Tolan v Connaught Gold Co-operative Society Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 31 May 2017
• Neutral Citation: [2017] IEHC 351
• Docket Number: [2012 No. 12005 P.]
• Court: High Court
• Date: 31 May 2017

[2017] IEHC 351

THE HIGH COURT

Noonan J.

[2012 No. 12005 P.]

BETWEEN

FINBAR TOLAN

PLAINTIFF

AND

CONNAUGHT GOLD CO-OPERATIVE SOCIETY LIMITED

DEFENDANT

Professional Ethics & Regulation – Leave to re-enter the proceedings – Bias – Relationship of trial judge with solicitor

Facts: Following the dismissal of the plaintiff's claim by the High Court and then the Court of Appeal, the plaintiff now came to the Court seeking an order to re-enter the proceedings on the basis of alleged relationship between the trial judge and the plaintiff's solicitor. The plaintiff claimed that since the President of the High Court was the brother-in-law of the plaintiff's solicitor, the President should have recused himself from hearing the case.

Mr. Justice Noonan dismissed the plaintiff's application. The Court held that once a case had attained finality, the judgment could not be re-visited except in limited circumstances. The Court observed that objective bias was established if there was a reasonable apprehension that there was a risk that the decision maker would not be fair and impartial in the mind of a reasonable and fair-minded objective observer.

JUDGMENT of Mr. Justice Noonan delivered on the 31st day of May, 2017

1 This matter comes before the court by way of notice of motion brought by the plaintiff for a number of reliefs essentially re-entering these proceedings for the purpose of setting aside orders previously made herein on grounds including that the proceedings were tainted by bias on the part of the trial judge.

Background facts

2 The plaintiff is a farmer and cattle dealer from Claremorris, Co. Mayo. The defendant operates a number of cattle marts in which the plaintiff transacted business over a number of years. The plaintiff had a credit facility at the defendant's marts. It would appear that sometime around June 2012, a dispute arose between the plaintiff and the defendant which resulted, according to the plaintiff, in a new trading arrangement being entered into between the parties. The plaintiff complains that the defendant however reneged on its agreement. The plaintiff alleges that this resulted in him being barred from attending the defendant's marts and this ultimately caused him to go out of business.

3 Arising out of these alleged facts, the plaintiff says that he consulted Messrs. Dillon Leetch Solicitors in Ballyhaunis in September 2012. The plaintiff was initially dealt with by a partner in that firm, Mr. Robert Potter-Cogan. It would appear that Mr. Potter-Cogan, as a result of poor health, advised the plaintiff that if the matter proceeded to litigation, he would be unable to represent him. As a result, the plaintiff instructed another firm of solicitors, Messrs. John J. Quinn & Company of Longford who instituted proceedings on the plaintiff's behalf by way of plenary summons on 14th September, 2012.

4 It would appear that sometime in February 2013, the plaintiff terminated the retainer of Messrs. Quinn & Company. The plaintiff says that he was keeping Mr. Potter-Cogan up to date regarding the progress of his case and following dispensing with the services of Messrs. Quinn, Mr. Potter-Cogan introduced the plaintiff to Mr. John Brady, another member of Dillon Leetch who agreed to take over the plaintiff's representation in the proceedings.

5 It seems that during the course of 2014, the defendant brought a motion seeking to dismiss the plaintiff's claim on grounds relating to the plaintiff's alleged failure to provide particulars and discovery. This motion came on for hearing before the President of the High Court on 20th November, 2014. On that date, the President refused the defendant's application and assigned a hearing date for the trial of the 12th May, 2015, being the next available date in the Dublin non-jury list.

6 The plaintiff says he was unhappy with the fact that the trial of his claim was postponed for this length of time and he discussed this issue with his solicitor Mr. Brady and it would appear also contacted the President's registrar directly with a view to seeking to get an earlier trial date. In this regard, the plaintiff avers at para. 22 of his first affidavit as follows:

‘I immediately advised my solicitor of this development who was furious with my attempts to have my case expedited and moved to Cork. He told me the case must be heard in Dublin and in no other court and that there was a reason for this. When I question ( sic) the reason he eventually told me that his firm had discussed the case with the then President of the High Court prior to the motion heard on 20th day of November 2014 and that the President knew all about the case and that therefore the President had retained seisin of my case and was going to hear the case himself personally and ensure that no other judge heard it and make sure it got a good and proper hearing.’

7 The case came on for hearing before the President on the 12th May, 2015, and was heard over four days culminating in judgment being delivered by the President on 15th May, 2015, dismissing the plaintiff's claim. The plaintiff was represented throughout the trial by his solicitor Mr. Brady who instructed senior and junior counsel on the plaintiff's behalf.

8 In both of his affidavits sworn in support of this application, the plaintiff, who now represents himself, makes no complaint about the manner in which the case was heard by the President. He complains that what he describes as important witnesses were not called and suggest that this was in some way unsatisfactory. However, it is absolutely clear that this was entirely a matter for the plaintiff's legal team and if he had any dissatisfaction in that regard, that was between the plaintiff and his own lawyers.

9 Following the dismissal of the plaintiff's claim, the plaintiff pursued an appeal before the Court of Appeal which was heard on 19th December, 2015, when the plaintiff was again represented by solicitor and counsel. Judgment was delivered by the Court of Appeal on 5th May, 2016, dismissing the appeal and awarding the costs to the defendant. Thereafter the plaintiff attempted to appeal further to the Supreme Court but was refused leave to...