High Court of Ireland Decisions

THE HIGH COURT

JUDICIAL REVIEW

2023 943 JR

[2025] IEHC 257

BETWEEN

CHRISTOPHER PRENDERGAST

APPLICANT

AND

THE LEGAL AID BOARD

RESPONDENT

JUDGMENT of Ms. Justice Mary Rose Gearty delivered on the 29^th of April, 2025

 Introduction and Issues

1. In January of 1986, a knitwear factory in Carlow was virtually destroyed by fire. The corporate owner, W.J. Prendergast & Son (the "Company"), unsuccessfully sought compensation pursuant to the Malicious Injuries Act of 1981, in a case against the local Council, which concluded in 1988. The Company was unable to prove that a malicious intruder caused the fire and the Applicant submits that a necessary inference arising from the judgment was that he was responsible for the fire. Over thirty years later, the Applicant applied for legal aid to challenge this finding. He asks this Court to set aside a decision of the Legal Aid Board to terminate a previously granted legal aid certificate. He characterises the 1988 case as a criminal trial in which his right to fair procedures was infringed, submitting that he is entitled to legal aid because of the subject matter of the case, namely, that it was the equivalent of a trial for the crime of arson.

2. In the intervening years, the Company initiated litigation to challenge the court findings in respect of the cause of the fire, but this Applicant was not a party to those cases, although he seeks to rely on the same experts in this application. In 2005, in separate litigation, the Applicant succeeded in the Supreme Court in establishing that he and his father were not identical with the Company and there was no issue estoppel between the parties requiring that the Prendergasts be held liable as concurrent wrongdoers with the Council. This was in an action taken by the Council for a contribution from the Applicant and his father, in person, after a neighbour successfully sued the Council for compensation due to the damage caused to his property by the same fire.

3. In 2019, the Applicant sought legal aid and the Legal Aid Board initially refused, then allowed him a certificate to enable him to challenge the 1988 decision.  Finally, after he consulted with counsel who had furnished an opinion on the case, the Respondent Board terminated the certificate. The Applicant appealed that decision and the appeal was unsuccessful. The Applicant asks this Court to quash the finding on appeal and remit the question of legal aid to the Respondent Board for reconsideration. He claims that the decision was inadequately reasoned, that his constitutional rights and his rights under the European Convention on Human Rights and the Charter of Fundamental Rights have been infringed, and that the relevant domestic legislation requires that he be given the benefit of legal aid. He argues that the Board could not revoke the certificate unless his case was manifestly unfounded and that he must be granted legal aid as it is required by an international instrument.

The Civil Legal Aid Act

4. The Civil Legal Aid Board was set up to provide legal aid to those who are unable to afford representation in civil litigation. The relevant legislation, as amended, is the Civil Legal Aid Act of 1995 (the "1995 Act"), s. 24 of which provides as follows:

"Without prejudice to the other provisions of this Act a person shall not be granted legal aid or advice unless, in the opinion of the Board—

(a)   a reasonably prudent person, whose means were such that the cost of seeking such services at his or her own expense, while representing a financial obstacle to him or her would not be such as to impose undue hardship upon him or her, would be likely to seek such services in such circumstances at his or her own expense, and

(b)   a solicitor or barrister acting reasonably would be likely to advise him or her to obtain such services at his or her own expense."

5. Legal aid is defined as representation by a solicitor or barrister in civil proceedings and s.28(2) provides that an applicant must have some prospect of success in his case. This expressly provides that a person shall be granted legal aid if, in the opinion of the Board, he has reasonable grounds for instituting or defending the proceedings; or he is reasonably likely to be successful, assuming that the facts put forward by him are approved before the court concerned; or having regard to all the circumstances of the case including probable cost, it is reasonable to grant it.

6. The Legal Aid Board may revoke a legal aid certificate under s. 28(7) where it considers that it is no longer reasonable for the person to continue to receive legal aid. This is the provision relied upon by the Respondent herein.

7. Regulation 9(3) S.I. No. 273/1996, of the Civil Legal Aid Regulations 1996 made under the 1995 Act, reads as follows:

"... the Board may at any time terminate a certificate from such date as it considers appropriate when satisfied that this is justified and in particular may do so -

(e) where it considers that the legally aided person is behaving unreasonably in connection with the conduct of the proceedings or that it is unreasonable in the particular circumstances of the case (including the cost of the proceedings) that that person should continue to receive legal aid..."

8. The Board must notify a litigant of the intention to revoke or terminate the certificate once granted and must allow the litigant to show cause in writing why the revocation should not proceed (Regulation 9 of the Civil Legal Aid Regulations, 1996).

9. As set out by Phelan J. in B.A. v. Legal Aid Board [2023] IEHC 569 (at para. 32) the Board may refuse legal aid where there are no reasonable grounds for maintaining or defending the proceedings and its opinion on the merits must be a reasonable one. As Phelan J. points out, to challenge the Respondent on these grounds is a high test for an applicant: the Court must find that the case against the decision was much stronger than the case in favour of the decision, as set out in Meadows v. Minister for Justice and Equality [2010] IESC 3; [2010] 2 IR 701.  This Court must decide, therefore if the Applicant's case had a much stronger prospect of success than a risk of failure, making it unreasonable for the Board to terminate legal aid.

10. Simons J., in his judgment granting leave herein, [2024] IEHC 265, concluded with a summary of the approach taken by the European Court of Human Rights to the allocation of legal aid in civil cases: "The ECtHR has consistently held that, in the context of civil legal aid, it is legitimate to have regard to the prospects of success in the proceedings in deciding whether or not to grant legal aid (Steel v. United Kingdom, Application No 68416/01). A similar approach has since been adopted by the CJEU."

11. Finally, s.28 (5)(a) of the 1995 Act provides that the Board shall grant a legal aid certificate to a person where the State is, by virtue of an international instrument, under an obligation to provide civil legal aid to the person: provided that the person shall, before being granted such a certificate comply with such requirements specified in the international instrument.

12. The Applicant argued that the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union each represented an international instrument within the meaning of this section and that these instruments required the provision of a legal aid certificate in order to comply with Articles 6 and 13 of the Convention and Articles 47 and 48 of the Charter.

13. This is a misinterpretation of section 5. The section plainly requires that the State shall grant legal aid to a person in circumstances where the State is obliged by an international instrument to provide civil legal aid in such cases. There is no such express obligation set out in either the Convention or the Charter. The right to legal aid in respect of these international instruments has been set out in numerous cases some of which are considered elsewhere in this judgment. That right is not unlimited and the constraints on the right to civil legal aid are well known and are also discussed below.

14. Section 28(5) clearly refers to a situation in which the provision of legal aid in civil cases is obligatory and may not be limited. This point was rejected in O'Donoghue v Legal Aid Board and others [2004] IEHC 413 where, at para. 109, Kelly J. held in respect of the same argument:

"I am satisfied that this approach is not well founded. Section 28(5) will only operate where an international instrument expressly requires the State to provide civil legal aid. The instrument may prescribe requirements which have to be met. The European Convention on Human Rights does neither. Accordingly [even if the provision overrides the saver as to resources] ... the section has no application to this case."

15. The same comments might be made of the Charter. Insofar as this claim is based on the interpretation of s.28(5), the Applicant's interpretation is incorrect and relief on this ground is refused. In order to assess the remaining grounds, relating to the reasons for the decision and to the requirements of European law generally, it is necessary to understand the history of the litigation and the processing of the impugned decision.

The Fire and the First Judgment

16. On 29 January 1986 a knitwear factory in County Carlow was almost destroyed by fire. This factory was owned by W.J. Prendergast & Son Ltd. That company was owned by the Applicant's father, and the Applicant was a shareholder. The Company sought compensation under the Malicious Injuries Act of 1981 (the "1981 Act") in respect of damage claimed to be in excess of a million Irish pounds. In the Circuit Court, the Company was successful, and Carlow County Council appealed to the High Court.

