THE COURT OF APPEAL
CIVIL
Neutral Citation Number: [2016] IECA 273
Finlay Geoghegan J.
Peart J.
Irvine J.Appeal No.: 2015/424
VICO LIMITED, ALEXANDRA O’DONNELL, BLAISE O’DONNELL,
BRUCE O’DONNELL AND BLAKE O’DONNELL
APPELLANTS/PLAINTIFFS
AND
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND,
BANK OF IRELAND PRIVATE BANKING LIMITED, TOM KAVANAGH, DAVID HARRIS, GARY HEPBURN, DECLAN KENNY, KEVIN BROMLEY, KATHERINE GEORGINA HARDING, ELAINE HIGGINS, GETHIN TAYLOR, LYNDSEY LUDGATE, KEITH JONES,
FIRST NAMES TRUST COMPANY (ISLE OF MAN) LIMITED AND
CHANCERY TRUSTEES LIMITED
RESPONDENTS/DEFENDANTS
JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 12th day of October 2016
1. This appeal as issued is against an order of the High Court (McGovern J.) of the 28th July, 2015, made pursuant to a written judgment delivered on the 24th July, 2015.
2. That judgment and order concerned an application made by the first, second and third named defendants (“the defendants”) pursuant to a notice of motion dated the 17th April, seeking orders:-
1. Directing the vacating of a lis pendens registered on the application of Vico Limited (“Vico”) in relation to the property and lands in Killiney Co. Dublin known as “Gorse Hill”.
2. An order striking out the claims of the plaintiffs against the defendants on the grounds that the claims are res judicata and/or an abuse of process.
3. In the alternative order striking out the said claim pursuant to O. 19, rr. 27 and 28 of the Rules of the Superior Courts.
3. The said motion was heard on affidavits sworn on behalf of the defendants and by the second to fifth named plaintiffs. Mr. Blake O’Donnell who is a solicitor admitted in England and Wales represented Vico and himself and his siblings relied upon his submissions. The order made by the High Court was that the lis pendens registered against Gorse Hill be vacated and that the claims of the plaintiffs against the defendants be struck out and an order for costs was made in favour of the defendants against the plaintiffs.
4. The remaining defendants did not participate in the motion before the High Court and are not respondents to the appeal and hence references in this judgment to “the defendants” are unless otherwise stated, means the first, second and third defendants only.
5. The notice of appeal served on behalf of the plaintiffs also sought to appeal against a determination of the High Court judge that he should not recuse himself. That decision had been made on the 27th April, 2015. This Court has the transcript of that hearing. On that date the High Court judge considered and determined a number of matters in relation to the defendants' motion and the application for entry of the proceedings into the commercial list and related application for directions. These included directions in relation to further affidavits on the defendant’s motion. No order of the High Court was drawn at that time. Subsequent to the lodging of the appeal from the order of 28th July, 2015, to this court, an order in respect of the decisions made on 27th April, 2015, was drawn and perfected on the 3rd November, 2015.
6. By agreement between the parties to the appeal this Court was asked to determine, as part of this appeal, the plaintiffs appeal against the refusal of the judge to recuse himself from these proceedings, such decision having been made on the 27th April, 2015.
Background
7. The issues raised by this appeal can only be understood in the context of the disputes between the first named defendant (“the Bank”) and the third named defendant (“the Receiver”) and the plaintiffs and the parents of the second to fifth named plaintiffs (“Mr. and Mrs. O’Donnell”) and the related litigation. The second to fifth named plaintiffs have in a number of judgments, notwithstanding their majority, been referred to as “the O’Donnell Children” and I propose continuing that appellation.
8. In 2010, the Bank commenced summary proceedings against Mr. and Mrs. O’Donnell in respect of joint and several borrowings. Ultimately in those proceedings there was a judgment in favour of the Bank against Mr. and Mrs. O’Donnell in December 2011, for a sum of approximately €71m. Vico had guaranteed the liabilities of Mr. and Mrs. O’Donnell to the Bank and granted security over property of which it undisputedly was the legal owner. The property at Vico Road, Killiney, is known as Gorse Hill. In June 2012, the Bank made demand on Vico and in default of payment appointed the third named defendant as Receiver over Gorse Hill.
