Appeal dismissed; judge's minor shareholding disclosed and did not create reasonable apprehension of bias.

THE SUPREME COURT

Appeal No. 579/2012

580/2012

581/2012

Denham C.J.

Hardiman J.

Clarke J.

MacMenamin J.

Dunne J.

Between/

GOODE CONCRETE

Plaintiff/Applicant

and

CRH plc, ROADSTONE WOOD LIMITED AND KILSARAN CONCRETE

Defendants/Respondents

JUDGMENT of Mr. Justice Hardiman delivered the 31st day of July, 2015.

Overview

This case involves an allegation of bias against a High Court judge, Mr. Justice Cooke. It is not alleged that the judge was actually

biased, but a form of imputed bias, called objective bias, is alleged against him. I believe this allegation to be a contrivance, designed

to get rid of three adverse decisions in the period 2010 – 2012. The appellants, Goode Concrete, could have appealed all or any of

these decisions on their merits, within the time prescribed. They did not do so.

Background.

The plaintiff appellant company is a significant player in the Irish Cement Industry. It is run by experienced and sophisticated business

men who were at all material times advised by solicitor and counsel. The respondent, Cement Roadstone Holdings, is an Irish Public

Company which is a player of international importance in the same industry. The plaintiff (now the appellant) alleged that the

respondent was guilty of uncompetitive practices to its detriment. It issued High Court proceedings against CRH alleging this. Having

done this in 2010, it appeared before Mr. Justice Cooke seeking that the action be admitted into the Competition List. This happened

in November 2010.

Over the next two years the appellant sought an injunction against the respondent. It failed to obtain this relief. Then the respondent

sought Security for costs against the plaintiff. This application succeeded. Later the judge measured and fixed the amount of this

security. The same judge, Mr. Justice Cooke, admitted the case to the Competition List and made all the subsequent decisions

mentioned above.

When the case first came before Mr. Justice Cooke in November 2010 he told the parties that he had a vague feeling that there was

a small number of CRH shares in his pension fund. He said he did know whether this caused a problem or not but said to the parties

“you’d better consider it”. Neither of the parties, then or later, made any application to the judge based on this shareholding or

sought a further or more precise details of the shareholding about which the judge had said he had merely a “vague feeling”. But

subsequently further shares, including shares in CRH, were purchased for the judge without his knowledge by those engaged to set up

an Approved Retirement Fund on his behalf. The effect of this was that the judge possessed a shareholding in CRH amounting to

0.00001247863628519 of its issued shares. In absolute numbers, he owned 8966 of 111,368,470 shares, say 0.0000124. That is fairly

describable as a very small shareholding. Cooke J. was one of over 24,000 shareholders.

Legal principle.

The main principle of law invoked by the appellant in seeking to invalidate the judge’s decisions is nemo iudex in causa sua: no-one

can be a judge in his or her own cause. As the Latin formulation of the principles suggest, this has been a principle of law going back

thousands of years. It extends to the proposition that justice must both be done in fact, and be seen to be done.

Over the years, the Irish courts have been extremely sensitive to the need for justice to be seen to be done. There are a great many

cases in the Law Reports where decisions of non-court tribunals, commissions and bodies have been set aside on the basis that an

informed reasonable observer might have thought there was a real risk of bias. Furthermore, the Courts have been prepared to require

that a judge recuses herself or “steps aside” in an appropriate case, see Dublin Wellwoman Centre v. Ireland [1995] 1 ILRM 408 or to

set aside a decision of the Supreme Court because of a connection on the part of one of the judges with a professional firm involved

in the subject matter of the litigation (Kenny v. TCD [2008] 1 ILRM 241).

But in this particular case, I firmly believe that the bias application is merely a contrivance to set aside an unfavourable decision. I am

not clear whether my colleagues disagree with this view. My reasons for coming to it are set out below in some detail. They may be

summarised as follows: when the case came before the judge, without prior notice to him, he immediately informed the parties of his

“vague feeling” that he had a small number of CRH shares in his pension fund: neither party either objected to his hearing this case on

that ground or sought further particulars as they could have done by application in open court; there was a period of at least two

months to do this; the actual shareholding, as later augmented, is indeed very small viewed either as a percentage of the total

number of issued shares, or as a fraction of their value; shareholdings of this level have not been considered to disqualify in other

Common Law countries; the judge was not obliged to make further unrequested disclosures, at least as the law then stood.

Context.

It is also part of the context of this case that in recent years there has been a marked and growing tendency for unsuccessful

litigants to seek to disqualify judges on absurd grounds. This has been expressly noted in a very recent judgment of the Court of

Appeal referenced at para. 22 below, sub. tit. “Some Examples”. It requires to be restated, as the Court of Appeal recently has, and

courts in other Common Law countries have done over the years, that a judge has a right to hear a case properly assigned to him or

her, but also has a duty to do so unless there is substantial and not merely technical reason for recusal.

The attempts to recuse judges have involved, for example, searches against the judge’s name in the Registry of Deeds to see if a

connection (such as a mortgage) with the other side, particularly financial institutions, can be established. In this particular case of

Good Concrete, as will be seen below at paras. 31ff a falsehood of some kind was practised on a young woman working as an intern in

the office of the judge’s professional advisers to induce her to make an unwarranted disclosure of client information. This information

was always obtainable by the simple process of application in open court but the contrived and dishonest process mentioned above

was preferred to create a false impression of concealment.

It is of the greatest importance that justice be done, and be seen to be done. In light of the developments I have just mentioned it

would seem prudent that the Presidents of the various courts, or some other appropriate body, should devise and approve a code of

the circumstances in which a judge can and should recuse himself or herself. But that has not in fact been done to date and there is

no legislation on the matter. I believe that the result proposed in the judgment of the Chief Justice lays down new obligations on the

judges of which they were not up to now aware and whose application, ex post facto is unfair both to the successful litigant in the

present case and to the judge.

Conclusion.

The trial judge in this case behaved with absolute propriety and his conduct is not in my view open to criticism of any kind. When it

came before him, without notice, the judge made the disclosure in terms set out below from the transcript. The judge had only a

“vague feeling” to go on but he disclosed this to the parties at the first opportunity. He said that he did not know whether it would

create a problem in his hearing the case and he said to both parties “You’d better consider it”. Neither party returned to the topic,

asked for further details or objected on the basis that any shareholding however small should disqualify the judge. Nearly two years

later, having obtained information which was easily available by simple enquiry by means of an elaborate subterfuge, the appellant

objected. It sought to set aside three judgments the learned trial judge had given in the meantime on interlocutory matters. It bears

repeating that the appellant had not appealed any of these matters in the ordinary way, on the merits, and within the prescribed

time. Instead, it now seeks to overturn them on a technicality.

