The High Court awarded Marie O’Donoghue €8,991.60 in damages after finding that a 25-month delay in receiving legal aid breached her constitutional entitlements to access to the courts and fair procedures.
Mr Justice Kelly said the delay followed a “manifest failure of the State” to ensure that the legal aid scheme worked effectively for a person who qualified for assistance. He said O’Donoghue had no realistic prospect of access to the courts without a lawyer and was denied that help for 25 months.
O’Donoghue first attended the Legal Aid Board’s South Mall centre in Cork on 2 February 1997. Her main concern was to secure higher maintenance for her profoundly disabled son, Paul; she also raised the possibility of divorce. She received an appointment with a solicitor on 17 February 1999, and a legal aid certificate was issued on 25 March.
The judge accepted evidence that inadequate staffing and resources caused the delay. The Board had repeatedly warned government departments about growing waiting lists and sought extra resources. The judge said the State knew of the problems, while recruitment approval was delayed even after funding had been provided. A system intended to prioritise urgent applications had failed in O’Donoghue’s case because information about her circumstances was not recorded and passed to the managing solicitor.
The court did not find the Board liable for breach of statutory duty or negligence. The judge held that the Board’s statutory function was limited by the resources available to it and found that the Board itself had done what it could in the circumstances. He also rejected the argument that the European Convention on Human Rights required a legal aid certificate under the relevant provision of the 1995 Act, finding that the Convention did not expressly require the State to provide civil legal aid in this case.
In assessing damages, the judge considered what might have happened if O’Donoghue’s application had proceeded in time. He found it likely that a maintenance claim for Paul would have reached the Circuit Court by January 1998 and that maintenance would have risen from IR£40 to IR£60 a week. He calculated IR£2,080 for the lost increase over two years and added IR£5,000 for additional stress and upset. The total was IR£7,080, converted to €8,991.60.
The judge ordered judgment for O’Donoghue for €8,991.60 and said a declaration would be made in a form to be discussed with counsel. He did not specify the final wording of that declaration in the judgment.