Affidavit Affirmed By Patrick Kelly On 11 November 2009

High Court Record Number 2007 52 CA

THE HIGH COURT

BETWEEN PATRICK KELLY PLAINTIFF AND

NATIONAL UNIVERSITY OF IRELAND, DUBLIN AKA UNIVERSITY COLLEGE DUBLIN (UCD) DEFENDANT AND

THE DIRECTOR OF THE EQUALITY TRIBUNAL NOTICE PARTY

AFFIDAVIT OF PATRICK KELLY

I, Patrick Kelly, of 11 Deansrath Avenue, Clondalkin, Dublin 22, a qualified teacher aged 31, Affirm and say as follows:

1.

I am the Plaintiff in the above entitled appeal under Part IV of the Courts of Justice Act 1936 and Order 61 of the Rules of the Superior Courts. I make this affidavit from facts within my own knowledge save where otherwise appears and, where so appearing, I believe the same to be true.

2.

This affidavit grounds my application to the Court for an order recusing from these proceedings High Court Judge William McKechnie AKA Liam McKechnie.

3.

Mr Justice McKechnie has gone from merely favoring the Defendant – which, in my opinion, he has done whenever possible since April 2007 – to lying for the Defendant. He is biased and appears biased.

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4.

“It is”, Lord Hewart CJ said R v. Sussex Justices, ex parte McCarthy [1924] 1 KB 256, at page 259, “of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”.

5.

Mr Justice McKechnie took seisin of this case on 23 April 2007. That very day I made my request for a preliminary reference to the European Court of Justice under Article 234(3) of the Treaty establishing the European Community. The reference has still not been made – even though Mr Justice McKechnie conceded on 31 July 2008 that he would have to refer to the European Court of Justice the four questions I drafted. He decided, however, to add (at the Defendant’s behest) a “fifth question” – the purpose of which is to make “any entitlement to information” under European law “should such be found to exist” worthless.

6.

In my legal submission dated 17 January 2009 I said, at paragraph 7:

“Mr Justice McKechnie’s ‘fifth question’ is being added to the preliminary reference to make ‘any entitlement to information under the…Directives’ ineffectual”.

7.

I called his “fifth question…an abuse of the preliminary reference procedure”.

8.

I asserted in my legal submission dated 1 February 2009, at paragraph 8:

“Mr Justice McKechnie is ‘add[ing]’ his question because he does not want the ‘discretion’ he enjoys under the Republic of Ireland’s ‘national laws relating to confidentiality’ to be affected by ‘any entitlement to information under the aforesaid Directives’ (and he has already said how he will exercise his ‘discretion’ in my case)”,

9.

On 17 February 2009 I made an interlocutory application for an order setting aside the oral ruling Mr Justice McKechnie delivered on 31 July 2008 “on the ground that it was obtained by fraud”. On 4 November 2009 Mr Justice McKechnie “dismiss[ed]”1 that interlocutory application.

10.

At paragraph 1 of the written copy of his ruling of 4 November 2009 Mr Justice McKechnie states that my interlocutory application was “grounded upon” an “affidavit sworn 25th December 2008”. In fact, my grounding affidavit was affirmed on 22 January 2009 and filed at the Central Office of the High Court on 22 January 2009.

1

Paragraph 31 of the written copy of ruling delivered by Mr Justice McKechnie on 4 November 2009.

2

11.

Mr Justice McKechnie, in his ruling of 4 November 2009, refashioned, to suit University College Dublin, his oral ruling of 31 July 2008.

12.

At paragraph 4 of the written copy of the ruling he delivered on 4 November 2009 Mr Justice McKechnie maintained that when he “refused” on 31 July 2008 the “disclosure” of “the documents” in question he “did so on the ground that they contained information which was [sic] personal in nature, and which related to abuse or other sensitive events, experienced or witnessed by the successful applicants”. That is not what he “actually sa[id]”2 on 31 July 2008. He did not say on 31 July 2008 what he now claims he said.

13.

