Court asked to overturn rulings in Goode case against CRH

The Supreme Court has been asked to overturn rulings on pre-trial matters in a case by Goode Concrete against cement giant CRH due to alleged reasonable apprehension of objective bias by High Court Judge John Cooke as a result of his holding "at least" €135,000 worth of shares in CRH.

Goode Concrete, which alleges its collapse was due to anti-competitive practices by CRH and others, claims the full extent of Judge Cooke’s financial interest in CRH is not known for certain because he declined a request to provide that information.

Judge Cooke, who retired earlier this year, had, when admitting the proceedings by Goode Concrete against CRH and other companies to the High Court Competition List in late November 2010, told the parties he had “a vague feeling that a very small number of CRH shares feature somewhere in my pension fund”, John Hennessy SC, for Goode Concrete, said.

Peter Goode heard the judge say that and, as it would not be unusual for a person to hold a small number of shares of a public company in a pension fund, had no difficulty with Judge Cooke hearing the case, counsel said.

The proceedings were admitted to the Competition List and Judge Cooke later delivered three judgments on pre-trial matters, the last in May 2012. In September 2012, the Goode side learned Judge Cooke’s holding in CRH was “considerably more significant” than the company had understood, Mr Hennessy said.

After Goode told Seamus Maye, whose Framus companies have also sued CRH and others, of Judge Cooke’s November 2010 disclosure concerning his CRH shares, Mr Maye carried out inquiries from which Mr Goode learned, when the judge made that declaration, more than 6,000 shares were held on his behalf in CRH and, some two weeks later, another 2,500 shares were acquired, counsel said. Mr Maye also said he learned dividends were received by Judge Cooke on dates including in May 2012.

This meant, when Judge Cooke heard and decided the matters now being appealed by Goode, he held at least 8,966 shares, valued at some €135,835 in December 2010, counsel said.

It was alleged by the official liquidator of Bloxham Stockbrokers a person claiming to be assisting with Judge Cooke’s tax returns had sought and been given information about his shareholding from an employee of Bloxham, counsel said. Mr Maye denied any deception or dishonesty in the matter, he added.

Solicitors for Goode wrote to the judge in September 2012 seeking full details of his CRH shareholding and his dealings with that. The judge replied inter alia that he had disclosed his CRH interest in November 2010, no difficulty was indicated with that and the issues being raised should be dealt with in public court as the Goode proceedings were continuing.

Lawyers for Goode filed a motion in early November 2012 asking that Judge Cooke recuse himself from further hearing the proceedings. When that came before the judge in November 13th 2012, he set out details of his interests in CRH and told the parties he would no longer be involved in the case.

The judge said, when he disclosed his CRH shares to the sides in November 2010, he was unaware at that time shares in CRH were also about to be bought on his behalf by advisers as part of a package of several shareholdings. The motion to recuse himself was not necessary because, if anyone had had “the courtesy” to point out that matter to him, he would have dealt with it immediately and “quite happily” have saved himself the task of three written judgments.

In 2010, he was aware some of his monies were being invested but was not following those daily, he said. When this case came before him in November 2010, he was aware he had had a small shareholding in CRH which he assumed was transferred here following his return to Ireland from Luxembourg in 2008, told the parties that and neither side raised any difficulty. He was also unaware that that stage there was about to be made on his behalf an additional purchase of CRH shares among a package of shares.

In its action, yet to be heard, Goode Concrete alleges CRH, Roadstone Wood Ltd and Kilsaran Concrete were involved in anti-competitive practises forcing Goode's collapse in 2011. The defendants deny the claims and, in opposing the appeal against Judge Cooke's rulings, contend Goode waived its right to raise the objective bias claim in circumstances where Judge Cooke disclosed his CRH shareholding in November 2010.

The hearing of the appeal opened today before the five-judge court and has been adjourned to resume in October.