Kelly v University College Dublin

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Donnell
• Judgment Date: 12 February 2025
• Neutral Citation: [2025] IESC 6
• Docket Number: S:AP:IE:2023:000102
• Court: Supreme Court

Between/

Patrick Kelly

Appellant/Plaintiff

and

University College Dublin, National University of Ireland Dublin

Respondent/Defendant

and

The Law Society of Ireland, and The General Council of the Bar of Ireland

Amici Curiae

[2025] IESC 6

O'Donnell C.J.

Charleton J.

O'Malley J.

Collins J.

Donnelly J.

S:AP:IE:2023:000102

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Judgment of Mr. Justice O'Donnell, Chief Justice delivered on the 12 ^th day of February, 2025.

1 . A hearing and decision before an impartial tribunal is not simply the personal entitlement of the parties. It is a basic, perhaps the basic, requirement of the administration of justice guaranteed to citizens by Article 34 of the Constitution, and by Article 6 of the European Convention on Human Rights (“ECHR”). It is also a long-established feature of the common law, and indeed any developed legal system. So fundamental is it that where impartiality is questioned, it is not sufficient to demonstrate that the actual hearing and outcome of any case was fair whether on the balance of probabilities or to some higher standard. Justice holds itself to a much higher standard.

2 . The administration of justice in a civilised society requires acceptance of the outcome even where an individual might disagree with the result and a party might find it extremely burdensome. Acceptance of an outcome rests on public confidence. That public confidence in the system of the administration of justice would not be achieved if judges were only disqualified from hearings if a party could prove on the balance of probabilities that a judge was actually biased in favour of one or other party (what is described in the case law as “subjective bias” or “active bias”). It would not be acceptable that there could remain reasonable doubt on the part of the parties, or members of the public, as to the impartiality of the decision maker. Instead, the law in Ireland, and most countries, has developed a test of what is called “objective bias.” That requires disqualification where a reasonable and informed onlooker would have a reasonable apprehension that a judge or tribunal would be biased towards or against a party because of some identified factor, or, perhaps more precisely still where the reasonable and informed onlooker would have a reasonable apprehension that the judge would not be able to give the matter an impartial hearing and decision by reference only to the facts and law.

3 . The law has recognised a list of factors which may give rise to a reasonable apprehension of bias. These include where a judge may have an interest direct or indirect in the case, has made a prior public commitment to the position of one or other party relating to the merits of the action, where the judge has connections with the party or with a witness whose credibility is at issue, or perhaps with a lawyer or lawyers representing the party, or where the judge has extraneous information or knowledge of some kind not acquired from the evidence in the case.

4 . Irish law has developed a test for so-called objective bias by reference to a standard of reasonable apprehension and thus created a cordon sanitaire which extends far beyond the core area of actual bias proved or suspected. The justification for this policy is to ensure that public confidence in the system of administration of justice is maintained. The test for disqualification is sensitive and may be triggered by matters which are some distance from any actual bias or predisposition. Most of the difficulty in the law on disqualification comes from the attempt to delineate that outer protective boundary, at some distance removed from any question of actual bias. This is one such case.

5 . In those cases where judges have been held to be disqualified, there is little if any likelihood that any decision would be or was actuated by a predisposition or bias towards one or other party. Instead, it might be said that an objective bystander could simply not have the high degree of assurance the law requires that the decision will not be, or that a decision given has not been, affected by considerations which are extraneous to the disposition of the case by reference to the facts, evidence, law and submissions alone.

6 . But even that outer protective boundary has, and must have, defined limits. For a variety of considerations, it cannot be correct to simply accede to any objection however flimsy to avoid controversy. First, the basic rule is that a judge should sit unless disqualified. That was well articulated by Sir Anthony Mason, in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352:-

“ Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.” 1

7 . In the leading case of Bula Ltd. and others v Tara Mines Ltd. and others (No. 6) [2000] 4 I.R. 412 (“ Bula v Tara (No.6)”), 449 Denham J. stated, “ A judge has a duty to sit and hear a case.” Much the same was said by the same judge, by then Chief Justice, in Goode Concrete v CRH plc and others [2015] IESC 70, [2015] 3 I.R. 493 (“ Goode Concrete”), 518, citing with approval the leading Australian case of Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337 (“ Ebner”). In that case Gleeson C.J. put it very simply at paragraph 19 of the judgment: judges do not choose their cases.

8 . Second, and correspondingly, too-ready accession to objections to a judge runs counter to an important value of the system that parties should not be entitled to select their judge, even negatively. Parties do not choose their judge.

9 . Third, the raising of allegations, particularly after the fact, is not costless. Instead, it imposes substantial costs, particularly on the successful party who sees a decision challenged on matters entirely outside their control and faces the prospect of further hearings and or appeals, both in terms of a challenge to the decision and any rehearing that might be ordered. Fair procedures should protect those parties' rights also. 2 Bias challenges also impose costs on the legal system more generally in terms of delay and diversion of resources that would otherwise be applied to the cases of other litigants. It is important therefore that the test of disqualification and its application in any case should go so far as is necessary to ensure the maintenance of public confidence, but not further, since that deprives the successful party of the judgment to which they are entitled without any corresponding benefit in increasing

public confidence. Indeed, the too-ready use of the term bias and the possibility of a consequent implication and perception that a judge disqualified has been guilty of serious wrongdoing even in cases very far removed from any real lack of impartiality, may undermine confidence rather than support it

10 . It is a difficult task to chart the outer boundaries of the test of objective bias. It is an inherently difficult task since it involves not merely the ascertainment of a state of mind (difficult in itself), but the identification of a possibility that there may be a sufficient and reasonable apprehension that that state of mind exists even if it does not exist in fact. It is also the case that since the test is dependent on the assessment of the reasonable observer, developing views on what is appropriate or permissible may mean that what was acceptable in the past, even if endorsed by judicial decision, may no longer be acceptable. A key component in charting that outer boundary is that it must be connected logically to the core issue of bias. There must be a cogent and rational link between the issue raised and its capacity to influence the decision to be made; it is not to be determined by some precautionary consideration that it might have been better not to sit, or some wise after-the-fact assessment that a problem might have been avoided by not sitting. The legal test must remain connected to the question of bias, and a judge is only disqualified where a reasonable person would have a reasonable apprehension of bias, or that the decision in the case would be influenced by factors other than an assessment of the evidence and the law. It will be necessary to return to this test in more detail later.

The Issue in This Case

11 . The precise issue raised in this case is one which has arisen in a number of countries but has not yet been considered directly by any court in Ireland. The Irish legal system is a common law system with a bifurcated legal profession in which cases are often argued by specialist advocates instructed by solicitors. For its part, the solicitors' profession in Ireland is now organised in such a way that there are a number of large firms composed of 100 or more lawyers organised into separate departments with separate areas of expertise. Ireland is also a common law country with a comparatively small judiciary and, indeed, the smallest number of judges per capita in Europe. Judges in Ireland have traditionally been drawn from the ranks of practising lawyers, normally with decades of experience in practice. 3 Is such a judge disqualified from hearing a case when one party is represented by a firm where a close relative of the judge works in that firm but has no involvement in, or connection to, the case itself? In addressing the question, it will be necessary to consider and distinguish a number of different issues: the difference between a recusal in advance and a disqualification after a hearing; the relevance of guidelines for the conduct of judges to disqualification for bias; and the significance of...