THE COURT OF APPEAL
Neutral Citation Number: [2019] IECA 117
Appeal No. 2019/100
Peart J. Irvine J. Baker J. BETWEEN/
TOM KAVANAGH
- AND -
TOM MORRIN
JUDGMENT of Ms. Justice Baker delivered on the 12th day of April 2019
1. This is an appeal from a decision of Reynolds J. given on 5 March 2019 by which she gave the plaintiff liberty to issue an order of attachment and an order of committal against the defendant and made various other orders relating to certain Folio lands in County Kildare over which the respondent was appointed receiver by deed of 23 September 2013.
2. The litigation has had a long history and orders have been made by which the appellant was required to surrender vacant possession and control of the property to the receiver and inter alia to remove livestock and machinery from the lands.
3. The first interlocutory order was made by Twomey J. on 28 July 2018. Following the failure by the appellant to comply with that order, Reynolds J., on 13 December 2018, delivered a written judgment in which she explained the basis on which she found that the appellant was in breach of the interlocutory orders made by Twomey J., and granted the receiver liberty to issue an order of attachment against him.
4. The parties compromised the issue between them following negotiations and on 18 December 2018, an order was made on consent and ruled by Reynolds J. which provided for the delivery up of possession by the appellant of the lands, the removal of all vehicles, machinery, chattels, and animals with a stay until 4 February 2019. The Court noted the undertaking given by the appellant not to appeal the order made five days earlier on 13 December 2018, and to withdraw his appeal against the order of Twomey J. made on 28 July 2017.
5. The proceedings were then listed for mention only on 5 February 2019 and the motion of the plaintiff issued on 31 May 2018 was listed for mention only on 14 February 2019. Liberty to apply was given to all parties.
6. The events immediately following the ruling of this compromise give rise to this appeal.
Events after expiration of stay
7. The consent order of 18 December 2018 was stayed until 4 February 2019, but the appellant did not vacate the lands or remove the chattels and animals by that date. Relief was then sought by motion issued on 8 February 2019 for orders pursuant to O. 44, r. 3 of the Rules of the Superior Courts and/or pursuant to the inherent jurisdiction of the High Court that the respondent be given liberty to issue an order of attachment and committal by reason of the failure of the appellant to abide by the order.
8. That motion was grounded on an affidavit of Cian Clich and a longer affidavit of Sean Cahill sworn on 5 February 2019. The motion was thereafter adjourned on a number of occasions to allow for an exchange of affidavits. Mr. Morrin swore a replying affidavit on 14 February 2019 and thereafter, on 19 February 2019, Mr. Kavanagh, the respondent, swore an affidavit in reply. A supplemental affidavit of the appellant sworn on 27 February 2019 and of Sean Cahill sworn on 1 March 2019 completed the evidence before Reynolds J. when the motion was returned before her on 21 February 2019.
9. On 21 February 2019, the motion was adjourned to facilitate the potential sale of the property to a third party but that sale did not proceed although the potential purchaser had paid a substantial deposit. On 28 February 2019, some seven days after the sale fell through, the appellant issued plenary proceedings against the respondent in proceedings entitled Morrin v. Tom Kavanagh and Pentire Property Finance DAC & Anor , bearing Record No. 2019/1701 P, in which he sought a declaration, inter alia , that there was to be implied into the agreement entered into between the appellant and the respondent on 18 December 2018 a number terms, notably a term that Mr. Morrin, would, following the collapse of the sale to the third party purchaser, be given a reasonable opportunity to discharge "a sum equivalent to the value of the lands, and that that value would be accepted by the defendants in full and final settlement of the plaintiff's indebtedness", the relevant indebtedness being the debt on foot of which the predecessor of Pentire Property Finance DAC appointed Mr. Kavanagh as receiver.
10. Immediately after he issued the plenary summons, Mr. Morrin attended before Reynolds J. and sought short service of a motion to seek an extension of the stay agreed between the parties as provided for in the High Court Order of 18 December 2018. The trial judge refused the application to issue that motion on the afternoon of 28 February 2019.
