Mallon v Minister for Justice [2025] IEHC 125: Barrister Direct Access in Contentious Matters

By Shane Griffin, Founder – BL Digital Studio

In Ireland, direct access to a barrister stops where litigation starts — once proceedings issue, a solicitor must take over carriage of the case.

Executive Summary

The High Court's decision in Mallon v Minister for Justice & Ors [2025] IEHC 125 (Stack J., delivered 4 March 2025) confirms that Irish barristers cannot take direct instructions in contentious matters and that, where a litigant wishes to be represented in the High Court, representation must be via a solicitor in accordance with the Rules of the Superior Courts. The judgment sits alongside Section 101 of the Legal Services Regulation Act 2015, the LSRA's Code of Practice, and the Bar of Ireland's Code of Conduct.

Case Background and Context

Factual Matrix. Mr Mallon sought to have a practising barrister, Ms Eugenie Houston BL, represent him directly in High Court proceedings without a solicitor. The Court refused the application. The Legal Services Regulatory Authority, King's Inns, and the Law Society featured in the proceedings context reported by practitioners' media.

Procedural Significance. Mallon is the first comprehensive High Court treatment of how Section 101 LSRA, the LSRA Code of Practice, and the Rules of the Superior Courts interact on direct access in live litigation.

Legal Framework

Section 101 LSRA 2015

Section 101 permits direct access to a barrister only in non-contentious matters and prevents professional codes from prohibiting such non-contentious direct access. It does not authorise direct access in contentious matters.

Definition of "Contentious Matter" (Section 99 LSRA)

A "contentious matter" is defined as a matter arising in, and relating to the subject of, proceedings before a court or other adjudicative body where legal rights and obligations of two or more parties are determined and to which the instructing person is a party. This is the bright line between advisory work and live disputes.

Codes of Practice

• LSRA Code of Practice reiterates that in contentious matters a practising barrister shall not take instructions directly; direct access is limited to non-contentious work.
• Bar of Ireland Code of Conduct (Rule 3.6) allows direct instructions in non-contentious matters but requires a solicitor once the matter becomes contentious, with clear limits on drafting formal documents and dealing with third parties.

The High Court's Key Findings

1. RSC require solicitor representation where a litigant is represented. Stack J held that if a litigant wishes representation, it must be via a solicitor; the RSC provisions on issuing originating process and entering appearances support that position.
2. Precedent of Bond v Dunne remains binding. The Court considered itself bound by Bond v Dunne [2018] 2 I.R. 225, which affirms that only solicitors may have carriage of High Court proceedings on behalf of clients.
3. Supervisory role of the Court over solicitors. The Court distinguished solicitors as officers of the court subject to direct supervision, a material factor in litigation management and consumer protection. Reporting on the case underscores this point.
4. EU law arguments did not assist. Case reports indicate the position advanced and accepted was that the dispute about domestic rights of audience and carriage was internal to the State and outside the scope of EU law. Phrase any EU-law conclusions carefully and anchor them to the judgment context.

Insurance and Risk

Commentary on the case notes the Court queried whether a barrister, acting without a solicitor, had professional indemnity insurance that truly covered the full scope of services associated with carriage of litigation. This concern was one factor among several, not the sole basis for refusal.

Practical Guidance

What barristers can do via direct access (non-contentious)

• Legal opinions and advisory work
• Document and contract review
• Compliance guidance and risk assessment
• Policy and legislative interpretation
• Pre-dispute strategy where no proceedings are on foot

All of the above fit within Section 101 and the codes when there are no live proceedings and no functions reserved to solicitors by the RSC.

What requires a solicitor once matters are contentious

• Having carriage of proceedings
• Issuing originating process and entering appearances
• Court advocacy on behalf of a represented litigant
• Procedural correspondence and dealings with third parties in the litigation

These are functions tied to the RSC and the solicitor's role as officer of the court.

Temporal boundary

A non-contentious instruction can become contentious once proceedings issue or a tribunal process engages the determination of legal rights and obligations between parties. At that point, a solicitor must be retained for the barrister to continue to provide litigation-related services.

For Clients and In-house Teams

Direct access to a barrister is suited to early advisory work. Once a dispute turns into proceedings, you must instruct a solicitor to manage the case and to brief counsel. This is not a mere formality. It is a structural safeguard recognised by the Court.

Bottom Line

• Section 101 LSRA enables direct barrister instructions only for non-contentious matters.
• The RSC and Bond v Dunne keep carriage of High Court litigation with solicitors.
• The LSRA and Bar of Ireland codes align with this position.
• Treat EU-law arguments with caution unless cross-border elements are present and clearly engaged.

This framework gives practitioners certainty and preserves consumer protection in litigation.