THE HIGH COURT

 

[2025] IEHC 98

Record No. 2019 131 CA

 

BETWEEN

 

PEPPER FINANCE CORPORATION [IRELAND] DESIGNATED ACTIVITY COMPANY

 

AND

 

RICHARD CONWAY AND ROSE (OTHERWISE) ROSALINE CONWAY

 

JUDGMENT of Ms. Justice Siobhán Phelan, the 20^th day of February, 2025.

 

INTRODUCTION

 

1.                 This matter comes before me on foot of a series of related motions.  Only the first two motions proceeded to hearing as my decisions on these two applications were understood to be potentially determinative of all issues raised. 

 

2.                 The first motion in time is the application of the Defendants pursuant to Order 124 of the Rules of the Superior Courts, 1986 (as amended) to set aside the Order for Possession made by a judge of the High Court following the delivery of judgment on a Circuit Court appeal in January, 2020 - now five years ago. 

 

3.                 By reason of the intervening purported transfer of the Plaintiff's interest in the legal charge on foot of which the Order for Possession was granted in the intervening period, a related application is made on behalf of Mars Capital Finance Ireland DAC (hereinafter "Mars") to be substituted in these proceedings as Plaintiff for the purpose of being heard as legitimus contradictor on the Defendants' set aside application. 

 

4.                 A preliminary issue arises in relation to the right of audience of Mars as legitimus contradictor in respect of the Defendants' various applications.  The issues I must determine on the Defendants' set aside application is, firstly, whether I have jurisdiction to entertain an application to set aside a final judgment and order of the High Court made on the 31^st of January, 2020 (in respect of which leave to appeal to the Supreme Court was refused by determination of that Court) in favour of the Plaintiff and secondly, if I have jurisdiction, whether I ought properly to exercise it in all the circumstances arising in these proceedings. 

 

5.                 The Defendants have represented themselves at all material times.  The first named Defendant is an accountant by profession.

 

BACKGROUND

 

6.                 It is common case that the Defendants borrowed money from GE Capital Woodchester Home Loans Limited on foot of a loan agreement in 2007.  They continued making mortgage repayments up to the year 2015, when they ceased making repayments.  The Defendants have not denied liabilities under the said loan agreement and I do not understand them to have disputed that they defaulted on payments on foot of the loan agreement entered into.  Rather, they dispute any liability to the Plaintiff or Mars as successor in title to the Plaintiff.

 

7.                 In reliance of a transfer of the charge to the Plaintiff, a Civil Bill issued in October, 2015, in which the Plaintiff sought an order for possession of property described in the schedule thereto as being: - "All that and those the premises known as 33 Highfield Downs, Swords, Co. Dublin, more particularly described in Folio 74990F, Co. Dublin" (hereinafter "the Property").

 

8.                 An application for a possession order was duly heard by the Circuit Court on the 24^th of November, 2017, 6^th of July, 2018, and 9^th of July, 2018, on foot of a motion for summary judgment. In the ordinary way on an application for summary judgment, the question for the judge to decide in the Circuit Court was whether the Defendants could show a bona fide defence.

 

9.                 The Defendants raised many points before the Circuit Court.  These included a contention that the Plaintiff was not entitled to seek possession as it was not the lawful successor in title to the original mortgagees. Other contentions included, inter alia, the bona fides and veracity of the Plaintiff's deponents on affidavit.  The Defendants' arguments were all to the effect that the Plaintiff was not entitled to seek possession of the Property.

 

10.             These various contentions were set out in the detailed written judgment of the Circuit Court delivered on the 20^th of March, 2019.  The Circuit Court held, following very extensive consideration, that the Plaintiff had legal standing to bring the application for summary possession.  Following a thorough review of the Defendants' submissions and having considered authorities such as Pepper Finance v. Hanlon (Unreported, High Court, Ní Raifeartaigh J, 11^th of January, 2018) and Pepper Finance v. Jenkins [2018] IEHC 485 , the Circuit Court found that no bona fide defence had been disclosed and that the Plaintiff was entitled to an order for possession of the Property, refusing the reliefs sought by the Defendants for reasons carefully elaborated upon in its written ruling which ran to some 36 Pages.  

 

11.             I note that in arriving at his decision, the Circuit Court Judge accepted many of the factual assertions advanced by the Defendants for the purposes of determining whether the basis for a bona fide defence had been disclosed before determining that the existence of incorrect or erroneous statements (assuming the existence of errors to be established) in statutory declaration or a mortgage deed sale, as contended for by the Defendants, did not of themselves serve to provide a credible defence.

 

12.             On any reading of his decision, the Circuit Court judge was very fair to the Defendants.  He applied the benefit of any doubt in favour of the assertions made by the Defendants before determining that even if these assertions were correct, they did not avail the Defendants in defending the application for an order for possession, principally because they did not have the legal significance contended for by the Defendants. 

 

13.             It was further observed by the Learned Circuit Court Judge, however, that the deception alleged by the Defendants, even if established, did not alter the legal position of the Defendants.  He noted that while the matters alleged, if proven, could be very serious matters, he could not see how they would have any impact on the rights of the Plaintiff against the Defendants (at para. 99 of the Circuit Court judgment).  He concluded that the low threshold set for a referral of a matter to plenary hearing had not been met (at para. 100 of the Circuit Court judgment) before proceeding to make an order for possession subject to a stay of nine months, or in the event of an appeal being lodged, the stay continuing until the determination of the appeal (at paras. 103 and 104 of the Circuit Court Judgment).

 

14.             The Defendants appealed against the Order for Possession. The matter came before the High Court in December, 2019, on appeal.  The judge assigned to hear the case was newly appointed and had been a judge for a matter of weeks having previously practised as a solicitor in a large law firm.  Having been heard over three separate days in the Circuit Court, the case was argued de novo, over the course of a further three days, in the High Court.  For reasons more fully set out in a written judgment delivered on the 31^st of January, 2020 (neutral citation [2020] IEHC 35), the appeal was dismissed with a second finding, this time from the High Court, that the Plaintiff was entitled to an order for possession. 

 

15.             While a range of matters were ventilated at some length by the Defendants, it is apparent from the carefully reasoned decisions delivered that central to the case advanced in both the Circuit and High Court and ultimately rejected by both courts, is their core contention that GE Capital Woodchester Home Loans Limited, as a wholly owned legal entity in the GE Group company Registration No. 34927, sold its Mortgage Portfolio and Related Security on the 28^th of September, 2012, to Windmill Funding Limited, Company Registration No. 514093,  thus divesting itself of all rights and obligations regarding the mortgage portfolio and related security.  The Defendants contended, in consequence, that the name change of legal entity 34927 from GE Capital Woodchester Home Loans Limited to Pepper Finance Corporation (Ireland) Limited (subsequently DAC) does not in any way change or affect the fact that GE Capital Woodchester Home Loans Limited sold its mortgage portfolio and related security to Windmill Funding Limited before legal entity 34927 was purchased by Pepper Netherlands Holding Coöperatie UA and became a wholly owned company in the Pepper Group. 

 

16.             On the Defendants' case, the legal entity 34927, when purchased by Pepper Netherlands Holding Coöperatie UA company registration number 55309763, "did not and could not have as an asset a GE Mortgage Portfolio and Related Security or any rights or obligations regarding such a Mortgage Portfolio and Related Security".  Any chain of title deriving from the said "Pepper" interest in the charge over the Defendants' Property was ineffective to vest a right to enforce as against the Defendants' Property.

 

17.             This claim was addressed at some length in the written judgments delivered by both the Circuit and High Courts.  Specifically, from paras. 35 to 46, the High Court judgment addresses the "forensic financial report" prepared by the Defendants into "The Windmill Transaction" and the Defendants' claims flowing therefrom.  In its judgment, the High Court noted that the Defendants' assertions in relation to legal ownership of the charge were made in the face of entries on Land Registry, County Dublin which confirmed that the Plaintiff was and remained the owner of the charge registered in Part 3 of Folio 74990F, Co. Dublin.  

 

18.             It was further noted in the judgment of the High Court that the Court had before it affidavit evidence to the effect that the Plaintiff did not divest itself of all rights and obligations regarding the relevant mortgage portfolio and related security, including the Defendants' mortgage, when it entered into the Mortgage Sale Deed (hereinafter "MSD") on the 28^th of September, 2012. Thirdly, it was noted that the contents of the MSD itself, in its terms, evidenced that the Plaintiff was and remained the legal owner of the mortgage portfolio in question, pending a future transfer of the legal interest.

 

19.             The Defendants' concerns in relation to the Windmill transaction are summarised by the Learned High Court Judge in terms which confirm that the same case is advanced on these applications and has in all material respects already been considered and determined.  Having summarised the Defendants' contentions, the Learned High Court Judge was caused to note:

 

"the Defendants are genuinely convinced that the "true facts" are being hidden from the court, including that the MSD which gave effect to a securitisation transaction in 2012 was a "sham", that the Plaintiff in these proceedings does not have any title to the Defendant's mortgage, and that the Defendants were entitled to deny the debt due to the Plaintiff because of conclusions the Defendants have come to following an analysis by the first named Defendant of certain financial records." 

 

20.             The claim that the MSD was a "sham document" was assessed in some detail by the Learned High Court Judge who recorded in his judgment that he had considered the documentation upon which the Defendants' various arguments were based including statutory declarations, statutory accounts and extracts from accounts and notes to financial statements.  He noted that:

 

"the inescapable logic of what the Defendants assert includes.....that the Plaintiff entered into the MSD despite the fact that it had no interest whatsoever in the relevant mortgage portfolio, the subject of the MSD;  that it did so consciously and fraudulently"

 

and that:

 

"all legal and/or financial and/or other professional advisors to all four parties to the MSD either failed to notice that the Plaintiff had no interest in the relevant mortgage portfolio as a result of such due diligence as was carried out, or were prepared to advise that the MSD be entered into, notwithstanding the fact that a third party, not named in the MSD, was the true owner".

