Court of Appeal in Northern Ireland Decisions

1. This is an appeal by the Law Society of Northern Ireland against an order of Kerr J made on 18 January 2000, whereby on the application of the respondent Tom Hartley he quashed a decision of the Society's Legal Aid Committee refusing him legal aid for an application for judicial review in respect of the nomination of councillors by Belfast City Council to committees and public bodies. The application raised important questions concerning the interpretation and application of the legislation governing the administration of legal aid. The substantive application concerning the nomination of councillors has now been determined, but because the parties wished to have a ruling from the court on the issues involved in the appeal for guidance in future cases we agreed to hear and determine the appeal.

2. The respondent, a member of Sinn Fein, was at all material times a member of Belfast City Council, having been elected as a councillor for the Lower Falls electoral area in the local government election held in May 1997. In January 1998 he proposed to issue proceedings in the High Court seeking judicial review of decisions of the Council concerning nominations to committee posts and membership of various public bodies. He claimed in the affidavit sworn by him grounding the proceedings that Sinn Fein had been –

3. In the application, which was brought in due course by the respondent, he claimed declarations and an injunction against the exclusion of Sinn Fein councillors from these posts. The respondent's solicitors applied on his behalf on 27 January 1998 to the Legal Aid Department of the Law Society for an emergency certificate of legal aid to pursue the application for judicial review. In support of the application they submitted a draft statement under Order 53 and grounding affidavit, together with an undated opinion of counsel. That opinion focuses, as did the draft statement and affidavit and a report prepared by the respondent exhibited to the affidavit, upon the complaint advanced by Sinn Fein of systematic exclusion from posts in general rather than upon the respondent's own complaint of exclusion from the particular post of Harbour Commissioner. The same concentration on the grievance expressed by Sinn Fein councillors as a whole may be seen from the correspondence exhibited.

4. By a letter dated 29 January 1998 the Legal Aid Department notified the respondent's solicitors that it had refused the application for legal aid. The letter, written in the Department's standard form, gave the following reasons:

5. The respondent's solicitors appealed on 13 February 1998 against the refusal of legal aid. The appeal was heard on 6 March 1998 by the Legal Aid Committee (the Committee), chaired by Miss Ruth Collins. The members of the Committee had been supplied in advance of the meeting with the necessary grounding documents. Miss Angela Ritchie, a member of the firm of solicitors acting for the respondent, appeared at the hearing and gave information to the Committee in answer to a number of questions posed by the members. Miss Collins set out in paragraphs 4 and 5 of her affidavit sworn in these proceedings the course of the Committee's consideration of the matter:

6. The committee decided unanimously to refuse the appeal. Miss Collins noted on the case summary "Refused. 7g", a reference to Regulation 7(g) of the Legal Aid (General) Regulations (Northern Ireland) 1965, as amended. The Legal Aid Department informed the respondent's solicitors of the result of the appeal by a letter dated 11 March 1998, in the following terms:

7. The solicitors pressed the Department in several letters to provide fuller reasons for the refusal, and by letter dated 31 March 1998 the Department replied as follows:

8. The respondent applied for leave to bring the present application by lodging a statement dated 27 April 1998 and leave was given by Kerr J on 29 April. The application was heard on 23 October 1998 and the judge gave a written judgment on 18 January 2000, in which he set out his reasons for quashing the Legal Aid Committee's decision refusing the respondent's appeal. The Law Society appealed by notice dated 7 February 2000 and the matter came before us for hearing on 22 May 2000.

9. The grant or refusal of legal aid is governed by the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981. The material provision for present purposes is Article 10, which defines the scope and general conditions of legal aid. Paragraphs (4) and (5) of Article 10 provide:

10. Regulations were made under the predecessor legislation the Legal Aid and Advice Act (Northern Ireland) 1965, and these regulations, the Legal Aid (General) Regulations (Northern Ireland) 1965 (the 1965 Regulations), which have been frequently amended, are still in operation although that Act was repealed and replaced by the 1981 Order. Regulation 2(1) is the starting point: it provides that –

11. Regulation 3(1) directs that applications for certificates in respect of proceedings in the House of Lords, Privy Council or Court of Appeal are to be made to the Legal Aid Committee, and applications in respect of any other proceedings are by Regulation 3(2) to go to a certifying committee. In Regulation 1(2) the term "appropriate committee" is defined as meaning the Legal Aid Committee or a certifying committee to whom an application for a certificate has been made.

