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Legal affairs

Fraudulent developer implausibly tried to impugn Supreme Court judge

Village is loth to get into the salaciousness that drives the professional classes in decadent Dublin.

Nevertheless the integrity of the judiciary, and indeed the perception of that integrity, has to be beyond doubt and a story unfortunately came our way which challenged it, anonymously, and was accompanied by affidavits submitted for in camera family proceedings.

A bankrupt developer with an alpha personality and omega ethics alleged in the affidavits, which he was never allowed to open in court, that Irish High Court and Supreme Court judgments against him were tainted with bias because the lead Supreme Court judge in his case had an alleged affair affair with the High Court Judge who determined the matter originally, and that the Supreme Court judge anyway had shown in dealings with him in the judge’s former life as a barrister, that he despised him.

The developer’s affidavits are clumsily drafted and he is careless as to whether the relationship may have continued at times when the Supreme Court judge heard the action – on occasion fudging the tenses about the timing of the relationship.

Nevertheless as a matter of fact the relationship had ended by the time of the Supreme Court hearing, even if it had subsisted, insignificantly and irrelevantly, during the High Court hearing.

The High Court judgment was persuasively damning of the developer personally, finding he had deliberately and fraudulently failed to make certain disclosures and misled the court and his ex-wife. The developer claimed he had been in the process of preparing disclosures when a settlement was reached that obviated the necessity for him to make the disclosures. But the High Court, on the facts, said there was no evidence of this. He had engaged in litigation misconduct.

The appeal was fast-tracked to the Supreme Court but took four years to be heard.

At the last minute, the Supreme Court panel of judges was apparently changed, with the particular Supreme Court justice who had allegedly had the affair stepping in to replace a judge who had been originally listed to sit. The developer claims to have been wrong-footed by the change between the judges and would have aimed to pre-empt the Supreme Court judge sitting on the matter had he known he intended to do so. He claims he had already advised his solicitor of the potential for the judge being compromised. His legal team noted that day one of a two-day appeal was already over, and they didn’t dare question the judicial etiquette.

The Supreme Court upheld all the High Court’s substantive reasoning.

When the judge endorsed his alleged former lover’s strong judgment without – according to the developer – “canvassing” all the developer’s fundamental grounds, the developer sought redress on grounds that there was a reasonable suspicion of objective or apprehended bias. Justice must not just be done but be seen to be done, was the cry.

However, these days thankfully an alleged affair between judges that may have been finished for years does not constitute, or rather does not necessarily constitute, a reason for the appellate judge to refuse to hear an appeal of his former lover’s judgment.

For obvious reasons the developer had difficulty getting any Irish lawyers to take on his prurient case. In the end he sought help from UK barristers but ultimately the Official Assignee in Bankruptcy successfully objected to the developer taking a judicial-bias challenge because he was bankrupt and therefore lacked the standing to take the case. The Assignee in Bankruptcy took the reasonable stance that even if the judgments were overturned it would not be appropriate for the Assignee, who alone could take the decision do so, to refight the substantive issues of fraud, failed disclosure etc on the part of the dubious developer.

Even if the unsubstantiated allegation of bias could be proved, it would achieve nothing, for the case was not worth re-running.

Michael Smith