 

21.             As explained in his judgment, the Learned High Court Judge rejected the Defendants' assertion that there was proof that the Defendants' mortgage was not owned by the Plaintiff.  In his judgment, he had regard to the provisions of s. 62(7) of the Registration of Title Act, 1964, the service of formal demands (which were not satisfied) for the repayment of monies due on foot of the mortgage which the Defendants entered into, all against the background of the Defendants' undisputed default in relation to making the required mortgage payments.  He found that the effect of the MSD was to securitise the Defendants' loan and related security upon the terms set out in the MSD and that, on the evidence, the Plaintiff continued to hold legal title to the Defendants' loan and the related security and was entitled to seek possession of the Property.

 

22.             It is apparent from his judgment that, like the Circuit Court judge before him, the Learned High Court Judge had special regard to the fact that the contents of the specific MSD at issue in the within proceedings had been the subject of judicial consideration in Pepper Finance Corporation (Ireland) Designated Activity Company v. Hanlon and in Pepper Finance Corporation (Ireland) Designated Activity Company v. Jenkins.  In both these cases, it had been held that the legal effect of the MSD was that the Plaintiff held legal title to the loans and mortgages. He further noted that the views expressed in Pepper Finance Corporation (Ireland) Designated Activity Company v. Hanlon had been adopted in Pepper Finance Corporation (Ireland) Designated Activity Company v. Rooney [2019] IEHC 541. 

 

23.             Further, in considering the nature of a securitisation transaction, the Learned Trial Judge applied the law as found in Anthony Freeman and Another v. Bank of Scotland Plc and Others [2014] IEHC 284, Thomas Kearney v. K.B.C. Bank Ireland Plc and Another [2014] IEHC 260, Wellstead v. Judge Michael White and Anor. [2011] IEHC 438 and Governor and Company of the Bank of Ireland v. McMahon [2017] IEHC 600 in concluding that the Plaintiff retained the right to enforce the security, consistent with the retention by the Plaintiff of the legal interest as provided for in the MSD and that the Defendants had consented to the securitisation transaction which took place.  

 

24.             Unhappy with the Order of the High Court, the Defendants made an application to the Supreme Court for leave to appeal.  This application was determined on the 19^th of May, 2020 [2020] IESCDET 63. 

 

25.             In its determination, the Supreme Court considered both the Circuit Court and High Court judgments and observed the following of the High Court judgment:

 

"The judgment is comprehensive. It addresses each issue. The judge again held that no bona fide defence was disclosed and upheld the judgment of the Circuit Court.  It is to be noted that this is an application for an appeal directly to this Court from a matter first heard in the Circuit Court, and thereafter fully appealed to the High Court. This Court will only grant leave in such circumstances if a clear case is shown coming within the criteria laid down by the 33rd Amendment to the Constitution. On any fair consideration of the High Court judgment, it is clear that the judge was entitled to reach, and did reach, reasoned conclusions on each of the issues set out in the judgment. There is no basis for concluding that the High Court judge erred. The applicants have, therefore, had a detailed consideration of their case at first instance, and on an appeal in hearings and judgments which in fact were both so full as to be effectively full plenary hearings. It appears undisputed that there has not been any substantive mortgage repayment since April 2015. This Court too has examined the issues raised. It is noteworthy that the applicants put much of their case at a high level of generality without specifying precisely how, in law, the High Court erred, or how precisely the questions they seek to raise are matters of general public importance. In fact, the indiscriminate presentation of so many issues in itself militates against a conclusion that an issue of general public importance actually arises on the facts of the case. This Court is unable to find that the application raises any matter of general public importance, or that it is in the interests of justice that leave be granted. The application for leave is, therefore, declined." 

 

26.             There the matter lay until by Notice of Motion dated the 15^th of May, 2023, the Defendants applied to set aside the judgment and order of the Learned High Court Judge on the asserted basis that the judgment delivered on the 31^st of January, 2020, was irregular because of an undisclosed business relationship between the Plaintiff and the Learned High Court Judge by reason of which it is contended an apprehension of bias arises which properly required the Judge to recuse himself.  On affidavits grounding the application, the Defendants seek to reopen the merits of the case already decided by the High Court to support their claim of bias. 

 

27.             In terms of the Defendants' attempt to revisit the merits of their already determined appeal to the High Court, it is striking that the arguments rehearsed by the Defendants as recorded in the judgment they now seek to set aside are largely the same arguments repeated at considerable length before me to contend that the High Court judgment delivered in January, 2020, was wrong in a manner which evidences actual bias as well as the perceived bias arising from the alleged connection of the Judge with his previous law firm. 

 

28.              While the Defendants have relied on additional information in relation to the onward transfer of the Plaintiff's interest to Mars and events since the hearing before the High Court in December, 2019, at its heart the core objection remains the same.  In essence, the Defendants contend that the Mars cannot take a right from the Plaintiff because the Plaintiff were themselves not entitled to rely on the security in recovering possession of the Property.  Accordingly, although the argument has been updated to take account of developments since this matter was before the High Court in 2019, the Defendants' objections remain the same, in substance, to those which were addressed by both the Circuit Court Judge and the High Court on appeal and considered by the Supreme Court in refusing leave to appeal. 

 

29.             In response to the Defendants' set aside application, Mars brought a separate application by Notice of Motion dated the 6^th of February, 2024, to be substituted as Plaintiff on foot of an intervening transfer of the Plaintiff's interest to it.  This application was brought solely for the purpose of securing rights of audience as legitimus contradictor in response to the set aside application.  Notably, Mars has not, yet, sought to be joined in the Circuit Court proceedings for the purpose of seeking leave to execute on foot of the Order for Possession previously secured by the Plaintiff.  Accordingly, I am not on these applications concerned with an application for leave to execute on foot of the Order for Possession made by the High Court on appeal, some five years ago.

 

CONDUCT OF THE HEARING

 

30.             With the agreement of the parties, intended to be in ease of the Defendants who wished to open their set aside application in full before a decision was made on the application to substitute Mars and also mindful of the public interest in the efficient use of court time and the proper administration of justice, the hearing proceeded on the first day on the basis (the applications having been allocated 3 days altogether) that it was agreed that I would hear both applications and determine them together. 

 

31.             It became clear on the morning of the second day of the hearing, however, that the Defendants' position had either changed or been misunderstood by me as they objected to me hearing from counsel for Mars without a determination on the application joining them.  This meant that it was necessary to decide the Mars application first, as the outcome of that application determined whether they would enjoy a right of audience in respect of the set aside application in circumstances where they sought to stand in the shoes of the Plaintiff who had purported to transfer its interest in the charge the subject of the proceedings to them.

 

32.             In consequence, I delivered an ex tempore ruling joining Mars as Co-Plaintiff, outlining my reasons for that decision and confirming that a written ruling recording those reasons would be provided following the conclusion of both applications.  In ruling on the application and deciding to join Mars as Co-Plaintiff, I advised the parties that my written ruling on both applications would be delivered at the same time and a formal order would then be drawn dealing with both applications thereby preserving such rights, if any, which either party may have to challenge my decision on either application.

 

 

Application to Substitute Mars Capital Finance Ireland DAC as Plaintiff

 

33.             As noted above, the first motion in time is the application of the Defendants pursuant to Order 124 of the Rules of the Superior Courts, 1986 (as amended) to set aside the Order of the High Court made following the delivery of judgment in the Circuit Court appeal in January, 2020. 

 

34.             By reason of the intervening purported transfer of the Plaintiff's interest in the legal charge on foot of which the Order for Possession was made, a related application was made on behalf of Mars to be substituted in these proceedings as Plaintiff for the purpose of being heard as legitimus contradictor on the Defendants' set aside application. 

 

35.             Although I understood the Defendants to be agreeable to the determination of the substitution application together with the set aside application and to hearing counsel for Mars on a without prejudice basis in the set aside application in ease of the efficient use of court time whereby they sought to expand on matters coming within the scope of their set aside application in resisting the substitution application, they clarified on the morning of the second day of the hearing before me that they were not so agreeable and had not understood what had been proposed.  As noted above, this gave rise to a necessity for a preliminary ruling on the substitution application before proceeding to determine the set aside application. 

 

36.             It was confirmed on behalf of Mars in response to a query from me that an order joining them as Co-Plaintiff rather than in substitution would meet their purposes in securing rights of audience as legitimus contradictor.  I raised this question mindful of correspondence from the Defendants in which they appeared to object to Mars being substituted because "the bias allegations specifically concern Pepper Finance, yet Pepper is not responding to these allegations directly."  It bears note that the Defendants, in the same correspondence (letter dated the 30^th of October, 2024), raised "ethical questions about the propriety" of the same legal team being retained by the Plaintiff and Mars. 

 

37.             By response dated the 4^th of November, 2024, Mars explained that it was delivering submissions in both the substitution and set aside applications on the basis that both motions were being heard together as directed by the Court to ensure the efficient running of both motions.  It was pointed out that the allegations of bias made in the application were against the Learned High Court Judge and not the Plaintiff.  It was further confirmed that Mars had retained the same legal team as the Plaintiff and no conflict of interest arose in that regard.  It was pointed out that as the entity entitled to enforce the Order for Possession, it was considered that Mars were the appropriate entity to resist the set aside application.  The Defendants' attention was drawn in this letter to the decision of the High Court delivered the previous week in Ulster Bank DAC v. McDonagh (No. 3) [2024] IEHC 609 upon which Mars proposed to rely in resisting the set aside application.

 

38.             Notwithstanding the willingness of Mars to be joined as Co-Plaintiff rather than in substitution, the Defendants maintained objection to their joinder in the proceedings in any capacity.  It was observed on behalf of Mars that they anticipated that were the Plaintiff to present before the Court having transferred their legal interest to Mars, that the Defendants position would equally be that they would not be entitled to be heard.  This would result in a situation, if allowed by me, where nobody would be heard in opposition to the Defendants' set aside application. 

