Drinan’s (Padraigin) Application and in the matter of a decision of the Northern Ireland Legal Services Commission
| Jurisdiction | Northern Ireland |
| Judge | Treacy J |
| Judgment Date | 16 October 2012 |
| Neutral Citation | [2012] NIQB 76 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 16 October 2012 |
| Year | 2012 |
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Neutral Citation No: [2012] NIQB 76
Ref:
TRE8618
Judgment: approved by the Court for handing down
Delivered:
16/10/12
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
Drinan’s (Padraigin) Application [2012] NIQB 76
IN THE MATTER OF APPLICATION BY PADRAIGIN DRINAN
(A SOLICITOR) FOR JUDICIAL REVIEW
and
IN THE MATTER OF A DECISION OF THE NORTHERN IRELAND LEGAL
SERVICES COMMISSION COMMUNICATED TO THE APPLICANT
ON 15 NOVEMBER 2011
________
TREACY J
Introduction
[1] The applicant is a qualified solicitor who, in partnership with another
qualified solicitor, operates a practice in Belfast which specialises in immigration
law. By this application for judicial review, the applicant seeks to challenge a
decision of the Northern Ireland Legal Services Commission (the “respondent”)
to refuse to pay fees for work undertaken by the applicant in an immigration
case. The respondent’s decision on this issue was communicated to the applicant
on 15 November 2011.
[2] This case involves important issues of law, policy and practice regarding
rights to remuneration, in immigration cases, in respect of work done in part by a
solicitor and in part by unqualified staff employed in the solicitor’s office
Factual Background
[3] The applicant employs two non-legally qualified staff, one of which is Ms
Barbara Muldoon. She has been employed by the applicant since 2002 and has
appeared before Immigration Tribunals for many years in numerous appeals. In
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October 2009 she was accepted as a trainee solicitor under the Solicitors
Admission and Training Regulations (1988).
[4] The respondent’s scheme to fund legal representation for cases before the
Immigration and Asylum Chamber of the First Tier Tribunal (the “Tribunal”) was
published to members of the profession by LSC Circular 09/06 on 5 August 2009.
This scheme provides a fixed fee remuneration structure which is:
“intended to cover the work carried out by a
solicitor and/or counsel…in AIT Tribunals and
Onward Appeals.”
[5] The applicant contacted the respondent to inquire about payment of fees in
legally aided cases where work was carried out by non-legally qualified staff.
She exchanged correspondence with Mr Paul Andrews, the Chief Executive of the
Legal Services Commission. In response to Mr Andrews letter dated 3 June 2010,
the applicant’s letter dated 29 June 2010, urged the respondent to fund
immigration work by non-legally qualified staff. The applicant explained that her
firm employed Ms Muldoon and another individual to conduct immigration
work and that Ms Muldoon had been accepted as a trainee solicitor. The
applicant stated:
“Both Ms Muldoon and Dr Currie are entitled to
provide legal advice and assistance, including
representation before the Tribunal, by virtue of S.
84(2)(e) of the Immigration and Asylum Act 1999.
They conduct this work under the supervision of
myself, the Principal of the firm. Both members of
staff have been here for a number of years.”
[6] Mr Andrew’s response, dated 25 August 2010, indicated the respondent
could not fund work by non-legally qualified staff under the terms of the legal
aid legislation and the immigration scheme:
“The Commission’s concern is that it must operate
within the terms of the relevant legal aid legislation.
The Commission’s view is that, as the relevant
proceedings fall within the scope of the proceedings
which may be funded under the full legal aid
scheme, the grant of legal aid entitled the funded
party to the services of a solicitor to act for them…In
the immediate context, the Commission cannot
move outside the terms of the legal aid scheme to
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