In a recent decision of the High Court in Mallon .v. The Minister for Justice and Ors [2025] IEHC 125, the court considered an application challenging the restriction on a litigant's entitlement to brief a barrister directly, instead of through the prescribed method of first retaining a solicitor, the litigant was deprived of his legal rights. In the regulatory context, this judgment is interesting as it considers the details in which various codes of conduct were adopted and the significance placed by the court on such codes and rules of court.
The Plaintiff commenced proceedings challenging provisions of the Land and Conveyancing Law Reform (Amendment) Act 2013 in relation to a possession order granted against Mr Mallon in 2016. The Plaintiff sought permission to be represented by a named barrister without the need for the barrister to be briefed by a solicitor. Given the nature of the application, the Legal Services Regulatory Authority ("LSRA"), the King's Inns and the Law Society all participated in the application. To aid the plaintiff in this application, the named barrister was permitted to represent the Plaintiff, pending the determination of the application.
Ms Justice Stack noted in her judgment that the Rules of the Superior Courts ("RSC") are clear, where a litigant wishes to be represented, he or she must be represented by a solicitor. It is the solicitors responsibility to brief a barrister. Commenting on the justification for this rule, the court noted that the supervision of solicitors by the courts ensures proper professional practice in litigation, enabling not only good administration of justice but also protecting litigants. In contrast, the court noted that there was no similar supervisory jurisdiction over barristers.
On the regulation of barristers, the court observed that most barristers are members of the Law Library and are governed by the Code of Conduct of the Bar of Ireland and this code requires, except in limited circumstances, barristers to be accompanied in court by their instructing solicitor. The Court further noted that the named barrister was not a member of the Law Library and is therefore not governed by their code.
The King's Inns is responsible for training barristers in Ireland and upon being admitted as a barrister, a barrister must provide a written undertaking to comply with its rules. The King's Inns has adopted its own Code of Conduct therefore barristers who are not members of the Law Library and subject to their code are subject to the King's Inns Code of Conduct.
Under the Legal Services Regulation Act 2015 ("the 2015 Act"), provision is made for the LSRA to publish a code of conduct ("LSRA Code"). The 2015 Act provides that if there is any conflict, as between the various codes, the LSRA Code prevails. Similar to the other codes discussed, paragraph 3.13 of the LSRA Code provides that in contentious matters, a practising barrister shall not take instructions directly from a client.
In her judgment, Ms Justice Stack observed that the case law favoured the position set out in the various codes and cited a decision of the High Court in Bond .v. Dunne [2018] 2 I.R. 225, in which the court held that the RSC do not permit anyone other than a solicitor to have carriage of proceedings on behalf of a client. The Judge stated that the court must determine whether there was some other reason, such as a clear error or oversight of relevant authority, which would enable the court to depart from the stated position. In the Plaintiff's submission, he argues that due to the provisions of European Union law, the court should disapply the relevant RSC. The court found that the Plaintiff failed to demonstrate that this application fell within the scope of European Union law and the Plaintiff was unable to identify a clear error or oversight of relevant authority, which would permit the court to depart from the settled law on the area.
This judgment is an interesting analysis of the applicability of various codes of conduct and the manner in which the Court will analyse and apply relevant codes. One of the primary purposes of professional regulation is to ensure the protection and safety of the public. The court and various parties to the application noted a reason for the rule which did not permit the public to brief barristers directly was to ensure public protection.
