The failure of the Government to respond to requests from the Legal Aid Board for more resources between 1996 and 1999 was criticised by Mr Justice Kelly in the High Court yesterday when he ordered the State to pay almost €9,000 to a Co Cork mother who suffered a 25-month delay in securing legal assistance to pursue her divorce case.
Ms Marie O'Donoghue, of Mahon Drive, Blackrock, Cork, had sued the Legal Aid Board and the State.
Mr Justice Kelly said that the delay in granting her a legal aid certificate amounted to a breach of Ms O'Donoghue's constitutional entitlements. It was not enough to set up a scheme for provision of legal aid and then render it effectively meaningless for a long period of time, he said.
Ms O'Donoghue married in September 1976 and a son, Paul, who was born in November 1984, contracted a serious and rare illness and, as a result, was profoundly disabled. Paul's illness added further to the strain of what was already a very difficult marriage, the judge said. That difficulty, he added, was created by the husband's excessive drinking.
The judge said that Ms O'Donoghue left the family home with Paul and for a year no maintenance was paid by the husband, but in 1987 he started paying IR£40 a week. By 1996 the husband was in a second relationship and she sold her interest in the family home to her husband for IR£12,000. That money was dissipated very quickly in repaying borrowings and providing for Paul's needs, which had increased.
Ms O'Donoghue's circumstances became quite straitened. In 1996, she was receiving the same maintenance she had had for the preceding 10 years. She sought legal aid and waited 25 months before getting a certificate in December 1998. She later got a divorce, an order for custody of Paul and an increase in maintenance of IR£10 per week.
Mr Justice Kelly said he was told that funding for the Legal Aid Board between 1996 and 1999 had been inadequate, caused particularly by the introduction of divorce legislation in 1997 and an increased demand for services.
The judge said that Ms O'Donoghue's claim against the board must fail, as it had done all it could to provide for her and other persons within its resources. He was unable to identify any act of negligence on the part of the board or its officers. They were simply swamped with work and their cries for assistance went unheeded. The conditions in which the board's personnel had to operate were woefully sub-standard and the reason for that was the failure to resource the board properly.
However, the unfortunate circumstances of Ms O'Donoghue were such that access to the courts and fair procedures under the Constitution would require that she be provided with legal aid. The delay in granting certificates for legal aid, in his view, amounted to a breach of her constitutional entitlements.
Mr Justice Kelly concluded that Ms O'Donoghue's rights under the Constitution had been infringed and he awarded judgment in her favour for €8,991.