|White -v- The Bar Council of Ireland & ors|
| IEHC 283|
High Court Record Number:
Date of Delivery:
Neutral Citation:  IEHC 283
THE HIGH COURT
Record No. 2015/582JR
THE BAR COUNCIL OF IRELAND,
THE MINISTER FOR JUSTICE AND EQUALITY,
IRELAND AND THE ATTORNEY GENERAL
JUDGMENT of Mr Justice Max Barrett delivered on 30th May, 2016.
1. Was there ever, in our long national history, a financial mess to match the rise and demise of the so-called ‘Celtic Tiger’? These are yet another set of proceedings that appear, ostensibly at least, to spring ultimately from that financial fiasco and to show just how insidious our recent national bankruptcy has proven over time to be for so many people in so many walks of life. Mr White is a retired High Court judge. He claims that, thanks largely to cuts in salary and pension that he suffered following on the nation’s financial crisis of recent years, and faced with the cost of rearing a still-young family, he needs at this time to return to practice at the Bar as a member of the Law Library. He objects, however, to rule 5.2.1 of the Code of Conduct of the Bar Council of Ireland which prevents him, following retirement as a judge, from practising in a court of equal or lesser jurisdiction than the court in which he was a judge. His particular objection is that he was formerly a criminal defence barrister of no little eminence and he wishes now to return to this line of practice, which has its natural focus in the Circuit and High Courts - two courts in which he cannot practice by virtue of rule 5.2.1.
2. Mr White also faces a separate but not unrelated problem. He wishes to be admitted by the Minister for Justice and Equality to the panel of criminal defence practitioners who are eligible to be paid for their labours by the State pursuant to the free legal aid scheme. As the overwhelming bulk of criminal defence work is, it seems, funded by way of free legal aid, Mr White contends that to have any prospect of making a decent income from criminal defence work, a practitioner must in reality be admitted to this panel. But the Minister appears, at least on the face of matters, to consider that membership of the Law Library is a pre-requisite to admission to that panel. And here Mr White encounters what seems to him to be something of a ‘Catch 22’. It will be recalled that in Heller’s novel by the same name,pilots who were insane were not obliged to fly wartime aviation missions, but any pilot who applied to stop flying was deemed to show a rational concern for his safety and was therefore considered sane; so there was no apparent way of escaping one’s flying-duty. Here, the facts are rather less dramatic but a not entirely dissimilar quandary is posited to arise: to earn a meaningful income at the Criminal Bar, Mr White must, or so it now seems, be a member of the Law Library; but if he is a member of the Law Library he is (he claims) excluded from earning a meaningful income by virtue of rule 5.2.1; so, on his account, there is no apparent means for him to earn a meaningful income as a criminal defence barrister.
3. Where the truth lies as to the various issues presenting in the dispute now arising between the parties is not a matter for the court to decide on the present application. That will be for the main trial of action. For now, the court is presented with but two motions: (1) a motion from the Bar Council for discovery of certain documentation; and (2) a motion by Mr White seeking a modular trial. 4. The Bar Council seeks discovery of the following two categories of documentation:
5. Why the emphasis in these categories of discovery on matters monetary? After all, viewed in one light this seems a case that has as much to do with questions of principle as it has to do with matters of principal. The answer lies in the manner in which Mr White has elected, with the benefit of legal advice, to plead his case. He has not come to court claiming, in effect, that ‘I am a professionally qualified man who wishes to practise my chosen profession’. Rather he comes to court claiming, in effect, that ‘I am a professionally qualified man who needs by reason of financial necessity to practise my chosen profession and you are costing me money by effectively preventing me from doing so and hence damages are owing.’ If one looks to Mr White’s amended statement of grounds, one finds it replete with references to his previous work as a criminal defence lawyer, to the financial necessity that he now return to work, and to the commercial must to be admitted to the free legal aid panel if he is to thrive as a criminal defence lawyer. So, for example, per the amended statement of grounds:
‘All documents which record and/or evidence:
(i) the nature of the work undertaken by the Applicant during the five years prior to his appointment to the High Court; and/or
(ii) the income of the Applicant (including the sources of such income) during the five years prior to his appointment to the High Court; and/or
(iii) the alleged loss and damage allegedly suffered by the Applicant, including
(a) the cause(s) of the alleged loss and damage allegedly suffered by the Applicant; and/or
(b) any steps taken by the Applicant to mitigate or avoid that alleged loss and damage (whether by seeking to secure work outside the Criminal Legal Aid Scheme or otherwise).’
