Title:	O'Shea -v- Butler ; Butler Limited -v- Bosod Limited & ors
Neutral Citation:	[2017] IESC 65
Supreme Court Record Number:	228/2009 & 60/2011
High Court Record Number:	2006 4849 P, 2010 39 SP
Date of Delivery:	10/18/2017
Court:	Supreme Court
Composition of Court:	Clarke C.J., O'Donnell Donal J., MacMenamin J.
Judgment by:	O'Donnell Donal J.
Status:	Approved
Result:	Other
Judgments by Link to Judgment Concurring O'Donnell Donal J. Link Clarke C.J., MacMenamin J. MacMenamin J. Link Clarke C.J., O'Donnell Donal J.

SUPREME COURT

Between/

1 This judgment concerns an application made by Mr. Michael Butler and Mr. William Butler referred to hereinafter as “the appellants” that two members of the panel in this appeal, my colleagues Mr. Justice Clarke (as he then was) and Mr. Justice MacMenamin, should recuse themselves and not sit on these appeals.

2 It is important at the outset to identify the precise issue before the Court which it is contended the two judges may not hear. As explained in the judgment delivered by MacMenamin J. today, the substantive appeal concerns a judgment in the sum of €653,832 granted by McGovern J. in the High Court on the 12th May, 2009, and a subsequent well charging order made by Dunne J on the 20th October 2010, pursuant to that judgment. Both orders flow from an order made also by McGovern J. sitting in Dundalk on the 11th February, 2008, whereby proceedings between the parties were settled, and where, it is said by the respondents to the appeal, although this is a matter of considerable controversy, that settlement involved the making of an order of the Court on consent providing for the payment by the appellants to the respondents of the sum of €1.1 million on or before the 11th September, 2008, and in default judgment could be entered by consent for any sum them outstanding. There is no dispute that monies were not paid and accordingly pursuant to this alleged agreement the judgment of the 12th May, 2009, was entered and pursuant to that judgment in turn that the well charging order of the 20th October 2010 was made.

3 Even at this point therefore it is clear that if the agreement of the 11th February, 2008, was in the terms as alleged, and contained the default clause, then there was no substantive defence to either the judgment which is now appealed against entered on the 12th May, 2009, or the entitlement to a well charging order thereafter.

4 The appellants do not deny that the case was listed for hearing in Dundalk on the 11th February, 2008, or indeed that a settlement was arrived at and a court order made pursuant to that settlement. They are however critical of the circumstances and the advice and representation they received, but none of those matters arise in the present context. As is outlined in the judgment of MacMenamin J., they do however make extremely serious allegations about the terms of the court order of the 11th February, 2008. In particular they contend that the order was deliberately altered to include the default clause whether by the respondents or court officers, and placed on the court file. They have produced two different forms of the order of the 11th February, 2008, both it is said taken from the file in the Central Office. I do not wish here to make any observations about this claim other than to record it: for present purposes it is necessary to identify the contention made, because it is said that neither Clarke J. (as he then was), nor MacMenamin J., can properly hear and determine the appeal in relation to it. It is important that the Appellants do not deny that the case was listed in Dundalk, that they attended, that it was settled, and the settlement involved the making of a court order on consent. The sole claim now made – although undoubtedly startling and dramatic – is that the default clause was falsely and fraudulently included in the order of the Court. This is the issue which it is said neither Clarke J. nor MacMenamin J. can hear.

5 This claim, namely that the order of the 11th of February, 2008 had been altered to include the default clause, was not made in the immediate aftermath of the settlement , or during the High Court proceedings or even initially in the appeal. However, when the appeal first came on for hearing on the 8th October 2015, before the Supreme Court consisting then of Denham C.J., Hardiman J., and MacMenamin J., the claim was being made, and the two orders were produced. The matter was debated at some length before the Court, and in the light of the seriousness of the matter, the Court directed that the Courts Service investigate the matter and provide an explanation on oath for the existence of two apparently inconsistent orders in respect of the same proceedings. The appeal was adjourned to allow that evidence to be produced.

