White v Bar Council of Ireland

• Jurisdiction: Ireland
• Court: High Court
• Judge: Barrett J.,Mr Justice Max Barrett
• Judgment Date: 30 May 2016
• Neutral Citation: [2016] IEHC 283
• Date: 30 May 2016
• Docket Number: Record No. 2015/582JR

Between:

BARRY WHITE

Applicant

and

THE BAR COUNCIL OF IRELAND,

THE MINISTER FOR JUSTICE AND EQUALITY,

IRELAND

AND

THE ATTORNEY GENERAL

Respondents

[2016] IEHC 283

Record No. 2015/582JR

THE HIGH COURT

Professional Ethics & Conduct – R. 5.2.1 of the Code of Conduct of the Bar Council of Ireland – Refusal to practice in courts – Damages – Discovery of documents – Modular trial

Facts: Following the refusal of the first named respondent to admit the applicant being a retired High Court judge into practice in courts of equal or lesser jurisdiction by virtue of r. 5.2.1 of the Code of Conduct of the Bar Council of Ireland, the applicant filed a claim for damages against the respondent for the pecuniary loss caused to the applicant by the said refusal. In the present proceedings, the applicant sought an order for modular trial of the issues. The respondent also sought an order for discovery of documents pertaining to means of income and the nature of work undertaken by the applicant five years prior to his appointment to the High Court along with alleged loss and damages suffered by him and steps to mitigate those damages.

Mr. Justice Max Barrett declined to grant an order for modular trial of the issues and directed that the matter should proceed by way of a unitary trial. The Court granted an order to the respondent for the discovery of documents in relation to nature and extent of work of the applicant, alleged loss and income; assets and liabilities; and source of income while refusing disclosure of documents pertaining to evidence of income during five years prior to appointment of the applicant to the High Court. The Court propounded principles that one must follow to direct discovery in judicial review proceedings viz. determination of relevancy of issues to be tried by reference to pleadings, the necessity of documents for disposal of the matter, existence of factual issues, the behaviour of the opposing party and proportionality of documents sought to be discovered. The Court held that in judicial review proceedings, the necessity of the documents must be determined in relation to the issue raised before the Court and not from the statement of claims filed in the substantive pleadings. The Court observed that it had inherent jurisdiction to conduct a modular trial in public interest keeping in mind the complexity and length of trial, need to insulate a party involved with little or no issues and to save cost and money in the interest of public. The Court found that issues involved in the present case were not capable of being tried in isolation as it would cause prejudice to the respondent. The Court held that the mode of calculation of damages would not significantly vary by altering the mode of trial.

JUDGMENT of Mr Justice Max Barrett delivered on 30th May, 2016.

Part 1

Overview

1 Was there ever, in our long national history, a financial mess to match the rise and demise of the so-called “Celtic Tiger”? These are yet another set of proceedings that appear, ostensibly at least, to spring ultimately from that financial fiasco and to show just how insidious our recent national bankruptcy has proven over time to be for so many people in so many walks of life. Mr White is a retired High Court judge. He claims that, thanks largely to cuts in salary and pension that he suffered following on the nation's financial crisis of recent years, and faced with the cost of rearing a still-young family, he needs at this time to return to practice at the Bar as a member of the Law Library. He objects, however, to rule 5.2.1 of the Code of Conduct of the Bar Council of Ireland which prevents him, following retirement as a judge, from practising in a court of equal or lesser jurisdiction than the court in which he was a judge. His particular objection is that he was formerly a criminal defence barrister of no little eminence and he wishes now to return to this line of practice, which has its natural focus in the Circuit and High Courts – two courts in which he cannot practice by virtue of rule 5.2.1.

