The High Court ruled that Mr Denis Riordan has "an arguable case" that the Government's method of nominating Mr Hugh O'Flaherty to the European Investment Bank post was unfair, unjust and unconstitutional.
In its exercise of executive power, the Government was not immune from judicial control if it acted in a manner repugnant to the Constitution, Mr Justice Kelly said.
The argument that the method of nomination was unfair and not constitutionally proper was the sole ground on which Mr Riordan secured leave to challenge the nomination of the former judge.
Mr Justice Kelly found Mr Riordan did not have an arguable case on other grounds advanced, including Mr Riordan's allegation that the former judge was an unfit person to hold the post. He also ruled that the failure of Mr O'Flaherty to go before an Oireachtas committee to explain his actions in the Sheedy case was not a matter for the courts but for parliament.
In his reserved decision on the application for leave, Mr Justice Kelly said Mr Riordan had correctly said that there were no qualifications specified in the EIB legislation for "the prestigious and lucrative post" of vice-president of that bank. It was apparently for an EU memberstate to choose a suitable person.
He said Mr Riordan had claimed he himself was well qualified, and indeed claimed to be better qualified than Mr O'Flaherty, but had been denied the opportunity of being considered for the EIB post because it was not advertised and the selection was made by an altogether unfair process.
Mr Riordan claimed that only a person known to the Government would stand a chance of nomination. Mr Riordan had said he wished to be considered but, because he was not a member of what he described as "a golden circle", he was denied that opportunity. He claimed the manner of selection was unjust, unfair and unconstitutional.
Mr Justice Kelly said the State had conceded that it might have been more desirable had the position been dealt with differently, for example by advertisement, but claimed the failure to do so was not wrong in law and not inconsistent with the Constitution.
The Government was not immune from judicial control if it acted in a manner or for a purpose which was inconsistent with the Constitution.
Mr Riordan claimed the procedure followed in selecting Mr O'Flaherty was not in conformity with constitutional propriety and was unfair. Mr Justice Kelly said it was his view that, on this sole ground, Mr Riordan had crossed the undoubtedly low threshold of proof required and had shown an arguable case to be made.
Whether Mr Riordan would fulfil the higher standard of proof at the full hearing was a matter for the trial judge, he stressed.
Mr Justice Kelly refused Mr Riordan's application for leave to seek a declaration that Mr O'Flaherty was "an unfit person" for the post. The appointment was a matter exclusively for the EIB which was not amenable to the jurisdiction of the Irish courts, he said.
The judge added that the affidavit sworn by Mr Riordan, while containing most serious allegations against Mr O'Flaherty, was heavy with assertion but largely devoid of supporting material and went nowhere near establishing the case he wished to make.
It was mainly an attempt by Mr Riordan to relitigate cases in which he had been unsuccessful. (Mr Riordan has previously challenged divorce legislation and aspects of the Belfast Agreement).
Mr Justice Kelly said Mr Riordan had attacked a judge who had found against him by making allegations against that judge of lying, conspiracy and corruption. Mr Riordan had already sued not merely Mr O'Flaherty but seven other judges, making similar allegations against them.