12. Regulation 5(1) specifies the matters to which the secretary to the certifying committee is to have regard when considering the issue of a certificate:

13. It may be noted that this provision refers only to a certifying committee and does not extend to the Legal Aid Committee, whereas many of the other provisions of the Regulations are applicable to the "appropriate committee". One such provision is Regulation 5(11), much canvassed in this litigation, which reads:

14. Regulation 7 deals with the refusal of certificates, the material part being paragraph ( g):

15. It is to be noted that this provision is merely administrative, specifying the grounds of refusal to be set out in a notice of refusal. For the grounds on which the appropriate committee is to base its decision to grant or refuse legal aid one has to go back to Article 10 of the 1981 Order, supplemented by the mandatory requirement of refusal contained in Regulation 5(11). Appeals against the refusal of a certificate by a certifying committee are governed by Regulation 10, of which the material parts are paragraphs (1), (2) and (5) (as amended):

16. Again it is to be observed that Regulation 10(5) does not purport to specify the grounds on which the Legal Aid Committee should determine whether to allow or dismiss an appeal, which are governed by Article 10 of the 1981 Order. The learned judge correctly stated at page 12 of his judgment that this provision –

17. If one takes at face value the wording of paragraph 2 of the second affidavit sworn by Miss Collins, dated 9 October 1998, it would look as if the Legal Aid Committee regarded Regulation 10(5) as containing the criterion to be applied by it in deciding the appeal. She said in that passage:

18. She went on to state in paragraph 4:

19. The learned trial judge held that it would not have been open to the Legal Aid Committee to apply Regulation 5(11), and that it was not entitled to use it as a guideline in discharging its function under Regulation 10(5). After considering the terms of Regulation 5(11) he stated at page 11 of his judgment:

20. He went on at page 12:

21. He also considered the need for the Committee to give reasons and the adequacy of those given, but this issue was not the subject of any argument before us on appeal.

22. The issues which were debated before us were the following:

23. The positive and negative criteria for allowing or refusing legal aid are set out in paragraphs (4) and (5) of Article 10 of the 1981 Order. The Legal Aid Committee fairly clearly took the view that the respondent satisfied the positive criterion in paragraph (5) of having reasonable grounds for taking the proceedings. It focused on the issue whether it was unreasonable that he should receive legal aid. Its consideration was directed to the question whether the applicant was acting in effect in a representative capacity on behalf of the Sinn Fein members of Belfast City Council. As appears from Miss Collins' affidavit, the Committee took the view that he was so acting and that it was unreasonable in those circumstances that he should receive legal aid. The Committee expressed its conclusion in the terms that it "appeared unreasonable, in the particular circumstances of the case," that the respondent should receive legal aid. This is the statutory criterion contained in Article 10(5) and it was in our view the correct criterion to apply. An argument was put forward on behalf of the respondent that the statement contained in paragraph 2 of Miss Collins' second affidavit shows that the Committee applied the wrong criterion and accordingly its decision was wrong in law. In so far as the committee "directed its mind" to Regulation 10(5) of the 1965 Regulations, however, that cannot be described as the application of a criterion for refusing legal aid. That provision merely describes the various steps which the Committee has power to take, not the test which it is to apply in considering whether to grant or refuse legal aid to an applicant. Whatever is meant by the wording of Miss Collins' averment, it is plain that the Committee applied the statutory test in reaching its conclusion that legal aid should be refused.

24. The judge held that (a) Regulation 5(11) of the 1965 Regulations did not apply to judicial review proceedings (b) the Committee was not entitled to have regard to this provision even as a guideline in deciding whether to refuse legal aid. We are unable to agree with either proposition.

25. The judge held, in the passage which we have quoted, that the words in Regulation 5(11) "cause or matter in which ... one or more may sue or be sued" confine the application of that provision to civil claims in private law. He went on to say that judicial law is a public law remedy, not a "cause" on which one sues. The definitions of "cause" and "matter" in section 120 of the Judicature (Northern Ireland) Act 1978 are, however, very wide. "Cause" is defined as including "any action, suit or other original proceeding between a plaintiff and a defendant" and "matter" as including "every proceeding in court not a cause." Between them accordingly the words "cause or matter" must include judicial review proceedings. The words "sue or be sued" also appear to be capable of a much wider meaning than to be a party to a civil action. One of the meanings contained in the Concise Oxford Dictionary is "make entreaty or application to person or law court (for redress ...)". It would appear to make rather better sense to interpret the phrase in such a way as to include applications for judicial review and we see no compelling reason to restrict it to civil actions if it will bear that meaning.

26. Mr Lavery pointed to the words "in accordance with rules of court" and submitted that the only rules contained in RSC (NI) 1980 on the point are to be found in Order 15 and that the reference to "plaintiffs" and "defendants" in rule 12 was an indication that the rules covered only civil actions. Those terms are, however, defined very broadly in section 120 of the Judicature (Northern Ireland) Act 1978 and appear to be quite capable of covering applicants or respondents in judicial review proceedings. By way of an alternative argument counsel submitted that Regulation 5(11) applies only to matters which come direct to the Legal Aid Committee, not to those which reach it by way of appeal from certifying committees. We see no reason why the provision should be interpreted in this manner and its wording appears to us quite clear. Mr Lavery also urged before us the consideration that groups of persons affected by decisions the subject of challenge in public law proceedings may be very diverse, not to say diffuse, and may not have available funds with which to support their case in a judicial review application. It seems to us, however, that the appropriate committee is entitled and bound to have regard to factors of that kind under paragraph (b) of Regulation 5(11) and that that is not a good ground for construing the provision so as to exclude public law proceedings.