‘All documents which record and/or evidence all of the assets, liabilities, income (including each of the sources of income) and expenditure of the Applicant during the period from September 2009 (five years prior to his retirement as a judge) to date.’”
6. The court could go on, but the foregoing suffices to give a flavour of what is pleaded by Mr White. The notice of motion grounding his claim also seeks damages on various grounds. To the foregoing, the Bar Council’s response in its statement of opposition is, inter alia,that it will require proof of various matters, including that:
- “[T]he applicant practised predominantly in the area of criminal defence”;
- “[The applicant] was almost wholly dependent on payments under the provisions of the Criminal Legal Aid Scheme”;
- “His area of practice…is…that of a criminal defence barrister appearing before courts of first instance”;
- “Practice as a criminal defence barrister is unsustainable as a means of earning a livelihood unless one’s name has been included on the Panel”;
- “Following his retirement as a High Court Judge the Applicant’s livelihood from his pension was insufficient to meet his support needs and those of his family”;
- “[The applicant is d]esirous of returning to practice at the Bar…and arising from circumstances of financial necessity [has sought to do so]”.
7. There is an almost palpable frustration on the part of Mr White, both from some of the documentation placed before the court and the argument at the discovery hearings, that the Bar Council has approached these proceedings as it has. For example, a couple of newspaper reports were furnished in evidence which show that Mr White, previous to his appointment as a judge, was clearly among the highest earners at the Criminal Bar; there was an implicit suggestion that if he was busy earning so much money at criminal trial-work he was unlikely to be doing much else; and it was indicated that his reductions in salary and pension as a judge are publicly known facts and the consequences to him are apparent.
“(i) while in practice as a barrister, the Applicant practised predominantly in the area of criminal defence and was almost wholly dependent on payments under the provisions of the Criminal Legal Aid Scheme;
(ii) the area of practice, expertise, knowledge and specialisation of the Applicant is confined to that of a criminal defence barrister appearing in courts of first instance…
(iii) practice as a criminal defence barrister is unsustainable as a means of earning a livelihood unless one’s name has been included on the Panel maintained by the [Minister]…
(iv) the reductions in the salary and pension entitlements of the Applicant were such that the needs of the Applicant and those of his family cannot and/or could not be supported; and
(v) the Applicant applied to the First Respondent to be permitted to resume his membership of the Law Library arising from circumstances of financial necessity.”
8. To this perhaps understandable frustration, the court’s respectful answer is that while the process of pleading one’s case in court-proceedings can be laborious and time-consuming, that process is a tried and tested means which generations of generally wise and well-intentioned practitioners have constructed, and continue to refine,in a bid to ensure that, so far as is humanly possible, both sides in a case are given - to borrow a colloquialism - a ‘fair crack of the whip’ when it comes to putting forwards their respective sides at the hearing of any cause of action. Mr White has made very serious allegations of the various respondents, including claims that they have between them acted unconstitutionally, unlawfully, unreasonably, and in breach of the European Convention on Human Rights. And he has based his claims on a particular statement of grounds. He may be right or wrong in the claims that he makes, he may or may not be entitled to the reliefs that he seeks, but the Bar Council and indeed the other respondents are undoubtedly entitled to defend themselves as best they can,and to require that this case be pleaded as any other and be subject to the same rules of discovery, without short-cut. In our great republic of equals, the law applies equally to all and all are entitled to avail of it equally…provided of course that they have the wherewithal to come to court.
