A landmark judgment may mark the beginning of the end for those hapless citizens languishing on civil legal aid waiting lists, writes Paul Joyce.
Fintan O'Toole (Weekend Review - January 29th) closes an interesting article on the role of the legal profession in Irish society with serious questions over the length of the waiting lists for civil legal aid in Ireland.
His concerns are well founded. At a time when the Government has set up a Personal Injuries Assessment Board (PIAB) designed to cut the cost of insurance premiums by removing legal fees in personal injuries cases, the Legal Aid Board continues to be starved of resources to enable it to provide timely legal assistance to those least able to afford it.
He concludes by suggesting that the only option open to people left waiting would be to sue the State for the right to see a lawyer.
Marie O'Donoghue was one such person. Separated from her husband for a number of years, caring for a profoundly disabled son and receiving inadequate maintenance, she applied for legal aid to South Mall law centre in Cork city in early 1997.
She waited 25 months for a legal aid certificate to be issued and for action to be taken on her behalf, despite the law centre's knowledge of her financial circumstances and domestic situation. Mrs O'Donoghue's story might have gone unnoticed as in many other similar instances. But a private solicitor who had acted for her when her husband had bought out her share of the family home had advised her of her right to apply for legal aid. When it was so slow in arriving, a decision was taken to challenge the delay in the High Court.
Judgment in the case of O'Donoghue v Legal Aid Board, The Minister for Justice, Equality and Law Reform, Ireland and the Attorney General, was delivered by Mr Justice Kelly on December 21st, 2004. It reveals some worrying facts.
Documentary evidence was provided of the strenuous efforts made by the Legal Aid Board between 1995 and 1997 to obtain more funding from the then Department of Equality and Law Reform to cope with the increased demand for its services. But none of these letters was deemed worthy of a written reply. Only when law centres were threatened with closure was remedial action taken.
Because of an unexplained bureaucratic delay, however, sanction for recruitment of extra staff did not take place until July 1998. This recruitment included a new solicitor for South Mall law centre in Cork where Mrs O'Donoghue had applied for legal aid. This solicitor began work in January 1999 and saw Mrs O'Donoghue for the first time in February of that year.
The court absolved the board from any blame, finding that an absence of resources to meet demands had caused the delay. Though the law centre itself was aware of Mrs O'Donoghue's circumstances, the director of Legal Aid on behalf of the board argued that a "systems failure" had prevented her being prioritised. But under the emergency criteria the board operated at the time, it is difficult to see how Mrs O'Donoghue's case would have been treated as a priority anyway as she was seeking maintenance and a divorce.
The key question to be resolved in this case was whether there is a constitutional right to legal aid from the State within a reasonable timeframe. The court observed that Civil Legal Aid Act 1995 had been introduced to facilitate the right of access to the courts. Mrs O'Donoghue satisfied the criteria for legal aid and her right to access the courts could not be vindicated without legal representation.
The court concluded that "it is not enough to set up a scheme for the provision of legal aid to necessitous persons and then render it effectively meaningless for a long period of time". A delay of 25 months caused by the "manifest failure of the State" was clearly unreasonable and Mrs O'Donoghue was awarded damages resulting from that failure.
On the issue of what might be a reasonable waiting period, the court found that although "it is unrealistic to expect the board ever to be in a position to match the speed of a solicitor in private practice in respect of cases which are not of particular urgency" the board's target of two to four months is not unreasonable.
Against this significant benchmark, a glance at the waiting lists provided by the board makes for disturbing reading. In December 2004, of the 30 law centres throughout the State, 15 have a waiting list of over four months, with eight of those centres reporting a waiting period of over nine months. Newbridge at 20 months and Wicklow together with Finglas in Dublin at 15 months exceed one year. South Mall in Cork city, the centre that dealt with Mrs O'Donoghue's application, has a waiting time of 11 months.
Court judgments are often referred to as landmark, but for thousands of people in difficult circumstances languishing on civil legal aid waiting lists, this decision truly could be. If the barometer of a civilised society is how well the State treats its most vulnerable citizens, we come up woefully short on civil legal aid. The decision of the High Court in the O'Donoghue case confirms this.
Paul Joyce is employment rights and consumer policy officer of Free Legal Advice Centres Ltd
paul.joyce@flac.ie