What he “actually sa[id]” in his oral ruling on 31 July 2008 is that “[t]here is abuse information in these documents”. “National law”, he said, gives him “discretion” to refuse my disclosure application and he said that because “[t]here is abuse information in these documents” he “would exercise that discretion in favor of the other applicants’ right to confidentiality” [emphasis added]. He did not, as he claims at paragraph 4 of the written copy of the ruling he delivered on 4 November 2009, “refuse” on 31 July 2008 my application under Order 57A, Rule 6(6) of the Circuit Court Rules. He indicated that he will refuse the application if there is no “entitlement to information” under Community law preventing him from doing so, i.e. if “any entitlement to information…should such be found to exist” does not “affect the operation of national laws relating to confidentiality…” [emphasis added].

14.

Parenthetically, my application is not an application “under O.57A r. 6(1) of the Circuit Court Rules, as Mr Justice McKechnie writes at paragraph 3 of the written copy of the ruling he delivered on 4 November 2009. It is an application under Order 57A, Rule 6(6), of the Circuit Court Rules:

“Upon the application on notice of any party the Judge may order any other party to deliver full and better particulars of any matters stated in the appeal, or to deliver copies of any documents referred to therein”.

15.

In my oral submissions on 18 December 2008 I reminded Mr Justice McKechnie that he had said on 31 July 2008 that there is “abuse information” in the “documents”3.

16.

In my legal submission dated 17 December 2007 I wrote that Mr Justice McKechnie had on 31 July 2008 said that “[t]here is ‘abuse information’ in the application ‘documents’ of the other applicants…”.

2

Coard v. Attorney General [2007] UKPC 7, paragraph 17.

3

See page 12, lines 16 and 17, of the transcript of the hearing on 18 December 2008.

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17.

At paragraph 4 of the affidavit I affirmed on 22 January 2009 I stated:

“ ‘There is abuse information’ in those ‘documents’, Mr Justice McKechnie said in a judgement he delivered on July 31, 2008. He said that under ‘national law’ he has ‘discretion’ to refuse my disclosure application and that if he had only to consider ‘the normal national rules’ governing disclosure he would ‘exercise’ his ‘discretion in favor of the other applicant’s right to confidentiality’, i.e. that he would refuse my disclosure application. This is because, he said, ‘[t]here is abuse information’ in the ‘documents’ ”.

18.

At paragraph 12 of that affidavit I referred to “Mr Justice McKechnie’s finding that there is ‘abuse information’ in the ‘documents’…”:

“Mr Justice McKechnie’s finding that there is ‘abuse information’ in the ‘documents’ is based solely on paragraphs 6 and 7 of the affidavit sworn by Suzanne Quin ‘on behalf of the Defendant’ on February 28, 2007”.

19.

At paragraph 21 of the affidavit I affirmed on 13 February 2009 I repeated:

“ ‘There is abuse information in these documents’, he [i.e. Mr Justice McKechnie] said in the judgement he delivered on July 31, 2008; that is ‘definitively’ why, to quote the ‘SUMMARY OF FACTS’ the Defendant filed at the High Court on February 10, 2009, Mr Justice McKechnie ‘determined’ that under ‘national law’ I am ‘not entitled to the documentation sought’ ”.

20.

In the course of my oral submissions on 17 February 2009 I continually referred to Mr Justice McKechnie’s finding that “[t]here is abuse information in these documents”.

21.

On page 61 of the transcript of the hearing on 17 February 2009 I told Mr Justice McKechnie: 17 18

22.

"There is abuse information in these documents." That was what you said on July 31.

On page 63 of the transcript of the hearing on 17 February 2009 I told Mr Justice McKechnie:

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23.

MR. KELLY: So, "There is abuse information in these documents." That, Judge, is what you said when you

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delivered your judgement on July 31, 2008. Why you said I

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was not entitled to these documents in full under National

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Law was because there is abuse information in them.

Also on page 63 of the transcript of the hearing on 17 February 2009, I told Mr Justice McKechnie:

24.

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MR. KELLY: The interpretation that you gave, I mean you

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certainly interpreted her evidence as meaning that there

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was that abuse information in the applications.

Another instance of me reminding Mr Justice McKechnie of what he had said on 31 July 2008 appears on page 66 of the transcript of the hearing on 17 February 2009:

25.

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MR. KELLY: Judge, I can say, I quote you saying there is

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abuse information in these documents in my affidavits.

In my legal submission dated 16 March 2009 I pointed out, at paragraph 37, that Mr Justice McKechnie “did not disagree” when I “reminded” him on 17 February 2009 of what he had said in his oral ruling on 31 July 2008. Up to 4 November 2009 Mr Justice McKechnie never “disagreed” with my account of what he had said in his oral ruling of 31 July 2008.

