Wallace v Beggan

• Jurisdiction: Ireland
• Judge: Mr. Justice Tony O'Connor
• Judgment Date: 17 February 2017
• Neutral Citation: [2017] IEHC 86
• Court: High Court
• Docket Number: [2010 No. 559 SP],[No. 2010/559 SP]
• Date: 17 February 2017

[2017] IEHC 86

THE HIGH COURT

O'Connor Tony J.

[No. 2010/559 SP]

BETWEEN

KIERAN WALLACE

PLAINTIFF

AND

GEORGE BEGGAN

AND

CATHERINE E. BEGGAN

DEFENDANTS

Constitution – Art. 34.6.1 – Administration of justice Recusal application – Fair and impartial hearing – Pre-determined opinion – Bias

Facts: The defendants had filed the present application for requesting the Presiding Judge, honourable Mr. Justice Tony O'Connor that he should recuse himself from hearing the defendants” applications, which were due to be heard in the Chancery List. The defendants asserted that since the Presiding Judge had delivered a judgment in Farrell v. Petroysan [2016] IEHC 522, in relation to the ratification of an agent's authority retrospectively, there was a reasonable apprehension that the defendants would be denied fair and impartial hearing. The defendants contended that since they had raised a similar issue, their chances of making a successful challenge to bank's authority for giving retrospective effect to the appointment of a receiver were bleak.

Mr. Justice Tony O'Connor refused the defendants” application. The Presiding Judge held that he was bound to give an impartial hearing pursuant to art. 34.6.1 of the Constitution. The Presiding Judge further held that the composition of the judges who would sit in the Chancery List on the relevant date was unknown to both the Court and the litigants and thus, it was not appropriate that such pre-mature applications would influence the Court's composition. The Presiding Judge, following the judgment of the High Court of Australia in Ebner v Official Trustee in Bankruptcy [2000] HCA 63, held that the judges were mandated to carry out the judicial functions as per their jurisdiction and the selection of cases was independent of individual choices and the judges were not at liberty to decline to hear a case without good cause. The Presiding Judge assured the parties that he had not fully apprised himself of the full facts of the present case and there was no allegation of bias or potential pecuniary interest against him that could warrant the recusal. The Presiding Judge further held that as per the common law system of administration of justice, a High Court judge was not bound to follow the judgments of the other judges strictly and thus, the orders and judgments could vary depending upon the circumstance of each case.

JUDGMENT of Mr. Justice Tony O'Connor delivered on the 17th day of February, 2017

Introduction

1 The defendants have requested that I recuse myself from hearing their applications pursuant to a Notice of Motion issued on 3rd June, 2016 seeking in terms which I abbreviate to the following:-

(i) a declaration that the deeds appointing the plaintiff as a receiver are invalid and have no legal effect;

(ii) an order striking out the plaintiff's action pursuant to O. 21(15) of the Rules of the Superior Courts (‘RSC’) which provides that where an action of the plaintiff is dismissed, the defendants counter claim may still proceed;

(iii) an order for an inquiry as to costs and losses pursuant to O. 33(2) of the RSC which allows the Court at any stage to direct inquiries or accounts to be taken;

(iv) a declaration that the plaintiff was at all material times the agent of ACC Loan Management Limited (‘ACC’);

(v) an order granting the defendants liberty to bring a counter claim against the plaintiff ‘and \ or his appointing bank’ (ACC) pursuant to O. 19(2) of the RSC (which concerns a set-off) and O. 24(2) of the RSC (which concerns a ground of defence arising pending an action).

2 The applications of the defendants are due to be heard on 8th March, 2017 in the Chancery List.

3 I am one of a number of judges assigned to hear applications and cases in the Chancery List for Hilary Term, 2017. Gilligan J. who is the ‘judge in charge’ of the Chancery List has already refused the defendants' application to recuse himself in an ex tempore judgment delivered on 1st February, 2017. That application was grounded upon the same Notice of Motion issued on 20th December, 2016 which is relied upon by the defendants in this recusal application.

4 The judge who is the subject of a recusal application initially determines whether he or she should recuse himself or herself. There is of course a right of appeal and such an appeal most recently occurred in O'Driscoll v. Hurley and Health Service Executive [2016] IESC 32. There, the Supreme Court determined an appeal by the appellant in the Court of Appeal who was unsuccessful in an application for one of the appeal court judges to recuse herself on the grounds of objective bias.

Grounds for refusal

5 The first named defendant in his affidavit sworn on 20th December, 2016 averred that the plaintiff has an ‘ unfair and decisive’ advantage due to the determination in my judgment delivered on 2nd March, 2016 in Farrell v. Petroysan [2016] IEHC 522 (‘the Petroysan judgment’).

Apprehension

6 The first named defendant averred to his ‘ strong apprehension’ that both Gilligan J. and I ‘ have pre-judged the effect of the McCleary v. McPhillips judgment [2015] IEHC 591’ due to the judgment of Gilligan J. in Fennell v. Gilroy ( ex tempore judgment of 20th April, 2016) which mentioned the Petroysan judgment in the context of the ratification of an agent's authority retrospectively.

ACC

7 Mr. Maher, solicitor for the defendants, submitted that the...