There will be exceptional cases where bail applications fall within the category of article 40 habeas corpus relief, Judge Garrett Simons decided on Wednesday in granting the release from prison of a man whose case, he said, fell into that category.Simons was giving judgment in the High Court in one of five cases where the lawfulness of the person’s detention had been challenged on the grounds that the applicant had not received a fair hearing for release on bail in the District Court, largely because the strike by Legal Aid solicitors had left those before the courts without representation.He stated in an extempore judgment that existing case law emphasised there would be exceptional cases and where they fell within that category a challenge under article 40 of the Constitution could apply. The judge, after directing the release of one of the applicants, said he would deliver an omnibus judgment next Wednesday on all five cases, four of which he had yet to reach any conclusion on. Counsel on behalf of the Director of Public Prosecutions, Sunniva McDonagh, and Eoin McCullough for the Minister for Justice and prison governors, had argued it was not appropriate for bail applications to proceed under article 40.Simons said there had been a lot of debate as to which of two High Court judgments should apply in the hearing: that of Judge Michael Twomey, who had refused article 40 inquiries, or the ruling of Judge Mary Rose Gearty, who had allowed the release of applicants in a test case she had dealt with.He said that with all due respect to both of his colleagues, that was, in a sense, a side issue because there was an extensive body of Supreme Court authority which he was bound to follow.The judge said the real issue in the cases before him, arising mainly from the lack of legal representation, was which side of the line each fell on – exceptional or otherwise.Simons said one of the submissions made to him was that he should follow or regard himself bound by the judgment of Gearty. While it was correct to say that a High Court judge should ordinarily follow another High Court judge, they were not bound to do so and were entitled to depart from that if they thought there was a substantial error in the earlier judgment.He thought that such an error did exist in relation to Gearty’s judgment where she stated in relation to the decision of the Supreme Court in A.B. v Chief International Protection Officer that there was no reference to personal liberty or to the case law in relation to habeas corpus.“That’s a mistake. It’s an entirely understandable mistake as the judgment was produced under high pressure in a very short time,” said Simons.“However, the existence of that error is sufficient to allow a departure from horizontal stare decisis.” (A legal rule requiring courts to follow past judicial decisions when ruling on similar new cases.)Simons said he was not sure it made a significant amount of difference because cases were decided on a fact-by-fact basis or a fact-specific basis.He added that Gearty did use language which indicated that she thought it was difficult to imagine circumstances in which a hearing without a solicitor would be a fair hearing.