27. We accordingly are of opinion that Regulation 5(11) does extend to applications for judicial review and covers cases which come before the Legal Aid Committee on appeal from certifying committees. It is mandatory in its terms and the Committee would have been obliged to refuse legal aid if it had been satisfied of either of the matters set out under (a) and (b) in that paragraph. It has not ruled on whether it was satisfied, although it appears clear from the terms of Miss Collins' first affidavit that it would have regarded condition (b) as having been fulfilled. It did not attempt to deal with the issue, no doubt because the members were aware of the observation made in this court in Re McLaughlin's Application (1990, unreported), in which Hutton LCJ stated at page 4 of his judgment that Regulation 5(11) related only to decisions of the certifying committee, not the Legal Aid Committee. It is clear, however, from the use of the words "appropriate committee" that Regulation 5(11) relates to both committees, and the court's contrary statement must be taken to have been made per incuriam.

28. Miss Collins states that the Committee adopted the provision as a guideline, but it is contended on behalf of the respondent that it was wrong to do so. We consider that this contention is incorrect, whether or not Regulation 5(11) extends to an appeal to the Committee in respect of an application for legal aid to bring judicial review proceedings.

29. If Regulation 5(11) did so extend, then the Committee should have considered the matters set out in (a) and (b) of that regulation. It was submitted that as it did not do so it mistook its authority and failed to apply the correct provision, with the result that its decision must be set aside. It is clear from the terms of paragraph 5 of Miss Collins' first affidavit, however, that the Committee applied the same criteria as those contained in paragraph (b) of the regulation and came to the conclusion that the other Sinn Fein councillors had the same interest in the matter as the respondent and that it was reasonable and proper for their party to support his application for judicial review. If it had considered the matter by reference to Regulation 5(11) it would accordingly have concluded that it was obliged under its terms to refuse legal aid. Since it concluded by reference to the same criteria that legal aid should be refused, it applied the correct considerations, even if it did not appreciate that it was bound by the regulation to decide as it did. In those circumstances we do not consider that the decision should be set aside.

30. If we are wrong in our construction of Regulation 5(11) and it did not extend to the appeal before the Committee, then it correctly did not attempt to apply that provision. It used its terms as a guideline in determining whether it was unreasonable that the respondent should receive legal aid. The respondent's counsel submitted that it was wrong in law to do so, but we are unable to accept that proposition. On this supposition Regulation 5(11) would not be an empowering provision, the source of the Committee's authority to act, and accordingly the Committee was not purporting to exercise the authority conferred by it. Its authority came from Article 10(5) of the 1981 Order, and it was looking to Regulation 5(11) only for assistance in deciding the basic issue, whether it was unreasonable that the respondent should receive legal aid. We see no reason why it should not have done so and placed such weight as it saw fit on the considerations set out in Regulation 5(11).

31. Counsel for the appellant advanced, with the leave of the court, a final argument which had not been argued in the court below. The substantive application for judicial review of the decisions of Belfast City Council relating to the nomination of councillors for membership of Council committees and public bodies was heard and determined before the present application for judicial review of the Legal Aid Committee was heard in the court below. Mr Smith submitted that legal aid cannot be granted with retrospective effect but can apply only to work done after the issue of a certificate. Accordingly if, contrary to his submission, the judge was right to find in favour of the applicant, the remedy granted had no practical effect and he should in the exercise of his discretion have refused to make an order.

32. Regulation 1(2) of the 1965 Regulations defines an "assisted person" as a person in respect of whom a certificate is in force and a certificate as "a civil aid certificate issued in accordance with these regulations entitling a person to legal aid". Regulation 2(1) provides:

33. Counsel for the respondent argued that these decisions did not deal with the situation where a certificate had been wrongly refused by the legal aid authority itself. They submitted that when that decision is set aside by the court as having been wrongly reached, a certificate could then be issued which would operate from the date of the incorrect decision. This would be putting into effect the ruling of the court and would leave intact the reasoning and result of the cases which had been cited.

34. Attractive as this argument is, we do not think that we can accede to it. In our opinion the intention of the provisions of the regulations to which we have referred is clear, and it is not possible to escape from the conclusion that a certificate can operate only from the date on which it is issued. We do not consider that there is room for exceptions, which might only lead to confusion and uncertainty, or that the court has power to alter this state of affairs. We accordingly conclude that the appellant's submission is correct and that if we were to decide that legal aid had been incorrectly refused to the respondent, and he were now to receive a certificate, it would not entitle him to legal aid in respect of the costs which he incurred in pursuing the substantive application. It follows that to set aside the Legal Aid Committee's decision would accomplish nothing of practical effect. On that ground we should, if it had been material, have declined in the exercise of our discretion to make an order setting it aside.

35. For the reasons which we have given we conclude that the appeal must be allowed and the learned judge's order reversed.