Legal Submission Of Patrick Kelly Dated 12 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

_____________________________________________

LEGAL SUBMISSION OF THE PLAINTIFF 12 November 2009 _____________________________________________

PATRICK KELLY 11 Deansrath Avenue Clondalkin Dublin 22

1.

This legal submission relates to my application for Mr Justice McKechnie’s recusal from these proceedings.

AUTOMATIC DISQUALIFICATION

2.

The English Court of Appeal, in Morrison v. AWG Group [2006] EWCA Civ 6, said, at paragraph 6:

“…judicial impartiality...is the fundamental principle of justice, both at common law and under Article 6 of the European Convention for the Protection of Human Rights. If, on an assessment of all the relevant circumstances, the conclusion is that the principle either has been, or will be, breached, the judge is automatically disqualified from hearing the case”.

3.

I submit that judicial impartiality is additionally, in the Republic of Ireland, “fundamental” to the concept of “constitutional justice”1.

In this case, however, the “principle” of judicial

impartiality “has been…breached”.

4.

At paragraph 29 of its judgement the Court of Appeal said that any “concerns” a judge might have “about the prejudicial effect that his withdrawal from the trial would have on the parties and on the administration of justice…are totally irrelevant to the crucial question of the real possibility of bias and automatic disqualification of the judge”:

“In terms of time, cost and listing it might well be more efficient and convenient to proceed with the trial, but efficiency and convenience are not the determinative legal values: the paramount concern of the legal system is to administer justice, which must be, and must be seen by the litigants and fair-minded members of the public to be, fair and impartial. Anything less is not worth having”.

THE CONCEPT OF BIAS

5.

In his speech in the House of Lords in Davidson v. Scottish Ministers [2004] UKHL 34 Lord Hope discussed, at paragraph 47, the “concept” of bias:

“The word ‘bias’ is used as a convenient shorthand. But it would be a mistake to approach it in this context as if its only meaning were pejorative. The essence of it is captured in the Convention concept of impartiality. An interest in the outcome of the case or an indication of prejudice against a party to the case or his

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McDonald v. Bord na gCon [1965] IR 217.

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associates will, of course, be a ground for concluding that there was a real possibility that the tribunal or one of its members was biased: e.g. Sellar v. Highland Railway Co. 1919 SC (HL) 19; Bradford v. McLeod 1986 SLT 244. But the concept is wider than that. It includes an inclination or pre-disposition to decide the issue only one way, whatever the strength of the contrary argument. A doubt as to whether this is the case is enough, so long as it can be justified objectively”.

6.

Mr Justice McKechnie has “indicat[ed]…an inclination or predisposition” to dismiss my appeal, “whatever the strength of the contrary argument”.

7.

In Dublin Wellwoman Centre Ltd v. Ireland [1995] ILRM 408 the Supreme Court reflected on “the concept of bias”. At page 418 the Court said:

“The concept of bias developed through cases considering material interest. It also arose in cases on pre-judgment, prior involvement, and personal attitudes and beliefs. There are two fundamental streams of thought within this wider concept. First, that there should be no actual bias, i.e. a subjective test. And secondly, that there should be no reasonable apprehension that there is bias, i.e. the objective test. Both of these streams of thought are equally important in the broad river of justice”.

ACTUAL BIAS

8.

As to “actual bias”, Lord Bingham, in his speech in the House of Lords in R v. Abdroikov [2007] UKHL 37, warned, at paragraph 14:

“...justice is not done if the objective judgement of a judicial decision-maker (whether judge or juror) is shown to be vitiated by actual partiality or prejudice towards any of the parties”.

9.

Mr Justice McKechnie’s “objective judgement” is, I submit, “vitiated by actual partiality” and “prejudice”.

10.

“Any judge…who allows any judicial decision to be influenced by partiality or prejudice deprives the litigant of the…right” to a fair hearing “and violates one of the most fundamental principles underlying the administration of justice”, the English Court of Appeal declared in Locabail (UK) Ltd v. Bayfield Properties Ltd [1999] EWCA Civ 3004, at paragraph 3:

“Where in any particular case the existence of such partiality or prejudice is actually shown, the litigant has irresistible grounds for objecting to the trial of the case by that judge (if the objection is made before the hearing) or for applying to

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set aside any judgment given. Such objections and applications based on what, in the case law, is called ‘actual bias’ are very rare, partly (as we trust) because the existence of actual bias is very rare, but partly for other reasons also. The proof of actual bias is very difficult, because the law does not countenance the questioning of a judge about extraneous influences affecting his mind; and the policy of the common law is to protect litigants who can discharge the lesser burden of showing a real danger of bias without requiring them to show that such bias actually exists” [emphasis added].

11.

