THE SUPREME COURT

BETWEEN:

1. I agree with the judgment and order proposed by the Chief Justice. However, I would like to add a few observations.

2. The judgments in this appeal are not to be seen, in any way, as a reflection on the integrity of the judge in question, who has served with distinction, both in our national courts and the courts of the European Union. The judge was dealing with a situation that evolved over a considerable period. Objectively, he did not stand to gain from the outcome of the matters which are the subject of these applications. The judge, in fact, did disclose he held a shareholding. At the outset, he drew the parties’ attention to this fact. The problem is that statements, which he made at the outset, did not convey the extent of the shareholding which he ultimately held. As so often, appeal courts have the benefit of a “hindsight” view, which trial judges cannot have.

3. It is fortunate that there is a high degree of public trust in the judiciary (see E.U. Justice Scoreboard 2014, 17th March, 2014, Figure 7). However, it is the task of judges to maintain public confidence, even in a case where there may be doubts about the bona fides of an application to set aside a judgment. Maintaining public trust and confidence is a fundamental value. It comes before other considerations. For justice to be seen to be done, the orders made should be set aside.

4. The courts are still having to live with the aftershocks of a serious economic crisis. A range of people became over-extended, and now are under real financial pressure. Desperate circumstances sometimes lead people to seek desperate legal remedies, sometimes advanced by people who have no legal qualifications. Some applications for recusal have been made in the courts which are quite unwarranted. Applications of this type should not be lightly be made without clear grounds.

5. In my view, in general, the appropriate court for an application to set aside a judgment on the grounds of objective bias is the High Court. There, all the issues can be properly tried. Issues such as waiver, estoppel, acquiescence, or abuse of process are all factual questions, as well as points of law. So too, particularly, is the conduct of the parties. The full evidence can only truly and fairly be explored when a trial court has the opportunity of hearing and weighing evidence, and assessing it, in the light of all the known facts. As a matter of justice, parties are entitled, in general, to a right of appeal. This is not the situation as it evolved in this case.

6. I would add that, in considering applications to set aside a judgment on the grounds of objective bias, a court would also be justified in looking at the nature of the impugned decision made by a judge, the application of the de minimis principle, the length of time which has elapsed since the judgment, and the extent to which bona fides or mala fides in such an application is established in evidence. I would, therefore, reserve, for future consideration, how those important principles should be applied in individual cases.