The High Court has granted John Burke leave to seek judicial review of a District Court instalment order requiring him to pay €100 a week, citing a possible perception of bias in how his case was handled. The court made no final decision on whether to quash the order.
Mr Justice John Edwards said the application concerned an order made on 17 September 2008 by District Judge Terence Finn. Mr Burke sought leave to challenge it on grounds that he had not been treated fairly and that actual or perceived bias existed.
The instalment proceedings followed a January 2008 Circuit Court judgment in favour of Clarke Machinery Limited, which awarded the company €13,000 and €540 in costs after Mr Burke did not enter an appearance. That judgment was not appealed. The company then began enforcement proceedings seeking an examination of Mr Burke’s means and an instalment order.
In an affidavit, Mr Burke said he had tried to appeal the Circuit Court judgment and told the District Court he had no capacity to pay. He described the judge warning him that he would be jailed if he spoke after the ruling. Mr Burke also said he later attended court to ask about appealing and the judge ordered the courtroom cleared. These accounts were his evidence, not findings that the events occurred as described.
The High Court said Mr Burke had been allowed to give evidence and make submissions in the District Court, and that fair procedures had been observed to that extent. It inferred that the warning about speaking was given because the judge anticipated an argumentative response, based on Mr Burke’s previous dealings with the court.
However, Mr Justice Edwards said a judge could not absolutely refuse to hear a party after giving a ruling. A respectful request for clarification or leave to appeal had to be considered. The High Court said the warning, as described in Mr Burke’s affidavit, arguably went too far by failing to leave open that possibility. It also said the refusal to entertain any application from him on 18 September appeared unjustifiable.
The judge found no actual bias, but said the handling of the two court appearances could arguably create a perception of bias for an independent observer. He granted leave to pursue judicial review against Judge Finn only, refused leave against the Director of Public Prosecutions, and directed that Clarke Machinery Limited be added as a notice party and served with the case papers. Costs were reserved for the substantive hearing.