Vehicle Tech Ltd v Commissioner of an Garda Siochana
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 18 November 2020 |
| Neutral Citation | [2020] IECA 314 |
| Docket Number | Record No: 2018/42 |
| Court | Court of Appeal (Ireland) |
| Date | 18 November 2020 |
AND
[2020] IECA 314
Edwards J.
Noonan J.
Ní Raifeartaigh J.
Record No: 2018/42
THE COURT OF APPEAL
Recusal – Objective bias – Judicial review – Appellant seeking High Court judge’s recusal – Whether there was basis for apprehension of bias
Facts: The appellant, Vehicle Tech Ltd, appealed to the Court of Appeal from a judgment of the High Court (Meenan J) of 19th December 2017, and orders of the High Court arising therefrom, in respect of two motions and an adjournment application brought in these proceedings by the appellant. In the first of these motions, dated 14th December 2017, the appellant sought, inter alia, the recusal by the High Court judge from any further consideration by him of the matter. The appellant was claiming objective bias on the part of the High Court judge, arising from certain in-court exchanges between counsel for the appellant and the bench. The motion was refused on 19th December 2017. The second motion was a motion dated 16th June 2017, seeking substantive relief in the proceedings by way of judicial review. Counsel for the appellant sought an adjournment of the hearing of the motion pending an appeal against the High Court judge’s order refusing to recuse himself. The application for an adjournment was refused. Counsel for the appellant then indicated to the court that, notwithstanding the refusal of the adjournment, his client was not prepared to partake further in the matter before the court as then constituted. In the circumstances the court ordered that the motion of 16th June 2017 be dismissed. The issue that arose on this appeal was as to whether it was reasonable for the appellant to have apprehended bias on the part of the trial judge based on the facts as pleaded and recorded in the DAR transcripts and accordingly whether the trial judge erred in law in so refusing to recuse himself, or otherwise in his handling of the matter including refusing to adjourn the matter pending the appeal of the court’s refusal to recuse.
Held by Edwards J that the reasonable observer, in possession of the full facts, and not unduly sensitive, would not have construed the High Court judge’s remarks as implying that Mr Toal and/or Mr Geary had lied, or that they had misled the court; there was therefore no basis for an apprehension of bias. Edwards J held that the complaints with respect to bullying, to a display of vitriol, to vilification, and to throwing a document back to counsel in disgust, were not made out and in those circumstances could not have provided a basis for an apprehension of bias. Edwards J held that the recusal application was rightly and correctly refused. In circumstances where an adjournment had been granted on 7th November 2017 until 19th November 2017, Edwards J held that there was adequate time for the appellant’s legal team to prepare to proceed with the substantive judicial review case in the event of the intended recusal application being unsuccessful. Edwards J held that it was their professional duty to proceed with the case in the event of the application being unsuccessful and without prejudice to their right to appeal. Edwards J held that there was no justification for refusing to proceed with the matter and for withdrawing following the adverse ruling on the recusal application. Edwards J held that there was no basis for interfering with the High Court judge’s order dismissing the substantive proceedings with costs to the respondents. Edwards J held that the purported motion seeking attachment and committal was never at any stage properly before the court, and notwithstanding the appellant being given leave on 7th November 2017 to file and serve a properly constituted Notice of Motion seeking attachment and committal returnable for 19th November 2017, that was never done. Edwards J held that, because it was not properly before the court the High Court could make no order either adjourning that motion or as to the merits of the motion. The High Court judge took the view when dealing with an application for the costs of the substantive proceedings that “clearly it was intimated that there was going to be a motion for contempt and that there apparently was an ex parte docket. So, there may well - costs may well have been incurred in dealing with that aspect so I make such an order”. Edwards J saw no basis to interfere with this aspect of the judge’s order.
Edwards J held that the appeal would be dismissed.
Appeal dismissed.
