‘Phoenix’ seeks to quash judge’s refusal to withdraw from case

The Court of Appeal has been urged to quash a High Court judge's refusal to withdraw from hearing contempt proceedings brought against Phoenix magazine by the Garda Commissioner and State.

The contempt proceedings arise from two articles related to the failed civil action by Ian Bailey over the conduct of the Garda investigation into the 1996 murder in Cork of French filmmaker Sophie Toscan du Plantier.

Mr Bailey's action opened before a High Court jury in November 2014. The first Phoenix article was published some six weeks earlier on September 26th 2014. The second was published in May 2015, some two months after the jury rejected Mr Bailey's claim that certain gardaí conspired to frame him for the murder.

In alleging contempt, the State complained the first article disclosed the existence of settlement discussions between the sides and criticised the State's handling of the Bailey case. The second article, it alleged, potentially prejudiced the separate civil action of Mr Bailey's partner, Jules Thomas.

After Mr Justice John Hedigan refused to recuse himself from hearing the contempt proceedings, Penfield Enterprises, publishers of Phoenix, appealed to the three judge Court of Appeal which reserved judgment after hearing the appeal on Monday.

‘Reckless’

Martin Hayden SC, for Phoenix, argued comments by Judge Hedigan, including his description of the September 2014 article as "reckless" and "irresponsible", illustrated objective bias and prejudgment concerning the contempt claims.

When considering whether to recuse, a judge must decide if the comments complained about could be regarded by a person reasonably well informed of the matters at issue as amounting to objective bias, counsel said.

His case was Judge Hedigan applied the incorrect legal test because he subjectively decided his previous remarks did not demonstrate objective bias.

Although Judge Hedigan was not required to decide if there was contempt because, when the State initially complained about the first article, it was only seeking to guard against further publication, the judge expressed a view the article was reckless and irresponsible, counsel said. His comments represented a “concluded” view other media had been “good” but this article was not.

Separate proceedings had been brought against Independent Newspapers over alleged contempt in another article on the Bailey case, counsel said. Those proceedings later settled on undisclosed terms.

Opposing the appeal, Paul O’Higgins SC, for the State parties, said, before the Bailey action, Judge Hedigan issued a general warning to the media not to publish material that might prejudice a fair hearing of the case. This arose where there had been many media articles.

Integrity

Judge Hedigan's comments about the first Phoenix article were motivated by a desire to protect the integrity of the trial which involved issues of which the judge was well aware, having case managed the action for some time, counsel said. The contempt motion was not brought until May 2015, after publication of the second article which latter caused potential difficulties for the Jules Thomas hearing. The Thomas case was initially intended to be held immediately after the Bailey case but that didn't prove possible, counsel added.

Judges have to maintain standards of fairness concerning trials and may sometimes have to discharge a jury due to media reports and then effectively require a contempt application be brought to protect the rule of law, counsel argued.

The issue in these contempt proceedings was whether it was permissible to discuss offers of settlement weeks before a case started, counsel added.

In his closing reply, Mr Hayden argued, where liberty is at stake, a lesser standard cannot be applied to objective bias. When the second article was published, no legal directions had been issued concerning reporting of the Thomas case, he added.