High Court: Application to be directly represented by barrister refused

About this case:

• Citation:
  [2025] IEHC 125
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Siobhán Stack

Delivering judgment for the High Court, Ms Justice Siobhán Stack opined: “The suggestion… that the plaintiff’s right to be represented has somehow been breached by prohibiting him from instructing counsel directly is misconceived. The plaintiff is entirely free to choose representation from the solicitors’ profession, which is the profession having the necessary qualifications, expertise and which is subject to the regulation necessary for the general conduct of proceedings.”

Background

The plaintiff issued a motion seeking liberty for a barrister, Ms Eugenie Houston BL, to be given liberty to represent him directly in his proceedings without the need for him to retain a solicitor to instruct her. The Legal Services Regulatory Authority (LSRA), the King’s Inns and the Law Society simultaneously brought procedural applications to be joined as amici curiae to the proceedings.

The specific legal services proposed to be provided were inter alia to receive instructions directly from the plaintiff, to correspond with the Chief State Solicitor on his behalf, to negotiate on his behalf, and to provide him with legal advice.

The High Court

Ms Justice Stack set out that the Rules of the Superior Courts 1986 (RSC) require that in any case where a litigant wishes to be represented, they must be represented by a solicitor. 

By way of example, the court highlighted that an originating summons can only be issued by a party suing or through their solicitor, that an appearance can only be entered in person or through a solicitor, and the rules as to service, noting that it was “apparent that the Rules of Court contemplate that only solicitors, and not barristers, will have carriage of proceedings in the High Court on behalf of a litigant”.

Emphasising the supervisory role of the courts over the conduct of solicitors as officers of the court, Ms Justice Stack explained that “there is no similar supervisory jurisdiction over barristers, which is material to this application as it would mean that the courts would not retain the same jurisdiction to supervise the conduct of any barrister were he or she to take instructions directly from a client”.

The judge considered a similar application made in Bond v. Dunne [2018] 2 I.R. 225, in which the High Court found that the RSC do not permit anyone other than a solicitor to have carriage of proceedings on behalf of a client.

Ms Justice Stack considered herself bound in accordance with the principle of comity unless there were substantial reasons for believing that Bond was wrongly decided, having regard to the examples of such exceptional circumstances given by former Chief Justice Frank Clarke in Re Worldport (Ireland) Limited (in Liquidation) [2005] IEHC 189.

The judge outlined the codes of conduct applying to barristers, noting that Ms Houston BL was one of a number of barristers who are not members of the Law Library and as such, is not governed by the Code of Conduct of the Bar of Ireland, but rather is governed by the 2018 Code of Conduct adopted by the King’s Inns which is to the same effect.

Explaining that paras. 29 -31 of the King’s Inns Code of Conduct provides that barristers should not take instructions directly from a client in contentious matters except in the limited circumstances outlined therein, Ms Justice Stack was satisfied that Ms Houston BL was prohibited from taking instruction directly from the client in the contentious High Court proceedings before her.

Turning to Bond once again, the court considered that there had been one significant change since that case was decided, being the introduction of the King’s Inns Code of Conduct in April 2018. However, the court felt that the introduction of the code was supportive of the reasoning in Bond.

Ms Houston BL argued inter alia that the court was required to depart from its decision in Bond having regard to European Union law, with the defendants arguing inter alia that the requirement that only a solicitor may come on record for a litigant is not derived from Union law, instead being a “wholly internal matter” to which Union law does not apply.

Ms Justice Stack was satisfied that this contention was correct, particularly having regard to Article 51 of the Charter of Fundamental Rights of the European Union (CFR), which provides inter alia that the CFR does not extend the field of application of Union law beyond the powers of the Union.

The court also heard submissions in relation to Case C-739/19, V.K. v. An Bord Pleanála, The General Council of the Bar of Ireland, the Law Society of Ireland and the Attorney General, agreeing with the defendants that that case concerned the right of a lawyer qualified elsewhere in the European Union to act on behalf of a litigant before the Irish courts, and was different to the application before her.

Finding that no evidence had been tendered to suggest that the plaintiff’s access to the courts or his right to an effective remedy had been infringed by requiring him to instruct a solicitor, and where the matters concerned were outside of the scope of Union law, Ms Justice Stack was satisfied that there had been no legal basis identified which compelled the court to disapply its own rules.

Conclusion

Accordingly, the High Court refused the plaintiff’s application and thus found it unnecessary to determine the applications on part of the LSRA, the King’s Inns and the Law Society.

John Desmond Mallon v. The Minister for Justice & Ors [2025] IEHC 125