The Court of Appeal has refused Olumide Smith’s application to remove two judges from the panel assigned to hear his appeal against Cisco Systems Internetworking (Ireland) Limited.
Mr Smith argued that Justices Binchy and Allen should recuse themselves because they had been involved in earlier decisions against him, he had complained about them to the Judicial Council, and he said Courts Service had blocked his emails in 2020. He alleged that the previous adverse decisions showed racial or ethnic bias. He did not allege actual bias.
Delivering judgment on 21 July 2023, Ms Justice Máire Whelan said the test was whether a reasonable, informed and fair-minded observer would apprehend that the appeal would not receive a fair hearing. The court found that Mr Smith had identified nothing said or done by either judge in the earlier proceedings to support that apprehension. The fact that decisions had gone against him was not, by itself, evidence of bias.
The email allegation concerned a different judge, and Mr Smith did not suggest that either judge on the appeal panel had been involved in or knew about the alleged blocking. The court held that the incident did not provide a basis for recusal.
The judgment also rejected an automatic rule that a complaint to the Judicial Council requires a judge to step aside. Such a complaint may be relevant, but the applicant must set out the facts supporting recusal; the complaint alone is not decisive. The court concluded that neither the complaints nor the other grounds advanced justified removing either judge.
The application was refused. The court directed that the substantive appeal should go into the next list so an early hearing date could be fixed. It did not decide that appeal, which concerns Mr Smith’s employment equality claim against Cisco.
On costs, Justice Whelan gave a preliminary view that Cisco was entitled to the costs of the failed application, to be assessed if the parties could not agree. Mr Smith could file written submissions seeking a different costs order within 21 days; Cisco could reply within 21 days of receiving them. Justices Binchy and Allen concurred.