Appeal No. 579/2012

IpsofactoJ.com: International Cases [2015] Part 8 Case 6 [SCIre]


SUPREME COURT OF IRELAND

Coram

Goode Concrete

- vs -

CRH Plc

Denham CJ

Hardiman J

Clarke J

MacMenamin J

Dunne J

31 JULY 2015


Judgment

Denham CJ

  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:-

  4. (a)

    A judgment delivered on the 20th January, 2011, [2011] IEHC 15, and an order made on the 20th January, 2011, perfected on the 2nd February, 2011, whereby an application for interlocutory injunctive relief made by the appellant was refused and an order for the costs of that application was made in favour of the respondents.

    (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

  5. 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.

  6. Background

  7. The proceedings were first before the High Court on the 26th November, 2010, when the appellant sought entry of the case to the Competition List.

  8. 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:-

  9. Judge:

    There is one thing I should mention, that I don’t know whether it causes a problem or not, but I have a vague feeling that a very small number of CRH shares feature somewhere in my pension fund.

    Sreenan:

    I see. Well, I don’t know whether I should commiserate or not, Judge.

    Judge:

    However, you’d better consider it.

    Sreenan:

    Absolutely. Thank you, Judge.

    [Transcript 26 November 2010, page 2 lines 31 to 33 and page 3 lines 1 to 3]

    Mr. Paul Sreenan, S.C., appeared as counsel for the first and second respondents.

  10. 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.

  11. 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.

  12. 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.

  13. 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.

  14. 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.

  15. On the 13th November, 2012, the learned trial judge explained in open court:-

  16. For 12 years prior to the end of 2008 I lived outside this country. When I retired from the European Court at the end of 2008 my wife and I sold the house we owned in Luxembourg, and the funds or the proceeds of that, together with other monies we had in Luxembourg, were transferred back to this country and put into the hands of various advisers who were acting on our behalf. My return also coincided with my reaching the age of 65, so that during 2009 I had to draw down various pension investments. These advisers were engaged throughout 2009 and 2010 in setting up the usual ARFs and PRSAs, as they are called.

    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

  17. Written and oral submissions were before the Court from the appellant and the respondents.

  18. The appellant advanced the following arguments, inter alia :-

  19. (i)

    A pecuniary interest such as that held by Cooke J. ought to result in the automatic disqualification of the judge from hearing the proceedings or, where judgment has already been given, the automatic setting aside of the judgment.

    (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.

  20. The first and second respondent made submissions to the Court contending that the appellant was not entitled to succeed because:-

  21. (i)

    Contrary to the submission of the appellant, there is no rule of automatic disqualification in Irish law which applies where a judge has a pecuniary interest in the outcome of a case. Not only does such a rule not form part of Irish law, it would be inconsistent with the established Irish jurisprudence. Nor should such a rule be adopted into Irish law, having been rejected in other common law jurisdictions.

    (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.

  22. The third respondent submitted as follows:-

  23. (i)

    The appellant was at all times aware of the fact that the learned trial judge had shareholding in CRH Plc as part of his pension and chose not to object to his case managing, hearing and determining two separate interlocutory applications. As such, it is submitted that the appellant should be estopped from raising a complaint as to bias, when he expressly and/or impliedly abandoned the opportunity to make such a complaint at the hearing of any of the interlocutory matters here under appeal.

    (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

  24. 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.

  25. Reasonable person test

  26. In Bula Ltd v Tara Mines Ltd (No. 6) [2000] 4 I.R. 412 at p. 441 I stated:-

  27. 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.

  28. In Kenny v Trinity College Dublin [2008] 2 I.R. 40 at P. 45, Fennelly J. stated that the test had been described authoritatively in Bula, in the words quoted above.

  29. In Orange Limited v Director of Telecoms (No. 2 ) [2000] 4 I.R. 159, Keane C.J. at p. 186 stated:-

  30. While the test for determining whether a decision must be set aside on the grounds of objective bias has been stated in different ways from time to time by the courts in the United Kingdom, there is, in light of the two authorities to which I have referred, Dublin Wellwoman Centre Limited v Ireland [1995] 1 I.L.R.M. 408 and Radio One Limerick Ltd v I.R.T.C . [1997] 2 I.R. 291] no room for doubt as to the applicable test in this country: it is that the decision will be set aside on the ground of objective bias where there is a reasonable apprehension or suspicion that the decision maker might have been biased, i.e. where it is found that, although there was no actual bias, there is an appearance of bias.

    Keane C.J. stated also at p. 185:-

    In such cases, the courts proceed on the assumption that, where there is a reasonable apprehension of bias, the decision must be set aside, although there is not the slightest indication that the decision maker was in fact actuated by any bias.

  31. In O’Ceallaigh v An Bord Altranais [2011] IESC 50, the appellant alleged objective bias. In describing the relevant principles, Fennelly J. held:-

  32. 34.

    The principles to be applied by our courts in adjudicating on allegations of objective bias have been well-established for a number of years and, in particular, by two decisions of this Court delivered within two months of each other in the year 2000. There is an inevitable tendency on the part of counsel to suggest that each new decision on a particular or novel set of facts constitutes a development in the law. There are many individual instances of decisions on particular facts. Here, it seems to me that our courts have merely been concerned to apply very well known criteria.

    Fennelly J. continued that he believed:-

    35.

    .... that the law is comprehensively and authoritatively stated in the judgment of Denham J, delivered in July 2000, in Bula v Tara (no.6). Having reviewed the law, and having considered, in particular, the decision of the House of Lords in Reg. v Gough [1993] A.C. 646, she rejected the suggestion that our courts should adopt a test based on ‘a real danger of bias.’ She cited the decision of the High Court of Australia in Webb v The Queen (1993-1994) 181 C.L.R. 41 to similar effect. She held, at page 441 in favour of a test based on reasonable apprehension of bias:

    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.

    36.

    The same test had been propounded by Keane C.J., in May of the same year, in Orange Communications Ltd. v Director of Telecoms (No. 2 ) [2000] 4 I.R. 159 at 186 as follows:

    While the test for determining whether a decision must be set aside on the ground of objective bias has been stated in different ways from time to time by the courts in the United Kingdom, there is, in the light of the two authorities to which I have referred, no room for doubt as to the applicable test in this country: it is that the decision will be set aside on the ground of objective bias where there is a reasonable apprehension or suspicion that the decision maker might have been biased, i.e. where it is found that, although there was no actual bias, there is an appearance of bias.

    37.

    The two cases to which the Chief Justice referred were Dublin Wellwoman Centre Limited v Ireland [1995] 1 I.L.R.M. 408 and Radio One Limerick Ltd. v I.R.T.C. [1997] 2 I.R. 291.

  33. In O’Callaghan v Mahon [2008] 2 I.R. 514 at p. 672, Fennelly J. described the principles relating to objective bias to be applied as follows:-

  34. (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.

  35. 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.

  36. Automatic disqualification test

  37. There has been little written on the issue of an automatic disqualification of a decision maker in Ireland. In Orange Ltd v Director of Telecoms (No. 2 ) [2000] 4 I.R. 159 at p. 252, Geoghegan J. referred to situations of actual bias, objective bias, and:-

  38. A situation of apparent bias where the adjudicator has a proprietary or some other definite personal interest in the outcome of the proceeding competition or other matter on which he is adjudicating. In that case there is a presumption of bias without further proof.

  39. However, a rule of law as to automatic disqualification has not been developed in Ireland.

  40. 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.

  41. In the United Kingdom a rule of automatic disqualification has been applied where the decision maker had a pecuniary or proprietary interest.

  42. The seminal case is Dimes v Grand Junction Canal Co. Properties (1852) 3 H.L. 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:-

  43. I take exactly the same view of this case as do my noble and learned friends, and I have very little to add to their observations. With respect to the point upon which the learned Judges were consulted, I must say that I entirely concur in the advice which they have given to your Lordships. No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern; but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not to be confined to a cause in which, he is a party, but applies to a cause in which he has an interest. Since I have had the honour to be Chief Justice of the Court of Queen's Bench, we have again and again set aside proceedings in inferior tribunals because an individual, who had an interest in a cause, took a part in the decision. And it will have a most salutary-influence on these tribunals when it is known that this high Court of last resort, in a case in which the Lord Chancellor of England had an interest, considered that his decree was on that account a decree not according to law, and was set aside. This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of labouring under such an influence.

  44. The automatic disqualification classification in the United Kingdom appears to be based on the concept that justice must not only be done but be seen to be done, as well as the maxim that no one should be a judge in their own cause. In R. v Gough [1993] A.C. 646 at p. 661, Lord Goff stated:-

  45. [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:

    No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern; but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred.

    In such a case, therefore, not only is it irrelevant that there was in fact no bias on the part of the tribunal, but there is no question of investigating, from an objective point of view, whether there was any real likelihood of bias, or any reasonable suspicion of bias, on the facts of the particular case. The nature of the interest is such that public confidence in the administration of justice requires that the decision should not stand.