26.

There is no credible evidence of any “abuse information” in the “documents” that are the subject of my application under Order 57A, Rule 6(6), of the Circuit Court Rules. Suzanne Quin’s affidavit evidence regarding “abuse information” has been discredited (and, in fact, almost completely recanted). No other evidence of “abuse information” has been adduced. That is the reason why Mr Justice McKechnie used the ruling he delivered on 4 November 2009 to unlawfully – and unethically – alter his oral ruling of 31 July 2008. At paragraph 26 of the written copy of the ruling he delivered on 4 November 2009 Mr Justice McKechnie hypocritically accuses me of “seek[ing] to undermine the principle of finality in respect of Court rulings”. It is a “principle” he does not observe.

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27.

Ms Bolger, counsel for the Defendant, was not in attendance on 31 July 2008 when Mr Justice McKechnie delivered his oral ruling. Ms Bolger’s “devil” was there – as was a solicitor from “John J. McDonald & Co.”. I was present. My mother, Josephine Nolan, was also present.

28.

Mr Justice McKechnie has lied about what he “actually sa[id]” on 31 July 2008.

29.

At paragraph 23 of the written copy of the ruling he delivered on 4 November 2009 Mr Justice McKechnie declared:

“The phrase ‘on behalf of the defendant’ [in Suzanne Quin’s impugned affidavits] is not a declaration of agency, but is in fact a generally accepted form of compliance with the Superior Court Rules; in particular Order 40, rule 11 RSC: ‘There shall be on every affidavit a note showing on whose behalf it is filed, and no affidavit shall be filed or used without such note, unless the Court shall otherwise direct’. Thus the phrase ‘on behalf of’ in an affidavit does not connote agency, but it is merely a statement of on whose behalf the affidavit was filed. This on its own would not be enough to render the deponent an agent of the Defendant”.

30.

At paragraph 1 of the affidavit she swore on 9 February 2009 Suzanne Quin begins:

“I make this Affidavit on behalf of the Defendant…” [emphasis added].

31.

On the fourth page of that affidavit the following “note” appears: “Filed this 10th day of February 2009, by John J. McDonald & Co., Solicitors for the Defendant, 13 Priory Hall, Stillorgan, County Dublin”.

32.

The “note” on the fourth page is the “form of compliance with…Order 40, rule 11 RSC”. The statement in paragraph 1 is “a declaration of agency”.

33.

“John J. McDonald & Co.” filed “on behalf of the Defendant” the affidavit sworn by Suzanne Quin on 9 February 2009.

34.

Suzanne Quin’s affidavit was “ma[de]” by her “on behalf of the Defendant”.

35.

Mr Justice McKechnie quoted “[t]he phrase ‘on behalf of the defendant’ ” but omitted the crucial preceding words in paragraph 1 of Suzanne Quin’s affidavit: affidavit…” [emphasis added].

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“I make this

36.

Suzanne Quin did not “file” the affidavit. Suzanne Quin “ma[de]” the affidavit. It was made “on behalf of the Defendant”.

37.

As was the affidavit she swore on 28 February 2007 (Book of Appeal, p.865). At paragraph 1 of the affidavit sworn by her on 28 February 2007 Suzanne Quin states:

“I make this affidavit on behalf of the Defendant…” [emphasis added].

38.

In that affidavit she identifies herself, in the same paragraph, as “the Head of the School of Applied Social Science at University College Dublin”.

39.

Mr Justice McKechnie admits, at paragraph 24 of the written copy of the ruling he delivered on 4 November 2009, that Suzanne Quin “accepted in cross-examination that she felt she was an ‘agent’ of the Defendant…” but he then says that “such an admission would not be conclusive as to whether in law she was in fact such…”. Suzanne Quin did not “accept…that she felt she was agent of the Defendant” [emphasis added]. Suzanne Quin acknowledged that she was in fact an agent of the Defendant.

40.

I refer the Court to page 17, lines 12-17, of the transcript of the hearing on 17 February 2009: 12 13 14 15 16 17

41.

17 Q. You are here as an agent of the defendant, Professor Quin. You understand that, don't you? A. I do. 18 Q. So when you speak, you speak for the defendant, you understand that? A. I do, yes.

