White v Bar Council of Ireland

JurisdictionIreland
JudgeMs. Justice Finlay Geoghegan
Judgment Date06 December 2016
Neutral Citation[2016] IECA 363
Date06 December 2016
CourtCourt of Appeal (Ireland)
Docket NumberNeutral Citation Number: [2016] IECA 363 Appeal No.: 2016/437,[2015 No. 582 JR] [C.A. No. 437 of 2016]

[2016] IECA 363

THE COURT OF APPEAL

Finlay Geoghegan J.

The President

Finlay Geoghegan J.

Peart J.

Neutral Citation Number: [2016] IECA 363

Appeal No.: 2016/437

BARRY WHITE
APPLICANT/RESPONDENT
AND
THE BAR COUNCIL OF IRELAND
THE MINISTER FOR JUSTICE AND EQUALITY,
IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS/APPELLANTS

Order of certiorari – Right to earn a livelihood – Reasonableness – Appellants seeking to appeal against orders made by the High Court – Whether appeals should be dismissed

Facts: The State appellants, the Bar Council of Ireland, the Minister for Justice and Equality, Ireland and the Attorney General, appealed to the Court of Appeal against orders made by the High Court on the 28th July, 2016, relating to claims against the appellants. The orders against which the appellants appealed were: 1) an order of certiorari quashing the decision of the Minister communicated by letters dated the 29th May, 2015 and the 9th October, 2015, to refuse to include the name of the respondent, Mr White, on the panel of counsel eligible to be paid for services provided under the Criminal Justice (Legal Aid) Regulations 1965; 2) a declaration that there was no requirement in law for the respondent to be a member of the Law Library and subject to the regulatory or disciplinary provisions of the Code of Conduct of the Bar of Ireland before he may be eligible for inclusion on the panel of counsel entitled to be paid for services provided under the 1965 Regulations; 3) a declaration that the decision of the Minister to refuse to include the respondent’s name on the panel of counsel entitled to be paid for services provided under the 1965 Regulations was taken ultra vires and is bad in law; 4) a declaration that the decision of the Minister to refuse to include the respondent’s name on the panel of counsel entitled to be paid for services provided under the 1965 Regulations is unreasonable in law; 5) a declaration that the decision to refuse to include the respondent’s name on the panel of counsel entitled to be paid for services provided under the 1965 Regulations results in a disproportionate interference with his constitutional rights protected under Article 40.1 and/or 40.3 and/or 43 of the Constitution.

Held by Finlay Geoghegan J that the trial judge was correct in concluding that the Minister’s decision to refuse to include the respondent’s name on the panel of counsel entitled to be paid for services provided under the 1965 Regulations, for the reason then given, was ultra vires, and that the respondent was entitled to an order of certiorari quashing the decision of the Minister communicated by the letters dated the 29th May, 2015 and the 9th October, 2015. The Court held that the trial judge was in error in concluding that the challenged decision, in accordance with the principles set out in the authorities which he cited could be considered as an interference with the respondent’s right to earn his livelihood protected by Article 40.3 of the Constitution. The Court held that there were no other rights protected by Article 40.1, 40.3 or 43 of the Constitution which on the evidence before the trial judge could justify the declaration made. Accordingly the Court proposed that the appeal be allowed against that declaration. The Court noted that the respondent in its submissions correctly pointed out that the question as to whether or not the Minister’s decision was unreasonable in law only arises if the Minister has a discretion under the 1965 Regulations. The Court noted that the Minister did not purport to exercise a discretion on the facts; rather she took the view that she did not have before her a valid notification from the Bar Council. In those circumstances the Court held that the declaration of unreasonableness was not well founded and should be set aside.

Finlay Geoghegan J held that the appeal against the order of certiorari quashing the decision of the Minister communicated by letters dated the 29th May, 2015 and the 9th October, 2015, to refuse to include the respondent’s name on the panel of counsel eligible to be paid for services provided under the 1965 Regulations and the related declarations at paragraphs 2 and 3 of the High Court Order should be dismissed, that the appeal against the declarations in the order of the High Court as to the unreasonableness of the decision and interference with constitutional rights of the respondent be allowed, and the declarations in that respect granted by the High Court vacated.

Appeal dismissed in part.

JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 6th day of December 2016
1

The Minister has appealed against orders made by the High Court on the 28th July, 2016, relating to the claims against the State respondents to whom I will refer for convenience as the Minister. In this judgment I propose referring to Mr. White, the applicant in the proceedings as the respondent.

2

The orders of the High Court against which the Minister has appealed are:-

1. An order of certiorari quashing the decision of the Minister communicated by letters dated the 29th May, 2015 and the 9th October, 2015, to refuse to include the respondent's name on the panel of counsel eligible to be paid for services provided under the Criminal Justice (Legal Aid) Regulations 1965.

2. A declaration that there is no requirement in law for the respondent to be a member of the Law Library and subject to the regulatory or disciplinary provisions of the Code of Conduct of the Bar of Ireland before he may be eligible for inclusion on the panel of counsel entitled to be paid for services provided under the Criminal Justice (Legal Aid) Regulations 1965.

3. A declaration that the decision of the Minister to refuse to include the respondent's name on the panel of counsel entitled to be paid for services provided under the Criminal Justice (Legal Aid) Regulations 1965 was taken ultra vires and is bad in law.

4. A declaration that the decision of the Minister to refuse to include the respondent's name on the panel of counsel entitled to be paid for services provided under the Criminal Justice (Legal Aid) Regulations 1965 is unreasonable in law.

5. A declaration that the decision to refuse to include the respondent's name on the panel of counsel entitled to be paid for services provided under the Criminal Justice (Legal Aid) Regulations 1965 results in a disproportionate interference with his constitutional rights protected under Article 40.1 and/or 40.3 and/or 43 of the Constitution.

3

The orders were made for the reasons set out in the judgment of Barrett J. delivered on the 22nd July, 2016.

4

By order of the 21st October, 2015 (Noonan J.) the respondent was granted leave to seek multiple reliefs by way of judicial review against the Bar Council and the Minister as set out in a statement of grounds dated the 20th October, 2015. In the High Court the respondent's claims against both the Bar Council and the Minster were pursued and heard together and all evidence adduced was treated as evidence against all respondents in the High Court. The judgment of 22nd July 2016 decided all issues.

5

The claims against the Bar Council were dismissed. They primarily concerned the lawfulness of Rule 5.21 of the Code of Conduct of the Bar of Ireland. The order of the 28th July 2016 does not, however, include an order dismissing the claims against the Bar Council, but rather adjourns same to the Michaelmas term pending a ruling on the costs of the proceedings. The Court was informed at the hearing of the appeal that the ruling has not been given and the question as to whether the respondent intends to appeal the dismissal of his claims against the Bar Council is not decided.

6

The Bar Council did not participate in the Minister's appeal. It was not named as either a respondent or notice party to the appeal. Nevertheless having regard to the issue arising it is, in retrospect, perhaps unfortunate that they were not represented and anything said in this judgement is said without any submission from the Bar Council.

7

Counsel for the Minister and respondent were in agreement that the central issue in the appeal is the proper construction of the Criminal Justice (Legal Aid) Act 1962, and the Criminal Justice (Legal Aid) Regulations 1965 ( S.I. No. 12 of 1965) made thereunder and in particular Regulation 5 thereof. Counsel for the respondent, nevertheless drew attention to certain facts which he submits are important to the context in which the challenged decision of the Minister was taken. I propose therefore setting out briefly the background facts and the facts relied upon as leading to the decision of the Minister.

8

The respondent was called to the Bar in 1967 and became a subscribing member of the Law Library; became a senior counsel in 1982; remained in full time practice in the Law Library continuously from his call in 1967 until he was appointed a judge of the High Court in 2002. He retired, on age, from the High Court on the 13th day of September, 2014. Whilst in practice as a barrister, the respondent's name was included on the panel of counsel willing to act for persons to whom certificates for legal aid had been granted under the 1962 Act. His area of practice, expertise, knowledge and specialisation was as a criminal defence barrister and he has deposed that his earnings from practice derived predominantly from payments under the Criminal Legal Aid Scheme.

9

Prior to retirement as a judge of the High Court, the respondent made a decision that he would seek to return to practice at the Bar. He has deposed that this was by reason of financial necessity and to support his four children who were then in full time education. He wrote to the Bar Council and completed an application form to resume his membership of the Law Library. The initial response was that he could do so on condition...

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