Tracey v Minister for Justice & Equality

CourtCourt of Appeal (Ireland)
JudgeMs. Justice Pilkington
Judgment Date21 December 2020
Neutral Citation[2020] IECA 359
Docket NumberCourt of Appeal Record No. 2019/495
Kevin Tracey
Plaintiff / Appellant
Minister for Justice, Equality and Law Reform, Ireland, The Attorney General, The Commissioner of an Garda Siochána and The Director of Public Prosecutions and The Courts Service and Keith Lambe
Defendants / Respondents

[2020] IECA 359

Costello J.

Murray J.

Pilkington J.

Court of Appeal Record No. 2019/495

High Court Record Numbers: 2007/7939P


Recusal – Costs – Case management – Plaintiff seeking an order setting aside orders awarding the costs of a recusal application to the defendants – Whether the High Court correctly considered and applied the appropriate authorities

Facts: The High Court, in a judgment delivered on 25 October 2019, refused a recusal application by the plaintiff, Mr Tracey, in respect of this and four other proceedings. In a further judgment on 4 November 2019, the High Court made orders awarding the costs of the recusal application to the defendants, the Minister for Justice, Equality and Law Reform, Ireland, the Attorney General, the Commissioner of An Garda Siochána, the Director of Public Prosecutions, the Courts Service and Mr Lambe, and also gave further directions as to the ongoing case management of the litigation. In his notice of appeal, the appellant stated that the order that would be sought from the Court of Appeal was: “To set aside the order of 04 November 2019 inclusive of costs and to have the recusal application dealt with in accordance with natural justice, natural law and the rights to Constitutional justice guaranteed under the Constitution. To recuse the court dealing with the case management principally due to demonstrated bias, abuse of process, errors of law, pre-judgment, lack of fair procedure, lack of equality of arms, lack of fair balance and lack of impartiality. Regardless of the appellant’s status as a litigant in person, to allow the existence of due course of law and fair procedure in accordance with the Bangalore Principles, the Constitution and the European Convention on Human Rights (enshrined in Irish law in 2003)”.

Held by the Court that the High Court comprehensively dealt with all of the matters raised by the appellant both within his recusal application and the costs application, consequent upon the judgment of 25 October. The Court held that the High Court correctly considered and applied the appropriate authorities. The Court held that where a recusal argument becomes little more than a rehash of the original case made, in essence on the basis that the bias of the trial judge is evident by his disagreement with the orders sought by the litigant, then such an application for recusal is unstateable. The Court held that this was the position in respect of the appellant’s appeal.

The Court held that the appeal would be dismissed.

Appeal dismissed.

No Redactions Needed

JUDGMENT of Ms. Justice Pilkington delivered on the 21 st day of December 2020


In a judgment delivered on 25 October 2019 Eagar J. refused an application by the plaintiff to recuse himself, in respect of this and four other proceedings.


In a further judgment on 4 November 2019 Eagar J. made orders awarding the costs of the recusal application to the defendants and also gave further directions as to the ongoing case management of the litigation.


The plaintiff is a litigant in person, albeit one with considerable experience of litigation and court procedures. His Notice of Appeal is unusual in that it explicitly seeks to appeal only the order of Eagar J. of 4 November 2019. There is no appeal from the order of 25 October 2019.


The defendants urged the court to only consider the later order. The appellant's wide-ranging submissions dealt with both the substantive application and the costs order and indeed, if anything, focused more upon the judgment of 25 October 2019 than the subsequent costs order. In addition it is difficult, if not impossible, to consider an appeal in respect of an order for costs other than by reference to the application itself. In those circumstances this court has considered both judgments.


As has been pointed out by the Supreme Court in its judgment, Tracey & anor. v. McDowell & ors. [2016] IESC 44, within this litigation instigated by Mr. Tracey, by 2010, in one guise or another, there were some seven sets of proceedings where the plaintiff was the principal moving party and elements of the State were defendants. Within this appeal, the sixth named defendant (the Courts Service) is separately represented, with all other defendants instructing the Chief State Solicitor's Office. The State defendants point out, within their submissions, that Mr. Tracey has initiated twelve plenary actions against State defendants, in addition to other proceedings.


