Frances Fitzgerald may appeal ruling on retired judge

Minister for Justice Frances Fitzgerald is considering appealing a High Court decision that retired judge Barry White can resume his practice as a criminal defence barrister.

Eoghan Fitzsimons SC, for the Minister, said she "has to consider whether she will appeal" Mr Justice Max Barrett's decision last week that Mr White can be included on a State-funded panel for criminal legal aid work without being a member of the Law Library subject to Bar Council rules.

Mr Fitzsimons was speaking during a hearing over who should pay the costs of Mr White’s challenge to the Minister’s refusal to include him on the panel, based on a disputed Bar Council rule.

Mr Justice Barrett will give a decision on costs in the autumn.

Mr White won his case against the Minister, but Mr Justice Barrett refused to declare as unconstitutional the Bar Council rule which is perceived as restraining judges from resuming a practice in courts lower than where they presided.

The judge said the disputed rule was a “convention”, not a rule of law, and the Bar Council is effectively a private club entitled to operate its own rules.

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

Costs

Mr White is seeking the costs of his legal challenge against the Minister, including any costs order made in favour of the Bar Council.

Mr Fitzsimons argued the Minister should not be liable for the Bar Council’s costs, as 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”.

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

Mr Rogers opposed Mr Fitzsimons’ application for a stay on any such order until the judge gives his decision on costs, saying the Minister would not suffer prejudice if that order was made immediately.

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

Among the issues to be considered was the Minister’s belief that Mr White should be regulated by the Bar Council in order to go on the State legal aid panel, which he was not prepared to agree to, Mr Fitzsimons said.

Mr Justice Barrett said he was prepared to grant a stay on the order pending his ruling on costs.