High Court dismisses recusal claim but grants restraining order due to abuse of process and waste of judicial resources.

Neutral Citation [2012] IEHC 169

THE HIGH COURT JUDICIAL REVIEW

[2007 No. 52 CA]

BETWEEN

PATRICK KELLY

PLAINTIFF

V. NATIONAL UNIVERSITY OF IRELAND, DUBLIN

DEFENDANT

-AND-

THE DIRECTOR OF THE EQUALITY AUTHORITY

NOTICE PARTY

Judgment of Mr. Justice Hedigan delivered the 9th day of May 2012

1 There are three matters before the Court. The first matter is the plaintiff’s application for recusal. The second is the substantive

issue of applying the Article 234 ruling of the European Court of Justice to the facts of the plaintiff's case. The third matter to be

dealt with is whether given the history of these proceedings it is now appropriate for the Court to make some form of restrictive order

against the plaintiff. I will deal with each of these matters in order.

Application for Recusal

2. The plaintiff’s interlocutory application for an order that I should recuse myself is based on an affidavit dated the 2nd April, 2012.

The plaintiff maintains that he has an apprehension of bias on my part. The plaintiff points out that in a previous judgment which I

delivered on the 30th March, 2012. I stated as follows:-

"I note that this complaint were it to be brought in the course of normal legal proceedings, would be quite likely

challenged on the basis that it is moot...The waste of public money expended upon this all but pointless set of

proceedings is also scandalous."

The plaintiff also points out that when l heard this case on the 16th March, 2012, I criticized the plaintiff. I compared his actions in

putting material online which was scandalously abusive of Mr. Justice Kechnie, to those of a "petulant child". The plaintiff submits that

as a result of these findings of the court and the criticism from the bench there are substantial grounds for questioning my impartiality

in this matter and I should recuse myself.

3. The fundamental principle underlying the consideration of a request for recusal was set out by Lord Hewart C.J. in R v. Sussex

Justices ex parte McCarthy [1924] 1 K.B. 256, at p. 259:-

"It is not merely of some importance but is of fundamental importance that justice should not only be done, but should

manifestly and undoubtedly be seen to be done".

On the subject of that fundamental principle in Dublin Wellwoman Centre Ltd & Ors v. Ireland & Ors [1995]1 I.L.R.M. 408, Denham J.

(as she then was) in the Supreme Court held:-

"The concept of the perception of the administration of justice, as well as the content of justice, is as important today,

as in years gone by. The statement of Lord Hewart C.J. is as relevant today as when it was made in 1923. With the

development of the modern communications media and an increasingly educated and enquiring society the public

perception of the impartiality of the courts is a cornerstone of the administration of justice in our constitutional

democracy."

Denham J. went on to state as follows at p.408:-

"The concept of bias developed through cases considering material interest. It also arose in cases on prejudgment, prior

involvement, and personal attitudes and beliefs. There are two fundamental streams of thought within this wider concept.

Firstly, that there should be no actual bias i.e. a subjective test. And secondly, that there should be no reasonable

apprehension that there is bias, i.e. the objective test. Both of these streams of thought are equally important in the

broad river of justice."

The applicant submits that there exists a real possibility of objective bias. The test for objective bias was outlined by this court in the

case EPI v. The Minister for Justice, Equality and Law Reform [2008] IEHC 432 as follows:-

"Subjective bias is often also referred to as "actual" bias. In this case, no suggestion was made of actual or subjective

bias on the part of the Court with respect to the question at issue. What is in issue is the matter of reasonably

apprehended bias i.e. objective bias. That being so, in the words of Denham J. in Dublin Wellwoman Ltd. "[t]he

apprehension of the reasonable person in the position of the [applicants] is what has to be considered." The test that is

to be applied in respect of objective bias was expounded in Bane v. Garda Representative Association [1997] 2 I.R. 449.

In that case, Kelly J. cited the judgment of Finlay C.J. in O'Neill v. Beaumont Hospital Board [1990] I.L.R.M. 419 and

concluded thus:-

"I must therefore ask myself whether a reasonable man would, in the circumstances outlined here, have a

reasonable fear that the Applicants would not have a fair and independent hearing of the issues which arose."

Addressing the qualities of the "reasonable man", Fennelly J. stated in Kenny v. Trinity College & Dublin City Council

[2007] IESC 42 as follows:-

"The hypothetical reasonable person is an independent observer, who is not over-sensitive, and who has knowledge

of the facts. He would know both those which tended in favour and against the possible apprehension of a risk of

bias. [...]the hypothetical independent reasonable observer would also know the substance and tenor of the

allegation made in the proceedings."