 

39.             In resisting the Mars application, consistent with the position adopted by the Defendants at all material times, they continued to contend that the Plaintiff has no lawful interest in the charge over the Property and have no entitlement to an Order for Possession.  They maintained in turn that the Plaintiff had no interest to transfer to Mars and that the transfer relied upon was a fiction or a sham intended to confound the administration of justice.  Although in a separate motion issued but not before me for hearing, the Defendants had sought an order retaining the Plaintiff in these proceedings qua Plaintiff because of their connection with the asserted bias of the Learned High Court Judge who granted the Order for Possession on appeal in January, 2020, they indicated that they would similarly object to the joinder of Mars as Co-Plaintiff rather than in substitution for the Plaintiff, maintaining that neither the Plaintiff nor Mars were entitled to rely on the Order for Possession obtained.  In this way, they appeared to object to anyone being heard in opposition to their application.

 

40.             Hereinafter, I set out my reasoning as explained in Court in making an order joining Mars as Co-Plaintiff.  In ruling on the application and in speaking my order, I outlined the background to these proceedings and specifically the fact that on the 31^st of January, 2020, the High Court dismissed the Defendants' appeal against an Order for Possession made in the Circuit Court on the 20^th of March, 2019, and noted that both the decisions of the Circuit and High Court were supported by detailed written judgments.  I also had regard to the fact that the Defendants had sought leave to appeal to the Supreme Court, but this application was refused for the reasons given in a written determination of the Supreme Court in May, 2020.  I referred to the three years delay between the decision of the Supreme Court to refuse leave to appeal and the Defendants' application to set aside the High Court judgment on grounds of bias.  I separately noted that after the issue of that motion, the Plaintiff purported to conclude a transfer to Mars of its title in the loan and security underlying these proceedings and the enforcement rights thereto and the fact that the Defendants dispute the legitimacy and indeed the effectiveness of this transfer.

 

41.             In giving my ruling, I also noted that the motion had issued on the 6^th of February, 2024, for the stated purpose of resisting the Defendants' set aside application and that the application was moved on the Affidavit of Glen Hogan sworn on the 30^th of January, 2024.  I referred to the fact that in his Affidavit, Mr. Hogan detailed the circumstances by which legal ownership of the charge was said to have transferred from the Plaintiff to Mars and exhibited, inter alia, the Global Deed of Transfer, an updated folio showing that Mars was registered as the owner of the charge on foot of which the Order for Possession was made and the "hello" and "goodbye" letters issued in respect of the transfer.

 

42.             I further referred to the four lengthy affidavits (three sworn by Mr. Conway and one by Mrs. Conway) sworn by the Defendants to resist the application, noting that in these affidavits they exhibited voluminous material in which they sought, inter alia, to reopen the entitlement of the Plaintiff to an Order for Possession in the first instance and in which they disputed both its entitlement to transfer its interest in the charge registered on the Defendants' folio to Mars and the lawfulness of the transfer purportedly executed through the medium of a global deed of transfer.  I noted that fundamental to their resistance of the application made on behalf of Mars, the Defendants contended that the Plaintiff had no interest in the legal charge relied upon in the making of the Order for Possession and accordingly could not have transferred that interest. 

 

43.             Next, I referred to the fact that it seemed to be also suggested that the transfer to Mars was deployed as a means of ensuring that the Plaintiff was not required to address allegations of bias made on this application.  Despite seeming to harbour a concern in this regard, I pointed out that the Defendants were not satisfied to agree to the joinder of Mars as Co-Plaintiff rather than its substitution, notwithstanding that it was confirmed on behalf of Mars that their joinder as Co-Plaintiff would suffice for their purposes of securing a right of audience as legitimus contradictor on the Defendants' set aside application and they were not intent on the removal of the Plaintiff from the proceedings.

 

44.             In deciding on the application, I had express regard to the terms of Order 17, Rule 4 of the Rules of the Superior Court, 1986, which provides:

 

"Where by reason of death or bankruptcy, or any other event occurring after the commencement of a cause or matter and causing a change or transmission of interest...it becomes necessary or desirable that any person not already a party should be made a party...an order that the proceedings shall be carried on between the continuing parties, and such new party or parties, may be obtained ex parte on application to the Court"

 

45.             I observed to the parties that it was well established that the application pursuant to Order 17, Rule 4 is a procedural application which, if it was granted, would allow the new party to prosecute the proceedings, subject to all of the imperfections that may have been present when the action was constituted and subject also to proving an entitlement to rely on orders already secured, such as in this case the Order for Possession, if seeking to execute on foot of same.  I further set out that in this instance, the application was made for the purpose of resisting the set aside application which affects a judgment which the substituted party wishes to preserve and rely upon in circumstances where a further application is contemplated in the Circuit Court, if Mars were to seek to enforce the Order for Possession obtained.  I pointed out that Mars would, if making an application for leave to execute in the Circuit Court, be required to satisfy the Circuit Court as to its entitlement to such an order. 

 

46.             As stated in my spoken ruling, all I needed to be satisfied of on this application was that there is evidence, on the balance of probabilities, that the Plaintiff's interest has been transferred to Mars.  Indeed, the standard of proof is not that Mars satisfy me that it is entitled to enforce the Order obtained but rather than it has put evidence before me upon which it can claim to be so entitled.

 

47.             I confirmed to the parties in speaking my ruling that I am quite satisfied on the proofs put before me by Mars on their application that it has established a sound basis for asserting an entitlement to enforce the Order for Possession obtained by the Plaintiff and that it therefore was a party which stood to be materially affected by the set aside application which the Defendants were making.  In this regard, I relied in particular on the fact that Mars was then the registered owner of the charge as recorded on the folio for the Property.  Under s. 31 of the Registration of Title Act, 1964, the Register is conclusive evidence of any right, privilege, appurtenance or burden appearing on the register.  As is made clear in Tanager v. Kane [2019] IEHC 801, [2019] 1 IR 385 and Bank of Ireland v. Cody [2021] IESC 26, [2021] 2 I.R. 381, such evidence is determinative in possession proceedings and no challenge can be raised by way of defence.  The nature of these proceedings has not changed by the allegations made and repeated by the Defendants.  They remain possession proceedings and the validity of the Register did not fall and does not now fall to be determined in these proceedings. 

 

48.             I further observed that while Mars are entitled to rely on the provisions of Order 17, Rule 4 of the Rules of the Superior Courts to seek substitution as Plaintiff, mindful of the Defendants' objections to the Plaintiff being released from the proceedings in view of the allegations it makes in respect of bias and also noting that Mars do not object to joinder as a Co-Plaintiff in lieu of substitution, I determined that I was satisfied to make an order joining Mars as Co-Plaintiff for the purpose of applications pending before the High Court, reiterating that this is merely a procedural step in the proceedings for the purpose of applications coming before the High Court, primarily a set aside application, and does not in any way prejudice such entitlement, if any, as the Defendants may assert to contest the validity of the transfer if Mars seek to enforce the Order for Possession in the Circuit Court.  I added that where it was a final order, it was unclear to me on what basis the Defendants might legitimately seek to revisit the making of the Order for Possession itself.

 

49.             I was and remain satisfied that Mars, in exhibiting the documentation grounding this application, have established the evidence necessary for the Court to grant the Orders sought.  As I observed when speaking the Order, it is an inescapable fact that the Circuit Court and the High Court were satisfied that the Plaintiff had demonstrated an entitlement to an Order for Possession based on proof of its title to the legal charge as put before the Court.  The Plaintiff has now formally transferred such interest as it held and as accepted by the High Court as evidenced in the material put before the Court on affidavit.  I fully appreciate that the Defendants do not accept the validity of earlier court decisions but in the absence of an order setting aside the High Court Order, these decisions stood and informed my decision on the Mars application. 

 

50.             It further seemed to me that quite apart from the evidence adduced as to their interest in standing over the Order for Possession already granted as demonstrated by the fact that Mars is registered on the folio as owner of the charge, Mars should be heard in respect of a set aside application which sought to unravel an Order obtained on foot of that charge and which it had a clear interest in standing over.

 

51.             For completeness, in speaking my order, I noted the Defendants' reliance on the decision in Permanent TSB PLC Formerly Irish Life and Permanent v. Doheny [2019] IEHC 414 to contend that they will seek to set aside any order made joining Mars in these proceedings but, as already explained to them, this decision was directed to a situation where an order of substitution was made on an ex parte basis and without affording a right to be heard to the defendants.  Those safeguards were present in this case in that the application has not been heard on an ex parte basis.  Instead, in these proceedings before me, the Defendants have filed four affidavits and have been heard at some length in opposing the application. 

 

52.             I observed that it was noteworthy that in Permanent TSB PLC Formerly Irish Life and Permanent v. Doheny, Meenan J. was satisfied to make the substitution order even though, unlike the position here, the new party had not yet been registered as owner of the mortgage and charge.  He did so, observing that what was before the Court was not a substantive application for the enforcement of statutory rights conferred upon a charge under the Registration of Title Act, 1964 or, indeed, the Land and Conveyancing Law Reform Act, 2013.

 

53.             Having joined Mars as Co-Plaintiff and thereby accorded them rights of audience on the set aside application, I then proceeded to consider the Defendants' set aside application.

 

Application to Set Aside

 

54.             As already noted, the application to set aside was brought on the asserted basis that the judgment delivered on the 31^st of January, 2020, was irregular because of an undisclosed business relationship between the Plaintiff and the Learned High Court Judge by reason of which it was contended an apprehension of bias arises which properly required the Judge to recuse himself.  The case is expanded upon on affidavit through an attack on various findings made by the Learned High Court Judge to purportedly demonstrate what was presented by the Defendants as being clearly erroneous conclusions as evidence of actual bias.  Accordingly, the fact that the Learned High Court Judge rejected the Defendants' claim to have disclosed a bona fide defence to the possession proceedings was itself perceived by the Defendants as proof that he was biased against them.  This is because they cannot accept his logic in arriving at those findings, notwithstanding the intervening determination of the Supreme Court which they consider to also be flawed. 

