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Judgment
Title: | O'Driscoll -v- Hurley and Health Service Executive |
Neutral Citation: | [2016] IESC 32 |
Supreme Court Record Number: | 44/2015 |
Court of Appeal Record Number: | 2014 777 COA |
Date of Delivery: | 14/06/2016 |
Court: | Supreme Court |
Composition of Court: | Denham C.J., O'Donnell Donal J., MacMenamin J., Laffoy J., Dunne J., Charleton J., O'Malley J. |
Judgment by: | Dunne J. |
Status: | Approved |
Result: | Appeal dismissed |
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| Judgments by | Link to Judgment | Concurring | Dunne J. | | Denham C.J., O'Donnell Donal J., MacMenamin J., Laffoy J., Charleton J., O'Malley J. | |
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THE SUPREME COURT
Denham C.J.
O’Donnell J.
MacMenamin J.
Laffoy J.
Dunne J.
Charleton J.
O’Malley J.
[Appeal No: S: AP: IE: 2015: 000044]
BETWEEN
MICHAEL O’DRISCOLL, A MINOR (SUING BY HIS MOTHER AND NEXT FRIEND BREDA O’DRISCOLL)
PLAINTIFF/APPELLANT AND
MICHAEL HURLEY AND HEALTH SERVICE EXECUTIVE DEFENDANTS/RESPONDENTS
Judgment of Ms. Justice Dunne delivered on the 14th day of June 2016
The appellant in this matter was born on the 10th March, 1997. On the 28th January, 2006, the appellant was admitted to St. Luke’s Hospital in Kilkenny and underwent a laparoscopic appendectomy on that date. During the course of the surgery, an injury was occasioned to the appellant’s bladder which caused it to leak urine into his abdomen. The appellant brought proceedings suing by his mother and next friend in respect of the damage suffered as a result of the injury to his bladder and the consequences of that injury. Following a hearing before the High Court, (O’Neill J.) the appellant was awarded a sum of €50,000 by way of general damages in respect of personal injuries sustained by him as a result of the clinical negligence of the surgeon attached to Kilkenny Regional Hospital. The hearing before the High Court was confined to an assessment of damages as the question of negligence was not in issue. The appellant appealed that decision to the Court of Appeal on a number of grounds but essentially the complaint was that the award of damages was inadequate.
The matter came on for hearing in the Court of Appeal on the 14th May, 2015, the composition of the Court being the President, Ms. Justice Irvine and Mr. Justice Hogan. Judgment was reserved and a judgment was delivered by Irvine J. on the 8th July, 2015 dismissing the appeal.
An application for leave to appeal was made on behalf of the appellant to this Court and by a determination dated the 15th December, 2015 leave to appeal to this Court was granted on the issue of a preliminary application made by the applicant to the Court of Appeal that Irvine J. should have recused herself on the grounds of objective bias. The issue certified is “Whether a judge is disqualified from sitting on a hearing, or on an appeal on the grounds alleged, or any of them?”
The grounds of the application
After the commencement of the appeal, an application was made on behalf of the appellant that Ms. Justice Irvine should recuse herself from the hearing of the appeal on the grounds of objective bias. The circumstances relied on were as follows:
(1) Irvine J. “chaired and addressed a private conference run as a promotion by the solicitors on record on behalf of the State Claims Agency defending the said appeal”. The solicitors, Messrs. Hayes, it was stated, specialise in the defence of medical negligence actions.
(2) The judge was pictured on an “advertisement” on the website of the said solicitors sitting under the said solicitors’ name and logo while a senior member of the said firm of solicitors was delivering a speech.
(3) The judge was pictured separately with the head of the State Claims Agency which was defending the appeal.
It was contended that as a result of the participation at the said conference by the said judge there was a real possibility of unconscious bias on the part of the judge. It was contended that this was a breach of the European Convention on Human Rights and in particular Article 6.1. The Court of Appeal refused the application that Irvine J. should recuse herself in the circumstances of the case.
The transcript
This Court has had the benefit of a transcript of the application made to the Court of Appeal on the application to have Irvine J. recuse herself. From that it would appear that Counsel on behalf of the appellant stated:
“Well it appears that Ms. Justice Irvine chaired and spoke at a private conference run as a promotion by the defendants’ solicitors, Messrs. Hayes.”
It was stated that they were a leading firm of solicitors specialising in medical defence work. It was pointed out that Ms. Justice Irvine was pictured twice on the website of the defendants’ solicitors and the relevant extract from the website was provided to the Court of Appeal. The material on the website stated that: “Hayes conference calls for reform of clinical negligence litigation”. The judge could be seen sitting under the solicitors’ name and logo as a member of the firm was making a speech to the conference. The other photograph of Ms. Justice Irvine was with Mr. Breen of the State Claims Agency and former judge Quirke.
