The Supreme Court
Clarifies the Test for
Objective Bias
briefing
The Supreme Court has emphasised the significance of the Bangalore
Principles of Judicial Conduct in assessing a claim of objective bias against a
judge.
In O’Driscoll (a minor) v Hurley,1 the
plaintiff/appellant had been awarded
damages in the High Court for medical
negligence. Liability was conceded by the
defendants. The plaintiff appealed to the
Court of Appeal arguing that the amount of
damages awarded was inadequate.
At the appeal hearing, the plaintiff applied
to have one of the appeal judges, Ms Justice
Irvine, recuse herself on the grounds of
objective bias. She was said to have chaired
and addressed a “private conference” run
as a promotion by the firm of solicitors on
record for the State Claims Agency (the
agency defending the appeal). The judge
was pictured on the firm’s website sitting
under the solicitors’ name and logo while a
senior member of the firm was delivering
a speech. The judge was also separately
pictured with the head of the State Claims
Agency. The Court of Appeal refused the
application. The plaintiff appealed that
refusal to the Supreme Court.
The test for objective or perceived bias
Delivering the judgment of the Supreme
Court, Dunne J noted that the established
test for objective or perceived bias is
“…whether a reasonable person, in all the
circumstances of the case, would have a
reasonable apprehension that there would
not be a fair trial from an impartial judge.
As it is an objective test, it does not invoke
the apprehension of a judge, or any party;
it invokes the reasonable apprehension of a
reasonable person, who is in possession of all
the relevant facts.”2
The Bangalore Principles
The court considered the Bangalore
Principles of Judicial Conduct 2002 (and
related commentary)3 as they “encapsulate
at an international level norms of universal
application in relation to such issues as bias”.
Paragraph 2.5 of the Bangalore Principles
provides that:
1 [2016] IESC 32, judgment of 14 June 2016.
2 Goode Concrete v CRH plc [2015] 2 ILRM 289 per Denham CJ; Bula Ltd v Tara Mines Ltd (No. 6)[2000] 4 IR 412, 441, per
Denham CJ; see also the principles set out in O’Callaghan v Mahon [2008] 2 IR 514 at 672- 673, per Fennelly J.
3 Gass, Kiener & Stadelmann (eds), “Standards of Judicial Independence” (Bern, 2012).
The Supreme Court
clarifies the test for
objective bias
(continued)
“A judge shall disqualify himself or herself from
participating in any proceedings in which the
judge is unable to decide the matter impartially
or in which it may appear to a reasonable
observer that the judge is unable to decide the
matter impartially. Such proceedings include,
but are not limited to, instances where:
•• the judge has actual bias or prejudice
concerning a party or personal knowledge
of disputed evidentiary facts concerning the
proceedings;
•• the judge previously served as a lawyer or
was a material witness in the matter in
controversy; or
•• the judge, or a member of the judge’s family,
has an economic interest in the outcome of
the matter in controversy;
provided that disqualification of a judge shall
not be required if no other tribunal can be
constituted to deal with the case or, because of
urgent circumstances, failure to act could lead
to a serious miscarriage of justice.”
The “reasonable observer” is “a reasonable,
fair-minded and informed person” and the
attitude of the parties to a case is irrelevant,
because even if the parties consent to
a judge who feels he or she should be
disqualified from hearing the case, the
judge should step aside, because of the
wider public interest in the manifestly
impartial administration of justice.
The Bangalore Principles require that a
judge “ensure that his or her conduct, both in
and out of court, maintains and enhances the
confidence of the public, the legal profession
and litigants in the impartiality of the judge
and of the judiciary” and the commentary
recommends avoidance by judges of
conduct out of court that is controversial
or overtly political. Significantly in the
context of this case, paragraph 4.11 of
the Bangalore Principles provides that
“subject to the proper performance of judicial
duties, a judge may…write, lecture, teach and
participate in activities concerning the law, the
legal system, the administration of justice or
related matters.”
The commentary on this principle includes
observations that “a judge may contribute to
legal and professional education by delivering
lectures, participating in conferences and
seminars, judging student training hearings
and acting as an examiner. A judge may also
contribute to legal literature as an author or
editor. Such professional activities by judges are
in the public interest and are to be encouraged.
