The High Court has ordered Barry White to disclose specified work and financial records in his challenge to restrictions on former judges practising at the Bar. It refused his request to divide the case into separate trials on liability and damages, directing that it proceed as a single trial. The judgment did not decide the merits of his claims.
White, a retired High Court judge and former criminal defence barrister, is challenging rule 5.2.1 of the Bar Council of Ireland’s Code of Conduct. The rule prevents a retired judge from practising in a court of equal or lower jurisdiction than the court in which they served. White says he wants to return to criminal defence work and that the rule prevents him from doing so in the Circuit and High Courts.
He also seeks admission to the Minister for Justice and Equality’s panel of criminal defence practitioners eligible for payment under the State’s free legal aid scheme. White argues that panel membership is necessary to earn a meaningful living in criminal defence. The judgment records that the Minister appeared to regard Law Library membership as a prerequisite, while White says that membership would leave him subject to the practice restriction.
White’s case alleges that the respondents acted unlawfully, unconstitutionally, unreasonably and in breach of the European Convention on Human Rights. He also seeks damages, relying in part on claims of financial necessity and loss. The Bar Council disputed aspects of his pleaded case and sought records relating to his former work, income and finances.
The court ordered discovery of documents about the nature of White’s work in the five years before his appointment as a judge, and documents recording his alleged loss, its causes and steps taken to mitigate it. It refused a separate request for documents about income in that period, finding that tax returns already supplied were sufficient and that requiring more would be oppressive.
For the period from September 2009 to the date of the judgment, the court ordered production of bank and other financial institution statements. It also ordered documents concerning assets, liabilities and expenditure above €1,000. The court set that threshold to limit the burden of the broader request. It suggested that the parties consider practical limits on the work records to avoid delay, but that suggestion was not itself a discovery order.
The court declined White’s request for a modular trial. It found no clear saving in time or costs, anticipated overlap in evidence, and considered the proposed liability issues not readily separable from the remaining issues. It directed that the case proceed by way of a unitary trial. Whether White is entitled to relief or damages remains for that trial.