Supreme Court of Ireland Decisions

1. I have read the judgment which will be delivered by Murphy J and I agree with it. There are certain observations which I would like to add.

2. There is, as Denham J pointed out in Bula Ltd & Ors .v. Tara Mines Ltd & Ors (unreported): delivered on 3rd July, 2000, a duty on every trial judge to ensure the Court is impartial. Not only that: the Court must take care that no fact or circumstance exists - particularly a fact or circumstance of which any of the parties might be unaware - which would give rise to a reasonable apprehension of partiality. There is, however, a distinction to be drawn between those many factors such as education, religion, age and upbringing which may well be seen as influencing the decision of a judge but which are unavoidable in any system dependent upon a human element and extraneous factors specific to a particular judge. Many of these unavoidable and permissible factors were identified by Lord Bingham of Cornhill CJ in Locabail . v. Bayfleld Properties Ltd [2000] 1 AER 65 and in other cases referred to in the judgments of this Court in Orange Communications .v. Director of Telecommunications Regulation (unreported): 18th May, 2000. The factors with the potential for influencing judgments or appearing to have that effect and falling outside a broad, but ill defined, range of permissible factors are not inherently improper. They would frequently represent personal relationships, social activities or specific commercial investments. It has long been the practice for judges in this State and other persons exercising quasi judicial functions to disclose the existence of any factor which either party might consider was capable of affecting the reality or the appearance of an impartial administration of justice.

3. The practice of making such disclosure is an entirely proper one. On the other hand I would emphasise as did Merkel J in Al & Anor .v. Betty King & Ors (Federal Court of Australia, 31st May, 1996) that every such disclosure does not lead automatically to disqualification. As Merkel J put it:-

4. Neither party may use such a disclosure for the purpose of replacing one judge with another who may be thought to be more favourably disposed to the case which he seeks to make. Where one or other party does invite a judge to disqualify himself, the established and prudent practice has been for the judge concerned to disqualify himself if he has any reservations about the matter. On the other hand a judge cannot permit a scrupulous approach by him to be used to permit parties to engage in forum shopping under the guise of challenging the partiality of the Court.

5. The need to ensure the appearance, as well as the reality, of impartiality must be reconciled with the proper functioning of the judicial system. The dilemma to which these conflicting demands give rise might be resolved in cases of difficulty by the judge concerned referring the issue - perhaps on the basis of a memorandum prepared by him or her - to the senior available judge of the court of which he is a member. Such a course would be acceptable in cases of particular difficulty but I do not believe that this procedure should develop into common practice. The disclosure of possible grounds for concern and the sensible reaction of the parties, advised by their lawyers, has usually been sufficient to dispose of any such difficulty and I do not doubt this will continue to be the case.

6. The proceedings which give rise to the present applications have their origin in a Special Summons issued on the 19th day of November, 1987 (1987 No 1120 Sp Ct 6) in which the above named John Rooney (Mr Rooney) was Plaintiff and the Minister for Agriculture and

7. Food, the Minister for Finance, the Taoiseach, Ireland and the Attorney General were Defendants. That summons was grounded on a full and helpful affidavit sworn by Mr Rooney on the 24th day of November, 1987, setting out the history of his complaint and the basis for the declaratory relief which he sought.

8. Mr Rooney carried on the business of farming in the County of Monaghan. Veterinary surgeons employed by the Minister for Agriculture and Food carried out tests on cattle owned by Mr Rooney and concluded that six of the cattle tested reacted positively. Subsequent tests disclosed the presence of more reactor animals. All of these animals were slaughtered in the month of April, 1984. In the subsequent year further tests took place and twenty-one animals subsequently twenty-six - were identified as TB reactors.

9. In that context Mr Rooney investigated his entitlement to compensation under the Bovine Tuberculosis Eradication Scheme and the Diseases of Animals Act, 1966 and the regulations made thereunder.

10. It was Mr Rooney’s contention that he was

11. Clearly the declaratory relief sought by Mr Rooney together with the damages claimed by him could not be dealt with under the Special Summons procedure. The matter was sent for plenary hearing. Numerous interlocutory orders were sought and granted and various efforts

12. By two orders each dated the 19th day of February, 1990, Mr Justice Barron dismissed the action as against Donal McDaid, Patrick Delaney, the Irish Farmers Association and the Ombudsman on the grounds that the pleadings disclosed no cause of action against them. Those orders were appealed by Mr Rooney and this Court, consisting of Griffin, Hederman and O’Flaherty JJ on the 12th October, 1990, ordered as follows:-

13. That order was made on consent.

14. The paragraphs of the statement of claim referred to in that order were expressed in the following terms:-

15. An issue in the form of a special case dated the 12th day of December, 1990, was drafted and signed by Mr Rooney and by the Chief State Solicitor on behalf of the first, second, third and fourthly named Defendants.

