Joining the dots
The decision in Kelly v UCD is a helpful statement of the judicial guidelines that apply to those circumstances when there’s a connection between a judge and a lawyer. Jonathan White checks his family tree
On 12 February 2025, the Supreme Court delivered judgment in the case of Patrick Kelly v University College Dublin.
This appeal by Mr Kelly was from a decision made by Mr Justice Meenan of the High Court on 22 June 2023, on appeal from the Circuit Court, in an interlocutory motion seeking production of certain documents. The defendant in those proceedings was University College Dublin.
The judge’s son is a solicitor employed by Arthur Cox LLP – the solicitors on record for that defendant. The judge’s son did not appear to have been involved in any way in the proceedings.
Following the judge’s decision in the High Court, the appellant sought leave to appeal to the Supreme Court on a number of grounds.
In determining that leave application on 22 February 2024, the Supreme Court granted the appellant leave to appeal on one issue only: did the fact that a close relative of a judge was employed as a solicitor in the firm of solicitors representing a party meet the well-established test for objective bias? (See Kelly v UCD: Application for Leave to Appeal.)
Family association
The appellant referred to the Guidelines on Judicial Conduct and Ethics, which were adopted by the Irish judiciary pursuant to the provisions of section 7(2)(d)(i) of the Judicial Council Act 2019.
In particular, he referenced paragraph 4.4 of those guidelines, which states: “A judge shall not participate in the determination of a case in which any member of the judge’s family represents a litigant or is associated in any manner with the case.”
As such, the appeal raised the issue of whether the employment of a close relative in a firm of solicitors on record in a case heard by a judge, without that relative being involved in the case in any way, is sufficient, on the grounds of objective bias, to disqualify a judge from hearing the case.
In its determination of the leave application, the Supreme Court considered that the views of the Law Society might be of assistance in the appeal, and directed that copies of the application for leave papers, and the court’s determination, be sent to the Society.
The Law Society was subsequently joined to the appeal as amicus curiae, as was the General Council of the Bar of Ireland.
In dismissing the appeal, the Supreme Court judgment of Chief Justice O’Donnell (with whom Charleton, O’Malley, Collins, and Donnelly JJ agreed) reiterated the long-established test for objective bias in Irish law as being that articulated by Denham J in Bula Ltd and others v Tara Mines Ltd and others (No 6): “…there is well settled Irish law that the test is objective; it is whether a reasonable person in the circumstances would have a reasonable apprehension that the applicants would not receive a fair trial of the issues”.
General principles
Chief Justice O’Donnell set out, in his conclusion (see paragraph 162), the following general principles to be applied to judicial disqualification:
1) Judicial Conduct Guidelines do not determine the test for disqualification as a matter of law, but are relevant in the assessment of a reasonable and informed observer (paragraph 55).
2) Other than a case in which a judge is or is deemed to be a party (and even then the rule of necessity might require a judge to sit, for example, when the Judicial Council, of which every judge is required by statute to be a member, is a party), there is no absolute rule of disqualification of a judge from hearing any case, and there are not separate categories of cases to which different principles apply (paragraph 56).
3) The same test is applicable in every case: that is, whether a reasonable and informed observer would have a reasonable apprehension of bias (paragraph 71).
4) There are three components to this test, which must be assessed together (paragraph 105): (a) the reasonable and informed observer who (b) has a reasonable apprehension of (c) bias.
5) The reasonable observer imports an objective standard (paragraphs 2-4).
6) The apprehension necessary is akin to the standard of reasonable doubt, and must be reasoned and cogent (paragraphs 102-104).
7) Objective bias is best understood as a reasonable apprehension that the case will not receive a fair and impartial hearing (paragraphs 105-106).
8) The assessment of an apprehension of bias must give full weight to the declaration made by a judge under article 34.6.1 of the Constitution and that such impartiality is central to the role that a judge accepts and holds themselves to (paragraphs 107-108).
9) It is necessary to show a rational, cogent, and logical connection between a factor identified and the apprehension that the case will not receive a fair and impartial hearing (paragraph 113).
