BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Supreme Court of Ireland Decisions |
||
|
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Good Concrete -v- CRH Plc, Roadstone Wood Ltd., & anor [2015] IESC 70 (31 July 2015) URL: http://www.bailii.org/ie/cases/IESC/2015/S70.html Cite as: [2015] IESC 70, [2015] 3 IR 493, [2015] 2 ILRM 289 |
||
[New search] [Help]
Judgment
| ||||||||||||||||||||
THE SUPREME COURT Appeal No. 579/2012
580/2012 581/2012 Denham C.J. Hardiman J. Clarke J. MacMenamin J Dunne J.
Goode Concrete Plaintiff/Appellant and CRH Plc, Roadstone Wood Limited, Kilsaran Concrete Defendants/Respondents Judgment delivered on the 31st day of July, 2015, by Denham C.J. 1. In these appeals the appellant alleges objective bias by a High Court judge, arising from his shareholding in CRH Plc. This is an issue of importance to the parties, but it is of even more significance as it is required to be considered in the context of the administration of justice. 2. Goode Concrete, the plaintiff/appellant, is referred to as “the appellant”. CRH Plc and Roadstone Wood Limited, the first and second named defendants/respondents, are referred to respectively as “the first and second respondents”. Kilsaran Concrete, the third named defendant/respondent, is referred to as “the third respondent”. The first, second and third named respondents are referred to collectively as “the respondents”. 3. The appellant has appealed three judgments and orders of the High Court (Cooke J.). These orders are:-
(b) A judgment delivered on the 21st March, 2012, [2012] IEHC 116, and an order made on the 21st March, 2012, perfected on the 8th May, 2012, whereby applications brought by the respondents for security for costs were granted and it was ordered that the appellant provide security to the respondents on a phased basis.
(c) A judgment delivered on the 15th May, 2012, [2012] IEHC 198, and an order made on the 15th May 2012, perfected on the 17th May, 2012, where the appellant was ordered to provide security for costs to the first and second respondents in the amount of €110,000 and to the third respondent in the amount of €85,000. Grounds of Appeal 4. The single ground of appeal upon which the appellant was given leave to appeal is as follows: - that the learned trial judge erred in law in hearing and determining these applications in circumstances where there was or could have been a perception of bias on his part due to his holding of interests in the shares of the first named respondent, which interests had not been disclosed and were unknown to the appellant.Background 6. At that time Cooke J. indicated that he had shareholdings in CRH Plc. The words of Cooke J. may be found in the transcript and are as follows:-
MR. SREENAN: I see. Well, I don’t know whether I should commiserate or not, Judge. JUDGE: However, you’d better consider it. MR. SREENAN: Absolutely. Thank you, Judge.” [Transcript 26 November 2010, page 2 lines 31 to 33 and page 3 lines 1 to 3] 7. The appellant has submitted that the declaration was considered, and that given the nature of the declaration, and the fact that it would not be unusual for a person to hold a very small number of shares of a public company in a pension fund, the appellant had no difficulty with Cooke J. hearing the matter. 8. The appellant submitted that it became apparent later that the full extent of the financial interests held by the learned trial judge had not been revealed. On the 26th September, 2012, Mr. Peter Goode received information of the learned trial judge’s shareholdings in CRH Plc, including that additional interests in the shares in CRH Plc were acquired by the learned trial judge on the 9th December, 2010, and that dividends were received on certain dates, including in May, 2012. 9. It was submitted on behalf of the appellant that the number of shares which appeared to be held by the learned trial judge or on his behalf after the December 2010 purchase, and at times when he heard and decided the matters now under appeal, was at least 8,966 shares. Taking a share price of €15.15, which was the closing share price of CRH Plc on the 9th December, 2010, the value of that holding was submitted to be approximately €135,835 on that date. 10. The solicitors for the appellant wrote to Cooke J. by letter dated the 16th October, 2012. Cooke J. indicated that the matter should be raised in open court. The appellant then brought a motion seeking that the learned trial judge recuse himself from the proceedings. 11. The motion came before the High Court on the 13th November, 2012, when Cooke J. set out details of his interests in the first respondent, and informed the parties that he would no longer be involved in the proceedings. 12. On the 13th November, 2012, the learned trial judge explained in open court:-
When the matter came before me on the 26th November 2010 I was, of course, aware that these arrangements were being put in place and the funds were being put into various retirement funds and investments, but I was not following the matter on a day-to-day basis. When it came before me on the 26th November I was aware that I had a small holding in CRH, which I had had for quite some time, and I had assumed that it had been transferred from the holding I had in Luxembourg into the holdings here during 2009, and that was what was at the back of my mind on the 26th November. I was not conscious of the fact that there had already been made or was about to be made an additional purchase of shares in CRH, and your detective work has thrown up the date of the 6th December, which is used as the basis for an insinuation that having had this case before me I then went out and bought further shares. You will have to take my word for it, that at the time I was unaware, because that was one of what I have now checked was 15 different investments over which the funds were spread in that latter half of 2010. It happens that the 6th December was, as I understand it, the settlement date for that particular tranche that appears in the books of the stockbroker’s agents. The fact remains that on the 26th November I alerted the parties to the fact that there was, as a matter of fact, this interest in CRH shares. If anybody had had the courtesy to come back to me at any stage I would have made the necessary inquiries if the actual numbers of shares was a matter of concern, and I would have quite happily saved myself the task of writing three written judgments over the next year, and arrange for the matter to be transferred to another Judge.” Submissions 13. Written and oral submissions were before the Court from the appellant and the respondents.
