The Supreme Court has overturned rulings made by a High Court judge in proceedings by Goode Concrete against cement giant CRH on grounds of alleged objective bias arising from the judge holding CRH shares valued at some €135,000.
Chief Justice Susan Denham said, if judges themselves hold shares in a company involved in litigation before them, as opposed to shares held in a pension plan or unit over which they have no control, they should "generally" not hear the action.
The disputed rulings, all unfavourable to the Goode side, were made between late 2010 and 2012 by Judge John Cooke, since retired, on pre-trial matters in Goode Concrete's action over alleged uncompetitive practices by CRH. The issues will now be reheard before a different High Court judge.
By a four to one majority, the Supreme Court granted Goode’s appeals against the rulings after finding Judge Cooke erred in law in hearing the applications due to reasonable apprehension of objective bias due to his CRH shareholding.
Judge Cooke held the shares himself, they were not in a trust or any other type of fund, the Chief Justice said.
Judge Cooke, who retired last year, told the sides when the case began in November 2010 he believed he had “a very small number” of CRH shares “somewhere in my pension fund”. In November 2012, Goode objected to his hearing any further matters, saying it had learned from its own inquiries some months earlier he had a CRH shareholding in December 2010 valued at some €135,000.
Goode objection
Dealing with the Goode objection in court in November 2012, Judge Cooke said, as a judge of the European Court, he lived outside Ireland for 12 years up to 2008 and in 2010 had some 15 different investments managed by advisers which he was not following on a daily basis. When the Goode case came before him in 2010, he had said he believed he had a small shareholding in CRH and he was unaware further shares in CRH were bought later in 2010 after he took up the case.
If anyone “had had the courtesy to come back to me at any stage”, he would have made the necessary inquiries about the actual number of shares and “quite happily saved myself the task of writing three different written judgments”, the judge added.
Giving the majority Supreme Court judgment, the Chief Justice said the allegation of objective bias was of importance for the parties and “of even more significance as it is required to be considered in the context of the administration of justice”.
The test for considering whether a judge should recuse themselves was whether a reasonable person would, in general, have concern if a judge held shares themselves in a company which was a party in an action before that judge.
This test was consistent with the long established maxim no person should be a judge in their own cause and “a fundamental building block of the principle that justice should not only be done but should be seen to be done”.
Analysis of alleged perceived bias is a matter not just for the parties, or the trial judge, but there is also “the fundamental concern for the maninfest imparial administration of justice and the confidence which the people rest in the judiciary”.
Full facts
In this case, the full facts were not before the court and were neither known to Judge Cooke nor the parties in Novemebr 2010 when the judge raised the CRH shareholding, she said. No inquiry was made when the issue was raised.
It is the judge’s responsibility, not that of parties, to make the necessary inquiries into their shareholdings in a company in litigation before them, and to inform the parties, so “an informed assessment” may be made whether a judge should recuse themselves.
Because the “fundamental issues”, being the adminsitration of justice and alleged objective bias, are “so important”, she had not addressed the isseue of how the shareholding ultimately came before the court, the judge added.
Mr Justice John MacMenamin, concurring, stressed the court’s judgments were not to be seen in any way as a reflection on the integrity of Judge Cooke who “has served with distinction” in the Irish and European courts. The appropriate court for an application to set aside a judgment on grounds of objective bias was the High Court, he added.
Dissenting, Mr Justice Adrian Hardiman said he believed Judge Cooke behaved with "absolute propriety" and the allegation of objective bias was "a contrivance" designed to get rid of three adverse decisions against Goode.
While the law and practice on objective bias needs “firm restatement”, this was not the case to do that as Judge Cooke had behaved fully in accordance with the law as it was at the relevant time.
