From The Weekly Freeman’s Journal, 24 July 1920:
LEFT STRANDED IN THE FOUR COURTS
On Thursday last week, the action of D Coffey, Derrymilleen, Co. Cork, farmer, v Denis P O’Regan, Farransbesbary, Enniskeen, Co. Cork, farmer, was listed for hearing in the Chancery division before Mr Justice Powell. The plaintiff sought specific performance of an agreement for sale by the defendant.
When the case was called, Mr DB Sullivan BL said neither of the parties had turned up, and he would have to ask his lordship to take the case out of the list for the present. They could only guess what had happened. Mr Bourke was for the defendant and he consented.
Mr JF Bourke BL – I can do nothing else but consent. We do not know what has happened. We can only guess. The fact is no witnesses are here on either side.
Mr Justice Powell – The best thing I can do is to strike the case out.
Mr Bourke – We have no definite instructions of what has happened.
Mr Sullivan – Let it stand out of the llst for the moment. We will mention it again in the event of it going on. I don’t suppose it will.
Mr Justice Powell – Very well. By consent take the case out of the list for the present.”
A barrister’s worst nightmare! Whatever could have happened? The date of the above events raises the suspicion that the missing parties had eschewed the Four Courts in favour of the Dáil Courts – the first alternative dispute resolution mechanism in Ireland since duelling went out of fashion midway through the previous century.
The first newspaper reference to Irish barristers being involved in such proceedings is to be found in the Evening Mail of 21st May 1920, which references one Kevin O’Sheil BL as presiding over a landlord and tenant dispute before an Sinn Féin Arbitration Court in Ballinrobe, County Mayo.
A subsequent court held in Ballinasloe, County Galway, the following week was presided over by an unnamed barrister of the High Court. Eight or ten solicitors of the Circuit argued cases. The evidence was taken in the usual way with a pledge of honour substituted for the oath.
The Ballinasloe Court – the largest Arbitration Court so far – led to a question being asked in the House of Commons as to what steps the Attorney General for Ireland, Denis Henry KC, proposed to take to deal officially with lawyers who participated in such court proceedings. Mr Henry’s response was that this was a matter, in the case of barristers, for the Benchers of the King’s Inns and, in the case of solicitors, for the Incorporated Law Society. The questioner, Colonel Ashley, then asked if he was to understand that the Crown had no power to deal with barristers or solicitors who had taken part in treasonable and illegal proceedings. There was no reply from Mr Henry.
On the 24th June, 1920, the news broke in the Four Courts that the Bar Council had, at a special meeting, passed a resolution declaring that it was professional misconduct for any barrister to practice in a Sinn Féin Arbitration Court. It was stated on behalf of those who attended that any barrister found so practising would be reported to the Bar Council and dealt with thereafter by the Benchers, who would have the duty of determining what sanction should be imposed against them. This was in contrast with the decision of the Incorporated Law Society of Ireland not to interfere with the appearance of solicitors at such courts.
The Bar Council resolution created considerable hubbub, having regard to the fact that, during the 1913 Home Rule agitation in Ulster, many members of the judiciary and prominent lawyers had been members of a Provisional Government which declared its refusal to recognise the Home Rule Act, without any objection from the Bar Council.
On the 28th June a letter from Maurice Healy KC, 1 King’s Bench Walk, Temple, London, brother of controversial Irish barrister and politician Tim Healy, was published in the Irish Independent. Mr Healy stated that
“So far as I understand the position of a barrister he is entitled not only to appear before every court (other than certain statutory exceptions); he is also entitled to act as arbitrator or to appear as counsel before such arbitrator. Accordingly, the only objection that can be raised to a barrister appearing before a Sinn Fein court is that he is acknowledging the jurisdiction of an authority other than his Majesty’s government… whatever weight should be attached to this objection in 1920, should also have been attached to it in 1913.”
The following day a decree of the First Dail abolished the Sinn Féin Arbitration Courts and replaced them with Dáil Courts of wider jurisdiction.
On the 3rd July 1920 The Freeman’s Journal carried a letter from Serjeant McSweeney KC saying that the Bar Council resolution involved the threat of professional ruin to Irish barristers and deprivation of their means of living. He also pointed out that the resolution was not yet technically in force, as it had not yet been formally posted up in the Library.
The Londonderry Sentinel, on the other hand, regarded the Bar Council resolution as unnecessary, since no decent counsel would soil themselves by association with such tribunals:
“The slaves who are bullied into submitting to the Sinn Fein courts subscribe to the lie that the Irish Courts, of which every member of the Bar is an officer, are enemy organisations for the oppression of Ireland. No man, unless afflicted with the mind of a prostitute, could believe in this declaration and still desire to be a member of the Irish Bar.”
Of course, involuntary starvation can lead even the most chaste to sacrifice their virtue, and, as the Sentinel itself acknowledged, the official courts were by now practically empty throughout three fourths of Ireland, the only business being applications for criminal injury compensation, with the word in the Law Library being that when the judges went out on Circuit in 1921 there would be practically no business for them.
The forthcoming July Assizes showed that things were even worse than predicted. Lord Justice Ronan had practically nothing to do in the Record Court at the opening of the Mayo Assizes in Castlebar. This was due to the fact that a Dáil Court held on the previous day, and attended by a large number of barristers and solicitors, had heard almost all the appeals listed for the Assizes.
On 7th July 1920, it was reported that an informal meeting of the Leinster Circuit had resulted in a resolution of the majority of the Circuit that a member of the Bar, instructed by a solicitor, was entitled to appear before any Dáil Court.
Later that month, the news broke that the Attorney-General’s brother-in-law Hugh Holmes, son of Lord Justice Holmes of the Irish Court of Appeal, John Monroe, son of Mr Justice Monroe, and Mr Webb, a leading junior on the Connaught Circuit, were leaving Ireland to take up judicial positions in Egypt. Meanwhile, the Derry Journal of 27 August 1920 reported that three of their colleagues from Dublin were spending the long vacation learning Irish at Coláiste Cholmcille in Cloghaneely, Co. Donegal.
A meeting of the Bar to consider the June resolution, postponed due to the July Assizes, took place in the Law Library on 5th November 1920. It was held in response to a requisition signed by about seventy members of the Bar and there was a large attendance. Tim Healy, in an address frequently interrupted by applause throughout, expressed the view that the Bar Council had no right to pass judgment on the conduct of any member of the Bar or on their action or non-action, the only body with a right to do so being the Benchers. According to Mr Healy, the Bar Council was under a misapprehension if it thought that its duties corresponded with those of the Bar Council in England, where, due to the presence of four Inns of Court, it was necessary that some body should exist there which would have general jurisdiction in matters of professional etiquette.
After some discussion the meeting adjourned indefinitely. According to the Freeman’s Journal of the following day, it was generally understood that the feeling of the meeting was that the Bar Council had acted without jurisdiction and that the effect of the proceedings of the meeting had been to nullify the previous resolution.
On the 12th of the same month, Mr Diarmuid Crowley, barrister and Circuit Court judge in the Dáil Courts, was arrested on returning to his lodgings at the Moy Hotel, Ballina, after presiding over a court in that town. A report of his arrest in the Manchester Evening News described Mr Crowley was known as a sound lawyer and a fearless advocate has appears in some important civil cases before the judges in the Four Courts. One suspects that his arrest was not unconnected to what had taken place in the Law Library the previous week.
What happened to Mr Crowley? Or, indeed, the Dáil Courts? What did barristers and solicitors unwilling to practise in these courts do to occupy their time throughout 1920? You’ve guessed it – they lobbied for an increase in fees! How many went to the Colonies? The story continues here!