Supreme Court extends appeal time for bias claim only, dismissing other anti-competitive arguments.

THE SUPREME COURT

[Appeal Nos: 579, 580, 581/2012]

Denham C.J.

Clarke J.

MacMenamin J.

Between/

Goode Concrete

Appellant/Plaintiff

and

CRH plc, Roadstone Wood Limited, and Kilsaran Concrete

Defendant/Respondents

Judgment of Mr. Justice Clarke delivered the 10th October, 2013.

1. Introduction

1.1 These appeals arise as part of protracted contentious and difficult litigation involving the concrete business in Ireland. The

plaintiffs/appellants (“Goode”) allege anti competitive behaviour against the defendants/respondents. The first and second named

defendants/respondents (collectively “CRH”) together with the third named defendants/respondents (“Kilsaran”) are alleged to have

engaged in such activity to the detriment of Goode. It is of some relevance to note that similar accusations are made against both

CRH and Kilsaran (together with other defendants) in connected proceedings brought by Framus Ltd and Others which have been the

subject of a recent decision of this court in the context of the ability of certain of the plaintiffs in those proceedings to continue with

an appeal to this court while in liquidation (see Framus Ltd & ors v C.R.H plc & ors [2013] IESC 23).

1.2 What came before this Court were three separate but closely connected applications on behalf of Goode seeking an extension of

time within which to appeal three separate orders made by the High Court (Cooke J.) in these proceedings. Each of the orders in

respect of which an extension of time to appeal was sought were the subject of written judgments of the High Court.

1.3 The first such judgment in time was delivered on the 20th January, 2011, and related to the refusal by the High Court of an

interlocutory injunction sought by Goode (Goode Concrete v Cement Roadstone Holdings PLC & Ors [2011] IEHC 15 ). The second

such judgment, delivered on the 21st March, 2012, related to the decision by the High Court to direct security for costs against

Goode (Goode Concrete v CRH plc & Ors [2012] IEHC 116). The third decision of the High Court, which concerned fixing the terms of

the security to be provided both as to its amount and as to its phasing (Goode Concrete -v- CRH PLC & Ors [2012] IEHC 198), was

delivered on the 15th May, 2012. The orders arising from those judgments were respectively perfected on the 2nd February, 2011,

the 8th May, 2012 and the 17th May, 2012.

1.4 No attempt was made to bring an appeal before this Court for a very considerable period of time. The motions seeking extension

of time which were before this Court were initiated on the 11th December 2012 which is between 19 and 22 months after the

perfection of the various orders. Having regard to the 21 day period from the perfection of the orders which is fixed as being the time

within which an appeal to this Court should be brought, it is beyond doubt but that the appeals were out of time by a very significant

margin indeed. However it was said on behalf of Goode that there are unusual circumstances which apply in this case which ought to

persuade this Court to extend time notwithstanding such a lengthy period having elapsed since the orders in respect of which appeals

are now sought to be brought were perfected.

1.5 Immediately after the hearing of these appeals the Court took time to consider the issues raised and issued an immediate ruling

indicating that time would be extended and giving appropriate directions to ensure an early hearing of the appeal. The Court also

indicated that the grounds which could be raised in any notice of appeal filed would be limited in a manner which will be explored

further in this judgment. Finally, the Court indicated that reasons for its decision would be given at a later date. The purpose of this

judgment is to set out the reasons why I supported the ruling of the Court as delivered, on the day, by the Chief Justice. In order to

understand the precise issues it is necessary to say more about the grounds of appeal which Goode sought to raise.

2. The grounds which Goode seeks to raise on appeal

2.1 There is one common ground which Goode sought to raise in respect of each of the appeals which it wished to bring. That ground

concerns an allegation of a reasonable apprehension of objective bias on the part of the trial judge arising out of a shareholding held

by the trial judge in CRH. It is important to note that the trial judge indicated to the parties that he had a shareholding in CRH prior to

embarking on any contentious aspect of these proceedings. It is equally true that none of the parties raised any objection to the trial

judge continuing to deal with the matter. In that context the question of whether it could be said that Goode has waived any

possibility of reliance on a contention of reasonable apprehension of bias also arises.

