Supreme Court allows appeal finding no contempt where court order removed appellant from site preventing work completion.

THE SUPREME COURT

Appeal No. 421 & 436/2011

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

McKechnie J.

Between/

Dublin City Council

Applicant/Respondent

and

Thomas McFeely, Laurence O’Mahony and

Coalport Building Company Limited

Respondents/Appellants

Judgment delivered on the 31st day of July, 2012 by Denham C.J.

1. This appeal does not relate to the issue of providing a remedy for the deeply concerning situation which has arisen in relation to

Priory Hall, and the position of the residents and owners who have been removed from their homes. This appeal relates solely to the

issue of a finding of a contempt of court.

2. This is an appeal by Thomas McFeely, the respondent/appellant, referred to as “the appellant”, from the order of the High Court

(Kearns P.) made on the 4th November, 2011, which held that there had been a breach of the undertaking given on the 17th October,

2011, and the order made on the same date, and in which Dublin City Council, the applicant/respondent, referred to as “the Council”,

was given liberty to issue a motion of attachment and committal to the appellant.

3. On the 17th November, 2011, the High Court found that the appellant was guilty of contempt of court for failing to comply with the

undertaking given on the 17th October, 2011. The High Court ordered the appellant’s committal for three months in Mountjoy Prison

and a fine of €1,000,000.00, which was to be paid by the 1st March, 2012.

4. The second named Respondent, Laurence O’Mahony, is referred to as “the second named respondent”. The third named

respondent, Coalport Building Company Limited, is referred to as “Coalport”.

Notice of Appeal

5. The notice of appeal in relation to the order of the 4th November, 2011, listed five grounds of appeal. These were:-

(i) That the High Court failed to afford the appellant fair procedures in allowing the Council to make an application of

which the appellant had no prior notice;

(ii) That the High Court failed to afford the appellant fair procedures in requiring the legal representatives of the appellant

to cross examine witnesses called by the Council without any or any adequate opportunity to take instructions in relation

to the matters at issue;

(iii) That the High Court erred in fact and in law in holding that the appellant had failed to comply with his undertaking

and/or the Order of the High Court to carry out works in accordance with a schedule agreed between the parties;

(iv) That the High Court erred in fact in failing to attach any or any adequate significance to the fact that the agreed

completion date specified in the said schedule of works was the 28th November; 2011;

(v) That the High Court erred in fact and in law in granting the Council liberty to bring a motion to attach and commit the

appellant on grounds that the appellant had failed to comply with his undertaking and/or the Order of the High Court to

carry out works in accordance with a schedule agreed between the parties:

6. The notice of appeal in respect of the order of the 17th November, 2011, listed fifteen grounds of appeal. These are:-

(i) That the High Court erred in finding that the appellant had breached his undertaking to the High Court;

(ii) That the High Court erred in finding that the appellant had breached the order made on the 17th October, 2011;

(iii) That the High Court failed to have any or any adequate regard to the fact that the Order of the 17th October, 2011,

allowed the appellant until the 28th November, 2011, to complete the first phase of works referred to in the said Order;

(iv) That the High Court failed to have any or any adequate regard to the fact that the appellant undertook to complete

the first phase of works referred to in the said Order by the 28th November, 2011;

(v) That the High Court erred in finding that the appellant was in breach of his obligations pursuant to the said Order or to

his said undertaking before the expiry of the period of time specified therein;

(vi) That the High Court failed to have any or any adequate regard to the applicable standard of proof;

(vii) That the High Court failed to have any or any adequate regard to the fact that no coercive purpose could be served

by committing the appellant to prison;

(viii) That the High Court failed to identify how the appellant allegedly breached the said Order or his said undertaking;

(ix) That the High Court failed to have any or any adequate regard to the fact that the appellant can no longer comply

with the Order of the President made on the 17th October, 2011;

(x) That the High Court failed to have any or any adequate regard to the fact that the appellant has not wilfully

disobeyed any Order of the High Court;

(xi) That the High Court failed to have any or any adequate regard to the fact that a copy of the said Order had not been

served on the appellant, whether with a penal indorsement thereon or at all;

(xii) That the High Court failed to have any or any adequate regard to the fact that the Notice of Motion did not comply

with Order 52 rule 4 of the Rules of the Superior Courts;

(xiii) That the High Court failed to have any or any adequate regard to the efforts made by the appellant to comply with

the said Order or with his said undertaking;

(xiv) That the High Court imposed a penalty that was disproportionate in the circumstances;

(xv) That the High Court failed to afford the appellant fair procedures.

Ground (xi) was abandoned by counsel for the appellant in the course of his oral argument.

Issues

7. There are two broad issues in this appeal. First, whether the appellant breached an order of the Court or an undertaking. Second,

whether there were fair procedures in the hearings.

Facts and Law

8. In general on an appeal the issue of facts is limited. The Supreme Court is slow to interfere with findings of fact arrived at in the

High Court. The limited role of the Court on the issue of facts was described by McCarthy J. in Hay v. O’Grady [1992] 1 I.R. 210 at

p. 217:-

“The role of this court, in my view, may be stated as follows:-

1. An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who

hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those

giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.

2. If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings,

however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority.

3. Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge

to draw inferences of fact. (See the judgment of Holmes L.J. in "Gairloch," The S.S., Aberdeen Glenline Steamship Co. v.

Macken [1899] 2 I.R. 1, cited by O'Higgins C.J. in The People (Director of Public Prosecutions) v. Madden [1977] I.R. 336

at p. 339). I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving

evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an

appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or

recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from

circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.

4. […]

5. These views emphasise the importance of a clear statement, as was made in this case, by the trial judge of his findings

of primary fact, the inferences to be drawn, and the conclusion that follows.”

First Issue

Was the appellant in breach of the order of the 17th October, 2011?

Facts

9. The facts are at the core of this issue, as the High Court held on the 4th November, 2011, that there had been a breach of the

undertaking given on the 17th October, 2011, and the order of that date. Thus, it is necessary to identify both the terms of the order

and the undertaking so that it may be determined whether there was a breach.

17th October, 2011 Order

10. On the 17th October, 2011, the High Court ordered:-

(i) that the appellant and Coalport be directed to carry out works as per the undertaking offered to the Court and per the

schedule which has been adduced in evidence, such works to be completed to the satisfaction of Mr. Donal Casey of the

Fire Services and any experts retained by the Council, Phase 1 to the completed by the 28th day of November 2011 and

Phase 2 and 3 to be completed by the 31st day of January, 2012;

(ii) the appellant and second named respondent file an affidavit of means with the High Court by Friday the 21st day of

October 2011;

(iii) five dedicated phone lines be opened immediately in ease of the residents communicating with the Council;

(iv) the Orders contained at paragraphs 1,2,3 and 4 of the Order dated the 14th day of October, 2011 be further stayed

until the morning of Thursday the 20th day of October 2011;

(v) The Council assume responsibility for the accommodation of the evacuated residents;

(vi) the appellant and second named respondent lodge their passports with the registrar by the morning of the 18th day

of October 2011;

(vii) this matter be adjourned to Friday the 21st day of October 2011.

Schedule

The schedule adduced in evidence and which is referred to in the order at (i) above and which related to the Priory Hall premises

provided:-

RESPONDENTS PROPOSED WORKS

PHASE 1

1. Removal of the external leaf.

2. Upgrade the fire detection and alarm system and enhance same by way of the installation of smoke detectors to be installed in all

rooms save the bathroom.

3. Remove the door to each inner habitable room in the duplex apartment.

PHASE 2 - REOCCUPATION OF APARTMENTS

1. Fire warden to be provided on site on a 24 hour basis until been certified.

2. Each apartment to be vacated for one week maximum to carry out fire safety, including gas and electrical works on a phased basis.

Occupants to be accommodated in fire safety compliant apartments within the Priory Hall Complex.

PHASE 3

1. Fire safety works to be concluded in common areas and any other fire safety matters that arise

2. Schedule of works and updates to be provided by the Respondent's Fire Safety Consultants and site progress meetings with Dublin

Fire Brigade every two weeks

3 All fire safety works to be completed and certified by Fire Safety Consultant at end of January 2012.

4. Extent of works are fire safety issues including external wall with timber inner leaf issues identified by Dublin Fire Brigade and Hayes

Higgins Partnership including the MSA Report December 2009.

11. Handwritten on the Schedule, and on which there was agreement, beside the words “Phase 1” were written the words “Max of 5

weeks from Monday 24th October → 28th November 2011”. Beside “Phase 2 – Reoccupation of Apartments” and “Phase 3”, it was

indicated that they would be completed by the 31st January, 2012. There was no contest on these facts.

12. On the 17th October, 2011, the appellant gave evidence as to the Schedule and his agreement to undertake those works. It was

stated:-

“Q. [Counsel for the appellant]: On the basis of that independent evidence, I think you've agreed a schedule of works to

be carried out?

A. That's correct, yes. [said the appellant]

Q. And notwithstanding all the issues about your engineers having certified the development and everything else, you'll

undertake to carry out the works in that schedule?

A. That's correct, yes.

Q. JUDGE: Right. Now, who's going to carry out the works?

A. I will personally be on site. Up until now I have not been personally -

Q. JUDGE: Please, again. -

A. I've not been personally on site. I have -- the person that I had on the site, he'd more than adequate qualifications for

all of this, right. He has a degree in project management out of Trinity College. He's a civil engineering degree out of

Dublin City University and he had all the adequate staff that he needed on the site for this.

Q. JUDGE: Has this particular firm or individual been on site before dealing with any of the problems, or is this a new

commission?

A. No, because of -- because of some of the issues that arose over a period of time, he hasn't been on site for a long

time.

JUDGE: Well can I just intervene, Mr Bradley, are your experts satisfied that the proposed contractors have the expertise and

knowledge -

[Counsel for the Council]: I don't think we know who they are, President.

JUDGE: Sorry?

[Counsel for the Council]: I don't think we know who they are.

JUDGE: You don't know who they are?

[Counsel for the Council]: No.

Q. JUDGE: Okay. Who are they?

A. It will be my own company will be doing it, my company will be doing it. But if the Court decides that they want

another company to do it, well then so be it.

Q. JUDGE: Right so. Anything else?

Q. [Counsel for the appellant]: And you're aware of the seriousness of your obligations under this schedule of works and

that you have to comply with them?

A. I am, yes.”

[Transcript 17th October, 2011, Page 17, line 3 to 34]

Undertaking

13. Upon questioning by counsel for the Council, the appellant stated:-

“I have to give undertakings to the Court, to the judge, which I am doing, that I will get the work done. If I don’t get the

work done, we do have a very, very tight schedule, a very, very tight time frame of five weeks to get this done. I think if

you ask any reasonable company could they put up a scaffold in five weeks and take that down, I don’t think they could

do it, right, but I’m prepared to work night and day at it right. I’ve to give that commitment for it, right.”

[Transcript 17th October, 2011, page 29, line 12 to 17].

