Houston v Barniville
| Jurisdiction | Ireland |
| Judge | Birmingham P. |
| Judgment Date | 30 November 2020 |
| Neutral Citation | [2020] IECA 365 |
| Docket Number | [2019 No. 411] |
| Court | Court of Appeal (Ireland) |
| Date | 30 November 2020 |
[2020] IECA 365
The President
McCarthy J.
Ní Raifeartaigh J.
[2019 No. 411]
THE COURT OF APPEAL
CIVIL
This is an appeal from a decision of the High Court (Twomey J) of 18th July 2018, dismissing a consolidated action that had been brought by the plaintiff. Her proceedings consisted of five separate actions. The defendants were, at relevant times, members of the General Council of the Bar of Ireland (the Bar Council) or members of the Professional Practice Committee (the PPC) of the Bar Council or members of the Barristers Professional Conduct Tribunal (the Tribunal) or members of the Barristers Professional Conduct Appeals Board (the Appeals Board).
As emerges from the judgment of the High Court, Ms. Houston was called to the Bar of Ireland in July 2008. Prior to her call, she applied to become a member of the Law Library.
While a member of the Law Library, the plaintiff directly contacted clients of two solicitors who had previously instructed her as a Barrister, notwithstanding that the code of conduct at the time appeared to provide that a Barrister could only make contact with a client at a consultation at which the client and the Solicitor are both present, or in writing to the client through the Solicitor. This led to complaints against her by two Solicitors; a complaint in 2011 by Solicitor, Mary Morrissey, and by a Solicitor in 2013, Ms. Wendy Doyle.
These complaints, in one case, to the PPC and in the other case to the Tribunal, did not result in a penalty or censure, still less, exclusion or suspension from the Law Library, but rather, an “advisory” opinion issued on 19th February 2015 by the Tribunal which advised Ms. Houston not to engage with clients in a manner giving rise to the complaints, or in any other manner that would be contrary to the code of conduct for the Bar of Ireland.
On 18th March 2016, Ms. Houston was excluded from the Law Library following protracted correspondence regarding outstanding Law Library subscription fees. Following her exclusion, she initiated the first of her proceedings; a claim against members of the PPC and the Standing Committee of the Bar Council. A second set followed in January 2018, being a claim against the Appeals Board.
By order of the High Court (Noonan J) of 25th April 2018, the various sets of proceedings, five in number at that stage, brought by Ms. Houston were consolidated into one action.
The High Court judge pointed out that the plaintiff's Statement of Claim had referred to more than 40 reliefs that she was seeking, but he identified that there were essentially three broad heads of claim, namely:
• Competition Law claims
• Defamation claims
• Assault claims
In the course of the judgment, the High Court judge reviewed in some detail the nature of the claims. He then turned to the application to dismiss, addressing first the relevant law in this area. In doing so, he reviewed authorities such as the Supreme Court decision in O'Toole v. Heavey [1993] 2 IR 544, and the decision of Clarke J in Moorview Developments v. First Active [2009] IEHC 214, as well as the relatively recent decision of this Court in Burke v. Mullaly & Ors [2019] IECA 82. Following the application to non-suit the plaintiff, judgment was reserved and the judge was in a position to deliver judgment, but was asked not to do so in order to allow consideration of the significance of Burke v. Mullaly & Ors. Subsequently, the trial judge concluded, correctly, in the view of this Court, that the decision in Burke v. Mullaly & Ors did not significantly alter the existing law in relation to applications to dismiss, but rather, saw an application of well-established existing principles.
The trial judge quoted Ms. Houston as claiming that the actions of the defendants, and in particular, the actions of the Bar Council, the PPC, the Tribunal and the Appeals Board were anti-competitive and that they had abused their dominant position. He quotes her as commenting during her opening submissions to the Court that the case was “at its foundation a competition case”. He instances some of her criticisms as including the fact that different charges apply for membership, depending on the number of years in practice, and that there are different charges, depending on whether one is Dublin-based, and so, close to the Law Library, or Cork-based. He comments that the competition claims are unsubstantiated by any evidence, and this despite an acknowledgement by Ms. Houston in the Statement of Claim that expert evidence is required to substantiate her various anti-competitive claims. Despite this, the judge points out that not a shred of evidence had been provided by Ms. Houston. He says that at its most basic, Ms. Houston provided no evidence as to what product market was being subjected to anti-competitive practices and suggests that she equates a mere assertion of a claim with proving such a claim.
The failure to point to and prove the existence of a market that was affected by alleged anti-competitive practices was pointed to in the course of the application for a non-suit. In reply, Ms. Houston asserted that the relevant market was barristers' services, but the judge observed that submissions after evidence in response to an application to dismiss was no substitute for evidence. In the High Court, and again, before this Court, the plaintiff, now appellant, has raised the issue of a reference to the European Court of Justice. In the course of his judgment, the High Court judge observed that the reference jurisdiction was confined to matters of EU law so that it was obvious that no such issues arose in the case, and that therefore, the Court would not entertain an application to refer. He went on to point out that in her closing submissions, responding to the application to dismiss, that Ms. Houston had appeared to resile from her application, quoting what she had to say in that regard. He concluded his consideration of this issue by saying that it was clear that the referral to the CJEU was moot, and if it was not moot, that there was no basis for such a referral. Whatever her final position in the High Court may have been, there is no doubt that before this Court, Ms. Houston has been unequivocal in seeking a referral. However, in the Court's view, there is absolutely no basis for a reference; no issue of EU law has been identified. There is no suggestion of European competition law with its focus on inter-State trade being engaged. Counsel on behalf of the respondent did raise one possible exception relating to the decision of the Bar Council not to provide a Certificate of Good Standing. This would never seem to have been a major part of the case, in that Ms. Houston mentioned it in the High Court only when reminded of the issue by counsel on behalf of the defendants. In any event, as was pointed out in the High Court judgment, and as counsel for the respondent submitted before this Court, the decision was based on the fact that Ms. Houston had outstanding fees, certificates are not issued to individuals where there are fees outstanding; she was not prepared to discharge those...
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