The essence of the application was that Ms. Justice Irvine had attended the conference hosted by the solicitors concerned coupled with the fact that Ms. Justice Irvine was chairing the conference, not just attending the conference. In the course of the application to the Court of Appeal, an issue was raised to the effect that a similar case occurred two weeks previously in which no such application had been made. Counsel pointed out that the objection was not one being made by him personally but on instructions. Apparently, the previous situation arose in relation to an appeal on a motion. Counsel indicated that he would not wish to make such an application in relation to a motion. The Court then considered the issue and refused the application and subsequently gave reasons for that refusal in the course of the judgment delivered in this matter.
The Website
As indicated, the Court of Appeal was given a copy of the material on the website. The section of the website was headed “Hayes conference calls for reform of clinical negligence litigation”. There was then the photograph in which Ciarán O’Rorke of Hayes, who is described as a partner and “head of healthcare”, is pictured addressing the conference. In the background can be seen Ms. Justice Irvine.
The website continues by stating as follows:
“Hayes Solicitors hosted a major conference on the need for radical reform of medical negligence litigation in Ireland. The event took place in the Conrad Hotel, Dublin 2 on Thursday, 8th May 2014 and attracted media attention, including an item on the RTE Six One News . . . Both plaintiff and defendant stakeholders were present in the invited audience of more than 250, including representatives from hospitals, medical and dental practices and professional bodies, patient advocates, state agencies, insurers and law firms. Speakers shared unique perspectives from their practical experience of working with clinical negligence litigation from their vantage points as defence and plaintiff lawyers, judges and indemnifiers.
The conference addressed the widely held view that the Irish system of conducting clinical negligence claims is not fit for purpose. Chairing the conference, Judge Mary Irvine of the High Court set the scene by describing the system of awarding a single lump sum payment in catastrophic injury cases - rather than annual compensation payments over the course of the injured party’s life - as ‘unjust, ineffective and . . . Dickensian’. Practical reforms proposed by the Working Group on Medical Negligence and Periodic Payments, established in 2010 and currently chaired by Judge Irvine, have yet to be introduced. These reforms were outlined in three Working Group reports: Periodic Payment Orders (PPOs) (October 2010), Pre-Action Protocols (March 2012) and Case Management (April 2013).”
On the third page of the website, there was a photograph of Ciarán Breen, who was described as the Director of the State Claims Agency and who also addressed the conference, together with Ms. Justice Irvine and Mr. Justice Quirke. It can be seen, therefore, that the complaint at the heart of this appeal is that a judge who sat as a member of the Court of Appeal had chaired and spoken at a private conference hosted by the solicitors for the defendants/respondents in these proceedings, who had been instructed by the State Claims Agency on behalf of the defendants/respondents herein.
The applicable law
The parties were not in dispute as to the relevant case law in this area. Both parties identified the decision of this Court in Goode Concrete v. CRH Plc & Ors. [2015] 2 ILRM 289 as the authority in which the appropriate test was most recently elucidated. In her judgment in that case, Denham C.J. (Clarke J., MacMenamin J. and Dunne J. concurring) described the reasonable person test relating to the issue of bias in the following terms at paragraph 54 of her judgment:
“54. The test to be applied when considering the issue of perceived bias is objective. It is whether a reasonable person, in all the circumstances of the case, would have a reasonable apprehension that there would not be a fair trial from an impartial judge. As it is an objective test, it does not invoke the apprehension of a judge, or any party; it invokes the reasonable apprehension of a reasonable person, who is in possession of all the relevant facts.
55. The test to be applied when considering issues of perceived bias is important in protecting the administration of justice, and necessary to preserve public confidence in the judiciary. Thus, the issue is not simply a matter as between parties, but it is an issue for consideration in relation to the manifest impartial administration of justice in the State, and the confidence which the people rest in the judiciary.”
In the course of her judgment in that case, Denham C.J. reviewed the well settled law applicable in this jurisdiction to the test to be applied by a court when considering the issue of objective bias. Thus she referred to a decision which may be regarded as the fons et origo of the test in Irish law, namely Bula Ltd v Tara Mines Ltd (No. 6) [2000] 4 I.R. 412 at 441. In the Goode Concrete case Denham C.J. referred to the case law in respect of the reasonable person test as follows (at para. 18 et seq):
The Chief Justice continued in Goode Concrete as follows:
“22. In O'Callaghan v. Mahon [2008] 2 IR 514 at p. 672- 673, Fennelly J. described the principles relating to objective bias to be applied as follows:-
“(a) objective bias is established, if a reasonable and fair minded objective observer, who is not unduly sensitive, but who is in possession of all the relevant facts, reasonably apprehends that there is a risk that the decision maker will not be fair and impartial;
(b) the apprehensions of the actual affected party are not relevant;
(c) objective bias may not be inferred from legal or other errors made within the decision making process; it is necessary to show the existence of something external to that process;
(d) objective bias may be established by showing that the decision maker has made statements which, if applied to the case at issue, would effectively decide it or which show prejudice, hostility or dislike towards one party or his witnesses.”
