The Court of Appeal has refused Friends of the Irish Environment CLG’s application to refer questions about legal aid for corporate bodies and environmental litigation to the Court of Justice of the European Union (CJEU).
The decision, delivered by Mr Justice Murray on 22 March 2023, followed a further round of submissions after an earlier Court of Appeal judgment. In that earlier judgment, the court rejected the group’s argument that it could qualify as a “person” eligible for legal aid under the Civil Legal Aid Act 1995. The court had found that interpreting the Act to include corporate bodies would conflict with the statute.
The court then invited submissions on whether a question should be referred to the CJEU about the possible effect of Article 47(3) of the EU Charter, which concerns legal aid in certain circumstances. Friends of the Irish Environment proposed asking whether EU law requires legal aid schemes to be open in principle to legal persons, and whether environmental cases carry a different or enhanced legal aid obligation when the Charter and Aarhus Convention are considered together.
The group submitted that it had not challenged legal aid for individuals, and that its claim included a declaration that the Board’s refusal to consider its application breached its rights under Article 47. It argued that the court could grant appropriate relief even if that relief had not been specifically claimed.
Mr Justice Murray said the proposed reference went beyond clarifying an existing issue. It depended on a new case against the State, with new relief, whereas the Legal Aid Board had been the only respondent. The judge said the Board’s powers were defined by the 1995 Act and the case had been argued on the basis that the Act should be interpreted to include the group. The group had not argued that the Act’s restrictions should be disapplied under EU law, or that the Board was responsible for a state obligation to provide such aid.
The Attorney General had been joined as a notice party after the High Court reserved judgment, but only in relation to the possible application of the Aarhus Convention. The judge noted that the Attorney General had not had the opportunity to give evidence or address the other issues now proposed for referral.
The court concluded that allowing the proposed case at the end of the substantive appeal would be unfair and would require a complete overhaul of the proceedings. It refused the request for a CJEU reference, finding that answers to the proposed questions would not affect the outcome of the case actually before it. The judgment does not decide whether EU law requires a legal aid scheme for corporate bodies in environmental cases.
The judges agreed that the application should be refused. The parties were given three weeks to advise the court if they could not agree on costs; a short hearing would then be convened.