14. The President gave his ruling in respect of the remedial works as follows:-

“Well, what I’m going to do now is make an order directing the [appellants] and each of them to carry out works, as per

the undertaking offered to the Court and as per the schedule which has been adduced in evidence, all that work to be

completed to the satisfaction of Mr Casey and any experts retained by Dublin City Council by the 28th of November. Now,

that’s insofar as that aspect of this matter goes.”

[Transcript 17th October, 2011, page 29, line 21 to 25].

15. The President clarified his order on page 37, lines 21 to 25, by stating:-

“And, by the way, just in the interest of clarity, the order I’m making for the execution of the works, as per the

undertaking given, is that phase 1 be completed within five weeks and I’m running that five weeks from next Monday to

the 28th of November, and that phase 2 and phase 3 all be completed by the 31st of January next year, just so that

there’s no confusion about that.”

16. The first reference by the President to a weekly review is on the transcript at page 38, lines 27 to 30, immediately prior to the

matter being adjourned, where he stated:-

“So, while it’s a bad situation, it could have been worse and I intend to ensure, through weekly reviews of my order, that

I’m going to police this on a week by week basis and, as I say, I’ll adjourn this until Friday and then I’ll be looking at this

on a week by week basis as we progress from there.”

17. Thus, on the 17th October, 2011, an undertaking was given to the Court by the appellant to comply with the schedule of works

agreed and which was annexed to the order and which is set out in detail above. There was to be a three phase schedule of works,

with the first part to be completed by the 28th November, 2011. The undertaking was an agreement to the timetable in the schedule

of work to be completed by the dates specified. There were no weekly targets agreed to.

21st October, 2011

18. When the matter was before the President on the 21st October, 2011 he stated:-

“Now, in relation to the works, the residents are aware of what has been said and what the City Council can do and what

the City Council can't do. A solemn undertaking has been given to the Court that a schedule of agreed remedial works will

be completed by the 28th of November. Now, I don't want anybody to think that that means that anybody is going to sit

back for five weeks, or that we'll have a situation on the 28th of November that somebody will come into Court and say

actually there's been problems, we haven't got this work done, we've got some of it done. As far as I'm concerned, this

five week program starts on Monday and what I want is a week by week target set by the City Council. And there will be

a completion report sought by this Court, which will sit at 3 pm every Friday during that five week period and the Court, I

may as well make it clear, will regard any failure to meet the target set for a particular week as a breach of its order and

will feel free to take appropriate action in event of any such breach. So, Mr Bradley, your experts, in consultation with Mr

McFeely and his experts, I want them to subdivide this five weeks up into five weekly programmes. And, as I say, the

Court will affect each of those segments week by week and every Friday, at 3 pm, the Court will require a report that the

targets for that particular week have been met and any failure to do so will be a breach of the Court's order.

Obviously, I'll give the parties liberty to apply as the matter progresses and the Court may, itself, feel at liberty to go and

conduct an inspection on site in the event of any dispute as to whether or not a particular segment of the works has

been completed. But, as I made clear last week, whatever happened in the past about delays in compelling performance

by these developers in carrying out promised works, those days are over and as far as the Court is concerned, this order

is going to be enforced and, as I say, I'm doing it by dividing the agreed works, agreed to be undertaken, into these five

weekly target programmes, with a review each week on Friday afternoon. So, I propose to leave it there until 2 o'clock.”

[Transcript, Page 12, lines 11 to 34, Page 13, lines 1 to 4]

19. On the 21st October, 2011, the High Court made an order. Other parties were joined as notice parties. The second named

respondent, Laurence O’Mahony, was given leave to apply to be released from the proceedings. The High Court ordered that the order

of the 14th October, 2011, (restraining the respondents from disposing of or otherwise dealing with or diminishing the value of any

assets within the State) be discharged in relation to the appellant in order to facilitate the works at Priory Hall. The appellant was to

file an affidavit by the 24th October, 2011. The matter was adjourned to the 28th October, 2011, and each Friday thereafter for the

purposes of reviewing the progress in respect of “the weekly targets set by the [Council] for the completion of works agreed between

[the Council] and the [appellant] and [Coalport]”. These weekly targets for Phase 1 had not been set or agreed.

28th October, 2011

20. In the transcripts of the 28th October, 2011, the issue of weekly targets arises and Mr. Casey gave evidence as follows:-

“Q. [Counsel for the Council]: Mr Casey, just so we're absolutely clear, could you outline to the Court what happened

after this matter was dealt with in the court last week?

A. Last Friday, directly from outside the court room, I rang Brendan Finlay from MSA and I basically said your instructions

President, that was that to have a schedule of works.

Q. JUDGE: Yes?

A. And right enough, over the weekend, I think it was maybe on the Friday evening,

I received them by e-mail. On Monday morning, I sent a reply where, basically, my comments on what he had sent and

basically what I was kind of saying, look there's a lot more detail necessary of the we're looking at apartment numbers so

that we could get a clear picture as to exactly what work was going to be done in weeks 1, 2, 3,4 and 5.

Q. JUDGE: Yes?

A. And so that was fine. I didn't get a reply. Met -- met him and the site foreman on Monday afternoon and absolutely,

there was work in progress, despite the torrential rain, terrible weather conditions.”

[Transcript page 3, lines 15 to 30]

21. Mr. Casey gave further evidence:-

“[Counsel for the Council]: I think, President, it may be appropriate then for Mr. Finlay to outline the next week's

schedule?

JUDGE: Well, you see, I was told last week a schedule had been agreed to take us through.