  46. 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.

  47. Recent case law in United Kingdom

  48. In AWG Group Ltd v Morrison [2006] 1 W.L.R. 1163; [2006] EWCA Civ 6, the Court of Appeal in England addressed the issue of apparent bias. The trial judge explained the circumstances as follows, at p. 1166:-

  49. 3.

    At the outset of the hearing of the defendants' application I described my connection with AWG and with Mr. Jewson in the following terms: AWG is a company whose primary business is supplying water to industry and the public in East Anglia and in particular in Norfolk. My family are farmers/landowners in Norfolk and so in the area of operation of AWG. I have had dealings with AWG, not always harmonious, over the years on such subjects as access for the purpose of sinking boreholes and running pipelines. Mr Jewson lives in the next village to the village where I and my family live being approximately one mile distant. Our families have known each other for at least 30 years. Our children are friends and we have dined with each other on a number of occasions. Mr Jewson and I in the past were tennis players. Mr Jewson has recently been appointed Lord Lieutenant of Norfolk. I would have the greatest difficulty in dealing with a case in which Mr Jewson was a witness where a challenge was to be made as to the truthfulness of his evidence.

    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.

  50. The Court of Appeal in England and Wales then went on to describe the test for apparent bias, at pp. 1166 and 1167:-

  51. The test for apparent bias

    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.

  52. The Court of Appeal in England and Wales held in AWG Group Ltd v Morrison [2006] 1 W.L.R. 1163, that a judge was automatically disqualified from hearing a case on the ground of apparent bias if, on the assessment of all the relevant circumstances, the principle of judicial impartiality, the fundamental principle of justice, either had been or would be breached.

  53. 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.

  54. 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.

  55. 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.

  56. 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:-

  57. The possible effect of the outcome of a case upon the value of assets owned by a judge may be a matter of serious difficulty. However, in the ordinary case, where a judge owns shares in a listed public company which is a party to, or is otherwise affected by litigation, and there is no other suggested form of interest or association, the question whether there is a realistic possibility that the outcome of the litigation would affect the value of the shares will be a useful practical method of deciding whether a fair minded observer might hold the relevant apprehension. In such a case, if the answer to the question is in the negative, the judge is not disqualified. If the answer to the question is in the affirmative, the judge is disqualified, not ‘automatically’, but because, in the absence of some countervailing consideration of sufficient weight, a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the case.

    I would agree with the analysis insofar as it takes the approach of the reasonable person test rather than automatic disqualification.

  58. In Ebner at p. 356 it was explained:-

  59. 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.

  60. 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.

  61. In Ebner the majority of the Court, inter alia, analysed the situation as follows, at p. 357:-

  62. The apprehension of bias principle requires articulation of the connection between the asserted interest and the disposition of the cause which is alleged. If, on examination, the judge does have a financial interest in the outcome of the litigation, the application of the apprehension of bias principle will lead to the judge being disqualified. By contrast, where, as here, it is clear that the outcome of a case would have no bearing upon the value of the shares held by the judge in the listed public company, and there is no other suggested form of pecuniary interest involved, then the judge does not have a direct pecuniary interest in the outcome of the litigation.

  63. However, in that case Kirby J. dissented from the decision that the judge was not disqualified from delivering judgment. There were two cases before the High Court, and Kirby J. pointed out that they presented to that Court the issue of the applicable legal rule requiring disqualification of a judge for a pecuniary interest, in that case being shares in, or of real relevance to, a party to the litigation before that judge. Kirby J. adhered to the automatic disqualification for pecuniary interest rule, established in Dimes. He stated at p. 383:-

  64. Although it is impossible to be dogmatic, I take the common law principle which forbids a judge from having a pecuniary interest, at least one involving a direct interest in a particular party, as a principle mainly concerned with upholding the fundamental guarantee of judicial ‘independence’. I take the guarantee of ‘impartiality’ as one basically supported by the common law principle of disqualification for apprehended bias as perceived by a reasonable bystander. The fact that there are two basic notions expressed in human rights norms makes it unsurprising that over 150 years, the common law should have evolved two principles of its own that to some extent overlap. This fact imposes a brake on any overly enthusiastic reduction of the separate legal rules into a single overarching one.

    Kirby J. held, at p. 390:-

    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.

  65. In discussing the de minimis exception, Kirby J. held at p. 391:-

  66. De minimis exception: But what of the suggestion, expounded by the present respondents, that to constitute an interest large enough to give rise to disqualification, it should be essential to show that the ratio of the judge's shareholding to the company's total issued capital was such that the judge's adjudication alight have affected his or her interest as a shareholder (301)? This could well be an appropriate criterion if the matter to be judged were the possible response of the reasonable bystander to the facts disclosed. But in my view, there is an anterior question of disqualification for pecuniary interest. It is necessary to answer that question before considering any different or additional ground of disqualification (302). It is in addressing that question that some authorities have been willing to concede a de minimis exception to relieve the judge, the parties and the administration of justice of an automatic disqualification that would otherwise apply (303). 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).

    Declaration

  67. 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:-

  68. 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.

    Recusal

  69. 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.

  70. 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.

  71. The issue of recusal was addressed also in Ebner v Official Trustee in Bankruptcy (2000) 205 C.L.R. 337 at 348:-

  72. 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.

  73. I considered the test for recusal in Bula Ltd v Tara Mines Ltd (No. 6 ) 4 I.R. 412 at p. 449:

  74. 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.

  75. The tradition of recusal in the Irish Courts is reflected in the Bangalore Principles of Judicial Conduct 2002, at paragraph 2.5:-

  76. 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.

  77. In the Commentary on The Bangalore Principles of Judicial Conduct (United Nations Office on Drugs and Crime, September 2007), 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.

  78. 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.

  79. The commentary also explained that consent of parties is irrelevant, stating:

  80. 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.

  81. The commentary has made suggestions as to when a judge should make disclosure, as follows:-

  82. 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.

  83. 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.

  84. 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.

  85. “Reasonable person” test relating to issue of bias

  86. 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.

  87. 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.

  88. Waiver

  89. The issue was raised as to whether a litigant may waive a right of objection.

  90. In Corrigan v Irish Land Commission [1977] I.R. 317, at p. 324, Henchy J. stated:-

  91. I consider it to be settled law that, whatever may be the effect of the complaining party’s conduct after the impugned decision has been given, if, with full knowledge of the facts alleged to constitute disqualification of a member of the tribunal, he expressly or by implication acquiesces at the time in that member taking part in hearing and in the decision, he will be held to have waived the objection on the ground of disqualification which he might otherwise have had.

    [emphasis added]

  92. However, in a dissenting judgment, Kenny J. stated, at p. 334:-

  93. It was argued by the counsel for the respondents that the appellant had waived the objection that the two commissioners who signed the certificate were adjudicating on the objection. I am convinced that we should not hold that there was a waiver. The basis of the rule that a person with prior knowledge of the facts should not sit to determine an objection is one based upon public policy and not upon the rights of the parties. The Courts are concerned that their reputation for impartiality should be preserved and they are equally interested in ensuring that administrative tribunals of all types should observe the same standards. The matter was put concisely by Cave J in R v Fraser:- ‘The question was, What would be likely to endanger the respect or diminish the confidence which it was desirable should exist in the administration of justice?’ The Courts should enforce these rules in their control of all proceedings before inferior courts and administrative tribunals. It is not competent for the parties to waive a rule of public policy.

    [emphasis added]

  94. In Delany, Judicial Review of Administrative Action, 2nd ed (Dublin: Round Hall, 2009) the author considers the issue of waiver at p. 267

  95. This issue whether waiver should not be permitted on public policy grounds, on which the court was divided in Corrigan , remains a point of contention. If one accepts the view expressed by Denham J in Dublin Well Woman Centre Ltd v Ireland [1995] 11 ILRM 408 that ‘the public perception of impartiality is a cornerstone of the administration of justice’ arguably Kenny J was correct in the view which he put forward. As Goudkamp has suggested ‘private litigants should not be able to sacrifice the public interest in maintaining the reality and appearance of justice because they find it expedient to do so’ ((2007) 26 CJQ 310, 327. Toy Cronin has also suggested (2000-2003) 9 Auck UL Rev 850, 882 that ‘the doctrine of waiver as applied to the rule against bias is an anachronism that should be abolished.’) While it is unlikely that waiver will be established in a sufficient number of cases to seriously undermine confidence in the impartiality of the decision-making process, it is nevertheless an important policy question which should be resolved. There is certainly merit in the suggestion of Cooke P in Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 that displays of blatant bias, likely to undermine public confidence in the justice system, should not necessarily be capable of waiver. If this approach were followed it might then be left to the reviewing court to decide whether the bias was sufficiently blatant to undermine public confidence.

  96. In the circumstances of this case there was not sufficient disclosure on the 26th November, 2010, to allow for any consideration of a waiver. Therefore, the possibility of a waiver did not, and does not, arise for decision.

  97. 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.