14. The appellant advanced the following arguments, inter alia:-
(ii) If there is a de minimis exception to the rule of automatic disqualification, it is patently not satisfied in this case given the extent of the known shareholdings of the judge. (iii) If the appellant is wrong that automatic disqualification is the decisive principle and the Court decides that it should not apply a rule of automatic exclusion, then, on the basis of the facts in this case, the judgments of Cooke J. ought to be set aside in any event as a reasonable person would have a reasonable apprehension that the appellant had not received a fair hearing. (iv) The appellant submits that it was incapable of waiving what is a right for the benefit of the public at large. In any event, there can be no question of the appellant having waived any right to argue objective bias, given (a) the limited nature of the disclosure that was made and (b) the fact that shares in CRH were acquired on the judge’s behalf after the disclosure was made (and the fact that this purchase was not subsequently disclosed). In this regard it is of some significance that, notwithstanding that the discovery of the post-disclosure purchase of shares was notified to the judge, he continued to maintain in correspondence that the position remained unchanged since he made his disclosure in November 2010, before acknowledging the December 2010 transaction in Court on 13 November 2012. (v) Ultimately, the test of objective bias is highly fact specific. This case does not fall into a “grey area”. The facts in this case lead very clearly to the result that the judgments below should be set aside. The nature of the initial disclosure, the absence of disclosure about the December 2010 purchase and the size of the known holding, which the reasonable observer would consider was substantial, support this result.
(ii) The correct test to be applied is the well-established test for objective bias of whether a reasonable person would have a reasonable apprehension of bias. This is an entirely objective test and the views held by the appellant are entirely irrelevant. (iii) The reasonable person is a well-informed observer who is aware of and gives due consideration to all relevant facts and circumstances. He or she is also aware that judges take an oath to discharge their duties impartially and is practical and not unduly sensitive. (iv) A reasonable apprehension of bias would not arise merely because a judge has a shareholding in a party. It is necessary to go further and establish that the outcome of the decision to be made by the judge would have an impact on the price of the shares and consequently on the assets of the judge so that it can be said that the judge has an interest in the outcome of the proceedings. The appellant has failed to, and could not, adduce any evidence to support the proposition that the decisions of the trial judge under appeal could possibly have affected the share price of CRH Plc. (v) The relevant facts to be taken into account by a reasonable person considering whether there is a reasonable apprehension of bias include that disclosure of the existence of a shareholding was made by Judge Cooke so that he was entirely open in relation to it. Further, so far as Judge Cooke was aware, he only held a small number of shares in CRH Plc, which shares were held in and formed a small part of his pension fund. With regard to the purchase of shares after the admission of the proceedings to the Competition List, the judge was unaware of and could not have been influenced by this. Furthermore, not only was the number of shares held by the judge very small in the context of the market capitalisation of CRH plc, the decisions to be made by the judge on the issues before him could not possibly have affected the share price of CRH Plc and, thus, the value of his shareholding. Having regard to all of these facts, a reasonable person would not have a reasonable apprehension of bias. (vi) Even if a reasonable person could form a reasonable apprehension of bias, any objection on this basis was waived by the appellant. The appellant was aware, on the basis of the disclosure made by the judge, that he had a shareholding and had no difficulty with the judge dealing with the proceedings. It was only after the appellant had lost a number of applications that an allegation of bias was raised.
