The Court of Appeal has ordered a retrial of one part of Ian Bailey’s civil action against State defendants: his claim that Gardaí unlawfully disclosed confidential witness statements to newspaper defendants or their solicitors before his 2003 defamation proceedings.
In a joint judgment delivered on 26 July 2017, the court allowed Bailey’s appeal only on that issue. It held that the claim was not statute-barred and sent it back to the High Court for a rehearing. The judgment did not decide whether any disclosure occurred or whether it was unlawful.
Bailey’s action, begun in May 2007, alleged that members of An Garda Síochána conspired to harm his reputation and breach his constitutional rights during the investigation into the 1996 murder of Sophie Toscan du Plantier. He has denied involvement in the murder. No one had been charged with it in Ireland as of the judgment. The DPP had decided there was insufficient evidence to prosecute Bailey, a decision the judgment says was reviewed and confirmed on a number of occasions.
At trial, the High Court ruled that most of Bailey’s claims were outside the six-year limitation period. It allowed two questions about alleged Garda efforts to procure false statements from Marie Farrell to go to the jury. The jury answered both questions against Bailey. The Court of Appeal upheld the finding that the alleged conspiracy concerning Farrell’s statements, if it existed, could be treated as continuing because the statements remained on the Garda file and could still be acted upon. The court dismissed the State defendants’ cross-appeal against that ruling.
The Court of Appeal otherwise dismissed Bailey’s appeal. It upheld the trial judge’s decision to permit the State defendants to raise the limitation defence, and agreed that most other claims concerned events before May 2001 and were time-barred. It also upheld decisions restricting opinion evidence from former DPP officials and excluding proposed evidence from former senior British police officer Robert Quick. The court found no basis to overturn the trial judge’s warning to Farrell about giving evidence, or his handling of defence counsel’s comments during her cross-examination.
The retrial is limited to whether Gardaí disclosed information from witness statements to the newspaper defendants or their solicitors before a discovery order, and whether that gave rise to unlawful means conspiracy or breach of Bailey’s constitutional right to privacy. The judgment records that the terms of the settlement in Bailey’s defamation appeal were confidential; it does not determine the merits of this disclosure claim.