 

55.             In moving their application, the Defendants engaged in an extensive critique of the High Court Judgment.  Criticisms advanced were multiple.  I do not propose to set out all the Defendants multiple grievances with the conduct of the proceedings before the High Court and the ultimate decision of the Learned High Court Judge because I consider it to be unnecessary to do so for the purpose of this judgment.

 

56.             Suffice to say that criticisms included that the Judge did not quote full extracts from the documents before the Court, but select parts and arrived at certain conclusions on the basis of what the Judge saw as the "inescapable logic" of the Defendants' arguments, which the Defendants reject as incorrect and unfair as to be evidence of bias. 

 

57.             It bears repetition that the Learned High Court Judge's conclusions are rejected as biased, notwithstanding that the Circuit Court made the same decision and even though the Supreme Court were satisfied that there was no error disclosed in the judgment of the Learned High Court judge. 

 

58.             Of note, in a detailed analysis of the Circuit Court decision appearing as an exhibit to their set aside application, the Defendants state: 

 

"In the context of a complex financial transactions [sic], the Applicants want to make it particularly clear that this analysis is not in any way a criticism of the Circuit Court Judge who correctly applied the law of precedent to the case as he was bound to do."

 

59.             Despite the hearing before the High Court being a de novo hearing, the Defendants further contended that the Learned High Court Judge's failure to engage with the detail of the decision of the Circuit Court judge was further evidence of bias as it constituted "a failure to examine the full record". 

 

60.             By way of further example of the matters relied upon as evidence of objective bias, the very fact that their application for plenary hearing was not acceded to by the Learned Trial Judge was said to constitute evidence of bias (notwithstanding that the Circuit Court Judge, correctly applying precedent, reached the same decision in a manner which it is not suggested was biased) on the Defendants' contention that the low threshold for a transfer to plenary hearing had been met.  This proposition is therefore made based on the Defendants' rejection of the reasoning advanced in the High Court judgment for granting an Order for Possession, albeit that this reasoning is supported by authority and was considered by the Supreme Court in refusing leave to appeal.

 

61.             In terms of the Supreme Court determination, it was asserted by the Defendants in trenchant terms that the Supreme Court in refusing leave to appeal to the Defendants, entirely misunderstood their case and were misled by the submissions made.  The extent of the Supreme Court's misunderstanding of the case the Defendants advanced was described by them as "embarrassing".

 

62.             The application did not rest on mere disagreement with the logic and reasoning of the Learned High Court Judge but was advanced on the very concerning basis that the judge was biased, or had the appearance of bias, because of his connection with a law firm where he was a solicitor in partnership with others before appointment to the High Court, which law firm the Defendants contend was known to have acted for the Plaintiff.

 

63.             Here I pause to observe that I find there to be a real tension on this application between the constitutional interest in the administration of justice in public and a proper regard for the positions of persons against whom serious allegations are made, even though they are not parties to the proceedings and have no opportunity to be heard in their defence.  The Learned High Court Judge against whom these allegations are made is not a party to these proceedings and has no voice before me other than through the terms of the judgment delivered in January, 2020, which judgment was in turn the subject of consideration by the Supreme Court.  In this regard, I note that lawyers acting for Mars corresponded with the Chief State Solicitors to alert them to these proceedings, but they considered they had no role. 

 

64.             While mindful of the unfairness of repeating allegations where no right of response has been afforded, a Judge of the High Court is a constitutional office holder and I am conscious that the Defendants will perceive anything less than a full repetition of allegations made by them to constitute concealment or obfuscation, even where I find that these proceedings do not provide an appropriate vehicle for the ventilation of their beliefs and suspicions. 

 

65.             Although it is unsatisfactory to repeat allegations without hearing from all concerned and then reaching conclusions on whether they have any substance or not and I am uncomfortable doing so, I propose nonetheless to give a flavour of the more significant contentions advanced on behalf of the Defendants in view of the constitutional propriety of justice being administered in public and being seen to be done. 

 

66.             Providing a summary of the more significant contentions underpinning this application also serves the purpose of making it clear that in considering the extent of my jurisdiction and reaching the conclusions I reach below, the Defendants can be satisfied that I did so mindful of the full nature and extent of the issues raised by them.  The Defendants perceive the issues they raise to be matters of extreme public importance concerning what they seek to present as bad and potentially unlawful practices of lenders and financial institutions and judicial misconduct (albeit they concede perhaps "unintentional" misconduct).  The very public importance they perceive to arise, in significant part already considered and rejected by the Supreme Court in determining a leave to appeal application in May, 2020, is relied upon by them as grounding a very expansive "inherent" jurisdiction the Defendants contend I have to set aside the High Court Order made in January, 2020.  For this contention to be understood, it requires to be contextualised with reference to the factual basis relied upon by the Defendants in this regard.

 

67.             In addition to the problems with the Learned High Court Judge's reasoning as contended for by the Defendants, this application is moved in large part "based on recently discovered information".  This information is that the Judge, a solicitor leaving private practice as a solicitor upon his appointment as a judge in December, 2019, had an ongoing financial interest in and connection with the law firm in which he had practised prior to his appointment and this law firm acted for the Plaintiff, albeit it is not contended that the law firm ever acted in these proceedings.  Indeed, there is no evidence that the Learned High Court Judge ever acted personally for the Plaintiff. 

 

68.             The Defendants base their contentions on the announcement of the Learned Trial Judge's appointment by the President as reported in the media in early December, 2019, the contents of a B10 Change of Director Form which shows termination of the now Judge's role as Director of a limited liability company registered under the business name of his former solicitor's firm in November, 2019; a Form RBN2A notifying removal of partner under the Registration of Business Names Act, 1963 dating to April, 2021 giving the date of removal of the former practising solicitor now judge as April, 2021 and a B1 Annual Return up to April, 2020 recording directors and shareholders where the former solicitor's name, now a Judge, appears under "List of Past and Present Members".  The B1 Annual Return up to April, 2020, records a shareholding without details of transfer.  Notably, other records such as the B1 Annual Return up to April, 2021, were not adduced in evidence.

 

69.             It was acknowledged by the Defendants that the documents produced by them recorded that the Learned High Court Judge had resigned as company director prior to his appointment as a judge but reliance was placed on the fact that his removal as a partner for the purpose of the Register of Business Names was only communicated to the Companies Registration Office in April, 2021, after the case involving the Defendants was heard on appeal in the High Court.  A similar argument is pressed in reliance on the B1 Annual Return and while it is noted that it was an annual return on which the Learned High Court Judge's name is recorded under the heading "present and past members", no record of a transfer of his shares in the company appears.

 

70.             It was asserted that the Learned High Court Judge's former law firm had a solicitor-client relationship with the Plaintiff and associated named companies.  It was also asserted that Learned High Court Judge was conflicted because he acted for the Plaintiff and named related companies.  This assertion was made not because there was evidence showing his direct involvement in any identifiable or identified case but was, seemingly, based on an assumption that where the law firm had acted for the Plaintiff and associated companies, if indeed they had, as a partner/solicitor in the firm, it followed so had the Learned High Court Judge.

 

71.             At the close of the first day the Defendants' attention was drawn to a written submission on behalf of Mars to the effect that I had no jurisdiction to entertain their set aside application.  Their attention was then also drawn to a number of additional authorities including: Student Transport Scheme Limited v. Minister for Education and Skills [2021] IESC 35, Governor and Company of the Bank of Ireland v. Carey [2024] IECA 245; Start Mortgages DAC v. Kavanagh [2023] IEHC 37; Carney v. Bank of Scotland PLC [2024] IECA 309 and L.P. v. M.P. [2001] IESC 76, [2002] 1 IR 219.  The Defendants were asked to consider these authorities and those referred to in Mars legal submissions and address me on the fundamental question of jurisdiction the following morning.  In response, it was contended on behalf of the Defendants that they had not received Mars legal submissions even though they had included them in the books of papers compiled for the Court by the Defendants themselves.  The willingness of the Defendants to make a patently false assertion to suit their objectives as evidenced by their trenchant claim not to have received written submissions when mainfestly they had, is illuminating.  Their false assertion before me causes me to doubt that the Defendants are pursuing these proceedings in a genuine belief in the strength of their case but rather as an attempt to frustrate the enforcement of the Order for Possession made against them.

 

72.             When the hearing resumed on the morning of the second day, the Defendants appeared focussed in submissions on demonstrating how the previous decision was patently wrong.  From their perspective, the only explanation for what they contend to be clearly wrong conclusions was that the Learned High Court Judge was biased.  Given their seeming determined focus on rearguing the case which had already been determined, I interrupted the Defendants' submissions to remind them of my request that they address me on my jurisdiction to make the Order sought, namely the jurisdiction to set aside the final judgment of a fellow High Court judge. 

 

73.             In response to this repeated request to be addressed on my jurisdiction to entertain the application they urged on me, the Defendants referred me not to Order 124, the provision relied upon in the Notice of Motion, but to Article 34.3.1 of the Constitution, the "inherent jurisdiction of the Court" and the decision in Kenny v. Provision of Trinity College [2011] IEHC 202.  They urged that where the decision of the High Court was tainted by bias, as they alleged, then as a judge sitting in the High Court, I had all the necessary jurisdiction to intervene to set aside the Order for Possession made in January, 2020, against which leave to appeal had been refused by the determination of the Supreme Court. 

 

74.             Despite being asked on several occasions, the Defendants were unable to refer me to any other case in which the High Court had set aside an order made by another High Court judge in proceedings that had been finally determined.  In the context of my raising the jurisdictional issue again, it became apparent that the Defendants had resiled from their position as I had understood it the previous day and a preliminary ruling would be required on the joinder of Mars to determine whether I could hear them in response to the set aside application.  This occurred in circumstances where I referred them to the Mars submissions which they again claimed they had not received even though they had included them as part of the 5 lever arch volumes of paper they had put before the Court on their application. 

