Merits-Style Complaints Against Judges Are Inadmissible Under s.53(3) Judicial Council Act 2019: No Right to an Oral Hearing or to Minutes of CRC Deliberations at Admissibility Stage

1. Introduction

Riordan v Complaints Review Committee of the Judicial Council (Approved) [2026] IEHC 193 concerns an opposed application for leave to seek judicial review of three determinations of the Complaints Review Committee (“CRC”) of the Judicial Council. The CRC had affirmed the Registrar’s earlier determinations that the applicant’s complaints against three Supreme Court judges were inadmissible.

The complaints arose from a Supreme Court panel’s refusal of the applicant’s Article 34.5.3° application for leave to appeal in Riordan v. Irish Financial Services Appeals Tribunal (leave refusal published as [2024] IESCDET 49). The applicant framed the judges’ conduct as “integrity and deception”, “secret conclave”, denial of fair procedures, and constitutional/EU/ECHR breaches—asserting, in substance, that the Supreme Court’s leave process (paper-based panel consideration) was unlawful and that statements in the refusal determination were “untrue”.

The High Court (Phelan J.) emphasised the narrow focus of the proceedings: it was not an appeal from the Supreme Court determination nor a re-hearing of the applicant’s disputes about the IFSAT appeal fee; it was solely about whether the CRC’s inadmissibility decisions were arguably unlawful, irrational, or procedurally unfair.

Key issues

  • Whether the applicant had an arguable case that the CRC misapplied the admissibility filters in s.53 of the Judicial Council Act, 2019.
  • Whether fair procedures required an oral hearing, the opportunity to make submissions, a public process, recorded minutes/transcripts of CRC deliberations, and signed determinations at admissibility-review stage.
  • Whether alleged bias arose because the CRC received the Registrar’s first-instance inadmissibility determinations.
  • Whether (though not pleaded) a disclosed irregularity concerning the re-appointment of a lay member warranted a court-driven amendment of the grounds at leave stage.

2. Summary of the Judgment

The High Court refused leave to apply for judicial review. It held that none of the pleaded grounds met the low but real threshold of arguability:

  • The CRC’s decisions were a rational and lawful application of s.53(3)(b): the complaints related “solely” to the merits/procedures/outcome of judicial decisions, not to misconduct as defined by s.2.
  • No arguable breach of fair procedures was shown: there is no general entitlement to an oral hearing at admissibility review stage; no right to minutes/records of deliberations; and the written reasons given were adequate.
  • No arguable case of bias arose from the CRC having the Registrar’s determination, particularly where the CRC stated it considered matters ab initio and gave narrower/different reasons.
  • The court declined to amend the Statement of Grounds of its own motion to add a new challenge based on the lay-member reappointment issue (disclosed on affidavit), given the applicant’s failure to apply to amend, the delay, the effective creation of a new cause of action, and the lack of practical consequence given the underlying complaints’ lack of merit.

3. Analysis

3.1 Precedents Cited

(a) Leave threshold / arguability

  • O'Doherty v Minister for Health [2022] IESC 32, [2023] 2 I.R. 488 and McE v Chief Appeals Officer [2025] IEHC 114: The court relied on these authorities to state that even on an opposed, on-notice leave application, the test is arguability—a “prospect of success” is required, but not “reasonable prospect” or “likelihood”. This framed the court’s approach: it assessed whether any ground could plausibly sustain a judicial review, not whether the applicant would probably win.

(b) Objective bias

  • Bula Ltd v. Tara Mines Ltd (No. 6.) [2000] 4 I.R. 412; 2000 WJSC-SC 922 and Kenny v. Trinity College Dublin [2008] 2 LR. 40; [2007] IESC 42: These supplied the orthodox objective test: whether a reasonable person would have a reasonable apprehension of an absence of impartiality. The court applied that test to reject the applicant’s claim that the CRC was biased because it received the Registrar’s determination.
  • Kelly v. University College Dublin [2025] IESC 6: Cited as confirmation that the “reasonable observer” test remains the standard, including in contexts involving disqualification/impartiality.