9. On the 30th July, 2012, the O’Donnell Children commenced plenary proceedings (2012 No. 7554 P) against the Bank, Bank of Ireland Private Banking Limited (“BOIPB”) and the Receiver seeking declarations that the deeds of mortgage, guarantees and indemnities executed by Vico in favour of the Bank were void and of no legal effect and related declarations. Those proceedings were heard by the High Court in July 2013 and by written judgment of the 31st July, 2013, the reliefs claimed were refused. Pursuant to that judgment by order of the 12th September, 2013, the High Court ordered, inter alia, that the O’Donnell Children vacate the premises at Gorse Hill by Monday the 21st October, 2013.
10. The O’Donnell Children appealed the High Court judgment and order and by agreement were not required to give up possession pending determination of the appeal. The appeal was dismissed for the reasons set out in a written judgment delivered by Laffoy J. on the 19th December, 2014.
11. Following a further hearing before the Supreme Court by order of the 2nd February, 2015, it ordered that the period in the High Court order of the 12th September, for the O’Donnell Children to vacate Gorse Hill be extended to 12.00 noon on Monday the 2nd March, 2015.
12. Throughout this period the O’Donnell Children, or some of them, had been living at Gorse Hill and Mr. and Mrs. O’Donnell had been living in England. Shortly prior to the 2nd March, Mr. and Mrs. O’Donnell returned to live at Gorse Hill.
13. On the 25th February, 2015, the present proceedings were issued by Vico and the O’Donnell Children (2015 No. 1553 P). The reliefs sought in the plenary summons include declarations that the guarantees, indemnities, mortgage and charges granted by Vico to the Bank are void and orders “overturning” the orders made by the High Court on the 12th September, 2013 and the Supreme Court on the 2nd February, 2015, requiring the O’Donnell Children to vacate Gorse Hill by the 2nd March, 2015.
14. In these proceedings a motion was issued on the 25th February, 2015, by the plaintiffs seeking interlocutory injunctions restraining the Bank, BOIPB and the Receiver from taking possession of Gorse Hill and also seeking a stay on the order of the High Court of the 12th September, 2013, as varied by the Supreme Court order of the 2nd February, 2015. The application was heard by McGovern J. and an ex tempore judgment delivered on the 3rd March, 2015, refusing the application upon the basis that the plaintiffs had not established a fair issue to be tried.
15. In the meantime the Bank and the Receiver had instituted proceedings against Mr. and Mrs. O’Donnell and issued a motion seeking an interlocutory injunction restraining the defendants and others with notice of the order from inter alia, trespassing, interfering with or entering Gorse Hill and also an order directing Mr. and Mrs. O’Donnell and others to vacate Gorse Hill and restraining interference and obstruction with the Receiver. Following a hearing, orders to that effect were made in those proceedings by McGovern J. on the 12th March, 2015. That order and judgment was the subject of an appeal to this Court. That appeal was inter alia against a refusal by McGovern J. to recuse himself from hearing the injunction application. The appeal was dismissed for the reasons set out in a judgment of the Court delivered on the 15th April, 2015. The members of the Court who subscribed to that judgment are the same members of the Court who heard the present appeal.
16. Subsequently leave was refused by the Supreme Court to appeal against the judgment and order of this Court.
17. There had been other proceedings between the Bank and members of the O’Donnell family, in particular in relation to the adjudication of Mr. and Mrs. O’Donnell as bankrupt. It is not necessary to refer to those proceedings for the purposes of an understanding of the issues in this appeal.
18. As already indicated, in these proceedings the defendants who are jointly represented issued a motion seeking to have the lis pendens vacated and the proceedings struck out. I propose firstly considering the appeal against the decision of the High Court on that motion. It was heard on extensive affidavit evidence which inter alia referred to the pleadings and judgments in the earlier proceedings. The motion was heard in June 2015 and the High Court judge reserved his judgment and delivered a considered written judgment on the 24th July, 2015.