 

75.             When the presence of the Mars submissions in the folders they had prepared for court was pointed out to them, the Defendants changed tack and said that Mars were not entitled to make submissions (a point which then prompted the requirement for a ruling on the Mars joinder application before proceeding to determine the set aside application). 

 

76.             The Defendants did not then or subsequently address the authorities which had been flagged for their attention the previous day or those authorities relied upon in Mars' written submissions including the decision of the Supreme Court in the matter of Greendale Developments Limited (No. 3) [2000] WJSC-SC 3223, [2000] 2 I.R. 514. Having invoked the "inherent jurisdiction" of the Court, they spent the remainder of their time taking me through and repeating their criticism of the Learned High Court Judge's decision having regard to the materials before him and reiterating the appearance of bias created by his connection with a firm who acted for the Plaintiff.  It was repeatedly and fervently submitted that all the Defendants sought and had ever sought was a "plenary" hearing.  In their written submissions they identified the following authorities Orange Ltd v. Director of Telecoms (No 2) [2000] 4 IR 159, Spin Communications T/A Storm FM v Independent Radio & Television Commission (IRTC) & Or. [2001] IESC 12 and Goode Concrete v. CRH Plc  [2015] 3 IR 493  as relevant to the issue of bias.

 

77.             In replying submissions, counsel for Mars relied upon the decision in Start Mortgages DAC v. Kavanagh, where Simons J. considered the jurisdictional basis for an application to set aside a judgment and order for possession also brought in reliance on Order 124 of the Rules of the Superior Courts.  While rejecting the application under Order 124, Simons J. proceeded to consider whether he had an inherent jurisdiction in reliance on the Greendale line of authority before concluding on the facts and circumstances before him that it would not, in any event, be appropriate to set aside the judgment and order made and not appealed against.  Reliance was also placed on the decision of Twomey J. in Ulster Bank DAC v. McDonagh (No. 3) [2024] IEHC 609 and in written submissions, Mars referred to Hughes v. O'Rourke [1986] I.L.R.M. 538.

 

78.             In terms of the existence of an appeal from the decision of the Learned High Court Judge, reliance was placed by counsel for Mars on the decision of the Supreme Court in Pepper Finance Corporation v. Cannon [2020] IESC 2, [2022] 1 I.R. 128 , where it was confirmed that the Supreme Court has jurisdiction to grant leave to appeal from a decision of the High Court made on appeal from the Circuit Court, notwithstanding s. 39 of the Courts of Justice Act 1936, provided that the constitutional criteria are satisfied.  It was the fundamental position of Mars that the issues as between the parties are res judicata and the Defendants cannot now seek to re-litigate those issues which have been considered and rejected by the Supreme Court. 

 

79.             Counsel made a further argument in the alternative, directed to a finding, contrary to their primary submission, that the High Court enjoys a jurisdiction to set aside previous final judgments where allegations of bias are made.  They posited that such a jurisdiction, if it existed, must be no greater than that exercisable by the Supreme Court as recognised in cases such as Re Greendale Developments Ltd. (No. 3) [2000] WJSC-SC 3223, [2000] 2 I.R. 514.  It was submitted that this means that the moving party bears a heavy onus in that the application may only be considered in the most exceptional circumstances, further that the application could only be grounded on an established breach of constitutional rights, the grounds of the application must establish a denial of justice in the proceedings and that the Court must be furnished with cogent and substantive grounds which are objectively sufficient to enable the exercise of the jurisdiction.

 

80.             Noting that the Defendants allege both objective and subjective bias, Counsel for Mars pointed out that the Defendants' application was misconceived insofar as grounds advanced for the existence subjective bias turned on the fact that the Learned Trial Judge found against them and their disagreement with his logic and reasoning.  Particular emphasis was placed by Mars on the fact that no allegation of bias has been made against the Circuit Court Judge who similarly made an order for possession nor against the Supreme Court judges who expressly confirmed that they had examined the issues raised by the Defendants in concluding that there was no basis for determining that the Learned High Court Judge erred.

 

81.             As for the allegations of objective bias, submissions on behalf of Mars relied on the test summarized in Bula Limited & Others v. Tara Mines Limited & Others (No.6) 2000 WJSC-SC 922, [2000] 4 I.R. 412 where Denham J. confirmed that the test to be applied is objective and it is whether 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.  Further reliance was placed, to similar effect, on the reasonable bystander test set out by O'Donnell J. in Kelly v. Minister for Agriculture [2021] IESC 23, [2021] 2 I.R. 624.

 

82.             While not directly addressed to the Company Registration Office returns relied upon by the Defendants, it was submitted more generally on behalf of Mars that the Defendants cannot establish a cogent and rational link between their allegations of objective bias and the outcome of the case.  As such, it was submitted, the reasonable observer could not conclude that the allegations of bias are such that might give rise to a reasonable apprehension that the judgment was improperly influenced or tainted.

 

DISCUSSION AND DECISION ON JURISDICTION TO SET ASIDE

 

83.             The core issue as I see it on the set aside application is whether I have jurisdiction to set aside the final Order of another High Court Judge which has been the subject of an unsuccessful application for leave to appeal to the Supreme Court either under Order 124 of the Rules of the Superior Courts, 1986 or the inherent jurisdiction of the Court.  It is only where I determine that I have a jurisdiction, that I am required to consider whether it should be exercised on the facts and circumstances of this case.

 

Order 124

84.             The application was moved in reliance on Order 124 of the Rules of the Superior Court, 1986 which provides :

 

 "1. Non-compliance with these Rules shall not render any proceedings void unless the Court shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court shall think fit.

2. No application to set aside any proceeding for irregularity shall be allowed unless made within a reasonable time, nor if the party applying has taken any fresh step after knowledge of the irregularity.

3. Where an application is made to set aside proceedings for irregularity, the several objections intended to be insisted upon shall be stated in the notice of motion."

 

85.             Simons J. considered the limits of his jurisdiction under Order 124 in Start Mortgages DAC v. Kavanagh, noting that the jurisdiction under Order 124 is concerned with ongoing proceedings and not a final (in that case also un-appealed) judgment and order. He pointed out that the concept of setting aside a judgment or order is different and is addressed separately under the Rules of the Superior Courts citing Order 27, Rule 15 and Order 36, Rule 33 as examples. 

 

86.             While finding Order 124 applies only in respect of non-compliance with the Rules in respect of ongoing proceedings, he added that even if it did apply, it could not avail an applicant who was guilty of inordinate or inexcusable delay in moving the application. 

 

87.             Given that the application moved before me relates to proceedings which were finalised in the High Court more than five years ago, it is inconceivable that the discretionary power provided in Order 124 would provide for a jurisdiction of the very far-reaching nature contended for on behalf of the Defendants, absent a clear and independent basis in law for such a jurisdiction.  Accordingly, the application under Order 124 of the Rules is bound to fail.

 

 

Inherent Jurisdiction

88.             Although the Defendants also rely in submissions on the inherent jurisdiction of the Court pursuant to Article 34.3 of the Constitution, the only authority relied upon by them in oral argument is the decision in Kenny. 

 

89.             Under Article 34.3, the High Court is vested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal.  Underpinning the jurisdiction of the High Court and the administration of justice under the Constitution in accordance with the rule of law is the principle of finality.  As Henchy J. confirmed in Hughes v. O'Rourke, in the absence of a clear provision to the contrary in a statute or a rule of court, once a final order has been made and perfected in the High Court, the jurisdiction of the High Court as to the matters determined by that order is exhausted.   Post-decision matters, in the absence of clear provision to the contrary, are matters for a court of appeal.

 

90.             The Defendants did not in the context of invoking the inherent jurisdiction of the Court under Article 34.3 further refer to Article 34.5.4 which vests the Supreme Court with appellate jurisdiction from a decision of the High Court if the Supreme Court is satisfied that there are exceptional circumstances warranting a direct appeal to it, a precondition for such appeal being that the Supreme Court is satisfied as to the presence of either or both of the following factors:

 

(i)     the decision involves a matter of general public importance;

(ii)   the interests of justice.

 

91.             It is no part of the constitutional order as provided for in Article 34 of the Constitution, that one High Court judge would sit in appeal on another High Court judge.  As confirmed in Pepper Finance Corporation v. Cannon [2020] IESC 2, [2022] 1 I.R. 128 , an appeal lies from a decision of the High Court made on appeal from the Circuit Court, notwithstanding s. 39 of the Courts of Justice Act 1936, provided that the constitutional criteria are satisfied.  This is not a case where no remedy of appeal lay against the decision of the Learned High Court Judge.

 

92.             In their reliance on Kenny, the Defendants failed to appreciate what was involved in that case.  It was a case concerned with the inherent jurisdiction of the Court to strike out claims which were bound to fail because of earlier, final court decisions or because of undisputed facts before the court.  Kenny is patently not authority for the proposition urged on behalf of the Defendants, namely, a jurisdiction vesting in one High Court judge to set aside a final judgement and order of another High Court judge after an unsuccessful application to the Supreme Court for leave to appeal. 

 

93.             The application in this case has far more in common with the application considered in Ulster Bank DAC v. McDonagh (No. 3) where categoric findings were made that the High Court did not have jurisdiction to entertain the set aside application on grounds of an alleged fraud.  In that case Twomey J. treated as "bizarre" an application being brought seeking to set aside a principal judgment from four years earlier on grounds of alleged fraud by the lawyers acting for the Bank in a case which had been unsuccessfully appealed to the Court of Appeal and the Supreme Court refused to hear an appeal against the decision of the Court of Appeal. 

 

94.             Referring to the Supreme Court's determination on that application (Ulster Bank & Ors v McDonagh & Ors [2023] IESCDET 82) in which the Supreme Court refused to hear an appeal on the grounds, inter alia, that it was not merited in the interests of justice, Twomey J. was satisfied that the set aside application was an abuse of court process pointing out (at para. 39) that on such an application the litigant is asking the High Court judge, who was functus officio, and who was bound by the Court of Appeal decision "to, in effect, overturn the decision of the Court of Appeal and implicitly also overturn, or at least compromise, the Supreme Court's decision that there was no merit in the McDonaghs' appeal." 