10) While the standard is one of reasonable apprehension and is, and is intended to be, less than proof on the balance of probabilities, the matter apprehended [that a judge would favour one party or disfavour another for reasons unconnected to the facts and law] is by definition both unusual and exceptional. Therefore, the test is a strict one, which must be rigorously applied and is not easily satisfied. Too low a standard will damage, rather than promote, public confidence (paragraph 111).
11) Disclosure or non-disclosure is not itself a separate test: it may be a component in the overall analysis of the test of whether a reasonable observer would have reasonable apprehension that the case will not receive a fair and impartial hearing (paragraphs 139-148; 155).
Chief Justice O’Donnell held that, in the specific case of a connection between a judge and a lawyer, the above principles may be applied as follows:
12) There is no absolute rule that a judge is disqualified from hearing a case in which a relative, even a close relative, is connected to a firm that represents a party (paragraph 85).
13) A judge is disqualified from hearing a case in which a close relative actually represents a party whether as a solicitor or barrister in respect of the case. This is consistent with the provisions of the Judicial Conduct Guidelines (paragraphs 99-100).
14) ‘Close relative’ for these purposes is as defined in the Judicial Conduct Guidelines and Bangalore Principles of Judicial Conduct to include “spouse, civil partner, son, daughter, son-in-law, daughter-in-law, and any other close relative or person who is a companion or employee of the judge and who lives in the judge’s household”. ‘Judge’s spouse’ includes a domestic partner of the judge or any other person of either sex in a close personal relationship with the judge (paragraphs 129-130).
15) Where a close relative of a judge is employed in a firm acting for a party, the question of disqualification may depend upon the particular facts of the case, the involvement of the relative, whether they have a direct and significant financial interest in the outcome (which, in the context of practice of law in Ireland, would be unusual), the degree of involvement with the lawyers actually engaged in the case, and the size of the firm (paragraphs 64, 73-74, 156).
16) In the situation where a close relative of a judge is employed in a large firm organised in separate departments, and where that firm represents a party but the close relative has no involvement with the case and no financial interest in its outcome, a judge is not disqualified from hearing such a case. This is also consistent with the Judicial Conduct Guidelines (paragraphs 87, 131).
17) Disclosure of such a relationship in such circumstances is not required, and non-disclosure does not mean that a judge is disqualified from hearing the case (paragraphs 144, 156).
18) Where this or any similar issue arises, or a judge is in doubt as to whether they should recuse themselves – or where the issue is subsequently raised after the fact or by way of appeal – a judge may provide a short account or statement in relation to the matter and the judge’s knowledge of it. This is not an issue inter partes in the litigation, an evidential hearing is not appropriate, and a judge cannot be required to give evidence. The statement and any assessment of it becomes a matter to be considered by that court or any appellate or reviewing court in determining the question of whether a judge ought to recuse themselves or was disqualified from hearing a case (paragraph 47).
Appeal dismissed
The Chief Justice concluded: “These principles may be applied to this case. Here, it has been established beyond any doubt, and beyond any standard required by the law, that the judge’s son in this case had no involvement in or connection to the case, or interest, financial or otherwise, in its outcome.
“Accordingly, the judge was not disqualified from hearing the case, and the appeal must be dismissed.”
For practitioners and for members of the judiciary, this judgment is a helpful statement of the principles applicable to judicial disqualification.
The application of those principles to the specific circumstances of a connection between a judge and a lawyer, as set out by Chief Justice O’Donnell, is even more helpful.
It might be argued that the practical effects of the application of the principles in those specific circumstances will be dependent on issues such as the nature and court jurisdiction of the case, and the solicitor firms representing the parties in the case.
Jonathan White is a solicitor in the Regulatory Legal Services section of the Law Society of Ireland
LOOK IT UP
CASES:
- Bula Ltd & Ors v Tara Mines Ltd & Ors (No 6) [2000] 4 IR 439
- Kelly v UCD: Application for Leave to Appeal [2024] IESCDET 24
- Kelly v UCD [2025] IESC 6
LEGISLATION:
LITERATURE: