High Court allows judicial review to strike out judge as respondent but declares judge entitled to list cases.

[2017] IEHC 10

THE HIGH COURT

JUDICIAL REVIEW

[2016 No. 929 J.R.]

BETWEEN

E.S.

APPLICANT

AND

HIS HONOUR JUDGE THOMAS TEEHAN

RESPONDANT

AND

M.S.

NOTICE PARTY

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 19th day of January, 2017

1. The present judicial review arises from family law proceedings between the applicant and the notice party, which His Honour Judge

Teehan has been dealing with on numerous occasions over a prolonged period of time and with which he is very familiar. Mr. Colman

Fitzgerald S.C. for the applicant submits that the family law proceedings were not live as of mid-2016, but in a sense one cannot say

that about family proceedings where there is an issue of the welfare of a child involved, which have an inherent ongoing nature as

distinct from normal inter partes litigation.

2. Mr. S., for whom Ms. Mary O’Dwyer B.L. appears, had issued a motion for attachment and committal of the applicant, which had at

an earlier point been adjourned generally with liberty to re-enter. On 28th April, 2016, the learned judge wrote to the Circuit Court

office in Clonmel indicating a wish to re-enter the matter and that the parties should be notified. On 26th July, 2016, he adjourned

the matter to November, 2016. I am told that Ms. S. says that she applied to have the judge recuse himself at that point.

3. On 3rd November, 2016, the judge heard from Mr. S. having invited him to give evidence and I am told that the learned judge said

that he was not going to make his mind up in relation to attachment and committal because he had not heard from Ms. S. but that

there is a risk that she could be spending Christmas in prison. This was said in the context where there was not at that time an

application by Mr. S. to re-enter the attachment and committal matter. The learned judge then adjourned the matter to 9th

December, 2016.

4. On 7th December, 2016, Ms. S. applied for leave to seek judicial review. I granted a stay at that point of a temporary nature and

directed that the application be made on notice, and then ultimately that it be dealt with by way of a telescoped hearing. As of the

date of the hearing before me, no order had been made against Ms. S. in terms of attachment and committal and it is not clear that

there is a definite intention or anything like it on the part of the learned judge to actually make such an order but Ms. S. apprehends

that there is a risk in that regard.

5. I gave an ex tempore decision on this application on 19th December, 2016, and I now take the opportunity to set out reasons

more formally.

6. The applicant’s statement of grounds seeks an order of prohibition restraining the further hearing by Judge Teehan of the

substantive family law proceedings and in particular prohibiting him from continuing to hear any attachment and committal matter

(relief d(i)). Interlocutory relief, further and other relief and a recommendation under the custody issues scheme are also sought. Mr.

Fitzgerald has helpfully organised his submission under essentially three headings which, together with a preliminary objection of delay

from Mr. S., I can address as follows.

Preliminary objection of delay

7. The first issue is delay. Mr. S. complains that many of the matters of which complaint is made arise out of a letter of the learned

judge of 28th April, 2016, and that this application should have been brought within three months of that date. While there does seem

to have been delay on the part of the applicant I am reluctant in the circumstances to regard the application as being out of time on

that basis. The situation has to some extent been evolving since the 28th April, 2016, and I do not consider that it would be fair to

the applicant to regard her as disentitled for making a complaint on the basis that she did not act within three months of that date.

Whether the contempt issue can be re-entered without an application by the moving party

8. The second issue is whether the learned judge could re-enter the attachment and committal (which had been adjourned generally)

by way of his own motion either (a) without an application by the notice party or (b) without advance warning and notice to Ms. S. It

seems to me that the situation is analogous to that discussed by the Court of Appeal of England and Wales in Al-Medenni v. Mars UK

Limited [2005] EWCA (Civil) 1041 in particular per Dyson L.J. at para. 21: “The judge can invite, and even encourage, the parties to

recast or modify the issues. But if they refuse to do so, the judge must respect that decision.” This is in the context of amendment

but the same principle applies by analogy to other steps that are open to a party such as whether to bring, or re-enter, an

application. In such a situation, the judge can invite and even encourage the parties to make a particular point but if they refuse to

do so the judge must respect that decision. One consequence may be that the judge is compelled to reject a claim on the basis on

which it is advanced although he or she is of the opinion that it would have succeeded if it had been advanced on a different basis.

But there is nothing wrong with the court drawing the point to the parties’ attention in the first place. In T.D. v. Minister for Justice

Equality and Law Reform [2014] IESC 29 the Supreme Court noted without any apparent disapproval the fact that Hogan J. had of his

own motion taken a point as to the validity of a statutory provision in that case. In J.K. (Uganda) v. Minister for Justice and Equality

[2011] IEHC 473 Hogan J. also took an important point of his own motion after having reserved judgment and reconvened the hearing

of his motion to apply further submissions.

