Applicant under ad hoc legal aid scheme must show his means are insufficient

M.M. (plaintiff) v G.M., P.B., P.C. Ltd and G.H. (defendants).

Costs - Ad hoc legal aid scheme (Criminal Assets Bureau) - Applicant asserting that entire as- sets seized by Criminal Assets Bureau - Assertion not effectively contradicted - Whether applicant means insufficient to obtain legal representation - Whether necessary in interests of justice that applicant should have legal aid.

The Supreme Court (Mr Justice Murphy, Mr Justice Murray and Mr Justice Hardiman); judgment delivered 3 April 2001.

In making a recommendation under the ad hoc legal aid scheme (Criminal Assets Bureau), the court must be satisfied that the means of the applicant are insufficient to enable him to obtain legal representation on his own behalf and that it was essential in the interest of justice that the applicant should have legal aid in the preparation or conduct of his case. The Supreme Court so held in holding that the applicant had satisfied the court of these matters in circumstances where the applicant's assertion as to his inability to discharge legal costs had not been effectively contradicted, and in ruling that the statutory jurisdiction under the Proceeds of Crime Act 1996 was both complex and exceptional such that the constitutional considerations previously identified by the court in relation to criminal legal aid applied to a substantive application under the Act. The court reserved its position in relation to the jurisdiction to make a retrospective recommendation for legal aid.

Donal O'Donnell SC and Brian Murray BL for the plaintiff; Gabriel F. Haughton, solicitor, for the second defendant.

Mr Justice Hardiman said that by order of 23 July 1999, the High Court (Mr Justice O'Higgins) had made an order pursuant to section 3 of the Proceeds of Crime Act 1996, prohibiting the defendants from disposing or otherwise dealing with a sum of approximately £300,000. On 2 October 2000, the second and third defendants issued a notice of motion seeking an order for the payment out of the moneys the subject of the High Court order for the purpose of paying outstanding legal fees and such sum as would be necessary to pay for the transcripts, and for a recommendation under the ad hoc legal aid scheme in respect of the costs of the appeal. That application had been refused by the High Court (Mr Justice Butler) primarily on the basis that the information furnished was inadequate as the second defendant had given no information as to his means of livelihood and no sufficient information as to his business. Mr Justice Hardiman said that the nature of the relief sought by the defendants on appeal had changed significantly. At the hearing of the appeal, the second defendant stated that his concern related wholly to the funding of future litigation and in particular an application to the High Court which was listed for 24 April 2001. He was not concerned with the release of funds to discharge the apparently very considerable sum said to be outstanding for past legal services, and it was stated on his behalf that he would be happy to avail of the "ad hoc legal aid scheme (Criminal Assets Bureau)" and he asked for a recommendation that he have the benefit of this scheme.

The second defendant had stated on affidavit that he was without any significant income or assets, that his business had been shut down and that he had no prospects in the foreseeable future of earning a living. He stated that the only source of moneys from which he could provide the money to pay for the transcript of evidence and for legal fees lay in the moneys which were at present being held by the plaintiff. It had been submitted on behalf of the second defendant that those averments had not been effectively contradicted and no notice of intention to cross-examine had been served.

Mr Justice Hardiman stated that on the basis of the relief sought, the question of a payment out under section 6 of the 1996 Act did not arise. The notice of motion sought the partial discharge of outstanding legal fees, but on the hearing of the application and of the appeal, this application had not been pursued. Furthermore, Mr Justice Hardiman said that if the application had been pursued, he would not have been prepared to grant it on the present state of the evidence. There were 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 moneys the subject of the application had not been claimed by the second defendant or by the third defendant to be in their own beneficial ownership. There was merely an unvouched and unparticularised statement that the persons who were the beneficial owners consented to the application. More generally, there was insufficient information to arrive at a conclusion as to the merits of the application.

Turning to the application for a recommendation in relation to the ad hoc legal aid scheme, Mr Justice Hardiman said that this appeared to raise issues quite different from those arising on an application under section 6 of the 1996 Act. In particular, it seemed possible to approach this application, in the circumstances of the present case, without any consideration of the merits of the litigation to which it referred. The matters which were of importance in relation to the scheme were the following: (a) that the grant of legal aid, including the level of legal representation, was a matter for the court; and (b) the court considering the application must be satisfied that the means of the applicant were insufficient to enable him to obtain legal representation on his own behalf; and (c) that by reason of the exceptional circumstances it was essential, in the interest of justice, that the applicant should have legal aid in the preparation or conduct of his case.

It appeared that a recommendation by the court in relation to the application of the scheme would, in practice, mean that legal aid under the scheme would be available for the applicant.

Mr Justice Hardiman said that the second defendant's solicitor was correct in his submission that inadequate steps had been taken to dispute the second defendant's assertion as to his present inability to discharge legal costs. In this regard, it might be noted that the alteration of the normal onus of proof in relation to substantive applications under the 1996 Act did not appear to have been extended to applications for a recommendation in relation to the legal aid scheme.

Mr Justice Hardiman said that he was also satisfied that the circumstances of the case made it essential in the interest of justice that the defendants be legally represented. The entire statutory jurisdiction was, 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 was beyond dispute that the complexity of the present application far exceeded that of the underlying criminal charge in the case cited.

The court made a recommendation that the second defendant be afforded legal aid under the terms of the aforesaid scheme, and that the level of representation afforded to him should extend to solicitor and two counsel. Mr Justice Hardiman said that this recommendation related to the forthcoming litigation only. No view was expressed wither as to whether there was jurisdiction to entertain a retrospective application for legal aid, or, if there was such a jurisdiction, on the merits of such an application in the present case.

Mr Justice Murphy and Mr Justice Murray concurred.

Solicitors: the Chief State Solicitor for the plaintiff; Haughtons (Dun Laoghaire) for the second defendant.

Siobhan Stack Barrister