Applying that test to the present case, it seems to me that the reasonable observer would be outraged by the abusive material

placed on the internet by the plaintiff concerning the judge who had given a decision unfavourable to him, and would very likely be of

the view that the Court did not go nearly far enough in comparing his actions to those of a petulant child. The applicant is not the

first party to be rebuked from the bench and he will not be the last. Judges should not lightly recuse themselves of their responsibility

to hear cases that come before them. It is noteworthy that this is the third such application made by the plaintiff for a judge to

recuse himself or herself. In my view the applicant has not advanced grounds capable of supporting the proposition that the

reasonable man have an apprehension that there would not be a fair hearing. Therefore his application for recusal is refused.

Application of the ruling of the ECJ

4. The second matter to be addressed is the substantive issue of applying the Article 234 ruling of the European Court of Justice

which issued on the 21st July, 2011, to the facts of the plaintiff's case. The five questions referred to the Court and its findings are

outlined below.

The first question

5. By its first question, the national court asks, whether Article 4(1) of Council Directive 97/80 must be interpreted as entitling an

applicant for vocational training, who believes that his application was not accepted because of an infringement of the principle of

equal treatment, to information held by the course provider on the qualifications of the other applicants for the course in question, in

order that he may establish 'facts from which it may be presumed that there has been direct or indirect discrimination' in accordance

with that provision.

Finding of the court

Directive 97/80 provides in Article 4(1) that the Member States are to take such measures as are necessary to ensure that, when

persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a

court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall

be for the respondent to prove that there has been no breach of that principle. Thus, it is the person who considers himself to have

been wronged because the principle of equal treatment has not been applied to him who must initially establish the facts from which it

may be presumed that there has been direct or indirect discrimination. It is only where that person has established such facts that it

is then for the defendant to prove that there has been no breach of the principle of non​ discrimination. In that regard, it is apparent

from recital 13 in the preamble to Directive 97/80 that the appreciation of the facts from which it may be presumed that there has

been direct or indirect discrimination is a matter for national judicial or other competent bodies, in accordance with national law or

practice. The fact remains that it cannot be excluded that a refusal of disclosure by the defendant, in the context of establishing

such facts, could risk compromising the achievement of the objective pursued by that directive and thus depriving that provision in

particular of its effectiveness. In that regard, it must be borne in mind that Member States may not apply rules which are liable to

jeopardise the achievement of the objectives pursued by a directive and, therefore, deprive it of its effectiveness. In the present

case, it is, however, apparent from the decision for reference that, although the President of the Circuit Court refused the disclosure

application, UCD offered to provide Mr Kelly with part of the information requested, which he does not dispute. As it cannot be ruled

out that a refusal of disclosure by the defendant, in the context of establishing such facts, could risk compromising the achievement

of the objective pursued by that directive and thus depriving, in particular, Article 4(1) thereof of its effectiveness. It is for the

national court to ascertain whether that is the case in the main proceedings.

The second and third questions

6. By its second and third questions, which should be examined together, the national court asks, whether Article 4 of Directive

76/207 or Article 1(3) of Directive 2002/73 must be interpreted as entitling an applicant for vocational training to information held by

the course provider on the qualifications of the other applicants for the course in question, either because he believes that he has

been denied access to vocational training on the basis of the same criteria as the other candidates and discriminated against on

grounds of sex, referred to in Article 4 of Directive 76/207, or because that applicant complains that he was discriminated against on

the grounds of sex, referred to in Article 1 (3) of Directive 2002/73, in terms of accessing that vocational training.

Findings of the Court

It does not emerge from the wording of Article 4 of Directive 76/207 or Article 1(3) of Directive 2002/73 that an applicant for

vocational training is entitled to access to information held by the course provider concerning the qualifications of other applicants for

that course.

The fifth question

7. The fifth question must be understood as meaning that the national court asks, in essence, whether any right to rely on one of the

directives referred to in the first three questions, in order to obtain access to the information held by the provider of vocational

training concerning the qualifications of the applicants for that course, can be affected by rules of European Union law relating to

confidentiality.

Findings of the Court

It must be borne in mind that the Court has held, in paragraph 38 of the present judgment, that Article 4(1) of Council Directive 97/80

does not entitle an applicant for vocational training, who believes that his application was not accepted because of an infringement of

the principle of equal treatment, to information held by the course provider on the qualifications of the other applicants for the course

in question, in order that he may establish 'facts from which it may be presumed that there has been direct or indirect discrimination'

in accordance with that provision. Nevertheless, it has also been held, in paragraph 39 of this judgment, that it cannot be excluded

that a refusal of disclosure by the defendant, in the context of establishing such facts, could risk compromising the achievement of

the objective pursued by that directive and thus depriving Article 4(1) thereof in particular of its effectiveness. In assessing such

facts, national courts or other competent bodies must take into account the rules governing confidentiality which follow from

European Union legal acts.

