Peter Kelly makes ‘appropriate and sensible’ decision to resign as Dubai court judge following Frank Clarke’s resignation

Former High Court president says he does not want controversy over appointment to Gulf court to disrupt his future time in retirement

Former High Court president Peter Kelly’s decision to resign as a judge of the Dubai International Financial Centre Courts (DIFC) came just hours after the Gulf court removed all references to former chief justice Frank Clarke, following his resignation at the weekend.

Mr Kelly told The Irish Times on Tuesday afternoon: “I have decided to resign from the Court of Appeal of the DIFC since, as a private citizen, I do not want this controversy to disrupt my future time in retirement.”

Mr Kelly, who had to retire two years ago as he had reached the age of 70, added that he will not be making any further comment.

Former Irish chief justice Frank Clarke announced on Saturday that he had submitted his resignation as a judge of the Court of Appeal of the DIFC courts.

Both retired Irish judges were among four judges appointed last Tuesday to the DIFC courts, in a virtual swearing-in ceremony, by Sheikh Mohammed bin Rashid Al Maktoum, vice-president and prime minister of the United Arab Emirates, ruler of Dubai and president of the DIFC courts. The website of the courts on Tuesday stated that just “three new judges” were appointed, without mentioning Mr Clarke’s name.

The DIFC courts, which began operating in 2006, were set up to serve international institutions operating in Dubai and the UAE. Unlike the rest of Dubai, they do not operate sharia law but are an independent English language common law judiciary based in the DIFC, with jurisdiction governing civil and commercial disputes nationally and worldwide.

The two retired Irish judges were the first Irish appointees to the DIFC courts and news of their appointment provoked a mixed reaction in legal circles here, with most critics highlighting the poor human rights record of the UAE and some voicing concern about a perceived commercialisation of the judicial office. Others said the retired judges are private citizens and believed the appointments would enhance the international reputation of the Irish legal system.

Labour Party leader Ivana Bacik was among the critics and expressed particular concern about Mr Clarke being a judge of the DIFC courts as well as the newly appointed president of the Law Reform Commission, a statutory body.

Ms Bacik said her main concern was about Mr Clarke holding the position of a judge in the DIFC courts — courts she regarded as “a mechanism to support an oppressive regime” — while also being president of the LRC, a State body. “There is a deliberate strategy by that regime to use respected former judges as a way to legitimise it,” she said.

On Saturday, Mr Clarke said in a statement he had submitted his resignation as a judge of the DIFC courts to the chief justice of that court.

He said: “Ireland and many Irish companies do significant business in and with Dubai and in that context it is important that there be an independent and trusted dispute resolution system available to those companies.”

The statement continued: “However, I am concerned that the current controversy could impact on the important work of the Law Reform Commission to which I am committed.” In those circumstances, he said he had submitted his resignation as a judge of the DIFC courts.

Commenting on Tuesday, Ms Bacik told The Irish Times that Mr Kelly had made “an appropriate and sensible decision” in resigning from the DIFC courts.

She praised the two former Irish judges for moving “very swiftly” in response to the backlash in recent days to resign from the appointments.

An announcement posted by DIFC on its website on Tuesday concerning the recent appointments of new judges omitted any reference to Mr Clarke having been among last week’s appointees.

On July 27th, the DIFC courts had posted that Mr Clarke, along with Mr Kelly, William Young, a retired New Zealand court judge, and Michael Black QC had been sworn in as judges of the court of appeal of the DIFC courts.

In the announcement posted on Tuesday, but dated July 27th, 2022, it is stated that Sheikh Al Maktoum has appointed three new judges of the DIFC courts in a virtual swearing-in ceremony.

The announcement stated: “Judge Peter Kelly, William Young and Michael Black express their gratitude for the opportunity to be part of the courts.

It further stated: “DIFC courts, which is considered the foremost English language common law jurisdiction in the region, offers a transparent and independent legal environment led by distinguished internationally renowned judges.”

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times