17. On 3 June, 1988, O'Hanlon J. delivered judgment and concluded that he was not satisfied that the fire was started by an intruder. O'Hanlon J. did not expressly decide that it was arson, nor did he find that it was likely that the shareholders of the Applicant's family business had started the fire themselves, although this was one possible inference and it was the case made by the County Council. The basis for this argument was that the factory was rebuilt after a fire in 1969 and no planning permission had been obtained for the new premises, so, despite it being a thriving business, the Council argued that it was in the financial interests of the family to collect the insurance or compensation for destruction by fire rather than continue to operate a business in a premises without appropriate planning permission.

18. The High Court found that there had been substantial fortification against intruders around the premises and a burglar alarm system on which a panel lit up to show the zone in which the alarm was set off and which connected to an office in Dublin and to the local garda station. The fire appears to have begun in the knitting room of the factory. The fire consultant employed by the Company found no traces of accelerant. Mr. Skelton, the consultant brought in by the Council, who was on the scene the day after the fire, gave evidence of finding kerosene vapours in three locations in the building including in an office where this Applicant awaited the arrival of his father on the night of the fire. It was common case that an electrical fault was not responsible, and that all normal precautions had been taken to prevent a fire breaking out.

19. A wrongdoer appears to have entered at 8:42pm as this was when the alarm went off. As O'Hanlon J. put it: "the fire then must have remained dormant for about an hour and a half between the sound of the alarm and the arrival of Mr. Prendergast senior, who noted a glow in the knitting room at around 10:10 that night. It then became a massive fire which speedily engulfed the whole factory."

20. This Applicant gave evidence in 1988 as to what he had done on the night in question, including evidence as to his having inspected the grounds. When the Applicant and his father went into the knitting room, 90 minutes after the alarm had gone off, the evidence was that they were met with billowing clouds of smoke though neither had seen smoke when at the window outside, which was open.

21. The Judge went on to consider the evidence of Mr. Skelton, who gave his opinion that a fire set by an arsonist or occurring accidentally in the knitting room would have quickly become a conflagration or would have smouldered and died out completely. He said given that there was acrylic material in the room it would have given off a pungent smell which would have percolated to every part of the factory and should have been apparent in the office where this Applicant was sitting for a considerable time awaiting the arrival of his father. The Judge found that expert's evidence convincing and found the evidence in support of the Company's submission of an unknown intruder less convincing such that he could not conclude as a matter of probability that the fire was caused by the malicious act of a third party so as to give rise to a compensation claim under the 1981 Act. He determined the issue in favour of the respondent County Council, reversing the order made by the Circuit Court Judge and dismissing the claim.

22. These details from the first judgment are set out in order to highlight one of the difficulties with this Applicant's claim. The Applicant has expended considerable energy and skill in arguing that the evidence given by the expert, Mr. Skelton, was misleading and has gone so far as to suggest it was fraudulent. Indeed, he must claim fraud in order to succeed in reopening a claim of this antiquity in which the issue as to responsibility for the fire has already been decided and has not been challenged by him for a period of over 30 years. But the evidence of Mr. Skelton was only one of the factors taken into account by the High Court in 1988. The claim made by this Applicant, in 2025, amounts to a submission that he is entitled to legal aid assistance in order to mount a challenge to the original decision based on expert reports which undermine the evidence of Mr. Skelton. Even if he could do so, and that is considered below, it is difficult to see how any such expert report could affect the separate assessment of the overall evidence presented by the parties to the High Court in 1988.

23. To challenge the evidence of the expert, the Applicant must not only claim fraud, he must produce evidence of that claim and it must be evidence which was not available to him at some earlier time, in order to explain his decades of delay. This requirement is a major difficulty for the Applicant: it was plainly outlined in correspondence with the Legal Aid Board, and in each of three opinions of counsel, that the Applicant would have to prove fraud on the part of this expert witness, and the evidence to support his claim must not have been available at an earlier stage, if he was to succeed in any one of the several possible routes to overturning the relevant findings of fact from 1988.

24. And finally, as this case is an attempt to review a decision of the Respondent Board to terminate his legal aid certificate, this Applicant must show, as set out in Meadows, not only that his case may succeed but that there is a much stronger chance of it succeeding than not succeeding. In this context, the Applicant's argument that the Board can only revoke his legal aid if his case is manifestly unfounded is incorrect.  To suggest that this is the test is, in fact, an inversion of the true position in law. Only if the Board's decision to terminate was manifestly unfounded would this Applicant be entitled to succeed. The requirements of the law, discussed in Meadows, appear at paragraph 9, above.

25. Now that the details of the case have been set out, encompassing a short summary of the evidence which the Applicant seeks legal aid to challenge, two obstacles to his application are clear: the first is that the Applicant, throughout his submissions, characterises this 1988 case as the equivalent of a criminal case, although the judgment amounts to a finding of fact that O'Hanlon J. was not satisfied that the Company was entitled to compensation and amounts to no more than that.  The second is that any finding of fact which affected his reputation was made in 1988, but he did not take any step to vindicate his reputation in the intervening 31 years before he attended at the Respondent Board in 2019, seeking legal aid.

26. The first issue, that of the status of the 1988 case, is a significant mischaracterisation which permeates the Applicant's submissions. He contends that the judgment amounts to a finding that there was no intruder and that this was a finding of criminal wrongdoing against him, although he was merely a witness of fact. This is simply incorrect and even the brief description of the case set out above confirms that this was a civil case, not a criminal case. The finding was not one against the Applicant but was a conclusion confined to the hypothesis that a third party was present. All findings of fact were made on the civil burden of proof, that is, on the balance of probabilities, with a conclusion which resulted in no explicit finding against the Applicant and no penalty being imposed upon him. The authorities on which he relies are plainly irrelevant to this case and there is no question of the presumption of innocence arising in the circumstances.

27. A criminal offence, leading to a criminal trial, is a very different process from a civil wrong leading to litigation and a determination as to whether one side is responsible for any payment of compensation. The first is a case taken by the State against a citizen with the primary aims of punishment, deterrence and rehabilitation. The other is a case taken by a private or a public entity or by a citizen, most often with the aim of claiming compensation or declaring the existence or extent of lawful rights. While there are many cases in which the subject matter overlaps, such as where a civil claim for damages is taken against a criminal wrongdoer, the criminal trial is easily distinguished from the civil hearing and a criminal trial carries very different state obligations to those which arise in a civil claim between citizens or entities, including public bodies.

28. The proceedings at the heart of this case were undoubtedly civil proceedings. The case was taken, in fact, by the insurer of the Company, in order to recoup its losses after the fire. The aim was to compensate the Company (or at that stage, its insurer) with a sum of money from the Council, pursuant to a statutory scheme, in order to repay the Company and its insurer for the loss caused by the fire. There was no allegation of criminal wrongdoing, there was no police investigation, and no charges were brought. The claimant Company was unsuccessful in its claim for compensation, but such a finding cannot be converted into a finding of criminal wrongdoing on the part of any person without a full investigation and a trial, neither of which occurred in this case.

29. Returning to the second point, that of delay, the Respondent Board, as its decision to terminate makes clear, was live to the problem caused by the delay in this case. Given that over 30 years had passed before the Applicant approached the Board seeking legal aid, the decision that is difficult to understand is the decision to grant a certificate, not the decision to terminate it. The issue of delay will be considered further, below, having set out some details in respect of the intervening litigation initiated by the Company.

