The High Court dismissed a senior counsel’s claim for €38,000 in criminal legal aid fees, finding that his name had to be on the barristers’ panel when he accepted the assignment. A tax clearance certificate issued after the panel removed his name did not give him a right to payment for the trial work.
The case concerned a Wexford Circuit Criminal Court trial that began in February 2005. The barrister had been removed from the panel on 1 January that year after failing to provide a tax clearance certificate by the required deadline. He accepted instructions on 14 February to take over the defence of an accused person whose trial was due to begin the next day. The trial ran from 17 February to 15 March, and the accused was acquitted.
The barrister had paid outstanding VAT in January 2005 and applied for tax clearance. Revenue issued a certificate on 8 February, valid from 26 January 2005 to 26 January 2006, but he did not receive it until 19 February. He applied to the Department of Justice to be returned to the panel. The department later confirmed that his name had been retained on the panel from 20 February, but refused to pay for the Wexford assignment because he was not on the panel when he accepted it.
The court accepted that refusing payment was harsh: the barrister had done the work, and the State would have had to fund another senior counsel if he had not taken the case. But it found that the regulations made panel membership at the time of assignment a clear precondition for payment. The responsibility to maintain eligibility rested with the barrister. The judge also found that Revenue had processed his application within a reasonable time and that the barrister’s earlier failure to meet the panel requirements was his own default.
The barrister argued that the regulations should be read to allow payment because he was tax compliant when assigned, and raised fairness, constitutional and European Convention grounds. The court rejected those arguments. It held that the regulation was clear, that the scheme was not unfair or beyond the Minister’s powers, and that the barrister could not rely on the accused person’s fair trial rights to establish his own right to fees.
The order was to dismiss the claim. The judgment did not award the claimed fees or grant the declarations or damages sought.