The Court of Appeal has refused an application by Brian, Kenneth and Maurice McDonagh to set aside its April 2022 judgment, rejecting their claim that a judge’s earlier work as a barrister for parties to the case gave rise to an appearance of bias.
The application concerned an appeal over a dispute with Ulster Bank DAC and receivers Paul McCann and Patrick Dillon. In April, the Court of Appeal had upheld High Court decisions in proceedings concerning a loan, a 2013 compromise agreement and the receivers’ appointment over lands at Kilpedder, County Wicklow.
The McDonaghs’ motion, dated 6 May 2022, said they had discovered that a member of the appeal panel, Maurice Collins J., had previously acted for the Bank in a 2014 case and for Grant Thornton in a 2017 case. They sought to have the April judgment set aside or reviewed, and also raised the possibility of referring the matter to the Court of Justice of the European Union.
The court’s judgment recounted that the defendants had earlier alleged that a Grant Thornton data breach involved their information and that Collins J. knew of it. The Bank’s solicitors said the breach concerned data linked to another financial institution, and the court said the defendants appeared to accept that none of their data had been involved. The judgment described the earlier allegations as serious and said they had been made without, it seemed, efforts to establish their accuracy.
The court applied the objective test for bias, considering whether a reasonable observer familiar with the Irish legal system would apprehend that Collins J. could not bring an open mind to the appeal. It said that a barrister’s past work for a party is not, by itself, enough: there must be an additional, cogent and rational link to the issues being decided.
The court found no such link. The earlier matters were unrelated to the dispute before the appeal court, and it said barristers commonly act for and against institutional clients. It observed that Collins J. might, in hindsight, have mentioned his prior involvement given the history of the litigation, but concluded there was no rational basis for recusal.
The application to set aside the April judgment was refused. The court did not grant the alternative reliefs sought, including a review or a referral to the EU court. The judgment described the application as without merit and bordering on being unstateable.