P (A) v Judge McDonagh

JurisdictionIreland
JudgeMr. Justice Clarke
Judgment Date10 July 2009
Neutral Citation[2009] IEHC 316
CourtHigh Court
Date10 July 2009
P (A) v Judge McDonagh
JUDICIAL REVIEW

BETWEEN

A. P.
APPLICANT

AND

HIS HONOUR JUDGE DONAGH MCDONAGH
RESPONDENT

AND

P. P.
NOTICE PARTY

[2009] IEHC 316

[No. 1190 J.R./2008]

THE HIGH COURT

COURTS

Judiciary

Bias - Fair procedures - Judge - Settlement terms - Statements made - Factors which gave rise to real risk of bias - Whether reasonable apprehension of pre-judgment of issue - Distinction from bias - Principles to be adopted - Objective test - Whether clean hands in relation to disclosure - Whether appeal appropriate remedy - (Madan) v Secretary of State for the Home Department [2007] 1 WLR 2891, R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256, Webb v The Queen (1993-1994) 181 CLR 41, Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 WLR 870, Vakauta v Kelly (1989) 167 CLR 568, The King (M'Swiggan) v Justices of Londonderry [1905] 2 IR 318, R v Stafford Justices [1940] 2 KB 33, Leary v National Union of Vehicle Builders [1974] 1 Ch 34 considered; Bula Ltd v Tara Mines Ltd (No 6) [2000] 4 IR 412, O'Neill v Beaumont Hospital Board [1990] ILRM 419, Orange Ltd v Director of Telecoms (No 2) [2000] 4 IR 159, O'Reilly v Cassidy [1995] 1 ILRM 306, Dublin Well Woman Centre Ltd v Ireland [1995] 1 ILRM 408, Kenny v Trinity College [2007] IESC 42, [2008] 2 IR 40, Bambrick v Cobley [2005] IEHC 43, [2006] ILRM 81, Freney v Freney [2008] IEHC 330 (Unrep, Laffoy J, 22/10/2008), State (Vozza) v Ó Floinn [1957] IR 227, State (Abenglen Properties Ltd) v Dublin Corporation [1984] IR 381, Gill v Connellan [1987] IR 541 and F v Judge O'Donnell [2009] IEHC 142 (Unrep, O'Neill J, 27/3/2009) applied - Courts of Justice Act 1936, (No 48), s 38 - Family Law Divorce Act 1996 (No 23), s 5 - Relief granted (2008/1190 JR - Clarke J - 10/7/2009) [2009] IEHC 316

P v Judge McDonagh

Facts: The proceedings related to family law litigation where the Circuit Court judge presiding had made certain comments that were alleged to have pre-determined the outcome of family law proceedings. The judge had made certain comments there were impugned as having the effect of having decided the appropriateness of proper provision for the spouse of the applicant during the course of proceedings and that had demonstrated pre-judgment.

Held by Clarke J. That the applicant had made out a case on an objective test that there was a reasonable apprehension of bias and that the applicant was prima facie entitled to an order of prohibition precluding the judge from further hearing related family law proceedings. The applicant had not failed to disclose information and an appeal was not an adequate remedy.

Reporter: E.F.

FAMILY LAW (DIVORCE) ACT 1996 S5

MADAN v SECRETARY OF STATE FOR THE HOME DEPT 2007 1 WLR 2891 2008 1 AER 973

R v SUSSEX JUSTICES, EX PARTE MCCARTHY 1924 1 KB 256

BULA LTD & ORS v TARA MINES & ORS (NO 6) 2000 4 IR 412 2000/3/925

WEBB & HAY v THE QUEEN 1993-4 181 CLR 41

O'NEILL v BEAUMONT HOSPITAL BOARD 1990 ILRM 419 1989/8/2153

ORANGE COMMUNICATIONS LTD v DIRECTOR OF TELECOMMUNICATIONS REGULATION AND METEOR MOBILE COMMUNICATIONS LTD (NO 2) 2000 4 IR 159 2000/15/5538