23. Thus, the above are illustrations of the description of the test to be applied in situations where there is perceived objective bias, and also illustrations of the application of the test.”
I think it follows from that exposition of the case law that it is understandable that counsel for the parties in this case did not suggest or put forward any other proposition as to the test to be applied in this jurisdiction. It is patently clear what test must be applied in considering an argument as to whether or not there is a perception of objective bias.
Notwithstanding the fact that the test has been clearly set out over the years in a series of decisions of this Court and bearing in mind that the matter has been considered most recently in the case of Goode Concrete referred to above some reliance was placed by Counsel on behalf of the appellant on authorities from the United Kingdom and, in particular, two decisions, namely Porter v. McGill [2002] 1 All ER 465 and Lawal v. Northern Spirit Ltd. [2004] 1 All ER 187. Of those decisions, particular reliance was placed on the decision in Lawal where Lord Steyn gave the opinion of the House of Lords and specifically, paragraph 21 of that opinion. It would be helpful also to refer to paragraph 20 of the opinion as it sets out the background to the matter together with a number of other passages from the judgment:
“20. The correct analysis is as follows. One starts by identifying the circumstances which are said to give rise to bias. In the present case the evidence is limited to the facts set out at the beginning of this opinion, namely that a Queen's Counsel appearing on an appeal before the EAT had sat as a part-time judge in the EAT with one or both lay members hearing the appeal. In such cases there may be substantial variations in the extent to which the part-time judge and the wing members had sat together in the EAT and how recently. These differences are, however, not material. The House must concentrate on a systemic challenge and apply a principled approach to the facts on which it is called to rule.
21. The principle to be applied is that stated in Porter’s case, namely whether a fair minded and informed observer, having considered the given facts, would conclude that there was a real possibility that the tribunal was biased. Concretely, would such an observer consider that it was reasonably possible that the wing member may be subconsciously biased? The observer is likely to approach the matter on the basis that the lay members look to the judge for guidance on the law, and can be expected to develop a fairly close relationship of trust and confidence with the judge. The observer may also be credited with knowledge that a recorder, who in a criminal case has sat with jurors, may not subsequently appear as counsel in a case in which one or more of those jurors serve. Despite the differences between the two cases, the observer is likely to attach some relevance to the analogy because in both cases the judge gives guidance on the law to lay men. But the observer is likely to regard the practice forbidding part-time judges in the employment tribunal from appearing as counsel before an employment tribunal which includes lay members with whom they had previously sat as very much in point. The Editor of the Industrial Relations Law Review has argued ‘that a rule to the same effect is even more necessary in the EAT’ (see [2002] IRLR 225). In favour of this view there is the fact that the EAT hears only appeals on questions of law while in the employment tribunal the preponderance of disputes involve matters of fact. The observer would not necessarily take this view. But he is likely to take the view that the same principle ought also to apply to the EAT.
22. In the EAT Lindsay J was alive to the possibly that ‘some . . . practices will fall prey to increasing sensitivity’ ([2002] IRLR 228 at 234, [2002] ICR 486 at 503 (paras. 33(10)). What the public was content to accept many years ago is not necessarily acceptable in the world of today. The indispensable requirement of public confidence in the administration of justice requires higher standards today than was the case even a decade or two ago. The informed observer of today can perhaps ‘be expected to be aware of the legal traditions and culture of this jurisdiction’ as was said in Taylor v Lawrence [2003] EWCA Civ. 90 at [61] - [64], [2002] 2 All ER 353 at [61] - [64], [2003] QB 528, per Lord Woolf CJ. But he may not be wholly uncritical of this culture. It is more likely that in the words of Kirby J in Johnson v Johnson (2000) 201 CLR 488 at 509 (para. 53) he would be ‘neither complacent nor unduly sensitive or suspicious’: compare also [2002] IRLR 225 (second column).
23. The then President of the EAT (Lindsay J), a former President of the EAT (Mummery LJ) and Lord Phillips M.R., a judge with special knowledge of the judicial system, took a different view. Nevertheless, on this point we find ourselves in agreement with Pill LJ, who also has great experience in the EAT. Like Pill LJ in the Court of Appeal we consider that the present practice in the EAT tends to undermine public confidence in the system. It should be discontinued. It follows that the present practice in the EAT should be assimilated to that in the employment tribunal by introducing a restriction on part-time judges appearing as counsel before a panel of the EAT consisting of one or two lay members with whom they had previously sat.”
