Gemma O’Doherty has been given until the new year to reply formally to claims that she has defied High Court directions not to publish anything else that could allegedly defame Cllr Jimmy Guerin.
Mr Justice Tony O’Connor also said he would consider an application from Mr Guerin’s lawyers for the retrial of his original defamation case against her to be heard by a judge sitting alone, rather than by a judge and jury.
The court heard this was in circumstances where she had allegedly admitted contaminating a potential jury pool by further publications since a jury was unable to decide on the defamation action.
The judge was told on Wednesday that despite being given an opportunity last week to file an affidavit in response to claims that she had made 18 or 19 defamatory posts or broadcasts on social media and the internet since the hung jury outcome on November 28th last, she had not done so.
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Her solicitor Brendan Maloney said he had been “unable to secure instructions” from Ms O’Doherty since the case was in court last week.
Last week, Ronan Lupton SC, with Shane English, instructed by Flynn O’Driscoll Solicitors, said the court last month directed, following the hung jury trial, that there be tempering of subsequent comment, given that the case is to go before another jury. Ms O’Doherty’s side agreed to this.
On Wednesday, Mr Lupton said in the last week the number of publications about the substance of the defamation action had now risen to 54 “in the jaws of the currency of these proceedings”.
Last month’s hearing before a jury related to allegedly defamatory social media and internet publications in which Ms O’Doherty referred to “the paedophile brother of Veronica Guerin”, who was murdered in 1996.
She denied she was referring to Jimmy Guerin and said it was clear she was talking about Martin Guerin, also her brother, who had been convicted of possession of hundreds of child pornography images.
When the jury failed to reach a verdict, the case was relisted last week for a new hearing next year, also before a jury.
Mr Lupton said as a result of the further publications, he was seeking “take down” orders for the social media and internet material from the date of the hung jury, November 21st, up to now.
He was also asking the court to transfer the case into the non-jury list where it will be up to a judge sitting alone to decide the case.
Earlier, the judge had asked the parties to consider whether it would be more appropriate to allow the further publications to go before a jury. He said he was a “great believer in decent, honest, fair-minded people, people who are able to see through things”.
If the further allegations emerge at a retrial, such decent, honest and fair-minded people, who are called to the future jury, “may take a different view to the position Ms O’Doherty is taking”, he said.
After adjourning for a short time to allow the sides to consider his comments, the judge was told Mr Lupton wished to press ahead with his application.
This was particularly so because Ms O’Doherty had admitted in one of her publications that the information she was putting out would contaminate a future jury and she had “gone into overdrive” in relation to those publications, counsel said. His client could not receive a fair trial as a result.
The judge said Ms O’Doherty’s solicitor was in an invidious position as he did not have instructions and to allow her to consider the application for a transfer of the case to a judge sitting alone he was going to put the case back to January.
He was not prepared to make the order sought by Mr Lupton now and said if it had to be done slowly then it had to be done slowly. “We are going to do it right”, he said.
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