9. It seems to the court that the law on discovery in judicial review proceedings, at least so far as applicable to the issues at hand, can be summarised in the following eight principles:
Discovery in Judicial Review Proceedings
There appears to be some divergence in contemporary Irish case-law on discovery in judicial review proceedings as to whether the documentation must be or may be relevant. Thus in MacAodháin v. Ireland  1 I.R. 430, discovery was ordered by the High Court (Clarke J.) where there was (see para.12) “a credible basis for believing that there may be relevant documentation” and the documentation (see para.22) was “potentially relevant to the issues which may arise in the proceedings”. By contrast, in Lowry v. Moriarty  IEHC 39, it was suggested that the applicant for discovery needs to establish “that the discovery sought is relevant and necessary”. A similar intimation appears in Kerins v. McGuinness  IEHC 293 where discovery was ordered of certain documents as they were (see para.33) necessary and relevant to an issue to be decided. This Court respectfully prefers the approach adopted by Clarke J. in MacAodháin. It seems clear to this Court, for the reasons identified by it in Astrazeneca AB & Patents Acts  IEHC 189, that embedded in our legal system is a ‘may, not must’ test as to relevance when it comes to determining relevance. There seems to it to be no logical reason why a different test would apply in the context of judicial review proceedings.
 The same principles apply to discovery in judicial review proceedings as apply generally in civil proceedings.[a]
 The documents sought must be relevant to the issues to be tried; ‘relevance’ in this context must be determined in relation to the pleadings in the specific case.[b]
 The concept of relevance as defined in Peruvian Guano remains the universally accepted test of what is relevant.[c]
 The next test is whether the documents are necessary for disposing fairly of the cause or matter or for saving costs.[d]
 Discovery will be regarded as necessary for disposing fairly of the action or application if a party raises a factual issue of sufficient substance to lead the court to conclude that it may, or will, be unable to try the issue fairly (fairly, that is, to all parties), without discovery of documents bearing on the issue one way or the other.[e]
 When it comes to discovery in judicial review applications, the question of necessity must be decided in respect of the issues that arise on the judicial review application and not the substantive issue which was before the decision-maker.[f]
 The behaviour of the opposing party is relevant. E.g., if a party contests all relevant facts on the pleadings, how can it plausibly ask the court to deprive its opponent of access to documents which will enable it to prove disputed matters?[g]
 The next test is the proportionality of the discovery sought. There must be some proportionality between the extent or volume of the documents to be discovered and the degree to which the documents are likely to advance the applicant’s case (or damage that of his opponent), in addition to ensuring that no party is taken by surprise at trial. (That said, relevance is the primary test, with necessity generally following as a corollary).[h]
[a] Fitzwilton Ltd v. Mahon (Unreported, High Court, Laffoy J., 16th February, 2006). This is the case, per Laffoy J., at 12, “primarily by reason of the nature of the process, the relief afforded and the issues which arise in judicial review proceedings, the practical application of the principles may result in discovery being less frequently ordered in judicial review proceedings than in other civil proceedings.”
[b] See the judgment of Murray J. for the Supreme Court in Framus Ltd. v. CRH plc  2 I.R.20, 38 (affirming certain principles identified by McCracken J. in Hannon v. Commisioners for Public Works (Unreported, High Court, 4thApril, 2001).
[c] Per Brett L.J., in Compagni eFinancière du Pacifique v. Peruvian Guano Company (1882) 11 Q.B.D. 55, 63, in remarks that are oft-quoted, largely undisputed, sometimes amplified upon, and unvaryingly capable, in a world utterly transformed since the Victorian Age, of yielding an absurd abundance of documentation of dubious consequence, often at great cost and no little delay:
“It seems to me that every document which relates to the matters in question in the action, which would not only be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words ‘either directly or indirectly’ because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary if it is a document which may fairly lead him to a train of enquiry which may have either of those two consequences.”
[d] In Fitzwilton, Laffoy J. observed, at 16, that “What clearly emerges from a review of the recent Irish cases is that, where discovery is sought in judicial review proceedings, the determinant as to whether discovery will be ordered in many cases is whether it is necessary having regard to the ground on which the application is founded or the state of the evidence.” There is too the observation by Murray J. in Framus, at 38, that “[T]he primary test is whether the documents are relevant to the issues between the parties” and that “[o]nce that is established it will follow in most cases that their discovery is necessary for the fair disposal of those issues.”
