Section 35 Injunctions: Enforcing Barristers’ Professional Indemnity Insurance Despite EU Free-Movement Arguments

1. Introduction

This decision concerns the Legal Services Regulatory Authority’s (“LSRA”) first application for orders under s. 35 of the Legal Services Regulation Act 2015. The respondent, an Irish-qualified barrister on the roll of practising barristers, ceased renewing the usual Irish market professional indemnity insurance policy and sought instead to rely on a policy associated with the Brussels Bar (the “Brussels Bar policy”), contending that it covered his practice across EU Member States and that the LSRA’s insistence on an Irish-compliant policy breached EU free-movement rights.

The core dispute was therefore not disciplinary (Part 6 of the 2015 Act) but regulatory and preventative: whether the High Court should grant statutory injunctive relief to prohibit the respondent from providing legal services in the State (or holding himself out as entitled to do so) unless and until he had an approved professional indemnity insurance policy compliant with the 2015 Act and the 2024 Regulations.

2. Summary of the Judgment

• Orders granted under s. 35: The Court granted the LSRA the prohibitory and production orders sought, on the basis that the respondent was likely to contravene s. 46(1) of the 2015 Act and Part IV of the 2024 Regulations if he practised in Ireland without compliant cover.
• Interpretation of the Brussels Bar policy: On its proper interpretation, it was not intended to cover (and did not cover) legal services provided by the respondent as an Irish barrister in Ireland.
• Non-compliance with 2024 Regulations: The Brussels Bar policy also failed to satisfy specific regulatory requirements (including Regulation 12(1) and aspects of Regulation 14).
• EU law arguments rejected: The Court held the respondent fundamentally misunderstood EU free-movement law as applied to his circumstances. In providing legal services in Ireland as an Irish barrister, he was not exercising Treaty rights of establishment or services in a way that displaced domestic insurance rules.
• Procedure upheld: The matter was appropriately brought by originating notice of motion (Order 53D and Order 84B RSC) and resolved on affidavit evidence; no factual dispute required plenary proceedings.
• Relationship with misconduct complaint: A pending complaint of misconduct did not preclude s. 35 relief; an order under s. 35 is not itself a finding of “misconduct” under Part 6.
• Temporal scope: Orders were made to last until 5pm on 11 June 2026, with an intention to make them permanent upon delivery of the full judgment unless and until compliant insurance was put in place.
• Costs: Provisional view that the LSRA, having been entirely successful, should obtain costs under s. 169(1), subject to submissions.

3. Analysis

3.1 Precedents Cited

The decision note does not identify any Irish or EU cases by title. It records that the respondent relied on “many cases” including “several judgments of the CJEU”, but the judgment note does not name them and the Court regarded them as not bearing on the respondent’s circumstances.

Accordingly, the decision’s determinative influences were:

• the text and purpose of s. 35 and s. 46(1) of the 2015 Act;
• the detailed compliance architecture in the 2024 Regulations (notably Regulations 12 and 14);
• the structure and limits of the EU lawyers’ mobility framework (Directive 98/5/EC and Directive 77/249/EEC) and the “home/host” concepts embedded within them; and
• the Solvency II regime as it intersects with minimum insurer authorisation/registration requirements referenced by Regulation 12(1).

3.2 Legal Reasoning

(a) Section 35 as a distinct, civil, preventative remedy

The Court emphasised that s. 35 creates a statutory form of injunction: a civil order “to prohibit contravention” of the Act or regulations, even where contravention may also constitute an offence. This is doctrinally important in three ways:

• Regulatory immediacy: It equips the LSRA to prevent ongoing or imminent non-compliance without waiting for criminal prosecution (s. 36) or the slower disciplinary track (Part 6).
• Lower threshold than discipline: The Court focused on whether the respondent “has contravened, is contravening or is likely to contravene” (s. 35(1)(a)), not on adjudicating “misconduct” under s. 50.
• Public protection rationale: The Court treated compliant professional indemnity insurance as a non-negotiable safeguard for clients and the public, aligning s. 35 relief with the Act’s protective purpose.

(b) Status: the respondent remained an Irish “practising barrister”

The LSRA’s jurisdictional premise required the respondent to fall within the Act’s definitions (legal practitioner, qualifying barrister, practising barrister). The Court accepted that he did. Even assuming he had taken steps to establish himself in Belgium, he remained entered on the Irish roll of practising barristers, and he was providing (and intended to continue providing) legal services in Ireland as an Irish barrister.

(c) Policy interpretation: territorial scope and the absence of confirmation

A central factual-legal issue was the proper interpretation of the Brussels Bar policy, including an “Article 9” addressing geographical/territorial scope. The Court preferred the LSRA’s reading and found it “very telling” that neither the Brussels Bar, nor brokers, nor insurers would provide express confirmation that the policy covered Irish legal practice by a person practising under an Irish title in Ireland. That absence of confirmation reinforced the Court’s conclusion that the policy was not intended to perform that function.

