QC v JC: Junior Bar Privilege, 1836-1912

From the Cork Examiner, 17 March 1864:

“CORK SPRING ASSIZES (before Mr Justice Keogh) – BAR PRIVILEGE

Mary Sullivan was indicted for stealing a letter from the Post-office.

Mr Coffey defended the prisoner.  Messrs Clarke QC and Brereton QC, instructed by the Post-office department, prosecuted.

Mr Coffey said that he wished to know if the prosecutors were going to proceed with the case in the absence of junior counsel.

Mr Brereton – We are directed by the Attorney –General to prosecute.

Mr Coffey – Keep tranquil, if you please.   When the Attorney-General acts himself, the Crown are entitled to select whom they please, but when the Attorney-General does not act, the indictment is always opened by junior counsel.   It is a new practice to have the indictment opened by gentlemen of the Inner Bar.

Mr Brereton – I have been acting on it for ten years.

Mr Coffey – More shame on you (laughter).

His Lordship – For my part I think it is very desirable to have a junior barrister engaged in the case. 

Mr Heron QC (intervening) – The old rule was that junior counsels opened every indictment, in the same way as pleadings were opened in the civil side of the court.

Mr Coffey – Mr Exham was always the junior counsel for the Post-office, but he now belongs to the Inner Bar.

His Lordship –  My own experience is that it is the practice always of junior counsel to open the indictment, and I do not understand why that practice should be departed from now.  I do not think it right for Queen’s Counsel to interfere with the practice of the junior bar.

Mr Clarke – The Post-office and the public are protected by arrangements of a complicated and technical nature which must necessarily be kept secret, and the same staff of counsel entrusted with them.   If, on the promotion of each junior counsel to the inner bar, the Post-office were to appoint another junior, there is no saying how many counsel they would have.  In the course of time, every QC would hold a brief for the Post-Office – forming a long line of silk gowns with a stuff one at the end for ornament (laughter).  

His Lordship – I have no hesitation in saying that I believe the notion that there is a code of special signals, such as exists upon the high seas, in the Post-Office, which it should be locked up in the breast of certain special counsel is a wild a delusion as ever was entertained (laughter). I will not allow a record to be opened without junior counsel being in the case, and I do not see why a public department should not comply with the same rules that a private individual is obliged to comply with.  When I was Attorney-General I always respected the privilege of the Bar.

After some further conversation, his Lordship stated that he would confer with the Chief Justice on the subject of Mr Coffey’s objection, which was an important one, and he would also consult with the Attorney General on the subject.”

What fresh hell for juniors was this? Had the inner bar been rendered desperate for business by the Famine?  In fact, inroads on junior privilege had started as early as the 1830s, due to a decline in High Court business attributable to an extension of the jurisdiction of the County Courts and a corresponding reduction in the number of cases.

The first evidence of tension regarding such incursions came in 1836, when the Master of the Rolls refused to allow a motion of course to be moved by Mr Martley KC, saying that to allow members of the inner bar to move such motions would be a breach of a long course of usage and invariable practice exclusively allocating them to members of the junior bar.  According to the Dublin Register, the Master went further and pointedly remarked that when gentlemen thought proper to accept silk gowns they should not receive any such motions.

The next day Mr Martley appeared again in the Rolls Court to complain about the latter part of the Register’s report as a gross misrepresentation and as having placed him in a very false and invidious position with respect of the outer bar, having regard to the fact that he had specifically asked the Master, at the outset, whether it was appropriate for him to proceed. The Master of the Rolls tactfully replied that Mr Martley was entitled to the most marked expression of approbation for the manner in which he had originated the question and for the manly, disinterested and honourable anxiety he had manifested to protect privileges of the outer bar, and the Register subsequently published an apology.

Not all QC’s took to heart the views of the Master of the Rolls regarding motions of course being moved by juniors only.  In June 1842, the Dublin Register again reported that

“The Lord Chief Justice [of the Queen’s Bench] refused the other day to hear Mr Brewster make a motion of course, which should, by right, have been made by a member of the outer bar.  His lordship observed that he could not sanction silk gownsmen making those motions which properly belonged to the junior branch of the profession.  Mr Hatchell came on the following day to make a similar motion, and Mr Justice Crampton, acting upon the preceded given by the Chief Justice refused to hear him.  We trust that the other two courts, particularly the Exchequer, where so much junior business is done by Queen’s Counsel, will following the example set by the Queen’s Bench.”