High Court decision on defendants’ motion
19. The High Court in summary acceded to the defendants' application that the plaintiffs’ claims be struck out in application of the principles in Henderson v. Henderson (1843) 3 Hare 100, as restated and expanded upon by Bingham L.J. in Johnson v. Gore Wood & Co [2002] 2 AC 1 and approved of and applied in this jurisdiction by the Supreme Court inter alia in Carroll v. Ryan [2003] I.R. 309, A.A. v. Medical Council [2003] 4 IR 302 and Re. Vantive Holdings [2010] 2 I.R. 118. In accordance with the principles set out therein the trial judge distinguished between the position of the O’Donnell Children who were parties to the prior Gorse Hill proceedings and that of Vico which was not a party to the proceedings, but as an Isle of Man company limited by shares, was a separate legal person albeit as he determined in the full control of the O’Donnell Children as of the 18th July, 2012, and could have been joined in the Gorse Hill proceedings as a co-plaintiff or could have initiated parallel proceedings at that time against the Bank.
Appeal
20. The appellants do not contend that the legal principles identified by the High Court judge were incorrect. Rather they submit that he incorrectly applied those principles to the facts. The relevant facts identified by the trial judge are not in dispute.
21. The primary submission of the appellants in relation to the position of Vico is that it was not a party to the Gorse Hill Proceedings and that those proceedings did not deal with the alleged breach of fiduciary duties of the then directors of Vico in entering into the relevant guarantees and indemnities with the Bank and granting security over the property at Gorse Hill. They submit that there was no finding by the High Court or Supreme Court in the Gorse Hill proceedings against Vico that the securities granted by it are valid. They seek to raise in these proceedings the absence of any resolution of Vico authorising the granting of the securities and to allege that the giving of the guarantees and granting of securities were ultra vires Vico.
22. In relation to the position of both Vico and the O’Donnell Children, they seek to rely upon the fact that the present proceedings include claims which were not made in the Gorse Hill proceedings and in particular an allegation that the Bank either negligently or fraudulently represented that BOIPB was a credit institution or bank within the meaning of s. 7 of the Central Bank Act 1971. However, Mr. O’Donnell was careful in his oral submission to this Court to state and whilst he contended, as appears to have been correct that witnesses on behalf of the Bank may have referred to BOIPB as a bank, that he was not saying that evidence was given that it was a licensed bank.
23. The appellants separately contended that the trial judge was in error in acceding to the application of the defendants in advance of their filing a defence in the proceedings.
24. The respondents relied upon the High Court judgment as correctly stating the applicable principles and applying them correctly to the facts. In particular they rely upon the identity of the purpose and object of the Gorse Hill proceedings and present proceedings; the similarity of the reliefs sought; the fact that the O’Donnell Children were the shareholders of Vico at the time of commencement of the Gorse Hill proceedings and their parents the directors of same and the subsequent application brought on their behalf in the Gorse Hill proceedings to join Vico as a defendant which was withdrawn before it was heard. They relied extensively upon the judgment of Laffoy J. in the Supreme Court in the Gorse Hill proceedings which addressed the relevant issues and identified other issues which had been before the High Court, but which were not proceeded with on appeal. They submit that there was no evidence before the High Court, in relation in particular to the Bank/BOIPB issue, that any relief in the Gorse Hill proceedings was obtained by fraud.
The Law
25. The rule in Henderson v. Henderson, as it is commonly known deriving from the decision in Henderson v. Henderson (1843) 3 Hare 100 is a rule to prevent abuse of process. The underlying principle is similar to that in res judicata namely the public interest in those who resort to litigation obtaining a final and conclusive determination of their disputes.
26. I would adopt the explanation of the rule given by Cooke J in the High Court in Re:Vantive Holdings & Others and the Companies Acts 1963-2006 [2009] IEHC 408, para. 32-33. and cited on appeal by Murray C.J. in Re. Vantive Holdings [2010] 2 I.R. 118, at p. 124:-
“The rule in Henderson v. Henderson is to the effect that a party to litigation must make its whole case when the matter is before the court for adjudication and will not afterwards be permitted to reopen the matter to advance new grounds or new arguments which could have been advanced at the time. Save for special cases, the plea of res judicata applies not only to issues actually decided but to every point which might have been brought forward in the case. In its more recent application this rule is somewhat mitigated in order to avoid its rigidity by taking into consideration circumstances that might otherwise render its imposition excessive, unfair or disproportionate.”
