was refused by an officer of the Legal Aid department on 26 September 1997.  An appeal against that refusal and the refusal of legal aid for representation at the inquest was lodged immediately and it was heard and determined by the legal aid committee the same day.  The committee confirmed the refusal of legal aid.  On 29 September 1997 the applicant's solicitors wrote to the Legal Aid department informing them that they were considering an application for leave to apply for judicial review of the committee's decision and asking for detailed reasons for the committee's refusal of legal aid.  The department replied on 30 September stating that the applicant "had not disclosed reasonable grounds for taking the proposed proceedings".

            When the application was made to the department on 25 September 1997 the applicant's solicitors had submitted the following documents:-

            (i)        an opinion from Mr Treacey of counsel advising that it was necessary that the applicant be represented at the coroner's court and that a watching brief would not be sufficient

            (ii)       a draft Order 53 statement seeking an order of mandamus to compel the Secretary of State to bring into operation paragraph 5 of Schedule 1 to the 1981 Order, together with draft affidavits in support of the application.

The following documents were provided for the hearing of the appeal by the legal aid committee on 26 September 1997:-

            (i)        a further opinion from Mr Treacy.  This advised that, while legal aid may not generally be available for coroners' inquests, there was nothing in Article 10(3) of the 1981 Order which precluded it, if representation at the inquest could be regarded as a `step preliminary or incidental' to High Court proceedings

            (ii)       a further draft Order 53 statement which, as well as seeking an order of mandamus similar to that sought in the draft submitted on 25 September, sought an order of certiorari quashing the decision of the department that legal aid was not available for inquests.  A draft affidavit supporting the application was also enclosed.

It appears that Mr Treacy had written another opinion dated 25 September 1997.  This dealt with the failure of the Secretary of State to bring into force paragraph 5 of Schedule 1 to the 1981 Order.  This was not enclosed with the application for legal aid to pursue the application for judicial review of the Lord Chancellor's failure to exercise his powers under Article 1(3).  In fact, the department first became aware of it when it was produced for these proceedings.

            The reasons for the refusal of legal aid by the committee were stated, in an affidavit of George Andrew Carnson, the acting chairman of the committee, to be that legal aid for representation at an inquest was not available; it was therefore inappropriate to grant legal aid to challenge the Lord Chancellor's failure to bring into effect paragraph 5 of Schedule 1.  By the same token, it was not appropriate to grant legal aid for representation at the inquest.

            An application for leave to apply for judicial review of the decisions of the department refusing legal aid was made on 19 November 1997; it was granted in the same date.  An application for legal aid to pursue the application for judicial review was then made on 16 December 1997.  This was not in proper form.  A properly formulated application was received by the department on 16 January 1998.  It was granted on 20 January 1998.

The judicial review application

            By her amended Order 53 application the applicant seeks judicial review of four decisions of the department viz (i) the decision that legal aid was not available for legal representation at inquests (ii) the refusal of legal aid to pursue the application for leave to apply for judicial review of the Lord Chancellor's failure to bring into operation paragraph 5 of Schedule 1 to the 1981 Order (iii) the refusal to grant legal aid to pursue an application for judicial review of the department's decision that legal aid was not available for inquests and (iv) the failure to process the application of 16 December 1997 promptly.

The alleged failure of the Department to deal promptly with the application of 16 December 1997

            I propose to deal with this argument first because it can be disposed of briefly.  I am satisfied that the department was justified in concluding that the application had not been made in proper form before 16 January 1998.  Thereafter the matter was dealt with expeditiously.  I do not consider that the department can be faulted for the manner in which it dealt with this application.

The refusal of legal aid to apply for leave to challenge the Lord Chancellor's failure to bring into operation paragraph 5 of Schedule 1 to the 1981 Order

            As I have already said, the material available to the department and the committee from the applicant's solicitors was confined to two opinions from counsel and the draft Order 53 proceedings.  Neither opinion addressed the question of whether the Lord Chancellor was under a duty to bring paragraph 5 of Schedule 1 into operation.  Indeed both were on entirely different themes ie the need of the applicant to be represented at the inquest and the scope of Article 10(3) of the 1981 Order.  The first draft of the Order 53 statement referred to the clear intention of Parliament that legal aid should be made available at inquests and suggested that the Secretary of State (in fact, as pointed out earlier, this should have been the Lord Chancellor) had frustrated the will of Parliament in failing to activate paragraph 5.  It also referred to Article 2 of the European Convention on Human Rights and Fundamental Freedoms which, it was suggested, in combination with Article 1 required that there be "some form of effective official investigation when individuals have died".  The second set of draft proceedings included the former of these grounds but omitted the latter.

            On the hearing of this application counsel for the applicant frankly acknowledged that the issue for the court was whether, on the material before them, the Legal Aid authorities had acted reasonably in refusing the application for legal aid.  In other words, unless it could be shown that the officer of the Society and the committee had acted unreasonably in the Wednesbury sense, their decisions could not be challenged.  I am not prepared to hold that decisions of the officer and the committee were irrational.  On the limited information available to them, it was within their margin of discretion to conclude that the applicant had not disclosed reasonable grounds for taking the proposed proceedings.

Is legal aid available for representation at inquests?

            Counsel for the applicant, in advancing the argument that legal aid was available for representation at inquests relied principally on Article 10(3) of the 1981 Order.  This provides:-

                        "Legal aid shall consist of representation, on terms provided for by this Part, by a solicitor and so far as necessary by counsel, including all such assistance as is usually given by a solicitor or counsel in -

 

                        (a)        the steps preliminary or incidental to any proceedings; or

 

                        (b)       in arriving at or giving effect to a compromise to avoid or bring to an end any proceedings."

                       

It was suggested that attendance at and representation of the next of kin at an inquest can, in appropriate cases, be properly regarded as a step preliminary to or incidental to proceedings.

            I do not consider that it is appropriate to construe Article 10(3) in isolation from the other provisions of the 1981 Order.  Clearly Parliament intended that legal aid for representation at inquests should be available but only when this was deemed suitable by the Secretary of State (and, latterly, the Lord Chancellor).  It would be anomalous if the Legal Aid authorities were allowed to grant legal aid before this was considered appropriate by the minister who had been given the duty to decide when it should become available for such proceedings.  The scheme of the legislation is such, in my opinion, that legal aid for representation at inquests cannot be granted until paragraph 5 of Schedule 1 has been activated.  I do not consider, therefore, that the authorities can be criticised for having refused legal aid for representation at the inquest.  Equally, their decision to refuse legal aid for a judicial review challenge to that decision cannot be faulted.  The application is therefore dismissed.


                 IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

 

                                 QUEEN'S BENCH DIVISION (CROWN SIDE)

 

                                                                    ------------

 

                IN THE MATTER OF AN APPLICATION BY SHARON LAVERY

                                                     FOR JUDICIAL REVIEW

 

                                                                    ------------

 

                                                                JUDGMENT

 

                                                                         OF

 

                                                                     KERR J

 

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