Court of Appeal dismisses appeal on objective bias grounds regarding a former solicitor partner appointed as judge.

APPROVED NO REDACTION NEEDED

THE COURT OF APPEAL

CIVIL

Court of Appeal Record Number: 2025/34

High Court Record Number/

Bankruptcy Number: 2428

Whelan J. Neutral Citation Number [2025] IECA 223

Meenan J. McDonald J.

IN THE MATTER OF SEAN DUNNE A BANKRUPT

BETWEEN/

SEAN DUNNE (A BANKRUPT)

APPELLANT

- AND –

MICHAEL IAN LARKIN, CHRISTOPHER LEHANE AND CLARK HILL

SOLICITORS LLP

RESPONDENTS

JUDGMENT of Mr. Justice Charles Meenan delivered on the 21st day of November 2025 Background: -

1. The appellant, Mr. Dunne, was adjudicated a bankrupt by order dated 29 July 2013 on foot of a creditor petition that issued in February 2013. Prior to the hearing of the petition Mr. Dunne filed for bankruptcy in the United States on 29 March 2013. The bankruptcy in this jurisdiction and the making of the order of adjudication proceeded on foot of a permission from the United States Bankruptcy Court. Mr. Dunne brought challenges to the Irish adjudication which were dismissed in the High Court and on appeal by the Supreme Court.

2. Mr. Dunne’s bankruptcy was subsequently extended by order of the High Court (Costello J.) made on 2 October 2018 on the basis of material non-cooperation to a period of 14 years and 9 months. Mr. Dunne stands to be discharged from bankruptcy on 29 April 2028.

3. By notice of motion dated 26 July 2024 Mr. Dunne challenged the appointment of the first named respondent (Michael Ian Larkin) and the second named respondent (Christopher Lehane) as official assignees seeking declaratory reliefs that both the first named respondent and the second named respondent were “not validly appointed as official assignee in the bankruptcy of Sean Dunne (Bankruptcy No. 2478)”. The third named respondent, Clarke Hill Solicitors LLP, is joined in the motion by Mr. Dunne in their capacity as solicitors for the first named and the second named respondents.

4. In response to Mr. Dunne’s motion of 26 July 2024 the third named respondent raised a preliminary objection to the motion submitting that the motion was procedurally flawed in circumstances where: -

(a) contrary to the Rules of the Superior Courts, it sought reliefs which were mandatory and declaratory in nature, by way of motion rather than by way of plenary summons; and

(b) the motion did not identify a statutory provision or Rule of the Superior Courts pursuant to which Mr. Dunne claimed to be entitled to the reliefs sought.

5. Subsequently Mr. Dunne issued six further motions comprising those issued on: -

(i) 27 August 2024 in which he sought to join three of his children as applicants to the motion of 26 July 2024;

(ii) 27 August 2024 in which he sought inter alia (a) access to the Courts Service file in the bankruptcy estate of Mr. Michael Wymes, (b) production of the first named respondent’s contract of employment;

(iii) 4 October 2024 in which he sought to compel the attendance of the first named respondent at the hearing of the motion of 26 July 2024 for the purpose of crossexamination of the contents of his affidavits and “any other related matters”;

(iv) 4 October 2024 in which he sought, inter alia, declaratory relief that the director of the Insolvency Service of Ireland had not been validly appointed;

(v) 18 October 2024 in which he sought, inter alia, to join the Minister for Justice to the motions of 26 July 2024 and 4 October 2024;

(vi) 23 October 2024 in which he sought Kennedy J. to recuse himself from hearing “the proceedings herein”.

6. The motions came before Kennedy J., the judge with seisin of the bankruptcy list on

26 September 2024, a date on which he was sitting as vacation judge. A hearing date for the motions was set with Kennedy J. confirming that the motion for his recusal would be heard first and, depending upon the outcome, the motion of 26 July 2024 would then be heard, the outcome of which would determine whether the remaining motions would be heard or dismissed.

7. In a written judgment, delivered on 3 December 2024, Kennedy J. set out his reasons for refusing to recuse himself and acceded to the respondents’ preliminary objection. By order of the court of 11 December 2024 Mr. Dunne’s motion of 26 July 2024 together with the six subsequent motions were dismissed.