(d) Regulatory non-compliance beyond territorial scope: Regulations 12 and 14

Independently of territorial scope, the Court found the Brussels Bar policy failed to comply with elements of the 2024 Regulations:

• Regulation 12(1): One co-insurer (MSIG) met the minimum financial/authorisation requirements and was registered with the Central Bank of Ireland for Solvency II passporting purposes; the other co-insurer (KBC) did not appear on relevant registers and there was no evidence it had exercised any right to transact business in Ireland. The Court stressed that any such passporting/market access right is the insurer’s right, not the insured barrister’s to assert on the insurer’s behalf.
• Regulation 14: The Court concluded the policy “may not comply” with Regulation 14(a) and did not comply with Regulation 14(b)–(d) (with fuller reasoning deferred to the forthcoming full judgment).

(e) EU free-movement arguments: home/host logic and mischaracterisation of activity

The Court’s EU law reasoning is the decision’s most precedent-setting element for future disputes of this type. The Court held:

• Home Member State is Ireland; host is Belgium: For Directive 98/5/EC and the European Community’s (Lawyers’ Establishment) Regulations 2003 (S.I. No. 732 of 2003), the respondent’s “Home Member State” was Ireland and “Host Member State” Belgium. The same alignment applied under Directive 77/249/EEC and the European Communities (Freedom to Provide Services) (Lawyers) Regulations 1979 (S.I. No. 58 of 1979).
• Practising in Ireland as an Irish barrister is not “EU mobility” practice: When providing legal services in Ireland under the Irish professional title (without having acquired Belgian professional title by the Directive mechanisms), the respondent was not acting as a “visiting lawyer” or “registered lawyer” under the relevant Irish implementing regulations. He was simply practising domestically.
• No basis to disapply domestic regulations: Because the respondent’s factual situation did not engage EU free-movement rights in the asserted way, there was no foundation to disapply the 2024 Regulations (or the implementing regulations for the Directives).
• Even on an alternative hypothesis, domestic insurance requirements would still apply: The Court added that even if EU rights were engaged, the LSRA could still require compliance with professional rules on insurance, consistent with Article 6 of Directive 98/5/EC / Regulation 6 of the 2003 Regulations and Article 4 of Directive 77/249/EEC / Regulation 5 of the 1979 Regulations, and on a non-discriminatory basis.

(f) Procedural route: motion proceedings were appropriate

The Court rejected the argument that s. 35 relief could not be determined in the procedure used. The LSRA proceeded by originating notice of motion and affidavit evidence under the relevant Rules of the Superior Courts provisions. The Court found no material factual disputes requiring cross-examination or plenary hearing; the issues were chiefly interpretive (statute/regulations and insurance policy terms).

(g) Parallel disciplinary process does not bar s. 35 relief

A significant clarification is the Court’s separation of:

• s. 35 injunctive relief (preventative, protective, directed to contravention/likely contravention); and
• Part 6 complaints (adjudicative determination of “misconduct” per s. 50 with statutory procedures).

The Court confirmed that the existence of a pending complaint did not deprive the Court of jurisdiction to grant s. 35 orders and that granting them did not constitute a misconduct finding.

3.3 Impact

4. Complex Concepts Simplified

• What is a “s. 35 order”?
  A court order (similar to an injunction) that stops a person from breaching the Act or regulations. It is civil and preventative: it aims to stop non-compliance now or in the near future.
• Why does professional indemnity insurance matter?
  It ensures that if a client suffers loss due to professional negligence, there is a solvent insurer behind the practitioner to meet valid claims (subject to policy terms). The regulations specify minimum features the policy must have.
• What are “home” and “host” Member States for lawyers?
  Under EU lawyers’ mobility rules, a lawyer’s home state is where they obtained their professional title; a host state is where they seek to practise using EU mobility frameworks. Practising in the home state under the home title is domestic practice, not “host state” practice.
• What is “disapplication”?
  It is the setting aside of a national rule because it conflicts with superior EU law in a way that is relevant to the facts. The Court held there was no basis to disapply the Irish regulations here.
• What is the Solvency II point in plain terms?
  Insurers can sometimes sell insurance cross-border if they are authorised and have taken required steps to passport/register. If a co-insurer has not done so (on the evidence), the policy may fail regulatory requirements. The insured cannot simply claim the insurer “could have” done it.

5. Conclusion

The High Court’s decision in The Legal Services Regulatory Authority v Sallabi (Approved) [2026] IEHC 334 establishes a clear operational precedent for s. 35 as an effective, standalone enforcement mechanism to protect the public by ensuring that barristers practising in Ireland have compliant professional indemnity insurance. The Court rejected an attempt to treat a foreign bar-associated policy and EU free-movement principles as a substitute for compliance with Irish regulatory requirements governing domestic practice. It also clarified that s. 35 relief is procedurally suitable for motion-based determination and is not displaced by the existence of parallel disciplinary complaints.