James O'Connor (Irish judge)

Sir James O'Connor, PC (1 April 1872 – 29 December 1931^[1][2]) was an Irish barrister and judge. He was appointed Solicitor-General for Ireland in 1914, and Attorney-General for Ireland in 1917. He served briefly as a High Court judge, then as a Lord Justice of the Irish Court of Appeal from 1918 to his enforced retirement in 1924. After a period of practice at the English Bar he returned to Ireland and was admitted to practice as a solicitor, a decision which caused some controversy, and involved a leading judgement on the standard of professional conduct to be expected of a retired judge.

Biography

He was born in Wexford, the third son of Michael O'Connor, senior partner with a long-established solicitors firm, and was educated at Blackrock College He married Mary Keogh in 1897^[3] He practised as a solicitor for a few years before being called to the Bar in 1900; he became King's Counsel in 1908. Within a few years he had built up a large practice and rose with remarkable speed: he was appointed Solicitor General at 42, Attorney General at 45 and a judge of the Court of Appeal at 46. He wrote a two volume work on Justices of the Peace (3rd edition 1925) which is still useful.

In January 1921, during the Irish War of Independence, Lord Justice O'Connor met informally in London with Sir Edward Carson and Father Michael O'Flanagan to discuss a peaceful solution to the conflict, but without success.^[4] Nearly a year later the Anglo-Irish Treaty was ratified by both sides.

His career was cut short by the Courts of Justice Act 1924 which abolished the High Court and Court of Appeal, and (with two exceptions^[5]) forced the judges of those Courts to retire, although they received generous compensation. Like many of his colleagues he moved to England, and was called to the Inner Bar there in 1925. Serious ill-health compelled him to give up practice. He returned to Ireland, where his health improved, at least in the short term, and his doctors advised him that return to legal practice would be beneficial to his health. He applied to be admitted (technically, re-admitted) as a solicitor, a move which caused controversy: in a landmark ruling, The Hon. Hugh Kennedy, S.C., the Chief Justice of the Irish Free State, held that, while in general such an application would be most improper, in the special circumstances O'Connor's application would be granted. He rejoined the family firm, but sadly the recovery in his health was short-lived and he died at 59.

In re O'Connor's Application

Lord Justice O'Connor is best remembered today for the crucial ruling on his application for admission to practice as a solicitor, in which the Chief Justice held that while the application would be granted, as a general rule for a senior judge to return to legal practice was contrary to public policy.^[6]The case began badly when O'Connor filed an 8 line affidavit which, remarkably, did not refer to his career as a judge at all. The Chief Justice made clear his disapproval of this conduct, required a further detailed affidavit and asked for the attendance of the Attorney General. The Attorney General's view was that "such a practice would open an avenue to corruption".

The tenor of Chief Justice Kennedy's judgment suggests that he agreed fully with the Attorney General. He noted that before the Act of Settlement 1701, some senior judges (like Sir Francis Pemberton) had returned to practice at the Bar. However, such conduct was unknown since 1701, and this, in his view, reflected the understanding that appointment to the Bench means that "the practice of law is abandoned forever". The reason he explained was that "if a man should step down from the privileged position of the Bench and throw off what is a sacred office to engage in the rough-and tumble of litigious contest....he will shake the authority of the judicial limb of Government, and mar the prestige of the Courts of Justice upon which the whole structure of the State must always lean. Moreover, a new way of scandal and corruption would be opened up."^[7]

However Kennedy found that special circumstances existed: notably that O'Connor had not wished to return to practice but had been forcibly retired from the Bench, and it was on medical advice that he was seeking an active profession. Kennedy was careful to state that he was certain that O'Connor had no improper motive; he granted the application on condition that O'Connor did not seek to appear in Court.

From Kennedy's diary^[8] it is clear he found the case difficult: he noted that there was a great deal of public interest, and that public opinion was generally against granting the application. He found, with relief, that his decision was greeted with general approval, the only dissenter being his Supreme Court colleague, Mr Justice Gerald Fitzgibbon, S.C., with whom his relations were always strained.

Reputation

Hogan^[9] suggests that both Kennedy's judgment in the case and his diary reveal his low personal and professional opinion of O'Connor. It is true that Kennedy had an extremely poor opinion of the pre-Independence judges as a whole, recommended their removal en bloc, and did not suggest O'Connor as one of the vey few exceptions. On the other hand, he spelt out clearly that O'Connor was free from any suggestion of corruption, and according to one report stated that his "return to the fold" would be a great honour.^[10]

Maurice Healy described him as a man of great ability, but who had no respect for the traditions of the Irish Bar: he was a failure as a Law Officer, but a good High Court judge and even better as an appeal judge.^[11]

References