27. The special cases referred to by him are those primarily where the judgment was procured by fraud: see Dublin Corporation v. Building and Allied Trade Union [1996] I.R. 468 at 481. The nature of the fraud which must be proved was identified by Fennelly J. in Kenny v. Trinity College Dublin [2008] IESC 18, at paras. 54 to 55 where he set out the evidential requirements in an action to set aside a final judgment:-
“54. I am satisfied that, in order to ground an action to set aside a judgment, the plaintiff must allege fraud in the true sense, that is deliberate and purposeful dishonesty, knowing and intentional deceit of the court. That approach is consistent with the statement of principle made by Keane J, in Dublin Corporation v Building & Allied Trade Union and others, with the interests of parties to litigation who have secured a final decision of a court and with the overriding public interest in finality of litigation.
55. In addition, the fraud alleged must be such as to affect the impugned decision in a fundamental way. It will not suffice to allege that the new situation revealed by the uncovering of the fraud might have affected the judgment. It will not be enough to show, for example, that a witness lied unless it is shown that the true version of his evidence would probably have affected the outcome. . . . I believe that, in an action to set aside a judgment based on an allegation that the court was deliberately deceived into making the impugned decision no less stringent test should be required. There must be something fundamental, something that goes to the root of the case.”
28. The restatement of the abuse of process rule from Henderson v. Henderson by Lord Bingham in Johnson v. Gore Wood & Co. [2002] 2 AC 1 at 31, has been approved of by the Supreme Court in this jurisdiction in a number of cases including Re. Vantive Holdings [2010] 2 I.R. 118. There he stated:-
“. . . But Henderson v. Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in early proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice.”
29. In the same decision Lord Bingham addresses the position where one or more of the parties to the second set of proceedings was not a party to the first proceedings. This is relevant given the addition of Vico (which was not a party to the Gorse Hill proceedings) as a plaintiff in the current proceedings. Lord Bingham at p. 32 determined that the courts below in those proceedings had correctly rejected a submission that the rule in Henderson v. Henderson did not apply because the personal plaintiff, Mr. Johnson had not been a party to the first action, but rather a company had been. He then identified as the correct approach that formulated by Sir. Robert Megarry V.C. in Gleeson v. J. Wippell & Co. Ltd. [1977] 1 WLR 510, where he said:-
“Second, it seems to me that the substratum of the doctrine is that a man ought not to be allowed to litigate a second time what has already been decided between himself and the other party to the litigation. This is in the interest both of the successful party and of the public. But I cannot see that this provides any basis for a successful defendant to say that the successful defence is a bar to the plaintiff suing some third party, or for that third party to say that the successful defence prevents the plaintiff from suing him, unless there is a sufficient degree of identity between the successful defendant and the third party. I do not say that one must be the alter ego of the other: but it does seem to me that, having due regard to the subject matter of the dispute, there must be a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party. It is in that sense that I would regard the phrase ‘privity of interest’.”
Conclusion
30. I have concluded that the trial judge both correctly identified the above principles as those to be applied and correctly applied the principles to the facts herein in deciding to strike out the plaintiffs’ claims in these proceedings. My reasons are as follows.
31. It is necessary to distinguish between the position of the O’Donnell Children who were parties to the Gorse Hill proceedings and Vico which was not. In relation to the O’Donnell Children, I am satisfied from a careful consideration of the plenary summons and statement of claim in these proceedings, together with the grounding affidavits on the motion and the judgments, in particular that of Laffoy J. in the Supreme Court in the Gorse Hill proceedings that all of the claims which the O’Donnell Children now wish to pursue in these proceedings were claims which either were made and pursued or ought to have been made and pursued in the Gorse Hill proceedings. Mr. O’Donnell in the course of submissions accepted that the object of both sets of proceedings is the same, namely to have declared void the securities given by Vico to the Bank and to prevent the Bank or Receiver taking possession of Gorse Hill. It is of course necessary as identified by Lord Bingham that the court consider all the relevant facts and not just decide the question having regard to the object of the proceedings. Nevertheless it is relevant that in the Gorse Hill proceedings as identified by the Supreme Court per Laffoy J. at para. 2 of her judgment that “the primary objective of the appellants was and is to procure that the securities held by [the Bank and BOIPB] over Gorse Hill should be declared to have no effect or should cease to have effect”. That is similarly the primary object of the present proceedings.
