About this case:

• Citation:
  [2022] IEHC 85
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Charles Meenan

The applicant brought judicial review proceedings seeking to challenge the adoption by the Judicial Council of the Guidelines on the basis that it was ultra vires the provisions of the Judicial Council Act 2019.

Delivering judgment in the case, Mr Justice Charles Meenan held that the applicant had not met the requisite test for recusal. It was stated that judges were not affected in their judicial capacity to hear and determine the case even though they voted on the Guidelines.

Background

In March 2021, the Judicial Council voted to adopt new Personal Injuries Guidelines, which operated to generally cut the potential awards for general damages in personal injuries claims. Out of 168 judges, 146 voted on the issue. Ultimately, the Guidelines were approved by an 83-63 majority.

The applicant made an application to the Personal Injuries Assessment Board for compensation. However, she was dissatisfied with the manner in which the Guidelines were applied to her case and she subsequently issued judicial review proceedings against PIAB and the State. One of the reliefs sought by the applicant was a declaration that the Judicial Council acted ultra vires the 2019 Act by adopting the Guidelines.

In advance of any substantive or procedural hearing in the case, the applicant issued a motion seeking to have a judge assigned to the case who was not a member of the Judicial Council in March 2021 or who gave advice to the Council about the proceedings. The motion was based on the argument that any judge who voted on the Judicial Council Guidelines had a personal interest in the case and should recuse themselves from any hearing of the matter.

The motion was not contested by PIAB and the Judicial Council, who adopted a neutral position. However, the Attorney General and the State opposed the motion. In particular, it was argued that the 2019 Act expressly provided that every judge in the State was required to sit on the Judicial Council. Further, section 7 of the 2019 Act provided that the Council was under a statutory obligation to adopt draft Personal Injuries Guidelines within a set period of time.

Finally, section 93 of the 2019 Act provided that nothing in the Act “shall be construed as operating to interfere with a) the performance by the courts of their functions, or b) the exercise by a judge of his or her judicial functions”.

High Court

Mr Justice Meenan began by setting out his association with the Judicial Council. The court confirmed that it had voted on the adoption of the Guidelines but did not whether it voted in favour or against the Guidelines. The court was not a member of the Personal Injuries Guidelines Committee or a member of the Board of the Judicial Council. Finally, Mr Justice Meenan was not consulted by the Council in relation to the present proceedings.

The court moved to consider the general principles which were applicable to recusal applications. In Goode Concrete v. CRH Plc [2015] 3 I.R. 493 and Bula Ltd v. Tara Mines Ltd (No. 6) [2000] 4 I.R. 412, it was held that the test was whether the reasonable person would have a reasonable apprehension that the applicant would not get a fair hearing from an impartial judge. The test is objective in nature and therefore does not “invoke the apprehension of judges”.

In O’Callaghan v. Mahon [2008] 2 I.R. 514, it was held that objective bias was established “if a reasonable and fair minded objective observer, who is not unduly sensitive, but who is in possession of all the relevant facts, reasonably apprehends that there is a risk that the decision maker will not be fair and impartial”.

The case law also emphasised that judges had a right to hear and determine cases unless there were substantial reasons not to do so (Commissioner of An Garda Síochána v. Penfield Enterprises Ltd [2016] IECA 141). Further, the court outlined the importance of the judicial oath under Article 34 of the Constitution, where judges swore to act “without fear or favour”.

The court moved to consider section 93 of the 2019 Act. The court held that it led to two conclusions. First, it was said that the adoption of the Guidelines “was not a pronouncement on their legality”. Second, it was held that, in voting on the Guidelines, any opinions held by a judge did not interfere with their judicial functions. It was held that any judge would still be able to make an impartial and fair decision despite having voted on the Guidelines.

The court held that a reasonable observer would be aware of these factors and therefore stated that the applicants had not met the test for the recusal of judges who voted on the Guidelines.

Conclusion

The application was refused.