Supreme Court allows appeal against committal for contempt due to lack of fair notice and hearing.

THE SUPREME COURT

Appeal No. 436/11 & 421/11

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

McKechnie J.

Between/

Dublin City Council

Applicant

and

Thomas McFeely, Laurence O’Mahony and

Coalport Building Company Limited

Respondents/Appellants

Judgment delivered on the 31st day of July, 2012 by Mr Justice Fennelly.

1. I agree with the judgment of the Chief Justice. She has given an extended account of the facts and history of this matter. I adopt

it gratefully. This enables me to concentrate on the issue of fair procedures on which I wish to comment. I do not intend to comment

on the scope of application of s.23 of the Fire Services Act, 1981 as it is not relevant to the issue of contempt of court which is

before the Court.

2. The remedy of committal for contempt of court is an indispensable procedural remedy, whereby the courts can give effect to their

orders, promote enforcement of orders in the interest of the parties and guarantee respect for the administration of justice and the

rule of law. Without it, defiant and recalcitrant litigants might be able to defy the courts and the law and deprive opposing parties of

their just rights. The ultimate remedy is committal to prison for contempt of court.

3. The other side of that coin is that the severity of the remedy of committal to prison for contempt of court necessarily requires due

respect for the rights of the parties to be subjected to it. The simplest and most basic of all the requirements of justice is due and

fair notice be afforded to the party charged. Lawyers call it audi alteram partem.

4. In the present case, everything focuses on the hearing in the High Court on 4th November 2011, when the President of the High

Court made the finding that the appellant had committed a breach of the order of the Court dated 17th October.

5. It is right, however, to recognise the shocking history of this extremely unfortunate case. The matter first came before the High

Court on Friday 14th October on foot of the notice of motion issued by the City Council on the same day. The learned President

registered his grave concern at the events from the outset, illustrated by his requirement that the papers be sent to the office of the

Director of Public Prosecutions on the same day. He was, in particular, rightly extremely concerned at the disastrous predicament of

the residents. Counsel for the appellant, on his first appearance on 17th October, did not question the seriousness of the situation

and accepted the blamelessness of the residents.

6. As appears from the order of the Chief Justice, the order of 17th October directed the appellant to carry out works in accordance

with the undertaking offered by him to the Court and as per the schedule which has been adduced in evidence on that day. Following

the making of the order, the learned President expressly pointed out that if it were not complied with, this could be followed by “a

contempt attachment and committal to prison application.” The learned President made it clear beyond doubt to all involved that he

intended to ensure through weekly reviews that the programme of works to see progress which he would police on a week by week

basis. Thus, he adjourned the matter from week to week with the object of overseeing the continuing carrying out of the remedial

works. He was acutely conscious of the great injustice that had been done to the utterly innocent residents of Prior Hall and was

determined, so far as was possible, to see that they obtained justice.

7. Phase 1 of the works was to be completed by 28th November 2011. The Chief Justice has dealt with that issue in her judgment. I

agree with all she says and will make no further comment, save to observe that, as the appellant accepted on the hearing of the

appeal, he had given a solemn undertaking to the court. He was bound in law to comply with it. He was potentially liable, in the event

of breach to the processes of the court, in particular, committal for contempt of court, as, indeed, the learned President pointed out

from the beginning.

8. It was in that context that the hearing on 4th November 2011 took place. The residents were legitimately alarmed and angry. The

City Council were unhappy with the progress of the remedial works and, in particular, with the performance of the appellant.

9. In the event that an application is to be made to have a person attached or committed for contempt of court, Order 44, rule 3 of

the Rules of the Superior Courts provides:

“Save in respect of committal for contempt in the face of the Court or committal under rule 4 no order of attachment or committal

shall be issued except by leave of the Court to be applied for by motion on notice to the party against whom the attachment or

committal is to be directed.”

Rule 4 deals with the case of committal of a person against whom an order of attachment has already been made. This may happen

when a person does not appear in response to a notice of motion issued under rule 3 and has had to be arrested. It does not apply

here. Thus, the requirement of rule 3 is clear and imperative. Before a person is committed to prison for contempt, he must receive a

notice of motion specifying the respect in which he is alleged to be in contempt, which enables him to appear in court to answer the

applicant’s complaint. In default of his appearance, the court may order his attachment. In addition, Order 52, rule 4 provides:

“Every motion for attachment…shall state in general terms the ground of the application.”

