Legal profession views Woulfe affair damaging to perception

The overwhelming consensus of legal opinion about the controversy surrounding the Supreme Court judge Séamus Woulfe is that it has damaged the public perception of the judiciary in general and the Supreme Court in particular.

Legal sources say there is a clear sense of relief among the judiciary that the crisis appears to be approaching some form of conclusion with the Government decision not to initiate a process to remove the judge apparently clearing the way for Mr Justice Woulfe to sit on the Supreme Court bench from early next year.

“Many judges were concerned about the implications, including for judicial independence, if the Government was to lower the bar for removal of a judge,” a senior source said. “There is a sense of relief that has not happened and that the Taoiseach has stressed the importance of the constitutional protection of the judiciary.”

“Judges don’t like this kind of attention. Although they are a diverse group, if one of them is in the limelight, that usually reflects on all of them. Most of them are happy with being unknown, they don’t want to be household names, they really just want to be good, but forgettable, referees.”

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Several sources indicated the prevailing mood is to get back to work without the distraction of the controversy.

An informed source doubted there would be any official publication of other communications between Mr Justice Woulfe and the Supreme Court.

‘Couldn’t stand each other’

"The positions of both sides have been well set out and the view appears to be, if you're still explaining, you're losing. The situation now effectively amounts to a workplace dispute. The judges are a team, they have to work together. They don't have to like each other. Other Supreme Courts in the past included one or two judges who couldn't stand each other."

A number of sources suggested some form of conciliation process may be helpful in finally concluding the matter.

Lawyers remain divided in their views about how the controversy has been handled to date, both by Mr Justice Woulfe and by the Supreme Court.

Many were critical from the outset about the judge's attendance at the Oireachtas golf dinner in a hotel in Clifden on August 19th, the day after the Government announced new guidelines aimed at limiting indoor social gatherings to six people to curb the spread of Covid-19.

They were even more critical of how he handled the controversy which followed, his apparent lack of insight into the impact of that as disclosed in a published transcript of his interview with Ms Justice Susan Denham, and an apparent reluctance to accept certain proposals advanced by the court to informally resolve the situation.

There is also criticism of how the Chief Justice, Mr Justice Frank Clarke, and the Supreme Court approached the matter following the publication on October 1st of a non-statutory review by former chief justice Denham of Mr Justice Woulfe's attendance.

‘Frustrated and annoyed’

A senior barrister said: “The Supreme Court on the one hand said it accepted the views of Judge Denham, which included her view there was no basis for resignation, but then it tried to get Judge Woulfe to agree to measures such as waiving his salary, which the court had no power to do. Publicly calling for his resignation in correspondence released to the media was another step too far. One group of judges simply do not have that kind of power over a colleague.”

Several sources considered the Chief Justice should not have published correspondence between him and Mr Justice Woulfe, in which the Chief Justice expressed his belief Mr Justice Woulfe should resign “to avoid continuing serious damage to the judiciary”.

Others disagreed, saying it was important that the public know the position of both sides.

“The Supreme Court was clearly frustrated and annoyed and who could blame them?” one barrister said.

A judicial source expressed some concern about the potential future impact of the publication and the controversy in general on the Supreme Court.

“What happens if a litigant asks Mr Justice Woulfe to recuse himself from hearing a Supreme Court appeal because the litigant has read the published correspondence outlining the Supreme Court’s views on the judge’s handling of the golf matter? This may not be over.”