[Counsel for the Council]: Well, I think it hadn't been agreed on a week by week. I think you wanted a week by week

breakdowns,

[Mr. Casey]: Sorry, if I may, Mr President, I think that -- sorry, we must have a schedule for the entire five week period.

We don't want the situation where we have a program for one week, followed by another week and find that on the last

week, it's an impossible amount of work to be done so -- and I have flagged this last Monday and I expect –

Q. JUDGE: Sorry, I thought the agreed schedule, agreed with you last week, was such that would enable the work that

was necessary to be done, to be done within five weeks?

A. Sorry, this was –

Q. JUDGE: Whether it can be divided evenly up into five different segments or not is another matter?

A. JUDGE: But that the schedule was a schedule -- an agreed schedule of the works that would be done?

A. We -- you asked us, President, to go away and try and agree something.

Q. JUDGE: Yes?

A And we agreed phase 1, 2 and 3 and phase I was five weeks, that was fine.

JUDGE: Yes?

A. But things have changed. I want that five weeks broken down. I want a detailed – in order to ensure that it's

meaningful. I mean, -- that was done within the body of the Four Courts, that particular agreement. But what I have

asked of MSA is, sit down and do a detailed program of the five weeks, because we don't want a situation - -

JUDGE: All right. Well, we'll come back to this?

A. You know, okay.”

[Transcript page 6 lines 30 to 34 and page 7 lines 1 to 27]

22. It is clear that the schedule of work had been agreed, and the appellant was to complete Phase 1 by the 28th November, 2011, a

five week period. However, it is also clear that a schedule of weekly targets for the five weeks leading to the 28th November, 2011,

was not agreed between the parties.

23. The parties agreed a week’s schedule in advance of the hearing on the 28th October, 2011 only.

24. On this schedule Mr. Casey gave evidence:-

“A. Met -- met him and the site foreman on Monday afternoon and absolutely, there was work in progress, despite the

torrential rain, terrible weather conditions.

JUDGE: Yes, indeed?

And there was full scaffolding in place and, at that point, they had done-- they had opened up a fair bit of the work on

blocks 8 and 9 and there were cavity barriers within the cavity space, but they were incorrectly fixed and -- in most

cases and in the wrong locations in others. So, anyway, over the next couple of -- they had removed a substantial

amount of the external -- approximately between 50 and 75 percent of the outer skin on the front wall. So, that was fine

and I went out there again yesterday and yesterday, late yesterday morning, and all of the external skin was removed

and the scaffold was in position on the back wall and rather than removing the skin on the back wall, there were pockets

or sections of the brick on the back removed.

Q. JUDGE: Mr Casey, can I just can I just intervene to ask you?

A. Yes.

Q. JUDGE: Can we start from the end and work backwards?

A. Okay.

Q. JUDGE: Broadly speaking, are you satisfied the programme of

works agreed for the past week have been carried out?

A. I would say broadly, broadly consistent with what was given to us last Friday

Q. JUDGE: Yes?

A. I am concerned, however, about where we were kind of -- I think I have to say, President, that yesterday there was a

discussion about basically changing the approach to the project, or the works. And what is -- was being proposed was a

removal of sections of the wall, rather than removing the entirety of the outer leaf, sections of the wall would be removed

and proper cavity barriers would be inserted, using a cherry picker rather than scaffold, that standing on the cherry

picker, you would put in sections of cavity barrier. And I have no difficulty about that, providing it's done on a trial basis.

I don't want to say yes to the Court and then find that, you know, in a week's time that there are problems and we have

to revert to scaffolding. So, I want to move things on as quickly as possible, like everybody else.

Q. JUDGE: But there has to be a bit of give and take in terms of - -

A. Absolutely, absolutely. And that's the reason why we have discussions on site and we try and resolve things.”

[Transcript Page 3, lines 28 to 34 to Page 4, lines 1 to 29]

25. Mr. Casey gave further evidence:-

“Q In terms – so, in terms of that issue, the works that have been done to date, are you satisfied with those?

A. I – yes, I am and I am receiving – I am receiving cooperation from – from the site foreman and their technical

representative. I have to say, I’m very unhappy with receiving this document at a quarter to 3 outside. That really is –

Q. JUDGE: Yes, But, I mean, you can and have been out to the site?

A. I have been out there twice, President.

Q. JUDGE: Well, I don’t think you’ve missed an awful lot by not having this document?

A. Well, no, it’s just – well, to be asked – well, I mean, it’s the document you haven’t seen.

Q. [Counsel for the Council]: No, we’ll leave that, we’ll leave that?

A. I would have had to make a comment.

Q. That’s not before the Court, so we’ll just leave that?

A. Yes.”

[Transcript page 6 lines 15 to 29]

26. The document referred to by Mr. Casey was a letter of the 27th October, 2011, from Mr. Finlay which proposed a less invasive

method of ensuring the cavity barriers were fitted and affixed properly with the use of a cherry picker, rather than the removal of the

external leaf of the buildings as in the schedule to the order of the 17th October, 2011.

27. Mr. Casey was cross-examined by counsel for the appellant:-

“Q. And I understand, whilst I'd objection to the letter that went into your lordship at the outset, but I'd understood my

friends were objecting to it, the discussion about changing from the requirement to have the scaffolding, because there is

a cavity block, there is a cavity barrier there, it's a question of ensuring that it is there, inserted properly, you're happy

with that variation or that that should be considered as -- rather than having to take everything down and scaffolding up

again?

A Yes, I am -- sorry, I am agreeable to leaving as much of the wall in place, providing I can check.

