Appeal to set aside judgment for objective bias dismissed; orders set aside to maintain public trust in judiciary.

THE SUPREME COURT

[Appeal Nos. 579/2012, 580/2012 & 581/2012]

Denham C.J.

Hardiman J.

Clarke J.

MacMenamin J.

Dunne J.

BETWEEN:

GOODE CONCRETE

PLAINTIFF/APPELANT

AND

CRH plc, ROADSTONE WOOD LIMITED AND KILSARAN CONCRETE

DEFENDANTS/RESPONDENTS

Judgment of Mr. Justice John MacMenamin delivered on the 31st day of July, 2015

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

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.