  98. 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.

  99. 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.

  100. Shares and Units

  101. A distinction must be drawn between a situation where a judge himself or herself holds shares in a company, and a situation where he or she has shares in units, in a pension fund, etc., where part of that fund contains shares, but over which he or she has no control – indeed even knowledge. In the latter situation there is no reason for recusal, and there could be no perception of bias.

  102. 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:-

  103. An economic interest does not extend to any holdings or interests that a judge might have, for example, in mutual or common investment funds, deposits a judge might maintain in financial institutions, mutual savings associations or credit unions, or government securities owned by a judge, unless the proceedings could substantially affect the value of such holdings or interests. Disqualification is also not required if a judge is merely a customer dealing in the ordinary course of business with a bank, insurance company, credit card company, or the like that is a party to a case, without there being pending any dispute or special transaction involving the judge. The fact that securities might be held by an educational, charitable or civic organization in whose service a judge’s spouse, parent or child may serve as a director, officer, advisor, or other participant does not, depending on the circumstances, mean that a judge has an economic interest in such an organisation. Similarly, in cases involving financial implications that are highly contingent and remote at the time of the decision, one would expect the application of the test generally not to result in disqualification. Nevertheless, in such cases it may be prudent for the judge to notify the parties of any such circumstances and have the matter recorded in open court so that the parties and not just the lawyers are made aware of them. Sometimes, lay clients are more suspicious and less trusting than the judge’s professional colleagues.

    Conclusion

  104. 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.

  105. 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.

  106. 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.

  107. 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.

  108. 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.

  109. 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.

  110. 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.

  111. 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.

  112. 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.

    Justice John MacMenamin

  113. I agree with the judgment and order proposed by the Chief Justice. However, I would like to add a few observations.

  114. The judgments in this appeal are not to be seen, in any way, as a reflection on the integrity of the judge in question, who has served with distinction, both in our national courts and the courts of the European Union. The judge was dealing with a situation that evolved over a considerable period. Objectively, he did not stand to gain from the outcome of the matters which are the subject of these applications. The judge, in fact, did disclose he held a shareholding. At the outset, he drew the parties’ attention to this fact. The problem is that statements, which he made at the outset, did not convey the extent of the shareholding which he ultimately held. As so often, appeal courts have the benefit of a “hindsight” view, which trial judges cannot have.

  115. It is fortunate that there is a high degree of public trust in the judiciary (see E.U. Justice Scoreboard 2014, 17th March, 2014, Figure 7). However, it is the task of judges to maintain public confidence, even in a case where there may be doubts about the bona fides of an application to set aside a judgment. Maintaining public trust and confidence is a fundamental value. It comes before other considerations. For justice to be seen to be done, the orders made should be set aside.

  116. The courts are still having to live with the aftershocks of a serious economic crisis. A range of people became over-extended, and now are under real financial pressure. Desperate circumstances sometimes lead people to seek desperate legal remedies, sometimes advanced by people who have no legal qualifications. Some applications for recusal have been made in the courts which are quite unwarranted. Applications of this type should not be lightly be made without clear grounds.

  117. In my view, in general, the appropriate court for an application to set aside a judgment on the grounds of objective bias is the High Court. There, all the issues can be properly tried. Issues such as waiver, estoppel, acquiescence, or abuse of process are all factual questions, as well as points of law. So too, particularly, is the conduct of the parties. The full evidence can only truly and fairly be explored when a trial court has the opportunity of hearing and weighing evidence, and assessing it, in the light of all the known facts. As a matter of justice, parties are entitled, in general, to a right of appeal. This is not the situation as it evolved in this case.

  118. I would add that, in considering applications to set aside a judgment on the grounds of objective bias, a court would also be justified in looking at the nature of the impugned decision made by a judge, the application of the de minimis principle, the length of time which has elapsed since the judgment, and the extent to which bona fides or mala fides in such an application is established in evidence. I would, therefore, reserve, for future consideration, how those important principles should be applied in individual cases.

    Justice Hardiman

  119. Overview

  120. This case involves an allegation of bias against a High Court judge, Mr. Justice Cooke. It is not alleged that the judge was actually biased, but a form of imputed bias, called objective bias, is alleged against him. I believe this allegation to be a contrivance, designed to get rid of three adverse decisions in the period 2010 – 2012. The appellants, Goode Concrete, could have appealed all or any of these decisions on their merits, within the time prescribed. They did not do so.

  121. Background

  122. The plaintiff appellant company is a significant player in the Irish Cement Industry. It is run by experienced and sophisticated business men who were at all material times advised by solicitor and counsel. The respondent, Cement Roadstone Holdings, is an Irish Public Company which is a player of international importance in the same industry. The plaintiff (now the appellant) alleged that the respondent was guilty of uncompetitive practices to its detriment. It issued High Court proceedings against CRH alleging this. Having done this in 2010, it appeared before Mr. Justice Cooke seeking that the action be admitted into the Competition List. This happened in November 2010.

  123. Over the next two years the appellant sought an injunction against the respondent. It failed to obtain this relief. Then the respondent sought Security for costs against the plaintiff. This application succeeded. Later the judge measured and fixed the amount of this security. The same judge, Mr. Justice Cooke, admitted the case to the Competition List and made all the subsequent decisions mentioned above.

  124. When the case first came before Mr. Justice Cooke in November 2010 he told the parties that he had a vague feeling that there was a small number of CRH shares in his pension fund. He said he did know whether this caused a problem or not but said to the parties “you’d better consider it”.

  125. Neither of the parties, then or later, made any application to the judge based on this shareholding or sought a further or more precise details of the shareholding about which the judge had said he had merely a “vague feeling”. But subsequently further shares, including shares in CRH, were purchased for the judge without his knowledge by those engaged to set up an Approved Retirement Fund on his behalf. The effect of this was that the judge possessed a shareholding in CRH amounting to 0.00001247863628519 of its issued shares. In absolute numbers, he owned 8966 of 111,368,470 shares, say 0.0000124. That is fairly describable as a very small shareholding. Cooke J. was one of over 24,000 shareholders.

  126. Legal principle

  127. The main principle of law invoked by the appellant in seeking to invalidate the judge’s decisions is nemo iudex in causa sua: no-one can be a judge in his or her own cause. As the Latin formulation of the principles suggest, this has been a principle of law going back thousands of years. It extends to the proposition that justice must both be done in fact, and be seen to be done.

  128. Over the years, the Irish courts have been extremely sensitive to the need for justice to be seen to be done. There are a great many cases in the Law Reports where decisions of non-court tribunals, commissions and bodies have been set aside on the basis that an informed reasonable observer might have thought there was a real risk of bias. Furthermore, the Courts have been prepared to require that a judge recuses herself or “steps aside” in an appropriate case, see Dublin Wellwoman Centre v Ireland [1995] 1 ILRM 408 or to set aside a decision of the Supreme Court because of a connection on the part of one of the judges with a professional firm involved in the subject matter of the litigation (Kenny v TCD [2008] 1 ILRM 241).

  129. But in this particular case, I firmly believe that the bias application is merely a contrivance to set aside an unfavourable decision. I am not clear whether my colleagues disagree with this view. My reasons for coming to it are set out below in some detail. They may be summarised as follows: when the case came before the judge, without prior notice to him, he immediately informed the parties of his “vague feeling” that he had a small number of CRH shares in his pension fund: neither party either objected to his hearing this case on that ground or sought further particulars as they could have done by application in open court; there was a period of at least two months to do this; the actual shareholding, as later augmented, is indeed very small viewed either as a percentage of the total number of issued shares, or as a fraction of their value; shareholdings of this level have not been considered to disqualify in other Common Law countries; the judge was not obliged to make further unrequested disclosures, at least as the law then stood.

  130. Context

  131. It is also part of the context of this case that in recent years there has been a marked and growing tendency for unsuccessful litigants to seek to disqualify judges on absurd grounds. This has been expressly noted in a very recent judgment of the Court of Appeal referenced at para. 121 below, sub. tit. “Some Examples”. It requires to be restated, as the Court of Appeal recently has, and courts in other Common Law countries have done over the years, that a judge has a right to hear a case properly assigned to him or her, but also has a duty to do so unless there is substantial and not merely technical reason for recusal.

  132. The attempts to recuse judges have involved, for example, searches against the judge’s name in the Registry of Deeds to see if a connection (such as a mortgage) with the other side, particularly financial institutions, can be established. In this particular case of Good Concrete, as will be seen below at paras. 133ff a falsehood of some kind was practised on a young woman working as an intern in the office of the judge’s professional advisers to induce her to make an unwarranted disclosure of client information. This information was always obtainable by the simple process of application in open court but the contrived and dishonest process mentioned above was preferred to create a false impression of concealment.

