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July-August 2024 33
Panning Fanning
By Michael Smith
R
ossa Fanning was born in 1976,
grew up in Leopardstown and
went to Blackrock College. He
attended University College
Dublin where he served as
Auditor of the fatulous UCD Law Society and
graduated top of his class, obtaining First
Class Honours both in his BCL degree in
1997 and a subsequent LL.M grounded in a
thesis on tedious civil procedure. He was
called to the Irish Bar in 1999 after
graduating from King’s Inns in solid first
place. He was the individual winner of The
Irish Times Debate in the same year. He
obtained a Fulbright Scholarship and a
University Fellowship to pursue a second
LL.M, at the University of Michigan, one of
the US’s top ten law schools, where he
graduated in 2000.
As a barrister, he was apprenticed,
No bleeding heart, he wouldn’t see
championing the underdog as too big a
deal. Village could find no reference to
Fanning undertaking any worthy work
‘pro bono’
‘devilled’, under David Barniville, currently
President of the High Court, a fellow
graduate Blackrock College, UCD Law and
King’s Inns; and a fellow tennis enthusiast
(Barniville’s father was a tennis
professional).
He was a college lecturer at UCD’s
Sutherland School of Law between 2001
and 2009, lecturing — entertainingly by all
accounts — in Constitutional Law and
Company Law; and is now adjunct full
professor there.
In the courts he became a Senior Counsel
in 2016. and is a bencher and member of
King’s Inns and the Bar Council.
He specialised in fractious commercial
cases including insolvency and
restructuring, commercial leases,
defamation, debt recovery, repossessions
and professional negligence.
As a stereotypical agent of late-stage
decadent capitalism, he typically fronted for
the banks, including AIB, KBC and Ulster
Bank and, latterly, vulture funds such as
Pepper, for whom he was counsel of choice.
As one barrister noted: these firms don’t
choose him because they like him, they
choose him because he wins. Indeed
another barrister said the ascent of Fanning
symptomises the demise of the old model
of the bar when smaller solicitor firms would
choose a wider range of barristers.
Now the dominance of big firms has led
to a few well regarded senior counsel
dominating the profession, particularly its
commercial component. We might call them
the ‘Arran Square Squad’ after the na
1990s tax-incentivised oce block which
houses many of them.
On his day Fanning is considered the most
effective commercial advocate in the
country: a pedantic designation for which
there is vicious, albeit quiet, competition.
Fanning’s particular expertise in
insolvency cases and business disputes
Rossa Fanning is Ireland’s most effective commercial
advocate but a poor agent for equality or the environment
or for replying to questions about ethics
POLITICS
34 July-August 2024
He was counsel for many high-profile
business figures including Denis O’Brien,
Dermot Desmond and Larry Goodman.
This galaxy of commercial defence meant
he was one of the three or four highest
earners, probably netting close to a million
euro annually.
Less venally he defended the Spiritans
Congregation of the Holy Spirit in a civil
action for damages in 2016. A month before
Fanning’s appointment Leo Varadkar told
the Dáil that the Government was
considering an inquiry “to allow us to
unearth what happened at Blackrock
College and indeed other Spiritan schools
– specifically, who knew what and how they
acted, if at all”. Though his time at Blackrock
post-dated the period of abuse it is
potentially somewhat compromising that
survivors have been told that a recently
compiled scoping report on the matter by a
senior counsel will be sent for review by the
Attorney General before it is distributed to
them, with no firm timeline as yet. matter.
Fanning has maintained a link with
Blackrock College, appearing in past pupils
versus present pupils debates as recently
as 2019. He did not reply to Village’s
question as to whether he would be recusing
himself from discussions and decisions
relating to the abuse of former pupils of
Blackrock College.
He developed a reputation as a straight
talker, a ferocious competitor and a
bruising, often brash opponent.
“He has this very aggressive style, like a
rottweiler, but it is quite vaudeville, almost
theatrical”, one florid barrister told the Irish
Times. In private he is said to be forensic but
arrogant though not unpleasant and
sometimes, like his sponsor Varadkar,
gauche. There’s a suspicion social skills
have been learnt. These may not be virtues
in dealing with politicians, politics or
coalitions though they have an enduring
appeal in conservative legal circles.
Several of Fanning’s devils, who
inevitably know him well, spoke well of his
treatment of them. He gives, and is returned,
loyalty.
Fanning can be endearingly hotheaded.
