High Court: Legal representatives must respond to questions of misconduct raised by the Court

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Stating that the legal representatives of the man had misled the Court by omission, Mr Justice Keane ordered the solicitor and junior counsel to respond to ten questions posed by the Court to show why they should not be found to have breached professional standards.

Background

Thomas Bebenek, a Polish national, was imprisoned in September 2014 for various offences under the Criminal Justice (Theft and Fraud Offences) Act 2001, the Misuse of Drugs Acts 1977 and 1984, and the Criminal Justice Act 1984. The Court heard that he had 39 previous convictions.

Mr Bebenek was due for release on 17th March 2016, and in February 2015 the Irish Naturalisation and Immigration Service (INIS) wrote to Mr Bebenek informing him that the Minister for Justice and Equality was proposing to make a removal order against him on grounds of public policy (Mr Bebenek’s persistent criminal conduct posed a threat to the fundamental interest of society).

Ultimately, in June 2015, INIS informed Mr Bebenek that a removal order had been made against him. Enclosed along with the removal order was a seven-page decision outlining the Minister’s reasons for making the order. Accordingly, arrangements were made for Mr Bebenek’s removal from the State on the date of his release.

Ex parte application before Justice Barrett

The day before his release, on 16th March 2016, Counsel for Mr Bebenek made an application ex parte to Justice Max Barrett for leave to seek judicial review of the removal order. In that application, an affidavit sworn by Mr Bebenek’s solicitor did not identify the prison term served by Mr Bebenek or any of his convictions. Of particular concern, was that Mr Bebenek’s solicitor did not acknowledge the seven-page decision enclosed with the removal order and submitted that she had only become aware of the removal order dated 10th June 2015 on the 16th March 2016. A stay was granted on the matter, and Mr Bebenek has since left the State of his own accord, rendering the proceedings moot – however Justice Keane said that the conduct of Mr Bebenek’s legal representatives raised serious concerns.

Considering the Minister’s application for legal costs, Justice Keane raised sua sponte the question of whether it was appropriate to make a wasted costs order against Mr Bebenek’s solicitors under Order 99, Rule 7 of the Rules of the Superior Courts. Stating that the conduct of the litigation gave rise to a wide range of concerns, Justice Keane said that he also had to consider the Court’s inherent jurisdiction to hold to account the behaviour of lawyers whose conduct falls below minimum professional and ethical standards.

Professional conduct

Based on the production of a transcript of the March 2016 hearing, Justice Keane said that he was in “the unusual position of knowing precisely what was – and was not – said to Barrett J on behalf of the applicant in seeking ex parte relief”.

Justice Keane said that, in the application before Justice Barrett, Mr Bebenek’s solicitor failed to explain why the matter had only come to her attention on the day of the application, and added that it was “difficult to accept that these omissions were merely inadvertent”.

According to Justice Keane, if there were genuine reasons for the failure to obtain full instructions then there was “a powerful duty of candour on those legal representatives to ensure that the court was made fully aware of that explanation and the consequent limitation upon the evidence placed before it. If there were no genuine reasons for their failure to do so then, obviously, the application should never have been brought”.

This was an issue of professional conduct that had to be resolved in the interests of the integrity of both the immigration process and the judicial process, regardless of the fact that the proceedings were abandoned.

Justice Keane said that it was “profoundly misleading” for Counsel to have indicated that no reasons for the decision to make a removal order were attached to the order, as the uncontroverted evidence before the Court was that there was a seven-page notification of the reasons enclosed.

Justice Keane said that the alternative interpretation of Counsel’s submissions in this regard was that the reasons attached to the removal order had not been provided to Counsel by Mr Bebenek. Justice Keane said that this too gave rise to problems for Counsel in that they did nothing to apprise the Court of the steps they had taken to seek instructions from Mr Bebenek and to comply with their duty of inquiry i.e. the duty of a lawyer to ensure that he or she has the fullest possible information before drafting an application to the court.

Referring to the problem of using litigation as a “tactic or strategy” to “delay and deter” removal proceedings as addressed in English Courts in R (Sathivel) v Secretary of State for the Home Department EWHC 913 (Admin), Justice Keane said that the circumstances in the present case added to a growing sense of unease that a similar problem may be emerging in this jurisdiction.

Misled by omission

Mr Bebenek’s legal representatives acknowledged that the application for leave to bring the judicial review proceedings was brought in breach of statute (s. 5 of the Illegal Immigrants (Trafficking) Act 2000, as substituted by s. 34 of the Employment Permits (Amendment) Act 2014); and that the Court was misled by omission on the applicable law.

Justice Keane said that he was also satisfied that this was a judicial review proceeding that ought not to have been brought and which could never have succeeded.

Justice Keane said that this was “more than sufficient to establish gross negligence in the commencement of these proceedings”. There had been a “clear default in the duty owed by legal practitioners to the court in commencing and continuing these proceedings”.

In all the circumstances, Justice Keane awarded the costs of the proceedings to the Minister, and ordered that the solicitor bear them personally pursuant to Order 99, Rule 7 of the Rules of the Superior Courts.

In order for the Court to “protect the integrity of its own processes”, Justice Keane said it was necessary for the court to require Mr Bebenek’s solicitor and the junior counsel who was instructed to act on behalf of Mr Bebenek to “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”. In this regard, Justice Keane invited the legal representatives to answer 10 questions outlined in the judgment, including questions regarding the solicitor’s decision to instruct a junior counsel still in his devilling ear and why the junior counsel chose to accept those instructions. The parties were given 14 days to respond in writing.

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