Bailey partner loses judge challenge

The judge who presided over Ian Bailey’s failed action for damages against the State over the investigation into the murder of Sophie Toscan du Plantier has refused an application by Mr Bailey’s partner Jules Thomas to refrain from deciding further matters in her action.

Mr Justice John Hedigan said Ms Thomas had made out no grounds to support her claim that a reasonable person in her position would have a reasonable apprehension of objective bias on the judge’s part arising from comments made by him when dealing last month with pre-trial matters in her case. Following his decision, he adjourned those matters for mention in December.

Ms Thomas had asked Mr Justice Hedigan not to deal with further matters in her case, including her pre-trial application to amend her claim so as to allege fraud against the defendants and to allege she was so traumatised by their alleged actions she was unable to bring her action, relating to events in 1997 and 2000, until 2007.

The defendants are also advancing a preliminary issue concerning whether large aspects of her claim, which includes claims of wrongful arrest in 1997 and 2000, are brought outside the relevant time limits.

Making the recusal application, counsel Michael Lynn said Ms Thomas is concerned she may not get a full and impartial hearing.

Paul O’Higgins, counsel for the defendants, argued there was no basis for arguing a reasonable apprehension of objective bias on the part of the judge.

Refusing the application, Mr Justice Hedigan said Ms Thomas had failed to show a reasonable person would have a reasonable apprehension they would not get an impartial hearing before him of the pre-trial matters.

The comments objected to had to be read in the context of the entire hearing last month during which he made clear he had not come to conclusions about the matters at issue, he said. The comments must also be seen in the context where he had dealt with Mr Bailey’s case for some time, a case Ms Thomas was very familiar with.

Comments he made about the difficulty of amending a claim made eight years ago was “a statement of the obvious”, he said. Many difficult arguments are heard by judges with some misgivings of their arguablity only to be convinced later, he added.

His comment that it was in nobody’s interest there should be an inordinately long trial of Ms Thomas’ case was also little more than a statement of the obvious, he said. He had said he had no doubt whatever that the trauma and strain on Ms Thomas and upon the defendants in the course of the Bailey case was “enormous” and, “if it was possible” to avoid subjecting people to that again, the court was obliged to do so.