6 This appeal was then listed for hearing on the 12th October, 2016. In the intervening time, Hardiman J. had unfortunately died, and the panel now consisted of Denham C.J., myself, and MacMenamin J. It should be said that the appellants were represented by a solicitor and counsel on the 11th February, 2008, and at other hearings in respect of the matter, and were subsequently represented by different solicitors. However, by the time the case came for hearing in October 2015 in the Supreme Court, they represented themselves. On October 12th 2016, they were accompanied by Ms. Angela Farrell. The Court did not then address the question of whether Ms. Farrell could act as a McKenzie friend but instead adopted a practical approach. Mr. Michael Butler addressed the Court and raised an objection to the Chief Justice taking further part in the case because she was then chairperson of the Courts Service board by virtue of her position as Chief Justice. The Court rose to consider the matter. It was doubtful that any reasonable person aware of the structure of the circumstances of the case, the structure of the Courts Service board, and the large number of persons working in the Courts Service, could apprehend that there was any difficulty in the Chief Justice hearing the case. Nevertheless, given the fact that the appellants were representing themselves, and the extraordinary nature of the claims made, the Court decided that it was preferable that the Chief Justice should not further sit in the case. It should be recorded that Mr. Butler regretted his application and expressed his gratitude for the courtesy and kindness shown to him by the Chief Justice. The then Chief Justice delivered a ruling as follows:

“An issue has arisen in the hearing of this appeal as a consequence the Courts Service have been required to file affidavits. In all the circumstances, even though the Courts Service is not a party to the proceedings, as I chair the Courts Service board, given the seriousness of the allegations made, I consider it desirable that I not sit in the case. It is most unsatisfactory when this date has been fixed for a long time and the Court assigned and ready to deal with the matter, and it could reasonably have been assumed that no objection was taken to the composition of the Court, that objection was made this morning. This may be a matter the Court may have to take into account when considering costs. In the circumstances, the Court will fix the date as soon as possible and the parties will be informed.”

8 On the morning of the hearing, Ms. Farrell again appeared. Again, the Court took a practical approach, but sought to emphasise to the appellants and Ms. Farrell, the necessity of maintaining a measured and calm approach to the Court, and indeed to the other parties involved. In the end what transpired was very far from that ideal. Ms. Farrell often stood beside Mr. Michael Butler, and spoke audibly to him. It was possible to hear nearly everything she said. Mr. Michael Butler simply repeated what had been said to him word for word. At times it was not clear that he understood what was being said to him, or what he in turn was saying to the Court. This was particularly unhelpful in the context of an application for recusal, since , as will appear, it was not clear what if anything was Mr. Michael Butler’s own objection or indeed objective.

9 In broad terms it appears to now be contended that neither Clarke J. (as he then was) nor MacMenamin J. could properly hear the appeal because as High Court judges they had made routine orders. In the case of Clarke J., he had heard interlocutory applications in respect of orders restraining the dissipation of funds. It was also the case that his name had been included erroneously in the first order which had been made up in respect of the hearing in Dundalk on the 11th February, 2008. It was not disputed that Mr. Justice Clarke had clearly not presided at the hearing on the 11th February, 2008. There was a transcript of that hearing. The appellants were present. Indeed, they had maintained that because of the error on the order, that it could not be appealed. It was necessary for the respondents to bring an application to alter and rectify the order; an order which was granted on 24th February, 2010. Mr. Justice McGovern made the order correcting the formal order. In other words, not only was it plain beyond any doubt that Mr Justice McGovern and not Mr Justice Clarke had presided on the February 2008 and therefore the inclusion of the name on the order was a clear error, but the appellants had previously relied on this error, and the fact that Mr Justice Clarke had not been the presiding judge

10 In the case of Mr. Justice MacMenamin, the only matter referred to was the fact that it appeared he had made an order transferring the case to be heard in Dundalk. This was raised for the first time in an affidavit sworn on the 12th October 2016, that is the day of the hearing. The affidavit requested that subpoena duces tecum be served on a number of people including Mr Justice Clarke and Mr Justice MacMenamin. It need hardly be said that such an application in relation to an appeal hearing is extraordinary, and that no such application had been made either in advance of the 12th October when the case was listed for hearing, or mentioned on that day. In respect of Mr. Justice MacMenamin the position was particularly confused. Mr. Michael Butler having initially stated, (prompted by Ms. Farrell), that it was wholly inappropriate that Mr. Justice Clarke and Mr. Justice MacMenamin sit in the case, then said:

“Indeed as far as Judge MacMenamin, I am very happy with him” … “but I have to ask Judge Clarke to recuse”.