The Public Interest in Finality in Litigation

30. The first step taken by the Company in respect of the 1988 case was to issue a challenge to the High Court findings in pleadings dated 1992. The next judgment to issue in respect of these events, however, was in separate litigation commenced by a neighbour of the Applicant: in Belton v. Carlow County Council [1997] 1 I.R. 172, Carlow County Council tried to obtain an indemnity or contribution from the Applicant and his father in respect of statutory compensation which the local authority was liable to pay to a neighbouring landowner affected by the fire. The Supreme Court (Keane J.) held that the Applicant and his father were not the privies of the Company and could not be equated with the Company in that context. The Applicant relies on this case in order to underline the distinction between himself and the corporate entity involved in previous litigation. However, the concluding paragraphs of the judgment in Belton suggest that any action taken by the Applicant to set aside the judgment of O'Hanlon J. might be precluded by the maxim interest rei publica ut sit finis litium, which translates as the public interest in the finality of litigation.

31. This last principle has loomed large in considering the availability of judicial review as a remedy in this case. One of the first questions posed by this Court to the Applicant was to outline what, if anything, he did in the years since 1988 to vindicate his rights. He replied that the only actions taken had been by the Company and he was at pains to emphasise that the previous proceedings had nothing to do with him. This reply, however, was to miss the point of the question: in distancing himself from unsuccessful proceedings taken by the Company, he confirmed that he had done nothing to vindicate his rights from 1988 until 2019, despite his familiarity with all previous proceedings which must include his knowledge of alleged failures on the part of the expert witness in the first case. This Applicant had detailed knowledge of all the evidence in that first claim by the Company, in which he himself gave evidence before Mr. Justice O'Hanlon.

32. The Applicant has also argued here, and in submissions to the Legal Aid Board, that the Supreme Court decision in Belton to the effect that he and his father were not the privies of the Company, left the door open to an action such as this one. However, this ignores the express findings of that Court. Mr. Justice Keane, considering the question of issue estoppel in the case, held at page 413 - 414 of the IRLM report as follows:

"I attach no significance in this context to the fact that O'Hanlon J, in reaching his conclusion, used language which, on one view, would suggest that he regarded the onus of establishing that the fire had not been caused by the company as resting on it. I would, to put it mildly, be surprised if a judge of his experience and knowledge of the law would have proceeded on so erroneous a view of the law. It is, however, sufficient to say that even making the assumption that he did err to that extent, his judgment, as between the parties and their privies, remains conclusive as to all matters of law and fact on which it was founded. An issue estoppel will arise if the third parties are now seeking to litigate an issue determined by O'Hanlon J which necessarily and fundamentally formed the basis of his judgment and if those proceedings can be regarded as having been between the same parties or their privies as are party to the present proceedings."

33. And he concluded that "It is clear that the issue that arises in the present proceeding — i.e. as to whether the fire was caused by the [Prendergasts] or by some intruder — has been determined by O'Hanlon J and that his resolution of that issue was necessarily and fundamentally the basis of the judgment which he delivered." However, Keane J. went on to find that there was a lack of privity between the Prendergasts and the Company, and that the resolution of the issue of causation could not affect the Prendergasts in this context, as they were not parties to the first case, and were only notice parties to the Belton claim: they had not instigated that litigation. In his words:

"It is sufficient to say that, adopting the passage already cited as a correct statement of the law, at least in cases where no question of the application of issue estoppel arising out of criminal proceedings is before the court, I am satisfied that it is of no assistance to the local authority in the present case. The [Prendergasts] have not initiated any proceeding for the purpose of mounting any form of attack upon the decision of O'Hanlon J. On the contrary, the proceedings have been initiated by the local authority and their invocation of the abuse of process principle is intended to deprive the defendants of a defence, which they might otherwise have upon the merits, to the present claim. That is not a necessary consequence of the maxim interest rei publicae ut sit finis litium and would unjustly deprive the third parties of their rights as litigants to resist the claim now being made."

34. In this case, the Applicant seeks legal aid in order to take up a position described by the Supreme Court in Belton as one being contrary to his position in Belton: he seeks to initiate proceedings to mount an attack upon the decision of O'Hanlon J. The necessary implication of the statement quoted above, notwithstanding the interpretation that the Applicant seeks to deploy, is not that he and the Company can never be equated for the purposes of issue estoppel or abuse of process, but that if he had initiated a claim seeking to challenge the issue decided by O'Hanlon J., the Court might be entitled to view the matter differently and the abuse of process claim could have been made by the Council, notwithstanding the fact that the Company is a separate legal entity. The point is that, in Belton, the Council sought a contribution from the Prendergasts, not from the Company, and this was not possible due to the lack of privity between the parties. But had the Prendergasts sought to assail the findings of O'Hanlon J., they could have been met with an application to lift the corporate veil in order to prevent an abuse of process.

35. In the proposed litigation by this Applicant, the issue will be the cause of the fire at the instigation of one of the witnesses who claims, over 30 years later, to have been unfairly traduced in the judgment. This a direct attack on the judgment, made by one who was a witness, who was also involved in the business of the corporate party to that case and who knew many of the details of the original case. Moreover, it is a challenge mounted 31 years after the conclusion of the case, without any explanation for that delay.

36. Meanwhile, the outstanding case taken by the Company was finalised 12 years before this Applicant went to the Legal Aid Board: the Supreme Court decision on a claim of fraud against the Council was dismissed in 2005 and the final judgment in the corporate body's case against the Council's expert was delivered in 2007. Both judgments are worth considering before turning to the decision of the Respondent Board to terminate the legal aid certificate in anticipation of a challenge to the 1988 case.

The Company challenges the High Court Findings

37. The Company made two unsuccessful attempts to set aside the judgment of the High Court. First, Prendergast & Co. appealed to the Supreme Court but this was inadmissible: a decision of the High Court, on appeal under the 1981 Act, is final and unappealable: W.J. Prendergast & Son Ltd v. Carlow County Council [1990] 2 I.R. 482.

38. The Company then instituted plenary proceedings against Carlow County Council and their expert witness. These proceedings were dismissed as against the local authority on the grounds that no cause of action had been shown and that the Company failed to apply to amend its pleadings: W.J. Prendergast & Son Ltd v. Carlow County Council, (Supreme Court, unreported, 8 March 2005). The proceedings were dismissed as against the expert witness as he had immunity from suit in respect of evidence given in the malicious injury claim: W.J. Prendergast & Son Ltd v. Carlow County Council [2007] IEHC 192, [2007] 4 IR 362). This judgment was not appealed by the Company.

McGuinness J. and Carlow County Council

39. The first judgment in that case, W.J. Prendergast & Son Ltd v Carlow County Council & Redvers Skelton, is unreported and was delivered on 8 March, 2005, just over 20 years ago. The statement of claim in that case issued in May of 1992. The Company sought damages and declarations, it sought to set aside the Orders made by O'Hanlon J., and asked the High Court to direct a retrial, on the basis that the defendants had produced fraudulent evidence. The findings made by the second defendant, who was the expert in question, were described as false, inaccurate and misleading and, amongst other claims, it was alleged that this defendant had interfered with samples to mislead the courts as to where the fire had started.

40. No further step in that case was taken until 8 years later, in November 2000, when there was a change of solicitor. Later that month, a notice of intention to proceed was served. In June of 2001, a motion to dismiss the claim was brought by the County Council on the basis that there was no cause of action against that defendant or in the alternative that there had been inordinate and inexcusable delay. The High Court found that there was no cause of action but nonetheless allowed the Plaintiff to amend the statement of claim so as to particularise the claim against the Council. No suggested amendments were before the High Court and no motion to amend was ever filed. The Supreme Court agreed with the defendant Council that there was no claim of fraud or deceit made against the Council and its motion was successful in that Court. McGuinness J., delivering judgment, also noted that no amended statement of claim had been served in the four years since the High Court judgment. In other words, the Company still had not specified how the Council had been deceitful or fraudulent. The claim against the expert witness continued.

