State not liable for retired judge's legal costs liability to bar council, appeals court rules

Retired Judge Barry White

By Ann O'Loughlin

A Court of Appeal ruling means retired judge Barry White, not the State, must pay the Bar Council's legal costs in defending claims it had an unconstitutional rule preventing him resuming practice as a criminal barrister.

The Court of Appeal today overturned a High Court ruling requiring the State to pay Mr White's entire legal costs of his action aimed at permitting him return to practice.

The decision means, although the State must pay Mr White’s costs of his successful claims against it, the judge himself must pay the Bar Council’s costs.

A stay applies on the costs decision to allow Mr White seek a further appeal to the Supreme Court.

Mr White (72), who retired in 2014 after 12 years as a a judge, claimed a Bar Council rule requiring him to be a member of the Law Library prevented him returning to practice.

He alleged an impermissible application of that rule by the Minister for Justice meant he was excluded from the criminal legal aid panel in breach of his constitutional rights to work and earn a livelihood.

In July 2016, the High Court’s Mr Justice Max Barrett ruled Mr White can return to practice without having to be a member of the Law Library but refused to declare the Bar Council rule was unconstitutional.

The Bar is effectively a private club entitled to operate its own rules, he said.

In a subsequent appeal by the Minister, the Court of Appeal ruled the Minister must reconsider Mr White's application to resume practice.

In rulings in 2017 arising from his 2016 judgment, Mr Justice Barrett had found the Minister was liable for Mr White’s costs of the entire case, including his failed claim against the Bar Council.

The Minister appealed against the ruling he was liable for Mr White’s costs to the Bar Council.

The appeal centred on interpretation of Section 78 of the Courts of Justice Act 1936 which gives a court discretion to order the costs of a case against one party, who was successful, must be borne by an unsuccessful other party.

Giving the appeal court judgment on Friday, Mr Justice Michael Peart, with whom Mr Justice Sean Ryan and Ms Justice Mary Irvine agreed, said Mr White's claims against the Minister and the Bar Council were "completely different".

In circumstances where the orders sought against the Bar Council could never have been granted against the Minister and vice versa, the High Court erred in concluding it had jurisdiction to make the Minister liable for Mr White's costs to the Bar Council, he held.

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