A judge has rejected Gemma O’Doherty’s claim that he is biased against her as a basis for not continuing to hear a High Court action over her alleged harassment of a woman.
However, Mr Justice Conor Dignam said while he was satisfied she had not met the legal test for bias and for him to recuse himself, another judge can be available to hear further matters in the action.
The case is being brought by Edel Campbell of Kingscourt, Co Cavan, against Ms O’Doherty, trading as The Irish Light, over the alleged unauthorised use of an image of Ms Campbell’s son Diego Gilsenan, who took his own life. The photo was used in an Irish Light article linking unexplained deaths to the Covid-19 vaccine.
Ms O’Doherty rejects all Ms Campbell’s claims against her.
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As part of her defence of the case, she sought the recusal of Mr Justice Dignam, who granted the original injunction preventing harassment of Ms Campbell, from hearing a further application by Ms Campbell to have Ms O’Doherty sent to prison for contempt over the alleged breach of the injunction.
Ms O’Doherty claims the judge would be biased because, as a barrister, he was part of the legal team which represented former Garda Commissioner Martin Callinan at the Disclosures Tribunal.
She says Mr Callinan had her dismissed from her job as a journalist with Independent News and Media and for which she got an apology in court from the newspaper. She also said a judge in another case being brought against her had recused himself last September on the basis that he too had acted for Mr Callinan and a precedent had been set.
She also said Mr Justice Dignam would not be objective because he had brought her research on German history and the second World War into the Campbell case.
On Thursday, in a written decision, Mr Justice Dignam rejected her arguments as a basis for recusal. He said the test for objective bias is whether a reasonable person, who has knowledge of all of the facts, would have a reasonable apprehension that the party would not have a fair hearing from an impartial judge.
The mere fact that a judge represented a person when in practice as a barrister was not sufficient. “There must be something more. The defendant did not point to anything more,” he said.
He said Ms O’Doherty had not discharged the onus of showing that a reasonable person, armed with all of the correct facts, would have a reasonable apprehension that she would not get a fair hearing on the basis that he represented Mr Callinan.
In relation to the German history matter, he accepted that if a judge has regard to something which is entirely irrelevant may be a basis for a finding of objective basis. However, it was Ms O’Doherty who had brought up German history during her public statements in relation to the Diego Gilsenan death, he said.
He said she had compared the Gilsenan case to what she described as “the holocaust hoax” and how questions are not allowed “about the holohoax because we will offend the Jews”.
She also described it as “the exact same playbook because it comes out of the Jewish Communist playbook.”
The judge was satisfied these matters were relevant to what he had to decide in the Campbell injunction case. However, if he was wrong on this, that is a matter for an appeal rather than a basis for recusal.
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