Mr Justice Peter Kelly retires this week as president of the High Court, the first time the word retiring has been marked against his name in a career spanning half a century. Fearless, forthright, formidable, yes, but never retiring.
He was the judge who slammed the lack of secure places for at-risk children as a “scandal” and made an unusual order requiring the government to stick to its own pledges to build a secure unit.
He was the judge who threatened contempt charges over three government ministers until a place was found for a very disturbed suicidal girl and the one who told developer Liam Carroll he was a “disgrace” after a young worker died on site.
He was the one who awarded damages to Ryanair’s one-millionth passenger after rejecting Ryanair boss Michael O’Leary’s sworn evidence he was not bullying towards her when she phoned him about promised free flights.
That was just in Kelly’s early years on the bench. Much more followed.
Born in 1950, Kelly was brought up on Dublin’s northside in Clontarf, the eldest of Margaret and John Kelly’s four children. He attended O’Connell Christian Brothers School.
He was just 12 when his father, a senior clerk in the Chief State Solicitor’s office, took him to the Four Courts. Instantly smitten by the drama and characters, Kelly paid more visits in his teenage years.
He witnessed prominent senior counsel Ernest Wood closing the case against a famous singer being sued for damages by his partner over an assault on her when pregnant. Her leg was fractured and a pot of stew was thrown over her.
Decades later, Kelly, an excellent mimic, could cite Wood’s closing words from memory: “Gentlemen of the jury, it is customary for an advocate to have in their vocabulary words one would use to describe different types of person.
“As an advocate of over 40 years standing, having looked over the panorama of Mr X’s life, I can find no word in my vocabulary to describe a creature as base as he.”
Civil Service
Kelly was hooked, but a Bar career was prohibitively expensive. Lacking the family wealth and network available to many aspiring lawyers, he pursued a less traditional route.
After the Leaving Cert, he entered the Civil Service and went to the High Court Central Office, where he studied for the Bar exams, learning the law and its habits.
He pursued a law degree through UCD and the King’s Inns and got first-class honours in the Bar exams. The next step would normally involve unpaid work of devilling with a barrister, but Kelly worried about giving up a permanent, pensionable job.
Instead, he won promotion to administrative officer in the Civil Service and asked to be allocated to the Department of Justice which sent him to Amsterdam to do a university summer course in European law.
It was 1973, Ireland had just joined the EEC and 23-year-old Kelly was flying to Brussels and Luxembourg on a regular basis. Exciting times, and it seemed glamorous but he still hankered for the Bar.
In 1975, he took the plunge and resigned his Civil Service job. After a year devilling with senior counsel Tom Smith, he was a junior counsel working for himself and quickly built up a busy practice, doing mainly chancery work.
His sharp legal mind quickly made an impression. Just a year into his career, he made new law here when he got a judgment in Dutch guilders for a Dutch client arising from a bad debt here.
He became a senior counsel in 1986 and was much in demand. Ken Murphy, director general of the Law Society, who often briefed Kelly, was deeply impressed by his “remarkable fluency as an advocate and the clarity of his mind”.
He represented the Stardust families, he was on the winning side in the row over the takeover of Irish Distillers by Pernod Ricard and successfully represented the Aga Khan in the high-profile dispute over ownership of the Gilltown stud.
He represented, too, businessman Ben Dunne in bitter litigation over control of the Dunne family’s retail empire and acted in several major liquidations, including of the PMPA and Insurance Corporation of Ireland.
Socially conservative
When Des Hanafin challenged the 1995 pro-divorce referendum result, Kelly, who like Hanafin was regarded as socially conservative, represented the Fianna Fáil politician. Hanafin lost, but established a right to challenge a referendum petition.
The Supreme Court appointed Kelly to make arguments on behalf of the unborn when the Information (Termination of Pregnancies) Bill was referred to it by President Mary Robinson, where it was later deemed constitutional.
He was asked to represent the interests of a ward of court, a woman in a persistent vegetative state, and opposed ending nutrition and hydration for her in Supreme Court proceedings in 1996 that she be allowed to die.
