Lawyers accused of using litigation to stop deportation to face no further action

Judge says ‘wholly unsubstantiated case that was entirely without merit’ wasted scarce resources

A High Court judge has decided to take no further action against two lawyers who were accused of using litigation as a strategy to stop the deportation of a criminal they represented. Photograph: Bryan O’Brien/The Irish Times.

A High Court judge has decided to take no further action against two lawyers who were accused of using litigation as a strategy to stop the deportation of a criminal they represented. Photograph: Bryan O’Brien/The Irish Times.

 

A High Court judge has decided to take no further action against two lawyers over their conduct of litigation aimed at preventing the deportation of a criminal they represented. *

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

He said this 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.

‘Strategy’

The judge’s decision arose from a judgment in June in which he criticised aspects of the litigation concerning Bebenek.

Mr Justice Keane 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 this occurring. 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 first 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.

Conferences

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

Bebenek received notification of his deportation in June 2015 while serving an 18-month prison sentence for theft. On 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.

* This article was amended on May 20th, 2019.