Judge recuses himself from defamation trial due to prior article alleging plaintiff's campaign used false claims.

Neutral Citation: [2016] IEHC 217

THE HIGH COURT

[2011 No. 11617 P]

BETWEEN

DECLAN GANLEY

PLAINTIFF

AND

RAIDIÓ TEILIFÍS ÉIREANN

DEFENDANT

JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 26th day of April, 2016.

Introduction:

1. This is the plaintiff’s motion that I be recused from hearing any matter connected with these defamation proceedings which arise

out of a documentary programme aired by the defendant about the plaintiff. The defendant has adopted a neutral position on the

motion.

2. The motion for recusal arises from the plaintiff’s concern about an article I wrote approximately four years before I became a judge

which was published in Village magazine in which I expressed certain views about Libertas, a political party founded by the plaintiff,

and its campaign against the Lisbon Treaty in 2008. I also expressed views about the plaintiff. The article has been exhibited by the

plaintiff in the affidavit grounding this application.

The article:

3. Part of the article was as follows:-

“It is a pity that the Irish people rejected the treaty. Most of the No campaign was based on false assertions. The

Treaty did not reduce the one commissioner per state rule (that was done by earlier provision). It did not seek to

introduce abortion, gay marriage or euthanasia. It did not require Ireland to harmonise her tax code and abolish the low

corporate tax rate. It did not require the Irish army to participate in a European army. Lisbon rules could not even order

an Irish soldier to tie her shoe laces!

The Lisbon Campaign in Ireland

Libertas ran a brilliant “Vote No” campaign, albeit one based on false claims. It was spectacularly well funded.

…

But I cannot understand what motivated Libertas. Mr. Ganley voted in favour of each European Treaty – including

Maastricht and the Single European Act. But mild-mannered Lisbon made him snap. I want to know why.

The only way the motivation for the Libertas campaign can be verified is by knowing who paid for it. Declan Ganley won’t

tell us and he is not required by law to tell us more than he told the authorities in Ireland. Our financial disclosure rules

for referendum campaigners are weak.

It seems to me that a second referendum on the Lisbon Treaty is unavoidable – politically, at least. And Libertas will be

back with more well-funded false assertions designed to ensure that the European Union cannot begin operating under

the Lisbon rules….”

4. Counsel for the plaintiff, Mr. Declan Doyle S.C., submits that on the basis of the comments in the article, in particular

that Libertas made false assertions in the course of its anti-Lisbon campaign, a reasonable person would have a

reasonable apprehension that the court is not neutral on whether or not Mr. Ganley makes false assertions, a matter

having a direct bearing on these proceedings because the case the defendant seeks to prove is that the plaintiff made

false claims about various matters (unrelated to the content of the Lisbon Treaty).

The test for objective bias:

5. There is well settled case law as to the test to be applied by a court when considering the issue of objective bias. It has been

most recently set out by the Supreme Court decision in Goode Concrete v. C.R.H. plc & ors [2015] I.E.S.C. 70. The test was stated

by Denham J. (as she then was) in Bula Ltd v. Tara Mines Ltd [2000] 4 I.R. 412 as follows:-

“…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.”

6. The circumstances in which the test applies were at issue in Dublin Well Woman Centre Ltd v. Ireland [1995] 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. Carroll J. did not think she was biased but 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.

7. Counsel for the plaintiff submitted that a reasonable person would have a reasonable apprehension that the plaintiff would not have

a fair hearing from an impartial judge because the views expressed by me indicate that I held a view in the past that Mr. Ganley made

false claims, albeit about matters unconnected with the statements about which complaints are made in these proceedings.

8. I agree with Mr. Doyle S.C. that the test for objective bias is unrelated to the statement made by the judge giving rise to the

apprehension of bias. Even if what I said about the anti-Lisbon campaign was incorrect and unfair, I cannot deny that I 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.

Decision:

9. Like most judges asked to be recused I am confident that I would preside over any aspect of this case in accordance with the

declaration I made when I became a judge which was to act “…without fear or favour, affection or ill-will towards any man….” (see

Art. 34 of the Constitution). However I am satisfied that an objective person with full knowledge of the article I wrote and with full

knowledge of the issues in these proceedings could reasonably conclude that I have a view of the plaintiff which is inimical to his

efforts to overcome the defendant’s allegation that he is a person who makes false claims. I would not be viewed by such a

hypothetical person as impartial as to that issue and that issue is of central importance in the proceedings.

10. I therefore agree that I should not preside over any aspect of these proceedings. As I am the judge in charge of the jury list at

present it may be necessary for me to deal with minor aspects of the case from time to time and provided the plaintiff has no

objection, I am happy to do that if that is what the parties wish.