2.2 In addition, in draft notices of appeal furnished to the Court, Goode sought to raise a range of other issues arising out of the

respective judgments of the trial judge. For example, in the context of the possible appeal against the order directing that security for

costs be provided, a suggestion is sought to be made that the determination of the trial judge that Goode, as an unlimited company

and thus not subject to security under s. 390 of the Companies' Act, 1963, could nonetheless be the subject of an order for security

as a nominal plaintiff is incorrect in the light of the criteria for determining whether an unlimited company might be a nominal plaintiff

subsequently set out by this Court in Mavior v Zerko Ltd [2013] IESC 15.

2.3 Thus it can be said that Goode sought to raise the apprehension of bias ground in each of the three appeals but also sought to

raise various other issues separately as they apply in respect of the other cases. Against that background it is next necessary to turn

to the jurisprudence of the courts concerning extension of time for appeal.

3. Extension of time jurisprudence

3.1 The starting point has to be to consider the judgment of this Court in Éire Continental Trading Company Limited v Clonmel Foods

Limited [1955] 1 I.R. 170 which has been recognised for over 60 years as providing for the criteria to be applied by this Court in

considering whether to extend time. Lavery J. expressed his agreement with the three conditions put forward by counsel. However,

he also went on to re-iterate that ultimately the decision is within the discretion of court and that the court in exercising that

discretion must have regard to “all the circumstances of the particular case”. Lavery J. said the following at p.173:-

“Mr. McGonigal submitted that three conditions must be satisfied before the Court would allow an extension of time.

These conditions were:—

1, The applicant must show that he had a bona fide intention to appeal formed within the permitted time.

2, He must show the existence of something like mistake and that mistake as to procedure and in particular the

mistake of counsel or solicitor as to the meaning of the relevant rule was not sufficient.

3, He must establish that an arguable ground of appeal exists.

In my opinion these three conditions are proper matters for the consideration of the Court in determining

whether time should be extended but they must be considered in relation to all the circumstances of the

particular case. In the words of Sir Wilfred Greene M.R., in Gatti v.Shoosmith …:—"The discretion of the Court being, as

I conceive it, a perfectly free one, the only question is whether, upon the facts of this particular case, that discretion

should be exercised.”” (emphasis added)

3.2 Geoghegan J. repeated the emphasised words in the passage above in his judgment in this Court in Brewer v Commissioners of

Public Works [2003] 3 IR 539. He then went on to observe:

“I would interpret those words of Lavery J. as indicating that while these three conditions were proper matters to be

considered, it did not necessarily follow in all circumstances that a court would either grant the extension if all these

conditions were fulfilled or refuse the extension if they were not. The court still had to consider all the surrounding

circumstances in deciding how to exercise its discretion.”

It is also appropriate to note the decision of the Court of Appeal of England and Wales in Smith v Kvaerner Cementation Foundations

Ltd [2007] 1 W.L.R. 370. In that jurisdiction, the Civil Procedure Rules also provide that in considering an enlargement of time

application the court must have regard to “all the circumstances” of the case and set out a non-exhaustive list of criteria to be

considered. In Smith, an enlargement of time application was granted where there was an allegation of bias despite a delay of over

four years.

3.3 The reason why the Éire Continental test applies in the vast majority of cases is clear. The underlying obligation of the Court (as

identified in many of the relevant judgments) is to balance justice on all sides. Failing to bring finality to proceedings in a timely way

is, in itself, a potential and significant injustice. Excluding parties from potentially meritorious appeals also runs the risk of injustice.

Prejudice to successful parties who have operated on the basis that, once the time for appeal has expired, the proceedings (or any

relevant aspect of the proceedings) are at an end, must also be a significant factor. The proper administration of justice in an orderly

fashion is also a factor of high weight. Precisely how all of those matters will interact on the facts of an individual case may well

require careful analysis. However, the specific Éire Continental criteria will meet those requirements in the vast majority of cases.

3.4 First, it should be said that it is difficult to envisage circumstances where it could be in the interests of justice to allow an appeal

to be brought outside time where the Court was not satisfied that there were any arguable grounds of appeal established. It can not

be in the interests of justice to allow wholly unmeritorious appeals to progress.

3.5 Likewise, in most straightforward cases, a party will be aware of the time limit within which an appeal should be brought (or if not,

ought to be so aware) and should not be allowed an extension of time unless a decision to appeal was made in time and there is a

good reason for the appeal not having been filed within the time limit. In the vast majority of cases the only materials which any party

will need to consider in deciding whether to appeal will be the materials which were before the judge deciding the case at first

instance. A party who has participated in proceedings before the High Court (or who ought to have so participated) will or ought to

be aware of all of the evidence called, of the legal submissions made and of the reasoning of the trial judge in coming to whatever

conclusion it might now be sought to appeal against. Such a party has available to it all of the information necessary to make its mind

up as to whether it wishes to appeal. In that context it is not unreasonable to require the party, in the interests of the overall

administration of justice and the balance of justice as and between the parties, to come to a decision within the time specified and to

bring the appeal either within that time or such further period as the Court might, exceptionally, allow if there is some excuse for the

notice of appeal not being filed in time. Thus the specific Éire Continental criteria will, in the vast majority of cases, be likely to be the

only test applied by the Court.