In 2021 he took to the Sunday Independent
to shield uninterviewed newly appointed
chief justice Donal O’Donnell against Shane
Ross, who had suggested that appointment
to such a job should somehow be preceded
by a job interview and who, not
uncoincidentally for Fanning, was no longer
a Minister.
Ross had persuasively argued against a
majority of lawyers on the Judicial
Appointments Council but had been
scandalously and improperly
outmanoeuvred. He was poisonously
assailed as a “petulant controversialist”;
angry “that his signature blend of vitriol and
grandstanding has had its wings clipped by
our legal system”; handicapped by the
“ostensible disadvantage of his ejection
from public life”. By contrast, Fanning
recognised the “conspicuous brilliance of
O’Donnell’s advocacy…the greatest
appellate and constitutional lawyer of his
generation [whose] formidable intellect is
more than evident from a canon of judgment
of unsurpassed quality”. It was an outing
for Fanning’s oleaginous side and an
opportunity to impress his judicial
superiors.
Ross’s considered riposte was that
“apoplexy is not an argument”.
Fanning is no radical and in June last year
he seemed more than comfortable
defending the Irish economic model at an
international conference on commercial
dispute resolution. Our economic success
was not “leprechaun economics”, he
soothed.
Following Leo Varadkar’s re-ascent to the
premiership in December 2022, Fanning
beat some more old-fashioned competition
to the role of Attorney General, the
Government’s legal adviser. He is said to
have wanted the job because he saw it as
public service, but his ego may also have
suggested he was the best man for the job.
In that capacity he is said to be less
remote from the day-to-day workings of the
oce than his predecessor, Paul Gallagher
and less likely to delegate work to
subordinates than Gallagher was. This is
possible because Fanning, like Gallagher,
has always had a ferocious appetite for
work. Personal involvement has made him
more popular with sta in the Attorney
General’s oce than his predecessor.
Shortly after his appointment he was
asked by the Government to justify its
adversarial legal strategy for dealing with
cases taken by individuals aected by
illegal nursing home charges and others
made him a ubiquitous force in many
prominent post-Celtic Tiger era cases. And
he was not found wanting on behalf of
Ireland’s largest liquidators and receivers.
Fanning’s orientation has not been as
champion of the underdog. No bleeding
heart, he wouldn’t see championing the
underdog as too big a deal. Village could
find no reference to Fanning undertaking
any worthy work ‘pro bono’. We asked for
him to cite any but received no reply.
Most notably, he represented KBC in its
action against Michael Anthony McGann to
repossess his farm; succeeding in evicting
McGann’s elderly siblings from the family
home in December 2018, triggering a
violent attack at the farm a week later by a
mob, three of whose members have since
been convicted for their roles in the incident
during which a dog was killed; agents of the
bank were brutally assaulted; and property
destroyed. In February 2020, Fanning got all
three of the McGanns arrested and
threatened with jail so that the bank could
sell up their family home and farm. The case
is analysed at page 8 of the current edition
of Village.
He has been the barrister for multinational
technology companies including Facebook
which he represented in five cases between
2019 and 2022, and Google. He represented
Twitter against a defamation action by the
Iona Institute’s Dr Angelo Bottone who
claimed it was responsible for defamatory
tweets. Fanning acted for the receivers of
Apollo House, which was occupied by
activists against homelessness. He was
counsel for Debenhams when they shafted
their Dublin workforce.
He represented golfer Rory McIlroy in
proceedings against his former
management company that were eventually
settled; and was MCD Productions’ barrister
when it sought to enforce a judgment
against Prince.
He obtained an €8.2 million judgment
against former Renault Ireland boss Bill
Cullen for his client Danske Bank in 2012,
before it left the jurisdiction. He represented
Michael Fingleton in a debt recovery case
taken by former employer Irish Nationwide
Building Society and Seán Quinn and two of
his sons in an action taken by Anglo Irish
Bank though he resigned while the case
was ongoing apparently due to a
professional conflict after a video showed
Seán’s nephew Peter indicating his
willingness to lie in court.
Fanning appeared in the Charlton Tribunal
on behalf of crime correspondent Paul
Williams and his employer, Independent
News and Media; and for Michael Lowry at
the Moriarty Tribunal and in a subsequent
judicial review taken by Lowry contesting
the tribunal’s rulings on costs.
On his day he is
considered the most
effective commercial
advocate in the country:
a designation for which
there is vicious, albeit
quiet, competition
July-August 2024 35
denied disability payments. Fanning
predictably concluded that the advice given
by his predecessors was “sound, accurate
and appropriate”. It was not a popular view.