(c) Oral hearing and fair procedures in administrative decision-making

  • ZK v. Minister for Justice [2023] IECA 254 approving Galvin v. Chief Appeals Officer [1997] 3 I.R. 240; [1997] IEHC 218: The court adopted the Galvin factors (legislation, request, subject matter, circumstances, nature of inquiry) to determine whether fairness requires an oral hearing. Applying them, the court held that CRC admissibility review is a paper-based legal filter, not a fact-finding inquiry requiring oral evidence or cross-examination.
  • Coleman v. Financial Services Ombudsman [2016] IEHC 169: Used illustratively for the proposition that oral hearings may be required where conflicts of fact cannot otherwise be resolved; the court found no such conflict here.

(d) Reasons, deliberations, and form of determinations

  • Nowak v. Judicial Council [2024] IECA 216: The respondent relied on this for propositions including that signed determinations, recordings, or transcripts are not required in the way the applicant contended. Phelan J. also referred (later) to “Novak v. Judicial Council” (as written in the judgment), treating it as supporting that typed determinations bearing the members’ names can be taken as adopted by them.
    Comment: The text contains both “Nowak” and “Novak”. The substantive point drawn is that the complaints architecture does not imply a requirement for individual signatures or a record of deliberations, so long as a reasoned written determination issues.
  • JS v. MK [2024] IEHC 353: Cited to reject the applicant’s demand that CRC members swear affidavits explaining their internal decision-making. The court accepted that compelling such evidence would undermine decisional independence and the public interest in protected deliberation.

(e) Irrationality / unreasonableness

  • O'Keeffe v. An Bord Pleanála [1992] 1 I.R 39; 1991 WJSC-SC 1137: The court used O’Keeffe to describe the high bar for irrationality (perversity/unsustainability). It concluded the CRC’s view—no judicial misconduct identified and the complaint related to merits—was obviously supported by the materials and statutory scheme.

(f) Amendment of grounds, time limits, and extension of time in judicial review

  • N.Z. v. Minister for Justice [2023] IEHC 545 and J.K. v. Minister for Justice and Equality [2011] IEHC 473: These were used to explain that the High Court has a jurisdiction (under the rules) to allow amendment of grounds, exceptionally even on the court’s own motion, but that such steps are rare and driven by the interests of justice.
  • Ní Eilí v Environmental Protection Agency [1997] IEHC 79: Cited for the principle that amendments may be refused where they effectively introduce a new cause of action—relevant here because the lay-member issue was entirely distinct from the pleaded complaints-process grounds.
  • Muresan v. Minister for Justice, Equality and Law Reform (Unreported, High Court, Finlay Geoghegan J., October 2003): Used for the proposition that delay in seeking amendments must be explained and justified.
  • Keegan v. GSOC [2015] IESC 68: Relied on to underline the policy balance in judicial review: finality and administrative certainty versus access to challenge, and the need to justify late changes.
  • Arthropharm (Europe) Ltd v. The Health Products Regulatory Authority [2022] IECA 109 and Winters v. Legal Aid Board & Ors [2025] IECA 205: These authorities reinforced that extension-of-time rules in judicial review impose an onus to explain delay on affidavit and that the regime is a “complete code”. This supported the refusal to “resuscitate” the case through an unpleaded late constitutional/ultra vires point without any proper application or evidence.

(g) Supreme Court leave principles referenced by the CRC

  • BS v Director of Public Prosecutions [2017] IESCDET 134: The CRC cited this as a leading determination on the principles governing Supreme Court leave applications. It was used to show that the Supreme Court’s approach is settled and repeatedly applied, undermining the applicant’s attempt to reframe ordinary leave refusal as misconduct.

