Smith v Cisco Systems Interworking (Ireland) Ltd

JudgeMr. Justice Allen,Mr. Justice Binchy,Ms. Justice Máire Whelan
Judgment Date21 July 2023
Neutral Citation[2023] IECA 186
CourtCourt of Appeal (Ireland)
Docket NumberAppeal Number: 2022/67

In the Matter of the Employment Equality Act, 1998

And in the Matter of the Equality Act, 2004

And in the Matter of the Workplace Relations Act, 2015

Olumide Smith
Cisco Systems Interworking (Ireland) Limited

[2023] IECA 186

Whelan J.

Binchy J.

Allen J.

Appeal Number: 2022/67



Recusal – Impartiality – Racial discrimination – Appellant seeking the recusal of two members of the panel assigned to hear his appeal – Whether there was reasonable apprehension of impartiality

Facts: The appellant, Mr Smith, was dismissed from his employment with the respondent, Cisco Systems Internetworking (Ireland) Ltd, in or about July 2013. Thereafter he pursued a complaint and claim before the Adjudication Officer pursuant to the provisions of the relevant employment equality legislation asserting against his former employer discrimination on grounds of race. By determination dated 18th February, 2016, the Adjudication Officer found that the respondent had not discriminated against the appellant on grounds of race. The appellant appealed the said determination to the Labour Court. The determination of the Labour Court was delivered on the 26th April, 2018. It upheld the decision of the Adjudication Officer. The appellant brought an appeal to the High Court pursuant to statute. Meenan J dismissed the appellant’s appeal and made an order for costs against him: [2020] IEHC 714. The appellant appealed to the Court of Appeal from the judgment and order of Meenan J, perfected on the 17th February, 2022. Before the commencement of the hearing the appellant raised a preliminary issue seeking the recusal of two members of the panel assigned to hear the appeal. His objections to Binchy and Allen JJ were as follows: (1) both judges had heard and determined either a previous appeal or application brought by the appellant; (2) by his making a complaint against the judges to the Judicial Council, that step per se warranted automatic recusal of both judges from hearing any case to which he was a party; and (3) his emails were blocked by the Courts Service by reason of the alleged conduct of a judge of the Circuit Court and that factor supported his application.

Held by Whelan J that a fair minded and informed observer being a reasonable person, considering objectively all of the arguments and contentions advanced by the appellant would not share his view either that the outcome of the two previous appeals or the fact that he had submitted complaints to the Judicial Conduct Committee could give rise to any reasonable apprehension on the part of a right minded person that either Binchy J or Allen J would decide the substantive appeal in the case otherwise than impartially. Further, Whelan J held that the events surrounding the email incident were not shown to be in any way connected with either judge. Whelan J held that the subsisting complaints processes being pursued by the appellant against both judges on the evidence adduced did not warrant recusal of either. Whelan J found that the various bald assertions of bias were all untenable. Whelan J held that, from an objective perspective, nothing had been advanced by the appellant to cast doubt on the impartiality of either judge.

Whelan J held that the application fell to be refused. In Whelan J’s preliminary view, costs follow the event. In light of Order 99 of the Rules of the Superior Courts and s. 169 of the Legal Services Regulation Act 2015, as amended, Whelan J held that the respondent was entitled to the costs of the failed recusal application – same to be ascertained in default of agreement. Binchy and Allen JJ concurred with Whelan J’s judgment.

Application refused.


Judgment of Mr. Justice Allen delivered on the 21 st day of July, 2023


. I have read the comprehensive judgment delivered by Whelan J. and I agree with it, as well as with the judgment of Binchy J.


. When this panel sat on 16 th March, 2023 to hear Mr. Smith's appeal against a judgment and order of the High Court (Meenan J.) dismissing an appeal which he had brought against a determination of the Labour Court given on 26 th April, 2018, Mr. Smith applied that Binchy J. and I would recuse ourselves from dealing with the appeal.


. Mr. Smith's application was made without notice to the respondent and on the basis of an oral submission, which was unsatisfactory on both counts. The recusal application was calculated to, and in the event did, disrupt the business of the court and postponed the hearing of the appeal.