When the appellant came into possession of the relevant information by the subterfuge described above, it attempted to deal with

the matter by means of private correspondence with the judge. In my view (and in the learned judge’s view) this was quite wrong. I

raised the question, what did the appellants hope to gain by raising this matter privately with the judge. In fact, however, the judge

told them that their point would have to be dealt with in open court. Then, and not before then, the appellants took steps to do so.

In my view the unappealed decisions of the learned trial judge can only be set aside by taking a view of the duties of a judge which

goes far beyond those which applied in the period 2010-2012 or at any later period up to the present time. It is unfair both to the

other parties to the litigation and to the learned trial judge himself, to set them aside on that basis. The law and practice in relation

to objective bias certainly needs a firm restatement, as I have suggested above, but it is not appropriate to bring this about in a

judgment in a case where the judge behaved fully in accordance with the law as it was at the relevant time.

____________________________________________

1. In this appeal the appellant alleges objective bias by a High Court judge. That is, it does not allege that the judge (The Hon. Mr.

Justice Cooke) was in fact biased in dealing with certain litigation between the parties. Instead, it alleges that circumstances

subsequently came to light, allegedly as a result of a highly sophisticated contrivances – a ready up in plain language - (practised on

the judge’s professional advisers) such that a reasonable person would have had a reasonable apprehension that the appellant had

not received a fair hearing.

2. This was for the purpose of suggesting that this information was only available in this elaborate and deceptive way, fully described

below, when it was in fact always available an enquiry in open court. No attempt was made to appeal the judge’s actual decisions

within the time allowed. That is a most telling feature: the actual decisions could have been but were not, the subject of appeal

within the permitted time. This fact tells its own tale.

3. This appeal raises an issue of great importance to all legal systems. The concern that a judge should be impartial was felt as long

ago as Roman times when it was expressed in the maxim “Nemo iudex in causa sua”, no person can be a judge in his or her own

cause. From a remote time, too, it was understood that a judge must not be biased, or have an interest in the matter before him, or

even appear to be biased or interested. Justice must not only be done, but it must be seen to be done. This rule, together with the

duty to hear both sides of a dispute, (audi alteram partem), is the basis of the modern remedy of Judicial Review.

4. This has led the Common Law, in every country where it is found, to distinguish between actual bias and objective bias. Actual bias

means what it says. It need not detain us here because it is not alleged in this case. Objective bias arises where, even in the

absence of actual bias, there are circumstances in the case which would lead a reasonable person, who is not unduly sensitive, and

who is in possession of all relevant facts, reasonably to apprehend that a party had not received a fair hearing. In O’Callaghan v.

Mahon [2008] 2 I.R. 514 at 672 Mr. Justice Fennelly described the principles relating to objective bias as follows:

“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… the apprehensions of the actual affected party are not relevant.”

I agree with the passage just cited and consider it an apt epitome of the modern Irish law on objective bias.

5. I also consider that the dictum of Fennelly J. is consistent with international authority and standards in this regard. We have been

referred to a great number of these in the course of the present case. I will refer only to such as are strictly relevant.

6. In the Bangalore Principles of Judicial Conduct, 2002, the following provisions are to be found:

“2.5 A judge shall disqualify himself or herself from participating in any proceedings in which the judge is unable to decide

the matter impartially or in which it may appear to a reasonable observer that the judge is unable to decide the matter

impartially. Such proceedings include, but are not limited to, instances where

2.5.1 The judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts

concerning the proceedings;

2.5.2 The judge previously served as a lawyer or was a material witness in the matter in controversy; or

2.5.3 The judge, or a member of the judge’s family, has an economic interest in the outcome of the matter in

controversy…”.

Facts.

7. In general, I agree with the summary of the facts of this case set out at pages 1-5 of the judgment of the learned Chief Justice.

Later in this judgment I will however mention certain further facts which appear to me to have possible relevance. The salient factual

circumstances appear to me to be as follows:

(i) This litigation consisted of an allegation by the plaintiff that the defendants had acted in breach of Competition law.

There are similar proceedings against CRH called Framus Limited and others v. CRH and others [2013] IESC 23. Framus

Limited is a company controlled by a Mr. Maye who will appear later in this history. The same solicitor acts for Framus

Limited and for Goode Concrete, and for Mr. Maye personally. Goode Concrete is a significant player in the Irish Concrete

industry; CRH is a company of international significance. Both are managed by sophisticated businessmen and have full

access to legal advice.

(ii) Goode’s action came before Mr. Justice Cooke in the High Court on the 26th November, 2010. On that day the

appellant sought entry of the case into the Competition list.

Some readers will be surprised to hear that a High Court judge may have no idea what particular case is coming before

him or her on any given day or what, exactly, that case is about. The position is different in the Appellate Courts. A High

Court judge, depending on his or her particular assignment, may be aware that the case is a personal injuries case, or a

commercial case, or a family law case or a criminal case, because that is the sort of work he or she is assigned to do at

that particular time but may have no other knowledge of the nature of the case, or of its precise facts, or of individuals

involved in it. That appears to have been the position when this case came before Mr. Justice Cooke on the date

mentioned above.

(iii) On that occasion, Mr. Justice Cooke made a disclosure in the following terms in the presence of all parties:

Judge: “There is one thing I should mention, that I don’t know whether it causes a problem or not, but I have a vague

feeling that a very small number of CRH shares feature somewhere in my pension fund”.

Counsel: “I see, well I don’t know whether I should commiserate or not judge”.

Judge: “However, you’d better consider it.”

Counsel: “Absolutely. Thank you, Judge”.

(Emphasis added)

(iv) This was, obviously, a disclosure in very general terms. That is because the judge had just discovered what case he

was to deal with and had only a vague impression to go upon, which he immediately disclosed to the parties. Neither

party objected to the case going ahead before Mr. Justice Cooke, or asked, then or later, for further details to be

ascertained, though they knew the judge had only a “vague feeling” to go on, and had been advised by the judge to

consider the position about his vaguely remembered shareholding.

(v) Two years later, in circumstances which will be set out below, it became clear that in early December of the same

year (2010) the judge had acquired a further shareholding in CRH. As will become clear, this shareholding was acquired by

agents on his behalf without his knowledge. Since he did not know about it, he did not disclose it and could not have

done so. And in those circumstances, clearly, it could not have influenced him in any way. See the cases cited below, at

para. 30 and elsewhere.

(vi) The plaintiff Company, through its principal, Mr. Peter Goode, claims to have discovered this information about the

actual shareholding held by the judge only in September 2012.

(vii) In the meantime, the judge had decided three interlocutory matters relating to the case. (The case itself has still to

be heard). These interlocutory matters were:

“(a) A judgment delivered on 20 January 2011 ([2011] 1IEHC 15) and an Order made on 20 January 2011 (perfected

on 2 February 2011) whereby an application for interlocutory injunctive relief made by the appellant was refused

and an order for the costs of that application was made in favour of the respondents.