32. In relation to the contention made on behalf of the appellants in relation to the position of BOIPB and either the evidence given or new facts available, in my judgment the appellants have not adduced any facts which would meet the test identified by Fennelly J. in Kenny, so as to claim that the earlier judgments were obtained by the Bank or BOIPB by reason of fraud. Further the evidence demonstrates that, from the outset, the facility letters to Mr. and Mrs. O’Donnell constituting the loan agreements guaranteed by Vico indicated that the monies were loaned by “The Governor and Company of the Bank of Ireland through its subsidiary Bank of Ireland Private Banking Limited”. Further certain of the facility letters i.e. that of the 10th May, 2006, exhibited as BOC8 to the affidavit of Brian O’Connor sworn on the 17th April, 2015, in the motion in the High Court states at p. 3: “Bank of Ireland Private Banking is regulated by the Financial Regulator as a Mortgage Intermediary”.
33. Further, I do not accept the appellants’ submission that the High Court was incorrect in deciding the defendants' application to strike out the proceedings as an abuse of process in advance of their filing a defence. As pointed out by Lord Bingham in Johnson v. Gore Wood at p. 34 “an application to strike out for abuse of process is not a defence; it is an objection to an action being brought at all”. The nature of the action now sought to be brought by the plaintiffs herein was evident from the statement of claim filed and the application could be determined having regard to the statement of claim.
34. In relation to the position of Vico, I have concluded that the trial judge was correct in deciding that upon the facts herein, there was a “sufficient degree of identity” between Vico Limited and the O’Donnell Children in the words of Megarry V-C to make the decision in the Gorse Hill proceedings binding on it and preclude further proceedings seeking to declare void the security granted by it to the Bank.
35. The evidence is that on the 18th July, 2012, the shares in Vico Limited were transferred to the O’Donnell Children. At about the same time Mr. and Mrs. O’Donnell became directors of Vico Limited. Thus the O’Donnell Children could have joined Vico Limited as a party to the Gorse Hill proceedings when they commenced same on the 30th July, 2012, or could have sought to join it as a plaintiff at a later date. They did bring an application to join it as a defendant shortly before the hearing in the High Court in 2013, but did not proceed with that application. Mr. O’Donnell in submission referred to the fact that for some part of the period during which the Gorse Hill proceedings were extant Vico was struck off the register in the Isle of Man. That fact in my view does not alter the position that Vico, at relevant times, was wholly owned by the O’Donnell Children and it was within their power and procurement to join it as a party to the Gorse Hill proceedings. They arranged to have it restored to the register prior to commencement of these proceedings.
36. Further, Laffoy J. in her judgment in the Supreme Court in the Gorse Hill proceedings having stated the primary object of the proceedings was to declare the securities granted by Vico Limited void or of no effect, at para. 75 of her judgment identifies the basis upon which the O’Donnell Children pleaded that they were entitled to the relief sought which included matters now sought to be raised namely “the giving of the guarantees and the related securities to the Bank by Vico Limited contravened the relevant company legislation under which it was incorporated”.
37. Further notwithstanding that Vico was not a party to the Gorse Hill proceedings, the trial judge considered and determined certain claims in relation to the alleged ultra vires acts of Vico in granting the security and alleged breach of duty of the then directors of Vico. On appeal to the Supreme Court it appears that no appeal was pursued against those findings adverse to the plaintiffs in the Gorse Hill Proceedings. At para. 144 of her judgment Laffoy J. stated:-
“As, because of the re-orientation by the appellants of their case, there was no issue on the appeal as to the capacity of Vico Limited to grant the guarantees and related securities over its asset, Gorse Hill, to the Bank, and there was no contention that the directors of Vico Limited acted in breach of their fiduciary duties, they having obtained the sanction of the sole shareholder, the Trustee of the Discretionary Trust, to the giving of those guarantees and securities, there is no basis for concluding that the findings of the trial judge, on the basis of the evidence before him as to the law of the Isle of Man, that Vico Limited did have such capacity and that the securities were not given in breach of the fiduciary duties of the directors of Vico Limited were other than correct. Accordingly, those findings stand.”
