Mr Justice Max Barrett made the comment when reserving judgment yesterday on the action by Mr White when it concluded after a four-day hearing.
Mr White, 71, who retired in 2014 after 12 years as a High Court judge, claims a Bar Council rule, and alleged impermissible application of that rule by the minister for justice so as to exclude him from the panel of barristers eligible for criminal legal aid work, breach his constitutional rights to work and earn a livelihood.
He wants to be permitted to resume a criminal defence practice and is also claiming damages for the alleged breaches. The disputed rule prevents a judge resuming practice in a court equal to, or lower than, where he presided. In Mr White’s case, it prevents him practising in the criminal courts and confines him to the Court of Appeal and Supreme Courts.
In closing arguments, Cian Ferriter, counsel for Mr White, rejected arguments by the Bar Council and minister that the perception of a fair administration of justice would be adversely affected should Mr White resume practise in the criminal courts.
The disputed rule was rooted in a “stratified social mindscape” of 19th century Victorian England, counsel said. It assumed, in a modern 21st century constitutional Republic, judges in lower courts would be “so overborne” by having a former High Court judge making arguments to them they could not make an objective decision. That was not the case, counsel argued.
As part of his action, Mr White claims he needs to resume work out of economic necessity and his existing income is not adequate to his family’s needs. He had also suffered cuts of 38% in his pension entitlements. The Bar Council and minister denied any breach of constitutional rights and also argued Mr White has not proven his claim he needs to resume work out of economic necessity.
Mr White had had a successful criminal practice before earning between €145,000 to €240,000 annually over 12 years as a judge, got a €250,000 lump sum on retirement, had a €78,000 annual pension and previously inherited an estimated €1m plus from his late mother’s estate, the counsel argued. His wife is also working.
In reply to such arguments, Mr Ferriter said Mr White “absolutely accepts” many people will not share his perception of what constitutes an adequate income. Mr White has an annual pension of €78,000 and four children in full-time education, counsel said.
Mr White was a victim of an “unlawful Catch 22” position where he is entitled, as a criminal defence barrister, to go on the criminal legal aid panel, but is shut out from that, counsel said. Both the council and minister were responsible for that.
Earlier, Eoghan Fitzsimons, counsel for the minister, said €60m is spent annually on the criminal legal aid system and the State was entitled to ensure those in receipt of legal aid were regulated. Mr White could practise in the Court of Appeal and Supreme Court or take on work such as arbitration but had chosen not to do so, he said.