The High Court has taken no further action against a solicitor and junior counsel following an inquiry into their conduct of an immigration judicial review, despite finding serious failures in how the case was prepared and presented.
In a judgment delivered on 14 March 2019, Mr Justice Keane said the lawyers’ responses had not assuaged his concerns about the proceedings. He concluded that the evidence showed failures comparable to those identified in an English case concerning lawyers’ duties to make proper inquiries, present a full and accurate account, and ensure court documents were based on verified information.
The underlying judicial review was brought by Thomas Bebenek against the Minister for Justice and Equality, Ireland and the Attorney General, and the Garda Commissioner. The judgment does not identify the solicitor or junior counsel. It concerns a further inquiry after an earlier judgment raised concerns about the lawyers’ conduct and directed them to show cause why their handling of the case should not be found to breach professional standards and their duties to the court.
The judge recorded that the solicitor’s office received a letter from the applicant on 2 March 2016, 21 telephone calls from him between 1 February and 16 March, and records of three video-link conferences. The solicitor said she had no recollection of speaking meaningfully with him before the morning of 16 March, when his partner provided documents and the firm opened a file. The judge said the solicitor had not satisfactorily explained the gap between those records and her account.
That morning, the solicitor sought the removal order and the letter underpinning it from the Department. She said the missing letter led her to understand there was a basis for an urgent application. The judge also rejected her explanation that she assumed junior counsel would address the need for an extension of time: the application for leave was supported only by her affidavit, which contained no evidence capable of establishing good or sufficient reason for an extension.
The judgment also addressed an affidavit allegation about the applicant’s former solicitor. Junior counsel acknowledged drafting it solely on the applicant’s instructions and without advising that the former solicitor should be given an opportunity to respond. The court discussed the junior counsel’s inexperience and the solicitor’s selection of counsel as further concerns.
The judge held that the High Court could use its inherent power to prevent abuse of its process, including by admonishing lawyers, and rejected arguments that the inquiry required another judge or breached fair-procedure rights. The solicitor undertook not to seek costs from her client, and the court accepted that undertaking.
Although the judge said admonishing both lawyers would ordinarily have been appropriate, he took no action against either in this case. He said equality before the law required the same approach taken in an earlier case, where deficiencies in ex parte applications were not retrospectively criticised before the requirements had been made clear more generally. He warned that future ex parte applications must comply with the duties of candour and inquiry described in the judgment.