Having become a High Court judge at just 46, Kelly ran a tight ship. Papers had to be in proper order and Kelly, a committed Roman Catholic, expected those who swore to tell the truth to do so and insisted on absolute silence when the oath was being sworn.
Just a year after his appointment, Kelly granted injunctions to the Health and Safety Authority closing a site of prominent developer Zoe Developments following the death of a young worker.
Having later directed Zoe boss Liam Carroll to come to court to give sworn undertakings, Kelly told him: “You are entitled to make profits on the sweat of your workers but you are not entitled to make profits on the blood and lives of your workers.”
He encouraged Carroll to make a donation to charity as a mark of “contrition”. St Vincent de Paul benefited by €100,000 and Kelly’s orders were widely welcomed within the labour movement.
By the late 1990s, Kelly increasingly dealt with cases involving at-risk children, where he was forced to send children to Garda cells or the Central Mental Hospital despite years of pledges by governments to provide secure places.
Having criticised the State’s failures as a “scandal”, he ordered in 1999 that the State should comply with the government’s own plan to provide a secure care unit within timescales it had set for itself.
That order was not appealed. A similar order a year later in a case known as the TD case prompted mutterings in government about judges interfering in matters that were the preserve of the executive. A State appeal later was a “colossal waste of taxpayers’ money”, he declared.
Separation of powers
In another case, after he warned the ministers for health, justice and education could all find themselves in contempt unless a place was found for an extremely disturbed suicidal girl who had absconded from a therapeutic unit, a place was found.
In 2001, the Supreme Court allowed the State’s appeal against Kelly’s TD order. Four of its five judges found that it was inconsistent with the separation of powers rule laid down by the Constitution.
However, Susan Denham, later a chief justice, sided with Kelly as did several legal academics who maintain judicially enforceable socio-economic rights can be read into the Constitution. The secure care units were ultimately built.
In 2003, Kelly drafted the rules for the Commercial Court, designed to speed up settlements in big business cases. Within a few years, as the property bubble burst, the vast bulk of its work was debt collection.
On July 31st, 2009, the last day of the legal year, Kelly refused an urgent petition to appoint an examiner to Zoe Developments, describing as “fanciful” assertions that the Zoe companies, insolvent with bank debt of more than €1 billion, could survive.
The survival scheme was “envisaged to help shareholders whose investment has proved to be unsuccessful” and required “extraordinary” forbearance from banks which was “remarkably absent” when banks were dealing with smaller borrowers.
Despite appeals by Zoe, the refusal of protection was twice endorsed by the Supreme Court. A parade of high-profile developers went the same way as Zoe.
During these years, Kelly kept on top of a crippling workload, dealing with weekly Monopoly-style judgments against some of the country’s biggest developers, business people, politicians, lawyers, sporting and showbiz personalities, and others.
Consistently, Kelly, who was incredulous that banks had loaned and people borrowed such enormous sums, condemned “shoddy” lending practices and the abandonment of traditional rules based on the “three Cs” – credit, collateral and character.
He described the unfinished concrete shell on Dublin’s north quays, intended as Anglo’s showy new HQ before the bank’s collapse, as a “fitting tombstone” to the so-called Celtic Tiger.
‘Cod’ defences
Cases were processed speedily. If money was loaned, it should be repaid. He rejected what he called “cod” defences, often advanced on behalf of many desperate personal litigants on “advice” from self-styled lay “experts”. Those with an arguable defence got a hearing.
Marathon litigation involving Anglo Irish Bank and businessman Sean Quinn and his family took years, seeing Kelly handing out a record €2.2 billion summary judgment against a bankrupt Quinn, once Ireland's richest man.
When Quinn briefly appeared in court saying he was a “simple farmer’s son”, Kelly responded “I’m a simple man myself” before ruling Quinn could not defend the judgment application.
