Legal submission of Patrick Kelly dated 12 November 2009

8/14/2019 Legal submission of Patrick Kelly dated 12 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)

DEFENDANTAND

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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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 isactually 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 concludethat 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 – itinvokes the apprehension of the reasonable person’.

The hypothetical reasonable person is an independent observer, who is not over-

sensitive, 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 canbe 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, whenacted on by the third party, operates as an estoppel, precluding the principal from

asserting that he is not bound. The representation which creates ostensible



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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 themselvesbehave 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.



Documents

Legal submission of Patrick Kelly dated 12 November 2009