Supreme Court dismisses appeal for judge recusal based on alleged fraud and prior case involvement.

SUPREME COURT

Appeal No. 60/2011

Clarke C.J.

O’Donnell J.

MacMenamin J.

Between/

Crohan O’Shea

Plaintiff/Respondent

v

Michael Butler and William Butler

Defendants

AND

Appeal No. 228/2009

Michael and Thomas Butler Limited,

Michael Butler and

William Butler

Plaintiff/Appellants

v

Bosod Limited,

Crohan O’Shea and Thomas O’Driscoll

Defendants/Respondents

AND

Notice of Motion regarding Appeal No. 228/2009

Michael and Thomas Butler Limited,

Michael Butler and William Butler

Applicants

v

Bosod Limited

Crohan O’Shea and Thomas O’Driscoll

Respondents

Judgment of Mr. Justice O’Donnell delivered on the 18th October, 2017.

1 This judgment concerns an application made by Mr. Michael Butler and Mr. William Butler referred to hereinafter as “the appellants”

that two members of the panel in this appeal, my colleagues Mr. Justice Clarke (as he then was) and Mr. Justice MacMenamin, should

recuse themselves and not sit on these appeals.

2 It is important at the outset to identify the precise issue before the Court which it is contended the two judges may not hear. As

explained in the judgment delivered by MacMenamin J. today, the substantive appeal concerns a judgment in the sum of €653,832

granted by McGovern J. in the High Court on the 12th May, 2009, and a subsequent well charging order made by Dunne J on the 20th

October 2010, pursuant to that judgment. Both orders flow from an order made also by McGovern J. sitting in Dundalk on the 11th

February, 2008, whereby proceedings between the parties were settled, and where, it is said by the respondents to the appeal,

although this is a matter of considerable controversy, that settlement involved the making of an order of the Court on consent

providing for the payment by the appellants to the respondents of the sum of €1.1 million on or before the 11th September, 2008, and

in default judgment could be entered by consent for any sum them outstanding. There is no dispute that monies were not paid and

accordingly pursuant to this alleged agreement the judgment of the 12th May, 2009, was entered and pursuant to that judgment in

turn that the well charging order of the 20th October 2010 was made.

3 Even at this point therefore it is clear that if the agreement of the 11th February, 2008, was in the terms as alleged, and contained

the default clause, then there was no substantive defence to either the judgment which is now appealed against entered on the 12th

May, 2009, or the entitlement to a well charging order thereafter.

4 The appellants do not deny that the case was listed for hearing in Dundalk on the 11th February, 2008, or indeed that a settlement

was arrived at and a court order made pursuant to that settlement. They are however critical of the circumstances and the advice

and representation they received, but none of those matters arise in the present context. As is outlined in the judgment of

MacMenamin J., they do however make extremely serious allegations about the terms of the court order of the 11th February, 2008.

In particular they contend that the order was deliberately altered to include the default clause whether by the respondents or court

officers, and placed on the court file. They have produced two different forms of the order of the 11th February, 2008, both it is said

taken from the file in the Central Office. I do not wish here to make any observations about this claim other than to record it: for

present purposes it is necessary to identify the contention made, because it is said that neither Clarke J. (as he then was), nor

MacMenamin J., can properly hear and determine the appeal in relation to it. It is important that the Appellants do not deny that the

case was listed in Dundalk, that they attended, that it was settled, and the settlement involved the making of a court order on

consent. The sole claim now made – although undoubtedly startling and dramatic – is that the default clause was falsely and

fraudulently included in the order of the Court. This is the issue which it is said neither Clarke J. nor MacMenamin J. can hear.

5 This claim, namely that the order of the 11th of February, 2008 had been altered to include the default clause, was not made in the

immediate aftermath of the settlement , or during the High Court proceedings or even initially in the appeal. However, when the

appeal first came on for hearing on the 8th October 2015, before the Supreme Court consisting then of Denham C.J., Hardiman J., and

MacMenamin J., the claim was being made, and the two orders were produced. The matter was debated at some length before the

Court, and in the light of the seriousness of the matter, the Court directed that the Courts Service investigate the matter and provide

an explanation on oath for the existence of two apparently inconsistent orders in respect of the same proceedings. The appeal was

adjourned to allow that evidence to be produced.