In essence these proceedings deal with various claims by the plaintiff arising out of an incident at Áras Uí Dhálaigh in July 2006 and a subsequent prosecution in connection with the same incident. Eagar J. noted in his judgment that the plaintiff claims, amongst other matters, to have been subject to a particular conspiracy, collusion and malicious prosecution, an abuse of legal process including false summonses, false prosecutions, false fines, false indorsement of licence and false warrant of arrests for false imprisonment.


The background to this aspect of the matter begins on 4 March 2011 when, by order of the then President of the High Court (Kearns J.), six named proceedings (including this one) were struck out. Mr. Tracey is the plaintiff in all cases, in some with his wife as co-plaintiff. It is noteworthy that one of the terms of the order of 4 March is a refusal ‘that this court would recuse itself’. The dismissal of all proceedings (but not it appears that part of the order refusing recusal) was then appealed. That appeal was allowed by the Supreme Court (referenced above) and the order of the trial judge dismissing the proceedings was discharged.


Clarke J. (as he then was) delivered the judgment of the court on 26 July 2016 and described Mr. Tracey as an experienced litigant before the court. In the course of his judgment he dealt with the application by Mr. Tracey that his fellow judges, MacMenamin and Charleton JJ., recuse themselves on the basis of what Mr. Tracey contended was a reasonable apprehension of bias against him. Both judges had been involved in a previous case concerning Mr. Tracey, Tracey t/a Engineering Design & Management v. Burton & ors. [2016] IESC 16, the judgment of the court in that case was delivered by MacMenamin J. (with which Charleton J. and Denham C.J. agreed)..


In considering the recusal application Clarke J. noted;

“4.3 It does have to be recorded that there is an increasing tendency of litigants to allege bias arising largely out of the fact that a judge or judges had previously heard a case involving the litigant concerned and found in favour of the litigant's opponent. Sometimes, although in fairness to Mr. Tracey this is not such a case, the argument is little more than a rehash of the original case coupled with the contention that the judge must have been biased to have found against the relevant party. Such an application for recusal is unstateable.”


Having analysed the judgment which Mr. Tracey contended disclosed bias, Clarke J. continued:

“4.7 I have engaged in that somewhat detailed analysis of the judgment for the purposes of demonstrating that the allegation of bias was entirely misconceived. It failed to address the central finding of the Court which was to the effect that, in the absence of a clear statement that a claim in defamation was being made, a case cannot be treated as a defamation case by implication.

4.8 For those reasons I strongly supported the view of the Court that the claim of an appearance of bias and thus the suggestion of recusal was entirely misconceived and should be rejected.”


Within the same judgment, Clarke J. directed that, amongst other matters, the litigation be listed before the President of the High Court, or a person nominated by him, for the purposes of ongoing case management. Eagar J. was the person nominated by the then President (Kelly P.) and has been dealing with the case management of all proceedings since then. In respect of the other two proceedings; one had been previously struck out by Charleton J. on 29 June 2010 and another, was transferred by Eagar J. in July 2017 for a trial by jury. It was thereafter the subject of a jury trial before Coffey J. and then Barton J. in which the plaintiff's action was unsuccessful. Thus five actions now remain.


By order on 8 June 2018 (perfected on 5 July 2018) Eagar J. made an order in these proceedings in respect of Mr. Tracey's application for discovery against all defendants. The order runs to some six pages setting out the specific categories of documents contained within his order.


In the course of an application before Eagar J. on the 18 February 2019 the plaintiff initially requested that the judge recuse himself. He was informed, correctly, that this required a formal application.


On 19 June 2019 Eagar J. issued what he described as a ‘ruling’. It directs the transfer of these plenary proceedings to a jury list for 20 June 2019. Within this ruling Eagar J. also set out and dealt with the background of ongoing issues advanced by Mr. Tracey in respect of the discovery furnished by both defendants (Mr. Tracey also accuses them of dishonesty in that regard) and his complaints with regard to appropriate inspection facilities. These issues are dealt with in some detail by Eagar J. He also considers Mr. Tracey's renewed submission that he recuse himself.


In the ruling of Eagar J. he stated:

“15… This and all the other matters came before the court on the 20 th May 2019. The court dealt with some other matters which again were matters for which a jury trial is sought. In...

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