Sunday 18 March 2018

Justice Minister 'considering appealing' High Court decision allowing former judge to return to work as barrister

Justice Minister Frances Fitzgerald Photo: Tom Burke
Justice Minister Frances Fitzgerald Photo: Tom Burke
Retired judge Barry White

JUSTICE Minister Frances Fitzgerald is considering whether to appeal a High Court decision that retired judge Barry White can return to work as a barrister.

Eoghan Fitzsimons SC said the Minister "has to consider whether she will appeal" Mr Justice Max Barrett's decision last week that Mr White can practise without having to be a member of the Law Library.

Mr Fitzsimons was speaking during a hearing over who should pay the costs of Mr White's challenge to a Bar Council ruling preventing him returning, and to the Minister's refusal to include him on a State-funded criminal legal aid panel of barristers.  Mr Justice Barrett will give a decision on costs in the autumn.

Read More: High profile judge (71) who needs to work to support his family can return to practice as a barrister

Mr White won his case against the Minister but Mr Justice Max Barrett refused to declare unconstitutional a Bar Council rule requiring him first to be a member of the Law Library because, the judge said, the Bar is effectively a private club which is entitled to operate its own rules.

Mr White is a former High and Central Criminal Court judge who says he needs to return to practise out of economic necessity.  He says his €78,000 pension is not adequate to meet the needs of his family.

Mr White seeks all costs of his legal challenge including that the Minister should fund any costs order against him in favour of the Bar Council.

The Minister opposed such an order and it was clear from the judgment there was no need for Mr White to have brought the case against the Bar Council "and he was wrong to have done that", Mr Fitzsimons said.

John Rogers SC, for Mr White, asked the judge to immediately make an order in relation to his successful case against the Minister so that he could take steps to return to work immediately. 

Mr Rogers opposed Mr Fitzsimons' application for a stay on such an order to be put in place until the judge gives his decision on costs.  

Mr Rogers said Mr White wished to take steps to return to work as soon as possible and the Minister would not suffer if that order was made immediately.

Asked by Mr Justice Barrett what was his response to the suggestion the Minister would not suffer, Mr Fitzsimon said she wanted to consider an appeal. 

Part of the issue to be considered was the Minister believed Mr White should be regulated by the Bar Council in order to go on the State legal aid panel and he (White) was not prepared to do that.

Mr Justice Barrett said he was prepared to grant a stay until he deals with the issue of costs.

When Mr Rogers asked for the stay to last for a shorter period of time, Mr Fitzsimons pointed out a normal stay on a court decision is 28 days which would lapse if an appeal was not lodged within that time.

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