The Supreme Court has allowed German lawyer Ms. Ohlig to represent Volkmar Klohn in the remaining stage of his appeal without an accompanying Irish-qualified lawyer. The Court said her prior representation of Klohn before the Court of Justice of the European Union (CJEU) was significant because the outstanding issue concerns applying that court’s judgment to his appeal.
The ruling, delivered on 23 April 2021, addresses only Ms. Ohlig’s entitlement to appear. The substantive appeal against An Bord Pleanála remains unresolved.
The issue arose after the CJEU answered questions referred by the Supreme Court about whether Ms. Ohlig could represent Klohn without Irish counsel. She had previously practised in Ireland under rules implementing the EU Lawyers’ Establishment Directive, but no longer held that status. She sought to appear under rules governing lawyers providing services across EU member states.
In its 10 March 2021 judgment, the CJEU concluded that the Irish requirement for a visiting lawyer to appear with an Irish-qualified lawyer was, in principle, compatible with EU law. But applying that requirement in every case, without exception, would breach EU law where it went beyond what was necessary for the proper administration of justice. The national court must assess whether a visiting lawyer’s experience allows them to represent the litigant in the same way as a lawyer who routinely practises before that court.
Ms. Ohlig submitted that she met that standard. The Supreme Court noted that her experience included advising and representing clients in Ireland in environmental law and related fields, but said that experience might not be enough in litigation extending beyond that field. The Court gave particular weight to the narrow issue remaining in Klohn’s appeal and the fact that Ms. Ohlig had represented him in the CJEU proceedings that produced the judgment now to be applied. Other parties involved in the hearing took a neutral position on whether she should be permitted to appear alone.
The Court directed Ms. Ohlig to file submissions within three weeks setting out the orders sought in the appeal and the reasons for them. An Bord Pleanála is to reply within a further three weeks. The notice parties—the General Council of the Bar of Ireland, the Law Society of Ireland and the Attorney General—have no further direct involvement in the remaining issues, so the appeal will continue between Klohn and the Board.
After the submissions are filed, the appeal is to be listed for hearing, possibly on 17 June 2021. The parties were also directed to agree and file the materials needed for the remaining proceedings. The Court said it would arrange a further case-management hearing if difficulties arose with those preliminary steps.