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Kenny v Trinity College Dublin, [2007] IESC 42; [2008] 1 ILRM 241, was an Irish Supreme Court case in which the Court set aside it's own judgment after findings that it may have been tainted with "objective bias."

Background
Proceedings were initially brought in December 2000 by the appellant, who sought judicial review to challenge a decision of An Bord Pleanála to grant planning permission to Trinity College to build student accommodation at Dartry Hall. This application was rejected. In November 2002, the appellant asked the High Court to rehear his application, claiming that Trinity College had concealed a number of things from the court in the previous hearing. In March 2003, Trinity College applied to the High Court to have the proceeding's brought by Mr Kenny struck out, but this application was refused. Trinity College appealed this refusal to the Supreme Court, and in June 2003, Mr Justice Murray allowed the appeal and ordered that Mr Kenny's claims against Trinity College be struck out.

A number of years later, in the summer of 2006, Mr Kenny became aware that Mr Justice Murray, who had heard the appeal, had a brother who was a partner in Murray O'Laoire Architecture. Murray O'Laoire was the firm which had been employed to design the student accommodation at the heart of the case, and they were alleged to have aided Trinity College in concealing material from the court in earlier proceedings. Thus, in January 2007, Mr Kenny applied to the Supreme Court for an order vacating the earlier Supreme Court decision on the grounds of objective bias.

Holding of the Supreme Court
At the Supreme Court, an affidavit was presented by Mr Kenny which stated the following:  "'In the course of the summer 2006, I became aware of the fact that one of the Supreme Court judges who had heard the appeal, namely Murray J., is a brother of a partner in Murray O'Laoire, which had designed the Trinity Hall development, which firm's name appeared on virtually all the documents which were before the Supreme Court, including affidavits from the project architect, Ms G. Boyle, who is identified in her affidavits as being a member of the Murray O'Laoire firm. Also, the Murray O'Laoire name appeared clearly on all the plans which Ms Boyle exhibited and lodged in both the High Court and the Supreme Court.'"Fennelly J., delivering the decision of the Supreme Court, sought to examine whether the facts were sufficient enough to establish a claim of objective bias. Fennelly J draws from the words of Denham J in Bula Ltd. v Tara Mines Limited and others in describing the test for objective bias:  "'…it is well established that the test to be applied is objective, it is whether a reasonable person in the circumstances would have a reasonable apprehension that the applicants would not have a fair hearing from an impartial judge on the issues. The test does not invoke the apprehension of the judge or judges. Nor does it invoke the apprehension of any party. It is an objective test - it invokes the apprehension of the reasonable person.' "Fennelly J. describes how the test for objective bias must take into account the circumstances of each individual case. In the case at hand, the Court was being asked to strike out one of it's own judgments on the grounds that it may have been tainted by objective bias. Thus, Fennelly J explains, to ensure the principle that "justice must not only be done but must be seen to be done" is adhered to, the court must err on the side of caution.

Further, Fennelly J. cited a passage from Locabail (U.K.) Ltd. v. Bayfield Properties Ltd (and approved in Orange Communications Ltd. v Director of Telecommunications Regulation ) which states:  "'...a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case.'"Thus, Fennelly J concludes that the relationship giving grounds for objective bias need not be between an adjudicator and a party to the case, but can be between, for example, an adjudicator and a witness to the case. The question here was whether a reasonable observer might have a reasonable apprehension that a judge, hearing allegations made against a firm of architects in which his brother was a member, might find it difficult to maintain impartiality. Owing to the facts, and the need for the Court to be careful when considering one of it's own judgments, Fennelly J found that a reasonable apprehension would be well grounded, and the test for objective bias was satisfied. Thus, the Court made an order setting aside the previous order from June 2003, which had the effect of reinstating Mr Kenny's appeal from the order of the High Court.

Subsequent developments
This case was subsequently applied in Denis O'Brien and Dermot Desmond v Moriarty Tribunal and E.P.I. and Others v Minister for Justice Equality and Law Reform.

Background
This case was an appeal from judicial review proceedings brought by Mr O'Callaghan (hereinafter the applicant) before the High Court, which were refused. The circumstances surrounding the proceedings are as follows; On the 3rd of March 2004, Mr Tom Gilmartin began giving evidence at a Public Hearing of the Tribunal on Quarryvale I. During proceedings, Mr Gilmartin made serious allegations against the applicant. It subsequently emerged that the Tribunal held documents relating to these allegations, and which may have vindicated the applicant. On the 24th of March 2004, the Tribunal ruled that these documents were confidential and would therefore not be made available.

The applicant therefore commenced proceedings, and in the first case before the Supreme Court, ''O'Callaghan & Ors. v. Mahon and Ors.'' [2005] IESC 9, the Court ruled that the applicant had been denied his constitutional rights and granted the relief sought. Subsequent proceedings took place before the High Court, and a number of alterations were made to the documents. The applicant argued that the documents (which had since been disclosed) contained a number of matters inconsistent with the statements of Mr Gilmartin, and that such inconsistencies were significant.

Judgment delivered by Denham J.
In the Supreme Court judgment by Denham J., the judge mentioned her inclination to dismiss the appeal with one sentence, and affirm the judgment of the High Court. However, so that justice could be seen to be done, Denham J addressed a number of issues, and in essence systematically broke down each of the forty grounds of appeal.

Ultimately, Denham J. stated that the court should be slow to intervene in these cases, and that it was undesirable for such reviews of rulings made by tribunals to take place while the tribunal hearings were still running. Denham J held that the applicant had not established bias or prejudgment by the Tribunal, and therefore there was no basis to prevent the Tribunal from proceeding with its work.

Judgment delivered by Fennelly J.
In his judgment, Fennelly J. agreed with Denham J. and concluded that the appellant could not establish a case for objective bias based on a series of adverse decisions by the Tribunal. Furthermore, Fennelly J. held that a reasonable and fair-minded impartial observer, in possession of all the facts, would not have held the reasonable apprehension that the Tribunal had predetermined any matter. Ultimately, Fennelly J. dismissed the appeal and affirmed the order of the High Court.

Judgment delivered by Hardiman J. (dissenting)
Hardiman J, looked at whether objective bias was present in the Tribunal’s withholding of information. Hardiman J. cited a passage in O’Neill v. Beaumont Hospital Board [1990] ILRM 419 as the test to be applied, namely whether a reasonable man “should apprehend that his chance of a fair and independent hearing of the question… does not exist by reason of the pre-judgement of the issues which are involved… by the members of the Board.” Furthermore, Denham J. cited the following passage from the  Irish Supreme Court case of Well Woman Centre Ltd. v. Ireland, The Attorney General and the Society for the Protection of the Unborn Child (Ireland) Ltd. [1995] 1 ILRM 408:"“It is a fundamental and age old concept in common law that justice must manifestly and visibly be seen to be done. It is expressed now as constitutional justice. In cases such as this where many reasonable people in our community hold strong opinions, it is of particular importance that neither party should have any reasonable reason to apprehend bias in the courts of justice. Further, once the question of a possible perception of bias has been raised reasonably on the grounds of pre-existing non-judicial position and actions, it would be contrary to constitutional justice to proceed with a trial.”"Hardiman J. ruled that the applicant had not been treated fairly by the Tribunal, as the Tribunal began its public hearings into Quarryvale I by withholding certain facts contained in withheld documents. Hardiman J. stated that her conclusion from the withholding of these documents was that the Tribunal have prejudged vital issues. The reason for withholding the documents, Hardiman J. found, was to protect Mr Gilmartin and hinder those who dispute what he says. Hardiman J. concluded that the applicant was not likely to be treated with fairness by the Tribunal, and that a reasonable observer would have reasonable apprehensions of objective bias. For these reasons, Hardiman J. wished to allow the appeal.

Subsequent developments
This ruling from the Irish Supreme Court was subsequently applied in the cases of N.K. v S.K. [2017] IECA 1, Commissioner of an Garda Síochána v Penfield Enterprises Ltd [2016] IECA 141 and Nurendale Ltd t/a Panda Waste Services v Dublin City Council [2009] IEHC 588.