Judge recused from defamation case due to article written about plaintiff

Mr Justice Col MacEochaidh has agreed that he be recused from hearing any matter connected with defamation proceedings brought by Declan Ganley against RTE.

The plaintiff had raised concerns over an article the judge had written four years before he became a judge which was published in Village magazine.

The article expressed certain views about Libertas, a political party founded by the plaintiff which had campaigned against the Lisbon Treaty in 2008. It also expressed certain views about the plaintiff.

The article argued that Libertas had based their campaign on false claims, and had been “spectacularly well funded”. Mr Mac Eochaidh had stated a wish to know who paid for the campaign, and that Declan Ganley was not forthcoming with such information.

The plaintiff argued that the comments in the article, in particular that Libertas made false assertions in the course of its anti-Lisbon campaign, might give a reasonable person a reasonable apprehension that the court would not be not neutral on whether or not Mr Ganley makes false assertions.

This matter would have a direct bearing on the proceedings, as the case the defendant sought to prove was that the plaintiff made false claims about various matters (unrelated to the content of the Lisbon Treaty).

The judge observed that there was well settled case law as to the test to be applied when considering objective bias.

The test was stated in Bula Ltd v. Tara Mines Ltd 4 I.R. 412 as:

“…the test to be applied is objective, it is whether a reasonable person in the circumstances would have a reasonable apprehension that the applicants would not have a fair hearing from an impartial judge on the issues.”

This had been reaffirmed most recently in the Supreme Court decision in Goode Concrete v. C.R.H. plc & ors I.E.S.C. 70.

The circumstances in which the test applies were at issue in Dublin Well Woman Centre Ltd v. Ireland 1 I.L.R.M. 408 where statements of a judge in a non judicial capacity on issues which clearly related to a case the Judge was about to hear were examined. While Carroll J. did not think she was biased, the Supreme Court found that an objective person might not have the same view.

A further aspect to the test for objective bias articulated by Denham J. is that the test invokes the apprehension of the reasonable person only. The views of the plaintiff or the court are irrelevant.

The judge in the present case agreed with counsel for the plaintiff that the test for objective bias was unrelated to the statement made. Thus, even if what the judge had written was incorrect and unfair, he could not deny that he alleged that a political campaign in which the plaintiff played a major role was based on false claims about the meaning of the Treaty of Lisbon.

The judge opined that he was confident that he would preside over any aspect of the case in accordance with the declaration he made when he became a judge: to act “…without fear or favour, affection or ill-will towards any man….” (see Art. 34 of the Constitution).

However, he agreed that an objective person with full knowledge of the facts could reasonably conclude that he would have a view of the plaintiff which would be inimical to his efforts to overcome the defendant’s allegation that he is a person who makes false claims.

The judge therefore agreed not to preside over any aspect of the proceedings.

As he was currently the judge in charge of the jury list, he would be happy to deal with minor aspects of the case, as long as the plaintiff had no objection.

  • by Rachel Killean for Irish Legal News
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