Kelly v Murphy and Another (No. 2)
| Jurisdiction | Ireland |
| Judge | Mr. Justice Brian O'Moore |
| Judgment Date | 17 July 2020 |
| Neutral Citation | [2020] IEHC 352 |
| Date | 17 July 2020 |
| Docket Number | [2019/465 COS] |
| Court | High Court |
IN THE MATTER OF KELLY TRUCKS LIMITED (IN VOLUNTARY LIQUIDATION)
AND
(NO. 2 RECUSAL APPLICATION)
[2020] IEHC 352
Brian O'Moore J.
[2019/465 COS]
THE HIGH COURT
Recusal – Injunction – Jurisprudence – Applicant seeking the recusal of the High Court judge – Whether the requirements of the jurisprudence were made out
Facts: The applicant, Ms Kelly, on the 25th of February 2020, moved an application seeking certain reliefs, including an injunction restraining the presentation of a petition to wind up Kelly Trucks Strokestown DAC. She also sought orders setting aside orders of the High Court, going back to 2014 and 2015, on the grounds that those orders had been procured by fraud (including the alleged dishonesty of one of the judges involved). O’Moore J refused all reliefs sought in the motion in an ex tempore judgment delivered at 2 pm on the 27th of February; that judgment had also been delivered electronically. As soon as O’Moore J had concluded delivering his decision on the injunction application, Ms Kelly informed him that she had brought an application that he recuse himself from any further involvement in the proceedings (by which he understood her to mean the proceedings in which the injunction application was brought and the petition to wind up Kelly Trucks Strokestown Ltd). O’Moore J delivered an ex tempore ruling on the application at 5 pm on the same day. He informed the parties that he would produce a written judgment in respect of the injunction application and the recusal application. There was no objection to this being done.
Held by O’Moore J that, having taken into account the legal principles set out in in Goode Concrete v CRH Plc. & Ors. [2015] IESC 70 and O’Callaghan v Mahon [2008] 2 I.R. 514, and for the reasons he had described in going through the complaints of Ms Kelly as set out exhaustively in her affidavit, he simply did not see that the requirements of the jurisprudence were made out and that he should in those circumstances recuse himself.
O’Moore J held that he would refuse the application.
Application refused.
On the 25th of February 2020 Ms. Anne Kelly moved an application seeking certain reliefs, including an injunction restraining the presentation of a Petition to wind up Kelly Trucks Strokestown DAC. She also sought orders setting aside Orders of this Court, going back to 2014 and 2015, on the grounds that these Orders had been procured by fraud (including the alleged dishonesty of one of the judges involved). I refused all reliefs sought in this motion in an ex tempore judgment delivered at 2 pm on the 27th of February; that judgment has also been delivered electronically.
As soon as I had concluded delivering my decision on the injunction application (as I will describe it), Ms. Kelly informed me that she had brought an application that I recuse myself from any further involvement in these proceedings (by which I understood her to mean the proceedings in which the injunction application was brought and the Petition to wind up Kelly Trucks Strokestown Limited). I delivered an ex tempore ruling on this application at 5 pm on the same day. I informed the parties that I would produce a written judgment in respect of the injunction application and the recusal application. There was no objection to this being done. What follows is my written judgment on the recusal application. While I have tidied up a certain amount of the text of the decision which I had originally made, this judgment bears a lot of the hallmarks of an ex tempore ruling.
This is my ruling on the application made that I would recuse myself from the hearing of proceedings on a number of grounds which are set out in an affidavit of Ms. Anne Kelly. I intend to deal with each ground set out in that affidavit. It constitutes the evidence upon which reliance is placed for the purpose of seeking my recusal. I will, before I look at that affidavit, make a couple of general comments about this application.
