Ó Ceallaigh v An Bord Altrainais [2011] IESC 50: In December 2011, the Supreme Court unanimously dismissed an appeal by a domiciliary midwife from a High Court decision refusing to restrain the continuation of a professional misconduct hearing on the ground of objective bias.

The High Court had found that there was insufficient evidence of objective bias in circumstances here.  All that was adduced in this regard was that, during the professional misconduct hearing, it emerged that the chairperson of the tribunal worked at the same hospital as the principal expert witness who was giving evidence in support of the allegations of misconduct.  It had been submitted on behalf of the domiciliary midwife that a reasonable person, knowing the respective roles of the chairperson and the expert witness, would have a reasonable apprehension that the chairperson would not be able to find in favour of opinions that were in conflict with the opinions of the expert witness.

Speaking for the majority, Fennelly J noted that the law and principles in this area were settled and well-known, and were set out comprehensively and authoritatively in the judgments of Denham J, in Bula v Tara (No. 6) and Keane CJ in Orange Communications Limited v The Director of Telecommunications Regulation.

In both of these decisions, the courts held that the test to be applied was objective, and therefore whether a reasonable person in the circumstances would have had a reasonable apprehension or suspicion that the relevant decision-maker might have been biased.

The test is not whether the particular litigant subjectively apprehended bias; rather, it invokes the apprehension of the hypothetical reasonable person, sufficiently and appropriately well-informed with regard to relevant aspects of the circumstances.

Further, in the Bula case, Denham J added an important point, which was emphasised by the trial judge in the Ó Ceallaigh case, and which proved pivotal to the Supreme Court’s dismissal of the appeal in this case: in assessing objective bias, the “links must be cogent and rational”, and there must be a real and not a mere hypothetical or a speculative link between the association under consideration (in this case, the fact that the chairperson and the witness worked at the same hospital) and the apprehension of lack of impartiality being alleged.

Speaking for the majority of the Court, Fennelly J said that he could not discern any ground upon which the hypothetical objective, well-informed and reasonable observer would reasonably apprehend in the circumstances that the chairperson would not be able to bring a proper, independent and impartial mind and judgment to the task before her.  He also held that the fact that the chairperson did not disclose the relationship between herself and the expert witness concerned did not alter this conclusion.  In that regard, he stated that “[i]f a matter does not amount to objective bias, it does not become so by reason of not having been disclosed. No authority has been produced in support of the argument that failure to disclose a matter, which otherwise does not amount to a ground of objective bias, can amount to evidence of such bias.”