Court of Appeal finds judge should have recused himself in contempt of court proceedings

About this case:

• Judgment:
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The case concerned an article published by the appellants, Penfield Enterprises Limited in The Phoenix magazine, which concerned the cases taken by Mr Ian Bailey and his partner, Ms Jules Thomas for wrongful arrest arising out of the murder investigation into the death of Mme. Sophie Toscan du Plantier in December 1996, which was to be heard the following month.

The respondents, Mr Bailey and Ms Thomas requested that the Chief State Solicitor write to the editor of The Phoenix, and brought the case to the attention of the High Court. The Phoenix was not represented at the hearing, which they alleged was due to the short notice given.

This resulted in a letter being sent to the editor, which stated that “Judge Hedigan indicated that the article was reckless and irresponsible. He took the view that it was calculated to interfere with proper progress of the trial”.

The letter also advised that the Court had made an order requiring that the media should not publish any material relating to the article in Phoenix or the fact that it had been mentioned in court until after the determination of the Ian Bailey and Jules Thomas’s trial.

Mr Bailey’s claim commenced six weeks later, and was determined against him. The decision is currently under appeal.

The Phoenix then published another article entitled ‘Will Ian Bailey Appeal?’ leading to another letter being sent by the respondents, claiming that this amounted to contempt of court.

They then brought a motion pursuant to Order 44 of the Rules of the Superior Courts, seeking an attachment and committal and/or sequestration of the assets of the appellants for contempt of court.

Prior to the hearing, the appellants requested that Hedigan J recuse himself from hearing the application because of the views he had earlier expressed concerning the previous article.

However, the trial judge refused the application, finding that his position similar to that of ajudge who had discharged a jury in a criminal trial based on a publication which he feared might influence the result, and who nonetheless would proceed to hear the application for contempt arising out of such publication.

This practice, he was satisfied, was pursued because the judge in the criminal trial was best positioned to make the relevant assessment on the contempt motion and he considered himself to be in an analogous position.

Secondly, he was satisfied that he could afford The Phoenix and its editor an impartial hearing.

Thirdly, he considered it relevant that there was, in his view, no other judge who was as familiar with the case as he was and that this was a factor to be taken into account.

Finally, he was satisfied that no judge should recuse himself from hearing any application absent “very powerful reasons” and there were none such in this case.

The Appeal Court made its starting point the right and duty of judges to hear and determine all cases or legal issues that come before them, unless there are substantial reasons why they should not.

It was then noted that the test for deciding objective bias had been widely canvassed in case law, including in Dublin Well Woman Centre Limited v. Ireland ILRM 408; Bula Limited v. Tara Mines Limited (No. 6) 4 I.R. 412; Goode Concrete v. CRH plc IESC 70; O’Callaghan & Ors. v. Mahon and others (No.2) IESC17, 2 I.R. 514.

The onus was found to rest on the party who asks the judge to recuse themselves, and the standard of proof was whether a reasonable person with knowledge of the circumstances and facts would have a reasonable apprehension that there would not be a fair trial, as established by the Constitutional Court of South Africa in President of the Republic of South Africa v. South African Rugby Football Union (4) S.A. 147 and Goode Concrete v. CRH plc & Ors. IESC 70, 2 I.L.R.M. 289.

In considering whether comments or actions should be classified as bias, it was found to be relevant to consider whether the words or actions would suggest that the judge had prejudged the issue, as stated in Fogarty v. District Judge Hugh O’Donnell IEHC 198.

In O’Callaghan v. Mahon, Fennelly J stressed how important it was for the practical administration of justice that trial judges should not be required to refrain from expressing their views on the issues before them in lest they be charged with pre-judgment.

The Appeal Court expressed some concerns about this approach, noting that it was all too easy for judges, because of their long association with litigation and the legal process, to fail to recognise the extent to which strongly worded criticism or the forceful expression of their opinion on issues to be decided may have on litigants who come to court perhaps but once in the course of their lifetime.

The Court considered the import of what occurred in the hearing from the point of view of the reasonable person armed with knowledge of all of the relevant circumstances, including the nature of the contempt application, the proof that would be required for it to be successful and the potential consequences for the guilty party should that application prove successful.

Before doing so, it recognized some of the dangers and pitfalls of recusal applications. It was observed that recusal could disrupt the ordinary conduct of litigation, could have adverse implications for the parties, and could lead to delay. Fortunately, this was not the case in the present proceedings.

It was also true that applications to commit a party for contempt of court should, where reasonably possible, be heard by the judge who is most familiar with the proceedings, regardless of whether that application is to be made in the context of civil or criminal proceedings.

However, if the judge had made pronouncements that might raise the apprehension in the mind of a reasonable man that the respondent might not obtain a fair hearing by reason of bias and/or prejudgment, then, regardless of the consequences from an administrative or financial perspective, the judge must recuse himself from hearing the motion.

In the present case, the Court was satisfied that a reasonable person, having knowledge of all of the relevant circumstances, might well apprehend that the appellants might not receive a fair and impartial hearing on the committal motion because of the opinions expressed by the judge and his repeated stern criticism of the article and its publisher.

Thus, while the Court sympathized with the position of the trial judge, the reference to the article being “reckless and irresponsible” was enough to satisfy the objective bias case.

The appeal was therefore allowed.