The High Court dismissed two solicitors’ challenge to the Legal Aid Board’s decision to resume access to legal aid case files, holding that section 32(2) of the Civil Legal Aid Act 1995 authorised the Board to obtain information needed to carry out its statutory functions.
The case was brought by Catherine Martin and Diarmuid Doorley, solicitors employed by the Board. They sought declarations that the Board’s decision was unlawful and, alternatively, that section 32(2) was unconstitutional. The judgment was delivered by Miss Justice Laffoy on 23 February 2007.
The Board had decided on 22 March 2001 that file access would proceed under arrangements dating from the early 1980s. It reaffirmed that decision on 28 April 2003. The judge identified the 2003 decision as the one challenged in the proceedings. The Board had effectively suspended its implementation while the case was pending.
The Board’s evidence was that authorised officers would review files to assess the service and the Board’s management of its statutory responsibilities. The Board’s position was that, in principle, an officer could inspect any document and take notes or make copies, including material from in-camera proceedings. The judge said most file material would be covered by solicitor-client privilege.
The plaintiffs argued that access by non-lawyer staff without a client’s express informed consent would breach confidentiality and privilege. The court held that section 32(2), read with section 32(1), required solicitors to provide information requested by an authorised person where it was needed for the Board’s statutory functions. The judge concluded that this access would not override or diminish legal professional privilege: information obtained under the provision could be used only for those functions and would not be available for discovery by a third party. The constitutional challenge therefore failed.
The judgment did not resolve every practical issue. It said the Board needed proper procedures to prevent information from flowing between clients where its solicitors represented both sides in a matter. The court left that to the Board. It also said whether a copy of a court-ordered welfare report, such as a section 47 report, could be disclosed to an authorised officer had to be decided by the court that ordered the report in the particular case.
The judge rejected the Board’s objections that the solicitors lacked standing or that the dispute was moot. She found the challenge was brought within a month of the 2003 decision. The court ordered that the plaintiffs’ claim be dismissed.