10. The object of these rules is to comply with the obvious need to respect fair procedures where a person is at risk of being

imprisoned, that is to respect the rule of audi alteram partem. It is inherent in this system that the person be put on notice of the

nature of the contempt alleged against him. In a case where the charge is that he is in breach of a court order, he should be told

what the order is and how he is alleged to be in breach. It seems to me axiomatic that these procedures must be observed before the

court makes a finding that the person is in breach of the order. That is what the contempt consists of.

11. Regrettably, these procedures were not followed in respect of the order made on 4th November. What was before the High Court

on that day was an adjourned consideration of the matter which had been before the court since 14th October. There was no new

notice of motion before the court. Dublin City Council did not give notice of any intention to seek a finding that the appellant was in

breach of the order of 17th October, still less of their intention to seek the appellant’s attachment or committal. The learned

President heard an account of the situation of the residents of Priory Hall. Counsel for the City Council then expressed serious

concern regarding what they saw as the unsatisfactory performance of the appellant in carrying out remedial work. In short, they

asked that he be removed from the site. All this has been dealt with in the judgment of the Chief Justice.

12. The learned President invited counsel for the City Council to address him on the question of whether the undertaking of the

appellant had been complied with. He noted, correctly, that there was no “motion for committal or attachment before the court” and

that there were “procedures to be followed in that regard…”

13. Nonetheless, he then invited the parties to say whether they wished him to hear and determine “the issue as to whether the

works have been complied with,” adding that he had given an indication of what he believed would follow “in the event of certain

findings.” It does not appear that either party clearly responded to this suggestion. It is only fair to say that, given that there had

been no notice that a hearing regarding the breach of the court order was to take place on that day, one might have expected

vigorous opposition from counsel to the appellant. At any rate, the learned President invited the City Council to call its evidence,

which counsel proceeded to do.

14. Counsel for the appellant permitted the evidence to be led without objection. He did, however, object that he could not cross-

examine as he had had no forewarning or opportunity to obtain instructions and that it was unfair to his client if he did not know.

Pressed by the learned President he did, nonetheless, endeavour to cross-examine the City Council witness. He also called his own

witness. The learned President proceeded to make a formal finding that there had been a breach of the undertaking to carry out the

agreed works and a breach of the court order. He said:

“I am satisfied that 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 deal with the fire hazard, arising from the state of the premises

as disclosed to the court when this application was first made.”

15. The learned President went on to say that, having made those findings, he had to consider and discuss with the parties what

consequences flowed from it. He referred to the suitability of a particular material whose use in the remedial works had been proposed

on behalf of the appellant. He had to consider, he said, whether he should leave the appellant on the site “under more or less

imminent threat of a committal and attachment application.” He then addressed counsel for the City counsel and said he intended to

“grant leave to you to bring a committal application next Friday.”

16. The order of the High Court of 4th November recorded:

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

said date.”

It also recorded that the appellant and Coalport Limited and their servants or agents were to vacate the apartment complex.

17. On 9th November 2011, the City Council issued a notice of motion returnable for 11th November seeking the attachment and

committal of the appellant for failure to comply with the order of 17th October and his undertaking of the same date. In the affidavit

grounding that application it was deposed that the learned President had on 4th November already found the appellant to be in

breach of the undertaking and of the order. That fact does not appear to be in any doubt. The learned President himself confirmed at

the hearing of the committal application on 17th November and in response to counsel’s submission that there had been no

notification on 4th November that: “The Court has found there was a breach.”

18. I would have thought that it was elementary that a person who is to be put at risk of a finding that will expose him to

imprisonment for contempt is entitled to notice of the fact that such a hearing is to take place together with fair notice of any

allegations that are to be made against him. Clearly, that did not happen in this case. Counsel for the appellant relies on the decision

of the Court of Appeal in England in Harmsworth v. Harmsworth [1987] 1 W.L.R. 1676, which concerned a committal order made by

the County Court in matrimonial proceedings. The issue was the extent of compliance with court rules requiring that the notice of

motion contain sufficient particularity to meet the charge. Woolf L.J. in a judgment, at page 1685, concurring with Nicholls L.J., said

that he “would emphasise that in proceedings for contempt of court [one] should always have in mind the fact that the liberty of the

subject is involved.” Nicholls L.J. himself cited a statement of Sir John Donaldson M.R. in Chiltern District Council v Keane [1985] 1

