Kemper v an Bord Pleanala

• Jurisdiction: Ireland
• Judge: Mr. Justice Allen
• Judgment Date: 23 September 2020
• Neutral Citation: [2020] IEHC 477
• Date: 23 September 2020
• Docket Number: [2020 No. 22 JR]
• Court: High Court

BETWEEN

SABRINA JOYCE KEMPER

APPLICANT

AND

AN BORD PLEANÁLA, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

IRISH WATER DAC

NOTICE PARTY

[2020] IEHC 477

Allen J.

[2020 No. 22 JR]

THE HIGH COURT

JUDICIAL REVIEW

Recusal – Objective bias – Judicial review – Applicant asking the High Court judge to recuse himself – Whether the applicant had established a reasonable apprehension of objective bias

Facts: The applicant, Ms Kemper, by notice of motion issued on 28th January, 2020 pursuant to an order of Simons J made on 23rd January, 2020, gave notice of her intention to apply for leave to apply by way of judicial review for an order of certiorari quashing a decision by the first respondent, An Bord Pleanála, made on 11th November, 2019 to grant permission to Irish Water for the development of the Greater Dublin Drainage Project. The motion was listed for hearing for ten days commencing on 7th July, 2020. On the morning of the third day of the hearing Mr Collins B.L., for the applicant, asked Allen J to recuse himself on the ground that he had previously acted for Irish Water in the case of Irish Water v Woodstown Bay Shellfish Ltd [2017] IEHC 223. Late in the afternoon of the fourth day Allen J decided that he should not recuse himself. In an ex tempore ruling he gave an outline of his reasons and then indicated that he would elaborate the reasons for his decision in his written judgment on the substantive application. The applicant appealed against the refusal of her recusal application and Allen J took the view that he should give a separate written judgment on that issue; this would allow the parties to be fully prepared when the appeal first came into the directions list so that it could be heard as soon as the Court of Appeal could accommodate it.

Held by the High Court (Allen J) that the circumstances of his previous engagement as a barrister on behalf of Irish Water would not, or reasonably could not, give rise to a real doubt in the mind of a reasonable, fair minded, objective observer who had a reasonable knowledge of a barrister’s role and work, in possession of all the relevant facts, and who was not unduly sensitive, that the court would not hear the case with an open mind or could not deal with the application fairly and even handedly. Allen J held that the applicant had not established a reasonable apprehension of objective bias and that the circumstances did not give rise to a real doubt.

Allen J held that the applicant had not made out a case that he should recuse himself.

Recusal application refused.

JUDGMENT of Mr. Justice Allen delivered on the 23rd day of September, 2020

1 By notice of motion issued on 28th January, 2020 pursuant to an order of Simons J. made on 23rd January, 2020 the applicant gave notice of her intention to apply for leave to apply by way of judicial review for an order of certiorari quashing a decision by An Bord Pleanála made on 11th November, 2019 to grant permission to Irish Water for the development of the Greater Dublin Drainage Project. The proposed development is a strategic infrastructure project comprising a wastewater treatment plant, sludge hub centre, orbital sewer, regional biosolids storage facility and an outfall pipeline into the Irish sea, north-east of Ireland's eye.

2 The motion was closely case managed in the strategic infrastructure list and it was listed for hearing for ten days commencing on 7th July, 2020.

3 On the morning of the third day of the hearing Mr. Oisín Collins B.L., for the applicant, asked me to recuse myself on the ground that I had previously acted for Irish Water in a case of Irish Water v. Woodstown Bay Shellfish Ltd. [2017] IEHC 223. That development in that case, or at least the development subtending that case, was said to be very similar to the development the subject of the application before me. That case was said to have dealt with issues which were similar to those raised in the application before me, namely, environmental impact assessment and appropriate assessment issues. It was said that the decision of Baker J. referred to a lot of the cases which Mr. Collins intended to rely on and that that case might actually be useful in the case before me. There was, it was said, a potential issue of conflict of interest and the court was asked to recuse itself. One of the grounds on which the applicant was seeking to have the decision of An Bord Pleanála quashed was bias. The argument at that stage had not been developed, but broadly, part of the applicant's case was that the decision to grant permission was tainted by the alleged previous interest or involvement of two members of the Board in the project, and by an alleged failure on the part of those members to make declarations of interest.