11 The test of so called objective bias, whether a reasonable person armed with all the facts would have a reasonable apprehension that a party would not receive an impartial hearing. The test is framed in this way because of the high value the administration of justice places upon impartiality. Accordingly it is sufficient to show an apprehension alone. In many cases when an objection is raised in advance of a hearing however, judges are prepared to recuse themselves even when the matters raised would not satisfy the legal test for disqualification. In many such cases it is possible to arrange to have the case heard by another judge without any disruption to the parties. However, the willingness of a judge to recuse himself or herself should not be taken as setting the standard for a mandatory recusal and courts should scrutinise such applications with greater care where an application is made to set aside a judgment or to force an adjournment and avoid a hearing or where it may appear that the application is made for tactical reasons or simple obstructionism.

12 The courts are fully aware of the difficulty of self-representation and the stress caused by the prospect of a final adverse judgment which can sometimes run to very substantial amounts. Whether for that reason, or by reasons of personality, it is not uncommon for some litigants at least to entertain ideas of conspiracy, corruption or malfeasance. Generally where litigants are represented, the legal representatives can often act as a filter, but where litigants represent themselves, it is sometimes the case that under the stress of proceedings, allegations are readily ventilated in the course of an appearance that on calm reflection might not have been advanced. For the most part, judges seek to understand the difficulties for litigants, and are slow to react to even extravagant allegations, particularly when it is apparent that a party is under particular stress. But there is a limit to the matters which should be permitted to be said or done in relation to court proceedings in the interests of other parties, a fair hearing, and the public interest more generally. There are also limits to the extent to which reputations should be allowed to be traduced without any objective justification.

13 I do not believe that any casual observer who witnessed the events in this Court on the three occasions, on which the appeal was listed, could consider that the matters raised could give rise to any apprehension of a lack of impartiality on the part of either Clarke J. or MacMenamin J. Indeed, even a casual observer might find it difficult not to conclude that the allegations were made with a view perhaps to delaying the proceedings, or to influencing, at least negatively, the composition of the Court. Even a casual observer who, as the test requires, was apprised of all the information available in relation to the case, must be taken to know that in the High Court different judges routinely make interlocutory orders in cases, and that the issue here turns on a single standalone allegation of fraud and criminal conduct. The orders made by Clarke J. in relation to interlocutory applications in the cases have no connection or bearing on that issue other than that they were made in the same litigation. The mere fact that a judge had heard an interlocutory application in a case is not, at least in the Irish system, regarded as a reason for disqualification: indeed often prior familiarity with the proceedings is seen as an advantage. The fact that Clarke J.’s name was included on the first order produced in respect of the hearing on the 11th February, 2008, was plainly an error. Indeed it was an error which was pointed out and relied upon by the appellants. Furthermore, it was corrected by a formal order of the High Court. Again, the fact that his name was included by a clear and acknowledged error on an order cannot be a ground for disqualification or recusal.

14 Finally, in relation to Mr. Justice MacMenamin, the making of an order transferring a case to be heard in one High Court venue to another, could not reasonably be thought to have any impact upon the capacity of that judge to hear the substantive hearing in the High Court, still less to hear an appeal, which focuses on an issue with which it is not alleged he had any involvement. Furthermore the appellants herein have been afforded very considerable indulgence in respect of this appeal and their last minute applications for recusal. There is also a limit to that indulgence. The order for transfer was not appealed. The appellants attended at the hearing in Dundalk, and even on their own case, entered into a settlement. These appeals concern matters that occurred further down stream, and it is only because the allegation of fraud is so serious that the appellants can pursue it now. If the making of an order transferring a case was a matter of concern to the appellants (and they say it is much more, a ground for disqualification) then it is extraordinary that it was not raised on either of the two occasions the judge sat on this appeal. I am afraid I regard the raising of the issue and the request for a subpoena duces tecum in respect of the two judges, as a contrived attempt to create an issue which it can be claimed disqualifies the judges rather than a genuine claim that judges are disqualified from hearing the sole issue that is raised in the appeal.

15 I do not consider it is necessary or desirable to discuss the circumstances in which prior involvement of a judge in any litigation might possibly disqualify a judge from sitting further in a case, or hearing an appeal. The circumstances in this application are so far removed from circumstances which could justify any application for recusal, let alone a decision to recuse, that it is enough in my view, to say that the application is lacking in any substance, and should be dismissed.