Barristers say they are losing out on work to retired judges

Struggling barristers are losing out as a number of retired senior judges on substantial pensions are securing lucrative mediation work, The Irish Times has been told.

Former chief justice Frank Clarke, who retired last October, former Court of Appeal judge Michael Peart and a former High Court judge, Paul Gilligan, are among the retired judges who are engaged in mediations and/or arbitrations.

Their engagement is causing disquiet among some barristers who say they are losing out on an important source of remuneration in difficult times.

The retired judges are being suggested, mainly by the big law firms, as mediators to carry out the “more lucrative” mediations in medical negligence and commercial cases, according to a barrister with considerable mediation experience.

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Such mediations would command fees of between €7,500 to €10,000 but sources believe the retired judges may be getting in excess of that.

“It seems that the larger firms are suggesting the judges as mediators because they like the gravitas that goes with them,” the barrister said. “It probably impresses some clients.

“The level of disquiet about this is justified,” she said. “Retired judges get substantial pensions and the rest of us are trying to make a living. Many barristers who would otherwise get these mediations are struggling.”

Pension entitlements

“A growing number of cases, particularly in the medical negligence area, are going to mediation and these would be an important source of income for barristers who are accredited mediators,” another barrister said. “It’s been hard enough to make a living over the past few years, the fact this work is going to retired judges instead of barristers doesn’t help.”

Retired judges have regularly undertaken work, in the past and to date, chairing tribunals or inquiries. Because that is work for the State, it is subject to pension abatement clauses, meaning the remuneration of the retired judges for such work would be in line with their annual pension entitlements.

Mediation has grown in popularity in recent years and its consideration has been recommended by judges dealing with a range of cases, including employment, commercial and professional negligence disputes.

Mr Clarke (70) was permitted to rejoin the Bar following a vote late last year by the Library Committee of the Bar Council, which controls admissions to the Law Library. As a result, he reverted to the title of senior counsel, which he had attained in 1985. His entry on the Law Library website lists arbitration as his area of practice.

Mr Peart was a reluctant retiree in October 2019 from the Court of Appeal in advance of his 70th birthday. He was appointed to that court in 2014. He was the first solicitor to be appointed as a judge of the High Court where he served between 2002 and 2014.

He is currently an arbitrator at Armistice Dispute Resolution Services, which describes itself as an Irish dispute resolution technology platform created to facilitate the resolution of commercial disputes. Mr Peart is described as an accredited mediator whose areas of expertise include alternative dispute resolution, arbitration/mediation, construction disputes and employment law disputes.

Mr Gilligan, aged in his early 70s, served as a judge of the High Court between 2003 and 2017 and managed the chancery division of that court for several years. He was appointed as a judge of the Court of Appeal in late 2017 and served there until his retirement in May 2018. He also served as president of the European Network of Councils for the Judiciary.

A qualified mediator, he was among the speakers at a Law Society webinar last April which addressed the benefits of mediation for lawyers. His address focused on commercial litigation, pre-trial mediation and the aspect of legal costs.