Two temporary judges may have to be appointed to the High Court in Belfast after a submission yesterday that most of the existing judges have disqualified themselves from hearing a case over the royalty declaration.
The case involves barristers Mr Seamus Treacy and Mr Barry Macdonald, who refused to make a declaration to "well and truly serve Her Majesty Queen Elizabeth 11" before becoming members of the Inner Bar, known as Queen's Counsel.
Because of their objection to the declaration, they boycotted the ceremony two weeks ago when 10 of their colleagues were sworn in as QCs.
Mr Treacy and Mr Macdonald want to use the declaration adopted by the Bar Council in the Elliott Report of May 1997, omitting any reference to the queen.
They are seeking a judicial review of the decision of the British Lord Chancellor, Lord Irvine, insisting on the form of declaration used by barristers in England which contains the reference to the queen.
Both barristers were in the High Court yesterday, with Mr Brian Fee QC, chairman of the Bar Council.
Their counsel, Mr Michael Lavery QC, said that in January 1997, the views of judges were sought about the declaration and they supported maintaining the declaration to serve the queen.
The following May, the Lord Chief Justice, Sir Robert Cars well, was asked for his views and he said it was a matter for the Secretary of State.
"The clear signal to the Bar Council was that this was a matter for the Secretary of State; the Lord Chief Justice and other judges had no more active role in the matter," said Mr Lavery.
"But it now appears that in June 1997, the judges were in fact consulted about the declaration and, apparently, unanimously decided to reject the recommendations of the Elliott Report and that the old declaration should be maintained.
"Not a hint of this was given to the Bar Council and it only came to my notice yesterday evening.
"What this leads to is this: any judges who have considered this matter, irrespective of what view they may have taken, ought not to hear this case as they have already formed a view."
Mr Lavery said if any judge involved in the consultation were to hear the case, it could lead to a perception they had presided at an unfair and biased hearing.
Mr Justice Kerr said he had no recollection of discussing the matter but if Mr Lavery was correct, then he could not continue to hear the case.
Mr Lavery said if it was not possible to assemble a court and a court of appeal of judges who had not been involved in the consultation, then the case could not be heard fairly in Northern Ireland.
Mr Ronald Weatherup QC, for the Lord Chancellor, said he had informed Mr Lavery that Lord Irvine had been told by the Lord Chief Justice that the judges supported the existing declaration.
"I considered it appropriate to reveal that information to Mr Lavery and did so with the approval of the Lord Chief Justice," he said.
Mr Weatherup applied for an adjournment so that the issue might be further considered by the Lord Chancellor.
The hearing was adjourned until today.