THE HIGH Court judge Mr Justice Peter Kelly has rejected Ryanair’s claim he is objectively biased against it because of a comment by him in an earlier case that the truth and Ryanair make “uncomfortable bedfellows”.
However, as Ryanair was likely to appeal to the Supreme Court if he continued to hear another case involving it, resulting in further delays of more than three years in that case, which would not be in the interests of the other party, justice or the Commercial Court’s objective of speedy resolution of disputes, Mr Justice Kelly said he would no longer hear that case.
On those grounds only, the particular case – in which Ryanair is suing a coach company, Terravision London Finance Ltd, for about €7 million over alleged breach of a marketing contract – will be allocated next week to another Commercial Court judge, Mr Justice Kelly, who manages the Commercial Court list, said.
Any misrepresentation or “spin” of his judgment would be treated as contempt of court, he warned.
He was giving his reserved judgment on Ryanair’s motion for him to recuse himself from hearing the proceedings against Terravision. That company had opposed the Ryanair application.
In an affidavit supporting the motion, Ryanair chief executive Michael O’Leary said Mr Justice Kelly’s remarks about the truth and Ryanair were made in other proceedings where the judge dismissed Ryanair’s bid for judicial review of the aviation regulator’s decision on new charges at Dublin airport.
It was clear Mr Justice Kelly in that case expressed a conclusion and/or belief that Ryanair did not tell the truth, Mr O’Leary said. That view was not confined to particular persons within Ryanair, he said.
Given the judge’s remarks, Ryanair had an apprehension its version of the facts in the Terravision case would not be accepted or favoured by Mr Justice Kelly, Mr O’Leary added.
In his judgment yesterday, Mr Justice Kelly noted that no allegation of actual bias was being made against him.
Ryanair was rather alleging objective bias arising from his “uncomfortable bedfellows” remark of June 4th 2010 in the previous judicial review proceedings, he added.
Counsel for Ryanair had accepted, in the judicial review case, it had told untruths to the court, about the court and about the then transport minister, the judge noted.
A number of those untruths were contained in communications made by Mr O’Leary, he added.
Given that acknowledgment, he had asked counsel for Ryanair in this case what was wrong with his conclusion about the truth and Ryanair being uncomfortable bedfellows and was told the judge’s reference to “Ryanair” effectively globalised his conclusion to the entire Ryanair organisation of about 8,000 employees.
From counsel’s arguments, it seemed, had he concluded the truth and Mr O’Leary were uncomfortable bedfellows, this application to recuse himself from hearing the Terravision case would not have resulted, the judge said. (“Recuse” is a legal term for when a judge disqualifies or removes himself from a case. )
He had not personalised his conclusion in the judicial review case because, on each occasion of Mr O’Leary’s untruthfulness in that case, Mr O’Leary was acting in his capacity as chief executive of Ryanair.
Mr O’Leary may be a man “of complete probity” when dealing with his personal affairs, the judge said.
He (the judge) simply did not know because there was no evidence about Mr O’Leary’s approach to his personal affairs and, in those circumstances, it would not have been appropriate to personalise his conclusion.
The judge went on to analyse the evidence and the legal authorities on objective bias.
He concluded, in the circumstances, including Ryanair’s acceptance that it had told untruths in the judicial review, there were no grounds for Ryanair’s claim he was objectively biased against it.
The test for objective bias was whether a reasonable and fair-minded objective observer would have a reasonable apprehension of objective bias, not whether Ryanair itself had an apprehension of bias, he said.
Ryanair’s apprehensions about the judge’s continued involvement in the Terravision litigation “entirely misunderstood” that legal position.
The only way a reasonable, objective observer could conclude the judge’s “uncomfortable bedfellows” comment could give rise to a reasonable apprehension of bias against Ryanair in this case was if the comment was interpreted as a criticism of about 7,999 Ryanair employees, he said.
Such an interpretation would be “far-fetched” and would ignore the factual matrix against which the comment was made.
The fact Mr O’Leary would not be a witness in the Terravision case supported his finding, he added.