W.L.R 619 at p. 621 to the effect that “where the liberty of the subject is involved, this court has time and again asserted that the

procedural rules applicable must be strictly complied with.” Sir John Donaldson M.R. had further said;

"The notice of motion was personally served on Mr. Keane, but it only stated the grounds of the application to commit in

general terms. It recited the undertaking and the injunction, and then alleged that there had been a breach. This, on the

authorities, is not sufficient. It has been said in many cases that what is required is that the person alleged to be in

contempt shall know, with sufficient particularity to enable him to defend himself, what exactly he is said to have done or

omitted to do which constitutes a contempt of court.

"The particular undertakings and injunctions in this case cover a wide range of activities. Mr. Keane was entitled to know

whether it was said by the council that he was in breach of every single requirement of those orders or only some, and if

so which, of them and the notice failed to give him that information.

"Every notice of application to commit must be looked at against its own background. The test, as I have said, is: does it

give the person alleged to be in contempt enough information to enable him to meet the charge?

19. By an order made on 6 May 1987 the husband was restrained from assaulting, molesting or otherwise interfering or communicating

with the wife, save through her solicitors, and from going to the wife's place of work. On 22 June 1987, the wife made a committal

application, pursuant to Order 29 of the County Court Rules 1981. The application was supported by the wife's affidavit and was in

the form of a notice to show cause why the husband should not be committed to prison. The notice alleged, and referred to the

wife's affidavit for details, that he had, inter alia, constantly telephoned the wife at work and threatened her life, followed her on

numerous occasions and used threatening behaviour and followed her on one occasion so that she had to drive to a police station for

protection. The wife's affidavit, which set out details of the alleged breaches, was served on the husband together with the notice

but was not actually attached to it. The judge held that although the notice did not contain sufficient details and particulars it set

out the categories of complaint, and the particulars in the affidavit which contained sufficient details so that the husband had had

sufficient information about the allegations made against him. The committal order recited the judge's finding that the husband had

seriously assaulted the wife although no such allegation was made in the notice. The order further stated that the husband had

attended the wife's place of work although such an attendance was not alleged in the notice.

20. Returning to the Harmsworth case itself, Nicholls L.J., it should be noted that the question turned very much on the terms of the

particular rules under consideration, which required that the breaches alleged be set out in the notice of motion itself. It is

unnecessary to consider that point in the present case. Firstly, no such point is made by the appellant. Secondly, it does not arise in

a situation where there was no notice of motion at all prior to 4th November. It is, however, helpful to note the general tenor of the

remarks of Nicholls L.J. at page 1683:

“So the test is, does the notice give the person alleged to be in contempt enough information to enable him to meet the

charge?....................... From the notice itself the person alleged to be in contempt should know with sufficient

particularity what are the breaches alleged.

In applying that test the contents of the notice are to be read fairly and sensibly as they would be read by a reasonable

person in the position of the alleged contemnor to whom the notice is addressed. Would such a person, having regard to

the background against which the committal application is launched, be in any doubt as to the substance of the breaches

alleged?”

44. Without going into the question whether particulars of the breaches alleged must be set out in the notice of motion or in the

grounding affidavit, I would conclude that the statements I have quoted support the rather obvious proposition that a person faced

with a serious allegation of breach of a court order, which is, of course, contempt of court, must be afforded reasonable notice of the

fact and the nature of the complaint.

45. The City Council does not directly contest these propositions. Rather, it submits that the courts can proceed of their own motion

to ensure that their orders are not put at nought and has jurisdiction to make a punitive order:

(1) in order to vindicate their authority, or,

(2) where the interest of the public in general is engaged, or

(3) where there is a gross affront to the Court.