(b) A judgment delivered on 21 March 2012 ([2012] 1IEHC 116) and an Order made on 21 March 2012 (perfected on

8 May 2012) whereby applications brought by the respondents for security for costs were granted and it was

ordered that the appellant provide security to the respondents on a phased basis.

(c) A judgment delivered on 15 May 2012 ([2012] IEHC 198] and an Order made on 15 May 2012 (perfected on 17

May 2012) where the appellant was ordered to provide security for costs to the first and second respondents in the

amount of €110,000 and to the third respondent in the amount of €85,000.”

(viii) The solicitors for the appellant wrote to Mr. Justice Cooke by letter of the 16th October 2012 setting out matters

which their client claimed to have discovered only the previous month. Mr. Justice Cooke indicated that it was

inappropriate to deal with the matter in private correspondence and insisted that it should be raised in open court. The

appellant then brought a motion seeking that the learned trial judge recuse himself.

I wish strongly to endorse the judge’s action in refusing to allow this matter to be dealt with by private correspondence. I

do not know what the solicitors for the appellant can have been thinking in attempting to do so. The judge had advised

them in open court to consider the fact of his shareholding in November 2010 which should have been quite sufficient to

alert them, if they did not know already, that any matter of this sort should be ventilated in public, in open court.

(ix) When this motion came before the Court on the 13th November, 2012 Mr. Justice Cooke said:

“For 12 years prior to the end of 2008 I lived outside this country. When I retired from the European Court at the

end of 2008 my wife and I sold the house we owned in Luxembourg, and the funds of the proceeds of that,

together with other monies we had in Luxembourg, were transferred back to this country and put into the hands of

various advisers who were acting on our behalf. My return also coincided with my reaching the age of 65, so that

during 2009 I had to draw down various pension investments. These advisers were engaged throughout 2009 and

2010 in setting up the usual ARFs and PRSAs, as they are called.

When the matter came before me on the 26th November 2010 I was, of course, aware that these arrangements

were being put in place and the funds were being put into various retirement funds and investments, but I was not

following the matter on a day-to-day basis. When it came before me on the 26th November I was aware that I had

a small holding in CRH, which I had had for quite some time, and I had assumed that it had been transferred from

the holding I had in Luxembourg into the holdings here during 2009, and that was what was at the back of my mind

on the 26th November. I was not conscious of the fact that there had already been made or was about to be made

an additional purchase of shares in CRH, and your detective work has thrown up the date of the 6th December,

which is used as the basis for an insinuation that having had this case before me I then went out and bought

further shares. You will have to take my word for it, that at the time I was unaware, because that was one of what

I have now checked was 15 different investments over which the funds were spread in that latter half of 2010. It

happens that the 6th December was, as I understand it, the settlement date for that particular tranche that

appears in the books of the stockbroker’s agents. The fact remains that on the 26th November I alerted the parties

to the fact that there was, as a matter of fact, this interest in CRH shares. If anybody had had the courtesy to

come back to me at any stage I would have made the necessary inquiries if the actual numbers of shares was a

matter of concern, and I would have quite happily saved myself the task of writing three written judgments over

the next year, and arrange for the matter to be transferred to another Judge.”

8. These are the facts of the case insofar as either party has put them before the Court, or as far as the Court knows itself. They

are un-contradicted. As the judge said, in the year 2008 he left office as a judge of one of the European Courts and returned to

Ireland, where he had been appointed to the High Court. He had lived outside the country for twelve years. He sold a home he owned

abroad and put the proceeds, together with the proceeds of certain funds saved in anticipation of retirement, which he drew down,

into the hands of various advisers. Because he had reached the age of sixty-five at the time he left Luxemburg, he had to draw down

certain pension investments and advisers were engaged to set up the usual ARFs (Approved Retirement Funds) and PRSAs (Personal

Retirement Savings Accounts). The judge was not himself aware of the particular investments involved.

Very many cases of alleged objective bias feature a statement which the judge or other decision maker alleged to be affected by

objective bias makes when the grounds of the application are drawn to his attention. Mr. Justice Cooke’s statement is set at above.

In the case of a judge, such a statement is made by a person who has made the solemn judicial declaration set out in the judgment

of the Chief Justice. In Common Law countries it is usual to accept the statement of such a person where it is on its face consistent

with other known facts, and un-contradicted. This is exemplified, for example, in the case of Weatherhill v. Lloyds TSB Bank, cited

below. In my view, if the statement of Judge Cooke is accepted, as I believe a reasonable bystander would accept it, then on the

decided law on the subject of objective bias the present appeal must be dismissed.

9. When the case came before him on the 26th November, 2010 the judge was aware that he had a small holding in CRH, which he

had for a long period, and assumed that it had been transferred from the holdings he had in Luxemburg into the approved retirement

funds which he was creating. He did not know that there was to be any further purchase of shares in CRH. His retirement fund, like

most retirement funds, was spread over several different investments, to avoid the obvious risks of concentrating the whole fund in a

single investment, such as Bank shares, which would obviously be unwise.

10. It is important to recall that the judge stated:

“If anyone had had the courtesy to come back to me at any stage I would have made the necessary enquiries if the

actual number of shares was a matter of concern and I would have happily saved myself the task of writing three written

judgments over the next year, and arranged for the matter to be transferred to another judge.”

Economic or Pecuniary Interest

11. The last subparagraph, cited from the Bangalore principles above at para. 5 about economic interest, is of direct relevance in this

case. It is notable that the Bangalore Principles refer an economic interest in the outcome of the case, not simply to an interest in

one of the parties, or any more remote interest.

This is significant because it has long been held in some Common Law countries that different criteria apply to a pecuniary interest,

sometimes described as amounting to “automatic disqualification”. But that pecuniary interest must be in the outcome of the case,

and not a more general pecuniary interest. Apart from the cases cited below, one may note that in Orange Ltd. v. Director of

Telecoms [2000] 4 I.R. 159, at 186, Keane C.J. stated that the English cases:

“have proceeded on the basis that cases in which the tribunal has a pecuniary or proprietary interest in the subject

matter of the proceeding fall into a special and unique category …”.

(Emphasis added)

11. The formulation in the Bangalore Principles and in Orange is reflected in the established jurisprudence of perceived bias, both here

and in the neighbouring jurisdiction. In R. v. Gough [1993] A.C. 646 at 661, Lord Goff stated:-

“There are certain cases in which it has been considered that the circumstances are such that they must inevitably shake

public confidence in the integrity of the administration of justice if the decision is to be allowed to stand. Such cases

attract the full force of Lord Hewart C.J.’s requirement that justice must not only be done but must manifestly be seen to

be done. These cases arise where a person sitting in a judicial capacity has a pecuniary interest in the outcome of the

proceedings...”

