He has ruled in favour of homeless children and exploited workers, but cemented his reputation when ruling on the troubled Zoe group
IT IS LIKELY many a cheer went up in households all over Ireland when they heard the opening words of Justice Peter Kelly’s judgment rejecting the bid for examinership from Liam Carroll’s companies.
“It is sometimes said that when small or modest borrowers from banks encounter difficulties in repaying their loans, then such borrowers have a problem. For those with large borrowings, it is the banks who have a problem,” he said.
He continued: “Having lent extraordinary sums of money to companies which form part of a corporate structure of Byzantine complexity, the bank creditors have shown great forbearance in taking any action by way of seeking to recover their money. It is a forbearance remarkably absent when dealing with much smaller borrowers who have defaulted on their obligations, as witnessed by the number of applications for summary judgment that the commercial division of this Court has had to deal with during the legal year just ending today . . .
“They have taken no steps to seek repayment of the monies due to them. Indeed they have done more than that; they have actually advanced further sums to the companies in suit so as to enable them to pay off all of the other creditors with the notable exception of the Revenue Commissioners.”
This was not the first time Liam Carroll’s companies were before Justice Kelly. In November 1997 his company, Zoe Developments, which had 12 previous convictions for breaches of safety regulations, appeared before him for further breaches after a 24-year-old man was killed on its site at Charlotte Quay in Dublin. When the judge summoned Zoe’s controller, Carroll, before the court he described the company as “a recidivist criminal”. He stopped work on the site until the company agreed to put a safety plan in place and prompted Carroll to offer to make a £100,000 donation to charity, which he directed would be paid to the St Vincent de Paul night shelter at Back Lane, Dublin, and to Temple Street Children’s Hospital. At that time he told Carroll: “You are entitled to make profits on the sweat of your workers, but you are not entitled to make profit on the blood and lives of your workers. You are a disgrace to the construction industry and ought to be ashamed of yourself.”
THIS IS NOT the only time Kelly was seen as defending the powerless against the powerful. In the late 1990s and early 2000s he waged a veritable campaign to force the State to provide suitable accommodation for the troubled children who were ending up on the streets, culminating in his citing three Government ministers for contempt for failing to meet deadlines in the provision of facilities. During one such hearing he said the then minister for Health and Children, Micheal Martin, should be “not only embarrassed but ashamed” to seek to keep another damaged child in “completely substandard” conditions. Earlier he had described the State’s failure to provide for such children as “a scandal”.
In 2002 he awarded a number of Brazilian nationals their pay and costs in a case against their employer, At Hand Cleaning Services, saying that the working conditions of one of the workers were “reminiscent of the time of Charles Dickens”. While such utterances may have made him a hero of liberal Ireland, his ruling in a case called Ennis v Butterly showed his conservative side. The case was Ireland’s first “palimony” case, where a woman who claimed she had given up work to look after the house of her partner sued him for breach of contract when the relationship broke up. Justice Kelly said that to permit a cohabitation contract to be enforced would give it a similar status in law to a marriage contact, contrary to the constitutional pledge to guard with special care the institution of marriage. The proposed Civil Partnership Bill will give certain rights to maintenance and property to cohabitees.
BEFORE HIS APPOINTMENT as a High Court judge in 1996 at the age of 45, Peter Kelly was a leading senior in chancery law, contract law and libel law. He appeared for the Society for the Protection of Unborn Children when it successfully challenged Judge Mella Carroll’s right to hear a case on the right to information on abortion, and for Des Hanafin in his unsuccessful petition challenging the validity of the closely-won referendum for divorce in 1996. Such cases reflect the fact that Kelly is a devout Catholic, who enjoys the Latin Tridentine Mass.
He did not tread the familiar path to the upper reaches of the judiciary followed by many of his colleagues – fee-paying Jesuit or Holy Ghost secondary school, UCD and the King’s Inns. His father was chief clerk in the Chief State Solicitor’s office, and he followed him into the administration of the courts after an education by the Christian Brothers in O’Connell’s School. However, he then studied in UCD and the King’s Inns and was called to the Bar in 1973. Ten years later he became a senior counsel. His appointment to the bench at such a young age was something of a surprise, as, unlike many with judicial ambitions, he had no political links. Indeed, his fearlessness with regard to politicians was shown during the series of cases he heard involving at-risk children.
His training in commercial law was put to good use when he was asked five years ago to head up the new Commercial division of the High Court, which now has five judges working in it. The cases he has heard there read like a roll-call of corporate Ireland. A central feature of this court is case-management, where parties are asked to produce papers and prepare pleadings in times set by the presiding judge. Woe betide any barrister or solicitor who does not meet the targets set. He does not suffer fools gladly, and there are reports of junior counsel trembling when they appear before him. “Some cases don’t have the urgency he demands,” says one solicitor. However, another, who does a lot of work in the Commercial court, says: “He’s the best judge in the world! He’s an amazing judge and has made an amazing contribution to bringing the courts into the 21st century. For all the quibbles about his draconian style, lawyers should be grateful to him. You can get stuff on.”
His tough reputation in court, his religious faith, his single status and the fact that he does not drink could give rise to apprehension about the scope for small-talk on the part of someone who found themselves beside him at a dinner table. In fact he is charming company, with a wicked sense of humour, a fund of often racy anecdotes and a talent for mimicry that reveals a theatrical side. This is sometimes in evidence at social functions where he has performed, as he has a good singing voice. His rendition of Gilbert and Sullivan's Three little maids from schoolat a Law Society dinner, sporting a blond pig-tailed wig, is still spoken about among those who were present.
Apart from music and travel, especially to Italy, his interests outside work include numerous charities, and he chairs the Ignatious Rice Trust, which took over the running of the Christian Brothers schools.
CV PETER KELLY
Who is he?High Court judge, presiding over the Commercial court
Why is he in the news?In July, he rejected a bid for examinership from the Zoe group. This week, he told The Irish Times that there would be a rise in cases involving banks and other financial institutions seeking to recover lent money, a trend which may lead to interesting insights into lending practices.
Most likely to say:"You must have those papers here in two weeks."
Least likely to say:"Banks need greater sympathy and understanding."