Lavery (No.2), In re [1999] NIQB 6; [1999] NIJB 184 (16th March, 1999)
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
KERC2781 16 March 1999
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN'S BENCH DIVISION (CROWN SIDE)
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IN THE MATTER OF AN APPLICATION BY SHARON LAVERY
FOR JUDICIAL REVIEW (No.2)
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KERR J
Introduction
1. This is an application by Sharon Lavery for judicial
review of various decisions of the Legal Aid department of the Law Society in
relation to her entitlement to legal aid for legal representation at an inquest
into the death of her husband, Paul Lavery.
Background
2. On 24 September 1997 the applicant's solicitors applied
to the Legal Aid department for legal aid to represent the applicant at the
inquest. The department replied on the same date, informing the solicitors that
legal aid was "not available" for representation in such proceedings, citing
Schedule 1 to the Legal Aid, Advice and Assistance (Northern Ireland) Order
1981. This lists the proceedings for which legal aid may be allowed. Paragraph 5
of Schedule 1 includes proceedings before a coroner but Article 1(3) of the
Order provides that paragraph 5 shall come into operation on such day as the
Secretary of State shall by Order appoint. No such Order has been made. Since
1982 the power to make the relevant Order has vested in the Secretary of State
by virtue of the Legal Aid, Transfer of Functions (Legal Aid and Maintenance
Orders) 1982 [SI 1982/59]. The letter of 24 September invited the applicant's
solicitors to confirm that they wished to have legal aid to hold a watching
brief at the inquest. The applicant's solicitors must have confirmed that they
wished to have that limited legal aid for, on 25 September 1997, the department
wrote to them enclosing a legal aid certificate for the prosecution of the
applicant's claim against the Department of the Environment in respect of her
husband's death; this certificate was limited in operation to the attendance of
the solicitors at the coroner's court to hold a watching brief.
3. Also on 25 September 1997 the applicant's solicitors
applied to the department for legal aid to pursue an application for leave to
apply for judicial review of the Lord Chancellor's decision not to bring into
operation paragraph 5 of Schedule 1 to the 1981 Order. This was refused by an
officer of the Legal Aid department on 26 September 1997. An appeal against that
refusal and the refusal of legal aid for representation at the inquest was
lodged immediately and it was heard and determined by the legal aid committee
the same day. The committee confirmed the refusal of legal aid. On 29 September
1997 the applicant's solicitors wrote to the Legal Aid department informing them
that they were considering an application for leave to apply for judicial review
of the committee's decision and asking for detailed reasons for the committee's
refusal of legal aid. The department replied on 30 September stating that the
applicant "had not disclosed reasonable grounds for taking the proposed
proceedings".
4. When the application was made to the department on 25
September 1997 the applicant's solicitors had submitted the following
documents:-
(i) an opinion from Mr Treacey of counsel advising that it was necessary that
the applicant be represented at the coroner's court and that a watching brief
would not be sufficient
(ii) a draft Order 53 statement seeking an order of mandamus to compel the
Secretary of State to bring into operation paragraph 5 of Schedule 1 to the 1981
Order, together with draft affidavits in support of the application.
5. The following documents were provided for the hearing of
the appeal by the legal aid committee on 26 September 1997:-
(i) a further opinion from Mr Treacy. This advised that, while legal aid may not
generally be available for coroners' inquests, there was nothing in Article
10(3) of the 1981 Order which precluded it, if representation at the inquest
could be regarded as a 'step preliminary or incidental' to High Court
proceedings
(ii) a further draft Order 53 statement which, as well as seeking an order of
mandamus similar to that sought in the draft submitted on 25 September, sought
an order of certiorari quashing the decision of the department that legal aid
was not available for inquests. A draft affidavit supporting the application was
also enclosed.
6. It appears that Mr Treacy had written another opinion
dated 25 September 1997. This dealt with the failure of the Secretary of State
to bring into force paragraph 5 of Schedule 1 to the 1981 Order. This was not
enclosed with the application for legal aid to pursue the application for
judicial review of the Lord Chancellor's failure to exercise his powers under
Article 1(3). In fact, the department first became aware of it when it was
produced for these proceedings.
7. The reasons for the refusal of legal aid by the committee
were stated, in an affidavit of George Andrew Carnson, the acting chairman of
the committee, to be that legal aid for representation at an inquest was not
available; it was therefore inappropriate to grant legal aid to challenge the
Lord Chancellor's failure to bring into effect paragraph 5 of Schedule 1. By the
same token, it was not appropriate to grant legal aid for representation at the
inquest.
