Month: February 2021

From the King’s County Chronicle, 5 March 1862, an impressive editorial diatribe against the then practice of Irish Queen’s Counsel accepting multiple briefs for the same day while asserting the right to retain all fees paid in advance, even where they failed, as a result, to appear in one or more of the case in which they had been briefed:

“We have repeatedly heard of complaints from the Bench of the usage which is prevalent among barristers to accept briefs with fees in cases which are to be heard in different courts, and may be called on at the same time.  Such a practice is not only injurious to the right administration of justice between the parties and disrespectful and slighting to the judges, but it is beyond doubt discreditable and immoral in those barristers who adopt it; moreover, it is beyond doubt fraudulent and dishonest towards the clients whose cash they have accepted upon the understanding and undertaking that they shall attend and advocate their causes which at hearing in court.

 At the Irish Bar, the evil has become a vexatious and mischievous nuisance, which is disingenuously preserved and committed by several leading members of the profession; in England, this is not so much the practice, because the common law and equity bar are each composed of different members of the profession; but the gentlemen of the Long Robe in Ireland act as if they were omnipresent and omniscient, and do not confine themselves to any one branch of the profession, to any court of law or equity, or even to all the tribunals at the Four Courts.  They are not only looking for and ready to take fees in all the High Courts, but also in the Landed Estates, in the Bankruptcy and Insolvency, in the Probate, and Consistorial, in the Admiralty courts, or even at the Green Street Sessions, or the Pol ice Offices; before all these tribunals the Irish Barrister is prepared to appear; all required to secure him is the honorarium which is the Latin designation to distinguish the guineas given to the Barristers from the six and eight penny costs, exacted by the attorney; an Irish practising Barrister is prepared to accept fees for cases in all these courts, with an implied understanding that he will give his time and personal advocacy to the clients retaining him, whilst he is himself perfectly aware that he will not or may not keep his engagement, because he cannot do so without breaking other engagements.

We have been induced to offer these remarks, because we know them to be called for, and further because of the like nonfeasance having occurred in a case recently tried, the parties in which reside in the King’s County.  The case referred to is Davis v Davis, it was an action for alleged slander spoken at the Parsonstown Quarter Sessions; it appeared that the defendant by an oversight in the pleadings was precluded from relying for his defence on the fact that these words were spoken on a trial in a court of justice, and that they were pertinent to the issue therein depending; but the defendant’s attorney had retained two eminent Queen’s Counsel, with whom a Junior was allocated, but when the trial came on both the Queen’s Counsel were absent until its termination, and took no active part in it, both of them being engaged in other cases in other courts, then at hearing.  That their presence should not have altered the event is no excuse if it be alleged, but we do think that both those learned gentlemen are in honour and honestly bound not only to return their fees, but to indemnify their client from the possible losses which their breach of contract may have occasioned.

This is a long existing practice by the leading practitioners of the Irish Bar by which many confiding clients have been injured; and not a few ruined, it is high time for the judges to take measures that every client retaining and paying counsel shall not be abandoned.  This practice is as derogatory to the reputation of the profession as it is averse to the fair administration of justice.”

Powerful stuff, which resulted in the following letter to the Chronicle from none other than the successful plaintiff’s solicitor:

“Having been present on this trial on behalf of the plaintiff, I can state what then occurred afforded rather an illustration of a defendant extricated from a serious dilemma with a comparatively small loss, by the prudence of his professional advisers, than of injuries sustained by suitors through any malpractice of the bar.   The defendant, having accused the plaintiff in the public court of Quarter Sessions, at Birr, of having robbed a certain chest, instead of offering any amends when an action was brought against him, he alleged in his defence that he was justified in what he said inasmuch as his charge was true.  On the trial of case, however the plaintiff, who was ably cross-examined completely disproved the charge, and the defendant’s counsel having no defence and to save him from a verdict with heavy damages, expressed his regret for ever having made such imputation, and undertook that he would pay all the costs. 

