Kelly v National University of Ireland & Director of the Equality Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 09 May 2012
• Neutral Citation: [2012] IEHC 169
• Court: High Court
• Date: 09 May 2012

[2012] IEHC 169

THE HIGH COURT

[No. 52 CA/2007]

Kelly v National University of Ireland Dublin & Director of the Equality Authority

JUDICIAL REVIEW

BETWEEN

PATRICK KELLY

PLAINTIFF

V.

NATIONAL UNIVERSITY OF IRELAND, DUBLIN

DEFENDANT

-AND-

THE DIRECTOR OF THE EQUALITY AUTHORITY

NOTICE PARTY

EC TREATY ART 234

R v SUSSEX JUSTICES, EX PARTE MCCARTHY 1924 1 KB 256

DUBLIN WELLWOMAN CENTRE LTD & ORS v IRELAND & ORS 1995 1 ILRM 408

I (EP) & ORS v MIN FOR JUSTICE 2009 2 IR 254 2008/29/6430 2008 IEHC 432

EEC DIR 97/80 ART 4(1)

EEC DIR 97/80 RECITAL 13

EEC DIR 76/207 ART 4

EEC DIR 2002/73 ART 1(3)

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267

RIORDAN v AN TAOISEACH (NO 4) 2001 3 IR 365

EQUAL STATUS ACT 2000 S3(1)(A)

EQUAL STATUS ACT 2000 S3(2)(A)

EC TREATY ART 234(1)

EC TREATY ART 234(3)

GREPE v LOAM 1887 37 CH D 168

PRACTICE AND PROCEDURE

Judiciary

Recusal - Bias - Test to be applied - Whether previous criticism of plaintiff by judge gave rise to reasonable apprehension of objective bias - Equality - Discrimination - Disclosure - Reference to European Court of Justice - Application of ruling of European Court of Justice - Whether refusal of disclosure by Irish courts could compromise objective of Directive - Whether provisional decision of High Court affected by ruling - Whether provisional ruling balanced confidentiality with plaintiff's right to disclosure - Access to courts - Isaac Wunder order - Test to be applied - Nature of proceedings - Manner in which proceedings conducted - Whether proceedings were abuse of process - Whether court time wasted - Whether plaintiff's undertaking to refrain from further interlocutory applications should be accepted in lieu of making Isaac Wunder order - R v Sussex Justice ex p McCarthy [1924] 1 KB 256 approved - Dublin Wellwoman Centre Ltd v Ireland [1995] 1 ILRM 408 and Kenny v Trinity College Dublin [2007] IESC 42, [2008] 2 IR 40 applied - EPI v Minister for Justice [2008] IEHC 432, [2009] 2 IR 254 and Bane v Garda Representative Association [1997] 2 IR 449 followed - Riordan v Ireland (No 4) [2001] 3 IR 365 considered - Council Directive 97/80/EEC - Relief refused (2007/52CA - Hedigan J - 9/5/2012) [2012] IEHC 169

Kelly v National University of Ireland, Dublin

Facts The plaintiff maintained that whilst applying for a place on a course on UCD he had been the victim of discrimination on the grounds of gender and as a result he was not offered a place on a course in question. The plaintiff contended that he was more qualified than the least qualified female applicant for the course and instituted proceedings. Arising from previous litigation connected with the case, the plaintiff sought an order of recusal against the current presiding judge on the basis that he had displayed bias towards the plaintiff. Secondly the plaintiff sought to raise the issue of applying the Article 234 ruling of the European Court of Justice to the facts of the plaintiff's case. It was contended that Council Directive 97/80 must be interpreted as entitling the applicant to information held by the course provider on the qualifications of the other applicants for the course in question. In addition it also fell to be considered by the court as whether it was appropriate for the court to make some form of restrictive order against the plaintiff.

Held by Hedigan J in making the following orders: A reasonable observer would be outraged by the abusive material placed on the internet by the plaintiff concerning the judge who had given a decision unfavourable to him. Judges should not lightly recuse themselves of their responsibility to hear cases. The applicant had not advanced grounds capable of supporting the proposition that a reasonable man would have an apprehension that there would not be a fair hearing. Article 4 of Directive 76/207 or Article 1(3) of Directive 2002/73 did not support the contention that an applicant for vocational training was entitled to access to information concerning the qualifications of other applicants. The right of the course applicants to confidentiality outweighed the plaintiff”s right to disclosure of the documents in unredacted form. The plaintiff had a pattern of continual application to the courts which had served to prolong his proceedings. There were grounds upon which the court would be justified in making a restraining order. However the court would accept a voluntary undertaking by the plaintiff not to bring any further interlocutory applications.

