The Gazette 1989

GAZETTE

APRIL 1989

ten people - the solicitor who advised him, the Chief Executive or his nominee, and eight members of the Board of whom at least four are practising lawyers. In practice, the bulk of applicants who are refused legal aid accept the decision without going through the appeal process. If legal aid is granted (whether by a Law Centre or otherwise), a legal aid certificate issues to cover whatever proceedings are contem- plated. It also covers attendance of witnesses, engagement of counsel etc. With regard to the engagement of counsel, the position is that prior to the introduction of the Scheme, an Agreement was reached between the Bar Council and the Minister for Justice under which barristers may be engaged by the Board to deal with legal aid cases; this Agreement provides for the setting up of a panel, the question of fees, etc. Costs and Damages Any costs or damages recovered by a legally aided party on foot of proceedings are payable into the Legal Aid Fund. If the costs are sufficient to meet the Board's outlay, the client's contribution is refunded. Costs awarded against the legally aided party, in favour of a party who has not been granted legal aid, are not, generally speaking, payable from the Legal Aid Fund. In exceptional cases, however, the Board is authorised to make an ex-gratia contribution towards such costs. With regard to damages, the position, again, is that any sums recovered are, under the terms of the Scheme, paid to the Legal Aid Fund and the Board may with the prior consent of the applicant, retain portion of the damages where its outlay exceeds the amount otherwise paid into the Fund; the amount retained (if any) in individual cases depends very much on the type of action ivolved, the total amount recovered and the client's financial circumstances. In the event of money that may become payable to a legally aided party arising out of partition and sale of a family home, the general rule is that if there is evidence that all the proceeds may be needed for the purchase of another home for the applicant and his/her children,

no deduction will be made. A deduction may, however, be made where the indications are that the money will not be required immedi- ately for the purchase of another home (for example, where the legally aided party is residing elsewhere with a co-habitee). Availability, Rafarrals and Achievements. There is a general awareness that the main difficulty faced by the Civil Legal Aid Scheme is the lack of resources necessary to provide a nationwide service. The Board has been delivering this message in its Annual Reports over the years and the matter has also been the subject of comment in the media and elsewhere. Limited funds for public services are of course nothing new at the present time - it is part of the process of putting public finances generally in shape and the Board fully recognises this. The Board has also recognised that, despite the restrictions generally on Exchequer funding in recent years, it was fortunate to be in the position of actually expanding the service during 1985 and 1986. This came about because additional funding was provided under the Funds of Suitors Act, 1984; it enabled the Board to establish centres in Cork (South Mall), Tallaght, Tralee and Athlone. Despite this very welcome expansion, however, the service, nationwide, is still thinly spread. One of the effects of this is that, in certain areas - mainly Dublin and Cork - there are queues for legal services with Law Centres being obliged to restrict access to the service for new clients from time to time. The Board, while acknow- ledging that this is an unsatis- factory situation, is concerned that it is sometimes portrayed in a way which gives the impression that there is effectively no service at all available. That would be very far from the truth. Thousands of clients are in fact provided with services each year. According to the Board's most recent Annual Report, the number of people pro- vided with legal advice, only, was 5,274 and the number provided with both advice and representation was 1,317. The bulk of cases going to court were family law cases, as the table overleaf indicates:-

ence of earnings where eligibility appears to be "borderline", or it may be necessary to ask the De- partment of Social Welfare for a report in certain circumstances. Once eligibility has been deter- mined, an appointment is made for the applicant to see one of the solicitors in the centre. He or she takes instructions in the usual way and decides whether the matter can be dealt with by way of advice (which includes writing letters, perhaps drawing up a Separation Agreement, etc.), or whether a court appearance may be necessary. Where the client requires advice only, the solicitor proceeds to deal with the case without any refer- ence to the Board. In the vast ma- jority of court cases handled by the Board (i.e. District Court family law cases), the decision to proceed is made by the solicitor-in-charge of the Law Centre - again without any reference to the Board. Where the proceedings are in the Circuit, High or Supreme Court, however, the solicitor prepares a brief summary of the facts and submits them to the Board for a decision as to whether, in all the circumstances, legal aid is to be granted. Under the Scheme, Board deci- sions on individual cases are made by "Certifying" Committees, each consisting of three Board members of whom at least one must be a practising solicitor or barrister. These Committees have, over the years, delegated much of their decision-making to the Chief Ex- ecutive and other staff members so that, in practice, only a small pro- portion of cases are now referred to Committees. Any application refused by staff are open to review by Certifying Committees. If the Committee itself decides that legal aid should be refused, there is a further appeal to an Ap- peals Committee consisting of five members of the Board of whom at least three are practising solicitors or barristers, the Chairman of the Appeals Committee being always the Chairman of the Board. Deci- sions of the Appeals Committee are final. One result of the foregoing arrangements is that before anybody can be refused legal aid, finally, the case for granting it will have been considered by at least

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