Thursday 21 September 2017

Phoenix magazine to appeal judge's refusal to disqualify himself from hearing contempt proceedings

Phoenix magazine to appeal judge's refusal to disqualify himself from hearing contempt proceedings
Phoenix magazine to appeal judge's refusal to disqualify himself from hearing contempt proceedings

Tim Healy

THE Phoenix is to appeal a judge's refusal to disqualify himself from hearing contempt proceedings against the magazine over articles related to the Ian Bailey trial.

Penfield Enterprises is facing a contempt application by the State over two articles concerning Mr Bailey's failed civil action over the conduct of the garda investigation into the murder of Sophie Toscan du Plantier.

Given the pending appeal against Mr Justice John Hedigan's refusal last week to recuse himself for hearing the matter, Robert Dore, solicitor for Penfield, sought an adjournment of the hearing of the contempt proceedings which was due to open earlier today before the judge.  

This was to allow the appeal over the judge's refusal to recuse himself be heard first.

Paul O'Higgins SC, for the Garda Commissioner and State, opposed an adjournment and argued the contempt matter should proceed to determination.

Mr Dore said the State would not be prejudiced by an adjournment.

Mr Justice Hedigan said he understood the State's argument that it was more practical to proceed with the hearing, but the publisher was perfectly entitled to appeal and, "with some hesitation", he would grant the adjournment.

It would be odd to continue the case when a party does not want the judge to hear it and has appealed that decision, he said.

He adjourned the matter to October.

After the judge's ruling, Mr O'Higgins said the situation that had arisen was "unusual" and might benefit from clarification by the appeal court.

Ian Bailey lost his action for damages against the Garda Commissioner and State when a High Court jury earlier this year rejected his claim a number of gardai conspired to frame him for the late 1996 murder of the French film maker near her holiday home at Toomore, 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 alleging contempt arising from an articles published in September, 2014, before the trial started, and in a second in April, after it had ended.

 It is alleged the first article was calculated to affect Mr Bailey's trial while the second, it is claimed, breached the sub judice rule concerning a separate  civil action for damages of Mr Bailey's partner, Jules Thomas.

The Phoenix denies any contempt and contends the State is seeking "draconian" reliefs.

Mr Justice John Hedigan was the trial judge for Mr Bailey's action and also case managed it prior to hearing.

The publisher's recusal application arose from comments made by the judge, when the first contempt matter was before him last October, including a remark the September 2014 article was reckless and irresponsible. 

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