In this regard I also refer the Court to page 42, lines 11-20, of that transcript: 11

46 Q. Same paragraph, Paragraph 4, Professor Quinn: "My view has

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always been and remains that these approximately 50

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application forms should not be provided to the plaintiff

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because of the confidential nature of the personal

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statements contained therein ."

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Is that the real objection? You are speaking as an agent

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17 18 19 20

42.

of the defendant, is that the real objection? A. Absolutely. That is the real objection. 47 Q. Is that the sole objection? A. That is the sole objection.

In the latter exchange Suzanne Quin, “speaking as an agent of the Defendant”, specifies the Defendant’s “real” and “sole objection”.

43.

In my oral submissions on 17 February 2007 I said that Suzanne Quin “is speaking for the Defendant as an agent of the Defendant (page 47, lines 1 and 2). Counsel for the Defendant, Ms Bolger, did not dispute this observation in her oral submissions to the Court.

44.

The Defendant has never denied – or even sought to deny – that Suzanne Quin was an agent of the Defendant.

45.

When I cross-examined Suzanne Quin on 6 May 2008 she said she was “representing” UCD “on the affidavit” (see page 83, lines 14 and 15, of the transcript of the hearing on 6 May 2008.).

46.

I asked Suzanne Quin if she was the person who “made the decisions”. “Yes, I would in consultation, it would be my responsibility as head of school”, she replied (page 52, line 18). I then asked: “You have the final say?” Mr Justice McKechnie intervened: “She is the client for this purpose” (page 52, line 22). This intervention is extremely important. It shows that on 6 May 2008 Mr Justice McKechnie viewed her an agent of the Defendant.

47.

At paragraph 22 of the written copy of the ruling he delivered on 4 November 2009 Mr Justice McKechnie says “it is ultimately unnecessary to rule whether [Suzanne] Quin was in fact an agent of the Defendant in this case”. At paragraph 24 he “reiterate[s] “ he has “made no finding in this regard”. And at paragraph 31: “With regard to the allegations of agency I make no finding…”.

48.

I believe that it was “necessary” for Mr Justice McKechnie to “rule” on whether or not Suzanne Quin “was in fact an agent of the Defendant in this case”. I believe that he did not do so because he did not want her statements – or the alleged perjury – imputed to the Defendant. He was signaling to the solicitors and counsel representing the Defendant that what she has said does not bind them (and that the Defendant can dissociate itself, selectively and at will, from anything she said).

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49.

Mr Justice McKechnie willfully ignores evidence that does not (or may not) suit the Defendant.

50.

At paragraph 22 of the written copy of the ruling he delivered on 4 November 2009 Mr Justice McKechnie insinuates that I have “brought…applications…merely as collateral challenges upon matters on which the Court has already ruled” so as to “frustrate and protract proceedings”. His insinuation is untrue and unjustified.

51.

Mr Justice McKechnie seems to have construed as a personal insult my application of 17 February 2009. At paragraph 26 of the written copy of the ruling he delivered on 4 November 2009 he fumed:

“To ask a judge to overturn his own prior decision, where to do so would be an effective admission by him of a fundamental error either as to evidence or law, is wholly improper.

Such a procedure, apart from being irregular, is most

unhelpful”.

52.

“[G]enerally submissions are limited to one per party, per application”, Mr Justice McKechnie sniffed at paragraph 26 of the written copy of the ruling he delivered on 4 November 2009. I do not believe that that is so. I am not aware of any primary or secondary legislation “limit[ing]” legal submissions to one per party, per application”. Any such “limit[ation]” would – I have no doubt – be unconstitutional.

53.

At paragraph 27 of the written copy of the ruling he delivered on 4 November 2009 Mr Justice McKechnie “draw[s]…attention” to “the Practice Direction of Murray CJ dated 19th December 2008, which states at section 8(a) that: ‘The written submissions should summarize succinctly the arguments of the parties. In the majority of cases submissions significantly less than 25 pages should suffice but such submissions should not in any event exceed 25 pages unless, for exceptional reasons, leave of the Court is obtained for longer submissions. Leave of the Court may be sought, for specified exceptional reasons, ex parte at the Thursday mention list (see paragraph 10 below) or other convenient occasion’ ”. At paragraph 28 of the written copy of his ruling Mr Justice McKechnie calls this “a useful statement of what should be contained in legal submissions”.