9. The approach that arises from those authorities is that a court can raise an issue of its own motion if it considers it to be relevant,

it can reconvene a hearing of its own motion to draw that issue to the attention of the parties but if neither party wants to adopt

and run with that issue, then the court should let matters rest at that point absent limited circumstances such as an autonomous

duty on the court. It seems to me that the correct procedure if Mr. S. wanted to re-enter his attachment and committal matter

would be, as Mr. Fitzgerald submits, to make an application under O. 59 r. 4(26) to re-enter the matter and then, if it is re-entered,

to apply for relief by way of attachment and committal as appropriate. That is quite separate from the entitlement of the court to list

proceedings (as opposed to re-entering a contempt motion which has been adjourned generally) of its own motion. The proceedings

are certainly capable of being relisted at the instance of the learned judge and I would not accept that this matter was not live as

there is a child welfare issue involved which means it is ongoing in the way that other proceedings are not. Upon such re-listing the

court can discuss with counsel whether Mr. S. wishes to re-enter his contempt motion or not.

Whether a fresh application for attachment and committal is required

10. The third issue is whether an attachment and committal can be dealt with in the manner apparently involved here, namely by

possible re-entry. Mr. Fitzgerald submits what is being done is effectively an application ab initio which should be served afresh with a

new penal endorsement. I would not accept that as being a correct characterisation of what is potentially before the Circuit Court.

There was a motion which was presumably served in an appropriate manner, although if there is an issue about that that can be

ventilated to the Circuit Court. That has been adjourned generally with liberty to re-enter so therefore that motion can be re-

entered. If it is not re-entered there is nothing before the Circuit Court by way of attachment and committal. If it is re-entered, then

what is re-entered is the previous motion and not some sort of ab initio matter. It seems to me there is no requirement for some

further service of any order with a new penal endorsement, assuming that such service was already effected prior to the motion for

attachment and committal. If it was not done then that is a different situation but if it was done it does not need to be done again.

Whether there is objective bias

11. The fourth issue is the question of whether there is objective bias. Mr. Fitzgerald submits that, if one takes the totality of the

actions of the Circuit Court judge, an objective observer could have an apprehension of objective bias. Mr. Fitzgerald in this regard

refers to the letter of 28th April, 2016, the fact of re-listing on the judge’s own motion, what was said in November (particularly the

reference to risk of Christmas in prison), the judge’s opinion that the applicant was in contravention of the order and his action in

calling and inviting Mr. S. to give evidence.

12. In D.D. v. Gibbons [2006] 3 I.R. 17 it is clear that making an earlier adverse decision against an applicant is not in and of itself

objective bias and indeed the Supreme Court has confirmed this more. Merely having made a decision on a point adverse to the

position that a particular party is seeking to make does not constitute bias: “It must be clearly understood that one adverse ruling,

or even a series of adverse rulings, by a court is not, without significantly more, to be regarded as grounds for claiming either

subjective or objective bias” Tracey v. Burton [2016] IESC 16 (Unreported, Supreme Court, 25th April, 2016) per MacMenamin J.

(Denham C.J. and Charleton J. concurring) at para. 45.

13. It may be that, as Ms. O’Dwyer submits, things were not going the applicant’s way but that, as she correctly suggests, is not

basis for a party to apprehend a risk of objective bias. A.P. v. McDonagh [2009] IEHC 316 dealt with a situation of premature

judgment where a court formed a view on the ultimate issue in the application prior to the appropriate time for that matter to be

determined. The question in this case is whether the judge, on the view of the circumstances in their context, formed a premature

view or on the other hand whether a proper view of his position was that in accordance with the requirements of natural justice he

was putting the applicant on notice of a risk of an attachment and committal process being put in motion against her.

14. It seems to me that the question informing her of a risk of spending Christmas in prison has to be viewed in all the circumstances

as a statement to put her on notice of the possibility of that mechanism being triggered. It seems to me that there is a potential

obligation on the court, in certain circumstances, where the personal liberty of a party could be an issue, to ensure that the party is

aware that there is such a risk (unless it is obvious that they are already so aware) in order to enable them to address such risk,

ideally on legal advice, and thereby obviate the risk by doing whatever is necessary, if anything is in fact necessary. I consider that

an objective observer would read the reference to a risk of Christmas in prison as being no more than a risk and simply as putting the

applicant on notice that there was that risk there. This is something that is done in the interest of natural justice and not by way of

pre-judgment or premature judgment. In Garda Commissioner v. Penfield Enterprises Limited [2016] IECA 141 the Court of Appeal

dealt with a situation where the court had made adverse findings in relation to a party in proceedings in which that party was not

involved. It seems to me that that does not seem to really relate to the situation that is presented here.

