The Court of Appeal has withdrawn its earlier direction for a retrial of Ian Bailey’s claim that Gardaí unlawfully disclosed confidential information before his 2003 defamation proceedings. It concluded that the trial evidence did not provide an admissible basis for leaving the alleged disclosure to a jury.
The ruling, delivered by Ms Justice Finlay Geoghegan on 14 March 2018, reconsidered part of the court’s July 2017 appeal judgment before the final order was made. The court said it had mistakenly treated comments by the High Court trial judge as a ruling that there was sufficient evidence for a jury to consider the disclosure allegation.
Bailey’s wider case sought damages for alleged torts connected with the Garda investigation into the 1996 murder of Sophie Toscan du Plantier. At trial, the jury rejected the questions put to it and his claim was dismissed. In 2017, the Court of Appeal dismissed the appeal and the State defendants’ cross-appeal apart from the disclosure issue, which it considered not statute-barred and directed for retrial.
The State defendants asked the appeal court to reconsider that direction, arguing that the trial judge had not ruled that the evidence was sufficient and that the appeal court had not resolved whether the issue should have gone to the jury. Bailey accepted that the trial judge’s remarks cited in the earlier appeal judgment were not a ruling, but argued that the evidence could support an inference of disclosure.
The appeal court examined evidence that Bailey said he became aware that newspaper defendants had Garda statements before the defamation hearing. Marie Farrell testified that solicitors told her they had statements or access to a Garda file, and Cery Williams said she presumed solicitors knew her name because she had made a Garda statement. The court held that Farrell’s account of what the solicitors allegedly told her could not be used to prove the truth of the alleged disclosure under the hearsay rule. It found Bailey’s statement insufficient to support a jury inference and said Williams’s evidence did not advance the claim. Evidence from retired Detective Superintendent Dermot Dwyer about Garda assistance in getting Farrell to court did not establish that statements or names had been disclosed.
The court found that, in these circumstances, the earlier error could risk unfairness to the State defendants and justified reopening the decision before the order was finalised. It concluded that any failure by the trial judge to rule on the disclosure issue had not prejudiced Bailey because the evidence was insufficient to leave it to the jury. The final order dismissed both the plaintiff’s appeal and the State defendants’ cross-appeal. The court did not direct a retrial on the disclosure claim.