‘Phoenix’ magazine appeals judge’s refusal not to hear case

The publishers of Phoenix magazine are appealing against a High Court judge's refusal to recuse himself from hearing proceedings for alleged contempt over two articles related to 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 on Monday before the judge.

After Paul O’Higgins SC, 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 while he understood the State’s argument that it was more practical to proceed with the hearing, 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.

Adjourning the matter for mention in October, the judge added he would not be amenable to the other option of letting the matter proceed as of now before another judge.

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 a High Court jury earlier this year rejected his claim a number of gardaí conspired to frame him for the late 1996 murder of the French film maker near her holiday home at Toomore, Schull, Co Cork.

Prior to the opening of Mr Bailey’s action last November, the Garda Commissioner and State initiated proceedings last October against Penfield Enterprises alleging contempt arising from an article published on September 26th, 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.

A hearing date for Ms Thomas’ action has yet to be fixed while the defendants’ pre-trial application to strike out Mr Thomas’ action on grounds it was initiated outside the applicable legal time limits will be heard in October.

Mr Justice Hedigan was the trial judge for Mr Bailey’s action and also case managed it prior to hearing. The publisher’s recusal application arose from comments made by the judge, when the first contempt matter was before him last October, including a remark the September 2014 article was reckless and irresponsible.

Having heard the sides, Mr Justice Hedigan ruled last week no grounds had been established justifying his recusal and said the contempt claim mainly centred on legal issues. He was also the judge most familiar with the matters at issue, he added.