A HIGH Court judge has threatened — for the second time in a week — to refer a lawyer representing Sinn Fein to a professional body after what he saw as disrespect to the court.
Mr Justice Gillen’s patience ran out during terse exchanges in Belfast’s High Court on Thursday at a pre-trial hearing in a libel action brought by former Northern Ireland Water director Declan Gormley against Sinn Fein over press releases which he alleges are defamatory.
Last Friday, the barrister acting for Sinn Fein, Martin McCann, had been admonished three times by Mr Justice Gillen about his conduct in court before the judge threatened to refer him to a professional body and said: “I really am cross about this.”
Today in court, after Mr Justice Gillen had told the defence lawyer that it was a “very complex area of law” Mr McCann referred to the News Letter report of Saturday’s exchanges, telling the judge: “There is a journalist sitting here.” Motioning to the press bench, the judge said he was aware a reporter was in court.
Mr McCann then made clear that he had read the relevant legal textbooks and added: “I do have [legal] expertise”. The judge said that he was not saying otherwise but added that, just days ahead of the trial, clarifications about the defence were coming “far too late”.
The judge gave the defence until 4pm on Thursday to supply amended documents to Mr Gormley’s lawyers but did not accede to a request by them for affidavits from Sinn Fein members clarifying legal issues.
Last Friday’s hearing had been expected to be the final hearing before the jury is sworn in on Monday. However, Mr Gormley’s lawyers yesterday returned to court over what they alleged were deficiencies in Sinn Fein’s outline defence which made it difficult for them to properly prepare for Monday’s hearing.
Nicolas Hanna QC for Mr Gormley argued that the defence — which is largely based on a claim for qualified privilege,arguing that the press releases attacking Mr Gormley were a response to an attack by him — needed to spell out the exact attack to which it referred.
A UTV Insight programme about Mr Gormley’s sacking — something which will be an important part of the trial — was raised.
Mr Justice Gillen said to Mr McCann several times that it was not sufficient to use broad phrases such as “all the emails” or “the UTV programme”, but rather it was necessary to specify the words which it is claimed constituted an attack.
Mr McCann, insisting several times that he had specified the attack, then spoke loudly.
The judge said: “If you raise your voice to me again, Mr McCann, I promise I will refer you tot he professional standards body; immediately. That is the second time.”
Mr McCann said: “I apologise my lord.”
As Mr Justice Gillen told Mr McCann to be more specific about the alleged attacks by Mr Gormley to which he was referring.
Mr McCann said that the transcript of the UTV programme was 50 or 60 pages long and it was impractical for him to go through all of it.
He told the judge: “Is your lordship seriously suggesting I should set out the entire transcript of the programme?”
The defence lawyer offered to supply Mr Gormley’s lawyers with a DVD recording of the UTV programme but Mr Justice Gillen said that “will not satisfy the request for particulars” as the request from Mr Gormley’s legal team made clear that the response had to be in writing.
Mr McCann said: “I misunderstood that. But I don’t think it’s really a hanging matter, my lord.”
Mr Justice Gillen told the court that the issue would be fully explored at trial but said that he would restrict Mr McCann at the trial to only raising what was in the written defence.
Mr Justice Gillen said that a jury will be sworn in on Monday though it is likely that the jury will not be in court for long on Monday as legal arguments over what can be presented to the jury are likely to take up most of the day’s proceedings.
Earlier, the judge had questioned the wisdom of hearing the trial before a jury — something which Sinn Fein requested — given the political nature of the case and given that much of the argument at trial would have to be heard before a judge anyway. The judge asked both parties if they had “seriously considered this”.
Mr Justice Gillen made clear that he was “not for a moment being pejorative about jurors, they are eminently sensible people” and stressed that he believed jurors could set aside any personal views.
Mr McCann said that he could “pick up on the nuance of what your lordship is saying” and that he would “reflect on it”, but added that a decision to exclude certain people such as members of political parties from the jury should be “sufficient protection”.