Q. Absolutely?

A. And not by -- sorry, I mean, if this letter isn't before the Court, fine. But there is something in that that I had a

number of difficulties with. But, basically, you know, I think a lot of this can be worked out, President. But we must have

a programme.

Q. JUDGE: All right, well we'll address that?

A. For the five weeks -- for the remaining four weeks now because we've gone a week now.

Q. JUDGE: All right?

A. Just to explain to you –

[Counsel for the appellant]: I think the issue, Judge, is as follows -- or President, the order the Court made was that it

was all -- the scaffolding was to come up and it was all to come down and that was what the intent was -- the front

wall, that was what the understanding of the discussion was between the experts that that now was not necessary and

the alternative methodology that had been discussed was to be put in place in lieu thereof and it was in that context

that the letter was sent and, as I say, I'm still under the order of the Court to have to do the full removal, but it seems

like that now isn't entirely –

[Mr. Casey]: Yes.

[Counsel for the appellant]: If done properly, it's not required.

JUDGE: I see.

[Mr. Casey]: Yes, I think we -- there may very well be.

Q. JUDGE: So, the entire facade removal may not be necessary?

A. May not be necessary.

JUDGE: All right, fair enough, very good.”

[Transcript Page 8, lines 2 to 33]

28. The issue of weekly targets was not discussed further.

29. It is clear from the transcripts that a schedule of weekly targets for the five weeks of Phase 1 to the 28th November, 2011, was

not agreed between the parties. There was an agreement as to the week’s schedule in advance of the 28th October, 2011. However,

the parties did not agree weekly targets for the balance of the five weeks. The High Court did not return to the issue of the later

weekly schedules.

30. On the 28th October, 2011 the High Court made an order. It was noted:-

“And it appearing that the [applicant] and [Coalport] will provide a copy of the schedule of works agreed with the

[Council] to the named notice party as soon as is practicable following agreement with Dublin City Council”.

The issue of insurance was also referred to:-

“And it appearing that the [appellant] will provide insurance details in respect of the contractors and or sub-contractors

on site to the first named notice party by Friday 4th November 2011”.

It was ordered, inter alia, that the order of the 14th October, 2011, be varied in respect of the appellant, so as to provide €1,000.00

living expenses per week, and the matter was adjourned to the 4th November, 2011.

4th November, 2011

31. On the 4th November the Council made an application pursuant to s. 23 of the Fire Services Act, for an order appointing a

competent contractor to complete the works, the subject matter of the application, and appointing Donal Higgins for the purposes of

supervising and certifying the completion of the works to the standards required by the Council, at the expense of the appellant, and

Coalport. There was an issue between the parties as to whether the works were being carried out in accordance with the schedule of

works agreed and the undertakings given on the 17th October, 2011. The High Court heard oral evidence from Donal Casey, Brendan

Finlay, and Michael Patrick Lyons, and it was recited in the order:-

“The Court doth find that there has been a breach of the undertaking given herein on the 17th day of October, 2011 and

of the order made on said date”.

32. Further, on the 4th November, 2011, the High Court ordered inter alia that:-

(i) The Council be at liberty to issue an Order for Attachment and Committal returnable before this Court at 3.00 o’clock in

the afternoon on Friday the 11th day of November 2011.

(ii) The appellant and Coalport and their servants or agents vacate the development known as Priory Hall […].

(iii) The Council’s application pursuant to section 23 of the Fire Services Act (for an Order appointment a competent

contractor to complete the works the subject matter of the within application and appointing Donal Higgins of Hayes

Higgins Chartered Structural Engineers for the purposes of supervising and certifying the completion of said works to the

standards required by the Council at the expense of the appellant and Coalport) be refused.

33. On the 4th November, 2011, counsel for the Council made submissions before the High Court that in the course of the last week

there was progress made on works internal to the building but no progress made on the works to the external leaf of the building.

Counsel for the Council made an application that if the President found that the appellant did not have the capacity to carry out the

works, then the appellant should be removed from the site, and ordered to pay for an alternative contractor. The President adjourned

the hearing in order for the two parties to confer.

34. When the proceedings resumed, counsel for the appellant indicated that his client was not in a position to make any payments

towards another contractor taking over the works. However, counsel for the appellant stated that if the Council wished to make an

application for another contractor to take over the works then the appellant would not resist that order, even though there was a

dispute over the progress of the external leaf works and the agreement of a schedule of works.

35. The President stated that if the issue of whether the works had been satisfactorily carried out was addressed, then there were

two ways it could be resolved:-

“One is that they have been, albeit not entirely satisfactorily, or two that they haven’t been and that there’s been a

breach of the undertaking. That will involve, obviously, certain consequences in terms of [the appellant’s] continued

involvement in any contract works out there or any works of repair or addressing any court order. And then a situation

would arise that the works will come to a stand still then and the [Council] will then have to deal with that situation

thereby arising.”

[Transcript Page 11, lines 14 to 19]

36. Evidence was called on the issue as to whether the work was progressing as agreed. The issue of the external leaf works arose.

37. Counsel for the Council called Mr Casey to give evidence and he stated that of the fifteen to twenty locations he inspected, he

could not find one location where he was satisfied as to the appropriate fitting of a cavity barrier.

38. Counsel for the appellant stated that he was not in a position to cross-examine about the locations Mr Casey inspected but was

invited by the President to cross-examine.

39. In Mr Casey’s evidence, on cross-examination, he stated that the cherry-picker method was agreed last Friday in court as a

variation on a trial basis to the complete removal of the external leaf. In addition, Mr Casey stated that he would not have a problem

with the new option, Option 3, suggested by Mr Finlay on the evening before, the 3rd November, 2011, which was a fire resistant

material being pumped into the cavity area, if an independent third party would certify the product as suitable for an apartment

building with an external leaf of block and an internal leaf of timber studded panelling.

