High Court judge to take no further action against lawyers over handling of bid to stop deportation of Polish criminal

A High Court judge has decided to take no further action against two lawyers whom he had accused of using litigation as a strategy in a bid to stop the deportation of a Polish criminal whom they represented.

Mr Justice David Keane said there were “serious failings” concerning the bringing in March 2016 of an ex-parte, one side only represented application on behalf of Thomas Bebenek.

These lead to the immigration and asylum system being undermined and the High Court's scarce resources being taken up with a “wholly unsubstantiated case that was entirely without merit”.

Were it not for the principle of equality before the law, he believed it would have been appropriate to admonish both lawyers, even after taking into account mitigating factors, including junior counsel's apology and lack of experience, and the fact neither lawyer had ever come to the adverse attention of the court before or since.

He was taking no further action on the basis of equality before the law as underlined by another High Court judge's observation that deficiencies in the making of ex-parte applications are "sufficiently frequent" as to make it inappropriate to criticise any one lawyer.

He also said he accepted the solicitor's undertaking not to seek any costs of the proceedings from Bebenek, which made it unnecessary for him to consider whether those costs should be disallowed.

His decision arose from an earlier judgment of June 2018 in which he found the lawyers and Bebenek had used litigation as a “strategy or tactic” to delay deportation for long enough so a new deportation order would have to be made which could again be challenged in the courts.

He said both lawyers had failed to properly inform the court of the relevant law concerning the case which was their obligation as officers of the court, particularly in a complex area such as immigration law.

He later heard submissions from legal representatives for both lawyers on 10 questions raised by the judge in regards to the lawyers’ conduct.

On behalf of the solicitor, he was told there had been a "systems failure" within her then practice and she has taken steps to ensure no repeat of what had occurred. There was no intention to mislead the court in the matter, it was submitted.

On behalf of the junior counsel, who in 2016 was in his second year at the bar, the judge was told he accepted a mistake was made, had apologised to the court and the matter should go no further.

In his further judgment today, Mr Justice Keane said the solicitor had provided "no satisfactory explanation" about how, despite her office having received a letter from Bebenek on March 2, 2016, and despite 21 phone calls and three video-link conferences between Bebenek and her office from February 1 to March 16, 2016, she professed to have had no meaningful interaction with him before taking "urgent" instructions from his partner on the morning on March 16, 2016, when the ex-parte application was made.

He also noted the junior counsel, who in 2016 was in his second year of devilling with a “master”, had said he had the necessary professional competence to deal with the matter as the Code of Conduct of the Bar of Ireland allowed devilling barristers to accept instructions on their own behalf.

The junior counsel did not address another provision of the code which provides barristers should decline to act in a matter if they receive instructions they believe to be beyond their competence, the judge said.

The case arose from an urgent ex-parte application to prevent Bebenek's deportation arising from previous convictions. He received notification of his deportation in June 2015 while serving an 18-month prison sentence for theft.

On March 16, 2016, the day he was due to be released from prison and deported, his lawyers got a stay on the deportation order.

Mr Justice Keane said Mr Justice Max Barrett would not have granted the stay had he been told the full facts, including that Bebenek was in jail and had been given reasons for his deportation.

Following the stay and his release from prison, Bebenek disappeared and later returned to Poland himself, rendering the action moot or pointless.

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