Klohn v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 31 July 2019
• Neutral Citation: [2019] IESC 66
• Docket Number: [Record No: 2011/314]
• Court: Supreme Court
• Date: 31 July 2019

[2019] IESC 66

THE SUPREME COURT

Clarke C.J.

Clarke C.J.

O'Donnell Donal J.

Dunne J.

[Record No: 2011/314]

Between/

Volkmar Klohn

Appellant

and

An Bord Pleanála

Respondent

and

The General Council of the Bar of Ireland, The Law Society of Ireland

and

the Attorney General

Notice Parties

Rights of audience – European Communities (Freedom to Provide Services) (Lawyers) Regulations 1979 – European law – Appellant seeking to instruct a German Rechtsanwalt to represent him – Whether the German Rechtsanwalt had rights of audience in all the circumstances of the case

Facts: The appellant, Mr Klohn, had represented himself in an appeal before the Supreme Court which led to the judgment of the Court ([2017] IESC 11) and to the reference by the Court of certain issues of law to the CJEU. When the matter was before the CJEU, Mr Klohn was represented by Ms Ohlig, a German Rechtsanwalt. The CJEU answered the questions posed by the Court in a judgment of 17 October 2018 (Case C-167/17, ECLI:EU:C:2018:833). Thereafter, the matter came back before the Court for the purposes of the finalisation of Mr Klohn’s appeal in the light of the interpretation of relevant European law identified by the CJEU in its judgment. The first main issue which the Court had to address concerned the order for costs originally made against Mr Klohn in the underlying proceedings. It was accepted by the respondent, An Bord Pleanála, that the appeal would have to be allowed and that the costs awarded against Mr Klohn had to be assessed on the basis that such costs were not prohibitively expensive in the sense in which that term is used in relevant European Union law. It was accepted in principle that the question of the assessment of costs on that basis could either be referred back to a Taxing Master or to the High Court on that basis or that this Court could conduct that exercise itself, with the Board favouring the latter course of action as a more efficient way of dealing with the matter in all the circumstances of the case. The question of the costs of the appeal (including the costs of the reference) also remained for determination. Mr Klohn wished to instruct Ms Ohlig to represent him in respect of those matters. It was in that context that the entitlement of Ms Ohlig to represent Mr Klohn in the proceedings came into focus. The major issue which arose concerned the application of the requirement of the European Communities (Freedom to Provide Services) (Lawyers) Regulations 1979 that a non-Irish qualified EU lawyer wishing to represent a party before a court in litigious proceedings in Ireland might be said to be required to practice “in conjunction with” an Irish qualified lawyer who enjoys a right of audience before the Irish courts in the ordinary way. The reason why that issue arose stemmed both from the legislative regime at European and national level and also from the case law of the CJEU.

Held by Clarke CJ that Ms Ohlig had established that she was entitled to avail of the provisions of the Regulations as the Irish transposing measure of Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services (the Lawyers’ Services Directive). On that basis, Clarke CJ held that she was prima facie entitled to offer legal services in Ireland in accordance with the terms of the Regulations. Clarke CJ held that the only question about her entitlement to represent Mr Klohn in these proceedings turned, therefore, on the question of whether Ireland was entitled to impose an “in conjunction with” obligation for the exercise by Ms Ohlig of her rights of audience in all the circumstances of this case.

Clarke CJ held that the answer to that question was a matter of Union law in respect of which the answer was not clear. Clarke CJ held that it was necessary to refer the matter to the CJEU under the provisions of Article 267 of the Treaty on the Functioning of the European Union.

Referral to the Court of Justice of the EU.

Judgment of Mr. Justice Clarke , Chief Justice, delivered the 31st July, 2019.

1. Introduction

1.1 This judgment relates to a question which has indirectly arisen in the context of these proceedings, even though, unusually, it does not relate to any of the issues which arise between the parties to the proceedings as such. The issue concerns the question of whether a German Rechtsanwalt, Ms. Barbara Ohlig, has rights of audience in all the circumstances of the case. That issue arises out of the proper interpretation and application of the European Communities (Freedom to Provide Services) (Lawyers) Regulations 1979, as amended, (‘the Regulations’), and as properly interpreted in the light of the provisions of European law which those regulations transposed in to Irish law, being Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services, as amended, commonly referred to as ‘the Lawyers” Services Directive’.