LOCABAIL (UK) LTD v BAYFIELD PROPERTIES LTD (LEAVE TO APPEAL) 2000 2 WLR 870 2000 1 AER 65 2000 QB 451

KENNY v TRINITY COLLEGE DUBLIN 2008 2 IR 40 2007/32/6662 2007 IESC 42

BAMBRICK v COBLEY 2006 1 ILRM 81 2005/3/573 2005 IEHC 43

FRENEY v FRENEY UNREP LAFFOY 22.10.2008 2008 IEHC 330

VOZZA, STATE v O FLOINN 1957 IR 227

ABENGLEN PROPERTIES LTD, STATE v DUBLIN CORP 1984 IR 381 1982 ILRM 590 1982/1/1

GILL v CONNELLAN 1987 IR 541 1988 ILRM 448 1987/6/1683

LEARY v NATIONAL UNION OF VEHICLE BUILDERS 1971 CH 34 1970 3 WLR 434 1970 2 AER 713

COURTS OF JUSTICE ACT 1936 S38

F (O) & I (M) v JUDGE O'DONNELL & ORS UNREP O'NEILL 27.3.2009 2009 IEHC 142

1

JUDGMENT of Mr. Justice Clarke delivered on the 10th July, 2009

1. Introduction
2

2 1.1 The applicant ("Mr. P") and the notice party ("Mrs. P") are a married couple who have been involved in family law litigation. In circumstances to which it will be necessary to refer in more detail, the proceedings between them came on for hearing before the respondent ("the Circuit Court judge"). It is said on behalf of Mr. P that certain comments made by the learned Circuit Court judge suggest that the case between the parties has been pre-determined by the learned Circuit Court judge. In that context, an application was made by counsel on behalf of Mr. P, which invited the learned Circuit Court judge to disqualify himself from any further hearing of the case. The learned Circuit Court judge did not agree with the application made on behalf of Mr. P, and refused to disqualify himself. A second subsequent like application was also refused. It is as against those refusals that Mr. P brings an application before this Court seeking judicial review.

3

3 1.2 On the 24 th October, 2008, this Court (McMahon J.) gave Mr. P leave to apply for judicial review, which review, in substance, sought to prohibit the learned Circuit Court judge from "continuing to adjudicate and determine" the relevant family law proceedings. The grounds on which leave to seek judicial review was granted are set out in the statement of grounds dated the 24 th October, 2008. In addition to reciting the factual circumstances which give rise to Mr. P's claim, the grounds relied on allege that the comments made by the learned Circuit Court judge demonstrate pre-judgment of Mr. P's case on the basis of what is said to be the appropriate test, that is to say an objective test. On that basis it is said that justice, at a minimum, would not be seen to be done should the learned Circuit Court judge be permitted to continue to adjudicate on the issues which have arisen in the relevant family law proceedings.

4

4 1.3 As is clear, the initial starting point for any consideration of Mr. P's contention has to be an analysis of what actually transpired in the course of the relevant family law proceedings which were conducted before the learned Circuit Court judge. I, therefore, turn to that factual background.

2. Factual Background
5

2 2.1 Mr. P and the Mrs. P are a married couple whose married relationship has broken down. In 2001, Mr. P began judicial separation proceedings under the Judicial Separation and Family Law Reform Act 1989. On 24 th July, 2008, the parties' case came on for hearing before the learned Circuit Court judge. Before the case was heard, the representatives of Mr. P and Mrs. P agreed that those judicial separation proceedings would be converted into divorce proceedings. It was during the course of those proceedings that the learned Circuit Court judge made a number of comments which form the basis of Mr. P's complaint.

6

3 2.2 At the opening of the case, Mr. P's counsel indicated that Mr. P was desirous of a 50/50 spilt of the parties' assets, it being asserted that the parties' net assets amounted to €3.368 million. It was suggested on behalf of Mrs. P that considerable difficulties had been encountered while attempting to discover an accurate picture of Mr. P's financial affairs. In particular, it was said that it was not clear to Mrs. P as to whether the intended 50/50 split of assets would include the applicant's shareholding in two specified limited companies. Complaint in that context was made as to the adequacy of discovery.

7

4 2.3 On the first day of the hearing, the 24 th July 2008, the learned Circuit Court judge directed that unless Mr. P discovered the required documentation in respect of his financial affairs by the afternoon of the same day, he faced incarceration for contempt for non-compliance with an order for discovery. Mr. P then complied with the court's direction.

8

5 2.4 Mrs. P concluded her direct evidence on the first day of the proceedings. On the second day of hearing, the 25 th July, 2008, prior to resuming the case, the learned Circuit Court judge made the following remark to Mr. P's counsel:-

"Your client will have to do a lot better. You should indicate that to your client."

9

6 2.5 Mr. P had not given any evidence at that stage of the proceedings. During the course of the lunch break and for the remainder of the afternoon, Mr. P and Mrs. P sought and were given time to attempt to settle the issues between them. By close of business on the same day, the learned Circuit Court judge was informed that the parties had reached a settlement agreement which was being reduced to writing and, on that basis, the parties sought to adjourn the case. The learned Circuit Court judge agreed to the adjournment sought and the case resumed on 30 th July, 2008, for the purpose of the court ruling on the settlement which had been reach between the parties. Typed settlement terms were handed into court.

10

7 2.6 On the reading of the terms of the settlement, the learned Circuit Court judge stated as follows:-

"What is the percentage split in favour of the applicant arising from this agreement?"

11

The learned Circuit Court judge was informed that on the basis of divergence between the parties' estimates on the value of the assets, the percentage spilt in favour of Mrs. P was in the region of 49-51%. The learned Circuit Court judge stated:-

"There is not proper provision for the applicant in the settlement."

12

The applicant, in the context of the family law proceedings being the Mrs. P.

13

8 2.7 Counsel for Mr. P indicated to the learned Circuit Court judge that the terms of the settlement had been reached with Mrs. P who had the benefit of legal advice and that Mrs. P's legal team were happy with the settlement and were content to recommend same to Mrs. P. The learned Circuit Court judge then stated as follows:-

"I want to see a 55% / 45% split in favour of the applicant."

14

In relation to a proposed €120,000 lump sum payment to Mrs. P, the...

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