The High Court has ruled that the Legal Aid Board could not disregard an earlier court recommendation that Paul O’Shea’s legal costs be covered by the Legal Aid – Custody Issues Scheme. The court also found that, even if the Board could decide eligibility for itself, its reason for refusing the claim was legally wrong.
Mr Justice Garrett Simons delivered judgment on 4 June 2019 in O’Shea’s judicial review challenge to the Board’s refusal to process his solicitors’ fees claim. The dispute concerned costs from an earlier judicial review in which O’Shea challenged the constitutionality of sentencing provisions in the Criminal Justice Act 2006. That earlier case was dismissed in January 2017.
On 6 February 2017, the High Court recommended payment of the costs of that case under the Scheme. The Board later rejected the claim, saying the earlier proceedings fell outside the Scheme because their principal relief included an injunction rather than an order of prohibition. It maintained that the court’s recommendation did not bind it and that the Board had to determine eligibility itself.
Justice Simons held that, under the Scheme’s terms, the court is the final arbiter of whether proceedings qualify. The Board’s role is to assess the amount of reasonable legal costs payable. He noted an exception in the Scheme where an applicant is later found to have provided misleading or substantially incomplete information about their financial means. The Board had noted that O’Shea did not submit the required financial declaration, but did not rely on that omission to defend its decision in this case.
The judge gave an alternative reason for allowing the challenge. The earlier case concerned criminal matters and O’Shea’s liberty because it challenged sentencing rules that could affect the time he might have to serve in prison. Treating the choice between an injunction and prohibition as decisive was, he found, an overly technical reading of the Scheme. The Board had also argued during the judicial review that the earlier proceedings would not have secured O’Shea’s immediate release; the judge rejected that as a basis for ineligibility.
The court did not find that the Board was barred from revisiting eligibility by issue estoppel. That question had not been argued and decided at the February 2017 hearing. It also declined to determine O’Shea’s separate constitutional and European Convention argument, saying it was unnecessary to decide the case.
The judge concluded that O’Shea was entitled to recover costs for the earlier judicial review, with the amount to be assessed by the Board. He reserved the precise form of the order for a further hearing. The judgment did not itself specify a sum payable.