Appeal court refuses to refer environmental group’s questions to CJEU

Friends of the Irish Environment sought referral over unsuccessful bid to have High Court costs paid for by Legal Aid Board

The Court of Appeal (CoA) has declined to refer to the Courts of Justice of the European Union a case concerning a non-governmental organisation’s unsuccessful bid to have litigation costs it incurred paid for by the Legal Aid Board.

The reference was sought by Friends of the Irish Environment CLG (FIE), which has been involved in a significant number of cases about the protection of the environment and planning before the Irish courts in recent years.

It took proceedings against the Legal Aid Board claiming it had a right to seek legal aid for certain types of proceedings under Article 47 of the EU Charter on Fundamental Rights and Freedoms, which concerns the rights to a fair trial or hearing.

It applied for legal aid in a High Court challenge it brought against the National Development Plan.


The board, an independent body that is funded by the State, rejected the application on grounds that the 1995 Act precludes corporate bodies from being legally aided by it.

The High Court ruled in favour of the board, which FIE appealed to the CoA.

Ireland and the Attorney General were notice parties to the appeal.

Earlier this year, a three-judge CoA, comprising the High Court President Mr Justice David Barniville, Mr Justice Brian Murray and Mr Justice Seamus Noonan, dismissed FIE’s claim against the board.

The CoA did not accept FIE’s claim that, while it is a corporate body, it was an entity or person that under the 1995 Civil Legal Aid Act was eligible and entitled to obtain legal aid from the Legal Aid Board.

Following the judgment, FIE asked the CoA to consider referring two questions in the case to the European Court.

The first question concerned whether Article 47 of the Charter requires EU member states to have a legal aid scheme in place that may be availed of in cases involving litigation that engages EU law that is open in principle to legal persons.

The second question that FIE sought to have referred was whether, when having regard to Article 47 of the Charter and Article 9 of the Aarhus Convention, the international agreement regarding the right of access to information on the environment, there is an enhanced or different obligation to provide access to legal aid in environmental matters, as opposed to other types of litigation.

Giving the CoA’s decision on that application Mr Justice Murray said that in seeking a reference FIE sought to make a case in the context of the reference, namely if the State is obliged to craft a legal aid scheme that would allow people in FIE’s position to seek legal aid for certain types of environmental law proceedings.

This, the judge said, would require not just a reorientation, but a complete overhaul of FIE’s case.

The judge did not believe it would be “appropriate or fair” to “permit the proceedings to be redirected in this way”.

The CoA was satisfied that no reference should be made.

Mr Justice Barniville and Mr Justice Noonan agreed with the decision.