The Court of Appeal allowed an appeal by Penfield Enterprises Limited, publisher of Phoenix magazine, and its editor, Paddy Prendiville, over a High Court judge’s refusal to step aside from a contempt motion concerning two magazine articles.
The appeal concerned only whether the High Court judge, Hedigan J., should hear the motion. The Court of Appeal did not decide whether either article amounted to contempt of court. The contempt motion also sought attachment and committal and/or sequestration of assets, and an injunction against further publications said to interfere with separate litigation.
The dispute followed a September 2014 Phoenix article about wrongful-arrest proceedings brought by Ian Bailey and Jules Thomas in connection with the investigation into the 1996 murder of Sophie Toscan du Plantier. The State parties complained to the High Court that the article was improper and could affect the proceedings. The publishers were not represented at the October 2014 hearing. Hedigan J. described the article as “reckless and irresponsible” and urged the State to bring proceedings if there was further repetition. He did not make a finding of contempt at that hearing.
After Phoenix published a second article in April 2015, the State parties brought a contempt motion concerning both articles. Before it was heard, the publishers asked Hedigan J. to recuse himself because of his earlier comments. He refused, considering that he could hear the matter impartially and that his familiarity with the related litigation was relevant.
In the appeal, the publishers argued that a reasonable observer could apprehend that the judge had prejudged the contempt issue. The State parties accepted the objective test but argued that the judge had not ruled on contempt and could consider submissions at the hearing.
The Court of Appeal said the recusal question was whether a reasonable, informed and fair-minded observer might apprehend a risk that the publishers would not receive a fair and impartial hearing. It found that the judge’s repeated criticism, his comparison with other media coverage and his invitation to bring contempt proceedings could give rise to that apprehension concerning the September article.
Although the judge had made no comparable comments about the April article, both were part of the same motion. The court concluded that the motion should be heard as a whole by another judge and allowed the appeal. The judgment did not determine the merits of the contempt allegations or the relief sought in the motion.