Dowling and Others v The Minister for Finance and Another
| Jurisdiction | Ireland |
| Judge | Haughton J.,Binchy J.,Pilkington J. |
| Judgment Date | 25 April 2023 |
| Neutral Citation | [2023] IECA 93 |
| Docket Number | Record Number: 2014/871, 2014/872, 2014/874 |
| Court | Court of Appeal (Ireland) |
In the Matter of Irish Life & Permament Plc and in the Matter of the Credit Institutions (Stabilisation) Act 2020, and in the Matter of an Application by the Minister for Finance for a Direction in Relation to Irish Life & Permanent Plc Pursuant to Section 9 of the Credit Institutions (Stabilisation) Act 2010 and Ancillary Orders
and
[2023] IECA 93
Haughton J.
Binchy J.
Pilkington J.
Record Number: 2014/871, 2014/872, 2014/874
High Court Record Number: 2012/116MCA
THE COURT OF APPEAL
Objective bias – Onus of proof – Recusal – Applicants seeking a declaration that members of the Court of Appeal had exhibited objective bias while adjudicating upon the proceedings – Whether the applicants had satisfied the onus of proof of objective bias
Facts: The applicants, Mr Skoczylas, Mr McGann and Mr Neugebauer, applied to the Court of Appeal by notice of motion dated 22 December 2022 seeking the following orders: (1) a declaration that the Members of the Court (Haughton, Binchy, Pilkington JJ) had exhibited objective bias while adjudicating upon the proceedings; (2) an order that said objective bias ought to be remedied by the Court in accordance with the applicable established case-law/jurisprudence, in the manner that ensures a fair conduct of the proceedings and a just adjudication upon the proceedings; (3) an order that said Members of the Court should recuse themselves from further adjudication upon the proceedings; (4) such further or other orders or directions as the Court may seem fit; and (5) an order that costs of the application be paid by the respondent, the Minister for Finance. The applicants’ contention of objective bias was centred on the fact that, notwithstanding Mr Skoczylas’ objection on which the Court ruled against him at the appeal hearing, the then Attorney General, Mr Gallagher, was allowed to appear in a personal capacity on behalf of the notice party, Permanent TSB plc, at the substantive hearing of the appeal in November 2020. The applicants contended that the Court ignored a conflict of interest constituted by Mr Gallagher “wearing two hats”, and permitting him as “an emanation of the State and its powers” to lend “the weight of his office” to representing “simultaneously distinct interests”.
Held by the Court that the applicants had failed to satisfy the onus of proof of objective bias. The Court was satisfied that the reasonable and fair-minded observer, who is not unduly sensitive, but who was in possession of all the relevant facts before and during the appeal hearing, would not have reasonably apprehended that the panel would be objectively biased. The Court therefore refused the first and second reliefs sought in the notice of motion. The Court found that it followed that the third relief sought in the notice of motion – the recusal from hearing the appeal further – must also be refused. The Court noted that Mr Gallagher was no longer Attorney General, and it was highly unlikely that he would hold that office when the remaining issues in the case came to be addressed and determined. The Court held that the suggestion that he “might” again hold that office was pure speculation of a sort that could never form the basis for recusal. The Court held that, as a matter of law, it is not the case that the Attorney General takes part in Government’s decisions on the appointment or promotion of judges, but even if he/she influences that process it could not reasonably be said that this could be a basis for recusal from hearing the balance of the appeal (assuming, as the Court had determined, that objective bias arising from past events had not been shown). The Court held that it was well-established that in those circumstances the Court had a duty to hear the balance of the appeal.
The Court decided to reserve the costs of the motion to hearing of the balance of the appeal.
Motion refused.
RULING OF THE COURT delivered on the 25th day of April 2023
. This is the Court's judgment and ruling on the application of Piotr Skoczylas, John Paul McGann, and Tibor Neugebauer (together “ the applicants”) by Notice of Motion dated 22 December 2022 seeking the following orders:
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“(1) A declaration that the Members of the Court (Haughton, Binchy, Pilkington JJ) have exhibited objective bias while adjudicating upon these proceedings; and
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(2) an order that said objective bias ought to be remedied by the Court in accordance with the applicable established case-law/jurisprudence, in the manner that ensures a fair conduct of these proceedings and a just adjudication upon these proceedings; and
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(3) an order that said Members of the Court should recuse themselves from further adjudication upon these proceedings; and
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(4) such further or other orders or directions as this Court may seem fit; and
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(5) an order that costs of this application be paid by the respondents.”