40. Counsel for the appellant called Mr Finlay as a witness, who outlined the three methods of remedying the external leaf’s fire safety

issues. In the course of his evidence, including cross- and re-examination, Mr Finlay stated that the reason the cherry-picker method,

Option 2, was not tried was that there was no agreement between the parties to move away from the stripping of the external

façade, Option 1. He stated that it was not agreed nor presented to the Court last week. He stated that he sent an email and a

schedule of works for the week ahead in the evening after the court hearing on the 28th October, 2011, but he thought that it was

Tuesday before he received a replying email, and, without the document to hand, he could not say what it said.

41. The approach of the appellant for the last week, was to, as Mr Finlay stated:-

“move ahead with trying to complete the internal works, within the flats, pending agreement on what we would do

externally with the external leaf.”

[Transcript Page 26, lines 15 to 16]

Breach of Undertaking and Court Order

42. The High Court held that there had been a breach of the undertaking and Court Order. The President made his ruling:-

“I’m satisfied there has been a breach of the undertaking to carry out the agreed works and a breach of the court order

and I so find, basically by reference to the failure to adequately or properly or in a timely manner address the problem of

the outer walls and inner walls and inappropriate insulation and insertion – or steps to be taken to deal with the fire

hazard, arising from the state of the premises as disclosed to the court when this application was first made.”

43. In addition, the President stated:-

“What I now have to consider is whether I leave [the appellant] doing the works under, more or less, imminent threat of a

committal and attachment application. I mean, clearly I intend to grant leave to [the Council] to bring a committal

application next Friday.”

[Transcript Page 30, lines 8 to 14, lines 22 to 25]

44. The President adjourned the matter to allow counsel for the Council to take instructions on whether or not to invite the High

Court to allow the appellant a final opportunity to come up with a solution to the external leaf fire safety issue or to require the

appellant to cease his involvement with the works.

45. When the hearing resumed, counsel for the Council indicated that it wanted the appellant to cease his activity on the buildings

and renewed its application to appoint another contractor. The President then heard two counsel representing tenants and owner

occupiers of Priory Hall and ruled for the removal of the appellant and the workers from the site with the scaffolding to be removed

over the weekend. The President further stated that he would not make an order relating to another contractor working on the site

as it was not necessary nor his function under the Fire Services Act, 1981 and 2003, and that he would deal with the consequences

of the breach of the court order as so found next Friday at 3pm.

46. Thus, on the 4th November, 2011, there was a dispute between the parties concerning the progress of the work on the external

leaf. The Council applied that the appellant cease work on the site. The High Court tried the issue in dispute.

47. It was stated in evidence by Mr Finlay that further work had not been done on the external leaf but explained the deficiency on

the basis of a lack of agreement between the parties for that week’s schedule; he did not accept that there was an agreement made

in Court the previous week regarding a trial of the use of the cherry-picker option, as Mr Casey had stated.

48. The President ruled that the appellant had breached his undertaking and order of the Court because of the “failure to adequately

or properly or in a timely manner address the problem of the outer walls and inner walls and inappropriate insulation and insertion – or

steps to be taken to deal with the fire hazard, arising from the state of the premises as disclosed to the court when this application

was first made.” This finding was made in the absence of any compliance with the Rules of Court, which were only invoked by the

issue of the motion next mentioned. Given the importance of the potential sanctions available , some level of formality is essential in a

contempt application such as this.

Motion for attachment and committal

49. On the 9th November, 2011, the Council filed a notice of motion for attachment and committal of the appellant.

50. The motion sought, inter alia:-

1. An Order pursuant to Order 44 Rules 1 and 2 of the Rules of the Superior Courts, 1986 (as amended) for an Order for

attachment and/or committal of the appellant for failure to comply with the Order of this Honourable Court dated the 17th

day of October 2011 which ordered the appellant to carry out the works as per the undertaking offered to the Court.

2. An Order pursuant to Order 44 Rules 1 and 2 of the Rules of the Superior Courts, 1986 (as amended) for an Order for

attachment and/or committal of the appellant for failure to comply with the undertaking given to this Honourable Court on

the 17th day of October 2011.

3. If necessary, an Order directed to the Commissioner of An Garda Siochana to attach the appellant of 2 Ailesbury Road,

Ballsbridge, Dublin 4 and to bring the appellant to this Honourable Court at 3.00 o'clock in the afternoon on Friday the

11th day of November 2011, sitting at the Four Courts, Dublin 7.

4. An Order committing the appellant to prison for such period as to be determined by this Honourable Court for failing to

comply with Order of this Honourable Court dated the 17th day of October 2011 which ordered the appellant to carry out

the works as per the undertaking offered to the Court.

5. An Order committing the appellant to prison for such period as to be determined by this Honourable Court for failing to

comply with the undertaking given to this Honourable Court on the 17th day of October 2011.

11th November, 2011

51. On the 11th November, 2011, an adjournment was granted to the appellant on the basis that the notice of motion for attachment

and committal was not served two clear days before the return date of the 11th November, 2011, and for the appellant to file an

affidavit. In the course of the hearing it was stated:-

“[Counsel for the appellant]: […] subject obviously to the Court, my client is entitled to have his case on [attachment

and committal] put before the Court. He may be entirely in breach. He may not be. The Court may be entirely satisfied

with his explanation as to the fact.

JUDGE: Yes, I heard all the evidence on this last week.

