The Supreme Court has, on grounds of "objective bias", set aside one of its own judgments given four years ago by Mr Justice John Murray, now Chief Justice, in a case brought against Trinity College Dublin over proposed student accommodation designed by a firm of architects of which Mr Murray's brother is a partner.
The three-judge court ruled that, although the Chief Justice's brother was not in any way directly involved in the subject matter of the litigation, a reasonable observer might have an apprehension that a judge might find it difficult to maintain complete objectivity and impartiality. This met the criteria for objective bias, the court found.
The judgment was given in long-running proceedings initiated by James Kenny, representing himself, against Trinity College over the building of student residences at Dartry Hall, Dublin. The residences were designed by Murray Ó Laoire architects, of which Mr Murray's brother is a partner. Mr Kenny objected to the development, since constructed.
The case was before the courts on a number of occasions and ultimately came before the Supreme Court when Trinity College applied to have it struck out as disclosing no reasonable cause of action.
In June 2003, a three-judge Supreme Court of the then Mr Justice Murray, presiding, Mr Justice Hugh Geoghegan and Mr Justice Brian McCracken granted the application to strike out, with the court's judgment being given by Mr Justice Murray.
Mr Kenny later applied to have the judgment set aside, claiming objective bias by Mr Justice Murray on grounds of his brother's involvement as a partner in Murray Ó Laoire.
A three-judge Supreme Court this week granted the application. Mr Justice Nial Fennelly, giving the court's decision and sitting with Mrs Justice Fidelma Macken and Mr Justice Vivian Lavan, said the court was being asked, in a very real way, to adjudicate on whether one of its own judgments was tainted by objective bias.
In order to ensure respect for the principle that justice must not only be done but be seen to be done, the court was obliged to act with great care and circumspection and should err on the side of caution, he said.
Outlining the background, the judge noted that, in December 2000, Mr Kenny was refused leave to bring a judicial review challenge to a decision by An Bord Pleanála to grant planning permission for the students' residence.
In November 2002, Mr Kenny asked the High Court to rehear the application. He alleged TCD misled the High Court during the leave hearing about matters relating to boilers in the building.
In March 2003, TCD applied to the High Court for the proceedings to be struck out. That application was grounded on two affidavits, one by Tom Merriman, acting projects officer, TCD, and the second by George Boyle, an architect in the firm of Murray Ó Laoire, architects, Fumbally Court, Dublin. Ms Boyle described herself as acting project architect for the development.
The High Court on April 2nd, 2003, dismissed TCD's application to have the proceedings struck out.
Trinity appealed the refusal to the Supreme Court and the appeal came on for hearing on June 20th, 2003. In a judgment of the court delivered there and then by Mr Justice Murray, the appeal was allowed and an order made that Mr Kenny's claim against TCD be struck out.
On January 15th, 2007, Mr Kenny applied to the court for an order vacating the Supreme Court order on the ground of objective bias. In an affidavit dated October 17th, 2006, Mr Kenny stated that in the course of the summer 2006, he became aware of the fact that one of the Supreme Court judges who had heard the appeal, namely Mr Justice Murray, was a brother of a partner in Murray O'Laoire.
In the Supreme Court this week, Mr Justice Fennelly said Mr Kenny's claim was that one of the judges hearing his application had a brother in the firm of architects. That firm was alleged to have participated in the concealment of material from the court.
Mr Justice Fennelly stressed it was not for the court at this point to express any view on the substance of those allegations.
He noted Trinity had relied on two particular aspects of the facts of the case "which indisputably distance the brother of the judge from the facts of the case". These were that the architect mentioned had no involvement whatever with the development in question. He was based in Limerick, not Dublin.
The architects were not parties to the proceedings but a member of the firm, operating out of Dublin and having charge of the project, was a witness only in the proceedings.
The present case involved an allegation of objective bias and there was no allegation of subjective bias, the judge said. On the contrary, Mr Kenny made it clear that he accepted that Mr Justice Murray would have excused himself, if he had been alerted to the situation, he said.
The test of objective bias was where a reasonable person in the circumstances would have a reasonable apprehension that the applicant would not have a fair hearing from an impartial judge on the issues.
"Applying the most favourable interpretation of the facts from the appellant's point of view and bearing in mind that the court should be especially careful where it is considering one of its own judgments, I believe that the test of objective bias should be held, in all the circumstances, to be satisfied," he said.
The court made an order setting aside the Supreme Court order of June 20th, 2003. The effect of that was to reinstate Mr Kenny's appeal against the High Court's refusal of leave to him.