That case was relied on by counsel on behalf of the appellant to argue that the question to be considered in the circumstances of this case is whether a reasonable member of the public would, taking all the circumstances into account, perceive that there is “a real possibility of unconscious/subconscious bias” on the part of the judge who had been asked to recuse herself. It is often helpful to look at authorities from other jurisdictions. In that particular case, the House of Lords in the opinion of Lord Steyn commented:
“. . . there is now no difference between the common law test of bias and the requirements under art 6 of the convention of an independent and impartial tribunal, the latter being the operative requirement in the present context. The small but important shift approved in Porter’s case has at its core the need for ‘the confidence which must be inspired by the courts in a democratic society’: . . .Public perception of the possibility of unconscious bias is the key. It is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach. This idea was succinctly expressed in Johnson v Johnson (2000) 201 CLR 488 at 509 (para 53), by Kirby J when he stated that ‘a reasonable member of the public is neither complacent nor unduly sensitive or suspicious’.”
Those comments are of some assistance in considering how a reasonable person might consider a particular question as to whether or not there is objective bias in a particular case.
The Bangalore Principles
Denham C.J. in the course of her judgment in Goode Concrete referred to the Bangalore Principles of Judicial Conduct 2002 and in particular to a commentary on the principles which can be found in Gass, Kiener & Stadelmann (Eds.), Standards of Judicial Independence (Bern, 2012). In this context it would be helpful to refer to the principles and the commentary as described by Denham C.J. at para. 47 et seq. in her judgment where she said:
“The tradition of recusal in the Irish Courts is reflected in the Bangalore Principles of Judicial Conduct 2002, at paragraph 2.5: -
‘A judge shall disqualify himself or herself from participating in any proceedings in which the judge is unable to decide the matter impartially or in which it may appear to a reasonable observer that the judge is unable to decide the matter impartially. Such proceedings include, but are not limited to, instances where:
2.5.1 The judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings;
2.5.2 The judge previously served as a lawyer or was a material witness in the matter in controversy; or
2.5.3 The judge, or a member of the judge's family, has an economic interest in the outcome of the matter in controversy;
provided that disqualification of a judge shall not be required if no other tribunal can be constituted to deal with the case or, because of urgent circumstances, failure to act could lead to a serious miscarriage of justice.’
48. In the Commentary on The Bangalore Principles of Judicial Conduct (United Nations Office on Drugs and Crime, September 2007) [which is contained in Standards of Judicial Independence], it was pointed out that a judiciary of undisputed integrity is the bedrock institution essential for ensuring compliance with democracy and the rule of law.
49. In relation to the recusal principles cited above, there is some helpful commentary. In relation to ‘the reasonable observer’ reference was made to ‘a reasonable, fair-minded and informed person’ who ‘might believe’ that the judge is unable to decide the matter impartially. The formulation in the Bangalore Principles ‘may appear to a reasonable observer’, was agreed upon at The Hague meeting on November 2002, on the basis that ‘a reasonable observer’ would be both fair-minded and informed.
50. The commentary also explained that consent of parties is irrelevant, stating (at para. 79):
‘Even if the parties consent to a judge who feels he or she should be disqualified, the judge would not be justified in continuing to preside over the case. This is because the public also have an interest in the manifestly impartial administration of justice. Nevertheless, in most countries the parties are entitled to make a formal waiver on any issue of impartiality. Such a waiver, if properly informed, will remove the objection to the disclosed basis of potential disqualification.’
51. The commentary has made suggestions as to when a judge should make disclosure, as follows (at para. 80): -
‘A judge should make disclosure on the record and invite submissions from the parties in two situations. First, if the judge has any doubt about whether there are arguable grounds for disqualification. Second, if an unexpected issue arises shortly before or during a proceeding. The judge's request for submissions should emphasize that it is not the consent of the parties or their advocates that is being sought but assistance on the question whether arguable grounds exist for disqualification and whether, for example, in the circumstances, the doctrine of necessity applies. If there is real ground for doubt, that doubt should ordinarily be resolved in favour of recusal.’
52. The commentary also suggests that a judge must ordinarily recuse himself or herself from any case in which the judge, or a member of the judge's family, is in a position to gain or lose financially from its resolution.
53. While the Bangalore Principles and Commentary go into some detail as to the principles underlining the exercise of recusal, the test is that of the reasonable observer. The jurisprudence of this jurisdiction, the reasonable, objective and informed person, is fundamentally consistent with the approach in the Bangalore Principles.”