3.6 However, there can be cases where different considerations apply. One such category of case is where, unusually and

exceptionally, the basis of the appeal stems from factual circumstances outside of the materials which were before the High Court. Of

course in the vast majority of cases materials outside those which were before the High Court will not be relevant to any appeal in

any event. However, in unusual cases (and an allegation of a reasonable apprehension of objective bias is one of them) facts which

did not form part of the materials before the High Court are relevant. It is obvious that, in such cases, different considerations may

apply.

3.7 It seemed to me to remain the case that an arguable basis for appeal on the grounds of a reasonable apprehension of bias must,

nonetheless, be established for without such an arguable basis for an appeal the interest of justice would not be served by extending

time to allow an unmeritorious appeal to go ahead.

3.8 However, the other two specific criteria, which are concerned with the time within which the appeal should have been brought,

need to be modified in cases where the whole basis of the appeal is dependent on facts not before the trial court. In such

circumstances I was satisfied that the Court should consider the following factors:-

(a) The time when the party seeking an extension of time first became aware of the facts on which it wishes to rely;

(b) The extent to which it was reasonable for that party to engage in further inquiry before bringing an application to the

Court for an extension of time;

(c) The time which elapsed between information coming to the attention of the relevant party and the application for an

extension of time measured by reference to the tight limit of 21 days within which a party is expected, in an ordinary

case, to appeal to the Supreme Court; and

(d) Any other factors arising in the special circumstances of the case but in particular any prejudice which might be said

to have been caused to the successful party in the High Court by reason of the overall lapse of time between the order

sought to be appealed against and the application for an extension of time.

3.9 It seemed to me that such a test is an appropriate adaption of the specific Éire Continental criteria in the circumstances of the

type of case with which this Court is currently concerned being one where the entire basis of the appeal (or at least the aspect of it

which concerns reasonable apprehension of bias) is founded on facts which did not form part of the materials before the trial court.

3.10 In that context I propose first to set out the reasons why I considered that it would be appropriate to extend time, on the facts

of this case, in respect of the reasonable apprehension of bias allegation and then go on to set out why I did not consider that an

extension of time should be granted in respect of any of the other grounds sought to be raised.

4. An extension of time to raise the apprehension of bias argument

4.1 The first matters to note are the facts. Mr. Goode averred that, on the 26th September, 2012, he was made aware by Mr.

Seamus Maye, a director of the plaintiff company in the Framus proceedings, that the financial interest or shareholding of Cooke J. in

CRH plc was larger than he had first thought. It must be pointed out that while there is an allegation that Mr. Maye acted improperly

in getting this information, counsel makes no such allegation against Mr. Goode.

4.2 There then followed an exchange of correspondence between the solicitors for Goode and Cooke J. beginning on the 16th

October, 2012. At first, the appellant sought further information on the relevant shareholding, whether direct or indirect, in CRH plc

throughout the currency of the proceedings over which Cooke J. presided. In his reply, the judge confirmed that the appropriate

forum for the issue was in open court and on notice to the other parties. To avoid the potential for any wrongful perception arising,

the initial letter and the response were copied to the other parties. Cooke J. later disclosed to all parties a letter from the liquidator of

Bloxham explaining how details of his shareholding allegedly became known to Mr. Maye. He was then asked to recuse himself from the

case by solicitors for Goode on the grounds of a reasonable apprehension of objective bias. A motion was then issued and the matter

came before Cooke J. again on the 13th November, 2012.

4.3 At that hearing, Cooke J. confirmed the circumstances surrounding his investments, but stated that he was “not following the

matter on a day-to-day basis”. He also stated that he was not aware at that time of an additional share purchase said to have

occurred in or around December 2010. Further, he said that if any objections had been raised following his initial disclosure of a

possible shareholding, he would have made the necessary enquiries to ascertain the exact extent of any shareholding. However, no

such objections had been raised at that time. Orders were then made to allow for the transfer of the case to another judge.