8. An application for leave to apply for judicial review of
the decisions of the department refusing legal aid was made on 19 November 1997;
it was granted in the same date. An application for legal aid to pursue the
application for judicial review was then made on 16 December 1997. This was not
in proper form. A properly formulated application was received by the department
on 16 January 1998. It was granted on 20 January 1998.
The judicial review application
9. By her amended Order 53 application the applicant seeks
judicial review of four decisions of the department viz (i) the decision
that legal aid was not available for legal representation at inquests (ii) the
refusal of legal aid to pursue the application for leave to apply for judicial
review of the Lord Chancellor's failure to bring into operation paragraph 5 of
Schedule 1 to the 1981 Order (iii) the refusal to grant legal aid to pursue an
application for judicial review of the department's decision that legal aid was
not available for inquests and (iv) the failure to process the application of 16
December 1997 promptly.
The alleged failure of the Department to deal promptly with the application
of 16 December 1997
10. I propose to deal with this argument first because it
can be disposed of briefly. I am satisfied that the department was justified in
concluding that the application had not been made in proper form before 16
January 1998. Thereafter the matter was dealt with expeditiously. I do not
consider that the department can be faulted for the manner in which it dealt
with this application.
The refusal of legal aid to apply for leave to challenge the Lord
Chancellor's failure to bring into operation paragraph 5 of Schedule 1 to the
1981 Order
11. As I have already said, the material available to the
department and the committee from the applicant's solicitors was confined to two
opinions from counsel and the draft Order 53 proceedings. Neither opinion
addressed the question of whether the Lord Chancellor was under a duty to bring
paragraph 5 of Schedule 1 into operation. Indeed both were on entirely different
themes ie the need of the applicant to be represented at the inquest and
the scope of Article 10(3) of the 1981 Order. The first draft of the Order 53
statement referred to the clear intention of Parliament that legal aid should be
made available at inquests and suggested that the Secretary of State (in fact,
as pointed out earlier, this should have been the Lord Chancellor) had
frustrated the will of Parliament in failing to activate paragraph 5. It also
referred to Article 2 of the European Convention on Human Rights and Fundamental
Freedoms which, it was suggested, in combination with Article 1 required that
there be "some form of effective official investigation when individuals have
died". The second set of draft proceedings included the former of these grounds
but omitted the latter.
12. On the hearing of this application counsel for the
applicant frankly acknowledged that the issue for the court was whether, on the
material before them, the Legal Aid authorities had acted reasonably in refusing
the application for legal aid. In other words, unless it could be shown that the
officer of the Society and the committee had acted unreasonably in the
Wednesbury sense, their decisions could not be challenged. I am not
prepared to hold that decisions of the officer and the committee were
irrational. On the limited information available to them, it was within their
margin of discretion to conclude that the applicant had not disclosed reasonable
grounds for taking the proposed proceedings.
Is legal aid available for representation at inquests?
13. Counsel for the applicant, in advancing the argument
that legal aid was available for representation at inquests relied principally
on Article 10(3) of the 1981 Order. This provides:-
"Legal aid shall consist of representation, on terms provided for by this Part,
by a solicitor and so far as necessary by counsel, including all such assistance
as is usually given by a solicitor or counsel in -
(a) the steps preliminary or incidental to any proceedings; or
(b) in arriving at or giving effect to a compromise to avoid or bring to an end
any proceedings."
14. It was suggested that attendance at and representation
of the next of kin at an inquest can, in appropriate cases, be properly regarded
as a step preliminary to or incidental to proceedings.
15. I do not consider that it is appropriate to construe
Article 10(3) in isolation from the other provisions of the 1981 Order. Clearly
Parliament intended that legal aid for representation at inquests should be
available but only when this was deemed suitable by the Secretary of State (and,
latterly, the Lord Chancellor). It would be anomalous if the Legal Aid
authorities were allowed to grant legal aid before this was considered
appropriate by the minister who had been given the duty to decide when it should
become available for such proceedings. The scheme of the legislation is such, in
my opinion, that legal aid for representation at inquests cannot be granted
until paragraph 5 of Schedule 1 has been activated. I do not consider,
therefore, that the authorities can be criticised for having refused legal aid
for representation at the inquest. Equally, their decision to refuse legal aid
for a judicial review challenge to that decision cannot be faulted. The
application is therefore dismissed.
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN'S BENCH DIVISION (CROWN SIDE)
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IN THE MATTER OF AN APPLICATION BY SHARON LAVERY
FOR JUDICIAL REVIEW
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JUDGMENT
OF
KERR J
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