(ii) The learned trial judge's declaration of interest on the 26th November 2010, was in all the circumstances of this case sufficient to provide the appellant with the knowledge necessary to ground the appellant’s waiver of his right to object. (iii) Regardless of the waiver, it is submitted that although the ownership of shares in a listed public company may, in some cases, constitute a form of association between a trial judge and respondent which has the potential to bring into question the independence or impartiality of the said judge, it is submitted that the facts of the instant case fall far short of those necessary to provide a basis for disqualification on grounds of bias, whether objective or otherwise. A reasonable person in possession of all the relevant facts would not have a reasonable apprehension that the appellant had not received a fair hearing. (iv) There is no principle of automatic disqualification recognized under Irish law and applying the law in respect of establishing objective bias suggests that a reasonable, fair minded observer, who was not unduly sensitive but was in possession of all the relevant facts would not conclude that the learned trial judge’s holding of CRH shares as part of his pension plan could give rise to a reasonable apprehension of bias against the appellant. Decision
17. There is well settled law in this jurisdiction as to the test to be applied by a court when considering the issue of objective bias. Reasonable person test 18. In Bula Ltd v. Tara Mines Ltd (No. 6) [2000] 4 I.R. 412 at p. 441 I stated:- “It is well established that the test to be applied is objective, it is whether a reasonable person in the circumstances would have a reasonable apprehension that the applicants would not have a fair hearing from an impartial judge on the issues. The test does not invoke the apprehension of the judge or judges. Nor does it invoke the apprehension of any party. It is an objective test - it invokes the apprehension of the reasonable person”. 19. In Kenny v. Trinity College Dublin [2008] 2 IR 40 at P. 45, Fennelly J. stated that the test had been described authoritatively in Bula, in the words quoted above. 20. In Orange Limited v. Director of Telecoms (No. 2) [2000] 4 IR 159, Keane C.J. at p. 186 stated:-
‘However, there is no need to go further than this jurisdiction where it is well established that the test to be applied is objective, it is whether a reasonable person in the circumstances would have a reasonable apprehension that the Applicants would not have a fair hearing from an impartial judge on the issue. The test does not invoke the apprehension of the judge or judges. Nor does it invoke the apprehension of any party. It is an objective test - it invokes the apprehension of the reasonable person’.
22. In O’Callaghan v. Mahon [2008] 2 IR 514 at p. 672, Fennelly J. described the principles relating to objective bias to be applied as follows:-
(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.” Automatic disqualification test
26. In general a judge recuses him or herself if he or she has an interest in a case, whether pecuniary or personal. In conjunction with this process of recusal, the courts have applied the principles described earlier in established cases on the issue of objective bias. 27. In the United Kingdom a rule of automatic disqualification has been applied where the decision maker had a pecuniary or proprietary interest. 28. The seminal case is Dimes v. Grand Junction Canal Co. Properties (1852) 3 HL Cas 759. In that case the fact was that the Lord Chancellor had an interest as a shareholder in a company which was a plaintiff in an action before him. The Lord Chancellor held shares worth several thousand pounds. This fact was unknown to the defendants in the action. The House of Lords held that the Lord Chancellor was disqualified, on the ground of interest, from sitting as a judge in the cause and that his decree was therefore voidable and must consequently be reversed. The then Lord Chancellor pointed out that this was an appeal against the late Lord Chancellor Cottenham. He stated that the opinion of the judges was that the interest of the Lord Chancellor was such as disqualified him from judging in the cause. Lord Campbell stated at pp. 293 and 294:-
"[There] are certain cases in which it has been considered that the circumstances are such that they must inevitably shake public confidence in the integrity of the administration of justice if the decision is to be allowed to stand. Such cases attract the full force of Lord Hewart C.J.'s requirement that justice must not only be done but must manifestly be seen to be done. These cases arise where a person sitting in a judicial capacity has a pecuniary interest in the outcome of the proceedings. In such a case, as Blackburn J. said in Reg. v. Rand (1866) L.R. 1 Q.B. 230, 232: ‘any direct pecuniary interest, however small, in the subject of inquiry, does disqualify a person from acting as a judge in the matter.’ The principle is expressed in the maxim that nobody may be judge in his own cause (nemo judex in sua causa). Perhaps the most famous case in which the principle was applied is Dimes v. Proprietors of Grand Junction Canal (1852). 3 H.L.Cas. 759, in which decrees affirmed by Lord Cottenham L.C. in favour of a canal company in which he was a substantial shareholder were set aside by this House, which then proceeded to consider the matter on its merits, and in fact itself affirmed the decrees. Lord Campbell said, at p. 793:
30. Thus, while some of the cases in the United Kingdom describe this as an automatic disqualification, the facts are such that they could fall under another classification. Recent case law in United Kingdom
4. As is apparent the case which the claimants seek to make out against the defendants involves serious allegations against prominent businessmen for whom, if those allegations are found proved, most serious consequences would follow both in the damages which they might be required to pay and in the consequences that such findings would have for their future careers."