The defendant, it is true, when his defence of justification had wholly failed, was not permitted to resort to another and totally different defence, that the language had been used by him on  privileged occasion, but even had such further pleading been then received, contrary to all precedent, it would have only affected the result by preventing the defendant from getting any favour, and thus have made him liable for damages as well as costs, for plaintiff’s counsel were prepared to show, if necessary, that the facts of this case afforded neither grounds nor pretence for relying on a plea of privilege. 

William A Cooke.”

Somewhat embarrassingly for Mr Cooke, the King’s County Chronicle published his letter with the following response immediately below:

“Mr Cooke has, in the above communication, raised an issue which we entirely avoided in the article referred to by him.  We confined our remarks to animadversions on careless and bad pleading, and the non-attendance of counsel retained at the hearing of the case in court.  We did not enter into the merits of the case, and, therefore Mr Cooke is unnecessarily reviving the contest in which he had already gained a victory as the attorney of the suit of the successful litigant. THE EDITOR”

Difficult to disagree!  Surely a client who retains counsel is entitled to expect that such counsel would make reasonable efforts to attend – or at least, if precluded from attending, that they would return any fees paid in advance!

So we might now think – but to mid-19^th century judges who had themselves benefited from this practice as Queen’s Counsel, the answer was a little less obvious…

More to come!

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From the Irish Independent, 8 December 1934:

“Mr PJ McEnery, the well-known Dublin barrister, who has appeared for the State in recent cases tried by the Military Tribunal, was the victim of a startling affair last night.  While on his way from the Courts to his home at Killiney, Dublin, he was kidnapped by armed men, who forced him into a waiting taxicab.  He was driven back to the city and subsequently was discovered chained to the railings near Arbour Hill Prison.  Tar had been placed upon his head and he was suffering severely from shock.

Fastened around Mr McEnery’s neck and hanging on his breast was a tin plate, on which had been printed reports of various cases in which he had prosecuted before the Tribunal.  The men said that his conduct of these cases had met with the disapproval of the Irish Republican Army.  His kidnappers also told him that his conduct in the cases had not been considered proper by the I.R.A., and that they were acting under orders.  Mr McEnery was not long in this uncomfortable position.  Passers-by quickly cut the chains that bound him to the railings.

Interviewed by an Irish Independent representative last night at his home ‘The Hollies,’ Mr McEnery, whose head and spectacles still bore traces of the tar, gave a graphic description of the kidnapping. 

‘I was on my way home from the Law Courts this evening,’ he said, ‘and alighted from the train at Killiney Station about 5.45.  I proceeded to walk home and heard footsteps behind me.  I looked around and saw two men, who were apparently strangers in the district, following me.  I became rather suspicious and quickened my pace.  The men also walked faster.  I had passed the old Churchyard, and before I came to the next lamp on the road the men caught up on me.  They pounced on me, knocked off my hat and one of them who had a revolver threatened to shoot me if I made any noise.  They made me walk along the road with them and again repeated the threat. 

When we got to a by-way leading off the main road I was forced to walk down to where a taxi was waiting.   I saw there were two other men in the taxi, sitting in front of it.  The man beside the driver had a revolver.  I was bundled into the back of the taxicab by the two men who had accompanied me up the road.  When I was inside the taxi they put a tin plate around my body, inscribed ‘McEnery, the felon setter.’  The taxi then went off, up Killiney Hill, and went by a circuitous route through Ballsbridge, to Arbour Hill.’

‘In the taxi,’ continued Mr McEnery, “the men told me that they were acting under the orders of the IRA, and that they were prosecuting me for my action in conducting the recent Toomevara Courtmartial case before the Military Tribunal.  Near Arbour Hill Church I was taken out of the taxi, handcuffed and chained to the church railings.  The men then affixed a card around my neck and poured tar over my head.  I noticed that the place was rather deserted at the time, and after I had been chained to the railings the men got into the taxi and made off.    About 3 or 4 minutes later, after several people had passed me without taking any notice of my predicament, a man came up who procured assistance and eventually I was released.  I was taken to Arbour Hill Barracks… where the tar was cleaned from my person and I was later driven to my home in Killiney.’

