The Supreme Court dismissed an application by Michael Butler and William Butler to have two judges removed from appeals concerning a €653,832 High Court judgment and a subsequent well charging order. The ruling addressed only whether the judges could hear the appeals; it did not decide the underlying dispute or the Butlers’ allegation that a court order had been fraudulently altered.
In a judgment delivered on 18 October 2017, Mr Justice O’Donnell said the appeals arose from a settlement made in the High Court at Dundalk on 11 February 2008. The respondents said the settlement required the appellants to pay €1.1 million by 11 September 2008 and allowed judgment to be entered for any unpaid balance. The Butlers did not dispute that they attended the hearing, reached a settlement and consented to a court order. They alleged, however, that a default clause was later fraudulently inserted into the order. O’Donnell J. recorded the allegation without deciding whether it was true.
A €653,832 judgment was entered by the High Court on 12 May 2009, followed by a well charging order on 20 October 2010. At an appeal hearing in October 2015, the Butlers produced two different versions of the 2008 order. The Supreme Court directed the Courts Service to investigate and provide sworn evidence explaining the versions, and adjourned the appeal.
The recusal application concerned Mr Justice Clarke, who had made interlocutory orders in the litigation and whose name had appeared in error on an initial version of the 2008 order, and Mr Justice MacMenamin, who had made an order transferring the case to Dundalk. The High Court later corrected the error concerning the judge named on the order. O’Donnell J. said Clarke J. had not presided at the 2008 hearing; a transcript showed that McGovern J. had done so.
O’Donnell J. applied the test of whether a reasonable person with all the relevant information would apprehend that a party might not receive an impartial hearing. He concluded the judges’ earlier procedural involvement and the acknowledged error did not meet that test. He described the recusal application as lacking substance and dismissed it. The judgment did not rule on the fraud allegation or determine the appeals against the judgment and well charging order.