8. Subsequently, Mr. Dunne, on 30 January 2025, issued a plenary summons, record no. 2025/466, wherein he sought the reliefs that were set out in his notice of motion of 26 July 2024. A statement of claim was subsequently delivered on 30 July 2025, Nolan J. directed that the matter should proceed by modular trial with the first module concerning the validity of the appointments of the first named respondent and the second named respondent. These respondents were directed to make discovery by 19 September 2025 and to file legal submissions by 14 October 2025. These directions were given with a view to the early trial of this first module.

9. Mr. Dunne has appealed the judgment of the High Court of 3 December 2024 and subsequent order of 11 December 2024.

Judgment of the High Court:-

10. In the High Court Mr. Dunne set out some nine grounds upon which he sought the trial judge to recuse himself. These grounds as detailed in his Notice of Appeal were the trial judge’s: -

(i) previous ownership and interest in A&L Goodbody Solicitors;

(ii) connections with Mr. Dunne’s creditors;

(iii) recent departure from A&L Goodbody;

(iv) maintenance of a LinkedIn profile;

(v) close relationship with counsel for the respondents and clients;

(vi) comments and behaviour in court;

(vii) a pre-judgment of the first named respondent’s status as official assignee;

(viii) handling of the motions; and

(ix) the hearing of 21 October 2024. In a detailed judgment, Kennedy J. rejected each of these grounds.

11. Before considering the above grounds the trial judge set out the relevant principles citing some fifteen authorities which he considered. Amongst these authorities were Goode Concrete v CRH Plc. [2015] 3 IR 493, Ulster Bank v McDonagh [2022] IECA 180 and Promontoria (Finn) Limited v Armstrong [2024] IECA 73. I will refer to these authorities in a little detail later in this judgment.

12. Arising from his former role as a senior partner in the firm A&L Goodbody Solicitors the trial judge stated: - “103. What I had originally understood to be the primary potential concern related to my former roles in A&L Goodbody, solicitors, and my assumed involvement in litigation against the applicant or in advising his two main creditors, Ulster Bank DAC and the National Asset Management Agency (“NAMA”). Dealing briefly with the applicant’s specific claims: -

(a) While I was an A&L Goodbody partner and the head of its litigation department, A&L Goodbody acted in respect of issues (‘the 2009 Litigation’) adverse to the Applicant and his companies. The Applicant has confirmed that the 2009 Litigation commenced in 2009, whereas his bankruptcies were in 2013. Either way they were concluded long ago.

(b) The applicant’s affidavit does not detail the 2009 Litigation and I was not personally familiar with it (although I recall media coverage at the time). I was not personally involved in the 2009 litigation nor did I ever act in respect of the applicant in any way. The applicant’s assumption that I was involved (in any capacity) is wrong.

---

(d) In view of the applicant’s detailed - but groundless speculation, I will confirm that I never had any role in the conduct of the 2009 Litigation or the relevant client relationships, whether in terms of:

• dealing with the client contacts

• working on the relevant files

• supervising, managing, pricing, resourcing or allocating those files

• assigning resources to them in particular (as opposed to more general resource allocation within the firm)

• pitching or tendering to (or approving pricing or tenders for), or marketing to or entertaining or developing relationships with those clients.”

and: -

“109. The grounding affidavit also suggests that I may have benefitted financially from fees generated by the 2009 Litigation. It is trite to observe that fees generated by any partner or employee form part of the firm’s revenues and thus ultimately contribute to its profits for the relevant years, in this case, it appears 2009 …. The firm is very large. Accordingly, my drawings were not and would not have been materially affected by the fees generated by the 2009 Litigation. In any event, it is the current position which is relevant in determining whether there is a real apprehension of bias. There is no conceivable basis to suggest that I have a pecuniary interest in the outcome of this litigation. It is impossible to see how a notional fractional share of fees possibly generated in private practice fifteen years ago, before the applicant’s bankruptcy and in litigation entirely separate to it long before my appointment to the bench, could give rise to a perceived risk of bias in my current approach to the issues which the applicant has recently raised concerning the validity of the first and second respondent’s appointments.”