McGovern J. and Redvers Skelton

41. In 2007, McGovern J. heard a motion by that expert witness that the 1992 claim did not disclose a reasonable cause of action as against him: W.J. Prendergast v. Redvers Skelton [2007] IEHC 192. McGovern J. noted that the claim was based in large part on an expert report that was commissioned in 2006 and was dated October 2006. Here, a proposed expert witness, Dr. Brian G. O'Rourke, claimed that the original expert had been mistaken in several of his conclusions and that he had given false evidence. His view was that the samples considered by that expert were "almost certainly contaminated". As McGovern J. pointed out, the proceedings made the most serious allegations against the original expert, yet they were commenced in 1992, over fourteen years before the report of Dr. O'Rourke was commissioned and obtained.

42. In a key passage, McGovern J. cited Looney v. the Governor and the Company of Bank of Ireland and Morey (Unreported, Supreme Court, 9th May, 1997), relying on the following quotation on the immunity of the expert witness from suit:

"...witnesses or those swearing affidavits, are given an immunity from suit. Otherwise, no judge could go out on the bench and feel that he or she could render a judgment or say anything without risk of suit. Similarly witnesses would be inhibited in the way that they could give evidence."

43. McGovern J. then commented as follows: "But if one accepts the assertion made by the plaintiff that the applicant's evidence was false or misleading or seriously flawed this is a matter which was capable of being tested in the malicious injury proceedings." The Court went on to find that the expert was immune from suit, but it is important to note his comments also: even if Looney did not apply, there was no prospect of a court allowing the Company to relitigate the matter: there was no new evidence in the sense that this was evidence that had always been available. The Company was represented by solicitor and counsel and had called fire experts of its own, there was no reason offered as to why Dr. O'Rourke could then have reached the conclusions in his report.

44. The Plaintiff in the case before McGovern J. was the Company. This Applicant now seeks to reopen that case, in order to make the same argument, in respect of the same expert witness, on the basis that he, the Applicant, has effectively been found guilty of arson but without a trial. That mischaracterisation of the trial is discussed above.

45. Noting the views of McGovern J. in respect of the opportunities to challenge the expert witness in 1988 and the very late emergence of the report on which the most significant aspects of the Company's claim was based, it is perhaps not surprising that the barrister briefed by the Legal Aid Board gave what can be described as a tentative opinion, outlining possible legal avenues to success but then withdrew from the case when no concrete evidence of fraud was presented. This advice is set out in the next section.

46. The concluding paragraphs of the judgment of McGovern J., describe the effect of the expert witness's immunity in a case involving the same subject matter which was identical to the case the Respondent Board had to consider here, save that he was considering the corporate respondent to a motion, not the position of the Applicant in person as the instigating party in respect of the same facts:

"As O'Flaherty J. stated in the Looney case:

"The price that has to be paid is that civil actions cannot be brought against witnesses even in a very blatant case ... even in a case of perjury".

... When one looks at the boundary to [the applicant witness's] immunity it is clear that the evidence of the applicant which is complained of was given in a manner which was pertinent to the malicious injury proceedings. If there was some new evidence which could not have been used at the malicious injury hearing then it might be permissible for the court to allow that evidence to be introduced subject to the argument of inordinate and inexcusable delay. But in this case all the matters complained of in the statement of claim could have been put to the applicant in the malicious injury application including the fact that he "interfered with the analysis of the said samples for the wrongful purpose of showing where he alleged that the fire had started", as alleged in the Statement of Claim in this Action.

11. The parties have agreed that the issue of inexcusable or inordinate delay should be left aside until I determine the issue of the applicant's immunity from suit as a witness in the malicious injury application. It has been agreed that the delay point will only arise if the application fails on the immunity issue.

12. I am quite satisfied that in the circumstances of this case the applicant is entitled to an order dismissing these proceedings on the grounds that they disclose no reasonable cause of action against him on the basis that he has immunity from suit in respect of his evidence given in the malicious injury application."

47. These comments are not only pertinent to this issue but suggest a logical conclusion to the arguments raised by this Applicant. One of the main submissions made is that the Legal Aid Board has not justified, rationally, its decision to terminate the legal aid certificate. However, the three opinions of counsel documented his views which moved from warning of the difficulty of proving fraud, to concluding that it was not possible to prove fraud and withdrawing from the case. McGovern dealt with the same situation.

48. Considering his judgment, it must be noted that even if this case was to proceed on the basis that one of the expert reports on which the Applicant seeks to rely could provide evidence of fraud (and there has been no such conclusion, only a submission that counsel should have met with the experts in order to follow up on the Applicant's assertions to this effect), and even if this could be relied upon, the law is as set out in the decision of McGovern J., namely, that this evidence cannot now be relied upon to challenge the expert witness as the Applicant suggests: it is not new evidence and could have been used to challenge the evidence at the original hearing in 1988.

49. Nothing that has been submitted in this application was new material or evidence that could not have been discovered by the Applicant in 1988. While the Company, not the Applicant, was the litigant, the issues were identical and the Company was represented by solicitor and by senior and junior counsel, who called their own experts (at least one of whom the Applicant appears to rely on, as the exhibits in this case reveal). No reason is given to explain why the evidence which is the foundation of Dr. O'Rourke's report, was not called or used in the 1988 hearing to discredit the expert called by the Council. Nor has the Applicant ever attempted to explain why he waited over 30 years to raise these issues and how he would defeat a motion to dismiss based on delay.

The Impugned Decision

50. The decision of the Respondent to refuse the appeal in respect of legal aid was made with the words: "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 initial determination to terminate the certificate, however, contained a comprehensive and careful account of the evidence and the author focused on the problems posed by delay and the proposed evidence of the expert witnesses, intended to rebut the evidence given in 1988. It was explicitly set out in this initial decision that the Respondent Board did not consider that it was reasonable to pursue this case.

51. The decision to terminate was notified to the Applicant by letter dated 4 April 2023. Having summarised the procedural history, including the concerns raised by counsel, the letter states as follows: "The parameters within which legal aid can be granted are set out in the Civil Legal Aid Act 1995 and in particular in Sections 24 and 28 of the Act. These are known as the merits criteria for legal aid. There must be reasonable grounds to institute or defend proceedings and, there must be reasonable prospects of success in the matter. There must be no alternative more satisfactory method by which the issues can be dealt with and the likely benefit to the legal aid applicant and the costs of providing representation in the matter are further considerations. It must be considered whether a solicitor or barrister acting reasonably would advise an applicant to expend his or her own resources on the matter and whether a reasonable person would do so in the circumstances of the case. Where Counsel cannot draft the pleadings in the absence of the required evidence of fraud/perjury, it is considered that there are not reasonable grounds to continue to pursue the matter, the requirement of proof of fraud/perjury being a central element to any proceedings which might be brought. If Counsel is not satisfied to the required evidence of fraud/perjury it cannot be said that there are reasonable prospects of success. The prospects of success are further questionable given the issues arising in relation to the doctrine of res judicata, difficulties with the statute of limitations and the Court's consideration of a likely abuse of process argument. Given these issues it is not considered that there is any likely benefit to you in the proceedings but rather there would be a significant risk of costs being awarded against you. The costs to the Board would be significant in such a matter and could result in the Board having to make an ex-gratia payment in respect of any such award of costs. It is therefore unreasonable in the particular circumstances of the case (including the cost of the proceedings) that that you should continue to receive legal aid or to advise you to further pursue this matter. A solicitor or barrister acting reasonably would not advise you to do so where you do not meet the legal grounds in such a case, where there are such limited prospects of success; and therefore, no likely benefit to you in pursuing the proceedings, and where there is a strong likelihood of you being fixed with significant legal costs. It is not considered reasonable therefore in all the circumstances to continue to provide you with legal aid.

