The Court of Appeal has overturned its decision to permit a retrial of part of Ian Bailey’s civil action for damages, over the conduct of the garda investigation into the murder of Sophie Toscan du Plantier.
The effect of yesterday’s decision is that Mr Bailey has lost his entire appeal, over the dismissal of his High Court action. Lawyers for Mr Bailey said they will consider whether to appeal the Court of Appeal ruling.
The State had applied to have an aspect of the Court of Appeal judgement of July 2017 overturned, arguing it was based on a “plain error”.
The three-judge appeal court, comprising Ms Justice Mary Finlay Geoghegan, Mr Justice George Birmingham, and Mr Justice Gerard Hogan, agreed, yesterday, that the decision was based on an error and the interests of justice required the court to quash it.
The ground of appeal, which the Court of Appeal had allowed, was whether the High Court trial judge erred in not allowing the jury decide if alleged leaking by gardaí of confidential information to solicitors for media organisations, prior to the hearing of Mr Bailey’s libel cases against various media, in late 2003, breached his constitutional right to privacy.
Mr Bailey claimed gardaí disclosed information to the media, from statements made by Marie Farrell, a key witness in the murder investigation, before Circuit Court libel proceedings.
The Court Of Appeal said that particular claim was not statute-barred and the trial judge, Mr Justice John Hedigan, was wrong not to let it be decided by the jury.
The State argued the trial judge, contrary to what the Appeal Court judgement indicated, had not made a statute-barred “ruling”, refusing to let the alleged wrongful disclosure issue go to the jury, but rather made a ‘no case to answer’ “observation”.
It also argued there was no admissible evidence to support the claim of alleged wrongful disclosure of witness statements to the media and that what was involved was “hearsay”.
Mr Bailey’s lawyers argued the State had not “come anywhere near” the necessary threshold for the court to review a written judgement, the alleged wrongful disclosure issue should have been permitted go to the jury and there was evidence to support that claim, including from Ms Farrell.
Giving the Court of Appeal decision, yesterday, Ms Justice Finlay Geoghegan said the alleged error in the Court of Appeal decision was the Appeal Court had said the trial judge gave a “ruling” on the adequacy of the claim about alleged disclosure of witness statements by gardaí. The State argued those were just observations by the trial judge, she said.
The Court of Appeal had decided its judgement had erred in referring to a “ruling” and it should revisit that aspect of its judgement.
Based on its findings, it had jurisdiction to examine the error and its consequences for the Appeal Court judgement, the court said it also had to consider if there was sufficient evidence on the wrongful disclosures claim to go to the jury.
It said the only potentially relevant admissible evidence of the fact the media and their lawyers had the statements was a “bald” statement by Mr Bailey and there was no direct evidence gardaí disclosed the statements.
The evidence of Mr Bailey was not sufficient to allow the jury consider that issue and the jury could not permissibly draw an inference from Mr Bailey’s evidence in that regard, it said.