4 As Mr Marshall made clear, his client's sole objection to Evans-Lombe J trying the case was the real possibility of apparent bias. There was not, it should be emphasised, any suggestion of actual bias or personal interest. The judge had no personal interest, pecuniary or otherwise, in the outcome of the litigation. In no sense would he be a judge in his own cause. The detailed objections in Dechert's letter of 30 November 2005 (referred to in para 1 of the judgment) were based entirely on an apprehension of the real possibility of apparent bias. 5 Upholding the bias objection on the eve of the trial would cause considerable disruption: the trial would have to be adjourned, as there would be practical problems in finding a new trial judge at such short notice; the parties would suffer additional costs resulting from the adjournment; and there would be delay in fixing a new trial date. 6 Inconvenience, costs and delay do not, however, count in a case where the principle of judicial impartiality is properly invoked. This is because it is the fundamental principle of justice, both at common law and under article 6 of the Convention for the Protection of Human Rights. If, on an assessment of all the relevant circumstances, the conclusion is that the principle either has been, or will be, breached, the judge is automatically disqualified from hearing the case. It is not a discretionary case management decision reached by weighing various relevant factors in the balance. 7 The test for apparent bias now settled by a line of recent decisions of this court and of the House of Lords is that, having ascertained all the circumstances bearing on the suggestion that the judge was (or would be) biased, the court must ask ‘whether those circumstances would lead a fair¬-minded and informed observer to conclude that there was a real possibility … that the tribunal was biased’. Taylor v Lawrence [2003] QB 528, para 60. See also R v Gough [1993] AC 646; In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700; Porter v Magill [2002] 2 AC 357; and Lawal v Northern Spirit Ltd [2003] ICR 856.
8 As to the kind of circumstances in which there would be a real possibility of bias, the judge cited a pertinent passage from another leading case, Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, 480: ‘25 ….By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the, decision of the case ... or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him ... In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal,’ 9 Most of the leading authorities were appeals arising from hearings that had already taken place or were under way and an objection to the judge was based on facts discovered during the course of, or only after the end of, the hearing. Although this is a different case, as the hearing has not yet started, the same principle applies. Where the hearing has not yet begun, there is also scope for the sensible application of the precautionary principle. If, as here, the court has to predict what might happen if the hearing goes ahead before the. judge to whom objection is taken and to assess the real possibility of apparent bias arising, prudence naturally leans on the side of being safe rather than sorry.” 34. However, there is no need to import this comparative law. There is well established jurisprudence in Ireland, as discussed earlier in this judgment. This is a case where the test to be applied is the “reasonable person” test. 35. A somewhat similar approach may be seen in Australia. In Ebner v. Official Trustee in Bankruptcy (2000) 205 C.L.R. 337, the issue was one of judicial pecuniary interest. The majority of the Court held that there was no free standing rule of automatic disqualification and that each case depends on the fair-minded lay observer test. 36. The facts of Ebner were that at the opening of a trial in the Federal Court of Australia, the trial judge disclosed that he was a director and trustee of a family trust that had about 8,000 to 9,000 shares in a bank, and that he was a contingent beneficiary of the trust. The bank was not a party to the proceedings but had a pecuniary interest in the outcome. The respondent objected to the judge hearing the case, but the judge did hear and determine the matter. After the conclusion of an eighteen day trial, but before judgment was given, the judge inherited 2,400 shares in the bank, which was the plaintiff, and defendant by counterclaim, in the proceedings. The judge did not disclose his inheritance to the parties and subsequently delivered judgment in favour of the bank. It was held by the High Court of Australia (Gleeson C.J., Gaudron, McHugh, Gummon, Hayne and Callinan JJ., Kirby J. dissenting) that the judge was not disqualified from delivering judgment. 37. The majority of that Court held that there is no separate rule of automatic disqualification which applies where a judge has a direct pecuniary interest, however small, in the outcome of the case over which he is presiding. They decided that the apprehension of bias principle is to be applied to all cases in which it is suggested that, by reason of interest, conduct, association, extraneous information or some other circumstance, a judge might not bring an impartial mind to the resolution of the case. In a judgment delivered by Gleeson C.J., McHugh, Gummon and Hayne JJ., it was stated, inter alia, at p. 351:-
