Friday 9 December 2016

Judge rejects claim he 'sanctimoniously' objected to comment made in property case between husband and wife

Tim Healy

Published 16/06/2015 | 18:36

Judge's gavel
Judge's gavel

A HIGH Court judge has rejected a claim he "sanctimoniously" objected to a comment made during a case involving a dispute between a husband and wife over property.

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Mr Justice David Keane also ruled he was not biased when dealing with the case during which senior counsel Frank Callanan argued the judge should disbar himself from further hearing.

Mr Callanan had alleged a "ruthless" mother-in-law devised a scheme leading to her daughter-in-law relinquishing for €350,000 her share of a nursing home business operated with her estranged husband.

Counsel described the husband as a "pallid emanation" of his mother.

Mr Callanan said the judge had "sanctimoniously" objected to his (counsel's) use of the word ruthless.

Mr Justice Keane said he had not expressed scepticism about the case made by the wife in proceedings against her estranged husband.

He described as "offensive nonsense" a suggestion by Mr Callanan, for the wife, that the judge gave indications to to lawyers via a "secret code" supposedly involving non-verbal conduct including stopping listening to the wife and the judge looking at his mobile phone.

The judge said had briefly consulted his phone, upon which he kept his court diary and through which he received communications from his judicial assistant.

He made the comments in a judgment refusing Mr Callanan's application to recuse himself from further hearing the action.

In that action, the wife sought orders for recission of an agreement entered into with her husband in December 2004 which provided she would relinquish her share in the nursing home business for €350,000.

The husband denied her claims that agreement was procured by misrepresentation, undue influence or duress or a combination of such factors.

The case opened in April and the court heard it was agreed the wife's case should be decided first.

Mr Callanan applied to the judge to recuse himself from the case on grounds including remarks by the judge to the wife in response to her noting the court's concern, made while giving her evidence, about the couple's children.

The judge told her he was concerned about matters being expressed in open court, which the media were free to report on, when it was being suggested, for example, a mother in law was a "ruthless" woman.

At that point, Mr Callanan intervened to say those were "my words" and he took the "gravest possible exception" to the judge's "interference with my role as a cousnel in presenting an extremely difficult case".

In his decision refusing to recuse himself, the judge said Mr Callanan sought recusal on grounds including that the judge had "sanctimoniously" objected to his describing wife's mother in law as ruthless.

Another ground was based on arguments by Mr Callanan the judge had made statements, put questions and adopted a general demeanour intended to convey he disbelieved the wife's testimony.

Mr Callanan said this conduct was indicative of a "time-honoured code" supposed to be understood by counsel and he, counsel, wanted to say "the day there is one language spoken in court between lawyers, and another between the people of Ireland, is over".

Dismissing all grounds, the judge said it was "deeply regrettable" counsel should resort to "ad hominem invective" in accusing the court of sanctimony.

This was an allegation for others to judge which added nothing to the legal argument.

The assertions he made comments, asked questions and adopted a demeanour designed to communicate to lawyers, but not others, in a secret code "are an offensive nonsense and are wrong". He knew of no such code, he added.

The judge said Mr Callanan had contrasted his own lengthy experience in practice with the judge's "brief tenure" on the bench.

It was "surprisingly frequently" the lot of less experienced judges to be presented with arguments which, instead of resting on legal authority, were based on the suggestion appropriate deference is due to the greater experience of the counsel making them.

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