The issues that arose in the Goode Concrete case concerned a judge’s financial interest by way of shares in a company which was a party before the Court. The issue in this case arises in different circumstances but nonetheless, the Bangalore Principles are of assistance given that they encapsulate at an international level norms of universal application in relation to such issues as bias, the reasonable observer and the question of recusal. Paragraph 2.2 of the Bangalore Principles states:
“A judge shall ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and of the judiciary.”
The commentary on this principle refers to conduct that should be avoided out of court and in that context the commentary at para. 65 states as follows:
“The perception of partiality will be reinforced if, as is almost inevitable, the judge’s activities attract criticism or rebuttal. In short, a judge who uses the privileged platform of judicial office to enter the partisan political arena puts at risk public confidence in the impartiality of the judiciary. There are some exceptions. These include comments by a judge, on an appropriate occasion, in defence of the judicial institution, or explaining particular issues of law or decisions to the community or to a specialized audience, or defence of fundamental human rights and the rule of law.”
Paragraph 2.4 of the Bangalore Principles states:
“A judge shall not knowingly, while proceedings are before, or could come before, the judge, make any comment that might reasonably be expected to affect the outcome of such proceedings or impair the manifest fairness of the process. Nor shall the judge make any comment in public or otherwise that might affect the fair trial of any person or issue.”
At para. 72 of the commentary it is observed that:
“This prohibition does not extend to public statements made in the course of the judge’s official duties, to the explanation of court procedures, or to a scholarly presentation made for the purposes of legal education.”
Also of particular significance in the context of this case is the principle set out at para. 4.11 of the Bangalore Principles:
“Subject to the proper performance of judicial duties, a judge may:
4.11.1 write, lecture, teach and participate in activities concerning the law, the legal system, the administration of justice or related matters.”
The commentary on this principle states as follows at para. 156:
“A judge is in a unique position to contribute to the improvement of the law, the legal system and the administration of justice, both within and outside the judge’s jurisdiction. Such contributions may take the form of speaking, writing, teaching or participating in other extra-judicial activities. Provided that this does not detract from the discharge of judicial obligations, and to the extent that time permits, a judge should be encouraged to undertake such activities.
Participation in legal education
157. A judge may contribute to legal and professional education by delivering lectures, participating in conferences and seminars, judging student training hearings and acting as an examiner. A judge may also contribute to legal literature as an author or editor. Such professional activities by judges are in the public interest and are to be encouraged. However, the judge should, where necessary, make it clear that comments made in an educational forum are not intended as advisory opinions or a commitment to a particular legal position in court proceedings, particularly because judges do not express opinions or give advice on legal issues that are not properly before a court.
Until evidence is presented, arguments heard, and, when necessary, research completed, a judge cannot weigh the competing evidence and arguments impartially, nor can he or she form a definitive judicial opinion. . . .”
Thus it can be seen that the Bangalore principles and the commentary thereon set out above are of assistance and relevance in considering the facts of this particular case in the light of best international practice together with our own jurisprudence on this issue.
Discussion
Legal education does not cease the day a person is called to the Bar or is enrolled as a solicitor. The academic lawyer does not close his law books on appointment as a lecturer in a third level college or university. Judges on their appointment to the Bench do not stop developing their knowledge of the law. The practice of law necessarily involves openness to the concept of lifelong learning. The academic must keep pace with changes and developments in the law as must the legal professionals in practice or on the Bench. Law is not static. It must change and develop to reflect the needs of society as society changes. This necessitates that all lawyers, be they academics, members of the legal profession or judges, engage and participate in continuous learning and development. This is no different from what is required of many other professions. In addition, judges have a statutory obligation in this regard by virtue of section 19 of the Court and Court Officers Act 1995.
For many years, the Bar Council and the Law Society have organised conferences and seminars for their members. Universities and other bodies involved in legal education also organise conferences and seminars for members of the legal professions together with other advanced course for those in the legal profession. Groups of lawyers practising in specific areas of the law have come together to form associations and frequently, one of the goals of such organisations is to provide for the professional development of their members. Likewise, firms of solicitors will from time to time organise conferences or seminars on particular areas of the law in which they have an interest. Equally, local bar associations will regularly undertake such activities.
It is a regular feature of activities related to the continuous professional development and education of lawyers that judges are asked to participate in such conferences and seminars. For example, judges who work in the area of family law will be invited to participate in conferences in that area of law. It may be that the judge is invited simply as a guest or the judge may be invited to take a more active role by speaking at the conference, chairing the conference or participating in some other way. The participation of judges in such activities can only be for the benefit of the judiciary and the legal community as a whole. The exchange of views and ideas made possible at such gatherings is of immense value to all concerned. The benefit to those participating in such conferences or seminars is not just a benefit to those involved but is also a benefit for the public in general particularly those who may be litigants at some stage in the courts. It would hardly be desirable that judges following their appointment should develop their understanding of the law, legal issues and the impact of the law on litigants solely through the prism of cases heard before the courts. As judges, our understanding and knowledge of the law is enhanced by being involved in professional development activities on the part of lawyers. The forum provided by such activities can highlight difficulties faced by litigants and lawyers in particular areas of the law. Views can be exchanged, issues can be discussed and problems raised and points of law clarified. Such discourse can only be of benefit to all concerned and of course, the public in general.