[Counsel for the appellant]: Well, no, Judge. That is the point.

JUDGE: Well, you say I didn’t, right so. Anything else?

[Counsel for the appellant]: No, Judge. As I say, as I understand it, primarily, as I say, I wasn’t served in the two clear

days. So, that, as a matter of fact, has to be addressed. But, in any event, I’m not taking that issue in relation to the

motion, but I just want to put before the Court the evidence so that at least this Court then makes its decision on all of

the facts.

JUDGE: Yes, very good.”

[Transcript Page 2 lines 5 to 16]

17th November, 2011

52. On the 17th November, 2011, a hearing for the attachment and committal commenced.

53. Counsel for the Council outlined the grounds for the application:-

“The gravamen of the application relates to the undertaking that was given on the 17th of October, and that’s recited in

the order of the Court on the 17th of October, but it's an undertaking. On the 21st of October, the Court also directed

that the matters would be progressed and reviewed on a weekly basis. Essentially, what happened, President, and I can

rely on Mr Finlay's affidavit alone to prove this, without even having to prove from my perspective. What happened was

that the goal posts were changed by Mr Finlay and [the appellant] on the eve -- on the 27th of October. That was

attempted to be communicated to the Court on the 28th of October. You will recall that there was an exchange of a

document that was withdrawn from the Court. That document has been exhibited by [the appellant], [the appellant], by

Mr Finlay's affidavit and it's also exhibited in Mr Casey's third affidavit. That document, effectively, President, set out that

the City Council were agreeable to works that would commence the following week, which would entail the removal of

bricks and the installation of cavity barriers where there were none and where they were deficient. It was to be done on

a trial basis and was to be done in relation to one block. A cherry picker could be used.

Those works are actually reflected in a memorandum sent on the evening of the 28th, by Mr Finlay to Mr Casey. When

the matter came to be reviewed on the 4th of November, those works were not done and there was a breach.”

[Transcript Page 1, lines 27 to 34 and Page 2, lines 1 to 12].

54. Counsel continued:-

“In terms of the material that's before the Court, President, and I will go through the material now, but it does no more

than add to the evidence that was already adduced on the 4th of November and, in fact, again in my respectful

submission, I can rely solely on what Mr Finlay has said.

JUDGE: Yes, it doesn't even, at this stage, purport to suggest that Rock Wool would have been a suitable filler even.

[Counsel for the Council]: No. But even if it was, President, the work still wasn't done.

JUDGE: Yes.

[Counsel for the Council]: The work that was agreed, the schedule that Mr Finlay sent over wasn't done. That work was

not completed and that undertaking and the order was not -- was breached in that context. Whether Rock Wool is good,

bad or indifferent, that doesn't take away from the fact that the work that was agreed to be done was not done. And

when I asked Mr Finlay that in the box, he had no answer to that. And in terms of his own affidavit, he now accepts

where he disagreed with what I said in a question to him, he actually accepts that there was agreement in relation to the

trial works in relation to one block and the removal of bricks and the insertion of cavity material.”

[Transcript Page 5, lines 30 to 34, Page 56, lines 1 to 12].

55. Counsel for the appellant made submissions substantially based on lack of fair procedures because of the finding on the 4th

November, 2011, of a breach of an undertaking and the order of the Court. On the issue of the content of the undertaking and the

order, counsel submitted:-

“ … The schedule provides for a period of five weeks for phase 1 to be completed. By the time the application was made

on the 4th, only two weeks had elapsed. Uncontradicted, as best I can see, and subject to correction because I've only

received an unsigned version of it this morning. My solicitor, I believe, got it last night at 5 past 10, so he didn't see it

until this morning, but. in the -- Mr Finlay, in his affidavit, as the Court has seen, says that the capacity to complete it in

accordance with the phase I schedule, in other words the removal of all the brick, was capable of being completed by the

due date. But, of course, an application has been made by -- at the express request of my friend for my client to be

removed from the site. So, there's therefore now a situation whereby he has been, by court order, at the request of the

[Council] today, removed from the site and thereby has been prevented from even completing it by the 28th, which was

the time I'd (sic) afforded him. The issue as to a schedule, a five week schedule or not, was not the issue advanced on

the last occasion by Mr Casey when he was in the witness box. That was not the issue that was addressed. The issue

addressed was whether or not the fire proofing was taking place.”

[Transcript page 5, lines 20 to 34, page 6, line 1.]

56. On the 17th November, 2011, the motion came before the High Court seeking an order that the appellant be committed to prison

for his contempt of court for failure to comply with the undertakings given to the Court on the 17th October. Affidavits were before

the Court deposed by Brendan Feeley and the appellant, filed on the 16th November, 2011.

57. On the 17th November, 2011, the High Court order stated that the Court was satisfied that the appellant has been guilty of

contempt for failure to comply with the undertakings given on the 17th October, 2011, and ordered that the appellant be committed

to Mountjoy Prison to be detained there for three months and to pay a fine in the sum of €1,000,000.00 before a specified date.

58. There is a difference between the order which recited that the appellant be detained “for a period of not less than three months”

and the transcript. From the transcript it is clear that the Court ordered detention for three months. In the circumstances nothing

turns on this issue. Thus, I do not address the disparity.

59. An application for a stay was refused by the High Court.

Retrospective finding

60. The President made a finding on the 4th November, 2011, that the first named appellant breached the Court order and

undertaking of the 17th October, 2011. The President stated:-

“I’m satisfied there has been a breach of the undertaking to carry out the agreed works and a breach of the court order

and I so find, basically by reference to the failure to adequately or properly or in a timely manner address the problem of

the outer walls and inner walls and inappropriate insulation and insertion – or steps to be taken to deal with the fire

hazard, arising from the state of the premises as disclosed to the court when this application was first made.”

