Judge steps back from CRH case

A High Court judge has said he will cease managing a long-running action by Goode Concrete against cement giant CRH and other companies over alleged anti-competitive practices after the Goode firm expressed concern that the purchase of CRH shares on behalf of the judge raised a reasonable apprehension of objective bias.

Mr Justice John Cooke today stressed he had told the sides in November 2010, when he took up the case, he had had a CRH shareholding, but neither side had raised any difficulty with this.

The judge said he was unaware at that time that shares in CRH were also about to be bought on his behalf by advisers as part of a package of several shareholdings. It seemed, from investigations by the Goode side, that this purchase was made on December 6th, 2010, but he was unaware of it, he said.

This motion for him to recuse himself from hearing the case was not necessary as, if anyone had had "the courtesy" to point out the issue to him, he would have dealt with it immediately and "quite happily" have saved himself the task of three written judgments (on pre-trial issues in the proceedings to date), he said.

Now that concern had been voiced, the case would have to be transferred to another judge, he said. That would take time, and in all the circumstances, he would adjourn it generally with liberty to either side to re-enter.

John Hennessy SC, for Goode Concrete, said he was grateful to the judge for the "candour" with which he had addressed the matter. Counsel said he wanted to make clear no insinuation was intended there was anything wrongful in what the court did, and the application for the judge to recuse himself from hearing the case was on the basis of a reasonable apprehension of objective bias.

When Mr Justice Cooke repeated he had referred on November 26th, 2010, to the CRH shareholding and asked whether there was any problem, Mr Hennessy said Mr Peter Goode was in court that day and did not perceive a problem at that point. Given the information since then, his side had brought this motion, counsel said.

Paul Sreenan SC, for CRH, said the issue was for the court, but his side was not to be taken as agreeing there was any basis for the application.

The matter was before Mr Justice Cooke today after the Goode firm brought a motion seeking the judge recuse himself from dealing further with the case on grounds of a reasonable apprehension of objective bias arising from the share purchase.

It seemed, two years after he had begun managing this case and following his delivery of three written judgments on preliminary issues, the Goode side now took the view he "should never have taken the case", the judge said.

He said the background to the matter was that, for 12 years to the end of 2008, he had lived outside the country in Luxembourg, where he served on the European Court of Justice.

When returning to Ireland, he and his wife sold their house in Luxembourg and the proceeds were transferred to Ireland and managed by advisers. As he had also turned 65, he drew down pension investments, and his advisers engaged in setting up "the usual ARFs [approved retirement funds] and PRSAs [personal retirement savings accounts]".

In 2010 he was aware some of his monies were being put into investments, but he was not following them on a daily basis, he said. When this case came before him in November 2010, he was aware he had had a small shareholding in CRH which he assumed to to have transferred here following his return to Ireland. He told the parties this, and neither side raised any difficulty.

When he began hearing the case, he was not conscious there was about to be made on his behalf an additional purchase of shares. It appeared from "investigations" by the Goode side that purchase was made on December 6th.

This purchase of shares was being used for the "insinuation" he, after taking up the case, then went out and bought more shares, the judge said. Addressing Mr Hennessy, the judge said counsel would have "to take my word for it" he was unaware of the CRH share purchase, which was among a package of shares.

In its proceedings, Goode Concrete has sued CRH, Roadstone Wood Ltd and Kilsaran Concrete over alleged anti-competitive practices which, it is alleged, forced the collapse of Goode Concrete early last year. Goode also claims the defendants increased the price at which they are offering concrete for sale in the Dublin market since their alleged below-cost selling forced that collapse.

The defendants deny the claims and have contended the price increases referred to were due to unprecedented increases in energy costs.

Last year, Goode failed to get an injunction, to be applied pending the outcome of the full case, restraining the defendants from selling concrete allegedly below cost.