(Emphasis added)

12. Similarly in Orange Limited v. Director of Telecoms (No.2) [2000] 4 I.R. 159 at p.252, another of the judges, Geoghegan J.

discussed apparent or objective bias in the following terms:-

“A situation of apparent bias where the adjudicator has a proprietary or some other definite personal interest in the

outcome of the proceeding, competition, or other matter on which he is adjudicating.”

13. The same principle – that the material or pecuniary interest of the adjudicator must be in the outcome of the case, rather than

simply in one of the parties more generally, is also reflected in the well known Australian case of Ebner v. Official Trustee in

Bankruptcy [2000] HCA 63; 205 C.L.R. 337, 176 ALR 644; 75 ALJR 277 (7 December 2000). There, Chief Justice Gleeson, giving the

joint decision of the majority of the court said:-

“The possible effect of the outcome of a case upon the value of assets owned by a judge may be a matter of serious

difficulty. However, in the ordinary case where a judge owned shares in a listed public company which is a party to, or

otherwise affected by litigation, and there is no other suggested form of interest or association, the question whether

there is a realistic possibility that the outcome of the litigation would affect the value of the shares will be a

useful practical method of deciding whether a fair minded observer might hold the relevant apprehension.”

(Emphasis added)

Chief Justice Gleeson also observed at para. 31, in a passage pertinent to the present case:

“In contemporary Australia, ownership of shares in a listed public company is a common form of saving and investment,

both amongst members of the community generally, and amongst judges. It is not confined to wealthy individuals. In

recent years, processes of privatisation and demutualisation of what were formerly public institutions or utilities, or mutual

societies, have resulted in a further expansion of share ownership. The nature of the association with, or interest in,

litigation, of an investor in a listed public company, may be substantially different from that of a shareholder in a private

company.”

Later in the judgment, at page 356, para. 54, Justice Gleeson said:

“we do not accept the submission that there is a separate and free-standing rule of automatic disqualification which

applies where a judge has a direct pecuniary interest, however small, in the outcome of the case over which the judge

is presiding.”

(Emphasis added)

Finally, on the following page, Chief Justice Gleeson said at para. 55:

“There is a difference between having an interest in the outcome of a case, and having an interest in a party to the

cause. … The apprehension of bias principle requires articulation of the connection between the asserted interest and the

disposition of the cause which is alleged. If, on examination, the judge does have a financial interest in the outcome of

the litigation, the application of the apprehension of bias principle will lead to the judge being disqualified. By contrast,

where, as here, it is clear that the outcome of a case would have no bearing upon the value of the shares held by the

judge in the listed public company, and there is no other suggested form of pecuniary interest involved, then the judge

does not have a direct pecuniary interest in the outcome of the litigation.”

(Emphasis added)

It, therefore, appears that there is Irish, English and Australian authority, apart altogether from the Bangalore Principles, for the

proposition that to trigger automatic disqualification for pecuniary interest, that interest must be in the outcome of the proceedings

and not, for example, merely in a shareholding in a public company. As Chief Justice Gleeson put it “There is a difference between

having an interest in the outcome of a case, and having an interest in a party to the cause”. The logical connection, if any, between

the pecuniary interest alleged and the outcome of the proceedings must be clearly demonstrated. This raises the issue of the onus of

proof, to which I now turn.

Onus of Proof and standard of proof.

14. The onus of proof in allegations of bias was addressed by the Constitutional Court of South Africa in President of the Republic of

South Africa v. South African Rugby Football Union [1999] 4 S.A. 147 at para. 48:

“The correct approach to this application for the recusal of members of this Court is objective and the onus of

establishing it rests upon the applicant. The question is whether a reasonable, objective, and informed person would

on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the

adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The

reasonableness of the apprehension must be assessed in the light of the Oath of Office taken by the judges to administer

justice without fear or favour, and their ability to carry out that oath by reason of their training and experience. It must

be assumed that they can disabuse their mind of any irrelevant personal beliefs or predispositions. They must take into

account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves.”

(Emphasis added)

In Bula v. Tara Mines Ltd. (No. 6), Denham J. affirmed the Australian approach of Webb v. The Queen [1993-1994) 181 CLR 41, and

then equated the approach of the Australian High Court to that of the Constitutional Court of South Africa in the case thus cited at

p. 440.

“I am satisfied that this is the correct approach to the law and adopt the reasoning. A similar approach was taken by the

Constitutional Court of South Africa in President of the Republic of South Africa v. South African Rugby Football

Union [cited above]. That court agreed with the test as set out by the High Court of Australia in Livesey v. New South

Wales Bar Association (1983) 151 C.L.R. 288”

(Emphasis added)

15. I wish to emphasise for a moment the last sentence of the passage cited from the South African case. A judge has a right to hear

and determine any case which comes before him. The parties have a right to have the judge do that. The judge thus also has a duty

to hear and determine a case which comes before him unless there is a substantial reason why he should not do so. There is Irish

authority for the proposition set out at the beginning of the last quoted citation, that “the onus of establishing it rests upon the

applicant”, or, in the present case, the appellant. In O’Callaghan v. Mahon [2008] 2 I.R. 541 at 552, paras. 84 and 85, s.15 of the

judgment of Denham J. (as she then was) sets out a number of questions to be asked about each of several matters alleged to

demonstrate objective bias. The learned judge then continued, at para. 85:-

“It was submitted that these are the criteria by which to determine whether there were circumstances of a reasonable

application of bias or prejudgment by the respondents. Whether the burden needs to be quite so pedantically stated and

applied, there is no doubt but that the burden rests upon the applicants to prove their case on the balance of

probabilities. They carry the onus of proof. The terms of the legal test to be applied have been stated previously.”

(Emphasis added)

In Bula Limited v. Tara Mines Limited (No. 6) [2000] 4 I.R. 412, at 509 McGuinness J. in this Court made some observations pertinent

to both the burden and the standard of proof in an application such as the present. She said:

“It should, however, be remembered that this is a case inter partes and that the right to fair procedures does not belong

solely to the applicants. The respondents, too, have a right to fair procedures. In particular in the case of the Tara

respondents (both corporate and individual) the right to finality may be very much a part of the right to fair procedures if

the test of reasonable apprehension by a reasonable person (which is the correct test) is to be applied, I consider that

it requires a strict interpretation. The apprehensions must be reasonable and realistic: over scrupulous, fanciful or

fantastic apprehension or a vague worry is not sufficient. While this is not, of course, a criminal trial, there is I think some

parallel with a standard explanation of a “reasonable doubt” contained in the judge’s charge to the jury – a fanciful

exaggerated or over scrupulous doubt is not enough.”

(Emphasis added)

16. In my view of the present case, the fact that the applicants carry the burden of proof is a most important one. Moreover, the

standard of proof is a high one. In Joyce v. Minister for Health [2004] 4 I.R. 293 at p. 302, Mr. Justice O’Neill said, at paragraph 27 of

his judgment:

“there is also in issue the principle that not only must justice be done but it must be seen to be done. I would accept, as

has been urged upon me by counsel for the defendants, that for that principle to be invoked requires a very high

threshold of proof in order to protect the proceedings of the many and varied tribunals that sit on a daily basis in this

jurisdiction from unmeritorious allegations designed to frustrate their proceedings.”