16. The special case was heard by Mr Justice Lavan in January 1991, and by his judgment of the 16th May 1991 and the order made thereon he refused Mr Rooney’s claim and awarded the first, second, third and fourthly named Defendants their costs of the special case.

17. Mr Rooney appealed the judgment and order of Mr Justice Lavan to this Court (Appeal No 224/91) on six grounds which might be summarised by saying that the trial conducted by the learned trial Judge was unsatisfactory. Those do not appear to be the grounds relied upon before this Court nor does it seem that any such case could have been sustained. The special case was agreed by both parties: written submissions were made in advance of the hearing and legal argument was conducted - and recorded - over a period of four days. It would seem from the transcript that every issue was explored in detail and the trial Judge in his reserved judgment dealt with each of them.

18. This Court recognised the difficulties which Mr Rooney faced as a litigant in person and accordingly, notwithstanding the terms of the notice of appeal

19. The judgment of this Court delivered on the 19th December 1991 is reported in 1991 2 IR 539 . As O’Flaherty J pointed out in delivering the judgment of the Court, the Minister had not made any order under s.20 of the Act of 1966 giving him power

20. Whilst O’Flaherty J explained that the constitutional issue did not arise in those circumstances he went on to express his view on that point in the following terms:-

21. The order made by this Court on the 19th December on the appeal from Mr Justice Lavan provided as follows:-

22. After the delivery of their judgment on the appeal from Mr Justice Lavan this Court - at the request of all of the parties concerned - heard argument in relation to appeal from the order made by Mr Justice Barron on the 19th February, 1990 and upheld his decision dismissing the action as against Donal McDaid, Patrick Delaney, The Irish Farmers Association and the Ombudsman.

23. On the 27th day of May, 1992 Mr Rooney applied to re-enter the two appeals which had been dismissed on the 19th day of December, 1991. That application was refused.

24. Mr Rooney now moves this Court pursuant to notice of motion dated the 1st day of June, 1999 for orders setting aside the orders made by this Court on the 12th day of October, 1990 and the two orders made here on the 19th day of December, 1991 together with certain ancillary relief. The grounds on which that claim was made are that Mr Justice O’Flaherty had, it was alleged, an involvement when a member of the Bar and before his appointment to the Bench in advising the Irish Farmers Association (IFA) in relation to compensation under the Bovine Tuberculosis Scheme and that such involvement might have given the appearance that the Judge was biased in favour of the IFA.

25. There is no significant dispute as to the extent of the “involvement” of Mr Justice O’Flaherty with the IFA. Before his elevation to the Bench in March 1990 Mr O’Flaherty had acted for that association in a variety of matters. From the extant correspondence it is clear that Mr O’Flaherty had advised the IFA, on the instructions of Arthur Cox & Co. Solicitors, as to the right of farmers to be paid compensation for diseased animals. A letter from Messrs Arthur Cox & Co to their clients dated the 9th September, 1985 makes it clear that the advice which they had received was that there was “no constitutional right to compensation” and that all that was required of the State was that the legislation by which the amount of compensation was calculated should be arrived at on some rational basis in accordance with the scope and objects of the Disease of Animals Act, 1966. Whilst it would appear that Mr O’Flaherty gave this advice in writing neither the solicitors nor the IFA have been able to trace any copy of that opinion. Again, it is clear that Mr O’Flaherty was present at a consultation at the offices of Messrs Arthur Cox & Co in or about the month of September, 1985 when he advised the General Secretary of the IFA and other officers of or delegates to that Association on the question of compensation under the Bovine Tuberculosis Scheme. The suggestion - and it was no more than that - that Mr O’Flaherty might have advised any of the parties to the present proceedings in relation thereto was totally repudiated by Mr Justice 0 ‘Flaherty and by the present and former solicitors on behalf of the IFA.

