Supreme Court dismisses appeal on objective bias grounds, remitting case to High Court for fresh determination.

THE SUPREME COURT

[Appeal No: 445/2012]

Denham C.J.

Clarke J.

MacMenamin J.

Between/

Framus Limited, Amantiss Enterprises Limited (In Liquidation) and Wilbury (In Liquidation)

Plaintiffs/Appellants

and

CRH plc, Irish Cement Limited, Roadstone Provinces Limited, Roadstone Dublin Limited, Tradburn Limited, Readymix plc,

Kilsaran Concrete Products Limited and CPI Limited

Respondent

Judgment of Mr. Justice John MacMenamin delivered the 14th May, 2013.

1. I agree with the judgment and order proposed by the Chief Justice. I also agree with the judgment delivered by Clarke J. However,

I would like to add some brief observations of my own.

2. I wish to make it clear that nothing in this judgment should be read or interpreted as in anyway seeking to impinge upon the right

of the parties to litigate this case to finality; whenever that may be. The constitutional right of access to the courts is of

fundamental importance to our system. So too is the substance and perception of the integrity of our system of justice. The unusual

circumstances of the substantive application to dismiss, where there is now an allegation of objective bias on the part of the judge,

underline the necessity to ensure that the courts uphold, and be seen to uphold, the principle that justice should not be only be done

but be seen to be done.

3. That said, there may be other factors here upon which the parties might wish to reflect. Fundamentally, the question I pose to all

parties is whether there may be a disproportionality between process and potential outcome? I am not in a position to answer that

question or even hazard a guess at what the answer might be.

4. As a consequence of this order, it can be contemplated the matter will be dealt with expeditiously and efficiently in the High Court.

The judge assigned will have a number of issues to determine. I do not enumerate them all for fear of any perception of impinging on

her judicial discretion. It will be for her to determine the sequence of issues.

5. But one thing is clear. Whether or not the liquidator remains in situ, it will be necessary for the High Court to determine whether

the appeals were brought with the consent of the liquidator, whether that consent is said to be either express or implied. Even from

the correspondence exhibited in this application, one can infer that the resolution of that issue will be by no means free from

complexity and cost. Thereafter, on one outcome, it is possible to envisage a veritable cascade of future litigation, consisting of

decisions at first instance and appeals therefrom. Whatever may be the position regarding alleged objective bias, one may anticipate

that at the end of the road, it will be necessary to determine whether, on the facts, the competition claim should be permitted to

proceed.

6. In all of this, I refrain from mentioning the real risk of interlocutory applications and appeals. Court time is limited. The parties will

have been advised of the costs implications of all this. One wonders whether, in this consideration of process, the question of the

ultimate potential outcome has been lost?