4.4 Thereafter, the solicitors for Goode wrote to the solicitors for CRH and Kilsaran seeking their consent to the late service and filing

of appeals in the Supreme Court against the three abovementioned decisions of Cooke J. In response, they were informed that all the

respondents would oppose any such application for the enlargement of time. The final response was received on the 10th December,

2012, and motions were issued the following day, the 11th December, 2012.

4.5 I will leave over a discussion of whether there are arguable grounds until the end. However, on the evidence it seemed clear that

Mr. Goode only became aware of the detailed facts on which he now wishes to place reliance in September, 2012. In that context it

is said that those facts could have been ascertained earlier had the trial judge been asked and that, in the light of the fact that the

trial judge had made some reference to a CRH shareholding at an early stage, Goode could no longer rely on its absence of detailed

knowledge given what is said to have been its failure to make appropriate inquiries. A similar argument was put forward on behalf of

CRH, supported by Kilsaran, to suggest that, by not objecting to Cooke J. hearing the case at the time in question, Goode must be

taken to have waived any entitlement to object at this stage. The question of any potential waiver is a matter to which I will return

when dealing with arguable grounds.

4.6 However, so far as meeting the test for an extension of time is concerned, it seemed to me to be clear that Goode did not know

of the facts on which it now wishes to rely (irrespective of whether those facts provide a basis for setting aside any or all of the

judgments and orders) until September, 2012. The next question which arose was as to whether the lapse of time between finding

out about at least some of those facts (on the 26th September) and the bringing of the applications currently before this Court for an

extension of time (December 11th) was sufficient to debar Goode from an extension of time which might otherwise have been

available had it moved to bring these applications for extensions of time more quickly.

4.7 The first point to be noted is that the facts which had come to Goode's attention concerned questions relating to the private

assets of a judge of the High Court. It would not, in those circumstances, be appropriate for a party to immediately bring an

application before the courts which might turn out to ill-founded without at least making some attempt to ascertain the true facts

with greater accuracy. While it may be legitimate to criticise Goode for having written, through its solicitors, to the trial judge without

copying any such correspondence to CRH or Kilsaran, nonetheless it seems to me that it was entirely appropriate for Goode to seek to

clarify the issues raised concerning the trial judge's shareholding in CRH to the greatest extent possible before bringing an application

to court seeking an extension of time. If, indeed, Goode had taken the opposite course and gone straight to court, such a course of

action might well have been criticised on the basis that it was precipitate without having attempted to ascertain all material facts.

4.8 Next it was said that, even if some allowance is made for inquiries with the trial judge, Goode was in possession of sufficient

information when the matter came back before the Court on the 13th November, 2012, to enable it to suggest to the trial judge that

he should recuse himself so that, it is said, at the very least there should have been no further delay thereafter. It is true that the

period which elapsed between that court hearing and the bringing of these applications was 27 days which exceeds the 21 day period

which would normally be allowed for the bringing of an appeal. However, it is clear that, within that period, letters were written on

behalf of Goode to the solicitors for the defendants which indicate that there was an intention to seek to appeal at that stage and

inviting consent to such an extension. In those circumstances I was not satisfied that there was any delay such as would disqualify

Goode from being entitled to an extension of time to appeal which was otherwise justified. In that context it was necessary to turn to

the question of whether there were arguable grounds for appeal.

5 Are there arguable grounds?

5.1 I concluded that there were arguable grounds for appeal on the basis of an allegation of a reasonable apprehension of objective

bias. As, in those circumstances, it is clear that an extension of time to argue at least those grounds must be granted and as,

therefore, those issues will fall to be considered in early course by this Court, I do not feel that it is appropriate to say much more on

the subject.

5.2 I was satisfied that it is arguable that the facts, as they currently appear, would meet the test for a reasonable apprehension of

bias as identified in the jurisprudence. I was also satisfied that it is arguable that the difference between what was originally disclosed

by the trial judge in advance and that which is now known is sufficient to warrant a finding that Goode could not be said to have

waived any entitlement to rely on that shareholding as giving rise to a reasonable apprehension of bias. Finally, I was satisfied that it

is arguable that Goode was not placed on any further inquiry by the judge's initial disclosure or, at least, were not so placed in a way

which clearly debars them from being able to rely on the additional information now available. In those circumstances I was satisfied

that there are arguable grounds for appeal on the bias question made out and, therefore, in all the circumstances, that it was

appropriate to extend time in respect of each of the appeals. The only matter which remained for consideration was the question of

whether Goode should be allowed rely on any of the other grounds sought to be raised in the appeals.

