High Court president defends Irish judges who took Dubai court jobs

The president of the High Court has said criticism surrounding the appointments of two senior retired Irish judges to the Dubai International Financial Centre (DIFC) court was “ill-informed” and “a bit unfair”.

The controversy, which resulted in former chief justice Frank Clarke and former High Court president Peter Kelly resigning from the DIFC court, was “a horrible thing” to happen to both judges after their “incredible public service” to the State, said Mr Justice David Barniville.

Both resigned less than a week after being appointed in late July amid concerns, including from Labour Party leader Ivana Bacik, about the Dubai administration’s poor human rights record.

In a wide-ranging interview with The Irish Times, the newly appointed High Court president addressed the controversy alongside many other issues.

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He “strongly supports” the reversal of cuts to criminal legal aid fees, still at 2002 levels, and hopes the Government will approve 20 additional judges for the High Court as it strives to clear backlogs in several court lists.

He also favours more physical and hybrid (combined physical and remote) hearings when the new law term opens next month.

In the first public comment by a senior judge here on the DIFC appointments controversy, Mr Justice Barniville said Mr Clarke and Mr Kelly are private citizens, having had to retire as judges here when they reached the age of 70.

Their “excellent international reputation” was the reason they were approached for appointment to the DIFC court, he said. “Much of the criticism of that court was ill-informed and, I think, a bit unfair.”

Retired common law judges sit on international commercial courts around the world, including in the Gulf states, he said. Those courts, including the DIFC, have “excellent reputations” internationally and are members, along with major international commercial courts including Ireland, the US and UK, of the Standing International Forum of Commercial Courts.

International reputation

An Irish judge had never before been appointed to any of these courts and it was “a great tribute” to the international reputation of both retired judges to be appointed to the DIFC court.

A comparison by some critics between the LIV Golf tour in Saudi Arabia and the DIFC courts was “completely misplaced”.

The DIFC is separate from the domestic courts in Dubai — which operate Sharia law — and is regarded as having a very important role in promoting and maintaining the rule of law in commercial disputes in that jurisdiction, he said.

“I don’t think the comparison was fair but I can fully understand why, faced with the sort of public criticism that came out at the time, that both Peter Kelly and Frank Clarke decided they did not wish to remain on the court. They did not need that hassle. I think, for people who had given such good service to the State over the years, it was a terrible pity and awful for them.

“I’m very happy to say I think very, very highly of both of them and I don’t think any less of them as a result of this at all. I can understand why they resigned but I do think a lot of the criticism didn’t really understand what was involved.”

Asked about the human rights concerns, he replied: “You don’t always have to approve of a regime to work as part of it.” Many Irish firms do business in Dubai and other Gulf countries, he said. There’s a lot of Government contact with people in Dubai and it is “a hugely important market for Ireland”.