  133. It is of the greatest importance that justice be done, and be seen to be done. In light of the developments I have just mentioned it would seem prudent that the Presidents of the various courts, or some other appropriate body, should devise and approve a code of the circumstances in which a judge can and should recuse himself or herself. But that has not in fact been done to date and there is no legislation on the matter. I believe that the result proposed in the judgment of the Chief Justice lays down new obligations on the judges of which they were not up to now aware and whose application, ex post facto is unfair both to the successful litigant in the present case and to the judge.

  134. Conclusion

  135. The trial judge in this case behaved with absolute propriety and his conduct is not in my view open to criticism of any kind. When it came before him, without notice, the judge made the disclosure in terms set out below from the transcript. The judge had only a “vague feeling” to go on but he disclosed this to the parties at the first opportunity. He said that he did not know whether it would create a problem in his hearing the case and he said to both parties “You’d better consider it”. Neither party returned to the topic, asked for further details or objected on the basis that any shareholding however small should disqualify the judge. Nearly two years later, having obtained information which was easily available by simple enquiry by means of an elaborate subterfuge, the appellant objected. It sought to set aside three judgments the learned trial judge had given in the meantime on interlocutory matters. It bears repeating that the appellant had not appealed any of these matters in the ordinary way, on the merits, and within the prescribed time. Instead, it now seeks to overturn them on a technicality.

  136. When the appellant came into possession of the relevant information by the subterfuge described above, it attempted to deal with the matter by means of private correspondence with the judge. In my view (and in the learned judge’s view) this was quite wrong. I raised the question, what did the appellants hope to gain by raising this matter privately with the judge. In fact, however, the judge told them that their point would have to be dealt with in open court. Then, and not before then, the appellants took steps to do so.

  137. In my view the unappealed decisions of the learned trial judge can only be set aside by taking a view of the duties of a judge which goes far beyond those which applied in the period 2010-2012 or at any later period up to the present time. It is unfair both to the other parties to the litigation and to the learned trial judge himself, to set them aside on that basis. The law and practice in relation to objective bias certainly needs a firm restatement, as I have suggested above, but it is not appropriate to bring this about in a judgment in a case where the judge behaved fully in accordance with the law as it was at the relevant time.

  138. In this appeal the appellant alleges objective bias by a High Court judge. That is, it does not allege that the judge (The Hon. Mr. Justice Cooke) was in fact biased in dealing with certain litigation between the parties. Instead, it alleges that circumstances subsequently came to light, allegedly as a result of a highly sophisticated contrivances – a ready up in plain language - (practised on the judge’s professional advisers) such that a reasonable person would have had a reasonable apprehension that the appellant had not received a fair hearing.

  139. This was for the purpose of suggesting that this information was only available in this elaborate and deceptive way, fully described below, when it was in fact always available an enquiry in open court. No attempt was made to appeal the judge’s actual decisions within the time allowed. That is a most telling feature: the actual decisions could have been but were not, the subject of appeal within the permitted time. This fact tells its own tale.

  140. This appeal raises an issue of great importance to all legal systems. The concern that a judge should be impartial was felt as long ago as Roman times when it was expressed in the maxim “Nemo iudex in causa sua”, no person can be a judge in his or her own cause. From a remote time, too, it was understood that a judge must not be biased, or have an interest in the matter before him, or even appear to be biased or interested. Justice must not only be done, but it must be seen to be done. This rule, together with the duty to hear both sides of a dispute, (audi alteram partem), is the basis of the modern remedy of Judicial Review.

  141. This has led the Common Law, in every country where it is found, to distinguish between actual bias and objective bias. Actual bias means what it says. It need not detain us here because it is not alleged in this case. Objective bias arises where, even in the absence of actual bias, there are circumstances in the case which would lead a reasonable person, who is not unduly sensitive, and who is in possession of all relevant facts, reasonably to apprehend that a party had not received a fair hearing. In O’Callaghan v Mahon [2008] 2 I.R. 514 at 672 Mr. Justice Fennelly described the principles relating to objective bias as follows:

  142. 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 .... the apprehensions of the actual affected party are not relevant.

    I agree with the passage just cited and consider it an apt epitome of the modern Irish law on objective bias.

  143. I also consider that the dictum of Fennelly J. is consistent with international authority and standards in this regard. We have been referred to a great number of these in the course of the present case. I will refer only to such as are strictly relevant.

  144. In the Bangalore Principles of Judicial Conduct, 2002, the following provisions are to be found:

  145. 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 ....

    Facts

  146. In general, I agree with the summary of the facts of this case set out at pages 1-5 of the judgment of the learned Chief Justice. Later in this judgment I will however mention certain further facts which appear to me to have possible relevance. The salient factual circumstances appear to me to be as follows:

  147. (i)

    This litigation consisted of an allegation by the plaintiff that the defendants had acted in breach of Competition law. There are similar proceedings against CRH called Framus Limited v CRH [2013] IESC 23. Framus Limited is a company controlled by a Mr. Maye who will appear later in this history. The same solicitor acts for Framus Limited and for Goode Concrete, and for Mr. Maye personally. Goode Concrete is a significant player in the Irish Concrete industry; CRH is a company of international significance. Both are managed by sophisticated businessmen and have full access to legal advice.

    (ii)

    Goode’s action came before Mr. Justice Cooke in the High Court on the 26th November, 2010. On that day the appellant sought entry of the case into the Competition list. Some readers will be surprised to hear that a High Court judge may have no idea what particular case is coming before him or her on any given day or what, exactly, that case is about. The position is different in the Appellate Courts. A High Court judge, depending on his or her particular assignment, may be aware that the case is a personal injuries case, or a commercial case, or a family law case or a criminal case, because that is the sort of work he or she is assigned to do at that particular time but may have no other knowledge of the nature of the case, or of its precise facts, or of individuals involved in it. That appears to have been the position when this case came before Mr. Justice Cooke on the date mentioned above.

    (iii)

    On that occasion, Mr. Justice Cooke made a disclosure in the following terms in the presence of all parties:

    Judge:

    There is one thing I should mention, that I don’t know whether it causes a problem or not, but I have a vague feeling that a very small number of CRH shares feature somewhere in my pension fund.

    Counsel:

    I see, well I don’t know whether I should commiserate or not judge.

    Judge:

    However, you’d better consider it.

    Counsel:

    Absolutely. Thank you, Judge. [emphasis added]

    (iv)

    This was, obviously, a disclosure in very general terms. That is because the judge had just discovered what case he was to deal with and had only a vague impression to go upon, which he immediately disclosed to the parties. Neither party objected to the case going ahead before Mr. Justice Cooke, or asked, then or later, for further details to be ascertained, though they knew the judge had only a “vague feeling” to go on, and had been advised by the judge to consider the position about his vaguely remembered shareholding.

    (v)

    Two years later, in circumstances which will be set out below, it became clear that in early December of the same year (2010) the judge had acquired a further shareholding in CRH. As will become clear, this shareholding was acquired by agents on his behalf without his knowledge. Since he did not know about it, he did not disclose it and could not have done so. And in those circumstances, clearly, it could not have influenced him in any way. See the cases cited below, at para. 30 and elsewhere.

    (vi)

    The plaintiff Company, through its principal, Mr. Peter Goode, claims to have discovered this information about the actual shareholding held by the judge only in September 2012.

    (vii)

    In the meantime, the judge had decided three interlocutory matters relating to the case. (The case itself has still to be heard). These interlocutory matters were:

    (a)

    A judgment delivered on 20 January 2011 ([2011] 1IEHC 15) and an Order made on 20 January 2011 (perfected on 2 February 2011) whereby an application for interlocutory injunctive relief made by the appellant was refused and an order for the costs of that application was made in favour of the respondents.

    (b)

    A judgment delivered on 21 March 2012 ([2012] 1IEHC 116) and an Order made on 21 March 2012 (perfected on 8 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 15 May 2012 ([2012] IEHC 198] and an Order made on 15 May 2012 (perfected on 17 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.

    (viii)

    The solicitors for the appellant wrote to Mr. Justice Cooke by letter of the 16th October 2012 setting out matters which their client claimed to have discovered only the previous month. Mr. Justice Cooke indicated that it was inappropriate to deal with the matter in private correspondence and insisted that it should be raised in open court. The appellant then brought a motion seeking that the learned trial judge recuse himself.

    I wish strongly to endorse the judge’s action in refusing to allow this matter to be dealt with by private correspondence. I do not know what the solicitors for the appellant can have been thinking in attempting to do so. The judge had advised them in open court to consider the fact of his shareholding in November 2010 which should have been quite sufficient to alert them, if they did not know already, that any matter of this sort should be ventilated in public, in open court.

    (ix)

    When this motion came before the Court on the 13th November, 2012 Mr. Justice Cooke said:

    For 12 years prior to the end of 2008 I lived outside this country. When I retired from the European Court at the end of 2008 my wife and I sold the house we owned in Luxembourg, and the funds of the proceeds of that, together with other monies we had in Luxembourg, were transferred back to this country and put into the hands of various advisers who were acting on our behalf. My return also coincided with my reaching the age of 65, so that during 2009 I had to draw down various pension investments. These advisers were engaged throughout 2009 and 2010 in setting up the usual ARFs and PRSAs, as they are called.