4 The close similarity of the development which was the subject of Irish Water v. Woodstown Bay Shellfish Ltd. and the proposed development the subject of the application before me was said to be that they both involved a pipe into the sea. The similar issues were said to be issues in the form of EIA and AA. The court, it was said, had not declared at the outset “that it had a prior involvement in the case” and so could not determine “whether similar issues involving An Bord Pleanála are or are not in breach of the law”. The position was said to be untenable on first principles.

5 The respondents and the notice party having indicated that they would oppose the application, I invited Mr. Collins to justify it by reference to the authorities. He was not then in a position to do so and I put the case back overnight to allow him to do so.

6 Over the course of the following day the court was brought through all of the relevant authorities. While counsel were agreed that the applicable legal principles are well established, there was one difference as to what those principles are. Mr. Collins suggested that the threshold is lower in a case where the recusal application is made to the trial judge than in a case in which an appellate court is asked to set aside the judgment of a trial court on the grounds of objective bias.

7 Late in the afternoon of the fourth day I decided that I should not recuse myself. In an ex tempore ruling I gave an outline of my reasons and I then indicated that I would elaborate the reasons for my decision in my written judgment on the substantive application. In the meantime, the applicant has appealed against the refusal of her recusal application and I have taken the view that I should give this separate written judgment on that issue. This will allow the parties to be fully prepared when the appeal first comes into the directions list so that it can be heard as soon as the Court of Appeal can accommodate it: unless by then it has been rendered moot by the judgment on the substantive application which I will deliver as early as I can in the new term. If the appeal is not by then moot, it will be fairly urgent for the parties will need to know as soon as may be whether my judgment on the substantive application is to stand.

8 The locus classicus of the law of course is the judgment of Denham J., as she then was, in Bula Ltd. v. Tara Mines Ltd. (No. 6) [2000] 4 I.R. 412 in which one of the issues was the circumstances in which a judge who had previously, as a barrister, advised or acted for one of the parties should recuse himself. At p. 445 of the report Denham J. said: -

“In Ireland the test is objective. The test is a view of the reasonable person who would have a reasonable knowledge of a barrister's work and so the link or links alleged need to be more than simply that the judge, as barrister, acted for one of the parties to the action.

Indeed, it was quite rightly accepted by the applicants that the mere fact that a judge, when a practising barrister, acted for a party is not a bar to him or her acting as a judge in a subsequent case where that party is a party to the litigation. The test for the Court is more than a prior relationship of legal adviser and client.”

9 Ms. Justice Denham went on to refer to two Australian cases and in particular expressed agreement with the analysis of Merkel J. in Aussie Airlines Pty. Ltd. v. Australian Airlines Pty. Ltd. (1996) 135 A.L.R. 753, where Merkel J. emphasised the need for a cogent and rational link between the association of the judge with the party and its capacity to influence the decision to be made in a particular case.

10 On p. 446 of the report Denham J. observed that:

“A judge works on the basis of his or her legal training and the declaration made on being appointed as a judge.”

11 Having set out the declaration required by Article 34.5.1 of the Constitution of Ireland, 1937 Denham J. continued:-

“On occasion it is inappropriate for a judge to adjudicate in a case. This will depend on the circumstances. A judge is not disqualified from adjudicating in a case merely because one of the parties was in receipt of his or her professional legal services at an earlier time. In the context of the independent bar, which operates in Ireland, such a link is not a connection sufficient to disqualify. It requires special additional circumstances to disqualify a judge from adjudicating on a case.

Thus, a long, recent and varied connection may disqualify a judge. The circumstances must be cogent and rational so as to give rise to a reasonable apprehension that the judge might not bring an impartial mind to the resolution of the issues in the case. Special circumstances precluding a judge from presiding include a situation where the judge, as counsel, has previously given legal services to a party on issues alive in the case to be heard before a court.”

12 In support of his submission that a lower threshold applied in the case of a recusal application made to a judge than on an appeal, Mr. Collins relied on the judgment of Kelly J. (as he then was) in Ryanair Ltd. v. Terravision London...