The Court of Appeal has dismissed Antonio Casimiro Lopes’s appeal against a High Court order refusing to remove a judge from his cases. It proposed that Lopes pay the respondents’ appeal costs, subject to a possible short costs hearing if he disputes the order.
The appeal concerned Judge Reynolds’s refusal, on 28 February 2020, to recuse herself from hearing Lopes’s cases. His application followed a hearing on 27 January, when she refused non-party discovery from Dublin Land Securities and adjourned another motion. Lopes alleged bias, discrimination and a denial of a fair hearing, arguing that the defendants had engineered a situation in which Reynolds would hear his motions.
Lopes’s underlying Circuit Court proceedings, later transferred to the High Court, concern a property at 130 Thomas Street, Dublin. He claims title through adverse possession and alleges he was wrongfully evicted. He also seeks to challenge earlier orders and the property’s 2013 sale. Those claims were background to the recusal appeal; the Court of Appeal did not decide them.
Writing for the Court of Appeal, Haughton J said the appeal grounds focused on the January hearing and did not identify an error in the February recusal hearing. Lopes had not provided a transcript of the January hearing. The court considered affidavit evidence and the transcript of the February hearing, and declined to consider material that had not been properly introduced as evidence below.
The court accepted the uncontested account in an affidavit from Mr Kenny, which said the judge had read the papers over lunch and gone through discovery documents with Lopes. Lopes had declined an opportunity to file a replying affidavit. The court said there was no evidence that he had been denied an opportunity to make submissions. It also found that the delay in hearing the discovery motion was not attributable to the court or the defendants, and that the ordinary listing process did not support his claim that the defendants had chosen the judge.
Applying the objective-bias test, the court concluded that a fair-minded observer with knowledge of the relevant facts and court practice would not apprehend bias. It dismissed the appeal. The judgment proposed appeal costs for the respondents, to be assessed by a legal costs adjudicator if the parties could not agree; Lopes was given 10 days from electronic delivery to notify the Court of Appeal Office if he wished to dispute that proposed order.