A High Court judge who, before being appointed, wrote a magazine article querying the source of funding of Libertas - the lobby group founded by businessman Declan Ganley - has been asked not to deal with any pre-trial matters in Mr Ganley's defamation action against RTÉ.
Mr Ganley claims a November 2008 RTÉ Prime Time programme defamed him in using words or innuendo which, he alleges, meant he had links to organised crime; had falsely claimed to be a paid advisor to the Latvian government; was somehow involved in the death of a man with whom he had a close business relationship; caused a fund to lose the life savings of thousands of Albanian pensioners; and was covertly working for the US Central Intelligence Agency and/or "an ill-defined group known as 'Neocons'."
RTÉ denies defamation or that the words complained of meant what Mr Ganley alleges.
The broadcaster has also pleaded truth or justification and that the “sting” of the words, taken as a whole, was Mr Ganley had a tendency to make false or exaggerated claims in respect of business or other matters.
The defamation case was initiated in 2012 and a trial date has yet to be set.
A number of pre-trial applications have been brought, including by Mr Ganley to have aspects of RTÉ’s defence struck out, including that Mr Ganley had a tendency to make false or exaggerated claims in business matters, which he denies.
RTÉ has also applied to cross-examine Mr Ganley about issues arising from documents discovered for the case.
On Thursday, Declan Doyle SC, for Mr Ganley, told Mr Justice Colm MacEochaidh, who manages the list of High Court jury cases, these were “critical” pre-trial applications which could impact on conduct of the case.
Mr Ganley believed the judge should not deal with any of these matters arising from an article written by him, before being appointed a judge, and published in Village magazine on November 26th 2008, counsel said.
The article referred to the "Vote No" anti-Lisbon Treaty campaign run by Libertas in 2008, described that Vote No campaign as "brilliant" but based on "false" claims, raised issues about how Libertas was funded and proposed to the editor of Village there should be a reward scheme aimed at discovering the source of Libertas' funding, counsel said.
When the judge said he knew nothing about the underlying defamation action, counsel read an outline of the claims as set out in a sworn statement by Carl Rooney, a partner in Johnsons, solicitors for Mr Ganley, grounding the recusal application.
Among his claims, Mr Ganley alleges the Prime Time programme meant he had a direct busienss relationship with a man, Kosta Tribecka, who worked for him at a company called Anglo Adriatic. He claims the programe showed pictures of the man's dead body, alongside words linking his death to the Ango Adriatic fund.
This, Mr Ganley claims, raised obvious suspicions he was responsible for, or involved in, Mr Tribecka’s death.
Mr Rooney said Mr Ganley also complained about RTÉ’s characterisation of him as a man who fronts an organisaiton, the funding of which is shrouded in mystery.
Because the 2008 article expressed a view Libertas ran a campaign based on false claims, and supported a “campaign” to discover the source of the funding of Libertas, Mr Ganley did not consider it appropriate for the judge to deal with his case, Mr Rooney said.
Mr Doyle said it is appropriate for a judge to excuse themselves when there is evidence of objective bias. The relevant legal test, whether a reasonable person would have an apprehension a plaintiff would not have a fair hearing from an impartial judge, had been met in this case, counsel submitted.
RTÉ, represented by Luán O Braonáin SC, adopted a neutral position on the recusal application.
The judge will give his decision on a later date.
