Judge rejects ‘offensive’ claim of bias against woman in family row

A High Court judge has ruled he was neither "sanctimonious" nor biased when dealing with a case involving a family dispute involving an estrange couple.

During the case, counsel had alleged a “ruthless” mother-in-law devised a scheme leading to her daughter-in-law relinquishing for €350,000 her share of a nursing home business operated with her estranged husband. The husband was described by counsel as a “pallid emanation” of his mother.

Mr Justice David Keane said he had not expressed scepticism about the case made by the woman in her proceedings against her estranged husband.

He described as “offensive nonsense” a suggestion by Frank Callanan SC, for the woman, that the judge indicated to lawyers via a “secret code” involving non-verbal conduct including allegedly stopping listening to the woman while she was giving evidence and looking at his mobile phone, that he disbelieved her or had prejudged the case against her.

He had briefly consulted his phone, upon which he kept his court diary and through which he received communications form his judicial assistant, he said.

He made the comments in a judgment refusing Mr Callanan’s application to recuse himself from further hearing the action.

In her action, the woman sought orders for recission of an agreement entered into with her husband in December 2004 which provided she would relinquish her share in the nursing home business for €350,000. The husband denied her claims that agreement was procured by misrepresentation of application of undue influence or duress or a combination of such factors.

When the case opened on April 21st last, the judge suggested the issues might be best addressed in the context of family law proceedings, initiated by the man some years earlier, but not yet brought on for trial.

When told the parties had agreed the woman’s case should be decided first, the judge permitted the case proceed. The judge said he again intervened during the opening of the case when correspondence was read out touching on family law issues. His concern was the case, unlike family law proceedings, was being heard in public. While somewhat reassured on being told the couple’s three children are now all adults, privacy interests were not solely the concern of children, he said.

Mr Callanan applied to the judge to recuse himself from the case on grounds including remarks by the judge to the woman when she was giving evidence in response to her noting the court’s concern about the couple’s children.

The judge told her he was concerned about matters being expressed in open court, which the media were free to report on, when it was being suggested, for example, a mother in law was a “ruthless” woman.

At that point, Mr Callanan intervened to say those were “my words” and he took the “gravest possible exception” to the judge’s “interference with my role as a counsel in presenting an extremely difficult case”.

Mr Callanan later said he was very concerned about the trend of the judge’s comments in the case and ultimately sought a recusal.

In his decision refusing that, the judge said Mr Callanan sought recusal on three grounds, the first being the judge had  “sanctimoniously” objected to his describing the woman’s mother in law as ruthless.

The second ground was based on arguments by Mr Callanan the judge had made statements, put questions and adopted a general demeanour intended to convey he disbelieved the woman’s testimony. Mr Callanan said this conduct was indicative of a “time-honoured code” supposed to be understood by counsel and he, counsel, wanted to say “the day there is one language spoken in court between lawyers, and another between the people of Ireland, is over”.

The third ground was based on arguments the judge had gone too close to expressing a concluded view the woman could not go beyond the debts of the nursing home or expect the court to do so.

Dismissing all three grounds, the judge said it was “deeply regrettable” counsel should resort to “ad hominem invective” in accusing the court of sanctimony, an allegation for others to judge which added nothing to the legal argument.

No reasonable person could apprehend the court, in correcting a misunderstanding of Ms McCormack’s, had acted in the manner alleged, he said.

The assertions he made comments, asked questions and adopted a demeanour designed to communicate to lawyers, but not others, in a secret code he had prejudged the action against Ms McCormack “are an offensive nonsense and are wrong”. He knew of no such code, he added.

The judge said Mr Callanan had contrasted his own lengthy experience in practice with the judge’s “brief tenure” on the bench. It was “surprisingly frequently” the lot of less experienced judges to be presented with arguments which, instead of resting on legal authority, were based on the suggestion appropriate deference is due to the greater experience of the counsel making them.

The assertions by counsel on behalf of his client appeared to amount to an allegation of subjective bias but the conceptual basis upon which the application was pursued was not addressed, he said.

For avoidance of doubt, the court harboured “no prejudgment or bias of any kind” towards the woman.