54.

Mr Justice McKechnie chose not to “draw…attention” to section 1(c) of that “Practice Direction”:

“Failure to comply with a Practice Direction of the Court may affect the issue of costs”.

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55.

Relevant legal submissions that may not “comply” with that “Practice Direction” cannot, for that reason, be ignored. “[T]he “issue of costs…may” be “affect[ed]” [emphasis added] by non-compliance with a “Practice Direction”. That is the only “[e]ffect” noncompliance can have.

56.

Nor did Mr Justice McKechnie “draw…attention” to section 7(e) of that “Practice Direction”:

“Parties who are not professionally represented are not required to provide written summary submissions but may do so if they wish, by serving and lodging submissions in written form”.

57.

I am “not professionally represented”. I am a lay litigant in person.

58.

As a lay litigant in person I do not believe that “section 8(a)” of the “Practice Direction” from which he quoted is or could possibly be relevant.

59.

There is another reason why “section 8(a)” of the “Practice Direction” cited by Mr Justice McKechnie is not “useful”.

The “Practice Direction” of the Chief Justice dated 19

December 2008 relates to “proceedings before the Supreme Court” (section 1(a)). It does not pertain to proceedings before the High Court.

60.

At paragraph 28 of the written copy of the ruling he delivered on 4 November 2009 Mr Justice McKechnie “comment[s] that it would have been better for the Court to receive one succinct submission, rather than receive the same arguments over the course of several submissions”.

My “piecemeal submissions”, he continues, “fail to assist the

Court in narrowing the legal issues between the parties”.

61.

The “legal issues” must be set out fully. The Court will take no account of “legal issues” that are not explicitly advanced. My legal submissions have been “piecemeal” because I have had to conduct my legal research in a “piecemeal” – and, I freely confess, disorganized – fashion. I must emphasize that I am a lay litigant in person. I do not have access to the law libraries to which the solicitors and counsel representing the Defendant have ready and complete access. I do not have the legal training or expertise possessed by the solicitors and counsel representing the Defendant. My knowledge of the law is developing gradually and clumsily. My submissions have been “piecemeal” because I do not have the resources and support the Defendant has. I do not have a team of highly paid lawyers working for me.

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62.

I have not made “the same arguments over the course of several submissions”. I perceive that I have developed my arguments “over the course of several submissions”.

63.

At paragraph 29 of the written copy of the ruling he delivered on 4 November 2009 Mr Justice McKechnie excuses as “inevitable” the “inaccuracies” and “inconsistencies” in Suzanne Quin’s evidence. “Such inaccuracies” and “inconsistencies”, he states, “in no way amount to fraud or perjury”. He intimates that my interlocutory application of 17 February 2009 was “bound to fail”; with him as the judge hearing it, I agree completely.

64.

Mr Justice McKechnie ignored the overwhelming and unmistakable evidence of Suzanne Quin’s perjury. His “conclu[sion]”, at paragraph 30 of the written copy of the ruling he delivered on 4 November 2009, that “there is no evidence of perjury” is unfounded and incomprehensible.

65.

Mr Justice McKechnie is, I have learned, a graduate of the National University of Ireland – but he has never thought it necessary or judicious to inform me of this. When he graduated University College Dublin was a constituent college of the federative National University of Ireland.

66.

Mr Justice McKechnie frequently loses his temper with me. He has often shouted at me.

67.

When I started bringing a stenographer into the courtroom Mr Justice McKechnie’s behavior toward me changed markedly and immediately.

His contemptuous and

dismissive remarks and rebukes and his attempts to harass, pressurize, and mislead me largely (though not entirely) ceased. (Counsel for the Defendant had argued that I should not be permitted to bring a stenographer to the proceedings.)

68.

Even in the transcripts, however, his antipathy toward me is palpable. Some instances – taken from the transcripts – are cited below. I will not refer to incidents that occurred on days when a stenographer was not present in court because it would be too easy for Mr Justice McKechnie (supported by his confederates, the solicitors and counsel representing the Defendant) to deny – as he will of course – that those incidents happened. I will restrict myself, therefore, to what is recorded in the stenographers’ transcripts.

69.