 

95.             Twomey J. was unequivocal in his finding that the High Court has no jurisdiction to entertain an application to set aside its decision after it was affirmed by an appellate court, pointing out that a litigant who fails in setting aside the trial court judgment the first time, could try a second time with another reason (e.g., further new evidence) and if the trial judge refuses that second set aside application, he could appeal that refusal to the Court of Appeal, and if that appeal was refused, he could appeal to the Supreme Court, before starting again with another set aside application (based on further new evidence) in an endless loop.  He found that it should be patently clear that the High Court had no jurisdiction to entertain to overturn a High Court decision that has been affirmed by the Court of Appeal. 

 

96.             It is noted, however, that a distinguishing feature between this case and Ulster Bank DAC v. McDonagh (No. 3) and, indeed, Start Mortgages DAC v. Kavanagh is that proceedings were initiated in the High Court (as opposed to the Circuit Court) in those cases and benefitted from a full right of appeal to the Court of Appeal.  While the order made by the High Court in Start Mortgages DAC v. Kavanagh had not been appealed, the order made in Ulster Bank DAC v. McDonagh (No. 3) had. 

 

97.             In this case I am concerned with yet a further variation, a Circuit Court decision affirmed on appeal by the High Court and in respect of which leave to appeal has been refused by the Supreme Court.  Nonetheless, the observation in Ulster Bank DAC v. McDonagh (No. 3) that this involves this Court being asked, in effect, to reverse a determination of the highest court in the State, the Supreme Court, in finding that the High Court enjoys no such jurisdiction remains apposite (at para. 69 of his decision in Ulster Bank DAC v. McDonagh (No. 3)).

 

98.             In view of the differences between this case and the decision in Ulster Bank DAC v. McDonagh (No. 3) together with the Defendants' propensity to seek to reargue matters and bearing in mind that in Start Mortgages DAC v. Kavanagh, Simons J. did not reject the possibility of a set aside jurisdiction deriving from the inherent jurisdiction of the Court along the lines of the jurisdiction acknowledged by the Supreme Court in Greendale Developments Ltd (No. 3), it seems appropriate for me to consider further whether I have an inherent jurisdiction of the type contended for on the facts and circumstances of this case.  In Greendale the Supreme Court found that there is an exceptional jurisdiction vested in the Supreme Court to reopen a final judgment without making clear whether this jurisdiction was exclusive to the Supreme Court.  There is support for the proposition that the High Court enjoys a similar jurisdiction in obiter comment in L.P. v. M.P..  There, Murray J. acknowledged that the High Court enjoyed a similar jurisdiction to the Supreme Court to set aside final and unappealable decisions of the High Court. 

 

99.            In Start Mortgages DAC v. Kavanagh, Simons J. considered, in the context of a set aside application in that case, namely a case in which no appeal had been pursued, whether the High Court had an exceptional jurisdiction to set aside a final judgment in reliance on the Greendale line of authority, most recently the decision of the Supreme Court in Student Transport Scheme Ltd v. Minister for Education and Skills Skills [2021] IESC 35.  He noted that the Supreme Court in Student Transport Scheme Ltd v. Minister for Education and Skills endorsed two key principles. Firstly, the party seeking to have a final order set aside must clearly establish a fundamental denial of justice against which no other remedy, such as an appeal, is available (L.P. v. M.P. (at page 229 of the reported judgment)).  Secondly, the exceptional jurisprudence does not exist to allow a party to re-argue an issue already determined (Murphy v. Gilligan [2017] IESC 3 (at paragraph 138)).

 

100.                      Having reviewed the authorities, in Start Mortgages DAC v. Kavanagh, Simons J. observed that an unusual feature of the case before him was that the set aside application was being made to a different judge than the trial judge who made the original order (since retired), observing that most of the case law appears to involve circumstances where the application to reopen a judgment was brought before the same judge who had delivered the judgment, or, in the case of an appellate court, to the same panel of that court.  At para. 32 of his judgment Simons J. stated:

 

"The question of whether one judge of the High Court could ever have jurisdiction to set aside a final, unappealed order which had been made, following an inter partes hearing, by another (former) High Court judge was not fully argued before me.  (Different considerations apply in the context of an ex parte order).  It is not necessary, for the purpose of this particular case, to decide the point definitively.  This is because I have concluded, for the reasons explained under the next heading, that the high threshold for setting aside a final, unappealed judgment and order has not been met.  Thus, the set aside application would have to be refused even if I had been the judge who had made the original order.  It is superfluous, therefore, for the purpose of resolving the application in this case to address the complicating factor of the order having been made by a different judge who is since retired."

 

 

101.                       Although canvassing the issue of an inherent jurisdiction in the High Court along the lines of Greendale, Simons J. concluded that it was not necessary to decide the issue in Start Mortgages DAC v. Kavanagh, because the principal argument advanced by the moving party in support of the application to set aside the judgment and order in question relating to the securitisation issue (the assignment of the beneficial interest in the mortgage and loan agreement to a different legal entity) was found by him to be precisely the same argument which had been relied upon in defence of the proceedings and precisely the same argument already rejected by the trial judge.  At para. 35 of his judgment, Simons J. stated:

 

"It is not open to the moving party to seek to reagitate this argument now under the guise of an application to set aside a final, unappealed judgment and order.  It is well established on the Greendale Developments jurisprudence that the exceptional jurisdiction to set aside a final judgment and order does not exist to allow a party to re-argue an issue already determined."

 

102.                      Despite addressing the question of the inherent jurisdiction of the High Court to set aside a decision of another High Court judge in Start Mortgages, Simons J. ultimately concluded that it was unnecessary for him to decide the point definitively because he determined that the high threshold for setting aside a final, un-appealed judgment and order had not, in any event, been met on the facts of that case.  He concluded that as the set aside application would have to be refused even if he had been the judge who had made the original order, he considered it superfluous, for the purpose of resolving the application in the case before him to address the complicating factor of the order having been made by a different judge.

 

103.                      As pointed out by Simons J. in Start Mortgages DAC v. Kavanagh, most of the case law identified in this area appears to involve circumstances where the application to reopen a judgment was brought before the same judge who had delivered the judgment, or, in the case of an appellate court, to the same panel of that court.  In his judgment, he leaves open the question of whether an application could ever be brought before a different judge of the same jurisdiction.  Thus, the question of whether one judge of the High Court could ever have jurisdiction to set aside a final order which had been made, following an inter partes hearing, by another High Court judge does not appear to have been decided and no authority directly on point was identified to me.

 

104.                      Having studied the papers grounding this application and heard submissions from the Defendants, I am satisfied that as was the case in both Start Mortgages DAC v. Kavanagh and Ulster Bank DAC v. McDonagh (No. 3), the Defendants in this case are similarly seeking to re-open the same issues already determined by the High Court, albeit on the basis that they contend the decision is so wrong that the Learned High Court Judge must have been biased.  In this case this contention is made even though the Supreme Court determined that an appeal should not lie on the basis that the decision was in accordance with law.  Based on the conduct of the set aside application before me, I have no doubt that the primary focus of the Defendants in pursuing this application is to secure an opportunity to re-argue the points already urged on the Circuit Court and the High Court in 2019, preferably in a plenary hearing.

 

105.                      The fact that the Defendants now also advance arguments in relation to the transfer to Mars requires to be considered from the perspective of whether the complaints made may properly be treated as re-argument.  I am satisfied that the arguments I heard are in essence the same as those already advanced but rejected in respect of the Plaintiff's interest.  The additional focus of the argument on the transfer of the Plaintiff's interest to Mars would not bring the Defendants outside the ratio in Start Mortgages DAC v. Kavanagh and Ulster Bank DAC v. McDonagh (No. 3) on my assessment of these arguments.  This is because the Defendants' position as regards subsequent transfers fundamentally flows from the fact that they do not accept the correctness of the decision to recognise the Plaintiff's interest about which the entitlement to an order for possession in the orders made in January, 2020, was found to arise.

 

106.                      Furthermore, at risk of seeming trite, manifestly an order for possession made in 2020 cannot be set aside based on supervening events.  Whether such interest as vested in the Plaintiff has been properly transferred is not a matter which goes to the Order for Possession itself.  Should Mars seek to execute on foot of the Order for Possession granted to the Plaintiff in 2020, its entitlement to do so will be for the court dealing with that application.

 

107.                      Although, at least on one view, it would be open to me to adopt the same approach as Simons J. in Start Mortgages DAC v. Kavanagh and determine the set aside application without considering whether I have jurisdiction to entertain it at all, this case is somewhat different to that case because, while the Defendants are plainly intent on re-arguing points already decided against them at every opportunity, they also advance a bias case based on the Learned High Court Judge's connection with a law firm acting for the Plaintiff.  This complaint was not considered by the Learned High Court before delivering judgment in January, 2020 and as it had not been articulated, no recusal application was made and the complaint has not been adjudicated upon.  

 

108.                      None of the cases identified in argument appear to address the position of a High Court Judge invited to entertain a set aside application in respect of a final order of another High Court judge after leave to appeal has been refused by the Supreme Court, which is a different scenario to that arising in Start Mortgages DAC v. Kavanagh where an application on appeal had not been pursued.  The question remaining on this application is whether I have jurisdiction to set aside a final decision of another judge of the High Court, notwithstanding the intervening determination of the Supreme Court.  It seems to me that the answer to this question must be no having regard to the constitutional architecture within which the Courts operate.  Indeed, it is likely that the absence of authority directly on point is because such an application cannot overcome the first principle reiterated in Student Transport Scheme Ltd., namely the existence of another remedy either by way of appeal to the Supreme Court or as alluded to by Clarke C.J. in Student Transport Scheme Ltd v. Minister for Education and Skills, a separate plenary action.

