McCormack v Mccormack

CourtHigh Court
JudgeMr. Justice David Keane
Judgment Date28 April 2015
Neutral Citation[2015] IEHC 276
Date28 April 2015

[2015] IEHC 276


[No. 1749P/2005]
McCormack v Mccormack





Professional Conduct & Regulation – Code of the Bar of Ireland – Fair hearing – Biasness – Test of reasonableness

Facts: The plaintiff sought an order refraining the Court from conducting the trial of the proceedings on the ground of bias. The plaintiff alleged that the Court in making certain remarks to the plaintiff had exhibited its pre-determined notion against the interest of the plaintiff, which was unfair and unprofessional.

Ms. Justice David Keane refused to grant an order to the plaintiff. The Court held the assertions made by the plaintiff were baseless and unreasonable. The Court found that the questions that were asked by the Court were for the purpose of facilitating the justice and based on the evidence and it was not suggestive of any pre-decided frame of mind. The Court observed that paragraph 5.1 of the Bar Council Code of Conduct makes it obligatory upon the counsels to maintain due respect and courtesy toward the Court. The Court held that the mere fact that a judge had commented adversely or found the evidence of a party to be unreliable would not warrant that he acted against the fair procedures and arbitrarily.


1. This is the Court's ex tempore ruling on the plaintiff's application that I recuse myself from the trial of the present action on the ground of bias.


2. The trial commenced on the 21 st April 2015, on which date the case was opened and the plaintiff, having been sworn in as a witness, commenced her evidence in chief. The Court was obliged to deal with the conclusion of another trial on the 22 nd April and the plaintiff's evidence in chief resumed on the 23 rd April. An exchange occurred between Counsel for the plaintiff and the Court at the conclusion of that day's hearing, which gave rise to the application at hand on the morning of the 24 th April. The Court is now ruling on that application at the first practicable opportunity, which is today.


3. In order to put the application and the present ruling in context, it is necessary to briefly describe the nature and history of the proceedings and certain aspects of the trial so far.


4. The parties are husband and wife, although it appears to be common case that they have been effectively separated since 2003.


5. On the 19 th May 2005, a plenary summons issued on behalf of the plaintiff. In it, and in the statement of claim subsequently delivered on the 28 th June 2005, the plaintiff claims for rescission of an agreement that she entered into with the defendant on the 2 nd December 2004. Under the central terms of that agreement the plaintiff agreed to relinquish her share in a nursing home business operated by the parties in exchange for a payment of €350,000. The plaintiff alleges that the said agreement was procured by misrepresentation or the application of undue influence or duress, or some combination of those factors, or that it amounts to an unconscionable bargain. A defence and counterclaim was delivered on the 2 nd August 2005, admitting the agreement, denying that it was procured inequitably and denying, in particular, that the plaintiff was not in receipt of independent legal advice in relation to it. The plaintiff joined issue with that defence by reply and defence to counterclaim delivered on the 24 th July 2014.


6. The defendant in these proceedings initiated separate family law proceedings against the plaintiff by Circuit Family Court Civil Bill issued on the 24 th November 2004, in which he seeks a decree of judicial separation and various ancillary reliefs. The plaintiff delivered a defence and counterclaim in those proceedings on the 14 th December 2005 in which she also seeks a decree of judicial separation, together with various ancillary reliefs, notable amongst which is the necessary property adjustment order to resolve the issues with regard to the respective interest of the parties in the nursing home business. Those proceedings have not yet been brought on for trial.


7. When the Court was apprised of the existence and nature of those family law proceedings during the opening of the plaintiff's case, I enquired whether the parties had given consideration to the possibility of seeking to resolve all of the issues between them in that forum, bearing in mind the obligation imposed on any court that is dealing with proceedings covered by section 16 of the Family Law Act 1995 to "endeavour to ensure that such provision is made for each spouse concerned and for any dependent member of the family concerned as is adequate and reasonable having regard to all the circumstances of the case." In response, I was told that the parties had developed a tacit understanding that the present equitable claim should be determined first, notwithstanding that this must entail the additional court time and legal costs associated with the resolution of two sets of proceedings rather than one. Accordingly, I permitted the trial to proceed, although not without at least some misgivings in light of the emerging trend towards more active case management, whereby the interests of the efficient administration of justice and of access to justice generally, might well require the Court, in an appropriate case, to overrule the consensus of the parties on a procedural issue.


8. Later in the course of the opening of the plaintiff's case, certain inter partes correspondence was read out in which criticisms were made on behalf of the plaintiff concerning the position of the defendant in respect of the maintenance of the parties' three children. At that point I intervened again, explicitly stating that I was addressing both parties in expressing a concern that they were unable or unwilling to consider seeking the resolution of the disputes between them within the rubric of the family law proceedings. In doing so, I made the parties aware that the Court's specific concern stemmed from the absence in proceedings in chancery of any provision protecting the privacy interests of family members (including children) equivalent to that permitted under s. 45(1) of the Courts (Supplemental Provisions) Act 1961 and provided for by s. 38(6) of the Family Law Act 1995 and s. 34 of the Family Law Reform Act 1989, whereby proceedings covered by those provisions are heard otherwise in public. Moreover, under s. 40 of the Civil Liability and Courts Act 2004, as amended, bona fide representatives of the press who attend such proceedings are subject to certain reporting restrictions and possible exclusion from the hearing. In response, Counsel for the plaintiff informed me that, while it was acknowledged that public policy issues may be in play, it is significant that the youngest of the parties' three children attained the age of majority last year. Somewhat reassured by that information, I permitted the trial to proceed, although it is by no means clear to me that the privacy interests protected by the legislation I have just cited are solely and exclusively those of the minor children of the parties.


9. Two further occurrences during the trial so far need to be described at this point in the present ruling in order to place the application now before the Court in sharper focus.


10. The first of those occurrences arose in the context of an objection made by Counsel for the defendant to a question asked of the plaintiff by her Counsel on the afternoon of the 23 rd April. I will return to exchanges between Counsel and the Court in the context of that objection later in this ruling. For present purposes, suffice it to note that, in the course of his submission in response to that objection, Counsel for the plaintiff stated:

"The simple fact of the case is that it is not possible to conclude that the bank has a concern that is not driven by, or that is independent of, the plaintiff's mother-in-law's manipulation of the situation. This is all immensely cunningly planned. The Court has to be prepared to see through what is a very, very clever scheme devised by a lady of immense commercial acumen and unbridled ruthlessness."


11. I come now to the intervention that has precipitated the present application, while fully acknowledging that the application ranges much further and wider than an objection to that intervention alone. Very close to 4 o'clock on the afternoon of the 23 rd April, the plaintiff, who was still in the course of her examination-in-chief, stated in evidence as follows:

"I just want to say, your honour, you were concerned about the children knowing anything about John and myself and how we felt about things. They were never ever involved, I never ever let them know there was anything wrong. I never cried at home. Everything continued as normal as possible. And that's … I was determined that that would be the way forward for them.…"


12. The following exchange then occurred:

"The Court:

"I think you misunderstand me, Mrs McCormack."

The Witness:


The Court:

"I wasn't saying anything about having any particular concern about the manner in which the children may have been brought up or the manner in which the children may or may not have been exposed to whatever unhappy marital differences there were between you and Mr McCormack. I was expressing a concern, and frankly it is a concern I still feel, about the fact that matters are now being agitated in open court, not in family law proceedings where the parties can reasonably expect the protection of what is known as the in camera rule where what is said cannot be reported - but all of those matters are now being ventilated, to the extent they are being ventilated, in this Court upon which the media are entirely free to report, when it is suggested, for example, about a...

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