The Court of Appeal has dismissed an application by Piotr Skoczylas, John Paul McGann and Tibor Neugebauer alleging objective bias by the judges who heard their appeal. The court ruled on 25 April 2023 that the motion was an abuse of process and, separately, that the applicants had not proved objective bias. It refused their requests for a declaration of bias and for the panel to recuse itself from the remaining appeal issues.
The application concerned Paul Gallagher SC’s appearance for Permanent TSB, then known as Irish Life and Permanent, at the appeal hearing in November 2020 while he was Attorney General. The applicants argued that his representation created a conflict because the Minister for Finance was also a respondent and because, they alleged, the Attorney General could influence judicial appointments and promotions. Those were the applicants’ submissions, not findings by the court.
The court said Skoczylas objected to Gallagher’s appearance during the 2020 hearing, but did not then make a coherent argument that the panel was objectively biased. It accepted that he may have been surprised by Gallagher’s appearance and lacked time to research the issue, and that the applicants were unrepresented. The court was not satisfied they had waived the opportunity to raise bias during that hearing.
However, the court found they should have raised the bias claim in a November 2022 application seeking review of the principal appeal judgment. It noted that the review affidavit already contained substantially the same factual allegations and mentioned bias. In the court’s view, bringing a separate motion later—after the review application had been rejected—was an abusive collateral attack on the principal judgment and exposed the Minister and Permanent TSB to successive applications. It dismissed the motion on that basis.
The court also considered the bias claim on its substance. It applied the test of whether a reasonable, fair-minded and informed observer would apprehend a risk that the panel would not be impartial. The court found Gallagher had appeared as a barrister for Permanent TSB, instructed separately from the Minister’s counsel, and not in his official capacity as Attorney General. It said a barrister’s professional representation does not by itself create an affiliation with a client’s cause, and found no cogent link between Gallagher’s appearance and a risk of judicial bias. The panel also made a voluntary disclosure that none of its members had an application for promotion to the Supreme Court or another public office pending before Government at the relevant times.
The motion’s costs were reserved until the remaining appeal issues are heard. These include the appeal against High Court costs orders, the costs of the appeal, the recusal motion costs and a stay application. The Court of Appeal directed that those issues be heard on 11 July 2023.