Judgment Title: P. -v- Judge Mc Donagh
Composition of Court:
Judgment by: Clarke J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 316
THE HIGH COURT
2008 1190 JR
HIS HONOUR JUDGE DONAGH MC DONAGH
JUDGMENT of Mr. Justice Clarke delivered on the 10th July, 2009
2.5 Mr. P had not given any evidence at that stage of the proceedings. During the course of the lunch break and for the remainder of the afternoon, Mr. P and Mrs. P sought and were given time to attempt to settle the issues between them. By close of business on the same day, the learned Circuit Court judge was informed that the parties had reached a settlement agreement which was being reduced to writing and, on that basis, the parties sought to adjourn the case. The learned Circuit Court judge agreed to the adjournment sought and the case resumed on 30th July, 2008, for the purpose of the court ruling on the settlement which had been reach between the parties. Typed settlement terms were handed into court.
2.9 There is a dispute as to whether the learned Circuit Court judge in fact made this statement. Evidence as to such a statement having been made was given on affidavit by Mr. P’s solicitor and confirmed by a further affidavit from counsel. The solicitor for Mrs. P, who was present in court during the family law proceedings concerned, has given evidence to the effect that she does not recall this statement being made by the learned Circuit Court judge. In her affidavit, the solicitor for Mrs. P described the comment as being as follows:-
2.10 Counsel for Mr. P submitted to the learned Circuit Court judge that that no orders could be made at that point as Mr. P had not gone into evidence. Mr. P, through counsel, stated that he was distressed by the learned Circuit Court judge’s statements and requested that another judge continue to hear the case. Counsel requested that the learned Circuit Court judge discharge himself from the remainder of the case. The learned Circuit Court judge refused to disqualify himself.
(b) “I want to see a 55/45 split in favour of the applicant.”
(c) “I want to see a figure of €240,000 before I will rule the settlement.”
(d) “The respondent could give the applicant a further field.”
(e) “If your client is not prepared to give the sum, there is an easy solution. I will just make an order in those terms.”
3.3 Mrs. P opposed the application on a number of grounds, including that the learned Circuit Court judge was bona fide exercising his clear statutory obligation to ensure that proper provision was made. Mrs. P further argued that Mr. P failed to draw the court’s attention to matters adverse to his application at the ex parte leave stage of the judicial review proceedings. Mrs. P also argued that an appeal would be an adequate remedy in all the circumstances of the case and that an order of Prohibition should not, therefore, be given even if Mr. P were correct as to his allegation of pre-judgment.
(a) At the date of the institution of the proceedings, the spouses have lied apart form one another for a period of, or periods amounting to, at least four years during the previous five years,
(b) There is no reasonable prospect of reconciliation between the spouses,
(c) Such provision as the courts considers proper having regard to the circumstances exists or will be made for the spouses and any dependant members of the family, the court may, in exercise of the jurisdiction conferred by Article 41.3.2 of the Constitution, grant a decree of divorce in respect of the marriage concerned.
(2) Upon the grant of a decree of divorce, the court mat, where appropriate, give such directions under section 11 of the Act of 1964 as it considers proper regarding the welfare (within the meaning of that Act), custody of, or right of access to, any dependant member of the family concerned who is an infant (within the meaning of that Act) as if an application had been made to it in that behalf under that section.”
5.3 In relation to the issue of bias, Mrs. P submitted that there was no evidence of any previous non-judicial position, statements or actions of the learned Circuit Court judge such as might raise the question of objective bias on his part.
