The Court of Appeal has recommended that legal fees incurred by a minor in an unsuccessful appeal involving Oberstown Children Detention Centre be paid under the Legal Aid – Custody Issues Scheme.
The ruling does not alter the outcome of the underlying case. The court had delivered its substantive judgment electronically on 18 September 2020, refusing M.'s appeal on all grounds. The remaining issue was how his legal costs should be dealt with.
M., who sued through his mother and next friend J., sought a recommendation covering his solicitor, junior counsel and senior counsel. His solicitor said there had been an intention during the appeal to seek payment under the custody legal aid scheme, but the notice of appeal mistakenly sought costs instead.
The State acknowledged that the request was being made after the hearing. It nevertheless indicated that, in light of previous case law concerning people in custody, it would not object if the court considered a recommendation appropriate.
The scheme is a non-statutory arrangement funded by the State. It can cover certain proceedings connected with custody where a person needs legal representation but cannot afford it. A court recommendation is required before the Legal Aid Board can consider payment, although the recommendation itself does not legally bind the Board.
Ms Justice Máire Whelan placed particular weight on the fact that M. had been a minor when the proceedings began, that his mother had brought them as his next friend, and that he was in custody when the judicial review proceedings were initiated.
The court also accepted that the failure to refer specifically to the scheme in the appeal notice was an inadvertent error.
It therefore recommended that the Legal Aid Board discharge the fees incurred for M.'s solicitor, junior counsel and senior counsel under the scheme. Haughton and Murray JJ. agreed.