15. The important thing here is to put the actions and statements of the learned Circuit Court judge in their context. Starting with

the letter sent to the Circuit Court office, he says that the case had been on his mind, which in my view is a very proper and

legitimate thing and speaks to the dedication and seriousness with which the learned judge approached his task and not remotely to

any question of bias. A judge is entitled to reflect on his or her potential decisions and on the progress of litigation in between

mention dates. Further judicial thought and reflection before a final decision should be encouraged rather than the opposite (see

recent comments of the U.S. Supreme Court in White v. Wheeler (2015) 577 U.S. slip op. at p. 8, per curiam).

16. There is certainly a lot to be said for a judge giving thought to cases between mention dates, and if the case is on the court’s

mind and the court considers that the matter should be re-entered, there is nothing objectively biased about that. The thing that

stands out most from the letter and indeed all the actions of the learned Circuit Court judge is the priority he is seeking to afford to

the interests of the child. That is something for which a court has to have an autonomous concern by virtue of Article 42A of the

Constitution. The Supreme Court in Sivsivadze v. Minister for Justice [2015] 2 I.L.R.M. 73 indicated that the welfare of a child was an

objective interest which the court had to have regard to even independently of the behaviour of the parties.

17. In the letter he does acknowledge the position of the applicant. He acknowledges that there had been compliance with the

orders, he acknowledges that maybe there has been an improvement since the case was before him, and he acknowledges that the

matter may be dealt with in mere moments if that is the case. He says that he is taking at face value what he was told at the

previous court hearing that the applicant has been attempting to persuade the child towards a more positive approach. He says his

primary concern is not for the position of either party but for the welfare of the child. That is not an indication of bias.

18. “Democracy must, indeed, fail unless our courts try cases fairly, and there can be no fair trial before a judge lacking in

impartiality and disinterestedness. If, however, "bias" and "partiality" be defined to mean the total absence of preconceptions in the

mind of the judge, then no one has ever had a fair trial and no one ever will”: per Frank J. in In re J. P. Linahan 138 F.2d 650 (2d Cir.

1943). The court certainly is entitled to have views at a level of generality such as the kind that might be said to arise from this

letter such as a concern about what amounts to possible parental alienation. But those concerns at a broad level are always to be

taken to be either explicitly or implicitly subject to hearing argument, hearing evidence and hearing counsel and one cannot

necessarily conclude from a view of that nature to a conclusion holding that objective or subjective bias exists. This is particularly so

here when one puts the letter together with the comments in November and the other actions of the learned judge in the overall

context; the context particularly being his entitlement to relist the matter, his primary and autonomous concern for the welfare of the

child, his having dealt with the matter over a long period of time on numerous occasions, his familiarity with the case and his

concessions in favour of the applicant. Having regard to all those circumstances it seems to me that the matters complained of do

not give rise to a risk of objective bias and do not amount to conduct such as would prevent him from dealing further with the matter

subject to the point I made earlier, which is that the learned judge would not be entitled to make any orders in relation to attachment

and committal unless there is an application by Mr. S. to re-enter his motion. Crucially, even if (which I do not, as explained, accept)

the acts and comments of the learned judge did amount to the expression of a view adverse to the applicant, it was not the

objectively biased view expressed prior to the appropriate time, as discussed in A.P. Rather it was, on that hypothesis, the view of a

judge who had been dealing with the matter over a period of time and had already heard substantially from all of the parties. It was in

that light a view generated in an impartial and objective context of knowledge of the case and not a biased view of prejudgment. It

remained a view subject to hearing any further submission and argument. If such a view is disqualifying, that would be to put a

premium on a passive approach which would do little justice to the objective interests involved, particularly where the court is

required to give effect to the rights of the child under Article 42A of the Constitution.

Order

19. It does not seem to me that the learned judge did go beyond the appropriate boundaries in that regard but to clarify matters for

the benefit of all the parties and hopefully to assist the resolution of this matter overall in the interests of the welfare of the child at

the earliest possible opportunity in the context of whatever further hearing takes place in the Circuit Court. I think it is appropriate to

set out the position clearly by way of a declaration.

20. The appropriate order is therefore as follows:

a. that the learned judge be struck out as a respondent under O. 84 as amended by the Rules of the Superior Courts

(Judicial Review) 2015 and that the notice party be substituted as the respondent;

b. that under the heading of the further and other relief sought, there be a declaration that the learned Circuit Court

Judge is entitled to list the family law proceedings of his own motion but is not entitled to make an order by way of

attachment and committal in respect of civil contempt against the applicant unless there is an application by Mr. S. to re-

enter the attachment and committal motion and unless liberty to re-enter is granted (or unless Mr. S brings a new motion)

c. that the relief at para (i) be refused.

21. I would finally emphasise that at the centre of this case is a sixteen year old child whose welfare has to be at the forefront of

concern of all persons involved with this matter. It was certainly to the forefront of the mind of the learned Circuit Court Judge and

he has to be commended for that and not discouraged from maintaining that position.