1.2 In order to fully understand how that issue arises, it is appropriate to say a little about the procedural history of these rather lengthy proceedings.

2. The Procedural History

2.1 The history of these proceedings up to a certain point in time is fully set out in a judgment of this Court, Klohn v. An Bord Pleanála & Ors [2017] IESC 11. The appellant, Mr. Klohn, had represented himself in the appeal before this Court which led to that judgment and to the reference by this Court of certain issues of law to the CJEU.

2.2 When the matter was before the CJEU, Mr. Klohn was represented by Ms. Ohlig. The CJEU answered the questions posed by this Court in a judgment of 17 October 2018, Klohn v. An Bord Pleanála, Case C-167/17, ECLI:EU:C:2018:833. Thereafter, the matter came back before this Court for the purposes of the finalisation of Mr. Klohn's appeal in the light of the interpretation of relevant European law identified by the CJEU in its judgment.

2.3 In simple terms, the first main issue which this Court had to address concerned the order for costs originally made against Mr. Klohn in the underlying proceedings, the details of which are fully set out in the earlier judgment of this Court. It was accepted by the respondent, An Bord Pleanála (‘the Board’), that the appeal would have to be allowed and that the costs awarded against Mr. Klohn had to be assessed on the basis that such costs were not prohibitively expensive in the sense in which that term is used in relevant European Union law. It was accepted in principle that the question of the assessment of costs on that basis could either be referred back to a Taxing Master or to the High Court on that basis or that this Court could conduct that exercise itself, with the Board favouring the latter course of action as a more efficient way of dealing with the matter in all the circumstances of the case. The question of the costs of the appeal (including the costs of the reference) also remained for determination.

2.4 Mr. Klohn wishes to instruct Ms. Ohlig to represent him in respect of those matters. It is in that context that the entitlement of Ms. Ohlig to represent Mr. Klohn in these proceedings has come into focus. The various notice parties were directed by the Court to be given an opportunity to make submissions on that question, having regard to the fact that the questions of whether the Regulations properly transposed the Lawyers” Services Directive and of the proper interpretation of the Regulations in that context involved the State, through the Attorney General. In addition, the two other notice parties, being the bodies who represent professional practitioners in Ireland, were also considered by the Court to have a legitimate interest in being heard on the matter, for the ruling of this Court on this issue potentially affects the rights of non-Irish qualified EU lawyers generally to represent parties in proceedings before the Irish courts. Before going on to set out the precise issues which have arisen, it is also appropriate to refer to a practice direction issued by the Chief Justice, Practice Direction SC11 – European Communities (Freedom to Provide Services) (Lawyers) Regulations, 1979 to 2004 (‘the Practice Direction’). The Practice Direction sets out the procedure to be followed by a lawyer who wishes to exercise rights of audience under the Regulations. Ms. Ohlig filed an affidavit in accordance with the Practice Direction, although certain issues have arisen concerning whether she can be said, for certain technical reasons, to have complied with its terms. It will be necessary to return to those matters in due course.

2.5 However, the major issue which has arisen concerns the application of the requirement to the Regulations that a non-Irish qualified EU lawyer wishing to represent a party before a court in litigious proceedings in Ireland might be said to be required to practice ‘in conjunction with’ an Irish qualified lawyer who enjoys a right of audience before the Irish courts in the ordinary way. The reason why that issue arises stems both from the legislative regime at European and national level and also from the case law of the CJEU. It is necessary to turn to that law in order to fully understand the dispute between the parties.

3. The Law

3.1 Article 1(1) of the Lawyers” Services Directive provides that the Directive applies to ‘the activities of lawyers pursued by way of provision of services’. A list of professional designations existing in the member states which bring a person within the scope of the Directive is set out in Art. 1(2). This list includes the German professional designation Rechtsanwalt. Article 2 of the Directive provides that ‘[e]ach Member State shall recognize as a lawyer for the purpose of pursuing the activities specified in Article 1(1) any person listed in paragraph 2 of that Article’.

3.2 Article 5 of the Directive provides...