The Supreme Court has set aside its 2003 order striking out James Kenny’s claim against Trinity College, after finding that the test for objective bias was satisfied. The decision reinstates Kenny’s appeal from a High Court order; it does not determine the underlying planning dispute or allegations of misleading the court.
Kenny had sought to challenge An Bord Pleanála’s grant of planning permission for student residences at Trinity Hall, Dartry. The development was completed before this judgment. In December 2000, the High Court refused him leave to seek judicial review and refused a certificate allowing an appeal to the Supreme Court.
Kenny then brought a separate High Court action seeking an order directing a rehearing of that judicial review application. He alleged that Trinity College, through its counsel, had misled the High Court about proposed boiler locations. Trinity College strongly contested the allegation, and an architect who had worked on the development denied that the court had been misled. The Supreme Court said it was unnecessary and inappropriate to assess the merits of that dispute in the present application.
In June 2003, the Supreme Court allowed Trinity College’s appeal and struck out Kenny’s action as disclosing no reasonable cause of action. Its judgment said the pleading did not set out the elements of the alleged fraud or explain how the alleged failure to disclose amounted to dishonest or fraudulent concealment.
Kenny later applied to set that order aside, alleging objective bias. He said that in 2006 he learned that Justice Hugh Murray, who had heard the 2003 appeal, was the brother of a partner in Murray O’Laoire, the firm that designed the development. The firm’s name appeared on documents before the court, including plans and affidavits from the project architect. Kenny made no allegation of subjective bias and said he accepted that the judge would have recused himself if alerted to the relationship.
The Supreme Court noted that the judge’s brother had no involvement in the development and was based in Limerick. The firm was not a party; its Dublin-based project architect was a witness. The court stressed that it expressed no view on Kenny’s allegations. Applying the objective test with particular caution because it was reviewing one of its own judgments, it concluded that a reasonable observer could have a reasonable apprehension that the judge might find it difficult to remain impartial when allegations were made against the firm employing his brother.
The court set aside the June 2003 order and made no further order. The effect was to reinstate Kenny’s appeal from the High Court order.