Subsequently Fanning published 15
principles for litigation by the State and its
Lawyers. “Quite simply”, as he put it, “the
State should act in the public interest,
broadly construed, in pursuing litigation
and should consider this broader public
interest before taking certain procedural
steps in litigation”.
The principles state that, where litigation
is pursued, the range of issues in dispute
should be kept as narrow as possible.
The State should not require an applicant
to prove a matter which the State knows to
be true or which the applicant is likely to
succeed in proving at trial. This will assist
the court in determining the issue at hand
and will minimise the costs of the
proceedings.
Though Fanning loyally dressed it up as a
codification of existing practice, it was a
radical and creditable change.
He successfully defended the Presidential
Article 26 reference on the Judicial
Appointments Commission Bill in November
2023, after former Attorney General Senator
Michael McDowell had predicted its
unconstitutionality.
In February, his chutzpah propelled him
to personally front Ireland’s case against
Israel in the International Court of Justice,
telling it that Israel has committed “serious
breaches” of international law over many
decades and should face legal
consequences for its actions. Israel’s
response to the Hamas attack went beyond
what is “necessary and proportionate”,
Fanning told the UN’s top court in person.
He noted that Israel is annexing
Palestinian territory and has prevented
Palestinian people from exercising their
rights to self-determination. He is said to
have been supportive of Ireland’s
recognition of Palestine as a State.
He is said to have been more cautious
about Ireland joining South Africa’s case
In private he is said to
be forensic but arrogant
though not unpleasant
and sometimes, like his
sponsor Varadkar, gauche
Competitors; Fnning nd Murry
against Israel for genocide in its
bombardment of Gaza in response to the
October 2023 Hamas massacre.
His advice to Ministers about the care
referendums noted that there was legal
uncertainty over whether the word “strive”
would be more forceful than “endeavour” –
a word currently in use in a related article of
the Constitution.
He also claimed it was “dicult to predict
with certainty” how the Irish courts would
interpret the concept of “durable
relationships”. This definitively contradicted
the later assertions in the Dáil of Minister
Roderic O’Gorman.
After his advice on the agreed wording of
the referendums was strategically leaked,
Government made some attempt to shift
blame to the strictures of the Attorney
General’s advice but the media pack
decided Fanning’s advice had been more
appropriate than the line taken by
government. Strangely the only advice that
entered the public domain had been oered
by Fanning after the wording for the
referendums had been agreed. It is still not
clear what his view was on whether those
wordings were the most appropriate, or
what his strategic advice was. Fanning’s
internal advice was redacted from the
recently published records of the
interdepartmental process leading to the
referendum proposals.
A cleverer media might wonder at how the
Attorney did not advise the government to
run wordings of whatever it was they wanted
that had been drafted better, by him.
It was clear that, with the Department of
Finance, the Attorney General was keen to
ensure social rights did not constitute a
drain on the public purse.
The axis of conservative economics and
conservative legal advice is lethal to a
progressive agenda of government
interventionism and redistribution. In the
hands of the likes of Paul Gallagher, Leo
Varadkar, Paschal Donohoe and Fanning, the
chances for example of the Greens prevailing
with justiciable carbon emission targets or
measures that allow wide use of compulsory
purchase powers by government are slim.
Most advocates of social and environmental
rights don’t do hard-nosedness. Others, well
placed, do.
He is currently leading Ireland’s challenge
to the UK’s Legacy Act before the European
Court of Human Rights.
Advised by the Attorney General, the
Minister for Justice Helen McEntee obtained
a High Court order from Judge Alexander
Owens requiring telecommunications
service providers to retain certain data –
including user, trac and location data – for
a period of twelve months, for the purpose
of safeguarding the security of the State.
Judge Owens was obviously persuaded by
her arguments, which are not in the public
domain, for reasons of state security.
Tim McIntyre, also from The Sutherland
School of Law in UCD, argued: “you cannot
have a measure that is supposed to
authorise mass surveillance of the entire
population and be the basis for criminal
investigations and prosecutions for years to
come, where its foundation is so uncertain.
It is grossly irresponsible to do that”.
Fanning’s popularity at the bar has been
somewhat prejudiced by his edict,
36 July-August 2024
supported by the Chief Justice and others
on the Legal Services Regulatory Authority
Advisory Council, that junior counsel should
be required to give evidence of professional
quality, and more controversially of income,
before being nominated by them for
approval by the Government, as senior
counsel. An earlier system, dependent on
the Bar Council, had over-emphasised mere
length of service.