    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.

  148. These are the facts of the case insofar as either party has put them before the Court, or as far as the Court knows itself. They are un-contradicted. As the judge said, in the year 2008 he left office as a judge of one of the European Courts and returned to Ireland, where he had been appointed to the High Court. He had lived outside the country for twelve years. He sold a home he owned abroad and put the proceeds, together with the proceeds of certain funds saved in anticipation of retirement, which he drew down, into the hands of various advisers. Because he had reached the age of sixty-five at the time he left Luxemburg, he had to draw down certain pension investments and advisers were engaged to set up the usual ARFs (Approved Retirement Funds) and PRSAs (Personal Retirement Savings Accounts). The judge was not himself aware of the particular investments involved. Very many cases of alleged objective bias feature a statement which the judge or other decision maker alleged to be affected by objective bias makes when the grounds of the application are drawn to his attention. Mr. Justice Cooke’s statement is set at above. In the case of a judge, such a statement is made by a person who has made the solemn judicial declaration set out in the judgment of the Chief Justice. In Common Law countries it is usual to accept the statement of such a person where it is on its face consistent with other known facts, and un-contradicted. This is exemplified, for example, in the case of Weatherhill v Lloyds TSB Bank, cited below. In my view, if the statement of Judge Cooke is accepted, as I believe a reasonable bystander would accept it, then on the decided law on the subject of objective bias the present appeal must be dismissed.

  149. When the case came before him on the 26th November, 2010 the judge was aware that he had a small holding in CRH, which he had for a long period, and assumed that it had been transferred from the holdings he had in Luxemburg into the approved retirement funds which he was creating. He did not know that there was to be any further purchase of shares in CRH. His retirement fund, like most retirement funds, was spread over several different investments, to avoid the obvious risks of concentrating the whole fund in a single investment, such as Bank shares, which would obviously be unwise.

  150. It is important to recall that the judge stated:

  151. If anyone had had the courtesy to come back to me at any stage I would have made the necessary enquiries if the actual number of shares was a matter of concern and I would have happily saved myself the task of writing three written judgments over the next year, and arranged for the matter to be transferred to another judge.

    Economic or Pecuniary Interest

  152. The last subparagraph, cited from the Bangalore Principles above at para. 100 about economic interest, is of direct relevance in this case. It is notable that the Bangalore Principles refer an economic interest in the outcome of the case, not simply to an interest in one of the parties, or any more remote interest. This is significant because it has long been held in some Common Law countries that different criteria apply to a pecuniary interest, sometimes described as amounting to “automatic disqualification”. But that pecuniary interest must be in the outcome of the case, and not a more general pecuniary interest. Apart from the cases cited below, one may note that in Orange Ltd. v Director of Telecoms [ 2000] 4 I.R. 159, at 186, Keane C.J. stated that the English cases:

  153. have proceeded on the basis that cases in which the tribunal has a pecuniary or proprietary interest in the subject matter of the proceeding fall into a special and unique category ....

    [emphasis added]

  154. The formulation in the Bangalore Principles and in Orange is reflected in the established jurisprudence of perceived bias, both here and in the neighbouring jurisdiction. In R. v Gough [1993] A.C. 646 at 661, Lord Goff stated:-

  155. 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 ....

    [emphasis added]

  156. Similarly in Orange Limited v Director of Telecoms (No.2) [2000] 4 I.R. 159 at p.252, another of the judges, Geoghegan J. discussed apparent or objective bias in the following terms:-

  157. A situation of apparent bias where the adjudicator has a proprietary or some other definite personal interest in the outcome of the proceeding, competition, or other matter on which he is adjudicating.

  158. The same principle – that the material or pecuniary interest of the adjudicator must be in the outcome of the case, rather than simply in one of the parties more generally, is also reflected in the well known Australian case of Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 C.L.R. 337, 176 ALR 644; 75 ALJR 277 (7 December 2000). There, Chief Justice Gleeson, giving the joint decision of the majority of the court said:-

  159. The possible effect of the outcome of a case upon the value of assets owned by a judge may be a matter of serious difficulty. However, in the ordinary case where a judge owned shares in a listed public company which is a party to, or otherwise affected by litigation, and there is no other suggested form of interest or association, the question whether there is a realistic possibility that the outcome of the litigation would affect the value of the shares will be a useful practical method of deciding whether a fair minded observer might hold the relevant apprehension.

    [emphasis added]

    Chief Justice Gleeson also observed at para. 31, in a passage pertinent to the present case:

    In contemporary Australia, ownership of shares in a listed public company is a common form of saving and investment, both amongst members of the community generally, and amongst judges. It is not confined to wealthy individuals. In recent years, processes of privatisation and demutualisation of what were formerly public institutions or utilities, or mutual societies, have resulted in a further expansion of share ownership. The nature of the association with, or interest in, litigation, of an investor in a listed public company, may be substantially different from that of a shareholder in a private company.

    Later in the judgment, at page 356, para. 54, Justice Gleeson said:

    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.

    [emphasis added]

    Finally, on the following page, Chief Justice Gleeson said at para. 55:

    There is a difference between having an interest in the outcome of a case, and having an interest in a party to the cause. .... The apprehension of bias principle requires articulation of the connection between the asserted interest and the disposition of the cause which is alleged. If, on examination, the judge does have a financial interest in the outcome of the litigation, the application of the apprehension of bias principle will lead to the judge being disqualified. By contrast, where, as here, it is clear that the outcome of a case would have no bearing upon the value of the shares held by the judge in the listed public company, and there is no other suggested form of pecuniary interest involved, then the judge does not have a direct pecuniary interest in the outcome of the litigation.

    [emphasis added]

  160. It, therefore, appears that there is Irish, English and Australian authority, apart altogether from the Bangalore Principles, for the proposition that to trigger automatic disqualification for pecuniary interest, that interest must be in the outcome of the proceedings and not, for example, merely in a shareholding in a public company. As Chief Justice Gleeson put it “There is a difference between having an interest in the outcome of a case, and having an interest in a party to the cause”. The logical connection, if any, between the pecuniary interest alleged and the outcome of the proceedings must be clearly demonstrated. This raises the issue of the onus of proof, to which I now turn.

  161. Onus of Proof and standard of proof.

  162. The onus of proof in allegations of bias was addressed by the Constitutional Court of South Africa in President of the Republic of South Africa v South African Rugby Football Union [1999] 4 S.A. 147 at para. 48:

  163. 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 mind 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.

    [emphasis added]

  164. In Bula v Tara Mines Ltd. (No. 6) , Denham J. affirmed the Australian approach of Webb v The Queen [1993-1994) 181 CLR 41, and then equated the approach of the Australian High Court to that of the Constitutional Court of South Africa in the case thus cited at p. 440.

  165. I am satisfied that this is the correct approach to the law and adopt the reasoning. A similar approach was taken by the Constitutional Court of South Africa in President of the Republic of South Africa v South African Rugby Football Union [cited above]. That court agreed with the test as set out by the High Court of Australia in Livesey v New South Wales Bar Association (1983) 151 C.L.R. 288.

    [emphasis added]

  166. I wish to emphasise for a moment the last sentence of the passage cited from the South African case. A judge has a right to hear and determine any case which comes before him. The parties have a right to have the judge do that. The judge thus also has a duty to hear and determine a case which comes before him unless there is a substantial reason why he should not do so. There is Irish authority for the proposition set out at the beginning of the last quoted citation, that “the onus of establishing it rests upon the applicant”, or, in the present case, the appellant. In O’Callaghan v Mahon [2008] 2 I.R. 541 at 552, paras. 84 and 85, s.15 of the judgment of Denham J. (as she then was) sets out a number of questions to be asked about each of several matters alleged to demonstrate objective bias. The learned judge then continued, at para. 85:-

  167. It was submitted that these are the criteria by which to determine whether there were circumstances of a reasonable application of bias or prejudgment by the respondents. Whether the burden needs to be quite so pedantically stated and applied, there is no doubt but that the burden rests upon the applicants to prove their case on the balance of probabilities. They carry the onus of proof. The terms of the legal test to be applied have been stated previously.

    [emphasis added]

  168. In Bula Limited v Tara Mines Limited (No. 6) [2000] 4 I.R. 412, at 509 McGuinness J. in this Court made some observations pertinent to both the burden and the standard of proof in an application such as the present. She said:

  169. It should, however, be remembered that this is a case inter partes and that the right to fair procedures does not belong solely to the applicants. The respondents, too, have a right to fair procedures. In particular in the case of the Tara respondents (both corporate and individual) the right to finality may be very much a part of the right to fair procedures if the test of reasonable apprehension by a reasonable person (which is the correct test) is to be applied, I consider that it requires a strict interpretation.

    The apprehensions must be reasonable and realistic: over scrupulous, fanciful or fantastic apprehension or a vague worry is not sufficient. While this is not, of course, a criminal trial, there is I think some parallel with a standard explanation of a “reasonable doubt” contained in the judge’s charge to the jury – a fanciful exaggerated or over scrupulous doubt is not enough.

