The Court of Appeal has been urged to quash a High Court judge’s refusal to withdraw from hearing contempt proceedings brought against The 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 West Cork of French film maker Sophie Toscan du Plantier.
Mr Bailey’s action opened before a High Court jury in November 2014. The first Phoenix article was published six weeks earlier on September 26. The second was published in May 2015, two months after the jury rejected Mr Bailey’s claim 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 judgement after hearing the appeal on Monday.
Martin Hayden, counsel for Phoenix, argued that 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.
Opposing the appeal, Paul O’Higgins, for the State parties, said that, 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.
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