Commissioner of an Garda Síochána v Penfield Enterprises Ltd

CourtCourt of Appeal (Ireland)
JudgeMs. Justice Irvine
Judgment Date11 May 2016
Neutral Citation[2016] IECA 141
Docket Number[2015 No. 387]
Date11 May 2016

Irvine J.

Sheehan J.

Hogan J.



- AND -



[2016] IECA 141

Irvine J.

[2015 No. 387]


Contempt of court – Recusal – Objective bias – Appellants seeking recusal of High Court judge – Whether appellants met the threshold for objective bias

Facts: The first appellant, Penfield Enterprises Ltd (publishers of Phoenix magazine), on 26th September 2014, published an article concerning the cases taken by Mr Bailey and his partner, Ms Thomas, for wrongful arrest arising out of the murder investigation into the death of Mme Toscan du Plantier in 1996. The second appellant, Mr Prendiville, is the editor of Phoenix magazine. On 10th October 2014, the respondents, the Commissioner of An Garda Síochána, the Minister for Justice, Equality and Law Reform, Ireland and the Attorney General, who were the defendants in the aforementioned civil proceedings, drew Hedigan J?s attention to the article, maintaining that it constituted an effort to derail the civil claim for wrongful arrest and that it amounted to contempt of court. Hedigan J indicated that the article was reckless and irresponsible. An order was made requiring that the media should not publish any material relating to the article or the fact that it had been mentioned in court until after the determination of the Bailey and Thomas trial. On 24th April 2015,?Phoenix published a further article entitled ?Will Ian Bailey appeal?? On 11th May 2015, the respondents brought a motion pursuant to Ord. 44 of the Rules of the Superior Courts seeking the attachment and committal and/or sequestration of the assets of the appellants for contempt of court in respect of the articles which they had published on 26th September 2014 and 24th April 2015. The motion also sought an injunction restraining Phoenix and its editor from publishing any further material calculated to interfere with the Thomas litigation. Prior to the hearing of the committal application, the appellants made a request to Hedigan J to recuse himself from hearing the application because of the views he had earlier expressed concerning the article of 26th September 2015. On 20th July 2015 the trial judge refused the application that he recuse himself from hearing the contempt motion. The appellants appealed to the Court of Appeal against that High Court ruling, submitting that Hedigan J applied the wrong test when he refused to recuse himself from hearing the contempt motion on the grounds of apprehended bias, relying upon O?Callaghan v Mahon?[2008] 2 IR 514. The respondents submitted that while the trial judge had used words such as ?reckless? and ?irresponsible? in describing the article, he had not voiced any view as to whether the article constituted a contempt of court or was a breach of the?sub judice?rule and in particular had noted that any judicial determination in respect of the article would be dealt with having heard any submissions that might be made by the respondent party. Thus, the respondents argued that the reasonable man was unlikely to apprehend that the judge had prejudged the matter or might not afford Phoenix and its editor a fair or impartial hearing.

Held by Irvine J that the repeated reference by the High Court judge to the article of 26th September 2014 as being ?reckless and irresponsible?, when considered in the context of the inference to be drawn from his reference to the conduct of the rest of the media as well as unsolicited invitation to the Chief State Solicitor to bring a motion for contempt should there be any repetition by Phoenix, satisfied the Court that the appellants had met the threshold for objective bias. Irvine J was satisfied that a reasonable and fair–minded objective observer, who was not unduly sensitive, but who was in possession of all of the relevant facts, might reasonably apprehend that there was a risk that the High Court judge might not afford the appellants a fair and impartial hearing on the contempt motion. Irvine J was satisfied that the High Court judge ought to have recused himself from hearing the committal motion in its totality.

Irvine J held that she would allow the appeal.

Appeal allowed.

JUDGMENT of Ms. Justice Irvine delivered on 11th day of May 2016

This is the defendants' appeal against a ruling of the High Court (Hedigan J.) made on 20th July, 2015, whereby he refused to recuse himself from hearing a committal motion listed before him on that date. Accordingly, core to this appeal, are the circumstances in which a judge should yield to such an application.

Background Facts

On 26th September 2014, the first named appellant, Penfield Enterprises Limited, (?Phoenix?), published an article concerning 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. Mr. Bailey's case was due for hearing the following month. The second appellant is the editor of Phoenix magazine.


The respondents to this appeal, who are the defendants in the aforementioned civil proceedings, took exception to the content of the article and as a result the Chief State Solicitor, on their behalf, wrote to the editor of Phoenix on 9th October 2014, to express concerns regarding the content of the article.


The second paragraph of the aforementioned letter reads as follows:-

?The piece was grossly improper and a clear contempt of court. It sought to rehearse evidence which may or may not be called in the case. It sought to suggest to the public, including potential jurors that ?unsurprisingly? the State has made efforts to settle the cases. It implied that despite a supposed offer of settlement Ian Bailey had refused this. It described the behaviour of the State as ?shocking?. It then speculated that settlement amounts would have to be very large and purported to give information about the size of the plaintiffs' legal bills.?


The aforementioned letter also gave notice that the publication would be brought to the attention of the High Court the following day, i.e., 10th October, 2014.


It is common case that the appellants were not represented before the court on 10th October, 2014, when the article was brought to the attention of Mr. Justice Hedigan. In this regard, the appellants have at all times maintained that this was because of the shortness of the notice given by the Chief State Solicitor, an excuse or justification which is not accepted as reasonable by the respondents.


In any event, on 10th October 2014, the respondents drew the judge's attention to the article. It is not disputed that in the course of that hearing they maintained that the article constituted an effort to derail the upcoming civil claim for wrongful arrest and that the publication amounted to contempt of court. It should be said that the appellants maintain that the article could not be considered to amount to contempt of court. All of the facts stated in the article were, they maintain, in the public domain before the article appeared. Further, no judge had been assigned to the case, no jury had been empanelled and in these circumstances the article could not have been in breach of the sub judice rule.


It is accepted that when the respondents complained to Hedigan J. about this article they did so in an effort to ensure that the appellants did not further air the matters mentioned in the particular article before the trials had been disposed of. They did not ask the court to make any findings in respect of the article but asked the court informally to issue a warning that there should be no further reporting or mention of this particular article prior to the disposal of both actions.


The following is what the High Court judge stated following the respondents' application:-

?Well, I am glad you mentioned this, Mr. O'Higgins, because I read this article myself and I think you correctly characterise it as reckless. It is a reckless and irresponsible article in the light of a case of great controversy which is due to come on before the courts. I have noted and I have said it before that all of the media, with the exception of this particular article, in their coverage so far have, I thought, conducted themselves with great responsibility. It is a controversial and difficult case and I think that the media have generally speaking tried very hard, whilst exercising their obligations to report what goes on in the courts, have trod (sic) very, very carefully in complete contrast to this article which, as you've said, is a reckless and irresponsible article in relation to a case of this sort that is about to come on. Yes, I would direct that the other media should not make any reference to the contents of this article in the Phoenix magazine other than to say that it has been described as a reckless and irresponsible piece of journalism in relation to a case of such controversy imminently due to go before a jury and with complete disregard for the right of both sides to have a jury that has not been prejudiced in advance hear the actual case. In the event that there's any further repetition of that I think I would strongly urge the State to bring proceedings before the court and certainly the court will deal with it as seems appropriate at the time having heard any submissions that might be made by the respondent party.?


The judge's pronouncements were then incorporated in a letter sent by the respondents to the editor of Phoenix on 13th October 2014. The editor was advised as...

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