On 6 May 2008, while Ms Bolger was making oral submissions to the Court, I urgently needed to use the bathroom at one point. I walked toward the courtroom door. It was my intention to go to the toilets located at the end of the corridor and then return; this would have taken no more than three minutes. As I was walking toward the door to leave the courtroom, however, Mr Justice McKechnie interrupted Ms Bolger and shouted angrily:

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MR. JUSTICE McKECHNIE: Mr. Kelly, do you want to leave the

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Court?

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MR. KELLY: I am not leaving the court.

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MR. JUSTICE McKECHNIE: Do you want to leave it? Do you

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understand where you are now, and do you understand the

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process we are going through? I will not have you get up

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and walk around at will, sir?

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MR. KELLY: I was walking towards the door.

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MR. JUSTICE McKECHNIE: You either take a seat and stay

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there, and if you want to leave by all means leave. You

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will not prance around the court from beginning or end.

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What is your decision on it, sir?

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MR. KELLY: Was I prancing?

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MR. JUSTICE McKECHNIE: What is your decision on it?

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MR. KELLY: I was walking towards the door.

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MR. JUSTICE McKECHNIE: I will rise for ten minutes and you

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can make up your mind what you are going to do.

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70.

The above passage is taken from pages 7 and 8 of the transcript of the hearing on 5 May 2008.

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71.

I did not feel I could safely go to the bathroom. I sat in the courtroom, in considerable physical discomfort, until Mr Justice McKechnie was pleased to adjourn the hearing for his “lunch” (page 67, line 23, of the transcript of the hearing on 6 May 2008).

72.

During my cross-examination of Suzanne Quin on 6 May 2008 he interrupted to tell me not to “waste time”. He said that “we” [sic] would not “have” Suzanne Quin “for any other day” (page 42, lines 12-14, of the transcript of the hearing). I knew, of course, that “we” could have had Suzanne Quin “for…[an]other day” if it were necessary.

73.

Mr Justice McKechnie claimed, when Ms Bolger was re-examining Suzanne Quin on 6 May 2008 that he hadn’t “let Mr Bolger interrupt [me] at all during the course” of my cross-examination of Suzanne Quin (page 119, lines 10 and 11, of the transcript). To which I replied with frank astonishment: “Are you joking? She didn’t stop. It seems to me I couldn’t get a sentence out sometimes” (page 119, lines 13-18, of the transcript).

74.

On 6 May 2008 Mr Justice McKechnie remarked that I have “never tried” to have a “meaningful exchange” with the Defendant (page 126, line 3, of the transcript).

75.

76.

He continued (page 126 of the transcript of the hearing on 6 May 2008): 3

MR. JUSTICE McKECHNIE: I get

4

the very strong impression that even if UCD made everything

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they could, you would object it.

On 7 May 2008 Mr Justice McKechnie told me, apoplectically, that he will not “put up with any…sublime submissions” from me (page 15, lines 16 and 17, of the transcript of the hearing on 7 May 2008). I had said: 10

The next thing I want to draw your attention to, you and

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Ms. Bolger quite frequently have discussions about what the

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law is and what the law might mean and [engage in a] little

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brain-storming about the law. I am never involved in these

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but I do have things I would like to say.

15 16

MR. JUSTICE McKECHNIE: Mr. Kelly, I am not going to put up

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with any of that sublime submissions by you. You have been

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afforded every single opportunity at great lengths to say

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not once, twice or three times, but more than that, what

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you wish to say. So, don't for a second, even by

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implication, suggest you are not getting a fair crack here,

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not even for a second, sir. What else do you want to say

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that is of value?

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77.

MR. KELLY: I have got quite a lot to say of value.

When I became upset in court on 7 May 2008 (page 18, lines 12-16 of the transcript) and began crying Mr Justice McKechnie looked at me with utter disgust and paraded, in his movements, his extreme irritation and impatience.

78.

On 18 December 2008 Mr Justice McKechnie violently accused me of “display[ing] the utmost disrespect for our mutual roles”. I refer to pages 13 and 14 of the transcript of the hearing on 18 December 2008:

79.

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MR. JUSTICE MC KECHNIE: Mr. Kelly. Mr. Kelly, the problem

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about this litigation, at least in part and occasion is the

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fact that you know precisely what your function is. You

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know precisely what your role is and what mine is. But

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from time to time it doesn't seem to suit your purpose and

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you display the utmost disrespect for out mutual roles in

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the manner you attempt to address me and in the manner you

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attempt to make submissions.

