Legal argument: The DPP told the family of Ms Sophie Toscan du Plantier in March this year that he did not intend to prosecute any person for her murder, the court was told yesterday at the opening of the trial.
The case remained open, the DPP had said, and the fact that no-one was being prosecuted could change if there was new evidence.
Mr Paul Gallagher SC, for the seven newspapers, read a letter to the DPP from the family saying they intended to issue a summons in civil proceedings against Mr Bailey.
In that they said it would be necessary to have the material gathered by An Garda Síochána. The DPP said he had no objection to the disclosure of this material, but that it was a matter for the Garda, advised by the DPP.
When the case opened yesterday, Mr Don McCarthy, for the State, said a number of members of the force had been subpoenaed for this case, and the file had not been closed.
The State was concerned that if those witnesses were called the material that came into the public domain in this case could prejudice a fair prosecution in the future.
Counsel for Mr Bailey, Mr James Duggan, said that statements obtained by gardaí in the course of the investigation of this crime were not admissible for civil litigation.
"My client was taken in on two occasions and questioned. My client does not admit what is in those statements is actually what happened," he said. "The offending articles, all seven of them, were made within a very short time of when my client was arrested for the first time.
"Those who wrote them could not, and should not, have been aware of the contents of any statements made during the investigation."
Mr Paul Gallagher SC, for the newspapers, said that the material under discussion was relevant.
"We say that Mr Bailey was a suspect. When these articles were published he was the main and only suspect. We say that Mr Bailey was a very violent man. The evidence we are seeking to introduce goes to that.
"Thirdly, we say that Mr Bailey courted publicity. It is unique in my experience that a plaintiff who brings an action is trying to exclude statements he made in relation to the issues."
Mr Justice Patrick Moran rejected Mr McCarthy's application. However, it is likely to be several days before Garda witnesses are called to give evidence.
Mr Justice Moran told Mr Duggan that if he wished to object to any specific evidence at any particular time he could do so.