52. In its concluding paragraph, the Board expressly pointed out that the requirement to prove fraud or perjury was central to any proceedings which might be brought. The Board further drew the Applicant's attention to the fact that counsel was not satisfied to the required standard that there was evidence of fraud or perjury. The Board also noted that this was a separate issue to the obstacles of delay in the case which led to an expectation that the doctrines of res judicata or a simple statutory time bar or abuse of process application would be raised, leading to the risk not only that the Applicant would lose, but that costs would be awarded against him.

53. The Respondent relies on the seminal textbook, Hogan and Morgan, Administrative Law in Ireland, (Round Hall, 5^th edn (2019) where at paras. 16-44 the authors conclude that "it will frequently be clear that the reasons which finally motivated the deciding authority were the same as those mentioned or implied the earlier stage of the decision making process." In this case, the final written decision on appeal was terse, but the previous decision, to which this final decision referred specifically, was comprehensive, clear and cogent. The Applicant could not have been confused as to why the Appeal Committee formed the view it did: it was writ large in the opinions of counsel and summarized in the decision of 4 April 2023. The opinions of counsel moved from circumspect and cautious identification of a possible route to a victory in court, to doubt and then to resignation: the crucial element of fraud could not be proven, indeed no sufficient evidence of fraud was identified, and counsel could not proceed further.

54. Insofar as the Applicant claims that the decision to terminate his legal aid certificate was insufficiently reasoned, this is clearly not correct and any relief sought on this ground must be refused.  Further, his argument that it is unreasonable to expect him to uncover direct evidence of fraud against the expert or the Council is simply wrong.  If any litigant makes such an allegation, he must be in a position to prove it. The legal advice offered to him by counsel was correct in this respect and any other approach to such an allegation would invite widespread, and repeated, challenges to decided cases no matter how thin the grounds for such an allegation.  Kelly v University College Dublin [2009] IEHC 484 is one of many cases confirming this principle and it was discussed in counsel's opinion so the Applicant knows what is required in this regard.

European Union Law, the Convention and Irish law in the 1970's and 80's.

55. As is clear from the detailed description above, the decision of the High Court on the application for compensation under the 1981 Act was made in 1988. It was submitted by the Respondent Board that both the legislation and the events in question predate the commencement of the European Union Treaties and the incorporation of the European Convention on Human Rights ("ECHR") into Irish law by the European Convention on Human Rights Act 2003 (the "2003 Act"). It was also submitted that the entitlement to compensation which arose in this case was a purely domestic law remedy and that there was no entitlement to rely on EU or ECHR law in this regard.

56. This is an interesting argument, but no case law or detail as to the effect and commencement of the rights in question was cited in support of it and the Applicant, perhaps because it received no further attention in submissions, did not address the submission in oral argument. However, his written submissions contained numerous cases which, he argued, supported his position. He is not correct. The core of the Applicant's argument is that he was in fact subjected to a criminal trial but, as set out above, this is simply incorrect. The international cases relied upon by both sides are helpful in identifying and deciding the issues raised and none supports the Applicant's argument. It is helpful to consider some of the Irish cases relied upon in the first place.

Relevant Irish Cases

57. In O'Donoghue v the Legal Aid Board and others [2004] IEHC 413, the applicant challenged the delay between her first contact with the Board and her first appointment with the solicitor thereafter. Kelly J. held that it was not enough to set up a scheme to provide legal aid and then to render it "effectively meaningless". He held that the 1995 Act gives substance to the constitutional entitlement to legal aid for appropriate persons and that the legislature is entitled to define reasonable limits to that right. He cited Airey v Ireland (1979) 2 EHRR 305 (set out in more detail below) in which the European Court of Human Rights confirmed that the right to a fair trial before an impartial tribunal guaranteed by Article 6 of the Convention implies also the right of access to the courts. The Convention was, as he put it, "intended to guarantee rights that were practical and effective rather than merely theoretical or illusory."

58. In light of the declaration made by the Kelly J. in respect of her constitutional rights, it was not necessary to make a decision in respect of the provisions of the Convention in Ms. O'Donoghue's case. Nor was it appropriate for Kelly J. to do so, he concluded, given that the 2003 Act was not on the statute book at the time of the incidents in suit.

59. In Carmody v The Minister for Justice, [2005] 2 ILRM 1, Mr. Carmody sought a declaration that s.2 of the Criminal Justice (Legal Aid) Act of 1962 was incompatible with the State's obligations under the Convention. Laffoy J. allowed the plaintiff to amend his statement of claim to include a claim under the Convention, notwithstanding that his prosecution began before it was ratified. The State defendants had claimed that the Act of 2003 could not be applied retrospectively. Laffoy J., rejected this argument, holding that because the plaintiff faced criminal charges, he was entitled to invoke the Act which provided that constitutional rights and statutory provisions be interpreted so as to be compatible with the provisions of the Convention, insofar as this was possible.

60. Shortly afterwards, however, in Dublin City Council v Fennell, [2005] IESC 33, [2005] 1 IR 604, [2005] 2 I.L.R.M. 288 the Supreme Court ruled that the European Convention on Human Rights Act 2003 could not be applied retrospectively. Fennell involved landlord and tenant rights, and the Supreme Court held that the parties' rights and obligations were "fixed and determined" at the time the notice to quit was served. It is not clear whether Carmody would have been decided differently had the Fennell decision been delivered before the judgment in Carmody.

61. It is not necessary to choose between the two decisions, however.  While this case began many years after the judgment in 1988, this application was made only months after the impugned decision to terminate legal aid, so while it is arguable that the Applicant had no Convention rights in 1988, he clearly had the right to access to legal aid in a criminal or in certain civil cases.  But more fundamentally, the Respondent Board's decision in the case is, in fact, compatible with all relevant EU Convention and Charter case law.

62. The Applicant has enjoyed his constitutional right of access to justice and to due process, including the right to a fair trial, since the night of the fire in 1986 and these rights continue to the present day. The consideration of his constitutional rights in the context of the facts of this case produce a result that is entirely compatible with the relevant EU Charter and Convention rights to a fair trial. The EU cases which were cited inform our jurisprudence on the issues of fair procedures and due process, which have always been constitutional guarantees, as recognized in Carmody and in O'Donoghue.  Insofar as it arises in this case, the procedural right of access to justice in civil cases can be identified as far back as 1981, in the Airey case but even if it would not have been extended to the Applicant in 1988, the principles applied since then in the context of Convention rights have been applied in this case.

63. The right to legal representation for those accused of a criminal offence was recognised by the Supreme Court in State (Healy) v. Donoghue [1976] I.R. 325.  In a passage setting out the ratio decidendi, Griffin J. held at page 357:

"The principles enshrined in these principles of the Constitution require fundamental fairness in criminal trials - principles which encompass the right to legal aid in summary cases no less than in cases tried on indictment - whenever the assistance of a solicitor or counsel is necessary to ensure a fair trial. Ours is an adversary system of criminal justice. On the one side is the State with all its resources, which it properly and justifiably uses in the prosecution of crime. It has available to it a trained and skilled police force, and lawyers who prosecute in the interest of the public. On the other side is the person charged with a crime; if he has the resources, he will retain the best solicitor and counsel obtainable for the preparation and conduct of his defence. If he is too poor to engage a solicitor or counsel, can he be assured of a fair trial unless legal aid is provided for him? It seems to me beyond argument that if lawyers are necessary to represent persons with means to pay for them, they are no less necessary for poor persons who are unable to provide for them out of their own resources."

