The Supreme Court has allowed three appeals by Goode Concrete over a High Court judge’s shareholding in CRH Plc, quashed three decisions made by that judge and remitted the matters to the High Court to be heard by another judge.
The appeals concerned decisions by Cooke J. refusing Goode Concrete’s application for interlocutory injunctive relief in January 2011, granting the respondents’ applications for security for costs in March 2012, and setting security amounts in May 2012. The Supreme Court judgment, delivered by Denham C.J. on 31 July 2015, addressed the single ground of appeal: whether the judge’s undisclosed interests in CRH gave rise to a perception of bias.
When the case first came before Cooke J. in November 2010, he told the parties that he believed a very small number of CRH shares might be held in his pension fund. Goode Concrete later said it learned of further shareholdings, including an acquisition in December 2010. It submitted that at least 8,966 shares were held when the judge heard the applications, and valued them at about €135,835 using the share price on 9 December 2010. Those figures were submissions by the appellant, not findings stated by the Court.
In November 2012, after a recusal motion was brought, Cooke J. explained that financial advisers had arranged various retirement investments and that he had not been following the transactions day to day. He said he was unaware of the additional CRH purchase when it was made. He told the parties he would no longer be involved in the proceedings.
The Supreme Court rejected the proposed rule of automatic disqualification and applied Ireland’s established objective test: whether a reasonable person, informed of all relevant circumstances, would have a reasonable apprehension that the hearing would not be fair and impartial. It said a judge with a pecuniary interest in a party should generally not hear the case, subject to exceptional circumstances where the declared interest is trivial or insubstantial. It distinguished shares held directly by a judge from shares within investment units over which the judge has no control or knowledge.
The Court said the full facts were not before it when the initial disclosure was made and no inquiry followed. It held that the responsibility to check shareholdings and inform the parties rests with the judge, not the parties. It also concluded that the November 2010 disclosure was insufficient for waiver to arise for decision.
The Court allowed the appeals and ordered that the three identified High Court judgments be quashed and the matters returned to the High Court for hearing by another judge. The judgment does not determine the underlying proceedings on their merits.