Supreme Court of Ireland Decisions

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:

(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.

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.”

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.

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]

“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].

“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].

“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.”

“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.”

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]

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]

“[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]

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]

“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]

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]

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”.

“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”.

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”.

(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.

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]

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]

“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.”

“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]

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.

“[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]

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].

“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].

“ … 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.]

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]

“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]

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

“scenario [has] been outlined which would have overcome the non compliance with the agreed time limit for completion of phase 1.“

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.

6. On the face of it, the section confines the jurisdiction of the High Court to making an order restricting or immediately prohibiting the use of land or buildings until specified measures have been taken to reduce the fire risk to a reasonable level. Such was the nature of the order sought by Dublin City Council in its initiating application on foot of a Notice of Motion returnable for 14th October, 2011.

7. Those directly affected by an order under that section are the users of the particular land or building, who may or may not be the owners. If the users of such properties are tenants, the owners will be affected indirectly, and, depending on the circumstances, possibly in no less serious a way than the user.

8. The only sanction which the section seems to envisage as regards such persons is the restriction or prohibition on the use of property until specified measures have been taken.

9. Thus, on the face of it, a user of the property concerned (including an owner) could, in principle, opt to forego the use of the property and not carry out any works specified without further sanction. (It is perhaps possible that in particular circumstances a change of use, from say a B&B to use as a family home, would be sufficient to reduce the risk to a reasonable level because of different requirements as to safety standards). Persons who were blameless as regards the cause or source of the fire hazard, but who could not afford to carry out remedial works, would nonetheless remain restricted or prohibited, as in this case, from using the property so long as the specified works were not done. That could result in an enormous degree of hardship and distress, albeit unavoidable in the interests of fire safety, where families and other persons are deprived, again as in this case, of the use of their dwellings and property. Here we are concerned principally with 187 apartments and a small number of retail outlets.

10. The appellant, although the owner of some of the apartments and having an interest in the buildings and common areas in Priory Hall, had no further legal interest in most of the apartments, and thus no vested interest in whether those properties could continue to be used or not as dwellings.

11. However, he did in any event give undertakings to the High Court, in the particular circumstances outlined in the two judgments referred to, to carry out specified works. The issues in the appeal have essentially turned on the orders made by the High Court relating to the works which he was to carry out on foot of his undertaking.

12. The persons or bodies who were in fact responsible for causing a property to be so seriously deficient as regards fire safety may, at the time when the fire authority makes an application under s.23, no longer be either users or owners of the property. Thus, builders or developers who were responsible but who no longer have any legal interest in a property or building may remain unaffected by any order which could be made under the section.

13. Furthermore, whether the section confers on the High Court any jurisdiction to make a mandatory order in respect of a user or owner which would go beyond the restriction or prohibition of use, appears at least doubtful.

14. In the light of the grounds upon which the Court, as expressed in the judgment of the Chief Justice and Mr. Justice Fennelly, has decided to allow the appeal, it is not necessary to embark on a definitive interpretation of s.23 in this respect.

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.

“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.”