Volkmar Klohn v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Clarke C.J.,O'Donnell J.,Dunne J.
• Judgment Date: 23 April 2021
• Neutral Citation: [2021] IESC 30
• Docket Number: [Appeal No: 314/11 & 482/11]
• Court: Supreme Court
• Date: 23 April 2021

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

[2021] IESC 30

Clarke C.J.

O'Donnell J.

Dunne J.

[Appeal No: 314/11 & 482/11]

THE SUPREME COURT

Case management – Representation – Submissions – Appellant seeking to be represented by a German lawyer for the purposes of dealing with outstanding matters in respect of the appeal – Whether the German lawyer should be permitted to represent the appellant without the need to be accompanied by an Irish qualified lawyer

Facts: Certain questions were referred by the Supreme Court to the CJEU in the context of an appeal which remained under consideration by the Court. By judgment dated 17th October, 2018 (Klohn v An Bord Pleanála (Case C-167/17) (ECLI:EU:C:2018:833)), the CJEU gave answers to the questions raised. The matter came back before the Supreme Court to finally determine the appeal in light of that judgment. The appellant, Mr Klohn, sought to be represented by Ms Ohlig, a German lawyer, for the purposes of dealing with the matters which remained outstanding in respect of the appeal. It was sought that she should represent Mr Klohn in her capacity as someone entitled to practise in Germany. The question which then arose was as to whether she was entitled to appear in these proceedings without being accompanied by a lawyer qualified to appear before the Court in the ordinary way. A hearing ensued, as a result of which the Court determined that it would be appropriate to refer to the CJEU certain questions concerning Ms Ohlig’s entitlement to appear. The CJEU delivered its decision on that second reference in a judgment dated March 10th, 2021 (VK v An Bord Pleanála (Case C-739/10) (ECLI:EU:C:2021:185)). In light of that judgment, the matter was put in for further consideration before the Supreme Court on 19th April, 2021.

Held by the Court that it was appropriate that Ms Ohlig be permitted to represent Mr Klohn without the need to be accompanied by an Irish qualified lawyer. The Court noted that the only issues which remained for hearing before the Court were the issues which required determination in Mr Klohn’s appeal in light of the judgment of the CJEU in this case. Ms Ohlig appeared before the CJEU in the proceedings leading to that judgment and the Court held that it must, in those circumstances, be concluded that she would be in a position, in respect of this particular matter, to represent Mr Klohn in the same way as a lawyer who habitually practises before the Irish courts.

The Court directed that Ms Ohlig should, within three weeks, file written submissions as to the orders which it was urged the Court should make on the appeal, together with the reasons why it was said that it was appropriate to make the orders concerned. The Court directed that the respondent, An Bord Pleanála, should file replying submissions within a further period of three weeks. The Court held that when submissions had been filed, the matter would then be listed for hearing. The Court held that the parties should, in conjunction with the filing of submissions, agree on the materials (whether evidential or legal) which require to be placed before the Court to allow for an orderly conduct of the remainder of this appeal and should arrange for the filing of such agreed documentation in good time.

Case management.

Ruling of the Court delivered on 23 ^rd April, 2021 .

1 . These proceedings generally have a very long and complex history. However, this ruling is concerned with one net issue. The more general background to the proceedings can be found in a range of judgments of both Irish courts and of the Court of Justice of the European Union (“the CJEU”), and it unnecessary to set same out in any detail here.

2 . In brief, certain questions were originally referred by this Court to the CJEU in the context of the appeal which remains under consideration by the Court. The reasons for this original referral to the CJEU were set out in a judgment of this Court dated 24 ^th February, 2017 (see, Klohn v. An Bórd Pleanála & Ors. [2017] IESC 11). The referral itself was received at the CJEU on April 3 ^rd, 2017. By judgment dated October 17 ^th, 2018 (see, Klohn v. An Bord Pleanála (Case C-167/17) (ECLI:EU:C:2018:833)), the CJEU gave answers to the questions raised. In the ordinary course of events, the matter came back before this Court to finally determine the appeal in light of that judgment of the CJEU. At that stage, the appellant (“Mr. Klohn”),...