O’Driscoll v Hurley: Will judge’s appearance at law firm’s event imply bias towards that firm?

On Monday, 18th April, a seven judge panel of the Supreme Court will hear argument in O’Driscoll (a minor) v Hurley and the Health Service Executive on whether a public appearance by a judge at a conference organised by a law firm disqualified her from hearing an appeal where that law firm is representing one of the parties.

Background

The High Court awarded O’Driscoll €50,000 in damages for a negligently performed appendectomy. O’Driscoll lodged an appeal against the amount of damages to the Court of Appeal. His application for a hearing of a preliminary issue, that Invine J recuse herself from hearing the case, was refused. The grounds for seeking Irvine J to recuse herself was alleged objective bias, as the Judge had spoken at and chaired a private conference promoted by the solicitors representing the Defendants, and she was pictured in a photograph with the head of the State Claims Agency on the solicitors’ website.

In her judgment for the Court of Appeal (here), Irvine J dismissed O’Driscoll’s appeal, stating:

86. It follows that if a prior legal relationship between a legal advisor and client does not in itself disqualify the prior adviser acting as a judge in a matter to which the client is a party (Bula) or it is accepted that a close family member may appear qua counsel or solicitor before a judge does not of itself give rise to a reasonable apprehension of bias (O’Reilly), it necessarily follows that the mere fact that a judge participated in a public seminar on an aspect of medical negligence litigation organised over a year previously by the defendant’s solicitors firm could not be objectionable. No reasonable person aware of the true facts would consider that the outcome of the proceedings might be affected simply by reason of my participation in that seminar.

O’Driscoll applied to the Supreme Court for leave to appeal. In its determination (here), the Supreme Court granted O’Driscoll leave to appeal on the question of: Whether a judge is disqualified from sitting on a hearing, or on an appeal, on the grounds alleged, or any of them?

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