Civil Legal Aid

Background

Many claims for personal injury are taken on a contingency basis.  This is sometimes described as no foal no fee.  This means that legal fees are charged only if the case is successful.

Strictly speaking an agreement of this nature is void at law as against public policy which discourages the promotion of litigation and the taking of a stake in another’s litigation.  In the United Kingdom, formal provision has been made for contingent fees arrangements.

Free legal aid centres have operated on a voluntary basis with ad hoc support from Governmental and other Departments for over almost 40 years.  The participants are voluntary and are not always qualified solicitors.  Their remit is relatively narrow and is usually limited to advice on State benefits entitlements and family law matters.

Initial Scheme

In the case of Airey v Ireland, a case was taken by a woman who had sought to initiate separation proceedings in the High Court but had been unable to secure legal assistance.  The European Court of Human Rights declared that the State was in breach of its obligations to provide access to court, where legal assistance was required for effective access.

The State was held to be in breach of its obligations where legal aid was not available in cases where it was necessary due to the complexity of the case. Because the separation procedure was complex, the Court found that the rights had been breached by failure to provide legal aid in the circumstances.

In response to the case, the Government established a non-statutory Scheme of Legal Aid in 1979.  A Legal Aid Board was established, and a number of Law Centres were opened staffed by solicitors.  Solicitors in the Centres provided legal advice and aid, including the initiation of certain types of case.

The scheme was poorly funded, although the position improved over time.  The relatively narrow scope and coverage were such that questions were raised as to whether the State was in compliance with its international obligation.

In a number of High Court cases, the courts began to hold that in effect, the right of access to the courts, being a Constitutional right and that the failure to provide an effective scheme might breach that right.  Awards were made against the State for the delay in providing legal aid where there was breach of duty, due to a delay in considering grant of legal aid.

Statutory Scheme

The Civil Legal Aid Act, 1995 placed the scheme on a statutory basis.  This established the Legal Aid Board.  The Legal Aid Board is appointed by the Minister for Justice.  Two members are barristers, two are solicitor and two are staff members of the Board.

The Legal Aid Board must, subject to resources, provide legal aid and advice in cases to persons who meet eligibility the criteria.  They also have functions to disseminate information regarding their services.

The service is provided by full-time employees, who are based in Law Centres.  A percentage of employees are solicitors. The Board may provide a panel of solicitors who are available to provide legal aid and advice.  This is equivalent to the criminal panel.

Legal aid and advice may be given verbally or in writing.  It is generally limited to the law of the State although exceptionally advice in relation to the law of another state may be permitted.

Qualification for Aid

In order to qualify for civil legal aid, a person must meet both a means test and a test in relation to the merits of the case.  Legal aid will not be granted unless in the Board’s opinion, a reasonably prudent person who could afford to engage the relevant services would be likely to do so and a solicitor or barrister would be likely to advise such a person to proceed at his own expense

The means test requires that the person satisfies eligibility criteria and pay a contribution. Eligibility depends on disposable income, which is gross income net of necessary expenditure and disposable capital.  The value of a house is generally excluded.

Regulations are made setting out the disposable income levels for qualification for Civil Legal Aid.  Disposable income must be less than [€18,000]. A minimum contribution of [€10 euro] is required if disposable income is above a certain amount.  Between the thresholds, the contribution share is one-tenth of the difference between disposable income or both the threshold subject to a maximum contribution.

Disposable capital is considered for civil legal aid but not civil legal advice.  If his disposable capital exceeds [€100,000] the person is ineligible for legal aid.

Exceptionally, the Board may grant legal aid without reference to means and may waive a contribution.  This may be done if there would be otherwise undue hardship to the applicant.

Exclusions

Civil legal aid may not cover criminal matters.  This is covered exclusively by the criminal legal aid scheme.

Legal advice may be provided in respect of the excluded matters listed below in respect of which legal aid is excluded. Legal aid (litigation) is excluded for

• defamation,
• conveyancing
• claims made as a personal representative or trustee.
• Class actions
• Test cases
• Licensing
• Small claims procedures,
• land and property claims

Requirement for Applicant

A legal aid certificate is granted to a successful applicant for legal aid.  The applicant must

• satisfy the eligibility criteria,
• have reasonable grounds of instituting, defending, or being a party to the proceedings,
• would be reasonably likely to succeed in the proceedings for which aid is sought, and
• proceedings must be the most satisfactory means of achieving the result
• having regard to all the circumstances it is reasonable to rant the application (including the costs versus likely benefit)

In practice, personal injuries cases are rarely funded.

The latter criteria relating to likely success, cost v benefit and other methods of resolution do not apply to matters concerning child, welfare or access. It does not imply to guardianship, child abduction and custody case.

Courts & Tribunals Covered

Legal aid may be granted for any court.  The case must be taken in the lowest court having jurisdiction.

Legal aid is not available for Workplace Relations Commissions cases although this was proposed, subject to budgetary resources.  Legal aid may be permitted in prescribed courts and tribunals subject to ministerial order.

Legal aid does not apply to the social welfare appeals tribunal.

It includes legal aid and advice in relation to refugee status.  Such cases came to represent a significant percentage of all cases in the first decade of the millennium.

The Legal Aid Board is comprised of over 100  solicitors and total staff 490, Its budget was [€60 million].

Legal aid has been used predominantly in family cases.