64. This language and these descriptions make it very clear that the right to legal aid in criminal cases is a constitutional right, arising out of the specific circumstances of the criminal trial which is one that is prosecuted by the State. The right to legal aid was later extended to civil cases after Johanna Airey's successful challenge to the legal aid system in Ireland: Airey v Ireland (1981) 3 EHRR 592.

65. Ms. Airey sought an order in respect of her separation but without legal assistance as family law cases, at that time, were not covered by any legal aid scheme. The ECtHR held that a person in a Convention country enjoyed a right to effective access to legal aid. The Court made it clear, however, that this did not equate to a right to legal aid in all civil cases. In Steel and Morris v The United Kingdom(2005) 41 EHRR 22, the Court confirmed that a signatory State may consider the prospects of success in proceedings when considering whether or not to grant legal aid. Essential factors include that such a decision should be rational, and not arbitrary, and that it be proportionate in the circumstances of the case, but the key principle is fairness: Tabor v Poland (12825/02) (Unreported, June 27 2006, ECHR). The Applicant relied on Tabor, submitting in this regard that a party in civil proceedings must be able to participate effectively, inter alia, by being able to put forward the matters in support of his or her claims. He submits that here, as in other aspects of Article 6, the seriousness of what is at stake for an applicant will be relevant to assessing the fairness of the procedures.

66. These principles can be applied to the current application which relates solely to the termination of the legal aid certificate, but which requires consideration of the original events and the subsequent legal challenges, as this is the context in which the decision to terminate legal aid was made. The essential question is not only whether this decision was fair, but whether the Respondent was entitled to make that decision and whether it was made in a way that was arbitrary or disproportionate in the circumstances.  

67. The argument in respect of arbitrariness has been considered, above, in those sections dealing with the reasons given for the decision. In respect of the fairness of the process, separate considerations arise as a decision may be rational, but unfair.

Criminal Trials and Civil Cases: Relevant ECJ and ECHR cases

68. One of the arguments made with great force by the Applicant was to the effect that his right to a fair trial had not been vindicated as he had, effectively, been found guilty of criminal wrongdoing but without the right to silence, without the right to cross-examine his accusers and without all the fair trial guarantees set out in Article 47 of the Charter and Article 6 of the Convention, not to mention Article 38 of our Constitution. This is the right to due process, or the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal. Fair trial rights apply to both civil and criminal proceedings, although what is proportionate and therefore what is required in either type of proceedings will differ, depending on circumstances.

69. The fairness of the process by which this decision was made can only be assessed in its context of the case. The Applicant's main proposition is that the process was unfair because he has been found guilty of a crime but without vindication of his right to a fair trial, and with no opportunity to cross-examine his accusers or to be presumed innocent.

70. As set out above, this is a fundamental misconception as to how this process began and was conducted: the Company in which he and his father were shareholders and his father was a director, began civil proceedings. As already explained, there was never a criminal trial, no charges were brought, and there were no penal consequences for the Applicant. There was, undeniably, a finding of fact that was potentially damaging to his reputation. That finding was not directed towards this Applicant but was a finding by O'Hanlon J. that he was not satisfied that a malicious intruder had started the fire at the factory and preferred the Council's theory of the case. This cannot be equated with a criminal conviction in respect of the Applicant. The criminal process is initiated by agents of the State, it can result in a finding of guilt, after a trial in which the standard of proof is proof beyond a reasonable doubt, and the process allows for the imposition of penalties. It is this process, which may lead to conviction and sentence, in which there is a presumption of innocence, and which requires access to legal aid if requested.

71. The Applicant has cited numerous cases which confirm the precedence of EU law in this jurisdiction, a proposition which is not controversial. Not one of the cases cited is supportive of his position, however. Most refer only to criminal proceedings and the most useful comparisons from the myriad of cases cited are discussed briefly below.

72. The Portuguese case cited, Director Geral das Alfândegas v ZF Zefeser, case C-62/06EU:C:2007:264, which refers to the circumvention of protections by classifying prosecution measures as civil procedures is simply not comparable to these events. This reference is to the opinion of Advocate General Trstenjak. The case involved the powers of customs authorities, including powers to impose levies against a background of allegations of smuggling. Again, the Applicant was never accused of arson, never convicted of arson, nor was he penalised in any way.

73. In the Zefeser case, the CJEU held that the same considerations must apply with regard to the interpretation of the legal concept of an act that can give rise to Criminal Court proceedings, otherwise there is a risk that the procedural guarantees provided by community law based on Article 6(1) ECHR and Article 47 of the Charter of fundamental rights could be circumvented if a member state were entitled to create an additional and competing jurisdiction. This Applicant, however, despite submissions to the contrary, was never found to have committed an act that could give rise to criminal proceedings. There is no competing jurisdiction in evidence in the history of this case.

74. In the same opinion, at paragraph 41, the Advocate General confirms that in any individual case "the criminal character of specific conduct must be determined according to the substantive and procedural rules of national criminal law." In other words, the findings of fact by O'Hanlon J. which were made during a civil trial, and which amounted to a determination in respect of compensation, cannot be considered as criminal proceedings or even as an interpretation of an act that can give rise to criminal proceedings as his determination was silent as to wrongdoing, if any, on the part of the Applicant. The finding of fact amounts to no more than a finding that the Company was not entitled to compensation under the relevant civil statute.

75. The Advocate General went on, at paragraph 61, to say that neither a court nor a public official may make any statement that the accused is guilty of an offence before he has been brought before a court and convicted and that the presumption of innocence is infringed without the person having the opportunity to avail himself of his right of defence. However, the Applicant neglects to set out the quotation in full:

"61. Moreover, neither a court nor a public official may make any statement that the accused is guilty of an offence before he has been brought before a court and convicted. The presumption of innocence is infringed if by way of a remark of a public official concerning a person charged with an offence statements concerning that person's guilt are made without that guilt being proven in accordance with the law and without that person having the opportunity to avail himself of his rights of defence. If public statements are made concerning matters connected to criminal proceedings, discretion should be exercised.

62. Underlying that case-law is, first, the legal conviction that only criminal proceedings can result in a formal determination of guilt according to the criminal law and that, therefore, no other public institution may characterise a person as guilty. Second, it takes account of the fact that a public statement of the suspicion held by public authorities may have negative consequences for the individual's legal position. Logically, it aims to protect an accused person from being prejudged."

76. Seen in its entirety, it is apparent that the opinion deals with facts which are not comparable with the facts here. The essential misconception recurs: the Applicant was never found guilty of any offence, no criminal proceedings were or are pending, nor was any statement made by O'Hanlon J. which equates with a finding of guilt.

77. The Applicant relies on Allen v UK, (2013) (25424/09) and in particular refers to para. 120 which cites Minelli v. Switzerland, (1983), Series A no. 62, a case about a criminal complaint of defamation, also alleging fraud, made within months of the publication in a newspaper. The Allen case involved a woman accused of killing her child who was not awarded compensation, despite the fact that her conviction was overturned.

78. The Applicant states that the ECtHR has held that reasoning by a court suggesting that a person is guilty where this has not been proven infringes Article 6(1) of the Convention. Again, the Applicant ignores not only the context of the cases, but the resulting judgments. He refers only to para. 120 of Allen in this regard. Both cases confirm directly the opposite of the position for which he contends: the domestic courts had, according to the summary of Minelli in the very next paragraph of Allen, described a "state of suspicion" only and their decisions did not contain any finding of guilt. These words describe the judgment of O'Hanlon J. The ECHR does not require that he be afforded the same rights as he would enjoy if he had been accused of a criminal offence.

