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16 August 2011
A recent case involving an interesting argument has highlighted the proper test applicable where it is alleged that a judge hearing a case cannot objectively be considered to be impartial. In Ryanair Limited v Terravision London Finance Limited(1) Judge Kelly had to consider an application in a Commercial Court case that he should discharge or recuse himself from the matter because of an "apprehension of bias" against one of the parties, Ryanair.
Early in 2010 Ryanair issued a summary summons seeking €1,809,758.16 from Terravision. Although ultimately remitted to plenary hearing, by the time the statement of claim was delivered only a few months later, the sum claimed stood at €8,407,614.71, less £986,849.90. Terravision sought leave to bring a motion to strike out the pleading, which was granted by Kelly. Ryanair subsequently issued its motion arguing that Kelly should discharge himself from hearing not only Terravision's motion, but any further applications and the substantive trial of the action. This was premised upon "a reasonable apprehension of bias due to his conduct, and/or his beliefs expressed, towards Ryanair in other proceedings". Such a claim did not arise from anything that had occurred in that litigation, but rather derived from Kelly's reserved judgment in Ryanair Limited v Commissioner for Aviation Regulation,(2) in which he commented on Ryanair as a party to that litigation.
Applicable legal principles
No allegation of actual bias was made. Rather, Ryanair relied upon what is known as 'objective bias'. In giving his ruling, having considered the submissions and authorities, Kelly noted that much judicial ink had been expended both in Ireland and abroad in discussing the relevant legal test for objective bias. He referred particularly to the decision of Judge Fennelly in O'Callaghan v Mahon,(3) where he identified the test which Ryanair had to meet if it was to succeed in its application:
"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; d) it is necessary to show the existence of something external to that process; 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."
He also referred to the English Court of Appeal decision in Locabail UK Ltd v Bayfield Properties Ltd,(4) in which the court noted that a judge has a duty to sit in any case in which he or she is not obliged to recuse himself or herself. In a similar vein, the Australian High Court decision in Re JRL, ex parte CJL(5) acknowledged that:
"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."
Kelly then considered the evidence relied upon by Ryanair in support of its application for him to discharge himself. He noted that the affidavits grounding the motion referred to Ryanair's apprehensions regarding Kelly's continued involvement in the case. However, as is clear from the decision in O'Callaghan (as cited above), the apprehensions of the actual affected party are irrelevant. Rather, it is the hypothetical objective observer that matters; the court must look instead to what a reasonable, fair-minded and objective observer would think.
In addition to citing from the judgment and transcript from Ryanair Limited v Commissioner for Aviation Regulation, one of the affidavits relied upon by Ryanair also addressed other proceedings in which Ryanair was involved and which proceeded before the Commercial Court (which is presided over by Kelly). In this regard Kelly observed that, despite the complaints about those cases now made by Ryanair in support of this application, no appeal was taken from any of the orders in question.
In concluding his consideration of the application, Kelly felt that the yardstick was that of a reasonable and fair-minded objective observer. Such an observer is not to be unduly sensitive and is to be in possession of all the relevant facts, excluding the apprehensions of the actual party. Kelly reasoned that if such an objective observer, behaving in a reasonable and fair-minded fashion, would reasonably apprehend that there was a risk that the decision maker would not be fair and impartial, then a recusal should occur. In this case, he felt that such an observer would have acquainted themselves with the judgment from Ryanair Limited v Commissioner for Aviation Regulation and the context in which his comments were made. Such an observer would also be familiar with the solemn declaration that judges take as prescribed by the Constitution to execute their office without fear or favour, affection or ill will. Accordingly, Kelly held that a case of objective bias had not been made out and that Ryanair had not met the applicable test.
However, Kelly referred to the English Court of Appeal decision in Drury v British Broadcasting Corporation,(6) in which an application to recuse was rejected, but where another judge was substituted for the judge originally assigned on the basis that:
"if another judge can be found so that the case can proceed immediately, without increased cost or inconvenience to the parties, it seems to me that the court can properly and should arrange that substitution, so as to avoid any question of dissatisfaction or future complaint."
In the instant case, Kelly was mindful that the Commercial Court has the fair and expeditious resolution of disputes as its objective, and in circumstances in which Ryanair was likely to appeal his negative ruling leading to further delay, he opined that the interests of justice and the rights of the defendant would not be well served. On that basis, adopting the approach applied in Drury, and "solely to ensure that no further delays are encountered", he directed that another judge oversee the litigation.
Although this case did not introduce any new law, it constitutes an interesting demonstration of the way in which Irish law addresses objective bias and the basis on which recusal applications might be dealt with. It also shows that the Irish courts are willing to follow creative and pragmatic approaches from other jurisdictions in order to further the administration of justice. Of course, a cynic might suggest that, even though Ryanair's objective bias application formally did not succeed, the de facto outcome went in its favour.
For further information please contact Gearoid Carey at Matheson Ormsby Prentice by telephone (+353 1 232 2000), fax (+353 1 232 3333) or email (email@example.com).
(1)  IEHC 244.
(2)  IEHC 220.
(3)  2 IR 514.
(4)  WLR 870.
(5)  161 CLR 342.
(6)  EWCA 605.
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