[e] This principle largely replicates the observations of Bingham M.R. in R. v. Secretary of State for Health, ex parte Hackney London Borough (Unreported, Court of Appeal of England and Wales, 29th July 1994), as referred to with approval by Geoghegan J. in his judgement for the Supreme Court in Carlow Kilkenny Radio Limited v. Broadcasting Commission  3 IR 528, 534. Geoghegan J. later adds, at 537, that “[D]iscovery will be necessary…where there is a clear factual dispute on the affidavits which would have to be resolved in order properly to adjudicate on the application or where there is prima facie evidence to the effect, either that a document which ought to have been before the deciding body was not before it or that a document which ought not to have been before the deciding body was before it”.
[f] Lowry, para.17.
[g] This principle is drawn from the following observations of Fennelly J. in Ryanair plc v. Aer Riantacpt  4 IR 264, 277:
“[T]here are two sides to litigation. The behaviour of the opposing part is relevant. That party may, for example, have made or may offer to make admissions of facts, and thus persuade a court that discovery on some issues is not necessary. This is, perhaps, axiomatic. Those facts will no longer be in issue. On the other hand, it is difficult to see how a party, such as Aer Rianta in the present case, which contests all the relevant facts on the pleadings and has formally objected to the right of its opponent to resort to affidavit evidence, can plausibly ask the court to deprive its opponent of access to documents which will enable it prove matters which it disputes.”
[h] This principle is drawn from the observations of Murray C.J. in Framus, at 38, that “[T]here must be some proportionality between the extent or volume of the documents to be discovered and the degree to which the documents are likely to advance the case of the applicant or damage the case of his or her opponent in addition to ensuring that no party is taken by surprise by the production of documents at a trial”. This observation was followed, however, by the caveat that “That is not to gainsay in any sense that the primary test is whether the documents are relevant to the issues between the parties” and that “[o]nce it is established it will follow in most cases that their discovery is necessary for the fair disposal of these issues.”
10. The court turns to apply the above-mentioned principles to the categories of discovery sought.
Application of Principles Identified in Part 3
11. Documentation Sought: All documents which record and/or evidence the nature of the work undertaken by the Applicant during the five years prior to his appointment to the High Court.
12. Application of Principle: The Bar Council disputes Mr White’s contention that rule 5.2.1 entails a disproportionate interference with his right to earn a livelihood. It maintains that there is a wealth of work outside of legal aid panel work that is open to Mr White to do. The above category of documentation is clearly relevant to the fair disposal of this issue arising, and its production therefore necessary.
13. Order to be made: The court will order the discovery of this Category 1(i). However, without prejudice to the court’s conclusions as to relevance and necessity, the court is mindful that the trial-date for this matter is fast impending and would encourage the parties to consider agreeing some suitable constraints in order to avoid unnecessary slippage in time via the discovery process. Thus, for example, the parties may wish to agree, and the court would be satisfied to include in its order, if so agreed, that (a) in terms of documentation to be produced, any fee notes issued(plus the accompanying narrative) will suffice, and (b) to allow for the possibility of occasional ad hoc work done that came as a welcome boon, rather than pointing to a permanent alternative source of income, a financial threshold of e.g. €20k in any one year should be applied, so that work of a lesser value in any one year is not required to be discovered.
14. Documentation Sought: All documents which record and/or evidence the income of Mr White (including the sources of such income) during the five years prior to his appointment to the High Court.
15. Application of Principle: This documentation goes to the issues of necessity and disproportionality. However, given the nature of the documentation to be provided pursuant to Category 1(i), the court agrees with counsel for Mr White that his client’s tax returns for the years in question, which the court understands have already been provided to the respondents, suffice in this regard. To require more would be oppressive.
16. Order to be made: This category of discovery is refused.
17. Documentation Sought: All documents which record and/or evidence the alleged loss and damage allegedly suffered by the Applicant, including (a) the cause(s) of the alleged loss and damage allegedly suffered by the Applicant; and/or (b) any steps taken by the Applicant to mitigate or avoid that alleged loss and damage (whether by seeking to secure work outside the Criminal Legal Aid Scheme or otherwise).