Fanning is a past chair of the selection
committee for the Ireland Davis Cup team
and was a rated player and coach during his
time in UCD. He is chair of the governing
committee of Fitzwilliam Lawn Tennis Club.
When permitted, he tweets tediously about
tennis.
Though his family background is Fine
Gael and his mother Vivienne White was a
party member in Dún Laoghaire for many
years, Fanning is not a member of a political
party. He attended the infamous Fine Gael
fundraising dinner at Suesey Street
restaurant in Dublin in 2019, along with a
host of arrivistes who were displeased to
find their names recorded in Phoenix
Magazine and, worse, to find attendance
was hindering rather than lubricating their
advances. He also attended fundraisers for
barristers Jim O’Callaghan (Fianna Fáil) and
Oisín Quinn (Labour)…afterwards. Phoenix
described him as more mé féin than Sinn
Féin.
He was close enough to Leo Varadkar,
with whom he was a contemporary, that
when Village broke the story about the leak
he asked Paddy Cosgrave to go easy on the
vituperation. Ditch website has made much
of the fact that the Standards in Public
Oce Commission (SIPO) has asked then-
Taoiseach Varadkar why he didn’t declare a
2018 donation from Fanning, with Varadkar
claiming the Attorney-General had been
reimbursed for at least part of the payment
– which would bring it below the threshold
of €600 over which Varadkar would have
been obliged to declare it. It is not clear who
reimbursed the surplus, or why. Fanning
failed to reply to questions from Village
about whether this was true and as to
whether he had retrospectively or otherwise
registered as an intermediary. Clearly
punctilious compliance with the ethics laws
would be expected of the State’s highest
legal ocer.
During the course of SIPO’s investigation
of a complaint about Varadkar, Sipo
informed Varadkar that his Attorney
General, Fanning (among others), should
have been registered as an intermediary
and made the appropriate returns to provide
details of subsidiary donors to the
Taoiseach.
The Phoenix magazine reported that he
made donations to barrister-politicians, Jim
Does it himself
O’Callaghan and Oisín Quinn. Fanning did
not reply to questions from Village about
whether he ever donated more than €1,500
in aggregate to one or more politicians/
parties in a single year and, if so, whether
he furnished the requisite Section 24 (1) (a)
Declaration to the Standards in Public Oce
under the 1997 Electoral Act.
Fanning lives on South Frederick Street in
Dublin’s fashionable city centre.
Rossa Fanning owns two Dublin 6
residential-property rentals worth around
€1.5m but his salary of €180,000 is a
comedown from his swollen private income
as senior counsel. Still, at least he gets a
ministerial driver with all that imports for
the men who have everything.
Rental may pose a modest conflict of
interest and it is not clear whether he
recognises this when dealing with
landlords’ rights as, for example he did
when advising Government on extension of
the Covid-era eviction ban.
Much of Fanning’s non-radical outlook is
represented by his commercial case load
and his pedestrian academic outlook. It
was especially clear also from his
contribution to a panel discussion at the
Constitutional Convention in 2014 on the
topic of economic, social and cultural (ESC)
rights.
With the confidence of the establishment
and cantillated in the forceful and pacey
patois of the Southside, he claimed:
“the fundamental difficulty is
defining socioeconomic rights in a way
that does not undermine the
fundamental role of government to
define and determine dicult policy
decisions in relation to public
expenditure. Because the corollary of
saying that one person has a right to
something is saying that somebody
else has an obligation to pay for it.
These rights aren’t free rights that can
simply be identified and respected;
somebody actually has to pay for them
and, to use a concrete example,
because I do agree with Michael
[McDowell] that you’re better focusing
on actual examples. If we say today that
the right to free primary education
which is a constitutional right must
encompass the right to free textbooks
is that textbooks or is it a laptop? If it’s
a laptop is it a clunky Dell that really
doesn’t download things very fast
anymore or is it a a top of the market
MacBook? And is the deprivation to
somebody of not having a mobile
phone or not having wireless Internet
at this stage in 2014 a deprivation of
their rights?”.
It is striking that Fanning’s examples
tended to luxury. The putative net
beneficiaries of social rights might be
expected primarily to be in the lower socio-
economic categories and to be looking for
subsistence not frills.
From this he argued: “It’s dicult to
imagine, as Michael [McDowell again] says,
that the best party to determine the answer
to the line between what is a constitutional
right and what is a desirable political
decision as to the allocation of a resource is
a High Court judge”.
There must be a fear that these warriors
of privilege have a horror of the state-
backed assignment of rights to little people
when for so long governments have got
away with avoiding it.