(Emphasis added)

This observation was made in the context of a case where the learned trial judge did, in fact, grant relief on the ground mentioned.

The practical effect of the remark about “a very high threshold of proof” is the same as that of McGuinness J’s observation that the

test for objective bias requires a “strict interpretation”.

Reasons for recusal.

17. Although the present case features an alleged economic interest on the part of the judge in form of a shareholding in the

defendant Company, there are of course other possible reasons for recusal which I might briefly mention for completeness. In Dublin

Wellwoman Centre Ltd. v. Ireland [1995] 1 I.L.R.M. 408, the judge was disqualified by reason of public comments she had made in

quite another context, and in the discharge of another public duty which she had been requested to undertake. (Chair of the Council

for the Status of Women).

18. In other cases a judge’s personal friendships or relationships might be thought to give rise to an appearance of bias. In the leading

English case Locabail (U.K) Ltd. v. Bayfield Properties Ltd. [2000] Q.B. 451 it was said at p. 480 that:

“[by] contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between

the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of

the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the

case…”.

19. Another leading case from the neighbouring jurisdiction seems to me to put the proper approach to allegations of bias in a

felicitous way. This is AWG Group Ltd. v. Morris [2006] 1 WLR 1163. There, under the heading “The test for apparent bias” the Court

of Appeal concluded at pp. 1166 to 1167 that:

“The test for apparent bias now settled by a series of recent decisions of this Court and of the House of Lords is that,

having ascertained all the circumstances bearing on the suggestion that the judge was (or would be) biased,

the Court must ask ‘whether those circumstances would lead a fair minded and informed observer to conclude

that there was a real possibility that the Tribunal was biased’.”

(Emphasis added)

It is this test that I propose to adopt in the present case. Before doing so, however, I wish to emphasise some major drawbacks in

concentrating exclusively on the risks of bias and failing to locate this important topic within the overarching need to have a properly

functioning system of justice, ensuring finality in the resolution of disputes. Interest republicae ut sit finis litium.

20. It is one of the great difficulties of every legal subject that law, of its nature, offers few simple black or white solutions. Even

important values can be over-emphasised and where this happens other values which are just as important, or perhaps more

important, can be unfairly and unreasonably discounted. It is important for civilised society to suppress crime and to penalise those

who perpetrate it. But if this were done (as it could be) at the price of the total elimination of all liberty and privacy, most would think

the cost too high. Certainly it would subject citizens to the total control of the State and those who are employed by it. Previous

experiments along these lines have not been encouraging.

21. Similarly, freedom of contract is an important right and has played a large role in the evolution of the modern developed economy.

It clearly requires to be fostered and protected by the law. But this value would certainly be taken too far if it meant the law could

not intervene to protect minors or persons under a disability from the consequences of their own improvidence, or to regulate

contracts made between immensely powerful interests, public or private, and ordinary individuals, perhaps of limited resources or

education.

Pitfalls.

22. So it is in the immediately relevant area of perceived bias. If the principles I have summarised above are implemented in a

consistent, reasonable and objective fashion they will protect the actual and perceived impartiality of the judiciary at little or no cost.

But if they are interpreted and applied in an oversensitive, overly technical, insecure or unrealistic way, or in unacknowledged fear of

unfounded media or other criticism, they will do great harm.

At present, judges are careful to bring any disqualifying factor, insofar as known to them, to the attention of litigants in advance.

Sometimes, of course, litigants will already be aware of such factors as in the Wellwoman case cited above. It is usual to recuse if

this is sought by either party on plausible grounds. When such recusal occurs at or before the start of a case not much cost, in

money terms or otherwise, will be involved, and normally there will be no more than a brief adjournment while another judge is found

to hear the case.

The position is quite different where the allegedly disqualifying factor is raised only after the case is started, or after the hearing has

finished, or even, as here, after judgment (on interlocutory matters) has been given. In the latter case, if a judgment is set aside on

grounds of apparent bias, and not at all on the merits of the case, then the party who has deservedly succeeded will loose the fruits

of his or her victory; will be compelled to incur further expense at the rehearing which will become necessary and will have to suffer

the hazards and uncertainties of litigation once again, perhaps with crippling effect. The final resolution of the case will be hugely

delayed.

It is therefore necessary, where a party alleges the existence of a factor giving rise to apparent bias, but alleges it only after he has

failed in the case or some part of it; and claims not to have known of it before letting the case go on, that such allegations be closely

scrutinised.

Some examples.

In O’Shea v. Butler [2015] IECA 48 the Court of Appeal (Kelly, Irvine and Mahon J.J.) had before it an appeal from the refusal of

Barrett J. in the High Court to recuse himself from hearing an application because of objective bias. The application was a routine one,

made under the provisions of s.33 of the Trustee Act, 1893. It was to give effect to orders already made by other judges. The first

defendant, who had no interest in the lands to which the order of Barrett J. related, appeared before him and raised the question of

the judge’s former employment in the IBRC. The judge made it clear that if the case involved anything pertaining to IBRC (which it did

not) he would recuse himself. Mr. Butler next alleged that a former Chief Executive of IBRC, and the plaintiff, Mr. O’Shea, had some

form of business relationship.

In those circumstances the High Court judge applied the test laid down in O’Callaghan v. Mahon, cited above. He did not believe that

any reasonable and fair minded objective observed, who was not unduly sensitive, and who knew the relevant facts, could reasonably

conclude that there was a risk that the judge would not be fair or objective. He refused to disqualify himself.

The Court of Appeal upheld this decision for the reasons set out in its judgment, which is cited above. Kelly J., speaking for a

unanimous court, went on to observe at para. 17:

“However, I cannot but note that this allegation of bias has been made, not merely against the trial judge in this matter,

but has also been made against a number of other judges, at least three, who have had previous dealings with this

protracted litigation. It is, I think, important to bear in mind some other pertinent judicial observations where allegations

of bias of this sort are made.”

Kelly J. went on to cite a number of cases, including Locabail, cited above, The South Africa Rugby Football Union case, also cited

above, JRL, Ex parte CJL [1996] 161 CLR 342, and Clenae [1999] ASCA 35. From JRL he quoted from Mason J. in the High Court of

Australia:

“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.”

From Clenae Mr. Justice Kelly quoted Callaway J.A.:

“as a general rule, it is the duty of a judicial officer to hear and determine the case allocated to him or her by his or her

head of jurisdiction. Subject to certain limited exceptions, a judge or magistrate should not accede to an unfounded

disqualification application.”

I entirely agree with these dicta of Kelly J.