3.2 Legal Reasoning

(a) The core statutory boundary: conduct oversight is not an appellate system

The judgment is anchored in the structure of the 2019 Act, especially:

  • s.2 (definition of “judicial misconduct”): requires both (i) a departure from acknowledged standards of judicial conduct and (ii) conduct that brings the administration of justice into disrepute.
  • s.53 (admissibility): complaints must allege conduct that could constitute misconduct; and must not be frivolous/vexatious.
  • s.53(3)(b) (merits exclusion): a complaint relating solely to “the merits of a decision” is not admissible.
  • s.56 (CRC review): CRC decides admissibility “having regard to section 53”, i.e., still a threshold filter.
  • s.93 (non-interference): the complaint scheme cannot be construed to interfere with courts’ functions or judges’ exercise of judicial functions.

The applicant’s allegations—“secret conclave”, no oral hearing, and “untrue” statements in the Supreme Court determination—were treated as a direct attempt to re-open or impeach the legality, procedures, and reasoning of a judicial decision. The High Court accepted the Registrar’s and CRC’s characterisation: this was, in reality, a collateral merits challenge, and therefore fell squarely within s.53(3)(b) and outside the complaint scheme’s remit.

(b) Supreme Court leave procedure as lawful “regulations prescribed by law”

While the High Court stressed it was not deciding the applicant’s underlying constitutional attacks on Supreme Court practice, it nonetheless provided the legal context showing why the complaint could not plausibly be misconduct: Article 34.5.3° allows appellate jurisdiction “subject to such regulations as may be prescribed by law”; those regulations include the Courts (Supplemental Provisions) Act, 1961 provisions permitting panel determinations and allowing leave applications to be determined without oral hearing (as amended by the Court of Appeal Act, 2014), together with Order 58 and Practice Direction SC19 providing for paper-based panel decisions.

Against that backdrop, it was “readily understood” why a complaint alleging misconduct for following that routine process is misconceived: “standard conduct” performed pursuant to law cannot sensibly be reframed as “deception” or “abuse of power”.

(c) Fair procedures: admissibility is a filtering stage, not a trial

The applicant sought to constitutionalise a right to a public oral hearing with recorded deliberations at the admissibility-review stage. The court rejected that:

  • There is no statutory requirement for oral hearings in ss.53 or 56; by contrast, oral hearing powers exist later in the scheme (e.g., s.69(3), s.83(3)), supporting the inference that admissibility is intended to be paper-based unless the body requests more material.
  • Applying ZK v. Minister for Justice and Galvin v. Chief Appeals Officer, the nature of the decision was legal and threshold-based, not dependent on resolving contested facts by oral testimony.
  • The applicant did not request an oral hearing, and—critically—he was told he could make submissions yet did not.

(d) Deliberative privacy and the “record” of decision-making

A significant aspect of the reasoning is the court’s distinction between (i) the constitutional principle of public justice and (ii) the private deliberations of judges or quasi-judicial bodies. The court held:

  • Private deliberation is normal; public justice concerns the public availability of the decision and reasons, not access to internal discussions.
  • The applicant was entitled to reasons, and he got them in the written CRC determinations; he was not entitled to minutes/transcripts of deliberations.

(e) Bias: de novo review does not require decisional “blindness”

The applicant alleged bias because the CRC had the Registrar’s determination. The court held there was no arguable case under Bula Ltd v. Tara Mines Ltd (No. 6.) / Kenny v. Trinity College Dublin / Kelly v. University College Dublin. It reasoned that:

  • s.56 requires referral of the complaint and materials; the Registrar’s determination is part of the procedural jurisdictional context;
  • even de novo appeals commonly occur in knowledge of first-instance reasons; and
  • the CRC gave different reasons, supporting the conclusion it considered matters afresh.

(f) The “lay member appointment” irregularity: arguability vs. case management and time rules

The most novel part of the judgment is not the refusal of leave on the pleaded grounds, but the court’s handling of an unpleaded issue disclosed by the Registrar: at the time of the CRC meeting (December 2024) there had been an “administrative error” whereby the Government had not made the formal decision to re-appoint certain lay members when their terms expired in July 2024, later “deemed” effective by a Government decision in June 2025.