13. Concerning the trial judge maintaining a LinkedIn account the trial judge stated: - “108. The grounding affidavit also references my LinkedIn account, stating that I am ‘listed as having first degree connections with individuals who are close to (the applicant)’ and express concern that such persons could use the LinkedIn messaging service to communicate with me inappropriately in relation to these proceedings. Such suggestions do not withstand scrutiny. I expect that if this had been a serious concern the Applicant would have identified the individuals and explained the basis for the concern. Since the applicant has not done so, and had failed to even identify the individuals to whom he refers, I cannot comment on the contacts (if any) which I have had with unidentified individuals. However, the fact of a LinkedIn connection, first degree or otherwise, cannot reasonably be taken to imply a significant relationship…”

14. As to the trial judge’s alleged professional relationship with the senior counsel instructed by the respondents herein the trial judge stated: - “83. The Applicant wrongly claimed that I enjoyed a close relationship with the Respondents’ Senior Counsel, Mr. Lyndon MacCann from my time at A&L Goodbody. I do not believe that my having briefed counsel in the past would be a “cogent ground” for recusal, so this point was misconceived. However, there is no factual basis for the objection in any case. While at A&L Goodbody, I knew Mr. MacCann only by repute. Many of my colleagues briefed him for their cases and he may have been briefed in cases in which I was involved for other parties. However, presumably reflecting our respective practice areas and client bases, I never had occasion to avail of his services. I do not recall meeting, speaking to or working with him and do not believe that I ever encountered him in person until he appeared before me as counsel.”

15. The trial judge addressed Mr. Dunne’s criticism of him concerning the conduct of proceedings and the hearing of 21 October 2024 as follows: - “100. At hearings on 26 September and 14 and 21 October I gave directions with a view to progressing the applicant’s motions. Those directions concerned the timetable for the exchange of affidavits and submissions - I invited the parties’ proposals and approved directions agreeable to both sides …. However, it was clear that I was not expressing a concluded view but rather noting issues identified in the papers before the court to be explored. Such references to issues for consideration are entirely appropriate in the context of a case management application hearing - they go to the issues to be canvassed in oral and written submissions and the time required for the hearing of the motions. It is helpful for the parties and the court to have a common expectation of the issues likely to be ventilated at the hearing so as to avoid surprises and delays and to focus on the ultimate hearing. Such comments in no way anticipate the resolution of such issues nor could they reasonably be interpreted as such any more than a judge dealing with an injunction application would be pre-judging the issue by noting that there would be an issue as to the existence of an arguable case, the balance of convenience and the adequacy of damages, whereas in other cases some of those issues would be less contentious.”

16. The trial judge made clear that there was no pre-judgment of Mr. Dunne’s challenge to the validity of the appointment of the first named and second named respondents. In fact, as is clear from the ongoing plenary proceedings initiated by Mr. Dunne this issue has yet to be decided.

17. Having rejected Mr. Dunne’s application for his recusal the trial judge dealt with the respondent’s preliminary objection to the motion of 26th July 2024. The trial judge stated: - “2. This judgment deals with the respondents’ application to strike out six motions issued by the applicant and my earlier decision to reject a 7th (the recusal motion) … For the reasons set out below, I consider that the six motions must be dismissed. A route which the applicant has sought to pursue is procedurally flawed and contrary to the Rules of the Superior Courts. If the applicant wishes to challenge the first and second respondents’ respective appointments as official assignee, he should institute appropriate proceedings to that end, joining all relevant and necessary parties (and only those parties) and setting out the facts and matters relied upon as entitling him to the reliefs sought. He cannot proceed by way of motion in the proceedings concerning the administration of his personal bankruptcy case.”

and: -

“30. --- The applicant’s contentions would disregard normal and long-established rules of procedure and reverse the onus of proof. I accept the respondent’s submission that the default procedure for a claim under the Rules of the Superior Courts is by plenary proceedings. None of the exceptions apply, with a possible exception of judicial review (and the respondents would say that that course is time barred).”

18. The trial judge considered the possible application of s. 61(7) of the Bankruptcy Act, 1988 (as amended) which provides: - “The exercise by the official assignee of the powers conferred by this section shall be subject to the control of the court, and any creditor or any other person who in the opinion of the court has an interest may apply to the court in relation to the exercise or proposed exercise of those powers.”