46. This submission, of course, acknowledges a crucial feature of the order made in this case, which I have not yet mentioned. The

finding necessarily amounted a finding of criminal contempt. The appellant had been effectively removed from the site on 4th

November. From that point there could be no coercive element in any committal. The learned President made this clear on 17th

November 2011, when, having referred to the coercive nature of the civil contempt, he said:

“That is not the present case, because the respondent, at the request of Dublin City Council, has been discharged from

further involvement in the works, because of his failure to carry them out as promised. However, that does not provide a

free exhibit pass for somebody in Mr McFeely’s position. In my view, it would be a travesty of justice if Mr McFeely could

not face the slightest sanction when his failure as were so egregious as to bring about an end to his involvement in the

carrying out of remedial works at Priory Hall. That there is ample authority for the proposition that committal can occur by

way of punishment, where it the breach is of in egregious nature and word that Court must uphold the authority of its

own orders and procedures. There is a significant public interest which informs such an approach.”

47. The City Council cites the decision of Finnegan P. in Shell E & P Ltd v. McGrath & Others [2006] IEHC 108 for the proposition that

it was open to court to punish for criminal contempt, if necessary, on its own motion. In particular, it draws attention to the following

helpful passage which is worthy of citation in full:

“…On a review of the cases I am satisfied that committal for contempt is primarily coercive its object being to ensure that

Court orders are complied with. However in cases of serious misconduct the Court has jurisdiction to punish the

contemnor. If the punishment is to take the form of imprisonment then that imprisonment should be for a definite term.

Insofar as O’Dalaigh C.J. in Keegan v de Burca [1971] IR 223 and in In Re Haughey [1971] IR 217 held that the objective

in imposing imprisonment for civil contempt was coercive and not punitive I have regard to the facts of each of those

cases. In each case he was concerned with criminal contempt and for that reason I regard his definition of civil contempt

to be obiter: while the definition was sufficient for his purposes it is not completely accurate. More accurate is the

proposition in Flood v Lawlor [2002] 3 IR 67 which left open the question as to whether civil contempt is exclusively as

distinct from primarily coercive in nature. In Ross Company Ltd & Anor v Patrick Swan & Ors [1981] ILRM 417 O’Hanlon J.

was of the view that in an appropriate case the Court must exercise its jurisdiction to commit for contempt not merely for

the primary coercive purpose but in order to vindicate the authority of the Court and in which case the Court has

jurisdiction to make a punitive order. His approach is supported by the cases which he mentions Yager v Musa [1961] 2

ALL ER 561, 562 and Danchevsky v Danchevsky [1974] 3 ALL ER 934. It is also supported by Jennison v Baker [1972] 1

ALL ER 997, Phonographic Performance Ltd v Amusement Caterers (Peckham) Ltd. [1964] Ch. 195 and by the passage

which I quote from Halsbury.

When exercising its powers for coercive purposes the jurisdiction to imprison for an indefinite period for civil contempt is one to be

exercised sparingly: Ross Company Ltd & Anor v Patrick Swan & Ors, Keegan v de Burca, The State (Commins) v McRann [1977] IR

78, 89. If there is any other means whereby compliance with the order of the Court can be achieved this should be adopted committal

being in effect the last resort: Danchevsky v Danchevesky.

Committal by way of punishment likewise should be the last resort. It should only be engaged where there has been serious

misconduct. In such circumstances it can be engaged in order to vindicate the authority of the Court. In litigation concerning

exclusively private rights this will usually occur only at the request of the Plaintiff. Circumstances may exist which cause the Court to

act on its own motion: Jennison v Baker, Seaward v Patterson (1897) 1 Ch 545. However where the interest of the public in general is

engaged or where there is a gross affront to the Court it would be appropriate for the Court to proceed of its own motion to ensure

that its orders are not put at naught. I am satisfied that such a power must be inherent in the Court. In the words of Judge Curtis-

Raleigh:

“The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose

hope.”…”

48. That impressive review of the law suggests that the court has jurisdiction in rare cases to act of its own motion to impose

punishment for contempt of its orders. It is not necessary to consider it in the present case. Finnegan P did not suggest that the

court could exercise that power without giving notice to the intended subject of its proposed order. It is clear that it could not. In

the present case, the finding of guilt, i.e. a finding that the appellant had committed a criminal offence took place on 4th November.

The appellant was given no notice that such a hearing was to take place on that day. He was given no particulars in advance of the

allegations of contempt that were to be made. Thus, the sentence hearing took place on 17th November, the appellant having

already been found guilty.

49. There was, in my view, a serious departure from the observance of fair procedures. In those circumstances, as well as for the

reasons given by the Chief Justice in her judgment, I would allow the appeal.