The immediate topicality of those observations is shown by what happened in a different case in which Bank of Ireland were the

plaintiffs and Mr. Brian O’Donnell, Solicitor, and his wife Dr. Mary Pat O’Donnell, a psychiatrist, were the respondents. Judgment in

favour of the plaintiff was given by Mr. Justice Charlton. An application was then made to set aside the judgment on the basis of

alleged “objective bias”. This was reported in the Irish Independent on the 3rd September, 2013 under the headline “Judge’s

mortgage is dragged into couple’s fight against bankruptcy”. The defendants, now represented by Mr. O’Donnell’s brother-in-law

claimed that “someone with the judge’s name had a mortgage with Bank of Ireland”. They complained that the judge “did not reveal

that he owed money to Bank of Ireland before hearing the case”. Mr. Justice Charleton rejected any suggestion that his banking

arrangements had in any way influenced his decision and described the application as “frankly absurd”. He said he had a single

mortgage with the Bank of Ireland in relation to which he had dealt with the bank “at arms length as a matter of family commerce”.

The significance of this absurd application is that it illustrates what Mr. Justice Kelly had to say and shows that there is, in some

quarters, a willingness to use any connection at all between judge and one of the parties to set aside a judgment, even if the

judgment itself cannot be challenged on its merits. This is a serious obstacle to fair procedures for both sides of a particular

piece of litigation.

23. As I have said, it is usual for a judge to disclose any possibly disqualifying factor of which he may be aware, even partially or

imprecisely aware, before litigation begins. This is so as to avoid the unfortunate possibilities mentioned in the last paragraph.

Openness.

24. Disclosure or, as it is put in one of the leading text books, “Openness” has often defeated an allegation of bias. In Administrative

Law in Ireland, Fourth Edition, by Hogan and Morgan, it is said at para. 13-95:

“[O]penness may assist a respondent in arguing that sufficient information is available to the applicant to sustain a

defence of waiver. An indisputable form of waiver occurs where the person whose bias might have been an issue declares

openly, to the person who might be disadvantaged, the facts which might be thought to constitute bias and indicates

that s/he will, if asked to do so withdraw. Where this occurs and the applicant indicates that proceedings may go ahead,

then they have surely waived any right to object at any later stage.”

This passage appears to be based on certain dicta of McGuinness J. in Bula Ltd. and Ors. v. Tara Mines Ltd. and Ors. [2000] 4 I.R.

412 at p. 518.

Applying the test.

25. I have already set out my findings as to the facts of this case at pages 4 to 11 above, paragraphs 6 – 9. I now intend to address

the question “Whether those circumstances would lead a fair minded and informed observer to conclude that there was a real

possibility that the Tribunal was biased”.

Knowledge of disqualifying factors.

26. All judges (one hopes) have previous to their appointments been successful legal practitioners, generally self employed as such. It

is important that judges should not be less capable or less experienced than those who appear before them. Self employed

professionals would be acting very imprudently if they did not make private pension arrangements for themselves and their families. It

is not a matter of surprise to any reasonable person that a lawyer who had been a judge of the European Courts and a judge of the

High Court would possess pension arrangements appropriate to a successful professional person, albeit one that had ceased private

practice some considerable time previously.

An informed observer would equally be aware that a person reaching the statutory age (sixty-five years) would put any funds he or

she might have available into an Approved Retirement Fund or other Revenue approved pension provision.

Nor is it a matter for surprise that such a person would entrust the executory functions of setting up retirement provision to agents,

often accountants or stock brokers.

27. In Weatherill and Anor. v. Lloyds t.s. Bank [2000] WL 108 4509 [2000] C.P.L.R. 584 the English Court of Appeal had before it a

case with some similarities to this one. There, a judge of the High Court of England and Wales, Mr. Justice Wright, had been trying an

action by Mr. and Mrs. Weatherill against Lloyds Bank and had heard real evidence over twelve or thirteen days. At that stage he

discovered from a routine report from his stockbroker that he had a small shareholding in Lloyds Bank. He was unaware of this prior to

receiving the report from the stockbroker. He said that since he had not known of the shareholding it naturally had not influenced him

in any way. His shareholding was 570 of a total of 5.5 billion shares is issued.

The plaintiffs made no immediate application for a recusal when the judge disclosed this but did seek recusal some days later, while

the case was still going on. The judge refused to discharge himself and the plaintiff appealed.

The Court of Appeal held at para. 10 of their decision that:

“it will very often be appropriate to enquire whether the judge knew of the matter relied on as appearing to

undermine his impartiality, because if it is shown that he did not know of it the danger of its having influenced his

judgment is eliminated and the appearance of possible bias is dispelled.”

(Emphasis added)

28. The English Court of Appeal cited Auckland Casino Ltd. v. Casino Control Authority [1995] 1 NZLR 142, 148 where it was held in

the New Zealand Court of Appeal that if a judge were ignorant of the allegedly disqualifying interest “there would be no real danger of

bias as no-one could suppose that the judge could be unconsciously affected by that of which he knew nothing…”.

29. The English Court went on to hold at para. 11 that:

“On the basis of the facts stated by the judge, it is clear that at no material time when he held shares in the

defendant company was he aware that he did so. Moreover, having found out, he took immediate steps to sell those

shares. If he continues with the conduct of the trial, there will be no question of his holding shares in the defendant

during the remainder of it. In the circumstances it seems clear that this case, insofar as is one of apparent bias, is

covered by the passage I have read from the judgment in Lochabail.” [The effect of this was to say that there was no

automatic disqualification rule].

The judgment continued in the following paragraph:

“I would say that the reasonable bystander or onlooker would accept the judge’s statement about his knowledge

and on that basis would find no difficulty in concluding that there was no real danger that the judge had been biased or, I

should add, would be biased in continuing with the conduct of this trial.”

(Emphasis added)

There are a good many cases cited in this judgment and a great many more were mentioned to the Court on the hearing of this

appeal. But this case of Weatherhill is by far the most relevant of the cases cited because it is closest to the facts of the present

case. It featured a judge who had wholly forgotten a small shareholding (as opposed to a judge who had only a vague recollection of

it). Mr. Justice Wright disclosed the shareholding and he was reminded of it, when he was well into the hearing of the action (as

opposed to Mr. Justice Cooke who disclosed it, insofar as he remembered it, on the first occasion the case came before him). It is

authority for the proposition, which I would have thought obvious, that a judge could not be influenced in any way by something

which he did not know, or had wholly forgotten. It also offers authority for the proposition, which I strongly endorse, that the notional

reasonable bystander would accept the veracity of an uncontradicted statement by the judge, which was consistent with the known

facts.

30. In the present case there is no question of Mr. Justice Cooke continuing with the hearing of the substantive action (as there was

in the English case) because the learned judge has now retired from the Bench and in any case had already indicated his intention of

transferring the matter to another judge. Unlike the judge in Weatherhill, he had not already embarked on the hearing of the

substantive action.