I emphatically deny that I have ever “display[ed] the utmost disrespect” for Mr Justice McKechnie’s “role”.

80.

On 18 December 2008 Mr Justice McKechnie proscribed “any…submission…to the effect that somehow or other [I] am at a disadvantage because [I am] a lay litigant”. I refer to page 18, lines 5-26 of the transcript of the hearing on 18 December 2008: 5

MR. KELLY: It shows her evidence is unreliable, and that's

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basically what this is all about, because if her evidence

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is unreliable then the conclusion is unreliable because

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8

it's based on her evidence. You do me too much credit,

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sir, when you say that I know all there is to know, I don't

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know anything like -

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MR. JUSTICE MC KECHNIE: Don't you make that submission to

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me for the record or otherwise. I know, and you know that

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your knowledge of legal procedure and substantive law is

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every bit as good as anybody else in this court. So, don't

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for a moment make any presentation for the purpose of the

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record to the effect that somehow or other you are at a

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disadvantage because you're a lay litigant. I just do not

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-

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81.

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MR. KELLY: I am a lay litigant, and I am at a disadvantage

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and I've always been at a disadvantage, a financial

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disadvantage and a disadvantage in expertise too. Because

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the little I do know, I assure you sir, is nowhere near as

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good as you know. And you can't say I know as much as you

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know; I do not.

Also on 18 December 2008, Mr Justice McKechnie falsely contended that I had said something that was “on its face…contempt” of court. “As you well know”, he added. I refer to page 42, lines 3-24, of the transcript: 3

MR. JUSTICE MC KECHNIE: Mr. Kelly, I most certainly cannot

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become an advisor to you in relation to -

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MR. KELLY: I'm asking you for information, sir, on fact.

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There is a difference.

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MR. JUSTICE MC KECHNIE: You have to bring it to the

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attention of the Court on notice; that's it.

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11 12

MR. KELLY: An application -- motion.

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MR. JUSTICE MC KECHNIE: I'm absolutely giving you no

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advice whatever with regard to procedural matters.

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MR. KELLY: Most helpful, sir.

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MR. JUSTICE MC KECHNIE: And Mr. Kelly, on its face, that's

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contempt. On its face that's contempt.

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MR. KELLY: What I've just said?

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82.

MR. JUSTICE MC KECHNIE: As you well know, it is.

On 17 February 2009 Mr Justice McKechnie interrupted my cross-examine of Suzanne Quin in order to accuse me of being “rude” to her (page 35, lines 20 and 21, of the transcript of the hearing on 17 February 2009).

83.

A man named Christopher Martin is the “Judicial Fellow to Mr Justice McKechnie”. In an e-mail to Mr Martin on 14 October 2009 I alluded to the “procrastination and prevarication that have characterized these proceedings since April 2007”. Mr Justice McKechnie’s “procrastination and prevarication …have characterized these proceedings since April 2007”.

84.

On 5 September 2007 I wrote a letter to Mr Justice McKechnie – copies of which were sent to the Defendant and the Notice Party – asking him if he could “provide any indication as to when your decision might be expected on my application of April 23, 2007 for a reference to the European Court of Justice under Article 234(3) EC”. My letter was ignored.

85.

On 7 December 2007 I again wrote to Mr Justice McKechnie – copying the letter to the Defendant and the Notice Party – “to…request some indication from you as to when your decision might be expected on my application of April 23, 2007, for a reference to the

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European Court of Justice under Article 234(3) EC”. “My previous letter”, I pointed out, “was ignored”. My letter dated 7 December 2007 was also “ignored”.

86.

On 23 August 2009 I wrote a letter to Mr Justice McKechnie – which I copied to the Defendant and the Notice Party – in which I asked:

“When will you be delivering your judgement on my application to set aside, on the ground that it was obtained by fraud, the judgement you delivered on July 31, 2008?”

87.

This letter, too, was ignored – as were other letters I have written to him since April 2007 about his dilatoriness.

88.

