The High Court has refused an application by George Beggan and Catherine E. Beggan for Mr Justice Tony O’Connor to recuse himself from their applications in a dispute with receiver Kieran Wallace.
The recusal decision, delivered on 17 February 2017, concerned applications listed for hearing on 8 March in the Chancery List. The defendants seek, among other reliefs, declarations that deeds appointing Wallace as receiver are invalid, an order striking out Wallace’s action, and permission to bring a counterclaim against him or ACC Loan Management Limited (ACC).
The defendants’ solicitor, Mr Maher, submitted that O’Connor’s earlier judgment in Farrell v Petroysan could lead an objective and informed person to apprehend that the defendants would not receive an impartial hearing. The first defendant’s affidavit described an “unfair and decisive” advantage for ACC and a “strong apprehension” that the judge had prejudged the effect of another judgment. Maher clarified that the defendants did not allege actual bias.
O’Connor said he had read only the notices of motion and the first defendant’s affidavit concerning the substantive issues. He also said there was no allegation or fact that he had a direct or indirect pecuniary interest involving the parties.
Counsel for Wallace, Ms Smith, argued that a judge’s earlier ruling on a legal issue did not prevent the court from hearing submissions on the same or a similar issue. O’Connor accepted that legal principles can be applied to different facts, and that further submissions and authorities can lead a judge to a different conclusion on a point of law.
The judge applied the test of whether a reasonable, objective and informed person would consider that he could give an impartial hearing free from prejudgment, hostility or prejudice. He also cited the principle that an objection to a judge sitting must rest on a substantial ground, so that litigants cannot influence the composition of the court.
O’Connor found that the first defendant’s apprehension of an unfair advantage for ACC was not one that an objective observer, with the relevant facts and not unduly sensitive, could have. He refused the recusal application. The ruling addressed only whether O’Connor should recuse himself; he noted that it was not yet known whether he would be assigned to hear the defendants’ substantive applications, a decision dependent on judicial availability and the Chancery List judge’s discretion.