Three years ago newly appointed Supreme Court judge Séamus Woulfe faced down calls by a Chief Justice to resign, after his attendance at a golf dinner during a pandemic sparked an extraordinary rift with his colleagues. Today, he has settled in as an ordinary presence on the country’s top court.
After that unprecedented start to his judicial career, Woulfe has for more than two years heard cases alongside judges who in autumn 2020 all believed that he, as then chief justice Frank Clarke told him, had caused “significant and irreparable” damage to the court.
The rift arose from the controversy dubbed “Golfgate”, which led to the resignation of then European commissioner for trade Phil Hogan, then minister for agriculture Dara Calleary and Seanad leas cathaoirleach Jerry Buttimer.
They, and Woulfe, attended an Oireachtas golf society dinner at a hotel in Clifden on August 19th, 2020, during the operation of public health guidelines issued in response to the Covid-19 pandemic.
A public controversy erupted amid allegations that politicians and a senior judge had contravened restrictions concerning indoor gatherings. Woulfe apologised over his attendance but pressure to resign mounted on him after the high-profile political resignations.
Retired chief justice Ms Justice Susan Denham, who was asked by the Supreme Court in August 2020 to report on Woulfe’s attendance, expressed the opinion he should not have attended the dinner but it was not a resigning matter.
The matter might have rested there but tensions heightened after the Supreme Court published transcripts of interviews between Denham and Woulfe. Some believed those indicated the judge did not fully appreciate the level of public concern over his attendance at the golf dinner.
In November, then chief justice Frank Clarke met Woulfe and published correspondence between them. In it, Clarke expressed his personal view that Woulfe should resign, but the latter refused, reiterating that he had broken no law and citing judicial independence.
After the publication, the matter entered the political arena, triggering fears of a constitutional crisis, but Government leaders could not agree on a common approach.
By late 2020, the controversy had petered out and Woulfe’s relationship with other members of the court improved steadily.
Factors that assisted his rehabilitation included that he did not sit on the Supreme Court bench until early 2021, Clarke’s retirement that year, and the acquittal of four people in February 2022 of charges related to organisation of the golf dinner.
Galway District Court Judge Mary Fahy, having heard from several witnesses including Woulfe, found the event was organised within the rules and with due care to public health.
“These were all responsible people who would not have gone to a dinner unless they felt comfortable and unless the organisers had not put in place all that was required to make it safe,” she said.
Woulfe was appointed to the Supreme Court in late July 2020, just days before the superior court’s long summer vacation and some five months after he stepped down as attorney general. He was appointed to the latter post in 2017 by Taoiseach Leo Varadkar to whom he was regarded as a close adviser.
Woulfe had no experience as a judge of any court before his appointment to the top court was recommended by the Judicial Appointments Advisory Board. According to then taoiseach Micheál Martin, his appointment was not part of government negotiations. Serving judges made expressions of interest to the Minister for Justice but only Woulfe’s name was brought to Cabinet.
In the three years since his appointment, Woulfe has had a judicial crash course, sitting as a judge of the High Court and Court of Appeal, before finally sitting alongside his Supreme Court colleagues in Spring 2021.
The crash course was suggested by Clarke as a means of informally resolving the Golfgate dispute. There was no obligation on Woulfe to undertake it but he acquiesced in what many perceived as an effort to improve relations within the court. He also participated in training modules organised for new judges by the Judicial Council.
According to an informed source, “decidedly frosty” accurately described the relationship between Woulfe and some Supreme Court judges in the months immediately after Golfgate.
From early 2021, according to sources, relations improved considerably, and since then it has in effect been business as usual.
“All members of the court are acutely conscious of the importance of collegiality, and relations between the judges are professional. They know they must work together, [and] they do. No one says they need to be best friends,” said one source.
From February 2021, after some months sitting in the High Court and on the Court of Appeal bench, Woulfe was part of panels of three Supreme Court judges entrusted with deciding, in private, whether to approve or reject applications for leave to appeal to the Supreme Court. Their decisions, known as determinations, are published online.
Woulfe continues to form part of such panels and has also regularly sat as part of the Supreme Court bench hearing appeals over the past 2½ years.
Since the establishment of the Court of Appeal, the nine-member Supreme Court’s workload has been reduced substantially and is confined to appeals raising legal issues deemed of general public importance. Most appeals are heard by five judges, except for a minority deemed to raise issues of such importance that they are heard by seven.
Woulfe, like all his colleagues, has formed part of the court dealing with some, but not all, appeals. The fact he was attorney general until early 2020 would mean he could not hear certain appeals.
According to the Courts Service website, he had, up to the end of the last law term on July 31st, authored some 30 published judgments, including of the High Court, Court of Appeal and Supreme Court.
Those include some substantive judgments, none so far regarded as of exceptional legal significance. He has also delivered judgments either dissenting or concurring with a main judgment and judgments dealing with costs issues.
His judgments have addressed a range of legal issues, including judicial review, planning, constitutional, employment, and criminal and defamation law.
