As a law student in University College Dublin 2000-2003 one of my fellow students had what at the time I could not understand a keen interest in who the Judge was. I now understand this interest. Behind the mantra of the “facts and the law” the personality/inherent human biases of the Judge does percolate into their reasoning and thinking and decision making.

There will be some Judges you cannot help but admire and respect and the now retired Chief Justice of Ireland Frank Clarke ( Clarke C.J. ) is one of them for his intellect, fairness, clarity, incisiveness and pragmatism/common sense.

One of his often quoted passage in  Connelly v. An Bord Pleanála [2018] IESC 31 in relation to the need for administrative bodies to give adequate reasons is:-

“5.4     In my view it is of the utmost importance, however, to make clear that the requirement to give reasons is not intended to, and cannot be met by, a form of box ticking.  One of the matters which administrative law requires of any decision maker is that all relevant factors are taken into account and all irrelevant factors are excluded from the consideration.  It is useful, therefore, for the decision to clearly identify the factors taken into account so that an assessment can be made, if necessary, by a court in which the decision is challenged, as to whether those requirements were met.  But it will rarely be sufficient simply to indicate the factors taken into account and assert that, as a result of those factors, the decision goes one way or the other.  That does not enlighten any interested party as to why the decision went the way it did.  It may be appropriate, and perhaps even necessary, that the decision make clear that the appropriate factors were taken into account, but it will rarely be the case that a statement to that effect will be sufficient to demonstrate the reasoning behind the conclusion to the degree necessary to meet the obligation to give reasons.

…

6.15     Therefore, it seems to me that it is possible to identify two separate but closely related requirements regarding the adequacy of any reasons given by a decision maker.  First, any person affected by a decision is at least entitled to know in general terms why the decision was made.  This requirement derives from the obligation to be fair to individuals affected by binding decisions and also contributes to transparency.  Second, a person is entitled to have enough information to consider whether they can or should seek to avail of any appeal or to bring judicial review of a decision.  Closely related to this latter requirement, it also appears from the case law that the reasons provided must be such as to allow a court hearing an appeal from or reviewing a decision to actually engage properly in such an appeal or review.”

“84.  The Government submitted that the hearing of cases by multiple judges is normal in the Irish legal system where interlocutory applications are heard by the judge in charge of a particular list, whereby the main proceedings may be heard by a different judge . It stated that this procedure did not contribute to the delay and pointed out that judges in charge of particular lists are accustomed to dealing with the various forms of interlocutory motions. ” ref: KEANEY v. IRELAND – 72060/17 (Judgment : Right to a fair trial : Fifth Section) [2020] ECHR 292 (30 April 2020)

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“293.          In my ruling, I stressed that the issue of fairness  could not be considered by reference to the position of one side alone. The position of both sides must be taken into account. ” ref  Nolan & Ors v Dildar Ltd & Ors (Approved) [2024] IEHC 4 (10 January 2024) McDonald J.

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Connelly v DPP [1964] AC 1254, Lord Devlin noted that the courts have:

‘an inescapable duty to secure fair treatment for those who come or are brought before them’.

KYPRIANOU v. CYPRUS – 73797/01 [2005] ECHR 873 (15 December 2005)

15/12/2005 “The fairness of the judges is the quintessence of the administration of justice. “

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O’Connor v Wexford County Council (Approved) [2021] IECA 239 (30 September 2021)

“24. The trial judge’s reference to Byrne v Ardenheath is, I think, somewhat problematic in a number of respects. It was not referred to by either party in oral and written submissions as a relevant authority. That of itself does not mean that a court ought not be entitled to refer to authorities that might not necessarily be cited in argument but nonetheless come to the attention of the court in carrying out research for the purposes of a judgment.
Sometimes a court may refer to a case or cases that may illustrate a particular point being made in the course of a judgment but may not necessarily be decisive to the outcome.

25. In such cases, it is not usually necessary to seek further assistance from the parties before judgment is delivered. However, where a court intends placing primary reliance for its decision on a judgment that has been neither cited nor the subject of argument by the parties, in general the proper approach is to invite the parties to address the court in
relation to that authority before a final view is reached.

26, If that procedure were adopted in this case, it is perfectly possible that the trial judge might have been swayed by arguments as to its relevance or non-relevance but unfortunately, that opportunity was not afforded the parties and, in particular, the plaintiff. In my view, Byrne v Ardenheath is of little, if any, assistance in the present case. It bears a passing
factual resemblance to the present case in that it involved a person slipping down a steep grassy slope instead of pursuing an alternative route. There, however, the similarity ends.”

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Access to Justice – fact or fiction?

Ms Justice Butler is a highly regarded Judge as was retired High Court Judge Deirdre Murphy who went on the record about certain solicitor firms hiring self styled “supermodel” Counsel so they can seek to persuade the relevant powers/paying parties their own instruction fee so by corollary “deserves” to be on the “supermodel” scale.

(ref ” supermodels wouldn’t get out of bed for less than $10,000 a day (as Linda Evangelista said) – https://www.independent.ie/style/fashion/naomis-10-day-fast-before-catwalk-return/29636336.html” )

Lay litigants use “dense, repetitive and prolix pleading”, along with multiple applications and appeals, Ms Justice Butler was quoted as telling the Sunday Business Post.

The causes of such actions were “rarely clearly identified or properly pleaded”, and the time it took to deal with many of their applications was often “completely disproportionate” to their importance.https://www.lawsociety.ie/gazette/top-stories/2021/12-december/Lay-litigants-can-be-problematic-says-Law-Society

It would be myopic to think this style of pleading confined to lay litigants as the very rich can also show a determination not to leave any “procedural stone unturned” motivated by oppression, unwillingness to lose, greed or just because they can in a legal justice system with poor case management.

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Hogan J in AIB v Tracey [2013] IEHC 242; [2013] 3 IR 398 (at p. 404 – 405):

“These allegations were ventilated in civil proceedings in open court and, as I have already found, the affidavits were effectively openly read into the record of the court. Given that these proceedings were in open court pursuant to the requirements of Article 34.1 of the Constitution, it follows that any cloak of confidentiality or protection from non-disclosure vanished at that point. In this respect, therefore, the present case is a very different one from Breslin v. McKenna [2008] IESC 43; [2009] 1 IR 298.

[22] The open administration of justice is, of course, a vital SAFEGUARD in any free and DEMOCRATIC society. It ensures that the judicial branch is subjected to scrutiny and examination and helps to promote confidence in the fair and even handed administration of justice. Any system of secret court hearings could pave the way for judicial ARROGANCE, overbearing judicial conduct and ABUSE.

[23] In these circumstances the public are entitled to have access to documents which were accordingly opened without restriction in open court. This is simply part and parcel of the open administration of justice which the Constitution, subject to exceptions, enjoins. Entirely different considerations would naturally arise in respect of material which was not opened in open court or which was protected by the in camera rules or by reporting restrictions imposed, for example, pursuant to s. 27 of the Civil Law (Miscellaneous Provisions) Act 2008.”

* emphasis added

26/05/2020

“Judges do not enter into correspondences regarding matters before the Court. I consider correspondence with a Judge’s Judicial Assistant as correspondence with their Judge and should not happen. Any correspondence relating to matters before the Court should properly be addressed to the Registrar “

Pat Treacy on behalf of the Office of the CEO