Firstly, the affidavit was sworn, and as I understand it, a motion was filed in the central office and issued and provided with a return date before I delivered my judgment in the injunction application brought by Ms. Kelly (which also involved an application to set aside certain orders of Baker J. and Murphy J.). When I asked Ms. Kelly about the timing of this recusal motion, when this application was made known to me, she refused to answer my questions on a number of occasions which is somewhat surprising. However, the uncontradicted facts now are that this application was filed and the affidavit sworn objecting to my continued involvement in the proceedings before I had delivered the judgment. As a matter of common sense and basic logic, if it was felt that there was any merit in the application that I recuse myself, it would certainly have been brought to my attention before I had delivered judgment, which is possibly the most important single step that I have to take in the ongoing proceedings involving these parties. That was not done. The reason given by Ms. Kelly as to why it was not done is that she had been chastised in the past for seeking to reopen matters when judgment was about to be delivered or to argue matters when judgment was about to be delivered; I am unclear as to which of those circumstances are said to be relevant here. Ms. Kelly has shown herself a redoubtable advocate and somebody who is able to look after her own interest. If she truly thought that there was merit in the application to recuse me she would have brought it to my attention and ask that I not deliver judgment. I find the reasons she has given for not doing so somewhat underwhelming.
In addition to that, it is notable (and this is the second general point I make) that Ms. Kelly does not rely in any way shape or form on any aspect of my judgment to seek my recusal notwithstanding that the judgment was delivered very shortly before she informed me of this application. When I invited her to make the application for recusal she did not seek an adjournment to allow herself to consider the contents of my judgment, she did not ask that the original return date be honoured and instead she was quite prepared without any let or hinderance to move the application. It follows therefore that the following surprising aspects exist in this application.
Firstly, that the reason agitated for the application that I recuse myself did not in fact sufficiently persuade Ms. Kelly to actually seek my recusal before I delivered judgment. Secondly, the contents of my judgment have not given rise to any issue as far as Ms. Kelly is concerned, other than she disagrees with them; that in itself is no reason to seek my recusal from ongoing involvement in these proceedings.
I now turn to the affidavit sworn by Ms. Kelly and I am going to go through it in some detail. I will shortly come to the law on the matter. No law was opened to me by Ms. Kelly or indeed by Mr. Healy (who appears for the Petitioner) on this topic.
The first reason why my recusal is sought is set out at paragraph one of the affidavit. It is five lines from the bottom and it reads as follows:-
“I do not accept that Mr. Justice O'Moore did not understand and therefore know and see the fraud/illegality which I placed before him.”
That again is at odds with an oral submission made by Ms. Kelly that I did not understand the case made by her at the conclusion of the injunction application on Tuesday 25th February. Having had time to reflect on that and having sworn a solemn affidavit she in fact avers to a view that I did understand the case that she was making and the fraud/illegality which she placed before me. She goes on to say at the end of paragraph one of the affidavit:-
“That she expects me to act on it regardless of the herein as he is legally required to do so and I will rely upon the hearing, inter alia, to revisit Mr. Justice O'Moore's part in this debacle.”
When asked about that Ms. Kelly indicated that she intended to appeal the decision of the court, as is her entitlement. However an intention to appeal a decision is no reason to seek the recusal of the judge in terms of an ongoing involvement in a case. Such ongoing involvement happens frequently. It may well be that a judge has dealt with a discovery application in a matter and has then decided against a party who then appeals that decision; that does not in itself justify the recusal of the judge from, for example, conducting the trial in the same set of proceedings.
The second reason given by Ms. Kelly is in the second paragraph. She says:-
“I similarly seek an order whereby Mr. Justice O'Moore will recuse himself from the herein proceedings on the grounds that he has displayed unwarranted and unexplainable and unjust bias and prejudice, and lack of impartiality towards the applicant, and an utter lack of due regard for the proper practices and procedures of the High Court/Superior Courts.”
It has to be said, no rule of court is referred to in Ms. Kelly's affidavit as I read it or no oral submission sets out the rules that I am supposed to have disregarded. The claim is made of unjust bias and prejudice, I would have thought that any bias and prejudice would be unjust, but in any event I will treat this in large measure (but not exclusively) as an application for recusal on the grounds a bias and prejudice. There are other elements to it which I will deal with in due course.
The reason why that allegation of bias and prejudice is made is set out in the balance of the sentence. It is stated:-
“[B]y facilitating and permitting the first respondent and his counsel in to introduce and rely upon pleading, ...
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