Sunday 24 September 2017

Barristers cannot directly represent the public in court, judge rules

Mr Justice Paul Gilligan
Mr Justice Paul Gilligan

Tim Healy

THE High Court has dismissed a barrister's application to be allowed to represent clients without having to be instructed by a solicitor.

Eugenie Houston, president of the newly formed Association of Barristers in Ireland, had asked the court to clarify provisions of a new law, passed in 2015, in relation to the question of direct access of members of the public to barristers.

Mr Justice Paul Gilligan ruled on Tuesday there is "simply no proposition" that a barrister can act and conduct contentious litigation on behalf of a party to such proceedings without being instructed by a solicitor.

Traditionally, and currently, in order to appear before a court, a barrister can only receive instructions from a solicitor. Barristers are usually members of  the Law Library and/or the Society of Kings Inn.

Ms Houston, who is not a member of the Law Library, is seeking to act for two men who has so far have represented themselves in High Court injunction proceedings  being brought against them over alleged trespass on a bog in Co Offaly.

She said that under the 2015 Legal Services Regulation Act, as a qualified barrister, she should be entitled to represent the two men directly rather than having only to act after receiving instructions from a solicitor. 

While only two parts of the 15-part 2015 Act have so far been enacted, she believed she can do so under Section 13.5, which is law which is in operation.

That provides legal practitioners shall  act with independence and integrity,  in the best interests of their clients, and  maintain proper standards of work. 

(Stock photo)
(Stock photo)

It states they should also comply with such duties as are "rightfully owed to the court" and keep the affairs of clients confidential.

A section of the new Act, which has not been enacted yet, provides that no professional code should operate to prevent a barrister providing legal services "other than a contentious matter" where instructions were not received through a solicitor, he said.

She believed it was proper that she should bring the application before the court to clarify whether direct access was permissible rather than "act behind the scenes" for a person as that would be entirely wrong.

Ms Houston also said she also had professional indemnity insurance and did not handle clients' money.

Lawyers for the Legal Services Regulatory Authority, which was set up under the Act, the Kings Inn, and the plaintiffs in the case being brought against Ms Houston's potential clients, disagreed she was entitled to directly represent.  

The law as it stands does not permit direct access and the rules of the superior courts did not authorise it, they argued.  

They also said access was a matter which was covered during a recent public consultation process by the Regulatory Authority and on which a report has yet to issue.

It was further argued that as part of being admitted to the degree of barrister-at-law in July 2008, Ms Houston signed a declaration to the Benchers of the Honourable Society of Kings Inn that she would comply with the rules and regulations of the Bar Council. 

They provide a barrister may not act in contentious litigation except on the instructions of a solicitor.

Mr Justice Gilligan, is rejecting Ms Houston's application, said it was clear to the court the Oireachtas intended, in passing the 2015 Act, that professional codes applicable to barristers should continue to apply "unless and until replaced or revised by regulatory action of the Authority".

He also found the rules of the superior courts do no permit a party to defend an action by counsel alone. 

As the rules are secondary legislation, and have the force of law, jurisdiction vested in the court regarding practice and procedure must be exercised in accordance with those rules, he said.

There was no basis  for the court to consider, in exercising its discretion, to issue a direction that would enable the defendants in this case, to be represented by a barrister who is not instructed by a solicitor, he said.

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