Issue 39 October 2021 - Journal - Page 114
Caesar’s Wife no Longer
the Exemplar in Bias Cases?
In Kelly v Minister for Agriculture and Others the Supreme Court quashed
the Cabinet’s decision to dismiss the applicant from his position as harbour
master at Killybegs Fishery Harbour Centre. A Minister (who was also a local
TD) was involved in both raising complaints against the applicant and, in the
Cabinet decision-making process which followed. This “twin involvement” of
the Minister was found by the Supreme Court to constitute objective bias and so
the decision to dismiss the civil servant was quashed.
the case raised issues of law of general public
importance relating to the test for bias.
The applicant was appointed harbour master at the
Killybegs Fishery Harbour Centre in 1996. A complaint arose around the applicant providing pilotage
services through a company of which he was a director and a 1% shareholder. The Department of the Marine and Natural Resources (“the Department”)
decided to investigate, appointing the personnel officer of the Department as the investigator in 2004.
Supreme Court Decision
For actual bias to be established, a decision-maker
must be “influenced by some existing relationship, interests,
or attitude, without which the decision would be different.”
In addition, the influencing factor on the decisionmaker must be one that pre-dates and is external to
the decision making process. In essence, the applicant
must prove “the decision-maker was deliberately setting out
to hold against a particular party, irrespective of the evidence.”
Due to these requirements, “an allegation of actual bias
is rarely likely to succeed”
Separately, a Minister (who was also a local TD) made
unrelated complaints with reference to the applicant.
The Minister then attended a meeting in 2004 with
the investigator, at which the Minister outlined a wider
range of complaints in relation to the applicant.
Thereafter, various matters were investigated,
resulting in a final report by the investigator recommending dismissal. This was appealed to the Civil Service Appeal Board. The Appeal Board did not accept
that the applicant would not derive any benefit from
his pilotage work. The Appeal Board did not disturb
the recommendation of dismissal in respect of this
matter. The Appeal Board also upheld the investigator’s findings concerning the other complaints, but
disagreed with the investigator that these grounds
were sufficiently serious to justify dismissal.
Dunne J discussed several factors as to why there was
no actual bias on this occasion: the investigating officer had no pre-existing relationship/attitude towards
the applicant, the decision to investigate the applicant
had been made before the meeting between the Minister and the investigator in 2004, the matters complained of by the Minister did not form part of the
subsequent investigation and the Minister’s involvement was included in the chronology presented to the
Appeal Board (i.e. it was not concealed). Dunne J concluded that “there is simply no evidence to support
the contention that [the investigating officer] was so
influenced by the meeting with the Minister that he
deliberately found against Mr Kelly”. All Supreme
Court Judges agreed with Dunne J that actual bias was
not present in this case.
In 2009, the Cabinet met, including the Minister who
had made complaints about the applicant. The Cabinet decided to dismiss the applicant. The applicant
applied to judicially review his dismissal, on the basis
that the decision was affected by actual bias and objective bias. The applicant predominantly focused on
two claims when presenting his case; the meeting of
the Minister and the investigator in 2004 tainted the
disciplinary process which followed, and the fact that
the same Minister who had made the complaints in
2004, participated in a Cabinet meeting in 2009 which
decided that the applicant should be dismissed from
his civil service position.
As stated by Denham J in Bula Mines Ltd v Tara Mines Ltd
(no. 6), the test for objective bias is “whether a
reasonable person in the circumstances would have a
reasonable apprehension that the applicant would not
have a fair hearing from an impartial judge on the
On the question of objective bias, the Supreme Court
considered both the Minister’s participation in the
Cabinet meeting at which the decision was made to
dismiss the applicant and the Minister’s meeting with
the investigator in 2004 that preceded the dismissal.
The High Court refused the applicant’s application,
and the Court of Appeal upheld this decision of the
High Court. Leave was given to appeal the decision to
the Supreme Court. In granting leave to appeal to the
Supreme Court, the Supreme Court considered that
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