In fairness, it was never suggested by Counsel on behalf of the appellant in this case that such activities involving the judiciary should stop and he recognised the value of the participation by the judiciary in such activities. His complaint in this case is more specific. First, he pointed out that the conference chaired by Ms. Justice Irvine had taken place some thirteen months prior to the hearing before the Court of Appeal. He accepted that had the conference occurred some years earlier, the question of recusal on the ground of objective bias would not have occurred. Secondly, he emphasised the fact that the conference was a “private” conference. I find it somewhat difficult to understand the relevance of the point made by Counsel as to the “private” nature of the conference. What is the significance of the assertion that the conference was “private”? Quite frankly I am not of the view that because a judge attends at a “private” conference or seminar as opposed to a public conference has any relevance to the facts of this case. I can well understand that an issue of objective bias in the view of a reasonable person might arise if a judge gave a briefing or an address to the members of a law firm and only that firm on a particular area of law and a case came before that judge involving that firm thereafter. But that is not the position here. The conference was hosted by Hayes Solicitors, the solicitors for the respondents herein, as has been pointed out previously. According to the information from the website previously referred to “Both plaintiff and defendant stakeholders were present in the invited audience of more than 250”. Thus, while this was not a public conference in the sense in which the phrase “public” could be understood to mean a conference to which members of the public were entitled to attend, it is clear that those representing both plaintiffs and defendants and those affected by such litigation were present. Indeed, the information on the website goes on to say that the particular conference attracted a great deal of attention so much so that it was referred to and reported on that evening on the RTÉ Six One News. In truth, I think the underlying issue of concern raised by Counsel is whether or not a judge by attending, participating in or chairing a conference organised by a firm of solicitors appears to be endorsing that particular firm of solicitors.
The theme of the conference is not without significance. It concerned the need for radical reform of medical litigation in Ireland. At the time of the conference, Ms. Justice Irvine was a judge of the High Court with responsibility for managing the personal injuries list in that Court. That list includes all medical negligence litigation. Of particular significance was the fact that, at that time, she was the then chair of a working group on medical negligence and periodic payments, established in 2010 by the then President of the High Court, Mr. Justice Nicholas Kearns. At the time of its establishment it was under the chairmanship of Mr. Justice Quirke. It appears from the information available from the website that:
“Judge Mary Irvine of the High Court set the scene by describing the system of awarding a single lump sum payment in catastrophic injury cases - rather than annual compensation payments over the course of the injured party’s life - as ‘unjust, ineffective and . . . Dickensian’. Practical reforms proposed by the Working Group on Medical Negligence and Periodic Payments, established in 2010 and currently chaired by Judge Irvine, have yet to be introduced. These reforms were outlined in three Working Group reports: Periodic Payment Orders (PPOs) (October 2010), Pre-Action Protocols (March 2012) and Case Management (April 2013).”
It is apparent that the conference was also addressed by Mr. Justice Quirke who outlined comparisons between the English and Irish systems in relation to such cases. Mr. Ciarán O’Rorke, a partner in Hayes Solicitors and Head of its Healthcare Department and a member of the Working Group, offered practical observations on the need for reform in five key areas, open disclosure, a pre-action protocol, case management rules, PPOs and the change in litigation culture. Other speakers included Ms. Helen Vernon, Director of Claims at the NHS Litigation Authority, Mr. Ciarán Breen, Director of the State Claims Agency, Ms. Emma Hallinan, Director of Claims and Litigation at the Medical Protection Society and Ms. Lisa Jordan, a partner with Irwin Mitchell, solicitors in Birmingham. There was apparently a question and answer session with participants from the medical and legal professions who engaged the speakers in a debate about the topics at issue in the conference. It could hardly be in doubt that the conference was a serious engagement with some of the important issues arising in the area of medical negligence litigation. Those involved in that type of litigation were present. It was obviously a useful forum for those involved in that area of litigation both as legal professionals and as stakeholders such as the head of the State Claims Agency and medical practitioners.
In addition to chairing the conference, two photographs of Ms. Justice Irvine appear on the website, one showing her seated while Mr. O’Rorke can be seen addressing the conference and in which the name of Hayes Solicitors can also be seen and the other showing her with Mr. Breen and Mr. Justice Quirke.
