Bebenek v The Minister for Justice and Equality

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Keane
Judgment Date14 March 2019
Neutral Citation[2019] IEHC 154
Docket Number[2016 No. 188JR]
Date14 March 2019

[2019] IEHC 154

THE HIGH COURT

JUDICIAL REVIEW

Keane J.

[2016 No. 188JR]

BETWEEN
THOMAS BEBENEK
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY

AND

IRELAND

AND

THE ATTORNEY GENERAL

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA
RESPONDENTS

(No. 2)

Legal representatives – Abuse of process – Inherent jurisdiction – High Court considering the exercise of its inherent jurisdiction to protect its own process from abuse – Whether the legal representatives of the applicant failed to conduct the proceedings in accordance with proper standards of professional behaviour and the duty each owed to the court

Facts: The High Court (Keane J), in Bebenek v Minister for Justice and Equality & Ors (Unreported, High Court, 30 May, 2018) [2018] IEHC 323, concluded that it was necessary to consider the exercise of the court’s inherent jurisdiction to protect its own process from abuse since, prima facie, there had been a failure on the part of the legal representatives of the applicant, Mr Bebenek, to conduct the proceedings in accordance with proper standards of professional behaviour and the duty each owed to the court. To that end, Keane J directed the applicant’s solicitor and junior counsel to show cause why each should not be found to have conducted the proceedings in breach of those standards and that duty. In particular, Keane J invited those legal representatives to respond to ten specific matters of concern and directed the applicant’s solicitor to furnish to the court all documentation on her file touching upon or concerning the fee arrangements between her firm and the applicant. Further, having ordered that the applicant’s solicitor indemnify him in respect of the costs of the first respondent, the Minister for Justice and Equality, Keane J indicated that he would hear any submissions that the applicant’s solicitor may wish to make on whether it was appropriate to make a further order pursuant to O. 99, r. 7 of the Rules of the Superior Courts (RSC) disallowing the costs of the proceedings as between her firm and the applicant.

Held by Keane J that, in this case, on the evidence before him, the conclusion of the Divisional Court in R (Sathivel) v Secretary of State for the Home Department [2018] EWHC 913 was the appropriate conclusion to draw, which is to say: ‘These were serious failings. They have led to the immigration and asylum system being undermined and the High Court’s scarce resources being taken up with a wholly unsubstantiated case that was entirely without merit’.

Keane J held that he would not take any action against either solicitor or counsel in the particular circumstances of the case because it seemed to him that he was required to have appropriate regard to the principle of equality before the law.

Judgment approved.

Judgment of Mr. Justice Keane delivered on the 14th March 2019
Introduction
1

In Bebenek v Minister for Justice and Equality & Ors (Unreported, High Court, 30 May, 2018) [2018] IEHC 323, I concluded that it was necessary to consider the exercise of the court's inherent jurisdiction to protect its own process from abuse since, prima facie, there had been a failure on the part of the applicant's legal representatives to conduct the proceedings in accordance with proper standards of professional behaviour and the duty each owes to the court.

2

To that end, I directed the applicant's solicitor and junior counsel to show cause why each should not be found to have conducted these proceedings in breach of those standards and that duty.

3

In particular, I invited those legal representatives to respond within 14 days to 10 specific matters of concern and I directed the applicant's solicitor to furnish to the court, within the same period, all documentation on her file touching upon or concerning the fee arrangements between her firm and the applicant.

4

Further, having ordered that the applicant's solicitor indemnify him in respect of the Minister's costs, I indicated that I would hear any submissions that the applicant's solicitor may wish to make on whether it is appropriate to make a further order pursuant to O. 99, r. 7 of the Rules of the Superior Courts (“the RSC”) disallowing the costs of the proceedings as between her firm and the applicant.

5

On that basis, I adjourned the matter to 27 June 2018. On 13 June 2018, both the applicant's solicitor and junior counsel sought an extension of time to respond to the court's concerns and I granted a forty-eight hour extension to close of business on 15 June 2018. On 14 June 2018, on the application of counsel for the applicant's solicitor and in the absence of any objection, I brought the hearing forward to 20 June 2018.

