The bid was made by lawyers including the recently retired director of public prosecutions Barra McGrory. Last week the judge had already deferred a ruling to allow a new lawyer for the police ombudsman to read himself into the case. This has turned out to be the former DPP.
Newly instructed counsel for the Ombudsman, Barra McGrory QC, and the Loughinisland families’ legal representatives argued that he should now withdraw from the case.
They are seeking a fresh hearing before another judge.
During exchanges Mr Justice McCloskey confirmed he had no memory of being involved in the earlier litigation until it was drawn to his attention, describing his recollection as “zero”.
It was stressed by counsel that they were not calling into question his judicial independence.
But Mr McGrory, a former Director of Public Prosecutions, insisted the application was based on possible public perception.
Reassurances which could have been given at the outset of proceedings cannot be given now that a ruling has been made in favour of the policemen, he contended.
“In the circumstances of this case; given it’s history, given the years of dispute, and given the personalities which involved one of the applicants in the Omagh litigation, the lay observer is likely to be highly critical of an assertion by the court that the court had no memory of it and therefore it cannot have influenced the court’s views,” Mr McGrory said.