11. The motion for attachment and committal came on for hearing five days, two clear working days later, on 5 March 2019, at which stage the appellant sought a short adjournment for two days for the purposes of preparing a supplemental affidavit to respond to the last affidavit of Sean Cahill sworn on 1 March 2019. Counsel for the appellant also made the submission to the trial judge at the call-over that he wished to address the Court regarding the effect of the plenary proceedings.
12. The application for an adjournment was refused.
The hearing of the motion
13. At the call-over of the chancery list on 5 March 2019, the attachment and committal motion was called on, Reynolds J. described the application for short-service as "wholly without merit", refused the adjournment application and made the orders sought by the respondent.
14. The motion then came on for hearing before the trial judge and this Court has had the benefit of the Digital Audio Recording transcript of the hearing.
15. Counsel for the appellant again renewed his application for an adjournment to deal with the last affidavit in the sequence. He also objected to some of the submissions advanced by counsel for the respondent and complained that concerns expressed regarding the welfare of animals on the farm were not on affidavit before the Court. The trial judge was told in very clear terms that the respondent would not consent to any further adjournment.
16. Counsel for the appellant then sought to argue that the consent order of 18 December 2018 had failed to make provision for the events which transpired following the refusal of the intended purchaser to conclude the sale, and that he wished to address the Court on the legal basis for his argument which formed the subject matter of his plenary proceedings, viz. that the agreement and consent order of 18 December 2018 admits of the implication of the term for which he contends, and that in those circumstances, he should be permitted to advance that argument before the Court upon the hearing of the attachment and committal motion, and should further be granted a stay on the order for possession to make proposals in the light of those assertions.
Grounds of appeal
17. The appellant raises a number of matters in his notice of appeal dated 15 March 2019 which may be summarised as follows:
(a) that the appellant did not get a fair hearing of the motion;
(b) that the trial judge pre-judged the motion;
(c) that the trial judge did not make a specific finding of contempt; and
(d) that there was, in fact, no contempt on the part of the appellant in relation to the order of 18 December 2018. In that regard, a ground was sought to be advanced at the hearing regarding the correctness of service which it was argued was encompassed within this ground.
18. The respondent fully defends the appeal and denies all of the claimed failures. It is submitted, in particular, that the trial judge had previously made determinations in the matter and that the impugned order must be seen in that context. It is asserted that there was, in fact, a finding of contempt by her expressed in her written ruling and that the appellant remains in manifest and incontrovertible breach of the order made on 18 December 2018.
Discussion
19. The first question for determination is whether the hearing of the motion on 5 March 2019 was sufficient to meet the test of fairness. The question must be seen in the context of previous engagement by the trial judge in the earlier committal motion and because she had only days earlier heard and refused an application by Mr. Morrin for short service of a motion in his plenary proceedings.
20. Counsel for the appellant contends that he was denied the opportunity to make the arguments and to open the relevant case law and that the trial judge thereby denied him his fundamental right to a fair hearing, which, having regard to fact that the motion sought his attachment and committal, and that the appellant's liberty was in issue was an imperative which could not be ignored.
21. He also argues that the short two-day adjournment would not have prejudiced the respondent.
22. I do not propose considering the argument made by the appellant that the trial judge in some way pre-judged the motion as it seems to me that the appeal must succeed on the simple grounds advanced in regard to the correct approach to the hearing of a motion for attachment and committal. I agree with the general proposition argued by counsel for the appellant that the fact that the High Court judge stayed the order for attachment and committal for a period of two weeks did not suffice to afford fair process, and that the making of the order has a consequence that the appellant was prejudiced, and that that prejudice is not cured by a stay on an order which makes prejudicial findings against him. In that, I accept his reliance on the dicta of Walsh J. in Glover v. BLN Ltd . [1973] IR 388, at p. 429 that:
"[…] The obligation to give a fair hearing to the guilty is just as great as the obligation to give a fair hearing to the innocent."
