High CourtP -v- Judge McDonagh: Judgment was given by Mr Justice Clarke on July 7th, 2009 Judgment:A family law litigant had a reasonable apprehension that a Circuit Court judge had already determined his case prior to the conclusion of the evidence, and was entitled to have the case heard by another judge.
Background
Mr P began judicial separation proceedings in 2001, which eventually came on for hearing on July 28th, 2008, when it was agreed between the parties that it would be converted to divorce proceedings.
At the beginning of the proceedings Mr P’s representatives indicated that they favoured a 50/50 split of the assets, which they claimed were worth €3.368 million. However, counsel for Mrs P said there had been considerable difficulty in establishing the worth of the assets, and that it was not clear that the proposed split would include the applicant’s shareholding in two companies. Complaint was made about the adequacy of discovery.
On the first day of the hearing Judge McDonagh directed that the applicant should discover documentation in relation to his financial affairs that afternoon, which was complied with. Mrs P gave evidence that day.
On the second day of the hearing Judge McDonagh said to Mr P’s representative: “You client will have to do a lot better. You should indicate that to your client.”
Settlement discussions took place between the parties during the day, the case was adjourned and when it resumed the court was told that settlement was reached. It included a 49/51 split of the assets in favour of Mrs P. Judge McDonagh said: “There is not proper provision for the applicant in the settlement,” adding: “I want to see a 55/45 split in favour of the applicant.”
Part of the settlement included a €120,000 lump sum, and he said he wanted to see this increased to €240,000. Mr P said he did not want to increase the offer and the judge suggested that he give a one-acre field to his wife. According to Mr P, this was worth €170,000, more again than the additional €120,000 he had been asked to provide.
According to an affidavit from Mr P’s solicitor, Judge McDonagh then said: “If your client is not prepared to give the sum, then there is an easy solution, I will just make an order in those terms.”
This was disputed by Mrs P’s solicitor, who claimed that the judge had remarked that if the husband was not prepared to give the sum, he would “hear the case and then make an appropriate order”.
At this stage Mr P had not given evidence in the case.
Counsel for Mr P asked Judge McDonagh to discharge himself from the case, which the judge refused to do. Mr P then took judicial review proceedings, seeking an order of prohibition precluding Judge McDonagh from further hearing these family law proceedings.
Mrs P opposed the judicial review application on the grounds that the judge was exercising his statutory obligation to ensure that proper provision was made. She also said that an appeal would be an adequate remedy if Mr P was dissatisfied with the orders.
The husband’s lawyers argued that the remarks made by the judge in the course of the case, and his statement before hearing all the evidence that he wanted to see a 55/45 split, was sufficient to give rise to an “apprehension” of objective bias by a reasonable person. He said this final comment, before all the evidence had been heard, amounted to a prejudgment of the proceedings.
He accepted that a judge had an important role in family law proceedings to ensure proper provision was made, including assessing whether a settlement amounted to proper provision.
Mrs P argued that her husband had not come to the proceedings with “clean hands”, in that, when seeking leave for judicial review, he did not reveal an order for committal for contempt of court arising out of his non-compliance with an order for discovery.
Decision
Mr Justice Clarke reviewed the case-law on bias and prejudgment, saying that bias must be distinguished from prejudgment. He added that there was a form of prejudgment that might more accurately be described as premature judgment. This arose when an adjudicator made comments which made it clear that he had reached a decision at a time when he could not have done so, had he been complying with the principles of natural justice.
He stressed that the judge was entitled to come to the view that, on the basis of the information then before him, he was not persuaded that the settlement made adequate provision, and to indicate this. It was also important that the judge made it clear to the parties that he had not closed his mind to any further evidence or arguments that might be made.
Turning to the question of the dispute about what was actually said by the judge, he said: “If a judge makes an ambiguous comment such that a reasonable and responsible advocate appearing on behalf of one of the parties concludes that the judge has indicated a final view on the case, then it seems to me that it is unnecessary to resolve any specific differences as to what was actually said.”
At a minimum the judge made an ambiguous comment which could have led a reasonable and informed observer to take the view that he was indicating that the solution to any failure on the part of the husband to come up with a better offer would be that he would simply make an order.
Such an impression met the objective test for bias, and he considered that Mr P was correct in claiming that there was a reasonable apprehension that Judge McDonagh had prejudged the matter prior to hearing all the evidence.
Referring to the matter of “clean hands”, he said that, provided that discovery was properly dealt with in the end, it would be wholly improper for a judge to punish the party for a previous failure to make proper discovery when he came to make orders in the family law proceedings. He did not consider it would be appropriate to deprive Mr P of his entitlement to an order because he did not disclose the dispute over discovery when seeking the judicial review.
He said he did not consider that an appeal against any order made was an adequate remedy for Mr P, as he was entitled to get a fully impartial hearing at the outset. It would amount to a failure to adequately vindicate a party’s rights to require him to submit to the adjudication concerned, subject only to a right to appeal.
He granted Mr P the order of prohibition he sought, on the basis that there was a reasonable apprehension that the judge had already determined his case prior to the conclusion of the evidence and the hearing of arguments.
The full judgment is on www.courts.ie
Robert Beatty BL, instructed by Francis Taaffe Co, Athy, Co Kildare, for the applicant; Tom Cahill BL, instructed by Coughlan, White O’Toole, Newbridge, Co Kildare, for the respondent