31. It appears to me, therefore, that on applying the test set out above, the facts of the case establish:

(a) That the judge disclosed what he knew of his shareholding in CRH to the parties, insofar as he remembered it, when

the matter came before him, without prior notice, on the 26th November, 2010. No party objected to the matter

proceeding before him, or asked for further information, after considering the matter as the judge requested them to do.

(b) The learned trial judge did not disclose that his agents had subsequently acquired further CRH shares on his behalf

because he did not know that fact.

32. In my view those two findings are sufficient to dispose of the allegation of apparent bias. Insofar as the judge knew of the

allegedly disqualifying factor, he disclosed it. He asked the parties to consider his disclosure and, as he said, he would have

ascertained and disclosed the amount of the shareholding if anyone had thought that relevant, having considered (as the judge

asked) the disclosure he did in fact make. There was about two months to consider this before the judge made his first decision in the

case. He was unaware of the further shareholding therefore he could not have disclosed it. More importantly, by reason of his

ignorance of the further acquisition of shares could not have been, or appeared to be, biased by that circumstance.

33. Equally, like the English Court of Appeal in Weatherill, at para. 12, I consider that a reasonable bystander would accept the

judge’s statement about his own state of knowledge and would therefore conclude that there was no real danger that the judge had

been biased. This is a central aspect of the case. I do not understand why my colleagues have taken a different view on this issue.

34. I consider it significant that although the judge made three findings adverse to the appellant on the 20th January, 2011, the 21st

March, 2012 and the 15th May, 2012, no attempt was made to appeal these decisions or any one of them on the merits within

the time limited for such appeal. This appears to me to mean that even if the appellant was disappointed, it did not think the

decisions were open to any specific criticism with a reasonable prospect of success on appeal. No attempt was made to appeal any of

these decisions until after the “objective bias” point arose in circumstances which will be discussed below. In the event, this Court

extended the time to appeal on the bias ground but not in relation to any of the decisions themselves. So, if the objective bias point

is upheld, three decisions which are themselves unchallenged will fall and enormous expenses, uncertainty and delay will be incurred.

Accordingly, the decisions now sought to be set aside are decisions which were not appealed on the merits. They do not appear to

me to be open to any significant criticism and obviously the appellant company must be taken to share that view since it made no

attempt to appeal within time.

Source and timing of Plaintiff’s information.

35. It follows from the legal principles set out in the first portion of this judgment, that it was essential for the plaintiff to maintain

that it had come by the information about the judge’s shareholding only much later than the date of the original disclosure, and after

the last decision the judge had made in the case (the decision fixing the amount of the security for costs).

Obviously, a plaintiff who had this information on the date of the disclosure or before the judge’s first decision in the matter would be

taken to have waived his entitlement to rely on the allegedly disqualifying factor, or to be estopped from doing so. If it were

otherwise, then a plaintiff who had information of this kind could sit on it and do nothing until he saw whether or not he won the

case. If he did, he would do nothing; if he did not he would claim to set aside the unfavourable decision on the ground of perceived

bias. That cannot be permitted in fairness to the other side, and in the interest of the proper administration of justice.

36. In this case, the relevant information is said by the plaintiff/appellant to have come to it, through its principal, Mr. Peter Goode,

from a Mr. Seamus Maye. Mr. Maye is a director of Framus Ltd. which, together with other Companies of his, is or was at the relevant

time also engaged in similar litigation against CRH. Framus and Goode had engaged the same solicitors, those presently acting on

behalf of Goode. It is implicit in the account of events given by Mr. Goode, Mr. Maye and their solicitors that Mr. Goode and Mr. Maye

are personally acquainted.

37.The solicitors referred to, Philip Lee and Company, said in their letter to the judge of the 16th October, 2012:

“On a date in late July 2012 (which our clients Peter Goode believes to be the 27 July) Mr Goode informed Mr. Seamus

Maye, a director of Framus Limited of the contents of the disclosure that had been made by you [Mr. Justice Cooke] on

26 November 2010…

Thereafter, Mr. Maye took steps to ascertain as far as possible the nature and extent of [the judge’s] interests in the

first-named defendant. On foot of his enquiries, we are instructed that Mr. Maye was informed that, inter alia [information

to do with the judge’s shareholdings in CRH is then set out].

Mr. Maye recently made this information available to Goode Concrete.”

38. No information is given as to why Mr. Goode, in late July 2012 informed Mr. Maye of the contents of the disclosure made by the

judge almost two years earlier. Equally, no information is given as to why Mr. Maye “took steps to ascertain the nature and extent of

[the shareholding]” when Mr. Goode and his Company, it appears, had not done so. No information is offered, either, as to what Mr.

Maye said or did to get a named person to give him the information set out.

It is clear, and is in fact stated by the judge in a passage quoted earlier in this judgment, that any party with an interest in the

extent of his shareholding could have acquired all relevant information by simple enquiry in open court, instead the somewhat

contrived form of detective work which I am about to describe occurred. This may have been undertaken to obtain the information,

but also has the effect of making the details of the shareholding appear more mysterious and inaccessible than they were. This is a

false impression, deliberately contrived at.

It must also be pointed out that no such enquiries could have been made were it not for the judge’s disclosure of October, 2010.

39. Both the judge’s stockbroker and the appellant’s solicitor have put on paper what they, respectively, claim to have occurred. In

the case of the stockbrokers, Bloxhams (in official Liquidation), a letter of 26 October, 2012 from its liquidator (Mr. Kieran Wallace of

KPMG) to the judge said as follows:

“It is with much regret that details of transactions carried out on your personal account with Bloxham appear to have

been disclosed by an employee of Bloxham during the course of a telephone call with Seamus Maye…

I am informed that the caller identified himself as being a person who is assisting you with your tax returns and that the

information requested was required by him for the purpose of completing your tax return. This was manifestly dishonest

information and was provided by the caller to the Bloxham employee in question but unfortunately it appears that she

accepted the bona fides of the caller and took the explanation as to the reason why the information was sought at face

value.”

Mr. Wallace then went on to set out the information which was disclosed continued:

“As I have indicated it only subsequently transpired that the caller was in fact Mr. Maye and the employee who spoke to

him had been deceived into disclosing personal and confidential information in relation to the operation of your account.”

Mr. Maye denied what was said about him in the preceding letter. In a subsequent letter of 6 November, 2012 Philip Lee and

Company, in their capacity as solicitors acting for Mr. Maye personally, repeated this denial, and claimed that what had been said was

“grossly defamatory of our client”. The solicitors gave an alternative account as follows:

“At approximately 11.09am on the morning of 26 September 2012 Ms. Carroll [the employee of Bloxhams] telephoned Mr.

Maye, at the request of Pershing International Nominees Limited, to deal with certain queries that had been put to

Pershing by Mr. Maye earlier that morning. During the course of their conversation, Ms. Carroll disclosed information to Mr.