 

109.                      Article 34.5.6 of the Constitution gives rise to two separate but interlinked and complementary requirements which provide parameters to this Court's inherent jurisdiction.  The first is the principle of finality. It is clear both from the text of that article, and from the analysis contained in the judgments in cases such as Greendale and Bula Ltd. v. Tara Mines Ltd. (No. 6) and Student Transport Scheme Ltd. v. Minister for Skills and Education, that the Constitution affords very high weight to finality as a matter of principle.  Thus, as Clarke C.J. observed in Student Transport Scheme Ltd. v. Minister for Skills and Education, ignoring or watering down the concept of finality would be a breach of a significant constitutional principle.

 

110.                      The second is that the Constitution also gives a derived right to a person who has the benefit of a final decision of this Court. Such a person may be a plaintiff or applicant who has succeeded and has the benefit of an appropriate court order or may be a defendant or respondent who has persuaded the courts that the claim brought against them is unmeritorious.  In either case, a person having the benefit of a beneficial final order of this Court is entitled, as a matter of constitutional law, to a strong presumption that the proceedings (and the issues raised in them) are at an end.  Indeed, as Clarke C.J. also found in the Student Transport Scheme Ltd. v. Minister for Skills and Education, there is a sense in which an unsuccessful Greendale motion operates as a breach of that derived right.

 

111.                      Having regard to the constitutional architecture within which the High Court sits, I am satisfied that I have no authority to sit in appeal in respect of a decision of another judge of the High Court where the Supreme Court has determined that the basis for granting leave to appeal is not made out.  Contrary to the Defendants' submission, I am satisfied that the High Court is functus officio in respect of issues pertaining to the making of an Order for Possession against the Defendants' interest in the Property and that a final Order for Possession has been made.  A High Court judge cannot sit in quasi appeal in respect of a decision of another High Court judge and most certainly is not entitled to enter upon any consideration of the correctness of a determination of the Supreme Court, even if the application is urged based on additional information not put before the Supreme Court.  Were the Defendants correct in the position they advance having regard to perceived illogicality or shortcomings in the Learned High Court Judge's judgment, every unsuccessful litigant unaccepting of a judge's reasoning could similarly allege bias against a judge.  Clearly, this could not be a tenable situation.

 

112.                      It is recalled that in rejecting the so-called "Greendale" application in Student Transport Scheme Ltd. v. Minister for Skills and Education, Clarke C.J. ruled that general accusations concerning the way in which the proceedings were conducted before the lower courts do not give rise to the proper exercise of the relevant jurisdiction in respect of a final order, judgment or determination of the Supreme Court.  He further said that if there is a jurisdiction to set aside proceedings on grounds that a State authority allegedly failed to conduct those proceedings in a transparent manner and he considered there to be a "significant doubt" as to whether such a jurisdiction existed, an attempt to invoke such jurisdiction must be pursued by plenary proceedings.  On this basis a set aside application of the type pursued in these proceedings ought not properly be pursued by Notice of Motion in the manner the Defendants have sought to do in this case.  In this regard, it bears note that the Defendants are in fact maintaining separate plenary actions, albeit the nature of the claims advanced in those actions were not addressed in any meaningful way before me.

 

113.                      Furthermore, even if a jurisdiction to set aside on application by Notice of Motion in proceedings which have already been finally determined were found to exist notwithstanding my conclusions to the contrary, it seems to me that the Defendants do not meet the second hurdle presented by the Greendale test which precludes a jurisdiction where an appeal mechanism is available.  Not only was an avenue of appeal available to the Defendants but it was exercised by them.  They were refused leave to appeal by the Supreme Court on a reasoned basis and following consideration of the application. It is my understanding that the Defendants have already unsuccessfully tried to persuade the Supreme Court that they were wrong in refusing leave to appeal.  This is clearly a matter for the Supreme Court.  If the Defendants have an issue with the determination of the Supreme Court, this is not an issue that can legitimately be raised with me.

 

114.                      Even if I am wrong in my conclusion that I do not enjoy a Greendale type jurisdiction in circumstances where the application concerns the decision of another judge of the High Court and the Supreme Court have determined that the decision should be final, but these circumstances notwithstanding retain an exceptional jurisdiction of the kind identified in Greendale, then it is clear from Greendale and Student Transport Scheme Ltd. v. Minister for Skills and Education that a very high threshold applies to a party seeking to set aside a final order in the Supreme Court.  There is no reason to suppose that presuming a Greendale jurisdiction vesting in a High Court in a case of this kind, that the threshold would be any lower. 

 

115.                      The circumstances in which this threshold could be met are difficult to conceive of.  In Student Transport Scheme Ltd. v. Minister for Skills and Education, Clarke C.J. observed that such a threshold might be met in a case where a party could demonstrate a clear and significant breach of the fundamental constitutional rights of a party, going to the very root of fair and constitutional administration of justice in the way the process leading to the determination was conducted. 

 

116.                      For completeness and in view of the interests in securing finality on this application and to reduce the risk of a court being asked to consider an issue not addressed again should I be wrong in any of my findings to this point, I propose to consider whether any circumstances which might warrant the exercise of an exceptional set aside jurisdiction on an assumed basis, contrary to my findings above, has been identified in the circumstances relied upon by the Defendants. 

 

Whether Bias giving rise to Fundamental Denial of Justice Demonstrated

117.                      The Defendants' claim a fundamental denial of justice arises on the facts of this case by reason of alleged bias.  The basis for this contention will now be scrutinised. 

 

118.                      The allegations made are two-fold.  Insofar as allegations of subjective bias are concerned, they relate entirely to the contention that the Learned High Court Judge's findings are so wrong that they are explicable only as the result of actual bias.  This complaint is readily disposed of.  As Mars pointed out, the Defendants' application is misconceived insofar as grounds advanced for the existence subjective bias turned on the fact that the Learned Trial Judge found against the Defendants and their disagreement with his logic and reasoning.  There is nothing, on any proper reading of the Learned Trial Judge's careful conclusions, endorsed by the Supreme Court in determining to refuse leave to appeal, which supports the Defendants in their contentions.  It is difficult to reconcile the approach of the Defendants to the decision of the Circuit Court Judge who reached similar conclusions but is not accused of bias with their contrasting approach to the decision of the Learned High Court Judge.

 

119.                      Despite the fact that it was not a secret that the Learned High Court Judge was a solicitor in practice prior to his appointment and no secrecy attached to the identity of his practice and the Defendants rely on publicly available information (at least some of which would have been available when the case was before the Court in late 2019), at no time did the Defendants request the Learned Trial Judge to recuse himself based on their apprehensions arising from the fact that he was formerly a solicitor in practice with a firm of solicitors who it is claimed counted the Plaintiff amongst its clients. 

 

120.                      Had a recusal application been brought the Learned Trial Judge, he would have had an opportunity to consider and address the Defendants' concerns and rule on their application.  Where dissatisfied with his ruling, it would have been open to the Defendants to appeal against the ruling.  However, where the documentary material relied upon in grounding the set aside application was not available in late 2019 and, presuming I had jurisdiction, I would not dispose of this application on the basis that the failure to make a recusal application to the Judge himself before he delivered final judgment is an impediment to the exercise of jurisdiction, should it exist (contrary to my findings above).

 

121.                      For the purpose of moving the application before me, there was no evidence adduced to show a direct involvement in any identifiable or identified case by the Learned High Court Judge in any case involving the Plaintiff.  The Learned High Court Judge's former law firm never acted in these proceedings.  Nor is it suggested that the Learned High Court Judge or his former solicitors' practice ever had any involvement in advising or acting for the Plaintiff in relation to these proceedings.  The solicitors with carriage of these proceedings on behalf of the Plaintiff and/or Mars were and remain Edward Healy Solicitors LLP.  As an aside, the Defendants have separately raised an issue in relation to the involvement of the same legal team for both the Plaintiff and Mars but, as pointed out by counsel on behalf of Mars, there is no professional impediment to the same law firm acting for co-plaintiffs if there is no conflict of interest between them. 

 

122.                      In circumstances where there is no evidence of any direct involvement of the Learned High Court Judge in personally advising the Plaintiff in these or any other proceedings, the contention of bias is in part based instead on an assumption that where the law firm had acted for the Plaintiff and associated companies, as a partner/solicitor in the firm, it followed so had the Judge. This contention is fundamentally misconceived.  It is well established by cases such as Bula Ltd v. Tara Mines Ltd. (No. 6); Harrison v. Charleton [2020] IECA 168 and most recently affirmed by the decision of the Court of Appeal in Promontoria (Finn) Limited & Anor v. Armstrong & Anor [2024] IECA 73, that the fact that a lawyer previously acted for a party is not in itself a barrier to the judge hearing a case in which the judge had no involvement.

 

123.                      In Bula Ltd v. Tara Mines Ltd. (No.6), there was an application before the Supreme Court to set aside its earlier judgment on the basis that two members of the court who had delivered the earlier judgment had acted for, and advised, two of the parties to the appeal some considerable number of years earlier.  In her judgment, Denham J. (as she then was), said (at p. 441):

 

"However, there is no need to go further than this jurisdiction where 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 applicant 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 that invokes the apprehension of a reasonable person." 

 

 

 

 

Denham J. further observed (at p. 445):

 

"Indeed, it was quite rightly accepted by the applicant that the mere fact that a judge when a practicing barrister acted for a party is not a bar to him or her acting as a judge in a subsequent case where that party is a party to the litigation.  The test for the court is more than a prior relationship of legal advisor and client." 

 

124.                      Denham J. concluded that something more than mere former provision of legal services to a party must be present to establish an impediment on the part of a judge hearing a case.  She said that the circumstances must be considered to see if they establish a cogent and rational link to meet the reasonable apprehension test.  The link must be relevant.  Similarly, in Harrison v. Charleton where, speaking for this Court, Noonan J. said:

 

"As these cases show, mere professional contact, even those involving a lawyer/client relationship are in themselves and without more, insufficient to raise an apprehension of bias."