6 This appeal was then listed for hearing on the 12th October, 2016. In the intervening time, Hardiman J. had unfortunately died, and

the panel now consisted of Denham C.J., myself, and MacMenamin J. It should be said that the appellants were represented by a

solicitor and counsel on the 11th February, 2008, and at other hearings in respect of the matter, and were subsequently represented

by different solicitors. However, by the time the case came for hearing in October 2015 in the Supreme Court, they represented

themselves. On October 12th 2016, they were accompanied by Ms. Angela Farrell. The Court did not then address the question of

whether Ms. Farrell could act as a McKenzie friend but instead adopted a practical approach. Mr. Michael Butler addressed the Court

and raised an objection to the Chief Justice taking further part in the case because she was then chairperson of the Courts Service

board by virtue of her position as Chief Justice. The Court rose to consider the matter. It was doubtful that any reasonable person

aware of the structure of the circumstances of the case, the structure of the Courts Service board, and the large number of persons

working in the Courts Service, could apprehend that there was any difficulty in the Chief Justice hearing the case. Nevertheless,

given the fact that the appellants were representing themselves, and the extraordinary nature of the claims made, the Court decided

that it was preferable that the Chief Justice should not further sit in the case. It should be recorded that Mr. Butler regretted his

application and expressed his gratitude for the courtesy and kindness shown to him by the Chief Justice. The then Chief Justice

delivered a ruling as follows:

“An issue has arisen in the hearing of this appeal as a consequence the Courts Service have been required to file

affidavits. In all the circumstances, even though the Courts Service is not a party to the proceedings, as I chair the

Courts Service board, given the seriousness of the allegations made, I consider it desirable that I not sit in the case. It is

most unsatisfactory when this date has been fixed for a long time and the Court assigned and ready to deal with the

matter, and it could reasonably have been assumed that no objection was taken to the composition of the Court, that

objection was made this morning. This may be a matter the Court may have to take into account when considering costs.

In the circumstances, the Court will fix the date as soon as possible and the parties will be informed.”

7 A number of observations may be made about this application. First, any potential conflict was apparent from the moment that the

Courts Service was directed to provide affidavits in respect of this matter, and certainly once those affidavits were delivered.

However, no application was then made or at any stage in advance of the hearing. If such an application had been raised, it would

have been possible to arrange that another member of the Supreme Court would sit, and the appeal could have proceeded on the

12th October 2016. Because however the matter was raised for the first time in the morning of the hearing, it was necessary to

adjourn the appeal. Second, it is apparent that MacMenamin J., to whom objection is now taken, was a member of the panel at all

times, and had sat on the appeal which had commenced the appeal hearing, and was also a member of the panel which was listed to

and sat to hear the case on October 12th. No objection was raised to him at any stage, or indeed thereafter. The Court considered it

desirable that the appeal should proceed as soon as possible thereafter, and fixed a further hearing date for the 18th of October, that

is the following week. The panel assembled for the hearing then consisted of me, Clarke J. (as he then was) and MacMenamin J.

8 On the morning of the hearing, Ms. Farrell again appeared. Again, the Court took a practical approach, but sought to emphasise to

the appellants and Ms. Farrell, the necessity of maintaining a measured and calm approach to the Court, and indeed to the other

parties involved. In the end what transpired was very far from that ideal. Ms. Farrell often stood beside Mr. Michael Butler, and spoke

audibly to him. It was possible to hear nearly everything she said. Mr. Michael Butler simply repeated what had been said to him word

for word. At times it was not clear that he understood what was being said to him, or what he in turn was saying to the Court. This

was particularly unhelpful in the context of an application for recusal, since , as will appear, it was not clear what if anything was Mr.

Michael Butler’s own objection or indeed objective.

9 In broad terms it appears to now be contended that neither Clarke J. (as he then was) nor MacMenamin J. could properly hear the

appeal because as High Court judges they had made routine orders. In the case of Clarke J., he had heard interlocutory applications in

respect of orders restraining the dissipation of funds. It was also the case that his name had been included erroneously in the first

order which had been made up in respect of the hearing in Dundalk on the 11th February, 2008. It was not disputed that Mr. Justice

Clarke had clearly not presided at the hearing on the 11th February, 2008. There was a transcript of that hearing. The appellants

were present. Indeed, they had maintained that because of the error on the order, that it could not be appealed. It was necessary

for the respondents to bring an application to alter and rectify the order; an order which was granted on 24th February, 2010. Mr.

Justice McGovern made the order correcting the formal order. In other words, not only was it plain beyond any doubt that Mr Justice

McGovern and not Mr Justice Clarke had presided on the February 2008 and therefore the inclusion of the name on the order was a

clear error, but the appellants had previously relied on this error, and the fact that Mr Justice Clarke had not been the presiding judge

10 In the case of Mr. Justice MacMenamin, the only matter referred to was the fact that it appeared he had made an order

transferring the case to be heard in Dundalk. This was raised for the first time in an affidavit sworn on the 12th October 2016, that is

the day of the hearing. The affidavit requested that subpoena duces tecum be served on a number of people including Mr Justice

Clarke and Mr Justice MacMenamin. It need hardly be said that such an application in relation to an appeal hearing is extraordinary,

and that no such application had been made either in advance of the 12th October when the case was listed for hearing, or

mentioned on that day. In respect of Mr. Justice MacMenamin the position was particularly confused. Mr. Michael Butler having initially

stated, (prompted by Ms. Farrell), that it was wholly inappropriate that Mr. Justice Clarke and Mr. Justice MacMenamin sit in the case,

then said:

“Indeed as far as Judge MacMenamin, I am very happy with him” … “but I have to ask Judge Clarke to recuse”.

