The High Court has quashed a Competition Authority policy which generally barred one lawyer from representing more than one person in the same investigation.
The Law Society of Ireland challenged a notice published by the Authority in August 2004. Under the policy, the Authority would normally refuse to allow the same lawyer to act for two people connected with one investigation, although exceptions could be granted where it was satisfied that its investigative process would not be compromised.
The Authority said the policy responded to practical difficulties it had encountered in cartel investigations. It cited cases where one solicitor represented multiple people under investigation and where it believed conflicts of interest could inhibit witnesses or minor participants from providing information.
Mr Justice O’Neill first rejected the Law Society’s argument that the Authority had no power at all to publish such a policy. Although neither section 30(1)(d) nor section 37(5) of the Competition Act 2002 expressly authorised this type of rule, the court held that managing investigative hearings and notifying the public of relevant procedures were powers incidental to the Authority’s statutory investigative functions.
However, the court found the substance of the policy unlawful. It held that where legal representation is appropriate, a person has a constitutional right under Article 40.3 to choose their lawyer. That right is not absolute: a tribunal may intervene where a particular representation arrangement creates a real conflict capable of frustrating or impeding its lawful work.
The problem was the Authority’s general presumption against multiple representation. The court held that many cases would involve no conflict at all, while other conflicts could be managed without interfering with the client’s choice.
Mr Justice O’Neill found that the policy reversed the proper presumption in favour of freedom of choice and failed the constitutional proportionality test.
He therefore granted certiorari, quashing the notice. Although he also considered Article 6 of the European Convention on Human Rights applicable to relevant investigations, a separate declaration of incompatibility was unavailable because the constitutional remedy already provided effective relief.