State must set out what is being sought in Ian Bailey appeal says judge

by Ann O'Loughlin

The State wants the Court of Appeal to overturn its decision allowing one ground of Ian Bailey’s appeal against the dismissal of his damages case over the conduct of the Garda investigation into the murder of Sophie Toscan du Plantier.

Martin Giblin SC, for Mr Bailey, said today it was not clear if this was "a general whinge" by the State about matters or if they wanted something specific.

Ms Justice Mary Finlay Geoghegan, presiding at the three judge appeal court, agreed the matter was not clear and said the State should set out precisely what was being sought, and the jurisdictional basis for that, in written submissions.

"On the face of it, it seems a little like a general whinge, if it is, it’s not something we would wish to entertain."

The nature of the application was set out in a letter from the State to the appeal court. That letter was not opened in court when the matter was briefly mentioned today.

Mr Bailey's case was before the court to decide liability for costs of his appeal, on which judgement was delivered last July.

He appealed a High Court jury's March 2015 dismissal of his civil action for damages against the Garda Commissioner and State after the jury rejected his claim three gardai conspired to frame him for the late 1996 murder in west Cork of Ms du Plantier.

The appeal court dismissed all grounds of his appeal except one - whether alleged wrongful disclosure by gardai of confidential information to media organisations before Mr Bailey’s libel cases against various media in late 2003 amounted to conspiracy by unlawful means and/or breached his constitutional right to privacy.

Mr Bailey claims gardai disclosed information from statements made by Marie Farrell, a key witness in the murder investigation, to the media prior to the Circuit Court libel proceedings. The appeal court ruled this claim was not statute barred and the High Court was wrong not to let it be decided by the jury.

Because of the State's application to review the decision allowing that ground of appeal, the costs issues were adjourned today.

Paul O'Higgins SC, for the State, said Mr Bailey's side had reasonably sought an adjournment of the costs application to consider the State's review application.

Ms Justice Finlay Geoghegan, sitting with Mr Justice George Birmingham and Mr Justice Gerard Hogan, said the judges had discussed the State's letter which raised an important question concerning whether the appeal court has jurisdiction to revisit a matter following a final judgement. The court wanted formal written submissions on that issue, she said.

Mr Giblin said his side did not understand exactly what the State was asking the court to do and the letter did not disclose a jurisdictional basis for the application.

Separately, Mr Bailey is believed to be considering seeking permission to appeal to the Supreme Court over the Court of Appeal decision to dismiss most of his appeal.

Any such appeal is likely to focus on the appeal court's rejection of his complaints about the High Court granting a State application, on day 62 of the 64 day trial, to prevent many of his claims being decided by the jury on the basis they were statute barred - brought outside the six year time limit.

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