Phelan J. accepted that a challenge to CRC constitution might be prima facie arguable and that retrospectively deeming reappointment may not necessarily “save” a prior decision. However, she declined to amend the case of her own motion because:

  • no application to amend was made despite long notice (from July 2025);
  • it would create a substantially new cause of action (Ní Eilí v Environmental Protection Agency);
  • it might require joinder of other parties and would raise extension-of-time issues under a strict code (Keegan v. GSOC, Arthropharm (Europe) Ltd v. The Health Products Regulatory Authority, Winters v. Legal Aid Board & Ors);
  • no affidavit evidence explained delay (a central requirement for time extension analysis); and
  • the underlying complaints were so lacking in merit that remittal could not realistically change the outcome, making amendment a poor use of resources and potentially undermining, rather than promoting, the administration of justice.

3.3 Impact

(a) Reinforcement of the “merits exclusion” in judicial conduct complaints

The judgment strengthens the operational boundary of the Judicial Council complaints system: complaints cannot be used as a substitute for appeal or judicial review of court decisions. Where allegations are essentially “the judge got the law wrong” or “the procedure was unconstitutional”, they will commonly be characterised as merits/procedure challenges and excluded by s.53(3)(b).

(b) Procedural expectations at admissibility and CRC review stage

The judgment provides practical clarity for complainants and the Judicial Council:

  • No general right to an oral hearing at admissibility or CRC review stage.
  • No entitlement to records/minutes of private deliberations; the written determination is the operative record.
  • Bias allegations require concrete facts meeting the objective “reasonable observer” standard; dissatisfaction with outcomes or process design will not suffice.

(c) Litigation discipline: late new points and the strict time-code in judicial review

The court’s refusal to “resuscitate” weak proceedings with an unpleaded, potentially arguable point underscores that judicial review is tightly managed by pleading, time limits, and affidavit-based explanations. Even issues touching institutional legitimacy (like committee constitution) must be raised properly and promptly.

4. Complex Concepts Simplified

  • “Judicial misconduct” (s.2): Not “a wrong decision”. It is conduct (act/omission) that departs from recognised standards (integrity, impartiality, etc.) and brings the administration of justice into disrepute.
  • “Admissibility” (s.53): A gateway screening stage. The complaint must be the kind of issue the system can investigate. If it is really about the decision’s correctness, it is filtered out.
  • s.53(3)(b) “merits” bar: If the complaint is essentially “the judge’s decision was wrong” (including challenges to reasoning, legal interpretation, or the outcome), it is not allowed into the misconduct system.
  • “Open justice” vs. private deliberations: Courts and decision-makers may deliberate privately; what must be public (as a rule) is the administration of justice through publicly available decisions/reasons where required. The Constitution does not imply a right to observe or obtain transcripts of deliberations.
  • “Bias” (objective test): The question is not whether a disappointed party believes the body was unfair, but whether a reasonable observer would apprehend lack of impartiality based on facts.
  • Leave to seek judicial review: A permission stage. The applicant must show an arguable case; the court will not permit proceedings that cannot realistically get off the ground.

5. Conclusion

Riordan v Complaints Review Committee of the Judicial Council [2026] IEHC 193 confirms, in emphatic terms, that the Judicial Council’s misconduct process is not a collateral appellate forum. Complaints that attack the merits, reasoning, or legally authorised procedures of judicial decision-making are liable to be excluded by s.53(3)(b), and dissatisfaction—however intensely expressed—does not become “misconduct” by being labelled as deception or unfairness.

The judgment also clarifies what procedural fairness looks like at the admissibility-review stage: decisions may be taken on the papers, without oral hearing, without public deliberation, and without a transcript of internal discussions, provided clear written reasons are furnished. Finally, it underlines that even potentially significant new grounds (such as committee constitution) must be pleaded promptly and properly; courts will not lightly revive otherwise untenable proceedings through late, unparticularised amendments.