On 25 September 2009 I wrote another letter to Mr Justice McKechnie – the letter was, of course, copied to the Defendant and the Notice Party – asking him “to provide the parties with a written indication as to when you will be in a position to deliver your judgement on my interlocutory application of 17 February 2009 to set aside the judgement you delivered on 31 July 2008…”. I told him:

“If I do not hear from you within two weeks about arranging a date for the delivery of your judgement I will write to the President of the High Court and request him to intervene ‘given the delay in [the] proceedings’ (see Doran v. Ireland (2006) 42 EHRR 13)”.

89.

I eventually received, but not until 14 October 2009, by e-mail, a letter from Mr Justice McKechnie’s “Judicial Fellow” fallaciously depicting me as the cause of the delay since February 2009. What of the delay since April 2007? “Justice delayed is justice denied”, William Gladstone famously and sagaciously insisted in a speech in the UK House of Commons on 16 March 1868.

90.

Mr Justice McKechnie has, I believe, been deliberately prolonging these proceedings in the hope that I lose the will to continue or that I am for some other reason unable to continue. This case has been listed 22 (twenty two) times since 23 April 2007. I have had to travel to the Four Courts 22 (twenty two) times. And Mr Justice McKechnie has still not made the preliminary reference to the European Court of Justice! He has decided to add to my list of questions a question specifically designed to incapacitate any “entitlement to information” under Community law ”should such be found to exist”.

91.

Mr Justice McKechnie has allowed Marguerite Bogler, counsel for the Defendant, to engage in an odious and sleazy character assassination of me.

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92.

Mr Justice McKechnie has deliberately, repeatedly, and unjustifiably interfered in the presentation of my case.

93.

During my cross-examination of Suzanne Quin on 17 February 2009, for instance, Mr Justice McKechnie interjected to stop Suzanne Quin from having to reveal “which” one of the “example[s]” listed in the affidavit she swore on 28 February 2007 (her “examples” were “sexual abuse, suicide, incest, substance abuse and traumatic family breakdown”) is in “the surviving applications”. I quote from pages 41 and 42 of the transcript of the hearing on 17 February 2009; I asked Suzanne Quin: 12

How many of the examples from your original

13

affidavit are in those surviving applications?

14 15 16 17 18 19 20 21

A. I have already answered that question. 43 Q. You said one, possibly two. Is that the best answer you can give? A. That's my best answer. 44 Q. Right. And which example is it? A. I am not -- I don't feel that I am free to answer that question, because this is the whole issue about -45 Q. You must answer.

21 23

MR. JUSTICE McKECHNIE: No, no. I don't think there is any

24

basis. We have five examples there and, to the best of

25

this witness's recollection, one or two is from 2002 and

26

that's sufficient. She does not have to specify it more

27

accurately than that.

28 29

MR. KELLY: I respectfully take exception to that. She

30

must. She can't say that one or two out of six, you know,

1

is there and leave it at that. That's not good enough,

2

because it's not definitive. And she talks about and makes

3

great play on not being definitive and we are allowing her

4

then not to be definitive. She must be definitive. What

5

is it that's in there that's causing the problem?

18

6 7

94.

MR. JUSTICE McKECHNIE: I disagree with what you say.

As I said at paragraph 26 of my legal submission dated 16 March 2009:

“Professor Quin should have been instructed to answer the question. As she had said that one of her ‘examples’ was in the ‘remaining applications’ she should not have been permitted to refuse to state which of her ‘examples’ was in the ‘remaining applications’…”.

95.

The instances cited in this affidavit are not exhaustive.

96.

I request Mr Justice McKechnie’s recusal from these proceedings.

_______________________ Patrick Kelly

AFFIRMED by the said Patrick Kelly This 11th day of November 2009 At

Before me a Practicing Solicitor/ Commissioner for Oaths and I know the deponent

_____________________________ PRACTICING SOLICITOR/ COMMISSIONER FOR OATHS

Filed by and on behalf of the Plaintiff, Patrick Kelly, this 12th day of November 2009.

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High Court Record Number 2007 52 CA

THE HIGH COURT

BETWEEN

PATRICK KELLY PLAINTIFF

AND

NATIONAL UNIVERSITY OF IRELAND, DUBLIN AKA UNIVERSITY COLLEGE DUBLIN (UCD) DEFENDANT

AND

THE DIRECTOR OF THE EQUALITY TRIBUNAL NOTICE PARTY

AFFIDAVIT OF PATRICK KELLY

PATRICK KELLY 11 Deansrath Avenue Clondalkin Dublin 22

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