A little time later, again after prompting from Ms. Farrell, Mr. Butler said that it had only come to his attention in recent times that

Judge MacMenamin directed the actual court hearing from Dublin when it was sent down for hearing to Dundalk, and when asked was

he making any point in relation to it said “I have a lot of respect for Judge MacMenamin”. When asked if he was asking that both

Judge Clarke and Judge MacMenamin recuse themselves Mr Butler replied “I think so yes”. Accordingly, I will approach the issue on the

assumption that the matters raised are contended to be sufficient to disqualify both Judge Clarke and Judge MacMenamin from

hearing the appeal.

11 The test of so called objective bias, whether a reasonable person armed with all the facts would have a reasonable apprehension

that a party would not receive an impartial hearing. The test is framed in this way because of the high value the administration of

justice places upon impartiality. Accordingly it is sufficient to show an apprehension alone. In many cases when an objection is raised

in advance of a hearing however, judges are prepared to recuse themselves even when the matters raised would not satisfy the legal

test for disqualification. In many such cases it is possible to arrange to have the case heard by another judge without any disruption

to the parties. However, the willingness of a judge to recuse himself or herself should not be taken as setting the standard for a

mandatory recusal and courts should scrutinise such applications with greater care where an application is made to set aside a

judgment or to force an adjournment and avoid a hearing or where it may appear that the application is made for tactical reasons or

simple obstructionism.

12 The courts are fully aware of the difficulty of self-representation and the stress caused by the prospect of a final adverse

judgment which can sometimes run to very substantial amounts. Whether for that reason, or by reasons of personality, it is not

uncommon for some litigants at least to entertain ideas of conspiracy, corruption or malfeasance. Generally where litigants are

represented, the legal representatives can often act as a filter, but where litigants represent themselves, it is sometimes the case

that under the stress of proceedings, allegations are readily ventilated in the course of an appearance that on calm reflection might

not have been advanced. For the most part, judges seek to understand the difficulties for litigants, and are slow to react to even

extravagant allegations, particularly when it is apparent that a party is under particular stress. But there is a limit to the matters

which should be permitted to be said or done in relation to court proceedings in the interests of other parties, a fair hearing, and the

public interest more generally. There are also limits to the extent to which reputations should be allowed to be traduced without any

objective justification.

13 I do not believe that any casual observer who witnessed the events in this Court on the three occasions, on which the appeal was

listed, could consider that the matters raised could give rise to any apprehension of a lack of impartiality on the part of either Clarke

J. or MacMenamin J. Indeed, even a casual observer might find it difficult not to conclude that the allegations were made with a view

perhaps to delaying the proceedings, or to influencing, at least negatively, the composition of the Court. Even a casual observer who,

as the test requires, was apprised of all the information available in relation to the case, must be taken to know that in the High Court

different judges routinely make interlocutory orders in cases, and that the issue here turns on a single standalone allegation of fraud

and criminal conduct. The orders made by Clarke J. in relation to interlocutory applications in the cases have no connection or bearing

on that issue other than that they were made in the same litigation. The mere fact that a judge had heard an interlocutory

application in a case is not, at least in the Irish system, regarded as a reason for disqualification: indeed often prior familiarity with

the proceedings is seen as an advantage. The fact that Clarke J.’s name was included on the first order produced in respect of the

hearing on the 11th February, 2008, was plainly an error. Indeed it was an error which was pointed out and relied upon by the

appellants. Furthermore, it was corrected by a formal order of the High Court. Again, the fact that his name was included by a clear

and acknowledged error on an order cannot be a ground for disqualification or recusal.

14 Finally, in relation to Mr. Justice MacMenamin, the making of an order transferring a case to be heard in one High Court venue to

another, could not reasonably be thought to have any impact upon the capacity of that judge to hear the substantive hearing in the

High Court, still less to hear an appeal, which focuses on an issue with which it is not alleged he had any involvement. Furthermore

the appellants herein have been afforded very considerable indulgence in respect of this appeal and their last minute applications for

recusal. There is also a limit to that indulgence. The order for transfer was not appealed. The appellants attended at the hearing in

Dundalk, and even on their own case, entered into a settlement. These appeals concern matters that occurred further down stream,

and it is only because the allegation of fraud is so serious that the appellants can pursue it now. If the making of an order transferring

a case was a matter of concern to the appellants (and they say it is much more, a ground for disqualification) then it is extraordinary

that it was not raised on either of the two occasions the judge sat on this appeal. I am afraid I regard the raising of the issue and the

request for a subpoena duces tecum in respect of the two judges, as a contrived attempt to create an issue which it can be claimed

disqualifies the judges rather than a genuine claim that judges are disqualified from hearing the sole issue that is raised in the appeal.

15 I do not consider it is necessary or desirable to discuss the circumstances in which prior involvement of a judge in any litigation

might possibly disqualify a judge from sitting further in a case, or hearing an appeal. The circumstances in this application are so far

removed from circumstances which could justify any application for recusal, let alone a decision to recuse, that it is enough in my

view, to say that the application is lacking in any substance, and should be dismissed.