1 Judgment of Mr. Justice Hedigan delivered the 9th day of May 2012

2 1. There are three matters before the Court. The first matter is the plaintiff's application for recusal. The second is the substantive issue of applying the Article 234 ruling of the European Court of Justice to the facts of the plaintiff's case. The third matter to be dealt with is whether given the history of these proceedings it is now appropriate for the Court to make some form of restrictive order against the plaintiff. I will deal with each of these matters in order.

Application for Recusal

3 2. The plaintiff's interlocutory application for an order that I should recuse myself is based on an affidavit dated the 2 ^nd April, 2012. The plaintiff maintains that he has an apprehension of bias on my part. The plaintiff points out that in a previous judgment which I delivered on the 30 ^th March, 2012, I stated as follows:-

"I note that this complaint were it to be brought in the course of normal legal proceedings, would be quite likely challenged on the basis that it is moot…The waste of public money expended upon this all but pointless set of proceedings is also scandalous."

4 The plaintiff also points out that when I heard this case on the 16 ^th March, 2012, I criticized the plaintiff. I compared his actions in putting material online which was scandalously abusive of Mr. Justice Kechnie, to those of a "petulant child". The plaintiff submits that as a result of these findings of the court and the criticism from the bench there are substantial grounds for questioning my impartiality in this matter and I should recuse myself.

5 3. The fundamental principle underlying the consideration of a request for recusal was set out by Lord Hewart C.J. in R v. Sussex Justices ex parte McCarthy [1924] 1 K.B. 256, at p. 259:-

"It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done"

6 On the subject of that fundamental principle in Dublin Wellwoman Centre Ltd & Ors v. Ireland & Ors [1995] 1 I.L.R.M. 408, Denham J. (as she then was) in the Supreme Court held:-

"The concept of the perception of the administration of justice, as well as the content of justice, is as important today, as in years gone by. The statement of Lord Hewart C.J. is as relevant today as when it was made in 1923. With the development of the modern communications media and an increasingly educated and enquiring society the public perception of the impartiality of the courts is a cornerstone of the administration of justice in our constitutional democracy."

7 Denham J. went on to state as follows at p.408:-

"The concept of bias developed through cases considering material interest. It also arose in cases on prejudgment, prior involvement, and personal attitudes and beliefs. There are two fundamental streams of thought within this wider concept. Firstly, that there should be no actual bias i.e. a subjective test. And secondly, that there should be no reasonable apprehension that there is bias, i.e. the objective test. Both of these streams of thought are equally important in the broad river of justice."

8 The applicant submits that there exists a real possibility of objective bias. The test for objective bias was outlined by this court in the case EPI v. The Minister for Justice, Equality and Law Reform [2008] IEHC 432 as follows:-

9 "Subjective bias is often also referred to as "actual" bias. In this case, no suggestion was made of actual or subjective bias on the part of the Court with respect to the question at issue. What is in issue is the matter of reasonably apprehended bias i.e. objective bias. That being so, in the words of Denham J. in Dublin Wellwoman Ltd. "[t]he apprehension of the reasonable person in the position of the [applicants] is what has to be considered." The test that is to be applied in respect of objective bias was expounded in Bane v. Garda RepresentativeAssociation [1997] 2 I.R. 449. In that case, Kelly J. cited the judgment of Finlay C.J. in O'Neill v. Beaumont Hospital Board [1990] I.L.R.M. 419 and concluded thus:-"

"I must therefore ask myself whether a reasonable man would, in the circumstances outlined here, have a reasonable fear that the Applicants would not have a fair and independent hearing of the issues which arose."

10 Addressing the qualities of the "reasonable man", Fennelly J. stated in Kenny v. Trinity College & Dublin City Council [2007] IESC 42 as follows:-

"The hypothetical reasonable person is an independent observer, who is not over-sensitive, and who has knowledge of the facts. He would know both those which tended in favour and against the possible apprehension of a risk of bias. […] the hypothetical independent reasonable observer would also know the substance and tenor of the allegation made in the proceedings."

11 Applying that test to the present case, it seems to me that the reasonable observer would be outraged by the abusive material placed on the internet by the plaintiff concerning the judge who had given a decision unfavourable to him, and would very likely be of the view that the Court did not go nearly far enough in comparing his actions to those of a petulant child. The applicant is not the first party to be rebuked...