A Supreme Court judge has urged the parties in a competition claim to consider whether the litigation process is disproportionate to its potential outcome, while stressing that his comments did not limit their right to pursue the case to a final decision.
In observations delivered on 14 May 2013, Mr Justice John MacMenamin said he agreed with the judgment and order proposed by the Chief Justice and with a judgment delivered by Mr Justice Clarke. He added that the unusual circumstances of an application to dismiss the case, which involved an allegation of objective bias against a judge, highlighted the importance of both access to the courts and public confidence that justice is seen to be done.
Justice MacMenamin said the High Court would have several issues to determine and that the assigned judge would decide their sequence. One necessary question, he said, was whether the appeals had been brought with the consent of the liquidator, whether express or implied. He said correspondence exhibited in the application suggested resolving that issue could involve complexity and cost.
Depending on how that issue was resolved, he said, further litigation could follow, including first-instance decisions and appeals. He also said it could ultimately be necessary to decide whether the competition claim should be allowed to proceed.
Justice MacMenamin did not decide those questions in his observations. He said he could not answer whether the process was disproportionate to the potential outcome, and warned of the risk of interlocutory applications and appeals amid limited court time and potential costs for the parties.