However, the judge should, where necessary,
make it clear that comments made in an
educational forum are not intended as advisory
opinions or a commitment to a particular legal
position in court proceedings, particularly
because judges do not express opinions or give
advice on legal issues that are not properly
before a court...”
Dunne J endorsed this commentary, noting
that judges on their appointment do not
stop developing their knowledge of the
law, and that the practice of law necessarily
involves openness to the concept of
lifelong learning, which necessitates that
all lawyers, including judges, participate
in continuous learning and development;
indeed judges have a statutory obligation
to do so.4
Application to the facts
The appellant did not suggest that the
judiciary should avoid all legal conferences
and educational events, which judges are
frequently asked to chair. The complaints
were more nuanced. Particular emphasis
was placed on the aspect that the particular
conference had taken place only 13 months
before the Court of Appeal hearing and was
a “private” conference.
The Supreme Court was not persuaded.
At the time of the conference, Ms Justice
Irvine was responsible for managing the
High Court personal injuries list, including
medical negligence litigation, and was
chair of a working group on medical
negligence and periodic payments. It was
perfectly understandable and appropriate
that she would attend the event.5 The
conference was “private” only in the sense
that it was not open to the general public,
4 Section 19 of the Court and Court Officers Act 1995.
5 The focus of the conference was on medical negligence litigation in Ireland.
2 | mccann fitzgerald ¼ june 2016
The Supreme Court
clarifies the test for
objective bias
but stakeholders on all sides of the issues
were among the invited audience of more
than 250.
(continued)
The court concluded that the reasonable
observer would not have formed an
apprehension of bias. Rather, the
reasonable observer would see that
the judge was acting appropriately in
furthering the knowledge of those involved
as to the work of the working group which
she chaired, given her particular knowledge
and familiarity with the issues. The
engagement in the particular conference
was to be viewed as desirable. The fact that
the conference was hosted by the firm who
acted for the defendants in the particular
case did not affect this conclusion, having
regard to a consideration of the nature
of the conference and the topics covered.
There was no question of partiality and
the subsequent use of photographs of the
judge on the firm’s website was neither
exceptional nor unusual and could not
sensibly be regarded as an endorsement by
the judge of the particular firm.
Conclusion
The Supreme Court noted that applications
to judges to recuse themselves have become
commonplace. Although this was not such
a case, many litigants involved in multiple
cases frequently apply for recusal tactically
as a kind of forum shopping which can be
an abuse of process. While judges need
carefully to consider such applications
having regard to the rights of all parties to
the proceedings, recusal out of excessive
caution or deference based on insubstantial
objections would be intolerable and would
risk profound injustice.
3 | mccann fitzgerald ¼ june 2016
The delicate balancing act for judges is that
by speaking publicly outside court, or even
by association with events or issues, judges
leave themselves open to accusations of
bias, but if they choose to avoid this risk
entirely by never speaking or writing
extra-judicially, judges risk the charge of
being aloof from “ordinary life” and deny
public access to considerable expertise,
and important perspectives from within
the justice system, which can make vital
contributions to discourse on how that
system operates.
Judges are entitled to participate
appropriately in public discourse and it
remains both desirable and appropriate
that they support legal education and
development judiciously and apolitically.
The judgment in O’Driscoll reiterates
that, in accordance with international
norms, judges should not hear cases
where, objectively assessed, a reasonable,
fair-minded and informed person would
apprehend that the judge is unable to
decide the matter impartially. However, it
also emphasises the important corollary
that judges must defend and assert their
obligation to perform their functions when
they are asked to recuse themselves based
on insubstantial grounds.
Further information is available from:
Seán Barton
Megan Hooper
Partner, Head of Dispute
Resolution & Litigation Group
Partner, Dispute Resolution &
Litigation
ddi +353-1-607 1219
email sean.barton@
mccannfitzgerald.com
ddi +353-1-611 9158
email megan.hooper@
mccannfitzgerald.com
Alternatively, your usual contact in McCann FitzGerald will be happy to help you further.
This document is for general guidance only and should not be regarded as a substitute for professional
advice. Such advice should always be taken before acting on any of the matters discussed.
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