High Court: Farmer who alleged trial judge bias has application to set aside judgment dismissed

About this case:

• Judgment:
  External link

Mr Justice Seamus Noonan described the farmer’s complaint as “extremely unusual and quite possibly unique” in that the allegation of bias was based on the fact that the trial judge was the brother-in-law of the farmer’s own solicitor.

Background

During the period from 2014 to 2016, Mr Finbar Tolan, a farmer and cattle dealer from Co. Mayo brought proceedings against Connaught Gold Co-Operative Society Limited which were ultimately unsuccessful in the Court of Appeal.

The present proceedings before the High Court arose from Mr Tolan’s allegation that the trial judge, President of the High Court Mr Justice Nicholas Kearns, should have recused himself from hearing the case and that the hearing was tainted by bias. Mr Tolan contended that the entire proceedings should be set aside and the case re-heard before an impartial judge.

The allegation of bias arose in circumstances where President Kearns was a brother-in-law of Mr. Robert Potter-Cogan – Mr Tolan’s own solicitor in the original proceedings.

Jurisdiction of the High Court

Considering cases in which the Supreme Court addressed the circumstances in which a Court order could be set aside on grounds of bias, Justice Noonan considered the dicta of Supreme Court judges in Kenny v. Trinity College Dublin 2 I.R. 40; Bula Limited v. Tara Mines Limited (No. 6) 4 I.R. 412; and Talbot v. McCann Fitzgerald IESC 25.

On the basis of these cases amongst others, Justice was satisfied that there was no doubt that the Supreme Court, as the final appellate court of the State, would have jurisdiction to review its own judgments in the extremely rare and exceptional circumstances

However, Mr Tolan was asking the High Court to set aside a final judgment of the Court of Appeal.

Justice Noonan stated that he could not “conceive of any basis upon which the High Court, on any grounds, could purport to set aside a judgment of the Court of Appeal or the Supreme Court for that matter”.

Bias

Justice Noonan was of the opinion that Mr Tolan’s application was extremely unusual and quite possibly unique – in that such allegations of bias were usually made because of some connection or link to the defendant.

Applying the test in Bula Limited v. Tara Mines Limited (No. 6); quite apart from the issue of whether this court could have any jurisdiction to intervene in this matter, Justice Noonan stated that he could not “envisage how the mere fact alone that the trial judge is related by marriage to the plaintiff’s solicitor could conceivably give rise to an ordinary reasonable member of the public having a reasonable apprehension that the plaintiff would not have a fair hearing from an impartial judge”.

The legal test of bias is predicated on the assumption that a reasonable person might reasonably apprehend bias on the part of a judge in favour of the party with whom the judge has a connection.

Justice Noonan said that it “would make no sense to suggest that a reasonable person would have a reasonable apprehension that a judge would be biased against the party with whom the judge has such connection”.

Logically therefore, it was difficult to see how the test could be satisfied in these circumstances.

Justice Noonan then discussed the “more serious allegation” that the trial judge discussed the case directly with Mr Tolan’s solicitor in advance. This allegation was purely hearsay, and no admissible evidence established this fact.

Accordingly, there was no conceivable basis upon which Justice Noonan “would be entitled or justified in interfering with the final orders and judgments already pronounced in these proceedings”.

Further, considering the fact that the defendant in the proceedings was “quite blameless in relation to the matters complained of” – even if jurisdiction could be said to arise, Justice Noonan was satisfied that its exercised would be “highly prejudicial to the defendant, an entirely innocent party, and the justice of the case would require refusal”.

Mr Tolan’s application was therefore dismissed.