38. Accordingly, following the approach of Bingham L.J. my conclusion on the “crucial question” is that the High Court was correct in determining that in all the circumstances of these proceedings that all the plaintiffs including Vico in commencing these proceedings is abusing the process of the court by seeking to raise in these proceedings issues which either have been raised or could have been raised in the Gorse Hill proceedings. Further in all the circumstances of this litigation the striking out of the proceedings is not excessive, unfair or disproportionate.
Decision not to recuse
39. As already indicated the appellants have included in this appeal against the order of the High Court made on the 28th July on the first to third named defendants' motion to vacate the lis pendens and strike out the proceedings an appeal against the earlier decision made by McGovern J. in these proceedings on the 27th April, 2015, not to recuse himself from hearing the motion.
40. The respondents to the appeal have taken no technical procedural point against the court determining that appeal as part of this appeal. The court likewise is not taking any technical or procedural point in relation to how the appeal comes before it.
41. Nevertheless I have concluded that in the light of my decision to uphold the substantive decision of the High Court on the defendants' motion to strike out (with which I am aware my colleagues agree) that this Court should not now determine the appeal against the decision of the High Court judge on 27th April, 2015, to refuse to recuse himself for the following reasons.
42. The application to the High Court judge to recuse himself was made at a hearing when the substantive proceedings and the defendants' motion to strike out were before him on the 27th April, 2015. In addition to deciding that he would not recuse himself on either of the grounds advanced he also gave directions inter alia for the filing of further affidavits in preparation for the hearing of the defendants’ motion.
43. The Court has had the copy of the transcript of the hearing on the 27th April, 2015, including the judge’s ex tempore decision on the recusal application and the other directions given. Mr. Blake O’Donnell was present at that hearing. The plaintiffs were therefore aware of his decision not to recuse himself. It does not appear that the plaintiffs made any attempt to appeal that decision at that time or at any point prior to the hearing of the motion on 9th June, 2015. Rather the plaintiffs complied with the directions in relation to the preparation for the hearing of the defendants’ motion including the filing of written submissions and subsequently appeared and participated in the hearing of the defendants’ motion before McGovern J. without further objection. It was only subsequent to the judgment and order on that motion that the plaintiffs sought to include in their grounds of appeal the failure of the trial judge to recuse himself, a decision taken on the 27th April, 2015.
44. This Court has now determined that the substantive decision on the defendants’ motion should be upheld. It has further determined that the correct legal principles were applied to facts identified both in the affidavits on the motion and in the judgments in the earlier proceedings. The hearing on the defendants’ motion was not a hearing on oral evidence and there is no question of the credibility of a witness which a trial judge might have a better view than the appellate court being relevant.
45. The plaintiffs were aware in June 2015, when they participated in the hearing of the defendants' motion before McGovern J. that he had made a decision to which they objected namely that he should not recuse himself from hearing the motion. Notwithstanding this objection they elected not to appeal the decision of the 27th April, but rather to proceed with the hearing before the same High Court judge to which they objected. In reaching this conclusion I have noted that the order of 27th April was not perfected until 3rd November 2015. However that is not relevant as there is no evidence that the absence of a perfected order was relevant to the appellants’ decision to proceed with the hearing of the defendants’ motion before McGovern J. in June 2015. Also a party who wishes to appeal a decision of the High Court in respect of which an order has not yet been drawn or perfected can always apply to the Chief Registrar or the judge to have the order drawn.
46. Even if this Court were now to hold that the High Court judge was in error in refusing to recuse himself and were upon that ground to allow the appeal against the substantive decision on the defendants' motion, the only remedy it could give would be to remit the matter of the High Court for a further hearing of the defendants' motion before another judge. This would be a pointless exercise as this Court has determined on all the material that was before the High Court that the correct decision in application of the correct legal principles was and is to strike out the proceedings. It follows from the strike out order that the lis pendens must be vacated.