38. In Ebner at p. 356 it was explained:- “Having regard to the current state of the common law in Australia on the subject of disqualification for apprehended bias, we do not accept the submission that there is a separate and free-standing rule of automatic disqualification which applies where a judge has a direct pecuniary interest, however small, in the outcome of the case over which the judge is presiding. The principle of general application earlier considered would have been sufficient (had it then existed) to cover the case of Dimes. For the reasons already explained, a rule of automatic disqualification would be anomalous. It is in some respects too wide, and in other respects too narrow. There is no reason in principle why it should be limited to interests that are pecuniary, or why, if it were so limited, it should be limited to pecuniary interests that are direct. This is illustrated by the problem that concerned the House of Lords in Pinochet [No 2] (94). The concept of interest is itself vague and uncertain. It is not logical to have one rule applying to disqualification for interest and a different rule applying to disqualifi¬cation for association. A problem that has attended attempts to apply the rule has been whether, notwithstanding the language in which it has been expressed, it is subject to a de minimis qualification.” 39. We apply, in our jurisprudence, a “reasonable person” test on the issue of objective bias, rather than an automatic disqualification test. It does remain, of course, to consider what a “reasonable person” would consider would lead to objective bias. This requires to be analysed on the facts of each case. 40. In Ebner the majority of the Court, inter alia, analysed the situation as follows, at p. 357:-
“In the result, I would adhere to the settled authority of this Court as most recently explained by Deane J. in Webb v The Queen (293). There is a ‘special class’ of case where a judge is disqualified when he or she has ‘a direct pecuniary interest in the outcome of the proceedings’ (294). That ‘special class’ includes all direct pecuniary interests. All other cases of disqualification fall to be decided by reference to the principle of apprehended bias based on the reasonable impression of the hypothetical bystander. This has long been the way the law in Australia has approached such questions. The approach should not be changed (295). It is worth adding that, before the current recusal statute was enacted, the present law, borrowed in turn from Dimes, was adopted and approved by the Supreme Court of the United States (296). That Court's approach was later reaffirmed (297). Those who litigate in Australia are entitled to no lesser protection than has long been accorded by courts in England, the United States and New Zealand. Having regard to their own longstanding practice, I do not believe that Australian judges would expect, or desire, the abolition by this Court of such established legal doctrine.” 42. In discussing the de minimis exception, Kirby J. held at p. 391:-
In support of such an exception, it may be pointed out that Lord Cottenham's shareholding in the canal company, held to disqualify him in Dimes, was a most ‘substantial’ one (304). Yet, whilst I would be prepared to accept a de minimis exception to the special rule, the prophylactic purpose of the rule makes it important to reserve that exception to cases that are truly de minimis and not simply cases of a small interest Thus, it would be wrong to infer from the facts in Dimes that only a shareholding approaching one per cent of the issued capital of a company, or more, would attract disqualification of the judicial shareholder. I would confine the exception to cases where the pecuniary interest in question is so trivial and insubstantial that the suggestion of disqualification could be dismissed as absurd (305). Cases attracting this exception would be few. They would ordinarily only arise where the judge had disclosed the trivial interest (306). If the interest were discovered belatedly the exception would only apply where the oversight was excusable and the injustice occasioned by a refusal to waive the interest was such an affront to commonsense, having regard to the trivial size of the interest, so as to demand exception from the rule in the circumstances. Indirect, remote and speculative interests excluded: Similarly, it is ¬appropriate to confine the principle, in the terms in which Deane J stated it, to cases where the pecuniary interest in question is a ‘direct’ one (307). A judge is not expected to stand aside where his or her interest in the subject matter of, or in a party to, the litigation (or that of a close family member) is ‘indirect and attenuated’ (308) or ‘speculative’ (309). The fact that a judge does not personally have shares in a litigant corporation will not necessarily render an interest ‘indirect’ if it is held by a close family member and its existence is known to the judge. In such a case, it is the usual practice of judges in Australia to disclose such interests as are known, to place them on the record, and to seek waiver of the judge's participation in the proceedings, which is ordinarily given. Even where the interests of close family members are disclosed and no objection is taken, a judge may still regard it as necessary or desirable to decline participation (310). This may be done notwithstanding that the decision occasion delay and unrecoverable costs. To hold that a judge is disqualified only in the case of a substantial pecuniary interest, or one liable to be affected by the adjudication, misstates the longstanding and strict common law rule. It also undermines the achievement of the purposes of that rule. I would adhere to the established law (311).” 43. In any consideration of the administration of law and the judiciary, the starting point is the declaration made by each judge on appointment. Each person appointed a judge under the Constitution makes the following declaration:-
44. 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.
