A High Court judge refused to recuse himself from a judicial review challenging planning permission for the Greater Dublin Drainage Project, finding that his earlier work as counsel for Irish Water did not give rise to a real doubt about his ability to hear the case fairly.
Mr Justice Allen’s judgment, delivered on 23 September 2020, concerns only the recusal application. The substantive judicial review sought to quash An Bord Pleanála’s decision of 11 November 2019 to grant Irish Water permission for the strategic infrastructure project, which includes a wastewater treatment plant, an orbital sewer and an outfall pipeline into the Irish Sea. The judge said he would deliver a separate judgment on that application.
The applicant sought recusal on the third day of a ten-day hearing. Her counsel pointed to Mr Justice Allen’s earlier appearance for Irish Water in Irish Water v Woodstown Bay Shellfish Ltd, a case concerning permission to inspect a seabed in Youghal Harbour. Counsel argued that the earlier case involved similar environmental assessment issues and a marine pipe, and that the judge’s prior engagement created a potential conflict. The respondents and Irish Water opposed the application.
Mr Justice Allen said the test was whether a reasonable, fair-minded and informed observer could have a real doubt that he would approach the case with an open mind. He rejected the argument that the test was lower when recusal was sought from the trial judge. He also said a judge’s past work for a party did not, by itself, require a declaration or disqualification; the circumstances must provide a cogent and rational basis for concern.
The judge described the earlier Youghal case as an appeal about whether a court could permit an inspection of a protected site without evidence of its environmental impact. He said it was the only case in which he had acted for Irish Water, that he had not been involved in the underlying planning or Circuit Court proceedings, and that the brief came through a colleague. He found no material similarity between the legal issues in that case and those in the judicial review. The earlier case was not cited in the parties’ written submissions or authorities and was not referred to during the remaining hearing days.
The substantive challenge included allegations that two Board members should have been disqualified because of past professional associations and had failed to make required declarations. The judge said his decision on his own recusal did not determine those allegations or prejudge the planning decision.
He also declined to transfer the case to another judge. The hearing had been specially arranged during lockdown and was already four days into a ten-day listing. Reassignment would, he said, have caused added expense and delay. The court therefore refused the recusal application and continued hearing the substantive motion. The judgment records that the applicant had appealed the refusal.