The Supreme Court has ruled that it had no jurisdiction to hear a husband’s appeal from a High Court decision arising from Circuit Court family proceedings.
The anonymised parties, identified as P. and P., were husband and wife. Following the breakdown of their marriage, the wife brought Circuit Court proceedings concerning custody of their children, access, residence in the family home and maintenance. The Circuit Court made orders in March 1999 and the husband appealed aspects of that decision to the High Court.
During the High Court rehearing in February 2000, the judge made preliminary observations about the family’s limited financial resources and possible solutions. The judge expressly said he had not reached final conclusions because evidence had not yet been heard.
The husband nevertheless argued that those comments demonstrated prejudgment or gave rise to a reasonable apprehension of bias. His request that the judge withdraw from the maintenance issue was refused. He then declined to continue with that part of his appeal. The High Court varied the custody arrangements by consent and affirmed the Circuit Court’s maintenance order.
The husband sought to appeal to the Supreme Court.
Mr Justice Murray held that section 39 of the Courts of Justice Act 1936, as re-enacted in 1961, makes a High Court decision on an appeal from the Circuit Court “final and conclusive and not appealable”. That restriction covered rulings made during the High Court appeal, including the judge’s refusal to disqualify himself.
The court did recognise a narrow exception to the broader principle of finality. A final and otherwise unappealable High Court order may potentially be challenged in exceptional circumstances involving a fundamental denial of constitutional justice.
But such a challenge cannot originate in the Supreme Court. It must first be brought as a separate substantive application in the High Court.
The Supreme Court therefore dismissed the appeal for lack of jurisdiction. It made no finding on whether the allegation of objective bias was actually established.