[Transcript 4th November, 2011, page 30, lines 8 to 14]

However, the character of this finding of the 4th November changed during the course of the proceedings on the 17th November,

2011, when the High Court considered the motion for attachment and committal. The President referred to the hearing on the 4th

November, 2011, and stated;-

“Having heard witnesses from both the fire authority, Mr Casey and Mr Lyons of Higgins Hayes Partnership, and Mr

Brendan Finlay of MSA, for [the appellant], I was satisfied that the terms of the undertaking had been breached to such a

degree that there was no prospect, whatsoever, of completing the initial phases of the work by the 28th November as

had been agreed. At the request of [the Council], who no longer wish to precent veer [sic] with [the appellant], I

directed that [the appellant] remove his workers from site on that day.”

[Transcript 17th November, 2011, page 33, lines 22 to 28]

In addition, the President noted the affidavits that had been filed in the interim period between the hearing of the 4th November and

the hearing of that day’s date, i.e. the 17th November, 2011, and stated, at page 34, lines 19 to 20, that the affidavits:-

“largely are directed to relitigating the matters already dealt with on the 4th of November”

and, at lines 27 to 28, stated of the appellant’s affidavit that no

“scenario [has] been outlined which would have overcome the non compliance with the agreed time limit for completion of

phase 1.“

The President then made his finding of civil contempt by the appellant on page 35, lines 8 to 16.

Supreme Court

61. On the afternoon of the 17th November, 2011, counsel for the appellant appealed to this Court, which ordered that the said Order

of the High Court made that day be stayed insofar as it related to the committal of the appellant and the payment by him of the fine

in the sum of €1,000,000.00, pending the determination of the appeal to the Supreme Court.

Determination on the first issue

62. The first issue, whether the appellant was in breach of a court order and undertaking, is a matter of fact.

(i) The order the subject of the motion for committal and attachment was that of the 17th October, 2011, which is detailed earlier. It

contained the schedule to which the appellant gave an undertaking.

(ii) That order required certain work to be done in three phases. Phase 1 was to be completed by the appellant by the 28th

November, 2011.

(iii) An application was made by the Council to remove the appellant from the site.

(iv) On foot of the Council’s application, the appellant was removed from the site by court order on the 4th November, 2011.

(v) Thus, the appellant was prevented by court order from being on the site to complete the work within the time provided.

(vi) It was accepted by the parties that there was a dispute concerning the method of progress of the work on the 4th November,

2011, as to the external leaf.

(vii) The order of the 4th November, 2011, which recorded the finding of a breach of the undertaking and order of the 17th October,

2011, was in advance of the proposed completion date of the scheduled work.

(viii) There was no finding on the 4th November, 2011, that the appellant could not have completed the work pursuant to the

undertaking made on the 17th October, 2011.

(ix) Weekly targets were not agreed, nor were they part of any court order, for the five weeks within Phase 1 of the work.

(x) Thus, there was no factual basis upon which to find the appellant in breach of any such targets.

(xi) The undertaking of the 17th October, 2011, was not amended to include the issue of any weekly targets, paragraph 4 of the

order of the 21st October, 2011, was not effectual in this regard. While it stated that this matter be adjourned to 3 o’clock in the

afternoon on Friday the 28th day of October 2011, and each Friday thereafter for the purposes of reviewing progress in respect of

the weekly targets set by the applicant for the completion of works agreed between the Council and the appellant and Coalport, no

weekly targets were set.

(xii) There was no finding by the High Court as to whether weekly targets were part of the Phase 1 schedule.

(xiii) There was evidence before the Court of a capacity by the appellant to complete in accordance with Phase 1 of the work.

63. There appears to have been several shifts in the case as it progressed in the High Court during October and November, 2011.

First, the appellant was ordered and undertook to do certain work by the 28th November, 2011. He commenced that work. Then there

was a dispute as to the method of proceeding on an aspect of the work. After that the Council changed tack. The Council changed

tack and adopted a new approach, namely applying: (i) to have the appellant removed from the site, (ii) that an alternative

contractor be appointed, and (iii) that the appellant would pay for that contractor. Only one aspect of this application was

successful, with the appellant being removed from the site. He was not ordered to pay another contractor to do the work. That order

had unfortunate consequences for both the Council and the tenants. Once the appellant was ordered off the site by the Court on the

4th November, 2011, it immediately became impossible for the appellant to complete the work he had undertaken to do so by the 28th

November, 2011. Thus, by virtue of the approach taken by the Council, which it must be acknowledged was one adopted bona fide

and in the best interest of the tenants, their request to the High Court and the High Court’s order ordering the appellant from the

site, the appellant was no longer permitted on the site to complete the agreed works. Consequently, by virtue of these matters the

terms of the order of the 17th October, 2011 were no longer capable of being met.

Conclusion

64. The first issue in this appeal was whether the appellant was in breach of the order of the 17th October, 2011. For the reasons set

out above, I am satisfied that as a matter of fact he could not be held to be in breach of the order of the 17th October, 2011, or of

an undertaking given on that date, as he had been ordered by the Court from the site. There was no factual foundation upon which

to make a finding of contempt of court or a breach of an undertaking.

65. That being so, it is not necessary to address any issue of law, or to proceed to the second issue of fair procedures, although

serious and substantial issues were raised as to the court proceeding to a hearing on the 4th November, 2011, with no notice.

66. Consequently, I would allow the appeal on the first issue.