18. Application of Principle: This documentation appears both relevant and necessary to the issues of financial necessity and loss (and hence damages). The court suspects from the affidavit evidence in the proceedings to date that this category of discovery will yield little or no documentation but that is by the by.
19. Order to be made: The court will order this category of discovery.
20. Documentation Sought: All documents which record and/or evidence all of the assets, liabilities, income (including each of the sources of income) and expenditure of the Applicant during the period from September 2009 (five years prior to his retirement as a judge) to date.
21. Application of Principle: So far as income is concerned, the court refers to its observations at Category 1(ii) concerning the income tax statements already provided. Save in this regard, the other documentation appears both relevant and necessary to a fair determination of the issue of financial necessity. However, as mentioned by the court at the hearing of this application, it is concerned as to the serious issue of proportionality presenting. As drafted, the category would, for example, require discovery of Mr White’s every supermarket and petrol bill during the applicable timeframe; this would clearly be oppressive. The court will therefore require that (a) all bank and any other financial institution statements be produced by Mr White for the period stated, and(b) all other documents which record and/or evidence the assets, liabilities and expenditure of Mr White during the period stated likewise be discovered, provided that in this last regard the only documents to be discovered are those which relate to assets held, liabilities incurred or expenditure undertaken during the Period that are of a worth or amount in excess of €1k. The intention in setting this €1k threshold is to avoid the real potential for oppression that otherwise presents.
22. Order to be made: In order to satisfy the triple requirements of relevance, necessity and proportionality, the court will order discovery of a refined version of Category 2, being discovery of (a) all of Mr White’s bank and any other financial institution statements for the Period, and (b) all other documents which record and/or evidence the assets, liabilities and expenditure of Mr White during the Period, provided that (i) the only documents to be provided pursuant to (b) are those which relate to assets held, liabilities incurred or expenditure undertaken during the Period that are of a worth or amount in excess of €1k, and (ii) the term ‘Period’ as employed in (a), (b) and (i) means the period from September 2009 (five years prior to Mr White’s retirement as a judge) to date. 23. It seems to the court that the law applicable to whether or not the court should order the modular trial of an action, at least so far as applicable to the case at hand, can be summarised in the following nine principles:
 The court can, in the exercise of its inherent jurisdiction to maintain control over the conduct of trials before it, direct a modular trial where some of the issues are separated out. (Dowling v. Minister for Finance  IESC 32, para.5.1).
 The conduct of litigation in modular fashion is to be distinguished from the formal separation of preliminary issues. It involves the court exercising its inherent jurisdiction as to how a single trial of all issues is to be conducted, be it (a) at one go (i.e. via a unitary trial), or (b) with the court hearing and determining certain issues in advance of others (i.e. on a modular basis). (Cork Plastics Manufacturing v. Ineos Compound U.K. Ltd.  IEHC 93, para.2.3).
 In deciding whether to order a modular trial, the court should determine what is just and convenient by reference to a broad and realistic view which should include the avoidance of unnecessary expense and the need to make effective use of court time. The court should accord due weight to the public interest and not place undue regard on perceived tactical advantages and disadvantages of the parties concerned. (Cork Plastics, Clarke J., para.2.5).
 The default position is that there should be a single trial of all issues at the same time. (Cork Plastics, Clarke J., para.3.1).
 In any straightforward litigation, and in the absence of some unusual feature, such as, for example, the unavailability of quantum witnesses which might otherwise lead to an adjournment, the risk that the proceedings will be longer and more costly if divided will be seen to outweigh any possible gain in court time and expense in the event that a plaintiff fails on liability. (Cork Plastics, Clarke J., para.3.3).