The trial judge concluded: -

“36. In reaching the foregoing conclusion, I have reflected on whether the motions could be saved by being brought within any provisions of the Bankruptcy Act 1988 or the Rules of the Superior Courts. The most promising provision from the applicant’s perspective seems to be section 61(7). I would give that provision an expansive interpretation, to allow for applications challenging the official assignee’s failure to exercise powers, or acts in purported exercise of such powers. I have accordingly reflected on whether the term ‘official assignee’ in that provision could be interpreted broadly to facilitate the applicant’s challenge by interpreting the Rule as encompassing any person holding themselves out as such and unlawfully purporting to exercise the powers of that office (which is the applicant’s contention). However, in order to encompass the current application it would be necessary to go far beyond the plain words of a legislation without any obvious basis to do so (particularly when there are alternative effective remedies available to any party wishing to agitate the appointments issue) it cannot possibly be argued that section 61(7) was intended to permit litigation of a constitutional challenge to the validity of legislation or the issues which the applicant wishes to raise on behalf of his minor children. …”

19. Having concluded that the applications for the various reliefs sought by Mr. Dunne by way of notice of motion were impermissible under the Rules of the Superior Courts (the “RSC”) the trial judge considered invoking the inherent jurisdiction of the court to waive non-compliance with the RSC. In rejecting such an approach the trial judge stated: - “I have considered whether I can reduce the applicant’s procedural difficulties by invoking the inherent jurisdiction to waive non-compliance with the Rules. However, it would not be appropriate to do so here. These are not just technicalities but fundamental safeguards mandated by the Rules of the Superior Courts. Continuing with the motions in their current form could unfairly impair the respondents’ ability to defend the claim. The absence of a case properly pleaded in accordance with the Rules of the Superior Courts would also make it more difficult for the court to adjudicate the issues. The Rules apply to all litigants, whether or not represented by lawyers and are designed to ensure the fair resolution of issues properly before the court in an orderly and efficient manner. There is no basis for departing from them here.”

Notice of Appeal: -

20. Mr. Dunne appeals against the refusal of the trial judge to recuse himself setting out the matters at (i) to (ix) which I set out at para. 10 above. He also appeals against the order of the High Court striking out his motion of 26 July 2024 and subsequent motions. Mr. Dunne maintains that the trial judge erred in holding that his challenge could not proceed by notice of motion under the inherent jurisdiction of the court but required judicial review or plenary proceedings.

Consideration of appeal: -

21. In his written submissions Mr. Dunne stated: -

“Kennedy J. held that a constitutional/statutory challenge to the appointments could not proceed by way of notice of motion on the bankruptcy list, but required a plenary summons or judicial review action. That ruling was wrong in law. There is no rule of procedure barring an ordinary motion in bankruptcy proceedings from raising a constitutional issue about the appointments of its own office holders..” In his oral submissions to this court Mr. Dunne concentrated on the merits of his application rather than the procedural infirmities identified by the trial judge. Further, Mr. Dunne wrongly maintained that by striking out the motion the trial judge, in effect, was refusing to address issues raised on the validity of the appointments involved. The fact is that no

decision has been taken on the validity issue and the plenary proceedings in this respect are ongoing.

22. The trial judge had ample authority to reach the conclusion he did. Order 1, Rule 1 of the RSC states: - “Save as otherwise provided in these Rules, civil proceedings in the High Court shall be instituted by a summons of the Court to be called an originating summons.”

Order 1, Rule 6 of the RSC provides: -

“In all proceedings (other than to take a minor into wardship) commenced by originating summons, procedure by plenary summons shall be obligatory ..”

23. Order 76 of the RSC governs the procedures to be followed in bankruptcy matters. This order makes no provision for the issuing of proceedings seeking to challenge the validity of the appointment of official assignees by notice of motion.

24. Before he struck out the motions the trial judge considered whether any provision of the Act of 1988 or the RSC might be of assistance to Mr. Dunne. The trial judge identified s. 61(7) of the Act of 1988 as being “the most promising provision from the applicant’s perspective ..”. However, for the reasons which are set out at para. 18 above the trial judge concluded this statutory provision was not of assistance to Mr. Dunne. In doing so the trial judge’s reasoning cannot be faulted and, indeed, in the course of hearing this appeal Mr. Dunne made no serious attempt to do so.

