Thursday 23 May 2019

Court judgment struck out

Dearbhail McDonald, Legal Affairs Correspondent

THE SUPREME Court has set aside one of its own rulings given by Chief Justice John Murray after he struck out a case involving a firm of architects in which his brother is a director.

The case centres around a dispute over a student accommodation block built by Trinity College Dublin which was designed by a firm founded by the Chief Justice's brother, architect Hugh Murray.

Four years ago Judge Murray, then an ordinary member of the Supreme Court, struck out a case taken by a long-term opponent to the development.

But when Dubliner James Kenny discovered the family ties between the Supreme Court judge and the architect, he lodged another appeal, claiming the Chief Justice was "objectively biased".

The Supreme Court has now ruled that although Hugh Murray was not directly involved in the property dispute, the test for "objective bias" had been met.

The finding of "objective bias" against the Chief Justice is an embarrassment for the Supreme Court which has been forced to strike down one of its own rulings following a complaint against a senior judge by an inexperienced lay litigant.

In a robust defence of their colleague, the Supreme Court -- asked to rule on whether one of its own decisions had been tainted by bias -- said it was obliged to respect the principle that "justice must not only be done, but be seen to be done".

It also said that it should be "especially careful" with one of its own judgments.

The Supreme Court, which said that it had to act with great care and caution, found that a reasonable observer might be concerned, in the circumstances, that a judge might find it difficult to maintain complete objectivity and impartiality. Company director James Kenny has been involved in a long legal battle against a Trinity College student residence designed by Murray O'Laoire architects (Mola).

The development has long since been completed but Mr Kenny, who sought -- without success -- to have a decision of An Bord Pleanala granting planning permission to the college declared invalid, has been engaged in a series of legal proceedings with the university for over seven years.

In the original case four years ago, Judge Murray, leading a three-judge court, rejected Mr Kenny's appeal. But in the summer of 2006 Mr Kenny discovered that Hugh Murray was a director in Mola and in January of this year he sought an order vacating the earlier Supreme Court order on the grounds of objective bias.

Following that hearing, the Supreme Court ruled this week that the test of objective bias had been satisfied.

"The question is whether a reasonable observer might have a reasonable apprehension that a judge, hearing such allegations being made against the firm of architects in which his brother was a member, although that brother was not in any way directly involved in the subject-matter of the litigation, might find it difficult to maintain complete objectivity and impartiality," said Mr Justice Nial Fennelly in a brief, five-page ruling.

The court, he added, should be especially careful where it is considering one of its own judgments. He believed the test of objective bias was satisfied.

Although the accusation of objective bias has been upheld by the Supreme Court, Mr Kenny made it clear that he made no allegation whatsoever of subjective bias.

He accepted that Judge Murray would have recused himself from the case if he had been alerted to the situation.

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