The High Court has granted Christopher Prendergast leave to seek judicial review of the Legal Aid Board’s decision to terminate his legal aid certificate. The ruling allows his challenge to proceed; it does not determine whether the Board acted unlawfully or whether he is entitled to keep legal aid.
Mr Justice Garrett Simons delivered the judgment on 10 May 2024 after an inter partes hearing on the leave application. He granted leave on all grounds in Prendergast’s revised statement of grounds, including a request to set aside the Board Appeals Committee’s decision of 15 May 2023 and requests for declaratory relief. The judge stressed that the issues remain for determination at trial.
The certificate had originally been granted on appeal in May 2021, after an initial refusal. The Board notified Prendergast in January 2023 that it intended to terminate the certificate and invited written submissions. In April, its executive decided to terminate it, citing concerns including the prospects of success, delay, possible legal bars and the risk of costs. The Appeals Committee upheld that decision in May, adopting the executive’s reasons.
One arguable ground concerns whether the Appeals Committee gave adequate reasons for reversing the earlier grant. The judge noted that the earlier committee had granted the certificate despite counsel identifying substantial legal obstacles. A later indication that counsel could not draft proposed proceedings alleging fraud for professional reasons was a material change, he said, but it appeared to concern one aspect of a case that counsel had also said might involve other legal avenues. The appeal decision did not explain its view of those alternatives.
Other grounds concern the legal test for terminating a certificate and whether the Board must provide legal aid under provisions referring to international instruments. The judge rejected neither set of arguments at the leave stage, saying they required fuller submissions and should be decided at trial. He also observed that the ordinary reading of the legislation appeared to apply the same “reasonable grounds” and “reasonably likely” tests to granting and terminating a certificate; the final legal test remains undecided.
The underlying proposed case relates to a 1988 High Court judgment concerning a company’s compensation claim after fire damage to its premises. Prendergast contends that the judgment implied he and his father caused the fire and alleges that an expert witness gave perjured evidence. Those are his allegations, not findings made in this judgment. The judge noted the passage of more than three decades and potential delay arguments.
The costs of the leave application were reserved to the trial judge. Prendergast was directed to file an amended statement of grounds and issue and serve a notice of motion. The matter was listed for case management on 4 June 2024.