State must cover cost of judge’s action to resume work as barrister

The State must pay all of retired High Court judge Barry White’s legal costs for an action aimed at permitting him to return to practise as a criminal defence barrister, the High Court has ruled.

Mr Justice Max Barrett previously granted Mr White an order requiring the Minister for Justice to pay the costs of his successful action against her.

On Friday, the judge directed that the Minister must also pay Mr White’s costs of bringing the same case unsuccessfully against the barristers’ regulatory body, the Bar Council.

In July last year, Mr Justice Barrett ruled that Mr White can return to practise without having to be a member of the Law Library. He refused to declare as unconstitutional a Bar Council rule requiring Mr White to first be a member of the Law Library. The Bar was effectively a private club which was entitled to operate its own rules, the judge said.

In a subsequent appeal by the Minister, the Court of Appeal ruled the Minister must reconsider his application to resume practising as a criminal barrister.

Mr White (71), who retired in 2014 after 12 years as a a judge, claimed the Bar Council rule preventing him returning.

Constitutional rights

Mr White alleged an impermissible application of that rule by the Minister so as to exclude him from the criminal legal aid panel and breached his constitutional rights to work and earn a livelihood. The claims were denied by both respondents.

After finding last December he was entitled to his costs against the Minister but not the Bar Council, Mr Justice Barrett heard further arguments from Mr White’s lawyers seeking to make the Minister responsible for the costs of the claims concerning the Bar Council.

In his decision on Friday, the judge said section 78 of the Courts of Justice Act 1936 gives a court discretion to order that the costs of a case against one party, who was successful, must be borne by an unsuccessful other party (in this case the Minister).

The Minister opposed the application on grounds including that, while there was some linkage between the issues of the Bar Council and Minister, they were still fundamentally different claims. There was no need in the first place to sue the Bar Council, it was also argued.

Mr Justice Barrett said it was reasonable to join both the Minister and the Bar Council as respondents.

The critical issue which underlay the entirety of the case concerned the regulation of a barrister who previously held the job of a judge, he said. That was why a rule on returning to practise under the Bar’s code of conduct “came to pervade the case”.

It was proper that Mr White recouped from the Minister, in addition to his own costs, the further costs which he was liable to pay to the Bar Council, Mr Justice Barrett said.