Supreme Court rejects claim of ‘objective bias’ by judge

The Supreme Court has ruled against a boy who claimed 'objective bias' by a judge who heard his appeal in medical negligence case.

The boy claimed the judge’s participation in a conference on medical negligence litigation, hosted by a law firm that represented the State in defending a boy’s medical negligence case, could lead to a reasonable apprehension of objective bias on her part when hearing his appeal.

The appeal in question was against a €50,000 award by the High Court to Michael O'Driscoll in his action against a surgeon and the HSE over a bladder injury suffered during an appendectomy at St Luke's Hospital, Kilkenny, in 2006, when aged eight.

Ms Justice Mary Irvine was part of a three judge Court of Appeal which in July 2015 rejected arguments the €50,000 award was inadequate.

In a further appeal to the Supreme Court, the boy's lawyers argued Ms Justice Irvine should not have heard his appeal because she had in May 2014 chaired and addressed a medical negligence litigation conference, hosted by Hayes Solicitors, which acted for the State Claims Agency in defending the boy's case.

The conference was described on Hayes’ website as concerning “the need for radical reform of medical litigation in Ireland”, addressing the “widely held view” the Irish system of conducting clinical negligence claims is “not fit for purpose”.

‘Unjust, ineffective and Dickensian’

At the time, Ms Justice Irvine was a High Court judge with responsibility for managing its personal injuries case list. The website referred to Ms Justice Irvine, when chairing the conference, describing the system of awarding a single lump sum in catastrophic injury cases instead of annual payments over the duration of the victim’s life, as “unjust, ineffective and Dickensian”.

She was also quoted as having said practical reforms proposed in 2010 by the Working Group on Medical Negligence and Periodic Payments, which she then chaired, had yet to be introduced.

Lawyers for Mr O’Driscoll argued, arising from that participation, there was a real possibility of unconscious bias on her part when hearing the boy’s appeal and she should have recused herself.

In its reserved judgment on Tuesday, a seven judge Supreme Court unanimously ruled it was “impossible” to conclude the judge’s participation could possibly give rise to any apprehension of objective bias on the part of a reasonable observer.

Giving the judgment, Ms Justice Elizabeth Dunne said she was satisfied a reasonable observer would conclude Ms Justice Irvine was participating in and chairing a conference on an issue of public and legal interest in a topic of importance in the field of medical negligence litigation.

The 250 invited attendees represented both plaintiffs and defendants in medical negligence cases and the conference involved serious engagement with important issues in the medical negligence litigation field, she said.

It was also significant Ms Justice Irvine was then chairing the Working Group on Medical Negligence and Periodic payments.

Ms Justice Irvine’s participation would be viewed by a reasonable observer as “appropriate and helpful activity” on the part of the judge in describing the work of the Working Group and the concerns that had arisen in the course of such litigation.

This was the sort of engagement by judges in the legal development and learning of those involved in litigation “to be viewed as desirable and not to be criticised”.

The Chief Justice, Mrs Justice Susan Denham, said the court would make no order for costs of the appeal, meaning each side pays their own, particularly because the case concerned a minor. Lawyers representing minors in litigation should be particularly vigilant in relation to costs issues, she said.