Kelly, ferociously independent, was central to establishing the Association of Judges in 2011, becoming its first chair. Just weeks before it was set up, a referendum to cut judges’ pay had been overwhelmingly approved.
Seeking a voice to speak for them following a rift with the government, Kelly and many judges had regarded the efforts to cut pay as an intrusion on judicial independence. There was no love lost between them and then minister for justice Alan Shatter.
Tensions simmered. Speaking at a private dinner in 2013 to senior business figures, Kelly accused the government of “demolishing judicial independence brick by brick”. His words brought headlines.
Shatter swiftly hit back, prompting talk of a “constitutional crisis”. The Association of Judges of Ireland (AJI) strongly supported Kelly. However, both sides quickly realised that the dispute could not continue. Ultimately, relations improved considerably after Shatter’s resignation.
Some Cabinet members had admired Kelly’s AJI negotiating skills. The pay row did not stop them promoting Kelly, first as a judge of the Court of Appeal in October 2014 and, in late 2015, as president of the High Court, the third most senior judicial position in the State.
Wards of court
During his tenure as High Court president, Kelly has overhauled the wards of court system as best he could with a Victorian-era system being phased out pending the delayed implementation of the 2015 Assisted Decision Making Capacity Act.
Cases have been reviewed that had not been looked at for years, while he brought back independent medical visitors to conduct capacity assessments, involved geriatricians and took steps to ensure wards had their voices heard.
Some critics argue that this approach involves an over-reliance on medical evidence and an under-recognition of individual autonomy. Others argue that Kelly has faced life or death concerns and was hampered by a lack of State support for the elderly.
His decisions have generally withstood appeal but the Supreme Court found last year, in a complex case, more notice of the wardship process should have been given to the elderly woman involved in the case with the effect her fair procedure rights were not vindicated.
Several wards, including young people battling chronic anorexia and their families, have thanked Kelly down the years. One woman deemed to have temporarily lost capacity as a result of a brain tumour, for whom Kelly permitted surgery against her wishes, came to court with chocolates afterwards to thank him. When she said she should have brought champagne, Kelly laughed and said: “I’m a teetotaller.”
Kelly, who is unmarried and lives in south Dublin, is unlikely to be inactive in retirement. He is heading a review of the civil law justice system, expected to report later this year. He is chairman of St Francis Hospice and the Edmund Rice Schools Trust, which took over schools formerly run by the Christian Brothers, and a member of the board of the Royal College of Surgeons in Ireland. A former member of the Bar Council choir, he is a lover of classical music, opera and Italian culture and is a frequent visitor to Rome, where he has an apartment. Socially, he is described as good fun and “up for a laugh”. “He has an excellent singing voice and a sharp, sometimes wicked, wit. He can take off anyone,” one barrister said.
Abbeylara judgment
Widely respected as one of the sharpest legal minds of his generation, Kelly leaves a legacy of many important judgments. He wrote the High Court Abbeylara judgment of 2001 declaring the Oireachtas had “no inherent power” to inquire into the shooting dead by gardaí of John Carthy in Abbeylara or any matter likely to lead to adverse findings against citizens who are not members of the Oireachtas. He authored landmark judgments concerning the right to civil legal aid and the sanctity of legal professional privilege, and was part of divisional High Courts that rejected separate important constitutional actions by former Rehab chief executive Angela Kerins and United Left TD Joan Collins.
He has an impressive work ethic and excellent administrative skills. The Commercial Court, under his stewardship, was marked by the European Commercial Judges Forum as the most efficient commercial court in the EU. Several of his decisions over the years demonstrated determination to have the State meet its constitutional obligations to vulnerable citizens. His early judicial career involved vindicating the rights of at-risk children and his later years saw him advocating for wards. In both lists, he held up a mirror to Ireland’s treatment of its most vulnerable citizens and exposed glaring deficiencies. The improved treatment of wards may be his most enduring legacy. “Before Kelly, people didn’t know wards existed, they were a forgotten people,” one solicitor said. He has done the State, but more particularly the people, some service.
