John Rooney (plaintiff/appellant) v The Minister for Agriculture and Food, the Minister for Finance, the Taoiseach, Ireland and the Attorney General, Donal McDaid, Patrick Delaney, the Irish Farmers Association, ERAD the Management Board for Disease Eradication, Alan Gillis, Patrick Delaney, Denis Coffey, Terence O'Connor, Denis G. Hickey, James Noonan and John Malone - as board members of ERAD the Management Board for Disease Eradication, the Minister for the Public Service and the Ombudsman (defendants/ respondents).
Administrative Law - Bias - Independence and impartiality of judges - Whether reasonable apprehension of bias - Diseases of Animals Act 1966 - Bovine Tuberculosis (Attestation of the State and General Provisions) Order 1978 (SI 256 of 1978) - - Bunreacht na hEireann, article 34.5.1.
The Supreme Court (the Chief Justice Mr Justice Keane, Mrs Justice Denham, Mr Justice Murphy, Mr Justice Murray and Mrs Justice McGuiness); judgments delivered 23 October 2000.
It is fundamental to the administration of justice that judges should be independent from and impartial to other organs of the State and also from any fact, event or person extraneous to evidence properly admitted and submissions as to law made. A distinction must be drawn between those many factors such as education, religion, age and upbringing which may well be seen as influencing the decision of a judge and extraneous factors specific to a particular judge. The factors with the potential for influencing judgments or appearing to have that effect and falling outside a broad, but ill defined, range of permissible factors are not inherently improper. They would frequently represent personal relationships, social activities or specific commercial investments. It has long been practice for judges in this State and other persons exercising quasi-judicial functions to disclose the existence of any factor which either party might consider was capable of affecting the reality or the appearance of an impartial administration of justice.
The Supreme Court so held in dismissing the plaintiff's application for orders setting aside previous orders made by the Supreme Court.
The plaintiff appeared in person; James Connolly SC and Esmonde Keane BL for the Ministers, the Taoiseach, Ireland and the Attorney General; Jack Fitzgerald SC and Alice Doyle BL for the IFA and its members; Brian O'Moore SC and Declan Murphy BL for the Ombudsman.
Mr Justice Murphy said that the plaintiff had sought declaratory relief in 1987 that he was legally and constitutionally entitled to compensation under the Bovine Tuberculosis Eradication Scheme (hereinafter "the Scheme") and under the Diseases of Animals Act 1966 ("the 1966 Act") and regulations made thereunder.
In the High Court Mr Justice Barron had dismissed the plaintiff's action as against Donal McDaid, Patrick Delaney, the Irish Farmers Association ("the IFA") and the Ombudsman on the grounds that the pleadings disclosed no cause of action against them. The plaintiff appealed those orders to the Supreme Court, consisting of Mr Justice Griffin, Mr Justice Hederman and Mr Justice O'Flaherty, who ordered that the plaintiff's claim against the other defendants be tried in the High Court and that pending the outcome the appeal and all other matters stand adjourned. The plaintiff's claim was heard in the High Court by Mr Justice Lavan and was refused. The plaintiff appealed and the Supreme Court identified the essential complaint as being that the court did not reach a correct conclusion. The appeal was dismissed on 19 December 1991, when Mr Justice O'Flaherty, delivering the judgment of the court, held that the minister was not obliged to operate the 1966 Act since he had in place a reasonable scheme for providing a measure of assistance to herd owners of diseased cattle, and that a constitutional issue did not arise in those circumstances.
Mr Justice Murphy said that the plaintiff now applied for orders setting aside the orders made by the Supreme Court together with certain ancillary relief. It was alleged that Mr Justice O'Flaherty had an involvement when a member of the Bar in advising the IFA in relation to compensation under the Scheme and that such involvement might have given the appearance that the judge was biased in favour of the IFA.
Mr Justice Murphy said that it was fundamental to the administration of justice that judges should be independent and impartial. Not merely are they required to be independent of and from other organs of the State, but also from any fact, event or person extraneous to evidence properly admitted and submissions as to law made to them. The requirement that every judge should act impartially was reflected in the declaration of office which every judge is required by article 34.5.1 of the Constitution to take on his appointment. It had long been recognised that the appearance of bias was as damaging to the administration of justice as was the operation of bias.
Mr Justice Murphy said that the test in this jurisdiction was the "reasonable apprehension" of bias by a reasonable person that the existence of some particular relationship, factor, condition or circumstance would prevent a completely fair and independent hearing of the issues which arise.
Mr Justice Murphy referred to the jurisprudence in different jurisdictions. In Locabail Ltd v Bayfield Properties [2000] 1 All ER 65, Lord Bingham of Cornhill provided an analysis of factors which might be thought to affect the decision of a judge but which could not be classified as impermissible. Such factors included previous judicial decisions, extra curricular utterances (whether in textbooks, lectures, speeches, articles, interviews, reports or responses to consultation papers) and previous receipt of instruction to act for or against any party, solicitor or advocate engaged in a case before him.