    [emphasis added]

  170. In my view of the present case, the fact that the applicants carry the burden of proof is a most important one. Moreover, the standard of proof is a high one. In Joyce v Minister for Health [2004] 4 I.R. 293 at p. 302, Mr. Justice O’Neill said, at paragraph 27 of his judgment:

  171. there is also in issue the principle that not only must justice be done but it must be seen to be done. I would accept, as has been urged upon me by counsel for the defendants, that for that principle to be invoked requires a very high threshold of proof in order to protect the proceedings of the many and varied tribunals that sit on a daily basis in this jurisdiction from unmeritorious allegations designed to frustrate their proceedings.

    [emphasis added]

    This observation was made in the context of a case where the learned trial judge did, in fact, grant relief on the ground mentioned. The practical effect of the remark about “a very high threshold of proof” is the same as that of McGuinness J’s observation that the test for objective bias requires a “strict interpretation”.

    Reasons for recusal

  172. Although the present case features an alleged economic interest on the part of the judge in form of a shareholding in the defendant Company, there are of course other possible reasons for recusal which I might briefly mention for completeness. In Dublin Wellwoman Centre Ltd. v Ireland [1995] 1 I.L.R.M. 408, the judge was disqualified by reason of public comments she had made in quite another context, and in the discharge of another public duty which she had been requested to undertake. (Chair of the Council for the Status of Women).

  173. In other cases a judge’s personal friendships or relationships might be thought to give rise to an appearance of bias. In the leading English case Locabail (U.K) Ltd. v Bayfield Properties Ltd [2000] Q.B. 451 it was said at p. 480 that:

  174. [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 ....

  175. Another leading case from the neighbouring jurisdiction seems to me to put the proper approach to allegations of bias in a felicitous way. This is AWG Group Ltd. v Morris [2006] 1 WLR 1163. There, under the heading “The test for apparent bias” the Court of Appeal concluded at pp. 1166 to 1167 that:

  176. The test for apparent bias now settled by a series 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’.

    [emphasis added]

    It is this test that I propose to adopt in the present case. Before doing so, however, I wish to emphasise some major drawbacks in concentrating exclusively on the risks of bias and failing to locate this important topic within the overarching need to have a properly functioning system of justice, ensuring finality in the resolution of disputes .

    Interest rei publicae ut sit finis litium .

  177. It is one of the great difficulties of every legal subject that law, of its nature, offers few simple black or white solutions. Even important values can be over-emphasised and where this happens other values which are just as important, or perhaps more important, can be unfairly and unreasonably discounted. It is important for civilised society to suppress crime and to penalise those who perpetrate it. But if this were done (as it could be) at the price of the total elimination of all liberty and privacy, most would think the cost too high. Certainly it would subject citizens to the total control of the State and those who are employed by it. Previous experiments along these lines have not been encouraging.

  178. Similarly, freedom of contract is an important right and has played a large role in the evolution of the modern developed economy. It clearly requires to be fostered and protected by the law. But this value would certainly be taken too far if it meant the law could not intervene to protect minors or persons under a disability from the consequences of their own improvidence, or to regulate contracts made between immensely powerful interests, public or private, and ordinary individuals, perhaps of limited resources or education.

  179. Pitfalls.

  180. So it is in the immediately relevant area of perceived bias. If the principles I have summarised above are implemented in a consistent, reasonable and objective fashion they will protect the actual and perceived impartiality of the judiciary at little or no cost. But if they are interpreted and applied in an oversensitive, overly technical, insecure or unrealistic way, or in unacknowledged fear of unfounded media or other criticism, they will do great harm. At present, judges are careful to bring any disqualifying factor, insofar as known to them, to the attention of litigants in advance. Sometimes, of course, litigants will already be aware of such factors as in the Wellwoman case cited above. It is usual to recuse if this is sought by either party on plausible grounds. When such recusal occurs at or before the start of a case not much cost, in money terms or otherwise, will be involved, and normally there will be no more than a brief adjournment while another judge is found to hear the case. The position is quite different where the allegedly disqualifying factor is raised only after the case is started, or after the hearing has finished, or even, as here, after judgment (on interlocutory matters) has been given. In the latter case, if a judgment is set aside on grounds of apparent bias, and not at all on the merits of the case, then the party who has deservedly succeeded will loose the fruits of his or her victory; will be compelled to incur further expense at the rehearing which will become necessary and will have to suffer the hazards and uncertainties of litigation once again, perhaps with crippling effect. The final resolution of the case will be hugely delayed. It is therefore necessary, where a party alleges the existence of a factor giving rise to apparent bias, but alleges it only after he has failed in the case or some part of it; and claims not to have known of it before letting the case go on, that such allegations be closely scrutinised.

  181. Some examples.

  182. In O’Shea v Butler [2015] IECA 48 the Court of Appeal (Kelly, Irvine and Mahon J.J.) had before it an appeal from the refusal of Barrett J. in the High Court to recuse himself from hearing an application because of objective bias. The application was a routine one, made under the provisions of s.33 of the Trustee Act, 1893. It was to give effect to orders already made by other judges. The first defendant, who had no interest in the lands to which the order of Barrett J. related, appeared before him and raised the question of the judge’s former employment in the IBRC. The judge made it clear that if the case involved anything pertaining to IBRC (which it did not) he would recuse himself. Mr. Butler next alleged that a former Chief Executive of IBRC, and the plaintiff, Mr. O’Shea, had some form of business relationship. In those circumstances the High Court judge applied the test laid down in O’Callaghan v Mahon, cited above. He did not believe that any reasonable and fair minded objective observed, who was not unduly sensitive, and who knew the relevant facts, could reasonably conclude that there was a risk that the judge would not be fair or objective. He refused to disqualify himself. The Court of Appeal upheld this decision for the reasons set out in its judgment, which is cited above. Kelly J., speaking for a unanimous court, went on to observe at para. 17:

  183. However, I cannot but note that this allegation of bias has been made, not merely against the trial judge in this matter, but has also been made against a number of other judges, at least three, who have had previous dealings with this protracted litigation. It is, I think, important to bear in mind some other pertinent judicial observations where allegations of bias of this sort are made.

    Kelly J. went on to cite a number of cases, including Locabail, cited above, The South Africa Rugby Football Union case, also cited above, JRL, Ex parte CJL [1996] 161 CLR 342, and Clenae [1999] ASCA 35. From JRL he quoted from Mason J. in the High Court of Australia:

    Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

  184. From Clenae Mr. Justice Kelly quoted Callaway J.A.:

    as a general rule, it is the duty of a judicial officer to hear and determine the case allocated to him or her by his or her head of jurisdiction. Subject to certain limited exceptions, a judge or magistrate should not accede to an unfounded disqualification application.

    I entirely agree with these dicta of Kelly J.

  185. The immediate topicality of those observations is shown by what happened in a different case in which Bank of Ireland were the plaintiffs and Mr. Brian O’Donnell, Solicitor, and his wife Dr. Mary Pat O’Donnell, a psychiatrist, were the respondents. Judgment in favour of the plaintiff was given by Mr. Justice Charlton. An application was then made to set aside the judgment on the basis of alleged “objective bias”. This was reported in the Irish Independent on the 3rd September, 2013 under the headline “Judge’s mortgage is dragged into couple’s fight against bankruptcy”. The defendants, now represented by Mr. O’Donnell’s brother-in-law claimed that “someone with the judge’s name had a mortgage with Bank of Ireland”. They complained that the judge “did not reveal that he owed money to Bank of Ireland before hearing the case”. Mr. Justice Charleton rejected any suggestion that his banking arrangements had in any way influenced his decision and described the application as “frankly absurd”. He said he had a single mortgage with the Bank of Ireland in relation to which he had dealt with the bank “at arms length as a matter of family commerce”. The significance of this absurd application is that it illustrates what Mr. Justice Kelly had to say and shows that there is, in some quarters, a willingness to use any connection at all between judge and one of the parties to set aside a judgment, even if the judgment itself cannot be challenged on its merits. This is a serious obstacle to fair procedures for both sides of a particular piece of litigation.

  186. As I have said, it is usual for a judge to disclose any possibly disqualifying factor of which he may be aware, even partially or imprecisely aware, before litigation begins. This is so as to avoid the unfortunate possibilities mentioned in the last paragraph.

  187. Openness

  188. Disclosure or, as it is put in one of the leading text books, “Openness” has often defeated an allegation of bias. In Administrative Law in Ireland, Fourth Edition, by Hogan and Morgan, it is said at para. 13-95:

  189. [O]penness may assist a respondent in arguing that sufficient information is available to the applicant to sustain a defence of waiver. An indisputable form of waiver occurs where the person whose bias might have been an issue declares openly, to the person who might be disadvantaged, the facts which might be thought to constitute bias and indicates that s/he will, if asked to do so withdraw. Where this occurs and the applicant indicates that proceedings may go ahead, then they have surely waived any right to object at any later stage.

