The judge who presided over Ian Bailey’s failed action for damages against the Garda Commissioner and 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 any further matters in her separate 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. He adjourned those matters for mention in early December.
Ms Thomas had asked Mr Justice Hedigan not to deal with any 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, which relates 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, Michael Lynn SC said Ms Thomas is concerned she may not get a full and impartial hearing. She also contended a reasonable person in similar circumstances to her would hold the same view.
The apprehension of objective bias arose from comments the judge made last month, including remarks relating to the desirablity of shortening her case if possible, when permitting lawyers for the defendants bring preliminary applications which may lead to large aspects of her case being struck out.
The judge had said, from his experience of the Bailey case, he believed anything that could be done to shorten, or even fully strike out Ms Thomas’s case, should, if possible, be done. That was in the interests of all involved, including Ms Thomas, he added.
Other comments, including remarks Ms Thomas might face a “high hurdle” in establishing she was entitled to amend her case now, were also relied upon to ground the recusal application. It was not just important justice be done but also that it is seen to be done and the court should “err on the side of caution”, Mr Lynn said.
Paul O’Higgins SC, for the defendants, argued there was no basis for arguing a reasonable apprehension of objective bias on the part of the judge. The comments must be seen in context, including the reality that the judge had been managing the cases of Mr Bailey and Ms Thomas for more than two years, he said.
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 any conclusions about the matters at issue, he said. The comments must also be seen in the overall context where he had dealt with Mr Bailey’s case for some time, a case with which Ms Thomas was very familiar.
The comments he made about the difficulty of amending a claim made eight years ago was “a statement of the obvious”, he said. Many diffcult arguments are heard by judges with some misgivings of their arguablity only to be convinced later by the arguments, 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.