The above provoked a January 1843 letter in the Freeman’s Journal from ‘A Goer of the Hall Circuit’ warning of the impending evil caused to junior barristers by QC’s taking to themselves the business of the outer bar, and stating that “[t]he late Master of the Rolls of revered memory never allowed such practice in his courts.”

By 1853, members of the outer bar were openly objecting to such conduct.   When Mr Hickson QC applied to the Court of Common Pleas in November of that year for an order for substitute service in respect of a case pending in that court, he was immediately interrupted by Mr Duggan BL, who stated that he believed that the application making by his learned friend was of a class which the practice of the profession assigned exclusively to the junior bar.  When the Chief Justice joined his voice to that of Mr Duggan to remark that it was certainly an outer bar motion, Mr Hickson said that he would be very sorry to encroach on the privileges of the junior bar, and withdrew without pressing the question.

The judiciary was commendably trenchant in its defence of junior privilege.   When, in 1855, it transpired in that no junior counsel had been engaged although the name of a junior appeared on the pleadings, the Court of Exchequer, previously lax about recognising junior privilege, accepted that the practice of the court rendered it the duty of solicitors to engage a junior and that it was the undoubted right of the juniors to insist on this practice being upheld.  The case was adjourned until a junior counsel could be engaged.

Absence of a QC, on the other hand, did not preclude a case from proceeding – just as well, as Queen’s Counsel were all too frequently occupied with cases in other courts.  Indeed, the judiciary was not merely understanding, but encouraging, to any member of the Junior Bar proceeding in the absence of a leader.  In June 1856, when a junior apologised to the Court of King’s Bench for proceeding in the absence of senior, Lord Chief Justice Lefroy pointedly remarked that he was always pleased at finding the members of the junior bar afforded the opportunity of displaying their abilities, and he could say that their ability, learning and judgment reflected great credit on them.

Despite these efforts, however, the incursions continued.  In June 1858, the Belfast Newsletter reported that there were rumours of the probability of a meeting of the junior bar being held shortly for the purpose of considering the serious professional evil of encroachments by the ‘silk gowns’ on ‘junior business,’ something which had grown to the extent that the Lord Chancellor was requiring new silks to give a pledge that they would not transact such business.

The rule, that QCs could not sign pleadings without juniors, formally adopted by an 1864 resolution of the Bar of Ireland, provided additional assistance to members of the outer bar, but did not cover them against a situation where a newly appointed QC sought to hang on to existing cases as a second senior, without having a junior appointed in his stead.

In Kerans v McCamish (1873) 7 ILTR 73, a case stated for the opinion of the Court of Exchequer, counsel for the appellant, Mr Teeling BL, asserted, relying on Lefanu v Malcolmson 8 Ir LR 418, 423, that neither of the two QCs instructed for the respondent, could engage in law argument without a junior. Baron Dowse agreed, saying that, in Westminster Hall, a junior counsel would be required in such a case, and he did not see why a different rule should prevail in Ireland, particularly where the respondent (Dublin Corporation) was well able to afford a junior.  The case was adjourned for a junior to be appointed.

The same situation occurred in Provincial Bank of Ireland v Cronin in March 1907, when a case had to be adjourned due to the unnamed KC for the plaintiff being otherwise engaged and no Junior having been retained, the present KC having been junior in the same capacity until his recent call to the inner bar.  While expressing his emphatic disapproval of such a course of conduct, Mr Justice Barton did not go to far as to assert a breach of outer bar privilege.   With the advent of the 20th century, the absolute rule against appearing at trial without a junior to open the pleadings or indictment was now breaking down.

The same applied to the previously absolute rule that seniors could not move motions without juniors. In January 1912 an attempt was made to oppose the moving of a taxation motion by Mr Leech QC on the basis that, although there was no formal rule of the Bar on this matter, there was never a motion in which there was not a junior counsel.  Mr Leech’s response was that, although there was no doubt whatever that there was a rule of the Bar that KCs could not sign pleadings without junior, the rule that they could not appear at the hearing of the matter without junior had never been made the subject of a formal Bar resolution and was no longer being asserted as a rule of practice. 

Though no longer an absolute rule, the appearance of a member of the inner bar in a High Court action or motion without junior remained and continues to remain extremely unusual.  Moreover, by the early 20th century, the Irish junior bar, wisely not putting all their eggs in one basket in relation to potential work, had managed to wrestle from attorneys most if not all of the business in the County Courts, thereby guaranteeing themselves an alternative source of work to compensate for those cases in which senior might rudely proceed without them.  More on this parallel campaign by the junior bar to come!

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