The fourth question

8. By its fourth question, the national court asks whether the nature of the obligation contained in the third paragraph of Article 267

TFEU differs according to whether a Member State has an adversarial rather than an inquisitorial legal system and, if so, in what

respect.

Findings of the Court

The answer to the fourth question is that the obligation contained in the third paragraph of Article 267 TFEU does not differ according

to whether a Member State has an adversarial or an inquisitorial legal system.

9. It is quite clear that each finding of the European Court of Justice is unfavourable to the applicant's case. The one exception is the

Court's finding that it cannot be ruled out that a refusal of disclosure by the defendant, in the context of establishing facts (from

which it may be presumed that there has been direct or indirect discrimination) could risk compromising the achievement of the

objective pursued by Article 4(1) of Council Directive 97/80 of its effectiveness. However it is for the national court to determine this

matter in accordance with national law. The answer to the first question states that in assessing this, the national court must take

into account the rules governing confidentiality. McKechnie J. made a provisional finding that, pursuant to national law, UCD did not

have to disclose the documents in question in unredacted form. In deciding this he took into consideration the right of confidentiality

of the other candidates. This provisional finding was subject to the ruling of the European Court of Justice. I am satisfied that there is

nothing in the ruling of the European Court of Justice that could give grounds for changing the provisional decision of McKechnie J. His

decision is exactly in accordance with it. The right of the course applicants to confidentiality outweighs the plaintiff's right to

disclosure of the documents in unredacted form. I do not therefore propose to interfere with the provisional decision of McKechnie J.

It is thus no longer provisional but has become his final decision in this matter.

10. The third matter to be dealt with is whether, in the circumstances of this case, there should to be a restraining order placed on

the applicant. This court may, of its own motion, order that no proceedings, either of a certain type or at all, may be issued by a

certain person without leave of the court. Such an order is colloquially described as an Isaac Wunder Order. The jurisdiction of the

superior courts to impose such orders was addressed in Riordan v. An Taoiseach (No.4) [2001] 3 IR 365. Keane C.J. in the Supreme

Court stated that:-

"It is, however, the case that there is vested in this court, as there is in the High Court, an inherent jurisdiction to

restrain the institution of proceedings by named persons in order to ensure that the process of the court is not abused by

repeated attempts to reopen litigation or to pursue litigation which is plainly groundless and vexatious... This court would

be failing in its duty as would the High Court, if it allowed its processes to be repeatedly invoked in order to reopen issues

already determined or to pursue groundless and vexatious litigation... This court is extremely reluctant, as the High Court

has been, to restrain the access of any citizen to the courts. The stage has clearly been reached, however, where the

proper administration of justice requires the making of such an order against the appellant. Accordingly... the court will, in

exercise of its inherent jurisdiction, order that the appellant be restrained from instituting any proceedings, whether by

way of appeal or other wise, against any of the parties to these proceedings..."

It seems to me that in this case the relevant considerations for the Court in determining whether to impose a Wunder Order are as

follows:-

(i) The nature of the proceedings brought.

(ii) The manner in which the proceedings were conducted.

Nature of the Proceedings

11. The plaintiff maintains that he has been the victim of discrimination on grounds of gender and as a result of this discrimination he

was not offered a place for a Masters in Social Science (Social Worker) mode A for the academic period 2002-2004. The plaintiff

submitted his completed application form to UCD on the 23rd December, 2001. He was interviewed in February, 2002 as part of the

selection process; he was informed by letter dated the 15th March, 2002 that he was not being offered a place on the course. The

plaintiff was dissatisfied with the decision, he claims that he was more qualified than the least qualified female applicant for the

course and the decision not to offer him a place on the course was based on his gender and not the results of the application

process. When questioned by this Court about the nature of his complaint, the plaintiff explained that when he was interviewed for a

place on the course he was treated rudely. This, together with the decision to refuse him a place, is the discriminatory conduct of

which the plaintiff complains. However the plaintiff was subsequently offered a place on the course. In August 2002, UCD wrote to

Mr. Kelly stating that they were very pleased to offer him a place on the course. It is quite true that the place on the course was

described as provisional. Whilst clearly UCD were reserving the right to apply to Mr. Kelly the same processing that applies to all other

applicants, it seems to me that this was a clear offer of a place and any applicant receiving such a letter would reasonably consider it

an offer of a place on the course. Mr Kelly, as he was entitled to do, refused the offer. The only area of real dispute therefore is the

allegation by Mr. Kelly that he was treated rudely in the interview process, which is denied. This is the nature of the case.

