Goode Concrete v CRH Plc & ors

Factual and Procedural Background

Company A (the plaintiff/appellant) operates in the concrete industry and brought competition-law proceedings in the High Court against Company B and Company C (the defendants/respondents), alleging anti-competitive behaviour. Three interlocutory High Court orders adverse to Company A were made by Judge Cooke:

• 2 February 2011 – refusal of an interlocutory injunction.
• 8 May 2012 – order directing security for costs.
• 17 May 2012 – fixation of the amount and phasing of that security.

No notices of appeal were filed within the 21-day limit. In December 2012—approximately 19–22 months later—Company A issued three motions in the Supreme Court seeking an extension of time to appeal all three orders. The motions were grounded largely on new information, obtained in September 2012, that Judge Cooke held a more substantial shareholding in Company B than previously disclosed. The Supreme Court (Judge Denham C.J., Judge Clarke, Judge MacMenamin) heard the extension applications and delivered an oral ruling granting a limited extension; the written reasons are contained in the present judgment.

Legal Issues Presented

1. Whether the Supreme Court should extend time for Company A to appeal, despite a delay of up to 22 months, on the basis of a newly-asserted allegation of reasonable apprehension of objective bias arising from Judge Cooke’s shareholding in Company B.
2. Whether any extension, if granted, should also encompass other proposed grounds of appeal unrelated to the bias allegation (e.g., challenges to the security-for-costs order in light of later case-law).

Arguments of the Parties

Company A’s Arguments

• The shareholding information came to light only in September 2012; the bias allegation therefore rests on facts not before the High Court, warranting an extension.
• Prompt steps were taken after discovery of the information: correspondence with Judge Cooke, a recusal motion, and requests for consent to late appeals.
• The facts give rise to an arguable case of reasonable apprehension of bias and no waiver occurred because the full extent of the shareholding was not previously known.
• Additional appeal grounds (e.g., the Mavior point on security for costs) should also be permitted.

Defendants’ Arguments

• The delay is extreme (19–22 months) and contrary to the principles in ire Continental; Company A had not shown a bona fide intention to appeal within time.
• Company A waived any bias objection when it failed to object after Judge Cooke’s initial disclosure.
• Any extension should, in any event, be confined strictly to the bias ground; all other proposed issues were known from the outset and could have been appealed in time.
• Prejudice arises from prolonged uncertainty and continuing litigation costs.

Table of Precedents Cited

Court's Reasoning and Analysis

The Supreme Court recognised that the ordinary ire Continental criteria generally govern extension applications but held that a modified approach is necessary where the proposed ground of appeal is based on facts not before the trial court—such as an alleged undisclosed or inadequately disclosed financial interest creating an appearance of bias.

Applying the modified test, the Court considered:

1. Date of Knowledge: Company A learned the full extent of Judge Cooke’s shareholding only on 26 September 2012.
2. Reasonableness of Inquiries: It was appropriate for Company A to correspond with the judge and other parties to verify the facts before rushing to court.
3. Elapsed Time Post-Discovery: From definitive knowledge (13 November 2012, when the matter was aired in open court) to filing motions (11 December 2012) only 27 days passed, comparable to the standard 21-day appeal period, and during that time Company A sought the respondents’ consent.
4. Prejudice: The respondents did not demonstrate concrete prejudice beyond general delay; the public interest in a judiciary free from perceived bias weighed heavily.
5. Arguable Grounds: The Court found it arguable that (a) the shareholding could create a reasonable apprehension of bias; (b) earlier disclosure was insufficient to amount to waiver; and (c) Company A was not obliged to inquire further at the time of the initial disclosure.

Conversely, the Court rejected any extension for the other proposed grounds. Those issues were apparent from the face of the High Court record, could have been appealed within time, and were unconnected to the newly-discovered facts.

Holding and Implications

HOLDING: Time is extended for Company A to file notices of appeal solely on grounds relating to the alleged reasonable apprehension of bias. No extension is granted for any other grounds.

Implications: The appeal will proceed promptly but will be confined to the bias issue. If bias is established, the impugned High Court orders may be set aside and the matters remitted for re-hearing before a different judge; if not, the High Court orders will stand. The judgment sets no new substantive precedent but clarifies the Supreme Court’s flexible approach to time-extension applications where alleged judicial bias is based on facts emerging post-trial.