79. In Allen, again the Court held that the Applicant's Article 6 rights were not infringed when her conviction was found to be unsafe, but she was not awarded compensation. The Court held, at paragraph 134: "In assessing whether a "miscarriage of justice" had arisen, the courts did not comment on whether, on the basis of the evidence as it stood at the appeal, the applicant should be, or would likely be, acquitted or convicted. Equally, they did not comment on whether the evidence was indicative of the applicant's guilt or innocence."  Again, one can compare this with the wording of O'Hanlon J. who made no comment on what criminal liability, if any, attached to this Applicant.

80. The 1988 case, by every measure, was a civil, and not a criminal, case. The claim was initiated by the Company's insurance brokers after the Company sought compensation under the 1981 Act and the claim was resisted in that civil action by a State body. The Company, in other words, sought the protection of the civil law and the Council resisted the application. Both sides were represented by lawyers who were entitled to cross-examine all the relevant witnesses, each team had experts of their own to assist them. A decision was made that, on the balance of probabilities, the evidence of the applicant company was not as persuasive as that of the defendant Council. No penalties were imposed. There was no question of loss of liberty as a result. The presiding Judge made no finding of guilt, nor did he comment on the criminal liability of any party.

Adler and Fairness

81. The Applicant also relies on Adler, C‑546/18, EU:C:2021:219 to the effect that he is entitled to defend his own name. As the ECJ (Fourth Chamber) found in Adler, Articles 47 and 48 of the Charter of Fundamental Rights of the European Union must be interpreted as precluding a practice whereby a definitive decision that a breach of Directive 2004/25/EC ('the Takeover Bids Directive' was established has a binding effect in subsequent proceedings for the imposition of a penalty for an administrative offence. The point was made that the parties concerned were not able fully to exercise the rights of defence, in particular the right to a hearing, or to assert the right to silence or to benefit from a presumption of innocence in respect of facts decided by earlier proceedings which were determinative of later cases. The Court directed, essentially, that such persons should benefit from the right to an effective remedy against such a decision before a court having jurisdiction to resolve questions of fact and of law.

82. Here, however, there is no question of the decided issue being a determination that a breach of a directive, or of any law, has occurred or of the Applicant being bound by the decision for the imposition of a penalty. On the contrary, there was no express ruling on the actions of the Applicant nor any finding as to what he did or did not do, let alone the imposition of a penalty. To that extent, Adler simply does not apply to these facts.

83. Further, when financial contribution was later sought by the Council from the Applicant, another court ruled against the Council pointing out, for similar reasons to those set out in Adler, that the Applicant was not the same legal person as the Company and that no such claim could be maintained. In other words, the Applicant was not found guilty of any wrongdoing nor was he found to be in breach of any law, he was not penalised in any way, and there will be no financial effect on him personally as the decision in respect of responsibility for the fire was one made against the Company and was confined to a finding that the Company was not entitled to compenasation for malicious damage. While the Applicant argues that there was consequential potential for reputational damage to him, this is not the equivalent of a criminal conviction.

84. One crucial factor in considering the fairness of the overall process is this: while the Applicant was not the moving party in the 1988 compensation proceedings, he now seeks, essentially, to challenge the factual decision of that Court over 30 years later and long after the Company has unsuccessfully challenged the decision on precisely the same basis that he now puts forward as a ground for a new challenge. There is nothing in the Applicant's evidence that could not have formed the basis of a challenge years ago and, as he was told by counsel instructed by the Respondent, unless he uncovered new evidence of fraud, his action was bound to fail. This was explained clearly.

85. There is no requirement that counsel meet the proposed experts in order for him to form a view of the evidence available and to advise the Respondent that there is no prospect of success in this case. The outcome of the process has not produced any unfairness: the Applicant was entitled to challenge the High Court case as the Company chose to do. The Company has been unsuccessful. The Applicant has not identified any evidential basis for his challenge that has not already been raised, unsuccessfully, by the Company. Moreover, he has waited for over 30 years to launch his challenge. 

86. The question remains whether, in such a situation, a witness who could be identified by implication as a possible wrongdoer in the first set of proceedings, to which he was not a party, is entitled to the full panoply of rights which attend the criminal wrongdoer in the context of a trial at the suit of the DPP on behalf of the State.

87. Phrased in this way, it must be obvious that the Applicant has no such rights. The right to legal aid in most of the cases on which he relies is a right to defend oneself in a criminal trial. It arises from the very serious consequences of a guilty verdict, which include the possibility of imprisonment. While the Applicant enjoys the right to civil legal aid, this is circumscribed as described above in Airey and in O'Donoghue.

88. In DEB v Bundesrepublik C-279/09, EU:C:2010:489, relied upon by the Respondent, the second Chamber of the Court of Justice considered Article 47 of the Charter of Fundamental Rights of the European Union. The ECJ set out the primary principle that effective judicial protection is a general principle of EU law stemming from constitutional traditions of the member states but also affirmed in Article 6 and 13 of the European Convention on human rights. The ECJ also confirmed the importance of taking the Charter of Fundamental Rights of the European Union into account.

89. The case concerned the payment of legal aid and the Court concluded that the national court should ascertain whether the conditions for granting legal aid constitute a limitation of the right of access to the courts which undermines the very core of that right. The national courts must also consider whether any conditions imposed on granting legal aid pursue a legitimate aim, and whether there is a reasonable relationship of proportionality between the means employed and the legitimate aim which is it is sought to achieve. In making that assessment, the national court must consider the subject matter of the litigation; whether the applicant has a reasonable prospect of success; the importance of what is at stake for the applicant; the complexity of the applicable law and; the applicant's capacity to represent himself effectively. To assess proportionality, the court may also consider the cost of proceeding and whether or not costs may be an insurmountable obstacle to access to the courts.

90. In this case therefore, this Court is considering whether or not a withdrawal of legal aid is disproportionate, taking into account the subject matter, the prospects of success, the importance of what is at stake, the complexity of the law and the applicant's capacity to represent himself effectively. I must also consider whether the costs of obtaining legal assistance might represent an insurmountable obstacle to access to the courts.

91. The Respondent also relies on X v. The United Kingdom (1980) 8158/78. This was another case arising out of civil proceedings in which the applicant was granted a limited certificate of legal aid entitling him to an opinion from counsel in respect of his action for damages against the police. The applicant there alleged that the Law Society had discharged his certificate of legal aid without giving reasons for so doing. The applicant also made further complaints about being held in solitary confinement for over 700 days. He says that he was not given any reason for frequent moves from one prison to another. The Commission in that case considered the evidence and noted that the injuries suffered by the applicant were more consistent with the account given by the police involved in his arrest and subsequent custody. In considering the allegation that he was denied access to court as a result of a refusal to grant him legal aid the Commission agreed that a state may incur liability under Article 6 (1) if it arbitrarily declines to grant legal aid in respect to the civil claim.

92. The Commission did not accept the respondent's argument in X that the legal aid authorities did not engage the responsibility of the State. As set out in the decision of the ECtHR in 1979 in Airey, Article 6 guarantees an effective right of access to the courts for the determination of their rights and obligations. However, the Court concluded that it is a matter for the state to decide the means to be used and there is no obligation on a state to provide free legal aid for every dispute relating to a civil right.

93. At paragraph 16 of the judgment in X, the Commission sets out the following:

"It is self-evident that where a state chooses a "legal aid" system to provide for access to court, such a system can only operate effectively, given the limited resources available, by establishing machinery to select which cases should be legally aided. Such limitations on the availability of free legal aid, common to most Convention countries, often require a financial contribution or that the proposed litigation have reasonable prospects of success. In the Commission's view, Article 6(1) does not require that legal aid be provided in every case, irrespective of the nature of the claim and supporting evidence. Where an individual is refused legal aid in a particular case because his proposed civil claim is either not sufficiently well grounded or is regarded as frivolous or vexatious the burden would then fall on him to secure his "access to court" in some other way such as, for example, bringing the action himself or seeking assistance from some other source. Accordingly ... where a prisoner has been refused legal aid on the basis that his claim lacks reasonable prospects of success such a situation would not normally constitute a denial of access to court unless it could be shown that the decision of the administrative authority was arbitrary."

