Court of Appeal: Claim of judicial bias rejected

Andrew McKeown BL

About this case:

• Citation:
  [2020] IECA 289
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Maurice Collins

Background

In 2014, Ms Houston sought damages for defamation from Wendy Doyle, a solicitor. Those proceedings were settled in 2017, with an order made on consent by Mr Justice Colm MacEochaidh that Ms Houston would pay Ms Doyle’s costs. These were subsequently taxed by the Taxing Master at €58,888.89. Ms Houston did not appeal this Order or amount.

Ms Houston separately brought District Court proceedings against Ms Doyle in 2015, alleging that fees were due to her. That claim was dismissed in April 2017, with an order for costs of €4,700 in favour of Ms Doyle. Ms Houston did not appeal.

Ms Doyle applied to the Property Registration Authority to have judgment mortgages registered against property owned by Ms Houston in Naas. Proceedings were commenced by Ms Houston in July 2017, where she asserted that the orders grounding the judgment mortgages on her property were “void” or “voidable”. The Statement of Claim was entirely silent as to the basis on which they were void or voidable.

Prior to the service of those proceedings on Ms Doyle, Ms Doyle issued well-charging proceedings in September 2017. Ms Houston unsuccessfully applied to have it struck out as being frivolous and vexatious, and it came on for hearing before Mr Justice Senan Allen in March 2019. The judge made the orders sought by Ms Doyle, including an order for sale in default of payment. The judge said that he would place a stay on the order for sale only in the event of appeal. Having lodged an appeal, Ms Houston applied for a stay, which was ordered by consent. On appeal, the Court of Appeal, in April 2020, upheld Mr Justice Allen’s judgment.

Ms Doyle claimed that Ms Houston’s proceedings claims were res judicata and amounted to an abuse of process. Her solicitors called on Ms Houston to discontinue, failing which a motion to dismiss would be brought. Ms Houston did not discontinue the action.

In April 2019, Ms Doyle issued a motion seeking an order dismissing the claim. Ms Houston’s replying affidavit did not engage with or dispute Ms Doyle’s contention that the issues in the proceedings were res judicata. She claimed the High Court did not have jurisdiction to hear the motion because Mr Justice Allen’s judgment and order, the basis for the motion, were under appeal to the Court of Appeal. She also alleged that Ms Doyle had been “masquerading” as a solicitor as of March 2019. That “far-fetched contention” did not feature in her later submissions to the Court of Appeal.

In October 2019, Ms Houston issued a motion seeking the joinder as defendants of partners in the firm of Tully Rinckey, where Ms Doyle was for a time a partner. She alleged that any standing that Ms Doyle had “travelled with her” into this firm when she became a partner there, and that it remained with that firm when her partnership with it terminated. She also sought an order that Ms Doyle “and/or her successor” pay the High Court defamation costs.

Ms Doyle’s application to dismiss and Ms Houston’s joinder application came on for hearing in December 2019. Ms Houston sought Ms Justice Leonie Reynold’s recusal, on the grounds of bias. She alleged Practice Direction HC 75, which relates to certificates of readiness in non-jury and chancery actions, had not been complied with in the well-charging proceedings, and alleged that this amounted to a criticism of Mr Justice Reynolds, as she was in charge of the Chancery list. Ms Justice Reynolds did not, in fact, have any involvement in the Well-charging proceedings. Ms Houston said that the Honorable Society of King’s Inns had intervened in an application made by Ms Houston in proceedings before Mr Justice Paul Gilligan, and alleged that such intervention had been on the instructions of the Benchers, including the Judge. Ms Justice Reynolds indicated that she knew nothing of any such application or intervention.

The costs order made in the defamation proceedings was, she said, made under duress. She claimed to have “won”, but had not appealed the costs order or sought to have it set aside, stating the appeal courts were “closed to me”.

The Judge concluded the proceedings were an abuse of process, disclosed no reasonable cause of action, were bound to fail and ought to be dismissed. She therefore refused the joinder application, and made an Isaac Wunder order against Ms Houston “not just as against Ms Doyle or indeed the proposed co-defendants in these proceedings, but as against any other parties, as I have grave concerns about the costs that have already been incurred in these proceedings.” She was restrained from instituting proceedings without prior leave of the President of the High Court.

The Judge proceeded to make the costs orders. She refused to direct a stay on the basis that to do so would undermine the effect of the orders she had made, which were intended to bring the proceedings to an end.

Ms Houston appealed.

The Court of Appeal

The judges were provided with the DAR transcript of that hearing. Ms Houston said it may have been “tampered with”, but there was no reason to regard it as other than an accurate record. The court said that “a great many matters” were raised by Ms Houston which “have no basis in the evidence.” The judges said that Ms Houston, as a barrister, is “well aware that submissions made by a party, or by counsel on behalf of a party, do not constitute evidence.” Ms Houston criticised a number of judges of the High Court in her submissions. There was “no evidence before the Court that could on any view justify any of these criticisms.”

Ms Houston referenced the fact that the members of the Court of Appeal were all judicial benchers of the King’s Inns, alleging the court was biased against her. This was rejected.

Mr Justice Maurice Collins said that the objection taken by Ms Houston in the High Court was one of actual bias. On appeal, she maintained that allegation but also sought to make a case of objective basis. No such case was made in the High Court. The justice referred to the judgment of Mr Justice Adrian Hardiman in Goode Concrete v CRH plc [2015] 3 IR 493, where he said “[a]ctual bias means what it says.” Mr Justice Hugh Geoghegan noted in Orange Limited v Director of Telecoms (No 2) [2000] 4 IR 159 that for an allegation of actual bias on the part of a judge to be established, “it would be necessary actually to prove that the judge .. was deliberating setting out .. to hold against a particular party irrespective of the evidence.”

There was no material before the Court capable of justifying any suggestion of actual bias on the part of the Judge. Ms Houston’s Practice Direction argument was “utterly specious.” The court rejected her arguments, “equally without foundation” that Ms Justice Reynolds being a Judicial Bencher could ground an allegation of bias. Mr Justice Collins said that it was “quite unfair for Ms Houston to seek to make a different case on appeal.” The judge noted that even if objective bias had been relied on, the test for recusal on grounds of objective basis would still not have been met (Permanent TSB Group Holdings plc v Skoczylas [2020] IECA 1)

Ms Justice Reynolds had pressed Ms Houston to explain the basis for the allegation of actual bias, and she was “perfectly entitled to do so. She could not properly adjudicate on the recusal application without knowing the basis for it. If Ms Houston was surprised to be questioned in that way, she had no right to be.”

As to claims that the defamation costs order was made under “duress”, the court said her complaint seemed to be that it was that her defamation claim was “forced on” by the judge in charge of the jury list, for which there was no evidence, “but how that might have led Ms Houston to agree to pay the costs of an action she claims to have ‘won’ is entirely unclear”.

The judges were “unable to understand the point being made” by Ms Houston’s allegations that the District Court order amounted to some form of double recovery by Ms Doyle. “All of these orders could have been appealed but were not. The District Court could have been judicially reviewed. The suggestion in the Statement of Claim that the orders could not be appealed or reviewed because they were void or voidable is entirely without merit or force whatsoever, as is the suggestion made in submission that the appeal courts were ‘not open’ to Ms Houston.”

Ms Houston characterised the Isaac Wunder order as a “statutory instrument from another country” which, she claimed “is unconstitutional simpliciter in Ireland.” The Isaac Wunder jurisdiction was affirmed in many cases, including Irish Aviation Authority v Monks [2019] IECA 309 and Kearney v Bank of Scotland plc [2020] IECA 92. The Superior Courts clearly, per Riordan v Ireland (No 4) [2001] 3 IR 365, have a jurisdiction to so order. Ms Houston’s submissions in this regard were rejected.

However, such orders should be “very rare” (O’Malley v Irish Nationwide Building Society (Unreported, High Court, 21 January 1994)), and it follows from Sfar v Minister for Agriculture [2020] IECA 206 that, in principle, it will be a breach of constitutional justice to make an Isaac Wunder order without affording the affected person a right to be heard in relation to the proposed order. No such hearing occurred in this case.

Conclusion

The court set aside the Isaac Wunder order, but affirmed the other orders of the High Court.