Supreme Court sets aside High Court order due to objective bias from judge's brother being an architect witness.

THE SUPREME COURT

[S.C. No: 168/03]

Fennelly J.

Macken J.

Lavan J.

BETWEEN/

JAMES KENNY

APPLICANTS/APPELLANTS

AND

THE PROVOST, FELLOWS AND SCHOLARS OF THE UNIVERSITY OF DUBLIN, TRINITY COLLEGE AND DUBLIN CITY COUNCIL

RESPONDENTS

Judgment delivered the 15th day of October, 2007 by Fennelly J.

The appellant has been engaged for a number of years in legal proceedings in which he has sought, entirely without success, to have

declared invalid a decision of An Bórd Pleanála granting planning permission to Trinity College, the Respondent on this appeal, for a

development consisting of new student residences at Trinity Hall, Dartry, Dublin 6. The development has long since been completed.

On 15th December 2000, the High Court (McKechnie J) refused the appellant leave to apply for judicial review of that decision. He

also refused a certificate allowing him to appeal that refusal of leave to this Court.

On 7th November 2002, the appellant instituted the present action by plenary summons in the High Court. In the action he seeks an

order directing the rehearing of his judicial review application. Effectively and in substance, the relief he seeks in the action is an

order setting aside the order of McKechnie J.

In the plenary summons, he pleads that McKechnie J, in refusing the application for leave, had referred to the location of boilerhouse

facilities proposed by the Respondent, as developers. In a very brief statement of claim, he alleges that the Respondent, through its

counsel, had misled the High Court during the hearing of the leave application. The misleading is alleged to have consisted of the fact

that the Respondent, as developers, had submitted “certain architectural plans and drawings” relating to the development purporting

to show that boilers would be installed in certain places identified as plant rooms, but had failed to acquaint the High Court with the

full facts of an application which it had also made for “the location of some of the aforesaid boilers in the basement of one of the

aforesaid buildings to another section of the then Dublin Corporation namely the Fire Prevention Section.”

The entire substance of the case pleaded by the appellant is that the order of McKechnie J, refusing him leave to apply for judicial

review of the decision of An Bórd Pleanála granting planning permission, should be set aside because it was procured by the single act

of alleged misleading mentioned in the preceding paragraph.

The Respondent in March 2003 applied by motion in the High Court for an order pursuant to Order 19 rule 28 of the Rules of the

Superior Courts holding that the proceedings be struck out on the grounds that they were frivolous and vexatious and that they

disclosed no reasonable cause of action and, alternatively, that they were an abuse of process and in excess of jurisdiction.

The application to strike out was grounded on two affidavits. One was sworn by Mr Tom Merriman, acting project officer of the

Respondent. The other was sworn by Ms George Boyle, an architect in the firm of Murray O’Laoire, Architects, Fumbally Court, Dublin

8. Ms Boyle described herself as acting Project Architect engaged by the Respondent for the development. Mr Merriman deposed that

the appellant was seeking to have “re-examined” matters already determined by the High Court on a judicial review application. He

described the proceedings as an abuse of process. He also dealt at length with the appellant’s complaint regarding the alleged

misleading information regarding the proposed location of boiler facilities. Given the nature of the present application, it is unnecessary

and inappropriate to give any account of that issue or to comment on its merits. For present purposes, it suffices to note that the

appellant alleges that the Respondent misled the High Court regarding the position of boilerhouse facilities in the proposed

development and that the allegation is strongly contested. Ms Boyle, in her affidavit, denied that the Respondent had misled the High

Court at the time of the judicial review application.

The appellant swore an affidavit, in which he contested that of Ms Boyle at great length. He accused her of seeking to justify the

actions of the Respondent in misleading the Court and of herself making misleading choice of words, and of being disingenuous, naïve,

self-serving and scarcely credible.

The High Court (Finnegan P), by its order of 2nd April 2003, dismissed the Respondent’s application to have the proceedings struck

out. Instead, Finnegan P laid down time limits for the delivery of further pleadings in the action. He granted liberty to the appellant to

deliver an amended statement of claim, which the appellant has not in fact done.

The Respondent, by notice of appeal dated 28th April 2003, appealed to this Court against the order of the High Court (Finnegan P).

That appeal came on for hearing on 20th June 2003, before a Court composed of Murray J (as he then was), Geoghegan J and

McCracken J. The Court, in an ex-tempore judgment delivered by Murray J, allowed the appeal and instead made the order sought by

the Respondent that the appellant’s claim against the Respondent be struck out as disclosing no reasonable cause of action pursuant

to Order 19, rule 28 of the Rules of the Superior Courts.

The judgment of the Court (Murray J) stated that the case of the appellant was that the Respondent had been “guilty of conscious

and deliberate dishonesty amounting to fraud.” The judgment pointed out that none of those elements had been pleaded: “An

allegation of misleading information or a simple statement to that effect is not sufficient.” At a later point, the judgment stated:

“None of the elements of any alleged fraud are stated other than that certain matters were not disclosed without

indicating on what basis the failure to disclose constituted a breach of duty as to amount to a dishonest or fraudulent

concealment.”

By the present notice of motion dated 15th January 2007, the appellant applies to the Court for an order vacating the order made on

20th June 2003 on the ground of objective bias together with consequential orders.

The application is grounded on an affidavit of the appellant of 17th October 2006. In it he states:

“In the course of the summer 2006, I became aware of the fact that one of the Supreme Court judges who had heard the

appeal, namely Murray J., is a brother of a partner in Murray O’Laoire, which had designed the Trinity Hall development,

which firm’s name appeared on virtually all the documents which were before the Supreme Court, including affidavits from

the project architect, Ms G. Boyle, who is identified in her affidavits as being a member of the Murray O’Laoire firm. Also,

the Murray O’Laoire name appeared clearly on all the plans which Ms Boyle exhibited and lodged in both the High Court

and the Supreme Court.”

