Lawyers for Ian Bailey's partner Jules Thomas are to ask a High Court judge to stop dealing with matters in her case due to alleged objective bias on the judge's part.
Michael Lynn SC, for Ms Thomas, told Mr Justice John Hedigan he was instructed to ask the judge to recuse himself from further dealing with matters in Ms Thomas' action for damages, brought against the Garda Commissioner and State arising from her arrests in connection with the late 1996 murder in west Cork of French film-maker Sophie Toscan du Plantier.
Mr Lynn said the recusal application was on grounds of objective bias only and arose from comments previously made by the judge.
Mr Justice Hedigan, who has presided over all matters in Ms Thomas’ case as well as in Mr Bailey’s own failed lengthy civil action for damages, said he did not take the recusal application personally and will deal with it on Wednesday.
While he had no problem passing the case over to another judge, he was familiar with matters having managed the proceedings for some two years, the judge observed. It would “take a lot of persuasion” to show something said during these long running matters required him to recuse himself and his mind was “open”.
He has a duty as a High Court judge to ensure cases run as efficiently as possible and it might be more time consuming if the case was now to be managed by another judge, he added.
The court heard the Phoenix magazine has also appealed the judge's refusal to recuse himself from dealing with proceedings by the Garda Commissioner and State alleging contempt in relation to articles published before and after Mr Bailey's action.
Both Ms Thomas and Mr Bailey were in court on Monday when various preliminary matters in Ms Thomas’ case were mentioned.
The defendants last month secured permission from the judge for a trial of two preliminary issues. The first issue is whether Ms Thomas’ case, initiated in 2007 and arising from her arrests in 1997 and 2000 in connection with Ms du Plantier’s murder, was brought outside the six-year legal time limit. The second issue is whether there was excessive delay in bringing it.
Ms Thomas’s side have appealed against the trial of preliminary issues and hope to get a hearing of the appeal before Christmas, Mr Lynn indicated.
Ms Thomas claims any delay in bringing her claim is a result of psychiatric illness and “incalculable” damage suffered due to alleged actions of the defendants.
In dealing with that latter argument, the defendants have sought Ms Thomas’ medical records. Their counsel Paul O’Higgins SC told the judge they have yet to receive the records.
Mr Lynn said the delay getting the records arose because of a financial difficulty. That had been resolved, the records were on the way to Ms Thomas' solicitor, Frank Buttimer, and would be passed on, he said.
Ms Thomas is seeking permission to make additional claims concerning her psychological capacity to instruct lawyers before 2007 and to allege gardaí continued to engage in “surreptitious” intelligence gathering on her up to 2010, giving her a continuing cause of action of which she only became aware in recent years.
In a report read in court, a psychiatrist who assessed Ms Thomas recently said he believed she has been affected by depressive illness from 1996 until at least 2011 which was likely to have caused an impediment in her mental state, affecting her ability to instruct lawyers. He said she was subject to “massively stressful” circumstances.
Towards the end of Mr Bailey’s 64-day action last March, the defendants successfully applied to the judge to have large aspects of his case withdrawn from the jury. His remaining claims of conspiracy by some gardaí to frame him for murder were rejected by the jury, leaving him facing a legal costs bill of up to €5 million.