 

125.                      More recently still, in Promontoria (Finn) Limited & Anor v. Armstrong & Anor, an extension of time to pursue an appeal was sought on grounds of objective bias of the judge arising from her position as solicitor and former managing partner in a law firm which had acted for a party to the litigation.  The Court of Appeal (Noonan J.) found that even were it the case that the High Court judge had acted in a professional capacity at some time in the past for a party, that, without more, would be insufficient to raise a real apprehension of objective bias.  However, in Promontoria (FINN) Limited & Anor v. Armstrong & Anor, the link was even more tenuous in that the judge had never personally acted for the party. 

 

126.                      In this case the evidence relied upon suggests that the law firm in which the Judge had worked provided legal services to the Plaintiff but just as in Promontoria (FINN) Limited & Anor v. Armstrong & Anor there is no evidence that the Judge himself ever did.  Further, there is no evidence that the law firm had any connection with these proceedings at any time.  The said law firm are not now nor never were on record in these proceedings and both the Plaintiff and Mars are represented by an entirely different law firm. 

 

127.                      In my view none of the authorities they cite avail the Defendants on this application.  Orange was a case where the bias alleged was against a regulator in proceedings by way of judicial review against a quasi-judicial or administrative law decision. It was not a case of setting aside a final order of the High Court or indeed the Supreme Court in refusing leave to appeal.  It is nonetheless a leading authority in relation to a challenge to a decision on grounds of bias and establishes that to set aside a decision in judicial review proceedings on the ground of objective bias, a court is not entitled to infer from the establishment of errors in the impugned decision, or the process leading to the decision, that the decision itself was vitiated by the existence of bias which could be equated to objective bias.  Consistent with the decisions in the Bula line of authorities considered above, objective bias falls to be made on foot of circumstances outside the actual decisions made in the case itself. 

 

128.                      Similarly, Spin Communications Ltd T/A Storm FM v Independent Radio & Television Commission (IRTC) & Or., was a case where bias was alleged against an administrative decision-maker.  In his judgment in Spin Communications, Murray J. agreed with Barron J. in Orange insofar as he found that for objective bias to be established, it must be shown that there existed some external factor extraneous to the decision-making process which could give rise to a reasonable apprehension that the decision-maker might have been biased.  Murray J. found that this external factor must exist prior to the decision made.  The existence of the extraneous factor must be proved as a fact on the balance of probabilities.  Murray J. adopted the dicta of Barron J. in Orange where he stated that the essence of bias is the existence of factors constituting a set of circumstances from which a reasonable observer might conclude that there was a real possibility that such a factor or factors would cause the decision-maker to seek a particular decision or which might inhibit him or her from making his or her decision impartially and independently without regard to such factor.  He added that objective bias is the perception, once all the facts are known, that the decision-maker could never give or have given a decision in relation to the issue uninfluenced by the particular relationship, interest or attitude.  

 

129.                      As for the final case cited by the Defendants, Goode Concrete v. CRH Plc, that case was an appeal to the Supreme Court, where there had been a recusal application to the High Court judge in the first instance.  In considering the appeal against a refusal to recuse in a case where a judge had a shareholding in one of the parties, the Supreme Court reiterated that test to be applied when considering the issue of perceived bias is objective.  The Supreme Court found that as it is an objective test, it invokes the reasonable apprehension of a reasonable person, who is in possession of all the relevant facts.  

 

130.                      Two points of significant distinction emerge when this case is considered in the light of the decision in Goode Concrete.  Firstly, as already noted, no recusal application was ever made in this case.  Secondly, and crucially, it is no part of the Defendants' case that the Learned High Court Judge had a shareholding in the Plaintiff.  This factor makes this case entirely distinguishable.

 

131.                      While the cases cited by the Defendants properly identify the test to be applied in deciding whether objective bias is present in a manner which is entirely consistent with the Bula line of authority relied upon by Mars, an application of the test on the facts and circumstances of this case does not support a conclusion that there has been a denial of justice in this case arising from an apprehension of bias, properly substantiated.

 

132.                      The caselaw establishes that no basis for an appearance of bias arises merely because the law firm in which the Learned High Court Judge worked as a solicitor acted for the Plaintiff or associated parties but the Defendants press their application in this case on the basis of the additional factor that selected public records upon which they rely in grounding the set aside application suggest that the Judge had an ongoing financial connection with his former law firm. 

 

133.                      As set out above, three such documents are exhibited.  Firstly, a B10 Change of Director Form which shows termination of the Judge's role as Director in November, 2019.  Secondly, an RBN2A Form notifying his removal as a partner for the purpose of the Register of Business Names pursuant to the provisions of s. 7 of the Registration of Business Names Act, 1963 dated April, 2021 and giving the 1^st of March, 2021, as the date of change particulars.  Finally, the Defendants rely on the B1 Annual Return to the Companies Registration Office up to April, 2020 which records the Learned High Court Judge's name under "List of Past and Present Members".

 

134.                      On its face, the RBN2A Form suggests that the Learned High Court Judge was only removed as partner some eighteen months post his resignation as director in November, 2019 and his appointment to the High Court in December, 2019.  There is, therefore, some apparent anomaly in the dates appearing on the face of this document.  It must be recalled, however, that the RBN2A Form itself is not proof that the Judge was still a partner in his former law firm following his appointment to the High Court.  While it is the statutory notification of the change, the obligation to file the return under s. 7 of the 1963 Act appears to rest on the partnership and not on the retiring partners with the result that the Judge as a retiring partner does not make the return and is not responsible for its contents. It is clear from the face of the RBN2A Form exhibited that the removal of some 10 partners was notified on one form.

 

135.                      As for the B1 Annual Return to April, 2020, it is recalled that the Learned High Court Judge only retired from the partnership in November, 2019, immediately prior to his appointment as a judge and within the 12-month period covered by the return.  While the B1 Annual Return for 2020 also records a shareholding in respect of the Judge without details of transfer, there is no information available in relation to the nature and function of the company and as to whether the shareholding subsists post resignation as director of the company or is transferrable. 

 

136.                      From the cases cited by both the Defendants and Mars, it is clear that whether these documents give rise to a reasonable apprehension of bias falls to be judged based on the knowledge and approach of the objective bystander.  The objective bystander is an independent observer who is not over-sensitive and who has knowledge of the facts.  More than a basis for suspicion is required.  As noted by O'Donnell J. in Kelly v. Minister for Agriculture, an application to set aside on grounds of bias should not be approached on the basis that if a suspicion can be stated, a decision must inevitably be set aside. 

 

137.                      While some questions arise from the face of the RBN2A Form, they are of a nature which might prompt further enquiry but are not such as would lead a reasonable person or the objective bystander to conclude that a sitting judge had still been partner in a law firm more than a year after his appointment as a judge and was therefore compromised in sitting as a judge in a case involving a client of that law firm.  The documents relied upon by the Defendants as a basis for their suspicions fall a long way short of establishing that the former law firm partner and now Judge has any ongoing financial interest in the company merely because the B1 Annual Return for 2020 is silent as to what happened to the shareholding in a company, the nature and function of which is unknown and from which the Judge had retired as director prior to appointment and the filing by the partnership of notice of termination of his partnership, giving a date which is not consistent with the date he assumed office as a judge. 

 

138.                      The reasonable, objective bystander considering whether these documents gave rise to an apprehension of bias would know that the Circuit Court had also held that the Defendants had no arguable ground of defence.  They would be aware that the Supreme Court reviewed matters raised and considered that there was no basis for concluding that the High Court Judge erred.  Furthermore, and importantly, the reasonable person or objective bystander is to be treated as understanding the judicial oath taken under the Constitution by all judges of the High Court on appointment and would appreciate the weight of the oath. 

 

 

139.                      A reasonable or objective person, properly informed of these surrounding factors and seeing what is contained in the forms relied upon by the Defendants would be likely to conclude that there is probably some other explanation for the dates appearing on the RBN2A Form.  Neither the dates on the RBN2A Form nor the absence of a record in relation to share transfer on the B1 Annual Return Form are such as to give rise to a reasonable apprehension, without more, of an ongoing connection between the Judge and former solicitor of a nature which might undermine his independence or warrant recusal. 

 

140.                      The weak probative value of the documents relied upon in demonstrating an ongoing connection between the Judge and his former law firm, the absence of any connection between the law firm (still less the Judge) and this action and the sheer implausibility of the contention at the heart of the Defendants' claim considered together do not meet the high threshold for the exercise of an exceptional set aside jurisdiction on grounds of bias, even if contrary to my primary conclusion, such a jurisdiction exists.

 

CONCLUSION

 

141.                      The application in this case is an ill-concealed attempt to re-run arguments already comprehensively addressed by both the Circuit and High Courts and in respect of which the Supreme Court has declined to entertain an appeal. 

 

142.                      I am satisfied that entertaining an application to set aside the final order of the High Court made in January, 2020 on the basis contended for would constitute a breach of rights to finality protected under the Constitution.  It would also transgress the constitutional order, comity of and hierarchy of the Courts where matters have proceeded to final determination in the High Court and leave to appeal has been refused by the Supreme Court.  

 

143.                      Accordingly, any attempt to invoke a jurisdiction to set aside proceedings on grounds of bias cannot be pursued before me in these proceedings where final orders have already been made by the High Court and the Supreme Court has refused leave to appeal.  If such a jurisdiction exists at all, it falls to be exercised by the Supreme Court on application to it or potentially in appropriately constituted proceedings seeking as primary relief the set aside of the order made. 

 

144.                      Even if I am incorrect in this, I am quite satisfied that no proper basis has been established for the exercise of an exceptional jurisdiction of the type identified in the Greendale line of authorities on the facts and circumstances of this case.

 

145.                      For all the reasons set out, I have ordered the joinder of Mars as Co-Plaintiff and having done so, I have determined that the application to set aside should be refused.