Mr. Declan Buckley, S.C. on behalf of the respondents commented in the course of his submissions that to uphold the appellant’s contention that a judge chairing a conference hosted by a firm of solicitors constitutes objective bias would stifle the judiciary’s participation in legal debate and deny the public access to a considerable body of expertise, built up from a particularly important perspective within the justice system. In the course of his submissions he referred to an interesting article by Rónán Kennedy, “Extra-Judicial Comment by Judges” (2005) 5(1) Judicial Studies Institute Journal 199, in which Mr. Kennedy commented:
“By speaking publicly, judges leave themselves liable to accusations of bias and perhaps to having their decisions overturned on appeal. The boundaries of what they should and should not say or write when they are not on the bench are not clear. Because of this, many judges prefer not to speak or write extra-judicially and it is argued that judges should not make public pronouncements or statements when they are not sitting.
On consideration, however, if judges were to take this stance, they would deny public access to a considerable body of expertise, built up from a particularly important perspective within the justice system. From their unique vantage point, judges have much valuable experience to share with others and can begin or make vital contributions to debates on issues central to our democracy. It could be argued that judges have a duty to work for the improvement of the administration of justice and, indeed, it was once customary for English judges to meet regularly and provide recommendations for reform. There are, therefore, certain topics on which it is appropriate for them to comment, although the manner and means must be carefully chosen.”
Towards the end of that article the writer commented at page 212:
“It is appropriate and useful for a judge to comment (in a restrained fashion) on matters relating to the courts and law in general. Judges may write articles and textbooks on legal matters. Commentary on non-political issues (for example, arts, culture or history) is generally acceptable, provided no particular agenda is being promoted. They should be careful not to take a fixed or dogmatic position in any writings or speeches, as although they are obviously not binding on the individual judge, they are likely to be of considerable persuasive authority even if they are not cited in court.”
That is a useful commentary on the role of the judge participating in extra judicial activities.
Recusal
It is important to bear in mind that a judge on appointment makes a declaration in accordance with Article 34.6.1° of the Constitution in the following terms:
“In the presence of Almighty God, I, . . . do solemnly and sincerely declare that I will duly and faithfully and to the best of my knowledge and power execute the office of [judicial position] without fear or favour, affection or ill-will towards any man, and that I will uphold the Constitution and the laws. May God direct and sustain me.”
The importance of that solemn declaration and undertaking cannot be overstated. It is in compliance with the declaration that judges will, when the need arises, recuse themselves from hearing particular cases. Thus to give a very obvious example a judge will recuse him or herself from hearing a case in which a close relative is directly involved as plaintiff or defendant. The question of recusal was also considered by Denham C.J. in her judgment in Goode Concrete and, as she pointed out, a balance has to be struck on applications before a judge to recuse him or herself. As she said at para. 44 of her judgment in that case:
“There is a well established tradition of recusal, amongst the judiciary, where a judge recuses him or herself from hearing a case. This may be made by the judge independent of any application, or after an application that he or she recuse themselves. However, a balance has to be struck and a prudent practice adopted. As Keane C.J. said in Rooney v. Minister for Agriculture and Food [2001] 2 I.L.R.M. 37 at pp. 40 to 41:
‘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.
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.’
45. The issue of recusal was addressed also in Ebner v. Official Trustee in Bankruptcy (2000) 205 C.L.R. 337 at 348: -
‘In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that would result if an appellate court were to take a different view of the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.’
46. I considered the test for recusal in Bula Ltd v. Tara Mines Ltd (No. 6) [2000] 4 I.R. 412 at p. 449:
‘A judge has a duty to sit and hear a case. However, in certain circumstances it is appropriate that he or she disqualify himself or herself from a particular case. The test is not whether that judge believes he or she would be impartial. Nor is it whether the judge or judges on a motion to set aside such a judgment believes the judge was or would be impartial. Nor is it whether the parties consider the judge impartial. The test is objective. This has been analysed by the Constitutional Court of South Africa: President of the Republic of South Africa v. South African Rugby Football Union 1999 (4) S.A. 147 at para. 48: -
‘. . . the correct approach to this application for the recusal of members of this Court is objective and the onus of establishing it rests upon the applicant. The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour, and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reason, was not or will not be impartial.’”
It would be difficult to improve on the observations made in those passages to the responsibility of a judge in approaching an application for recusal. After all, the first duty of the judge is to sit and hear cases. The administration of justice would grind to a halt if judges regularly recused themselves by responding in an over scrupulous way to an invitation to recuse. It is important to bear in mind that the test involved is an objective test and that the onus of establishing the grounds for recusal rest upon the applicant.