His most recent Supreme Court judgment, delivered in late July, dismissed a Dublin man’s appeal against his conviction for murdering a love rival whom he had found sleeping with his long-term partner.
His was the main judgment of the five-judge court who unanimously agreed that the appeal by Keith Connorton (44) against his 2019 conviction for the murder of 32-year-old Graham McKeever, at Deerpark Avenue, Tallaght, on February 18th, 2017, should be rejected.
Connorton had secured an appeal to the Supreme Court centred on the admissibility of a recording of a 999 phone call made by Connorton’s partner.
Woulfe upheld the trial judge’s decision that the call was admissible under a legal exception to hearsay evidence known as “res gestae”, relating to a relevant, spontaneous statement made during the event.
Some of Woulfe’s judgments involved decisions on planning matters that are unlikely to have been welcomed by residents’ groups and environmentalists.
He authored a unanimous Supreme Court judgment of November 2022 dismissing an appeal by Ballyboden Tidy Towns Group over the High Court’s dismissal of the group’s challenge to the lawfulness of a permission of An Bord Pleanála for works aimed at alleviating flood risk in the Whitechurch stream area in Rathfarnham.
Flood defence works were at issue in another late 2022 judgment of Woulfe’s, on behalf of the Supreme Court, which dismissed an appeal by Save Cork City Community Association concerning a permission granted to Cork City Council for such works at Morrison’s Island in the city. The judge upheld a High Court finding that the board has jurisdiction to conduct a screening for an Environmental Impact Assessment in an application under section 177AE of the 2000 Planning Act.
In another late 2022 judgment for the court, he upheld the Court of Appeal’s rejection of a challenge by objectors to planning permission for a wind farm.
Some of his judgments have been welcomed by lawyers advocating for the rights of employees.
In March 2022, he upheld a High Court decision to remit issues to the Labour Court concerning whether the use of successive fixed-term contracts was objectively justified in a case involving the chief financial officer of the Saolta Universal Healthcare Group, Maurice Power.
The case raised issues about the use of successive fixed-term contracts or relationships and the Employees (Fixed Term Work) 2003 Act, which was introduced to give effect to the European directive aimed at preventing abuse of such contracts.
In a dissenting judgment last May in a separate appeal concerning employment law issues, Woulfe disagreed with the majority Supreme Court decision allowing an appeal by the Health Service Executive against a Court of Appeal finding that the HSE was not entitled to require a medical consultant, Prof Ray O’Sullivan, to take administrative leave with pay, pending the completion of an investigation into certain aspects of his conduct.
Woulfe held the suspension decision, taken 11 months after the conduct complained of, was unreasonable and an unlawful abuse of contractual power.
In May 2022, Woulfe and Gerard Hogan dissented from the majority Supreme Court decision, in a case upholding a conviction for sexual assault against an accused who was aged 14 at the time.
The accused’s conviction arose from an incident where he smacked a younger boy on the bottom while some children were playing in fields. The majority Supreme Court held he not only intended to commit an assault but intended to commit a sexual assault.
Woulfe concurred with Mr Justice Hogan’s reasoning why the sexual assault conviction should be set aside and replaced with a conviction for assault under the Non-Fatal Offences Against the Person Act 1997.
It seemed “very harsh” and “unfair”, Woulfe remarked, that a young person in the position of the accused would be automatically made subject to the sex offenders’ regime in the absence of the prosecution demonstrating he had intended to commit a sexual assault.
Woulfe was also part of a five-judge court that delivered an important judgment in March 2022, in the case Higgins v Irish Aviation Authority, concerning the law on defamation.
That appeal concerned Pádraig Higgins, a commercial airline pilot who was awarded €387,000 damages by a High Court jury against the regulatory authority over admittedly defamatory emails concerning him. The Supreme Court allowed Higgins’s appeal over a Court of Appeal decision, reducing the damages to €76,500, and decided the appropriate damages were €202,500 damages.
The court’s main judgment, authored by Mr Justice John MacMenamin, since retired, set important guidelines for juries when it comes to assessing damages for defamation.
Woulfe concurred with MacMenamin’s main findings and specifically disagreed with Hogan, who dissented, that judicial deference to jury awards in defamation cases was changed by section 13 of the Defamation Act 2009. Section 13 provides the Supreme Court may substitute, for any damages awarded to a plaintiff by the High Court, such damages as it considers appropriate.
There is “compelling logic and common sense” underlying such judicial deference, said Woulfe. Relevant considerations, he outlined, include the fact that the damages were assessed by a jury whom he described as a “representative and randomly selected” sample of the population, under the guidance of an experienced judge. Another crucial factor is that the jury has seen and heard the witnesses, unlike an appellate court, he said.
He would be wary, the judge said, of any “strict categorisation” of defamation cases for the purpose of guidelines on awards. He “fully agreed” with MacMenamin’s caution that any guidelines cannot be applied rigidly and much will depend on the circumstances of each case.
Now aged 61, Woulfe is among the younger members of the Supreme Court. Some suggest his ambitions extend to being appointed Chief Justice, and many will watch future developments on the top court with interest.
