Court of Appeal: Court considers Legal Aid – Custody Issues Scheme and inherent jurisdiction to extend time

About this case:

• Citation:
  [2025] IECA 205
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Niamh Hyland

Delivering judgment for the Court of Appeal, Ms Justice Niamh Hyland explained that “any inherent jurisdiction to extend time that a court might enjoy is displaced in judicial review proceedings where Order 84 specifically provides for an extensive mechanism regulating applications to extend time to bring proceedings” and confirmed, obiter, that the appellant’s proceedings concerning his medical treatment while serving a custodial sentence did not engage the Legal Aid – Custody Issues Scheme.

Background

On 15 June 2022, the appellant, then serving a custodial sentence, was travelling from a court appearance to Wheatfield Prison when the prison vehicle in which he was travelling became involved in a collision.

The appellant attended the prison nurse the following day and sought a consultation with the prison GP, but no GP was available to see him.

On 28 July 2022, the appellant was granted leave to seek an order of mandamus compelling the provision of medical treatment to him. He was released from prison shortly thereafter and on 25 October 2022, his proceedings were settled with the court recommending payment of the appellant’s costs in accordance with the Legal Aid – Custody Issues Scheme.

By letter dated 18 July 2023, the Legal Aid Board refused to cover the appellant’s costs on the basis that the Scheme provides for the payment of legal costs arising from inter alia judicial reviews concerning “criminal matters or matters where the liberty of the applicant is at issue”. The Board contended that the Scheme did not extend to cover the costs incurred in seeking to compel appropriate medical treatment while in prison.

The appellant sought leave to bring further judicial review proceedings challenging that decision on 19 October 2023 and was granted leave on 27 November 2023.

The trial judge held that the appellant’s leave application was brought out of time by one day pursuant to Order 84, rule 21(1) of the Rules of the Superior Courts (RSC), but considered the substantive arguments raised and concluded that the appellant had failed to establish any error of law on part of the Board and that the Board was entitled to depart from the recommendation of the judge.

The appellant appealed to the Court of Appeal, contending that his application should have been treated as coming within the Scheme, that his exclusion therefrom breached his constitutional rights and his rights pursuant to the European Convention on Human Rights (ECHR), and that he should have received an extension of time within which to bring his judicial review proceedings pursuant to the court’s inherent jurisdiction.

The Court of Appeal

Ms Justice Hyland firstly considered the extension of time issue, noting that the appellant’s delay was the shortest possible, but that there was precedent for excluding cases on the basis of being one day out of time.

As to the appellant’s argument based upon the refusal of the trial judge to exercise the court’s inherent jurisdiction to extend time, Ms Justice Hyland found that argument to be “wholly misplaced” where the appellant had failed to file an affidavit as required by Order 84, rule 21(5) setting out the reasons for the failure to bring the application within time and verifying any facts relied upon in support of those reasons.

Ms Justice Hyland agreed with the trial judge’s substantive conclusion that time should not be extended but disagreed that it was an inappropriate case in which to exercise the inherent jurisdiction.

Rather, the judge considered that in the context of judicial review “any inherent jurisdiction to extend time that may have existed has been comprehensively excluded by Order 84, r. 21(3) to (7), which provides for a complete and exhaustive scheme in respect of the extension of time. It is well established that, where the jurisdiction of the courts is delineated by statute law, this generally excludes the exercise by the courts of jurisdiction of an implied or inherent nature.”

Noting that her conclusion on the extension of time issue dispensed with any requirement to consider the appellant’s substantive case, the judge explained that because the appeal raised a novel point of law concerning the Scheme, the Court of Appeal would address the substantive issues.

Ms Justice Hyland considered that the appellant’s grounds of appeal in this regard were “somewhat nebulous” and did not explain why the trial judge purportedly erred in law in her conclusions, remarking: “To simply list the findings of the trial judge and to contend they are erroneous is to squander the opportunity given to appellants to seek to persuade the appeal court that the decision should be overturned. It means that any real understanding of the grounds of appeal is postponed until the written submissions, or even less helpfully, the oral hearing, thus depriving respondents of the opportunity to respond meaningfully to the appeal grounds in their notice.”

Finding that the written submissions brought some focus to the argument, the Court of Appeal highlighted that in order to succeed in his appeal, the appellant was required to establish that the trial judge erred in the manner in which she interpreted the Scheme and its application to the appellant.

Explaining that this left only argument to the effect that the judicial review concerned “criminal matters” as referenced in the Scheme, Ms Justice Hyland opined that “the question of the nature of the medical treatment afforded to a person while in prison cannot be treated as concerning a criminal matter”.

Having regard to the fact that the litigation concerned the appellant’s treatment while incarcerated due to a criminal matter, the judge expressed that this was “too remote a connection” to warrant the proceedings being treated as concerning a criminal matter.

As to the appellant’s argument that the Scheme required to be interpreted in a broad fashion to facilitate access to legal advice in light of his vulnerable status as a prisoner, the Court of Appeal observed that the terms of the Scheme do not permit unqualified access to legal advice and that the underlying purpose of the Scheme could not be used to extend the wording thereof “beyond the meaning that it bears”.

In that regard, Ms Justice Hyland also emphasised that courts should not ignore the terms of a Scheme even if the purpose of the Scheme is remedial in nature.

Turning to the appellant’s argument concerning the Board’s departure from the court’s recommendation in his 2022 proceedings, the Court of Appeal pointed out that the Board is not bound by recommendations of the court in light of O’Shea v The Legal Aid Board [2023] 2 IR 304 and agreed with the trial judge that recommendations are always subject to an application coming within the scope of the Scheme, a matter for the Board to determine having regard to the wording of the Scheme.

As to the appellant’s arguments that his rights of access to the court and to his bodily integrity had been denied, Ms Justice Hyland recognised inter alia that the appellant had “clearly exercised his right of access to the court, having brought judicial review proceedings to compel medical treatment” and that arguments based upon proportionality “cannot be used to seek to extend a Scheme beyond the bounds of what has been provided by the Executive”.

The judge further explained that the mere fact that the proceedings concerned the provision of medical treatment did not mean that a refusal to provide legal aid undermined the appellant’s right to bodily integrity.

Conclusion

Accordingly, the Court of Appeal upheld the decision of the trial judge and rejected the appeal in its entirety.

Winters v The Legal Aid Board & Ors [2025] IECA 205