Thursday 14 December 2017

High Court judge refuses to step down from Phoenix magazine contempt case on Ian Bailey's legal action

Ian Bailey (58), of Toormore, Schull, Co Cork
Ian Bailey (58), of Toormore, Schull, Co Cork

Tim Healy

High Court judge John Hedigan has refused to disbar himself from hearing a contempt case against the Phoenix magazine.

The case relates to an article in the magazine concerning journalist Ian Bailey's legal action.

Mr Bailey lost his action for damages against the Garda Commissioner and State over the investigation into the murder of French film maker Sophie Toscan du Plantier.

A High Court jury earlier this year rejected his claim a number of gardai conspired to frame him for the late 1996 murder of  Ms Toscan du Plantier 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, publisher of the Phoenix, over an article published on September 26, 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 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.

A hearing date for Ms Thomas' action has yet to be fixed.

A date has also to be fixed for the hearing of the State side's pre-trail application to strike out Mr Thomas' 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 him Monday (July 20), 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.

Mr Dore said the application that he "recuse" himself arose from comments made by the judge, when the first contempt matter was before him last October.  They included 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 expresed views in connection with the protection of the court's process in the run up to the hearing of Mr Bailey's action.

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 and 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.

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