The Supreme Court has ruled that a court’s recommendation under the Legal Aid – Custody Issues Scheme does not, by itself, compel the Legal Aid Board to pay a litigant’s legal costs. The Board must consider such a recommendation with significant weight and decide eligibility rationally and lawfully.
The Court allowed the appeal in part and set aside an order directing the Board to pay Paul O’Shea’s costs. It did not overturn the finding that his earlier judicial review proceedings came within the Scheme. The judgment concerned how the Scheme is administered; it did not determine the amount payable.
Mr O’Shea’s earlier judicial review challenged the constitutionality of provisions governing the activation of a suspended sentence. That challenge was dismissed in January 2017, and no costs were awarded against him. Humphreys J. later recommended that his legal costs be paid under the Scheme. The Board had been notified of the application, but told the court it was neutral and had no role in whether a recommendation was made.
The Board initially refused payment, saying the proceedings did not fall within the Scheme. In separate judicial review proceedings, Simons J. found that they did qualify and ordered the Board to pay. On appeal, the Board no longer contested that eligibility finding, but argued that a recommendation was not binding and that it retained a role in assessing whether Scheme requirements were met.
The Supreme Court said the Scheme requires a court recommendation before a payment claim can proceed, but the recommendation is not an order to pay. The Board must consider whether the proceedings are covered and whether the applicant meets the financial eligibility requirements. A recommendation is a condition precedent to payment, not a sufficient condition for it.
The Court said the recommendation nevertheless carries “very significant weight” and may be decisive in most cases. A person who receives one is entitled to have their application considered in a rational and lawful manner. The Court described the Scheme’s process as lacking a clear way to resolve disputes between an applicant and the Board, a gap that had contributed to further litigation in this case.
The appeal was allowed in part. The order requiring payment was set aside because mandamus was not appropriate merely because a recommendation had been made. The Court said the Board had erred in concluding that Mr O’Shea’s proceedings were outside the Scheme, while also holding that the recommendation alone did not entitle him to payment.