    This passage appears to be based on certain dicta of McGuinness J. in Bula Ltd v Tara Mines Ltd . [2000] 4 I.R. 412 at p. 518.

    Applying the test

  190. I have already set out my findings as to the facts of this case at pages 4 to 11 above, paragraphs 6 – 9. I now intend to address the question “Whether those circumstances would lead a fair minded and informed observer to conclude that there was a real possibility that the Tribunal was biased”.

  191. Knowledge of disqualifying factors

  192. All judges (one hopes) have previous to their appointments been successful legal practitioners, generally self employed as such. It is important that judges should not be less capable or less experienced than those who appear before them. Self employed professionals would be acting very imprudently if they did not make private pension arrangements for themselves and their families. It is not a matter of surprise to any reasonable person that a lawyer who had been a judge of the European Courts and a judge of the High Court would possess pension arrangements appropriate to a successful professional person, albeit one that had ceased private practice some considerable time previously. An informed observer would equally be aware that a person reaching the statutory age (sixty-five years) would put any funds he or she might have available into an Approved Retirement Fund or other Revenue approved pension provision. Nor is it a matter for surprise that such a person would entrust the executory functions of setting up retirement provision to agents, often accountants or stock brokers.

  193. In Weatherill v Lloyds t.s. Bank [2000] WL 108 4509 [2000] C.P.L.R. 584 the English Court of Appeal had before it a case with some similarities to this one. There, a judge of the High Court of England and Wales, Mr. Justice Wright, had been trying an action by Mr. and Mrs. Weatherill against Lloyds Bank and had heard real evidence over twelve or thirteen days. At that stage he discovered from a routine report from his stockbroker that he had a small shareholding in Lloyds Bank. He was unaware of this prior to receiving the report from the stockbroker. He said that since he had not known of the shareholding it naturally had not influenced him in any way. His shareholding was 570 of a total of 5.5 billion shares is issued. The plaintiffs made no immediate application for a recusal when the judge disclosed this but did seek recusal some days later, while the case was still going on. The judge refused to discharge himself and the plaintiff appealed. The Court of Appeal held at para. 10 of their decision that:

  194. it will very often be appropriate to enquire whether the judge knew of the matter relied on as appearing to undermine his impartiality, because if it is shown that he did not know of it the danger of its having influenced his judgment is eliminated and the appearance of possible bias is dispelled.

    [emphasis added]

  195. The English Court of Appeal cited Auckland Casino Ltd. v Casino Control Authority [1995] 1 NZLR 142, 148 where it was held in the New Zealand Court of Appeal that if a judge were ignorant of the allegedly disqualifying interest “there would be no real danger of bias as no-one could suppose that the judge could be unconsciously affected by that of which he knew nothing ....”

  196. The English Court went on to hold at para. 11 that:

  197. On the basis of the facts stated by the judge, it is clear that at no material time when he held shares in the defendant company was he aware that he did so. Moreover, having found out, he took immediate steps to sell those shares. If he continues with the conduct of the trial, there will be no question of his holding shares in the defendant during the remainder of it. In the circumstances it seems clear that this case, insofar as is one of apparent bias, is covered by the passage I have read from the judgment in Lochabail.

    [The effect of this was to say that there was no automatic disqualification rule.]

    The judgment continued in the following paragraph:

    I would say that the reasonable bystander or onlooker would accept the judge’s statement about his knowledge and on that basis would find no difficulty in concluding that there was no real danger that the judge had been biased or, I should add, would be biased in continuing with the conduct of this trial.

    [emphasis added]

  198. There are a good many cases cited in this judgment and a great many more were mentioned to the Court on the hearing of this appeal. But this case of Weatherhill is by far the most relevant of the cases cited because it is closest to the facts of the present case. It featured a judge who had wholly forgotten a small shareholding (as opposed to a judge who had only a vague recollection of it). Mr. Justice Wright disclosed the shareholding and he was reminded of it, when he was well into the hearing of the action (as opposed to Mr. Justice Cooke who disclosed it, insofar as he remembered it, on the first occasion the case came before him). It is authority for the proposition, which I would have thought obvious, that a judge could not be influenced in any way by something which he did not know, or had wholly forgotten. It also offers authority for the proposition, which I strongly endorse, that the notional reasonable bystander would accept the veracity of an uncontradicted statement by the judge, which was consistent with the known facts.

  199. In the present case there is no question of Mr. Justice Cooke continuing with the hearing of the substantive action (as there was in the English case) because the learned judge has now retired from the Bench and in any case had already indicated his intention of transferring the matter to another judge. Unlike the judge in Weatherhill , he had not already embarked on the hearing of the substantive action.

  200. It appears to me, therefore, that on applying the test set out above, the facts of the case establish:

  201. (a)

    That the judge disclosed what he knew of his shareholding in CRH to the parties, insofar as he remembered it, when the matter came before him, without prior notice, on the 26th November, 2010. No party objected to the matter proceeding before him, or asked for further information, after considering the matter as the judge requested them to do.

    (b)

    The learned trial judge did not disclose that his agents had subsequently acquired further CRH shares on his behalf because he did not know that fact.

  202. In my view those two findings are sufficient to dispose of the allegation of apparent bias. Insofar as the judge knew of the allegedly disqualifying factor, he disclosed it. He asked the parties to consider his disclosure and, as he said, he would have ascertained and disclosed the amount of the shareholding if anyone had thought that relevant, having considered (as the judge asked) the disclosure he did in fact make. There was about two months to consider this before the judge made his first decision in the case. He was unaware of the further shareholding therefore he could not have disclosed it. More importantly, by reason of his ignorance of the further acquisition of shares could not have been, or appeared to be, biased by that circumstance.

  203. Equally, like the English Court of Appeal in Weatherill, at para. 12, I consider that a reasonable bystander would accept the judge’s statement about his own state of knowledge and would therefore conclude that there was no real danger that the judge had been biased. This is a central aspect of the case. I do not understand why my colleagues have taken a different view on this issue.

  204. I consider it significant that although the judge made three findings adverse to the appellant on the 20th January, 2011, the 21st March, 2012 and the 15th May, 2012, no attempt was made to appeal these decisions or any one of them on the merits within the time limited for such appeal. This appears to me to mean that even if the appellant was disappointed, it did not think the decisions were open to any specific criticism with a reasonable prospect of success on appeal. No attempt was made to appeal any of these decisions until after the “objective bias” point arose in circumstances which will be discussed below. In the event, this Court extended the time to appeal on the bias ground but not in relation to any of the decisions themselves. So, if the objective bias point is upheld, three decisions which are themselves unchallenged will fall and enormous expenses, uncertainty and delay will be incurred. Accordingly, the decisions now sought to be set aside are decisions which were not appealed on the merits. They do not appear to me to be open to any significant criticism and obviously the appellant company must be taken to share that view since it made no attempt to appeal within time.

  205. Source and timing of Plaintiff’s information.

  206. It follows from the legal principles set out in the first portion of this judgment, that it was essential for the plaintiff to maintain that it had come by the information about the judge’s shareholding only much later than the date of the original disclosure, and after the last decision the judge had made in the case (the decision fixing the amount of the security for costs). Obviously, a plaintiff who had this information on the date of the disclosure or before the judge’s first decision in the matter would be taken to have waived his entitlement to rely on the allegedly disqualifying factor, or to be estopped from doing so. If it were otherwise, then a plaintiff who had information of this kind could sit on it and do nothing until he saw whether or not he won the case. If he did, he would do nothing; if he did not he would claim to set aside the unfavourable decision on the ground of perceived bias. That cannot be permitted in fairness to the other side, and in the interest of the proper administration of justice. 36. In this case, the relevant information is said by the plaintiff/appellant to have come to it, through its principal, Mr. Peter Goode, from a Mr. Seamus Maye. Mr. Maye is a director of Framus Ltd. which, together with other Companies of his, is or was at the relevant time also engaged in similar litigation against CRH. Framus and Goode had engaged the same solicitors, those presently acting on behalf of Goode. It is implicit in the account of events given by Mr. Goode, Mr. Maye and their solicitors that Mr. Goode and Mr. Maye are personally acquainted.

  207. The solicitors referred to, Philip Lee and Company, said in their letter to the judge of the 16th October, 2012:

  208. On a date in late July 2012 (which our clients Peter Goode believes to be the 27 July) Mr Goode informed Mr. Seamus Maye, a director of Framus Limited of the contents of the disclosure that had been made by you [Mr. Justice Cooke] on 26 November 2010 ....

    Thereafter, Mr. Maye took steps to ascertain as far as possible the nature and extent of [the judge’s] interests in the first-named defendant. On foot of his enquiries, we are instructed that Mr. Maye was informed that, inter alia[information to do with the judge’s shareholdings in CRH is then set out].

    Mr. Maye recently made this information available to Goode Concrete.

