White v The Bar Council of Ireland

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 22 July 2016
• Neutral Citation: [2016] IEHC 406
• Docket Number: [2015 No. 582JR]
• Court: High Court
• Date: 22 July 2016

BETWEEN:

BARRY WHITE

APPLICANT

– AND –

THE BAR COUNCIL OF IRELAND

– AND –

THE MINISTER FOR JUSTICE AND EQUALITY

– AND –

IRELAND

– AND –

THE ATTORNEY GENERAL

RESPONDENTS

[2016] IEHC 406

[2015 No. 582JR]

THE HIGH COURT

Constitution – Right to earn livelihood – Bar to practice – Reg. 5(3) and (4) of the Criminal Justice (Legal Aid) Regulations, 1965 – Interpretation of term ‘barrister’– Certiorari

Facts: The applicant sought an order of certiorari for quashing the decision of the first named respondent that the applicant would be allowed to practice at the Bar subject to the condition that he would obtain the membership of the law library. The applicant also sought an order of certiorari for quashing the decision of the second named respondent refusing to include the applicant's name on the panel of counsel eligible to be paid services provided under the Criminal (Legal Aid) Regulations, 1965. The applicant also sought various others declarations and ancillary reliefs. The applicant contended that the action of the respondents in prohibiting him from practising at the Bar was unconstitutional and an infringement upon his right to livelihood. The second named respondent contended that since the term ‘counsel’ under reg. 5(3) and (4) of the Criminal Justice (Legal Aid) Regulations, 1965 referred to a barrister engaged in advocacy,’ the applicant could not be included on the panel list for giving free legal aid to the needy persons as he was a retired judge.

Mr. Justice Max Barrett granted orders of certiorari to the applicant thereby quashing the decisions of both the respondents. The Court held that there was no mandate for the applicant to obtain the membership of the law library for being able to include his name on the defence list. The Court held that the interpretation of the term ‘counsel’ by the second named respondent was wrong in law. The Court found that reg. 5 of the 1965 Regulations must be construed as referring to a barrister who was qualified to practice in Ireland and the applicant fulfilled that condition as he was a retired High Court judge. The Court noted that there had been unnecessary impingement on the applicant's right to earn a living by both the respondents. The Court held that the decision of Kennedy C.J. in In the Matter of the Solicitors (Ireland) Act, 1898 and in the Matter of an Application by Sir James O'Connor [1930] I.R. 623 did not reflect the existing law and was not binding. The Court thus, granted the declaration to the applicant to the effect that there was no requirement in law for the applicant to be a member of the law library and subject to the regulatory provisions of the Code of Conduct of the Bar of Ireland as a condition precedent for inclusion of his name on the panel of counsel entitled to be paid for services under the Regulations of 1965. The Court also granted the declarations that the decision of the second named respondent for refusing to include the applicant's name on the panel list was ultra vires, disproportionate interference with constitutional rights protected under art. 40.1 of the Constitution and unreasonable in law.

JUDGMENT of Mr Justice Max Barrett delivered on 22nd July, 2016.

Part 1

Tradition

1 Mr White is a retired High Court judge. He wants to return to practice as a barrister. He anticipates that this will lead to him acting as an advocate, principally in the Circuit Court, and also in onward appeals. He therefore looks set to breach a tradition that retired barristers-turned-judges who return to practice as barrister-advocates do not appear before a court of equal or lower jurisdiction than that in which they used formerly to sit as a judge. This tradition has been represented in the within proceedings, at least by the parties opposed to Mr White, as a rule of law. However, for the reasons identified by the court hereafter, it is in truth but a tradition, and so not legally binding upon Mr White.

2 The principal decision regarding this tradition is that of Kennedy C.J. in In the Matter of the Solicitors (Ireland) Act, 1898 and in the Matter of an Application by Sir James O'Connor [1930] I.R. 623. The Chief Justice's decision in that matter concerned an application by a onetime judge who wanted to return to practice as a solicitor. Having posited, at 630-31, that there was a common ‘ understanding’ that upon such an individual being appointed a judge, the practice of law by him (or, of course, her) is abandoned forever, Kennedy C.J. observes as follows at 631-2:

‘There is good and powerful reason in support of such a rule, for it is beyond doubt that if a man should step down from the privileged position of the Bench and throw off what is a sacred office to engage in the rough-and-tumble of litigious contest, and compete with the practitioners for the feed business of the Court, perhaps challenge decisions which he pronounced, or even fail to support them in argument, he will shake the authority of the judicial limb of government, and mar the prestige and dignity of the Courts of Justice upon which the whole structure of the State must always lean….[H]e would still be regarded as laying down the law with judicial authority, and he would tend to overbear inferior Courts, while it would be a scandal were he to explain his own judgments for the purpose of advancing a client's cause.’

