A JUDGE HAS ruled against an application by Gemma O’Doherty that he recuse himself from hearing a case against her but has voluntarily agreed to refer the case to a different judge.

Mr Justice Dignam ruled that O’Doherty had failed to establish the legal standard for recusal but that he would refer the case to another judge to avoid an appeal that could delay the case proceedings.

O’Doherty has been taken to court by a woman named Edel Campbell, who brought the proceedings over the use of the image of her deceased son, Diego Gilsenan, in the “Irish Light” publication that O’Doherty edits. 

Justice Dignam was hearing the case when O’Doherty requested that he recuse himself.

In a ruling published today, the judge said he was satisfied that the defendant had not established the legal standard for recusal, but that in the interests of justice and a timely hearing, the case should not be allowed to be held up by an appeal on the subject of whether or not he should recuse himself if that could be avoided.

He said he was of the view that while O’Doherty has not met the legal test for bias and recusal, another judge could be available on the adjourned date without causing any delay or additional costs, and as such he would ask for the matter to be assigned to a different judge.

Former client

O’Doherty argued the judge should recuse himself for two reasons, the first of which was that he previously represented the former Garda Commissioner Martin Callinan while he was a barrister.

O’Doherty had said that: “I was not aware of the fact Judge that you represented Martin Callinan when you were a barrister. Now Martin Callinan, as you know, the disgraced former Garda Commissioner, had me removed from my job of twenty years in the Irish Independent as Chief Features Writer because I exposed the fact that he was unlawfully speeding on our roads and abusing the road safety laws and at the time I was working closely with Maurice McCabe.”

She continued: “An apology was read out to me by the President of the High Court in these courts relating to defamation against me by INM and unlawful dismissal and personal injury and I was not aware and I should have been made aware of the fact that you were an agent of Martin Callinan and you cannot possibly hear this case objectively.” 

In his ruling, the judge has written: “I did indeed represent Mr. Callinan in the Disclosures Tribunal. I represented the Commissioner of An Garda Síochána, who originally was Commissioner O’Sullivan, and all serving and retired members of An Garda Síochána who wished to be represented by the lawyers acting for the Commissioner in the Disclosures Tribunal. I did so as a member of a team of seven counsel.”

He said that Callinan, the former Commissioner, was one of the persons represented and that the defendant had given evidence against Callinan to the Tribunal, and that the defendant was cross-examined on behalf of Callinan by a member of the legal team.

“The starting point for an application for recusal on the grounds of bias based on a judge having previously represented a person when in practice as a barrister is that it is not a ground for recusal,” the judge wrote, citing previous case law.

“I am satisfied therefore that there is no cogent and rational link between the representation of Mr. Callinan in the Tribunal and the matters which were put to the defendant in the Tribunal on his behalf and the matters to be decided in this application.”

‘German history’

O’Doherty also argued that the judge should recuse herself because he has, she claimed, a “problem with my research on the Second World War” and had taken “issue with my historical research on German history”.

The remarks that O’Doherty referred to were made by the judge during his ruling on an interlocutory injunction application.

He said at that time that a strong case had been made that the defendant’s conduct at the heart of the case had amounted to harassment.

His verbal remarks were: “I am satisfied that there is a strong case that the repetition of comments to the effect that the plaintiff is a bad mother, ignored her son’s text messages the night he took his life, was a liar, involved in criminality, that her son was involved in criminality, and that he died because of the Covid measures, sorry the Covid vaccine, particularly in the context of some of the other topics covered in those online lectures or discussions, including the denial of the holocaust and antisemitic comments, amounts to harassment.”

This was in reference to commentary by O’Doherty in which she discussed the deaths of young people and claimed, the judge wrote in his ruling, “how persons do not want questions being asked about such deaths, including that of the plaintiff’s son, and comparing this to what she describes as ‘the holocaust hoax’ and how questions are not allowed ‘about the holohoax because we will offend the Jews’ and goes on to describe it as ‘the exact same playbook because it comes out of the Jewish Communist playbook.’ In other instances, different themes are less interwoven but follow in relatively quick time sequence.”

In the ruling published today, the judge has written: “In my view, the defendant’s application is unsustainable because it is based on an incorrect premise; namely that the matters which I had regard to were wholly irrelevant to the issues which I had to decide in the injunction application.”

“Firstly, one of the arguments that was made on behalf of the plaintiff, and therefore which had to be determined by me, was that the Court had to assess what was being said about the plaintiff and her family along with how it was said, how often it was said and what it was said with.

“Secondly, it cannot be suggested that what is discussed on either side of the statements which are alleged to constitute harassment are irrelevant to the determination of whether they might constitute harassment and they certainly can not be so entirely irrelevant as to be evidence of bias.

“Words and conduct take meaning from their context and surrounding words. In my view the question of whether the plaintiff had established a fair issue or a strong case (the latter being the higher test and the one that I applied) that the statements about the plaintiff, her son and her family amount to harassment on the one hand or legitimate comment or investigative reporting on the other must, as was submitted on behalf of the plaintiff, be assessed by reference to the terms of the statements themselves and the context in which they were uttered.

“Thus, in my view, the other topics covered on the same occasions as the statements complained of are relevant and must be considered in assessing whether those statements might amount to harassment.”