  209. No information is given as to why Mr. Goode, in late July 2012 informed Mr. Maye of the contents of the disclosure made by the judge almost two years earlier. Equally, no information is given as to why Mr. Maye “took steps to ascertain the nature and extent of [the shareholding]” when Mr. Goode and his Company, it appears, had not done so. No information is offered, either, as to what Mr. Maye said or did to get a named person to give him the information set out. It is clear, and is in fact stated by the judge in a passage quoted earlier in this judgment, that any party with an interest in the extent of his shareholding could have acquired all relevant information by simple enquiry in open court, instead the somewhat contrived form of detective work which I am about to describe occurred. This may have been undertaken to obtain the information, but also has the effect of making the details of the shareholding appear more mysterious and inaccessible than they were. This is a false impression, deliberately contrived at. It must also be pointed out that no such enquiries could have been made were it not for the judge’s disclosure of October, 2010.

  210. Both the judge’s stockbroker and the appellant’s solicitor have put on paper what they, respectively, claim to have occurred. In the case of the stockbrokers, Bloxhams (in official Liquidation), a letter of 26 October, 2012 from its liquidator (Mr. Kieran Wallace of KPMG) to the judge said as follows:

  211. It is with much regret that details of transactions carried out on your personal account with Bloxham appear to have been disclosed by an employee of Bloxham during the course of a telephone call with Seamus Maye ....

    I am informed that the caller identified himself as being a person who is assisting you with your tax returns and that the information requested was required by him for the purpose of completing your tax return. This was manifestly dishonest information and was provided by the caller to the Bloxham employee in question but unfortunately it appears that she accepted the bona fides of the caller and took the explanation as to the reason why the information was sought at face value.

    Mr. Wallace then went on to set out the information which was disclosed continued:

    As I have indicated it only subsequently transpired that the caller was in fact Mr. Maye and the employee who spoke to him had been deceived into disclosing personal and confidential information in relation to the operation of your account.

  212. Mr. Maye denied what was said about him in the preceding letter. In a subsequent letter of 6 November, 2012 Philip Lee and Company, in their capacity as solicitors acting for Mr. Maye personally, repeated this denial, and claimed that what had been said was “grossly defamatory of our client”. The solicitors gave an alternative account as follows:

  213. At approximately 11.09am on the morning of 26 September 2012 Ms. Carroll [the employee of Bloxhams] telephoned Mr. Maye, at the request of Pershing International Nominees Limited, to deal with certain queries that had been put to Pershing by Mr. Maye earlier that morning. During the course of their conversation, Ms. Carroll disclosed information to Mr. Maye in connection with certain CRH plc shares held by a Mr. John D. Cooke .... Having made the disclosure in question, Ms. Carroll then (and only then) asked Mr. Maye to explain the reason why he sought the information in question. In response, Mr. Maye informed Ms. Carroll that his queries related to an ongoing court action and that he was endeavouring to ascertain information relevant to the question of possible bias on the part of Mr. Cooke in connection with that court action. At this point Ms. Carroll stated that the information she had provided was confidential and she proceeded to bring the call to an end.

  214. These, obviously, are diametrically opposed accounts. The account given by Bloxhams explains the basis on which Ms. Carroll, according to them, engaged with Mr. Maye. The account given by the solicitors, in contrast, merely obscures this question by referring to Pershing as having requested Ms. Carroll to phone Mr. Maye. It gives no explanation of how Pershing became involved at all; why Mr. Maye had contacted them earlier the same day; what was said to make Pershing ask Ms. Carroll (according to the solicitors) to telephone Mr. Maye; or what was in fact said either by Pershing or by Mr. Maye to prompt an absolutely indefensible disclosure of a client’s private information to a third party. It is obvious that something must have been said to elicit this disclosure. The solicitors say nothing about this. I consider that it is highly probable that Bloxham’s account of the transaction, or something along those lines, is true and highly improbable that the account which Messrs. Lee, on their client’s instructions, set out in their letter is true. The former account provides a specific explanation of why Ms. Carroll disclosed the information. The latter account does not. This tells its own tale. But I do not consider it necessary to resolve this conflict other than to note that some form of duplicity must necessarily have been involved in order to extract information which was obviously confidential to their client from Messrs. Bloxham. Messrs. Lee’s account simply ignores this point, either because they know nothing about it or because it would undermine their clients case to say what they know.

  215. Significance of Judge Cooke’s Holding

  216. According to the annual report of CRH Public Limited Company, company registration number 12965, as of the end of December 2014 it had a total share equity of €6,583 million consisting of the following: issued share capital of € 254 million; shares in a shares premium account of € 4328 million; treasury or own shares of €76 million; revaluation reserve shares of €42 million; other reserves of €203 million and a profit and loss account of €1,782 million. Furthermore, the report states that the company has, in terms of shares, a market capitalisation of 14.7 billion euro on the Irish Stock Exchange and 11.4 billion sterling on the London Stock exchange with individual shares valued at 19.90 euro and 15.44 sterling respectively. Finally, according to article 6 of its memorandum of association it has a capital of 341, 297,940 euro which consists of “150,000 5% Cumulative Preference Shares of €1.27 each, 872,000 7% "A" Cumulative Preference Shares of €1.27 each, 1,000,000,000 Ordinary Shares of €0.32 each and 1,000,000,000 Income Shares of €0.02 each. According to CRH’s website, at the 2015 AGM of CRH Public Limited Company held on the 7th May 2015; the notice document to the AGM listed the number of shares as of the 12th of March 2015 to include: 818,565,851 ordinary shares; 818,565,851 income shares; 872,000 A 7% Cumulative Preference shares and 50,000 5% Cumulative Preference Shares. At page 159 of the 2014 Annual Report it states there are 24, 903 ordinary shareholders globally with ownership, in denominations of 1000’s, of a total of 744,525 thousand ordinary shares including 32,198 shares in Ireland. 60.13% of shareholders own between 1 and 1000 shares." Against that background, the Company has 76,000 members and approximately 24,000 shareholders, of which Judge Cooke was one. The size and significance of his shareholding in terms of either the number of issued shares or their value, or of the total capitalisation of the company, is indeed very small. It is, in fact, very similar to the judge’s shareholding in the Weatherill case.

  217. No reasonable and informed person could consider that this shareholding gave the judge “an economic interest in the outcome of the matter in controversy” (i.e. the case), as the Bangalore Principles put it. The onus of proving this is on the appellant Company, and it has made no evidential showing whatever on the point, notwithstanding that it bears the onus of proof. It is not suggested that the shareholding held by the judge in November 2010 is ground for disqualification; see the summary of the appellants case at para. 14 of the judgment of the Chief Justice. I agree with the Chief Justice that there is no automatic rule of disqualification for any financial interest, however insignificant. This was the first ground of the appellants appeal in this case. It is, of course, quite inconsistent with its behaviour in relation to Cooke J.’s disclosure of 26th November, 2010.

  218. The judge in the present case disclosed what he knew, and cannot have been affected by what he did not know. Nor could he have disclosed what he did not know.

  219. This application is a contrived one. If Goode had won the issues which, in fact, it lost, the application would never have been heard of. If Goode had had any real complaint about the resolution of these three issues, it would have appealed, and the fact that it did not do so, tells its own tale. The sequence of events set out in this judgment shows that Goode was unconcerned about Cooke J.’s 2010 disclosure. They did not then seek to disqualify the judge, or even to make further enquiries. They could have discovered anything they wished to know by simple enquiry in open Court. Instead they resorted to the ludicrous pantomime which Mr. Maye engaged in with the misfortunate Ms. Carroll.

  220. I have the misfortune to differ from the judgment of the learned Chief Justice in this case. The respective judgments speak for themselves and I do not intend to repeat the points I have made above or to critique anyone else’s. But I think it important to make two very brief points. The first is that I do not think that the test for objective bias is fully expressed in the phrase “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. This may be a shortened version of the test where it appears at para. 54 and in very similar words para 66 of the judgment of the learned Chief Justice. In light of this formulation I wish to emphasise that I believe the correct epitome of the modern Irish law on objective bias is as stated by Mr. Justice Fennelly in O’Callaghan v Mahon [2008] 2 IR 514 at 672. This is quoted at para. 4 of this judgment and I will not repeat it here save to emphasise that the reasonable person is one who is “in possession of all the relevant facts”. Likewise, I do not consider the statement of the responsibility of a judge contained at para. 71 of the learned Chief Justice’s judgment represents the law as it applied in 2010 or 2012. It may well be a very wise council of prudence and it may well be entirely appropriate for adoption in the restatement of the law relating to objective bias which I have called for in the overview to this judgment. But I believe that Mr. Justice Cooke’s disclosure, made when the case came before him without notice in November 2010 fully complied with his obligations at that time. I would only add that if those obligations are changed to an obligation to make the necessary enquiries as to his shareholding in advance of the case, there will have to be an end to the system, common in all the trial courts, that a judge very frequently discovers what case is coming before him or her only when it is actually called on.

  221. I would dismiss the appeals.


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