Civil Legal Aid Act, 1995

Criteria for obtaining legal aid.

28.—(1) A person shall not be granted legal aid unless the person is granted a legal aid certificate under this section in respect of the legal aid sought.

(2) Subject to sections 24 and 29 and the other provisions of this section and to regulations (if any) made under section 37 , the Board shall grant a legal aid certificate under this section to a person if, in the opinion of the Board—

(a) the applicant satisfies the criteria in respect of financial eligibility specified in section 29 ,

(b) the applicant has as a matter of law reasonable grounds for instituting, defending, or, as may be the case, being a party to, the proceedings the subject matter of the application,

(c) the applicant is reasonably likely to be successful in the proceedings, assuming that the facts put forward by him or her in relation to the proceedings are proved before the court or tribunal concerned,

(d) the proceedings the subject matter of the application are the most satisfactory means (having regard to all the circumstances of the case, including the probable cost to the applicant) by which the result sought by the applicant or a more satisfactory one, may be achieved, and

(e) having regard to all the circumstances of the case (including the probable cost to the Board, measured against the likely benefit to the applicant) it is reasonable to grant it.

(3) Where the proceedings the subject matter of the application under this section concern the welfare of (including the custody of or access to) a child, paragraphs (c) and (e) of subsection (2) shall not apply.

(4) Notwithstanding subsection (2), the Board may refuse to grant a legal aid certificate if it is of the opinion that—

(a) the applicant may obtain the cost of the proceedings the subject matter of the application from, or be provided with legal representation by, a body or association of which he or she is a member or any other source,

(b) the applicant has on a previous occasion obtained legal aid or advice within the meaning of the Scheme or under this Act in respect of another matter and has, without reasonable explanation, failed to comply with the terms on which such legal aid or advice was granted,

(c) the cost to the applicant of engaging a solicitor and, where necessary, a barrister to represent him or her in the proceedings without legal aid would be less than the contribution payable by him or her under section 29 and regulations (if any) under section 37 ,

(d) such information as is reasonably required by the Board from the applicant to enable it to make a decision on whether to grant a legal aid certificate or not has not been provided by him or her, or

(e) due to the act, omission or neglect of the applicant any regulation under section 37 cannot be complied with in respect of the application.

(5) Notwithstanding any other provision of this Act, the Board shall grant a legal aid certificate to a person—

(a) where the State is, by virtue of an international instrument, under an obligation to provide civil legal aid to the person:

Provided that the person shall, before being granted such certificate, comply with such requirements (if any) as are specified in the international instrument and relate to him or her,

(b) where the Central Authority in the State, within the meaning of the Child Abduction and Enforcement of Custody Orders Act, 1991 , is under an obligation to provide assistance to the person under the said Act of 1991, for the purpose of being provided with such assistance, or

(c) where the Central Authority, within the meaning of the Maintenance Act, 1994 , is under an obligation to provide assistance to the person under the said Act of 1994, for the purpose of being provided with such assistance.

(6) The Board may require a person to whom it has granted a legal aid certificate to comply with such requirements as it reasonably considers expedient to enable it to satisfy itself that it is reasonable for the person to continue to receive legal aid.

(7) The Board may revoke a legal aid certificate granted to a person under this section where it considers that it is no longer reasonable for the person to continue to receive legal aid and, in particular, where the person no longer satisfies the requirements in respect of financial eligibility specified in section 29 and in regulations under section 37 .

(8) Notwithstanding subsection (2), the Board shall not grant a legal aid certificate in respect of proceedings in a court other than the lowest court having jurisdiction in the matter:

Provided that the Board may grant a legal aid certificate to an applicant who, by virtue of any other party to the proceedings, is obliged to take, defend or be a party to the proceedings in a higher court.

(9) (a) Subject to any order made under subsection (10) and to the other provisions of this subsection, legal aid shall not be granted by the Board in respect of any of the following matters (referred to in this Act as “designated matters”):

(i) defamation;

(ii) disputes concerning rights and interests in or over land;

(iii) civil matters within the jurisdiction of the District Court (Small Claims Procedure) Rules, 1993;

(iv) licensing;

(v) conveyancing;

(vi) election petitions;

(vii) a matter as respects which the application for legal aid is made in a representative, fiduciary or official capacity and the Board, having regard to any source from which the applicant is or may be entitled to be indemnified in respect of the costs of the proceedings concerned and any resources of the persons who would be likely to benefit from a successful outcome of the proceedings for the applicant, is of opinion that legal aid should not be granted;

(viii) a matter the proceedings as respects which, in the opinion of the Board, are brought or to be brought by the applicant as a member of and by arrangement with a group of persons for the purpose of establishing a precedent in the determination of a point of law, or any other question, in which the members of the group have an interest;

(ix) any other matter as respects which the application for legal aid is made by or on behalf of a person who is a member, and acting on behalf, of a group of persons having the same interest in the proceedings concerned.

(b) The making of a counterclaim for defamation in proceedings for which a legal aid certificate may otherwise be granted by the Board will not of itself disqualify the defendant to the counterclaim from obtaining such a certificate in respect of those proceedings.

(c) Notwithstanding the provisions of paragraph (a) and subject to the other provisions of this Act, legal aid may be granted—

(i) in respect of proceedings under the Landlord and Tenant Acts, 1967 to 1994 (in so far as they relate to residential property), the Married Women's Status Act, 1957 , the Rent Restrictions Acts, 1960 and 1967, the Family Home Protection Act, 1976 , the Family Law Act, 1981 , or proceedings arising out of a dispute between spouses as to the title to or possession of any property;

(ii) in respect of proceedings arising out of a dispute as to the title to or possession of any property—

(I) between two persons as respects whom an agreement to marry one another is in force or who are living together as man and wife but are not married to each other, or

(II) between two persons as respects whom an agreement to marry one another has been terminated or who, having lived together as man and wife without being married to each other, have ceased to live together as man and wife, where either or both of them had title to or possession of the property at a time when the agreement to marry was in force or, as the case may be, they were living together as man and wife;

(iii) where a subject matter of the dispute is the applicant's home (or what would be the applicant's home but for the dispute) and the Board considers that the applicant—

(I) suffers from an infirmity of mind or body due to old age or to other circumstances, or

(II) may have been subjected to duress, undue influence or fraud in the matter,

and that a refusal to grant legal aid would cause hardship to the applicant;

(iv) in connection with the preparation of an assent, if the Board is satisfied that the assent relates to the applicant's home and where—

(I) a grant of representation has been taken out on behalf of the applicant, or

(II) the applicant had taken out a personal grant of representation,

and that a refusal to grant legal aid would cause hardship to the applicant;

(v) in respect of licensing matters, provided that the Board is satisfied that the granting of the licence the subject matter of the dispute would cause hardship to the applicant;

(vi) in respect of a conveyancing matter connected to a matter in which legal aid or advice has already been granted.

(d) An application for a legal aid certificate shall not be refused by reason only of the fact that a successful outcome to the proceedings for the applicant would benefit persons other than the applicant.

(10) The Minister may, with the consent of the Minister for Finance, by order disapply subsection (9) from any matter to which that subsection, for the time being applies and, if the Minister makes an order under this subsection, then any matter referred to in the order shall, for so long as the order is in force, cease to be a designated matter for the purpose of this Act, and the provisions of this Act relating to designated matters shall accordingly cease to apply to the matter so referred to in the order.

(11) In this section, “child” means a person who is under the age of 18 years, other than a person who is or has been married.