Burke v District Judge Terence Finn and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice John Edwards
• Judgment Date: 27 January 2009
• Neutral Citation: [2009] IEHC 37
• Docket Number: [No. 1060 JR/2008]
• Court: High Court
• Date: 27 January 2009

[2009] IEHC 37

THE HIGH COURT

[No. 1060 JR/2008]

Burke v District Judge Finn & DPP

JUDICIAL REVIEW

BETWEEN

JOHN BURKE

APPLICANT

AND

DISTRICT JUDGE TERENCE FINN

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

COURT ORDERS ACT 1926

COURT ORDERS ACT 1940

DISTRICT COURT (PERSONAL INJURIES ASSESSMENT BOARD ACT 2003) RULES 2004 SI 526/2004

COURTS

District court

Instalment order - Examination as to means - Alleged failure to deal with applicant fairly - Allegation of bias - Allegation that debtor not permitted to speak - Lay litigant - Previous dealings with litigant - Inference that admonishment given in anticipation of argument - Conduct of court - Confidence in administration of justice - Entitlement of judge to take pro-active steps - Whether refusal to entertain application from judgment debtor unjustifiable - Actual bias - Perception of bias - District Court Rules (SI 93/1997), O 53 - Leave granted (2008/1060JR- Edwards J - 27/1/2009) [2009] IEHC 37

Burke v District Judge Finn

Facts: The applicant sought leave for judicial review of an instalment order made by the first respondent for an alleged failure to deal with the applicant fairly and the existence of bias or perceived bias on the part of the first respondent. A company had obtained judgment against the applicant in the Circuit Court and the applicant failed to pay the amount and a process of execution had been commenced against him. The applicant disputed the conduct of the instalment order proceedings in the District Court where he alleged the judge had refused to listen to him.

Held by Edwards J. that a Court could not refuse absolutely to hear a party after it had given its ruling. While there was no question of actual bias arising in the case, there nevertheless was a possible perception of bias that might exist in the mind of a disinterested observer. The Court was disposed to granting the applicant leave for judicial review against the first named respondent. No case had been made out against the second named respondent. The Court made directions as to the addition of a Notice Party and costs would be reserved to the substantive hearing.

Reporter: E.F.

JUDGMENT of

Mr. Justice John Edwards

delivered on the 27th day of January, 2009

1 This matter comes before me by way of an application for leave to apply for anOrder of Certiorari by way of judicial review to quash an Instalment Order made by the first named respondent against the applicant on the 17^th of September 2008. The grounds on which this relief is sought are, in summary, an alleged failure on the part of the first named respondent to deal with the applicant fairly and the existence of bias or perceived bias on the part of the first named respondent.

2 On the 15^th day of January 2008 in proceedings commenced in the Circuit Court for the South Eastern Circuit and County of Tipperary, Record No 37/2007, a company known as Clarke Machinery Limited, being the plaintiff in those proceedings, obtained judgment against the applicant, who was the defendant in those proceedings, for the sum of €13,000 and €540 for costs, in default of the entry of an appearance by the defendant to the plaintiff's Civil Bill. That Order was not appealed.

3 The judgment debtor, namely the applicant herein, failed to pay the amount of the judgment and in consequence of that failure the judgment creditor, namely Clarke Machinery Limited, commenced a process of execution against the applicant pursuant to the Enforcement of Court Orders Acts, 1926 and 1940 and issued him with a summons pursuant to Order 53 of the District Court Rules seeking to have him examined before the District Court as to his means with a view to obtaining an Instalment Order against him.

4 The matter appears to have come on for hearing before the first named respondent on either the 16^th or 17^th of September 2008. The applicant's grounding affidavit, sworn on the 19^th of September 2008, is ambiguous as to the precise date but it was certainly one or other of the dates mentioned. At any rate, the applicant's said affidavit sets out what occurred on the occasion in question, at least in the applicant's perception, and also what occurred on a subsequent occasion a day or two later when he attempted to mention the matter to the Court again. It is appropriate that I should recite his averments in full:

5 2 "(1) I have attended Tipperary District Court on Tuesday 16^th of September 2008 in relation to a matter concerning a claim for roughly thirteen thousand euro from Clarke Machinery Co Cavan. They were represented by a Ms. Ryan Solicitor on the day.

6 (2) On the previous sitting of said Court Judge Finn had given me from the 2^nd of September 2008 to the 17^th of September 2008 to put in an appeal to the Circuit Court and to have this with me on the 17^th of September 2008.

7 (3) When the case was called he never even asked me whether I had appealed the matter or not and when I reminded him and produced it to him he looked at it but then said that my letter was not an appeal.

8 (4) He then ordered that I take the stand and said that the statement of means that I had previously given in was no good either. Ms Ryan also claimed that it was not a statement of means either but yet asked all her questions in reference to it.

9 (5) While on the stand I swore and gave documented evidence that I owed one million euro to the...