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.” “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) 4 I.R. 412 at p. 449:
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.’”
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.” 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:
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. “Reasonable person” test relating to issue of bias 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. Waiver 57. In Corrigan v. Irish Land Commission [1977] I.R. 317, at p. 324, Henchy J. stated:-
[Emphasis added]
[Emphasis added]
61. When the issue is raised as to a perceived bias by a judge, the reasonable person test, as described in our jurisprudence, an objective test, is the test to be applied. If a judge has a pecuniary interest in one of the parties to the case, then the best practice is that the judge not hear the case. 62. However, in exceptional circumstances, where the interest declared is “trivial”, “insubstantial”, or that not to hear the case would be “absurd”, a judge may proceed to hear a case. In such an approach it is not necessary to take a further step to establish that the outcome of the decision to be made by the judge would have an impact on the price of the shares, or assets, which the judge owns, or which his family own. 63. No burden rests on a party to establish, or counter argue, as to the value of the assets of the judge, and the effect on a judgment. Such an approach would be contrary to the due administration of justice, and the principle that justice must be done and be seen to be done. Shares and Units 65. I would adopt and apply in this jurisdiction the Commentary on the Bangalore Principles of Judicial Conduct (United Nations Office on Drugs and Crime, September 2007) at paragraph 99, which states:-
66. The test to apply when considering a recusal is that of the reasonable person. The test to be applied when considering the issue of the perception of bias of a judge is the reasonable person test as described in established jurisprudence. 67. A reasonable person would, in general, have a concern if a judge held shares himself or herself (not in a shares unit) in a company which was a party in an action being heard by that judge. 68. Apart from being the “reasonable person” test, this approach is consistent with the long established maxim that no one should be a judge in his own cause. It is also a fundamental building block of the principle that justice should not only be done but should be seen to be done. 69. In analysing this issue of alleged perceived bias, it is a matter not only for the parties, or the trial judge, but there is the fundamental concern for the manifest impartial administration of justice, and the confidence which the People rest in the judiciary. Judicial impartiality is the fundamental principle upon which the administration of justice proceeds, upon which rests confidence in the judiciary, and upon which rests the rule of law. 70. In this case the full facts were not before the Court, neither known to the judge nor to the parties on the 26th November, 2010. No inquiry was made when the issue was raised. 71. It is the responsibility of a judge to make the necessary inquiries into his holdings of shares in a company which is in litigation before him, and to inform the parties, so that an informed assessment may be made as to whether he or she should recuse himself or herself. It is not a burden of inquiry to be borne by the parties. If a judge holds shares (as opposed to shares held in a pension plan or units over which he or she has no control), then, in general, he or she should recuse himself or herself from hearing the action. 72. In this case the learned trial judge held the shares himself, they were not in a trust or any other type of fund. There was no inquiry on the 26th November, 2010. 73. As the fundamental issues are so important, being the administration of justice and the allegation of objective bias, I have not addressed the manner in which the information concerning the learned trial judge’s shareholding came ultimately before the Court. 74. In all the circumstances of the case, I would allow the appeal, and quash the three judgments identified in paragraph No. 3 of this judgment, and remit the three matters back to the High Court to be heard by another judge of the High Court. |