It is my view that Mr Justice McKechnie is inspired by “actual bias”. The law does not, however, “require” that I prove the existence of actual bias”; it “require[s]” only that I “discharge the lesser burden of showing a real danger of bias”. I have done so in the affidavit grounding my application for Mr Justice McKechnie’s recusal from these proceedings.

APPARENT BIAS

12.

In El Farargy v. El Farargy [2007] EWCA Civ 1149, the English Court of Appeal confirmed, at paragraph 23:

“There is no dispute about the law. In Lord Hope’s words in paragraph 103 in Porter v. McGill [2001] UKHL 67; [2002] AC 357: ‘the question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased’ ”.

13.

Lord Bingham, in his speech in the House of Lords in R v. Abdroikov [2007] UKHL 37, said, at paragraph 15:

“The characteristics of the fair-minded and informed observer are now well understood: he must adopt a balanced approach and will be taken to be a reasonable member of the public, neither unduly complacent or naïve nor unduly cynical or suspicious: see Lawal v. Northern Spirit Ltd [2003] UKHL 35; [2003] ICR 856, paragraph 14; Johnson v. Johnson (2000) 201 CLR 488, 509, paragraph 53”.

14.

I believe that a “fair-minded and informed observer” – “a reasonable member of the public, neither unduly complacent or naïve nor unduly cynical or suspicious”, and adopting “a balanced approach” – “having considered the facts, would conclude” that there is “a real possibility” that Mr Justice McKechnie is “biased”.

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OBJECTIVE BIAS

15.

The Irish Courts use the phrase “objective bias”. In Kenny v. Trinity College [2007] IESC 42 the Supreme Court restated “[t]he test for deciding whether objective bias exists”:

“The test for deciding whether objective bias exists in the case of any adjudication has been repeated in slightly different terms in many cases over many years. Some of the best-known cases are: State (Hegarty) v. Winters [1956] IR 320; Dublin Wellwoman Centre Ltd and others v. Ireland and others [1995] ILRM 408; O’Neill v. Beaumont Hospital [1990] ILRM 419; Orange Communications Ltd v. Director of Telecommunications Regulation and another [2000] 4 IR 159; Spin Communications Ltd v. Independent Radio and Television Commission [2001] 4 IR 411; Joyce v. Minister for Health and Children and others [2004] 4 IR 293; Landers v. Director of Public Prosecutions [2004] 2 IR 363; Bula Ltd. v. Tara Mines Limited and others [2000] 4 IR 412. Denham J described the test authoritatively in her judgment in Bula Ltd. v. Tara Mines Limited and others [2000] 4 IR 412. At page 441, she is reported as saying: ‘…it is well established that the test to be applied is objective, it is whether a reasonable person in the circumstances would have a reasonable apprehension that the applicants would not have a fair hearing from an impartial judge on the issues. The test does not invoke the apprehension of the judge or judges. Nor does it invoke the apprehension of any party. It is an objective test – it invokes the apprehension of the reasonable person’. The hypothetical reasonable person is an independent observer, who is not oversensitive, and who has knowledge of the facts. He would know both those which tended in favor and against the possible apprehension of a risk of bias”.

16.

I submit that “a reasonable person in the circumstances would have a reasonable apprehension” that I have not been receiving “a fair hearing from an impartial judge on the issues”.

IMPLICATIONS OF PLAINTIFF’S STATUS AS A LAY LITIGANT IN PERSON

17.

I am a lay litigant in person. The Defendant is a large corporation and is represented in these proceedings by solicitors and counsel.

18.

In McMullen v. Farrell [2004] IESC 6 the Supreme Court emphasized:

“…the court will always allow every possible indulgence to a lay litigant that can be afforded without injustice to the other party…” [emphasis added].

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19.

In Blehein v. St. John of God Hospital [2002] IESC 43 the Supreme Court referred to “the normal assistance given by the Court to a lay litigant…” [emphasis added]. I have never received any “assistance” from Mr Justice McKechnie.

On the other hand, he has, with

uncommon industry and solicitousness, attended to the requirements of the Defendant and the solicitors and counsel representing the Defendant.

20.

In Madden v. Anglo Irish Bank Corporation plc [2004] IESC 108 the Supreme Court said:

“As the appellant is a lay litigant the Court gave him lee-way and did not enforce rules of procedure and pleadings” [emphasis added].

21.

The Supreme Court repeated:

“As the appellant is a lay litigant the court granted him a degree of lee-way to argue his motions”.

22.

Mr Justice McKechnie has never given me this “lee-way”.

23.

In S. (otherwise A.B.) v. R.B. [2001] IESC 106 the Supreme Court said:

“The trial of cases involving lay litigants…requires patience and understanding on the part of trial judges. They have to ensure, as best they can, that justice is not put at risk by the absence of expert legal representation on one side of the case”.

24.

Mr Justice McKechnie has never shown me “patience and understanding”.