Maye in connection with certain CRH plc shares held by a Mr. John D. Cooke… Having made the disclosure in question, Ms.

Carroll then (and only then) asked Mr. Maye to explain the reason why he sought the information in question. In response,

Mr. Maye informed Ms. Carroll that his queries related to an ongoing court action and that he was endeavouring to

ascertain information relevant to the question of possible bias on the part of Mr. Cooke in connection with that court

action. At this point Ms. Carroll stated that the information she had provided was confidential and she proceeded to bring

the call to an end.”

40. These, obviously, are diametrically opposed accounts. The account given by Bloxhams explains the basis on which Ms. Carroll,

according to them, engaged with Mr. Maye. The account given by the solicitors, in contrast, merely obscures this question by

referring to Pershing as having requested Ms. Carroll to phone Mr. Maye. It gives no explanation of how Pershing became involved at

all; why Mr. Maye had contacted them earlier the same day; what was said to make Pershing ask Ms. Carroll (according to the

solicitors) to telephone Mr. Maye; or what was in fact said either by Pershing or by Mr. Maye to prompt an absolutely

indefensible disclosure of a client’s private information to a third party. It is obvious that something must have been said to

elicit this disclosure. The solicitors say nothing about this.

I consider that it is highly probable that Bloxham’s account of the transaction, or something along those lines, is true and highly

improbable that the account which Messrs. Lee, on their client’s instructions, set out in their letter is true. The former account

provides a specific explanation of why Ms. Carroll disclosed the information. The latter account does not. This tells its own tale.

But I do not consider it necessary to resolve this conflict other than to note that some form of duplicity must necessarily have been

involved in order to extract information which was obviously confidential to their client from Messrs. Bloxham. Messrs. Lee’s account

simply ignores this point, either because they know nothing about it or because it would undermine their clients case to say what

they know.

Significance of Judge Cooke’s Holding.

41. According to the annual report of CRH Public Limited Company, company registration number 12965, as of the end of December

2014 it had a total share equity of €6,583 million consisting of the following: issued share capital of € 254 million; shares in a shares

premium account of € 4328 million; treasury or own shares of €76 million; revaluation reserve shares of €42 million; other reserves of

€203 million and a profit and loss account of €1,782 million. Furthermore, the report states that the company has, in terms of shares,

a market capitalisation of 14.7 billion euro on the Irish Stock Exchange and 11.4 billion sterling on the London Stock exchange with

individual shares valued at 19.90 euro and 15.44 sterling respectively.

Finally, according to article 6 of its memorandum of association it has a capital of 341, 297,940 euro which consists of “150,000 5%

Cumulative Preference Shares of €1.27 each, 872,000 7% "A" Cumulative Preference Shares of €1.27 each, 1,000,000,000 Ordinary

Shares of €0.32 each and 1,000,000,000 Income Shares of €0.02 each.”

According to CRH’s website, at the 2015 AGM of CRH Public Limited Company held on the 7th May 2015; the notice document to the

AGM listed the number of shares as of the 12th of March 2015 to include: 818,565,851 ordinary shares; 818,565,851 income shares;

872,000 A 7% Cumulative Preference shares and 50,000 5% Cumulative Preference Shares.

At page 159 of the 2014 Annual Report it states there are 24, 903 ordinary shareholders globally with ownership, in denominations of

1000’s, of a total of 744,525 thousand ordinary shares including 32,198 shares in Ireland. 60.13% of shareholders own between 1 and

1000 shares.

Against that background, the Company has 76,000 members and approximately 24,000 shareholders, of which Judge Cooke was one.

The size and significance of his shareholding in terms of either the number of issued shares or their value, or of the total capitalisation

of the company, is indeed very small. It is, in fact, very similar to the judge’s shareholding in the Weatherill case.

42. No reasonable and informed person could consider that this shareholding gave the judge “an economic interest in the outcome of

the matter in controversy” (i.e. the case), as the Bangalore Principles put it. The onus of proving this is on the appellant Company,

and it has made no evidential showing whatever on the point, notwithstanding that it bears the onus of proof.

It is not suggested that the shareholding held by the judge in November 2010 is ground for disqualification; see the summary of the

appellants case at para. 14 of the judgment of the Chief Justice.

I agree with the Chief Justice that there is no automatic rule of disqualification for any financial interest, however insignificant. This

was the first ground of the appellants appeal in this case. It is, of course, quite inconsistent with its behaviour in relation to Cooke

J.’s disclosure of 26th November, 2010.

43. The judge in the present case disclosed what he knew, and cannot have been affected by what he did not know. Nor could he

have disclosed what he did not know.

44. This application is a contrived one. If Goode had won the issues which, in fact, it lost, the application would never have been

heard of. If Goode had had any real complaint about the resolution of these three issues, it would have appealed, and the fact that it

did not do so, tells its own tale. The sequence of events set out in this judgment shows that Goode was unconcerned about Cooke

J.’s 2010 disclosure. They did not then seek to disqualify the judge, or even to make further enquiries. They could have discovered

anything they wished to know by simple enquiry in open Court. Instead they resorted to the ludicrous pantomime which Mr. Maye

engaged in with the misfortunate Ms. Carroll.

45. I have the misfortune to differ from the judgment of the learned Chief Justice in this case. The respective judgments speak for

themselves and I do not intend to repeat the points I have made above or to critique anyone else’s. But I think it important to make

two very brief points. The first is that I do not think that the test for objective bias is fully expressed in the phrase “it is whether a

reasonable person in all the circumstances of the case would have a reasonable apprehension that there would not be a fair trial from

an impartial judge. This may be a shortened version of the test where it appears at para. 54 and in very similar words para 66 of the

judgment of the learned Chief Justice.

In light of this formulation I wish to emphasise that I believe the correct epitome of the modern Irish law on objective bias is as

stated by Mr. Justice Fennelly in O’Callaghan v. Mahon [2008] 2 IR 514 at 672. This is quoted at para. 4 of this judgment and I will

not repeat it here save to emphasise that the reasonable person is one who is “in possession of all the relevant facts”.

Likewise, I do not consider the statement of the responsibility of a judge contained at para. 71 of the learned Chief Justice’s judgment

represents the law as it applied in 2010 or 2012. It may well be a very wise council of prudence and it may well be entirely

appropriate for adoption in the restatement of the law relating to objective bias which I have called for in the overview to this

judgment. But I believe that Mr. Justice Cooke’s disclosure, made when the case came before him without notice in November 2010

fully complied with his obligations at that time. I would only add that if those obligations are changed to an obligation to make the

necessary enquiries as to his shareholding in advance of the case, there will have to be an end to the system, common in all the trial

courts, that a judge very frequently discovers what case is coming before him or her only when it is actually called on.

46. I would dismiss the appeals.