The High Court has rejected Gemma O’Doherty’s application for Mr Justice Dignam to recuse himself from a pending application to commit her for alleged breach of an injunction. The judge nevertheless arranged for another judge to hear that application, saying this could avoid delay and additional costs.
In a judgment delivered on 16 May 2024, Mr Justice Dignam said Ms O’Doherty had not met the legal test for bias on either of the grounds she raised: his past role as a barrister representing former Garda Commissioner Martin Callinan, and his consideration of German history in an earlier injunction ruling.
The underlying committal application concerns an injunction granted on 23 June 2023. It included an order restraining Ms O’Doherty from harassing, intimidating or communicating by any means with Edel Campbell or her immediate family. The plaintiff’s motion for attachment and committal was issued on 27 November 2023. Mr Justice Dignam said Sanfey J made an attachment order on 21 February 2024, which Gardaí executed at Ms O’Doherty’s home on 10 April. She was brought before the court to explain why she should not be committed to prison.
The recusal ruling does not decide whether Ms O’Doherty breached the injunction or should be committed. Mr Justice Dignam said the alleged statements underlying the motion had not been denied, so the court would not need to determine whether those facts were correct. The question of whether they amount to harassment, and the defendant’s argument that the injunction and application breached the rules against maintenance and champerty, remained unresolved.
On the representation of Mr Callinan, the judge said he had been one of seven counsel on a team representing the Garda Commissioner and serving or retired members who wished to be represented through that team. Ms O’Doherty had given evidence against Mr Callinan at the Disclosures Tribunal and was cross-examined on his behalf. Mr Justice Dignam concluded that the prior professional connection, without a cogent link to the issues in the committal application, did not establish a reasonable apprehension that she would not receive a fair hearing.
On the German history ground, the judge said the context surrounding the statements at issue was relevant to the earlier injunction application, which considered whether the material amounted to harassment or legitimate comment or reporting. He said any error in considering that context would be a matter for appeal, not a basis for recusal. Ms O’Doherty had not appealed the injunction or applied to have it discharged, according to the judgment.
Mr Justice Dignam said the committal motion concerned alleged serious breaches of a court order and should be determined expeditiously, while respecting the parties’ rights. As another judge could take the case without delay or added cost, he asked Sanfey J, who manages the Chancery list, to assign it to a different judge. The judgment also records that the court did not rule on Ms O’Doherty’s submission that the hearing could not proceed because some attendees were outside the courtroom. The maintenance and champerty issue remains for determination.