Supreme Court of Ireland Decisions

1. On the 2nd October, 2000 the second and third named Appellants issued a Notice of Motion seeking:-

2. From that order the Appellants have appealed to this Court. There was some delay and confusion in the processing of the appeals, in part related to a difficulty in taking up the order of Butler J. More significantly, however, the nature of the relief sought by the Appellants has changed significantly.

3. At the hearing of the appeal before this Court on the 23rd March, 2001 the Applicant was represented by Mr. Haughton, Solicitor, neither of his Counsel being available. He was not at all prejudiced by their absence since Mr. Haughton advanced his case with economy and precision. He first made clear that his concern related wholly to the funding of future litigation and in particular an application to the High Court listed for the 24th day of April, 2001. He was not concerned with the release of funds to discharge the apparently very considerable sum (approximately £800,000) said to be outstanding for past legal services. Mr. Haughton stated that his client would be happy to avail of the “ad hoc legal aid scheme (Criminal Assets Bureau)” which has been in place since the 2nd April, 1998, and asked the Court to recommend that Mr. B. have the benefit of this scheme.

4. In support of this application Mr. Haughton pointed to his client’s statement on Affidavit in relation to his means, and stated that these had not been effectively contradicted and that, in particular, no notice of intention to cross examine had been served.

5. These statements extended to the following:-

6. On the basis of the relief sought, on this Appeal the question of a payment out under Section 6 of the Act, 1996 of the monies seized by the Plaintiff does not arise. In the Notice of Motion, the payments out of these monies was sought, not to fund forthcoming litigation but to pay “outstanding legal fees and ........... for the transcript”.

7. Neither in the High Court nor in this Court was any application pursued for the payment out of a sum to partially discharge, to the extent of approximately ³/_8th only according to the Affidavit, the cost of legal services already rendered.

8. Furthermore, if the first relief sought in the Notice of Motion had been contended for, I would not have been prepared to grant it on the present state of the evidence. There are bald statements as to sums due to Solicitor and Counsel, unsupported by vouchers of any sort, by particulars of sums already paid if any, or by details of the arrangement under which Solicitor and Counsel rendered their services. Furthermore, the monies the subject of the application are not claimed by Mr. B. himself, or by the Company, to be in their own beneficial ownership. There is merely an unvouched and unparticularised statement that the persons who are the beneficial owners consent to the application. More generally, there is insufficient information to arrive at a conclusion as to the merits of the application. This is so particularly in view of the findings of Mr. Justice O’Higgins in his judgment dated the 4th of June, 1999 which do not appear to be the subject of any appeal. I refer in particular to the comments in relation to the second-named Defendant/Appellant at page 125 of the judgment, which represent the learned judge’s conclusions from a considerable body of evidence analysed on earlier pages.

9. I now turn to the application for a recommendation in relation to the ad hoc legal aid scheme. This appears to me to raise issues quite different from those arising on an application under Section 6 of the 1996 Act. In particular, it seems possible to approach this application, in the circumstance of the present case, without any consideration of the merits of the litigation to which it refers.

10. The matters which are of importance to note in relation to the scheme are the following:-

11. It appears from this formulation that a recommendation by the Court in relation to the application of the ad hoc legal aid scheme will, in practise, mean that legal aid under the scheme will be available for the Applicant.

12. It appears to me that Mr. Haughton is correct when he says that inadequate steps have been taken to dispute the Applicant’s assertion as to his present inability to discharge legal costs. In this regard, it may be noted that the alteration of the normal onus of proof, in relation to substantive applications under the 1996 Act, does not appear to have been extended to applications for a recommendation in relation to the legal aid scheme.

13. I am also satisfied that the circumstances of the case make it essential in the interest of justice that the Respondents be legally represented. The entire statutory jurisdiction is, in its own terms, both complex and exceptional. The important constitutional considerations identified in State (Healy) v. Donoghue [1976] IR 325 in relation to criminal legal aid would appear to apply to a substantive application such as the present. It is beyond dispute that the complexity of the present application far exceeds that of the underlying criminal charge in the case cited.

14. For these reasons, I would make a recommendation that the Applicant be afforded legal aid under the terms of the ad hoc scheme referred to above, and that the level of representation afforded to him should extend to Solicitor and two Counsel. This recommendation relates to the forthcoming litigation only. I express no view either as to whether there is jurisdiction to entertain a retrospective application for legal aid or, if there is such jurisdiction, on the merits of such an application in the present case.