Orange Ltd v Director of Telecoms (No 2)

• Jurisdiction: Ireland
• Judge: Keane C.J.,Mr Justice Francis D Murphy,BARRON J.,Mr. Justice Geoghegan
• Judgment Date: 18 May 2000
• Neutral Citation: [2000] IESC 22
• Court: Supreme Court
• Docket Number: [S.C. Nos. 224 & 278 of 1999 and 14 of 2000],224 & 278 /1999 & 14/2000 224/99
• Date: 18 May 2000

BETWEEN:

ORANGE COMMUNICATIONS LTD

PLAINTIFF

AND

THE DIRECTOR OF TELECOMMUNICATION REGULATIONS AND METEOR MOBILE COMMUNICATIONS LTD

DEFENDANTS

KEANE CJ.

MURPHY J

BARRON J

MURRAY J

GEOGHEGAN J

224 & 278 /1999

& 14/2000

224/99

THE SUPREME COURT

Abstract:

Abstract to follow

1 JUDGMENT OF MR JUSTICE FRANCIS D MURPHY DELIVERED THE 18TH DAY OF MAY, 2000

2 I agree with the judgment handed down by the Chief Justice. In deference to the comprehensive arguments addressed to this Court I would wish to add certain observations. In so doing I would adopt the detailed history of the matter so clearly set out in the judgment of the Chief Justice and I would take advantage of the abbreviations, descriptions and references which he has made in his judgment.

3 To condemn as biased the decision of a judge or other decision maker involves two conclusions. First, that the adjudicator is affected by some factor external to the subject matter of his decision and, secondly, that in relation to the particular decision the external factor operated so as to tilt the judgment in favour of the successful party. The distinction is crucial. The existence of the extraneous factor must be proved as a fact on the balance of probabilities: The operative effect of an impermissible factor (where it does exist) is presumed.

4 In most of the reported cases involving an allegation of bias against a judge (and under that heading I would include all decision making bodies) the existence of some extraneous factor relating to the circumstances of the judge is admitted or acknowledged. For example, in the leading case in this jurisdiction, Dublin Well Woman Centre Ltd v. Ireland [1995] ILRM 408 it was immediately recognised that Ms Justice Carroll had acted as Chairperson of the Commission on the Status of Women so that the argument in the case, and the decision on it, turned on to whether that fact might affect the impartiality of the Judge or, more correctly, give rise to a perception of bias. Similarly in the leading English case of ex parte Pincohet Ugarte [1999] 2 WLR 272 the fact that Lord Hoffman had links with Amnesty International was not in dispute. The issue was whether that association might be perceived as affecting his judgment.

5 However, the proposition that justice should be blind and that the judge should be wholly untouched by extraneous considerations is not merely unattainable: it is undesirable. In Laird v. Tatum 409 US 824 ( 34 L Ed 2d 50) Justice Rehnquist (as he then was) considered a motion to disqualify himself, under the appropriate US legislation, on the grounds of bias.

6 The distinguished Judge conceded that prior to his appointment, and in his capacity as an expert witness, he had appeared on behalf of the Justice Department before Senate hearings and expressed views material to the issues in the case pending before him. Having explained that most Justices come to the Bench no earlier than their middle years and that it was therefore probable that they would have expressed views in different forums on constitutional issues he went on to say (at page 59):

7 ‘Proof that a Justice‘s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.”

8 Rehnquist J referred to with approval extracts from the often quoted judgment of Justice Franck in In re JP Linahan 138 F2d 650: A particularly attractive passage from that judgment is in the following terms:

9 “Democracy must, indeed, fail unless our Courts try cases fairly, and there can be no fair trial before a judge lacking in impartiality and disinterestedness. If however, ‘bias ‘and ‘partiality’ be defined to mean the total absence of preconceptions in the mind of the judge, then no one has ever had a fair trial and no one ever will. The human mind, even at infancy, is no blank piece of paper. We are born with predispositions; and the process of education, formal and informal, creates attitudes in all men which affect them in judging situations, attitudes which precede reasoning in particular instances and which, therefore, by definition are pre-judices.

10 The views expressed by Lord Bingham of Cornhill in Locabail Ltd v Bayfield Properties [2000] All ER 65 provide a more specific analysis of factors which might be thought to affect the decision of a judge but could not be classified as impermissible. Lord Bingham (at page 77of the report) excluded the factors following:

11 We cannot, however, conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge. Nor, at any rate ordinarily, could an objection be soundly based on the judge s social or educational or service or employment, background or history, nor that of any member of the judge's family; or previous political associations; or members of social or sporting or charitable bodies; or Masonic associations; or previous judicial decisions; or extra-curricular utterances (whether in textbooks, lectures, speeches, articles, interviews, reports or responses to consultation papers), or previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him or membership of the same Inn, circuit, local law society or chambers

12 Having then identified a number of circumstances which would give rise to a suspicion or belief of bias the Lord Chief Justice went on to exclude the following:

13 “The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In

14 most cases, we think the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection was raised, the weaker (all things being equal) the objection will be.

15 It is unnecessary to express any view whether all the circumstances listed by Lord Bingham as being unexceptional would be similarly treated in this jurisdiction or whether, indeed, a comparable list here would be even longer. It is sufficient for the purposes of this appeal to emphasise that not all extraneous factors are fatal to the reality or appearance of impartiality in the exercise of the judicial function. Accordingly, a party asserting bias must prove, by appropriate evidence and to the required standard, not only the existence of a particular relationship, circumstance or factor but also that it falls outside the permitted limits.

16 In the present case the original plea of bias was addressed to the Director personally. It had been expressed in the Statement of Claim at paragraph 22 in the following terms:

17 “The plaint if claims that the first defendant has wrongly been biased and prejudiced against the plaint if which bias and prejudice is evidenced by a consistent pattern of grossly unfair media coverage of the plaintiff’s application, made possible by the wrongful revelation of the first defendant ‘s attitude and proposed actions to third parties and their publication in the media before they were communicated to the plaintiff which has led to serious public misconceptions and has been calculated to

18 embarrass the plaintiff in making its application, its representations and in pursuing its statutory right of appeal..”

19 Those allegations were extended in particulars delivered by Orange but the forceful statement of the allegation was made by Counsel on their behalf in the course of the hearing when he said:

20 ‘I have alleged in my pleadings that there was bias and prejudice, and I make the point to you now, it appears that Mr Anderson was responsible, that the Danes were responsible for this prejudice and bias. It appears that Mr Anderson was the major man from AMI and he was the person who persuaded the steering group that they should not ask any searching questions about A T & T The inference I am asking you to draw is that he and his colleagues and all of them are equal/v responsible for this, let us be clear about it, the others did not stand up against him in this decision which was manifestly wrong. I am not saying that the Irish people went along with this strategy, none of whom by coincidence, even if they didn't agree with him it turns out that none of them asked AT & T any hard questions in relation to this issue or asked Meteor any hard questions in relation to this issue, where as it does appear that Mr Anderson was the leading light in making the decision, all of them were equally responsible for it my lord.”

21 That allegation was amplified in the course of a question addressed to Mr McQuaid (day 33, page 13 1, question 473) in the following terms:

22 I am suggesting to you Mr McQuaid, that what went on here was that Mr Anderson and the people who took the anti-Orange position. the people who said that their attitude to this competition was unprecedented. the people who constantly referred to the British dimension of the Orange matter and also referred to the Irish aspect of Meteor’s competition, that those people took a prejudiced and biased anti-Orange (sic) throughout this competition and what you did was to produce a report which was tidied up, so as not to reflect the real attitude of the people whom made the real...