Woman loses damages claim in case over delay in getting legal aid

A woman who had to wait more than a year and a half for the State to provide her with legal aid to help her obtain a judicial separation from a violent husband has failed in a High Court attempt to be compensated for the delay.

The case was described by the Free Legal Advice Centres as a test case challenging delays in the State's provision of civil legal aid.

The woman first applied for legal aid for her judicial separation proceedings on September 27th, 1997. The board told her the same day that, because of demand for services at the Tallaght Law Centre, it could not even process her application at the time.

It took 20 months for the application to be processed and for legal aid to be granted. The woman eventually secured a judicial separation in December 2000.

There was a second period of delay between July 1999, when the woman secured her legal aid certificate, and April 2000, when she took her High Court proceedings. She complained that she received only one communication from the board during that time.

Between 1997 and 2000 she also applied for legal services in connection with a domestic violence matter and she had been assisted by the board's complementary Private Practitioner's Scheme.

She lost her first application for a barring order but successfully applied for a maintenance order. After securing her legal aid certificate, she made another application for a barring order, and she secured that in July 1999.

In his reserved judgment yesterday, Mr Justice Butler noted that the woman had been forced to leave the family home because of a violent incident while she was waiting for her legal aid application relating to the judicial separation proceedings to be processed. However, he saw no connection between the woman having to leave her home and the delay in the judicial separation proceedings, as the woman had legal aid available to her under the Private Practitioner's Scheme.

The judge said it seemed that the delay suffered by the woman was the ordinary inconvenience caused by any such delay, namely not having an important matter dealt with promptly and not having her affairs settled. The only outstanding issue was damages.

Damages were claimed on the grounds that there had been a breach of statutory duty arising from the rights and duties imposed on the board by section 5 of the Civil Legal Aid Act, 1995. This required the board to provide "within the board's resources", and subject to the other provisions of the Act, legal aid and advice in civil cases involving persons who met the requirements of the Act.

The judge said the uncontroverted evidence was that the board's resources were limited and stretched, particularly at the time the woman made her application. This was due to several matters, including the introduction of divorce. He was satisfied that the language of section 5 was plain and obvious. It meant legal aid should be provided within the board's resources, which was precisely what the board had done.