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GAZETTE
APRIL 1989
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
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:-
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