Supreme Court allows appeal against contempt imprisonment and fine due to procedural unfairness and lack of council representation.

[2012] IESC 45

THE SUPREME COURT

421/11 and 436/11

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

McKechnie J.

Between:

DUBLIN CITY COUNCIL

Applicant

and

THOMAS McFEELY, LAURENCE O’MAHONY

and

COLDPORT BUILDING COMPANY LIMITED

Respondents

JUDGMENT of Mr. Justice Hardiman delivered the 31st day of July, 2012.

1. I agree with the judgment just delivered by Denham C.J. and with the judgment about to be delivered by Fennelly J. This case

raises very significant issues, relating both to substantive justice and to fair procedures. There is also a significant issue, raised in the

judgment of Murray J., as to the scope of s.23 of the Fire Services Act 1981. I have nothing to add to what my colleagues have said

on these subjects. I do not find it necessary to decide the s.23 issue in light of my findings on the other questions that arise.

2. The fact that people who have purchased or leased properties in Priory Hall have been forced to leave their homes is notorious. It

is most unfortunate that the important questions of how that came about in the first place, and the still more important question of

how the homes in Priory Hall are to be made habitable, by whom, and at whose expense, has been wholly side tracked, in this appeal

at any rate, by the question of whether or not Mr. McFeely can lawfully be imprisoned and levied with a fine of €1 million, for alleged

contempt of Court.

3. Although the contempt question received a great deal of public attention, it is wholly irrelevant to the underlying problems of the

residents. Mr. McFeely, in fact, has been put off the site by a High Court Order which has not been appealed. No-one else has been

appointed to finish the necessary work, and it is not clear how any such person could be appointed. No progress in rendering the

homes habitable has been made since November 2011. But the easier and more eye-catching target of jailing Mr. McFeely has been

sedulously pursued by the applicant. It was specifically conceded by Dublin City Council in the course of the hearing of the appeal, in

answer to a question from McKechnie J., that the result of this appeal would have no affect whatever on the plight of the residents.

But it is, of course, of vital interest to Mr. McFeely and his family.

4. The validity of the penal orders against Mr. McFeely entirely depends on the proposition that he has been proved to have been in

breach of a specific court order made in October, 2011. But it appears, for the reasons set out in the judgment of the Chief Justice

that he was not in fact in breach of that order. Dublin City Council, the party who issued a Notice of Motion seeking Mr. McFeely’s

attachment and committal were therefore driven to argue that their own motion seeking his committal was “wholly irrelevant” to his

eventual imprisonment. He was actually imprisoned, they said on the hearing of this appeal, by the learned trial judge of his own

motion, and not on foot of the City Council’s motion. But this is not what the Court order committing Mr. McFeely to prison said: it

specifically recited the local authority’s motion as the basis of his incarceration and €1 million fine.

5. There cannot be any element at all of confusion or ambiguity about an Order for imprisonment or the steps preliminary to it. In the

present case, I see from the transcript where the learned trial judge gave the Council liberty to seek attachment and committal of Mr.

McFeely, but I cannot trace where they applied for such leave. The Court and the parties appear to have been at cross purposes at

times, and the Council is appealing against a portion of the Order of the learned President.

6. The foregoing indicates the fundamental, perhaps rather technical-seeming basis on which the order must be set aside. But there is

nothing merely technical about the procedural shortcomings discussed in the judgments of my colleagues.

7. It is essential that the Courts should possess power to punish in a summary manner contempt of the Court or of the Courts’ orders.

If the Courts did not possess this power then a person who had lawfully obtained relief from a court might find himself or herself

unable to enforce that relief.

8. But the exercise of this power must, in my opinion, always be a matter of last resort, embarked on with manifest caution and great

reluctance. This is because the contempt of court procedures have the potential to deprive a citizen of his or her liberty, not to

mention property, without their being accorded the elaborate but very necessary protections normally provided by the procedures of

a criminal trial.

9. If a citizen could be summarily imprisoned, or fined a huge sum of money, without all proper meticulous attention being paid to the

procedures which exist for his protection, then the liberties of citizens generally would be undermined. Everyone threatened with

imprisonment for contempt, whether protestor, picketer or property developer is entitled in the public interest, to a meticulous

observation of procedural justice, all the more so since the nature of the procedures involved deprive him of the right to trial by jury.

It is important that the Court Order allegedly breached should be indicated with absolute clarity and precision in the Motion for

attachment and committal and that the evidence alleged to establish breach of that Order should be led in proper form after due and

timely service of the Motion for attachment and committal. This Motion will normally be issued by a party and adjudicated upon, quite

independently, by a judge.

10. It does not appear that all of those things happened in this case with result that, when the appeal came on for hearing, the City

Council were asserting a basis for Mr. McFeely’s attachment and committal, not to mention the enormous fine, quite different to that

recited in the orders of the High Court.

11. In this case the City Council having issued a motion for attachment and committal and having seen Mr. McFeely’s committal

ordered by the High Court after a hearing at which they were represented, did not turn up when, later the same day, Mr. McFeely’s

counsel raised the matter in the Supreme Court seeking a stay pending appeal. Though they had been put on notice of counsel’s

intention to raise the matter before the Supreme Court, the City Council indicated that it did not intend to appear or be represented.

This Court stayed the Order for imprisonment until the hearing of the appeal. In this way, no injustice was done, since, if there had

been no stay, the three month sentence would have expired before a hearing for the appeal could have been secured.

12. I should like to make it clear that a person who procures the imprisonment of a citizen, or who issues a Notice of Motion seeking

his imprisonment and later sees him led away in apparent compliance with an order obtained on foot of the Motion, owes a duty to

the Courts to attend and give such assistance as they can before the Court ordering the imprisonment, or at any appeal, or before

any court duly seised of the question whether the person can continue to be deprived of his liberty.

13. I would add only that the procedure of attachment and committal for contempt are solemn procedures which deserve to be

reported without the sort of schadenfreude which one sometimes sees.

14. I too would allow the appeal and set aside the order of the High Court.