General observations
It seems to me that invitations to judges to recuse themselves have become more commonplace. There is a growing trend which involves litigants engaged in a multiplicity of actions and cases making such applications in circumstances which could only be described as forum shopping. A small number of litigants involved in multiple and successive actions end up inviting judges to recuse themselves, presumably as the litigant concerned forms the conclusion that their litigation is unlikely to be successful before a particular judge. This should never be the basis for an application to recuse. It is forum shopping plain and simple. In fairness, I should point out that this is not such a case. Nevertheless, litigants need to remember that not all litigation is winnable. Regular and repeated applications to judges to recuse themselves by particular litigants which are baseless will amount to an abuse of process. Judges need to be careful in considering such applications and to bear in mind the rights of all the litigants in proceedings before the court. In this context, I would reiterate the observations made in Ebner cited above that “if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench.” Thus, it is important to note that the making of an allegation of bias or of an alleged breach of judicial conduct against a judge does not of itself lead to an application for recusal or to set aside a judgment which will inevitably be granted. To paraphrase what was said in Ebner, that would be intolerable.
Decision
I now wish to consider the question as to whether or not objective bias has been established in this case. The principles were encapsulated by Fennelly J. in O’Callaghan v. Mahon to which reference has already been made. He said that objective bias is established (at p. 672):
“. . . if a reasonable and fair minded objective observer, who is not unduly sensitive, but who is in possession of all the relevant facts, reasonably apprehends that there is a risk that the decision maker will not be fair and impartial”.
In the circumstances of this case, could the reasonable and fair minded objective observer in possession of all the relevant facts reasonably apprehend that there was a risk that Ms. Justice Irvine would not be fair and impartial by virtue of her attendance and chairing of a conference, entitled “Embracing Reform, The New Landscape in Clinical Negligence Litigation”, hosted by Hayes Solicitors and attended by Ciarán Breen of the State Claims Agency, amongst others? To cite a passage referred to in the judgment of the Court of Appeal in this matter at para. 79:
“79. In this context, the test is that which was applied by Finlay C. J. in O’Neill v Beaumont Hospital Board 1990 I.L.R.M. 419 at pp. 438 to 430, namely, whether a reasonable person “should apprehend that his chances of a fair and independent hearing…[do] not exist by reason of the pre-judgment of the issues.”
It is difficult to see how the reasonable person looking at circumstances in which a judge of the High Court attended and chaired a conference on a topic which was of general importance and relevance to those working in the area of medical negligence litigation and which was attended by large numbers of the stakeholders in that area of litigation from all sides of such litigation could have such an apprehension. It seems to me that the reasonable observer would see a situation in which the judge was acting appropriately in furthering the state of knowledge of those involved in that area of litigation as to the work of the Working Group of which she was the Chair, given her particular knowledge and familiarity with the issues, the subject matter of the conference. This was an appropriate forum for the discussion of such issues. The fact that the conference was hosted by one firm of solicitors and that those solicitors were acting for the State Claims Agency in the particular case in which the judge was asked to recuse herself does not in my view lead to the conclusion that the reasonable observer would have any such apprehension. The engagement of Ms. Justice Irvine in the particular conference is something that was beneficial to the legal practitioners in that field of litigation and is the sort of engagement by judges in the legal development and learning of those involved in litigation which is to be viewed as desirable and not to be criticised. Judges have to be careful in their extra-judicial activities as pointed out previously and must take care not to be put into situations which could lead to applications to recuse themselves. Nevertheless I think that an examination of the website in this particular case and a consideration of the nature of the conference and the topics covered and discussed would lead any fair minded observer to the view that there was no question of partiality at all. The use made by photographs of the judge on the website does not in my view alter or change the situation. To put it another way, assume for the moment that there were no photographs of Ms. Justice Irvine taken at the conference but that the information that appeared on the website remained the same, could anyone take any objection to the presence of Ms. Justice Irvine at the conference and by virtue of her presence take any objection to her hearing a case in which that firm of solicitors representing the State Claims Agency were involved in litigation before her? I think not. Does the use of the photographs in the website alter the position? Again, I think the answer must be no. One is judging this question not by the standards of an over-scrupulous, over-cautious individual who takes an unreasonable and unrealistic view of the situation. It is inevitable that judges attending at conferences are photographed and their photographs may be used subsequently in a description of the events that had occurred. This is neither exceptional nor unusual. It is not an endorsement by the judge of the particular firm of solicitors. Quite simply, I am satisfied that the reasonable observer would come to the conclusion that the judge was attending at and participating in and chairing a conference on an issue of public and legal interest in a topic of importance in the field of medical negligence litigation. Such participation would, I think, be viewed by the reasonable observer as being appropriate and a helpful activity on the part of the judge in question in describing the work of the Working Group and the concerns that had arisen in the course of such litigation. I find it impossible to see how this could possibly give rise to any apprehension of objective bias on the part of the reasonable person.
In the circumstances I would dismiss the appeal.
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