A
High Court
judge has refused to recuse himself from hearing proceedings for alleged contempt against the publishers of
Phoenix
magazine. The proceedings
concern an article related to the failed civil action by Ian Bailey over the conduct of the investigation into the murder of Sophie Toscan du Plantier.
Mr Bailey lost his action for damages against the Garda Commissioner and the State when a High Court jury earlier this year rejected his claim that a number of gardaí conspired to frame him for the 1996 murder of the French film-maker at Toormore, Schull, Co Cork.
Prior to the opening of Mr Bailey's action last November, the Garda Commissioner and State initiated proceedings last October against Penfield Enterprises, publisher of the Phoenix, over an article published on September 26th, 2014. They have also alleged contempt in a second article published last April, after the trial had concluded.
It is alleged both articles were in contempt of court proceedings. It is alleged the first was calculated to affect Mr Bailey's trial, while the second, it is claimed, breached the sub judice rule concerning the civil action for damages of Mr Bailey's partner, Jules Thomas.
The Phoenix denies any contempt and contends the State is seeking "draconian" reliefs.
Time limits
A hearing date for Ms Thomas’s action has yet to be fixed. A date has also to be fixed for the hearing of the defendants’ pre-trial application to strike out Ms Thomas’s action on grounds it was initiated outside the applicable legal time limits.
Mr Justice John Hedigan was the trial judge for Mr Bailey's action and also case-managed it prior to hearing.
When the contempt matters came before the judge yesterday, Robert Dore, solicitor for Penfield Enterprises, said his clients, while wishing no disrespect to the judge, wished him not to hear the contempt proceedings and to allocate them to another judge.
Reckless
The recusal application arose from comments made by the judge, when the first contempt matter was before him last October, including a remark that the September 2014 article was reckless and irresponsible and calculated to prejudice the progress of the trial, Mr Dore said.
Paul O’Higgins SC, for the Commissioner and State, said while there was something in what Mr Dore said, the judge had expressed views in connection with the protection of the court’s process in the run-up to the hearing of Mr Bailey’s action and his side’s view was Mr Justice Hedigan was best placed to deal with the contempt matter.
The State’s case is there was a very deliberate attempt to try to interfere with the course of the Bailey proceedings, counsel said.
Having heard the sides, Mr Justice Hedigan said while he was not at all offended by the recusal application, no grounds had been established justifying his recusal. The contempt claims mainly centred on legal issues and there was no dispute concerning publication, he said. He was the judge most familiar with the matters at issue and would deal with the contempt matter.
After Mr Dore asked for an adjournment, the judge fixed the matter for hearing next week.
