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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