High Court: Legal representatives who misled the Court will not be reprimanded

About this case:

• Citation:
  [2019] IEHC 154
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice David Keane

Mr Justice David Keane said that in the ordinary course he would have reprimanded both the solicitor and junior counsel, but that having regard to equality before the law, it was inappropriate when deficiencies were so frequent to criticise any one lawyer prior to clear guidance for future cases, 

Background

In the High Court in May 2018, Mr Justice Keane ordered the solicitor and Counsel representing Mr Thomas Bebenek to pay the costs incurred by the State in judicial review proceedings brought on behalf of the man on the day before his scheduled removal in 2016.

Stating that the legal representatives of the man had misled the Court by omission, Mr Justice Keane said that in order for the Court to “protect the integrity of its own processes”, 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”.

Mr 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 year and why the junior counsel chose to accept those instructions.

Submissions on behalf of the solicitor and junior counsel

Three submissions were made on behalf of Mr Bebenek’s solicitor:

1. Having already found for the purpose of the application of O. 99, r. 7 of the RSC that the solicitor was grossly negligent and in breach of her duty to the court in commencing and continuing these proceedings, that Mr Justice Keane was precluded from again addressing the same issue for the purpose of considering any further steps necessary to protect the integrity of the court’s own processes with the result that no further action should be taken, or the matter should be referred to another judge.
2. That the court is seeking to exercise an inherent disciplinary jurisdiction over solicitors that it does not have – arguing that the High Court of Ireland has no inherent jurisdiction to hold to account the behaviour of lawyers whose conduct of litigation falls below the minimum professional and ethical standards demanded of all lawyers who appear before it.
3. That on the merits of the case, no further order against the solicitor is warranted in all of the circumstances.

Submissions on behalf of Mr Bebenek’s counsel reflected the arguments in the solicitors first and second submissions, before addressing the specific mitigating circumstances – for example that his lack of experience resulted in his failure to fully appreciate his lack of confidence, and that he has not come to any adverse attention the three years since Mr Bebenek’s case.

Serious failings

Mr Justice Keane considered the English case of R (Sathivel) v Secretary of State for the Home Department [2018] EWHC 913 (Admin), in which the Divisional Court identified three specific situations in immigration and asylum cases which gave rise to particular concern:

1. Where vulnerable clients are charged significant fees on the promise of highly skilled representation in the presentation of real issues but receive instead incompetent representation in the presentation of hopeless claims.
2. Where unmeritorious litigation is deliberately brought to ‘buy time’ for persons unlawfully in the State to develop a ‘right to respect for family life’ claim to lawful residence in the State under Article 8 of the European Convention on Human Rights through marriage or parentage.
3. Where ‘last minute’ injunction applications are brought to prevent the removal or deportation of persons in detention in which a recent change of solicitors is used to justify and explain the very scant evidence and argument upon which the court is invited to make orders urgently on an ex partebasis.

In Sathivel, the Divisional Court concluded that the solicitors in the case had failed in their duty to ensure that a full and accurate account was placed before the court, having failed in their duty to make proper enquiries to ensure that they were fully informed before taking any steps to pursue proceedings and in their duty of candour because they failed to set out fully the serious limitations in the evidence that they were presenting as true. The Divisional Court went on to hold that fault applied to all those concerned with the case, including the solicitor with the conduct of the case and the instructed advocate.

Mr Justice Keane said that the same position pertained in this case as in Sathivel, and that it was appropriate to draw the same conclusion, namely: ‘These were serious failings. They have led to the immigration and asylum system being undermined and the High Court’s scarce resources being taken up with a wholly unsubstantiated case that was entirely without merit.’

Mr Justice Keane took exception with the fact that Mr Bebenek’s solicitor had not offered an apology for her conduct of the proceedings, and offered only an undertaking to use her ‘best endeavours’ to implement the recommendations made by a consultant to improve the systems in her practice. Mr Justice Keane said that that he was not impressed by that offer, and failed to see how implementing the recommendations was in any way out of her direct control.

Not all inexperienced counsel incompetent

Mr Justice Keane said that Mr Bebenek’s junior counsel was entitled to credit for the number of apologies he made to the court. It was argued that while lack of experience did not excuse lack of competence in professional work, “it was almost certainly … lack of experience that resulted in his failure to properly appreciate his lack of competence. When he received instructions from the applicant’s solicitor he was facing an age-old dilemma; how do you get work that requires experience if you can’t get experience by doing that work. Of course, the only proper solution to that dilemma is to build experience and competence in appropriate increments… enthusiasm and overconfidence can cloud judgment and it would be wrong not to recognise the existence of that dilemma as a mitigating factor for an inexperienced practitioner”.

However, Mr Justice Keane said “not all inexperienced counsel are incompetent and, loathe as I am to say it, not all experienced counsel are necessarily competent. You cannot give an inexperienced advocate a licence to be incompetent any more than you can give an inexperienced doctor that licence. In the law, as in medicine or - dare I say - any other profession, competence is expected to come from qualification, not post-qualification experience”.

Equality before the law

In the ordinary course, Mr Justice Keane said it would have been appropriate to reprimand both the solicitor and junior counsel, even with the benefit of full credit for the mitigating factors. He said that if it were not for the fact that neither had come to adverse attention before or since, he would have had no hesitation in referring the solicitor to the Law Society “given her greater responsibility and lesser mitigation than those of the applicant’s junior counsel”.

However, having appropriate regard to the principle of equality before the law, enshrined in Article 40.1 of the Constitution, Mr Justice Keane said he would not take any action against either solicitor or counsel. In this regard, Mr Justice Keane considered the decision of Justice Humphreys in J.A. (Pakistan) v Minister for Justice and Equality [2018] IEHC 343, and said “in the future, all ex parte applications, whether for injunctions or leave or otherwise and whether made to the judge in charge of the Asylum, Immigration and Citizenship List or any other judge, will be expected to comply with the strictures of Sathivel and the duties of candour and inquiry identified there”.

• by Seosamh Gráinséir for Irish Legal News