26. The law in relation to bias - actual or constructive - has been reviewed by this Court on a number of occasions in recent years (see O’Neill . v. Beaumont Hospital Board [1990] ILRM 419; Dublin Well Woman Centre Ltd .v. Ireland [1995] ILRM 408; O’Reilly .v. Cassidy (No 2) [1995] 1 ILRM 311; Orange Communications . v. Director of Telecommunications Regulations (unreported judgment dated 18th May 2000)

27. It is fundamental to the administration of justice that judges should be independent and impartial. Not merely are they required to be independent of and from other organs of State but also from any fact, event or person extraneous to evidence properly admitted and submissions as to law made to them. The requirement that every judge should act impartially is reflected in the declaration of office which every judge is required by Article 34.5.1 of the Constitution to take on his appointment. That declaration includes an undertaking by the judge to execute his office:-

28. Questions may arise as to whether external factors exist which could influence improperly the decision of a particular judge. The question is not confined to the intrusion - whether conscious or unconscious - of any such external factor. It has long been recognised that the appearance of bias is as damaging to the administration of justice as its operation. This principle is summarised in the much quoted observation of Lord Hewart in R . v. Sussex Justices, ex parte McCarthy [1924] 1 KB 256 at page 259:-

29. The test in this jurisdiction, as pointed out by Mrs Justice McGuinness in the Bula case (above), is the “reasonable apprehension” of bias by a reasonable person that the existence of some particular relationship, factor, condition or circumstance would prevent a completely fair and independent hearing of the issues which arise.

30. In the present case the material “extraneous factor” is the fact that, in the course of his extensive practice at the Bar, Mr Justice O’Flaherty had from time to time advised the IFA and acted professionally on their behalf. In particular Mr Justice O’Flaherty had given specific advice to the effect that farmers or herd owners did not have a constitutional right to be fully compensated for cattle infected with Tuberculosis. The professional relationship between the Judge and the IFA and the advices aforesaid may be considered from two standpoints. First, it has been suggested that the advice given by the Judge in his capacity as a barrister constituted a pre-judgment of an issue arising on one or other of the appeals to the Court of which he was a member and, secondly, that the relationship between Counsel and the client (which Mr Rooney described as that of “standing counsel” ) amounted to more than an isolated professional commitment. Can it be said that the actions of the judge, viewed from either of those standpoints, would lead a reasonable person to a justifiable fear that these factors would prevent a completely fair and independent hearing on the issues arising on the appeals?

31. The Courts in many different jurisdictions have contributed to the jurisprudence on such questions. In Locabail Ltd . v. Bayfield Properties [2000] 1 All ER 65 Lord Bingham of Cornhill CJ provided an analysis of factors which might be thought to affect the decision of a

32. Three Australian cases deal specifically with the position of a judge who had advised as a lawyer on an issue which subsequently comes before him for judicial interpretation. In In Re Polites ex parte Hoyts Corporation [1991] 173 CLR. The Deputy President of the Australian Industrial Relations Commission disqualified himself from continuing to sit as a member of the Commission, which had been hearing a labour dispute for some weeks, when it emerged that the relationship of solicitor and client had existed between him and one of the parties to the labour dispute and in the course of which he had specifically advised his client on procedures to deal with a particular labour problem. The party who had been the client applied to the High Court of Australia for and was granted an order of mandamus requiring Mr Polites to resume his participation in the hearing of the issue by the Commission. The judgment of the Australian Court includes (at page 87) the following statement:-

33. In a subsequent case decided in the Federal Court of Australia ( AI .v. Betty King 436 FCAI [1996]) the proceedings involved a challenge to the validity of certain notices purported to be issued pursuant to the National Crime Authority Act, 1984. The Judge (Merkel J) informed Counsel for the parties that he had given advices to the National Crimes Authority some six or seven years previously with regard to the validity of notices under the National Crime Authority Act in a unrelated matter. On that basis Counsel for the respondent pressed the Judge to disqualify himself but he refused to do so. Having considered the authorities (and ex parte Hoyts in particular) he concluded as follows:-

34. Merkel J amplified his views on the question of bias in Aussie Airlines Pty Ltd .v. Australian Airlines & Ors [1996] 135 Alr 753 where he stated:-

35. These Australian cases and the passages quoted from them were cited with approval in judgments delivered by this Court in the Bula case.

36. The present application has much in common with the facts under consideration in the Bula case. In the late 1960’s valuable deposits of lead and zinc were discovered under the lands of Nevinstown near Navan in the County of Meath. Bula Ltd (Bula) became the owner of approximately one sixth of that ore body and Tara Mines Ltd (Tara) owners of the remaining five sixths. Disputes between Bula and their bankers and differences between both mining companies and various government ministers and local authorities have given rise to much litigation all bitterly contested but the most protracted proceedings were those which I have described as the Bula case in which Mr Justice Lynch delivered judgment on the 6th February, 1997 whereby he dismissed the claims of the Plaintiffs as against all of the Defendants. That judgment was appealed to this Court and was upheld by order dated the 15th January, 1999. By the notice of motion issued on the 31st day of May, 1999, Bula sought an order setting aside the judgment and order of this Court and a rehearing of the substantive appeal on the grounds that there existed:-

37. In those circumstances Judges Denham and McGuinness delivering their respective judgments on the 3rd July, 2000 (with which Morris P agreed) reviewed in detail the extent and nature of the admitted involvement by the Chief Justice and Mr Justice Barrington with one or more of the parties in the Bula case as professional advisors and before their elevation to the Bench. The Chief Justice had advised Tara on the question whether open cast mining was an exempted development under the Local Government (Planning) and Development Act, 1963. It appears that Tara had intended to instruct the Chief Justice to oppose the application by Bula for planning permission for open cast mining but before the appeal was heard Mr Justice Keane had been appointed to the High Court Bench.