3 Some of these points do not present as practical concerns in the case of Mr White. This is because he has already indicated, in a letter of 5th October, 2015, to the Department of Justice and Equality that, should he return to practice as a barrister engaged in advocacy, he will not in the course of that practice: ‘(a)…refer to his prior judicial status in any practice-related context…(b)…appear in any case which he has heard as a judge or was connected with as a judge…(c)…appear in any case where one of his decisions as a judge is substantively in issue…(d) provide advice about the interpretation of any of his previous judicial decisions that is intended to elaborate or…clarify such a decision…[or] (e)…use in practice any confidential information obtained by him while a judge.’ These sensible undertakings have the combined effect that no practical instance could conceivably arise in which Mr White will, to borrow from the above-quoted wording of Kennedy C.J. ‘challenge decisions which he pronounced, or even fail to support them in argument’.

4 There are a number of preliminary points to note about the decision of Kennedy C.J. in O'Connor. First, his decision is not a judgment of the Supreme Court. It is a decision of the Chief Justice sitting as the arbiter of matters pertaining to the solicitors' profession, in much the same way that the President of the High Court does today. Second, the case is not a lis, i.e. there is no controversy arising between parties. Third, as Kennedy C.J. himself acknowledges, at 630, it is a decision that is not supported by ‘ any modern precedent’ to the time when the decision was made. In other words, Kennedy C.J. could not state that his ruling reflected existing law. Fourth, it is what might be described as a form of “decision of first impression', being a decision that merely sets out the facts and which then concludes, in truth all but advocates, that a particular vision of justice and morality suggest a certain end to be desirable, and hence correct. Fifth, it is a decision that does not involve inductive or deductive reasoning of the type that customarily informs court judgments, but largely speculative reasoning that, again, is ungrounded in case-law. The effect of the foregoing points is that it is not at all clear that this Court is bound by the decision in O'Connor. But, even if it were, the import of O'Connor, at least so far as barristers-turned-judges are concerned, appears in any event to have been widely misconstrued. In an illuminating Irish Jurist article on the O'Connor decision (‘ Chief Justice Kennedy and Sir James O'Connor's Application’ (1988) Ir. Jur. 144), the then Dr Gerard Hogan, one of the foremost lawyers of his generation, a distinguished expert on constitutional law, and now a member of the Court of Appeal, offered the following view, at 152:

‘The conventional understanding…is that a former judge may not practise in the court of which he was a member, or in any inferior court. Thus according to this convention, a former member of the Circuit Court would be entitled only to appear before the High Court or the Supreme Court [and now also the Court of Appeal ]. It might just be theoretically possible for a former ordinary judge of the High Court to return to the bar on this understanding that he would only be briefed to appear before the [Court of Appeal or the ] Supreme Court, but this prospect seems wholly unrealistic…. It should be pointed out, however, that, in the case of barristers, at least, this would appear to be merely an understanding and there exists no strict legal impediment [emphasis in original ] in the way of a former judge who wished to resume practice at the bar. Unlike the solicitor's profession, the Bar is self-regulating and a barrister would appear to enjoy a common law right of audience in all courts. Moreover, since the Supreme Court has held that a barrister who becomes a judge reverts to the status of barrister upon his vacation of judicial office, it seems that, convention apart, a former judge enjoys an unqualified legal right of audience in all courts should he resume his practice at the bar.’ [Emphasis added, save where indicated].

5 This Court respectfully accepts as correct the now Hogan J.'s observations in the above-quoted text as to (i) the traditional (and so not legally binding) nature of the understanding that has persisted since the decision in O'Connor concerning the return by a barrister-turned-judge (following retirement from the bench) to practice at the bar, and (ii) the...