The Court of Appeal has rejected Olumide Smith’s application to have two judges recuse themselves from his appeal against Cisco Systems Internetworking (Ireland) Limited. The panel said the mere fact that complaints had been made against judges did not create a reasonable apprehension that Smith would lack an impartial hearing.
The application was made when the court sat on 16 March 2023 to hear Smith’s appeal. The appeal concerns a High Court decision dismissing his challenge to a Labour Court determination dated 26 April 2018. The Court of Appeal judgment, delivered by Mr Justice Senan Allen on 21 July 2023, addressed the recusal application; it did not decide the underlying employment appeal.
Smith sought the recusal of Justices Allen and Binchy. His grounds included their involvement in earlier proceedings or applications involving him, the blocking of emails to the Courts Service, and complaints he had lodged with the Judicial Conduct Committee. Cisco’s counsel opposed the application, submitting that the material did not give rise to a reasonable apprehension of bias.
Justice Allen said prior involvement in other proceedings or applications, without more, was not a proper basis for recusal. He noted that neither he nor Justice Binchy was alleged to have known about or been involved in the email blocking.
The judgment described two complaints Smith had made against Justice Allen. One, filed in January 2023, concerned Allen’s role in an October 2022 application for an extension of time to appeal. The Registrar had found it inadmissible, and Smith had sought a review. A second complaint, filed in March 2023, concerned the composition of the panel assigned to hear the present appeal and had not yet been assessed for admissibility at the time of the recusal application.
The court assessed the application based on the position at that time. It held that the mere existence of complaints not determined to be admissible could not establish reasonable apprehension of bias. It also considered the substance described in the complaints and found no basis to conclude that Smith would not receive a fair hearing from an impartial judge.
Justice Allen declined to recuse himself. Justices Whelan and Binchy agreed with his judgment. The court proposed that the list judge assign the appeal the earliest possible hearing date. It left open whether different considerations might apply if a complaint against a judge had been found admissible.