‘I should mention,’ he added, ‘that the men told me in the taxi that my conduct as Counsel for the State in connection with certain cases against members of the I.R.A was not considered to be proper. I informed them that I did my work to the best of my ability, and was prepared to do my duty as counsel for the prosecution.  They told me they were acting under orders, and they behaved as courteously as they could towards me in the circumstances.’

Mr McEnery, though somewhat agitated after his ordeal, was apparently none the worse physically when speaking to our representative. He is 32 years of age and married. His wife is at present in the country.”

Subsequently, John Kelly, of Cork Street, Dublin, was charged before the Military Tribunal in Collins Barracks with offences arising from the above incident.  However, as Mr McEnery could not identify the accused’s voice, the Tribunal found that there was little point in proceeding and the accused was discharged.

It would be very interesting to have more detail on the future career of Mr McEnery, from Knocktopher, County Kilkenny.  He took silk before he was 40, but left to practice in England in 1947.  Two autobiographical memoirs, Look Back in Love and Glimpses in Retrospect, are with the UCD Archives. 

Poor Mr McEnery – at least his spectacles, if not his composure, survived the above ordeal undamaged! The period following the establishment of the Irish Free State was without doubt a challenging time, not merely for the new legal system but also, it seems, for those working within it!

From the Belfast News-Letter, 11 December 1923:

“SCENE IN DUBLIN HOTEL – LONDON BARRISTER THOUGHT DETECTIVES WERE GUNMEN

Described as a barrister, Frederick Ritters, London, was in the Dublin police courts yesterday charged with obstructing two detectives in the execution of their duty.

The two detectives were about to make an arrest in the dining room of the Royal Hibernian Hotel, Dawson Street, Dublin, when Ritter, it is alleged, went over and tried to prevent them from doing so.

Defendant, in court, said he thought the two detectives were gunmen, and that he and the man they were interrogating were going to be taken out and shot. He claimed he had a perfect right to ascertain who the two men were. They refused to show their warrant.

In reply to Mr Collins, the magistrate, defendant said he was a landholder in Ireland, but had no residence in the country.

Mr Collins – You are fined £3, and you have until four o’clock to pay.

Defendant (in surprise) – What! Fined £3 for defending my life!

Mr Collins – Yes, and you are lucky to get off so easy.”

Mr Ritter, who was indeed a barrister, with Londonderry connections on the maternal side, was probably over in Dublin for the hearing of a partnership case involving the Erne Fisheries, in which he was one of the plaintiffs.

A contemporaneous report in the Belfast Telegraph states that Mr Ritter had caught one of the detectives by the collar of their coat, saying ‘You are not going to bring that man out of here,’ and that he subsequently said to the man in custody, ‘Let us get a mallet and make a fight for it.’ It also quotes Mr Ritter as follows: ‘I thought we were going to be taken out and shot, and that it was a political matter. I had a perfect right to ascertain who the men were. I thought I was defending my life. I was excited, because I was convinced I was going to be shot.’

Not everyone agreed with the fine imposed on Mr Ritter. The Weekly Freeman’s Journal of 15 December 1923 carried a strong letter of protest entitled ‘Playing a Man’s Part.’ It complained about ‘the salutary awe of the police with which our countrymen would appear to be thoroughly infused,’ and expressed gratification that, though England might be torpid in the pursuit of principle, there yet lingered in the hearts of her sons a little common old fashioned courage.

The letter may have been written by an Anti-Treatyite, or maybe even by Mr Ritter himself, who was certainly far from torpid in opposing any perceived unlawful exercise of authority. In June 1906, when a Surrey policeman had attempted to stop Mrs Ritter from cycling without lights, Mr Ritter had ridden straight at him and shouted out, “I dare you to stop those ladies, you beast. You have no right and you know you have no right.” He then shouted to Mrs Ritter to cycle on, which she did – an impressive display of wifely obedience sadly not enough to save the marriage, which ended in 1912.

There seems to be a remarkable similarity between the two incidents, but it’s also possible that Mr Ritter was genuinely confused as to what exactly was going on in the Hibernian Hotel. December 1923 was less than two years after the establishment of the Irish Free State, which had of course resulted in a Civil War then only barely at an end.

Political transitions can be difficult for everyone!

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