Mr Justice Murphy said that three Australian cases dealt specifically with the position of a judge who had advised as a lawyer on an issue which subsequently comes before him for judicial interpretation. These cases, In Re Polites ex parte Hoyts Corporation [1991] 173 CLR, AI v Betty King 436 FCAI [1996], and Aussie Airlines Pty Ltd v Australian Airlines & Others [1996] 135 ALR 753, were cited with approval in judgments delivered by the Supreme Court in Bula Ltd & Others v Tara Mines & Others (unreported 3 July 2000).
Mr Justice Murphy said that the present application had much in common with the facts under consideration in the Bula case where the Chief Justice and Mr Justice Barrington admitted involvement with one or more of the parties in that case as professional advisers and before their elevation to the Bench. The Supreme Court rejected the contention that a reasonable bystander could perceive a cogent or rational link between the association of the two judges or either of them with the respondents and its capacity to influence a decision to be made on the appeal.
Mr Justice Murphy said that the examination of the facts of the present case showed that Mr O'Flaherty SC, did advise the IFA from time to time and in particular as to the constitutionality of legislation in relation to the compensation payable by the State under the 1966 Act. The particular advice was given some six years before the hearing of the appeal which it was sought to impugn. He said that it was of particular significance that the substantive appeal heard by this court from the decision of Mr Justice Lavan did not involve the IFA as parties to the appeal. Moreover, it should be recognised that the appeal was not determined by reference to the constitutional issue on which Mr Justice O'Flaherty had advised in his capacity as senior counsel. In his judgment Mr Justice O'Flaherty held that the Minister concerned was not obliged to operate a particular statutory scheme since he had in place a reasonable scheme for providing a measure of assistance to herd owners of diseased cattle. He expressly stated that it was unnecessary for him to adjudicate on the constitutional issue. None of the parties to the substantive appeal, therefore, had been advised by Mr Justice O'Flaherty and the particular matter on which he had advised the IFA was not material to the decision of the court.
The appeal from Mr Justice Barron dismissing the IFA and other defendants from the case did not involve any issue on which Mr Justice O'Flaherty had given advice. The issue before Mr Justice Barron was whether the pleadings disclosed a cause of action against the particular defendants. He held that they did not and that judgment was upheld by this court.
In those circumstances, Mr Justice Murphy said that it seemed to him that a reasonable bystander would not perceive any cogent and rational link between the involvement of Mr Justice O'Flaherty with the IFA and his judgment on either appeal.
Mr Justice Murphy stated that the jurisdiction of the court to set aside an order which correctly reflected a previous judgment given by it had been considered in a number of cases and exercised in at least one and it was not necessary to analyse further the nature or extent of that jurisdiction. In his view it was sufficient to proceed on the assumption, as the then Chief Justice Mr Justice Hamilton did in Greendale Developments Ltd (unreported, 9 December 1992), that the appropriate jurisdiction did exist. However, Mr Justice Murphy was satisfied that the evidence adduced by the appellant in this case fell far short of sustaining a case of bias to justify the exercise of such an exceptional jurisdiction.
Mr Justice Murphy dismissed the application.
The Chief Justice, Mr Justice Keane concurred with the judgment of Mr Justice Murphy and added certain observations. Mr Justice Keane said that there was a duty on every trial judge to ensure the court is impartial. The court must also take care that no fact or circumstance exists - particularly a fact or circumstance of which any of the parties might be unaware - which would give rise to a reasonable apprehension of partiality. There was, however, a distinction to be drawn between those many factors such as education, religion, age and upbringing which may well be seen as influencing the decision of a judge and extraneous factors specific to a particular judge. He said that the factors with the potential for influencing judgments or appearing to have that effect and falling outside a broad, but ill defined, range of permissible factors were not inherently improper. They would frequently represent personal relationships, social activities or specific commercial investments. It had long been practice for judges in this State and other persons exercising quasi-judicial functions to disclose the existence of any factor which either party might consider was capable of affecting the reality or the appearance of an impartial administration of justice. The making of such disclosure was an entirely proper one but every such disclosure did not lead automatically to disqualification.
Where one or other party does invite a judge to disqualify himself, the established and prudent practice has been for the judge concerned to disqualify himself if he has any reservations about the matter. On the other hand a judge cannot permit a scrupulous approach by him to be used to permit parties to engage in forum shopping under the guise of challenging the partiality of the court.
Mr Justice Keane stated that the need to ensure the appearance as well as the reality of impartiality must be reconciled with the proper functioning of the judicial system. The dilemma to which these conflicting demands gives rise might be resolved in cases of difficulty by the judge concerned referring the issue to the senior available judge of the court of which he is a member. Such a course would be acceptable in cases of particular difficulty but this procedure should not develop into common practice. The disclosure of possible grounds for concern and the sensible reaction of the parties, advised by their lawyers, had usually been sufficient to dispose of any such difficulty and he did not doubt that this would continue to be the case.
Mrs Justice Denham, Mr Justice Murray and Mrs Justice McGuinness concurred with the judgment of Mr Justice Murphy.
Solicitors: The Chief State Solicitor for the Ministers, Ireland and the Attorney General; John J. O'Hare & Co. (Dublin) for the IFA and its members; Mason Hayes & Curran (Dublin) for the Ombudsman.
