The Court of Appeal has dismissed Kevin Tracey’s appeal against a High Court order awarding the defendants the costs of his application to have the judge managing his litigation recuse himself. The appeal was limited to the order of 4 November 2019, but the court also considered the earlier refusal of the recusal application because the appeal could not be assessed without examining that application.
Tracey had sought the recusal of Eagar J. from five proceedings. He alleged, among other matters, bias and unfairness in the handling of discovery, inspection of documents and the transfer of this case to a jury list. The claims arise from a July 2006 incident at Áras Uí Dhálaigh and a subsequent prosecution connected with it.
Eagar J. refused to recuse himself in a judgment delivered on 25 October 2019. At a separate hearing on 4 November, he awarded the defendants the costs of the recusal application, to be taxed or otherwise determined if the parties could not agree, and gave directions for ongoing case management. Tracey appealed the later order, not the 25 October order itself.
In the Court of Appeal, Tracey argued that the recusal process denied him fair procedures and that Eagar J. should not have decided an application seeking his own recusal. The judgment records that Tracey attended the High Court hearing of the recusal application on 7 October 2019 but chose not to make oral submissions. The court said his grounding affidavit was considered. At the costs hearing, he made submissions on why costs should not be awarded.
The appeal court applied the objective test for bias: whether a reasonable, fair-minded and informed observer would apprehend a risk that the judge would not be impartial. It said disagreement with a judge’s decisions, including decisions on discovery and case management, did not by itself establish objective bias. It also held that a judge may hear an application for their own recusal and that Tracey had not shown a basis to interfere with the costs order.
The court dismissed the appeal. Its preliminary view was that the respondents should receive the costs of the appeal, with the amount to be determined if not agreed. It said Tracey could request a hearing on that proposed costs order within 21 days of delivery of the judgment. The judgment does not state the final amount of appeal costs.