6. The other grounds

6.1 The first observation which needs to be made in respect of the other grounds sought to be raised is that there was nothing to

prevent Goode from fully raising any of those grounds of appeal within the time limit specified. Counsel characterised some of the

rulings of the trial judge as "harsh". It is not for this Court, certainly on these applications, to comment on that point. But even if it

were possible to so characterise any or all of the relevant rulings of the trial judge in that way then that surely would make it all the

more surprising that an appeal was not brought at that time.

6.2 For the purposes of example I will deal with the ground of appeal in respect of the order for security for costs which suggests

that, in the light of this Court's judgment in Mavior, the relevant order should not have been made. Counsel sought to characterise

the decision of the trial judge as being one which departed from the general drift of prior case law and, in that context, sought to

suggest that this Court's ruling in Mavior simply reaffirmed the generally understood position concerning the circumstances in which an

unlimited company could be considered to be a nominal plaintiff. The judgment of the trial judge in these proceedings on the security

for costs issue did, of course, pre-date the decision of this Court in Mavior. But if, in Goode's view, the decision of the trial judge was

so at odds with the pre-existing jurisprudence then it is all the more surprising that an appeal was not brought at that time.

6.3 Next, it needs to be emphasised that the fact that there may be a development in relevant jurisprudence after a decision of the

High Court does not, of itself, provide a legitimate reason for extending time for an appeal. A party who loses a case or a particular

application in the High Court has to make a decision, at that time, as to whether it wishes to appeal. Doubtless, at least in some

cases, the possibility that there may be an evolution or clarification in relevant jurisprudence should an appeal be brought is a factor

which a party ought to properly take into account. Parties, in their assessment of the chances of successfully appealing, must take a

view on the possibility of this Court analysing the relevant jurisprudence in a way which might involve an evolution of same to their

advantage. Likewise, a party who feels that a decision of the High Court involves a departure from existing jurisprudence has to

assess the likelihood of this Court agreeing with the departure in question. But in all such cases the party has to make its mind up, at

the time of the decision of the High Court, whether it wishes to appeal. If the party decides not to appeal it cannot then complain if it

is deprived of the benefit of some subsequent evolution in the jurisprudence which it could have urged on the Supreme Court in its

own case but chose not to.

6.4 Next, it was suggested that there is a potential connection between the reasonable apprehension of bias argument and the other

points sought to be raised. As the argument goes it is suggested that Goode is entitled to a decision of the High Court in respect of

which there is not a reasonable and objective apprehension that the trial judge's views may have been influenced in a way which

ought lead to the decision of the trial judge being set aside and the matter being remitted back for reconsideration by another judge.

It was said that those considerations colour all of the decisions made by the trial judge. I was not persuaded by that argument. If

Goode succeeds on the bias point (which point, in my view, it should be allowed to argue by extending time for the filing of a notice

of appeal in that regard), then each of the applications will be returned to the High Court for determination by another judge and any

points (including, for example, the Mavior point) can be canvassed before that judge. Goode will be entitled to an unimpeachable

decision of the High Court taking into account any factors which the High Court judge considers to be relevant. It will thereby have

its remedy.

6.5 On the other hand, if Goode fails to persuade this Court, on appeal, that there was a reasonable apprehension of bias then why,

as a result of raising what would, in those circumstances, turn out to be an unmeritorious bias point, should it get the opportunity to

raise points on appeal which it could well have raised in the past but decided not to do.

6.6 The whole rationale behind allowing Goode to now raise the reasonable apprehension of bias point was precisely because it

derived from facts and materials which were not before the High Court and which only came to the attention of Goode at a relatively

late stage in the process. None of that rationale has any application to any of the other points which arise entirely out of the facts

and materials which were before the High Court and in respect of which no new information or materials have become available. To

the extent that the allegation of bias might be said to be a new material item then, if it be established, Goode will have its remedy

anyway and if it be not established then it cannot be said to have affected any of the other points.

6.7 For those reasons I was not persuaded that Goode should be allowed raise, on appeal, any points beyond those which were

concerned with a reasonable apprehension of bias.

7. Conclusions

7.1 For those reasons I was satisfied that it was appropriate to extend the time for the service of a notice of appeal in each of the

three applications.

7.2 However, I was also satisfied that the extension of time should be confined so as to permit only grounds connected with the

contention of reasonable apprehension of bias to be raised.