The High Court granted A. P. an order prohibiting a Circuit Court judge from continuing to hear family law proceedings involving A. P. and notice party P. P. Mr Justice Clarke ruled on 10 July 2009 that comments attributed to the judge gave rise to a reasonable apprehension that the case had been decided before all evidence and argument were heard.
The judicial review concerned two refusals by the judge to disqualify himself. A. P. and P. P. are a married couple whose relationship had broken down. A. P. began judicial separation proceedings in 2001; the parties agreed in July 2008 to convert them to divorce proceedings.
At the hearing, A. P.’s counsel said A. P. sought an equal division of assets, which were said to total €3.368 million. P. P.’s side raised concerns about financial disclosure, including whether A. P.’s shareholdings in two companies were included. The judge directed A. P. to provide documents that day or face possible imprisonment for contempt. A. P. complied.
The parties later reached a settlement, but the judge questioned whether it made proper provision for P. P. The judgment records that the judge sought a 55/45 division in P. P.’s favour and referred to increasing a proposed €120,000 payment to €240,000 or transferring a field valued at about €175,000. The parties did not agree to change the settlement.
There was a dispute over the judge’s final comment. A. P.’s solicitor and counsel said the judge stated that if A. P. would not pay the proposed sum, the judge would “just make an order in those terms”. P. P.’s solicitor did not recall that wording and described the comment as saying the judge would hear the case and then make an appropriate order. The High Court did not decide which version was spoken. It found that even the differing accounts described an ambiguous comment that could reasonably be understood as indicating that the judge would impose an order along the lines already proposed.
The court accepted that a judge in divorce proceedings had a duty to assess whether a settlement provided proper provision. It distinguished that assessment, based on the information then available, from appearing to have settled the outcome before further evidence and argument. It held that the comments created a reasonable apprehension of premature judgment.
The court also rejected arguments that A. P.’s failure to disclose the earlier discovery issue at the leave stage should bar relief, finding any omission of marginal relevance and not sufficiently culpable. It held that a de novo appeal would not be an adequate remedy in the circumstances. The judgment concluded that A. P. was entitled to the order of prohibition.