2 Mr White also faces a separate but not unrelated problem. He wishes to be admitted by the Minister for Justice and Equality to the panel of criminal defence practitioners who are eligible to be paid for their labours by the State pursuant to the free legal aid scheme. As the overwhelming bulk of criminal defence work is, it seems, funded by way of free legal aid, Mr White contends that to have any prospect of making a decent income from criminal defence work, a practitioner must in reality be admitted to this panel. But the Minister appears, at least on the face of matters, to consider that membership of the Law Library is a pre-requisite to admission to that panel. And here Mr White encounters what seems to him to be something of a “Catch 22”. It will be recalled that in Heller's novel by the same name, pilots who were insane were not obliged to fly wartime aviation missions, but any pilot who applied to stop flying was deemed to show a rational concern for his safety and was therefore considered sane; so there was no apparent way of escaping one's flying-duty. Here, the facts are rather less dramatic but a not entirely dissimilar quandary is posited to arise: to earn a meaningful income at the Criminal Bar, Mr White must, or so it now seems, be a member of the Law Library; but if he is a member of the Law Library he is (he claims) excluded from earning a meaningful income by virtue of rule 5.2.1; so, on his account, there is no apparent means for him to earn a meaningful income as a criminal defence barrister.

3 Where the truth lies as to the various issues presenting in the dispute now arising between the parties is not a matter for the court to decide on the present application. That will be for the main trial of action. For now, the court is presented with but two motions: (1) a motion from the Bar Council for discovery of certain documentation; and (2) a motion by Mr White seeking a modular trial.

Part 2

Discovery Sought

4 The Bar Council seeks discovery of the following two categories of documentation:

‘Category 1

“All documents which record and/or evidence:

(i) the nature of the work undertaken by the Applicant during the five years prior to his appointment to the High Court; and/or

(ii) the income of the Applicant (including the sources of such income) during the five years prior to his appointment to the High Court; and/or

(iii) the alleged loss and damage allegedly suffered by the Applicant, including

(a) the cause(s) of the alleged loss and damage allegedly suffered by the Applicant; and/or

(b) any steps taken by the Applicant to mitigate or avoid that alleged loss and damage (whether by seeking to secure work outside the Criminal Legal Aid Scheme or otherwise).”

Category 2

“All documents which record and/or evidence all of the assets, liabilities, income (including each of the sources of income) and expenditure of the Applicant during the period from September 2009 (five years prior to his retirement as a judge) to date.”’

5 Why the emphasis in these categories of discovery on matters monetary? After all, viewed in one light this seems a case that has as much to do with questions of principle as it has to do with matters of principal. The answer lies in the manner in which Mr White has elected, with the benefit of legal advice, to plead his case. He has not come to court claiming, in effect, that “I am a professionally qualified man who wishes to practise my chosen profession”. Rather he comes to court claiming, in effect, that “I am a professionally qualified man who needs by reason of financial necessity to practise my chosen profession and you are costing me money by effectively preventing me from doing so and hence damages are owing.” If one looks to Mr White's amended statement of grounds, one finds it replete with references to his previous work as a criminal defence lawyer, to the financial necessity that he now return to work, and to the commercial must to be admitted to the free legal aid panel if he is to thrive as a criminal defence lawyer. So, for example, per the amended statement of grounds:

- ‘[T]he applicant practised predominantly in the area of criminal defence’;

- ‘[The applicant] was almost wholly dependent on payments under the provisions of the Criminal Legal Aid Scheme’;

- ‘His area of practice…is…that of a criminal defence barrister appearing before courts of first instance’;

- ‘Practice as a criminal defence barrister is unsustainable as a means of earning a livelihood unless one's name has been included on the Panel’;

- ‘Following his retirement as a High Court Judge the Applicant's livelihood from his pension was insufficient to meet his support needs and those of his family’;

- ‘[The applicant is d]esirous of returning to practice at the Bar…and arising from circumstances of financial necessity [has sought to do so]’.

6 The court could go on, but the foregoing suffices to give a flavour of what is pleaded by Mr White. The notice of motion grounding his claim also seeks damages on various grounds. To the foregoing, the Bar Council's response in its statement of opposition is, inter alia, that it will require proof of various matters, including that:

‘(i) while in practice as a barrister, the Applicant practised predominantly in the area of criminal defence and was almost wholly dependent on payments under the provisions of the Criminal Legal Aid Scheme;

(ii) the area of practice, expertise, knowledge and specialisation of the Applicant is confined to that of a criminal defence barrister appearing in courts of first instance…

(iii) practice as a criminal defence barrister is unsustainable as a means of earning a livelihood unless one's name has been included on the Panel maintained by the [Minister]…

(iv)...