‘Phoenix’ appeals judge’s decision

The publishers of Phoenix magazine are appealing against a High Court judge’s refusal to recuse himself from hearing proceedings for alleged contempt, relating to two articles on the failed civil action by Ian Bailey over the conduct of the investigation into the murder of Sophie Toscan du Plantier.

Given the pending appeal against Mr Justice John Hedigan’s refusal last week to recuse himself, Robert Dore, solicitor for Penfield Enterprises, sought an adjournment of the hearing of the contempt proceedings, due to open yesterday before the judge.

After Paul O’Higgins, counsel for the Garda commissioner and State, opposed an adjournment and argued the contempt matter should proceed to determination, Mr Dore said he was surprised at the State’s attitude, as it would not be prejudiced by an adjournment.

Mr Justice Hedigan said he understood the State’s argument that it was more practical to proceed with the hearing, but the publisher was perfectly entitled to appeal and, “with some hesitation”, he would grant the adjournment. It would be odd to continue the case when a party does not want the judge to hear it and has appealed that decision, he said. He adjourned the matter for mention in October.

After the judge’s ruling, Mr O’Higgins said the situation that had arisen was “unusual” and might benefit from clarification by the appeal court.

Mr Bailey lost his action for damages against the Garda commissioner and State when, earlier this year, a High Court jury rejected his claim that a number of gardaí conspired to frame him for the late 1996 murder of the French filmmaker near her holiday home at Toomore, Schull, Co Cork.

Last October — prior to the opening of Mr Bailey’s action in November — the Garda commissioner and State initiated proceedings against Penfield Enterprises alleging contempt arising from an article published on September 26, 2014. They later alleged contempt in a second article published last April after the trial had concluded.

It is alleged the first article was calculated to affect Mr Bailey’s trial, while the second, it is claimed, breached the sub judice rule concerning the civil action for damages of Mr Bailey’s partner, Jules Thomas.

The Phoenix denies any contempt and contends the State is seeking “draconian” reliefs.