12 Aug 2022

Lawyers accused of misleading the court to stop the deportation of Polish criminal

A High Court judge will rule at a later date if any further steps are to be taken in respect of two lawyers accused of misleading the court in an effort to stop the deportation of a Polish criminal they represented. 

Mr Justice David Keane, in a recent judgment, said the lawyers and their client, Thomas Bebenek, had used litigation as a “strategy or tactic” to delay his deportation for long enough so that authorities would have to make a new deportation order which could again be challenged in the courts. 

He said the lawyers, a solicitor and a barrister, failed to properly inform the court of the relevant law concerning the case as was their obligation as officers of the court, particularly in a complex area such as immigration law. 

The matter returned before the judge on Wednesday when the Judge heard submissions from the two lawyer's legal representatives on issues and questions raised by the judge in regards to the lawyer's conduct.

Among the options being considered by the Judge is whether to refer the matters to the lawyer's respective regulatory bodies. the Law Society, and the Bar Council.  

Patrick Leonard SC, appearing with Joe Jeffers Bl, for the solicitor told the court there had been "a system's failure" within the solicitor's then practice.  

Steps had been taken by the solicitor to address these failures and a consultant had several recommendations, which counsel said his client will be complying with, to ensure there was no repeat of what had occurred.  

There was no intention to mislead the court in the matter, it was submitted. 

Eileen Barrington SC for the barrister said that court should not take the case any further. 

Her client, who at the time was in his second year at the bar, has accepted that a mistake was made and had apologised to the court. 

The matter should be let lie, counsel submitted. 

Following the conclusion of submissions, Mr Justice Keane, said he was reserving his decision. 

In his judgment, Mr Justice Keane ordered Bebenek's solicitor to personally reimburse the State’s legal costs because there had been “gross negligence” on behalf of Bebenek’s lawyers.

In March 2016 Bebenek's solicitor made an urgent ex-parte application to the High Court to prevent Bebenek's deportation from the state.

Bebenek was to be deported due to his previous convictions, including for theft and misuse of drugs.

He received notification of his deportation in June 2015 while he was serving an 18-month prison sentence for theft. 

However, Bebenek’s lawyers waited until March 16th, 2016, the same day he was due to be released from prison and deported, to apply for a stay on the deportation order to Mr Justice Max Barrett.

Mr Justice Barrett had granted a stay. 

However, Mr Justice Keane said Mr Justice Barrett would not have done so if he had been told the full facts. 

Mr Justice Keane said Bebenek had claimed the Minister for Justice had failed to outline the reasons when ordering his deportation.

The reasons were sent to Bebenek when he got the order.

The solicitor failed to tell the court during the ex-parte application that Bebenek was in jail, had previous convictions and did not credibly explained why the application was being made nine months after the Minister’s order, Mr Justice Keane said.

In a subsequent hearing, the barrister representing Bebenek repeated that no reasons or arguments were included with the Minister’s order. 

Mr Justice Keane said this was misleading.

Following the stay and his release from prison, Bebenek disappeared and could not be located by gardaí. Last November the judge heard Bebenek had returned to Poland on his own, rendering the action moot.

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