A Supreme Court judge would have dismissed Goode Concrete’s appeals seeking to set aside three High Court decisions over an allegation of objective bias, according to a dissenting judgment delivered by Mr Justice Hardiman in 2015.
The case arose from Goode Concrete’s competition law action against CRH plc and two other defendants. High Court judge Mr Justice Cooke had refused an application for an interlocutory injunction, granted the defendants’ applications for security for costs, and later fixed the security at €110,000 for the first and second defendants and €85,000 for the third.
Goode Concrete argued that circumstances involving Cooke J’s shareholding in CRH gave rise to objective bias. Hardiman J said the judge had told the parties at the first hearing, in November 2010, that he had a “vague feeling” a small number of CRH shares were in his pension fund, and asked them to consider the matter. Neither party objected or sought further details at that time, Hardiman J said.
The judgment said further CRH shares were later acquired for the judge by advisers without his knowledge. It put his holding at 8,966 of 111,368,470 shares. Hardiman J accepted Cooke J’s account that he did not know about the additional purchase when the earlier decisions were made.
Goode Concrete’s solicitors raised the matter privately with the judge in October 2012, according to the judgment. Cooke J said it should be addressed in open court, after which the company brought a motion seeking his recusal. The Supreme Court appeal concerned the challenge to the earlier interlocutory decisions; the underlying competition action had not yet been heard, the judgment said.
Hardiman J also described conflicting accounts of how information about the shareholding was obtained from the judge’s stockbroker. The stockbroker’s liquidator said an employee had been deceived by a caller identifying himself as assisting the judge with tax returns. Solicitors for Seamus Maye denied that account and said the employee had disclosed the information during a call initiated at the request of Pershing International Nominees. Hardiman J said he did not need to resolve the conflict, but considered that some form of duplicity had been involved.
He disagreed with the Chief Justice and concluded that the shareholding did not establish a real possibility of bias. He would dismiss the appeals. This is Hardiman J’s dissenting judgment; it does not state the Supreme Court’s majority disposition.