Representation
6

When the matter came before me again on that date, the applicant's solicitor was represented by Patrick Leonard S.C. and Joe Jeffers B.L., instructed by Cahir O'Higgins & Company, Solicitors. The applicant's junior counsel was represented by Eileen Barrington S.C. and James Dwyer B.L., instructed by McDowell Purcell, Solicitors. The Minister was represented by Kilda Mooney B.L., instructed by the Chief State Solicitor. I had directed that the Minister be placed on notice of the application solely to assist, if possible, in the resolution of any factual controversy that might arise. In the event, none did. I am very grateful to counsel for their assistance.

Submissions
7

On behalf of the applicant's solicitor, Mr Leonard makes broadly three submissions. The first is a procedural one. It is that, having already found for the purpose of the application of O. 99, r. 7 of the RSC that the applicant's solicitor was grossly negligent and in breach of her duty to the court in commencing and continuing these proceedings, I am precluded from again addressing the same issue for the purpose of considering any further steps necessary to protect the integrity of the court's own processes with the result that I should either take no further action or refer the matter to another judge.

8

Mr Leonard's second submission is a jurisdictional one. It is that the court is seeking to exercise an inherent disciplinary jurisdiction over solicitors that it does not have. Mr Leonard argues that the High Court of Ireland has no inherent jurisdiction to hold to account the behaviour of lawyers whose conduct of litigation falls below the minimum professional and ethical standards demanded of all lawyers who appear before it.

9

Finally and without prejudice to his first two arguments, Mr Leonard makes a submission on the merits of the case to the effect that no further order against the applicant's solicitor is warranted in all of the circumstances.

10

On behalf of the applicant's counsel, Ms Barrington adopts the jurisdictional and procedural submissions of Mr Leonard in so far as they are material to her client, before addressing the specific mitigating circumstances of her client's conduct.

Analysis

i. jurisdiction

11

It is convenient to deal with Mr Leonard's second argument first. The premise underlying it is that the inherent jurisdiction of the court to discipline solicitors no longer exists in the wake of the decision of the Court of Appeal in ACC Loan Management Ltd v Barry [2015] 3 IR 473.

12

In my judgment, that is a mistaken premise.

13

In giving judgment for the Court of Appeal in that case, Hogan J first had regard to the jurisdiction of the court in relation to undertakings (at 483-4), acknowledging the controlling authority of the Supreme Court decision in Bank of Ireland Mortgage Bank v Coleman [2009] IESC 38, [2009] 3 IR 699.

14

In Coleman (at 721), Geoghegan J cited the decision of Lardner J in IPLG v Stuart (Unreported, High Court, 19 March 1992), as a clear affirmation that the inherent jurisdiction of the court in respect of solicitor's misconduct still exists.

15

In IPLG (at p. 25 of the transcript), Lardner J explained that the jurisdiction is based upon the court's right to require its officers to observe a high standard of conduct and that it is exercised where a solicitor acting for a client in a professional capacity gives a personal undertaking whether to the client, a third party or the court.

16

In Coleman (at 724), Geoghegan J cited, with evident approval, a passage from the speech of Lord Wright in Myers v Elman [1940] AC 282 (at 319) that reaffirmed the right and duty of the court to supervise the conduct of its solicitors, and visit with penalties any conduct of a solicitor which is of such a nature as to tend to defeat justice in the very cause in which he is engaged professionally, following Abinger C.B. in Stephens v. Hill (1842) 10 M. & W. 28.

17

In ACC Loan Management (at 484), Hogan J cited the same passage from Lord Wright's speech, before emphasising a later portion of it identifying the relevant jurisdiction as “not merely punitive, but compensatory” and describing the court's power to make an order against a solicitor for costs thrown away as one frequently exercised in order to compensate the opposite party in the action, before concluding that the jurisdiction of the court to enforce an undertaking is “fundamentally compensatory”. Whether the exercise of those powers as part of the inherent jurisdiction to supervise the conduct of solicitors is best described as “not merely punitive, but compensatory”, “frequently compensatory”, or “fundamentally compensatory”, it is perfectly plain that the jurisdiction still exists.

18

In this context, it is particularly important to note that the court's inherent jurisdiction to discipline its own officers is expressly preserved by s. 14(3) of the Solicitors Act 1954, which states that, notwithstanding anything in that Act, any judge of the High Court may exercise any jurisdiction over solicitors which he or she might have exercised had it not been passed.

19

The principal relief claimed by the plaintiff bank in ACC Loan Management, the refusal of which...

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