He has done

nothing to “ensure, as best [he] can, that justice is not put at risk by the absence of expert legal representation on the one side of the case”.

25.

In Re O (Children): Re W-R (A Child): Re W (Children) [2005] EWCA Civ 759 the English Court of Appeal said, at paragraph 54:

“…two obvious points must be made. The first is that litigants in person are as entitled to a fair hearing as any other litigant. The second is that they are as entitled as everybody else to be treated with courtesy. There is never any excuse for judicial discourtesy”.

26.

The Court of Appeal then said, at paragraph 55:

“Our joint experience, both at first instance and in this court, is that we have only rarely found litigants in person to be discourteous.

We have, of course,

experienced anger and abuse by litigants in person (notably at the conclusion of judgment), but more commonly litigants in person are nervous, anxious or upset. Sometimes, as a consequence, they are less coherent and less self-controlled than

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they would be in other circumstances. The corollary to this, in our view, is that any judge hearing a litigant in person is under a particular obligation to remain courteous and to ensure that the litigant in person has a full and fair hearing”.

27.

Mr Justice McKechnie has not lived up to his “obligation to remain courteous and to ensure” that I have “a full and fair hearing”.

MR JUSTICE McKECHNIE’S FAILURE TO CREATE A WRITTEN RECORD

28.

“It is possible to imagine circumstances in which failure to create a written record of some parts at least of the proceedings may infringe the general right to a fair trial”, the Privy Council said in Coard v. Attorney General [2007] UKPC 7, at paragraph 18.

29.

I submit that Mr Justice McKechnie’s “failure to create a written record” of the “oral judgement” he delivered on 31 July 2008 has infringed my right to a fair hearing.

30.

“The papers that a judge uses for an oral judgement…may or may not coincide with what he actually says”, the Privy Council recognized, at paragraph 17. I took notes of what Mr Justice McKechnie “actually sa[id]” on 31 July 2008. Ms Josephine Nolan also took notes of what Mr Justice McKechnie “actually sa[id]” on 31 July 2008. What he “actually sa[id]” is not what he now claims to have said.

SUZANNE QUIN AS AN AGENT OF THE DEFENDANT

31.

Mr Justice McKechnie, in the written copy of the ruling he delivered on 4 November 2009 devotes an entire section of his ruling (paragraphs 22, 23, 24, and 25) to refuting my position that Suzanne Quin is an agent of the Defendant – but he then stresses – three times – that he “make[s] no finding…[w]ith regard to the allegations [sic] of agency”.

32.

In Kett v. Shannon [1987] ILRM 364 the “question” the Supreme Court had to consider was whether or not “the vendor had given authority to mechanic to lend the Mini to the purchaser”, i.e. whether or not “the mechanic was acting as agent for the vendor”.

33.

“In the law of agency a distinction is drawn between actual (or real) authority and ostensible (or apparent) authority”, the Supreme Court explained. The Supreme Court quoted with approval from the judgement of Goff LJ in Armagas Ltd. v. Mundogas SA [1985] 3 All ER 795

“…ostensible authority is created by a representation by the principal to a third party that the agent has the relevant authority, and that the representation, when acted on by the third party, operates as an estoppel, precluding the principal from asserting that he is not bound.

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The representation which creates ostensible

authority may take a variety of forms, but the most common is a representation by conduct, by permitting the agent to act in some way in the conduct of the principal’s business with other persons, and thereby representing that the agent has the authority which an agent so acting in the conduct of his principal’s business usually has”.

34.

The Defendant has “permitted” Suzanne Quin “to act in some way in the conduct of the principal’s business with other persons”; the Defendant has thereby represented that Suzanne Quin “has the authority which an agent so acting in the conduct of [her] principal’s business usually has”. I “acted on” that “representation”. (So, too, did Mr Justice McKechnie – until his volte-face on 4 November 2009.)

35.

Suzanne Quin is an agent of the Defendant.

STATED MISBEHAVIOR

36.

On 4 November 2009 Mr Justice McKechnie materially and dishonestly changed, to suit University College Dublin, his oral ruling of 31 July 2008. Mr Justice McKechnie has acted improperly and unethically.

37.

As the Supreme Court acknowledged in Curtin v. Dail Éireann [2006] IESC 14:

“A necessary corollary of judicial independence is that the judges themselves behave in conformity with the highest standards of behavior both personally and professionally”.

38.

Mr Justice McKechnie has not “behave[d] in conformity with” those “standards”.

CONCLUSION

39.

I submit that Mr Justice McKechnie’s recusal from these proceedings is legally justified.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

Patrick Kelly 12 November 2009

Filed by and on behalf of the Plaintiff, Patrick Kelly.

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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

LEGAL SUBMISSION OF THE PLAINTIFF 12 November 2009

PATRICK KELLY 11 Deansrath Avenue Clondalkin Dublin 22

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