94. The Applicant complains that there is no equality of arms in that the State has unlimited time under the 1981 Act to re-open the case if there is evidence of fraud but that he has been met with arguments in respect of delay and has no specific remedy under the Act. There are several insurmountable problems for the Applicant in this submission, starting with the most obvious: there is no statute of limitations in respect of his claim or that of the State if fraud is uncovered, but nobody has produced any evidence of fraud on the part of the impugned expert witness. No such evidence has been put before me, none was available to counsel for the Legal Aid Board, and none was produced by the Company in the proceedings heard by McGuinness J. and McGovern J. In each case, the expert reports referred to differed from the views expressed by the County Council's expert but none of the reports provided evidence of fraud.

95. It is not helpful to insist, as the Applicant does, that counsel should give an example of what fraud might be proven or that counsel should have met with his experts. The Applicant is the person who bears the burden of proof as he seeks to challenge a decision made in a civil hearing in 1988. It is not correct to say that he is an accused, that the burden or standard of proof should change, or that he has been denied a fair hearing: for over 30 years he has remained silent about the findings of O'Hanlon J. so the reality appears to be that he has awaited the outcome of several challenges by the Company and only now acts, but with no new evidence to offer.

96. The Company also relied on what they described as new expert reports, but these same reports have been exhibited to this Court and have been commented on already by McGovern J. All these reports refer to errors and even posit that the impugned expert gave false evidence, used the wrong samples or contaminated the samples. No evidence has emerged of any motive, or improper connection between the Council and the expert.

97. If there was a connection or malign motive on the part of the expert, this would have been expected to emerge at the trial when the Company was represented by lawyers and had an expert of its own, and during which the expert was subject to cross-examination.

98. Leaving aside the powerful argument that this was a challenge he ought to have mounted in 1988 rather than waiting for 31 years to approach the Respondent Board, it remains the case that there is no evidence of fraud and, that being the case, the Respondent's decision was proportionate, and it was strongly supported by the facts.

99. In this case the Applicant was granted legal aid and counsel prepared an opinion which was carefully worded. Having had a consultation with the Applicant, counsel took the view that this case had no reasonable prospect of success. The views of counsel were set out in detail in the first decision to terminate the legal aid certificate. Notwithstanding this decision the Applicant was given an opportunity to make submissions as to why legal aid should continue and this Court has had an opportunity to review those submissions. The decision of the appeals committee of the Legal Aid Board repeated the decision made by the first instance decision maker. There was nothing raised by the Applicant in his submissions which suggest that the decision was an irrational or disproportionate one. Many of the same submissions have been made to this court and rely, to a very large extent, on case law about criminal trials and a conflation of the civil process with the very different criminal trial process.

100. As for the costs of proceeding, there is nothing to prevent this Applicant from initiating proceedings in person. There is no question of the Applicant being denied access to court in any arbitrary way. The State has afforded him an opportunity to avail of legal advice, that advice is to the effect that he has little or no chance of success in this case both on the facts (there is no evidence of fraud on the part of the expert witness) and procedurally (there is no reason offered as to why he, personally, did not immediately challenge the decision of O'Hanlon J. if he was concerned about reputational damage).

Delay

101. As he has been advised already by the Respondent Board, for the Applicant to have any chance of success in respect of a challenge to these findings of fact in a civil trial, he must establish fraud on the part of a relevant witness. Further, and equally crucially, he must explain why he has waited for over 30 years before challenging the findings of fact made in the High Court in 1988. Here, the public interest in the finality of litigation is, again, a very significant factor. For this Applicant to succeed, he must persuade a court that the final decision in 1988 should, after all, not bind the parties. Further, he must establish that the decisions in the interim should all be set aside so that he can vindicate his right to a good name. This, despite the fact that he has not sought to challenge the 1988 judgment in any way in the intervening years.

102. The Company has been attempting to undermine the High Court decision since 1992, with no success. The height of the new opinion evidence in the Company's case was that the relevant expert was negligent or gave false evidence. Again, it must be noted: this has never been proven, nor even put to the test, as the Company could not point to any reason why these claims were not raised in the original case.

103. Whatever about a delay of four, or even 12 years, in launching proceedings, this Applicant did not seek legal advice until 31 years had passed since the trial. If his concern was in relation to a finding against him, it was incumbent upon him to act when the 1988 judgment was handed down. While there is no statute of limitations in respect of fraud, the High Court is entitled to protect its processes from abuse. In this case, the Applicant appears to have waited until the Company had exhausted its remedies, and even then, it was over ten years after the final decision in respect of the Company had issued before he sought legal aid. Even if there was evidence of fraud, and none has been forthcoming, a motion to dismiss this proposed action for delay must succeed.  

104. Not only is there little prospect of success for a challenge to the decision of O'Hanlon J. by this Applicant on the grounds of fraud, because there is still, 37 years and three cases later, no such evidence but any case is certain to be dismissed on procedural grounds long before any witness could give evidence: it is now nearly 40 years since the fire, 37 years since the first hearing and the Applicant has done nothing in the intervening years to challenge the findings of that judge. It is difficult to see how he could overcome a challenge based on the Primor and O'Domhnaill lines of jurisprudence, as set out in Cave Projects Limited v Kelly [2022] IECA 245. 

105. The Applicant's submissions in respect of his failure to act in over 30 years do not address the failure, but ask repeatedly and rhetorically, what should he have done? There is no averment which addresses this significant failure and, indeed, it is difficult to imagine factual circumstances which could justify a delay of such magnitude.  

106. Finally, the test set out in DEB requires a court to consider what is at stake for the Applicant.  As set out, the Applicant was not convicted of any offence but, no matter what he now argues, his failure to launch any challenge to the case in over 30 years also suggests that the stakes for him were not such as to require that legal aid be granted.

 

 

Conclusions

107. The Applicant has not established that the reasons offered by the Appeals Committee of the Respondent were inadequate in the case of the termination of a previously granted certificate due to the comprehensive reasoning of the initial decision.

108. The ground citing s.28(5)(a) of the Civil Legal Aid Act of 1995 has been rejected for the reasons set out above, based on the plain meaning of the section.

109. A further category of grounds, that the Board could not revoke the certificate unless the Applicant's case was manifestly unfounded, was described by Simons J. as radical. It is both radical and incorrect. Only if the Board's decision was manifestly unfounded could this Applicant succeed, the test he posits is the opposite of what is required.

110. The Applicant has cited many EU authorities, but there is no comparable case which supports his arguments. Simons J. granted leave on the basis that the Respondent did not engage with this aspect of the case and, in those circumstances, he was unwilling to refuse leave if EU rights may be engaged. The test at this stage is different: the Applicant must establish that the law supports his arguments and he has failed to do so.

111. The main ground argued is based on a misconception of the nature of the 1988 case: O'Hanlon J. was deciding a civil claim for compensation, not a criminal claim. This is not a reversal of the onus of proof in a criminal trial because it was not a criminal trial.  Many civil claims involve an examination of a potential criminal offence and the expression of a view by a court as to which side has presented better evidence, as a matter of probability. But there is no requirement of law that such proceedings in civil courts must mirror criminal trials. In civil cases the criminal standard of proof does not apply, there is no requirement for prosecutor or police involvement, there is no presumption of innocence, no right to silence and no penalty.

112. The Applicant is not entitled to the relief sought or to any relief.

113. If the Respondent intends to make an application for costs, counsel for the Respondent should contact the Registrar, on notice to the Applicant, within 7 days of receipt of this judgment so that a date can be set for submissions in that regard.