 Factors relevant to determining whether to order a modular trial include (i) the complexity and length of the likely trial, (ii) the likely relative length and complexity of the respective modules which might be proposed, (iii) the need to insulate a party, who is involved with some issues only, from the expense and time of having to attend a lengthy trial, (iv) whether the approach to the calculation of damages will differ significantly depending on how liability is made out and the way in which various of defence may be resolved; (v) what is to happen in relation to any possible appeal; (vi) the extent to which there may be overlaps in the evidence that is relevant to the proposed modules; (vii) any real suggestion that true prejudice (rather than a perceived tactical prejudice) might occur by the absence of a unitary trial; and (viii) other special or unusual circumstances that may arise on the facts of any individual case and which need to be given all due weight. (Cork Plastics, Clarke J., paras. 3.4, 3.6, and 3.9-13).
 A court in determining whether or not to order a modular trial can usefully ask itself the following four questions: (i) are the issues to be tried by way of preliminary module readily capable of determination in isolation from the other issues in dispute between the parties? (ii) has a clear saving in the time of the court and the costs that the parties might have to bear been identified? (iii) would a modular order result in any prejudice to the parties? (iv) is the motion a device to suit the moving party or does it genuinely assist the litigation by being of help to the resolution of the issues? (McCann v. Desmond  4 IR 554, 558).
 It would defeat the purpose of a modular trial if a party could easily and for little good reason seek to re-open matters already determined in an earlier module when the court came to consider later modules. (The potential for this latter event to arise will of course impact on the initial decision whether or not to go for modular trial). (Inland Fisheries Ireland v. O’Baoill  IESC 45, para.5.3).
 Perhaps a point more relevant to the conduct of modular trials than a factor of relevance to the determination as to whether to order modular trial, a court should not, without good and strong reason, enable any finding from an earlier module to be revisited at a subsequent module. In particular, the formal findings of the court on the specific issues which were to be, and were, determined on an earlier module should only be re-opened in exceptional circumstances. To do otherwise would be to risk procedural chaos and to defeat the purpose of a modular trial. (Inland Fisheries Ireland v. O’Baoill  IESC 45, para.5.3). The potential for the last-mentioned predicament tmay, it seems to this Court, impact on a trial judge’s assessment, pursuant to McCann, as to whether issues are properly capable of determination in isolation from the other issues in dispute.
24. Flowing from the just-identified principles, the court would make the following observations:
Application of Principles Identified in Part 5
25. For the reasons identified above, the court will decline to order the modular trial sought and will require instead that matters proceed by way of unitary trial.
(1) although the issues to be resolved in these proceedings are clearly of no little importance to Mr White, it does not appear to the court that they are of such complexity as to merit separate modules on liability on quantum.
(2) were the court to order a modular trial, it would almost certainly protract the overall duration of the proceedings. At the very least, when it came to quantum the elapse of time between the two modules would inevitably have the result that there would be a good extra day in getting back to what was decided at the trial on liability, which delay can be avoided by proceeding via a unitary trial.
(3) it does not appear to the court that, in the context of an intended four-day hearing on liability and quantum, any need presents to insulate a party, who is involved with some issues only, from the expense and time of having to attend that trial.
(4) the mode of calculation of any (if any) damages that arise for payment will not differ significantly depending on how any (if any) liability is made out or in which any defences are resolved.
(5) when it comes to any (if any) appeal, a modular trial would likely render cumbersome and/or protract the process of appeal.
(6) it appears to the court that there is potential for substantial, albeit not complete, overlap in the evidence relevant to each of the proposed modules.
(7) it appears to the court that some prejudice might occur to the Bar Council in the absence of a unitary trial, not least as the discovery now to be afforded the Bar Council would almost certainly fall to be varied, even though the discovery to be ordered is broadly relevant to both proposed modules.
(8) it does not appear to the court that the issues to be tried in the proposed liability module are readily capable of determination in isolation from the other issues in dispute between the parties.
(9) no clear saving in the time of the court and the costs that the parties might have to bear has been identified by Mr White.
(10) although the court does not consider the motion for a modular trial to be a device to suit Mr White - in truth, it seems to the court an entirely well-intentioned proposal - it does not appear to the court that it would genuinely assist the litigation in terms of helping the resolution of the issues arising between the parties.
NOTE: A previous version of this judgment was posted to the www.courts.ie website. This is the correct version. Any version of this judgment not bearing this note is an un-approved version.