A High Court judge has demanded explanations from two lawyers who he has accused of misleading the court in an effort to stop the deportation of a Polish criminal they represented.
In a strongly worded judgment, Mr Justice David Keane also said the lawyers and their client, Thomas Bebenek, had used litigation as a "strategy or tactic" to delay the man's deportation for long enough so that authorities would have to make a new deportation order which could again be challenged in the courts.
The judge said the lawyers, a solicitor and a barrister, failed to properly inform the court of the relevant law concerning the case as was their obligation as officers of the court, particularly in a complex area such as immigration law.
In a highly unusual move, Mr Justice Keane ordered the solicitor for Bebenek to personally reimburse the State’s legal costs. In normal circumstances Bebenek would have been responsible for the costs. In making the order the judge cited “gross negligence” on behalf of Bebenek’s legal team.
Mr Justice Keane noted concerns in the UK that some lawyers who have little or no specialist knowledge of immigration law are taking advantage of clients at risk of deportation and sometimes base their legal arguments on lengthy, irrelevant templates downloaded from the internet.
“The circumstances of this case cannot but contribute to a growing sense of unease that a similar problem may be emerging in this jurisdiction,” Mr Justice Keane remarked in the judgement released two weeks ago.
The main issues in the case relate to March 16th, 2016 when solicitor Tracey Horan made an emergency ex-parte (where only one side is represented) application to the High Court to prevent the deportation of Bebenek which was scheduled for the same day.
‘Profoundly misleading’
Bebenek had been informed by then Minister for Justice Frances Fitzgerald that he was to be deported because his 39 previous convictions, including for theft and misuse of drugs, "demonstrates the total disregard that he holds for the laws of this State.'
He received notification of his deportation in June 2015 while he was serving an 18 month sentence for theft. However Bebenek's lawyers waited until March 16th, 2016, the same day he was due to be released from prison and deported, to apply for a stay on the order to Mr Justice Max Barrett.
In making the application, Ms Horan said the minister had failed to outline the reasons for the deportation as required by law. In fact the reasons had been sent to Bebenek at the same time as the order.
Ms Horan also failed to tell the court during the ex-parte application that Bebenek was serving an 18 month term and that he had 39 previous convictions.
She also failed to credibly explain why the application was being made nine months after the Minister’s order.
In a subsequent hearing the barrister representing Bebenek repeated that no reasons or arguments were included with the Minister’s order. “This was, of course, profoundly misleading,” Mr Justice Keane said.
Ms Horan told the court Bebenek failed to make the application earlier because he didn’t speak English, because he was in prison at the time and because he wasn’t legally represented at that time.
“None of those reasons stands up to the mildest scrutiny,” Mr Justice Keane said.
Mr Justice Barrett granted Ms Horan’s application for a stay. Mr Justice Keane suggested he would have made a different decision if he had been given the full facts.
Disappeared
Following the stay and his release from prison, Bebenek disappeared and could not be located by gardaí. Mr Justice Keane noted he was still instructing his legal team at this time and that gardaí had informed his solicitor that her client was evading immigration authorities.
Mr Justice Keane also noted the barrister instructed by Ms Horan was in his apprentice year at the time.
When the matter came before the court again in November 2017, the judge was told Bebenek had returned to Poland on his own, rendering the proceedings moot.
Mr Justice Keane has put ten questions to the two lawyers about their conduct which they must answer within 14 days, including why the solicitor instructed a trainee barrister and why the barrister accepted the case.
He said the lawyers must “show cause why each should not be found by the court to have conducted these proceedings in breach of proper standards of professional behaviour and in breach of the duty that each of them owes to the court.”
