Peter Kelly a surprise appointment as High Court president

Analysis: Judge was at the centre of a major row with the Coalition only two years ago

Mr Justice Peter Kelly: is expected to set about applying in the High Court the demanding standards he imposed in the Commercial Court. Photograph: Colin Keegan/Collins

Mr Justice Peter Kelly: is expected to set about applying in the High Court the demanding standards he imposed in the Commercial Court. Photograph: Colin Keegan/Collins

 

A striking aspect of the Government’s decision to nominate Mr Justice Peter Kelly (65) as the next president of the High Court is that he was at the centre of a major row with the Coalition only two years ago.

The pre-announcement speculation was that Mr Justice George Birmingham of the Court of Appeal or Mr Justice Kevin Cross, who served recently as chairman of the referendum commission for the marriage equality referendum, were the most likely to be promoted.

Mr Justice Cross was said to be Taoiseach Enda Kenny’s preferred choice, while others said there was more support within the Cabinet for Mr Justice Birmingham, who is a former Fine Gael TD and junior minister.

When no announcement was made after the Cabinet meeting on December 8th, the speculation around Leinster House switched to the Attorney General, Máire Whelan SC.

Widely respected

There was widespread surprise when Mr Justice Kelly’s nomination was announced after last Tuesday’s Cabinet meeting, but also general acknowledgment he was eminently suitable for the job.

“He is fiercely independent and apolitical and has crossed swords with the Government a number of times over the years.

“Yet he is widely respected and his integrity is recognised,” said a legal source who knows him well.

“His appointment has been hugely welcomed throughout the judiciary and people are looking forward to what he will do [with the job]. I expect he will hit the ground running.”

Ken Murphy of the Law Society noted: “He is a fearlessly independent judge with a ferocious work ethic, a first-class legal mind and an utter commitment to the highest of standards from himself and others.”

But will someone as hard- working, forceful and independent as Mr Justice Kelly assert the court’s independence in ways that some future government might find challenging? It remains to be seen.

The judge was involved in a very public spat with the then Fianna Fáil-Progressive Democrats government in 2000 in relation to the care of a troubled teenage girl whose case had come before his court.

The teenager had twice tried to hang herself and had at one stage been held in the locked ward of an adult psychiatric hospital with 29 mentally ill adults.

Threat

Mr Justice Kelly directed that if a suitable place of detention was not found for the girl, he would hold three government ministers in contempt.

The government viewed the threat as an unprecedented encroachment by the courts into its business.

The situation was defused when a place was found for the girl.

Two years ago he was at the centre of another public row when he was reported as having said judicial independence was being removed “brick by brick” by the Government.

At the time the Coalition was targeting the pay and conditions of judges as part of its response to the economic crisis, and the judges were feeling aggrieved about a perceived lack of consultation.

It was a very serious falling out between two pillars of the establishment.

Mr Justice Kelly was the head of the Commercial Court, the fast-track court he took over upon its establishment in 2004 and where he adopted a policy of active case management.

This meant that, from the outset, the two sides in a dispute would be given a demanding timetable to which they had to adhere.

Raised eyebrows

He frequently interrupted counsel to tell them he had read the documents in the case and ask if there was any particular point they wanted to make when addressing him.

On occasion when a barrister appeared less than well-prepared, the judge’s raised eyebrows would not go unnoticed and a sharp comment might be thrown in for good measure.

There was some surprise when it was reported early last year he was considering retirement.

Appointed to the bench in 1996, he can continue in office until he is 72.

Morale affected

According to one source, morale among judges at the time had been affected by relations with the then minister for justice, Alan Shatter, and the perception he was not sympathetic towards the judiciary.

Matters have since improved, and an invitation to join the Court of Appeal, the new court established last year as part of a major shake-up of the courts system, probably renewed Mr Justice Kelly’s relish for his job, one source said.

The establishment of the Court of Appeal is a major contributor to the challenge he faces as president of the High Court.

Of the 37 judges in the High Court, 27 have been appointed since 2012, with 17 appointed in 2014 alone.

In that year nine High Court judges were elevated to the Court of Appeal, one to the Supreme Court, and six retired. Such a huge influx of new judges is unprecedented.

It is expected Mr Justice Kelly in his new post will set about applying the demanding standards he imposed in the Commercial Court.

This is likely to involve active case management and other efficiencies, including increased electronic filing of documents, which is already being tried out in the area of personal insolvency.

His new role includes deciding which judges hear which cases.

Mr Justice Kelly is single, lives in south Dublin, enjoys singing and has a good tenor voice.

He is chairman of the Edmund Rice Schools Trust, to which schools formerly owned by the Irish Christian Brothers were transferred some years ago.

He is also chairman of the St Francis Hospice in Dublin.