25. The trial judge also considered whether the procedural infirmity could be addressed by invoking the jurisdiction of the court to waive a non-compliance with the RSC. The trial judge concluded that such a course would not be appropriate in this case for the reasons that are set out at para. 19 above. In so ruling the trial judge was clearly acting well within the discretion he had and no sufficient reasons were advanced by Mr. Dunne to reverse this ruling.

26. Turning now to the issue of recusal: Mr. Dunne represented himself as he is fully entitled to do. Though a lay litigant may be given a degree of indulgence particularly when it comes to procedures in court this indulgence does not extend to different rules being applied. The same rules apply to all litigants be they legally represented or not. I make this observation in the context of the manner in which Mr. Dunne pursued his appeal on the recusal issue.

27. The notice of appeal served by Mr. Dunne squarely challenges the decision of the trial judge refusing to recuse himself. Mr. Dunne referred to what he described as “multiple grounds of the apprehension of objective bias” which I have listed at para. 10 above. However, when it came to prosecuting his appeal on non-recusal before the court Mr. Dunne was somewhat reticent. The transcript of the appeal hearing records the following: - “The Court: Are you dropping the recusal? Mr. Dunne: No well, I may drop it, let me think about that. The Court: Well, why don’t you tell us now if that’s what you’re going to do. if you are going to drop the recusal, why don’t you tell us that now. Mr. Dunne: Well, sorry, because it’s becoming such an issue with you and me, I may well withdraw it. The Court: Well, it’s the issue you’ve raised. The High Court found against you and you decided to appeal it, as is your right. Now, are you proceeding with your appeal on the recusal matter? Mr. Dunne: Don’t know Judge, I said I’ll consider that when Mr. McCann is speaking.”

Later in the hearing: -

“The Court: But you’re going to tell us anyway whether or not you’re proceeding with recusal? Mr. Dunne: I’m going to tell you before we finish.” Later in the appeal Mr. Dunne informed the court “… so let’s leave recusal on the table. My issues are, one, he should have recused himself.”

28. This type of approach to presenting an appeal would be completely unacceptable where an appellant is legally represented. It is equally unacceptable where the appellant, as here, represents himself.

29. Notwithstanding the attitude of Mr. Dunne the court will consider the trial judge’s

decision not to recuse himself. The court notes that Mr. Dunne took no issue with the authorities referred to by the trial judge nor the principles he applied.

30. Where a litigant is making an application to a judge to recuse himself/herself on the grounds of objective bias the burden is on the litigant to put evidence before the court to support the application. I refer to the following passage from the judgment of Irvine J. (as she then was) in O’Reilly v Commissioner of An Garda Síochána [2018] IECA 34 where she stated:- “Having considered the submission made by Ms. O'Reilly concerning objective bias, I am satisfied that this ground of appeal must fail. Of principal importance is the fact that there was no evidence before the Court of Appeal to ground the complaint of objective bias. Where a party seeks to set aside a judgment made on the grounds of objective bias the party seeking such relief must put evidence before the Court to establish the facts which they maintain support their claim.”

31. Assertions, speculation or rumours are not evidence. Mr. Dunne’s complaint of a “close relationship” with senior counsel representing the respondents had no factual basis as stated by the trial judge. References to the trial judge’s LinkedIn page and what it might it imply were no more than groundless speculation. It is very difficult to see how a congratulatory statement issued by A&L Goodbody on the appointment of the trial judge to the High Court could find its way into an application for recusal.

32. There was no basis to Mr. Dunne’s complaints concerning decisions taken by the trial judge in the course of case managing his motions. Directing the filing of affidavits and other ancillary orders was not deciding the issue but rather providing a means for the issue to be decided in an efficient and timely way.

33. The only substantive aspect of Mr. Dunne’s recusal application concerned the trial judge’s former role as a senior partner in A&L Goodbody, a major firm of solicitors in the State. One of the requirements for appointment to the High Court is that the applicant has been a practicing barrister or solicitor of not less than twelve years standing. The need for such a requirement is obvious. A person appointed to the High Court must have demonstrated the necessary professional knowledge, experience and skills for a period of not less than twelve years. It must follow that a person seeking appointment to the High Court, in the case of a solicitor, has acted for his/her clients and, in matters involving litigation, against the clients of other solicitors. This can create conflicts giving grounds for recusal. Such was considered by this Court in Promontoria (Finn) limited and Damian Harper v Neil Armstrong and Anor. [2024] IECA 73 (The “Armstrong case”).

