The High Court refused Alan P. Toal’s applications to adjourn his challenge to professional disciplinary proceedings and to refer questions to the Court of Justice of the European Union (CJEU). The action was dismissed against all four defendants after Toal, through counsel, declined to open his case or take any further part in the proceedings. The judgment gives the reasons for the rulings and the dismissal order made on 6 May 2015.
Toal sought an indefinite adjournment on the trial’s first day, 5 May 2015. His counsel cited late document discovery by the Barristers Professional Conduct Tribunal, further documents disclosed that morning by two other defendants, and a challenge to the Disciplinary Tribunal’s claim of privilege over internal communications. The judge said he would take steps to prevent any specific disadvantage caused by late discovery or any wrongly asserted privilege, but refused to adjourn on the basis of unspecified general prejudice. The judgment records that the Conduct Tribunal’s discovery was one week and one day late.
Counsel also argued that the judge should not hear the case because High Court judges, including the judge, were benchers of the Honorable Society of King’s Inns. Toal sought a delay while possible legislation was considered that might allow the case and any appeal to be heard by judges who were not benchers. The judge rejected that request, applying the rule of necessity: he concluded that the case had to be heard by a High Court judge and that he should not decline that duty. He also said adjourning proceedings pending possible government or legislative action would be inconsistent with separation of powers. He refused the adjournment but, at counsel’s request, put off the trial’s opening until the next day.
On 6 May, counsel said Toal would take no further steps in the case as then constituted, because he believed proceeding would mean acquiescing in an unlawful process. Counsel nevertheless applied for a CJEU preliminary ruling on whether the refusal to disqualify the High Court judges breached rights under Article 47 of the EU Charter. The judge found no basis to conclude that the case raised an EU law issue that would permit a reference. He added that a reference would have been premature before the issues and factual context were identified, and that he would have refused one on that basis even if an EU law question were potentially involved.
After the reference application was refused, Toal was given a further brief opportunity to decide whether to open his case. The court was then told he would take no further part. At the defendants’ applications, the judge dismissed the action against each of them. The judgment does not determine the underlying challenge to the disciplinary findings on its merits. It records that the disciplinary tribunal had made misconduct findings in June 2014 and had deferred a separate sanction hearing pending the court proceedings.