Fanning then waded into specifics in the
form of the Sinnott judgment ascribing
rights to children with autism: “It’s all very
well to say that an autistic person has
constitutional rights but does that mean 10
hours or 20 hours of one-to-one speech
therapy a week. Does it matter how much
that costs?”.
For this magazine, rights are rights and
July-August 2024 37
this society would be much advanced by
generous recognitions across the range.
To illustrate his concern, Fanning noted
that Sinnott wasn’t a standalone case, that
there were about 100 cases brought by
autistic children seeking specific rights. He
noted they sought “not the recognition of a
general right but High Court orders directing
the Minister for Education to provide 20
hours individualised one-to-one speech
therapy”: in a very real way requiring High
Court judges to hear cases for 50 days with
expert evidence as to what exactly was
appropriate for the needs of an individual
plainti.
Fanning declared that he was “broadly
opposed actually to the further
incorporation of socioeconomic rights into
our constitution — I do appreciate that
perhaps guarantees me the warmth of
welcome normally reserved for Woody Allen
at family reunions”.
He bristled at the criticism levelled at his
view from other symposium participants,
though not from McDowell, choosing to
emphasise:
“the proposition that if you have the
right to something that costs money
somebody must pay for that — such as
a textbook…I really don’t see what’s
controversial or misleading much less
dishonest about that proposition. My
simple proposition to you is this:
Constitutions aren’t the proper place
for contemporary political fashion
statements. Constitutions as a type of
document are supposed to be
permanent statements of fundamental
values and it is not appropriate to deal
in granular detail as happened in the
100 cases that followed Sinnott”.
Warming to his almost passionate theme,
he bated the audience:
“If you think that’s an appropriate
way in which decision-making is made
and as to the allocation of resources for
sensitive problems on a case-by-case
basis I have to say I think as a body
you’re incorrect. I think that complex
policy decisions of this type are better
dealt with by specialists rather than
judges who themselves ironically have
said and in the TD decision and in the
Senate decision that they are not the
best arbiters of complex issues such as
these”.
Analysing the nub of his reasoning. In a
world where dismissing experts is no longer
fashionable, since it has led to Brexit,
climate denial (which threatens civilisation)
and a social-media cesspit, it is indeed
better that complex matters are dealt with
by experts, once parameters have been set
by Parliament. He must also know that
specialists are more likely to give evidence
to a court than to the Oireachtas. This
magazines finds his arguments
unpersuasive. In any event, for example
South Africa and, to some extent, Canada
have incorporated social and economic
rights into their constitutions. In the case of
the Peoples Union of Civil Liberties India too
gave life to directive principles of social
policy.
A large majority (85%) of the members of
the Constitutional Convention favoured
changes to strengthen the protection of ESC
rights. However, a sizeable minority (43%)
recommended that the issue be referred
elsewhere for further consideration. The
Convention also recommended that there
should be a constitutional provision that the
State would progressively realise ESC
rights, subject to the availability of
resources, a nebulous caveat.
Like his predecessor, Paul Gallagher, Fine
Gael and all good conservatives, he is
against putting housing, healthcare rights
and social and economic rights into our
constitution or into the sphere of
justiciability in any other way. He noted that
it was not in the vested interest of barristers
to oppose justiciability, but with equality at
the epicentre of its agenda, this magazine
is unimpressed with the reasons Fanning
cites against recognition of socio-economic
rights. Still more it is unattractive from the
mouth of the privileged elite.
This undermines a progressive Planning
Act furthering the public interest over
private interests and quality of life over the
economy. It is also not conducive to
compelling the penalisation or compulsory
purchase of underused zoned land or of
derelict buildings. It will not hasten the
provision of housing, notably social
housing, or — ironically — of large-scale
quality housing. And it militates against
environmental rights including a Climate
Act with justiciable targets.
These issues are not small beer. The
greatest failures of the State are in housing,
in planning, in dereliction, in the
environment and in wealth distribution.
Fanning is not your man for these
agendas.
Colleagues in the Law Library do not
expect Fanning to seek appointment to the
bench, a right to which is a traditional
privilege of his current oce. Instead, they
predict that he will return to private practice
where he will be well placed to earn still
higher fees and follow the examples of his
more plutocratic predecessors such as
Peter Sutherland or Dermot Gleeson by
moving into the corporate board room,
perhaps on a global scale. Alternatively a
source close to Fanning suggests he may for
once be smitten, by politics.
Warriors of privilege have
a horror of the state-
backed assignment of
rights to little people
when for so long
governments has got
away with avoiding it
No bleeding hert