. The application is grounded on an affidavit sworn by Mr. Skoczylas on 22 December 2022, and the exhibits therein referred to. The applicants also rely on/refer to the proceedings already had in this appeal, and in particular the following:-
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• the transcripts of the substantive hearing of the appeal on 10 and 11 November 2020;
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• the substantive judgment delivered on 8 November 2022 (Haughton J., with whom Binchy and Pilkington JJ. concurred) (“ the Principal Judgment”);
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• the applicants' application by Notice of Motion dated 24 November 2022, seeking various orders by way of review of the Principal Judgment, and the affidavit grounding that motion sworn by Mr. Skoczylas on 24 November 2022 and the exhibits therein referred to (“ the Review Application”); and
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• the ruling of this Court on 13 December 2022 rejecting the Review Application (“ the December 2022 Ruling”)
. In advance of the oral hearing of this application on 22 March 2023, the applicants by email dated 17 February 2023 requested a short preliminary hearing for the purpose of persuading the Court that a different panel should hear the objective bias motion. That request was considered, and the Court declined to hold a separate preliminary hearing, notifying the applicants as follows:-
“The request for a preliminary hearing is refused. It is the general practice that where assigned judges are asked to recuse themselves the decision on such an application is for those judges to make. The motion has been case managed and the hearing date for the motion has been fixed, and your submissions are noted. The issue raised in paragraph 2 of your Submissions — that the judges concerned should not decide the motion, and hence that the court should depart from the general practice — is a matter that you are free to pursue in argument at hearing on 22 March, 2023, and is not one being decided by this refusal of a preliminary hearing.”
. At the hearing of the present motion the applicants moved their preliminary application for the motion to be heard by another panel. Having heard argument from all the parties the Court rose and on resitting delivered an ex tempore judgment (“ the Preliminary Ruling”) in which it refused the preliminary application. A transcript of the Preliminary Ruling is appended to and should be read with this judgment. The Court accordingly proceeded to hear the substance of the objective bias motion.
. This judgment should be read with/in the context of the Principal Judgment, the December 2022 Ruling, and the Preliminary Ruling.
. The Court has the benefit of written submissions from each of the applicants 1, the Respondent and Notice Party. At the hybrid hearing on 22 March 2023, the Court also heard oral submissions from Mr. Skoczylas, who attended remotely. Mr. Neugebauer, who also attended remotely, rested on his own written submissions, and adopted Mr. Skoczylas' submissions. Mr. McGann attended remotely at one point during the hearing, and the Court took into account his written submissions. Counsel for the Respondent (Mr. McCullough S.C.) and the Notice Party (Ms. Geoghegan B.L.) also addressed the Court.
. At the outset it is important to note what issues are left in this appeal, following the Principal Judgment. What remains to be heard and determined are:-
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(i) the appellants' appeal against the costs orders made by Peart J. in the High Court,
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(ii) the costs of the appeal, and
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(iii) a stay (sought as part of the Review Application and currently standing adjourned before this Court).
. The applicants' contention of objective bias is centred on the fact that, notwithstanding Mr. Skoczylas' objection on which the Court ruled against him at the appeal hearing, the then Attorney General was allowed to appear in a personal capacity on behalf of the Notice Party at the substantive hearing of the appeal in November 2020. The core assertion, as appears from the heading to para. 8 of Mr. Skoczylas' grounding affidavit, is that:-
“…the Members of the Court (Haughton, Binchy, Pilkington JJ) exhibited objective bias by ignoring a manifest conflict of interest that the Court had vis-à-vis the Attorney General, who represented in his alleged “personal capacity” ILP against the Appellants who are the ILPGH shareholders (where ILPGH is a 100% and the only shareholder in ILP) while at the same time the Attorney General was representing in
his official capacity the Minister for Finance who had been sued by the ILPGH shareholders herein, before Judges whose careers were subject to the Attorney's General [sic] subsequent decisions.”
. The Attorney General referred to is Paul Gallagher S.C., who served as Attorney General from 27 June 2020 to 17 December 2022 2....
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