Manner in which the proceedings were conducted

12. These proceedings commenced with a formal complaint in late April, 2002 of gender discrimination to the Director of the Equality

Tribunal. The plaintiff based his claim on alleged breaches of s. 3(1)(a) and s.3(2)(a) of the Equal Status Act 2000. Following an oral

hearing on the 22nd September, 2006 the Equality Tribunal concluded that the plaintiff had failed to establish prima facie

discrimination on gender grounds. Some days after the decision of the Tribunal, the plaintiff appealed the decision to the Circuit

Court. A trial date of the 14th June, 2007 was set for this appeal. In the meantime however the plaintiff issued a further motion dated

the 4th January, 2007 in which he sought from UCD copies of retained applications and copies of the scoring sheets of the 49

candidates whose application forms had been retained. The matter came before Judge Linnane in the Circuit Court. The plaintiff made

an application for the judge to recuse herself. The matter was sent to the President of the Circuit Court who refused the application

for copies of the documentation. The plaintiff appealed to the High Court against that order. On the 23rd April, 2007, the plaintiff

appeared before the High Court and sought to have three questions (to which a fourth and fifth were added at a subsequent date)

referred to the European Court of Justice under Article 234(1) and (3) of the EC Treaty. McKechnie J. referred five questions to the

ECJ. The plaintiff made a further application seeking to have Suzanne Quinn, Head of the School of Applied Social Science at UCD

attached for perjury. Mr Kechnie J. refused this application. The Article 234 reference was determined by the ECJ. When the matter

came back to the High Court the plaintiff made an application that McKechnie J. recuse himself. The matter then came before this

Court in March 2012. The plaintiff brought four motions before the Court, the first motion was the plaintiff’s application for leave to

attach and commit for contempt a number of journalists who had reported on the plaintiff’s case. This application was refused. In the

second motion the plaintiff sought an order setting aside the judgment delivered by Me Kechnie J. on the 31st July, 2008 in which he

decided that the documents sought by the plaintiff in his appeal to the Circuit Court were confidential. It was held there was no basis

in fact for this application. The third motion concerned the availability of witnesses in the Circuit Court for the appeal hearing. It was

determined that there was no issue in dispute as the witnesses would be made available if necessary. The plaintiff’s fourth application

was held to be devoid of merit and was refused. When the matter was set down to deal with the substantive matter of applying the

Article 234 findings of the ECJ to the facts of the plaintiffs claim the plaintiff brought an application that I recuse myself. This is the

manner in which the proceedings have been conducted. The plaintiff has a pattern of continual application to the Courts which has

served to prolong his proceedings. Counsel for UCD has indicated that her clients are very concerned about the repeated applications

to the Court and that these applications are part of tactics to prolong the proceedings which has put UCD to untold cost. This Court

is equally concerned that the processes of the Court are being abused and that valuable Court time is being wasted. I note that on

the day when Mr. Kelly’s four motions were called on, there were two other actions for hearing in the Non Jury/Judicial Review list

which could not be dealt due to the unavailability of any other judge. All parties, their legal representatives and witnesses were

present and ready to go on. Both cases had to be adjourned. The motions took two days to hear and much time for the preparation

of the various decisions. The limited resources of the judicial system should not be squandered on actions of little merit when so many

parties are seeking to have real disputes of great import resolved by these courts. Having spent considerable time hearing this matter

and reading the pleadings, it seems to me that the dispute between the parties herein does not rise above the level of hurt feelings.

Balancing this against the inordinate time the proceedings have taken and the pattern of continuous applications by the plaintiff, it

seems to me that there are grounds upon which the court would be justified in making a restraining order. The plaintiff however has

assured the court that he will bring no further applications in this matter save for his right to appeal on a point of law from the Circuit

Court decision and matters as to costs. The undertaking offered is in the following terms;

"The plaintiff, Patrick Kelly, undertakes to make no further interlocutory applications in these proceedings to the Circuit or High Court

against either:​

(i) University College Dublin

(ii) It employees both present or past

(iii) Mr. Eugune O'Sullivan solicitor for UCD.

This undertaking is subject to the plaintiff’s right of appeal on a point of law from the decision of the Circuit Court in the

event that his appeal from the equality tribunal is unsuccessful and also subject to any application which he will make in

relation to any cost order made against him in relation to these proceedings."

Counsel for UCD has indicated that such an undertaken given under oath will meet the concerns of the University. I have considerable

reservations in accepting this undertaking and am strongly inclined, in the interest of preserving the integrity of the court's processes

and of the public interest in the proper utilization of the limited resources of the courts, to make a broad restraining order permanently

staying these proceedings both in this court and in the Circuit Court (see Grepe v Loam I887 37 ch.d 168 at 169). However as the

defendants have indicated to the court their willingness to accept the plaintiffs undertaking, I feel somewhat constrained. Although I

doubt the wisdom of the defendants in this, I will with considerable reservation accept the undertaking to be given as above. I will

direct the parties to make an application within seven days to the President of the Circuit Court for his directions in this matter. The

matter of a restraining order may be revisited by motion of the defendants or on the Courts own motion. I will give liberty to the

defendants to apply at any time to bring such a motion.