Judge recuses himself from Declan Ganley defamation action
Judge wrote an article in Village magazine accusing Libertas of making false claims
File photograph of businessman Declan Ganley campaigning against the Lisbon Treaty in Dublin. File photograph: Dara Mac Dónaill/The Irish Times
Mr Ganley’s objection to Mr Justice Colm Mac Eochaidh dealing with his case was based on an article published in Village magazine on November 26th, 2008, some four years before the judge’s appointment to the High Court.
Central to the objection was an assertion in the article that the campaign by Libertas against the Lisbon Treaty was based on false claims concerning the treaty’s meaning.
As RTÉ’s defence in the defamation case includes a plea that Mr Ganley is a person who makes false assertions in business matters, which Mr Ganley denies, the businessman’s lawyer, Declan Doyle SC, argued the judge should not deal with this case himself.
RTÉ adopted a neutral position on the recusal application.
In his decision, the judge noted the test for objective bias is whether an objective person would have a reasonable apprehension the judge hearing the case would not be impartial.
He said it was irrelevant, in applying that test, what the judge or litigant themselves thought about the issue of partiality.
The judge said he had to consider whether an objective person would be reasonably apprehensive because of the views expressed by him in the past that Mr Ganley made false claims, albeit about matters unconnected with this case.
He said he was satisfied an objective person with full knowledge of the 2008 article could reasonably conclude he had in the past expressed a view of Mr Ganley “inimical” to the latter’s efforts to overcome RTÉ’s allegations .
He agreed not to deal with the case further, apart from any minor matters which the sides were content for him to deal with.
In his proceedings, initiated in 2012, Mr Ganley claims a November 2008 RTÉ Prime Time programme defamed him in using words or innuendo which, he alleges, meant he had links to organised crime and caused a fund to lose the life savings of thousands of Albanian pensioners.
RTÉ denies defamation or that the words meant what Mr Ganley alleges.
It has also pleaded truth or justification and that the “sting” of the words, taken as a whole, was that Mr Ganley had a tendency to make false or exaggerated claims in respect of business or other matters.
In a pre-trial application yet to be decided, Mr Ganley wants aspects of RTÉ’s defence struck out, including its plea that Mr Ganley had a tendency to make false or exaggerated claims in business matters.
RTÉ has also applied to cross-examine Mr Ganley about issues arising from documents discovered for the case.