The Court of Appeal has dismissed cattle dealer Finbar Tolan’s appeal against a High Court decision refusing to reopen his case against Connaught Gold Co-operative Society Limited.
Tolan sought to re-enter proceedings that had ended with a 2014 High Court judgment for the co-operative. That result was upheld by the Court of Appeal in 2016, and the Supreme Court refused leave for a further appeal. His 2016 motion alleged, among other matters, that the original trial was tainted by bias because the trial judge, former High Court President Nicholas Kearns, was related by marriage to a solicitor at the firm that had advised Tolan and later represented him.
The Court of Appeal judgment, delivered by Ms Justice Máire Whelan on 31 July 2018, records that the High Court dismissed the motion in May 2017. Tolan appealed that refusal. The appeal court said reopening a final judgment was subject to limited circumstances and found no legal basis to disturb the existing orders.
The court rejected Tolan’s allegation that Kearns had discussed the case improperly with his solicitors before retaining control of it and fixing a trial date. Tolan was not present at the relevant November 2014 court hearing. The Court of Appeal said his account of private contact rested on hearsay and was not supported by admissible evidence. It considered an affidavit from the co-operative’s solicitor, who had attended the hearing, and a contemporaneous letter from Tolan’s solicitor. The court said those materials indicated that the matter was dealt with in open court, with both sides’ solicitors present.
The judgment said the trial date was fixed after unresolved discovery and particulars issues. The co-operative had sought to strike out Tolan’s claim, but Kearns refused that application and retained seisin of the case. The Court of Appeal described that as consistent with case management, not evidence of bias.
The court also said complaints about which witnesses Tolan’s legal team called or released concerned decisions by his representatives, not the trial judge. It found no evidence that the original hearing was unfair or that the principle requiring both sides to be heard had been breached.
The appeal court upheld the High Court judge’s application of the objective test for apparent bias. It concluded that the family connection described in the judgment, between Kearns and a solicitor in the firm representing Tolan, did not establish a reasonable apprehension that Tolan would not receive a fair hearing. The appeal was dismissed; the existing final orders remained in force.