A Bar Council rule preventing a retired High Court judge resuming practice as a barrister is depriving him of a "vital" right to work and earn a livelihood, his lawyers have argued.
Barry White’s salary and pension were significantly reduced following the economic crash and he previously told the Bar Council he wishes to resume practice as an “economic necessity”.
Mr Justice Max Barrett has begun hearing the challenge by Mr White (71), who retired in 2014, to the Bar Council rule preventing retired judges resuming practice in a court equal to or lower than the one they presided over. In Mr White’s case, that means all courts below the Court of Appeal and the Supreme Court.
The rule is based on an 85-year-old case involving an application by a former judge of the Irish Appeal Court, James O’Connor. Following the foundation of the Irish Free State, the court over which he presided was abolished and in 1929 he sought admission to practise as a solicitor.
Then Chief Justice Hugh Kennedy granted his application but held, as a general rule, it was contrary to public policy for a senior judge to return to legal practice. That ruling has been interpreted as preventing retired judges resuming private practise in a court equal to or less than the court of which they were a judge.
‘Economic necessity’
Following his retirement from the bench, Mr White informed the Bar Council, the representative body of barristers in Ireland, in a letter of his wish to resume practice as a barrister due to “economic necessity”.
During the national emergency following the economic crash, Mr White’s salary and pension were significantly reduced, it was stated.
He held discussions with the Bar Council and Minister for Justice on his application for a waiver of the Bar Council rule so he can resume practice but this was not accepted. He then initiated legal proceedings.
Opening his case, John Rogers SC, with Cian Ferriter SC and Siobhan Phelan SC, for Mr White, said the Bar Council decision breaches Mr White’s constitutional rights, including to work and earn a livelihood, something which is “vital” to him. . Other grounds of challenge included arguments the rule is anti-competitive and disproportionate.
The Bar Council has no jurisdiction to impose conditions on judges returning to practice and the Minister has no power to enforce such restrictions, it is also argued.
Arising out of the Bar Council’s decision, the Minister for Justice has decided Mr White, who had an extensive criminal Bar practice before being appointed a judge, was not regulated and refused to admit him to the criminal legal scheme panel.
The Bar Council, represented by Michael Collins SC and Paul Sreenan SC, argues Mr White, when accepting the nomination to the bench in 2002, was aware of the disputed rule and its consequences.
It is argued the rule, contained in the Bar Council’s Code of Conduct, has legitimate and reasonable objectives designed to safeguard the integrity and independence of the administration of justice. It is also denied the rule disproportionately interferes with Mr White’s rights, including to earn a livelihood.
The court heard Mr White has offered a number of undertakings to address certain concerns of the Bar Council, including not to act in cases which he had presided over or involving challenges to his own judgments and not to use any confidential information obtained as a judge.
He rejects any suggestion judges would favour him or his clients just because he had been a judge himself.
As a judge, Mr White presided over many high profile criminal trials, including of Eamon Lillis, convicted of the manslaughter of his wife Celine, and Joe O’Reilly, serving a life sentence for the murder of his wife Rachel.
The case is expected to last several days.