34. The Armstrong case concerned an application by a financial company for an order for possession of property which was the subject of a mortgage that had fallen into arrears. In the High Court, Roberts J. granted the orders sought. Subsequently, the defendants sought to set aside the judgment on the ground, inter alia, that Roberts J. ought to have recused herself on the grounds of objective bias. The bias alleged was that the judge had previously been a partner in and chair of A&L Goodbody Solicitors who had allegedly represented the financial company not in the instant litigation but in a previous matter concerning the transfer of certain loans and securities. Roberts J. rejected the application stating:- “Mr. Armstrong has raised an issue of objective bias, seeking to impugn the interlocutory order that I made. Having heard his concerns, they relate to the fact that I was chair of A&L Goodbody and that another partner in my firm lists the plaintiff group as a corporate client. I am fully satisfied in this case that my former firm, which has over one hundred partners, had no involvement whatsoever with this case at any time. Other firms I have no connection with had acted in this matter at all stages. Also, to be clear on the matter, at no time have I personally acted for the plaintiffs or either of them. I do not believe the concerns raised by Mr. Armstrong raise an issue of objective bias that would have required me to recuse myself from hearing the interlocutory hearing, or otherwise offend the Bangalore Principles. I therefore refuse the relief sought at paragraph 1 of the notice of motion.”

35. The decision of Roberts J. was appealed to this Court. Giving the judgment of the court, Noonan J. referred to the oft cited passage of the judgment of Denham J. (as she then was), in Bula Limited and Others v. Tara Mines Limited and Ors. (No. 6) [2000] 4 I.R. 412 where she stated:- “However, there is no need to go further than this jurisdiction where it is well established that the test to be applied is objective, it is whether a reasonable person in the circumstances would have a reasonable apprehension that the applicant 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 that invokes the apprehension of a reasonable person.”

and:-

“Indeed, it was quite rightly accepted by the applicant that the mere fact that a judge when a practising barrister acted for a party is not a bar to him or her acting as a judge in a subsequent case when that party is a party to the litigation. The test for the court is more than a prior relationship of legal adviser and client.”

36. Noonan J. concluded:-

“Accordingly, in the present case, even where it is the case that the High Court judge had acted in a professional capacity at some time in the past for the first respondent, that, without more, would be insufficient to raise a real apprehension of objective bias. However, as the Judge herself explained, the link here is even more tenuous. I am accordingly satisfied that there is no conceivable basis on which this could give rise to a real apprehension of bias and thus, the appellant has demonstrated no arguable ground of appeal….”

37. A&L Goodbody is a large firm of solicitors having a significant client base with numerous partners to provide legal services. Where a partner in a firm of the size of A&L Goodbody is appointed a judge of the High Court it is all too easy for a litigant to seek recusal on the grounds of objective bias. However, a response is required from the judge in question.

38. The judge in question is required to set out in some detail his/her former role and position in the firm of solicitors involved. He or she should set out their professional involvement, if any, with persons or clients who may have relevance or a material interest in a case at hearing. It should be stated when and under what circumstances such involvement took place. It may well be that the passage of time will diminish the significance, if any, of such involvement.

39. I have set out a number of passages from the judgment of the trial judge that addressed the matters I referred to in the previous paragraph. I am fully satisfied that the trial judge was correct in his decision not to recuse himself. Mr. Dunne identified no grounds for recusal arising from the trial judge’s former role as a senior partner in A&L Goodbody Solicitors.

40. By reason of the foregoing I dismiss the appeal. As for costs, the indicative view of the court is that as the appellant has been entirely unsuccessful in his appeal the respondents are entitled to an order for costs of the appeal. Should Mr. Dunne wish to contest this view he may do so by way of written submissions (not more than 1500 words) to be delivered within fourteen days of the date of the delivery of this judgment. Should the respondents wish to reply they may do so, also by written submission (not more than 1500 words) within fourteen days thereafter.

41. As this judgment is being delivered electronically, I am authorised to record the agreement of Whelan and McDonald JJ. with it.