The appellant says that the facts set out in that paragraph are sufficient to establish objective bias. The gravamen of the appellant’s

claim is that one of the judges hearing his application was a brother of an architect in the firm of architects which was responsible for

the design and execution of the development which is the subject-matter of the proceedings. That firm of architects is alleged to

have participated in the concealment of material from the Court.

It must be said with emphasis that it is not for this Court at this point to express any view whatever on the substance of those

allegations. I abstain from any consideration of their merits. It is of the utmost importance that this judgment should give no hint of

any opinion on that matter.

The Respondent relies on two particular aspects of the facts of the case, which indisputably distance the brother of the judge from

the facts of the case. Firstly, the architect mentioned had no involvement whatever with the development in question. He was based

in Limerick, not in Dublin. Secondly, the architects are not parties but a member of the firm, operating out of Dublin and having charge

of the project, is a witness in the proceedings only.

The present case involves an allegation of objective bias. The appellant has made it clear that he makes no allegation whatever of

subjective bias. On the contrary, he made it clear at the hearing that he accepted that the learned judge would have recused

himself, if he had been alerted to the situation.

The test for deciding whether objective bias exists in the case of any adjudication has been repeated in slightly different terms in

many cases over many years. Some of the best known cases are: State (Hegarty) v Winters [1956] I.R. 320; Dublin Wellwoman

Centre Ltd and others v Ireland and others [1995] I.L.R.M. 408; O’Neill v Beaumont Hospital [1990] I.L.R.M. 419; Orange

Communications Ltd. v Director of Telecommunications Regulation and another [2000] 4 I.R. 159; Spin Communications Ltd v

Independent Radio and television Commission [1001] 4 I.R. 411; Joyce v Minister for Health and Children and others [2004] 4 I.R.

293; Landers v Director of Public Prosecutions [2004] 2 I.R. 363; Bula Ltd. v Tara Mines Limited and others [2000] 4 I.R. 412.

Denham J described the test authoritatively in her judgment in Bula Ltd. v Tara Mines Limited and others. At page 441, she is

reported as saying:

“……it is well established that the test to be applied is objective, it is whether a reasonable person in the circumstances

would have a reasonable apprehension that the applicants would not have a fair hearing from an impartial judge on the

issues. The test does not invoke the apprehension of the judge or judges. Nor does it invoke the apprehension of any

party. It is an objective test - it invokes the apprehension of the reasonable person.”

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. Thus he would know that the

judge and a senior architect in the responsible firm were brothers, but would also know that the architect brother had no involvement

in the development. Counsel for the Respondent did not dispute at the hearing that, if that brother had actually been involved in the

facts of the development in the way that Ms Boyle was, the test for objective bias might well be met. However, the hypothetical

independent reasonable observer would also know the substance and tenor of the allegation made in the proceedings.

The test of objective bias is expressed in general terms. Its application demands an appreciation of all the circumstances of the

individual case, followed by a particularly careful exercise of the faculty of judgement. In his judgment in O’Neill v Beaumont Hospital,

cited above, where the allegation was one of pre-judgment bias, Finlay C.J. expressed the view, at page 439, that, in analysing the

facts, he should “take the interpretation more favourable where there is ambiguity to the plaintiff than to the defendant..” Whether or

not that is a principle of general application, it applies in a special way in the present case, where this Court is asked, in a very real

way, to adjudicate on whether one of its own judgments was tainted by objective bias. That fact obliges it, in order to ensure

respect for the principle that justice must not only to be done but to be seen to be done, to act with great care and circumspection.

It should err on the side of caution.

An important aspect of this case is the substance and character of the allegations being made by the appellant in these proceedings.

He alleges that the Respondent engaged in deliberate misleading of the High Court with the result that the Court made an incorrect

decision. The affidavits exchanged in the High Court show that the appellant alleges that the firm of architects were implicated in this

action by the Respondent.

In his judgment in Orange Communications Ltd. v Director of Telecommunications Regulation and another, cited above, Barron J

approved a lengthy passage from the judgment of the Court of Appeal in England (consisting of Lord Bingham C.J., Lord Woolf M.R.

and Sir Richard Scott V.C.) in Locabail (U.K.) Ltd. v. Bayfield Properties Ltd. [2000] 2 W.L.R. 870, which contains the following

relevant statement:

“……a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge

and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public

involved in the case, particularly if the credibility of that individual could be significant in the decision of the case……”

I infer from that passage that the test of objective bias does not necessarily require that the relationship of which complaint is made

be between the adjudicator and a party in the case. A witness will suffice. The question is whether a reasonable observer might have

a reasonable apprehension that a judge, hearing such allegations being made against the firm of architects in which his brother was a

member, although that brother was not in any way directly involved in the subject-matter of the litigation, might find it difficult to

maintain complete objectivity and impartiality. Could such an observer be concerned that the allegations were of a nature to cast

doubt on the integrity of at least one member of the firm and that a judge should not adjudicate on such a dispute? Applying the

most favourable interpretation of the facts from the appellant’s point of view, and bearing in mind that the Court should be especially

careful where it is considering one of its own judgments, I believe that the the test of objective bias should be held, in all the

circumstances, to be satisfied.

The Court should, accordingly, make an order setting aside the order dated 20th June 2003. No further order is required. The effect of

that order is to reinstate the appellant’s appeal from the order of the High Court.