. The recusal application was advanced on a number of grounds. The first ground – to which Whelan J. has referred as the Judge Binchy Ground – was that Binchy J. was a member of a panel which on 15 th June, 2022 dismissed an appeal by Mr. Smith in proceedings which Mr. Smith had brought against the Office of the Ombudsman and was a member of a panel which on 17 th October, 2022 had refused an application by Mr. Smith for an extension of time to appeal against a judgment of the High Court (Noonan J.) made on 23 rd January, 2019 in these proceedings. The second ground – to which Whelan J. has referred as the Judge Allen Ground – was that I was a member of the panel which on 17 th October, 2022 which had heard Mr. Smith's application for an extension of time to appeal and had delivered an ex tempore judgment with which the other members of the panel agreed. The third ground – to which Whelan J. has referred as the E-mail Ground – was that following a request by a Circuit Court judge in 2020 that incoming e-mails to him from Mr. Smith be blocked, all of Mr. Smith's e-mails to the Courts Service were blocked for a time. The fourth ground – to which Whelan J. has referred as the Complaint Ground – was that Mr. Smith had made complaints to the Judicial Conduct Committee against Binchy J. and me, which had not been finally disposed of and the existence of which was said to warrant our recusal.


. Whelan J. has dealt comprehensively with the Judge Allen Ground, the Judge Binchy Ground and the E-Mail Ground.


. As to the Judge Allen Ground and the Judge Binchy Ground, the basis of the recusal application was solely that Binchy J. had heard other proceedings involving Mr. Smith and that Binchy J. and I had heard another application in these proceedings, both of which were decided against Mr. Smith. In fact, on each occasion the panel was unanimous but that makes no difference. It is well settled that the fact that a judge has either heard other proceedings involving the objecting litigant or other applications in the same proceedings is not in itself a basis on which recusal may properly be sought. See for example In the matter of Decobake Limited (In Liquidation) [2022] IECA 31.


. As to the E-mail Ground, it was not suggested that either Binchy J. or I had any knowledge of, still less involvement in, the blocking of Mr. Smith's e-mails.


. These first three grounds were transparently misconceived and the recusal application on these grounds could easily have been disposed of summarily. However, the fourth ground – the Complaint Ground – was novel. It was that ground which prompted the court to reserve judgment and it is that ground which I wish to address.

The recusal application on the Complaint Ground

. Mr. Smith asked that Binchy J. and I would recuse ourselves on the ground that he had lodged complaints of misconduct against us with the Judicial Conduct Committee which were still pending. The recusal, he suggested, was in the interest of fair procedures. He suggested that “certain things [had] occurred in other proceedings which concern[ed] his human rights.” Mr. Smith referred to the Irish Human Rights Commission and the Judicial Council Act.


. Mr. Smith expressed concern as to the “appropriateness of discussing exact details” and made reference to a confidentiality clause in the procedure – which I understood to be a reference to the Judicial Conduct Committee Complaints Procedures. He suggested that the complaints were “valid complaints of abuse of human rights” and that Binchy J. and I should recuse ourselves “pending assessment of [his] complaints.” At one stage there appeared to be a suggestion of an unspecified fraud on my part but Mr. Smith later clarified that in asserting that the judgment of 17 th October, 2022 had been procured by fraud, he was not making an allegation of fraud against me. While Mr. Smith was not prepared to articulate the basis of the complaints, he said that Binchy J. and I both knew the precise substance of the complaints which had been filed against us.


. Counsel for the respondent, as I have said, had not had notice of the application and so had not had the opportunity to prepare detailed legal submissions. However, counsel emphasised that the application was based on apprehended bias and that there had been no suggestion of actual bias on the part of either judge. Counsel argued that nothing had been said which would give rise to a reasonable apprehension of bias on the part of a well-informed observer. He suggested that the application gave rise to a public policy concern and that if the court were to accede to the application, this would open the floodgates to recusal applications based only on the fact of a complaint against a judge.


. In reply, Mr. Smith submitted that the full details of his complains were protected by confidentiality and that the respondent had no right to know the details. He drew a distinction between the fact of the complaints – which he said he was entitled to disclose and to rely on – and the substance or content of the complaints – which he maintained he was constrained by the confidentiality requirements of the Judicial Conduct Committee Complaints Procedures from disclosing.


. The basis of Mr. Smith's application was not absolutely clear. He...

To continue reading

Request your trial
1 cases
  • Smith v Cisco Systems Internetworking (Ireland) Ltd
    • Ireland
    • Court of Appeal (Ireland)
    • 4 October 2023
    ...parties were involved in litigation, and the appellant had brought a recusal application which was dismissed by the Court of Appeal in [2023] IECA 186. Costs were awarded to the respondent, and the appellant was invited to make submissions if he wished to contend for a different costs order......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT