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Judge did not act inappropriately in adjourning application that he recuse himself from hearing case

By: Colm Scott Byrne BL

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Court of Appeal dismisses appeal and affirms decision of the High Court to adjourn with liberty to apply the appellant's application that the judge recuse himself from hearing the case, on the grounds that: (a) the trial judge made the decision to adjourn the motion, and neither refused to hear the motion nor rejected the application; (b) the trial judge acted fairly having regard to the interests of all of the parties; and (c) the decision of the trial judge to adjourn the motion generally with liberty to re-enter fell squarely within the margin of appreciation afforded to a trial judge in the conduct of proceedings, and the appellant had failed to establish that this discretion was exercised in so egregious a fashion as to imperil the administration of justice or prejudice the rights of the appellant such that the court ought to allow the appeal.

Costello J (nem diss): Appeal of a decision to adjourn the appellant's application that the trial judge recuse himself from hearing the case - concurrent wrongdoers - litigation arising out of a ponzi scheme perpetrated by Bernard L Maddoff - the appellant claimed the respondent was negligent and in breach of contract in its role as custodian under a custodian agreement - s.17(2) of the Civil Liability Act 1961 ("CLA") - the trial judge, following a hearing of a preliminary issue, ruled that the appellant and the perpetrator of the ponzi scheme were concurrent wrongdoers pursuant to s.11 of the CLA, that the settlement agreement entered into between the trustee in bankruptcy and the appellant amounted to an accord for the purposes of the CLA, that the law of New York had no application to determining the effect of the settlement agreement nor respective contributions, and that, as a concurrent wrongdoer, the appellant’s total claim against respondent is reduced by 100% pursuant to s.17(2) of the CLA - the appellant indicated that they wished to appeal this decision and if the appeal was unsuccessful, they intended to bring a constitutional challenge to the applicable provisions of the CLA - this meant the case would have to return to the High Court - the appellant also indicated that they sought to bring a motion requesting the trial judge to recuse himself from further involvement in the case if and when the case came back to the High Court following the appeal on the grounds of objective bias - the trial judge indicated that the appellant could bring a motion to that effect returnable for 19 December 2019 - on the 13 December 2018, in his chambers and without hearing any submissions from either of the parties, the trial judge decided that he would “not now”hear the motion - the trial judge gave his reasoning as the High Court would have to deal with a further hearing of the appellant's case at some point in the future, irrespective of the result of the appeal, and given the length of time it would take to come back to the High Court it was not the most efficient use of court resources when there were current and urgent issues to be dealt with in the High Court - the trial judge stated that he would hear the application when and if the matter came back before him - counsel for the appellant sought on two further occasions to have the trial judge hear the recusal motion - the trial judge indicated that he was not refusing to hear the motion but was not willing to hear it at that time - the trial judge gave the appellant liberty to apply if there was a change of circumstances - whether the order of 21 December 2018 and the decisions of 16 January 2019 and 22 January 2019 are tantamount to a refusal by the trial judge to hear the recusal motion - whether the trial judge had failed to deal with and hear the recusal motion in a manner consistent with the appellant’s right to a fair trial within a reasonable time, and the appellant’s constitutional right to appeal - whether the trial judge the trial judge erred in fact and in law in failing to recuse himself from any further hearing of the within proceedings as a reasonable person in possession of all the relevant facts would have a reasonable apprehension that the appellant would not obtain a fair trial - the trial judge adjourned the appellant’s application that the trial judge recuse himself from further hearing of the proceedings generally with liberty to apply and hose decisions were not tantamount to declining, or refusing, to hear the motion - the appellant had not established that it is greatly prejudiced by the decision or, indeed, that the progress of the proceedings will be unduly delayed as a result of the decision - court did not engage with the substance of the motion - appeal dismissed.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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