Our Courts are clogged with Lay Litigants who are defending Repossession actions , Receiver actions Family law cases. With possession cases the banks and vulture funds now have no option to resort to the law of contempt to look to attach and commit debtors to prison for over-holding and non-compliance of court orders.
All society is founded on the law of contract in one guise or another and our Courts must uphold the law but also ensure compliance with the proper administration of justice while being fair.
Our system of legal aid is ineffective and strained with long delays. If you are the subject of a contempt action and cannot afford legal representation you are unlikely to get help from the Legal Aid Board or be able to afford your own solicitor and you are precluded from availing of the Legal Aid Custody issues scheme (which is a type of administrative scheme) and thus not part of any Legal Aid Law. You are facing imprisonment perhaps for an indefinate period and are a non lawyer how is the absence of any properly funded legal scheme protecting your right to a fair trial and treating you as an equal citizen.
Unless some action is taken to address this lack of legal aid I can forsee a flurry of legal actions against the State for breach of human rights and constitutional rights.
Our Judiciary are very aware of the issue but are constrained by separation of powers in what they can say .
His Honour Judge Humphries has recently flagged the problem in his decision in BL and I have come across it myself from a client who I am not going to leave in the lurch .
The earned Judge makes reference to the need to widen the application of the Legal Aid custody issues scheme .
38. On the facts of the present case the applicant has had a whole string of solicitors since 2007, of which at least 6 have been identified, and on other occasions has chosen to represent himself. His averments on the question of legal representation are highly evasive and it is very unclear what the complaint in fact is. He clearly was aware of his right to legal representation having had lawyers on many previous occasions. He was aware imprisonment was on the cards, being no stranger to contempt proceedings, or to attachment and committal in particular. He did not ask for time to seek legal representation. All he has going for him under this heading is the mere fact of not having been represented. However, the facts of Hammerton are quite different. At para. 12 it is noted that the applicant was unrepresented during the contempt proceedings but “his position as regards legal aid was due to be reviewed shortly after the hearing. The judge made no inquiries into why the applicant was unrepresented or whether he wanted representation”. That was the case of an applicant who very actively was seeking legal aid, had applied for it (which this applicant has not) and had applied for a review of the decision refusing it. On that issue of what the procedure for legal aid is, Mr. Farrell submits that the Legal Aid Board is the source of legal aid for a person facing a contempt application. That seems to me a very cumbersome procedure given the nature of contempt proceedings. A much more flexible and immediate procedure would be for the State to extend the Custody Issues Scheme to apply to contempt matters. Section 4(iii) of the matters covered by the custody issue scheme only include judicial reviews where the liberty of the applicant is at issue, not other forms of civil proceeding where liberty is in issue. Furthermore, it only applies to the High Court upwards. It seems to me that the Minister for Justice and Equality should give serious consideration to the extension of the scheme to cover contempt proceedings. If that were done, problems such as the issue being raised in the present case simply would not arise. This is not the first case in which that issue has arisen. Indeed it may fall for decision in another case whether the inherent right of the court to deal with contempt, which is a key element of the judicial function and by virtue of the separation of powers must be available to the court in an effective way, is improperly burdened by such a potentially time-consuming procedure as having to direct applicants through the Legal Aid Board before the court can deal with matters, rather than allowing for a flexible and immediate procedure such as the scheme.
39. If an appropriate applicant came along who had difficulty with the Legal Aid Board, having applied to it, such a person possibly could make an argument that reliefs under Article 40 should be considered because the State had failed to make available effective access to legal representation. However, that is not this applicant. He is not indigent. He has not averred that he would qualify for legal aid. He certainly has not established that he would do so. The evidence clearly establishes that he has assets and also establishes that he has gone about frustrating the enforcement of court orders.