Kenny v Trinity College Dublin

• Jurisdiction: Ireland
• Judge: Fennelly J.
• Judgment Date: 15 October 2007
• Neutral Citation: [2007] IESC 42
• Court: Supreme Court
• Docket Number: [S.C. No. 168 of 2003]
• Date: 15 October 2007

Kenny v Trinity College & Dublin City Council

Between/

James Kenny

Applicants/Appellants

and

The Provost, Fellows and Scholars of the University of Dublin, Trinity College and Dublin City Council

Respondents

[2007] IESC 42

Fennelly J.

Macken J.

Lavan J.

[S.C. No: 168/03]

THE SUPREME COURT

COURTS

Jurisdiction

Fair procedures - Bias - Objective bias - Witness employed by firm of which judge's brother a member - Aspersions cast on integrity of witness - Whether relationship between witness's employer and judge would disqualify judge - Supreme Court - Final order - Whether court should set aside its own previous order - Bula Ltd v Tara Mines Ltd (No 6) [2000] 4 IR 412, Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451 and O'Neill v Beaumont Hospital Board [1990] ILRM 419 considered - Appeal reinstated for rehearing (168/2003 - SC - 15/10/2007) [2007] IESC 42

Kenny v Trinity College Dublin

The appellant applied for an order vacating an order of the Supreme Court dismissing his claim on the grounds of objective bias. The gravamen of the appellant's claim was that one of the judges who heard the application was a brother of an architect involved in the development the subject of his claim.

Held by Fennelly J. in setting aside the Supreme Court's order that the test of objective bias was in all the circumstances satisfied.

Reporter: R.W.

RSC O.19 r28

HEGARTY, STATE v WINTERS 1956 IR 320

DUBLIN WELL WOMAN CENTRE v IRELAND 1995 ILRM 408

O'NEILL v BEAUMONT HOSPITAL 1990 ILRM 419

ORANGE LTD v DIRECTOR OF TELECOMS (NO 2) 2000 4 IR 159

SPIN COMMUNICATIONS LTD T/A STORM FM v INDEPENDENT RADIO & TELEVISION COMMISSION (IRTC) & MAYPRIL LTD 2001 4 IR 411 2002 1 ILRM 98 2001 23 6256

JOYCE v MIN FOR HEALTH & ORS 2004 4 IR 293 2004 23 5314

LANDERS v DPP 2004 2 IR 363

BULA v TARA MINES 2000 4 IR 412

LOCABAIL (UK) LTD v BAYFIELD PROPERTIES LTD & ANOR 2000 2 WLR 870 2000 1 AER 65 2000 QB 451

1 Judgment delivered the 15th day of October, 2007 by Fennelly J.

2 The appellant has been engaged for a number of years in legal proceedings in which he has sought, entirely without success, to have declared invalid a decision of An Bórd Pleanála granting planning permission to Trinity College, the Respondent on this appeal, for a development consisting of new student residences at Trinity Hall, Dartry, Dublin 6. The development has long since been completed.

3 On 15th December 2000, the High Court (McKechnie J) refused the appellant leave to apply for judicial review of that decision. He also refused a certificate allowing him to appeal that refusal of leave to this Court.

4 On 7th November 2002, the appellant instituted the present action by plenary summons in the High Court. In the action he seeks an order directing the rehearing of his judicial review application. Effectively and in substance, the relief he seeks in the action is an order setting aside the order of McKechnie J.

5 In the plenary summons, he pleads that McKechnie J, in refusing the application for leave, had referred to the location of boilerhouse facilities proposed by the Respondent, as developers. In a very brief statement of claim, he alleges that the Respondent, through its counsel, had misled the High Court during the hearing of the leave application. The misleading is alleged to have consisted of the fact that the Respondent, as developers, had submitted "certain architectural plans and drawings" relating to the development purporting to show that boilers would be installed in certain places identified as plant rooms, but had failed to acquaint the High Court with the full facts of an application which it had also made for "the location of some of the aforesaid boilers in the basement of one of the aforesaid buildings to another section of the then Dublin Corporation namely the Fire Prevention Section."

6 The entire substance of the case pleaded by the appellant is that the order of McKechnie J, refusing him leave to apply for judicial review of the decision of An Bórd Pleanála granting planning permission, should be set aside because it was procured by the single act of alleged misleading mentioned in the preceding paragraph.

7 The Respondent in March 2003 applied by motion in the High Court for an order pursuant to Order 19 rule 28 of the Rules of the Superior Courts holding that the proceedings be struck out on the grounds that they were frivolous and vexatious and that they disclosed no reasonable cause of action and, alternatively, that they were an abuse of process and in excess of jurisdiction.

8 The application to strike out was grounded on two affidavits. One was sworn by Mr Tom Merriman, acting project officer of the Respondent. The other was sworn by Ms George Boyle, an architect in the firm of Murray O'Laoire, Architects, Fumbally Court, Dublin 8. Ms Boyle described herself as acting Project Architect engaged by the Respondent for the development. Mr Merriman deposed that the appellant was seeking to have "re-examined" matters already determined by the High Court on a judicial review application. He described the proceedings as an abuse of process. He also dealt at length with the appellant's complaint regarding the alleged misleading information regarding the proposed location of boiler facilities. Given the nature of the present application, it is unnecessary and inappropriate to give any account of that issue or to comment on its merits. For present purposes, it suffices to note that the appellant alleges that the Respondent misled the High Court regarding the position of boilerhouse facilities in the proposed development and that the allegation is strongly contested. Ms Boyle, in her affidavit, denied that the Respondent had misled the High Court at the time of the judicial review application.

9 The appellant swore an affidavit, in which he contested that of Ms Boyle at great length. He accused her of seeking to justify the actions of the Respondent in misleading the Court and of herself making misleading choice of words, and of being disingenuous, naïve, self-serving and scarcely credible.

10 The High Court (Finnegan P), by its order of 2nd April 2003, dismissed the Respondent's application to have the proceedings struck out. Instead, Finnegan P laid down time limits for the delivery of further pleadings in the action. He granted liberty to the appellant to deliver an amended statement of claim, which the appellant has not in fact done.

11 The Respondent, by notice of appeal dated 28th April 2003, appealed to this Court against the order of the High Court (Finnegan P). That appeal came on for hearing on 20th June 2003, before a Court composed of Murray J (as he then was), Geoghegan J and McCracken J. The Court, in an ex-tempore judgment delivered by Murray J,...