This is an appeal from a judgment of the High Court (Meenan J) of the 19 th of December 2017, and Orders of the High Court arising therefrom, in respect of two motions and an adjournment application brought in these proceedings by the appellant (as applicant and moving party). For simplicity it is intended henceforth to refer to the appellant throughout this judgment as being “the applicant”. The respondents before this Court were also the respondents before the High Court and will still be referred to as such.
In the first of these motions, dated the 14 th of December 2017, the applicant sought, inter alia, the recusal by the High Court judge from any further consideration by him of the matter, upon grounds advanced in an affidavit of Francis McGuinness, a Director of the applicant, sworn on the 15 th of December 2017 and filed in support of the motion. In summary, the applicant was claiming objective bias on the part of the High Court judge, arising from certain in-court exchanges between counsel for the applicant and the bench. The motion had been opposed by the respondents, relying on an affidavit of James P Moloney, a Solicitor in the Chief State Solicitor's Office, sworn on the 18 th of December 2017 and filed in opposition to the motion. The motion was refused on the 19 th of December 2017.
The second motion was a motion dated the 16 th of June 2017, seeking substantive relief in the proceedings by way of judicial review, which had been adjourned from time to time before coming on for hearing on the 19 th of December 2017. This was the standard originating motion which issues following the grant of leave in judicial review proceedings. Following the refusal of the motion seeking the High Court judge's recusal, counsel for the applicant sought an adjournment of the hearing of the motion dated the 16 th of June 2017 (in reality the substantive judicial review hearing), pending an appeal against the High Court judge's order refusing to recuse himself. This application for an adjournment was refused.
Counsel for the applicant then indicated to the court that, notwithstanding the refusal of the adjournment, his client was not prepared to partake further in the matter before the court as then constituted. In the circumstances the court ordered that the motion of the 16th of June 2017 be dismissed.
The costs of both motions were awarded to the respondents against the applicant, said costs to be taxed in default of agreement.
A third motion, or more correctly a purported motion, features significantly in the procedural history of the case, even though that did not ultimately result in any order requiring it to be appealed. In this purported motion the applicant sought ( inter alia) the attachment and committal of the Garda Commissioner (as first named respondent) and a named garda, for alleged contempt of orders said to have been made in the High Court by Peart J. (in 2011) and by Charleton J. (in 2012), respectively, and by the District Court by Judge Larkin (on two occasions in 2013).
The Constitutional Action
The present proceedings, in which the two motions now under appeal were brought, are judicial review proceedings that follow on from the applicant's success in earlier proceedings before the High Court (Laffoy J) in 2010, in having s.31(8) of the Criminal Justice Act 1994 (the Act of 1994), as substituted by s. 21 of the Criminal Law (Theft and Fraud Offences) Act 2001 (the Act of 2001), declared unconstitutional. For a full account of the constitutional action the reader is referred to the judgment of Laffoy J. delivered on the 4 th of October 2010 in Vehicle Tech Limited v Allied Irish Banks Plc, Commissioner of An Garda Siochána, Ireland and the Attorney General [2010] IEHC 525 (“the judgment of 2010”). For the purposes of providing necessary background in the context of the present judgment, a brief summary will suffice.
Prior to the events which gave rise to the proceedings culminating in the judgment of 2010, the plaintiff (the applicant in the present proceedings) was involved in the business of the repair and sale of commercial motor vehicles. It maintained two accounts in the Ashbourne branch of the first defendant (AIB). Up until certain events of July 2008 which gave rise to the proceedings, they were operated in a satisfactory manner.
In February 2008, the relevant Irish authorities received a mutual assistance request from the Belgian authorities in relation to trucks which were stolen in Belgium, transported to this jurisdiction, sold here and, it was suspected, the proceeds of sale of which were laundered here. Arising from this mutual assistance request the Garda Bureau of Fraud Investigation (the Bureau) opened an investigation into suspected related criminal activities in this jurisdiction, including money laundering.
In the context of that investigation the Bureau identified an account to which the proceeds of sale of some of the trucks had been lodged, which, in turn, led the Bureau to the aforementioned accounts of the plaintiff in the AIB's Ashbourne branch.
On the 10th of July, 2008 a...
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