6.3 In the Australian case of Webb v. the Queen (1993-1994) 181 C.L.R. 41, Mason C.J. described the reasoning for the objective test for bias as follows:-
6.4 In O’Neil v. Beaumont Hospital Board  I.L.R.M. 419, at p. 438, Finlay C.J. described that test as:-
6.5 In Orange Ltd v. Director of Telecoms (No.2)  4 IR 159, Keane C.J. stated, at p.186, that cases coming within the pre-judgment category of bias call for an application of the test as to whether there is a reasonable apprehension of bias. Also in Orange, Geoghegan J. approved the use of the test of reasonable apprehension of bias stating as follows, at p. 252:-
6.6 That bias exists prior to the decision or contemplated decision seems, in general, to be the case, as held by Barron J. also in Orange where, are p. 221, the following is stated:-
6.7 The Irish Courts have not set down a finite definition of what will amount to bias. In relation to defining what will constitute bias, Barron J. stated as follows in his decision in Orange Ltd (at p. 228):-
6.8 While holding that the principles of bias are too wide be conclusively defined, Barron J. favourably cited the factors listed in the English case of Locabail (UK) Ltd v. Bayfield Properties Ltd  1 W.L.R. 870, the Court of Appeal, sought to deal with the many situations where bias might be alleged. In Locabail, the Court of Appeal, while highlighting that it would be dangerous and flute to attempt to define or list such factors which may give rise to a finding of bias, set out a purposefully incomplete definition of bias, holding that each case depends on its own facts and stating, at p. 887, the following:-
6.10 It seems to me, therefore, that amongst the factors which a court should have regard to is the effect which an ambiguous statement by an adjudicator might reasonably have on persons connected with the process. If an adjudicator makes a statement which is reasonably capable of being intrepreted by an objective and informed bystander as implying that pre-judgment exists, then that is a factor to be weighed significantly in the balance in a challenge to the continued role of the adjudicator in question in the process under challenge.
9.3 In Bula, the Supreme Court did not consider the applicant’s lack of clean hand as sufficient in itself to cut him off from the reliefs that he sought. However, it was seen as a matter to be weighed in the balance when reaching a conclusion on the case.
10.2 In Gill v. Connellan,  I.R. 541, the court held that an application for certiorari by way of judicial review was not to be regarded as a readily available alternative to an appeal by way of re-hearing to a higher court. In that case, however, due to interruptions by the trial judge concerned, Lynch J., in this Court, was satisfied that the case had not been adequately heard and that, therefore, an appeal could not be said to be by way of rehearing and, consequently, that judicial review was the appropriate remedy.
10.4 Therefore, in this case, the question is as to whether Mr. P has a sufficient remedy available to him in an appeal to this Court from the decision of the learned Circuit Court judge. Could the failure of natural justice in the Circuit Court be cured by an appeal de novo to the High Court? A right of appeal from the Circuit Court to the High Court in cases where oral evidence has been given is provided by s. 38 of the Courts of Justice Act 1936. In the recent decision of F. & Ors v. Judge O'Donnell & Ors  IEHC 142, O’Neill J., addressing the issue of the adequacy of an appeal to a higher court, stated:-
‘… even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may, in principle do so…’
It was open to the applicants to appeal to the Circuit Court, which would have ensured a full re-hearing on all the issues of law and fact. The central complaint of the applicants in both cases, that they suffered a breach of fair procedures in the District Court, would not have been addressed in the context of an appeal. However, an appeal to the Circuit Court would have dealt with all issues between the parties arising from their original disputes, and, as it would have been a complete rehearing, the applicants’ grievances in these judicial review proceedings, that they did not get a fair hearing, would have been remedied, even though the specific issue that arises in these judicial review proceedings would not have been considered by the Circuit Court in the appeals.”
10.5 There is no doubt but that if Mr. P were to be dissatisfied with any decision which the learned Circuit Court judge might ultimately come to in this case, he would have the opportunity to have a judge of this Court consider the merits of any provision which might properly be made for Mrs. P afresh. Where, however, a case is made out that an applicant, on the basis of an objective test, was entitled not to be satisfied that he was going to get a fully impartial hearing, then it seems to me that it would amount to a failure to adequately vindicate such parties rights to require them to submit to the adjudication concerned, subject only to a right of appeal.