38. The involvement of Mr Justice Barrington was far more extensive. That Mr Justice Barrington had acted for the Minister for Industry and Commerce in proceedings against Tara in relation to the granting of a mining lease and for the same Minister against Bula in relation to the validity of a compulsory acquisition order in respect of the Nevinstown ore body are matters which, as Mrs Justice McGuinness pointed out, were amply recorded in the Irish Reports for the years 1975 and 1978 respectively. Not only did Mr Justice Barrington advise the Minister - and indeed other parties - in relation to the mining activities carried on by Tara but he was also retained by Tara itself to advise, in conjunction with others of his then colleagues, in relation to the reform of the law of mineral ownership in the State and more specifically with regard to the mining regime at the boundary of the Tara and Bula portions of the overall Nevinstown ore body.

39. It was accepted on behalf of Bula that the mere fact of a judge in his or her career as a barrister had acted for a particular party was not sufficient to disqualify that judge from

40. The examination of the facts of the present case show that Mr O’Flaherty, SC, did advise the IFA from time to time and in particular as to the constitutionality of legislation in relation to the compensation payable by the State under the Diseases of Animals Act, 1968. The particular advice was given some six years before the hearing of the appeal which it is sought to impugn. It is of particular significance that the substantive appeal heard by this Court from the decision of Mr Justice Lavan did not involve the IFA. They were not parties to the appeal. Indeed at that stage they had been dismissed out of the proceedings by the order of Mr Justice Barron made on the 19th day of February, 1990 and the appeal by Mr Rooney against that order was then pending in this Court. Moreover, it should be recognised that the appeal was not determined by reference to the constitutional issue on which Mr Justice O’Flaherty had advised in his capacity as senior counsel. In his judgment Mr Justice O’Flaherty held, as I have pointed out, that the Minister concerned was not obliged to operate a particular statutory scheme since he had in place a reasonable scheme for providing a

41. None of the parties to the substantive appeal, therefore, had been advised by Mr Justice O’Flaherty and the particular matter on which he had advised the IFA was not material to the decision of the Court.

42. The appeal from Mr Justice Barron dismissing the IFA and other defendants from the case did not involve any issue on which Mr Justice O’Flaherty gave advice. The issue before Mr Justice Barron was whether the pleadings disclosed a cause of action against the particular defendants. He held that they had not and that judgment was upheld by this Court.

43. In those circumstances it seems to me that a reasonable bystander would not perceive any cogent and rational link between the involvement of Mr Justice OFlaherty with the IFA and his judgment on either appeal. On those grounds I would dismiss the application.

44. The jurisdiction of this Court to set aside an order which correctly reflects a judgment given by it has been considered in a number of cases and exercised in at least one. In proceedings entitled “In the Matter of the Companies Acts, 1963-1977 Between: Neal Duggan, Plaintiff .v. The Governor and Company of the Bank of Ireland, Defendants, Record No. 1981 Number 481 Sp” this Court, of its own motion, made an order on the 2nd day of March, 1984 vacating an earlier order made by it in the same proceedings on the 24th day of November, 1982. This course was adopted as Mr Duggan had issued a plenary summons on the 27th day of January, 1984 claiming as against the judges of the Court by whom the order

45. The nature of the jurisdiction of this Court to make such an order has been considered in Belville Holdings Ltd .v. Revenue Commissioners [1994] 1 ILRM 29; Attorney General .v. Open Door Counselling Ltd (No.2) [1994] 2 IR 333; Greendale Developments Ltd (unreported 9th December, 1999) and the Bula case. It is not necessary, and in the circumstances of this case it would not be helpful, to analyse further the nature or extent of that jurisdiction. In my view it is sufficient to proceed on the assumption, as Hamilton CJ did in his judgment in the Greendale Case, that the appropriate jurisdiction does exist and on that basis (and even assuming a much lower threshold of proof than that identified in either of the judgments delivered in the Bula Case) I am satisfied that the evidence adduced by Mr Rooney falls far short of sustaining a case of bias to justify the exercise of such an exceptional jurisdiction.

46. I would dismiss the application.