Lawyers for Mr White, aged 71, secured leave from Mr Justice Seamus Noonan yesterday to bring a legal challenge over the rule, based on an 85-year-old Supreme Court decision in a 1930 case, the O’Connor case.
It prevents retired judges resuming private practice in a court equal to or less than the court of which they were a judge.
Mr White was called to the Bar in 1967 and became a senior counsel in 1992. He was appointed a High Court judge in 2002 . He had to retire as a judge at 70 .
Since his retirement, Mr White has had discussions with the Bar Council and minister for justice on his application for a waiver of the Bar Council rule so he can resume practice but to no avail, John Rogers, for Mr White said.
Mr Rogers argued the rule breaches Mr White’s constitutional rights, including to work and earn a livelihood.
His case was the Bar Council has no jurisdiction to impose conditions on judges returning to practice and the minister has no power to enforce such restrictions, counsel argued.
Members of the Law Library have combined to make this rule which causes a distortion of competition and is therefore null and void, he argued.
Mr Justice Noonan said Mr White had an arguable case for judicial review and was entitled to be granted leave on the grounds advanced. A hearing date will be fixed at a later stage.