47. In those circumstances it appears to me that in accordance with the principles set out by the Supreme Court in cases such as Corrigan v. Irish Land Commission [1977] I.R. 317 that even if this court were to determine that the High Court judge was in error in his decision of 27th April in failing to recuse himself from hearing the defendants’ motion it would not set aside the substantive decision of 24th July on the defendants’ motion in circumstances where the plaintiffs elected to participate in the hearing before the High Court judge in question in full knowledge of his prior decision not to recuse himself.
48. Lest this approach is taken as indicating that I am of the view that the High Court judge wrongly refused to recuse himself on the 27th April, 2015, it is necessary to add the following. The application for recusal was made without a formal notice of motion or affidavit. It is clear from the transcript that it was made on two grounds. The first ground related to allegedly new material available by reason of the publication of a judgment which had been previously delivered by White J. in the High Court in the Ryan v. Ryan proceedings. It was submitted that certain material there meant that this Court’s decision delivered on the 15th April, 2015, in proceedings between the Bank and Mr. and Mrs. O’Donnell; 2015 IECA 73 did not now govern the recusal issue. I have read the judgment of White J. referred to and a subsequent judgment of White J. in the same proceedings. In my view there is nothing in those judgments which would alter the conclusions reached in this Court’s judgment of the 15th April, 2015, in which the same grounds for recusal were relied upon by Mr. and Mrs. O’Donnell.
49. The second ground upon which the trial judge was asked to recuse himself related to certain comments made and indeed on one view conclusions reached in relation to the strength of the plaintiffs’ claims in these proceedings and question as to whether insofar as the O’Donnell Children were concerned certain issues were res judicata in his ex tempore ruling on the application for an interlocutory injunction by the plaintiffs on the 3rd March, 2015. No authorities were opened by either party to the trial judge and the application made in short form. Whilst he was handed up a copy of his ex tempore ruling, there was no detailed consideration of the issues which he would have to determine on the defendants’ motion to strike out the proceedings and their relationship with the issues which he had already decided or upon which he had expressed a view in the course of his ruling on the plaintiffs’ application for an interlocutory injunction.
50. The question as to when a High Court judge, who determines an interlocutory application and in the course of doing so decides issues on a prima facie or arguable case basis or expresses views in relation to the strength of a claim or defence should or should not recuse him or herself from further hearings in the proceedings is a difficult one which require a careful balance between the requirements of the fair and efficient administration of justice and the principles relating to objective bias. The Court was referred to the written judgments of Hedigan J. in E.P.I and Others v. Minister for Justice, Equality and Law Reform [2009] 2 I.R. 254 and McKechnie J. in the High Court in O'Sullivan v. Irish Prison Service [2010] 4 IR 562 on such issues. Since the hearing of this appeal this Court (Irvine J., Sheehan J. and Hogan J. conc) has delivered judgment in the Commissioner of An Garda Síochána and Others v. Penfield Enterprises Limited and Another [2016] IECA 141, which considers similar issues albeit in a slightly different context.
51. It is evident from those judgments that an application for recusal by reason of a prior decision or comments made in the same or related proceedings should not be lightly made. However, if made, it should be properly grounded and pursued in order that the judge may consider carefully in accordance with the relevant authorities whether the application meets the threshold of objective bias or whether the judge should in accordance with the declaration made pursuant to Article 34 of the Constitution continue to hear and determine the case or application. On 27th April, no motion had been issued, and no authorities opened by either party to the judge. It does not appear to me that this Court should on the limited matters raised before the trial judge on that date reach a conclusion as to whether he was or was not correct in circumstances where it is not necessary to do so to determine the appeal.
52. It is also appropriate to add that there is no evidence before this Court to suggest in any way that the trial judge in his written judgment of the 24th July, 2015, decided the defendants’ application other than in accordance with his constitutional obligations. The judgment as already stated correctly sets out the relevant law and applies it correctly to the facts.
Relief
53. In my view the appeals against the order of the 28th July, 2015, and the recusal decision in the order of 27th April, 2015, should be dismissed.