23. Counsel also relies on the dicta of Clarke J. in Carroll v. Bus Átha Cliath [2005] IEHC 278, [2005] 1 IR 184, at para. 10.5, that: "[…] even if the appeal hearing were conducted fairly, it is impossible to conclude that Mr. Carroll might not be at a disadvantage by virtue of not having had a proper "first instance hearing" and, in all the circumstances of the case, it appears to me that it is appropriate to make a declaration to the effect that the purported decision to dismiss by Mr. Duggan is void and of no effect […]".
24. It is true that the present case does not concern the matter in issue in Glover v. BLN or Carroll v. Bus Átha Cliath , the question of whether an appeal could cure the prejudice caused by an unfair hearing in the first instance. The proposition, however, remains the same, and, in my view, the placing of a stay on an order and determination of the Court does not cure any absence of fair process or any prejudice caused in the conduct of the hearing in which the order was made.
25. I consider that the transcript shows that the trial judge did not permit counsel for the appellant to address her, even briefly, in regard to his argument that the alleged lacuna identified by him in the consent order of 18 December 2018 would, as a matter of law and reason, be met by the implication of the term for which he contended. It seems clear to me that she did not permit counsel to open the law or the argument on which he relied. I accept entirely that the trial judge might have taken a view, one borne out by the authorities, that the implication of a term in a contract in writing, and where the parties were legally represented, may be difficult to establish as a matter of law or fact, but having regard to the issue before the Court which was likely to impact upon the liberty of Mr. Morrin, I consider that his counsel was entitled to be given an opportunity to advance the argument that, whilst the order of 18 December 2018 appeared to be "very clear" as the trial judge said, the events which transpired after the collapse of the sale of the property might have led to a reasoned view in the light of the authorities that a term was to be implied to the effect that Mr. Morrin was himself free to make an offer to purchase the lands at the same value.
26. I accept too that the trial judge was perfectly entitled to have regard to her previous engagement with the case and indeed she showed a knowledge of the events which had transpired over the number of hearings that had come before her. The fact remains, however, that Mr. Morrin had issued High Court plenary proceedings, was represented by counsel who indicated to the Court that he wished to open legal authorities in support of his assertion that the agreement of 18 December 2018 admitted of an implied term, and that counsel further sought a very short adjournment to deal with the matter, and that the trial judge failed to afford to the appellant sufficient due process in the light of the fact that what was before her was a motion for attachment and committal, and where the short adjournment was sought to deal with factual matters that may have improved the position of the appellant on the merits.
27. I have regard to the well-established proposition that a litigant does not have an unfettered right of access to the courts and cannot demand to be heard on every issue which they intend to raise. A judge is entitled to take a view that some points sought to be raised are prima facie unstateable and to manage the progress of a case in the interest of justice and the management of court resources. In the present case, counsel sought to be heard only on one issue, and his argument could have been made in short order. The refusal to permit him to do so was not proportionate in the circumstances
28. Mr Morrin's liberty was at stake, and natural justice and fair procedures required that he be given an opportunity, to make his submission and support it by reference to the authorities. The application of counsel was to make no more than brief submissions and for a very short adjournment, and justice was not served by the refusal.
29. As this conclusion is dispositive of the matter before this Court, I do not propose dealing with the other arguments sought to be raised in the course of the hearing regarding the alleged frailty in service and the argument that the trial judge had pre-judged the factual basis on which her decision was made.
30. I propose therefore allowing the appeal on the ground that the appellant was not afforded fairness of process in the conduct of the hearing of the motion on 5 March 2019.
31. I am concerned, however, that the appellant must not be assisted in any attempt to avail of this decision to further delay the hearing of the contempt motion, or any other motion or application that he vacate the land. In those circumstances, it seems to be correct that the matter be returned immediately to the High Court Chancery List on the first Tuesday of the new legal term to be determined by another High Court judge.
